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Full text of "The American state reports, containing the cases of general value and authority subsequent to those contained in the "American decisions" [1760-1869] and the "American reports" [1869-1887] decided in the courts of last resort of the several states [1886-1911]"

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Author  and  Title 

The  American  State  Reports. 


LOCATION 


■I 

!  The  American  State  Reports. 

KF 

133 
AU2 


vol. 
91 


r 


THE 


AMERICAN  STATE  REPORTS^ 


ooiiTAiiiiiie  turn 


CASES  OF  GENERAL  VALUE  AND  AUTHORIH 


SUB8BQUBNT  TO  THOSE  OOKTAINED  IN  THE   <«AMERIOAK 
DECISIONS''  AND  THE  "AMERICAN  REPORTS," 


DaCIDBD  IV  THB 


OOITRTS  OF  LAST  RESORT 


OF   THE   SEVERAL   STATES. 


flnSCTBD^  MMNXtWSO,  AHD  AWOTATID 


Bt  A.  C.  FREEMAN. 


VOLUME   91. 


BAN  rRANdSOO: 
BANCROFT-WHITNEY   COMPANY, 

L4W  Poaununa  amb  Law  BooKnuna. 

1908. 


Copyright,  1906 

BY 

BANCROFT- WHITNEY  COMPANY. 


8ak  Fkakcxsgo: 

Thb  VttMmtL  BKOTRms  BLBcniorvTB  CoirPA.irY, 

TvpoomAFHnui  akd  amtBcymms. 


AMERICAN  STATE  REPORTa 


VOIiUMB  91. 


SCHEDULE 

showing  tiia  original  volumeB  of  reports  in  which  the 
cases  herein  selected  and  re-reported  may  be  founds 
and  the  pages  of  ttiis  volome  devoted  to  each  state. 


Alabama  Rbfobts  •    • 
Abkavbas  Rkpobts     • 
Ibdiana  Appbals    •    • 
Iowa  Repobts    •    •    • 
Kansas  Rbpobtb     •    . 
Massachusetts  Repobts 
MniHsaoTA  Repobts    • 
Montana  Repobts  •    • 
New  Jersey  Law  Reports 
Obboon  Reports     •    • 
Rhode  Island  Repobts 
South  Dakota  Repobts 
Tennessee  Repobts     • 
Utah  Repobts  •    •    • 
Washington  Repobts 
Wisconsin  Reports      • 


Vol.  138. 

17-  62 

Vol.  7a 

6»-106 

VoL28. 

107-142 

Vol.  116. 

148-186 

Vol.64. 

187-260 

Vol.  180. 

261-880 

Vol.  86. 

881-885 

VoL26. 

886-422 

Vol.  67. 

423-452 

Vol.  40. 

453-589 

Vol.  23. 

590-665 

Vol.  15. " 

666-705 

Vol.  108. 

706-777 

VoL24. 

777-816 

Vol.  27. 

817-897 

VoL  114. 

898-950 

(5) 


S  OHEDULE 

SHOWINa  IN   WHAT  VOLUMES   OF  THIS   SERIES  THE  OASES 
REPORTED  IN  THE   SEVERAL  VOLUMES  OF  OFFICII 

REPORTS  MAY  BE  FOUND. 


4M«te  leportf  u%  la  pannUieMi,  ud  th*  nwaban  of  this  mtim  In  bold-faoad  flfUM. 

JLlabama.  —  (83)  8;  (84)  6;  (86)  7;  (86)  U;  (87)  18;  (88)  16;  (88)  18;  (90» 
81)  84;  (92)  86;  (93)  80;  (94)  88;  (96)  86;  (96,  97)  88;  (98)  88;  (99) 
48;  (100,  101)  46;  (102)  48;  (108)  49;  (104,  106)  68:  (106, 107, 108)  54; 
<109,  110)  50;  (111)  56;  (118)57;  (118)59;  (114)  68;  (116.  116)  67; 
<118^  119)  78;  (120)  74;  (121)  77;  (122,  123,  124,  126)  88;  (126,  127)  85; 
(128)  86;  (129)  87;  (180)  89;  (131, 132)  90;  (133)  91. 

Amkakbab.  —  (48)  8;  (49)  4;  (60)  7;  (61)  14;  (62)  80;  (63)  88;  (64)  86; 
(66)  89;  (66)  85;  (67)  88;  (68)  41;  (69)  48;  (60)  46;  (61,  62)  54s 
(68)  58;  (64)  68;  (66)  67;  (66)  74;  (67)  77;  (68)  88;  (69)  86;  (70)  91. 

CiUfOBNiA.  ^(72)  1;  (73)  8;  (74)  5;  (76)  7;  (76)  9;  a7)  U;  (78,  79)  18;  (80| 

18;  (81)  16;  (82)  16;  (83)  17;  (84)  18;  (86)  80;  (86)  81;  (87,  88)  88; 

(89)  88;  (90,  91)  86;  (92,  93)  87;  (94)  88;  (96)  89;  (96)  81;  (97)  88; 

(98)  85:  (99)  87;    (100)  88;  (101)  40;   (102)  41;  (108)  48;  (104)  48; 
iH%K\  .AK.  tinA\  A4t.   ttnnx  am.  /ififi\  ao.   tintk\  ka.  /iin    iii\  ko.   /iin% 


80;  (190)  »7;  (130)  »V. 

Colorado.  ~  (10)  8;  (11)  7;  (12)  18;  (18)  16;  (14)  80;  (16)  88;  (16)  86| 
(17)  81;  (18)  86;  (19)  41;  (20)  46;  (21)  58;  (22)  50;  (23)  58;  (24)  66; 
(28)  71;  (26)  77;  (27)  88;  (28)  89. 

CoKNicncirr.  — (64)  1;  (66)  8;  (66)  7;  (67)  14;  (68)  18;  (69)  81;  (60)  86; 
(61)  89;  (62)  86;  (63)  88;  (64)  48;  (66)  48;  (66)  50;  (67)  58;  (68)  57; 
(69)  61;  (70)  66;  (71)  71;  (72)  77;  (73)  84. 

Dblawaiul— (6  Hoiut)  1;  (6  Hontt.)  88;  (7  Hoost)  40;  (9Hoast)48; 
(1  Mwr.)  65;  (2  Marr.)  69;  (1  PennewiU)  78;  (2  PennewUl)  88. 

Florida.  ^(22)  1;  (23)  U;  (24)  18;  (26,  26)  88;  (27)  86;  (28)  89;  (29)  80; 
(SO)  88;  (31)  84;  (32)  87;  (33)  89;  (84)  48;  (36)  48;  (36)  51;  (37)  58; 
(38)  56;  (39)  68;  (40)  74;  (41)  79;  (42)  89. 

Ororoia.  — (76)  8;  (77)  4;  a8)  6;  (79)  U;  (80,  81)  18;  (82)  14;  (83,  84)  80; 
(86)  81;  (86)  88;  (87)  87;  (88)  80:  (89)  88;  (90)  85;  (91,  92,  93)  44; 
(94)  47;  (96,  96)  51;  (97)  54;  (93)  58;  (99)  59;  (100)  68;  (101)  66; 


SCHXDDLI.  7 

POS)  M;  (108)  68:  (104)  69;  (106)  TO;  (106)  71;  (107)  VSs  (100)  TS; 
(100)  77;  (110,  111)  78;  (112)  81;  (US)  84;  (114)  88{  (110)  9a 

liPiAHOL  — (2)88. 

luniOB.— (121)  8;  (122)  8;  (128)  6;  (124)  7;  (120)  8;  (120)  9;  (127)  U; 
(128)  18;  (129)  16;  (180)  17;  (181)  19;  (182)  88;  (188,  184)  88;  (186) 
88;  (180)  89;  (187)  81;  (188,  188)  88;  (1401  141)  88;  (142)  84;  (143, 
144,  146)  86;  (146,  147)  87;  (148)  89;  (148«  160)41;  (161)  48;  (162)  48; 
(164)46;  (163.  166)46;  (166)47;  (167)48;  fl68)  49;  (169)60;  (160. 
161)68;  (162)68;  (163)64;  (164, 165)66;  (166)67;  (167)69;  (168, 169) 
61;  (170)  68;  (171)  68;  (172;  llA)  64;  (174)  66;  (175)  67;  (176)  68; 
(177,  178)  69;  (179)  70;  (180,  181)  78;  (182)  74;  (183,  184)  76;  (186) 
76;  (186)  78;  (187)  79;  (18S)  80;  (189)  88;  (190)  88;  (191,  192)  86; 
(193)  86;  (194,  196)  88;  (196)  88;  (197)  9a 

In»XAHA.— (112)  8;  (118)  8;  (114)  6;  (116)  7;  (116)  8;  (117,  118)  10;  (119) 
18;  (1201  121)  16;  (122)  17;  (123)  18;  (124)  19;  (125)  81;  (126,  127)  88; 
(128)  86;  (129)  88;  (130)  80;  (131)  81;  (132)  88;  (133)  86;  (134)39; 
(186)  41;  (186)  48;  (137)  46;  (138)  46;  (139)  47;  (140)  49;  (1,  2,  3 
Ind.  App.;  141)  60;  (4, 6, 6  Ia<L  App.;  142)  61;  (7, 8  fnd.  App.;  148)  68; 
(9,  10  Ind.  App.)  68;  (11  Ind.  App.)  64;  (13  Ind.  App.;  144)  60;  (14 
Ind.  App.)  66;  (16  Ind.  App.;  146)  67;  (146)  68;  (16  Ind.  App.)  69;  (17 
Ind.  App.)  60;  (147,  148)  68;  (18  Ind.  App.;  149)  68;  (160;  19  Ind. 
App.)  66;  (20  Ind.  App.)  67;  (161)  68;  (21  Ind.  App.)  69;  (162)  71; 
(22  Ind.  App.)  78;  (153)  74;  (23  Ind.  App.;  164)  77;  (24  Ind.  App.) 
79;  (166)  80;  (26  Ind.  App.)  81;  (166)  88;  (26  Ind.  App.)  84;  (167; 
27  Ind.  App.)  87;  (28  Ind.  App.)  91. 

Iowa.  —(72)  8;  (73)  6;  (74)  7;  (76)  9;  (76, 77)  14;  (78)  16;  (79)  18;  (80)  80; 
(81)  86;  (82)  81;  (83)  88;  (84)  86;  (86)  89;  (86)  41;  (87)  48;  (88)  46; 
(89.  90).  48;  (91)  61;  (92)  64;  (93)  67;  (94,  95)  68;  (96. 97)  69;  (98)  60; 
(99)  61;  (100)  68;  (101,  102)  68;  (103)  64;  (104)  66;  (105)  67;  (106)  68; 
(107)  70;  (108)  76;  (109)  77;  (110)  80;  (111)  88;  (112)  84;  (113)  86; 
(114)  88;  (116)  91. 

CAVSAa  —(87)  1;  (38)  6;  (89)  7;  (40)  10;  (41)  18;  (42)  16;  (48)  18;  (44)  81; 
(45)  88;  (40)  86;  (47)  87;  (48)  80;  (40)  88;  (60)  84;  (61)  87;  (62)  89; 
(63)  48;  (54)  46;  (56)  49;  (56)  64;  (57)  67;  (68)  68;  (69)  68;  (60)  78; 
(61)  78;  (62)  84;  (63)  88;  (64)  91. 

KBmroKT.  — (83,  84)  4;  (86)  7;  (86)  9;  (87)  18;  (88)  81;  (89)  86;  (90)  89; 
(91)  84;  (92)  86;  (93)  40;  (94)  48;  (96)  44;  (96)  49;  (97)  68;  (98)  66; 
(99)  69;  (100)  66;  (101)  78;  (102)  80;  (103)  88;  (104)  84;  (105)  88; 
(106)  90. 

LoDisxANA.  —  (89  Lft.  Asm.)  4;  (40  U.  Aim.)  8;  (41  La.  Ann.)  17;  (42  La. 
Ann.)  81;  (43  U.  Ann.)  86;  (44  La.  Ann.)  88;  (46  La.  Ann.)  40;  (46, 
47  La.  Ann.)  49;  (48  La.  Ann.)  66;  (49  La.  Ann.)  68;  (50 La.  Ann.)  69; 
(61  La.  Ann.)  78;  (52  La.  Ann.)  78;  (104)  81;  (105)  88;  (106)  87;  (107) 
00. 

Maihb.  —  (79)  1;  (80)  6;  (81)  10;  (82)  17;  (83)88;  (84)  ZOi  (85)86;  (86)  41; 
(87)  47;  (88)  61;  (89)  66;  (90)  60;  (91)  64;  (92)  69;  (93)  74;  (94)  80; 
(95)  86;  (96)  90. 

MABTUurD.  — (67)  1;  (68)  6;  (69)  8;  (70)  14;  (71)  17;  (72)  80;  (73)  86;  (74) 
88;  (76)88;  (76)86;  (77)89;  (78)44;  (80)46;  (79)47;  (81)  48;  (82)61| 


8  SCHBDULK. 


(88)  55;  (84)  67;  (85)  M;  (86)  eS;  (87)  67;  (88)  7l;  (89)  76;  (9Cf)  78; 
(91)60;  (92)  84;  (93)  86;  (94)  86. 

ILkasAOHUsnTS.— (146)1;  (146)4;  (147)6;  (148)18;  (149)14;  (160)16;  (151> 
61;  (162)  68;  (168)  65;  (154)  66;  (156)  81;  (156)  86;  (157)  84;  (168)  Sfti 
(169)  88;  (160)  86;  (161)  46;  (162)  44;  (168)  47;  (164)  46;  (165)  56; 

(166)  55;  (167)  57;  (168)  60;  (169)  61;  (170)  64;  (171)  68;  (172)  70; 
(173)  78;  (174)  75;  (175)  78;.(176)  76;  (177)  88;  (178)  86;  (179)  88; 
(180)  61. 

liiOHiaAK.  — (60,  61)  1;  (62)  4;  (63)  6;  04,  66)  8;  (66,  67)  U;  (68, 69,  75)  18; 
(70)  14;  (71,  76)  16;  (72;  78,  74)  16;  (77,  78)  18;  (79)  16;  (80)  60;  (81. 
82,  88)  61;  (84)  66;  (86.  86.  87)  64;  (88)  66;  (89)  68;  (90,  01)  80;  (92> 
81;  (93)  86;  (94)  84;  (96,  96)  85;  (97)  87:  (98)  86;  (99)  41;  (100)  48; 
(101)  45;  (102)  47;  (103)  60;  (104)  58;  (105)  55;  (106)  68;  (107)  61; 
(106)  66;  (109)  68;  (110)  64;  (111)  66;  (112,  113)  67;  (114)  68;  (115) 
66;  (116,  117)  78;  (118)  74;  (119)  75;  (120)  77;  (121,  122)  80;  (123) 
81;  (124)  88;  (126)  84;  (126)  86;  (127)  86. 

UaawemA (36)  1;  (37)  5;  (38)  8;  (39,  40)  16;  (41)  16;  (42)  18;  (48)  19; 

(44)  60;  (46)  66;  (46)  64;  (47)  68;  (48)  81;  (49)  86;  (50)  86;  (51,  52) 
88;  (63)  86;  (64)  40;  (65)  48;  (66)  45;  (67)  47;  (58)  46;  (59)  50;  (60)  51; 
(61)  56;  (62)  54;  (63)  56;  (64)  68;  (65)  60;  (66)  61;  (67,  68)  64;  (69) 
66;  (70)  68;  (71)  70;  (72)  71;  (73)  76;  (74)  78;  (76)  74;  (76,  77)  77; 
(78^  79)  76;  (80)  81;  (81,  82)  88;  (83)  85;  (84)  87;  (85)  66;  (86)  61. 

Mu8U8iFPi.^(65)  7;  (66)  14;  (67)  16;  (68)  64;  (69)  80;  (70)  85;  (71)  46 
(72)  48;  (78)  55;  (74)  60;  (75)  66;  (76)  71;  (77)  76;  (78)  64;  (79)  86. 

MnsouRi.  — (92)  1;  (93)  8;  (94)  4;  (95)  6;  (96)  6;  (97)  10;  (98)  14;  (99)  17; 
(100)16;  (101)60;  (102)66;  (103)  68;  (104, 105)  64;  (106)67;  (107)  68; 
(108, 109)  86;  (110, 111)88;  (112)84;  (113,  114)  85;  (115)87;  (116,  117) 
88;  (118)  40;  (119,  120)  41;  (121)  46;  (122)  48;  (123)  45;  (124,  125)  46; 
(126)  47;  (127)  48;  (128)  46;  (129)  50;  (130)  51;  (131)  56;  (132)  58; 
(133)  54;  (134)  66;  (135,  136)  68;  (137)  56;  (138)  60;  (139)  61;  (140) 
66;  (141,  142)  64;  (143)  66;  (144)  66;  (145)66;  (146)66;  (147, 148)71; 
(148,  150)  78;  (151)  74;  (152)  75;  (153.  164)  77;  (166)  76;  (156)  76; 

(167)  80;  (158,  159)  81;  (160)  88;  (161)  64;  (162.  163)  85;  (164)  86; 
(165)  88;  (166)  86;  (167, 168)  60. 

lioiiTAirA.— (9)  16;  (10)  64;  (11)  68;  (12)  88;  (18)  40;  (14)  48;  (15)48; 
(16)  50;  (17)  66;  (18)  56;  (19)  61;  (20)  68;  (21)  66;  (22)  74;  (23)  75; 
(24)  61;  (25)  67;  (26)  01. 

MiBiUBKA.  —  (22)  8;  (23,  24)  6;  (25)  18;  (26)  16;  (27)  60;  (28,  29)  66;  (30| 
67;  (31)  66;  (32;  33)  66;  (34)  88;  (36)  87;  (36)  88;  (37)  40;  (38)  41; 
(39,  40)  46;  (41)  48;  (42;  43)  47;  (44)  48;  (45,  46)  50;  (47)  58;  (47,  48) 
68;  (49)  59;  (50)  61;  (51,  62)  66;  (58)  66;  (54)  66;  (66)  70;  (66)  71; 
(67)  78;  (58)  76;  (59)  80;  (60)  88;  (61)  67;  (62)  86. 

Nbtada.  ~(19)  8;  (20)  19;  (21)  87;  (22)  58;  (23)  66;  (24)  77;  (25)  8a 

Nbw  Hamfshibs.  —  (64)  10;  (62)  18;  (65)  68;  (66)  46;  (67)  66;  (68)  78; 
(69)  76;  (70)  85. 

Xiw  JxB0iT.^(43  K.  J.  Eq.)  8;  (44  K.  J.  Eq.)  6;  (50  N.  J.  L.)  7;  (61 
N.  J.  L.;  45  N.  J.  Eq.)  14;  (46  N.  J.  Eq.;  62  N.  J.  L.)  16;  (47  N.  J. 
Eq.)  64;  (5.3  K.  J.  L.)  66:  (48  N.  J.  Eq.)  67;  (49  N.  J.  Eq.)  81;  (54 
N.  J.  L.)  88;  (60  N.  J.  Eq.)  85;  (55  N.  J.  L.)  89;  (61  N.  J:  Eq.)  40;  (66 


80HS]KTL&  0 

N.  J.L.)44;  (»  N.  J.  Bi|.)  401  (97N.  J.L.;  63  N.  J.  Bq.)  51;  (54  K.J. 
Eq.;  58  N.  J.  L.)  55;  (09  K.  J.  L.)  59;  (66  N.  J.  Sq.)  68;  (60  N.  J.  L.) 
64;  (56  N.  J.  Bq.)  67;  (61  N.  J.  U)  68;  (62  N.  J.  K)  78; (67  N.  J.  Eq.) 
78;  (63  N.  J.  L.)  76;  (58  N.  J.  Bq.)  78;  (64  N.  J.  U)  81;  (59,  60  N.  J. 
Bq.)  88;  (66  N.  J.  L.)  86;  (61 N.  J.  Bq.;  66  N.  J.  L.)  88;  (62  N.  J.  Bq.) 
90;  (67  N.  J.  L.)  91. 

Nbw  Toue.  — (107)  1;  (108)  8;  (109)4;  (110)6;  (111)  7;  (112)  8;  (113)  UH 
014)  11;  (115)18;  (116^  117)15;  (118,  119)16;  (120)17;  (121)18;  (12i> 
19;  (123)  80;  (124,  125)  81;  (126)  88;  (127)  84;  (128,  129)  86;  (130, 
131)  87;  (132, 133)  88;  (134)  80;  (186)  81;  (136)  88;  (137)  88;  (138)  84; 
(139)  86;  (140)  87;  (141)  88;  (142)  40;  (143)  48;  (144)  48;  (145)  45^ 
(146)48;  (147)49;  (148)51;  (149)58;  (150)55;  (151)56;  (158)  57^ 
(153)  60;  (154)  61;  (155)  68;  (166)  66;  (157)  68;  (158,  159)  70;  (160) 
78;  (161,  162)  76;  (163,  164)  79;  (165)  80;  (166,  167)  88;  (168)  85; 
(169.  170)  88;  (171)  89. 

NoKTH  Caxoleh^  —  (97,  98)  8;  (99, 100)  6;  (101)  9;  (102)  U;  (103)  14;  (104) 
17;  (105)  18;  (106)  19;  (107)  88;  (108)88;  (109)  86;  (110)88;  (111)  88; 
(112)  84;  (113)  87;  (114)  41;  (115)  44;  (116)  47;  (117)  58;  (118)  54; 
(119)  56;  (120)  58;  (121)  61;  (122)  65;  (123)  68;  (124)  70;  (125)  74; 
(126)  78;  (127)  80;  (128)  88;  (129)  85;  (130)  89. 

North  Dakota  ~  (1)  86;  (2)  88;  (9)  44;  (4)  50;  (5)  57;  (6^  7)  66;  (8)  73; 
(9)  81;  (10)  88. 

Ohio.  —  (45  Ohio  Si.)  4;  (46  Ohio  St)  15;  (47  Ohio  81)  81;  (48  Ohio  St)  29% 
(49  Ohio  St)  84;  (50  Ohio  St)  40;  (51  Ohio  St)  46;  (52  Ohio  St)  49; 
(53  Ohio  St)  58;  (54  Ohio  $t)  56;  (55,  56  Ohio  St)  60;  (57  Ohio  St)  68 
(58  Ohio  St)  65;  (59  Ohio  St)  69;  (60  Ohio  St)  71;  (61  Ohio  St)  76 
(62  Ohio  St)  78;  (63  Ohio  St)  81;  (64  Ohio  St)  88;  (65  Ohio  St)  87 
(66  Ohio  St)  90. 

Oemoh.— (15)  8;  (16)  8;  (17)  11;  (18)  17;  (19)  80;  (20)  88;  (21)  88;  (22) 
89;  (23)  87;  {9A)  41;  (25)  48;  (26)  46;  (27)  50;  (28)  58;  (29)  54;  (30) 
60;  (31)  65;  (32)  67;  (33)  78;  (34)  76;  (35)  76;  (36)  78;  (37)  88;  (38) 
84;  (39)  87;  (40)  91. 

Pnrvsn^VANUL  — (115,  116,  117  F^  St)  8;  (118,  119  Pa.  St)  4;  (120^  121 
P^  8t)  6;  (122  Pa.  St)  9;  (123,  124  Pa.  St)  10;  (125  Pa.  St)  11;  (126 
Pa.  St)  18;  (127  Pa.  St)  14;  (128,  129  Pa.  St)  15;  (130,  131  Pa.  St)  17; 
(132.  133.  134  Pa.  St)  19;  (135,  136  Pa.  St)  80;  (137,  138  Pa.  St)  81; 
(139. 140.  141  Pa.  St)  88;  (142.  143  Pa.  St)  84;  (144,  145  Pa.  St)  87; 
(146  Pa.  St)  88;  (147,  150  Pa.  St)  80;  (151  Pa.  St)  81;  (148  Pa.  St) 
88;  (149.  152.  153  Pa.  St)  84;  (154.  155  Pa.  St)  85;  (156  Pa.  St)  86; 
(157  Pa.  St)  87;  (158  Pa.  St)  88;  (159  Pa.  St)  89;  (160  Pa.  St)  40; 
(161  Pa.  St)  41;  (162  Pa.  St)  48;  (163  Pa.  St) 48;  (164,  165  Pa.  St)  44; 
(166  Pa.  St)  45;  (167  Pa.  St)  46;  (168,  169  Pa.  St)  47;  (170,  171  Pa. 
St)  50;  (172.  173  Pa.  St)  51;  (174.  175  Pa.  St)  58;  (176  Pa.  St)  88; 
(177  Pa.  St)  55;  (178  Pa.  St)  56;  (179,  180  Pa.  St)  67;  (181  Pa.  St) 
69;  (182  Pa.  St)  61;  (183.  184  Pa.  St.)  68;  (185  Pa.  St)  64;  (186  Pa. 
St)  65;  (187  Pa.  St)  67;  (188  Pa.  St)  68;  (189  Pa.  St)  69;  (190  Pa. 
St)  70;  (191  Pa.  St)  71;  (192  Pa.  St)  78;  (193  Pa.  St)  74;  (194  Pa. 
St)  75;  (195  Pa.  St)  78;  (196  Pa.  St)  79;  (197  Pa.  St)  80;  (198  Ph. 
St)  88;  (199  Pa.  St)  85;  (195,  200  Pa.  St)  86;  (201  Pa.  Si.)  83;  (2ji> 
PluSt)90. 


10  Sghsduul 

Rsoin  l8LA]iD.-.aQ  M;  (18)  t7t  (17)  88;  (18)  M;  (19)  61 1  (98)  7S;  (<1| 
79;  (22)  84;  (28)  91. 

80UTH  CABOLUri.— (98)  4|  (97,  88^  29)  18;  (80)  14;  (81.  82)  17;  (88)  86; 
(84)  87;  (86)  88;  (86)  81;  (87)  84;  (88)  87;  (89)  89;  (40)  48;  (41)  44t 
(42)  46;  (48)  49;  (44)  M;  (45)  66;  (46)67;  (47)  68;  (48)  69;  (49)  61; 
(50)  68;  (51)  64;  (52)  68;  (58)  69;  (54)  71;  (55)  74;  (56^  57)  76;  (58)  76; 
(50)  88;  (60,  61)  86;  (62)  89;)  (68)  90.    : 

South  Dakota.  — (1)  86;  (8)  89;  (8)  44;  (4)  46;  (5)  49;  (6)  66;  (7)  68; 
(8)  69;  (9)  68;  (10)  66;  (11)  74;  (12)  76;  (18)  79;  (14)  86;  (15)  91. 

Tnririssn.— (85)  4;  (86)  6;  (87)  10;  (88)  17;  (89)  84;  (90)  86;  (91)  86; 
(92)  86;  (93)  48;  (94)  46;  (95)  49;  (96)  64;  (97)  66;  (98)  60;  (99)  68| 
(100)  66;  (101)  70;  (108)  73;  (108)  76;  (104)  78;  (105)  80;  (106)  86; 
(107)  89;  (108)  91. 

TnAfk  —(68)  8;  (69;  24  Tex.  App.)  6;  (70;  26,  26  T«z.  App.)  8;  (71)  16; 
(27  Tex.  App.)  U;  (72)  18;  (78,  74)  16;  (75)  16;  (76)  18;  (77;  28  Tex. 
App.)  19;  (78)  88;  (79)  88;  (29  Tex.  App.)  86;  (80,  81)  86;  (82)  87; 
(80  Tex.  App.)  88;  (83)  89;  (84)  81;  (85)  84;  (31  Tex.  Or.  Rep. ;  86)  87; 
(86;  82  Tex.  Cr.  Rep.)  40;  (87;  88  Tex.  Cr.  Rep.)  47;  (34  Tex.  Cr. 
Rep.;  88)  68;  (89,  90)  69;  (35  Tex.  Cr.  Rep.)  60;  (36  Tex.  Or.  Rep.)  61; 
(91;  37  Tex.  Cr.  Rep.)  66;  (88  Tex.  Or.  Rep.)  70;  (92)  71;  (89  Tex.  Cr. 
Rep.)  73;  (40  Tex.  Or.  Rep.)  76;  (93)  77;  (94)  86. 

Utah.-(13)  67;  (14)  60;  (15)  68;  (16)  67;  (17)  70;  (18)  78;  (19)76;  (20) 
77;  (21):81;  (22)  88;  (23)90;  (24)  91. 

VnufONT.— (60)  6;  (61)  16;  (62)  88;  (63)  86;  (64)  88;  (65)  86;  (66)  44; 
(67)  48;  (68)  64;  (69)  60;  (70)  67;  (71)  76;  (72)  68;  (78)  87. 

yxsaXRiA.  -(82)  8;  (88)  6;  (84)  10;  (85)  17;  (86)  19;  (87)  84;  (88)  89;  (89) 
87;  (90)  44;  (91)  60;  (92)  68;  (93)  67;  (94,  95)  64;  (96)  70;  (97)  76; 
(98)  81;  (99)  86. 

Washixotok.- (1)  88;  (2)  86;  (3)88:  (4)  81;  (5)84;  (6)  86;  (7)  88;  (8) 
40;  (9)  48;  (10)  46;  (11)  48;  (12)  60;  (13)  68;  (14)  68;  (15)  66;  (16)  68t 
(17)  61;  (18)  68;  (19)  67;  (20)  78;  (21)  76;  (22)  79;  (23)  88;  (24)  86t 
(25)  87;  (26)  90;  (27)  91. 

Wnr  VxwiiHiA.  —  (29)  6;  (30)  8;   (81)  18;   (8%  83)  86;  (84)  86;  (35)  89t 

(86)  88;  (37)  88;  (38,  39)  46;  (40)  68;  (41)  66;  (42)  67;  (48)  64;  (44| 
67;  (45)  78;  (46)  76;  (47)  81;  (48)  86;  (49)  87;  (50)  88;  (51)  90. 

WnooHSiR.  —(69)  8;  (70,  71)  6;  (72)  7;  (78)  9;  (74, 75)  17;  (76^  77)  80;  (78) 
88;  (79)  84;  (80)  87;  (81)  89;  (82)  88;  (83)  86;  (84)  86;  (85,  86)  89; 

(87)  41;  (88)  48;  (89)  46;  (90)  48;  (91)  61;  (92)  68;  (98)  67;  (94)  69; 
(95)  60;  (96,  97)  66;  (98,  99)  67;  (100)  69;  (101)  70;  (102)  78;  (103)  74; 
(104,  105)76;  (106)80;  (107,  108)  81;  (109)  88;  (110)  84;  (111)  87; 
(112)88;  (118)90;  (114)91. 

Wtomino.  -(8)  81;  (4)  68;  (5)  68;  (6)  71;  (7)  76;  (8)  80;  (9)  67. 


AMERICAN  STATE  REPORTS. 


TOL.  91. 


CASES  REPORTED. 


Ainawortlir.  Lakin ' BvOHngB 180  Maw.  897  ....314 

Atehuon  etc.  K.  R.  Co.  t.  Osboni..^rjtf«ii<^ 64  Kan.  187 189 

Atwater  ▼.  Spaldiog Bjeetmeni 86  Minn.  101  ....831 

Belles  ▼.  Kellner Jfegtigenee 67  N.  J.  L.  255..  .429 

^i^\^\?f!'!!!!!?!^..?!'..^  [i?ai/i«^f 86  Minn.  224. ...345 

BUlingtonr.  Jones WUU. 108  Tenn.  884. ...751 

BostickT.  Jacobs Faredontre 133  Ala.  844 36 

Buflalo  Zinc  etc  Ca  V.  Crump.... TVsBo^ion 70  Ark.  526 87 

BarrowsT.  Western  UuioQ  Tel.  Co.  CAfdb 86  Minn.  499. .,.380 

^o^e"  C;..!^?!^!'!^^^  27  Wash.  154... .829 

^£Sk?.T:.^.?.^r!!?.T^^^  \SankCashier 67 N.  J.  L.  801... 438 

Campbells.  State Rea  Quiae. 133  Ala.  81 17 

^^^w^T"'!*!^.^.'^^^  jCceenancy 27  Wadi.  271....841 

Chamberlain  T.  Wood Suffrage 15  a  Dak.  216.. .674 

^^cL^;5^f!^f?^"'.*!.^^^[^^^^ 27  wash.  63  ....820 

Close  V.  Riddle Initerut 40  Or.  592 580 

Commonwealth  ▼.  Goldstein Trial 180  Mass.  374  ....311 

^rT?ite?fr.?r!.^^!°!'.?^  \tf^^^n>l^oder 28R.L  1 590 

Cotterr.  Lynn  etc.  R.  R.  Co. NtgUgenee 180  Mass.  145. ...267 

CottrellT.  GriiBths PcuiUkm.,,,. 108 Tenn.  191  ....748 

DsRuiter  T.  De  Ruiter Divwce 28  Ind.  App.  9  ..107 

Diana  Shooting  Club  ▼.  Lamorenz.Ptf^ac  Land» 114  Wis.  44 898 

Ditmar  t.  Ditmar JHvaroe. 27  Wash.  18 817 

Downey  ▼•  Gemini  Mining  Co.,. . . .  Master  and ServatU,  24  Utah,  431 ...  .798 

Downing  T.  Nioholson WiUa 115  Iowa»  493.....175 

(11) 


12  Ca8B8  Bbpobtxd. 


BuBiior.  KiroiT.      TAmm, 

Barlev.  CommoowMlth  • BnUmefU  Domain .,  A90  llt^m.  679  ,.,.926 

Eogstrand  v.  Kleflfman Judgment 86  Minn.  403.  ...869 

FeUer  T.  Gates. Ofidai  Bond iOOr.  643 492 

First  National  Bank  ▼.  Tyson Huiionee 183  Ala.  459 46 

Firay  ▼.  PennsyWanU  R.  R.  Co....^VtitMi. 67  N.  J.  L.  627. .445 

FolsomT.  Barrett Liens 180  Afass.  439. 820 

Foote»  Bx  parte Nnisanee 70  Ark.  12 68 

Fort  Smith  ▼.  Scruggs Mining  Clahn 70  Ark.  649 100 

French  T.Robb BfeetmenL 67  N.  J.  K  260.. 433 

FrickT.Frito ChaUel  Mortgage.. A\5lowtL,  438 165 

FrithftCo.  t.  HoUan 8<Uee. 133  Ala.  683 54 

Gibson  t.  Torbert Dmggieie. 116  Iowa,  163.... .147 

GtlUs  ▼.  Goodwin I^fanU 180  Mass.  140. ...265 

Gilmore  r.  Lampman Proeeee 86  Minn.  493 376 

Gleason  ▼.  Smith. NegUgenee 180  Mass.  6 261 

Goodwin  T.  Ray Bailment 108  Tenn.  614. ...761 

Gorman  T.  Badlong Negligence 23  R.  I.  169 629 

Gray  r.  Telegraph  Company |  ^^^^^.paniee  f  »WTenn.  39 706 

Hall  T.Keller. Saiee. 64  Kan.  211 209 

Hathaway  T.  McDonald Pure  Food  Law ... .  27  Wash.  669.. ..889 

Herman  T.  Schlesingor. Attorney  and  OHeni. Ill  "Win.  382 922 

Hicks  ▼.  Swift  Creek  Mill  Co. Lieenet! 183  Ala.  411 88 

Hoinans  r.  Boston  Elevated  Ry.Co. i>afit<i^. 180  Mass.  466  .... 324 

Homer  ▼.  Barr  Pnmptng  Engine  Co .  Reeeivere 180  Mass.  163  ... .  269 

Hughes  ▼.  Goodale Judgments 26  Mont.  93 410 

Huntington  T.  Shnte BiOe  and  Notee. , . , .}90  lAnn.  871 309 

Insnranoe  Cow  t.  Donsoomb /iMiifOfioe. 108  Tenn.  724  ....769 

Jenkins  ▼.  Jensen Limitatione. 24  Utah,  108. ...788 

Jordan  t.  Andms Conatiintional  Law. ,  26  Mont  87 896 


KaresT.  CoTell Vendarand  Vendee.ldO  Utm.  206.. ...271 

Kelly  T.  Pittsburgh  eta  R.  R.  Co  .LimitaiionM 28  Ind.  App.  467 .  134 

Kelly  ▼.  State Bastardy. 133  Ala.  196 25 

KolbT.  Union  R.  R  Co WUnesses 23  R.  L  72 614 

LaddT.  Holmes Primarg  Election, . .  40  Or.  167 467 

Lowery  ▼.  Gate Infancy. 108  Tenn.  64 744 

Mach  ▼.  Blanchard Judgments. 16  S.  Dak.  432.  ..698 

Magono  ▼.  Fireman's  Fond  Ins.  Co./iwarafMe 86  Minn.  486. . .  .870 

Mallow  T.  Walker Umdus  Injluence  ,  .  .116  Iowa,  238  ....  158 

McArthur  ▼.  Clark. Partition 86  Minn.il65....333 

^C^^f^f.T^^."^™  *^^^  (iiTei^/vence 23  R  L  381 637 

McCarrier  T.  HoUister NegUgenee 16  a  Dak.  366.  ..695 

McClure  t.  Dee Covenants 116 Iowa,  646.. ...181 

McDonald  T.  Brown LiM 23  R.  L  646 659 


McFbtImm  T.  Grober • fto  TWfi. 70  Ark.  S71 S4 

MaCuUeB  T.  Winfield  a  4 L.  AMii.(]t^Mi<  AMMii 64KMi.9i8 06 

Miller  T.Bmw.... OWMiallMr llSIows,  101.. ..143 

MMMNiriete.  Ry.  Cow  t.  Simanaoo . QgiiirthrffoiMil  Lam, .  04  Km.  SOS 246 

^BLr!  Ci  ?!!f'!?..f^.JfT.  [^«»*« 84Utoh.  88 778 

KoUoT.  Gadsden  LuidetQ.Oow...6brporalioM. 188  AU.  JUML 27 

Northern  Pae.  Ry.  Ca  ▼•  Owens.. ()|b«ri 80  Minn.  188. ...886 

Norton,  In  re Dt  Fado  Oimri  . . . .  04Kjui.  848 266 

OpenafanwT.  Hnlfin CoitdkmUemal  Lam. .  MUteh,  420  ....TOO 

^*LS!ol.^:.^Tr^^^^^^  [/iMiiwiMfc 28 K  L  467 Oa 

P^e Stntee  Sering. eta  Co.  T.  )^^^ 40 Or.  280. 477 

Pkrker  T.  Httghee MUeikma 04  Km.  210. 210 

Pknlton  T.  Keith Proeem 28R.L104 014 

Fepinr.  SoeieteSt.  JennBeptiete.ir«M9i<Aoaie|f. 28R.L  81 020 

Pittehnrgh  etc  Ry.  Oo.  ▼.  FmMk  .RaihDaif§ 20  Ind.  Apfw  100.120 

BniboedT.  Bents Negligeact lOOTenn.  070....708 

R&UroadT.Klymen.. Pamengtn. lOOTenn.  804....760 

RoeamillerT.  State lUgkitoJet 114Wia.lOO 010 

Roth  ▼.  MerehaaU' eto.  Bank PaieiU  mghi 70  Ark.  200. 

RnnellT.  Dutis JVm(i.CMieqfaMie«t.l88  Ala.  047 

Rnat  lAnd  ete.  Co.  t.  Iw>ni Om^ftukm  ^  Ocod§ .  70  Ark.  00 08 

Rntherf ord  T.  Paddook Skmdtr 180  MaM.  200..... 282 

Salem  T.  AnwMi BmhL 40Or.880 486 

ShobertT.  May Ntgligemm 400r.68 463 

Skinner  ▼.  Moore HamuUad 04  Kan.  860 244 

Smith  T.  Aetna  life  Ina.  Cow Iwmnuum 116  Iowa,  217 168 

Smith  ▼.  State Latretw^ 188  Ala.  146 21 

Spelmanr.  Gold  Coin  Mining  ete.  Jj£,,jfca|^« 20  Monk  76 402 

Co. S 

St  Loniiete.Ry.  Co.T.  WiUon..Cbrriwf 70  Ark.  180 74 

State  ▼.  Bonofiglio ... : EomkUe 07  N.  J.  L.  280..428 

gtate  ▼.  Caddy • Former  Jeopardg, . •  16 S.  Dak.  107... 066 

Stete  T.King CrimiiuU  Trial 24Uteh,482 806 

Steto  T.  Krenteberg Labor  Uakm 114Wie.680. 034 

Stete  T.Terline Pifjury. 28  R.  L  680 660 

SteteT.  Toole PMicOMtraeU.*..  26  Mont.  22 386 

Stete  T.  Wright. MandamM 26  Mont  640.... 421 

SteteT. Zimmerman Board  qf  BeaUh, .. ,  86  Minn.  863.. ..861 

Thompeon  T.  Harris Slaader 64  Kan.  124 187 

TohfaiT.  McKinney lAmUaikm Ua  Dak.  62.. ..688 

ToWn  ▼.  McKinney LhniiaikmB 16  a  Dak.  287... 604 

ot«.Oa.  T.  Roberte Mortgage 116Iowa»  474.....171 


14  Cahs  Rspobtsd. 


WaUIit.  Loorcm i^cyU^ciMV.. ••.••..  180 Mam.  18.... 

W«Bd«l T.  SpoksM  Coan^ (teafief 27  WmIi.  121....8S5 

^il?^  S!^.^^^^  1891lMfc268....«76 


AMERICAN  STATE  REPORTS. 

VOLUME  91. 


GASES 

DTTHK 

SUPEEME   COUET 

ALABAMA. 


CAMPBELL  ▼.  STATE. 

[133   Ala.   81,   31  South.   802.] 

SVIDENOE—Bes  0«8ta6b— Whenever  ETidenee  of  an  aet  it 
in  itaelf  admifleible  as  a  material  fact,  and  ia  bo  admitted,  the  deelara- 
tiona  aeeompanyiiig  and  characterizing  the  act  are  a  part  of  the 
ree  gestae,  and  are  admissible  in  explanation  of  the  act.     (p.  19.) 

EVIDENOE— Has  Gestae.— In  a  Prosecution  for  Mnrder,  if 
evidence  is  introduced  that  the  defendant  went  to  the  place  where 
the  deceased  and  another  were  engaged  in  a  quarrel,  and,  participating 
therein,  killed  the  deceased,  declarations  made  by  the  defendant 
on  starting  for  the  scene  of  the  altercation  are  admissible  as  part 
of  the  res  gestae,     (p.  19.) 

JXJBY  TBIAZk— Argumentative  Instmctions  are  properly  re- 
fused,    (p.  20.) 

JXJBY  TBIAIi.— Instructions  Postolatlng  an  Acquittal  npon 
self-defense,  which  are  argumentative,  or  which  omit  some  eon- 
stituent  element  of  self-defense,  are  properly  refused,     (p.  20.) 

The  appellant  Campbell  was  tried  for  killing  one  York,  and 
was  convicted  of  nrarder  in  the  first  degree.  At  the  time  of 
the  homicide  the  deceased  and  Burrell  Messer  were  engaged 
in  8  qnarreL  Campbell  walked  up  and  spoke  to  the  deceased. 
A  few  words  passed  between  them,  when  the  deceased  knocked 
Campbell  down,  and  the  latter,  as  he  arose,  shot  the  deceased, 
killing  hinL  It  was  shown  that  the  deceased  had  made  some 
threats  toward  Campbell  a  year  or  so  before,  but  it  was  not  shown 
that  they  had  been  communicated  to  Campbell.  The  defendant 
requested  the  court  to  give  to  the  jury,  among  others,  the  follow- 
ing charges,  and  separately  excepted  to  the  court's  refusal  to 
give  them:  1.  'The  court  charges  the  jury  that  any  threats 
made  I7  deceased  toward  defendant,  if  such  threats  are  shoim 

Am.  St.  Rep.,  Vol.  $>-2  (17) 


18  Amerioak  STA.TB  Beports,  Vol.  91.     [Alabama^ 

to  have  been  made  by  deceased^  whether  recently  made  or  not^ 
may  be  considered  by  the  jury  in  connection  with  all  the  other 
evidence  in  the  case  in  determining  whether  or  not  there  was 
real  or  apparent  danger  to  defendant  at  the-  time  he  fired  th& 
fatal  shot" ;  4.  *The  court  charges  the  jury  that  if  the  defend- 
ant approached  the  deceased  in  a  quiet  and  orderly  manner, 
that  deceased  replied  to  him  in  an  angry  manner^  and  knocked 
defendant  down,  and  that  defendant  reasonably  and  honestly 
believed  that  deceased  struck  him  with  a  pistol  and  reasonably 
and  honestly  believed  that  deceased  had  a  pistol  in  his  hand 
as  defendant  arose  after  he  was  knocked  down^  and  that  hi» 
purpose  was  to  do  defendant  serious  bodily  harm^  and  the  cir- 
cumstances were  such  as  to  reasonably  produce  such  belief  in 
defendant's  mind  situated  as  defendant  was  at  the  time,  and 
no  reasonable  and  safe  avenue  of  escape  was  open  to  defendant, 
then  defendant  had  the  right  to  anticipate  his  assailant  and  fire 
first,  and  this  rule  would  not  be  changed  even  though  it  should 
turn  out  that  defendant  was  mistaken  as  to  his  belief  that  de- 
ceased had  a  pistol  in  his  hand'';  15.  "The  court  charges  the 
jury  that  if  after  looking  at  all  the  evidence  in  the  case  your 
minds  are  left  in  such  a  state  of  uncertainty  that  you  cannot 
say  beyond  a  reasonable  doubt  whether  the  defendant  was  at 
fault  in  bringing  on  the  difficulty^  and  whether  he  acted  upon 
the  well  grounded  and  Ireaaonable  belief  that  it  was  necessary 
to  shoot  and  take  the  life  of  Arthur  York  to  save  himself  from^ 
great  bodily  harm  or  death,  or  he  shot  before  such  impending 
necessity  arose,  then  this  is  such  a  do^bt  as  will  entitle  the 
defendant  to  an  acquittal";  23.  ''The  court  charges  the  jurj 
that  if  the  testimony  points  in  two  directions,  one  to  the  guilt 
of  the  defendant,  and  the  other  to  his  innocence,  and  both  are 
equally  reasonable,  they  are  bound  to  accept  that  which  pointa 
to  his  innocence  and  acquit  the  defendant,  if  they  believe  that 
phase  of  the  testimony'';  25.  ''The  court  charges  the  jury  that 
if  the  testimony  shows  two  theories,  one  tending  to  the  de- 
f^idant's  guilt  and  the  other  to  his  innocence,  and  both  are  rea- 
sonable, they  must  acquit  the  defendant,  if  they  believe  the 
theory  tending  to  his  innocence." 

B.  B.  ft  W.  H.  Bridges  and  Merrill  ft  Merrill,  for  the  appel- 
lant 

Charles  G.  Brown,  attorney  general,  for  the  state. 

••  DOWDELL,  J.    The  defendant  set  up  the  plea  of  self- 
defense.    The  evidence  was  in  oonfiict  as  to  who  was  the  ag* 


Nov.  1901.]  Campbell  v.  State.  19 

gressor.  The  evidence  without  dispute  showed  that  the  killing 
occurred  at  the  home  of  one  Pruett,  on  the  occasion  of  a  public 
sale,  where  a  good  many  people  were  attending;  that  on  said 
occasion  the  deceased  and  one  Burrell  Messer,  who  was  the 
father  in  law  of  *^  the  defendant,  got  into  a  quarrel,  and  were 
at  the  time  near  a  crib  a  short  distance  from  the  dwelling-house^ 
and  that  the  defendant  was  not  present  at  the  commencement 
of  the  quarrel  between  Messer  and  deceased,  but  came  upon  the 
scene  later,  and  while  the  two  were  still  engaged  in  the  alter- 
cation of  words,  and  came  from  the  direction  of  the  dwelling- 
house.  One  Lovejoy  was  examined  as  a  witness  in  behalf  of 
the  defendant,  and  testified  that  witness  and  defendant  were 
standing  near  the  dwelling-house,  some  distance  from  where 
deceased  and  Messer  were,  and  were  engaged  in  conversation 
relative  to  the  settlement  of  a  business  matter  between  witness 
and  the  defendant;  that  from  the  place  where  witness  and  de- 
fendant were  standing  witness  could  not  see  Messer  and  deceased 
near  the  crib.  The  defendant  offered  to  prove  by  this  witness 
what  he,  the  defendant,  said  when  he  started  to  where  Messer 
was,  near  the  crib,  which  was  objected  to  by  the  state,  and  the 
objection  was  sustained.  It  was  stated  to  the  court  what  the 
witness  would  testify  as  to  the  declaration  of  the  defendant 
when  he  started  to  where  Messer  and  the  deceased  were  near  the 
crib,  and  where  the  defendant  became  involved  in  the  difficulty 
resulting  in  the  death  of  the  deceased,  which  tended  to  show 
that  the  defendant  started  to  where  Messer  was,  for  the  purpose 
of  getting  some  money  changed  with  which  to  pay  a  debt  to  the 
witness.  It  is  oontended  by  counsel  for  defendant  that  his 
going  to  the  scene  of  the  altercation  between  his  father  in  law, 
Messer,  and  the  deceased,  and  after  the  quarrel  between  the  two 
had  begun,  being  shown  in  evidence,  it  was  competent  for  him 
to  show  his  declaration  upon  starting,  as  a  part  of  the  res  gestae 
of  his  act  in  going  to  where  Messer  and  the  deceased  were.  We 
think  this  contention  is  sound.  Whenever  evidence  of  an  act 
is  in  itself  competent  and  admissible  as  a  material  fact  in  the 
case,  and  is  so  admitted,  the  declarations  accompanying  and 
characterizing  such  act  become  and  form  a  part  of  the  res  gestae 
of  the  act,  and  as  such,  are  competent  and  admissible  in  evidence 
as  being  explanatory  of  the  act.  The  sincerity  of  such  declara- 
tions, or  what  weight  may  be  given  to  the  same,  is  a  question 
for  the  jury.  The  court  erred  in  excluding  ®®  this  testimony : 
Harris  v.  State,  96  Ala.  24,11  South.  255;  Tesney  v.  State,  77 
Ala.  33;  Martin  v.  State,  77  Ak.  1;  Kilgore  v.  Stanley,  90  Ala. 


20  American  State  Repokts,  Vol.  91.     [Alabama, 

523,  8  South.  130;  1  Greenleaf  on  Evidence,  sec.  108;  21  Am. 
A  Eng.  En<jy.  of  Law,  1st  ei,  99. 

Other  exceptions  reserved  to  the  rulings  of  the  court  on  the 
admission  and  exclusion  of  evidence  are  without  merit.  More- 
over, the  aame  are  not  insifited  on  in  argument. 

There  were  a  number  of  written  charges  requested  by  the 
defendant,  the  greater  part  of  whidi  were  given  by  the  court. 
Of  the  written  charges  refused  those  numbered  1,  4, 15,  23,  and 
25,  only,  are  insisted  on  in  argument  Charge  1  was  properly 
refused  as  being  argumentative.  The  remaining  charges  above 
mentioned  are  possessed  of  infirmities  rendering  them  bad,  and 
for  which  similar  charges  have  been  condemned  in  one  or  more 
of  the  following  cases :  Oilmore  ▼•  State,  126  Ala.  20,  28  South. 
595 ;  Fountain  ▼.  State,  98  Ala.  40,  13  South.  492 ;  Stone  ▼. 
State,  105  Ala.  60,  17  South.  114;  Eoden  ▼.  State,  97  Ala.  64, 
12  South.  419 ;  Bondurant  v.  State,  126  Ala.  31,  27  South.  775 ; 
Compton  ▼.  State,  110  Ala.  24,  20  South.  119.  These  charges, 
in  postulating  an  acquittal  upon  self -defense,  are  either  faulty, 
in  that  they  are  argumentative,  or  in  the  omission  of  some  one 
of  the  constituent  elements  of  self-defense. 

The  charges  refused  which  are  not  insisted  upon  in  argu- 
ment need  no  comment  on  their  defects. 

For  the  error  pointed  out  the  judgment  of  the  trial  court  will 
be  reversed  and  the  cause  remanded. 


Re$  Gtttae  are  the  CireumsUtncet,  facts,  and  declarations  which 
grow  out  of  the  main  fact,  are  contemporaneous  with  it,  and  serve 
to  illustrate  its  character.  To  make  declarations  a  part  of  the 
res  gestae,  they  must  be  contemporaneous  with  the  main  faet, 
though  they  need  not  be  precisely  concurrent  in  point  of  time:  Elder 
▼.  State,  69  Ark.  648,  65  8.  W.  938,  86  Am.  8t.  Bep.  220,  and  eases 
cited  in  the  cross-reference  note  thereto;  monographio  note  to 
People  T.  Yemon,  95  Am.  Dec  61-76. 


Nov.  1901.]  Smith  v.  Statb.  21 


SMITH  V.  STATB. 

[133  Ala.  145,  31  South.  806.] 

LABCENY—IndictiiiAiit.— Tbe  Ownordiip  of  Property  Stolon 
ttosa  ft  Partnersliip  is  Buffieiently  laid  in  one  of  the  membere  of 
the  firm.     (p.  22.) 

IiABCENT.—The  Unexplained  PossesBlon  of  Property  recently 
stolen  does  not,  as  a  matter  of  law,  raise  a  presumption  of  guilt., 
(p.  22.) 

IiABCENT.^Tlie  Unexplained  PofMeaelon  by  one  person  of 
goods  belonging  to  another  does  not  raise  a  presumption  that  a 
&rceny  has  been  committed  and  that  the  possessor  is  a  thief,  (pp. 
22,  23.) 

LABOENY— Possession  of  Gk>od8.~Untll  the  Prosecution  has 
shown  a  prima  facie  larceny,  it  is  not  entitled  to  introduce  evidence 
of  possession  by  the  defendant  of  the  goods  alleged  to  have  been 
stolen,     (p.  23.) 

LABGEMT— Proof  of  Corpus  D^ctL— If  the  evidence  affords 
an  inference  of  larceny,  its  sufficiency  is  for  the  jury,  and  it  is 
their  province  to  determine  whether  the  corpus  delicti  has  been 
proved.  In  such  ease,  evidence  of  possession  by  the  prisoner  of 
goods  of  the  same  kind  as  those  charged  to  have  been  stolen  is  com- 
petent,    (p.  23.) 

C^BIMINAL  LAW.— The  Corpiu  Delicti  must  often  be  proved 
by  circumstances,     (p.  23.) 

OBIMZNAIi  IiAW— Baasonable  Donht.— A  CQuurge  to  the  jury 
that  "unless  the  evidence  is  such  as  to  exclude  to  a  moral  certainty 
every  hypothesis  but  that  of  the  guilt  of  the  defendant  of  the  of- 
fense charged  in  the  indictment,  yon  should  aeqnit  him,"  is  cor* 
rectly  refused,     (p.  24.) 

LABCENT—Admissibility  of  Evldenee.— In  a  prosecution  for 
larceny,  evidence  of  the  defendant's  opportunity  of  aiding  the  own- 
er's employ6  in  committing  the  theft,  or  of  his  opportunity  of 
reeeiving  the  goods  from  such  employ^  is  admissible,     (p.  24.) 

The  appellant  was  convicted  of  larceny.  The  indictment 
charged  larceny  from  the  storehouse  of  one  Garner,  and  that 
the  goods  stolen  were  his  property.  The  evidence  showed,  how- 
ever, that  the  goods  belonged  to  the  firm  of  Gamer  &  Embry, 
of  which  firm  Gamer  was  a  member,  and  that  the  building  they 
occupied  was  not  their  property.  The  storehouse  of  Gamer  & 
Embry  had  a  basement  where  some  of  the  goods  were  stored,  and 
one  T^iompson,  an  employ^  of  the  firm,  had  access  to  the  base- 
ment, and  sometimes  went  there  alone.  He  could  open  the  rear 
door  or  window  of  the  basement  leading  to  an  alleyway.  He 
was  suspected  of  using  the  basement  and  the  door  or  window 
in  stealing  the  goods.  The  defendant  worked  as  a  porter  m 
the  store  of  Sullivan  &  Hart  Drygoods  CJompany,  which  joine<l 
the  store  of  Gamer  &  Embry.    This  store  had  a  basement  and 


22  AicBRiOAK  State  Bepobts^  Vol.  91.    [Alabama, 

"WBS  situated  similarly  to  Oamer  &  Embryos  store.  The  defend- 
ant worked  in  the  basement,  and  carried  a  key  to  it.  Other  evi* 
dence  was  introduced  to  the  effect  that  the  goods,  under  the  au- 
thority of  a  search-warrant,  were  taken  from  the  house  of  the 
defendant,  and  that  explanations  of  the  possession  of  the  goods 
by  the  defendant  were  made.  The  defendant  requested  the 
court  to  give  theee  instructions,  and  excepted  to  the  court's  re- 
fusal to  do  so :  1.  'T[f  the  jury  believe  the  evidence,  they  must 
find  the  defendant  not  guilty*' ;  2.  *TJnless  the  evidence  is  such 
as  to  exclude  to  a  moral  certainty  every  hypothesis  but  that  of 
the  guilt  of  the  defendant  of  the  offense  diarged  in  the  indict- 
ment, you  should  acquit  him/'  An  application  for  a  new  trial 
was  overruled,  to  which  the  defendant  excepted. 

Paul  Hodges,  for  the  appellant. 

Charles  G.  Brown,  attorney  general,  for  the  state. 

140  TYSON,  J.  The  ownership  of  the  property  is  suffi- 
ciently laid  in  Oamer,  one  of  the  members  of  the  partnership : 
Code,  sec.  4909 ;  White  v.  State,  72  Ala.  195 ;  Brown  v.  State, 
79  Ala.  51. 

^'^  It  must  now  be  regarded  as  settled  in  this  state  that  the 
imexplained  possesdoa  of  property  recently  stolen  does  not,  as 
matter  of  law,  raise  a  presumption  of  guilt  from  the  circum- 
stance. Nor  does  the  unexplained  possession  by  one  person  of 
goods  belonging  to  another  raise  the  presumption  that  a  larceny 
has  been  committed  and  that  the  possessor  is  a  thief.  Addi- 
tional evidence  is  necessary  to  establish  a  corpus  delicti.  ITnlees 
the  jury  are  satisfied  beyond  a  reasonable  doubt  that  the  offense 
lias  been  committed,  the  unexplained  recent  possession  of  goods 
will  not  justify  the  conclusion  that  the  person  in  whose  posses- 
«ion  they  are  found  is  the  thief :  Orr  v.  State,  107  Ala.  35,  18 
South.  142;  Thomas  v.  State,  109  Ala.  25,  19  South.  403. 
■•Troof  of  a  charge,  in  criminal  causes,  involves  the  proof  of 
two  distinct  propositions:  First,  that  the  act  itself  was  done; 
and,  secondly,  that  it  was  done  by  the  person  charged,  and  by 
none  other — ^in  other  words,  proof  of  the  corpus  delicti  and  of 
the  identity  of  the  prisoner" :  Winslow  v.  State,  76  Ala.  47.  It 
is  undoubtedly  true  that  both  of  these  essential  propositions  are 
j;enerally  for  the  determination  of  the  jury,  and  both  must  be 
proved  beyond  a  reasonable  doubt.  But  where  there  is  no  proof 
of  the  corpus  delicti — ^no  testimony  tending  in  the  remotest 
degree  to  prove  that  the  property  charged  to  have  been  stolen 


KoY.  1901.]  BiciTH  V.  Statb.  28 

was  in  fact  stolen — ^no  larceny  shown  to  haye  been  committed, 
then  there  can  be  no  conviction  of  the  prisoner,  should  the  goods 
described  in  the  indictment  charged  to  have  been  stolen  be  found 
in  his  possession,  though  no  explanation  as  to  how  he  came  by 
them  be  given  by  him,  or  if  given,  is  entirely  imsatiafactory. 
In  such  case  th^  evidence  is  not  prima  facie  sufficient  to  estab* 
lijh  the  corpus  delicti,  and  the  court  should  not  allow  the  in- 
troduction of  evidence  of  possession  by  the  prisoner  of  the 
goods  charged  in  the  indictment  to  have  been  stolen.  In  other 
words,  until  the  State  has  by  positive  or  circumstantial  evidence 
shown  a  prima  facie  larceny  of  the  goods,  which  is  for  the  de- 
termination of  the  court,  solely  for  the  purpose  of  determining 
the  admissibility  of  evidence  tending  to  connect  the  prisoner 
with  the  commission  of  the  offense,  the  prosecution  is  not  en- 
titled to  introduce  evidence  of  ^^^  possession  by  defendant  of 
ihe  goods  alleged  to  have  been  stolen.  In  this  respect,  the  case 
would  not  be  different  from  the  one  where  an  extrajudicial  con- 
fusion is  sought  to  be  introduced  against  one  charged  with  a 
felony.  Or  where  there  is  an  entire  want  of  evidence  of  the 
corpus  delicti  except  statements  made  by  the  prisoner  or  unex- 
pbiined  possession  of  the  goods  alleged  to  have  been  stolen,  the 
court  should  direct  the  jury  to  acquit  the  prisoner.  On  the 
other  hand,  if  the  evidence  affords  an  inference  of  the  larceny 
of  the  goods,  then  the  question  of  its  sufficiency  is  one  for  the 
jury,  and  it  becomes  their  province  to  determine  whether  the 
corpus  delicti  has  been  proven.  In  such  case,  evidence  of  pos- 
session by  the  prisoner  of  goods  of  the  same  kind  as  those 
charged  to  have  been  stolen  is  competent^  and  the  jury  must 
determine  upon  the  entire  evidence,  not  only  the  question  of  the 
doing  of  the  act,  but  whether  committed  by  the  defendant.  In- 
deed, the  corpus  delicti  must  often  be  proved  by  circumstances. 
In  the  case  at  hand,  the  owners  of  the  goods  charged  to  have 
been  stolen  were  wholesale  merchants.  Gamer,  one  of  the  part- 
ners, swears  that  meat  and  lard  had  been  stolen  from  their 
storehouse.  It  is  true  he  could  not  state  definitely  when  the?e 
articles  of  merchandise  were  taken,  and  neither  could  he  iden- 
tify the  meat  and  lard  found  in  the  possession  of  the  defendant 
as  his  firm^s  property,  nor  oould  he  say  that  particular  lard  and 
meat  had  been  stolen  from  his  storehouse.  But  he  was  positive 
that  meat  and  lard  had  been  stolen  prior  to  the  institution  of 
the  prosecution  against  this  defendant.  On  this  evidence  we 
are  of  the  opinion  that  there  was  some  proof  tending  to  estab- 
lish the  corpus  delicti,  the  weight  and  sufficiency  of  which  waa 


24  American  State  Reports,  Vol.  91.     [Alabama^ 

properly  left  to  the  jury.  Furthermore,  we  hold  that  it  was 
wifBcient  to  authorize  the  admission  by  the  court  of  evidence 
of  the  possession  by  the  defendant  of  meat  and  lard  of  the  same 
kind  as  that  which  Garner  said  was  stolen,  and  that  the  evidence 
of  its  identity  was  sufficient  to  be  submitted  to  the  jury  when 
taken  in  connection  with  all  the  other  evidence  in  the  case :  78^ 
Am.  Dec.  258,  note  6. 

It  follows  from  what  we  have  said  that  the  defendant  was  not 
entitled  to  have  given  the  general  affirmative  charge  requested 
by  him. 

isa  rpj^^  other  written  charge  requested  was  correctly  re- 
fitted :  Bones  v.  Sttite,  117  Ala.  138,  23  South.  138. 

In  view  of  Thompson's  access  to  the  basement  of  the  store 
in  which  the  goods  alleged  to  have  been  stolen  were  kept,  and 
the  fact  that  the  windows  and  doors  to  this  basement-room 
were  unbroken,  it  was  entirely  competent  for  the  state  to  prove 
that  the  defendant  was  a  porter  in?  the  store  of  the  Sullivan  & 
Hart  Drygoods  Company,  and  that  he  had  in  his  possession  a 
key  to  the  basement-room  under  that  store  which  opened  upon 
the  same  alley  upon  which  the  basement  of  the  other  store 
opened.  Clearly,  this  testimony  was  relevant  for  the  purpose  of 
showing  the  defendant's  opportunity  of  aiding  Thompson  in 
committing  the  larceny,  or  for  the  purpose  of  showing  that  he 
had  the  opportunity  of  receiving  the  goods  from  Thompson 
through  an  opened  door  or  window,  and  concealing  them  in  the 
basement  to  which  he  had  a  key  until  he  could  remove  them. 
The  overruling  of  the  motion  for  a  new  trial  is  not  revisable. 
There  is  no  error  in  the  record,  and  the  judgment  of  convic- 
tion must  be  affirmed 


The  JUceni  Possession  of  Stolen  Goods  does  not,  as  a  matter  of 
law,  raise  a  presumption  of  guilt  of  larceny  or  burglary:  See  the 
monographic  note  to  Hunt  v.  Commonwealth,  70  Am.  Dec  447-452; 
Oravitt  v.  State,  114  Ga.  841,  40  S.  E.  1003,  88  Am.  St.  Bep.  63, 
and  cases  cited  in  the  cross-reference  note  thereto. 

The  Corpue  DtUcM  and  the  identity  of  the  accused  with  the  crimi- 
nal act  must  be  established  in  order  to  convict  of  crime.  This  maj 
be  done  by  circumstantial  as  well  as  by  direct  evidence:  See  WiUard 
V.  State,  27  Tex.  App.  386,  11  Am.  St.  Rep.  197,  11  S.  W.  453; 
Campbell  v.  People,  159  HI.  9,  30  Am.  St.  Rep.  134,  42  N.  E.  123; 
monographic  note  to  State  v.  Williams,  78  Am.  Dec  252-259. 

The  Doctrine  of  Reasonable  Doubt  is  considered  in  the  monographic 
note  to  Burt  ▼.  State,  48  Am.  St.  Rep.  566-570;  State  v.  Cohen, 
108  Iowa,  208,  75  Am.  St.  Bep.  213,  78  N.  W.  857;  State  ▼.  Sumner, 
55  S.  C.  32,  74  Am.  St.  Bep.  707,  32  S.  £.  771.  A  reasonable  doubt 
is  not  a  mere  imaginary,  captious,  or  possible  doubt,  but  a  fair 
devbt  based  upon  reason  and  common  sense.    It  is  such  a  doubt  aa 


Not.  1901.J  Kelly  v.  State.  25 

will  leave  a  juror's  mind,  after  a  careful  examination  of  all  the 
eridenee,  in  such  a  condition  that  he  cannot  say  that  he  has  an 
abiding  conviction,  to  a  moral  certainty,  of  the  defendant's  guilt: 
SUte  V.  Williamson,  22  Utah,  248,  83  Am.  St.  Bep.  780,  62  Pac. 
1022.  It  is  an  actual,  substantial  doubt  of  guilt:  Ferguson  v.  State, 
52  Neb.  432,  66  Am.  St.  Bep.  512,  72  N.  W.  590. 


KR3LLT  V.  STATE. 

[1S3  Ala.  195,  32  South.  56.] 

BAflTASDT  FSOOEEDING— Profert  of  Ohlld.—In  a  bastardy 
proceeding  it  is  eompetent  to  make  profert  of  the  child  to  the  jury 
to  show  its  likeness  to  the  defendant,     (p.  26.) 

BASTABDT  PROCEEDING— Association  With  Other  Men.— 
la  bastardy  proceedings,  if  the  state  proves  the  defendant's  as- 
sociation with  the  prosecutrix  at  about  the  date  of  conception,  he 
may  show  that  about  the  same  time  she  associated  with  other  men. 
(p.  27.) 

Bastardy  proceeding,  in  which  Willis  Kelly  was  found  guilty 
of  being  the  father  of  the  bastard  child  of  Florence  Stone. 
For  the  pnrpoee  of  showing  the  likeness  of  the  child  to  the  de- 
fendant, the  state  introduced  the  child  in  evidence,  so  that  the 
jury  could  view  it.  The  defendant,  the  child,  and  the  mother 
▼ere  all  white  persons.  The  state  introduced  evidence  that 
about  tlie  time  the  child  was  conceived,  the  defendant  associated 
with  the  mother,  having  frequently  been  seen  with  her.  To 
rebut  this  evidence,  the  defendant  offered  to  show  that  during 
such  time  she  was  also  seen  in  company  of  other  men ;  and  he 
proposed  to  prove  by  one  Sellers  and  one  Barr  that  they  saw 
her  at  Alameda  about  sundown  drinking  cider  with  a  young  man 
other  than  the  defendant;  that  Alameda  is  about  two  miles 
distant  f nxn  her  home ;  that  she  and  the  young  man  left  Ala- 
meda alone,  going  in  the  direction  of  her  home;  that  one  of  the 
witnesses  drank  some  of  the  cider  and  it  made  him  drunk ;  that 
the  road  from  Alameda  to  her  home  leads  mostly  through  the 
woods. 

Lackland  &  Wilson,  for  the  appellant. 

Charles  Q.  Brown,  attorney  general,  for  the  state. 

*»•  McCLELLAN,  C.  J.  There  is  in  Paulk  v.  State,  52 
Ala.  427,  this  dictum :  ''On  an  issue  formed  in  a  bastardy  ^^^ 


26  Akbrioan  State  Bepobts,  Vol.  91.    [Alabama^ 

proceeding,  it  ie  doubtless  competent  for  the  defendant  to  prove 
that  the  c^d  bears  no  likeness  or  resemblance  to  him,  or  that 
it  resembles  some  other  person,  who  had  opportunities  of  illicit 
intercourse  with  the  mother."    It  would  necessarily  follow  that 
the  prosecution  upon  such  issue  would  be  entitled  to  shpw  that 
the  child  resembled  the  defendant;  and,  logically,  that  in  such 
case  it  would  be  competent  to  make  profert  of  the  child  before 
the  jury  to  show  its  resemblance,  or  lack  of  resemblance  to  the 
putative  father.    In  Linton  v.  State,  88  Ala.  216,  7  South.  261, 
the  charge  was  miscegenation  of  the  defendant  Linton,  a  white 
woman,  with  John  Blue,  a  negro;  and  of  tiie  propriety  of  al- 
lowing the  prosecution^  to  prove  Blue's  race  by  producing  his 
person  before  the  jury,  this  court  said :  **There  was  no  error  in 
allowing  the  state  to  make  profert  of  the  person  of  John  Blue 
to  the  jury,  in  order  that  they  might  determine  by  inspection 
whether  he  was  a  n^ro,  as  charged  in  the  indictment.    There 
had  been  a  severance  in  the  trials  of  appellant  and  Blue;  and 
evidence  of  this  character  is  clearly  competent  to   show  sex 
(White  V.  State,  74  Ala.  31) ;  age  (State  v.  Arnold,  35  N.  C. 
184) ;  personal  resemblance  (State  v.  Woodruff,  67  N.  C.  89)  ; 
color  and  race  (Garvin  v.  State,  52  Miss.  207;  Gentry  v.  Mc- 
Minnis,  3  Dana  (Ky.),  385),  and  many  like  facts  in  regard  to 
the  personality  of  the  defendant  himself,  or  of  any  other  individ- 
ual  involved  in  the  issue:  Wharton's  Criminal  Evidence,  sec. 
311  et  seq.'^    The  question  in  Linton's  case,  being  one  of  race 
and  not  of  resemblances,  is  not  the  question  here;  and  that  case 
is  not  authority  here,  but  we  have  quoted  from  the  opinion  in 
that  case  to  show  our  citation  there  with  approval  of  the  caaea 
of  State  V.  Woodruff,  67  N.  0.  89,  and  State  v.  Britt,  78  N.  C. 
439,  both  of  which  were  bastardy  cases,  and  in  one  of  which 
evidence  of  the  child's  resemblance  to  the  defendant  given  by 
the  midwife  was  received,  and  in  the  other  it  was  held  competent 
to  make  profert  of  the  child  to  the  jury  to  show  its  resemblance 
to  the  defendant.    It  ie  thus  made  to  appear  that  in  Linton's 
caae,  as  well  as  in  Faulk's,  there  is  a  dictum  of  this  court  to  the 
effect  that  in  bastardy  proceedings  profert  may  be  made  of  the 
child.    We  shall  hold  in  line  with  these  dicta,  and  indorse  the 
ruliiig  ***  of  the  circuit  court  in  this  connection.    Much  may 
be  said  as  to  the  uncertainty  of  such  evidence;  and.  there  are 
authorities  against  its  competency  as  well  as  for  it;  but  evi- 
dence should  not  be  rejected  merely  on  the  ground  that  its  bear- 
ing is  not  of  a  given  degree  of  certainty,  and  while  evidence  of 
thia  aort  may  in  point  of  fact  often  throw  litUe  light  on  the 


Nov.  1901.]    Noble  v.  Gadboin  Lahd  no.  C!a  S7 

issue,  or  none,  it  may,  we  think,  be  submitted  for  the  jury^s  con- 
dderation  as  affording  in  most  cases  the  basis  for  reasonable  de- 
ductions on  their  part  The  court  committed  no  error  in  allow- 
ing profert  of  the  child  to  the  jury. 

We  are,  however,  of  the  opinion  that  the  court  erred  in  ex- 
cluding the  evidence  offered  by  the  defendant  of  the  association 
of  the  prosecutrix  with  others^  and  particularly  with  another 
young  man  abont  the  probable  date  of  conception,  and  the  cir- 
cumstances of  such  association,  the  state  having  proved  de- 
fendant's association  with  her  about  that  time  as  affording  an 
inference  that  he  then  had  sexual  intercourse  with  her.  It 
seems  clear  to  us  that  the  proposed  testimony  of  the  witnesses 
Sellers  and  Barr,  that  covering  the  time  of  probable  conception 
she  was  in  the  company  of  other  men,  and  that  on  one  occasion, 
nine  months  before  the  birth  of  the  child  she  was  in  company 
of  another  man  under  circumstances  affording  opportunity  for 
sexual  intercourse,  his  attentions  to  her  at  that  time,  etc.,  was 
competent  in  rebuttal  of  the  inference  intended  to  be  and  natu- 
rally afforded  by  the  evidence  introduced  by  the  state  as  to  the 
association  of  defendant  with  her  about  that  time. 

For  the  rejection  of  this  evidence  the  judgment  must  be  re- 
reised.     The  cause  is  remanded. 


Evidenee.'-In  Bastardy  Proceedings,  the  child  may  be  exhibited  to 
the  jnrj  to  show  its  reaemblanee  to  the  defendant,  if  not  of  too  im- 
mature age:  Bee  State  v.  Saidell,  70  N.  H.  174,  46  Atl.  1088,  S5  Am. 
St  Sep.  627,  and  eases  cited  in  the  cross-reference  note  thereto. 


NOBLE  ▼.  GADSDEK  LAND  AND  IMPROVEMENT  CO. 

[133  Ala.  250,  81  South.  S66.] 

OOSPOSATZOK— Distribution  of  Assets.— Minority  Stodchold- 
eis  of  a  solvent  corporation  may  maintain  a  bill  for  the  distribu- 
tion of  its  assets,  when  the  enterprise  for  which  it  was  organized 
his  been  abandoned  and  the  original  scheme  is  impossible  of  con- 
fommation.     (p.  81.) 

OOSPOSATXOV— Distribution  of  Assets— Paztiss.— A  bill  for 
the  distribntion  of  the  assets  of  a  corporation  among  the  stock- 
holders, which  avers  that  the  respondents  are  the  principal  share- 
holders and  represent  the  adverse  interest  of  all,  that  all  the  share- 
holders belong  to  the  same  elass  and  have  analogous  interests,  and 
that  it  would  be  impossible  to  bring  the  cause  to  a  final  hearing  if 
ftll  the  stockholders  are  required  to  be  made  partiefli  is  not  de- 
■umrable  because  all  the  stockholders  are  not  made  parties,    (p.  32.) 


28  Akebioak  State  Reports,  Vol.  91.    [Alabama, 

J.  J.  Willitt,  for  the  appellants. 

William  H.  Denson,  for  the  respondents. 

^^  TYSON,  J.    The  bill  in  this  cause,  after  amendment, 
is  the  complaint  of  three  stockholders  owning  in  the  aggregate 
two  thousand  eight  hundred  shares  of  the  capital  stock  of  the 
respondent  corporation,  and  prays  to  have  the  corporation  dis- 
solved and  its  assets,  which  consist  of  six  hundred  acres  of  land, 
sold,  and  its  proceeds  distributed  among  the  stockholders,  for 
general  relief,  etc.    The  corporation  is  a  private  trading  one, 
and  has  a  capital  of  two  million  five  hundred  thousand  dollara 
($2,500,000),  divided  into  twenty-five  thousand  (26,000)  shares 
of  the  par  value  of  one  hundred  dollars  ($100)  each.    The  pur- 
pose of  its  organization  was  the  building  of  a  town  upon  the 
tract  of  land  owned  by  it.    To  this  end  this  land  was  to  be  di- 
vided into  lots,  to  be  sold  to  those  who  could  be  induced  to  pur- 
chase them,  and  the  company  was  to  procure,  if  possible,  the  lo* 
cation  of  industrial  enterprises  on  its  lands,  and  thus  enhance 
its  value  and  make  salable  its  lots.    In  short,  it  is  what  is  known 
as  a  ^T)Oom  concern.'*    It  was  organized  when  the  country  was 
rife  with  speculation;  and  now  that  conservatism  in  financial 
matters  has  returned,  after  a  severe  experience  during  the  years 
of  financial  depression,  the  company  is  left  with  this  tract  of 
land  and  nothing  more,  worth  probably  fifteen  or  twenty  thou- 
sand dollars.    Fortunately,  it  has  no  creditors,  and,  therefore, 
no  one  interested  in  its  affairs,  except  its  stockholders,  who  are 
shown  to  have  abandoned  the  enterprise,  leaving  it  to  be  man- 
aged by  its  board  of  directors  as  best  they  can.    For  five  years 
its  president  and  secretary  have  made  diligent  efforts  to  have 
the  stockholders  meet.    Many  of  them  are  nonresidents  of  this 
state,  and  those  who  are  residents  decline  to  attend  the  meetings 
when  called,  after  being  notified  and  urged  to  do  so.    There 
are  three  hundred  and  forty-five  of  them,  and  the  whereabouts 
of  one-third  of  the  *■*  number  is  unknown  and  unascertain- 
able,  and  the  remaining  two-thirds  have  lost  all  concern  or  in- 
terest in  the  affairs  of  the  company.    The  fixed  charges  which 
the  corporation  is  bound  to  meet  annually,  in  the  way  of  taxes, 
licenses,  etc.,  is  between  six  and  seven  hundred  dollars.    Its 
income  annually  is  only  about  fifty  dollars.    So  that  each  year 
a  portion  of  its  tract  of  land  is  sold  by  the  state,  county  and 
city  of  Gadsden  to  pay  these  charges.    It  is  wholly  without 
credit  and  its  assets  are  being  sacrificed,  the  corporation,  on 


Nov.  1901.]    NoBLB  V.  Gadsdeiv  Land  etc.  Co.  29 

account  of  the  abandonment  of  it  by  the  holders  of  the  majori^ 
of  its  stock,  being  powerless  to  prevent  it. 

It  is  upon  substantially  the  foregoing  state  of  facts,  which 
is  shown  both  by  the  averments  of  the  bill  and  the  te^timony^ 
that  the  complainants  seek  relief.  On  final  hearing  the  chan- 
cellor dismissed  the  bill  for  want  of  equity,  holding  that,  in 
tbe  absence  of  a  statute,  the  chancery  court  is  without  juris- 
diction to  dissolve  the  corporation  and  to  distribute  its  assets 
at  the  suit,  of  a  minority  stockholder. 

Where  the  corporation  is  a  going  concern,  it  is  undoubtedly 
true  that  a  minority  stockholder  cannot  maintain  a  bill  to  have 
it  dissolved  or  to  have  its  assets  distributed.    In  such  case, 
the  shareholders  who  disapprove  of  the  company^s  management 
or  coudder  their  speculation  a  bad  one,  their  remedy  is  to  elect 
new  ofiBcers  or  to  sell  their  shares  and  withdraw.    ''They  can- 
not insist  on  having  the  oompan/s  business  closed  and  the 
assets  distributed,  against  the  will  of  a  single  shareholder  who 
wishes  to  have  the  business  continued^^:  1  Morawetz  on  Cor- 
porations, sec  283.    But  where  the  corporation  has  been  aban- 
doned by  its  stockholders,  as  here,  and  is,  therefore,  powerless 
to  protect  its  assets  and  to  discharge  its  duty  to  the  stockholders 
88  their  trustee,  minority  stockholders  who  are  cestuis  que  trust, 
if  the  chancery  court  has  no  jurisdiction  to  rescue  the  trust 
fond  from  the  perils  endangering  its  destruction,  would  be 
remediless.    No  efforts  of  theirs  to  have  their  trustee  sell  the 
lands  and  distribute  its  proceeds  could  avail  them,  for  the 
obvious  reason  that  it  would  require  the  consent  of  the  holders 
'  of  a  majority  of  the  stock  to  thus  strip  the  corporation  of  its 
assets,  which  ^'"^  is  shown  in  this  case  cannot  be  obtained,  not 
because  of  their  unwillingness  to  give  it,  but  on  account  of 
thdr  lack  of  interest  in  the  company.     Clearly,  its  directors 
cannot  do  so,  the  corporation  not  being  insolvent.    They  are 
merely  the  managing  agents  of  the  business  of  the  corporation, 
to  pr(Hnote  the  ends  designed  by  its  charter,  and  do  not  possess 
Bnch  power  or  authority:  Eljrton  Land  Co.  v.  Dowdell,  113 
Ala.  186,  69  Am.  St.  Eep.  105,  20  South.  981;  3  Thompson 
on  Corporations,  sec.  3983;  1  Morawetz  on  Corporations,  sec. 
513;  2  Cook  on  Corporations,  4th  ed.,  sec.  670.    These  com- 
plainants desiring,  as  they  do,  to  have  this  trust  fund  protected 
and  administered  so  as  they  may  get  their  part  of  it,  have,  in 
onr  opinion,  under  the  facts  of  this  case,  the  right  to  main- 
tain this  bill  to  have  the  lands  sold  and  its  proceeds  distributed 
among  the  stockholders.    On   former   appeal    (McKleroy   v. 


80  AifjaaoAN  State  Sefosts^  Vol.  91.     [Alabama, 

Gadsden  Land  etc.  Co.,  126  Ala.  193,  28  South.  660),  we  said: 
"It  is  held  in  Planters'  Line  v.  Waganer,  71  Ala.  581,   that 
a  private  corporation,  entered  into  solely  for  benefit  of   the 
shareholders,  and  involving  no  public  duty,  may  be  dissolved 
by  the  stockholders;  and  on  the  same  principle,  when    tho 
purpose  of  such  an  association  is  a  failure,  we  quite  agree 
with  Mr.  Thompson  that  there  should  be  in  the  chancery  court 
an  inherent  power  to  administer  the  property  so  as  to  restore 
to  the  cestuis  que  trust  (the  stockholders)  their  ultimate  in* 
terest:  4  Thompson  on  Corporations   sees.  [4443,  4538],  sec. 
4646 ;  Fougeray  v.  Cord,  60  N.  J.  Eq,  185,  24  Atl.  499 ;  Price 
T.  Holcomb,  89  Iowa,  123,  66  N.  W.  407."    In  1  Morawetz 
on  Corporations,  section  284,  it  is  said:  '^Whenever,  in   the 
course  of  events,  it  proves  impossible  to  attain  the  real  objects 
for  which  a  corporation  was  formed,  or  when  the  failure  ot 
the  company  has  become  inevitable,  it  is  the  duty  of  the  com* 
pan/s  agents  to  put  an  end  to  its  operations  and  to  wind  up 
its  affairs.    Under  these  circumstances,  the  majority  would 
have  no  right  to  continue  to  use  the  common  property  and 
credit  for  any  purpose,  because  it  would  be  impossible   to 
use  them  for  any  purpose  authorized  by  the  diarter.    If  the 
majority  should  attempt  to  continue  the  company's  operations 
in  violation  of  the  charter,  or  should  refuse  to  make  a  distri- 
bution of  the  assets,  any  shareholder  feeling  aggrieved  would  ' 
be  entitled  ''^  to  the  assistance  of  the  courts,  and  a  decree 
should  be  made  ordering  the  directors  to  wind  up  the  com- 
pany's business  and  distribute  the  assets  among  those  who  are 
equitably  entitled'' :  See,  also,  section  412  of  same  book. 

In  2  Beach  on  Corporations,  section  783,  the  author  says: 
'HD'nleaB  it  appears  beyond  question  that  the  continuation  of 
a  profitable  business  cannot  be  had,  the  dissolution  of  a  cor- 
poration not  yet  insolvent  will  not  be  decreed  upon  petition  of 
a  minority  of  its  shareholders.  If,  however,  it  is  clear  that 
the  business  cannot  be  profitably  continued,  the  petition  of  a 
minority  for  a  dissolution  will  be  granted." 

Spelling,  in  his  work  on  Corporations^  states  the  rule  in 
substance  to  be,  that  the  court  would,  in  case  the  scheme  was 
impossible,  not  allow  the  fimds  to  be  diverted  to  other  pur- 
poses, but  would  enjoin  such  diversion  at  the  suit  of  a  stock- 
holder, and  as  incidental  give  full  relief  by  decreeing  a  settle- 
ment of  the  corporate  liability  and  a  distribution  of  the  re- 
mainder amcmg  the  stockholders. 


Not.  1901.]    Noblb  v.  Gadsden  Land  £tc.  Co.  31 

In  Price  ▼.  Holcomb,  89  Iowa,  123,  66  N.  W.  407,  the 
rapreme  court  of  Iowa,  notwithstanding  the  provisions  of  a 
statute  that  ^^o  corporation  can  be  dissolved  prior  to  the  period 
fixed  in  the  articles  of  incorporation,  except  by  unanimous  con- 
sent, unless  a  different  rule  has  been  adopted  in  their  articles/' 
hdd  that  "if  a  sale  of  the  property  was  necessary  the  right 
io  make  it  would  not  be  defeated  even  if  it  had  the  effect  of 
dissolving  the  corporation/' 

The  case  of  O'Connor  v.  Knoxville  Hotel  Assn.,  93  Tenn. 
708,  28  S.  W.  309,  in  its  facts  is  very  similar  to  the  one  in 
hand.  The  bill  was  filed  by  a  single  stockholder  against  the 
corporation  and  other  stockholders,  in  which  the  facts  alleged 
showed  an  abandonment  of  the  enterprise  and  the  original 
gcheme  to  be  impossible  of  consummation,  and  prayed  for  a 
distribution  of  Ae  assets  of  the  company.  It  was  insisted 
there,  as  here  that  the  bill  was  without  equity.  The  court 
after  reviewing  the  authorities  held  the  bill  had  equity,  and 
that  the  complainant  was  entitled  to  relief  on  common-law 
grounds. 

^'^  Other  authorities  might  be  quoted  to  sustain  the  right 
of  the  complainants  to  the  exercise  of  the  jurisdiction  of  the 
court  to  have  the  assets  of  the  respondent  corporation  distri- 
buted: See,  also,  Arents  v.  Blackwell's  Durham  Tobacco  Co., 
101  Fed.  345;  Cramer  v.  Bird,  L.  R.  6  Eq.  143;  Baring  v. 
Dix,  1  Cox,  213;  1  Perry  on  Trusts,  6th  ed.,  sec.  242,  and 
note  a. 

While  the  authorities  are  Apt  in  accord  as  to  the  right  of  the 
courts,  in  8  proper  case,  to  dissolve  the  corporation,  they  are 
practically  unanimous,  so  far  as  our  research  has  extended,  in 
sustaining  the  right  of  the  complainants,  under  the  facts  of 
this  case,  to  have  the  assets  of  the  corporation  distributed,  which 
may  be  done  under  the  orders  and  directions  of  the  court 
through  the  agents  of  the  corporation.  And  while  the  writer 
is  inclined  to  the  view  that  the  court  has  the  jurisdiction  to 
dissolve  tiie  corporation,  yet  it  is  not  necessary  to  go  to  that 

L  extent,  as  the  rights  of  the  complainants  can  be  fully  subserved 
by  the  court's  administration  of  the  trust  estate  through  the 

I    agents  of  the  corporation. 

I  The  other  question,  though  not  passed  upon  by  the  chan- 
cellor, bat  raised  by  demurrer,  is  that  all  the  stockholders  are 
not  made  parties  to  the  bilL  Of  the  total  shares — ^twenty- 
five  thousand  (35,000) — of  the  capital  stock,  nine  thousand 
eight  hundred  and  ninety-nine  (9,899)  are  owned  and  held 


32  Amebic  AN  State  Eepobts,  Vol.  91.    [Alabama, 

by  the  parties  to  this  cause.  Of  this  latter  nnmber,  seren  thou- 
sand and  ninety-nine  (7,099)  shares  are  held  and  owned  by 
the  thirteen  (13)  respondents  to  the  bill.  As  stated  above, 
one-third  of  the  stock  is  held  by  persons  whose  residences  can- 
not be  ascertained  and  who  reside  in  all  parts  of  this  country. 
The  respondents  are,  it  is  averred,  the  principal  and  largest 
stockholders,  and  fully  and  fairly  represent  the  adverse  in- 
terest of  all  the  stockholders  in  the  corporation;  that  all  the 
stockholders  belong  to  the  same  class,  and  their  respective  in- 
terests are  analogous.  It  is  also  averred  that  it  would  be  im- 
possible to  ever  bring  the  cause  to  a  final  hearing  if  complain- 
ants are  required  to  make  all  the  stockholders  parties;  and 
such  a  requirement  would  result  in  inconvenience,  oppressive 
delays  and  a  consumption  of  ***  a  large  part  of  the  assets  of 
the  company  in  court  costs.  It  is  clear  to  us  that  these  aver- 
ments bring  the  case  under  the  operation  of  the  provision  of 
rule  19  of  chancery  practice:  Code,  p.  1205.  In  Morton  v. 
New  Orleans  etc.  Assn.,  79  Ala.  610,  speaking  to  this  point, 
the  court  said:  *'The  rule  is,  that  when  the  parties  to  a  cause 
are  numerous,  or  some  of  them  are  unknown  or  beyond  the 
jurisdiction  of  the  court,  so  as  not  to  be  subject  to  its  process, 
but  they  all  belong  to  a  class  whose  rights  are  analogous  to 
those  of  parties  actually  before  the  court,  because  dependent 
on  the  same  principles  of  law,  the  oourt  will  often  proceed  to 
adjudge  the  rights  of  the  class  as  such,  and,  in  the  absence 
of  all  collusion,  the  decree  will  be  considered  binding  upon 

the  whole  class  who  are  in  a  like  situation This  rule 

is  fully  recognized  by  rule  No.  20  [now  No.  19]  of  our  chan- 
cery practise,  which  makes  it  discretionary  with  the  chan- 
cellor, in  such  case,  to  dispense  with  bringing  before  him  all 
the  interested  parties,  and  provides  that  the  court  may  proceed 
in  the  cause  without  making  such  persons  parties,  provided 
it  has  sufficient  parties  before  it  to  represent  all  the  adverse 
interests  of  the  plaintiff  and  the  defendant  in  the  suit.  Nor 
is  it  repugnant  to  the  concluding  provision  found  in  the  same 
rule,  declaring  that  'the  decree  shall  be  without  prejudice  to 
the  rights  and  claims  of  the  absent  parties.'  •  .  . '.  This,  as  we 
shall  proceed  to  show,  is  the  right  to  come  in  under  the  decree, 
and  not  antagonistic  to  what  is  properly  settled  by  it":  See, 
also,  Stete  v.  Webb,  97  Ala.  Ill,  38  Am.  St.  Rep.  161,  12 
South.  377 ;  Campbell  v.  Railroad  Co.,  1  Wood,  868,  Fed.  Caa. 
No.  2366. 


Soy.  1901.]    Noblb  «,  Qadbden  Land  sto.  0(k  33 

The  decree  dismiesiag  the  bill  for  want  of  equity  will  be  re^ 
versed  and  the  cauae  remanded,  with  directions  to  the  lower 
coort  to  enter  a  decree  ordering  a  sale  of  the  land  for  distri* 
bution,  and  for  snch  other  orders  or  decrees  as  may  be  neces- 
sary to  an  equitable  and  orderly  administration  of  the  trust 
estate. 

BeTersed  and  remanded. 


BIOHT  OF  A  STOGKHOIJ>EB  TO  MAINTAIN  A  BILL  TO  DIS- 
SOLVE THE  OOBPO&ATION  AND  DISTRIBUTE  THE  AS- 
SETa 

The  general  rule  is  often  laid  down  tliat  a  court  of  equity,  in  the 
alwenee  of  statntorj  authority,  has  no  jmisdietlon  to  dissolve  a 
eorporation  and  distribute  its  assets  among  the  stoekholders  at  the 
nit  of  one  or  more  of  them:  Coquard  t.  National  Linseed  Oil  Co., 
171  HL  480,  49  N.  £.  563;  Stewart  t.  Pierce  (Iowa,  Feb.,  1902),  89 
N.  W.  234;  Oldham  t.  Mt.  Sterling  Imp.  Co.,  103  Ky.  529,  45  S.  W. 
779;  Mason  ▼.  Supreme  Court  of  Equitable  League,  77  Md.  488,  89 
Am.  8t  Bep.  433,  27  Atl.  171;  Denike  v.  New  York  etc.  Cement 
Co.,  80  N.  Y.  599;  Strong  t.  McCagg,  55  Wis.  624,  13  N.  W.  895; 
Taylor  ▼.  Decatur  etc  Land  Co.,  112  Fed.  449;  note  to  State  ▼. 
Atchison  etc  B.  E.  Co.,  8  Am.  St.  Bep.  200.  The  reason  giren  for 
tkis  rule  is,  that  since  the  corporation  owes  its  life  to  the  sovereign 
power,  its  dissolution  and  the  termination  of  its  existence  can 
be  worked  only  by  the  state  in  a  proper  proceeding  instituted  in 
its  behalf.  There  is  much  force  to  this  reason  in  the  case  of  quasi 
pablic  corporations,  and  it  may  have  had  some  Talidity  as  applied 
to  aU  corporations  at  the  time  when  valuable  and  exclusive  fran* 
^uses  were  granted  by  special  legislative  acts;  but  now,  when 
corpozations  are  organized  under  general  laws,  and  the  privilege 
of  organization  is  open  to  all  who  comply  with  the  requirements  of 
the  statute,  it  is  entirely  theoretical  and  without  merit.  Corpora- 
tions  established  for  objects  quasi  public,  such  as  railway  and 
tdegraph  companies,  may  well  be  within  this  rule;  and  so,  also, 
may  charitable  and  religious  societies  in  the  adminlBtration  of  whose 
affairs  the  community,  or  a  part  of  the  community,  has  an  interest 
ia  their  corporate  duties  being  properly  discharged.  Not  so,  how- 
over,  with  corporations  of  a  private  character,  established  solely 
for  trading,  manufacturing,  or  the  like.  Neither  the  public  nor  the 
logialature  has  any  direct  interest  in  their  business  or  its  manage- 
ment. These  are  committed  to  the  stockholders,  who  have  a  pecuni- 
ary interest  in  the  conduct  of  their  affairs.  They  do  not,  by  ac- 
cepting a  charter,  undertake  to  carry  on  the  business  for  which 
they  are  incorporated  indefinitely,  and  without  regard  to  the  con- 
ation of  the  corporate  property  and  affairs.  Public  policy  does  not 
nqaSat  that  they  eontinue  the  existence  of  the  concern  at  a  loss. 
Am.  St  Rep.,  Vol.  Mh-3 


34  Ahsuoan  Statb  BsPOSTBf  Vol.  91.    [Alabama 

On  the  eontraiy,  it  is  dearly  for  the  pnblie  welfare  that  the  eorpor*- 
tion  should  eease  to  exist  as  soon  as  it  appears  that  it  eannot 
prudently  be  continued. 

There  is  no  doubt  of  the  right  of  a  corporation^  organized  solely 
for  private  emolument  and  owing  no  duty  directly  to  the  public,, 
by  a  vote  of  the  majority  of  the  stockholders,  to  dispose  of  its  prop- 
erty, distribute  its  assets  among  the  shareholders,  and  go  out  of 
business,  when  to  do  so  is  plainly  for  the  best  interest  of  alL  The 
objections  of  the  minority  will  be  unavailing,  provided  the  ma» 
^jority  acts  in  good  faith  and  the  business  can  no  longer  be  ad- 
vantageously carried  on.  It  would  be  a  harsh  and  unreasonable- 
rule  that  would  permit  one  stockholder  to  hold  the  others  to  their 
investment  when  just  cause  exists  for  closing  the  corporate  busi- 
ness: Merchants'  etc.  Line  ▼.  Wagoner,  71  Ala.  681;  McKleroy  ▼» 
Gadsden  etc.  Imp.  Co.,  126  Ala.  184,  193,  28  South.  606;  Price  ▼. 
Holcomb,  89  Iowa,  123,  56  N.  W.  407;  Treadwell  t.  Salisbury  Mf^. 
Co.,  7  Gray,  393,  66  Am.  Dec.  490;  Lauman  v.  Lebanon  Valley  B.  B.. 
Co.,  30  Pa.  St.  42,  72  Am.  Dee.  685;  Wilson  v.  Proprietors  of  Cen- 
tral Bridge,  9  B.  I.  590;  Hayden  ▼.  Official  ete.  Directory  Co.,  42* 
Fed.  875. 

Nor  is  this  right  confined  to  the  majority.    When  it  has  become- 
impossible  to  accomplish  the  chartered  purposes  of  the  corporation^ 
or  when  its  affairs  have  been  so  managed  that  failure  or  ruin  is  in- 
evitable, it  would  be  a  reproach  on  the  administration  of  justice  it 
a  court  of  equity,  on  the  application  of  a  stockholder  or  a  minority 
of  the  stockholders,  could  not  extend  relief,  and  this  without  any* 
express  statutory  authority.    Of  course,  if  stockholders  disapprove- 
of  the  company's  management,  which  is  conducted  fairly  and  legiti- 
mately, their  remedy  is  to  elect  new  officers  or  sell  their  stock  anct 
withdraw.    When  the  question  is  one  of  mere  discretion  in  the  man- 
agement of  the  business  or  of  doubtful  event  in  the  undertakin^- 
in  which  the  concern   has  embarked,  a  remedy  cannot  be  sought 
in  a  court  of  equity.    On  the  other  hand,  if  it  plainly  appears  that 
the  object  for  which  the  company  was  formed  is  impossible,  it  be- 
comes  the  duty  of  the  company 'a  agents  to  put  an  end  to  its  opera* 
tions  and  wind  up  its  affairs;  and  should  they,  though  supported  by 
a  majority   of   the    stockholders,    pursue    operations    which    must* 
eventually  be  ruinous,  or  should  the  enterprise  be  abandoned  as  im* 
possible  of  realization,  any  shareholder  would,  upon  plain  equitable- 
principles,  be  entitled  to  the  assistance  of  a  court  of  equity,  snd 
a  decree  should  be  rendered  compelling  the  directors  to  wind  up  the- 
company's  business  and  distribute  its  assets  among  those  entitled 
to  them:  Noble  v.  Gadsden  etc.  Imp.  Co.  (principal  case),  ante,  p. 
27;  Ijlmer  v.  Maine  Real  Estate  Co.,  93  Me.  324,  45  Atl.  40;  Bene- 
dict V.  Columbus  Construction  Co.,  49   N.  J.   Eq.   23,  23  Atl.   485; 
O'Connor   v.   Knoxville   Hotel   Assn.,   93   Tenn.   708,  28   8.   W.   309; 
Arents    v.    Blackwell's   Durham    Tobacco    Co.,    101    Fed.    338,    345;. 
Cramer  v.  Bird,  L.  R.    6  £q.  143. 


No¥.  1901.]    NoBLB  V.  6ad6D£N  Land  etc.  Co.  8S 

This  eooTfe  is  pursued  in  ease  of  pftrtnerships  in  similar  situation^ 
and  "there  is  nothing  in  the  character  of  a  trading  corporation  te 
prevent  the  application  of  this  remedy.  It  is,  after  all,  as  between 
the  stockholders^  nothing  more  than  a  trading  copartnership.  Chan- 
cellor Walworth  says  that  'joint  stock  corporations  are  mere  part- 
serships;,  except  in  form;  the  directors  are  the  trustees  or  managing 
partners^  and  the  stockholders  are  the  cestuis  que  trust,  and  have  a 
joint  interest  in  all  the  property  and  effects  of  the  corporation,' 
and  Hinman,  C.  J.,  says:  'Joint  stock  companies  in  modern  times 
are  nothing  but  commercial  partnerships,  which  have  taken  the 
form  of  corporations  for  the  greater  facility  of  transacting  busi- 
ness' *'-.  Fongeray  v.  Cord,  50  N.  J.  Eq.  185,  24  Ati.  499.  "A 
ease  might  occur,"  remarks  Lord  Cairns,  "where  the  court  would 
he  willing  to  give,  under  the  act,  to  a  minority  of  shareholders 
the  species  of  relief  that  sometimes  is  given  in  cases  of  ordinary 
partnership  where  it  becomes  impossible  (I  use  the  word  'impossi- 
ble' in  the  strict  sense  of  the  term)  to  carry  on  the  business  any 

longer It  is  not  necessary  now  to  decide  it;  but  if  it  were 

shown  to  the  court  that  the  whole  substratum  of  the  partnership^ 
the  whole  business  which  the  company  was  incorporated  to  carry 
on,  has  become  impossible,  I  apprehend  that  the  court  might,  either 
under  the  act  of  parliament,  or  on  general  principles,  order  the 
company  to  be  wound  up.  But  what  I  am  prepared  to  hold  is 
this:  That  this  court,  and  the  winding-up  process  of  the  court,  can- 
not be  used,  and  ought  not  to  be  used,  as  the  means  of  evoking 
a  judicial  decision  as  to  the  probable  success  or  nonsuccess  of  a 
company  as  a  commercial  speculation":  In  re  Suburban  Hotel  Co.,  L. 
E.  2  Oh.  App.  Cas.  737. 

While  a  court  of  equity  may,  at  the  suit  of  a  stockholder,  diih 
tribute  the  assets  of  the  corporation  among  the  shareholders  and 
wind  np  the  business,  its  power  to  extinguish  the  franchise  or 
tenninate  the  legal  existence  of  the  corporation  is  not  so  dear. 
Probably  in  most  cases  the  rights  of  the  complainant  can  fully  be 
subserved  without  going  to  this  length;  yet,  if  the  exigencies  of 
soy  ease  demand  such  measures,  we  incline  to  the  view  of  Mr. 
Justice  Tyson,  in  the  principal  case,  that  a  court  of  equity  has 
jurisdiction  to  dissolve  the  corporation.  The  objection  that  the  cor- 
porate franchise  was  granted  by  the  state  is  purely  tochnical,  and 
should  be  no  insuperable  obstacle  to  relief  if  good  cause  is  shown. 
Perhaps  the  question  is  of  little  practical  importance  anyhow,  since 
when  the  eorporation  is  stripped  of  its  property  and  assets,  its  ex- 
istenee  ia  virtually  at  an  end. 


S6  Amsbioan  Stats  BapobtSj^  Vol.  81.    [Alabmrni, 


BOSTICK  ▼.  JACOBS. 

[138  Ala.  844,  88  Bonth.  186.] 

MOBTGAOE  FOBE0LOSX7BE— Applieatioii  of  ProcMdi.-*If  a 
mortga^re  giTen  to  Mcure  four  notes,  apon  two  of  which  ia  a  surety, 
ia  foreeloaed,  the  surety  ia  entitled  to  have  the  proceeds  applied  in 
just  proportion  to  that  part  of  the  debt  for  which  he  is  bound,  (p. 
87.)  ^^ 

Bill  by  appellant  Bostick  against  the  appellees,  aTerring  sub- 
etantially  as  follows :  One  Shoemaker  purchased  land  from  the 
defendants  and  executed  to  them  his  four  promissory  notes 
made  payable  at  different  dates.  Bostick  signed  the  two  of 
these  notes  that  would  be  first  to  become  due.  Shoemaker  se- 
cured all  four  notes  by  executing  a  mortgage  on  the  property. 
Upon  default  in  the  payment  of  the  first  two  notes^  the  de- 
fendants sued  Bostick  as  surety  on  them,  and  lecoyered  judg- 
ment. Afterward,  the  defendants  foreclosed  the  mortgage, 
and  at  the  sale  purchased  the  property.  A  short  time  after 
this  they  sold  the  property  to  one  Smith.  It  was  further 
ayerred  that  it  was  agreed  by  Bostick  and  Shoemaker  on  one 
side  and  the  defendants  on  the  other  that  the  mortgage  was 
primarily  for  the  protection  of  Bostick  as  surety;  that  the 
mortgage  executed  did  not  give  him  the  primary  protection 
agreed  upon;  that  such  mortgage  not  only  secured  the  first 
two  notes,  but  also  the  entire  indebtedness,  and  that  it  was 
stipulated  therein,  without  the  knowledge  or  consent  of  Bostidc, 
tiiat  upon  the  failure  to  pay  any  of  the  notes  the  whole  mort- 
gage indebtedness  should  become  due,  and  the  mortgage  should 
be  foreclosed,  and  that  in  this  respect  the  mortgage  departed 
from  the  agreement;  that  Bostick  was  entitled  to  haye  the 
proceeds  of  the  foreclosure  applied  for  his  benefit  on  the  two 
notes  upon  which  he  was  surety^  in  preference  to  the  others; 
that  the  defendants  received  out  of  the  proceeds  a  sum  su& 
cient  to  liquidate  such  two  notes;  and  that  he  was  entitled  to 
haye  them  canceled  and  himself  discharged  from  liability  as 
surety.  The  defendants  demurred  to  the  bill  and  prayed  for 
its  dismissal.  The  court  sustained  the  demurrer  and  motion, 
and  the  complainant  appeals. 

F.  A.  Bostick,  for  the  appellant. 

J.  B.  Tally  and  Martin  &  Bouldin,  for  the  respondents. 


Nov.  1901.]  B08TICK  V.  Jacobs.  87 


TYSON,  J.  The  bill  in  this  cause  presents  two  theoriee 
upon  which  the  complainant  relies  to  have  the  two  note^i  which 
he  corecuted  as  snrety  for  the  mortgagor  ^**^  and  npon  which 
judgment  was  recovered  against  him,  before  the  sale  under 
the  power  contained  in  the  mortgage  was  had,  satisfied  and 
discharged.  The  first  of  these  proceeds  upon  the  averment 
tiiat  the  terms  of  the  mortgage,  to  which  he  is  not  a  party, 
are  not  in  accordance  with  the  understanding  had  with  him 
by  which  he  agreed  to  become  bound  as  surety.  This  phase  of 
the  case,  however,  is  not  insisted  upon  in  argument. 

The  other  phase  of  the  bill  presents  a  case  for  equitable 
relief,  not  to  the  extent  of  having  the  entire  proceeds  derived 
from  the  sale  xmder  the  mortgage  applied  to  a  release  or  satis- 
faction of  the  judgment,  but  only  pro  rata.  By  the  terms  of 
the  mortgage,  upon  default  in  the  payment  of  the  first  matur- 
ing note,  upon  which  complainant  was  surety,  the  whole  mort- 
gage d^t,  including  the  other  one  upon  whidi  he  was  snrety 
as  well  as  the  two  notes  executed  by  the  mortgagor  alone,  be- 
came due  and  payable.  In  short,  the  default  at  maturity  of 
the  first  maturing  note  matured  the  other  three,  thereby  destroy-^ 
ing  all  priority  in  the  distribution  of  the  proceeds  of  the  sale 
of  one  note  over  another:  2  Jones  on  Mortgages,  sec.  1703; 
also  sees.  1179-1183. 

Again  the  mortgage  conferring  no  authority  upon  the  mort- 
gagees to  apply  the  proceeds  of  the  sale  of  the  mortgaged  prop- 
erty to  the  payment  of  any  notes  to  the  exclusion  of  the  others, 
the  law  applied  the  proceeds  to  the  entire  debt  secured  by  the 
mortgage.  This  being  true,  the  complainant  as  surety  has 
tile  right  to  have  the  proceeds  of  the  sale  (sixteen  hundred 
dollars)  applied  in  just  proportion  to  the  discharge  of  that 
portion  of  tiie  debt  for  which  he  is  bound :  Fielder  v.  Vamer, 
45  Ala.  429 ;  Orleans  Co.  Nat.  Bank  v.  Moore,  112  N.  Y.  543, 
8  Am.  St.  Eep.  775,  20  N.  E.  357 ;  2  Jones  on  Mortgages,  6th 
ed.,  sec.  1706. 

It  is  scarcely  necessary,  in  conclusion,  to  say  that  under  no 
possible  aspect  of  the  case  is  the  complainant,  and  for  that 
matter  can  never  become,  entitled  to  have  the  proceeds  of  the 
sale  to  Smith  by  the  respondents,  as  purchasers,  applied  to  a 
discharge  of  his  liability  to  them. 

The  decree  of  the  court  dismissing  the  bill  for  want  •*•  of 
equity  is  reversed,  and  a  decree  will  be  here  rendered  overruling 
tbe  motion. 

BeYersed  and  rendered. 


38  AiiERiOAN  Statb  Bbpobts,  Vol.  91.    [Akbama, 


When  m  OrtMor^  Hotding  BweraH  Notes  againit  hia  debtor,  with 
notice  that  one  of  them  is  signed  by  a  surety,  takes  a  mortgage  from 
the  debtor  as  security  for  all  the  notes,  without  any  designation 
as  to  the  application  of  proceeds  of  the  security,  he  has  a  right  to 
apply  such  proceeds  in  payment  of  the  notes  other  than  the  one 
secured  by  the  contract  of  suretyship,  and  greatly  exceeding  the 
▼alue  of  the  security:  Noble  y.  Murphy,  91  Mich.  653,  30  Am.  St. 
Bep.  507,  52  N.  W.  148.  But  see  Orasser  etc.  Brew.  Go.  y.  Bogen^ 
112  Mich.  112,  67  Am.  St  Bep.  889,  70  N.  W.  445. 


HICKS  V.  SWIFT  CEEEK  MILL  COMPANY. 

[133  Ala.  411,  31  South.  947.] 

EAUKMFiNT  AND  IJ0EN8E  DIBTINaUISHED.— An  easement 

Is  a  permanent  interest  in  realty,  while  a  license  is  a  personal  privilege 
to  do  certain  acts  upon  the  land  of  another  without  possessing  any 
estate  therein,    (p.  39.) 

BASBMENT  AND  IJ0EN8E— How  Created.— An  easement 
must  be  created  by  deed  or  prescription,  while  a  license  may  be  by 
paroL     (p.  39.) 

A  U0EK8E  is  OeneraUy  Berocable  at  the  will  of  the  owner 
ef  the  land  in  which  it  is  enjoyed,    (p.  39.) 

LI0EN8E— Estoppel  to  Beyoke.— One  who  gives  Yerbal  per- 
mission to  construct  a  ditch  and  dam  upon  his  land  Is  not  estopped 
to  roYoke  the  license,  because  the  Ucensee  incurs  great  expense  in 
their  construction,     (pp.  40,  44.) 

UOENSE^Bevocation  by  Conyeyanoe.— The  eonYoyanee  of 
land  upon  which  a  third  person  has  constructed  a  ditch  and  dam  nn- 
der  a  verbal  permission  from  the  land  owner  operates  as  a  roYoea- 
tion  of  the  license,     (pp.  40,  44.) 

UOENSEE— Damages  Against.— Tke  Grantee  of  land  whereon 
a  third  person,  by  the  verbal  permission  of  the  owner,  had  constructed 
a  ditch  and  dam,  may  maintain^  trespass  against  the  licensee  for 
damages  suffered,  and  the  recoveiy  may  include  exemplary  damages. 
<p.  44.) 

Guntep  &  Qunter,  for  the  appellant. 
Lomax,  Cnim  &  Weil,  for  the  respondenC. 

418  TYSON,  J.  Practically  but  a  single  question  is  pre- 
eented  for  our  consideration  and  determination.  It  is  whether 
the  defendant,  who  is  sued  for  a  trespass  upon  the  plaintiffs' 
lands,  acquired  an  irrevocable  license  from  the  plaintiffs' 
grantor  to  use  and  maintain  a  ditch  and  dam  for  the  purpose 
of  floating  logs.  The  facts,  out  of  which  this  question  arose, 
are  undisputed  and  are  these:  One  Smith,  being  the  owner 
of  the  lands,  in  1896  gave  verbal  permission  to  the  defendant 


Ifov.  1901.]     Hicu  «.  SwiVT  Cbmkk  Mux  Oo.  89 

to  construct  and  operate  the  ditch  and  dam  upon  them,  which 
▼as  done  by  it  at  great  cost  In  August,  1899,  fhe  plaintiffs 
hecame  fhe  owners  of  the  lands  by  deed  npon  which  these 
«tnictures  were  confitructed,  and  went  into  possession  of  them, 
with  fall  knowledge  that  the  defendant  was  actively  nsing  and 
operating  the  ditch  and  dam,  claiming  the  right  to  do  so, 
under  the  permission  given  them  by  Smith. 

Preliminary  to  a  discussion  of  the  question,  it  may  not  be 
amiss  to  say  that,  imder  these  facts,  no  question  of  adverse 
possession  can  possibly  arise.  The  entiy  by  defendant  being 
permissive,  its  possession  was  not  adverse,  but  was  in  subordi- 
nation of  the  rightful  title:  Collins  v.  Johnson,  57  Ala.  304; 
Jesse  French  Piano  Co.  v.  Forbes,  129  Ala.  471,  87  Am.  St. 
Bep.  71,  29  South.  683;  18  Am.  &  Eng.  Ency.  of  Law,  2d 
ed.,  1130. 

It  is  not  insisted  by  appellee  that  the  permission  granted 
to  it  created  an  easement.  Clearly,  such  an  insistence,  if  made, 
would  be  nntenable,  for  the  reason  that  it  would  have  required 
a  deed  to  have  conveyed  such  a  right.  For  ''an  easement  must 
be  an  interest  in  or  over  the  soiV  and  does  not  lie  in  livery, 
but  in  grant:  Washburn  on  Easements,  6;  10  Am.  &  Eng. 
Ency.  of  Law,  2d  ed.,  409 ;  Jones  on  Easements,  sec.  80 ;  Brown 
on  **•  Statute  of  FraucU,  sec  232.  The  difference  between 
an  easement  and  a  license  is,  the  former  implies  an  interest 
la  land,  while  the  latter  does  not  An  easement  must  be 
created,  as  we  have  said  above,  by  deed  or  prescription,  while 
a  license  may  be  by  parol.  The  former  is  a  permanent  in- 
terest in  the  realty,  while  the  latter  is  a  personal  privilege  to 
do  some  act  or  series  of  acts  upon  the  land  of  another  without 
possessing  any  estate  therein,  and  is  generally  revocable  at  the 
will  of  the  owner  of  the  land  in  which  it  is  to  be  enjoyed: 
Washburn  on  Easements,  6 ;  Jones  on  Easements,  sec.  63.  And 
when  revocable,  it  is  revoked  by  the  death  of  the  licensor,  by 
his  conveyance  of  the  lands  to  another,  or  by  whatever  would 
deprive  him  of  doing  the  acts  in  question  or  giving  permission 
to  others  .to  do  them:  Hodgkins  v.  Farrington,  150  Mass.  19, 
15  Am.  St.  Eep.  168, 22  N.  E.  73 ;  18  Am.  &  Eng.  Ency.  of  Law^ 
1141,  note  10;  Jones  on  Easements,  sec.  73,  note  4.  Con- 
fessedly, the  license  to  the  defendant  in  this  case  was  revoked 
by  the  conveyance  of  Smithy  from  whom  it  acquired  it,  unless 
he  estopped  himself  to  do  so.  And  that  it  is  insisted  he  did 
because  the  defendant  has  been  at  great  cost  in  constructing 
the  ditch  and  dam,  being  induced  to  do  so  under  the  permission 


40  AicEsioAN  State  Beports^  Vol.  91.    [Alabama,. 

granted  to  it.    It  is  farther  contended  that  the  license  has 
become  an  execnted  one,  and,  therefore,  irrevocable.    To  nae 
the  language  of  Baron  Parke:  ''It  certainly  etrikes  one  as   a 
strong  proposition  to  say  that  a  license  can  be  irrevocable,  un- 
less it  amounts  to  an  interest  in  the  land'' :  Williams  v.  Morris, 
8  Mees.  &  W.  488.    To  say  nothing  of  so  thin  and  gauzy  at- 
tempt to  evade  the  provision  of  the  statute  of  frauds,  requir- 
ing a  sale  of  all  interest  in  lands  to  be  in  writing  except  leaaea 
for  a  term  not  longer  than  one  year;  unless  the  purchase^ 
money,  or  a  partiom  thereof,  be  paid  and  the  purchaser  be  put 
in  possession  of  the  land  by  the  seller:  Code,  sec.  2152,  subd.  5. 
In  other  words,  we  are  asked  to  hold,  although  the  license  to- 
fhe  defendant  when  granted  was  not  intended  by  either  party, 
to  be  anything  more  than  a  mere  personal  privilege  to  it,  re- 
vocable by  Smith  at  his  will,  and  knowing,  as  it  did,  that  under* 
this  license  it  acquired  no  interest  whatever  in  the  lands,  that 
forsooth,  with  a  knowledge  of  all  these  facts,  **^  it  acquired 
an  indefeasible  title  to  an  easement  over  them  because  it  ex- 
pended money  in  constructing  the  ditch  and' dam.    For  it  ia 
too  plain  for  argument  that  if  Smith  is  estopped  to  revoke  the 
license,  all  others  who  may  acquire  his  title  would  be,  and  the 
defendant  would  enjoy  a  fee  simple  title  to  BXt  easement,  which 
had  its  origin  in  a  mere  license,  and  this  too,  without  payings 
one  cent  of  consideration  therefor,  to  say  nothing  of  so  plaii^ 
and  palpable  violation  of  the  statute  of  frauds.    Smith  is  not 
so  much  as  shown,  with  or  without  consideration*,  to  have  made- 
any  promise  that  he  would  not  exercise  his*  privilege  of  revok- 
ing the  license.    And  there  is  no  pretense  that  he  made  any 
misrepresentation  of  any  fact  that  induced  the  defendant  to- 
expend  its  money.    The  broad  proposition  is  asserted  that  be- 
cause he  granted  the  license,  knowing  the  purpose  for  which 
it  was  to  be  used,  that  he  could  never  revoke  it,  because  it 
would  be  a  fraud  to  allow  him  to  do  so,  and  because  it  has  be- 
come executed.    We  are  aware  that  many  courts  hold  this  con* 
tention  to  be  sound,  but  we  cannot  subscribe  to  it.    Reason 
and  the  great  weight  of  authority  are  against  it    In  Browne 
on  the  Statute  of  Frauds,  section  31,  it  is  said :  "In  some  of  the 
earlier  decisions,  both  English  and  American,  the  licensee  was 
protected  against  revocation,  on  the  ground  that  the  licensor 
was  estopped  to  revoke  a  license  on  the  faith  of  which  the  li- 
censee had  incurred  expense;  but  is  now  well  settled  that  tbe 
doctrine  of  estoppel  does  not  apply,  inasmuch  as  the  licensee 
is  bound  to  know  that  his  license  was  revocable,  and  that  in 


Not.  1901.]    Hioxs  v.  8wm  Cbkek  Mill  Cio.  *  41 

incairiiig  expense  he  acted  on  his  own  risk  and  peril.  Conrii 
of  equil^  also  have  lepeatedly  declined  to  interfere  on  this 
ground'':  See^  also,  note  3  for  cases  cited  to  this. 

In  Jones  on  Easements,  section  84,  it  is  said:  ^^An  oral 
prranise  to  grant  an  easement  is  not  sufficient  to  raise  an  estop- 
pd  in  favor  of  one  who  has  acted  npon  it.  In  a  case  not  re- 
lating to  easements,  Mr.  Justice  Qray  states  a  principle  which 
is  applicable  to  this  subject :  'A  promise,  npon  which  the  stat- 
ute of  frauds  declares  that  no  action  shall  be  maintained,  can- 
not be  made  effectual  by  estoppel  merely  because  it  has  been 
acted  ^^  upon  by  the  promisee  and  not  performed  by  the  prom- 
isor/ '' 

In  18  American  and  English  Encyclopedia  of  Law,  second 
editi<m,  page  1146,  it  is  said:  ^According  to  &e  prevailing 
view  of  the  courts  in  England  and  a  large  number  of  the  courts 
of  the  states  of  the  United  States,  neither  the  execution  of 
the  license  nor  the  incurring  of  expense,  nor  both  combined, 
tffect  the  right  of  the  licensor,  and  he  may  revoke  under  all 
drcunstancee.  It  is  held  that  the  statute  of  frauds  prevents 
any  act  other  than  the  giving  of  a  deed  from  vesting  an  irre- 
vocable interest  in  land'^ :  See  cases  cited  in  note  7  in  support 
of  this  proposition. 

Mr.  Freeman,  in  his  note  to  Laurence  v.  Springer,  31  Am. 
St  B^.  713  and  715,  says:  ''A  parol  license  is  founded  in 
personal  confidence,  and  is  defined  to  be  an  authority  given  to 
do  some  act,  or  a  series  of  acts,  on  the  land  of  another,  without 
passing  any  interest  in  the  land;  .  .  .  •  is  a  complete  answer 
and  defense  to  iC  claim  of  adverse  possession  set  up  by  the  li- 
censee, .  •  •  •  and  not  assignable.  ....  At  common  law  a 
parol  license  to  be  exercised  upon  the  land  of  another,  creating 
an  interest  in  the  land,  is  within  the  statute  of  frauds,  and 
may  be  revoked  by  the  Ucensor  at  any  time,  no  matter  whether 
or  not  the  Ueensee  has  exercised  acts  under  the  license,  or  ex- 
pended money  in  reliance  thereon.  In  many  of  the  states  this 
rale  prevails,  while  in  others  the  licensor  is  deemed  to  be  equi- 
tably estopped  from  revoking  the  license,  after  allowing  the 
licensee  to  perform  acts  thereunder,  or  to  make  expenditures  in 
reliance  thereon.  These  two  lines  of  cases  cannot  be  recon- 
ciled; for  one  of  them  holds  that  an  interest  in  land  cannot 
be  created  by  force  of  a  mere  parol  license,  whether  executed 
or  not,  while  the  other  declares  that  where  the  licensee  has  gone  to 
expense,  relying  upon  the  license,  the  licensor  may  be  estopped 
from  revoking  it,  and  thus  an  easement  may  be  created.    The 


42  AusBiOAX  SxAXB  Bepobis,  Vol.  91.    [Alabama^ 

former  line  of  cases,  it  seems  to  ns,  is  fomided  upon  the  better 
reason.  They  decide  that  a  parol  license  to  do  an  act  on  the 
land  of  the  licensor,  while  it  justifies  anything  done  by  the  li- 
censee Before  revocation,  is  revocable,  at  the  option  of  the  li* 
censor,  and  this,  although  ^^  the  intention  was  to  confer  a 
continuing  right,  and  money  has  been  expended  by  the  licenaee 
npon  the  faith  of  the  license.  Such  license  cannot  be  changed 
into  an  equitable  right  on  the  ground  of  equitable  estoppeL" 

Case  affcer  case  might  be  cited  to  suppoit  the  principles  aii« 
nounced  by  these  text-writers,  but  they  are  too  numerous  to 
do  so  here.  They  can  be  found  by  reference  being  had  to  the 
notes  referred  to  in  the  text  quoted.  However,  before  examin- 
ing the  decisions  of  our  own  court,  we  will  refer  to  the  case 
of  Thoemke  v.  Fiedler,  91  Wis.  386,  64  N.  W.  1030,  because 
of  its  striking  analogy  to  the  one  in  hand.  We  quote  from  a 
part  of  the  opinion:  ^^The  oral  agreement  under  which  the 
ditch  across  the  defendant's  land  was  made  did  not  create  ah 
easement  in  the  land.  An  easement  is  a  permanent  interest 
in  the  lands  of  another,'  with  a  right  to  enjoy  it  fully  and 
without  obstruction.  Such  an  interest  cannot  be  created  by 
parol.  It  can  be  created  only  by  a  deed  or  by  prescription. 
But  this  agreement  did  not  have  the  effect  of  a  parol  license. 
A  license  creates  no  estate  in  lands.  It  is  a  bare  authority 
to  do  a  certain  act  or  series  of  acts  upon  the  lands  of  another. 
It  is  a  personal  right  and  is  not  assignable.  It  is  gone  if  the 
owner  of  the  land  who  gives  the  license  transfers  his  title  tx> 
another,  or  if  either  party  die.  So  long  as  a  parol  license  re- 
mains executory,  it  may  be  revdced  at  pleasure.  So  an  exe- 
cuted parol  license,  under  which  some  estate  or  interest  in  the 
land  would  pass,  is  revocable.  Otherwise,  title  would  pass  with- 
out a  written  conveyance,  'in  the  teeth  of  the  statute  of  frauds/ 
Nor  is  such  a  license  made  irrevocable  by  the  fact  .  •  •  •  that 
expenditures  have  been  made  on  the  faith  of  it  •  •  •  •  Nor 
can  the  parol  agreement  be  enforced  in  equity  by  way  of  spedfie 
performance.*' 

We  will  now  examine  our  own  cases.  In  Biddle  v.  Brown, 
20  Ala.  412,  56  Am.  Dec.  202,  it  was  held  that  the  right  "^o 
dig  and  carry  away  iron  ore^*  from  the  mine  of  another  is  an 
easement;  and  any  contract  for  the  sale  of  such  right,  to  be 
binding,  must  be  in  writing.  That  a  verbal  contract  conferring 
such  a  right,  though  not  binding  under  the  statute  of  frauds, 
will  nevertheless  operate  ^^  as  a  verbal  license,  and,  while 
unrevdced,  will  protect  the  person  to  whom  it  was  given  from 


Nov.  1901.]    Hicks  v.  Swift  Cbbek  Mill  Co.  48 

trespass  qnare  clausnin  fregit,  for  digging  ore  and  yest  in  him 
the  property  in  the  ore  that  was  actually  dug  under  it;  but 
that  it  is  revocable,  at  the  pleasure  of  the  party  by  whom  it 
was  given,  and  was  personal  and  not  assignable.  * 

In  Motes  t.  Bates,  74  Ala.  378,  it  was  said:  ''We  find  no 
evidence  in  the  record  tending  to  show  that  the  plaintiff  Bates 
had  any  claim  of  legal  right  to  be  upon  this  portion  of  the 
defendant's  field.  It  is  shown  that  fiie  lessee  agreed  to  use 
the  public  road ;  and  his  employes  or  subtenants  had  no  greater 
rights  than  he  had.  If  the  plaintiff's  alleged  custom  in  using 
the  pathway,  for  some  time  previous^  could  be  construed  into 
a  permission  by  defendant  to  do  so,  this  was,  at  best,  only  a 
parol  license,  which  was  revocable  at  the  pleasure  of  the  person 
giving  it.  Every  license  of  this  kind,  by  which  one  is  per- 
mitted without  consideration  to  pass  over  the  lands  of  another, 
is  essentially  revocable  in  its  very  nature,  its  continuance  de- 
pending upon  the  mere  will  of  the  person  by  whom  it  was 
created  or  granted'*:  Citing  approvingly  Riddle  v.  Brown,  20 
Ala.  412,  56  Am.  Dec  202. 

In  Tillis  V.  Treadwell,  117  Ala.  448,  22  South.  983,  quoting 
from  Bndisill  v.  Cross,  54  Ark.  619,  26  Am.  St.  Eep.  57,  16 
S.  W.  675,  where  it  was  held :  "The  obligations  of  a  land  owner 
to  build  and  maintain  a  division  fence,  in  whole  or  in  part, 
for  the  benefit  of  adjoining  land,  is  something  more,  indeed, 
than  an  obligation  to  furnish  the  materials  and  labor  necessary 
from  time  to  time  for  the  erection  and  reparation  of  the  fence ; 
it  imposes  a  burden  upon  the  land  itself.  A  partition  fence 
ordinarily  must  rest  equally  upon  the  land  of  the  respective 
proprietors.  Hence,  an  agreement  of  one  of  those  proprietors 
to  maintain  such  a  fence  necessarily  imports  a  dedication  of 
the  use  of  the  land  required  to  support  half  of  it.  To  that 
extent  it  is,  therefore,  an  estate  in  the  land  itself.  In  accord- 
ance, then,  with  the  general  rule  that  an  easement,  being  an 
interest  in  realty,  cannot  be  conveyed  or  reserved  by  parol,  an 
agreement  by  an  owner  of  land  to  maintain  a  partition  fence 
between  such  land  and  that  of  an  adjoining  proprietor  cannot 
ordinarily  rest  in  parol,  but  to  be  ^•^  binding,  must  be  in 
writing/'  Our  court  then  proceeds :  "A  grant  to  an  adjoining 
proprietor  of  the  use  of  a  wall  on  his  own  premises,  as  a  parti- 
tion wall  between  their  buildings,  is  the  grant  of  an  easement, 
and  a  parol  agreement  to  build  and  grant  the  use  of  such  wall 
is  within  the  statute Under  our  decisions  parol  agree- 
ments for  the  grant  of  easements  are  void  under  the  statute : 


44  Akbrioan  Statb  Bkpobts^  Vol.  91.    [Alabama^ 

Biddle  r.  Brown^  20  Ala.  412,  56  Ahl  Dec.  202;  Hammond 
V.  Winchester,  82  Ala.  470,  2  South.  892.*'  See,  ako,  the  fol- 
lowing cases  in  which  Biddle  v.  Brown  is  cited  approvingly: 
Heflin  t.  Bingham,  56  Ala.  575,  28  Am.  Bep.  776;  Chambers 
T.  Alabama  Iron  Co.,  67  Ala.  357;  Lonisville  etc.  B.  B.  Co.  v, 
Boykin,  76  Ala.  564;  Motes  t.  Bates,  80  Ala.  368;  Hammond 
T.  Winchester,  82  Ala.  477,  2  South.  892. 

The  right  of  a  licensor  to  revoke  a  license  given  by  him  is 
fully  recognized  by  our  court,  as  will  appear  from  a  mere  cur- 
sory examination  of  the  cases  cited  above.  And,  indeed,  is 
fully  recognized  in  the  caee  of  Bhodes  v.  Otis,  33  Ala.  678, 
73  Am.  Dec  439,  upon  which  the  defendant  relies  to  support 
its  contention  of  estoppel.  Su£5ce  it  to  say,  that  in  that  case 
a  consideration  was  paid  for  the  easement  or  license,  and  the 
licensee  or  transferee  put  into  possession  of  the  land  and  vrater- 
way  over  which  the  rights  to  him  were  agreed  to  be  granted. 
There  was,  therefore,  no  question  of  the  operation  of  the 
statute  of  frauds,  and,  indeed,  could  not  be.  This  being  true, 
upon  the  plainest  principles  of  equity,  the  licensor  or  seller 
should  not  have  been  permitted  to  retain  the  purchase  mon^ 
paid  to  him,  and  to  destroy  the  rights  which  he  had  sold  to 
the  other  party.  This  is  far  from  sustaining  the  doctrine 
contended  for  here. 

In  Clanton  v.  Scruggs,  96  Ala.  282,  10  South.  758,  it  is 
said :  '^The  fact  that  one  of  the  parties  to  such,  an  agreement 
has  acted  on  the  faith  of  its  validity  does  not  raise  up  an 
estoppel  against  the  other  party  to  deny  that  it  is  binding  on 
him.  A  mere  breach  of  promise  cannot  constitute  an  estoppel 
in  pais:  Weaver  v.  BelU  87  Ala.  385,  6  South.  298.*'  Con- 
tinuing,  on  page  283.  (95  Ala.,  10  South.  758),  after  quoting^ 
from  Weaver  v.  Bell,  that  "a  representation  relating  to  future 
action  or  conduct  operates  as  an  estoppel  only  when  it  has 
reference  to  the  future  relinquishment  or  '^^^  subordination 
of  an  existing  right,  which  it  is  made  to  induce,  and  by  which 
the  party  to  whom  it  was  addressed  was  induced  to  act,"  the 
court  said:  "The  representation  there  referred  to  does  not  in- 
clude a  mere  promise  to  do  or  refrain  from  doing  something 
in  the  future:  ....  Brigham  v.  Hicks,  108  Mass.  246.  Such 
a  rule  of  estoppel  would  take  the  sting  out  of  the  statute  of 
frauds,  and  defeat  its  manifest  purpose.''  The  case  of  Brigham 
V.  Hicks,  cited  approvingly,  is  the  one  from  which  the  quotation 
from  Jones  on  Eas^nents  was  taken. 


Nov.  1901.]    Hicks  v.  Swift  Gbebk  Mill  Co.  45 

It  is  dear  that  the  decbioiis  of  this  cotLrt  are  in  harmonj 
with  the  principles  aanoanced  by  ns  and  witii  the  text-writers 
from  whom  we  hare  quoted  at  length.  Smith,  not  being  es* 
topped,  his  oonveyance  of  the  land  ipso  facto  was  a  revocation 
of  the  license  to  the  defendant^  and  the  plaintiffs  having  ac- 
qnired  the  legal  title  to  the  land  and  to  the  ditch,  were  en* 
titled  to  the  immediate  possession  thereof,  and  have  a  right 
to  maintain  this  action  and  to  recover  snch  damages  as  they 
may  have  suffered  by  reason  of  the  trespass  committed  by  de- 
fendant: Davis  V.  Young,  20  Ala.  161;  Boswell  v.  Carlisle, 
70  Ala.  244 ;  Dunlap  v.  Steele,  80  Ala.  424 ;  Fields  v.  Williams, 
91  Ala.  502,  8  South.  808.  And  the  jury  may  award  exemplary 
damages  if  they  see  proper:  Wilkinson  v.  Searcy,  76  Ala.  181; 
Alley  V.  Daniel,  75  Ala.  408.  'TRiatever  is  done,**  says  Shaw, 
J.,  in  Wills  V.  Noyes,  12  Pick.  324,  "willfully  and  purposely, 
if  it  be  at  the  same  time  wrong  and  unlawful  and  known  to 
the  party,  is  in  legal  contemplation  malicious" :  Lynd  v.  Picket, 
82  Am.  Dec.  89. 

There  is  nothing  in  the  facts  which  tends  in  the  remotest 
degree  to  show  that  the  plaintiffs  ever  renewed  the  license. 
On  the  contrary,  they  are  shown  to  have  asserted  their  rights, 
under  the  revocation  by  demanding  the  payment  of  rent  of 
defendant. 

It  is  scarcely  necessary  to  say  that  no  damages  for  the  negli- 
gent maintenance  or  operation  of  the  ditch  or  dam  are  sought 
to  be  recovered  in  the  complaint,  and,  indeed,  could  not  be 
under  ita  averments. 

Beversed  and  remanded. 


The  Nature  and  BevoeatUm  of  Parol  Licenses  are  considered  in  the 
note  to  Laurence  v.  Springer,  31  Am.  St.  Bep.  712-719.  An  oral 
licenBe  to  maintain  a  ditch  on  the  land  of  another  is  revocable,  al* 
though  money  has  been  expended  thereon  by  the  licensee:  Hathaway 
▼.  Yakima  Water  etc.  Co.,  14  Wash.  469,  53  Am.  St.  Bep.  874,  44  Pac. 
396;  Ewing  v.  Bhea,  37  Or.  583,  82  Am.  St.  Bep.  783,  62  Pac.  790. 
Compare  Buck  v.  Foster,  147  Ind.  530,  62  Am.  St.  Bep.  427,  46  N.  E. 
920;  Flickinger  v.  Shaw,  87  Cal.  126,  22  Am.  St.  Bep.  234,  25  Pac. 
268.  A  conTeyance  of  the  land  in  which  a  license  is  enjoyed  acts  as 
a  revocation  of  the  license:  Emerson  v.  Shorei^  95  Me.  237,  85  Am.  St. 
B^.  404,  49  Atl.  1051. 


46  AicxRiOAK  Statb  Bjbpobts^  Vol.  91.    [Alabama^ 


FIRST  NATIONAL  BANK  v.  TYSON. 

[133  Alfu  459,  32  South.  144.] 

NU18AK0E.— A  Municipal  Corporation  Cannot  License  the 
erection  or  the  commiesion  of  a  nuisance  in  or  on  a  public  street, 
(p.  48.) 

NX7I8ANCE— Building  into  Street.— Columns  of  a  building  pro- 
jecting some  two  feet  onto  the  sidewalk  are  a  public  nuisance,  (p. 
48.) 

NX7I8ANCE— Building  into  Street.— An  Adjoining  Owner,  who 
sustains  special  damages,  apart  from  those  suffered  by  the  general 
public,  may  sue  to  restrain  the  erection  of  columns  of  a  building  which 
will  encroach  upon  the  sidewalk,     (p.  49.) 

THE  EASEMENT  of  Light  and  Air  is  placed  along  with  the 
easement  of  access,  the  one  no  more  important  than  the  other,  except 
in  degree,     (p.  49.) 

EASEMEIIT  OF  VIEW  from  Street.— An  adjoining  owner  may 
sue  to  restrain  the  erection  of  a  building  which,  encroaching  upon 
the  public  street,  obstructs  his  easement  of  view.     (p.  52.) 

NUISANCE— Building  into  Street.— It  is  No  Defense  to  a  suit 
by  an  adjoining  property  owner  to  restrain  the  erection  of  a  building 
encroaching  upon  the  public  street,  that  he  has  not  applied  without 
success  to  the  public  authorities  for  relief,     (p.  S2.) 

DUPLICITY  OF  PLEA  to  Bill  to  Bestrain  Nuisance.— A  plea 
to  a  bill  by  an  adjoining  property  holder  to  restrain  the  erection  of 
a  building  encroaching  upon  the  public  street  is  bad  for  duplicity, 
if  it  sets  up  that  the  complainant  consented  to  the  encroachment^ 
and  that  he  was  not  entitled  to  the  light,  air  and  view  from  that 
part  of  the  street  in  front  of  the  building,    (p.  53.) 

Bill  by  appellee  Tyson  against  the  First  National  Bank  for 
a  temporary  injunction  against  the  erection  of  a  building.  It 
was  averred^  in  general,  that  the  complainant  owned  a  three- 
story  building,  used  as  a  bank  and  office  building,  which  ex- 
tended np  to  the  building  line  of  the  street,  that  the  defendant 
was  constructing  n  six-story  building  on  the  same  side  of  the 
street  on  a  lot  immediately  adjoining  the  complainant's  build- 
ing; and  that  the  defendant  intended  to  place  in  front  of  ita 
building  four  columns,  sixteen  feet  high  and  two  feet,  more 
or  less,  beyond  the  established  building  line  into  the  street. 

Answering  the  bill,  the  defendant  by  way  of  first  plea  averred 
that  if  the  defendant's  columns  would  encroach  upon  the  street, 
then  the  complainant's  building  also  encroaches  on  t^o  street, 
and  complainant  is  in  pari  delicto,  and  the  special  injury  al- 
leged to  the  complainant's  light,  air,  and  view  will  be  done  to 
that  part  of  his  building  which  is  itself  a  public  nuisance; 
but  the  defendant  denies  that  the  complainant  is  entitled  to 
have  light,  air,  and  view  across  the  lands  in  which  the  defend- 


Not.  19010         Firbt  Nat.  Bank  v.  Tyson.  47 

lilt  owns  the  fee,  and  over  which  the  public  only  has  an  ease- 
ment of  passage. 

By  way  of  second  plea,  the  defendant  ayerred  that  it  was 
its  bona  fide  intention  to  conduct  itself  in  a  lawful  manner 
in  reference  to  the  position  and  construction  of  its  building, 
and,  with  that  view,  called  upon  the  city  authorities  to  point 
out  and  establish  the  true  line  between  its  property  and  the 
etreet;  that  the  city  failed  and  refused  to  point  out  the  line,  , 
and  thereupon  the  defendant,  out  of  abundance  of  caution,  ap- 
I^ied  to  the  city  for,  and  the  city  granted,  permission  to  pro- 
ject the  base  of  its  building  twenty-six  inches  beyond  the  prop- 
erty line  and  to  set  up  the  columns  twenty-two  inches  beyond 
such  line;  and  that  the  sidewalk  in  front  of  the  buildings  is 
spacious,  and  the  columns  would  not  in  any  manner  interfere 
with  the  rights  of  the  public  to  convenient  passage. 

In  a  third  plea  the  defendant  averred  that  the  complainant 
has  estopped  himself  upon  insisting  upon  special  injury  by 
consenting  to  the  encroachment  upon  the  street,  and  that  the 
complainant  is  not  entitled  to  have  the  light,  air,  and  view 
come  to  his  building  from  that  part  of  the  street  in  front  of 
the  defendant's  building  to  which  the  defendant  has  the  fee; 
and  that  the  only  easement  to  which  the  public  or  the  com- 
plainant is  entitled  over  that  part  of  the  street  is  the  right 
of  passage. 

Watts,  Troy  &  Gaffey,  for  the  appellant 

0.  C-  Maner,  for  the  respondent. 

^'^  HABALSON,  J.  The  cause  was  submitted  for  decree 
on  the  pleadings,  the  exceptions  of  complainant  to  the  three 
pleas  filed  by  the  defendant,  the  motions  to  discharge  and  dis- 
solve the  injunction,  and  on  the  demurrer  to  the  bill,  accom- 
panied by  the  several  affidavits  filed  by  the  complainant  and 
defendant. 

It  may  be  stated  broadly,  since  it  seems  to  be  everjrwhere 
settled  in  this  coimtry,  that  a  building  or  other  structure  of 
like  natare,  erected  on  a  street — which  includes  its  sidewalks — 
without  the  sanction  of  the  legislature,  is  a  nuisance;  that 
public  '^ghways  belong  from  side  to  side  and  from  &ii  to 
end  to  the  public,^'  and  they  are  entitled  to  a  free  passage  along 
any  portion  of  it,  not  in  use  by  some  other  traveler,  and  there 
can  be  no  rightful  permanent  use  of  the  way  for  private  pur- 
poses: Elliott  on  Beads  and  Streets,  sec.  645.    This  court  hm 


48  Ahbbioan  Statb  Bepqbts^  Vol.  91.    [Alabama^ 

said :  ''The  public  have  a  right  to  passage  over  a  street^  to  its 
utmost  extent,  imobstrncted  by  any  impediments^  and  any  un- 
authorized obstruction  which  necessarily  impedes  the  lawful 
use  of  a  highway  is  a  public  nuisance  at  common  law" :  Cos- 
telle  y.  State^  108  Ala.  45^  18  South.  820.  Again,  it  is  said : 
''Any  permanent  obstruction  to  a  public  highway,  such  as 
would  be  caused  by  the  erection  of  a  fence  or  building  thereon, 
is,  of  itself,  a  nuisance,  though  it  should  not  operate  as  an 
actual  obstacle  to  travel,  or  work  a  positive  inconvenience  to 
anyone.  It  is  an  encroachment  upon  a  public  right,  and,  aa 
such,  is  not  permitted  to  be  done  by  the  law,  with  impumty^' : 
State  V.  Edens,  85  N.  C.  526. 

It  is  again  weU  settled  that  a  municipal  corporation  can- 
not license  the  erection  or  commission  of  a  nuisance  in  or  on 
a  public  street.  "A  building,'*  says  Dillon,  "or  other  structiipe 
of  like  nature,  erected  upon  a  street,  without  the  sanction  of 
the  legislature,  is  a  nuisance,  ^'^  and  the  local  corporate  au- 
thorities of  a  place  cannot  give  a  valid  permission  thus  to  oc- 
cupy streets,  without  express  power  to  this  end  conferred  on 
{hem  by  the  charter  or  statute.  The  usual  power  to  regulate 
and.  control  streets  has  even  been  held  not  to  authorize  the 
municipal  authorities  to  allow  them  to  be  encroached  upon 
by  the  adjoining  owner,  by  erections  made  for  his  excluslTe 
use  and  advantage,  such  as  porches  extending  into  the  streets, 
or  flights  of  stairs  leading  from  the  ground  to  the  upper  stories 
of  buildings,  standing  on  the  line  of  the  streets.  The  person 
erecting  or  maintaining  a  nuisance  upon  a  public  street,  alley 
or  place  is  liable  to  the  adjoining  owner  or  other  person  who 
suffers  special  damages  therefrom'*:  2  Dillon  on  Municipal 
Corporations,  sec.  660,  and  authorities  there  cited;  State  t. 
Mayor  etc,  5  Port.  279,  30  Am.  Dec.  564;  City  of  Demopolis 
V.  Webb,  87  Ala.  666,  6  South.  408;  Webb  v.  City  of  Demo- 
polis, 95  Ala.  116,  13  South.  289;  Hoole  v.  Attorney  General, 
22  Ala,  194;  Costello  v.  State,  108  Ala.  45,  18  South.  820; 
Douglas  V.  City  Council,  118  Ala.  599,  24  South.  745. 

There  can  be  no  question  but  that  the  erection  of  the  pro- 
posed pillars  by  defendant  in  front  of  its  building  on  the 
street,  and  which  are  to  extend,  as  admitted,  twenty-two  inches 
beyond  the  west  lino  of  said  building  onto  the  sidewalk,  is  a  pub- 
lic nuisance,  to  abate  which  the  public  might  maintain  a  bill: 
Reed  v.  Mayor  etc.,  92  Ala.  344,  9  South.  161;  1  Dillon  on 
Municipal  Corporations,  sec.  374 ;  Elliott  on  Boads  and  Streets, 
664,  665,  authorities  supra. 


KoT.  1901.]         FiBST  Nat.  Bank  v.  Tvaoii.  49 

It  is  also  well  tmdersiood  QiBi,  in  addition  to  the  right  of  the 
public  to  maintain  a  suit  in  equity  for  an  injunction  against 
the  erection  and  maintenance  of  a  public  nuisance,  a  private 
citizen  who  sustains  an  injury  therefrom,  different  in  degree 
and  kind  from  that  suffered  by  the  general  public,  may  main- 
tain  a  suit  in  equity  to  enjoin  it :  Cabbell  v.  Williams,  127  Ala. 
320,  28  South.  406 ;  Mctyor  v.  Eodgers,  10  Ala.  37,  47 ;  Elliott 
on  Boads  and  Streets,  sec.  665.  As  to  the  injury  being  ir- 
reparable, or  not  capable  of  full  and  complete  compensation 
in  damages,  as  is  sometimes  said  to  be  the  requirement  in  case 
a  private  citizen  complains  to  abate  it,  Mr.  Elliott  observes 
in  the  section  referred  to  that  "the  phrase  'irreparable  injury* 
is  apt  to  mislead.  It  does  not  necessarily  mean,  as  used  in 
the  law  of  injunctions,  that  the  injury  is  beyond  *^*  the  pos- 
sibilitiee  of  compensation  in  damages,  nor  that  it  must  be  very 
great  And  the  fact  that  no  actual  damages  can  be  proved, 
so  that  in  an  action  at  law  the  jury  could  not  award  nominal 
damages  only,  often  furnishes  the  very  best  reason  why  a  court 
of  equity  should  interfere  in  cases  where  the  nuisance  is  a 
continuous  Ofne^':  Ogletree  v.  McQuaggs,  67  Ala.  580,  42  Am. 
Bep.  112. 

On  the  same  subject  Mr.  Wood  states,  that  %y  irreparable 
injury  is  not  meant  such  injury  as  is  beyond  possibility  of 
repair,  or  beyond  possibility  of  compensation  in  damages,  nor 
necessarily  great  injury  or  great  damage;  but  that  species  of 
injury,  whether  great  or  small,  that  ought  not  to  be  submitted 
to  on  the  one  hand,  or  inflicted  on  the  other,  and  which,  be- 
cause it  is  so  large  on  the  one  hand  or  small  on  the  other,  i3 
of  snch  constant  and  frequent  occurrence  that  no  fair  or  rea- 
sonable redress  can  be  had  therefor  in  a  court  of  law" :  2  Wood 
on  Nuisances,  see.  778,  and  note;  3  Pomeroy's  Equity  Juris- 
prudence, sec.  1349 ;  Whaley  v.  Wilson,  112  Ala.  630,  20  South. 
922. 

The  bill  alleges  "that  said  encroachment  [of  the  erection 
of  said  pillars  on  the  sidewalk]  upon  said  highway  is  a  public 
nuisance,  not  only  infringing  upon  the  rights  of  the  common- 
wealth of  Alabama,  but  if  same  are  completed  and  placed  in 
position,  as  now  contemplated  by  the  First  National  Bank,  said 
encroachment  will  greatly  damage  your  orator  beyond  that 
which  is  comnH>n  to  the  public  generally,  by  injuring  and 
depreciating  the  value  of  your  orator's  property,  and  by  de- 
stroying the  symmetry  of  your  orator's  building  along  the  high- 
Am.  St.  Rep.,  Vol.  »-4 


60  Ajouoak  Sxaxb  Bbpoetb>  Vol.  91.    [Altfrtmiij 

waj^  which  is  yalnable^  and  by  obetmcting  th«  Iight>  air  and 
yiew  necessarily  ensuing  therefrom,  and  by  depreciating  the- 
rental  value  of  your  orator's  property,  in  that  the  liew  of  per-^ 
sons  going  south  along  the  said  highway  north  of  your  orator's 
building  will  be  cut  oflf  from  your  orator's  building.'*  He 
also  avers  that  the  tenants  in  his  building  are  valuable  to  him, 
and  some  of  them  have  informed  complainant  that  if  said 
columns  encroach  on  said  highway,  or  if  any  part  of  said  build* 
ing  of  defendant  encroaches  on  said  highway,  they  will  no 
longer  remain  his  tenants.  Here  is  averment  of  special  damage 
to  complainant  apart  from  that  which  may  be  euffered  by  the 
public  at  large. 

^"^  It  appears  that  the  bases  of  the  columns  proposed  to 
be  erected  in  front  of  defendant's  building  are  outside  of  the 
west  wall  of  the  main  structure  to  which  they  are  expected  to 
be  attached,  and,  as  is  averred  and  not  denied,  ''are  to  extend 
from  the  sidewalk,  sixteen  feet  in  height,  more  or  less,  and 
are  to  extend  two  feet  more  or  less  (twenty-two  inches  seems 
to  be  the  real  extent)  beyond  the  established  building  line  on 
said  highway,  into  and  upon  the  street''  It  is  wholly  imma* 
terial,  it  may  be  added,  whether  these  columns  are  designed 
to  be  for  ornament  or  utility,  or  whether  defendant  will  be 
prejudiced  more  by  the  temporary  injunction  against  their 
erection  than  complainant  might  be,  if  it  had  not  been  granted.. 

We  try  the  case  on  this  appeal,  on  the  pleadings  as  they  are 
presented,  in  advance  of  any  evidence  taken  in  the  cause. 
Whether  the  evidence  when  taken  will,  on  submission  of  the 
case  for  final  disposition,  sustain  the  averments  for  relief  or 
not,  we  are  not  given  to  know.  It  is  a  case  as  presented,  as 
the  court  below  held,  and  we  think  properly,  where,  everythinft 
considered,  the  complainant  was  entitled  to  his  injunction,  and 
its  continuance,  to  await  the  final  disposition  of  the  cause: 
Harrison  v.  Yerby,  87  Ala.  185,  6  South.  3. 

The  defendant,  it  may  be  conceded,  owns,  as  it  claims,  to- 
the  center  of  the  street  in  front  of  its  building,  and  its  right 
to  the  use  of  its  property  in  any  way  it  pleases,  subject  only 
to  the  easement  of  the  public  along  the  street,  as  a  thorough- 
fare of  travel  and  commerce;  but  it  denies  to  complainant  the 
right  to  light,  air  and  view,  except  from  that  part  of  the  street 
immediately  in  front  of  his  property.  So  far  as  light  and  air 
are  concerned,  the  subject  has  been  much  discussed,  and  may 
be  taken  a,8  well  settled,  but  the  question  of  view,  if  distin- 
guishable  from   these,  has  not  often   arisen.    The  easement 


Ho?.  1901.]         First  Nat.  Bane  v.  Tyson.  61 

of  light  and  air  is  placed^  on  what  would  seem  to  be  good 
leasoD^  and  certainly  on  authority^  along  with  the  easement  of 
scoefls,  the  one  no  more  important  than  the  other,  except  in 
degree.  This  easement  of  access,  says  Mr.  Elliott,  '^is  so  far 
regarded  as  private  property  that  not  even  the  legislature  can 
take  it  away  and  deprive  the  owner  of  it  without  compensa- 
tion. '^^  In  New  York  and  in  most  of  the  states  in  which 
the  question  has  arisen,  the  abutter  has  an  easement  in  the 
light  and  air  over  the  street,  and  above  the  'surface  there  can 
be  no  lawful  obstruction  to  the  access  of  light  and  air,  to  the  ' 
detriment  of  the  abutting  owner.^^'  In  support  of  the  text, 
note  1,  many  authorities  from  diflferent  courts  are  cited,  in- 
dnding  the  case  of  the  New  York  Elevated  R.  R.  Co.  v.  Fifth 
Nat  Bank,  135  IT.  S.  432,  10  Sup.  Ct  Rep.  743.  In  the  case 
last  cited  the  court  say:  'TThe  owners  of  lands  abutting  on  a 
street  in  the  city  of  New  York  have  an  easement  of  way  and 
of  h'g^t  and  air  over  it;  and  through  a  bill  in  equity  for  an 
injunction,  may  recover  of  the  elevated  railroad  company  full 
eompensation  for  this  easement;  but  in  an  action  at  law  can- . 
not,  without  the  defendant's  acquiescence,  recover  permanent 
damages,  measured  by  the  diminution  in  value  of  their  prop- 
erfy,  but  can  recover  such  temporary  damages  only  as  they  have 
tustained  to  the  time  of  commencing  action.^' 

From  the  well-considered  case  of  Bamet  v.  Johnson,  15  N. 
J.  Eq.  481,  we  quote  approvingly  what  we  consider  to  be  espe- 
cially applicable  to  the  case  in  hand :  that  there  are  ''two  classes 
of  ri^tSy  originating  in  necessity  and  in  the  exigencies  of 
human  affairs,  springing  up  coeval  with  every  public  highway,. 
and  which  aie  recognized  and  enforced  by  the  conmion  law  of 
all  dvilized  nations.  The  first  relates  to  the  public  passage; 
the  second,  subordinate  to  the  first,  but  equally  perfect  and 
scarody  less  important,  relates  to  the  adjoining  owners. 
Among  the  latter  is  that  of  receiving  from  the  public  highway 
K^t  and  air.  ....  When  people  build  upon  the  public  high- 
wiy,  do  Ihey  inquire  or  care  who  owns  the  fee  of  the  roadbed 
[or  etreet]  ?  Do  they  act  or  rely  on  any  other  consideration 
exoept  that  it  is  a  public  highway,  and  tl^y  the  adjacent  own- 
ers? Is  not  this  a  right  of  universal  exercise  and  acknowl- 
edgment in  all  times  and  in  all  countries,  a  right  of  necessity, 
without  which  cities  could  not  have  been  built,  and  without 
the  enforcement  of  which  they  would  soon  become  tenantlees? 
It  is  a  right  essential  to  the  very  existence  of  dense  eommuni- 
.  .  ,  .  It  i«  a  ^''^  right  founded  in  such  an  urgent  neo- 


£2  Akebicak  Stats  Bepobts^  Vol.  91.    [Alabama, 


itj  that  all  laws  and  legal  proceedings  take  it  for  granted. 
A  right  80  strong  that  it  protects  itself,  so  nrgent  that,  upon 
any  attempt  to  annul  or  infringe  it,  it  would  set  at  defiance 
all  legislative  enactment  and  all  judicial  decision'':  Dill  y. 
Board  of  Education,  47  N.  J.  Eq.  421,  20  Atl.  739 ;  Field  ▼. 
Barling,  149  lU.  556,  41  Am.  St.  Rep.  311,  87  N.  E.  850. 

In  the  case  of  Dill  ▼.  Board  of  Education,  47  N.  J.  Eq.  421, 
20  Atl.  739,  touching  the  rights  of  parties  to  streets  dedi- 
cated to  public  use,  the  court  said:  '-If  we  inquire  what  those 
rights  are,  we  find  that  they  are  twofold:  1.  A  right  of  access 
from  the  abutting  property,  and  a  passage  to  and  fro  over  it 
in  all  its  extent;  and  2.  A  right  of  light,  air,  prospect  and 
ventilation.  These  rights  are  quite  distinct  from  each  other, 
and  capable  of  being  separately  exercised  and  enjoyed.  The 
right  of  light,  air  and  ventilation  may  be  enjoyed  fully  with- 
out the  least  exercise  of  the  right  of  access  and  passage.  That 
this  right  of  light,  air,  prospect  and  ventilation  exists  is  clearly 
established  by  the  authority  of  this  and  other  states'' :  Hallock 
V.  Scheyer,  33  Hun,  111. 

It  is  difficult  to  understand  why  an  easement  of  view  from 
every  part  of  a  public  street  is  not,  like  light  and  air,  a  valu- 
able right,  of  which  the  owner  of  a  building  on  the  street 
ought  not  to  be  deprived  by  an  encroachment  on  the  higbway 
by  a  coterminous  or  adjacent  proprietor.  The  right  of  view 
or  prospect  is  one  implied,  like  other  rights,  from  the  dedica- 
tion of  the  street  to  public  uses.  As  was  well  said  by  the 
learned  judge  below  in  respect  to  this  right:  ''It  seems  to  be 
a  valuable  right  appurtenant  to  the  ownership  of  land  abut- 
ting on  the  highway,  and  to  stand  upon  the  same  footing, 
as  to  reason,  with  the  easement  of  motion,  light  and  air,  and 
to  be  inferior  to  them  only  in  point  of  convenience  or  neces- 
sity, and  that  an  interference  with  it  is  inconsistent  with  the 
public  right  acquired  by  dedication.  The  opportunity  of  at- 
tracting customers  by  a  display  of  goods  and  signs  is  valuable, 
as  I  have  no  doubt  the  streets  of  any  city  in  the  world  will 
demonstrate."  As  to  these  and  all  other  matters  brought  for- 
ward, the  injunction  ^^®  should  await  the  decision  of  the 
cause  when  tried  for  final  decree,  on  pleadings  and  proof  taken. 

The  demurrer  on  the  ground  that  it  is  not  alleged  in  the 
bill  that  complainant  had  applied  without  success  to  the  au- 
thorities of  the  city  of  Montgomery  for  relief  is  wanting  in 
merit.  He  had  a  right  to  file  the  bill  without  reference  to 
any  action  taken  by  the  city :  Douglass  v.  City  Council  of  Mont- 


Nov.  190L]         F1B8T  Nat.  Bank  v.  Tyson.  53 

gomerj,   118  Ala.  611,  24  South.  745.    The  demurrer  as  ta 
anj  of  its  gronnds  was  properly  oyemded. 

From  what  has  been  said,  it  will  appear  that  the  first  and 
second  pleas  were  properly  held  to  be  without  merit :  See  Louis- 
Yille  etc.  B.  B.  Co.  v.  Mobile  etc.  E.  B.  Co.,  124  Ala.  162,  26 
Sooth.  895;  Webb  y.  City  of  Demopolis,  95  Ala.  116,  13 
South.  289,  respectively,  as  to  each  of  these  pleas.  The  court 
held  that  the  third  plea,  as  originally  filed,  was  good;  but,  as 
amended,  was  bad  for  duplicity,  citing  Story  on  Equity  Plead- 
ings, 653.  Without  considering  the  third  plea  as  originally 
filed,  we  concur  with  the  court  below  that,  as  amended,  it  was 
bad  for  duplicity.  There  was  no  error  in  overruling  the  mo-^ 
tion  to  discharge  and  dissolve  the  injunction,  and,  finding  no 
reversible  error  in  any  of  the  rulings  of  the  court  below,  let  its 
decree  be   affirmed. 

Tyson,  J,,  not  sitting. 


An  Atvttinff  Lot  Owner  has  a  right  to  the  nnobstmeted  passage  of 
light  and  air  from  the  pablie  street  to  his  property,  regardless  of 
the  ownership  of  the  fee  in  the  street:  See  the  monographic  note  ta 
Field  ▼.  Barling,  41  Am.  St.  Bep.  324;  WiUamette  Iron  Works  v.  Ore- 
gon By.  ete^  Co.,  26  Or.  224,  46  Am.  St.  Bep.  620,  37  Pac.  1016.  He 
is  entitled  to  an  injunction  to  prevent  the  erection  of  a  private  stme- 
ture  which  vrill  deprive  him  of  such  easement,  notwithstanding  the 
stmetare  is  anthorized  by  an  ordinance.  A  city  cannot  authorize  a 
private  individual,  in  his  own  interest,  to  obstruct  the  light  and 
air  from  the  street  to  the  injury  of  abutting  lot  owners:  Townsend 
V.  Epstein,  93  Md.  537,  86  Am.  St.  Bep.  441,  49  Atl.  629. 

An  Encroachment  on  a  Publie  Street  is  a  nuisance:  Yates  v.  Warren- 
ton,  84  Ya.  337,  10  Am.  St.  Bep.  860,  4  S.  E.  818.  And  an  indivWaat 
has  a  right  to  enjoin  a  nuisance  which  eausetf  him  to  suffer  a  special 
injury,  different  in  hind  and  degree  from  that  sustained  by  the  pub- 
He  generally:  Kanffman  v.  Stein,  138  Ind.  49,  46  Am.  St.  Bep.  36S, 
37  N.  E.  333.  But  see  Stete  t.  Stark,  63  Kan.  S29,  88  Am.  St.  Bepw 
251,  66  Pae.  243. 


1^  Aksbioan  State  Bbpobts^  Vol.  91.    [Alabama 


PBITH  &  COMPANY  r.  HOLLAN. 

[188  Ala*  588,  82  SoutK  49i.] 

SALS— Implied  Wazranty.— On  a  sale  of  onion  Mis  to  a  mer- 
chant by  description,  tbere  is  an  implied  warranty  that  they  shall 
answer  the  description  and  be  merchantable,    (p.  65.) 

^  SALE— Semedles  of  Buyer  for  Breach  of  Warranty.--A  mer- 
chant, finding  goods  purchased  by  him  to  be  in  a  bad  condition,  and 
part  of  them  unmerchantable,  may  rescind  the  sale  and  return  the 
goods,  or  retain  them,  and  when  sued  for  the  price,  avail  himself 
ef  the  damages  suffered,  either  by  bringing  his  cross-action  for  the 
breach  of  warranty,  or  by  proving  their  r^d  value  and  abating  the 
recovery  pro  tanto.    (p.  55.) 

Assumpsit  by  appellant,  Frith  &  Company,  against  Hollan  for 
a  balance  alleged  to  be  due  upon  the  purchase  price  of  onion 
sets  which  had  been  sold  by  the  plaintiff  to  the  defendant. 
There  was  evidence  that  when  the  onions  were  received,  by 
the  buyer  they  were  badly  sprouted,  and  damaged  at  leart  in 
iiie  amount  claimed  by  tiie  plaintiff  in  the  suit.  There  vma 
also  evidence  that  when  Ihe  buyer  received  the  onions,  he  put 
them  in  his  store  for  sale,  and  to  fill  orders  preTioualj  left 
-with  him. 

The  plaintiff  requested  the  court  to  give  the  jury  the  follow- 
ing charges,  which  the  court  refused  to  do:  1.  ''If  the  jury 
believe  the  evidence  they  will  find  for  the  plaintiffs*';  2.  "An 
implied  warranty  is  not  a  guarantee  that  tiie  article  or  thing 
«old  is  the  best  of  ita  kind,  or  such  as  might  have  been  repre- 
i^ented  at  the  time  of  sale,  only  that  such  article  shall  be  rea- 
sonably suitable  for  the  purpose  for  which  it  was  intended  to 
1)0  used,  and  if  the  testimony  ehows  that  the  defendant  used 
«aid  sets,  they  will  find  for  the  plaintiffs":  3.  "If  the  evi- 
dence shows  that  the  onion  seta  delivered  to  defendant  did  not 
•come  up  to  warranty  expressed  or  implied,   the  defendant 
must  rescind  by  an  offer  to  return  the  article  in  a  reasonable 
time  after  discovery  of  the  defects,  and  if  he  failed  to  rescind, 
you  will  find  for  the  plaintiffs";  4.  *'The  defendant  must  act 
with  promptness  when  he  discovers  that  the  property  was  not 
such  as  was  cont^nplated  and  offef  to  return  it.    If  he  neg- 
lects to  do  so  immediately  upon  discovering  a  breach  of  war- 
ranty or  fraud  and  keeps  it  and  treats  it  as  his  own,  as  by 
offering  to  sell  it,  he  cannot  reject  the  contract  and  is  liable"; 
5.  ''If  the  eTidence  shows  that  the  defendant  accepted  the  goods 


KoT.  1901.]  Fbith  a  Co.  v.  Hollav.  65 

bj  using  them  as  his  ovm  by  selling  tbem^  it  is  immsterisl 
▼bether  any  of  tbe  goods  were  returned  by  the  persons  to  whom 
Hollsn  had  sold  them,  or  whether  he  sold  them  at  a  reduced 
price  or  lost  half.''  There  was  a  judgment  for  the  defendant. 
The  plaintiffs  appeal^  assigning  as  error  the  refusal  to  give 
the  charges  requested. 

Worthy  &  Gardner,  for  the  appellant 

Foster,  Samford  &  Carroll,  for  the  respondent. 


TYSON,  J.  This  action  was  brought  to  recorer  the 
balance  claimed  to  be  due  on  the  purchase  price  of  onion  sets 
sold  by  plaintiffs  to  defendant.  The  sale  of  the  sets  was  at 
Troy,  Alabama,  to  the  defendant  as  a  merchant  and  by  descrip- 
tion. When  delivered  they  were  in  bad  condition,  much  of 
them  being  unmerchantable.  In  such  case  there  is  an  implied 
warranty  that  the  sets  delivered  shall  not  only  answer  the  de- 
scription, but  that  they  shall  be  salable  or  merchantable: 
Gadiet  v.  Warren,  72  Ala.  292 ;  15  Am.  &  Eng.  Ency.  of  Law, 
2d  ed.,  1229.  The  defendant  upon  discovery  of  the  condition 
of  &e  seto  had  the  right  to  rescind  the  sale  within  a  reason- 
able time  and  return  them;  or  retain  them  and  avail  himself 
of  the  damage  he  had  suffered,  either  by  bringing  his  cross- 
action  for  the  breach  of  warranty,  or  to  prove  their  real  value 
and  abate  the  recovery  pro  tanto:  Brown  v.  Freeman,  79  Ala. 
410;  Eagan  v.  Johnson,  82  Ala.  233,  2  South.  302;  Young  v. 
Amtze  Bros.,  86  Ala.  116,  5  South.  253;  15  Am.  &  Eng.  Ency. 
of  Law,  2d  ed.,  1255;  Benjamin  on  Sales,  Bennett's  7th  ed., 
965. 

There  is  no  evidence  in  the  record  tending  in  the  remotest 
degree  to  support  the  theory  that  the  sale  counted  on  was  by 
inspection  and  not  by  description.  Under  the  evidence,  it  was 
a  question  for  the  jury  to  determine  whether  the  price  agreed 
to  be  paid  by  the  defendant  should  be  abated  to  the  extent 
of  the  balance  claimed  by  plaintiff  against  him^ 

It  follows  that  the  affirmative  charge  was  properly  refused 
to  the  plaintiffs.  The  other  charges  requested  by  them  were 
at  variance  with  the  principles  we  have  declared,  and  were  cor- 
rectly refused. 

Affirmed. 


A  Sole  of  Chads  by  a  particular  description  imports  a  warranty  that 
tbey  are  of  tbtit  description:  Northwestern  Cordage  Go.  v.  Bice,  5 
N.  Dak.  432,  63  N.  W.  298,  57  Am.  St.  Bep.  563,  and  cases  cited  in 
the  eroM-referenee  note  thereto.    Bnt  see  Waeber  v.  Talbot,  167  N. 


66  Amemoan  State  Reports,  Vol.  91.    [Alabama, 

Y.  48,  82  Am.  St^  Bep.  712,  60  N.  E.  288;  MeCaa  v.  Elam  Drug:  Co.^ 
114  Ala.  74,  62  Am.  St.  Bep.  88,  21  South.  479;  Warren  v.  Buck,  71 
Vt.  44,  76  Am.  St.  Bep.  754,  42  Atl.  979.  If  goods  sold  by  deacrip- 
tioD  do  not  correspond  "with  the  warranty,  the  vendee  may  either 
reject  them,  or  receive  them  and  rely  on  the  warranty;  and  he  may 
bring  an  action  to  recover  damages  for  breach  of  the  warranty,  or 
set  up  a  counterclaim  for  such  damages  in  an  action  brought  for 
the  purchase  price:  Northwestern  Cordage  Go.  v.  Bice,  6  N.  I>ak. 
482,  67  N.  W.  298,  67  Am.  St  Bep.  563,  and  cases  cited  in  the  croas* 
reference  note  thereto. 


BUSSELL  T.  DAVIS. 

[133  Ala.  647,  31  South.  614.] 

FRAUDtTLEKT  OONVETAKOE.— The  Burden  of  Proof  is  npon 
the  grantee  in  a  conveyance,  assailed  by  a  creditor  as  fraudulent,  to 
show  the  bona  fides  of  the  transaction,    (p.  69.) 

FBAUDUIiENT  OONVETAKOE— Belativefl.— The  fact  that  a 
transaction,  assailed  by  creditors  as  fraudulent,  was  between  par- 
ties nearly  related,  is  a  circumstance  calling  for  closer  scrutiny  than 
if  the  parties  were  strangers,     (pp.  69,  60.) 

FBAUDULEKT  00NVETAN0E8.— Altboiigli  Ctonveyances  are 
Separate,  and  executed  at  different  times,  if  done  in  pursuance  of  a 
common  design  to  defraud,  any  fact  that  vitiates  one  will  foe  visited 
upon  all.    ^p.  60.) 

FBAUDULENT  OONVETAKOE.— If  a  Debtor  Prefers  one  of 

his  creditors  by  conveying  his  entire  estate  to  him,  the  conveyance 
is  void  as  to  other  creditors,  if  the  transfer  is  not  absolute,  without 
benefit  reserved,  if  the  property  is  in  excess  of  the  demand,  if  the 
debt  is  fictitious  in  whole  or  in  part,  or  if  any  cash  consideration 
is  given,     (p.  60.) 

Humes,  Sheffey  &  Speake  and  W.  B.  Francis,  for  tiie  ap- 
pellants. 


McClellan  &  McCIellan  and  J.  H.  Turrentine,  for  the 
spondent. 

^"^  DOWDELL,  J.  The  present  bill  is  that  of  a  creditor 
against  an  insolvent  debtor  and  for  the  purpose  of  setting 
aside  certain  conveyances  made  by  the  debtor  as  being  fraudu- 
lent as  to  creditors,  and  in  this  connection  to  have  an  account- 
ing by  the  debtor,  E.  J.  Russell,  with  the  complainant  a6  the 
administrator  of  the  estate  of  Eliza  Lane,  deceased.  The 
equity  of  the  bill  was  determined  by  this  court  on  a  former  ap- 
peal from  the  decree  of  the  chancellor  overruling  the  demurrer 
to  the  bill:  Russell  v.  Garrett,  75  Ala.  348.  The  present  ap- 
peal is  taken  from  a  final  decree  on  a  submission  of  the  cause 


Not.  1901.J  RuBOLL  «.  Davib.  67 

upcm  the  pleadings  and  evidence.  In  this  decree  the  chancd* 
lor,  without  passing  npon  the  nnmeTons  objections  and  excep- 
tions to  testimony  on  both  sides,  and  after  considering  only 
file  competent  and  legal  evidence,  as  stated  in  his  decree,  deter- 
mined that  the  complainant  was  entitled  to  the  relief  prayed 
for  in  the  bilL  By  the  decree  the  following  facta  also  were 
specially  ascertained  from  the  evidence,  viz. :  That  the  respond- 
ent,  E.  J.  Bnssell,  was  indebted  to  Eliza  Lane  at  and  before 
the  time  of  the  alleged  fraudulent  transfers,  and  to  the  com- 
plainant as  the  administrator  of  her  estate,  at  the  time  of 
the  filing  of  the  bill ;  and  that  the  transfers  and  conveyances 
made  by  the  debtor  from  the  first  day  of  January  to  the  sev- 
enth day  of  February,  1882,  ae  alleged  in  the  bill  were  fraudu- 
lent and  void  as  to  creditors,  and  also  that  the  said  E.  J. 
Russell  was  insolvent  at  the  time  of  the  said  alleged  transfers 
and  conveyances  of  his  property-  The  decree  then  directed  •** 
.  a  reference  to  the  register  to  ascertain  the  amotm^t  of  the 
complainant's  debt,  and  also  the  description  and  value  of  the 
property  so  transferred  and  conveyed,  which  the  decree  con- 
demned for  the  satisfaction  of  said  indebtedness. 

The  assignments  of  error  go  to  the  chancellor's  conclusions 
as  to  the  facts  from  the  evidence. 

The  principles  of  law  applicable  to  the  present  case  are 
I^ain  and  practically  free  from  difficulty;  indeed,  there  is 
little  or  no  controversy  as  to  the  law  governing  the  main  issues 
in  tiie  case.  The  testimony  taken  in  the  case  is  voluminous, 
covering  over  a  thousand  pages  of  the  transcript.  The  objec- 
tions and  exceptions  to  evidence  on  both  sides  are  numerous, 
and  much  of  the  same  is  subject  to  objection  for  being  either 
illegal,  incompetent,  or  irrelevant.  We  concur  with  the  chan- 
cellor in  the  sngc^estion  as  to  the  time  it  would  take  to  enter 
upon  a  discussion  of  the  objections  to  the  evidence;  besides, 
it  would  extend  this  opinion  into  many  pages  without  subserv- 
ing any  beneficial  end.  We  have  given  the  whole  of  this  tes- 
timony a  careful  reading,  and  after  eliminating  the  illegal 
and  considering  that  which  is  legal,  will,  in  dealing  with  the 
({oestions  involved,  undertake  only  to  state  our  conclusions 
as  to  the  facta  drawn  from  the  evidence. 

The  first  question  of  fact  presented  for  consideration  is  that 
of  indebtedness  from  the  respondent,  E.  J.  Kussell.  to  the 
comphunant,  as  administrator  of  the  estate  of  Eliza  Lane,  de- 
ceased. The  chancellor  in  his  decree  determined  from  the 
evidence  the  existence  of  an  indebtedness,  without  ascertain- 


58  AxxBiOAH  Statb  Bsfoksb,  Vol.  91,    [Alaba]na» 

ing  the  amcunt,  but  referred  the  qneetioa  of  amount  to  the 
register.    The  appellants  assign  this  finding  of  fact  by   the 
dianoeUor  as  error^  insisting  that  on  the  evidence  the  re8p<»nd- 
enty  E.  J.  Bnsselly  was  and  is  a  creditor  of  said  estates^  and 
not  a  debtor.    On  this  question  of  indebtedness  the  burden 
of  proof  was  on  the  complainamt    It  is  a  conceded  fact  thai 
the  said  E.  J.  Bnssell  was  the  agent  of  the  said  Eliza  Lane 
from  some  tame  in  the  early  spring  of  1881  xmtil  her  death, 
on  May  16^  1882^  in  letting  out  and  collecting  the  rent  on 
several  plantations  in  the  county  ^^^^  of  Limestone;^  and  look- 
ing after  the  repairs  on  said  plantations^  and  also  in  advancing 
supplies  to  tenants  on  the  plantations  enabling  them  to  grow 
crops  on  the  same,  on  the  credit  and  responsibility  of  Mrs. 
Lane,  the  said  agent  being  at  the  time  engaged  in  the  busi- 
ness of  a  merchant  in  the  town  of  Athens^  and  realizing  the 
profits  on  such  advances.    The  said  E.  J.  Bussell  offered  in 
evidence  a  statement  of  his  account  as  such  agent,  with  credits 
and  debits,  showing  a  balance  in  his  favor  of  something  over 
six  hundred  dollars.    Without  attempting  to  ascertain  or  show 
the  amount  of  the  said  Bussdl's  indebtedness,  a  matter  to  be 
hereafter  determined  under  the  decree  of  referenoe,  we  need 
only  to  advert  to  one  item  contained  in  said  account  and  the 
evidence  relating  thereto  to  satisfy  us  of  the  correctness  of 
the  chancellor's  finding  of  the  fact  of  said  Bussell's  indebted- 
ness to  said  estate.    In  this  account  he  credits  himself  with 
the  sum  of  tmo  thousand  dollars  for  his  services  rendered  as 
such  agent    There  is  no  pretense  of  any  contract  or  agreement 
between  him  and  his  principal  of  any  stipulated  sum  for  his 
services.    He  simply  daims  the  scyjne  as  reasonable  compensa^ 
tion  for  services  rendered  and  offered  evidence  to  that  end. 
The  great  weight  of  the  evidence,  we  think,  satisfactorily  and 
clearly  shows  that  for  the  services  actually  rendered  the  claim 
was  excessive,  and  that  a  fair   and   reasonable   compensation 
would  not  exceed  three  hundred  dollars.    The  amount  of  the  in- 
come in  the  way  of  rents  from  these  plantations  being  about  two 
thousand  five  hundred  dollars,  a  charge  of  two  thousand  dollars 
for  services  rendered,  which  consisted  in  the  main  of  letting  out 
the  lands  and  collecting  the  rents  and  visiting  the  plantations 
three  or  four  times  during  the  year,  is  as  shown  by  the  evi- 
dence palpably  an  inequitable  division  of  the  proceeds  by  the 
agent  with  his  principal.    With  this  item  of  his  account  scaled 
to  what  would  be  fair  and  reasonable  compensation  for  his 
services  as  agent,  as  shown  by  the  great  weight  of  the  evidence. 


Not.  1901.]  Buasiix  v.  Davib. 

Che  fact  of  his  indeUednefls  to  the  complaiiuual  ii  put  beyond 
doubt  Bvty  in  addition  to  this^  there  ie  the  testimony  of  ser*- 
eral  disinterested  witnesses  to  Ub  ^^  admission  of  an  indebt- 
edness to  the  estate  of  Mrs.  Lane,  made  by  him  in  conversa- 
tion with  these  witnesses  at  different  times  soon  after  the 
death  of  Mrs.  Lane. 

The  next  assignment  of  error  in  the  decree,  like  the  first, 
relates  to  the  finding  of  a  fact,  yiz.,  fraud  in  the  transfers  and 
conveyances  of  his  property  by  the  eaid  E.  J.  Biissell  to  his 
several  brothers  from  the  Ist  of  January  up  to  and  indnding 
the  seventh  day  of  February,  following.  The  making  of  the 
several  transfers  and  conveyances  to  his  brothers  by  the  said 
respondent,  E.  J.,  assailed  by  the  bill  is  not  denied,  but  it  is 
claimed  by  the  respondents  that  these  conveyances  and  trans- 
fers of  his  property  were  made  in  good  faith  and  in  payment 
of  a  pre-existing  indebtedness  of  the  said  E.  J.,  to  eadi  of  the 
several  grantees.  The  existence  of  a  debt  to  the  complaining 
creditor  being  shown,  the  conveyances  by  the  debtor  being  ad- 
mitted, the  burden  of  proof  is  upon  the  grantees  in  the  con- 
veyances assailed  as  fraudulent,  to  show  the  bona  fides  of  the 
transactions.  This  proposition  of  law  is  too  familiar  to  re- 
quire elaboration  in  argument,  and  as  for  authorities  we  con- 
tent ourselves  by  referring  to  those  cited  in  brief  of  appellee's 
oounficL 

That  the  respondent,  E.  J.  Bussell,  was  insolvent  during 
the  period  of  time  from  January  1  to  February  7,  1882,  cov- 
ering the  conveyances  attacked  by  the  bill  and  held  fraudulent 
by  the  chancellor,  we  think  the  evidence  clearly  establishes. 
Counsel  for  appellant  concede  in  argument  that  during  this 
time  he  was  being  harassed  by  some  of  his  creditors  and  was 
financially  embarrassed.  The  grantees  in  the  alleged  fraudu- 
lent conveyances  were  the  brothers  of  the  grantor,  the  embar- 
rassed and  failing  debtor,  and  that  they  knew  of  his  insolvency, 
we  think,  under  the  evidence,  is  beyond  doubt.  They  were 
intimate  as  brothers,  and  had  frequent  interviews  and  con- 
sultations during  the  time  covering  the  making  of  the  alleged 
fraudulent  transfers.  Two  of  the  brothers  were  at  the  time 
in  the  emplojrment  of  the  grantor,  and  another  had  his  office 
in  the  store  where  the  grantor  carried  on  his  merchandise  busi- 
nessw  In  determining  the  bona  fides  of  a  transaction  ^^  as- 
sailed as  fraudulent,  the  fact  that  such  transaction  was  had  be- 
tween parties  nearly  related  is  a  circumstance  which  naturally 
calls  for  closer  scrutiny  than  where  the  transaction  is  between 


60  Akerioak  State  Bepobts^  Vol.  91.    [Alabama, 

strangers.    In  the  present  case  the  transfers  of  his  property  by 
the  said  E.  J.  Bussell  to  his  several  brothers,  when  taken  in 
the  aggregate,  amounted  to  about  ten  thousand  dollars,  and, 
outside  of  his  exemptions,  embracing  substantially  all  of  his 
visible  tangible  assets.    That  it  was  the  purpose  of  B.  J.  Bus- 
sell  in  making  these  transfers  of  his  property  to  hinder,  delay,, 
and  defeat  other  creditors  in  the  collection  of  their  debts,  we 
think  the  evidence  establishes  beyond  question,  and  our  con- 
clusion from  the  evidence  is,  that  his  brothers,  the  grantees, 
shared  in  this  purpose.    The  evidence,  in  our  opinion,  war- 
ranted the  conclusion  reached  by  the  chancellor  of  the  exist- 
ence of  a  common  purpose  on  the  part  of  the  debtor  and  the 
grantees  respondents  in  the  bill,  to  defeat  the  creditors  of  the 
said  E.  J.  Bussell,  and  such  being  the  case,  the  several  con- 
veyances, which  were  made  in  the  months   of   January  and 
February,  1882,  though  separate  as  to  the  several  grantees  and 
made  at  different  times  will  be  regarded  and  treated  as  a  single 
transaction.    And  although  the  conveyances  are  separate,  and 
executed  <m  different  dates,  if  done  in  pursuance  of  a  purpose 
common  to  the  grantor  and  the  grantees  to  defraud,  any  fact 
that  would  vitiate  any  one  of  said  conveyances  as  fraudulent 
would  be  visited  upon  all.    Throughout  these  transactions  from 
the  1st  of  January  to  the  7th  of  February,  on  which  latter 
date  the  last  of  his  visible  assets,  consisting  of  his  stock  of 
merchandise  in  his  Athens  store,  was  conveyed  in  bulk,  the  evi- 
dence discloses  many  circumstances  denominated  in  the  books 
as  badges  of  fraud.    But  it  is  insisted  that  these  transfers  of 
his  property  by  the  debtor  to  the  respective  brothers  were  made 
in  satisfaction  and  payment  of  antecedent  bona  fide  debts  due 
and  owing  by  him  to  the  said  grantees,  and  for  that  reason  the 
conveyances  should  be  upheld  regardless  of  the  intent  or  motive. 
At  the  time  of  the  making  of  these  conveyances,  which  was 
prior  to  the  enactment  of  the  present  statute  •^^  (Code  1896, 
sec.  2158),  a  debtor,  though  in  failing  circumstances  or  in- 
solvent, had  the  right  to  prefer  one  or  more  of  his  creditor? 
over  others  to  the  extent  of  conveying  his  entire  estate,  and 
to  the  end  of  defeating  such  other  creditors  in  the  collection 
of  their  debts.    But  even  then,  to  support  such  conveyance, 
the  same  must  have  been  absolute,  and  without  reservation 
of  any  benefit  to  the  grantor;  the  debt  or  demand  a  bona  fide 
pre-existing  debt;  the  property  conveyed,  on  a  fair  and  reason- 
able valuation,  not  unreasonably  excessive  of  the  demand.    On 
the  other  hand,  if  the  conveyance  was  not  absolute,  or  benefit: 


Nov.  1901.]  BussBLL  V.  Davis.  61 

reserved,  or  if  the  property  conveyed  was  malerially  in  ezcess 
of  the  demand,  or  if  the  debt  was  simulated  or  fictitious  in 
whole  or  in  part,  or  if  the  purchasing  creditor  gave  in  part 
any  cash  consideration  in  obtaining  the  conveyance,  it  ren- 
dered the  same  void  as  to  other  creditors.    When  tested  by 
these  principles,  the  burden  resting  upon  the  respondents  to 
show  by  clear  and  satisfactory  proof  the  bona  fides  of  the 
transactions  assailed,  we  are  unable  from  all  of  the  evidence 
to  say  that  the  burden  has  been  discharged.    As  to  the  ques- 
tion of  indebtedness  to  the  respective  grantees,  in  support  of 
the  testimony  of  the  grantor  and  each  of  the  grantees  as  to  his 
particular  debt,  the  books  of  the  debtor  grantor  were  offered 
in  evidence  to  show  the  amount  and  that  the  debt  was  an  an- 
tecedent debt.    The  entries  in  the  debtor's  books  relative  to 
the  indebtedness  showed  very  suspicious  irregularities  as  to 
debts  and  in  the  order  in  which  they  were  made,  and  also  con- 
tained evidence  of  a  number  of  erasures.    This  evidence  tended 
very  materially  to  weaken  the  testimony  of  the  grantor  and 
the  grantees  as  to  the  bona  fide  existence  of  the  alleged  indebt- 
edness.    There  is  also  other  evidence  which  throws  suspicion 
on  the  alleged  claims  of  one  or  more  of  the  grantees.    There  is 
likewise  evidence  which  shows  a  reservation  to  the  grantor  in 
the  transfer  of  some  of  his  assets,  or  a  pretended  and  not  an 
absolute  transfer.    The  evidence  shows  the  grantor,  subsequent 
to  the  alleged  transfers,  in  the  possession  of  choses  in  action 
trying  to  collect  the  same.    There  is  also  evidence  going  to  show 
during  •**  the  time  covering  the  transactions  assailed  in  the 
bill  transfer  and  sale  by  the  debtor  to  one  of  the  grantees  of 
choses  in  action  for  a  present  cash  consideration.    Besides  the 
circumstances  adverted  to  above,  there  are  others  shown  in  the 
evidence  relative  to  the  actions,  conduct,  and  statements  by  the 
said  E.  J.  Bussell  and  his  said  brothers,  which,  taken  in  connec- 
tion with  what  we  have  mentioned,  go  not  only  strongly  to  show 
a  common  design  on  the  part  of  the  grantor  and  grantees  to 
defeat  other  creditors  in  the  collection  of  their  debts,  but  also 
to  impeach  the  bona  fides  of  the  alleged  indebtedness  of  the 
grantor  to  the  several  grantees.    To  say  the  least  of  it,  the  evi- 
dence of  the  respondents,  in  face  of  so  many  suspicious  circum- 
Btances  disclosed,  falls  short  of  that  clear  and  satisfactory  proof 
required  under  the  law  and  necessary  to  satisfy  a  court  of  equity 
of  that  good  faith  in  the  transaction  between  persons  so  inti- 
mately and  nearly  related  when  assailed  for  a  fraud.     On  ac- 
count of  the  number  of  witnesses  examined,  the  wide  range 


62  j&MEBiOAN  Statb  Bepobts^  Yol.  91.     [Alabama. 

taken  in  the  testimony^  and  the  Toluminousness  of  the  evidence, 
we  haye  felt  justified  in  this  opinion  in  referring  to  it  in  a  gen- 
eral way.  And  OUT  conclusion  from  the  whole  evidence  is^  that 
the  decree  of  the  chancellor  is  free  from  error^  and  is  here  af- 
firmed. 

McClellan^  C.  J.,  not  sitting. 


A  D^tor  in  Fatting  Circumstances  May  Prefer  one  creditor  to  ib« 
exelnsion  of  others:  Shibler  v.  Hartley,  201  Pa.  St.  286,  50  Atl.  950, 
88  Am.  8t.  Bep.  811,  and  eases  cited  in  the  cross-referenee  note 
thereto.  To  impeach  the  transaction,  there  must  be  evidence  of  som^ 
benefit  to  the  debtor  beyond  the  discharge  of  his  obligation,  or  some 
benefit  to  the  creditor  beyond  the  payment  of  his  debt,  or  some  in- 
jury to  other  creditors  beyond  mere  postponement  of  the  debt  pre- 
ferred: Snayberger  v.  Fahl,  195  Pa.  St.  336,  78  Am.  St.  Bep.  818,  45 
Atl.  1065. 

In  an  Attack  upon  a  Fraudulent  Conveyance,  the  burden  of  proof  to 
establish  the  validity  of  the  transaction  is  generaUy  upon  the  de- 
fendant: See  Wooten  ▼.  Steele,  109  Ala.  563,  55  Am.  St.  Bep.  M7, 
19  South.  972;  Bank  of  Colfax  ▼.  Bichardson,  34  Or.  518,  75  Am. 
St  Bep.  664,  54  Pac.  359;  Cottingham  ▼.  Greely-Bamham  Qroeery 
Co.,  129  Ala.  200,  87  Am.  St.  Bep.  58,  30  South.  560;  Ames  t.  Borrob, 
76  Miss.  187,  71  Am.  St.  Bep.  522,  23  South.  768.  But  see  Sabin 
V.  Columbia  Fuel  Co.,  25  Or.  15,  42  Am.  St.  Bep.  756,  34  Pac.  692; 
Butler  y.  Thompson,  45  W.  Ya.  660,  72  Am.  St.  Bep.  838,  81  8.  E.  960. 
When  the  parties  to  the  conveyance  are  relatives,  they  are  held  to 
a  stricter  proof  of  its  bona  fides  than  if  they  were  strangers:  Butler 
▼.  Thompson,  45  W.  Va.  660,  72  Am.  St.  Bep.  838,  31  S.  E.  960.  But 
fraud  win  not  be  imputed  to  the  parties  because  of  the  relationship 
alone:  Conry  ▼.  Benedict,  108  Iowa,  664^  75  Am.  St.  Bep.  282,  76  N. 

▼»•  o40« 


OASES 


SUPREME   COURT 

ARKANSAS. 


EX  PARTE  FOOTE. 

^70  Ark.  12,  05  S.  W.  706.] 

NUiaAKOBB— Power  of  MimieliMd  Ctorporattons  to  DodMO 
What  are. — Under  a  statute  authorizing  munieipal  corporations  to 
prevent  annoyances  within  their  limits  from  anything  dangerous,  of- 
fensive, or  unhealthy,  and  to  cause  nuisances  to  be  abated,  they  have 
power  to  prevent  and  abate  nuisances,  but  not  to  declare  anything 
to  be  a  nuisance  which  is  not  so  in  fact.     (p.  65.) 

HTJISANCBS.— A  Loud,  IMsagreeable  Noise  may  create  a  nui- 
flance,  and  be  the  subject  of  an  action  at  law  for  damages,  or  a  suit 
iix  equity  for  an  injunction,  or  of  an  indictment  as  a  public  offense. 
(PL  66.)  -'.  -^ 

KTJIflAKCBS.— The  Keeping  of  a  Jackass  Within  the  Limits 
of  a  Munieipal  Corporation  may  by  it  be  declared  to  be  a  nuisance^ 
and  punishable  as  such.     (p.  67.) 

HABEAS  OOBPI78. —Under  This  Wtit  Nothing  WiU  be  Inanired 
Into  if  the  Prosecntor  is  in  Onstody  Under  Process,  except  the  validity 
of  the  process  on  its  face  and  the  jurisdiction  of  the  court  issuing  it. 
(p.  67.) 

J.  L.  Patterson^  for  the  petitioner. 

J.  Emmett  Smith  and  George  W.  Williams,  for  the  town  of 
Wynne. 

^  BATTIJB,  J.  W.  R.  Poote  was  accused  and  conyicted  in 
tbe  mayor^B  court  of  the  town  of  Wynne,  in  this  state,  of  a  yio- 
Iition  of  section  2  of  the  following  ordinance : 

*^  it  ordained  by  the  town  council  of  the  incorporated  town 
of  Wynne,  Arkansas: 

'^Section  1.  It  shall  be  unlawful  for  any  person  to  stand  any 
stallion  or  jackass,  for  the  purpose  of  foaling  mares,  within  the 
limits  of  the  incorporated  town  of  Wynne. 

<«8) 


64  American  Statb  Bepobts^  Vol.  91.     [Arkansas, 

''Sec.  2.  The  keeping  of  any  jackass  within  the  limits  of  said 
town^  in  the  hearing  distance  of  the  populace  of  said  town,  ia 
hereby  declared  a  nuisance,  and  is  hereby  made  unlawful. 

"Sec.  3.  Any  person  violating  the  provisions  of  sections  1 
and  2  of  this  ordinance  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  fined  in  any  sum  not  less 
than  ten  nor  more  than  twenty-five  dollars,  and  each  day  tliat 
the  provisions  of  either  sections  1  or  2  are  violated  shall  consti- 
tute a  separate  offense. 

''Sec.  4.  All  ordinances  in  conflict  with  this  ordinance  are 
hereby  repealed,  and  this  ordinance  shall  be  in  force  and  take 
effect  from  and  after  its  passage  and  publication.  Approved 
May  9,  1901.** 

The  court  adjudged  that  he  pay  a  fine  of  ten  dollars  and  the 
costs  of  the  prosecution,  and,  failing  to  do  so,  the  marshal  of  the 
town  took  him  into  custody.  He  thereupon  applied  to  the  Hon- 
orable E.  D.  Robertson,  chancellor  of  the  fifth  chancery  district 
of  Arkansas,  for  a  writ  of  habeas  corpus,  alleging  in  his  petition 
that  his  detention  and  restraint  by  the  marshal  were  unlawful 
and  wrong  for  the  following  reasons:  "1.  That  the  passage  of 
said  sections  2  and  3  of  the  ordinance  aforesaid  was  ultra  vires ; 
2.  That  said  sections  2  and  3  of  the  said  ordinance  are  null  and 
void,  and  same  are  of  no  effect ;  3.  That  said  sections  2  and  3 
of  said  ordinance  being  ultra  vires,  invalid,  null  and  void,  the 
said  mayor  has  no  jurisdiction  to  render  the  judgment  afore- 
said.** 

Tlie  marshal  responded  by  admitting  that  he  held  the  peti- 
tioner **  in  custody  as  alleged.  Upon  a  hearing,  no  evidence 
being  adduced,  the  chancellor  denied  the  prayer  of  the  petition. 
Was  the  ordinance  void? 

The  statutes  of  this  state  invest  municipal  corporations  with 
the  "power  to  prevent  injury  or  annoyance  within  the  limits  of 
the  corporation  from  anything  dangerous,  offensive  or  un- 
healthy, and  to  cause  any  nuisance  to  be  abated  within  the  juris- 
diction given  to  the  board  of  health** — ^that  is  to  say,  within  the 
corporate  limits  and  one  mile  beyond;  and  to  make  and  publish 
such  bv-laws  or  ordinances  as  to  them  shall  seem  necessarv  to 
carry  into  effect  this  power,  and  as  may  be  "necessary  to  provide 
for  the  safety,  preserve  the  health,  promote  the  prosperity  and 
improve  the  morals,  order,  comfort  and  convenience  of  such  cor- 
porations and  the  inhabitants  thereof*:  Sandel  &  Hiirs  Digest, 
sees.  5132,  5145,  5147. 


1^0?.  1901.]  Sz  PARTS  Foots.  65 

These  statutes  endow  municipal  corporations  with  power  to 
*  prevent  and  abate  nuisances,  bnt  they  do  not  authorize  the  decla- 
ration of  anything  to  be  a  nuisance  which  is  not  so  in  fact :  Town 
of  Arkaddphia  t.  Clark,  52  Ark.  23, 20  Am.  St.  Eep.  154,  11  S. 
W.  957;  Yates  v.  Milwaukee,  10  Wall.  497;  1  Dillon  on  Munici- 
pal Corporations,  4th  ed.,  sees.  374,  379. 

'*The  authority  to  prevent  and  abate  nuisances,"  says  Judge 
Dillon,  "is  a  sufficient  foundation  for  ordinances  to  suppress  and 
prohibit  whatever  is  intrinsically  and  inevitably  a  nuisance. 
The  authority  to  declare  what  is  a  nuisance  is  somewhat  broader; 
but  neither  this  nor  the  general  authority  mentioned  in  the  last 
preceding  sentence  will  justify  the  declaring  of  acts,  avocations, 
or  structures  not  injurious  to  health  or  property  to  be  nuisances. 
Much  must  necessarily  be  left  to  the  discretion  of  the  municipal 
authorities,  and  their  acts  will  not  be  judicially  interfered  with 
unless  they  are  manifestly  unreasonable  and  oppressive,  or  tm- 
warrantably  invade  private  rights,  or  clearly  transcend  the  pow- 
ers granted  to  them ;  in  which  case  the  contemplated  action  may 
be  prevented  or  the  injuries  caused  redressed  by  appropriate 
snit  or  proceedings'':  1  Dillon  on  Municipal  Corporations,  4th 
ed.,  sec.  379.  Again  he  says:  '^This  authority  [the  power  to 
prevent  and  abate  nuisances]  and  its  summary  exercise  may  be 
constitutionally  conferred  on  the  incorporated  place,  and  it  au- 
thorizes its  council  to  act  against  that 'which  comes  within  the 
legal  notion  of  a  nuisance ;  but  such  power,  conferred  in  general 
terms,  cannot  be  taken  to  authorize  the  extrajudicial  condemna- 
tion and  destruction  of  that  as  a  nuisance  which  in  its  nature, 
situation,  or  use  is  not  such" :  1  Dillon  on  Municipal  Corpora- 
tions, 4thi  ed.,  sec.  374. 

**  In  Wood  on  Nuisances  it  is  said :  *'A  nuisance,  in  the  ordi- 
nary sense  in  which  the  word  is  used,  is  anything  that  produces 
an  annoyance  anything  that  disturbs  one  or  is  offensive ;  but  in 
legal  phraseology  it  is  applied  to  that  class  of  wrongs  that  arise 
from  the  unreasonable,  unwarrantable  or  unlawful  use  by  a  per- 
son of  his  own  property,  real  or  personal,  or  from  his  own  im- 
proper, indecent  or  unlawful  personal  conduct  working  an  ob- 
struction of,  or  injury  to,  a  right  of  another  or  of  the  public, 
and  producing  such  material  annoyance,  inconvenience,  discom- 
fort or  hurt  that  the  law  will  presume  a  consequent  damage'' :  1 
Wood  on  Nuisances,  3d  ed.,  sec.  1. 

The  same  author  says:  ^'Nuisances  are  either  public  or  pri- 
vate. Public  nuisances,  strictly,  are  such  as  result  from  the  vio- 
lation of  public  rights,  and  producing  no  special  injury  to  one 

Ab.  St.  Rep.,  Vol.  91—5 


66  Akebioan  State  Beports^  Vol.  91.    [Arkansas^ 

more  than  anoflier  of  the  people,  may  be  said  to  have  a  commoir 
effect,  and  to  produce  a  common  damage.  Of  this  class  are 
those  intangible  injuries  that  result  from  the  immoral,  indecent 
and  unlawful  acts  of  parties  that  become  nuisances  by  reason 
of  their  deleterious  influences  upon  the  morals  or  veil-being  of^ 
society*' :  1  Wood  on  iN'uisances,  3d  ed.,  sec.  14. 

There  are  two  kinds  of  public  nuisances.  One  is  that  class 
of  aggravated  wrongs  or  injuries  which  affect  the  ''morality  of 
mankind,  and  are  in  derogation  of  public  morals  and  decency,^ 
and,  being  malum  in  se,  are  nuisances  irrespective  of  their  loca- 
tion and  results.  The  other  is  that  class  of  acts,  exercise  of  oc* 
cupations  or  trades,  and  use  of  property  which  become  nuisancer 
by  reason  of  their  location  or  surroundings.  To  constitute  a 
nuisance  in  the  latter  class,  the  act  or  thing  complained  of  must 
be  in  a  public  place,  or  so  extensive  in  its  consequences  as  to 
have  a  common  effect  upon  many,  as  distinguished  from  a  few. 
Where  it  is  in  a  city  or  town,  where  many  are  congregated  and 
have  a  right  to  be,  and  produces  material  annoyance,  incon- 
venience, discomfort,  or  injury  to  the  residents  in  the  vicinity^ 
it  is  a  public  nuisance  of  the  latter  class. 

It  is  said  in  Wood  on  Nuisances:  ''Many  kinds  of  business 
that  would  be  regarded  as  a  nuisance  upon  a  street  that  ia 
densely  populated  and  ipuch  traveled,  or  that  is  occupied  for 
business  purposes  of  such  a  character  as  naturally  make  it  what 
is  called  a  thoroughfare,  would  not  be  such  upon  a  less  populooa 

street,  or  one  that  is  not  so  much  used  by  the  public 

Thus,  a  blacksmith-shop  would  not  for  a  moment  be  tolerated 
upon  a  principal  street  of  a  city  in  the  vicinity  of  costly  build- 
ings and  fashionable  ^^  business  places,  except  it  were  kept  up 
and  maintained  in  a  way  so  as  to  produce  no  possible  annoyance 
or  injury;  but,  from  the  needfulness  of  the  business,  it  is  toler- 
ated upon  streets  in  less  important  parts  of  the  city,  and  the 
smoke  and  cinders  arising  therefrom,  as  well  as  the  noisy  rever- 
berations from  the  heavy  strokes  of  the  sledgehammers  on  its 
numerous  anvils  in  the  prosecution  of  the  business,  is  permitted^ 
even  without  the  aid  of  special  ordinances'^ :  1  Wood  on  Nui- 
sances, sec.  21. 

It  is  now  well  settled  that  "loud,  disagreeable  noise  alone,  un- 
accompanied with  smoke,  noxious  vapors  or  noisome  smells, 
may  create  a  nuisance,  and  be  the  subject  of  an  action  at  law  for 
damages,  in  equity  for  an  injunction,  or  of  an  indictment  as  a 
public  offense":  1  Wood  on  Nuisances,  i?ec.  611.  "Any  indecent 
exposure  of  one's  person  in  a  public  place,  in  the  presence  of 


Not.  1901.]  Bx  pabtb  Foots.  67 

^yeral  persons^  is  a  public  nuisance^  .  •  •  .  because  it  shocks 
the  moral  sensibilities^  outrages  decency^  and  is  offensive  to  those 
feelings  of  chastity  that  people  of  ordinary  respectability  en- 
tertain** :  1  Wood  on  Nuisances,  sec.  67.  So,  for  the  same  rea- 
9cm,  the  ezhibiti0n  in  public  of  obscene  pictures,  prints,  books 
or  devices  are  common  nuisances:  1  Wood  on  Nuisances^  sees. 
65,  68. 

In  Nolin  v.  Mayor  etc.,  4  Tcrg.  163,  the  act  incorporating 
the  town  of  Franklin  authorized  the  city  council  to  enact  and 
pass  laws  to  prevent  and  remove  nuisances.  A  law  was  passed 
by  the  council  inflicting  a  penalty  of  five  dollars  on  any  person 
who  exhibited  a  stud  horse  in  the  town.  The  court  said :  '^as 
this  a  nuisance  within  the  meaning  of  the  act  of  incorporation? 
Keeping  hogs  in  a  market  town  has  been  so  holden  (Salk.  460)  ; 
as  are  ale-houses,  gaming-houses,  brothels,  booths  and  stages 
for  rope-dancers,  mountebanks  and  the  like :  1  Hawkins'  Pleas 
of  tiie  Crown,  c.  75,  sec.  6.  The  exhibition  of  these  in  the 
streets  would  be  clearly  a  nuisance;  and  we  think  as  certainly 
showing  and  keeping  a  stud  horse  in  the  town  is.  The  corpora- 
tion law  was  warranted  by  the  charter.^' 

As  a  rule,  a  jack  is  kept  for  one  purpose  only,  and  that  is, 
tbe  propagation  of  his  own  species  and  mules.  He  has  a  loud, 
discordant  bray,  and,  as  oounsel  say,  frequently  ''makes  himself 
heard,  regardless  of  hearers,  occasions  or  solemnities.**  He  is 
not  a  desirable  neighbor.  The  purpose  for  which  he  is  kept,  his 
frequent  and  discordant  brays,  and  the  association  connected 
with  him  bring  the  keeping  of  him  in  a  populous  city  or  town 
''within  the  legal  notion  of  a  nuisance.**  So  far  as  the  facts 
appear  to  ns,  section  2  of  the  ordinance  in  question  is  valid. 

*^  In  this  case  we  cannot  inquire  into  the  regularity  of  the 
piooeedings  of  the  mayor's  court  The  writ  of  habeas  corpus 
cannot  be  legally  converted  into  a  writ  of  error.  "The  great 
object  of  the  writ  is  the  liberation  of  those  who  may  be  im- 
prisoned without  sufficient  cause,  and  to  deliver  them  from 
imlawful  custody.  It  is  not  the  function  of  this  writ  to  inquire 
into  or  correct  errors.  But  its  object  is  to  require  the  person 
who  answers  it  to  show  upon  what  authority  he  detains  the 
prisoner.  If  the  person  restrained  of  his  liberty  is  in  custody 
^nder  process,  nothing  will  be  inquired  into,  by  virtue  of  the 
writ,  beyond  the  validity  of  the  process  upon  its  face,  and  the 
inrisdictioii  of  the  court  by  which  it  was  issued** :  State  v.  Neel, 
48  Ark.  289,  3  S.  W.  631. 
Judgment  affirmed. 


68  Amerioan  Statb  Bepobts^.  Vol.  91.     [ArkanBai, 

NuUanees.'-VndeT  a  general  grant  of  i>oir6r  over  nuisances,  a  towa 
or  city  may  declare  a  thing  a  naisance  which  in  fact  is  one.  Bat  it 
cannot  declare  that  to  be  a  nuisance  which  is  not  so  in  fact:  Harmison 
V.  Lewistown,  153  111.  313,  46  Am.  St.  Bep.  893,  38  8.  E.  628;  St.  Ijouia 
V.  Heitzeberg,  141  Mo.  375,  64  Am.  St.  Rep.  516,  42  S.  W.  954.  The 
bleating  of  calves  kept  overnight  at  a  slaughter-house,  to  be  killed 
the  next  day,  is  a  nuisance,  and  will  be  enjoined  at  the  auit  of  a 
person  living  near  by:  Bishop  v.  Banks,  33  Conn.  118,  87  Am.  Dec 
197.  And  the  keeping  of  jacks  and  stallions,  and  standing  them  for 
mares  in  plain  view  of  a  dwelling-house,  may  be  prohibited  bjr  ia- 
junction:  Farrell  y.  Cool^  16  Neb.  488,  49  Am.  Bep.  721. 


RUST  LAND  AND  LUMBER  COMPANY  v.  ISOM. 

[70  Ark.  99,  66  S.  W.  434.] 
APPELLATE  PBOOEDUBE— AffldaTit  on  Appeal  Prematura 
Made. — An  afRdavit  that  the  appeal  is  not  taken  for  the  purpose  of 
delay,  but  that  justice  may  be  done,  required  by  the  statutes  of 
Arkansas,  though  made  before  the  judgment  appealed  from  was  ren- 
dered, is  a  substantial  compliance  with  the  statute,  and  the  appeal 
will  not  be  dismissed,     (p.  69.) 

JUBT  TRIAL— Iiistnictions  Not  Applicable  to  tlia  Evidence.— 
An  instruction  that  if  the  jury  find  that  one  under  whom  the  de- 
fendant claims  held  actual,  continuous,  adverse,  and  uninterrupted 
possession  for  more  than  ten  years  before  the  commencement  of  the 
suit,  the  verdict  should  be  for  the  defendant,  is  abstract,  and  con- 
stitutes reversible  error,  when  there  is  no  evidence  of  such  a  holding, 
and  the  undisputed  testimony  shows  that  the  lands  were  wild  and  un- 
occupied,    (p.  70.) 

ADVERSE  P08SE8SIOK,  Taken  Under  a  Oonyeyanee,  Caoiiot 
Extend  Beyond  tlie  Lands  Described  Therein  to  other  lands  mistakenly 
believed  by  the  grantee  to  be  included  in  his  deed,  but  of  which  he 
did  not  take  possession,     (p.  71.) 

EVIDENOE— Duty  of  Oonrt  to  Limit  Effect  of.— The  admission 
of  a  conveyance  of  lands  adjoining  those  upon  which  the  defendant 
had  cut  timber  can  be  justified  only  for  the  purpose  of  showing  an 
honest  misapprehension  of  the  boundary,  and  the  jury  should  be  so 
informed,  and  instructed  that  it  is  not  evidence  of  title  to  lands 
claimed  by  the  plaintiff,  but  not  described  therein,     (p.  71.) 

0ONFU8IOK  OF  GOODS.— If  tbe  Defendant  Outs  Timber  on 

plaintiff's  land  and  converts  it  into  staves,  which  he  mingles  with 
staves  of  his  own,  it  is  not  necessary,  to  entitle  the  plaintiff  to  re- 
cover, that  he  prove  that  the  intermingling  was  with  the  intention 
of  preventing  him  from  identifying  the  staves  cut  from  hia  land, 
(p.  72.) 

BEPLEVIN— Confusion  of  Ooods— When  Does  Kot  Prevent  Be- 
coyery  in. — If  a  defendant  owning  staves  of  the  same  kind,  quality, 
and  value  as  the  plaintiff,  intermingles  them  without  the  fault  of 
the  latter,  so  that  they  cannot  be  separated,  replevin  lies  for  the 
part  owned  by  the  plaintiff,  to  be  taken  out  of  the  mass,  where  no 
advantage  would  result  to  either  by  getting  the  identical  itavee 
owned  by  him.     (p.  73.) 


Jan.  1902.]  Rust  Land  etc.  Ca  v.  Isom.  69 

Action  to  recover  staves  cut  by  the  defendant  on  that  part 
of  section  8,  in  township  16  north,  range  16  west,  lying  west  of 
lake  Grampns.  The  defendant  claimed  to  have  purchased  the 
timber  from  ono  Thornton,  and  was  permitted  to  offer  in  evi- 
dence a  conveyance  under  which  Thornton  claimed  title,  but 
which  did  not  include  any  part  of  the  land  claimed  by  the 
plaintiff,  but  did  embrace  adjacent  lands  in  the  same  section, 
but  on  the  east  side  of  the  lake.  Thornton  as  a  witness  was, 
against  the  objection  of  the  plaintiff,  permitted  to  testify  to  the 
taking  possession  of  the  lands  described  in  the  deed  under  which 
he  claimed  and  to  his  subsequent  possession  of  them,  but  it  was 
admitted  that  the  lands  claimed  by  the  plaintiff  were  wild  and 
nnimproved,  and  were  west  of  the  lake,  while  those  claimed  by 
Thornton  were  east  of  it.  Verdict  and  judgment  for  the  de» 
foidant,  and  the  plaintiff  appealed. 

G.  W.  Norman,  for  the  appellant 

Robert  E.  Craig,  for  the  appellee. 

^^  RIDDICK,  J.    This  is  an  action  of  replevin  brought  by 
the  Bust  Land  and  Lumber  Company  against  G.  W.  Isom  to 
recover  two  thousand  two  hundred  pipe  staves.    The  action  waa 
commenced  before  a  justice  of  the  peace,  who  gave  judgment  in 
favor  of  the  plaintiff,  and  the  defendant  took  an  appeal  to  the 
drcuit  court.     On  the  calling  of  the  case  in  the  circuit  court, 
the  plaintiff  moved  the  court  to  dismiss  the  appeal  for  the  want 
of  a  proper  affidavit.    The  affidavit  for  appeal  made  by  the  de- 
fendant is  in  proper  form,  and  was  filed  on  the  same  day  the 
justice  gave  judgment.    But  the  trial  before  the  justice  of  the 
peace  commenced  on  the  third  day  of  June,  though  the  jndg- 
ment  was  not  rendered  until  next  day.    It  seems  that  the  de- 
fendant, anticipating  an  adverse  decision,  made  the  affidavit  for 
an  appeal  on  the  morning  of  June  3d,  and  left  it  with  his 
attorney,  who  filed  it  after  the  rendition  of  the  judgment  next 
day.    I  am  inclined  myself  to  the  opinion  that  this  affidavit, 
being  made  before  the  rendition  of  the  verdict  and  judgment, 
▼as  premature,  and  feel  doubtful  as  to  its  sufficiency,  but  a 
majority  of  the  judges  are  of  the  opinion  that  the  affidavit, 
though  irregular  in  having  been  made  before  the  judgment, 
wag  a  sub^utial  compliance  with  the  statute  requiring  the  ap- 
plicant for  appeal  "to  make  and  file  with  the  justice  an  affidavit 
that  the  appeal  is  not  taken  for  the  purpose  of  delay,  but  that 
justice  may  be  done/'    Moreover,  our  statute  regulating  appeals 
from  justices  of  the  peace  provides  for  amendments  to  bonds 


70  AxERiOAN  Statb  Bbpobts,  Vol.  91.    [Arkanaa^ 

and  affidayits  execfated  for  fhe  appeal^  ''so  that,''  to  quote  Qtm 
language  of  the  statute,  ''no  such  appeal  shall  be  dismissed  for 
want  of  jurisdiction  because  of  any  defect  in  the  affidavit  or  ob- 
ligation for  the  appeal  or  order  granting  the  appeal,  or  any 
defective  entry  made  or  informal  judgment  rendered'*  by  the 
justice:  Sandel  &  Hill's  Digest,  sec.  4438.  This  provisioii 
evinces  an  intention  of  the  legislature  that  appeals  from  jus- 
tices of  the  peace  should  not  be  dismissed  on  narrow  and  techni- 
cal  grounds,  when  the  applicant  for  the  appeal  has  endeavored 
to  comply  with  the  statute  regulating  the  manner  of  taking  ap- 
peals. Tt  thus  appears  that  there  are  substantial  reasons  in 
favor  of  the  ruling  of  the  circuit  court  that  the  mere  fact  that 
an  affidavit  was  made  a  short  time  before  the  judgment  appealed 
from  was  delivered  did  not  render  it  nugatory,  where  it  was 
filed  after  the  judgment,  and  in  other  respects  conformed  to 
the  ^^^  requirements  of  the  statute.  The  contention  of  ap- 
pellant on  that  point  is  therefore  overruled.    • 

On  the  trial  the  evidence  showed  that  the  defendant,  without 
the  consent  of  the  plaintiffs,  cut  timber  upon  its  land,  and 
converted  it  into  staves.  The  defendant  claimed  that  he  pur- 
chased the  staves  from  one  Thornton.  The  circuit  judge,  at  the 
request  of  the  defendant,  instructed  the  jury  that  if  ThomtoB 
and  those  from  whom  he  claimed  title  '%ad  held  actual,  con- 
tinuous, adverse  and  uninterrupted  possession  of  the  lands  from 
which  the  timber  was  cut  for  more  than  seven  years  before  the 
institution  of  the  suit,  the  verdict  should  be  for  the  defendant.^' 
This  instruction,  to  the  giving  of  which  plaintiff  saved  proper 
exceptions,  was  entirely  abstract.  Thornton  did  not  testify 
that  he  had  ever  held  possession  of  the  lajids  claimed  by  the 
plaintiff.  On  the  contrary,  the  undisputed  testimony  was  that 
those  lands  were  wild  and  unoccupied.  Thornton  did  testify 
that  his  father  took  possession  of  lands  described  in  a  deed  from 
Moon  to  him,  but  that  deed  did  not  purport  to  convey  the  land 
claimed  by  the  plaintiff.  The  only  land  in  section  8  that  such 
deed  purported  to  convey  was  east  of  Lake  Grampus,  and  pos- 
session of  that  land  could  not  affect  the  title  of  plaintiff  to 
lands  west  of  the  lake,  even  though  Thornton  believed  that  his 
deed  covered  that  land  also.  There  was,  as  we  see  it  in  the 
transcript,  no  evidence  whatever  to  justify  the  jury  in  finding 
that  Thornton  had  title  to  the  land  claimed  by  plaintiff,  on 
which  the  timber  was  cut,  by  statute  of  limitation  or  otherwise, 
and  that  question  should  not  have  been  submitted  to  them  for 
decision.    The  testimony  of  Thornton  that  his  father  and  he 


Jail19Q2.]         ButT  Laiip  bto.  Co.  «•  laoic  71 

Isid  hdd  adverse  possession  of  lands  oonyeyed  by  Moon  to  Urn 
▼as  inoonipetenty  for  it  had  no  bearing  on  the  qnestion  at  issue, 
▼hich  was  whether  the  staves  were  cnt  from  the  lands  owned 
bj  phintiff  west  of  the  lake.  Plaintiff  did  not  daim  the  land 
conveyed  by  Moon  to  Thornton^  and  there  was  no  question  as 
to  the  title  of  those  lands  involved  in  the  case.  The  tendency 
of  this  evidence  of  Thornton^  and  the  instruction  based  on  it^ 
above  noticed^  was  to  beclond  the  real  matters  at  issue,  and  mis- 
lead the  jury;  and  we  are  therefore  of  the  opinion  that  the  evi« 
dence  should  have  been  rejected,  and  that  the  court  erred  in  giv* 
ing  ihe  instruction  as  to  adverse  possession. 

The  only  legitimate  basis  for  introducing  the  deed  from  Moon 
to  Thornton  was  not  to  show  title  in  Thornton  to  the  lands 
claimed  ^^^  by  the  plaintiff,  for,  as  before  stated,  that  deed  did 
not  purport  to  convey  such  land,  but  to  show  that  the  defendant 
had  the  right  to  cut  timber  on  the  land  adjoining  those  owned 
by  plaintiff,  and  in  connection  with  the  evidence  to  show  that 
he  cut  the  timber  of  plaintiff  innocently,  under  an  honest  mis- 
apprehension as  to  the  location  of  the  boundary  line  between  the 
hnd  of  plaintiff  and  that  of  Thornton.  The  jury  should  have 
been  admonished  that  the  deeds  of  Thornton  were  no  evidence  of 
title  to  the  land  claimed  by  the  plaintiff,  and  that  they  could 
only  be  considered  in  determining  the  question  as  to  whether 
the  defendant  was  innocent  of  intentional  wrong. 

TbQ  evidence  on  the  trial  showed  very  clearly  that  at  least  a 
portion  of  the  staves  replevied  were  made  by  defendants  from 
timber  cut  by  him  on  plaintiff's  land  without  his  consent,  and 
then  converted  into  staves.  The  evidence  tended  to  show  that 
defendant  piled  these  staves  with  other  staves  owned  by  him, 
and  they  were  thus  so  mingled  that  the  particular  staves  owned 
by  the  plaintiff  could  not  be  identified.  The  court  instructed 
the  jury  on  this  point  that,  before  they  could  find  for  the  plain- 
tiff, it  must  be  shown  either  that  it  was  the  owner  of  all  the 
etaves  replevied,  or,  if  it  owned  only  a  portion  of  the  staves, 
it  must  be  shown  that  these  staves  had  been  mixed  and  mingled 
by  defendant  with  the  staves  belonging  to  him,  "with  the  in- 
tention of  preventing  plaintiff  from  identifying  the  staves  cut 
from  its  land.** 

No  doubt,  the  rule  that  where  one  willfully  and  wrongfully 
miles  his  property  with  that  of  another,  so  that  the  property  of 
neither  can  be  distinguished,  gives  to  the  innocent  party  the 
whole  of  the  mixed  property,  was  intended  to  prevent  fraud,  and 
to  take  away  from  the  evil-disposed  the  incentive  to  deprive 


72  AidEBiCAK  State  Bepobts,  Vol.  91.     [Arkansas^ 

another  of  his  property  by  mixing  it  with  his  own  so  that  it 
could  not  be  identified.     While  the  rule  was  intended  to  prevent 
a  mixture  for  that  purpose,  it  is  not  necessary  for  the  innocent 
party  to  prove  that  the  mixture  was  actually  made  with  that 
intent,  for  in  most  cases  that  would  be  diflScult  to  do.    For  in- 
stance,  take  this  case  as  an  illustration :  If  the  defendant  knew 
that  the  timber  which  he  cut  belonged  to  plaintiff  or  some  other 
person,  and  that  he  had  no  right  to  cut  it,  yet  willfully  and 
wrongfully  entered  upon  this  land,  cut  timber,  and  converted  it 
into  staves,  and  afterward  mixed  these  staves  with  staves  belong- 
ing to  himself,  so  that  the  property  of  neither  could  be  identi- 
fied or  distinguished,  it  would  certainly  not  *®*  be  necessary 
for  the  plaintiff  to  go  further,  and  show  that  the  mixture  was 
made  to  prevent  plaintiff  from  identifying  his  staves.     We 
apprehend  that  in  such  a  case  it  would  be  entirely  immaterial 
whether  he  mixed  them  for  that  purpose,  or  only  for  the  purpoee* 
of  making  a  more  convenient  shipment  or  sale.    In  either  case- 
the  mixture  would  have  been  willfully  and  wrongfully  made  by 
defendant,  and  he  should  suffer  the  loss  if  any  be  caused  by  such 
act.    We  are  therefore  of  the  opinion  that  the  instructions 
given  on  this  point  placed  a  greater  burd^i  on  plaintiff  than 
the  law  required,  and  were  to  that  extent  erroneous  and  prejudi- 
cial. 

Another  question  presented  by  the  facts  of  this  case,  but 
which  does  not  seem  to  have  been  discussed  at  the  trial  below,  is- 
whether,  if  the  mingling  was  innocently  done,  and  if  the  staves 
mingled  were  all  of  the  same  kind,  quality  and  value,  replevin 
may  not  be  maintained  by  plaintiff,  notwithstanding  the  par- 
ticular staves  cannot  be  identified.  If  the  staves  are  of  the 
same  kind,  quality  and  value,  and  if  no  advantage  would  result 
to  either  party  by  getting  the  identical  staves  owned  by  him^ 
even  if  that  were  possible,  the  general  rule  is  that  replevin  will 
lie  for  the  number  owned  by  the  plaintiff,  to  be  taken  out  of  the 
mass,  especially  When  the  mingling  was  not  brought  about  by 
his  act  This  rule  is  generally  followed  by  the  courts  of  this 
country,  including,  it  secmp,  the  supreme  court  of  the  United 
States:  Eldred  v.  Oconto  Co.,  33  Wis.  141;  Peterson  v.  Polk^ 
67  Miss.  163,  6  South.  615;  The  Idaho,  93  U.  S.  585;  Cobbey 
on  Replevin,  2d  ed.,  sees.  399-404. 

We  do  not  understand  that  this  court  has  ever  distinctly  de- 
cided to  the  contrary.  The  case  of  Hart  v.  Morton,  44  Ark. 
450,  may  seem  at  first  glance  to  be  a  decision  of  that  question,. 


/an.  1902»]         Ruar  Laud  xto.  Co.  v.  Isom.  7& 

but  an  examination  of  the  facts  of  the  case  will  show  that  this 
is  not  so.  The  plaintiff  in  that  case  purchased  cotton  from  a 
tenant  subject  to  the  lien  of  the  landlord.  At  the  time  of  his 
purchase  the  cotton  was  in  the  field  unpicked.  Later,  the  land- 
lord, who  was  the  defendant  in  the  case,  also  purchased  the 
interest  of  the  tenant.  There  had  been  no  separation  of  the 
rent  cotton  from  the  other  at  the  time  of  this  purchase.  After- 
ward the  landlord  himself  weighed  out  the  cotton,  to  determine 
the  amount  of  rent  and  other  cotton.  But  this  was  not  a  sepa- 
ration binding  on  either  party,  and  the  cotton  was  remixed 
after  being  weighed.  It  is  very  plain,  we  think,  that  the  claim 
of  the  plaintiff  in  that  case  was  for  an  undivided  interest,  and 
the  court>  speaking  of  it  as  an  undivided  share,  properly  held 
^^  that  replevin  would  not  lie.  But  the  headnote  prefixed  by 
the  reporter  to  that  case  indicates  that  the  court  went  further, 
and  decided  the  question  under  consideration  here;  but  we 
think  the  reporter  was  mistaken  in  this,  and  that  his  headnote 
is  to  that  extent  misleading. 

We  have  many  other  cases  of  that  kind  holding  that  replevin 
will  not  lie  by  one  tenant  in  common  against  his  cotenant  to 
lecover  his  undivided  share  of  the  common  property.  The 
reason  that  underlies  these  decisions  is  that  until  divisioiThas 
been  made  neither  of  the  parties  owns  any  particular  pert  of  the 
property,  more  than  the  other,  and  neither  has  the  right  to  the 
exdnsive  possession  of  any  particular  portion  of  it.  We  have 
also  held  that,  when  cotton  has  been  innocently  mixed  and 
baled,  replevin  will  not  lie  for  a  part  of  the  bale;  and  this  is 
clearly  correct,  for  division  in  kind  cannot  then  be  made  without 
injury  to  the  other  party.  For,  if  the  bale  be  torn  to  pieces, 
the  cotton  would  have  to  be  rebaled  at  additional  expense :  Mose- 
ley  V.  Cheatham,  62  Ark.  134,  34  S.  W.  543 ;  Washington  v. 
Lo^  34  Ark.  93 ;  McKinnon  v.  May,  39  Ark.  442. 

But  this  case  belongs  to  neither  of  these  classed  of  cases.  The 
parties  here  are  not  tenants  in  common.  The  plaintiff  owns 
a  ceitain  number  of  staves,  which,  without  its  fault,  have  been 
Diixfid  by  defendant  with  other  staves  of  his  own.  Conceding 
that  this  was  innocently  done,  yet,  if  the  staves  mingled  are  of 
the  same  kind,  quality  and  value,  a  majority  of  us  are  of  the 
opinion  that  plaintiff  can  in  this  action  recover  his  staves,  or  an 
equal  number  to  be  taken  from  the  common  mass,  if  the  separa- 
tton  can  be  made  without  injury.  The  plaintiff,  as  we  have 
stated,  was  not  responsible  for  the  mingling,  and  whether,  if  it 


74  Aksbioah  Statb  Bbtom^  Vol.  91«    [Aikanni^ 

luid  keen,  xepleyin  would  lie  at  its  inataace  and  for  its  benfift^ 
we  need  not  determine. 

For  the  errors  stated,  the  judgment  is  reversed  and  the  cauM 
is  remanded  for  a  new  triaL 


Tttte  by  Confusion  and  aecesedon  is  eonridered  in  tbe  monograpUe 
notes  to  Pnleifor  ▼.  Page,  64  Am.  Dee.  583-597;  Gaskins  ▼.  Davis, 
44  Am.  St.  Bep.  444-448.  If  one  unlawfully  mixes  and  confuses  his 
goods  with  those  of  another,  so  that  they  cannot  be  distingaiahed, 
the  innocent  party  becomes  entitled  to  the  whole:  First  Nat.  Bank 
V.  Schween,  127  111.  573,  11  Am.  St.  Bep.  174,  20  N.  E.  681;  liittio 
Pittsburg  etc.  Min.  Go.  y.  Little  Chief  etc.  Min.  Co.,  11  Colo.  223, 
7  Am.  St.  Bep.  226,  17  Pac.  760.  And  he  may  recover  them  in  re- 
plevin: Jenkins  ▼.  Steanka,  19  Wis.  126,  88  Am.  Dec  675. 

When  Replevin  or  claim  and  delivery  wiU  lie  is  considered  in  the 
monographic  note  to  Sinnott  ▼.  Feiock,  80  Am.  St.  Bep.  741-707. 


ST.  LOUIS,  IBON  MOUNTAIN  AND  SOUTHEBN  BAHi- 

WAT  COMPANY  v.  WILSON. 

[70  Ark.  136,  66  &.  W.  661.] 

APPELIATE  PBOOEDITBE.— On  Appeal  it  Is  Ko  Xiongsr  a 
Qasstton  of  the  Prepondsrsnca  of  Evidence,  but  only  whether  it  was 
legally  sufficient  to  support  the  verdict,     (p.  76.) 

BAILWAT8-Daty  of  to  Provide  Fire  in  Waiting-room.— If 
one  goes  to  a  railway  depot  to  take  passage  on  a  train,  and  at  a  tima 
when  Uie  weather  is  such  as  to  require  a  ilre  in  the  waiting-room  to 
make  it  comfortable,  it  is  the  duty  of  the  railway  company  to  boild 
and  keep  a  fire  therein,  and  if  it  fails  to  do  so,  and  the  intending  paa- 
senger  suffers  injury  in  consequence,  he  is  entitled  to  reeover  there- 
for,    (pi  77.) 

BAILWAYS.^A  Person  in  Charge  of  a  Bailway  Station  Baa 
Apparently  Power  and  Authority  requisite  to  do  and  effectuate  tha 
business  of  the  company  at  that  station.  He  has  control  over  tha 
depot  and  authority  to  exclude  persons  therefrom  who  persist  in  vio- 
lating reasonable  regulations  prescribed  for  their  conduct,     (p.  77.) 

BAILWAT8.— Liability  of  for  Mlscondnct  or  Neglect  of  Sta- 
tion Agents.— If  one  goes  to  a  railway  depot  to  take  passage  on  a 
train,  and  the  station  agent  knowingly  permits  it  to  be  locked,  or 
knowingly  permits  it  to  remain  locked  after  being  notified  that  it  is 
locked,  so  that  an  intending  passenger  is  restrained  from  going  in  and 
out,  the  corporation  is  liable,     (p.  77.) 

BAILWAT8— Liability  for  Xnlnry  or  Annoyaooe  at  Station  ta 
Intending  Passsnger.— While  it  is  the  duty  of  railway  coiporations 
to  exercise  ordinary  care  to  protect  intending  passengers  from  un- 
reasonable annoyance,  and  from  insult  and  injury  from  turbulent,, 
riotons,  or  disorderly  persons,  yet  to  make  a  corporation  liable  ia^ 
damages^  it  must  be  shown  that  there  was  an  injury,  that  the  agent 


Mk  1902.]    St.  Louis  bo.  Bt.  Co.  v.  WxLaon.  IS 

n  charge  of  the  Btation  lutd  opportunity  to  know  that  the  injury 
was  threatened,  and  that  by  hie  prompt  intervention  he  eonld  have 
prevented  or  mitigated  it.    (p.  78.) 

DAMAGBa—TlMie  Oan  he  Ho  Beeorery  for  Mental  Angniali 
TTnaccompmied  hy  Personal  Injury,  where  there  ii  no  willful,  wanton, 
er  Bkalieiona  wrong  done.     (p.  79.) 

JUBT  TBIAIb— Ahetraet  InstmetioiiB,  Not  Supported  hy  the 
IBwHMMOBf  are  Brnmeova,  and  require  a  reversal,  as  where  the  jury  is 
charged  that  they  should  find  against  a  railway  corporation,  if  its 
agent  used  toward  or  to  a  plainUff,  or  in  her  hearing,  any  profane, 
obscene,  or  boisterous  language,  which  insulted  her  or  injured  her 
feelings,  when  there  is  no  evidence  of  the  use  of  any  such  language, 
(p.  79.)  

DAMA0E8,  PUNITIVE,  for  Miscondnet  of  Senrant.— A  rail- 
way corporation  is  not  liable  in  punitive  damages  for  the  tort  of 
its  servant,  unless  it  was  in  the  line  of  his  employment,  and  was  will- 
ful, wanton,  and  maliciousi     (p.  79.) 

The  plaintiff,  a  minor,  colored  girl,  sued  by  her  next  friend 
to  recover  for  damages  alleged  to  have  been  suffered  by  her  in 
December,  1898,  at  the  depot  of  the  defendant  corporation, 
whither  she  went  for  the  pnrpoee  of  taking  passage  on  one  of 
its  trains.  In  her  complaint  she  alleged  that  she  went  into  the 
colored  waiting-room,  and  was  there  compelled  to  remain  for 
about  an  hour  and  nntil  the  arrival  of  the  train;  that  soon 
after  going  into  the  room  she  was  imprisoned  by  the  defendant's 
agents  and  servants  by  their  locBng  the  only  door  to  the  room ; 
that  die  was  frightened  and  insulted  by  profane  and  abnsive 
language,  and  vile  and  insulting  signs  directed  toward  her,  and 
that,  notwithstanding  her  demands  and  entreaties,  the  door  was 
kept  locked  by  the  defendant's  servants,  and  they  refused  to 
build  a  fire,  and  she  was  made  ill  in  consequence.  The  testi- 
mony tended  to  prove  that  the  plaintiff,  with  other  colored  girls, 
went  to  take  the  train ;  that  the  waiting-room  was  locked  by  a 
white  boy  soon  after  they  entered  it,  and  remained  locked  until 
the  train  came;  that  to  the  request  to  the  station  agent  to  have 
a  fire  made  and  the  door  unlocked,  he  responded  by  cursing,  and 
some  white  men  came  to  the  door  and  made  insulting  faces  and 
cursed  and  called  the  girls  ''damn  bitches,"  etc.,  but  it  did  not 
clearly  appear  whether  the  agent  knew  of  this  or  not  The 
plaintiff  caught  cold  and  was  made  sick.  Verdict  for  the  plain- 
tiff for  three  hundred  dollars  compensatory,  and  two  himdred 
dollars  punitiye,  damages.    The  defendant  appealed. 

Dodge  &  Hohnson  and  J.  E.  Williams,  for  the  appellant. 

Murphy  ft  Mehaffy,  for  the  appellees. 

*^®  WOOD,  J.  We  will  consider  the  questions  in  the  order 
presented  by  appellant's  counsel. 


76  AMERiCAisr  Statb  Repobts,  Vol.  91.     [Arkansas^ 

1.  It  18  contended  that  the  cause  should  be  reversed,  because 
the  jury  failed  to  observe  the  rule  of  preponderance  of  the 
testimony.  When  the  cause  reaches  this  fonim,  it  is  no  longer 
a  question  of  preponderance,  but  only  of  the  legal  sufficiency  of 
the  evidence  to  support  the  verdict :  St  Louis  etc,  R.  R-  Co.  v. 
Kilpatrick,  67  Ark.  47,  64  S,  W.  971 ;  Catlett  v.  Railway  Co., 
57  Ark.  461,  38  Am.  St.  Rep.  254,  21  S.  W.  1062. 

2.  Appellant  objects  to  the  following  instruction :  ''If  plain* 
tiff  went  to  defendant's  depot  on  the  day  mentioned  in  the  com- 
plaint, to  take  passage  on  defendant's  train,  and  at  that  time 
the  weather  was  such  as  to  require  a  fire  in  the  waiting-room  to 
make  it  comfortable,  it  was  defendant's  duty  to  build  and  keep 
a  fire  in  said  waiting-room ;  and,  if  it  failed  to  do  so,  and  plain- 
tiff suffered  in  consequence  of  defendant's  failure  to  build  and 
keep  such  fire,  your  verdict  will  be  for  the  plaintiff."  It  was 
the  duty  of  railroads,  independent  of  the  statute  of  March  31, 
1899,  to  provide  reasonable  accommodations  for  passengers  at 
their  stations:  McDonald  v.  Chicago  etc.  R.  R.  Co.,  26  Iowa, 
138,  96  Am.  Dec.  114.  This  duty  requires  the  exercise  of  ordi- 
nary care  to  see  that  station-houses  are  provided  with  reasonable 
appointments  for  the  safety  and  essential  comfort  of  passengers, 
or  those  intending  to  become  passengers,  while  they  are  waiting 
for  trains:  Caterham  Ry.  Co.  v.  London  etc.  Ry.  Co.,  87  Eng. 
C.  L.  410;  1  Fetter  on  Carrier  of  Passengers,  sees.  249,  250; 
Texas  etc.  Ry.  Co.  v.  Cornelius,  10  Tex.  Civ.  App.  125,  30  S. 
W.  720;  Hutchinson  on  Carriers,  sees.  616-621,  inclusive;  2 
Wood  on  Railroads,  sec.  1338;  Elliott  on  Railroads,  sec.  1690. 

By  the  exercise  of  such  care  as  ordinary  prudence  would  sug* 
gest  for  reasonable  comfort,  it  could  hardly  occur  that  a  waiting- 
room,  in  midwinter,  would  be  devoid  of  the  means  necessary 
to  make  it  comfortably  warm  at  the  times  when  such  rooms  are 
needed  to  accommodate  those  intending  to  become  passengers. 
A  failure  to  provide  such  means  is,  therefore,  at  least  prima 
facie  evidence  of  negligence.  It  is  insisted  that  the  instruction 
'^eliminated  all  question  of  diligence  and  negligence,"  and  made 
the  company  an  "insurer  against  the  consequences  of  not  having 
a  fire  in  the  waiting-room."  But  the  company  maintains  that 
it  was  not  neirlijrcnt,  because  it  built  the  fire  in  the  waiting- 
room  as  reqno^trrl.  ***  It  is  not  complaining  of  any  latent 
defect  or  unforosoen  exigency  which  ordinary  care  could  have 
anticipated  and  prevented.  It  could  not  have  been  prejudiced,, 
therefore,  by  the  instruction  in  the  form  given.  Moreover,  it 
did  not  request  the  court  to  declare  the  law  to  meet  the  objection 


Feb.  1902.]    St.  Louis  etc  By.  Co.  v.  Wilbon.  77 

it  uTges  liere  to  the  instruction.  Giving  it  as  requested  was  not 
lerersible  error :  St.  Louis  etc.  Ey.  Co.  v.  Bamett,  65  Ark.  255, 
45  S.  W.  550. 

3.  The  conrt  also  gave  the  following:  "If  plaintiff  went  to 
defendant's  depot  to  take  passage  on  defendant's  train^  and  de- 
fendant's agent  knowingly  permitted  it  to  be  locked,  or  know- 
ingly permitted  it  to  remain  locked  after-being  notified  that  it 
▼as  locked,  so  that  plaintiff  was  restrained  from  going  in  and 
out,  your  verdict  will  be  for  the  plaintiff." 

"A  person,*'  says  Mr.  Wood,  "who  is  in  charge  of  a  station  by 
&  railway  company  has  apparently  all  the  power  and  authority 
requisite  to  do  and  effectuate  the  business  of  the  company  at  tha^ 
Btation.    He  has  control  over  the  depot,  and  authority  to  ex- 
clude persons  therefrom  who  persist  in  violating  the  reasonable 
regulations  prescribed  for  their  oonduct" :  1  Wood  on  Railroads, 
eec  165.    The  authority  of  railroads  to  make  and  carry  into 
execution  all  reasonable  regulations  for  the  conduct  of  all  per- 
sons resorting  to  its  depots,  so  as  to  protect  those  who  are,  or 
intend  to  become,  its  passengers  from  unreasonable  annoyances, 
insults  and  injuries,  cannot  be  questioned :  1  Fetter  on  Carrier 
of  Passengers,  sec.  247 ;  Commonwealth  v.  Power,  7  Met.  596, 
41  Am.  Dec.  465 ;  Elliott  on  Eailroads,  sec.  303.    This  author- 
ity is  the  necessary  correlate  of  the  duty  to  provide  reasonable 
accommodations;  for  a  station-house  to  which  drunken,  pro- 
fane, obscene,  abusive,  riotous  and  otherwise  disorderly  persons 
could  resort  with  impunity  would  not  be  either  comfortable  or 
safe.    The  willful  or  negligent  failure  of  railroads  to  make  and 
enforce  such  reasonable  regulations  would  render  them  liable  in 
damages  for  any  injuries  directly  resultant  to  those  who  re- 
paired to  their  stations  for  the  purpose  of  becoming  passengers. 
If  appellant^s  station  agent,  against  the  protest  of  appellee, 
knowingly  permitted  the  only  means  of  ingress  and  egress  to 
tte  waiting-room,  where  appellee  was  properly  in  waiting  to  be- 
come its  passenger,  to  be  locked,  and  to  be  so  continued  for  any 
length  of  time,  when  same  by  the  exercise  of  ordinary  care  could 
have  been  prevented  or  discontinued,  he  was  guilty  of  a  tort,  and 
for  the  wrong  thus  inflicted  upon  appellee  appellant  was  liable 
in  damages.     For,  *^*  in  the  unlawful  imprisonment  of  the 
person  of  appellee  and  the  deprivation  of  her  personal  liberty, 
even  though  for  a  moment,  without  her  consent,  there  was  an 
actionable  wrong,  an  injury  to  her  person,  however  slight: 
Field  on  Damages,  sec.  679 ;  Cooley  on  Torts,  p.  195,  sec.  169 ; 
3  Sutherland  on  Damages,  sec.  1257. 


78  Ahxeioak  State  Bepobts,  Vol.  91.    [Arkansas, 

Appdiant  does  not  contend  that  its  agent  exercised  ordinary 
care  to  prevent  the  locking  of  tlie  door,  or  to  have  it  unlocked 
after  being  notified.  Its  defense  on  this  point  is  confined  to  a 
denial  of  all  knowledge  of  any  such  occurrence.  The  instruc- 
tion, in  the  form  given,  was  therefore  not  prejudicial. 

4.  Appellant  insists  that  the  court  erred  in  giving  the  follow- 
ing: "3.  You  are  instructed  that  it  is  the  duty  of  a  railroad 
company  to  protect  all  persons  who  are  at  its  stations  for  the 
purpose  of  taking  passage  ob  its  trains  from  annoyances^  in- 
sults and  abuse ;  and  if  defendant's  agent  used  toward  or  about 
the  plaintiff,  or  in  plaintiff's  hearing,  any  profane,  obscene  or 
boisterous  language,  which  language  insulted  or  injured  plain- 
tiffs feelings,  your  verdict  should  be  for  the  plaintiff." 

^'6.  If  you  find  for  the  plaintiff  in  this  case,  her  actual  dam- 
ages will  be  such  sum  of  money  as  will  be  a  just  and  fair  com- 
pensation for  all  the  pain  and  anguish,  if  any,  both  of  body  and 
mind,  suffered  by  plaintiff  on  account  of  the  injuries  received.** 

'^7.  If  you  find  for  the  plaintiff,  you  may,  in  addition  to  actual 
damages,  award  punitive  damages  as  a  punishment  of  the  de- 
fendant.** 

What  we  have  already  said  sufficiently  indicates  the  duty  of 
railroads  to  those  intending  to  become  passengers  at  their  sta- 
tions. While  it  is  their  duty  to  exercise  ordinary  care  to  pro- 
tect them  from  unreasonable  annoyances,  and  from  insults  and 
injuries,  from  turbulent,  riotous  or  disorderly  persons,  yet  to 
make  them  liable  in  damages  it  must  be  shown  that  there  was  an 
injury,  that  the  agent  in  charge  of  the  station  ^'had  knowledge 
or  opportunity  to  know  that  the  injury  was  threatened,  and  that 
by  his  prompt  intervention  he  could  have  prevented  or  miti- 
gated if :  Sira  v.  Wabash  R.  E.  Co.,  116  Mo.  127,  37  Am.  St. 
Rep.  386,  21  S.  W.  906 ;  Spohn  v.  Missouri  Pac.  Ry.  Co.,  87  Mo. 
74,  and  authorities  cited. 

The  duty  of  railroads  in  this  respect  is,  therefore,  not  abso- 
lute, as  the  first  part  of  the  third  instruction  assimies.  This 
part  of  the  instruction,  however,  could  not  be  said  to  be  preju- 
dicial, for  the  *^*  latter  part  limits  the  application  of  the  doc- 
trine to  ''profane,'*  "obscene,**  or  boisterous  language  used  only 
by  appellant's  agent.  But  the  latter  part  of  the  instruction  is 
abstract,  erroneous  and  prejudicial.  We  have  searched  the  rec- 
ord in  vain  for  evidence  that  appellant's  agent  used  profane, 
obscene  or  boisterous  language  toward  or  about  appellee.  The 
only  evidence  in  the  record  of  any  improper  language  used  bv 
the  agent  at  all  was  that  he  '^began  to  swear  a  little  at  Dick," 


fleh.  1902.]    St.  Loura  src  Rt.  Ca  v.  Wilsoh.  79 

the  boy  who  reqaested  Ilim  to  make  a  fire.  Dick  Canady,  the 
boy  who  requested  the  agent  to  make  a  fire,  said  the  agent 
'^euflsed,''  and  told  hiTn  to  go  on.  There  is  no  proof  that  he 
cursed  appellee,  or  that  what  he  said  to  Dick  Canady  in  her 
hearing  was  calculated  to  and  did  insult  her  feelings.  There  is 
no  proof  of  what  the  language  was.  It  is  not  shown  to  have 
been  said  for  the  purpose  of  insiQting  appellee.  As  the  lan- 
guage was  not  addressed  to  appellee,  in  the  absence  of  any  evi- 
dence  as  to  what  the  language  was,  the  inference  that  it  was 
said  for  the  purpose  of  insulting  appellee  is  not  warranted. 
There  is  no  proof  of  any  connection  between  the  cursing  and 
the  acts  resulting  in  physical  injury  to  appellee.  Whether  the 
use  of  profane,  obscene  and  abusive  language  by  station  agents, 
when  uttered  about  or  in  the  presence  and  hearing  of  those  in- 
tending to  become  passengers,  while  at  stations,  and  for  the 
purpose  of  insulting  them,  or  injuring  their  feelings,  would 
alone  make  the  railroads  liable  for  the  mental  suffering  thereby 
produced,  we  need  not  decide;  for  that  state  of  facts  is  not  pre- 
sented  by  the  proof  in  this  record. 

It  is  certain  there  could  be  no  recovery  for  mental  anguish 
Tsnaccompanied  by  personal  injury,  where  there  was  no  willful 
wanton  or  malicious  wrong  done.  Whether  there  could  be  re- 
covery for  mental  suffering  alone,  where  there  was  willful,  wan- 
ton,  or  malicious  wrong  done,  we  reserve  for  decision. 

5.  The  complaint  alleges  three  separate  grounds  for  recovery, 
to  wit,  the  failure  to  build  a  fire,  the  failure  to  prevent  the 
locking  of  the  door,  and  the  failure  to  protect  appellee  from  in- 
sulting remarks.  The  sixth  instruction,  on  the  measure  of  dam- 
ages, allows  the  jury  to  find  for  all  the  pain  and  anguish  of  both 
body  and  mind,  without  discrimination  or  designation  of  the 
specific  grounds  upon  which  the  cause  of  action  is  based.  This 
instruction,  in  view  of  what  we  have  just  said  in  reference  to 
the  third,  is  erroneous;  for  under  it,  in  connection  with  the 
third,  supra,  the  jury  were  warranted  in  finding  for  mental 
soffering  on  account  of  profane,  obscene  and  boisterous  lan- 
goage  of  the  station  agent.  ***  The  jury  might  have  found 
Budi  damages.  Whether  or  not  they  did  so,  and,  if  so,  what 
amount  on  this  account  entered  into  the  verdict,  it  is  impossible 
for  us  to  teU.    The  instruction  was  erroneous  and  prejudicial. 

6.  It  follows,  also,  that  it  was  error  to  give  the  seventh  as 
to  punitive  damages,  since  the  jury  may  have  included  punitive 
damages  in  their  verdict  for  the  use  of  profane,  obscene  or 
boisterous  language  used  by  the  station  agent.  Furthermore, 
under  the  proof  it  did  not  follow  as  matter  of  law  that  the  jury 


80  American  State  Bsport8>  Vol.  91.    [Arkanaasy 

might  find  punitiye  damages^  if  they  found  for  the  appellee. 
The  jury  may  have  found  that  appellant  was  liable  for  com- 
pensatory  damages  on  one  of  the  alleged  grounds  of  liability, 
but  it  did  not  follow  that  because  they  so  found  they  should  ako 
find  punitive  damages  on  said  ground,  unless  they  should  fur- 
ther find  that  the  tort  or  wrong  of  the  servant  m  the  particular 
alleged  was  in  the  line  of  his  employment,  and  was  willful, 
wanton,  or  malicious.  The  instruction  should  have  been  framed 
so  as  to  leave  the  jury  to  determine  whether  or  not  the  elements 
essential  to  pxmitive  damages  existed,  in  connection  with  any 
or  all  of  the  alleged  grounds  of  liability  set  forth  in  the  com- 
plaint for  actual  or  compensatory  damages.  We  find  no  other 
reversible  error. 

The  other  questions  may  not  again  ariae.  For  the  errors  in- 
dicated, the  judgment  is  reversed  and  the  cause  is  remanded  for 
new  triaL 


A  Railroad  Siation-hauae  is  open  to  the  traveling  public,  and  any 
person  desiring  to  go  upon  the  cars  has  the  right  to  go  into  such  house 
at  the  proper  time,  and  remain  there  until  the  departure  of  the  train, 
whether  he  has  purchased  a  ticket  or  not:  Harris  v.  Stevens,  31  Vt 
79^  73  Am.  Dee.  837.  And  it  is  the  duty  of  the  railway  company  to 
keep  the  building  in  a  safe  and  proper  condition:  Jordan  v.  New 
York  etc.  B.  B.  Co.,  165  Mass.  346,  52  Am.  St.  Bep.  622,  43  N.  E.  Ill; 
Fullerton  v.  Fordyee,  121  Mo.  1,  42  Am.  St.  Bep.  516,  25  S.  W.  587. 


BOTH  V.  MERCHANTS'  AND  PLANTERS'  BANK 

[70  Ark.  200,  66  S.  W.  918.] 

PATENT  BIOHTS-^Becovery  of  Purchase  Price,  Thoa^  Note 
OlTon  Therefor  is  Void.— A  statute  requiring  every  negotiable  in- 
strument given  for  any  patent  medicine,  implement,  substance,  or 
instrument  of  any  kind  to  be  executed  upon  a  printed  form,  and  to 
show  on  its  face  for  what  it  was  given,  otherwise  such  instrument 
shall  be  void,  does  not  prevent  the  vendor  to  whom  an  instrument 
was  given,  which  did  not  comply  with  the  statute,  from  maintaining 
an  action  for  the  purchase  price.  The  object  of  the  statute  is  to 
save  to  the  vendee  all  the  defenses  he  may  have  to  an  action  on  the 
note  for  the  purchase  money  and  to  prevent  the  loss  of  such  defense 
by  a  transfer  to  an  innocent  holder  before  maturity,     (p.  81.) 

BE8  JX7BI0ATA.— A  Judgment  Against  a  Holder  of  a  Kego- 
tiable  Instrnment,  for  noncompliance  with  the  statute,  requiring  it 
to  be  on  a  printed  form  and  to  show  the  consideration,  does  not  bar 
an  action  for  the  purchase  price  of  the  article  on  account  of  which 
the  instrument  was  executed,     (p.  82.) 


Fab.  1902.]     Roth  i;.  Msbchantb'  bto.  Bank.  81 

Austin  ft  Taylor^  for  the  appellant. 

* 

White  ft  AltheimeTy  for  the  appellees. 

*^^  BATTLE,  J.  Lotus  Roth,  the  appellant,  purchased  an 
undiyided  one-fonrth  interest  in  a  patent  known  as  the 
•TEclipee  Folding  Wagon  Step,'*  and  agreed  to  pay  fifteen  hun- 
dred dollars  therefor.  He  paid  one  thousand  dollars  in  cash, 
and  executed  his  note  to  C.  P.  Thomt<m,  his  vendor,  for  five 
hundred  dollars  in  payment  of  the  balance.  In  due  course  of 
trade,  for  a  valuable  consideration,  without  notice  and  before 
maturity,  the  Merchants'  and  Planters'  Bank,  of  Pine  Bluflf,  be- 
came the  owner  of  this  note.  At  maturity  the  maker,  Louis 
Soth,  refused  to  pay  the  note,  and  in  a  suit  brought  in  the 
Columbia  circuit  court  against  him  and  C.  P.  Thornton,  as  in- 
dorser,  he  filed  an  answer,  and,  after  admitting  the  execution 
of  the  note  to  C.  P.  Thornton  and  transfer  of  same  to  plaintiff, 
Merchants'  and  Planters'  Bank,  pleaded  ^'f or  a  complete  defense 
against  the  note,  ....  that  *^^  it  was  given  by  him  to  his 
codefendant  for  an  interest  in  a  patent  right,  and  was  not  on  a 
printed  form,  and  did  not  show  on  its  face  that  it  was  executed 
in  payment  of  such  patent  right,  as  required  by  sections  493 
and  494  of  Sandel  &  Hill's  Digest,  and  the  said  note  is  there- 
fore void" ;  and  the  court,  sitting  as  a  jury,  found  that  issue  in 
fa?or  of  the  defendant,  and  rendered  judgment  accordingly. 
Suit  was  then  brought  in  the  Jefferson  circuit  court  on  account 
for  the  balance  of  the  purchase  money  by  the  bank,  and,  as  the 
account  was  not  assignable  by  statute,  G.  P.  Thornton,  the  as- 
signor, was  joined  as  plaintiff.  To  this  suit  the  appellant,  Louis 
Both,  pleaded  the  judgment  of  the  Columbia  circuit  court  de- 
claring ihe  note  void,  as  a  bar  to  the  right  of  appellees  to  recover 
upon  the  original  consideration.  The  circuit  court  held  that 
the  plaintiffs  in  the  latter  suit  were  entitled  to  recover,  and  ren- 
dered judgment  in  their  favor  for  the  amount  sued  for,  and 
the  defendant  appealed. 

Section  493  of  Sandel  &  Hill's  Digest,  upon  which  the  appel- 
lant's defense  to  the  action  against  him  in  the  Columbia  circuit 
court  was  based,  is  as  follows :  *'Any  vendor  of  any  patent  ma- 
chine, implement,  substance,  or  instrument  of  any  kind  or  char- 
acter whatsoever,  when  the  said  vendor  of  the  same  effects  the 
sale  of  the  same  to  any  citizen  of  this  state  on  a  credit,  and 
takes  any  character  of  negotiable  instrument,  in  payment  of  the 
same,  the  said  negotiable  instrument  shall  be  executed  in  printed 

form,  and  show  upon  its  face  that  it  was  executed  in  conaidera- 

An.  at  Rep.,  Vol.  »1— 6 


8B  Amsrioan  Stats  Eeportb^  Vol.  91.    [ftrhinaao, 

tion  of  a  patented  machine,  implement,  substance,  or  instrn- 
ment,  as  the  case  may  be,  and  no  person' shall  be  considered  an 
innocent  holder  of  the  same,  though  he  may  have  given  value 
for  the  same  before  maturity,  and  the  maker  thereof  may  make 
defense  to  the  collection  of  the  same  in  the  hands  of  any  holder 
of  said  negotiable  instrument,  and  all  such  notes  not  showing 
on  their  face  for  what  they  were  given  shall  be  absolutely  void/'' 

The  object  of  this  statute  was  to  save  a  vendee  of  ^^any  patent 
machine,  implement,  substance,  or  instrument  of  any  kind  or 
character  whatsoever,'^  all  the  defenses  he  may  have  to  an  ac- 
tion on  his  note  for  the  purchase  money,  and  to  prevent  the 
loss  thereof  by  a  transfer  of  the  note  to  an  innocent  holder 
before  maturity.    The  failure  to  comply  with  the  statute  does 
not  affect  the  validity  of  the  sale,  but  renders  only  the  note 
absolutely  void.    The  penalty  does  not  reach  beyond  the  ob- 
ject to  be  accomplished.    Though  the  note  may  be  void,  the 
vendor  can  recover  whatever  may  be  due  *^^  him  on  the  eon- 
tract  of  sale  from  the  vendee:  Tillman  v.  Thatcher,  66  Ark. 
334,  19  S.  W.  968;  Marks  v.  McGhee,  35  Ark.  217;  Tucker 
V.  West,  29  Ark.  401;  Stratton  v.  McMakin,  84  Ky.  641,  4 
Am.  St.  Bep.  215;  Iron  Mountain  etc.  B.  IL  Co.  v.  Stansell,. 
43  Ark.  275. 

The  defense  of  appellant  to  the  action  instituted  in  the  Co- 
lumbia circuit  court  was  in  the  nature  of  a  plea  of  abatement,. 
It  did  not  reach  the  merits  of  the  case,  but  the  validity  of  the 
note  only.  The  only  thing  adjudicated  by  the  judgmoit  of 
that  court  was  the  validity  of  the  note  sued  on.  This  judg- 
ment was  no  bar  to  an  action  upon  the  contract  of  sale. 

The  effect  of  a  judgment  upon  causes  of  action  is  unlike  its 
effect  upon  defenses.  The  d^endant  in  an  action  is  required 
to  set  up  all  his  defenses  to  the  same.  ^'A  valid  judgment  for 
the  plaintiff  sweeps  away  every  defense  that  should  have  been 
raised  against  the  action;  and  this,  too,  for  the  purpose  of 
every  subsequent  suit,  whether  founded  on  the  same  or  a  dif- 
ferent cause" :  Ellis  v.  Clarke,  19  Ark.  421,  70  Am.  Dec.  603  ; 
Bell  V.  Fergus,  65  Ark.  538,  18  S.  W.  931;  Davis  v.  Brown,. 
94  U.  S.  423. 

As  to  causes  of  actions,  the  rule  is  stated  by  the  supreme 
court  of  the  United  States  in  Bussell  v.  Place,  94  U.  S.  608^ 
as  follows:  '^It  is  undoubtedly  settled  law  that  a  judgment  of 
a  court  of  competent  jurisdiction,  upon  a  question  directly 
involved  in  one  suit,  is  conclusive  as  to  that  question  in  an* 
other  suit  between  the  same  parties.    But  to  this  operation  to* 


Fab.  1902.]     Both  v.  Merchamts'  etc.  Bank.  83 

the  judgment  it  mufit  appear  either  upon  the  face  of  the  rec- 
ord, or  be  shown  by  extrinsic  evidence,  that  the  precise  ques- 
tion was  raised  and  determined  in  the  former  suit.  If  there 
be  any  uncertainty  on  this  head  in  the  record,  as,  for  example, 
if  it  appe»>  that  several  distinct  matters  may  have  been  liti- 
gated, upon  one  or  more  of  which  the  judgment  may  have 
passed,  without  indicating  which  of  them  was  thus  litigated, 
and  upon  which  the  judgment  was  rendered — the  whole  subject 
matter  of  the  action  will  be  at  large,  and  open  to  a  new  con- 
tention, unless  this  uncertainty  be  removed  by  extrinsic  evi- 
dence showing  the  precise  point  involved  and  determined.  To 
apply  the  judgment,  and  give  effect  to  the  adjudication  actu- 
ally made,  when  the  record  leaves  the  matter  in  doubt,  such 
evidence  is  admissible.''  It  further  said  in  the  same  case  that, 
"to  render  the  judgment  conclusive,  it  must  appear  by  the 
record  of  the  prior  suit  that  the  particular  matter  sought  to 
be  canceled  was  necessarilv  tried  or  *^^  determined — ^that  is, 
that  the  verdict  in  the  suit  could  not  have  been  rendered  with- 
out deciding  that  matter;  or  it  must  be  shown  by  extrinsic 
evidence,  consistent  with  the  record,  that  the  verdict  and  judg- 
ment necessarily  involved  the  consideration  and  determination 
of  the  matter.** 

In  Shaver  v.  Sharp  County,  62  Ark.  78,  34  S.  W.  262,  it 
is  said:  "That  which  has  not  been  tried  cannot  have  been  ad- 
judicated  That  which  is  not  within  the  scope  of  the 

issues  presented  cannot  be  concluded  by  the  judgment^':  See, 
also,  Dawson  v.  Parham,  55  Ark.  286,  18  S.  W.  48 ;  McCombs 
V.  Wall,  66  Ark.  336,  50  S.  W.  876;  Cromwell  v.  County  of 
Sac,  94  U.  S.  351 ;  Davis  v.  Brown,  94  U.  S.  423. 

The  same  rule  obtains  as  to  cross-claims,  setoffs  and  recoup- 
ments. The  defendant  in  an  action  against  him  is  not  bound 
to  set  up  such  claims,  if  he  has  them,  but  it  is  generally  op-  ^ 
•  tional  with  him  to  do  so  or  not:  McWhorter  v.  Andrews,  5.*^ 
Ark.  307,  13  S.  W.  1099;  21  Am.  &  Eng.  Ency.  of  Law,  Ist 
ed.,  224,  and  cases  cited. 

The  judgment  of  the  Jefferson  circuit  court  is  affirmed. 

Patent  Righi.^A  statute  reqoiring  tbe  words  "given  for  a  patent 
right"  to  be  inserted  in  any  obligation,  the  consideration  whereof 
is  a  patent  right,  is  valid;  and  a  promissory  note  taken  by  a  vendor 
of  a  patent  right  which  does  not  contain  these  words  is  inoperative 
at  between  the  parties  and  those  buying  with  notice:  New  v.  Walker, 
108  Ind.  365,  58  Am.  Rep.  40,  9  N.  E.  386.  See,  further,  People's  State 
Bank  ▼.  Jones,  26  Ind.  App.  583,  84  Am.  St.  Rep.  310,  58  N.  E.  852; 
MasoB  ▼.  MeLeody  57  Kan.  105,  45  Pae.  76,  57  Am.  St.  Bep.  327,  and 
cases  cited  in  the  cross-reference  note  thereto. 


84  Ahebioan  Sxatb  Beposts,  Vol.  91.    [ArkunMnij 


McFAELANE  t.  GEOBER. 

170  Ark.  371,  60  S.  W.  56.] 
LAOHES— Bole  of  Does  not  Apply  to  Legal  Actions.— The  doe- 


trine  of  laches  does  not  apply  to  a  case  in  which  the  plaintiff  da< 
not  ask  equitable  relief,  but  seeks  in  a  court  of  law  to  enforce  & 
plain  legal  title  in  an  action  not  barred  by  any  statute  of  limitations. 
<p.  85.) 

TAX  TITLE— Who  may  Acquire.— One  who  is  under  no  obliga- 
tion to  pay  taxes  may  strengthen  his  title  to  lands  by  purchasing  at 
s  tax  sale.  Hence,  if  he  is  in  possession  as  grantee  of  the  owner  of 
a  life  estate  under  a  conveyance  purporting  to  convey  in  fee,  and  is 
holding  adversely  to  the  remaindermen,  he  may  purchase  and  assert 
an  outstanding  tax  title,  created  when  he  was  not  in  possession  and 
was  under  no  obligation  to  pay  taxes,    (p.  86.) 

STATUTE  OF  LIMITATIONS— DlsabiUty  of  One  Plaintiff.— 
A  married  woman,  against  whom  the  statute  of  limitations  does  not 
run  and  who  is  a  cotenant  with  her  brother,  cannot,  on  purchasing 
his  share,  recover  the  whole  property  if  the  statute  of  limitations  has 
run  against  his  claim,     (p.  86.) 

Ejectment  by  Theresa  Qrober  against  the  defendant,  R.  W. 
McParlane,  to  recover  possession  of  two  hundred  acres  of  land. 
This  land  belonged  to  Emile  Grober,  who,  dying  nnmarried 
in  1867,  left  surviving  as  her  heirs  her  father,  John  C.  Grober, 
her  brother,  Rhinehold  Grober,  and  her  sister,  the  plaintiff. 
The  father  took  possession  of  the  land,  claiming  to  be  the  owner, 
and  in  1879  conveyed  it  to  Americus  McKissack,  who,  in  1883, 
conveyed  to  W.  E.  Gunter,  who,  in  1899,  conveyed  to  the  de- 
fendant. John  C.  Grober  died  in  February,  1892.  Rhinehold 
Grober,  on  April  26,  1899,  conveyed  to  the  plaintiff.  Forty 
acres  of  the  land  had  vested  in  the  state  by  its  forfeiture  for 
nonpayment  of  taxes.  The  title  of  the  state  was  acquired  by 
W.  E.  Gunter,  who  conveyed  to  the  defendant.  The  trial  court 
decided  in  favor  of  the  defendant  as  to  the  forty  acres  claimed 
nnder  a  tax  title,  and  also  as  to  one-half  of  the  remainder,  on 
the  ground  that  the  share  of  Rhinehold  Grober  had  been  lost 
through  the  operation  of  the  statute  of  limitations,  and  as 
to  the  other  half,  gave  judgment  for  the  plaintiff.  Both  par- 
ties appealed* 

T.  B.  Pryor  and  Hill  ft  Brizasolara,  for  the  appellant 

Benjamin  T.  Duval,  for  the  appellee. 

•^*  RIDDICK,  J.  This  was  an  action  of  ejectment,  which 
was,  on  motion  of  the  defendant,  transferred  to  the  equity 
docket,  and  tried  as  an  equity  case  by  the  judge  of  the  circuit 


April,  1902.]  McFablani  v.  Orobeb.  86 

court  But  an  examination  of  the  defense  set  np  by  the  an- 
Fwer  shows^  as  we  think,  no  sufficient  ground  for  the  transfer 
of  the  case  to  the  eqnity  docket.  The  defenses  set  np  in  the 
answer  were  legal  defenses.  The  answer  presented  no  defense 
calling  for  equitable  relief,  and  the  case  should  have  been  tried 
at  law.  But  though  the  plaintiflf  objected  to  the  transfer  of 
the  case  to  the  equity  docket,  she  does  not  now  press  that  point 
as  ground  for  reversal.  The  only  substantial  thing  the  trans- 
fer to  equity  effected  was  to  bring  the  issues  of  fact  presented 
before  the  judge  for  trial,  instead  of  before  a  jury,  and  the  case 
18  now  very*inuch  in  the  attitude  of  a  case  at  law  tried  before 
the  judge  sitting  as  a  jury,  and  afterward  appealed  to  this 
court. 

We  have  given  the  case  careful  attention,  and  our  conclusion 
is  that  the  finding  of  the  circuit  judge  to  the  effect  that  Emile 
Giober  was  the  owner  of  this  land  at  her  death,  that  under  the 
law  her  father  took  only  a  life  estate,  and  that  after  his  death 
the  title  vested  in  Theresa  Grober  and  Shinehold  Grober,  the 
brother  and  sister  of  Emile  Grober,  is  sustained  by  the  law 
and  the  evidence :  Kelley  v.  McQuire,  15  Ark.  665. 

The  testimony  of  Mrs.  Matilda  Jackson  bearing  on  the  execu* 
tion  of  a  deed  from  Emile  to  her  father  is  not  convincing  to 
our  minds,  and  we  think  the  circuit  judge  was  justified  in  re- 
jecting it.  As  Theresa  Grober  was  a  married  woman  at  the 
time  of  her  sister's  death,  and  remained  so  up  to  the  time  of 
the  bringing  of  her  action  of  ejectment,  we  think  that  it  is 
clear  she  was  not  barred  by  the  statute  of  limitations. 

The  doctrine  of  laches,  invoked  by  the  defendant,  does  not 
apply  to  a  case  where  the  plaintiff  is  not  asking  any  equitable 
relief,  but  seeks  only  to  enforce  a  plain  legal  title  in  a  court 
of  kw,  and  where  her  action  is  not  barred  by  the  statute  of 
limitations  in  reference  thereto:  Rowland  v.  McGuire,  67  Ark. 
320,  55  S.  W.  16 ;  Wilson  v.  Nichols,  72  Conn.  173,  43  Atl. 
1052;  Broadway  Nat  Bank  v.  Baker,  176  Mass.  294,  57  N. 
E.  603 ;  Wood  on  Limitations,  sec.  60,  note  a. 

But  whatever  view  may  be  taken  of  that  question,  the  tacU 
and  circumstances  in  proof,  we  think,  fully  justified  the  circuit 
judge  in  overruling  this  defense  and  finding  in  favor  of  the 
plaintiff  '*"*  on  that  issue.  This  disposes  of  the  questions 
presented  by  the  appeal  of  the  defendant. 

As  to  the  cross-appeal,  we  must  also  say  that  no  ground  for 
reversal  is  shown.    The  forty  acres  claimed  by  the  defendant 


86  AiCEBiOAN  Stats  Befobtb,  Vol.  91.    lAxk^naaa, 

were,  it  is  tme^  forfeited  to  the  state  for  nonpaym^t  of  taxes 
after  the  death  of  Emile  and  before  the  expiration  of  the  life 
estate  held  by  John  G.  Grober.    But  neither  McFarlane  nor 
Gunter^  who  parchaeed  this  tax  title  from  the  state,  were  in 
possession  of  the  land,  or  had  any  claim  to  it  at  the  time   it 
was  forfeited,  nor  were  they  tinder  any  obligation  to  pay  the 
taxes  for  which  it  was  sold.    Long  after  this  tax  sale,  and  when 
the  title  had  become  vested  in  the  state,  Gunter  purchased  the 
land  from  parties  holding  through  conveyances  from  Grober 
purporting  to  convey  the  title  in  fee.    Gunter  believed  that 
he  was  acquiring  the  title  in  fee,  but,  finding  thai  this  forty 
acres  had  been  sold  to  the  state  for  nonpayment  of  taxes,  and 
that  the  state  was  the  owner  thereof,  he  purchased  it  from  the 
state,  and  afterward  sold  it  to  McFarlane.    One  in  possession  of 
land  under  claim  of  title  may  strengthen  his  title  thereto  by 
the  purchase  of  an  outstanding  title:  Coxe  v.  Gibson,  27  Pa. 
St.  160,  67  Am.  Dec.  454.    While  a  tenant  for  life  whose  duty 
it  is  to  pay  the  taxes  will  not  be  allowed  to  acquire  a  title 
against  the  owner  of  the  fee  by  permitting  the  land  to  be  sold 
for  taxes — in  other  words,  while  one  whose  duty  it  is  to  pay 
the  taxes  will  not  be  allowed  to  profit  by  a  failure  to  discharge 
the  duty — ^}'et  the  rule  does  not  apply  here,  for  the  claim  of 
Gunter  to  the  land  was  not  in  recognition  oi  the  rights  of  the 
plaintiff,  but  adverse  to  them.    He  was  not  in  any  way  to 
blame  for  the  forfeiture  of  the  title  to  the  state  through  the 
nonpayment  of  the  taxes,  and  he  stands  in  no  such  relation  to 
the  plaintiff  as  makes  it  unjust  or  inequitable  that  he  should 
set  up  against  her  this  title  acquired  from  the  state.    We  there- 
fore think  that  the  contention  of  the  defendant  on  this  point 
must  be  sustained:  Blackwood  v.  Van  Vleit,  30  Mich.  579; 
Coxe  V.  Gibson,  27  Pa.  St.  160,  67  Am.  Dec.  454 ;  Lybrand  v, 
Haney,  31  Wis.  230;  Cooley  on  Taxation,  2d  ed.,  508. 

Although,  for  the  reason  that  she  was  a  married  woman,  the 
statute  of  limitations  did  not  bar  the  right  of  the  plaintiff 
to  recover  the  undivided  half  interest  in  the  land  owned  by  her, 
yet  it  commenced  to  run  against  Hhinehold  Grober  on  the  death 
of  the  life  tenant,  John  C.  Grober,  if  not  before,  and  the 
conveyance  of  Rhinehold  to  his  sister,  the  plaintiff,  did  not 
fitop  the  statute,  and  ®''®  the  right  to  recover  the  undivided 
interest  owned  by  him  was  clearly  barred  before  the  commence- 
ment of  this  action.  On  the  whole  case,  we  think  the  judg- 
ment should  be  affirmed,  and  it  is  so  ordered. 


Jane,  1902.]       Buffalo  Zinc  sto.  Ca  v.  Crump.  87 

Taa  Bate.— It  is  a  familiar  rule  tliat  one  under  no  obligation  to  pay 
taxes  for  whieh  a  sale  was  made  is  not  precluded  from  acquiring  a 
tax  title  to  the  property  sold.  One  in  the  adverse  possession  of  land 
does  not  impair  his  right  to  rely  on  the  statute  of  limitations  by  pur- 
chasing the  land  at  a  tax  sale  and  recording  his  deed:  See  the  mono- 
graphie  note  to  Cone  ▼.  Wood,  75  Am.  St.  Bep.  230,  231|  on  who  may 
porehase  and  enforce  a  tax  title. 


BUFFALO  ZINC  AND  COPPEB  COMPANY  v.  CBUMP. 

[70  Ark.  525,  69  S.  W.  572.] 

FOBEXOK  OOBPOBATIONS— Doing  Bnslnem  by— What  la.— 
The  institntion  and  prosecution  of  an  action  are  not  a  doing  of  busi- 
ness within  the  state  within  the  meaning  of  the  statute  r^ating  to 
foreign  corporations,     (p.  93.) 

FOBBiaK  OOBPOBATIOK8  —Maintenance  of  Action  by.-If  a 
statute  requires  foreign  corporations  to  do  certain  acts,  and  if  they 
refuse,  they  shall  not  maintain  any  suit  or  action  in  any  of  the  courts 
of  the  state,  the  doing  of  those  acts,  though  not  within  the  time 
prescribed  by  the  statute,  authorizes  the  corporation  to  proceed  with 
the  prosecution  of  an  action  previously  pending,     (p.  93.) 

MININa.— A  Lead,  Lode,  or  Vein,  as  Those  Words  are  Used 
In  the  Acts  of  Congress,  Means  any  zone  or  belt  of  mineralized  rock 
lying  within  boundaries  clearly  separating  it  from  the  neighboring 
roelu.  It  must  be  continuous  in  the  sense  that  it  can  be  traced 
through  the  surrounding  rock,  though  slight  interruptions  in  the  min- 
eral-bearing rock  would  not  alone  be  sufficient  to  destroy  the  identity 
of  the  vein.  Neither  would  a  short  partial  closure  of  the  fissure  have 
that  effect,  if  a  little  farther  on  it  recurred  again  with  mineral-bearing 
roek  within    it.     (p.   94.) 

MINIKG  OTtATMB— Descriptions  in  Locations  of.— Where  the 
commencement  point  of  a  mine  is  described  in  the  notice  of  location 
as  beginning  at  the  "northwest  comer  of  Ed.  Williams'  1-16,  at  a 
black  oak  post,"  it  will  be  presumed  that  "Ed.  Williams'  1-16"  is  a 
weU-known  natural  object,  until  the  contrary  appears,     (p.  95.) 

MINIBro  CLAIMS— PreBomption  of  Begnlarity  of  Location  of. 

As  against  the  objection  that  there  was  no  evidence  of  the  posting  of 
the  notice  of  the  location  of  a  mining  claim,  if  it  appears  that  such 
«laim  was  purchased  from  and  conveyed  by  the  supposed  locators, 
and  has  been  held  by  the  vendee  adversely  to  all  the  world  for  a 
longer  time  than  the  statutory  period  of  limitations,  it  will  be  pre- 
sumed that  the  location  was  regularly  made.     (p.  95.) 

MDHKG  claims.- Ths  Failiirs  to  Seeord  the  Kotlce  of  the 
Location  of  a  Mfning  Claim  within  the  time  prescribed  by  law  is  not 
material  to  claimant,  if  the  notice  is  recorded  before  any  adverse  right 
is  acquired,     (p.   96.) 

WXINQ  OLAXMB^BightB  Acquired  by  Advene  Possession  of. 
Though  the  lands  attempted  to  be  located  as  mining  claims  are  not 
tben  subject  to  location  because  of  previous  locations,  yet  if  the 
claimants  under  the  junior  location  take  possession,  and  hold  and  de- 
velop the  mine  by  work  and  labor  performed,  and  continue  the  ad- 


88  Amebioan  State  Beports,  Vol.  91.     [Arkansaav 

verse  holding  for  a  longer  time  than  the  period  of  jimitations  pre- 
scribed by  statute,  their  claim  is  valid  against  everyone  except  the 
United  States,     (p.  96.) 

MTNIKG  CLAIMS.— Abaadoxunent  is  a  Voluntary  Act»  and  con- 
sists of  the  relinquishment  of  possession  of  the  claim  with  an  inten- 
tion not  to  retnrn  and  occupy  it.  It  is  purely  a  question  of  intention, 
(p.  96.) 

MININO  GLAIM8— Abandonment,  What  is  not.— The  quitting^ 
of  work  upon  a  mining  claim  temporarily,  except  annual  assessment 
work,  on  account  of  lack  of  transportation  for  the  ore  taken  f roni  the 
mine,  does  not  amount  to  an  abandonment,  though  the  land  is  entered 
as  a  homestead  by  a  third  person,  but  without  the  consent  of  the 
elaimant  of  the  mine.     (p.  97.) 

aUKINO  CLAIMS.— Failnre  to  Do  the  Work  on  a  Mining  Olaim 
Within  the  Time  Prescribed  by  law  does  not  forfeit  it,  if  the 
locator,  before  any  location  is  made,  resumes  work  in  good  faith. 
After  that  no  other  person  has  a  right  to  locate  the  mine.     (p.  97.) 

MUIIKO  CLAIMS  are  not  Sabjact  to  Location  until  the  riichta 
of  the  former  locator  have  come  to  an  end.  Any  relocation  before 
that  time  is  void.     (p.  98.) 

MININO  CLAIMS— Proof  of  Forfeltare.— The  forfeiture  of  a 
mining  claim  by  failure  of  the  owner  to  perform  the  annual  labor  re- 
quired by  law  cannot  be  established  except  by  clear  and  eonvineing* 
evidence,  and  the  burden  of  proof  rests  upon  him  who  claims  that  • 
forfeiture  has  oceurred.    (p.  98.) 

S.  W.  Woods^  for  the  appellant. 
W.  F.  Pace,  for  the  appellees. 
John  B.  Jones,  amicus  curiae. 

•«>  BATTLE,  J.  This  action  involves  the  validity  of  min- 
ing claims.  The  BufiEalo  Zinc  and  Copper  Company  alleged 
in  its  complaint,  substantially,  as  follows:  It  was  dnly  organ- 
ized as  a  corporation,  under  the  laws  of  the  state  of  IHinois, 
on  the  third  day  of  June,  1887,  for  the  purpose  of  doing  a 
general  mining  and  smelting  business,  and  dealing  in  mineral 
lands.     Since  then  it  has  been  engaged  in  such  business. 

On  the  6th  of  November,  1886,  one  Rose  Ann  Kaylor,  in 
accordance  with  law,  located  a  lead  and  lode  mining  claim,  de- 
scribed as  follows:  '^Beginning  at  the  northwest  comer  of  the 
southwest  quarter  of  the  southwest  quarter  of  section  11,  in 
township  17  north,  and  in  range  15  west,  and  thence  running 
north  along  the  section  line  1,500  feet,  thence  east  600  feet, 
thence  south  1,500  feet,  and  thence  west  600  feet  to  the  place 
of  beginning."  Notice  of  this  location  was  given,  and  was 
duly  filed  for  record  in  the  office  of  the  recorder  of  the  Harri- 
son mining  district,  in  which  the  land  was  then  situated,  and 
was  recorded  on  the  8th  of  December,  1886;  and  was  also 


Joney  1902.]       Buffalo  Zinc  eto.  Ca  v.  Chump.  89 

filed  for  record  on  the  twenty-first  day  of  January,  1888^  in 
the  ofSoe  of  the  recorder  of  Marion  county^  where  the  land 
lies,  and  was  duly  recorded.  This  location  was  named  and 
known  as  the  '*Bell  Claim.'' 

On  the  6th  of  November,  1886^  one  Francis  E.  Blake  law- 
fully located,  as  a  lead  or  lode  mining  claim,  the  land  lying 
in  the  connty  of  Marion,  in  this  state,  and  known  and  described 
as  follows :  ''Beginning  at  the  northeast  comer  of  the  said  Bell 
claim,  and  thence  running  east  600  feet;  thence  south  1,500 
feet;  theiice  west  600  feet;  and  thence  north  1,500  feet  to  the 
place  of  beginning;  being  a  part  of  the  west  half  of  the  south- 
west quarter  and  the  southwest  quarter  of  the  northwest  quarter 
of  section  11,  in  township  17  north,  and  in  range  15  west/' 
Notice  of  Ihis  location  was  given,  and  was  duly  filed  for  record 
in  the  office  of  the  recorder  of  the  Harrison  mining  district, 
where  the  land  was  then  situated,  on  the  ei^th  day  of  Decem- 
ber, 1886,  and  the  same  was  duly  recorded;  '^^  and  it  was 
also  filed  for  record  in  the  ofiBce  of  the  recorder  of  Marion 
county,  on  the  twenty-second  day  of  August,  1890,  and  was 
recorded.  This  location  was  named  and  known  as  the  ''White 
Eagle  Mining  Claim." 

On  the  twentieth  day  of  November,  1886,  Bose  Ann  Kaylor 
and  William  Kaylor,  her  husband,  for  a  valuable  consideration, 
sold  and  conveyed  to  T.  A.  Blake  all  their  right,  title  and  in« 
terest  in  and  to  the  White  Eagle  and  Bell  mining  claims,  and 
pat  him  in  possession  of  the  same. 

On  the  4th  of  June,  1887,  Francis  E.  Blake,  T.  A.  Blake, 
and  W.  P.  Beebe,  the  owners  of  the  Bell  and  White  Eagle  min- 
ing claims,  for  a  valuable  consideration,  sold  and  conveyed 
said  claims  to  one  Fred  C.  Exter,  who,  on  the  27th  of  June, 
1887,  sold  and  conveyed  them  to  the  plaintiff,  the  Buffalo  Zinc 
and  Copper  Company,  and  placed  it  in  the  possession  of  the  same. 

On  the  19th  of  May,  1898,  the  plaintiff,  in  conformity  with 
the  law  in  such  cases  made  and  provided,  made  a  corrected  loca- 
tion of  the  White  Eagle  and  Bell  mining  claims,  so  as  to  con- 
form to  the  lead  or  lode  of  mineral  pre-empted,  and  consoli- 
dated the  two  in  one  claim,  and  named  it  the  White  Eagle  Lead 
or  Lode  Mining  Claim.  Notice  of  location  was  given,  and  was 
duly  recorded,  on  the  nineteenth  day  of  May,  1898,  in  the  office 
of  the  recorder  of  the  Rush  Creek  mining  district,  where  the 
mining  claim  was  then  located. 

The  defendants  in  this  action  attempted  to  make  a  location 
of  a  placer  mining  claim  upon  the  lands  upon  which  the  mining 


90  AioBiOAK  Statb  Bepobtb,  Vol.  91.    [ArkanMi^j 

claims  of  the  plaintiff  are  located.  These  landQ  were  raloable 
for  zinc  ores  found  in  ihem  in  leads  or  lodes,  and  are  not  sub- 
ject to  locations  of  placer  mining  claims;  and  the  location  of 
the  defendants  npon  them  are  therefore  void. 

The  defendants  filed  an  application  in  the  ofiBce  of  the  proper 
land  district  for  a  patent  to  the  lands,  and  notice  of  the  ap- 
plication was  published  on  the  16th  of  September,  1898.  On 
the  tenth  day  of  Noyember  next  following  plaintiff  filed,  in 
the  same  office,  an  adverse  claim  to  the  same  land;  and  pro- 
ceedings on  the  application  for  a  patent  were  suspended  dur- 
ing the  pendency  of  this  suit. 

Plaintiff  asked  for  a  decree  canceling  the  placer  location  of 
the  defendants,  and  declaring  that  it  is  the  owner  of  the  lauds 
and  entitled  to  their  possession,  and  other  relief. 

••■  Frank  Pace,  S.  J.  Pace  and  Henry  Pace  brought  an  ac- 
tion against  the  plaintiff,  Buffalo  Zinc  and  Copper  Company, 
S.  W.  Woods,  and  the  defendants  in  the  action  instituted  by 
the  Buffalo  Zinc  and  Copper  Company,  to  wit,  O.  J.  Crump, 
B.  J.  Carney,  J.  C.  South,  M.  N.  Dyer,  Z.  M.  Horton,  DeRoos 
Bailey,  W.  F.  Pace,  and  Arthur  N.  Sager,  to  recover  the  posses- 
sion of  the  land  claimed  by  the  Buffalo  Zinc  and  Copper  Com- 
pany in  its  complaint,  and  claimed  to  be  the  owners  by  virtue 
of  a  placer  mining  location  made  on  the  eleventh  day  of  April, 
1898.  The  latter  action  was  transferred  to  the  equity  dodket, 
and  by  consent  the  two  actions  were  consolidated  and  heard 
as  one.  Frank,  S.  J.  and  Henry  Pace  answered  the  complaint 
of  the  Buffalo  Zinc  and  Copper  Company  substantially  as  fol- 
lows :  They  admitted  that  Sose  Ann  Kaylor,  on  the  sixth  day 
of  November,  1886,  attempted  to  make  the  location  named 
and  known  as  the  ^^Bell  Claim'';  and  that  Francis  E.  Blake, 
on  the  same  day  attempted  to  make  the  location  named  and 
known  as  the  ''White  Eagle  Mining  Claim'';  and  denied  all 
the  other  allegations  in  the  complaint.  They  say  that  the  pre- 
tended location  of  Bose  Ann  Kaylor  was  illegal,  because  <me 
E.  C.  Bartlett,  on  the  eleventh  day  of  March,  1885,  made  a 
location  of  a  mining  claim  on  the  same  land,  in  the  manner 
prescribed  by  law,  which  was  named  *'Bon  Ton,"  and  was  valid 
and  subsisting  on  the  6th  of  November,  1886.  They  allege 
that  the  White  Eagle  mining  claim  was  invalid,  because  one 
S.  E.  Williams,  on  the  twelfth  day  of  March,  1885,  segre- 
gated and  appropriated  the  land  on  which  it  was  located  by 
entering  upon  and  locating  thereon  a  mineral  claim,  known 
as  the  "Small  Hope,"  in  the  manner  and  form  required  by 


Jane,  1902.]       Buitalo  Zimo  »a  Co.  v.  Gbuhp.  91 

law;  and  that  it  was  in  full  force  when  fhe  White  Eagle  min- 
ing claim  was  located.  They  aver  that^  if  the  Buffalo  Zinc 
and  Copper  Company  acquired  an  interest  or  title  in  and  to 
the  lands  in  controyersy  by  locating  the  White  Eagle  and  Bell 
mining  claims  thereon,  it  abandoned  and  forfeited  it  on  the 
foorteenth  day  of  Febuary,  1892,  by  entering  and  locating 
ihereon  a  placer  mining  daim,  and  by  permitting  and  causing 
one  August  Schmidt,  on  the  thirteenth  day  of  April,  1S92,  to 
enter  the  land  as  a  homestead,  and  to  occupy  the  same  for  a 
full  period  of  five  years,  with  the  fraudulent  intent  of  acquir- 
ing the  aame,  through  Schmidt,  as  agricxdtural  lands.  They 
aTer  that  if  the  Buffalo  Zinc  and  Copper  Company  acquired 
any  interest  or  title  in  and  to  the  lands  upon  which  the  Bell 
and  White  Eagle  ^^^^  mining  claims  are  located^  it  forfeited 
the  same  by  failing  to  do  the  assessment  work  required  by  law 
in  such  cases  for  the  years  1893,  1894,  1895,  1896,  and  1897. 
They  alleged  that  they  peaceably  entered  and  located  a  placer 
daim  upon  the  lands  in  controversy.  They  alleged  that  the 
Buffalo  Zinc  and  Copper  Company  ought  not  to  maintain  their 
action,  because  it  is  a  foreign  corporation,  and  has  not  filed 
in  the  office  of  the  Secretary  of  State  a  copy  of  its  diarter  or 
artidea  of  incorporation  or  assodation,  and  has  not  designated 
an  agent,  who  is  a  dtizen  of  this  state,  upon  whom  summons 
or  other  process  may  be  served,  and  has  not  filed  a  certificate 
with  the  Secretary  of  State,  shewing  its  principal  place  of  busi- 
ness in  this  state.  And  they  asked  that  their  answer  be  taken 
and  considered  aa  a  cross-complaint  against  the  Buffalo  Zinc 
and  Copper  Company,  and  that  they  have  judgment  for  the 
land. 

The  defendants,  G.  J.  Crump,  B.  J.  Carney,  J.  C.  South, 
M.  N.  Dyer,  Z.  M.  Horton,  and  W.  F.  Pace,  answered  the  com- 
plaint of  the  Buffalo  Zinc  and  Copper  Company,  adopted  the 
answer  of  Frank,  S.  J.  and  Henry  Pace  as  thdr  own,  and  al- 
lied that,  on  the  twenty-eighth  day  of  December,  1897,  they 
located  a  mining  claim  on  the  lands  in  controversy,  and  called 
it  the  ''White  Eagle  Placer  Mining  Location,'^  and  thereupon 
entered,  begun  and  carried  thereon  mining  operations,  and 
expended  large  sums  of  money  in  developing  the  same,  and  at 
all  times  thereafter  have  continued  in  possession  and  expended 
money  and  labor  upon  the  same;  and  on  the  sixteenth  day 
of  September,  1898,  made  application  to  the  United  States 
for  a  patent  thereto  in  the  manner  and  form  required  by  law. 
And  they  asked  for  judgment  for  the  land. 


92  Amxrioan  Statb  Bbfobts,  Vol.  91.    [ArkanBas, 

The  Buffalo  Zinc  and  Copper  Company  answered  the  cross- 
complaint  of  Prank,  S.  J.  and  Henry  Pace,  and  denied  all  the 
allegations  therein  inconsistent  with  its  complaint. 

The  court,  after  hearing  the  evidence  adduced  by  both  par- 
ties, found  that  the  defendants  were  entitled  to  the  possession 
of  the  land,  and  that  the  plaintiff,  Buffalo  Zinc  and  Copper 
Company,  was,  in  equity,  entitled  to  recover  the  sum  of  ten 
thousand  dollars  for  moneys  expended  by  it  in  developing  said 
property,  but  refused  to  determine  whether  it  was  lead  or  lode 
or  placer  ground,  and  rendered  a  decree  in  favor  of  the  de- 
fendants for  the  land,  and  decreed  that  the  plaintiff  have  a 
lien  on  the  same  for  the  ten  thousand  dollars,  provided  it  as- 
sented to  and  ratified  the  decree  within  forty  days;  and  the 
plaintiff  appealed. 

^^^^  The  following  questions  are  presented  by  the  pleadings 
and  evidence  in  this  case  for  our  consideration  and  decision : 

1.  Did  appellant,  by  a  failure  to  comply  with  the  terms  of  an 
act  entitled  '^An  act  to  prescribe  conditions  upon  which  far- 
eign  corporations  may  do  business  in  this  state,^'  approved 
February  16,  1899,  lose  its  right  to  maintain  thia  action? 

2.  Was  the  mining  claim  of  appellant  located  upon  a  lead  and 
lodeof  mmeralP  3.  Were  the  locations  of  the  Bell  and  White 
Eagle  claims  by  Rose  Ann  Kaylor  and  Francis  E.  Blake  valid  ? 
4.  Did  appellant  abandon  or  forfeit  the  Bell  and  White  Eagle 
lead  and  lode  claims?  5.  Did  the  appellant  have  the  right  to 
amend  the  Bell  and  White  Eagle  claims? 

We  shall  consider  these  questions  in  the  order  stated. 

1.  Section  1  of  the  act  of  February  16,  1899,  provides  that 
every  foreign  corporation,  'T)efore  it  shall  be  authorized  or  per- 
mitted to  transact  business  in  this  state,  or  to  continue  business 
therein,  if  already  established,  shall,  by  its  certificate  under  the 
hand  of  the  president  and  seal  of  such  company  or  corporation, 
filed  in  the  office  of  the  Secretary  of  State  of  this  state,  designate 
an  agent  ....  upon  whom  service  of  summons  and  other  pro- 
cess may  be  made,''  and  state  its  principal  place  of  business  in 
this  state.  Section  2  provides  that  every  foreign  corporation 
doing  business  in  this  state  shall  file  in  the  office  of  the  Sec- 
retary of  State  of  this  state  a  copy  of  its  charter,  articles  of  in- 
corporation or  association,  or  certificate  of  incorporation. 
Section  3  provides  that  any  corporation  which  shall  refuse  or 
fail  to  comply  with  the  act  shall  be  subject  to  a  fine  of  not  less 
than  one  thousand  dollars,  and  shall  not  ^'maintein  any  suit 
or  action,  either  legal  or  equitable,  in  any  of  the  courts  of  this 


Jane,  1902.]       Buffalo  Zinc  etc,  C!o.  v.  Cbuxp.  93 

state,  upon  any  demand,  whether  arising  ont  of  contract  or 
torf* :  and  section  4  provides  that  "any  foreign  corporation 
that  has  heretofore  engaged  in  business,  or  made  contracts  in 
this  state,  may,  within  ninety  days  after  the  passage  of  this 
act,  file  such  copy  of  articles  of  incorporation,  together  with  cer- 
tificate of  appointment  of  an  agent  upon  whom  service  of  sum- 
mons or  other  legal  process  may  be  had,  in  the  office  of  the 
Secretary  of  State,  and  pay  the  requisite  fees  thereon,  as  pro- 
vided by  this  act.'* 

This  action  was  commenced  in  December,  1898,  before  the 
act  of  February  16th  was  passed;  and  the  plaintiff,  a  foreign 
corporation,  ***  filed  a  copy  of  its  articles  of  incorporation 
and  a  certificate  of  the  appointment  of  an  agent,  upon  whom 
service  of  simmionB  and  other  legal  process  may  be  had,  in  the 
ofBce  of  the  Secretary  of  State  on  the  18th  of  August,  1899, 
during  the  pendency  of  the  action. 

Appellant  contends  that  it  was  not  necessary  to  file  a  copy  of 
its  articles  of  incorporation  or  a  certificate  of  appointment  of  an 
agent,  in  order  to  maintain  this  action,  because  it  is  not  a  suit 
or  action  upon  any  demand  arising  out  of  a  contract  or  tort.  But 
it  is  not  necessary  to  decide  that  question.  The  act  of  February 
16tii  does  not  expressly  prohibit  the  institution  of  an  action 
because  of  a  failure  to  perform  any  condition,  nor  does  it  in- 
tend to  forever  prohibit  the  maintenance  of  any  action  be- 
cause the  plaintiff  therein  is  a  foreign  corporation,  and  has  not 
within  any  particular  time  complied  witii  its  terms.  Penal- 
ties are  imposed  on  account  of  past  conduct  or  omissions.  The 
penalties  of  the  act  in  question  are,  doubtless,  intended  to  com- 
pel an  observance  of  its  terms.  When  that  is  done,  its  pur- 
pose is  accomplished,  the  condition  upon  which  the  right  to 
maintain  an  action  depends  is  performed,  and  the  plaintiff 
can  in  the  future  prosecute  it  to  a  final  judgment :  Carson  Band 
Co.  V.  Sterne,  129  Mo.  381,  31  S.  W.  772. 

The  institution  and  prosecution  of  an  action  are  not  doing 
business  within  the  meaning  of  the  act  of  February  16,  1899, 
and  of  other  statutes  upon  the  same  subject:  Bailway  Co.  v. 
Fire  Assn.,  65  Ark.  174,  18  S.  W.  43.  The  appellant  complied 
with  the  act,  and  has  the  right  to  prosecute  its  suit  until  it  is 
finally  disposed  of  in  due  course  of  law. 

2.  Was  the  mining  claim  of  appellant  located  upon  a  lead 
and  lode  of  mineral  ? 

It  is  difficult  to  define  what  is  meant  by  a  lead,  lode  or  vein 
of  mineral  matter.    The  first  reported  case  in  which  a  defini- 


94  Akbrioan  State  Bbpostb,  Vol.  91.    [Arkansas 

tion  was  attempted  is  the  Eureka  Case,  4  Saw.  302,  311,  Fed. 
Cas.  No.  4548.    The  court,  after  observing  that  the  word  was 
not  always  used  in  the  same  sense  in  scientific  works  on  geology 
and  mineralogy  and  by  those  actually  engaged  in  the  working 
of  mines,  said:  "It  is  difficult  to  give  any  definition  of  Ihe 
term,  as  understood  and  used  in  the  acts  of  Congress,  which 
will  not  be  subject  to  criticism.    A  fissure  in  the  earth's  cruBt, 
an  opening  in  its  rocks  and  strata  made  by  some  force   of 
nature,  in  which  the  mineral  is  depositerl,  wonld  seem  to   be 
essential  to  the  definition  of  a  lode,  in  the  judgment  of  geolo- 
gists.   *"**  Bnt,  to  the  practical  miner,  the  fissure  and  its  walla 
are  only  of  importance  as  indicating  the  boundaries  within 
which  he  may  look  for  and  reasonably  expect  to  find  the  ore 
he  seeks.    A  continuous  body  of  mineralized  rock,  lying  within 
any  other  well-defined  boundaries  on  the  earth's  surface  and 
under  it,  would  equally  constitute,  in  his  eyes,  a  lode.     We 
are  of  opinion,  therefore,  that  the  term,  as  used  in  the  acts  of 
Congress,  is  applicable  to  any  zone  or  belt  of  mineralized  rode 
lying  within  boundaries  clearly  separating  it  from  the  neighbor- 
ing rocks.'*    The  supreme  court  of  the  United  States  in  Iron 
Silver  Min.  Co.  t.  Cheesman-,  116  U.  S.  529,  534,  6  Sup.  Ct. 
Rep.  481,  483^  followed  this  citation  by  observing:  ''This  defi- 
nition  has  receiyed  repeated  commendation  in   other  caaeB, 
especially  in  Steyens  v.  Williams,  1  McCrary,  480,  488,  Fed. 
Cas.  No.  13,413,  where  a  shorter  definition  by  Judge  Hallett, 
of  the  Colorado  circuit  court;,  is  also  approved,  to  wit:  In 
general,  it  may  be  said  that  a  lode  or  vein  is  a  body  of  mineral, 
or  mineral  body  of  rock,  within  defined  boundaries,  in  the  gen- 
eral mass  of  the  mountain.''    And  the  same  court,  in  the 
same  case,  said:  ''The  lode  or  vein  must  be  continuous  in  the 
sense  that  it  can  be  traced  through  the  surrounding  rocks,  though 
slight  interruptions  of  the  mineral-bearing  rock  would  not  be 
alone  sufficient  to  destroy  the  identity  of  the  vein.    Nor  would 
a  short  partial  closure  of  the  fissure  haye  that  effect  if  a  little 
farther  on  it  recurred  again  with  mineral-bearing  rock  within 
it" :  Iron  Silver  Min.  Co.  y.  Cheesman,  116  U.  S.  538,  6  Sup.  Ct. 
Rep.  485.    We  accept  this  interpretation  of  the  acts  of  Con- 
gress as  correct. 

The  validity  of  the  location  of  the  Bell  and  White  Eagle 
mining  claim  depend  upon  the  acts  of  Congress.  They  are 
located  under  these  acts,  and  derive  their  whole  force,  f?trength 
and  support  from  them.  In  determining,  therefore,  whetlier 
they  were  located  upon  a  lode  or  vein  of  minerals^  we  are  gov* 


Jmie,  1902.]       Buitalo  Zirc  rc.  Ca  v.  Cbump.  95 

crned  by  the  meuuDg  af  ihose  terms  as  used  in  the  statutes 
of  the  TJnited  States.  It  can  serve  no  useful  purpose  to  set 
forth  the  evidence  adduced  by  the  parties  upon  this  issue.  It 
vould  require  too  much  time  and  space  to  do  so.  It  is  suffi- 
cient to  say  that,  in  our  opinion,  the  preponderance  of  the  evi- 
denoe  in  the  case  shows  that  the  claims  in  question  were  located 
upon  a  lode  or  vein  of  minerals,  in  the  sense  those  terms  are 
used  in  the  laws  enacted  by  Congress ;  and  we  so  decide. 

3.  Appellees  insist  that  the  locations  of  the  Bell  and  White 
^'^  Eagle  claims  as  made  by  Bose  Ann  Kaylor  and  Francis 
B.  Blake  were  invalid.    They  say  that  the  description  of  the 
Bell  claim  in  the  notice  of  location  by  Kaylor  was  insufficient. 
It  is  as  follows:  'beginning  at  the  northwest  comer  of  Ed. 
Williams,  1-16,  at  a  black  oak  post;  thence  1,500  feet  north 
between  sections  10  and  11  to  a  dogwood  busli;  thence  600 
feet  east  to  a  dogwood  bush;  thence  1,500  feet  south  to  oak 
post  in  Williams'  field;  thence  600  feet  to  place  of  beginning. 
This  being  in  the  northwest  quarter  of  the  southwest  quarter, 
section  11,  township  17,  range  15  west/*    They  base  their  con- 
tention upon  the  fact  that  there  is  nothing  in  the  record  which 
thows  what  is  meant  by  "Ed.  Williams,  1-16,'*  named  in   the 
notice  as  the  beginning  point.    But  it  does  show  that  it  was 
at  a  black  post,  and  1,500  feet  north  of  it  was  a  dogwood  bush 
between  sections  10  and  11,  which  must  have  been  on  the  line 
between  those  sections,  and  that  the  claim  described  was  in  the 
northwest  quarter  of  the  southwest  quarter  of  section  11,  town- 
ship 17,  range  15  west,  in  Marion  county,  in  this  state.    The 
presumption  is  that  it  (Ed.  Williams,  1-16)  is  a  well-known 
natural  object,  until  the  contrary  appears:  Hanuner  v.  Gar- 
field Min.  etc.  Co.,  130  TJ.  S.  291,  9  Sup.  Ct.  Bep.  548,  16 
Morr.  Min.  Bep.  125,  132.    And  nothing  is  shown  to  the  con- 
trary.   The  sufficiency  of  the  description  is  not  attacked  upon 
any  other  ground. 

What  we  have  said  of  the  Bell  claim  is  equally  true  of  the 
White  Eagle  claim.  They  further  insist  that  there  is  no  evi- 
dence to  show  that  the  notices  of  the  location  of  these  claims 
jwere  posted  on  them,  but  the  evidence  does  show  that  the  ap- 
pellant purchased  the  Bell  and  White  Eagle  claims,  and  that 
they  were  conveyed  to  it  by  the  vendor,  and  that  it  has  been  in 
possession  controlling  and  developing  them,  and  holding  ad- 
Tenely  to  all  the  world,  for  a  time  longer  than  the  statutory 
period  of  limitation.  As  against  all  adverse  claimants,  the 
piesumption  is  that  the  location  of  the  claim  of  appellant  was 


96  American  State  Bepobts^  Vol.  91.    [Ar] 

regularly  made:  Harris  v.  Equator  Min.  etc.  Co.,  3  McCraiy, 
14,  8  Fed.  863,  12  Morr.  Min.  Bep.  178;  Cheesman  ▼.  Hart, 
42  Fed.  99.  They  say  that  the  notices  of  the  location  of  these 
claims  were  not  recorded  within  thirty  days.  The  record  shows 
that  they  were  recorded  before  any  adverse  rights  to  the  same 
ground  were  acquired.  This  is  sufiBcient.  No  damage  was 
done  by  the  failure,  and  no  one  can  complain  that  it  was  not 
done  at  an  earlier  date:  '^*®  Faxon  v.  Barnard,  2  McCrary, 
44,  4  Fed.  702,  9  Morr.  Min.  Bep.  615;  Preston  v.  Hunter, 
67  Fed.  996 ;  McGinnis  v.  Egbert,  8  Colo.  41,  5  Pac.  652,  15 
Morr.  Min.  Bep.  329. 

Appellees  contend  that  the  original  locations  of  the  Bell  and 
White  Eagle  claims  were  Toid,  because  the  land  coyered  thereby 
was  not  subject  to  location  at  the  time  they  were  made,  S.  C. 
Bartlett  and  S.  E.  Williams  having  previously,  on  the  12tfa  of 
March,  1885,  made  mining  locations,  known  as  the  'HSon  Ton** 
and  '^Small  Hope''  claims,  on  the  same  land.    The  evidoice 
indicates  that  Bartlett  and  Williams  had  abandoned  their  claims 
when  the  Bell  and  White  Eagle  claims  were  located.     After 
locating  the  Bon  Ton  and  Small  Hope  claims^,  they  never  un- 
dertook to  develop  and  maintain  them.    The  Bell  and  White 
Eagle  claimants  took  possession  and  held  and  developed  them 
by  work  and  labor  performed,  and  held  adverse  possession  of 
the  same  for  a  longer  time  than  the  period  of  limitation  pre- 
scribed by  statute.    This  was  sufficient  to  render  their  claim 
valid  against  everyone  except  the  "United  States:  Glacier  Mt. 
etc.  Min.  Co.  v.  Willis,  127  U.  S.  471,  8  Sup.  Ct.  Bep.  1214; 
Francoeuer  v.  Newhouse,  43   Fed.  236;  Four  Hundred  and 
Twenty  Min.  Co.  v.  Bullion  Min.  Co.,  3  Saw.  634,  Fed.  Cas. 
No.  4989;  Harris  v.  Equator  Min.  etc.  Co.,  3  McCrary,  14, 
8  Fed.  863. 

4.  Did  appellant  abandon  or  forfeit  the  Bell  and  White  Eagle 
lead  and  lode  claims? 

Appdlees  alleged  that  appellant  made  a  placer  location  upon 
one  hundred  and  sixty  acres,  including  the  ground  upon  which 
the  Bell  and  White  Eagle  lead  and  lode  claims  were  located, 
and  thereby  abandoned  the  latter.  But  this  was  disproved  by 
the  evidence.  W.  Q.  Seawell,  as  agent,  undertook  to  make  such 
a  location,  but  did  so  without  authority,  and  appellant  refused 
to  ratify  it. 

The  next  contention  is  that  appellant  abandoned  the  Bell  and 
White  Eagle  mining  claims  by  quitting  work  upon  them  and 
closing  them  up,  and  causing  August  Schmidt  to  enter  the  land 


Jane,  1902.]       Buffalo  Zino  btc.  Oo.  v.  Crump.  97 

embraced  by  the  same,  together  with  other  lands  amounting 
in  the  aggregate  to  one  hundred  and  sixty  acres,  as  a  home- 
stead. An  abandonment  is  a  voluntary  act^  and  consists  of 
the  Teliiiqiiishment  of  possession  of  the  claim  with  an  intention 
not  to  return  and  occupy  it.  It  is  purely  a  question  of  inten- 
tion, ^f  there  is  no  animus  revertendi^  the  desertion  of  the 
daim  determines  the  property  at  once^  without  regard  to  the 
duration  of  the  locator's  absence/'  To  constitute  an  abandon- 
ment, there  must  be  an  absolute  desertion  of  the  premises. 
•*•  The  burden  of  proving  it  is  upon  him  who  asserts  it:  3 
Lindley  on  Mines,  sec.  643.  In  this  case  the  appellant  quit 
work  upon  its  claims  temporarily,  except  annual  assessment 
work,  on  account  of  the  lack  of  transportation  for  the  ores 
taken  from  the  mines.  August  Schmidt  entered  the  land  as 
a  homestead,  but  without  the  consent  of  appellant.  There 
was  no  agreement  or  understanding  that  he  would  hold  the 
land  for  its  benefit.  The  evidence  is  insufficient  to  prove  that 
it  did  or  intended  to  relinquish  its  claims. 

Appellees  allege  that  appellant  forfeited  the  Bell  and  White 
Eagle  mining  claims  by  the  failure  to  perform  the  annual  labor 
required  by  law.  Section  2324  of  the  Revised  Statutes  of  the 
United  States  provides,  among  other  things,  as  follows:  ''On 
each  [mining]  claim  located  after  the  10th  of  May,  1872,  and 
until  patent  has  issued  therefor,  not  less  than  one  hundred 
dollars'  w^orth  of  labor  shall  be  performed  or  improvements 
made  during  each  year.  But  where  such  claims  are  held  in 
commoti,  such  expenditures  may  be  made  upon  any  one  claim; 
and,  upon  a  failure  to  comply  with  these  conditions,  the  claim 
or  mine  upon  which  such  failure  occurred  shall  be  open  to 
relocation  in  the  same  manner  as  if  no  location  of  the  same 
had  ever  been  made ;  provided,  that  the  original  locators ,  their 
heirs,  assigns  or  legal  representatives,  have  not  resumed  work 
upon  the  claim  after  failure  and  before  such  location/'  Un- 
der this  statute,  if  an  original  locator,  his  heirs  or  assigns, 
should  fail  to  perform  work  in  any  year,  and  should  there- 
after resume  work  in  good  faith  before  any  location  is  made, 
he  thereby  preserves  his  right  to  the  claim.  His  rights  then 
stand  as  they  would  if  there  had  been  no  failure  to  comply 
with  this  condition  of  the  law ;  and  no  one  has  a  right  to  re- 
locate upon  the  land  covered  by  his  claim  after  such  resumption 
of  work  in  good  faith:  Belk  x.  Meacrher,  104  U.  S.  279;  North 
Ifoonday  Min.  Co.  v.  Orient  Min.  Co.,  1  Fed.  622,  636. 

8t    lUpw.    Vol    Wr-7 


98  Akerioan  State  Reports,  Vol.  91.    [Arkaiisa3, 

As  said  in  Belk  t.  Meagher^  104  XT.  S.  284 :  ^'Mining  daims 
are  not  open  to  relocation  until  the  rights  of  a  former  locator 

have  come  to  an  end The  right  of  location  upon  the 

mineral  lands  of  the  United  States  is  a  privilege  granted  by 
Congress,  but  it  can  only  be  exercised  within  the  limits  pre- 
scribed  by  the  grant.  A  location  can  only  be  made  where  the 
law  allows  it  to  be  done.  Any  attempt  to  go  beyond  that  will 
be  of  no  avail.  Hence  a  relocation  on  lands  actually  covered 
at  the  time  by  another  valid  and  subsisting  location  is  void; 
and  this  not  only  against  the  prior  *^  locator,  but  the  whole 
world,  because  the  law  allows  no  such  thing  to  be  done." 

A  forfeiture  of  a  mining  claim  by  the  failure  of  the  former 
owner  to  perform  the  annual  labor  required  by  law  cannot  be 
established  except  by  clear  and  convincing  evidence.  The  bur- 
den of  proving  it  rests  upon  him  who  sets  it  up — ^in  this  case 
upon  the  appellees:  Hammer  v.  Garfield  Min.  etc.  Co.,  130 
U.  S.  291,  301,  9  Sup.  Ct.  Rep.  548. 

The  grantors  of  appellant  located  their  mining  claims,  the 
Bell  and  White  Eagle,  in  the  year  1886.  They  and  appellant 
held  and  controlled  the  same  until  1897  and  1898,  when  ap- 
pellees undertook  to  locate  claims  upon  the  same  and  other 
lands  and  to  take  possession  thereof.  Saying  nothing  of  the 
work  done  by  appellant  in  previous  years,  we  think  the  evi- 
dence satisfactorily  shows  that  it  in  good  faith  annually  per- 
formed the  work  required  by  the  statutes  of  the  United  States 
in  the  years  1895,  1896,  1897  and  1898,  and  until  the  com- 
mencement of  this  suit.  The  attempted  location  of  appellees 
was  therefore  void,  and  the  effort  to  take  possession  was  a 
trespass. 

5.  Appellant  amended  the  location  of  its  Bell  and  White 
Eagle  mining  claims.  Appellees  insist  in  this  court  that  the 
amendment  was  not  made  in  the  manner  prescribed  by  law. 
But  that  was  not  in  issue  in  the  trial  court.  Appellant  alleged 
in  its  complaint  as  follows :  "Plaintiff  further  states  that  on  the 
nineteenth  day  of  May,  1898,  plaintiff,  being  the  owner  of,  and 
in  possession  of,  all  that  part  of  said  White  Eagle  and  Bell 
mining  claims  that  was  not  embraced  in  the  homestead  of 
August  Schmidt  as  corrected  by  the  Secretary  of  the  Interior, 
made  a  corrected  location  of  said  mining  claims,  so  as  to  con- 
form to  the  lead  or  lode  of  mineral ;  and  embraced  said  lands  in 
one  claim,  containing  about  seventeen  and  sixty  one-hundredth* 
acres,  and  named  the  White  Eagle  Lead  and  Lode  Mininsr 
Claim,  and  situated  and  embracing  most  of  the  south  half  of 


Jane,  1902.]       Buffalo  Zinc  etc.  Co.  v.  Crump.  99 

the  northwest  quarter  of  section  11,  township  17  north,  of 
range  15  west.     That  said  amended  location  was  made  in  con- 
formity to  the  laws  of  the  United  States,  the  laws  of  the  state 
of  Arkansas,  and  the  laws  and  usages  of  the  Sush  Creek  min- 
ing district,  where  said  mining  claim  is  located.     That  said 
location  notice  was  duly  recorded  in  the  oflBce  of  the  Bush  Creek 
mining  district  on  the  ninth  day  of  May,  1898,  in  record  book 
K,  on  pages  44  and  45/'    And  appellees  answered  as  follows: 
**They  deny  that  plaintiff,  *^*  Buffalo  Zinc  and  Copper  Com- 
pany, had  any  right  or  authority  to  make  the  said  pretended 
change  and  correction  of  what  it  claims  to  be  its  lode  or  lead 
mineral  claim They  aver  that,  as  alleged  in  their  origi- 
nal complaint  ffled  herein,  which  said  complaint  is  here  re- 
ferred to  and  asked  to  be  taken  and  considered  in  connection 
with  this  pleading,  that  long  before  said  pretended  change  of 
survey  by  said  plaintiff,  Buffalo  Zinc  and  Copper  Company* 
theae  plaintiffs  [defendants]  had,  in  manner  and  form  required 
by  law,  peaceably  entered  upon  and  made  August  Placer  Min- 
eral Location,  covering  all  the  land  involved  in  this  contro- 
versy and  all  the  lands  mentioned  and  described  in  these  plain- 
tiffs' [defendants']  original  complaint,  and  was  holding  the 
same  at  the  time  the  said  plaintiff,  Buffalo  Zinc  and  Copper 
Company,  entered  thereon  for  the  purpose  of  making  said  pre- 
tended change  in  what  they  claimed  to  be  their  lead  and  lode> 
and  aver  that  said  entry  by  said  plaintiff,  Buffalo  Zinc  and 
Copper  Company,  was  without  right  or  authority  of  law,  and 
that  such  entry  was  a  trespass  on  the  rights  of  these  plaintiffs 
[defendants]."    The  complaint  and  answer  show  that  the  le- 
gality and  sufficiency  of  the  amendment  of  the  location  were 
not  questioned,  except  the  right  of  appellant  to  enter  upon  the 
land  for  the  purpose  of  making  the  same,  and  that,  we  have 
seen,  it  could  lawfully  do.    It  was  unnecessary  to  prove  or 
show  that  which  was,  expressly  or  impliedly,  admitted  by  all 
the  parties.    It  follows  that  the  mining  claims  of  the  ap- 
pellees,  so  far  as  they  conflict  with  that   of  appellant,   as 
amended,  should  have  been  canceled  by  the  trial  court. 

It  is  therefore  ordered  that  the  decree  appealed  from  be  re- 
versed, and  that  this  cause  be  remanded  with  instructions  to 
the  court  to  enter  a  decree  in  accordance  with  this  opinion. 


Mininff.—A  Vein,  within  the  meaning  of  the  mining  law,  is  a  con- 
tinnons  body  of  mineral-bearing  rock  in  place  in  the  general  mass 
of  snrronnding  formation;  and  while  it  must  have  boundaries,  it  is 
lot  neeeflflary  that  they  be  seen,  but  their  ezistenee  may  be  other* 


100  American  Statb  Eepobts,  Vol,  91.    fAr! 

wise  determined:  Beals  ▼.  Cone,  27  Colo.  473,  83  Am.  St.  Bop.  92, 
Pac.  948.  Its  continuity  may  be  interrupted,  even  to  a  closure  of 
the  fissure,  without  destroying  its  identity.  By  continuity  is  meant 
such  mineral  or  geological  connection  as  would  enable  a  person  to 
follow  the  vein  along  its  dip,  and  through  the  obstructions,  inter- 
ruptions, and  breaks  that  may  occur  therein:  Butte  etc.  Min.  Co. 
V.  Societa  Anonyme  etc.,  23  Mont.  177,  75  Am.  St.  Bep.  506,  58  Pac 
111. 

The  Abandonment  of  a  Mining  Claim  is  a  question  of  intention.  It 
rests  upon  the  intent  to  abandon,  and  the  acts  accompanying  the  in* 
tention:  See  the  monographic  note  to  McKay  v.  McDougall,  87  Am. 
St.  Bep.  403-405. 

The  Forfeitvre  of  a  Mining  Olaim  involves  no  question  of  intention; 
it  takes  place  by  operation  of  law  when  the  required  expenditure  ia 
not  made  on  the  claim.  But  although  the  expenditure  is  not  made 
within  the  prescribed  time,  the  locator's  rights  may  be  saved  by  a 
resumption  of  work  before  third  persons  have  made  a  relocation: 
See  the  monographie  note  to  McECay  v.  McDongall,  87  Am.  St.  Bep. 
405-416. 


FORT  SMITH  v.  SCRUGGS. 

[70  Ark.  549,  69  &.  W.  679.] 

TAZATIOK,  DOUBLE— Wliat  l8  Not.— A  statute  requirin|p 
persons  keeping  and  using  wheeled  vehicles  in  a  city  to  pay  a  tax 
for  that  privilege,  such  tax,  when  collected,  to  be  appropriated  ex- 
clusively for  repairing  and  improving  streets,  does  not  authorize 
double  taxation,  though  such  property  is  also  assessed  in  proportion 
to  its  value,  and  a  tax  levied  thereon.  The  tax  thus  authorised  to 
be  imposed  by  the  city  is  in  the  nature  of  a  toll  for  the  use  of  ite 
improved  streets,     (p.  102.) 

MUNIOIPAIi  CX>BPOBATIOKS— Tax  for  Privilege  of  Vfltnc 
Streets  of. — The  legislature  may  authorize  a  municipal  corporation 
to  impose  a  tax  on  the  privilege  of  driving  vehicles  upon  its  pnblie 
streets,     (p.  105.) 

HUNIOrPAL  00BPORATION8— Tax  for  Ufdng  Streeti— 
Whether  may  be  Exacted  of  Besidents  Only.— The  legislature  may 
authorizo  the  imposing  by  a  municipal  corporation  upon  its  residents 
of  a  tax  for  keeping  and  using  a  vehicle  on  its  streets,  because,  as 
a  class,  residents  use  such  streets  more  than  nonresidents,     (p.  105.) 

MUmOIPAIi  0BDINANCB8  Void  in  Part  Only.— If  a  rannie- 
tpal  ordinance  requires  the  payment  of  a  tax  to  be  in  gold,  silver,  or 
United  States  currency,  when  such  payment  should  have  been  author- 
ized to  be  made  in  municipal  warrants,  or  makes  unlawful  discrimina- 
tion between  persons,  these  unauthorized  provisions  of  the  ordinance 
•nay  be  disregarded  and  the  balance  enforced,     (p.  106.) 

Prosecution  of  the  defendant,  a  resident  of  Fort  Smith, 
for  keeping  a  one-horse  buggy  for  pleasure  driving  and  a  one- 
horse  delivery  wagon  for  business  purposes,  without  paying 


Jttljf  1902.]  FoBT  Smith  v.  ScBuees.  101 

a  tax  or  Kcense  fee  as  required  by  a  municipal  ordinance,  de- 
claring it  to  be  unlawful  for  any  person  of  the  city  to  keep 
and  use  any  wheeled  vehicle  without  first  obtaining  a  license 
therefor.  The  ordinance  designated  the  amount  of  license  fee 
to  be  paid,  required  payment  to  be  made  in  gold,  silver,  or 
United  States  currency,  and  directed  the  proceeds  to  go  into 
a  fund  to  be  used  for  repairing  and  improving  the  streets,  and 
declared  that  violations  of  the  ordinance  were  pimishable  as 
misdemeanors.  The  trial  court  decided  that  the  statute  re- 
ferred to  in  the  opinion  of  the  appellate  court  and  under  which 
the  ordinance  was  sought  to  be  sustained  was  unconstitutional^ 
and  the  city  appealed. 

P.  M.  Jamieson,  for  the  appellant. 

Mechem  ft  Bryant,  for  the  appellee. 


BIDDICK,  J.  This  is  an  appeal  from  a  judgment 
rendered  in  a  case  where  a  resident  of  the  city  of  Fort  Smith 
was  prosecuted  for  keeping  and  using  a  wheeled  vehicle  in 
that  dty  without  having  a  license  therefor.  The  question  in 
the  case  relates  to  the  validity  of  the  city  ordinance  which 
imposes  a  license  tax  upon  residents  of  the  city  for  the  privilege 
of  keeping  and  using  wheeled  vehicles  upon  the  streets  of  the 
cnty.  Our  statute  on  that  subject  la  as  follows,  to  wit :  'Tities 
of  the  first  class  are  hereby  authorized  to  require  residents 
of  such  city  to  pay  a  tax  for  the  privilege  of  keeping  and 
using  wheeled  vehicles,  except  bicycles,  but  such  tax  shall  be 
appropriated  and  used  exclusively  for  repairing  and  improving- 
ibe  streets  of  such  city^:  Acts  of  1901,  p.  113. 

There  can  be  no  doubt  that  the  language  of  this  act  is  broact 
enough  to  authorize  an  ordinance  taxing  residents  of  the  city 
for  the  privilege  of  keeping  and  using  wheeled  vehicles  upon 
the  streets  of  the  city.  If  the  act  is  valid,  it  follows  that  the 
ordinance,  if  properly  passed,  is  valid  unless  void  because  it 
goes  beyond  the  *"^  authority  conferred  by  the  statute.  It 
is  admitted  that  the  ordinance  was  properly  passed,  and  the 
most  important  question  raised  by  the  appeal  relates  to  the 
validity  of  the  statute  upon  which  the  ordinance  is  based. 

The  first  objection  urged  against  the  statute  is  that  it  at- 
tempts to  authorize  double  taxation.  It  is  said  that,  as  the 
defendant  had  already  paid  the  general  state  and  city  taxes  on 
his  buggy  and  wagon,  the  attempt  to  make  him  pay  a  license 
fee  for  the  privilege  of  using  them  is  really  an  attempt  to 


102  Akebioak  Statb  Bepobts,  Vol.  91.    [Arlrnniwi^ 

levy  an  additional  tax  upon  his  wagon  and  buggy.  CoiixiBel 
say  that  a  tax  on  the  use  of  an  article  is  a  tax  on  the  article 
itself.  While  this  may  be  true  of  a  piano,  bedstead,  or  cookixig 
stove,  the  use  of  which  inyolves  no  injury  or  detriment  to  the 
public  or  its  property,  as  to  wheeled  vehicles  it  is  different, 
for  they  are  made  to  be  used  upon  roads  and  streets.  Tlie 
streets  belong  to  the  public,  and  are  under  the  control  of  the 
l^slature,  whose  province  it  is  to  enact  laws  for  their  improve- 
ment  and  repair.  The  chief  necessity  for  keeping  improved 
streets  is  that  they  may  be  used  for  the  passage  of  wheeled 
vehicles,  and  the  wear  of  the  streets  caused  by  the  passage  of 
such  vehicles  over  them-  makes  necessary  constant  and  expen- 
sive repairs.  For  this  reason,  no  doubt,  the  legislature  con- 
sidered it  to  be  equitable  and  just  that  owners  of  such  vehicles 
should,  in  addition  to  the  general  tax  upon  their  property, 
pay  something  for  the  privilege  of  usin^  the  streets  as  drive- 
irays,  the  amount  paid  to  go  toward  keeping  the  streets  in  good 
repair.    This  is  what  the  legislature  attempted  to  do. 

The  act,  we  think,  plainly  shows  that  there  was  no  intention 
to  authorize  a  tax  upon  vehicles  or  other  property.    It  au- 
thorizes only  a  tax  upon  the  privilege  of  keeping  and  using 
vehicles  upon  the  streets  of  the  city,  and  it  requires  that  this 
tax  shall  be  used  exclusively  for  repairing  and  improving  the 
streets  of  the  city.    A  resident  of  the  city  may  keep  and  ufie 
at  his  place  in  the  country  as  many  vehicles  as  he  pleases, 
but  he  is  subject  to  no  tax,  under  this  statute,  unless  he  uses 
them  on  the  streets  of  the  city.    He  can  keep  and  use  vehicles 
anywhere  in  the  world,  except  on  the  streets  of  the  city  of  his 
residence,  and  he  is  not  liable  to  the  tax.    The  license  fee  im- 
posed is,  then,  not  a  tax  upon  property,  but  is  in  the  nature 
of  a  toll  for  the  use  of  the  improved  streets.    In  other  words, 
it  is  the  privilege  of  using  vehicles  on  the  improved  streets, 
and  not  the  vehicle  itself,  that  is  taxed.    We  are,  therefore, 
**•  of  the  opinion  that  the  statute  is  not  subject  to  the  criti- 
cism that  it  authorizes  double  taxation,  and  the  contention  of 
the  defendant    on  that    point    must    be    overruled.    Having 
reached  the  conclusion  that  this  ordinance  does  not  attempt 
to  tax  property  but  to  tax  a  privilege,  it  follows  that  the  pro- 
visions of  our  constitution  requiring  that  all  property  *'shall 
he  taxed  according  to  its  value,*'  and  in  such  manner  as  to 
make  the  same  equal  and  uniform  throughout  the  state,  do 
not  apply,  for  they  refer  to  taxes  upon  properly  only:  Little 


July,  1902.]  Fobt  Smith  v.  Scbumb.  108 

Bock  T.  Prather,  46  Ark.  479;  Baker  t.  State,  44  Ark.  134; 
Washington  y.  State,  13  AA.  752. 

The  next  question  presented  is  whether  the  legislature  has 
the  power  to  authorize  cities  to  impose  a  tax  upon  the  privi- 
lege of  driTing  yehicles  upon  the  public  streets.    The  conten- 
tion on  this  point  is  that  a  resident  of  a  city  has  a  right  to 
cbrive  upon  the  public  streets,  and  that  the  right  to  do  so  is 
not  a  priyilege  that  can  be  taxed.    It  is  no  doubt  true  that 
the  city  could  not  impose  a  tax  upon  the  privilege   of  using 
the  streets  for  driving  vehicles  upon  them  without  legislative 
permission  to  do  so.    The  right  to  drive  on  the  public  streets 
coxQd  not  be  treated  as  a  privilege  but  for  the  act  of  the  legist 
latore  making  it  one.    But  the  streets  belong  to  the  public, 
and  are  under  the  control  of  the  legislature:  Elliott  on  Streets 
and  Boads,  2d  ed.,  sec.  21.    It  is  within  the  power  of  the 
legislature  not  only  to  make  needful  regulations  concerning 
&e  use  of  the  public  roads  and  streets,  but  also  to  provide 
means  by  which  they  may  be  improved  and  kept  in  repair. 
In  order  to  effect  that  purpose,  the  legislature  has,  in  effect, 
declared  the  use  of  the  streets  by  wheeled  vehicles   to  be  a 
privilege,  and  has  authorized  the  city  to  tax  the  privilege.    We 
know  of  no  limitation  on  the  power  of  the  legislature  that 
prevents  it  from  passing  such  an  act,  and  thus  authorizing  the 
imposition  of  a  reasonable  tax  for  that  purpose.    '^Every- 
thing,'*  says  Judge  Cooley,  *'to  which  the  legislative  power  ex- 
tends may  be  the  subject  of  taxation,  whether  it  be  person  or 
property,  or  possession,  franchise,  or  privil^e,  or  occupation, 
or  right.     Nothing  but  express  constitutional  limitation  upon 
legislative  authority  can  exclude  anything  to  which  the  author- 
ity extends  from  the  grasp  of  the  taxing  power,  if  the  legis- 
lature in  its  discretion  shall  at  any  time  select  it  for  revenue 
purposes^':  Cooley  on  Taxation,  2d  ed.,  5.    Again,  he  says: 
''The  power  to  impose  taxes  is  one  so  unlimited  in  force  and 
so  searching  in  extent  that  *""*  the  courts  scarcely  venture  to 
declare  that  it  is  subject  to  any  restrictions  whatever,  except 
such  as  rest  in  the  discretion  of  the  authority  which  exercises 
it.    It  reaches  to  every  trade  or  occupation;  to  every  object 
of  industry,  use,  or  enjoyment;  to  every  species  of  possession; 
and  it  imposes  a  burden  which,  in  case  of  failure  to  discharge 
it,  may  be  followed  by  seizure  and  sale  or  confiscation  of  prop- 
erty*' :  Coolejr's  Constitutional  Limitations,  6th  ed.,  687.    These 
statements  of  the  law  by  the  learned  author  are  well  supported 
by  decisions  of  our  highest  courts :  McCulloch  v.  Maryland,  4 


104  Ahbrioak  State  Bepobts^  Vol.  91.    [Arkansas,. 

Wheat    316,  418;    Kirtland   v.  Hotchkiss,  100   TJ.    S.    491  j 
Youngblood  v.  Sexton,  32  Mich.  406,  20  Am.  Rep.  654. 

The  gubject  matter  of  this  statute  comes,  we  think,  within, 
the  general  law-making  power  of  the  legislature,  and,  if  there 
be  any  limitation  forbidding  the  exercise  of  such  power  in  that 
respect,  it  must  be  found  in  the  constitution.  But  there  is 
none.  Our  constitution  specially  provides  that  the  legislature 
ahall  have  power  to  tax  privileges  in  such  manner  as  may  be* 
deemed  proper.  It  also  authorizes  the  legislature  to  delegate 
the  taxing  power  to  towns  and  cities  of  the  state  to  the  extent 
necessary  for  fheir  ^'existence,  maintenance  and  well-being^^  r 
Const.  1874,  art.  2,  sec.  23;  also  art.  16,  sec.  5.  And  it  has 
been  established  by  the  decisions  of  this  court  that  the  legia- 
lature  may  delegate  to  towns  and  cities  the  power  to  tax  occn- 
pations :  Little  Bock  v.  Prather,  46  Ark.  479. 

If,  notwithstanding  the  fact  that  a  merchant  has  paid  taxes 
on  all  his  property,  including  his  stock  of  goods,  the  state  may 
yet  authorize  the  city  to  compel  him  to  pay  an  additional  tax 
for  the  privilege  of  carrying  on  his  business,  why  may  not  the- 
state  authorize  the  city  to  collect  a  reasonable  tax  in  the  na- 
ture of  a  toll  for  the  use  of  its  streets?  It  would  eeem  that 
the  tax  for  the  use  of  the  streets  is  more  equitable  and  just 
than  the  occupation  tat.  The  goods  of  the  merchant  are  in 
his  own  store.  In  pursuing  his  business  he  is  not  infringing" 
upon  the  rights  or  injuring  the  property  of  either  the  public 
or  its  citizens.  But  the  use  of  the  public  streets  by  driving 
vehicles  upon  them  does  wear  them,  and  in  the  end  calls  for 
repairs  and  additional  outlay  on  the  part  of  the  public.  The 
improvement  of  the  streets  confers  upon  the  class  taxed — ^that 
is  to  say,  upon  those  who  keep  and  use  vehicles — ^a  special  bene- 
fit, so  that  it  is  right  that  they  should  pay  a  greater  propor- 
tion of  the  taxes  required  to  keep  them  in  repair  than  those  **• 
who  do  not  use  the  streets  in  that  way.  In  other  words,  to 
quote  the  language  of  a  Missouri  court,  it  is  just  and  proper 
that  ''those  who  mainly  wear  out  the  streets  should  mainly 
pay  for  keeping  them  in  repair" :  City  of  St.  Louis  v.  Green^ 
7  Mo.  App.  477. 

We  are  therefore  inclined  to  the  opinion  that  this  is  a  just 
and  eqtdtable  statute.  But  whatever  may  be  our  views  about 
the  expediency  of  the  act,  it  must  be  sustained  on  the  ground 
that  it  comes  within  the  sovereign  powers  of  the  legislature, 
and  because  we  find  nothing  in  the  constitution  that  forbids 
the  exercise  of  such  power.    Similar  statutes  have  been  sus- 


July,  1902.]  Fobt  Smith  v.  Scrucm^b.  105 

tained  in  other  states :  City  of  St.  Lotus  t.  Oieen^  7  Mo.  App. 
474;  City  of  St  Louis  v.  Oreen,  70  Mo.  562;  Mason  y.  Ciun- 
berkad,  92  Md.  451,  48  Atl.  136;  Tomlinson  y.  City  of  Indian- 
spolis^  144  Ind.  142,  43  N.  E.  9;  Frommer  y.  Richmond,  31 
6ratt  (Va.)    646,  31  Am.  Sep.  746.    See,  also,  Littte  Rock 
T.  Prather,  46  Ark.  479.    But  it  is  said  that,  conceding  that 
the  legislature  had  the  power  to  permit  cities  to  leyy  a  toll 
for  the  use  of  the  streets,  it  ahould  be  imposed  equally  upon 
aU  who  use  the  streets,  and  that  tiiis  act  is  yoid  for  the  reason 
that  it  discriminates  in  fayor  of  those  who  dwell  outside  of 
the  city^  and  permits  the  tax  to  be  leyied  upon  residents  only. 
It  is  doubtless  true  that  the  legislature  could  not  arbitrarily 
sdect  certain  citizens  upon  whom  to  impose  the  tax,  while 
exempting  others  in  like  situation.    But  the  rule  of  equality 
only  requires  that  the  tax  shall  be  collected  impartially  of 
all  persons  in  similar  drcnmstances ;  and  this  statute  applies 
equally  to  all  persons  of  the  class  taxed.    As.  a  class,  residenta 
of  the  dty  use  the  streets  more,  and  are  more  benefited  by  hay* 
ing  them  kept  in  good  repair,  than  those  who  do  not  liye  in 
the  dty.    It  is  true  that  nonresidents  of  the  dty  also  use  the 
streets  with  thdr  wagons  and  other  yehides,  and  it  may  be 
tme  that  certain  of  them  use  the  streets  aa  much  or  more  than 
certain  of  the  reddoits  of  the  dty,  but,  as  a  class,  they  do  not 
lue  the  streets  as  much  as  residents  of  the  city,  and  this  f  ur- 
Biahes  a  reasonable  basis  for  the  distinction  made  in  the  act 
between  the  two  classes.    The  requirement  of  the  statute  that 
the  tax  must  be  imposed  on  residents  of  the  dty  only  is  but 
an  adoption  by  the  legislature  of  the  common  policy  of  mak* 
ing  each  community  keep  up  its  own  highways.    This  does 
not  discriminate  xmjustly  in  fayor  of  those  who  liye  beyond 
ihe  dty  limits,  for  they  haye  to  keep  other  highways  which 
the  people  of  the  dty  may  in  turn  use  free  of  charge.    For 
this  reason  we  think  that  "''  it  was  within  the  discretionary 
powers  of  the  legislature  to  make  this  distinction,  and  that  it 
does  not  inyalidate  the  act     After  a  full  consideration  of 
the  questions  presented,  we  are  of  the  opinion  that  the  enact- 
ment of  this  statute  was  a  yalid  exercise  of  legislatiye  power. 
With  the  wisdom  or  expediency  of  it,  as  before  stated,  we  have 
nothing  to  do.     If  it  should  prove  to  be  unsatisfactory,  there 
is  still  a  remedy.     The  legislature  can  repeal  the  statute,  or 
the  city  council  may  repeal  the  ordinance,  but  the  courts  can- 
not do  80. 


106  Aherioak  State  Bepobts,  Vol.  91.    [Arkansas. 

Haying  readied  the  conclusion  that  the  statute  is  ralid  upon. 
which  the  ordinance  is  based,  there  remains  for  oonflideration 
certain  objections  to  the  ordinance  which  it  is  contended  are 
not  anthorized  by  the  statute.  First,  it  is  said  that  the  ordi- 
nance is  invalid  because  it  requires  the  payment  of  the  license 
tax  in  gold  and  silver  or  United  States  currency.  Now,  this 
license  tax  is  for  a  special  purpose,  and  the  law  requires  that 
the  proceeds  thereof  shall  be  used  for  the  repair  and  improve- 
ment of  the  streets  exclusively.  For  this  reason  there  may  be 
room  for  doubt  as  to  whether  it  could  be  paid  by  warrants 
of  the  city  drawn  on  the  general  fund.  But  if  this  provision 
of  the  ordinance  was  void,  it  would  not  annul  the  whole  ordi- 
nance. If  it  be  invalid,  it  can  be  disregarded.  Conceding 
that  this  provision  of  the  ordinance  requiring  the  tax  to  be 
paid  in  gold,  silver  or  currency  to  be  void,  defendant  should 
have  tendered  the  warrants  if  he  desired  to  make  the  payment 
with  city  warrants,  and  demanded  a  license.  He  is  prose- 
cuted for  keeping  and  using  a  vehicle  in  the  city  without  hav- 
ing a  license  therefor.  B!e  had  no  license,  and  had  made  no 
offer  of  money  or  scrip  to  procure  one.  We  therefore  think 
the  defense  made  on  this  point  is  not  tenable. 

The  same  thing  may  be  said  of  the  provision  making  a  dis- 
tinction in  rates  in  favor  of  persons  keeping  and  using  more 
than  five  buggies.  If  we  strike  out  that  portion  of  the  ordi- 
nance, the  material  portion  of  it  stands,  and  this  case  would 
not  be  affected.  For  this  reason  it  is  not  necessary  to  deter- 
mine those  questions  in  this  case.  It  is  not  claimed  that  the 
amount  of  the  license  fee  imposed  by  the  ordinance  is  unrea- 
sonable, and  it  follows  from  what  we  have  said  that  in  our 
opinion  the  circuit  court  erred  in  its  declaration  of  law,  and 
in  its  judgment  discharging  the  defendant.  The  judgment 
is  therefore  reversed,  and  the  cause  remanded  for  a  new  trial. 


A  dtp  hoB  no  Power  to  Impose  a  License  Fee  by  waj  of  a  tax  ob 

every  person  nsiog  wheeled  vehicles  on  its  streets  for  their  individual 
nse.  An  ordinance  providing  that  money  received  from  snch  lieenaa 
fees  shaU  be  expended  in  improving  the  publie  streets,  creates  a 
double  tax  and  is  void,  when  such  vehicles  are  taxed  at  their  valne^ 
for  general  purposes:  Chicago  v.  Collins,  175  111.  445,  67  Am.  8t.  Bep. 
224,  61  N.  E.  907. 


OASES 


APPELLATE  COURT 

INDIANA. 


DE  EUITEB  V.  DE  BUITER. 

[28  Ind.  App.  9,  62  N.  E.  100.] 

A  PISADIKO  Must  iM  OonstriMd  nAwt  stronglj  against  the 
pleader,  and  speeiile  avennente  therein  mnst  be  given  preeedenee  over 
geaeraL     (p.  110.) 

BXBOnnOK— Property  Subject  to.— Money,  Whether  Secreted 
or  DepoaLted  in  Bank,  is  not  sabject  to  levy  nnder  execution,    (p.  110.) 

FIJSADINO— One  Averment^  When  not  Snilicient  to  Overcome 
AnoUiflr. — If  a  pleading  states  that  the  defendant,  at  the  time  of 
*»*^»g  a  eonveyanee,  was  largely  indebted,  and  has  since  become, 
and  now  is,  insolvent,  and  that  he  had  not  at  the  time  of  making  such 
conveyance,  nor  has  he  now,  sui&eient  property  subject  to  execution 
to  pay  his  debts  and  plaintiff's  claim  for  alimony,  and  that  he  is 
posseeaed  of  a  large  amount  of  money  and  bonds  which  he  secrets^ 
this  latter  allegation  is  sd  indefinite  and  uncertain  that  it  cannot  be 
regarded  as  contradicting  the  essential  averments  preceding  it. 
{p.  111.) 

A  GBBDITOB  IS  ONE  who  has  a  right  to  demand  and  recover 
of  another  a  sum  of  money  on  any  account  whatever,     (p.  114.) 

FBAUDUIaENT  TBAKSFEBS— Who  may  Attack  as  a  Creditor. 
A  Wife  is  a  present  and  contlkiuous  debtor  of  her  husband,  and  as 
such  is  within  the  protection  of  the  statute  against  fraudulent  con- 
veyances, and  may  proceed  to  obtain  relief  against  such  a  conveyance 
if  it  interferes  with  her  right  to  collect  maintenance  and  alimony, 
(p.  114.) 

FBAUBUIfNT  TRANSFSBS— Judgment  for  Alimony.— A 
wife  who  has  obtained  a  judgment  for  alimony  is  a  creditor  of  her 
husband,  and  as  such  entitled  to  attack  a  fraudulent  and  voluntary 
transfer  made  by  him.     (p.  114.) 

FBAUD  KAT  BB  INFEBBED  From  Establiihed  Facts,  and 
need  not  be  proved  by  positive  evidence,     (p.  115.) 

FBAUDULEirr  TBAKSFEBS—B^ef  Against.— Where  a 
wife  has  obtained  a  decree  divorcing  her  from  her  husband,  awarding 
slimony,  and  declaring  a  conveyance  made  by  him  to  be  fraudulent 
tad  veid  as  against  her,  the  court  may  also  direct  a  sale  of  the  prop- 

(107) 


108  American  State  Bepobts^  Vol.  91,      [Indiana^ 

erty  so  conveyed,  and  the  application  of  the  proceeds  to  the  pajment 
of  the  amount  due  her.     (p.  117.) 

DIVORCE— Attorneys'  Fees.— Under  a  statute  making  it  th# 
duty  of  the  trial  court  in  decreeing  divorce  to  a  wife  to  require  the 
husloand  to  pay  her  reasonable  expenses  in  the  prosecution  of.  her 
suit,  an  allowance  may  be  made  in  her  favor  for  attomeya'  fees. 
(p.  117.) 

DIVOBCE.— Alimony  to  an  Innocent  and  Injured  Wife  Should 
be  in  a  Proportion  to  leave  her  at  least  as  well  off  pecuniarily  on 
noncohabitation  as  she  would  if  cohabiting.  An  appellate  court  will 
not  interfere  with  the  decree  of  a  trial  court  in  allowing  alimony 
unless  an  abuse  of  discretion  is  manifest,     (p.  118.) 

DIVOBOE— Attorneys'  Fees.— The  Fact  that  a  Wife  has  Prop- 
erty of  Her  Own  does  not  prove  that  an  allowance  of  attorneys '  fees 
to  her  in  a  decree  divorcing  her  from  her  husband  is  improper  or 
unreasonable,     (p.  118.) 

HUSBAIID  AND  WIFE— Confidential  Belationi  of.— A  wife 
has  a  right  to  rely  upon  confidential  relations  existing  between  her 
and  her  husband,  and  is,  therefore,  excused  in  not  reading  papers 
presented  to  her  by  him,  to  ascertain  whether  his  representations 
respecting  their  nature  and  purpose  are  true,  and  if  such  representa- 
tions were  false,  she  is  not  precluded  from  obtaining  relief  in  equity 
by  the  fact  that  she  executed  the  papers  without  aaeertainia^  that 
their  contents  were  not  as  so  represented,    (p.  110.) 

Suit  by  Leiira  De  Buiter  against  her  husband  for  divorce 
and  alimony  and  to  set  aside  a  transfer  of  real  estate.  Judg^ 
ment  for  the  plaintiff;  defendant  appealed. 

R  0.  Hawkins  and  H.  E.  Smith,  for  the  appsllanta. 

W.  H.  Harding  and  A.  E.  Hovey,  for  the  appellee. 

*^  WILEY,  J.  Appellee  was  plaintiff  below,  and  prosecnted 
her  action  against  the  appellant  Derk  De  Ruiter  for  diyorce, 
and  to  recover  alimony.  Appellants  Vanderwerf  and  Van- 
derwerf  are  hnsband  and  wife,  and  were  made  parties  for  the 
reason  that  it  was  charged  in  the  amended  complaint  that 
appellant  De  Buiter  had  conveyed  to  appellant  Eva  O.  Van- 
derwerf, who  was  his  daughter,  all  his  real  estate,  and  that  the 
purpose  of  said  conveyance  was  to  defraud  appellee,  etc.  It 
was  therefore  sought,  not  only  to  procure  a  decree  of  divorce 
and  secure  alimony  in  favor  of  appellee,  but  also  to  set  aside 
such  conveyance  as  fraudulent.  The  **  amended  complaint 
is  in  one  paraerraph,  and  the  ground  for  divorce  relied  upon 
rests  upon  cruel  and  inhuman  treatment  A  supplemental 
complaint  was  filed,  charging  abandonment,  but  the  record 
shows  that  the  finding  and  decree  rest  upon  the  amended  com- 
plaint, and  no  question  is  presented  for  decision  arising  under 
the  supplemental  complaint.  The  appellanta  each  answered 
by  denial.    The  court  found  for  the  appellee  that  she  was 


Not.  1901.]  Ds  Buiteb  v.  Dk  Ruitbb.  109 

entitled  to  a  diyorce;  also  that  she  was  entitled  to  four  thou- 
saiJd  dollars  alimony^  and  fiye  hundred  dollars  for  her  attor- 
ney's fees.  The  court  also  found  against  all  the  appellants, 
that  the  oonyeyance  of  real  estate  to  appellant  Eva  O.  Vander- 
verf,  as  described  in  the  complaint,  was  fraudulent  and  void, 
snd  should  be  set  aside,  and  that  said  real  estate  be  subjected 
to  the  payment  of  the  alimony  allowed  appellee,  the  attorneys' 
fees  and  costs.  Judgment  followed  in  harmony  with  the  find- 
ing. Appellant  Eva  6.  Vanderwerf  moved  separately  to  mod- 
ify the  judgment,  by  striking  out  and  eliminating  therefrom 
an  that  part  of  it  affecting  the  real  estate  which  her  coappel- 
lant  had  caused  to  be  conveyed  to  her.  Appellant  De  Buiter 
ilflo  moved  to  modify  the  judgment  in  certain  specified  particu- 
ki8.  Each  of  these  motions  was  overruled,  and  the  motions 
and  the  rulings  thereon  are  brought  into  the  record  by  bill  of 
exceptions.  Appellants  Derk  De  Buiter  and  Eva  0.  Yander- 
verf  eadh  filed  separate  motions  for  a  new  trial,  which  were 
xegpectively  overruled.  Neither  of  appellants  demurred  to  the 
amended  complaint. 

By  hia  separate  assignment  of  error,  appellant  De  Buiter 
attadES,  for  the  first  time,  the  sufficiency  of  the  amended  com- 
plainty  and  brings  in  review  the  action  of  the  court  in  over- 
nding,  respectively,  his  motion  to  modify  the  judgment  and 
for  a  new  trial.  The  assignment  of  errors  of  appellants  Yan- 
tewcrf  and  Vanderwerf  is  joint  and  is  as  follows:  1.  The 
amended  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action  against  them ;  2.  That  ^'the  court  erred 
in  overruling  the  appellant  Eva  G.  Yanderwerf's  *^  motion 
to  modify  and  correct  the  decree  and  judgment*' ;  3.  That  "the 
court  erred  in  overruling  the  appellant  Eva  G.  Yanderwerf's 
motion  for  a  new  trial.*'     . 

Counsel  for  appellant  have  not  discussed  the  assignment  of 
erroTB  in  their  order,  but  have  taken  up  the  overruling  of  the 
motions  to  modify,  and  for  a  new  trial,  in  the  order  stated.  If 
the  amended  complaint  does  not  state  a  cause  of  action  against 
either  of  the  appellants,  as  counsel  assert,  it  seems  to  us  that 
that  question  should  be  first  disposed  of,  for  if  it  does  not,  it 
"vonld  be  wholly  imnecessary  to  decide  the  remaining  questions. 

No  argument  is  directed  against  the  complaint  on  the  ground 
that  it  does  not  state  sufficient  facts  to  constitute  a  cause  of 
action  against  appellant  De  Buiter  for  divorce,  but  that  it 
does  not  state  facts  sufficient  to  warrant  the  setting  aside  of 
the  conveyances  of  real  estate  to  appellant  Eva  G.  Yanderwerf 
as  fraudulent.     The  objection  urged  to  the  complaint  is  that 


110  Ambbioan  State  Beports,  Vol.  91.      [Indiana^ 

at  the  time  of  the  conveyances  it  is  not  alleged  that  appellant 
De  Buiter  was  insolvent,  and  also  that  he  was  insolvent  when 
the  present  action  was  commenced.    The  averments  of    the 
complaint  npon  this  point  are  brief,  and  we  quote  them  in  full, 
viz. :  "That  said  Derk  De  Rniter  was  on  the  date  last  aforesaid 
[referring  to  the  date  of  the  conveyance]  largely  indebted  to 
various  persons  in  various  sums,  and  since  has  become  and  is 
now  insolvent,  and  at  the  time  said  conveyances  were  made 
he  had  not,  nor  has  he  since  had,  nor  has  he  now,  sufficient 
other  property,  subject  to  execution,  to  pay  his  debts,  or  any 
judgment  that  may  be  rendered  plaintiff  for  alimony  herein, 
or  any  part  hereof.    That  plaintiff  is  informed  that  defendant 
Derk  De  Buiter  is  possessed  of  a  large  amount  of  money  and 
bonds  which  he  secrets,  but  she  is  unable  to  give  the  particular 
facts  in  relation  thereto.'*    If  we  are  to  regard  this  latter 
averment  equivalent  to  an  averment  that  appellant  De  Buiter, 
at  the  time  this  action  was  oommenced,  was  possessed  of  a 
'Targe  sum  of  money  and  bonds,'*  etc.,  tiien  *•  the  two  aver- 
ments are  in  irreconcilable  conflict,  and,  this  being  true,  the 
pleading  must  be  construed  most  strongly  against  the  pleader, 
and   the   latter   averment,   being  specific,   must   control   the 
former,  which  is  general:  Ivens  v.  Cincinnati  etc.  B.  B.  Co., 
103  Ind.  27,  2  K  B.  134;  Houck  v.  Graham,  106  Ind.  195, 
55  Am.  Bep.  727,  6  N.  E.  594;  City  of  Wabash  v.  Carver,  129 
Ind.  552,  29  N.  E.  25.     Such  a  construction  would  leave  the 
complaint  without  the  essential  averments  that  at  the  time 
of  the  conveyance,  ever  since,  and  when  the  action  to  set  it 
aside  was  commenced,  De  Buiter  was  insolvent,  etc.    A  per- 
son possessed  of  a  large  amount  of  money  and  bonds  can  hardly 
be  said  to  be  insolvent. 

The  statement  in  the  complaint,  that  he  was  possessed  of  a 
large  sum  of  money  and  bonds,  is  somewhat  indefinite,  and 
is  modified  by  the  further  statement  that  such  money  and 
bonds  are  secreted.  If  the  money  was  in  a  bank,  it  was  not 
subject  to  execution,  and  if  either  the  money  or  bonds  were 
secreted  they  could  not  be  levied  upon.  The  point  is  that  the 
party  who  is  charged  with  having  fraudulently  conveyed  his 
property  did  not  retain  sufficient  property,  and  did  not  have, 
at  the  time  the  action  is  oommenced  to  set  it  aside,  sufficient 
property,  subject  to  execution,  to  pay  his  debts,  etc.  So,  money, 
whether  it  be  secreted  or  deposited  in  bank,  is  not  subject  to 
levy  and  execution:  See  McMillan  v.  Bichards,  9  Cal.  365, 
70  Am.  Dec.  655;  Scott  v.  Smith,  2  Kan.  438;  Moorman  v. 


Not.  1901.]  Ds  Ruitbb  v.  Db  Buiteiu  111 

Qnick,  20  Ind.  67;  Carroll  v.  Cone,  40  Barb.  220.  We  are 
indmed  to  the  view  that  the  allegation  in  the  complaint  that 
appellant  De  Buiter  had  a  large  amount  of  money  and  bonds 
is  so  indefinite  and  uncertain  that  it  cannot  be  regarded  as 
contradicting  the  essential  averments  just  preceding  it,  and 
hence  the  complaint  upon  this  point  must  be  held  good  as 
against  an  original  attack  in  this  court. 

Before  taking  up  for  decision  the  questions  raised  by  the 
motions  to  modify  and  for  a  new  trial,  it  is  important  to  give 
a  brief  history  of  the  case  as  disclosed  by  the  record.    August 
15,  1896,  appellee  instituted  a  suit  in  the  Marion  superior  *^ 
court  against  appellant  De  Buiter,  to  obtain  a  divorce  and  for 
alimony.    To  this  action  he  appeared  and  filed  a  cross-com- 
plaint.   That  said  cause  was  finally  determined  January  11, 
1897,  by  a  finding  and  judgment  against  appellee  on  her  com- 
plaint,  and  against   appellant  on  his   cross-complaint.    Ap- 
pellee, at  the  time  of  her  marriage,  was  the  owner  of  some  real 
estate  of  the  value  of  about  two  thousand  five  hundred  dollars, 
upon    which    there    was    some   encumbrance.    Appellant    De 
Ruiter  owned  in  his  own  name  real  estate,  the  value  of  which, 
above  the  encumbrance,  was  over  twenty  thousand  dollars.    Ap- 
pellee also  owned  some  personal  property — stock  in  a  building 
association — of  the  value  of  four  hundred  dollars  or  five  hun- 
dred dollars.    After  the  first  action  for  divorce    was    com- 
menced the  two  parties  lived  separate  and  apart.     Some  time 
in  February,  1897,  after  the  termination  of  the  former  suit, 
appellant  went  to  appellee's  home  and  made  overtures  for  a 
reconciliation,  and  visited  her  occasionally  thereafter.    It  is 
the  theory  of  appellee  that  appellant  De  Buiter,  in  making  such 
overtures  for  reconciliation,  was  not  acting  in  good  faith,  but 
that  he  thereby  intended  to  deceive  her,  for  the  purpose  of 
getting  her  to  deed  to  him  her  real  estate,  and  to  get  her  to 
join  him  in  conveying  his  real  estate.    Also  that  appellant  De 
Ruiter  and  appellant  Eva  6.  Vanderwerf  entered  into  a  con- 
spiracy, by  which  she  was  induced  by  deceit  and  misrepresenta- 
tion to  execute  to  one  Trussler  a  power  of  attorney,  authoriz- 
ing him  to  execute  and  deliver  deeds  for  her  husband  and  her- 
self to  any  and  all  of  his  real  estate,  and  that  in  furtherance 
of  said  conspiracy,  all  of  the  real  estate  owned  by  De  Buiter 
was  conveyed  to  Eva  G.  Vanderwerf  by  said  Trussler  as  attor- 
ney in  fact,  and  that  though  said  real  estate  was  of  the  value 
of  over  twenty  thousand  dollars,  the  same  was  conveyed  to  said 
Era  G.  for  an  expressed  consideration  of  four  dollars.    It  is 


112  AuERiCAK  State  Reports^  Vol.  91.      [Indiana^ 

charged  in  the  complaint^  and  there  is  evidence  to  gupport  it, 
that  appellant  De  Euiter  procured  appellee  to  convey  to  ap- 
pellant Vanderwerf  her  real  estate,  and  that  such  conveyance 
was  procured  to  cheat  and  defraud  her  out  of  it.  Appellee 
owned  stock  in  a  *•  building  and  loan  association,  and  it  was 
charged  that  by  fraud  and  misrepresentation  he  procured  such 
stock  to  be  transferred  to  him,  for  the  purpose  of  defrauding 
her  out  of  it  There  is  some  evidence  to  sustain  this  allega- 
tion. It  was  charged,  as  above  stated,  that  appellants  entered 
into  a  conspiracy,  for  the  purpose  of  procuring  appellee  to 
join  in  a  conveyance  of  all  of  her  husbands'  real  estate,  for 
the  purpose  of  cheating  and  defrauding  her  out  of  her  interest 
in  the  same.  There  is  no  direct  or  positive  evidence  in  srop- 
port  of  this  fact,  but  there  are  circumstances  and  conditions 
disclosed  by  the  evidence  which  strongly  tend  to  support  it 
Mrs.  Vanderwerf  was  De  Suiter's  daughter.  She  was  mar- 
ried, and  after  the  De  Buiters  separated,  the  appellant  De 
Buiter  lived  with  his  daughter. 

Thei^  is  no  reasonable  explanation  given  for  the  conyey- 
ance  of  De  Buiter's  real  estate  to  his  daughter.  The  whole 
transaction  resulting  in  such  transfer  is  inconsistent  with  his 
obligation  and  duties  to  appellee  as  his  wife.  It  is  unneces- 
sary to  recite  in  this  opinion  even  a  resume  of  the  many  acts 
and  the  conduct  of  appellant  De  Buiter,  of  which  appellee 
complains,  and  upon  which  she  relies  to  establish  the  averments 
of  her  complaint,  charging  cruel  and  inhuman  treatment  It 
is  sufficient  to  say  that  the  record  discloses  sufficient  facts  to 
warrant  the  trial  court  in  its  conclusion,  adjudging  that  appel- 
lee was  entitled  to  a  divorce.  In  fact,  this  proposition  is  not 
seriously  controverted.  There  is  evidence  to  support  the  fact 
that  appellant  De  Buiter  proposed  to  appellee  to  purchase  her 
real  estate  for  two  thousand  five  hundred  dollars,  on  credit, 
to  pay  her  six  per  cent  interest  on  the  purchase  money,  and 
secure  her  in  its  payment.  Also,  that  when  she  made  the  deed 
she  believed  she  was  conveying  it  to  him,  when  in  fact  the  con- 
veyance was  made  to  his  daughter. 

Before  appellee  executed  the  power  of  attorney  above  re- 
ferred to,  there  is  evidence  from  which  the  court  could  have 
found  that  the  only  conveyance  the  De  Buiters  had  talked 
about  before  going  to  the  scrivener  to  execute  the  papers  *• 
was  a  conveyance  to  a  Mrs.  Smith  of  real  estate  owned  by  ap- 
pellee, and  also  the  conveyance  to  appellant  De  Buiter  of  real 
estate  owned  by  her.    The  evidence  fairly  shows  that  when  the 


Ko7. 1901.]  Db  Ruiteb  v.  Db  Ruiteb.  113 

parties  went  to  the  scrivener  appellee  executed  three  papers, 
under  the  adyioe  and  direction  of  her  husband,  two  of  which  De 
Bniter  represented  to  her  were  deeds,  and  the  third  was  a  re- 
lease. So  far  as  the  record  shows,  appellee  did  not  know  she 
signed  a  power  of  attorney,  and  she  did  not  authorize  anyone 
to  deliver  it  to  the  attorney  in  fact,  named  therein,  and  that 
as  soon  as  she  learned  that  she  had,  she  revoked  it. 

By  the  motion  of  Derk  De  Ruiter  to  modify  the  judgment 
and  decree,  he  sought  to  have  stricken  out  absolutely  the  fol- 
lowing: 1.  That  part  which  declares  that  appellants  had  oral 
notice  of  the  appellee's  petition  for  an  allowance;  2.  To  have 
the  amount  of  alimony  reduced  from  four  thousand  dollars 
to  one  thousand  dollars,  for  the  reason  that  it  was  excessive; 
3.  To  have  the  amount  allowed  appellee  as  attorneys'  fees  re- 
duced from  five  hundred  dollars  to  two  hundred  and  fifty  dol- 
lars; 4-  To  have  stricken  out  and  eliminated  from  the  judg- 
ment and  decree  all  that  part  that  adjudged  that  the  convey- 
ance of  real  estate  by  him  to  his  coappellant,  Eva  6.  Vander- 
werf,  was  fraudulent  as  against  appellee,  and  that  said  con- 
veyance was  made  with  the  fraudulent  intent,  etc.,  and  also 
to  eliminate  that  part  which  subjects  said  real  estate  to  sale 
to  satisfy  the  judgment  for  alimony  and  the  allowance  for  at- 
torneys' fees. 

TImb  motion  of  appellant  Eva  6.  Vanderwerf  to  modify  the 
judgment  was:  1.  By  striking  out  that  part  which  finds  and 
adjudges  that  the  conveyance  to  her  of  the  real  estate  described 
was  fraudulent;  that  said  conveyance  was  made  to  and  accepted 
by  her  with  the  fraudulent  intent  to  cheat,  hinder,  and  defraud 
appellee;  2.  By  striking  out  that  part  which  adjudges  and  de- 
crees that  said  conveyance  was  fraudulent  as  against  appellee 
as  a  ''special''  creditor  of  Derk  De  Ruiter,  and  subjects  said 
real  estate  to  sale,  etc.;  3.  By  striking  out  that  part  relating 
to  an  allowance  for  ^'^  attorneys'  fees,  on  the  ground  that  the 
court  had  no  power,  under  the  issues,  to  subject  the  real  estate 
to  the  payment  of  said  allowance;  4.  By  striking  out  that  part 
directing  that  all  of  the  real  estate  so  conveyed  to  her,  or  so 
much  thereof  as  may  be  necessary,  be  subjected  to  sale,  to  sat- 
isfy said  judgment  for  alimony,  etc.  These  two  motions  of 
appellants  may  properly  be  considered  together. 

It  is  first  urged  that  appellee  was  not  entitled  to  have  the 
eonveyanoe  set  aside,  because  she  has  not  shown  that  she  was 
a  creditor  of  the  grantor.  Counsel  refer  to  the  rule  that,  to 
constitute  a  fraudulent  conveyance,  there  must  be :  1.  A  credi- 

Am.    St.    Rep.,    Vol.    91— S 


114  .  American  State  Repobts.  Vol.  91.      [Indiana, 

tor  to  be  defrauded;  2.  A  debtor  intending  to  defraud;  and 
3,  A  conveyance  of  property  out  of  which  the  creditor  could 
have  realized :  8  Am.  ft  Eng.  Ency.  of  Law,  749.  It  must  be 
conceded  that  if  appellee  was  not  a  creditor  in  any  legal  sense, 
she  has  no  debt  to  enforce,  and  hence  the  conveyance  would 
not  be  fraudulent  as  to  her. 

We  are  told  in  Anderson's  Law  Dictionary  that  a  creditor 
is  one  *'who  has  a  right  by  law  to  demand  and  recover  of  an* 
other  a  sum  of  money  on  any  account  whatever.*'  In  Bishop 
V.  Eedmond,  83  Ind.  167,  a  creditor  is  defined  as  ''one  hav- 
ing a  legal  right  to  damages,  capable  of  enforcement  by  judicial 
process.''  Appellants  concede  that  there  are  two  kinds  of 
creditors,  viz.:  1.  Actual  creditors,  or  holders  of  claims:  and 
2.  Subsequent  creditors,  or  holders  of  equities  which  afterward 
ripen  into  claims.  So  if  appellee  comes  within  either  class  she 
must  be  regarded  as  a  creditor. 

That  a  wife  has  equities  in  her  husband's  real  estate  is  no 
longer  debatable.  That  such  equities  may  subsequently  ripen 
into  legal,  subsisting  claims,  there  can  be  no  doubt.  A  wife,  in 
our  judgment,  is  a  present  and  continuous  creditor  of  her  hus* 
band.  This  necessarily  must  be,  from  the  marital  relations. 
She  is  presently  and  continuously  dependent  upon  him.  His 
first  and  highest  obligation  is  to  provide  and  care  for  her.  He 
cannot  alienate  her  inchoate  ^^  interest  in  his  real  estate  with* 
out  her  consent,  and  against  her  refusal  to  join  in  a  convqrance 
of  it.  Nelson  on  Divorce  and  Separation,  at  section  938,  lay» 
down  the  following  rule :  "The  wife  as  a  special  creditor  of  the 
husband  is  within  the  protection  of  the  statute  against  fraudu- 
lent conveyances  and  may  proceed  according  to  its  provisions. 
On  a  proper  showing  of  the  fraud,  the  conveyance  will  be  set 
aside  and  the  property  of  the  husband  will  be  declared  subject 
to  the  decree  for  maintenance  or  alimony,"  etc.  The  author 
cites  a  great  number  of  American  authorities  which  amply  sup- 
port the  text.  The  case  of  Bishop  v.  Sedmond,  83  Ind.  157,  is 
strongly  in  point.  It  was  there  urged  that  the  complaint  wa* 
bad  because  it  did  not  show  that  appellee  was  an  existing  credi- 
tor. The  court  said:  "If,  then,  we  should  adopt  the  appellant's 
theory,  and  construe  the  complaint  as  showing  that  when  the 
conveyance  was  made  the  appellee  was  not  a  creditor,  but  subse- 
quently became  one,  we  should  be  bound  to  sustain  the  pleading. 
That  she  was  a  subsequent  creditor,  would  be  true  even  if  there 
were  no  other  elements  in  the  case  than  her  claim  to  alimony. 
A  wife  who  holds  a  claim  to  alimony  is  a  creditor":  Citing 


Sot.  1901.]  De  Ruiteb  v.  T)e  Ruiter.         •  115 

Frakes  t.  Brown,  2  Blackf .  295 ;  Fiegley  v.  Ficgley,  7  Md.  537 ; 
Boils  V.  Boils,  1  Cold.  (Tenn.)  284.  In  Plunkett  v.  Plunkett, 
114  Ind.  484,  16  N.  B.  612,  17  N.  E.  562,  it  is  held  that  a  wife 
'W'ho  has  obtained  a  judgment  for  alimony  is  a  subsequent  credi- 
tor of  her  husband,  within  the  legal  meaning  of  that  term.  Our 
conclusion  is  that  appellee  was  a  creditor,  and  hence  was  entitled 
to  attack  the  conveyance  by  her  husband  to  his  daughter,  as 
frandnlent  and  void.  It  is  next  urged  that  even  if  appellee  was 
a  creditor,  she  cannot  recover  in  this  action,  for  two  reasons :  1. 
Because  De  Buiter  coidd  not  have  made  the  conveyance  with  in- 
tent to  defraud  her  before  the  final  entry  in  the  first  divorce 
proceeding;  and  2.  Because  the  question  of  fraudulent  intent 
is  a  question  of  fact  to  be  established  by  proof,  as  other  ques- 
tions of  fact,  and  that  there  is  no  proof  of  intent. 

*•  We  think  the  first  reason  suggested  by  counsel  is  wholly 
untenable,  and  is  substantially  answered  by  the  preceding  dis- 
cussion. When  this  conveyance  was  made,  the  first  divorce  suit 
had  been  tried,  and  the  court  had  announced  its  finding.  Sub- 
sequently, judgment  followed  in  harmony  with  that  finding. 
By  that  finding  and  judgment,  appellant  and  appellee  remained 
as  husband  and  wife,  with  the  mutual  obligations  of  the  marital 
relations.  The  courts  were  open  to  each  of  them  for  subsequent 
proceedings  for  legal  separation.  If  the  authorities  we  have 
dted  declare  a  correct  rule,  and  we  are  clear  that  they  do,  ap- 
pellee was  such  a  creditor  of  her  husband  as  to  entitle  her  to 
enforce  her  subsequently  acquired  rights. 

The  second  reason  suggested  is  answered  by  the  record.  If 
it  be  conceded  that  there  is  no  direct  proof  of  fraudulent  intent, 
it  does  not  necessarily  follow  that  such  intent  was  not  estab- 
lished. It  is  a  recognized  rule  that  it  is  not  necessary,  in  order 
to  establish  fraud,  that  direct,  affirmative  proof  of  fraud  be 
given,  but  that  fraud  may  be  inferred  from  facts  that  are  estab- 
lished: Kerr  on  Fraud  and  Mistake,  450.  Chancellor  Kent 
says  that  a  deduction  of  fraud  may  be  made,  not  only  from  de- 
ceptive assertions  and  false  representations,  but  from  facts  and 
circumstances  which  may  be  trivial  in  themselves.  It  is  seldom 
that  fraud  is  proved  by  positive  evidence,  and  it  may  be  pre- 
sumed from  facts  and  circumstances  proved :  Farmer  v.  Calvert, 
M  Ind.  209 ;  Kane  v.  Drake,  27  Ind.  29 ;  Levi  v.  Kraminer,  2 
Ind.  App.  594,  28  N.  B.  1028.  In  the  case  before  us,  the  court 
found  in  favor  of  appellee  on  the  question  of  fraud  and  intent, 
and  it  is  sufficient  for  us  to  say  that  from  all  the  facts,  surround- 
ings of  the  parties,  and  circumstances  disclosed  by  the  evidence. 


116  Amebican  Statb  Reports,  VoIi.  91.      [Indiani, 

the  court  was  fully  justified  in  its  conclusion  upon  this  question. 
It  would  unduly  lengthen  this  opinion  to  state^  even  in  detail, 
the  facts  and  circumstances  upon  which  such  finding  and  judg- 
ment rest. 

Counsel  next  direct  their  argument  to  the  asserted  proposition 
*^  that  the  evidence  shows  that  the  conveyance  was  not  fraudu- 
lent as  to  appellee^  for  the  reason  that  it  is  shown  that  appellant 
De  Buiter,  at  the  time  of  the  conveyance,  had  sufficient  remain- 
ing property  out  of  which  appellee  could  satisfy  her  claim. 
Under  the  evidence  in  this  case,  the  court  was  authorized  to  find 
that  after  De  Buiter  made  the  conveyance  complained  of,  he  did 
not  have,  and  has  not  since  had,  sufficient  property  subject  to 
execution  to  satisfy  appellee's  claim.    The  court  was  authorized 
in  reaching  this  conclusion,  upon  the  evidence  of  De  Buiter 
himself,  and  we  cannot  disturb  the  finding  and  judgment  upon 
contradictory  evidence.    When  De  Buiter  was  called  by  appellee, 
as  a  witness  in  her  behalf,  his  evidence  clearly  disclosed  the  fact 
that  after  the  conveyance  of  his  real  estate  he  did  not  have  to 
exceed  five  hundred  dollars  or  six  hundred  dollars  worth  of 
property,  and  this  was  of  a  precarious   and  uncertain  value. 
When  he  was  testifying  as  a  witness  for  himself,  he  bolstered 
up  his  former  statement  by  testifying  that  he  had  certain  credits 
due  him^  consisting  of  an  interest  in  machinery  of  the  value  of 
two  hundred  and  fifty  dollars,  some  building  and  loan  stock, 
and  some  household  goods,  aggregating  in  all  something  over 
five  thousand  dollars.     Over  four  thousand  dollars  of  this  sum 
consisted  of  credits  due  from  certain  paving  companies  and 
from  a  certain  estate.     Such  credits  were  not  subject  to  execu- 
tion and  sale  to  satisfy  appellee's  demand,  and  the  court's  find- 
ing that  he  did  not  have  sufficient  property,  subject  to  execution, 
to  satisfy  such  claim,  was  fully  warranted. 

It  is  next  argued  that  the  court  erred  in  ordering  the  sale 
of  the  real  estate  described — the  conveyance  of  which  was  set 
aside  as  fraudulent — ^to  satisfy  the  judgment  for  alimony,  etc., 
and  hence  it  was  error  to  overrule  the  motion  to  strike  out  that 
part  of  the  finding  and  judgment.  There  is  no  real  merit  in 
this  contention.  That  a  creditor  may  go  into  court  and  attack 
a  conveyance  of  his  debtor  as  fraudulent,  and  ask  that  such  con- 
veyance be  set  aside,  and  the  property  be  subjected  to  execution 
and  sale  to  satisfy  his  claim,  when  reduced  to  judgment,  there 
is  no  doubt.  Section  ^^  1059  of  Burns'  Bevised  Statutes  of 
1901  provides  that  the  decree  for  alimony  to  the  wife  shall  be 
for  a  sum  in  gross.    This  the  court  fixed  in  the  decree  before  us, 


Nov.  1901.]  Be  Rliter  v.  De  Ruitkr.  117 

and  that;  together  with  the  allowance  made  her  for  her  attor- 
neys, constitutes  her  claim.  To  pay  and  satisfy  this  claim^  the 
court  was  authorized  to  direct  that  the  real  estate^  or  so  much 
thereof  as  was  necessary^  should  he  sold  on  execution^  etc. 

It  is  urged  that  the  motion  to  strike  out  the  allowance  made 
to  appellee  for  attorneys'  fees  should  have  been  sustained.  It 
is  made  the  duty  of  a  trial  court,  in  decreeing  a  divorce  to  the 
wife,  or  on  refusing  one  on  the  application  of  the  husband,  to 
require,  by  order,  that  the  husband  pay  all  reasonable  expenses 
of  the  wife  in  the  prosecution  or  defense  of  the  petition,  etc. : 
Bums'  Rev.  Stats.  1901,  sec.  1054.  Such  allowance  has  been 
held  to  include  attorneys'  fees :  McCabe  v.  Britton,  79  Ind.  224 ; 
Musselman  v.  Musselman,  44  Ind.  106.  Under  the  statute  and 
the  decisions,  it  is  made  the  imperative  duty  of  the  court  to  make 
such  allowance  on  the  final  disposition  of  the  case.  We  do  not 
Qiink  there  was  any  error  in  this  ruling. 

From  the  whole  record,  we  do  not  feel  justified  in  reviewing 
the  action  of  the  court  in  overruling  the  motion  to  modify  by 
reducing  the  amount  of  alimony  and  attorneys'  fees.  The 
amount  of  alimony  as  fixed  by  the  decree  is,  in  our  judgment, 
both  moderate  and  reasonable,  when  considered  in  connection 
with  the  value  of  De  BuiteHs  real  estate.  The  amount  fixed  by 
the  court  was  about  one-fifth  of  the  value  of  the  real  estate. 
True,  as  counsel  contend,  appellee  was  a  childless  second  wife, 
but  this  fact  does  not  change  the  rule  that  the  award  for  alimony 
shall  be  in  such  sum  as  to  leave  her  in  at  least  as  good  condition 
pecuniarily  after  the  divorce  as  she  would  have  been  in  as  a  sur- 
viving vndow :  Musselman  v.  Musselman,  44  Ind.  106 ;  Graft  v. 

Graft,  76  Ind.  136. 

Again,  2  Bishop  on  Marriage  and  Divorce,  section  468,  lays 
down  this  rule :  'T!To  one  should  be  permitted  to  suffer  in  purse 
for  another's  wrong.  Hence,  alimony,  when  given  to  *■  an  in- 
nocent and  injured  wife,  should  be  in  a  proportion  to  leave  her, 
at  least,  as  well  off  pecuniarily,  in  noncohabitation  as  she  would 
be  in  cohabitation." 

Our  supreme  court  in  Yost  v.  Tost,  141  Ind.  584,  41  N".  E. 
11,  quotes  approvingly  the  above  rtde.  The  rule  prevails  in  this 
state  that  the  trial  court  has  a  broad  discretion  in  awarding  ali- 
mony, and  an  appellate  court  will  not  interfere  therewith  unless 
an  abuse  of  such  discretion  is  manifest :  Gussman  y.  Gussman, 
140  Ind.  433,  39  N.  E.  918,  and  authorities  there  cited. 

In  this  case  the  trial  court  certainly  did  not  abuse  its  discre- 
tion.   Neither  do  we  think  that  the  allowance  for  appellee's  at- 


118  American  State  Bepobts^  Vol.  91.      [Indiana, 

tomeys  vas  unreasonable.  Counsel  urge  that  because  ap{>ellee 
owned  property  of  the  probable  value  of  two  thousand  five  htm- 
dred  dollars^  which  was  encumbered  six  hundred  dollars,  it  was 
error  of  the  court  to  allow  her  attorneys'  fees.  The  authorities 
cited  Kenemer  v.  Kenemer,  26  Ind.  330;  Sellers  v.  Sellers,  141 
Ind.  305,  40  N".  E.  699,  and  relied  upon  by  appellant,  are  not 
in  point,  for  they  relate  to  temporary  allowances  pending  the 
case.  Under  the  statute  above  cited  and  the  authorities,  the 
court  was  justified  in  making  the  allowance:  See  Harding  ▼- 
Harding,  144  111.  688,  32  N.  E.  20G ;  Sellers  v.  Sellers,  141  Ind. 
306,  40  N.  E.  699 ;  Lumpkin  v.  Lumpkin,  78  111.  App.  324 ;  Mer- 
ritt  V.  Merritt,  99  N.  Y.  643, 1  N.  E.  605. 

The  third  reason  for  a  new  trial  is  that  the  decision  and  judg- 
ment are  not  sustained  by  sufficient  evidence,  and  counsel  have 
discussed  the  question  thus  raised  at  some  length.  It  is  unneces- 
sary for  us  to  go  over  the  evidence,  even  in  the  abstract.  A 
careful  consideration  of  all  the  evidence  leads  us  to  the  conclu- 
sion that  the  decision  and  judgment  are  fully  sustained  by  it. 

The  fifth,  sixth,  seventh,  eighth,  tenth,  eleventh,  twelfth,  fif- 
teenth, sixteenth  and  seventeenth  reasons  in  appellant  De  Rui- 
ter's  motion  for  a  new  trial  question  the  action  of  the  court  in 
certain  of  its  rulings  on  the  admission  of  evidence.  Without 
going  into  detail,  it  is  sufficient  for  us  to  say  that  we  do  not  find 
any  reversible  error  in  any  of  such  rulings. 

^  What  we  have  said  relative  to  appellant  De  Suiter's  mo- 
tion for  a  new  trial  is  applicable  to  many  of  the  reasons  assigned 
for  a  new  trial  by  appellant  Vanderwerf .  The  tenth,  eleventh 
and  twelfth  reasons,  however,  of  the  latter^s  motion,  present 
questions  which  should  be  considered  and  decided.  They  chal- 
lenge the  action  of  the  court  in  permitting  appellee  to  testify 
to  what  was  said  and  done  at  the  time  the  power  of  attorney  and 
other  instruments  above  referred  to  were  signed.  It  is  proper 
to  say  in  this  connection  that  appellee's  position  is  that  she  did 
not  know  she  had  signed  a  power  of  attorney,  and  that  she  was 
deceived  by  her  husband,  who  represented  to  her  that  the  three 
instruments  which  she  signed  were  two  deeds,  and  a  release. 

She  was  asked  the  following  questions,  and  was  allowed  to 
answer  them :  *'What  is  the  fact  as  to  whether  or  not  you  relied 
upon  what  Mr.  De  Buiter  said  concerning  those  instruments  as 
to  their  nature  ?"  Another  question  was  identical  to  this.  The 
third  was :  ''What  is  the  fact  as  to  whether  or  not  any  of  those 
papers  were  delivered  to  you?"  Counsel  contend  that,  as  she 
could  read,  she  was  bound  to  know  what  papers  she  had  signed. 


Nov.  1901.]  Ds  RoiTSB  v.  Dk  Ruitsb.  119 

and  had  no  right  to  rely  npon  what  her  husband  told  her,  and 
that  no  confidential  relations  existed  between  them.  It  is  fairly 
inferable  from  the  evidence  that  appellee  believed  that  all  differ- 
ences between  her  and  her  husband  had  been  amicably  settled, 
and  that  they  would  continue  to  live  together  as  husband  and 
wife.  This  being  true,  she  was  not  dealing  with  him  at  arm's 
length,  but  in  confidence^  fully  relying  upon  his  promises  and 
representations. 

The  following  rule  is  laid  down  in  14  American  and  English 
Encyclopedia  of  Law,  second  edition,  194:  ''It  is  well  settled 
that  where  it  appears  that  a  fiduciary  or  confidential  relation 
existed  between  the  parties  at  the  time  of  the  transaction  alleged 
to  be  fraudulent,  such  as  trustee  and  cestui  que  trust,  .... 
husband  and  wife,  •  •  •  •  or  that  one  of  the  parties  for  any  rea- 
son possessed  a  power  or  influence  over  the  other,  or  **  that 
one  of  the  parties  was  laboring  under  a  disability  such  as  mental 
weakness  or  intoxication,  the  existence  of  such  relation  or  such 
power  or  influence  or  such  disability  raises  a  presumption  of 
fraud,  and  the  burden  of  proof  is  upon  the  party  seeking  to  sus- 
tain the  transaction.'*  The  rule  thus  stated  is  amply  supported 
by  the  authorities,  many  of  which  are  cited,  following  the  text. 

The  relations  existing  between  husband  and  wife  are  most 
intimate  and  confidential  in  their  character,  and  it  is  the  rule 
that  no  relation  known  to  the  law  affords  so  great  opportunity 
for  the  existence  of  undue  influence  as  that  existing  between 
them :  27  Am.  &  Eng.  Ency.  of  Law,  480,  and  authorities  there 
dted.  This  being  true,  where  the  husband  and  wife  contract 
together,  and  the  agreement  is  such  as  to  operate  to  the  advan- 
tage of  tiie  former,  equity  will  closely  scrutinize  the  transaction : 
See  authority  last  cited. 

At  the  time  of  the  transaction  complained  of,  appellant  De 
Buiter  and  appellee  were  husband  and  wife.  It  is  clear  from 
the  whole  record  that  he  exerted  an  undue  influence  over  her, 
and,  by  misrepresentation,  induced  her  to  place  herself  in  a  posi- 
tion by  which  she  might  have  been  deprived  of  all  her  property 
rights  as  a  wife.  Under  these  circumstances  and  conditions,  it 
was  competent  for  her  to  testify  as  to  what  was  said  and  done 
leading  up  to  the  consummation  of  the  transaction  in  question. 

Before  concluding  this  opinion,  it  is  proper  to  remark  that 
appellant  Eva  G.  Vanderwerf  paid  no  consideration  for  all  the 
valuable  real  estate  conveyed  to  her.  Taking  all  the  circum- 
stances, conditions,  and  surroundings  disclosed  by  the  record,  we 
are  firmly  convinced  that  there  was  a  well  laid  and  devised  plan 
or  scheme  between  appellants  to  defraud  appellee  out  of  her 


120  American  Statb  Reports,  Vol.  91.      [Indiana, 

property  rights  as  the  wife  of  appellant  De  Ruiter,  and  the  eTi- 
dence  fairly  supports  the  conclusion  reached  by  the  trial  court. 
Judgment  afiOrmed. 


A  Judgment  for  Alimony  has  been  held  to  be  a  debt  of  reeord 
much  as  any  other  judgment  for  money  is:  Conrad  v.  Everich,  50  Ohio 
St.  476,  40  Am.  St.  Bep.  679,  35  N.  E.  58.  But  see  Welty  ▼.  Welly,  195 
111.  335,  63  N.  E.  161,  88  Am.  St.  Bep.  208,  and  the  cases  cited  in  the 
eross-referenee  note  thereto.  Such  a  judgment  in  favor  of  a  "wife 
makes  her  husband,  in  effect,  a  debtor  owing  her  the  amount  adjudged 
to  be  paid,  and  entitles  her  to  the  same  remedies  as  any  judgment 
creditor:  Wetmore  v.  Wetmore,  149  N.  Y.  520,  52  Am.  St.  Bep.  752, 
44  N.  £.  169.  The  judgment  may  constitute  a  lien  on  his  land: 
Johnson  ▼.  Johnson,  22  Colo.  20,  56  Am.  St.  Bep.  113,  43  Pae.  130, 
Gaston  ▼.  Gaston,114  Gal.  542,  55  Am.  St.  Bep.  86,  46  Pac.  609. 

Attomeyi'  Fees  in  divorce  proceedings  are  considered  in  Milliron  ▼. 
Hilliron,  9  S.  Dak.  181,  62  Am.  St.  Bep.  863,  68  N.  W.  286;  Johnson 
T.  Johnson,  107  Wis.  186,  81  Am.  St.  Bep.  836,  83  N.  W.  291;  Barth  ▼. 
Barth,  102  Ey.  56,  80  Am.  St.  Bep.  335,  42  S.  W.  1116;  Ditmar  ▼. 
Ditmar,  27  Wash.  18,  posti  p.  817,  67  Pae.  358. 


PITTSBURGH,  CINCINNATI,  CHICAGO  AND  ST.  LOUIS 
RAILWAY  COMPANY  v.  PARISH, 

[28  Ind.  Apf>.  189,  62  N.  E.  514.] 

RAILWAYS.— Trees  Overhanging  a  Track  so  Low  that  they 
come  in  contact  with  and  injure  employes  while  engaged  in  their 
duties  on  the  tops  of  ears  are  not  dangers  incident  to  the  service, 
nor  are  they  dangers  of  which  employes  are  presumed  to  know;  an«l 
hence  they  are  entitled  to  recover  for  injuries  suffered  therefrom  it 
themselves  free  from  contributory  negligence,     (p.  123.) 

BAILWAT8— Trees  Overhanging  Track— Employte  are  not 
Boond  to  Know  of.— Trees  overhanging  a  railway  track  are  not  such 
an  open  and  obvious  obstruction  that  the  court  can  say,  as  a  matter 
of  law,  that  an  employ 6  in  the  discharge  of  his  duties  is  bound  to 
see  them,  and  is  therefore  chargeable  with  knowledge  of  the  danger 
from  them.     (p.  124.) 

BAILWAY8 — Conductors  and  Trainmen  have  the  Bight  to 
assume  that  the  company  would  not  permit  any  obstruction  to 
lemain  above  its  tracks  which  would  be  dangerous  to  its  employes 
while  operating  its  trains.  If  there  is  such  obstruction,  and  the 
company  knows  it,  it  is  its  duty  to  notify  its  trainmen  of  the  danger, 
and  it  is  no  part  of  the  trainmen's  duty  to  anticipate  such  obstruc- 
tion,    (p.  124.) 

BAILWAT8.— If  the  Limbs  of  a  Tree  Extend  Over  a  Railway 
Track,  Though  Its  Body  does  not  Stand  on  the  Bight  of  Way,  and 
such  limbs  constitute  a  constant  danger  to  the  lives  of  employes  when 
on  the  top  of  freight-cars,  and  are  of  suflficient  size  and  strength 
to  Dttsh  a  man  off  of  the  top  of  a  car  running  from  three  to  six 
miles  an  hour,  the  railway  has  a  right  to  remove  such  dangerous 


Not.  1901.]     Pittsbdbgh  btc.  Ry.  Co.  v.  Pabish.  121 

oTerhanguig  limbs,  and,  failing  to  do  so,  is  guilty  of  negligence,  for 
wlueh  its  employes  may  recover  if  injured  thereby,     (p.  125.) 

NEOUGEMOE,  CONTBIBnTOBT— Absence  of,  How  may  be 
BrtaWlBbed. — The  absence  of  contributory  negligence  may  be  estab- 
Uahed  by  eireomstantial  evidence.  When  it  appears  from  the  evidence 
that  a  railway  conductor  was  pushed  from  the  top  of  a  slowly  moving 
train  by  the  limbs  of  a  tree  overhanging  the  track,  and  that  he 
was  a  sober,  eareful,  competent,  and  experienced  man,  and  was  in  the 
proper  place  and  in  the  performance  of  work  in  the  line  of  his  duty, 
&nd  had  never  been  warned  of  the  existence  of  the  danger,  and  that  a 
witness  saw  the  motion  of  a  man's  arm,  and  branches  of  the  tree 
moving,  and  a  lantern  fall,  the  jury  is  warranted  in  finding  that  the 
conductor,  at  the  time  of  his  injury,  was  not  chargesble  with  con- 
tributory negligence,     (p.  127.) 

NEaUGENCQES,  OONTBIBnTOBY— Evidence  to  Rebut.— Slight, 
positive  testimony,  whether  circumstantial  or  otherwise,  when  taken 
in  connection  with  the  instinct  of  self-preservation  and  the  desire 
to  avoid  pain  or  injury  to  one's  self,  may  be  sufficient  to  support 
the  conclusion  that  one  who  suifered  injury  did  not  help  to  bring  it 
upon  himself,     (pi  128.) 

NEOUaSNOE,  002TTBIBUTOBY— Wben  a  Qaestion  for  the 
Jvrj. — Whether  an  obstruction  on  the  line  of  a  railway  traek  con- 
sisting of  the  limbs  of  a  tree  overhanging  the  track,  so  as  to  push 
from  the  top  of  a  ear  an  employ^  thereon,  is  an  open  and  obvious 
defect,  and  the  dangcte'  therefrom  apparent,  is  a  question  for  the 
jury,  and  their  finding  upon  it  cannot  be  ignored,     (p.  130.) 

JUBY  TBIAIb — An  instruction  cannot  be  regarded  as  erroneous 
and  entitling  the  appellant  to  a  reversal  of  the  judgment  or  to  a  new 
trial,  because  it  states  some  of  the  material  facts  and  omits  others, 
if,  taken  in  connection  with  other  instructions,  the  whole  of  the  law 
and  the  facts  were  sufficiently  disclosed,     (p.  131.) 

1VE0IJ03BNCB,  OONTBIBtTTOBY— Equal  Means  of  Knowl- 
edge.—A  railway  employ^  injured  by  an  obstruction  on  or  over  the 
track  is  not  precluded  from  recovering  therefor,  on  the  ground  that 
he  had  an  equal  means  of  knowledge  with  his  employer  of  the  exist* 
enee  of  such  obstruction,  unless  it  was  also  his  duty  to  use  those 
meansL     (p.  131.) 

BAHiWAYS.— The  Duty  of  Making  an  Examination  for  the 
Pozpose  of  Discovering  Whether  an  Obstruction  exists  which  is  likely 
to  render  dangerous  his  performance  of  his  duty  by  an  employ^  rests 
upon  the  employer,  and  the  employ^  is,  therefore,  not  necessarilv 
chargeable  with  contributory'  negligence  because  he  did  not  make 
foeh  examination  or  discovery,     (p.  131.) 

EVIDENCE  that  a  Person  Killed  Upon  a  Sailway  Was  a  Oare- 
fnl  Man  About  His  Work  is  not  admissible  in  an  action  to  recover 
damages  for  such  killing  as  bearing  on  the  measure  of  damages.  In 
determining  the  value  of  a  human  life,  consideration  may  be  given 
to  the  habits  of  the  decedent  as  to  sobriety  and  industry,  because 
■Dch  qualities  affect  his  capacity  to  earn  money,     (p.  132.) 

NEOUGENCE.— Evidence  that  a  Hallway  Had  not  Erected 
Any  Warners  or  Tell-tales  on  either  side  of  a  tree  by  the  overhang- 
ing limbs  of  which  an  employ^  was  injured,  is  admissible.  Though 
the  failure  to  erect  them  may  not  be  negligence,  their  absence  tends 
to  prove  that  the  decedent  did  not  know  of  such  obstruction,  and 
had  not  been  warned  of  the  existence  of  danger,     (p.  132.) 

NEOUOENCE— Absence  of  Warning.— Evidence  that  a  con- 
dsctor  injured  by  being  pushed  from  the  top  of  a  moving  train  by 


122  Amsbican  State  Repobts^  Vol.  91.      [Indiana, 

the  overhanging  limbs  of  a  tree  had  not  been  notified  of  ihm 
existence  of  this  obstruction  is  admissible.  It  was  not  snch  a  danger 
aa  is  ordinarily  incident  to  the  business  of  railroading,  and  if  the 
corporation  knew  of  its  existence,  it  should  have  informed  its 
employte.    (p.  132.) 

Action  by  the  adminiBiratrix  of  John  H.  Parish  to  recoTer 
from  the  Pittsburgh,  Cincinnati,  Chicago  and  St  Louis  Bail- 
way  Company  damages  for  the  loss  of  his  life  while  in  its  esm- 
ploy.    Judgment  for  the  plaintiff;  defendant  appealed. 

John  L.  Bupe,  for  the  appellant. 

J.  F.  Bobbins,  B.  A.  Jackson,  and  H.  C.  Starr,  for  the  ap- 
pellee. 

*••  EOBINSON,  P.  J.  Appellee  sued  for  damages  for  the 
alleged  negligent  killing  of  her  intestate.  Demurrers  to  each 
of  the  two  paragraphs  of  complaint  overruled.  Verdict  in  ap- 
pellee's favor.  Motion  for  a  new  trial  overruled.  Judgment 
on  the  verdict.  The  errors  assigned  and  argued  question  the 
rulings  on  the  demurrers  and  the  denial  of  a  new  trial. 

The  averments  of  the  first  paragraph  upon  the  questions  of 
negligence  and  freedom  from  contributory  negligence  are^  sub- 
stantially, that  on  the  twenty-first  day  of  July,  1898,  decedent 
was  a  freight  conductor,  and  as  such  it  was  necessary,  in  the 
proper  management  of  trains,  to  go  on  the  tops  of  freight- 
cars  and  walk  over  the  same  while  in  motion;  that  at  that 
time,  and  for  some  time  prior  thereto,  there  was  a  certain  tree 
standing  and  growing  along  appellant's  right  of  way  and  near 
to  the  tracks,  the  limbs  and  branches  of  which  were  hung  and 
extended  over  and  above  the  tracks  to  such  height  and  in  such 
manner  and  position  as  that  the  same  would  come  in  contact 
with,  and  form  a  dangerous  obstruction  to,  anyone  standing  or 
walldng  on  or  along  the  tops  of  freight-cars  at  that  point,  all  of 
which  facts  were  at  all  times  well  known  to  appellant,  'fbut  of 
which  facts,  the  plaintiff  avers,  the  said  John  H.  Parish  ne^er 
at  any  time  had  any  notice  or  knowledge,  and  of  which  facts  he 
was  at  all  times  wholly  ignoranf' ;  that  appellant,  well  knowing 
the  existence  of  such  obstruction,  and  the  nature  and  dangerous 
character  of  the  same,  at  all  times,  knowingly,  carelessly  and 
negligently  failed  to  remove  or  cause  such  obstruction  to  be  re- 
moved, but  knowingly,  carelessly,  and  negligently  suffered  and 
permitted  the  same  to  remain  an  obstruction,  and  carelessly 
and  negligently  failed  to  provide  or  maintain  any  apparatus 
or  means  whatever  in  any  place  to  give  warning  to  any  tndnmsB 


No7.  1901.]    Pittsburgh  rc.  By.  Co.  v.  Pabish.  128 

wlio  might  be  upon  the  tops  of  cars  of  the  existence  of  such  ob- 
struction, or  of  the  approach  of  trains  to  the  same,  and  at  all 
times  carelessly  and  negligently  wholly  failed  to  give  to  train- 
men, by  any  means  ***  whatever,  any  notice  or  knowledge  of 
the  existence  of  such  obstmction;  that  between  12  and  1  o'clock 
on  the  morning  of  Jnly  21,  1898,  decedent  was  in  charge  of  a 
freight  train  as  conductor,  and  a  short  time  before  the  train 
reached  the  point  overhung  by  the  limbs  and  branches  of  the 
tree  it  became  his  duty  to  go  upon  the  tops'  of  the  moving 
freight-cars,  and  stand  and  walk  over  the  tops  of  the  same,  which 
he  did,  and  while  so  doing,  and  while  in  the  exercise  of  all  proper 
care  and  diligence,  in  entire  ignorance  of  the  obstruction,  and 
wholly  free  from  fault  or  negligence,  he  was  suddenly,  without 
warning;  brought  in  contact  with  the  obstruction  and  thrown 
to  the  ground,  producing  injuries  resulting  in  death.  The 
amended  second  paragraph  differs  from  the  first  only  in  that  it 
is  more  specifically  averred  that  decedent  was  ignorant  of  the 
obstruction  and  the  danger  thereof.  But  as  the  averment  of  the 
first  paragraph  upon  that  point,  which  is  set  out  above,  amounts 
to  an  averment  that  decedent  was  ignorant  of  the  obstruction 
and  of  the  danger,  the  two  paragraphs  in  their  essential  aver- 
ments are  substantially  the  same. 

The  pleading  charges  that  appellant,  at  the  time  in  question 
and  prior  thereto,  negligently  permitted  the  branches  of  a  tree 
to  overhang  its  tracks  so  as  to  form  a  dangerous  obstruction  to 
employ^  while  discharging  certain  duties,  and  that  appellant 
knew  the  existence  and  nature  of  the  obstruction,  and  its  dan- 
gerous character,  and  had  never  given  any  of  its  trainmen  any 
notice  of  the  existence  of  the  obstruction;  that  the  decedent 
had  no  notice  or  knowledge  of  the  existence  of  the  obstruction 
or  of  the  danger;  and  that  decedent,  while  in  appellant's  em- 
ploy, and  in  the  discharge  of  his  duty  as  a  conductor,  and  witiii- 
out  fault  on  his  part,  was  struck  by  the  overhanging  branches 
and  thrown  from  the  car  and  killed. 

It  cannot  be  said  that  the  danger  from  the  branches  of  a  tree, 
which  tiie  company  permits  to  hang  over  its  tracks  so  low  that 
they  may  come  in  contact  with  employes  while  engaged  *®*  in 
their  duties  on  the  tops  of  its  cars  is  a  danger  incident  to  the 
service.  Nor  is  it  such  a  danger  that  the  employ^  would  be 
presumed  to  know  it.  It  is  true,  it  is  not  averred  how  long 
decedent  had  been  engaged  in  the  service ;  and,  being  of  mature 
vesrs,  it  wiU  be  presumed  he  had  the  knowledge  and  skill  fitting 
iiim  for  the  service.    But  the  demurrer  admits  that  he  did  not 


124  Akebican  State  Hepobts,  Vol.  91.      [Indiana, 

not  faiow  of  the  danger;  that  he  did  not  know  of  the  obstnic- 
tion«  It  was  not  such  an  open  and  obvions  obstruction  that  we 
can  say,  as  matter  of  law,  that  the  employ^)  in  the  discharge  of 
his  duty,  was  bound  to  see  it,  and  that  he  was,  therefore,  charge- 
able with  knowledge  of  the  danger  from  it.  There  are  cases 
where  it  is  apparent  from  the  facts  averred  that  the  complain- 
ing party  had  an  equal  opportunity  with  the  employer  to  know 
of  a  defect  or  obstruction,  or  where  the  conclusion  is  irresistible 
that  he  did  know  of  it,  in  such  case  it  is  not  sufficient  to  aver 
simply  that  he  did  not  know  it.  But  this  is  not  such  a  caae. 
"While  an  employ 6,'*  said  the  court  in  Consolidated  Stone  Co. 
V.  Summit,  162  Ind.  297,  53  N.  E.  235,  '^assumes  the  risk  from 
obvious  defects  or  dangers,  open  to  ordinary  and  careful  ob- 
servation^ or  such  a^  would  be  known  by  the  exercise  of  ordinary 
care  (Peerless  Stone  Co.  v.  Wray,  143  Ind.  674,  42  K  E.  927), 
yet  it  is  only  necessary  to  allege  that  he  did  not  know  of  such 
defect  or  danger;  and  such  allegation  not  only  repels  actual 
knowledge,  but  any  implied  knowledge:  Evansville  etc.  R  B. 
Co.  V.  Duel,  134  Ind.  156,  33  N.  E.  355.  To  sustain  such  alle- 
gation, however,  the  evidence  must  show  that  the  employ6  not 
only  had  no  knowledge  of  the  defect,  but  could  not  have  known 
the  same  by  the  exercise  of  ordinary  care.'* 

Decedent  had  the  right  to  assume  that  the  company  would 
not  permit  an  obstruction  to  remain  above  its  tracks  which 
would  be  dangerous  to  its  employes  while  operating  its  trains. 
If  there  was  such  an  obstruction,  and  the  company  knew  it,  it 
was  its  duty  to  notify  its  trainmen  of  the  danger.  It  was  no 
part  of  decedent's  duty  to  anticipate  such  an  obstruction.  He 
may  have  passed  it  seldom  or  often,  and  *•*  yet  know  nothing 
of  its  existence.  It  was  not  such  an  obstruction  as  he  must 
necessarily  see  when  passing  over  the  road  with  his  train.  It 
was  dangerous  to  an  employ6  only  when  on  top  of  a  car.  It 
does  not  appear  from  the  pleading  that  decedent  had  ever  passed 
over  that  part  of  the  road  before  that  trip.  But  even  if  that 
did  appear,  there  is  nothing  in  the  complaint  to  show  that  he 
must  necessarily  see  the  obstruction  when  passing  it,  or  that  any 
facts  existed  within  his  knowledge  to  warn  him  of  any  dangfcr. 
The  demurrers  to  the  complaint  were  properly  overruled :  See 
Baltimore  etc.  R.  R.  Go.  v.  Rowan,  104  Ind.  88,  3  K  E.  627; 
Louisville  etc.  R.  R.  Co.  v.  Wright,  115  Ind.  378,  7  Am.  St. 
Rep.  432,  16  K  E.  145,  17  N.  E.  584;  Pennsylvania  Co.  v^ 
Sears,  136  Ind.  460,  34  N.  E.  16,  36  N.  E.  353. 


Not.  1901.]     Pitxsbubgh  etc.  Ry.  Co.  v.  Pabish.  125 

AppeUanf  6  road  where  it  crossed  the  main  street  of  the  town 
ran  north  and  south,  and  consisted  of  two  tracks^  the  west 
track  being  the  main  track;  and  the  other,  as  near  the  main 
track  as  would  leave  proper  clearance,  was  a  switch  track  used 
for  switching  and  a  passing  siding  for  trains.  Six  or  seven 
feet  eafit  of  the  switch  track,  at  the  southeast  comer  of  the  cross- 
ing and  the  street,  and  on  the  outer  edge  of  the  sidewalk  in  front 
of  private  property,  and  not  upon  appellant's  right  of  way  or 
property,  etood  a  tree  with  a  limb  about  twelve  feet  from  the 
ground,  the  branches  of  which  extended  out  toward  the  tracks. 
The  jury  found  that  when  Parish  was  injured,  and  during  more 
than  a  year  prior  thereto,  the  limbs  and  branches  of  this  tree 
extended  over  the  switch  track,  constituting  an  obstruction  dan- 
gerous to  the  lives  of  employes  when  on  the  tops  of  freight-cars, 
and  sufficient  in  size  and  strength  to  push  a  man  off  of  the  top 
of  a  car  running  from  three  to  six  miles  an  hour.  There  is 
evidence  to  sustain  these  findings.  Appellant  not  only  had  the 
right  to  remove  such  overhanging  limbs,  whether  the  tree  stood 
upon  its  right  of  way,  or  upon  the  premises  of  an  adjoining 
land  owner,  but  it  was  its  duty  to  remove  them,  if  such  removal 
was  necessary  to  provide  a  reasonably  safe  place  for  its  employes 
to  work.  From  the  whole  record  it  is  *®®  clear  that,  as  to  ap- 
pellant's negligence,  the  jury's  general  verdict  in  appellee's 
favor  was  authorized:  See  Toledo  etc.  B.  B.  Co.  v.  Loop,  139 
Ind.  642,  39  K  E.  306. 

The  jury  answered  that  decedent  was  pushed  or  knocked  off 
the  car  by  the  limbs  of  the  tree,  but  it  is  argued  that  the  evi- 
dence leaves  it  a  matter  of  speculation  as  to  how  he  came  to 
fan,  and  that  there  is  no  evidence  that  he  was  at  the  time  in 
the  exercise  of  due  care.  It  is  well  settled  that  the  absence  of 
contributory  negligence,  as  any  other  disputed  fact,  may  be  es- 
tablished by  circumstantial  evidence.  Charles  E.  Hebbler  tes- 
tified that  he  was  front  brakeman  on  south-bound  train  No.  76 ; 
that  decedent  was  conductor  on  north-bound  train  No.  87 ;  that 
witness'  train  was  standing  on  the  main  track,  waiting  for  de- 
cedent's train  to  pull  in  on  the  switch,  and,  as  it  came  in  on 
the  switch,  he  says,  "Why,  I  was  standing  on  top,  and  I  could 
see  the  motion  of  a  man^s  arms  and  see  the  limbs  moving,  and 
then  I  seen  the  lantern  fall,  and  then  I  rushed  over  to  the  en- 
gine and  told  the  fireman  about  it,  and  they  were  running  so 
very  slow  that  he  didn't  think  anybody  went  off  the  top ;  he  told 
me,  he  said  he  didn't  think  there  was  anyone  fell  off;  and  about 
eight  or  ten  more  car-lengths  passed  by,  and  we  seen  a  light  in 


126  AuBBiCAK  State  Beports,  Vol.  91.      [Indiana, 

between  two  ears^  and  then  we  thought  probably  that  it  was 
just  his  lantern  fell  off^  and  we  didn't  pay  any  more  attention 
to  it  until  we  got  to  Hamilton/'  Upon  cross-examination  he 
testified  that  he  was  on  top  of  a  car  eight  or  ten  car-lengths 
north  of  the  street  crossing,  and  that  decedent^s  train  was  mov- 
ing at  the  rate  of  four  or  five  miles  an  hour,  that  he  saw  the 
motion  of  the  limb  work  up  and  down,  and  could  see  the  limbs 
of  the  tree  moving,  and  saw  a  lantern  fall. 

"Q.  You  didn't  see  a  man,  did  you?    A.  Why  I  was  too 
far  off;  I  couldn't  see  the  man;  no,  sir. 

^'Q.  Well,  as  a  matter  of  fact,  you  didn't  see  any  man,  did 
you?    A.  No,  sir." 

Amanda  White  testified  that  on  the  night  in  question,  on  ac- 
count of  sickness,  she  was  sitting  at  an  open  window  which 
overlooked  the  railroad  crossing  eighty  or  a  *•''  hundred  feet 
away,  and  saw  a  man  fall  from  a  nortii-bound  freight  train  on 
tiie  switch;  that  he  was  past  the  tree  when  he  fell;  that  when 
he  fell  he  was  north  of  the  tree  and  south  of  the  trolley  wire 
(in  the  middle  of  Main  street) .     She  did  not  see  him  on  top  of 
the  car,  but  he  had  just  left  the  car  and  was  falling  when  ahe 
saw  him.     On  cross-examination  she  testified  that  he  seemed  to 
drop  as  though  he  had  no  life  when  he  fell;  heard  him  strike 
the  ground ;  that  she  did  not  see  the  man  at  the  time  he  passed 
the  tree;  did  not  see  any  motion  of  the  limbs;  that  she  conld 
see  the  maple  tree  plainly  from  where  she  was.    Bobert  D. 
White,  husband  of  Amanda,  testified  that,  being  awakened  by 
his  wife,  he  went  to  the  crossing  and  saw  the  man,  unconscious, 
lying  on  his  right  side,  eight  or  nine  feet  east  of  the  switch 
track,  and  twenty-five  or  twenty-eight  feet  north  of  the  tree; 
also  a  broken  lantern  lying  near.    Joseph  H.  Bro?ni  testified 
that  he  was  rear  brakeman  on  decedent's  train;  that  he  and 
decedent  were  in  the  caboose  together,  and  that  when  the  train 
had  pulled  partly  in  decedent  took  his  lantern  and  went  out ; 
that  the  train  remained  standing  several  minutes,  and  when 
it  pulled  in  on  the  siding  witness  left  the  caboose,  closed  the 
switch,  returned  to  the  caboose,  and  when  they  had  passed  over 
Main  street  crossing  and  stopped  he  saw  the  conductor's  body 
lying  in  the  road.    There  was  also  evidence  that  two  or  three 
small  branches  of  the  tree  about  a  foot  and  a  half  to  two  feet 
long  and  about  as  thick  as  a  lead  pencil,  freshly  broken,  were 
found  on  the  ground  near  decedent,  and  between  him  and  his 
lantern,  and  the  next  day  a  space  about  two  feet  or  more  was 
discovered  in  the  limbs  that  overhung  the  track,  where  the 
twigs  and  limbs  had  been  freshly  broken  off. 


Nw.  1901.]    P1TT8BUBGH  ETC.  Ry.  Co.  v.  Pabibh.  127 

The  record  shows  that  decedent  was  a  sober  and  careful  man^ 
and  a  competent  and  experienced  railroad  conductor;  that  he 
had  been  in  appellant's  employ  as  conductor  eight  or  nine  years ; 
that  when  injured  he  had  with  him  his  lantern^  and  was  in  a 
proper  place,  and  in  the  performance  of  work  *®®  in  the  line 
of  his  duty;  that  he  had  never  at  any  time  been  warned  in  any 
way  of  the  existence  of  the  danger.    He  was  seen  to  take  his 
lantern  and  leave  the  caboose.    A  witness  saw  the  motion  of  a 
man'sr  arms,  and  saw  the  branches  of  the  tree  moving,  and  saw 
the  lantern  falL    Another  witness  saw  his  body  falling  from 
the  top  of  the  car.    His  body  was  found,  taking  into  consid- 
eration the  height  of  the  car  and  the  speed  of  the  train,  at  a 
place  consistent  with  the  theory  that  the  branches  caused  him 
to  fall.    Taking  all  the  facts  and  circumstances  proved,  and 
the  inferences  that  may  be  fairly  drawn  from  these  facts  and 
circumstances,  it  cannot  be  said  there  was  nothing  upon  which 
the  jury  could  base  the  answer  to  an  interrogatory  that  decedent 
was  pushed  or  knocked  off  the  train  by  the  limbs  of  the  tree. 
Nor  can  it  be  said  that  there  is  nothing  in  the  record  from 
which  the  jury  could  say  that  decedent  was  in  the  exercise  of 
due  care.    It  is  argued  that  the  nature  of  the  obstruction  was 
such  that  the  decedent,  in  the  exercise  of  ordinary  care,  must 
necessarily  have  seen  it;  that  it  was  open  and  obvious;  and 
that  decedent,  in  exercising  the  care  devolved  upon  him  by  law, 
must  have  known  of  its  existence.    The  jury  found  as  a  fact, 
in  answer  to  interrogatories,  that  the  braiiches  were  not  at  all 
times  an  open,  apparent,  and  obvious  obstruction  to  a  person 
passing  on  the  switch  on  the  outside  of  a  train,  and  that  a  per- 
son on  top  of  a  freight  train  nmning  from  three  to  six  miles 
an  hour  and  on  the  lookout  for  obstructions  would  not  at  all 
times  see  the  tree  and  limbs.    The  jury  also  found  that  decedent 
did  not  know,  and  that  while  acting  as  conductor  he  did  not 
have  a  reasonable  opportunity  to  learn,  of  the  dangerous  char- 
acter of  the  obstruction,  and  that  in  passing  over  the  switch  on 
the  inside  of  a  moving  caboose  he  did  not  have  a  reasonable  op- 
portunity to  discover  such  dangerous  character. 

It  appears  from  the  evidence  that  at  the  time  of  the  injury 
^  decedent  was  engaged  in  running  his  train  north,  in  on  the 
switch.  An  extra  train  was  immediately  ahead  of  his  *••  on 
the  switch,  and  still  another  train  on  the  main  track  going 
south.  Decedent's  train  stood  partly  on  the  switch,  but  with 
the  rear  end  on  iJie  main  track.  While  these  two  trains  were 
thus  standing  on  the  switch  and  main  track,  the  south-bound 


128  Amekican  State  Bepobts^  Vol.  91.      [Indiana, 

train  passed  the  north  end  of  the  switch  and  stopped,  and  the 
extra  passed  out  onto  the  main  line.    Decedent  then  moved  his 
ti-ain  north  to  get  the  rear  of  the  train  off  the  main  line  so  the 
south-bound  train  could  pass,  and  while  so  engaged  the  accident 
happened.    Decedent's  attention  would  naturally  be  occupied 
with  the  movements  of  these  trains.    There  was  nothing    to 
suggest  to  him  that  he  was  in  any  danger  from  any  overhead 
obstruction.    He  had  the  right  to  rely  upon  the  appdlanfa  per- 
formance of  its  duty  to  remove  such  obstruction,  or  give  him  no- 
tice of  its  existence.    The  jury  found  that  there  were  electric 
lights  near  this  crossing,  but  that  they  did  not  light  the  crossing 
well,  and  so  that  persons  and  objects  might  be  readily  distin- 
guished at  and  immediately  about  the  crossing,  and  that  a  per- 
son passing  over  the  crossing  at  night  could  not  from  all  points 
readily  see  and  distinguish  the  tree  and  limbs,  and  that  the  view 
of  the  tree  to  a  person  passing  it  on  the  outside  of  a  train  on 
either  the  main  or  side  track  was  obstructed  by  smoke,  shadows 
and  insufficient  light,  to  a  considerable  extent.    He  had  the 
right  to  give  his  whole  attention  to  the  duty  he  was  performing. 
He  was  in  a  place  where  his  duty  to  appeUant  required  him  to 
be.    He  was  ignorant  of  any  danger.    He  did  not  know  of  anv 
obstruction.    Bules  of  appellant,  copies  of  which  were  furnished 
all  conductors,  made  it  the  duty  of  appellant's  supervisor  to 
note  anything  liable  to  obstruct  the  track  and  have  it  removed. 
Not  only  shoidd  all  the  facts  and  'circumstances  surrounding 
him  at  the  time  be  taken  into  consideration,  but  it  is  proper  to 
consider,  also,  on  the  question  whether  he  exercised  care,  that 
he  was  sober  and  industrious,  and  a  young  man  in  good  health, 
providing  for  his  family,  an  experienced  conductor  earning 
from  eighty  dollars  to  one  hundred  dollars  per  **^  month,  and 
that  in  a  person  so  situated  it  is  to  be  inferred  that  the  instinct 
of  self-preservation  was  as  strong  as  in  other  men.     Slight  posi- 
tive testimony,  whether  circumstantial  or  otherwise,  when  taken 
in  connection  with  the  instincts  of  self-preservation,  and  the 
desire  to  avoid  pain  or  injury  to  one's  self,  may  be  sufficient  to 
support  a  conclusion  that  one  who  suffers  injury  did  not  help 
to  bring  it  upon  himself:  See  Allan  v.  Willard,  67  Pa.  St  374; 
Chicago  etc.  R.  R.  Co.  v.  Gunderson,  174  111.  496,  61  N.  E.  708 ; 
Hopkinson  v.  Knapp,  92  Iowa,  328,  60  N.  W.  663 ;  Way  v.  HU- 
nois  etc.  R.  R.  Co.,  40  Iowa,  341 ;  Greenleaf  v.  Illinois  etc.  R.  R. 
Co.,  29  Iowa,  14,  4  Am.  Rep.  181 ;  Gay  v.  Winter,  34  CaL  153 ; 
Johnson  v.  Hudson  River  R.  R.  Co.,  20  N.  Y.  66,  75  Am.  Dec. 
376;  Teipel  v.  Hilsendegen,  44  Mi<?h.  461,  7  N.  W.  82;  Evans- 


Nov.  1901.]    PiTTSBCBQH  ETC.  Ry.  Co.  V.  Pabish.  129 

▼iUe  St.  B.  B.  Co.  v.  Gentry,  147  Ind.  408,  62  Am.  St.  Sep.  421, 
44  N.  E.  311;  Cincinnati  etc.  B.  B.  Co.  v.  McMullen,  117  Ind. 
439,  10  Am.  St.  Bep.  67,  20  N.  E.  287;  Illinois  etc.  B.  B.  Co. 
V.  Nowicki,  148  ni.  29,  35  N.  E.  358 ;  Citizens'  St.  B.  B.  Co.  v. 
BaUard,  22  Ind.  App.  151,  62  N.  E.  729. 

Complaint  is  made  of  certain  instructions  given,  and  the  ar- 
gument against  them  is  that  they  incorrectly  state  the  law  as  to 
assumed  risk.    The  questions  presented  by  appellant's  counsel 
upon  the  instructions  given,  and  the  court's  refusal  to  give 
some  of  the  instructions  requested,  rest  upon  the  doctrine  of 
asgumed  risk.    The  obstruction  here  complained  of  is  not  one 
that  was  erected  and  maintained  and  necessary  for  use  in  the 
operation  of  the  road.    It  is  a  familiar  rule  that  by  the  contract 
of  service  an  employ^  assumes  such  risks  as  are  naturally  inci- 
dent to  the  particular  service.    And  he  assumes  the  risk  of  in- 
jury from  such  dangerous  obstructions  as  are  known  to  him  in 
fact,  or  which  ordinary  care  on  his  part  would  discover :  Penn- 
sylvania Co.  V.  Ebaugh,  152  Ind.  531,  53  N.  E.  763;  Wabash 
R.  B.  Co.  V.  Bay,  152  Ind.  392,  61  N.  E.  920.    And  he  assumes 
the  risk  of  injury  from  dangeroiis  obstructions,  which,  by  reason 
of  their  open  and  obvious  character  in  and  of  themselves,  give 
him  notice.     The   jury  *®*  answered   that   decedent   did  not 
know  of  the  obstruction,  nor  did  he  have  reasonable  opportunity 
to  know  it.     The  theory  of  the  trial  court  was  that  the  na- 
ture of  this  obstruction  was  such  that  the  jury  should  deter- 
mine from  all  the  facts  and  circumstances  proved  whether  de- 
cedent had  actual  notice  or  knowledge  of  its  existence,  or  had 
reasonable  opportunity  to  know  of  it,  and  that,  if  he  did  not, 
the  risk  was  not  assumed.    Upon  this  theory  the  court  correctly 
instructed  the  jury.    Appellant's  counsel  seem  to  proceed  upon 
the  theorv  that  the  obstruction  was  of  such  a  character  that  an 
employ^  was  necessarily  bound  to  know  of  its  existence,  and 
that  the  answers  of  the  jury  upon  the  question  of  notice  or 
knowledge  must  be  ignored.     But  whether  such  an  obstruction 
as  that  in  question  is  an  open  and  obvions  defect,  and  the  dan- 
ger therefrom  obvious  and  apparent,  were  questions  of  fact  for 
the  jury.     Decedent  had  been  in  the  employ  of  appellant  as  con- 
ductor over  this  line  of  road  from  1891  to  September,  1895,  and 
from  that  time  until  May  31,  1898,  he  had  made  no  trip  over 
the  line.     The  record  does  not  show  that  during  the  time  prior 
to  September,  1895,  he  knew  of,  or  had  an  opportunity  to  know 
of,  this  obstruction,  if  in  fact  it  then  existed.     Moreover,  the 
question  here  would  be  whether  decedent  knew  of  the  obstruc- 

A«i     St.    Rep.,    Vol.    n— 9 


130  Amebican  State  Reports,  Vol.  91.      [Indian^ 

tion  when  injured,  rather  than  as  to  his  knowledge  at  some  prior 
time :  See  City  of  Bluflfton  v.  McAfee,  23  Ini  App.  112,  53  N'- 
E.  1058. 

The  jury  answered  that  from  May  31  to  July  21,  1898,  de- 
cedent made  forty-six  trips,  and  that  during  this  time  he  passed 
over  the  sidetrack  seven  or  more  times.    They  also  answered 
that  these  branches,  in  so  far  as  they  constituted  any  obstmc- 
tion  to  the  sidetrack,  were  not  at  all  times  an  open,  apparent, 
and  obvious  obstruction  to  a  person  passing  the  same  on  the 
sidetrack  on  the  outside  of  a  train.    The  overhanging  limbs 
constituted  an  obstruction  over  the  sidetrack  only.    The  branches 
were  above  the  top  of  an  ordinary  box  freight-cai*.    Decedent 
may  have  passed  over  the  sidetrack  a  number  of  times  in  the 
performance  of  his  *^^  duties  as  a  conductor,  and  yet  never 
have  seen  the  overhanging  branches.    And  he  may  have  seen  the 
tree  and  its  branches  while  passing  along  on  the  main  track,  and 
yet  the  danger  from  them  would  not  necessarily  have  been  ap- 
parent.   It  was  not  an  obstruction  always  dangerous  to  em- 
ployes passing  over  the  switch,  but  was  dangerous  only  to  a  per- 
son on  top  of  a  car;  and,  unless  the  tree  and  its  branches  were 
seen  with  reference  to  a  car,  their  dangerous  character  might 
not  be  apparent.     So  that  knowledge  of  the  existence  of  the 
tree  and  its  branches,  and  knowledge  of  the  danger  from  them, 
are  not  necessarily  one  and  the  same.    It  was  admitted  that  he 
had  been  given  no  actual  notice  of  the  obstruction.    There  is 
nothing  in  the  record  to  show  that  he  was  ever  at  any  time  in  a 
position  where  he  must  necessarily  have  seen  the  obstruction: 
See  Fonda  v.  St.  Paul  City  R.  Co.,  71  Minn.  438,  70  Am.  St. 
Rep.  341,  74  N".  W.  166.    When  all  the  evidence  in  the  case  is 
considered,  it  must  be  concluded  that  whether  decedent  assumed 
the  risk,  or  was  charged  with  notice  of  the  danger  to  which  he 
was  exposed,  was  a  question  for  the  jury :  See  Kelleher  v.  Mil- 
waukee etc.  R.  Co.,  80  Wis.  584,  50  N.  W.  942 ;  Sweet  v.  Michi- 
gan Cent.  R.  Co.,  87  Mich.  559,  49  N.  W.  882 ;  George  v.  Clark, 
85  Fed.  608 ;  Pidcock  v.  Union  Pac.  R.  Co.,  5  Utah,  612 ,  19 
Pac.  191;  St.  Louis  etc.  R.  Co.  v.  Irwin,  37  Kan.  701,  1  Ara» 
St.  Rep.  266, 16  Pac.  146 ;  Johnston  v.  Oregon  etc.  R.  Co.,  23  Or. 
94,  31  Pac.  283;  Boss  v.  Northern  Pac.  Ry.  Co.,  2  N.  Dak.  128, 
33  Am.  St.  Rep.  756,  49  K  W.  655 ;  Hulehan  v.  Oreen  Bay  etc. 
R.  R.  Co.,  68  Wis.  620,  32  N.  W.  529 ;  Fitzgerald  v.  New  York 
etc.  R.  R.  Co.,  88  Hun,  359,  34  N.  Y.  Supp.  824;  Keist  v.  Chi- 
•  cago  etc.  R.  R.  Co.,  110  Iowa,  32,  81  K  W.  181. 


Nov.  1901.]     PrrrsBUBGH  etc.  Ry.  Co.  v.  Pabish.  131 

The  sizih  instruction  does  not  purport  to  state  to  the  jury  all 
the  material  facts  they  are  required  to  determine^  but  expressly 
states  that  they  ''will  be  required  to  determine  as  material 
questions  in  this  case  the  following  f acts^  among  others/^  and 
proceeds  to  state  certain  facts.  This  instruction  ^■®"  cannot 
be  considered  erroneous,  on  the  ground  that  it  omits  the  ele- 
ment of  decedent's  duty  respecting  open  and  obvious  obstruc- 
tions^ when  taken  in  connection  with  other  instructions  given. 
The  court  instructed  the  jury  upon  the  employe's  duty  to  exer- 
cise reasonable  and  ordinary  care  and  diligence  for  his  own 
safety,  and  that  if  he  receive^information  or  had  notice  of  such 
conditions  and  dangers,  and  he  afterward,  with  knowledge 
thereof,  voluntarily  remained  and  continued  in  the  service,  and 
was  injured,  he  would  be  held  to  have  assumed  the  risk  of  such 
conditions  and  dangers,  and  could  not  recover. 

There  is  no  error  in  the  court's  refusal  to  instruct  the  jury 
if  tiie  evidence  showed  that  decedent  had  equal  opportunity  with 
appellant  to  see  and  know  of  the  existence  of  the  overhanging 
limbs,  and  their  character  and  extent,  he  would,  by  remaining 
in  the  service,  assume  the  risk  and  dangers  arising  therefrom. 
The  jury  answered  that,  at  the  time  of  and  prior  to  the  injury, 
decedent  did  not  have  opportunity  equal  with  appellant's  oflS- 
cers  and  agents  to  know  of  the  existence  and  location  of  the 
tree  and  its  branches,  and  that  he  did  not  know  of,  nor  did  he 
have  reasonable  opportunity  to  know  of,  their  dangerous  char- 
acter- The  obstruction  was  one  arising  out  of  appellant's  negli- 
gence, and  equal  opportunity  to  know  of  the  existence  of  the 
obstruction,  and  equal  opportunity  to  know  of  its  dangerous 
character  are  not  one  and  the  same  thing.  Moreover,  it  cannot 
be  said  that  any  duty  rested  upon  decedent  to  make  any  examina- 
tion of  appellant's  road  for  such  an  obstruction  as  that  here 
in  question.  But  such  a  duty  did  rest  upon  appellant.  "The 
true  rule,'*  say  Shearman  and  Bedfield  on  the  Law  of  Negli- 
gence, fifth  edition,  section  217,  "as  to  'equal  knowledge'  is  that, 
when  the  means  of  knowledge  and  the  duty  to  use  those  means 
are  equal,  between  master  and  servant,  and  neither  uses  those 
means,  both  are  equally  at  fault."  And  in  Louisville  etc.  B. 
R.  Co.  V.  Berry,  2  Ind.  App.  427,  28  N.  E.  714,  it  is  said :  "The 
general  statement  is  made  in  some  of  the  books  and  decisions 
^^  of  courts  that  the  law  will  not  permit  a  servant  to  recover 
from  his  master  for  an  injury  resulting  on  account  of  a  danger- 
ous defect  in  the  service,  if  he  had  the  same  means  of  discov- 
ering the  defect  as  the  master  had.  This  principle  can  apply 
oaly  where  the  servant  is  under  the  same  obligation  as  the  mas- 


132  Akebicak  State  Bepobts,  Vol.  91.      [Indianm, 

ter  to  know  the  condition  of  the  service'^:  See^  also^  Salem. 
Stone  etc.  Co.  v.  GriflSn,  139  Ind.  141,  38  N.  E.  411. 

A  witness  who. had  testified  that  he  had  known  decedent  m 
number  of  years,  had  frequently  seen  him  at  work  as  a  railroad- 
man, and  had  worked  with  him,  saw  him  almost  every  day  dur- 
ing the  last  years  of  his  life,  was  asked  to  state  '^what  sort  of  & 
man  he  was,  as  to  whether  or  not  he  was  a  careful  man  in  and 
about  his  work  as  a  railroadman,  or  otherwise.^'    Objection 
was  made  that  the  question  called  for  an  opinion;  that  the  evi- 
dence was  not  competent  to  prove  freedom  from  contributory 
fault,  and  was  not  proper  under  any  issues  in  the  case.    It  is 
no  doubt  true  that  such  evidence  Vould  not  be  competent  to  ex* 
cuse  negligence;  but,  although  the  cases  do  not  agree,  it  would 
be  competent  upon  the  measure  of  damages.    The  loss  from 
the  death  of  a  careful,  experienced,  railroadman  would  be 
greater  than  from  that  of  one  who  was  careless  and  inexperi- 
enced.   The  law  estimates  the  value  of  a  human  life  as  best  it 
can,  and  in  doing  so  it  will  take  into  consideration,  amon/; 
other  things,  the  habits  of  the  individual  as  to  sobriety  and  in- 
dustry, and  such  qualities  as  affect  his  capacity  to  earn  money. 
The  evidence  in  question  was  not  improper  to  go  to  the  jury  on 
the  question  of  damages.    Upon  a  proper  request,  a  court 
should  limit  by  an  instruction  such  evidence  to  the  particular 
question  upon  which  it  is  competent:  See  Board  etc.  v.  Legg, 
110  Ind.  479,  11  N.  E.  612;  Hogue  v.  Chicago  etc.  B.  R.  Co., 
32  Fed.  365;  Missouri  Pac.  By.  Co.  v.  Moffat,  60  Kan.  113,  72 
Am.  St.  Bep.  343,  65  Pac.  837 ;  Wells  v.  Denver  etc.  B.  Co.,  7 
Utah,  482,  27  Pac.  688 ;  Chicago  etc.  E.  Co.  v.  Clark,  108  IlL 
113. 

*^^  It  was  not  error  to  permit  appellanf^s  supervisor  to  testify 
that  appellant  had  not  erected  any  wamers  or  tell-tales  on  either 
side  of  this  tree.  The  complaint  contains  such  an  averment. 
Although  no  legal  obligation  rested  upon  appellant  to  erect  and 
maintain  such  wamers,  and  the  failure  to  erect  and  maintain 
them  would  not  be  negligence,  yet  such  evidence  would  be  com- 
petent as  tending  to  establish  the  fact  that  decedent  did  not 
know  of  the  obstruction,  and  had  not  been  in  any  way  warned 
by  appellant  of  its  existence  or  of  the  danger.  Nor  was  there 
any  error  in  permitting  appellant's  trainmaster  and  chief  train 
dispatcher  to  testify  that  decedent  was  not  notified  of  the  ex- 
istence of  this  obstruction.  The  obstruction  had  existed  for  a 
sufficient  length  of  time  that  appellant  was  bound  to  know  of  it 
The  complaint  charged  that  appellant  had  not,  by  any  means, 


Not.  1901.]     Pittsbubgh  etc.  Ry.  Co.  v.  Parish.  t33 

notified  decedent  of  the  danger.  The  danger  here  in  question 
▼as  not  snch  as  is  ordinarily  and  nsnally  incident  to  the  busi- 
ness of  railroading,  and  knowing  of  its  existence,  it  was  appel- 
lant's duty  to  inform  its  employ^ ,  the  danger  not  being  of  such 
character  that  the  employes  were  bound  to  take  notice  of  it: 
Louisville  etc.  R  R.  Co.  v.  Wright,  115  Ind.  378,  7  Am.  St. 
Bep.  432,  16  N.  E.  145,  17  N.  E.  584. 

Upon  cross-examination  of  one  of  appellant's  witnesses,  he 
testified  that  after  the  injury,  and  on  the  same  night,  he  picked 
up  some  small  branches  of  a  tree  underneath  the  overhanging 
limbs.    It  was  not  reversible  error  to  permit  a  question  to  be 
asked  the  witness  on  the  fur&er  cross-examination,  whether  at 
the  time  he  did  not  think  there  might  be  some  connection  be- 
tween the  broken  branches  and  the  injuries  to  decedent.    What 
the  witness  thought  could  not  be  material  as  a  substantive  fact, 
nor  would  any  such  statement  by  him  bind  appellant.    He  had 
aheady  testified  without  objection  that  he  "didn't  know  but  what 
they  might  be  needed  as  evidence.^'    As  this  was  cross-exam- 
ination of  an  employ^  of  appellant  called  by  it  as  a  witness,  ap- 
pellee was  not  bound  by  the  answer  as  made,  but  might  make 
further  **^  inquiry  to  determine  whether  the  witness  had  fully 
given  the  true  reason  for  his  action.    But  even  if  it  should  be 
admitted  that  the  evidence  was  not  material,  it  cannot  be  said 
that  it  was  necessarily  prejudicial  or  harmful  to  appellant. 
Judgment  a£Srmed« 


A  Railway  Company  i$  Liable  for  injuries  anstained  by  its  em- 
ploy^ fTom  fftmetnrefl  msintaiiied  along  or  over  its  tracks  in  close 
proximity  to  passing  trains:  Wbipple  v.  New  York  etc.  R.  B.  Co.,  1& 
B.  L  5S7,  61  Am.  St.  Bep.  796,  35  Atl.  305;  Boss  v.  Northern  Pao.  B. 
B.  Co.,  2  N.  Dak.  128,  33  Am.  St.  Bep.  756,  49  N.  W.  655;  Louisville 
B.  B.  Go.  T.  Hall,  .91  Ala.  112,  24  Am.  St  Bep.  863,  8  South.  871; 
LouisviUe  etc  By.  Co.  t.  Wright,  115  Ind.  378,  7  Am.  St  Bep.  482, 
16  N.  E.  145,  17  N.  E.  584;  St  Louis  etc.  B.  B.  Co.  v.  Irwin,  37  Kan. 
701, 1  Am.  St.  Bep.  266,  16  Pae.  146;  mono^apbio  note  to  Chicago  etc. 
B.  B.  Go.  ▼.  Swett,  92  Am.  Dee.  218,  219.  The  employ^,  in  such  cases, 
does  not  assame  the  risk  or  peril,  unless  he  knows  of  the  danger,  or 
it  is  so  obvious  that  he  must  be  presumed  to  know  itr  Scanlon  ▼. 
Boston  etc  B.  B.  Co.,  147  Mass.  484,  9  Am.  St.  Bep.  733,  18  N.  E. 
^;  Gundlaeh  t.  Sehott,  392  HI.  609,  85  Am.  St  Bep.  348,  61  N.  E. 
332.  Contributory  negligence  on  the  part  of  the  employe,  however, 
may  bar  any  right  of  action  for  the  injuries:  Louisville  etc.  B.  B.  Cow 
y.  HaU,  91  Ala.  112,  24  Am.  St  Bep.  863,  8  South.  371. 


131  Ahebioan  State  Bbpobts,  Vol.  91«      [Indiana^ 


KELLY  T.  PITTSBTJBGH,  CINCINNATI,  CHICAGO  A3fJ> 
ST.  LOUIS  RAILROAD  COMPANY, 

[28  Ind.  App.  457,  68  K.  E.  238.] 

ZJBOTATIOKB  OF  AOTIONB— Statute,  Wben  Ooauneneas  to 
Ban.— If  it  is  claimed  that  a  culvert  in  an  embankment  erected  'hy 
a  railway  company  across  a  public  highway  was  insufficient  in  sisa 
to  carry  away  the  accumulations  of  waters  in  times  of  heavy  rains, 
and  that  by  reason  thereof  plaintiff's  lands  were  overflowed  and 
damaged,  the  statute  of  limitations  against  his  cause  of  action  there- 
for commences  to  run  at  the  date  of  his  suffering  the  injury,  and  not 
at  the  date  of  the  completion  of  the  embankment  and  culvert,  (p. 
139.) 

NUISAKOZS— Prescription.— The  right  to  maintain  a  publie 
nuisance  cannot  be  acquired  by  prescription.  Hence,  the  maintenance 
of  an  embankment  and  culvert  across  a  public  highway,  however  lon^ 
continued,  cannot  result  in  the  prescriptive  right  to  so  maintain 
them  as  to  constitute  a  public  nnisanccb     (p.  139.) 

MUNICIPAL  OOBPOBATIOKS-LlabiUty  of  for  Accnmnlat- 
Ing  and  Casting  Water  iipon  Private  Lands.— The  accumulation  in 
one  channel  of  a  large  stream  of  water  by  the  act  of  a  city  plaees 
upon  it  the  duty  to  see  that  suitable  provision  is  made  for  the  escap<» 
of  the  water  without  injury  to  private  property,  and  if,  by  reason 
<ft  the  insufficiency  of  the  drain  or  other  meanfi  provided,  the  accara- 
idated  waters  are  cast  upon  private  property  to  its  injury,  the 
municipality  is  liable,     (p.  140.) 

Action  to  recover  damages  for  the  overflowing  of  the  plain- 
tifPa  land.  A  demurrer  to  his  complaint  was  sustained^  and  he 
thereupon  appealed. 

L.  A.  Douglas  and  H.  W.  Phipps,  for  the  appellant. 

S.  Stansifer,  M.  Z.  Stannard,  and  G.  H.  Yoigt,  for  the  appel- 
lees. 


WILEY,  J.  Appellant  was  plaintiff  below,  and  his  com- 
plaint  was  held  bad  on  separate  demurrers.  He  declined  to 
plead  further,  and  judgment  was  rendered  against  him  for  costs. 
By  his  assignment  of  errors  he  questions  the  correctness  of  the 
court's  action  in  sustaining  the  demurrers  to  the  complaint 

The  complaint  avers  that  on  December  3,  1867,  the  common 
council  of  the  city  of  Jeffersonville  passed  an  ordinance  granting 
to  the  predecessor  of  appellee  railroad  company  '**•  the  right 
to  construct  and  maintain  its  railroad  on  and  along  Ninth  street, 
between  certain  points  named  by  said  ordinance;  that  the  ordi- 
nance imposed  upon  the  company  the  duty  '^to  make  and  main- 


Nov.  1901.]     EsLLT  V.  P1TT8BUBGH  KEO.  R.  R.  Co.  135 

tain  good  and  substantial  cnlyerts^  such  as  the  dvil  engineer  of 
said  city  shonid  direct  and  approve,  at  all  places  where  said  en- 
gineer or  the  common  council  might  direct,  so  as  to  allow  the 
free  passage  of  water  underneath  said  track  and  bank^' ;  that  in 
1868  the  railroad  company,  under  the  provisions  of  the  ordi- 
nance, constructed  its  tracks  and  railroad  bed  on  and  along 
^inth  street,  and  in  doing  so  threw  up  an  embankment  of  earth 
forty  feet  wide  at  its  base,  twenty-five  feet  wide  at  the  top,  and 
about  ten  feet  high ;  that  said  track  and  embankment  were  con- 
structed by  the  railroad  company  xmder  the  direction  of  the 
civil  engineer  of  said  city,  and  when  completed  were  approved 
by  said  city.  The  complaint  then  contains  the  following  aver- 
ments :  ^That  at  the  time  of  the  passage  of  said  ordinance  and 
the  building  of  said  track  and  bank,  that  portion  of  said  city 
lying  contiguous  to  said  bank  and  track  for  as  much  as  twenty- 
five  blocks  was  low,  inclined  toward  the  north,  and  had  a  natural 
drainage  across  said  Ninth  street  and  said  proposed  track  and 
bank,  and  the  drainage  of  a  large  part  of  said  city,  to  wit,  twenty- 
five  blocks  were  drained  and  carried  toward  the  north  across  the 
said  line  of  bank  and  railroad  track  and  Ninth  street;  and  said 
drainage  and  water  and  the  flow  thereof  was  not  ohgitmctorl.  hnt 
was  free  and  carried  away  and  off  by  natural  drainage  on  the 
surface,  without  damage  to  the  citizens  and  property  wiciiiii  said 
dty,  and  said  water  and  drainage  had  access  towards  the  north 
and  at  numerous  places  across  the  said  proposed  line  of  railroad 
track  and  banks,  and  was  diffused  and  scattered  in  its  flow  along 

and  over  the  surface  across  said  line  of  railroad That 

the  building  of  said  track  and  bank  cut  off  and  obstructed  the 
flow  of  water  and  drainage  toward  the  north  across  the  same, 
and  the  defendant  railroad  company  carelessly  failed  and 
omitted  to  ^^^  make  and  maintain  culverts  and  openings  through 
said  bank  su£Scient  to  allow  the  free  passage  of  water  underneath 
said  track,  but  the  plaintiff  says  that  the  defendant  company 
built  and  constructed  but  one  culvert  and  sewer  underneath  said 
track  and  bank,  and  the  same  was  constructed  within  and  on 
the  public  alley  of  the  city  [describing  its  location],  but  said 
culvert  and  sewer  were  insufficient  in  size,  too  small,  and  in- 
adequate to  permit  the  free  passage  of  water  and  drainage 
through  said  bank  under  said  track  as  aforesaid.''  It  is  also 
averred  that  the  building  of  said  track  and  bank  was  under  the 
direction  of  said  city,  and  prevented  the  free  flow  and  natural 
drainage  of  water,  rainfall,  sewage,  and  drainage  of  a  large 
portion  of  said  city,  viz.,  as  much  as  twenty-five  blocks,  to  ac- 


136  American  State  Reports,  Vol.  91.      [IndiaxMU 

cnmxilate  and  be  at  a  point  between  Spring  street  and  Indiana 
avenue,  on  the  south  side  of  Ninth  street,  in  a  certain  open  diixjb 
constructed  and  maintained  by  said  city,  and  connected  with  a 
certain  sewer  and  culvert  for  the  purpose  of  causing  said  water, 
sewage,  and  drainage  to  flow  in  and  through  said  drain,  ditch 
and  culvert.    It  is  further  alleged  that  butrfor  the  construction 
of  said  bank,  ditch,  and  drain,  said  water,  drainage,  and  sew- 
age would  not  otherwise  accumulate  and  flow  in  said  place,  and 
that  said  bank,  drain,  ditch,  sewer  and  culvert  changed  the  natu- 
ral surface  flow  of  the  rainwater  of  that  portion  of  the  city,  and 
caused  the  same  to  flow  in  said  ditch  or  drain  and  through  said 
sewer  and  culvert;  that  prior  to  the  time  said  bank  was  con- 
structed that  portion  of  the  city  lying  contiguous  thereto,  for  as 
much  as  twenty-flve  blocks,  was  low,  inclined  toward  the  north, 
and  had  a  natural  drainage  across  Ninth  street,  and  that  said 
drainage  and  water  and  the  flow  thereof  was  not  obstructed,  but 
was  free,  and  was  carried  away  by  natural  drainage  on  the  sur- 
face without  damage  to  the  citizens  and  property  within  said 
city,  and  said  water  drainage  had  access  toward  tiie  north,  and 
at  numerous  places  across  the  proposed  line  of  railroad  track 
and  bank,  and  was  diffused  and  scattered  in  its  flow  ^^^  along- 
and  over  the  surface  and  across  the  said  line  of  road ;  that  on 
the  tenth  day  of  July,  1897,  while  said  bank,  drain  and  sewer 
were  in  the  condition  above  described,  there  occurred  a  heavv 
fall  of  rain,  and  that  ^'said  rain  and  the  drainage  caused  thereby'^ 
caused  an  accumulation  of  water  to  form  in  said  ditch  and  drain, 
at  said  culvert  and  sewer,  and  said  culvert  being  i&adequate  and 
insufficient  in  size  to  carry  off  the  same  through  and  under  said 
track,  caused  the  water  and  drainage  to  back  up  on  the  north 
side  of  said  bank,  and  to  be  cast  back  upon  plaintiff's  private 
property,  and  overflowed  into  his  store,  destroying  his  property, 
etc. 

The  complaint  shows  that  the  natural  flow  of  surface  water 
on  a  continguous  territory  of  about  twenty-flve  blocks  was 
toward  and  over  Ninth  street,  flowing  to  the  north,  and  that  the 
flow  of  the  water  was  unimpeded,  except  by  the  embankment 
made  by  the  railroad  company.  It  also  shows  that  the  one  cul- 
vert constructed  and  maintained  was  of  insuificient  size  to  carrv 
the  accumulation  of  water  away  in  times  of  heavy  rains,  etc. 
That  as  a  consequence  of  such  obstruction  and  insufficient  size 
of  the  culvert  and  the  ditch  or  drain  constructed  by  the  city  to 
gather  and  carry  away  the  surface  water,  the  water  backed  up 
and  overflowed  appellant's  property,  resulting  in  the  damage 


Nov.  1901.]     Kelly  v.  Pittsburgh  etc.  R.  R.  Co.  137 

complained  of.  It  is  clear  from  the  ayerments  of  the  complaint 
that  had  it  not  been  for  the  embankment  and  insufficient  size 
of  the  culvert,  no  injury  would  have  resulted  to  appellant. 

It  is  urged  by  counsel  for  appellees  that  this  is  one  of  the  in- 
stances known  to  the  law  where  there  is  no  commensurate 
remedy  for  the  injury.  The  power  of  the  city  to  grant  an  ease- 
ment to  the  railroad  company  to  construct  an  embankment  and 
lay  its  track  in  the  street  is  unquestioned  by  appellant,  but  it 
is  urged  that  the  law  makes  ample  provision  for  the  redress  of 
any  wrong  resulting  therefrom.  Counsel  for  appellees  base  their 
aignmenty  and  maintain  that  there  is  no  liability  shown  by  the 
complaint,  upon  two  propositions:  1.  The  statute  of  limita- 
tions; and  2.  Bights  acquired  ^^  by  prescription.  These 
may  properly  be  considered  together. 

It  is  contcmded  by  appellee  that  the  right  of  action  was  barred 
by  prescription,  upon  the  theory  that  the  right  accrued  at  the 
time  the  embankment  and  culvert  were  constructed,  and  not  at 
the  time  of  the  overflow  and  resulting  injury.  The  authorities 
do  not  sustain  this  contention,  and  it  is  not  in  harmony  with 
correct  principles.  In  Sherlock  v.  Louisville  etc.  By.  Co.,  115 
Ind.  22,  17  N.  E.  171,  ZoUars,  J.,  quotes  approvingly  from  1 
Redfidd  on  Bailways,  595,  as  follows :  ^'The  general  rule,  in  re- 
gard to  the  time  of  the  accruing  of  the  action  is,  that,  when  the 
act  or  omission  causes  direct  and  immediate  injury,  the  action 
accrues  from  the  time  of  doing  of  the  act,  but  where  the  act  is 
injurious  only  in  its  consequences,  as  by  undermining  a  house  or 
wall,  or  causing  water  to  flow  back  at  certain  seasons  of  high 
tide  or  high  water,  the  cause  of  action  accrues  only  from  the  con- 
sequential injury.*' 

In  that  case  the  question  was  squarely  presented  whether  the 
cause  of  action  accrued  at  the  time  a  certain  bridge  was  con- 
structed over  a  watercourse,  or  at  the  time  the  injury  was  caused 
by  the  overflow;  and  upon  that  question  the  court  said:  '^As 
regards  the  limitation  of  time  for  bringing  the  action,  we  think 
that  the  plaintiff  was  properly  entitled  to  succeed,  both  on  the 
second  and  fourth  pleas,  for  that  the  cause  of  action  first  arose 
when  the  damage  was  suffered,  there  being  no  complete  cause  of 
action  till  the  damage  was  sustained.  The  defendants  were 
guilty  of  no  illegal  act  that  could  have  been  complained  of  as  a 
trespass,  and  until  it  proved  to  be  injurious  there  was  no  right 
to  sue.'* 

In  that  case  it  was  also  contended  by  the  railroad  company 
that,  having  maintained  the  bridge  for  twenty  years,  it  had  the 


138  American  Statb  Bbposts,  Vol.  9L      pndiaiiay 

right  to  contmne  to  Tnaintain  it  as  it  ims,  although  it  canaed  ad- 
joining lands  to  overflow.    There  the  bridge  was  on  the  land  of 
the  railroad  oompany^  and  the  rights  of  the  plaintiff  oould  in 
no  way  be  invaded  by  its  maintenance  nntil  ^^  he  in  some  way 
suffered  an  injury  on  account  thereof.    The  court  disposed  of 
the  proposition  in  the  following  language:  'HJntil  a  peraon's 
rights  are  in  some  way  invaded,  they  cannot  be  destroyed  or 
transferred  to  another  by  prescription.    Time — ^in  this  state 
twenty  years — ^is  an  essential  element  in  the  establishment  of  a 
prescriptive  right,  and,  in  a  case  like  this,  begins  to  run  only 
from  the  date  at  which  cause  of  action  accrues  in  favor  of  the 
party  against  whom  the  right  is  asserted.    As  we  have  seen  in 
this  case,  no  cause  of  action  accrued  to  appellant,  by  reason  of 
the  negligent  construction  of  the  bridge,  until  the  overflow  of 
his  land  in  1883,  much  less  than  twenty  years  ago.^'    In  the 
same  case,  the  court  quoted  with  approval  from  Wood  on  the 
Law  of  Nuisances,  section  708,  as  follows:  '^There  is  a  distinc- 
tion between  a  prescriptive  right  to  do  some  act  upon  one's  own 
premises  that  operates  injuriously  to  another,  and  a  right  to  do 
some  act  upon  another's  premises.    In  the  latter  case  each  act 
of  user,  before  the  user  ripens  into  a  right,  is  a  trespass,  for 
which  an  action  may  be  maintained  at  any  time,  while  in  the 
former  no  action  can  be  maintained  until  some  right  has  been 
invaded.    In  the  one  case  there  is  an  actual  invasion  of  the  prop* 
erty  itself,  while  in  the  other  there  is  a  mere  invasion  of  some 

right The  rule  is,  ...  .  that  to  constitute  an  adverse 

user  requisite  to  sustain  the  right,  it  must  be  shown  that  the  user 
had  actually  invaded  the  rights  of  the  person  against  whom  the 
claim  is  made,  in  reference  to  the  particular  matter  which  is  the 
subject  of  complaint,  and  that  the  user,  during  the  entire  statu- 
tory period  and  the  invasion  of  the  right,  have  produced  an  in- 
jury equal  to,  and  of  the  character  complained  of,  and  of  such 
character  and  to  such  an  extent  that  at  any  time  during  that 
period  an  action  might  have  been  maintained.'' 

In  the  case  we  are  considering,  the  railroad  company  did  not 
construct  its  embankment  and  culvert  upon  its  own  premises^ 
but  upon  a  public  highway,  to  which  the  city  granted  it  an  ease- 
ment for  that  purpose.  By  that  act,  if  appellant  ^^^  was  in- 
jured, it  was  such  injury  as  the  public  in  general  suffered,  and 
for  which  he  had  no  remedy. 

The  complaint  does  not  locate  appellant's  property,  and  it 
may  not  have  been  on  Ninth  street  or  immediately  contigoous 
thereto.    The  injury  that  resulted  to  him  did  not  aocme  until 


Not.  1901.]     Kelly  v.  PmsBUMH  xra  R.  B.  Co.  189 

the  water  was  backed  onto  his  premises  by  reason  of  the  embank* 
meat  and  insofiBdent  cnlvert,  and  until  such  injury  accrued  to 
his  property  he  had  no  right  of  action.  The  complaint  avers 
that  the  cidvert  wis  constructed  at  the  intersection  of  Ninth 
street  and  an  alley,  and  that  on  many  previous  occasions  water 
had  backed  up  and  onto  surrounding  property  causing  injury, 
etc  This  reference  in  the  complaint  to  the  location  of  the  alley 
and  previous  damage  done  by  an  accumulation  of  water  is  to 
show  that  the  nuisance  complained  of  is  a  public  one. 

An  alley  is  a  highway :  Elliot  on  Boads  and  Streets,  sees.  1, 
24.  Any  unauthorized  obstruction  which  necessarily  impedes 
or  incommodes  the  lawful  use  of  a  highway  is  a  public  nuisance 
at  common  law:  Elliott  on  Boads  and  Streets,  477;  Yates  v. 
Town  of  Warrenton,  84  Va.  337,  10  Am.  St.  Eep.  860,  4  S.  E. 
818 ;  Callanan  v.  Oilman,  107  N.  Y.  360,  1  Am.  St  Bep.  831, 
14  N.  E.  264;  State  v.  Merrit,  36  Conn.  314. 

The  complaint  avers  that  the  culvert  was  insufficient  in  size  to 
carry  off  the  water,  and  Ihat  from  time  to  time  caused  overflow 
of  the  streets,  alleys,  and  avenues.    These  facts  show  that  such 
injurious  results  constitute  a  public  nuisance.    The  demurrer 
admits  the  truth  of  all  facts  well  pleaded,  and  it  is  clear,  there- 
f ore,  that  the  railway  company^s  claim  that  it  is  not  liable  p*ests 
either  in  prescription  or  in  adverse  possession  for  over  twenty 
years.    If  it  resis  in  prescription,  the  theory  that  adverse  posses- 
sion of  a  public  highway  creates  a  right  or  title  carries  with  it 
its  own  refutation.     So  if  the  right  to  maintain  this  negligently 
constructed  and  insufficient  culvert  can  be  claimed  as  a  prescrip- 
tive right,  by  user,  for  over  twenty  years,  it  must  be  such  as  re- 
sults from  a  private  nuisance.    But  it  is  not  a  ^^  private,  but 
a  public,  nuisance,  and  the  right  to  maintain  a  public  nuisance 
cannot  be  acquired  by  prescription:  Pettis  v.  Johnson,  56  Ind. 
139;  Sherlock  v.  Louisville  etc.  By.  Co.,  115  Ind.  22,  17  N.  E. 
171.     In  Pettis  v.  Johnson,  56  Ind.  139,  it  was  held  that  a  city 
has  no  power  to  authorize  obstructions  in  highways  which,  when 
constructed,  will  permanently  interfere  with  the  enjoyment  of 
the  rights  either  of  the  public  or  a  private  person.    When,  there- 
fore, the  railroad  company  took  the  franchise  or  easement  granted 
to  it  by  the  dty,  it  took  it  subject  to  the  limitation  which  the  law 
placed  upon  it  Ihat  it  would  not  construct  or  maintain  anything 
which  would  permanently  interfere  with  the  rights  of  private 
persons,  or  would  result  to  their  injury.    Also,  it  took  it  with 
the  express  limitations  contained  in  the  ordinance  to  construct 
and  maint^^^  sufficient  culverts  to  carry  off  the  water. 


140  American  State  Beportb^  Vol.  91.      [Indiana, 

As  between  the  city  and  railway  company,  on  the  one  hand, 
and  appellant  on  the  other,  he  had  a  right,  in  common  with  all 
citizens  and  the  public,  to  have  the  public  greets  and  alleys  of 
the  city  free  from  overflow  of  water;  the  right  to  be  protected 
from  the  accumulation  of  drainage  and  surface  water  upon  his 
premises  caused  by  the  appellees ;  the  right  to  be  protected  from 
having  water  backed  upon  his  premises  by  reason  of  a  perma- 
nent obstruction  such  as  is  shown  by  the  complaint;  and  the 
right  to  the  continuous  surface  drainage,  which  naturally  was 
toward  Ninth  street,  and  in  the  event  such  water  was  deflected 
by  the  city  and  such  deflection  caused  an  accumulation  of  water 
at  any  point  more  than  would  otherwise  flow  there,  to  have  the 
city  and  those  charged  with  making  and  maintaining  culverts 
to  carry  off  the  water  to  construct  the  same  in  sufficient  num- 
bers and  of  sufficient  capacity  to  carry  off  and  discharge  the 
water  so  gathered. 

In  this  case  it  is  averred  that  the  city  caused  a  ditch  or  drain 
to  be  constructed  leading  to  the  culvert.  This  would  necessarilj 
collect  and  carry  to  that  point  a  greater  volume  of  water  than 
would  otherwise  have  gathered  there,  and  the  culvert  **••  being 
of  insufficient  size  to  discharge  it,  the  necessary  result  was  that 
it  backed  up.  If  surface  water  is  collected  in  gutters  and  made 
to  flow  to  the  mouth  of  a  sewer,  where  by  the  insufficiency  of 
the  sewer  it  accumulates  in  large  quantities  and  then  flows  back 
upon  private  property,  the  municipality  must  respond  in  dam- 
ages :  Hitchins  v.  Mayor  etc.,  68  Md.  100,  6  Am.  St.  Sep.  422, 
11  Atl.  826;  City  of  Dixon  v.  Baker,  65  111.  518,  16  Am.  Rep. 
691. 

The  accimiulation  in  one  channel  of  a  large  volume  of  water 
by  the  act  of  a  city  places  upon  it  the  duty  to  see  to  it  that  suit- 
able provision  is  made  for  the  escape  of  the  water,  without  in- 
jury to  private  property,  and  if  by  reason  of  the  insufficiency  of 
the  drain,  or  other  means  provided,  the  accumulated  waters  are 
cast  upon  private  property  to  its  injury,  the  municipality  will 
be  liable:  Weis  v.  City  of  Madison,  75  Ind.  241,  39  Am.  Rep. 
135;  City  of  Indianapolis  v.  Lawyer,  38  Ind.  348;  City  of 
Evansville  v.  Decker,  84  Ind.  325,  43  Am.  Rep.  86  f  City  of 
Crawfordsville  v.  Bond,  96  Ind.  236 ;  Byrnes  v.  City  of  Cohoes, 
67  N.  Y.  204. 

In  this  instance  the  city  collected  the  surface  water  by  means 
of  an  artificial  ditch,  and  carried  it  to  a  point  where  the  means 
of  escape  provided  was  insufficient  to  carry  it  off.  It  is  cer- 
tainly the  same  in  principle  as  to  conduct,  by  means  of  a  ditch 


So7, 1901.]     Eblly  v.  Pittsburgh  bto.  B.  R.  Ca  141 

or  gutter^  water  to  a  sewer  of  insufficient  capacity  to  receive  and 
conduct  it  away.  If,  in  constructing  the  culvert,  it  was  merely 
an  error  of  judgment  in  not  making  it  large  enough,  or  in  not 
constracting  a  sufficient  number  of  culverts,  still  the  appellees 
could  not  escape  liability  on  account  of  error  of  judgment.  This 
is  squarely  held  in  City  of  Indianapolis  v.  HuflEer,  30  Ind.  235. 
Before  the  construction  of  the  bank  and  culvert  by  the  rail- 
road company,  there  were  twenty-five  blocks  of  adjacent  terri- 
tory with  the  natural  drainage  toward  and  over  Ninth  street. 
The  means  ilsed  to  cause  the  water  to  flow  as  it  did  were  arti- 
ficial—the bank  and  the  ditch  or  drain.  In  City  of  New  Albany 
T.  Eay,  3  Ind.  App.  321,  29  N.  E.  611,  it  was  said :  ^^  "Where 
a  city,  by  artificial  means,  collects  a  body  of  water,  it  must  use 
reasonable  care  to  provide  an  adequate  outlet  therefor,  and,  if 
it  fails  to  do  this,  and  an  injury  results  to  private  property  in 
consequence  thereof,  the  city  is  liable  for  the  damages." 

In  Town  of  Monticello  v.  Fox,  3  Ind.  App.  481,  28  N.  E. 
1025,  it  was  said :  "A  municipal  corporation  is  not  exempt  from 
liability  for  damage  accruing  through  its  failure  to  provide 
means  of  drainage,  where  a  necesssity  for  the  drainage  has  been 
created  by  the  act  of  the  corporation.  Where,  by  a  system  of 
drainage  made  by  it,  a  great  body  of  water  has  been  conducted 
to  a  place,  and  caused  to  accumulate  there,  the  corporation  is 
liable  for  failure  to  provide  a  way  of  escape  for  the  water,  so 
that  it  will  not  damage  adjoining  private  property.*' 

The  point  clearly  decided  by  these  cases  is  that  it  is  the  duty 
of  a  cily,  where  it  causes  water  to  be  collected,  to  furnish  a  suffi- 
cient outlet  for  its  escape,  and  if  it  fails  to  do  so,  and  injury 
results,  it  is  liable  for  damages  occasioned:  See,  also,  City  of 
Valparaiso  v.  Bamsey,  11  Ind.  App.  215,  38  N.  E.  875 ;  Martin 
y.  City  of  Brooklyn,  32  App.  Div.  411,  62  N.  Y.  Supp.  1086, 
4  Am.  Neg.  Bep.  721. 

In  the  case  of  the  City  of  New  Albany  ▼.  lines,  21  Ind.  App. 
380,  51  N.  E.  346,  it  was  held  that  a  municipal  corporation  can- 
not, without  liability,  divert  surface  water  from  its  natural 
course  by  an  artificial  channel,  and  thereby  cause  it  to  flow  upon 
adjacent  property.  It  was  further  held  that  it  is  the  duty  of  a 
city  to  provide  reasonably  sufficient  means  of  escape  for  the  sur- 
face water,  for  the  escape  of  which  it  has  created  the  necessity, 
and  that  a  failure  to  perform  that  duty  will  give  a  right  to  suc- 
ceasive  actions  for  recurring  injuries  to  an  adjacent  owner  of 
real  estate. 


142  Ahbbican  State  Bbports,  Vol.  91.      [Indiana. 

The  complaint  before  us  shows  that  the  city  of  Jeffersonville 
granted,  by  ordinance,  the  right  of  the  railroad  company  to  con- 
struct and  maintain  along  and  npon  one  of  its  streets  an  em- 
bankment upon  which  to  lay  its  track.    A  condition  imposed 
upon  the  railroad  company  by  the  grant  was  *•*  to  construct 
and  maintain  cnlverts  of  sufficient  size  and  number  to  carry  aw^ay 
the  accumulation  of  water.    This  it  failed  to  do.    The  city  con- 
structed a  ditch  or  drain  leading  to  the  single  culvert  through 
the  bank  and  under  the  track.    The  natural  result  of  such  drain 
was  to  collect  the  surface  water  within  its  channel,  and  conduct 
it  therein  to  the  point  of  outlet — ^the  culvert.    This  must  neces- 
sarily result  in  an  accumulation  of  water  at  that  point;  and  if 
the  outlet  was  insufficient  in  size  to  carry  it  away,  then  the  water 
would  back  up  and  overflow  adjacent  property.    This  is  what 
occurred,  and  injury  resulted  to  appellant's  property.    The  com- 
bined acts  of  appellees  were  responsible  for  such  injury,  and,  un- 
der the  authorities,  they  are  jointly  liable. 

Judgment  reversed,  and  the  court  below  is  directed  to  over- 
rule the  demurrers  to  the  complaint. 


The  Statute  of  Limitations  does  not  begin  to  ran  against  a  land 
owner's  right  of  action  for  the  unlawful  flowago  of  his  land  until  ho 
has  been  injured,  and  his  action  h^  accrued,  .notwithstanding  the 
negligent  structure  and  other  acts  causing  the  overflow  may  have 
been  growing  or  working  for  a  length  of  time  beyond  the  period 
of  limitation:  Note  to  St.  Louis  etc.  By.  Co.  v.  Biggs,  20  Am.  St.  Bep. 
177,  178;  Eels  v.  Chesapeake  etc.  By.  Co.,  49  W.  Ya.  65,  87  Am.  St. 
Bep.  787,  38  S.  E.  479. 

A  PublU)  NfUaanee  will  not  be  sanctifled  by  time.  The  general  rule 
is,  that  there  can  be  no  prescriptive  right  to  maintain  it:  North  Point 
Irr.  Co.  V.  Utah  etc.  Canal  Co.,  16  Utah,  246,  67  Am.  St.  Bep.  607,  52 
Pac.  168. 

A  Municipality  Caufing  Water  to  flow  upon  private  property  is  an- 
swerable for  resulting  injuries:  Brunswick  v.  Tucker,  103  Ga.  233, 
69  Am.  St.  Bep.  92,  29  S.  E.  701;  Wendel  v.  Spokane  County,  27 
Wash.  121,  67  Pac.  576,  post,  p.  825,  and  caaes  cited  in  the  cross- 
reference  note  thereto. 


OASES 


SUPREME   COURT 

OF 

IOWA. 

MILLEB  V.  EVANS. 

[115  Iowa,  101,  88  N.  W.  198.] 

CRTMTHAIi  ZAW.— A  eoort  has  no  power  to  fuspend  sentence 
after  it  is  pronouneedy  save  for  the  purposes  of  an  appeal,     (p.  144.) 

CRIMINAL  LAW.—FaUnre  of  Oflleers  to  Enfozce  a  8eiit«iico 

of  Imprisonment  due  either  to  delay  in  issuing  the  execution  or 
in  taking  defendant  into  custody  after  it  issue*  does  not  prevent  his 
subsequent  arrest  and  imprisonment.  The  time  when  a  sentence  is 
to  be  carried  out  is  ordinarily  directory  merely,  and  forms  no  part 
of  the  judgment  of  the  court,     (p.  145.) 

Habeas  corpus  to  obtain  release  from  custody  of  Anthony  Mil- 
ler, who  was  sentenced  on  November  22,  1899,  to  pay  a  fine  of 
three  hundred  dollars,  and  to  stand  committed  for  ninety  days 
unless  such  fine  was  sooner  paid.  The  mittimus  did  not  issue 
until  January  2,  1900,  and  the  sheriff  delayed  acting  under  it 
until  February  22d  of  the  same  year.  The  trial  court  remanded 
the  petitioner,  and  he  thereupon  appealed. 

Heins  &  Heins,  for  the  appellant. 

No  appearance  for  the  appellee. 

1^  LADD,  J.  Though  the  petitioner  was  sentenced  Novem- 
ber 23,  1899,  to  pay  a  fijie,  and,  on  omission  so  to  do,  to  stand 
committed  to  the  county  jail  for  a  period  of  ninety  days,  mit- 
timus was  not  issued  until  January  2,  1900,  and  the  defendant 
not  taken  into  custody  by  the  sheriff  until  February  22d  follow- 
ing, or  after  the  term  of  his  incarceration  would  have  expired  if 
begun  on  the  day  of  judgment.  He  was  present  in  court  when 
sentence  was  pronounced,  and  remained  in  the  county  during  the 

(143) 


144  American  State  Reports,  Vol.  91.  [Iowa, 

entire  period,  interposing  no  obstacle  to  carrying  out  the  sen- 
tence. There  appears  to  have  been  no  excuse  whatever  for  the 
delay  of  the  officer.  Section  6443  of  the  Code  requires  that 
"when  a  judgment  of  imprisonment,  either  in  the  penitentiary 
or  county  jail,  is  pronounced,  an  execution,  consisting  of  a  certi- 
fied copy  of  the  entry  thereof  in  the  record  book,  must  be  forth- 
with furnished  to  the  officer  whose  duty  it  is  to  execute  the  same, 
who  shall  proceed  and  execute  it  accordingly,  and  no  other  war- 
rant or  authority  is  necessary  to  justify  or  require  its  execution/* 
It  was  undoubtedly  the  duty  of  the  clerk  to  issue  mittimus,  and 
of  the  sheriff  to  execute  the  same  promptly  upon  the  rendition 
of  judgment;  but  can  it  be  said  that  the  neglect  of  these  officers 
shall  defeat  the  very  object  of  the  prosecution — i.  e.,  punishment 
for  violation  of  the  criminal  laws?  The  right  to  suspend  sen- 
tence after  being  pronounced  is  denied  the  courts  of  this  state : 
State  V.  Yoss,  80  Iowa,  467,  45  K  W.  898.  And  this  seems  now 
to  be  the  prevailing  rule :  Neal  v.  State,  104  Ga.  509,  ^^  69 
Am.  St.  Bep.  175,  30  S.  E.  854 ;  In  re  Webb,  89  Wis.  354,  46 
Am.  St.  Hep.  846,  62  N.  W.  177 ;  State  v.  Murphy,  23  Nev.  390, 
48  Pac.  628;  In  re  Markuson,  5  K  Dak.  180,  64  N.  W.  939. 
Contra:  Weber  v.  State,  58  Ohio  St.  616,  51  N.  E.  116;  Fults 
V.  State,  2  Sneed,  232;  State  v.  Crook,  115  K  C.  763,  20  S.  E. 
514.  See,  also,  People  v.  Court  of  Sessions  of  Monroe  Co.,  141 
N*.  Y.  288,  36  N.  E.  386.  Whatever  justification  the  hardships 
resulting  from  the  peculiar  rules  of  the  common  law  may  have 
furnished  for  such  a  practice,  all  excuse  for  it  disappeared  with 
the  enactment  of  statutes  affording  full  opportunity  for  the  cor- 
rection of  errors,  and  giving  the  courts  a  discretion  apparently 
wide  enough  to  meet  the  hardest  cases.  The  authority  "to  grant 
reprieves,  commutations  and  pardons,  after  convictions  for  all 
offenses,  except  treason  and  cases  of  impeachment^''  is  by  the 
constitution  lodged  in  the  governor;  and  an  order  by  a  court 
suspending  judgment  after  being  entered,  save  for  purposes  of 
appeal,  is  clearly  obnoxious  to  the  objection  that  it  is  an  at- 
tempted exercise  of  power  not  judicial,  but  vested  in  the  execu- 
tive: Const.,  art.  4,  sec.  16.  But  if  petitioner's  contention  be 
accepted,  the  officers  of  the  court  may  accomplish  by  delay  that 
which  the  court  itself  is  powerless  to  do.  Aye,  more ;  for,  while 
the  court  could  not  postpone  the  penalty  of  the  law  denounced 
against  the  offender,  its  officers  might  by  procrastination  wholly 
obviate  and  prevent  punishment.  In  re  Webb,  89  Wis.  354,  46 
Am.  St.  Rep.  846,  62  N.  W.  177,  relied  on  by  appellant,  is  not 
precisely  like  the  case  at  bar  in  its  facts ;  for  there  the  prisoner 


Dec- 1901.]  MiLLBB  V.  Evans.  145 

was  actually  in  cuatody^  and  when^  at  his  request,  the  sentence 
was  suspended,  he  was  allowed  his  liberty.    The  order  of  sus- 
pense was  adjudged  to  be  in  excess  of  the  court's  authority,  and 
the  term  of  imprisonment  held  to  have  begun  eo  instante  upon 
the  entry  of  judgment,  and  to  have  terminated  *^  at  the  end 
of  the  period  fixed  therein,  although  the  prisoner  had  not  been 
incarc^^ted  an  instant  of  that  time.    A  like  conclusion  wa«i 
reached  In  re  Markuson,  5  N.  Dak.  180,  64  N.  W.  939.    In 
both  cases,  however,  this  conclusion  seems  to  have  been  treated 
as  a  necessary  result  of  declaring  the  order  suspending  the  sen- 
tence illegal.     We  are  unable  to  discover  any  reason  for  allow- 
ing the  convict  to  thus  profit  by  a  delay  to  which  he  has  assented, 
or  in  which  he  has  acquiesced  without  objection.    The  time  at 
which  the  sentence  is  to  be  carried  out  is  ordinarily  directory 
only,  and  forms  no  part  of  the  judgment  of  the  court;  State 
V.  Cockerham,  24  N.  C.  204;  19  Ency.  PI.  &  Pr.  480;  Ex  parte 
Bell,  56  Miss.  282 ;  Dolan's  Case,  101  Mass.  219 ;  Hollon  v. 
Hopkins,  21  Kan.  638.    In  the  last  case  it  was  said  that:  '^The 
time  fixed  for  executing  a  sentence,  or  for  the  commencement 
of  its  ^ecution,  is  not   one   of   its    essential    elements,  and, 
strictly  speaking,  it  is  not  a  part  of  the  sentence  at  all.    The 
essential  portion  of  the  sentence  is  the  punishment,  including 
the  kind  of  punishment,  and  the  amount  thereof,  without  ref- 
erence to  the  time  when  it  is  to  be  inflicted.'^    It  was  also  ob- 
served that  "the  only  way  of  satisfying  a  judgment  judicially 
is  by  fulfilling  its  requirements'' ;  and,  in  Dolan's  case,  that 
^expiration  of  time  without  imprisonment  is  in  no  case  an  exe- 
cution of  tiie  sentence.^'    This    cannot   be    waived,    as    here 
claimed,  by  the  ofiicers  of  the  court,  whose  duties  with  respect 
to  its  jud^nents  are  purely  ministerial.    The  time  for  its  exe- 
eation  was  not  of  the  essence  of  the  judgment,  unless  the  pris- 
oner^ by  demanding  that  it  be  immediately  carried  out,  made 
it  such.     It  was  his  duty  to  surrender  himself  and  submit  to 
the  penalty  of  the  law,  as  well  as  that  of  the  sheriff  to  inflict 
it;  and,  by  taking  advantage  of  the  neglect  of  the  latter  and  of 
the  clerk,  he  cannot  avoid  the  punishment  which  his  wrong- 
doing will  be  assumed  to  have  justly  required.    In  Neal  v. 
State,  104  Ga.  609,  69  Am.  St.  Eep.  175,  30  S.  E.  858,  a  sen- 
tence  of  six  months'  work  in  the  chain-gang  was  ordered  sus- 
pended.   At  a  subsequent  term  of  court,  after  the  *®*  lapse 
of  rix  months,  it  was  ordered  that  the  sentence  be  enforced. 
The  prisoner  contended  that,  as  the  order  of  suspension  was 
illegal,  the  period  of  imprisonment  began^    in  contemplation 

Am.   St.   Itop.,   Vol  8]r-10 


146  American  State  Eepokts,  Vol.  91.  [Iowa, 

of  law^  at  the  date  the  judgment  of  court  was  rendered.  lit 
the  course  of  the  opinion  rejecting  this  view,  after  a  discrimi- 
nating investigation  of  the  authorities^  the  court  said :  '^Suppose 
a  court  in  this  state  sentences  a  person  convicted  of  criminalf 
offense  to  work  in  the  chain-gang  for  twelve  months,  without 
attempting  to  suspend  the  execution  of  the  sentence,  and  the* 
sheriff,  in  disregard  of  his  duty,  and  on  his  own  motion,  im- 
mediately discharges  the  prisoner,  and  allows  him  to  have  un- 
restricted liberty  for  a  year  or  longer;  can  it  be  held,  after  he 
has  enjoyed  twelve  months  of  perfect  but  unlawful  freedom^ 
that  he  has,  in  contemplation  of  law,  worked  in  the  chain-gang 
for  the  full  term  for  which  he  was  sentenced?  We  apprehend 
not.  What  difference  can  it  make  whether  the  sheriff  discharges 
the  sentenced  criminal  unlawfully  on  his  own  motion,  or  dis- 
charges him  unlawfully  under  a  void  order  of  the  court?*'' 
In  Ex  parte  Vance,  90  Cal.  208,  27  Pac.  209,  the  prisoner 
was  sentenced  to  imprisonment  until  a  fine  was  paid,  and  there* 
after  released  by  the  sheriff  without  legal  authority.  When  re- 
arrested after  the  lapse  of  the  period  fixed,  he  insisted  that,  as 
judgment  had  not  been  suspended,  the  term  of  his  imprison* 
ment  had  expired.  But  the  court  declared:  '^The  act  of  the 
sheriff  in  releasing  the  petitioner  was  unauthorized,  and  the 
petitioner's  departure  from  the  jail  to  which  he  had  been  law- 
fully committed,  without  having  been  discharged  in  due  course 
of  law,  was  equally  so,  and  was,  in  effect,  a  technical  escape, 
from  which  he  can  derive  no  advantage.  The  time  of  tiie 
petitioner's  absence  from  jail  cannot  be  considered  as  having 
been  spent  in  jail  in  satisfaction  of  the  judgment  which  re- 
quired his  actual  imprisonment  In  State  v.  Cockerham,  24 
N.  G.  204,  the  prisoner  had  been  sentenced  to  be  imprisoned 
two  calendar  months  from  and  after  November  Ist,  but  did 
not  ^^  go  to  prison  accordingly.  Direction  at  a  subsequent 
term  of  court,  more  than  the  period  fixed  later,  that  the  judg- 
ment be  executed,  was  upheld,  as  the  time  for  the  beginning* 
of  the  sentence  was  directory  only,  and  formed  no  part  of  the 
judgment :  See  Sylvester  v.  State,  65  N.  H.  193,  20  Atl.  954 ; 
McKay  v.  Woodruff,  77  Iowa,  413,  42  N.  W.  428.  In  prin- 
ciple, these  authorities  fully  sustain  our  conclusion,  and  it 
follows  that  the  petitioner  was  rightfully  remanded  to  the 
custody  of  the  sheriff,  to  be  dealt  with  as  commanded  in  the 
judgment  of  the  court 
Affirmed* 


Dec.  1901.]  Gibson  v.  Tobbert.  147 

A  Cimrt  May  Postpone  the  BxeeuUon  of  a  sentence  it  has  imposed  in 
a  criminal  ease  only  as  an  incident  to  the  obtaining  of  a  new  trial 
or  a  review  of  the  judgment:  Neal  v.  State,  104  Ga.  509,  69  Am.  St. 
Bepi  175y  30  8.  E.  858.  If  it  does  by  its  order,  after  sentencing  the 
veensed  to  a  term  of  imprisonment,  purport  to  suspend  such  imprison- 
ment until  the  further  order  of  the  court,  it  cannot,  after  the  expira- 
tion of  the  term  specified,  direct  his  imprisonment,  though  during  such 
term  he  was  at  liberty:  In  re  Webb,  89  Wis.  354,  46  Am.  St.  Bep. 
846,  62  N.  W.  177.  As  to  whether  habeas  corpus  will  lie  to  release  a 
prisoner  in  cnse  there  is  a  delay  in  executing  the  sentence  imposed 
npon  him,  see  the  monographic  note  to  Koepke  v.  Hill^  87  Am.  St.  Bep. 

m. 


GIBSON  T.  TOBBERT. 

[115  Iowa,  163,  88  N.  W.  443.] 

SALS  OF  DAKaEBOUfl  ABTICLBB— When  Justlfiablo.— When 
a  person  of  the  age  of  discretion,  and  apparently  in  the  possession  of 
his  mental  faculties  applies  to  a  druggist  for  a  designated  drug,  he, 
by  implication,  represents  to  the  seller  that  he  knows  its  properties 
and  uses,  and  that  he  is  a  fit  person  to  whom  the  sale  thereof  may  be 
made,  and,  unless  there  is  something  connected  with  the  transaction, 
or  previously  known  to  the  seller,  indicating  that  the  would-be  pur- 
ehaser  cannot  safely  be  intrusted  with  the  substance,  a  sale  thereof 
to  him  may  be  made  without  explaining  its  properties  and  the  manner 
in  which  it  sLay  be  safely  used  or  handled,     (p.  151.) 

NEOIiIOENOE  in  the  Sale  of  Fhosphoms— What  is  not.— If 
a  dmggist  reeeiTes  a  written  order  for  phosphorus  and  sends  it  to 
the  writer  proi>erly  packed  in  water  and  labeled,  such  druggist  is  not 
guilty  of  negligence  because  he  did  not  explain  the  properties  of  the 
phosphorus,  nor  the  dangers  of  improperly  using  it,  and  he  is  not 
Hahle  for  injury  sustained  by  the  purchaser  from  the  explosion  of 
the  phosphorus  when  taken  from  tiie  water  and  dropped  on  the  floor. 
It  is  not  a  new  or  dangerous  substance  with  the  qualities  of  which 
the  general  public  is  not  acquainted,     (p.  151.) 

KEOUCIEHOB— Belling  ]>angerons  Article  to  an  Illiterate 
Fmon.— The  fact  that  the  letter  by  which  the  writer  ordered  phos- 
phorus to  be  sent  to  him  by  express  by  a  druggist  was  badly  spelled 
and  poorly  written  is  not  equivalent  to  a  notice  that  the  writer  is 
unacquainted  with  the  properties  of  the  article  ordered,  so  as  to 
render  the  dmggist  liable  for  injuries  resulting  to  such  writer  from 
his  ignorance  of  such  properties,  and  his  consequently  taking  the 
phosphorus  out  of  the  water  in  which  it  was  sent  and  dropping  a  stick 
of  it  on  the  floor,  from  which  an  explosion  resulted,     (p.  152.) 

Action  to  reooTer  for  physical  injuries  claimed  to  have  re- 
EBlted  frofm  the  defendant's  negligence.  A  demurrer  to  the 
oomplaint  was  snstained,  whereupon  the  plaintiff  appealed. 


148  American  State  Eeports,  Vol.  91.  [Iowa» 

Bowen^  Brockett  &  Albertson  and  Longaeville  &  Eintzinger, 

for  the  appellant. 

Lacy  &  Brown  and  Henderson,  Hurd,  Lenehan  &  Kiesel, 
for  the  appellee. 

*«*  SHERWIN,  J.  In  his  petition  the  plaintiff  alleges 
that  he  is  a  man  of  middle  age  and  of  very  limited  education,  and 
that  at  the  time  of  the  transaction  in  question  he  was,  and  al- 
ways had  been,  ignorant  of  the  character  and  properties  of 
phosphorus.  That  the  defendant  was  a  wholesale  druggist, 
dealing  in  phosphorus  and  possessed  of  scientific  knowledge  of, 
and  was  perfectly  familiar  with,  its  character  and  properties. 
That  said  drug  in  its  commercial  form  is  but  little  used,  and 
its  nature  and  properties  are  not  generally  known  to  the  pub- 
lic. That  *•*  in  such  form  it  is  a  highly  drastic,  corrosive, 
and  deadly  poison,  and  is  highly  explosive  and  combustible, 
being  liable  at  all  times  when  removed  from  water,  'Ho  explo- 
sion and  spontaneous  combustion,  either  by  ignition  from  con- 
tact with  fire,  by  the  application  of  force,  or  from  chemical 
changes  effected  by  contact  with  air."  That  in  fact  it  is  a 
*'mo8t  dangerous  and  deadly  nuisance.'*  "That  having  heard 
that  said  drug  was  employed  by  actors  and  stage  managers  as 
a  harmless  illuminant,  and  desiring  to  know  more  about  it,'' 
he  sent  an  order  in  writing  to  the  defendant  ''for  a  small  quan- 
tity thereof,"  in  words  and  figures  as  follows: 

'Iowa  Falls,  —4^-5—97. 
*'W.  H.  Torbert  Dubuque,  Iowa. 

"Dear  Sur,  Mr.  Swortz  jQave  me  your  Address  and  advised 
me  To  Bite  to  you  and  that  you  would  send  me  what  I  wanted 
as  he  had  not  Got  it  Will  you  Please  send  me  50c  worth  of 
Phos  Phorus  By  express  to  Colect  on  Delever  and  if  it  works 
as  I  Think  it  will  Thare  will  Bee  A  Big  Demand  for  it  Let 
me  Know  Pleas  if  you  Have  not  got  it  whare  I  can  Get  it  By 
Ecturn  male  your  Truley  W.  M.  Gibson,  Iowa  Falls  Iowa.*' 

That  said  letter  was  in  his  own  handwriting,  and  was  poorly 
written  with  lead  pencil.  That  in  response  thereto  the  defend- 
ant caused  a  glass  bottle  containing  three  sticks  of  phosphorus 
immersed  in  water  to  be  shipped  by  express  to  plaintiff,  labeled 
"Phosphorus,"  but  without  any  other  written  directions  or 
warning  whatsoever  accompanying  it.  That  after  receiving 
the  pfickage  he  removed  the  phosphorus  from  the  bottle,  and 
proceeded  to  examine  and  handle  the  same.  "That,  while  hold- 
ing two  of  said  bars  in  his  hands,  by  accident  one  of  the  bars 


Dec  1901.]  Gibson  v.  Torbert,  149 

slipped  from  lus  hand  and  fell  npon  the  carpet  of  the  floor  in 
his  home/'  That,  "on  stooping  to  pick  it  up,  it  exploded,  scat- 
tering spray  and  molten  quantities  of  its  substance  upon  his 
liand,  which  instantly  burned,  and  at  the  same  time  ignited  and 
exploded  the  bar  which  was  being  held  in  his  other  hand/' 
**That  defendant  was  fully  aware  of  all  said  danger;  that  there 
was  constantly  an  imminent  probability  that  said  drug  would 
act  *••  as  herein  explained,  under  similar  circumstances;  and 
that  such  facts,  and  all  its  dangers,  were  unknown  to  the  gen- 
eral public,  and  probably  unknown  to  plaintiff/* 

An  exhaustiye  research  by  the  able  counsel  representing  both 
sides  of  this  case  has  failed  to  find  in  the  text-books  or  in  the 
adjudicated  cases  a  case  presenting  facts  exactly  parallel  to 
those  in  the  case  at  bar.  This  action  is  not  based  upon  the 
statute  (Code,  sec.  2593),  which  requires  the  labeling  of  certain 
drugs  when  sold ;  for  phosphorus  is  not  one  of  the  drugs  therein 
mentioned.  It  is  a  common-law  action,  alleging  negligence  in 
selling  and  deliyering  to  a  customer  in  the  usual  course  of 
trade  the  identical  thing  ordered,  properly  labeled,  without  in- 
forming such  customer  of  the  dangerous  properties  of  the  sub- 
stance so  ordered  and  delivered.  The  cases  cited  pro  and  con 
furnish  but  little  assistance  in  determining  the  question  before 
us,  for  the  reason  that  they  were  all  decided  on  a  different  set 
of  facts-  They  all  recognize  the  general  rule  that  where  one 
person  owes  a  legal  duty  to  another,  and  fails  to  perform  it, 
he  is  liable  for  the  damage  resulting  proximately  from  his  fail- 
ure. We  cannot  notice  in  detail  all  of  the  authorities  cited  in 
support  of  the  plaintiff's  contention,  but  give  the  gist  of  the 
matter  in  each  case.  In  Osborne  v.  McMasters,  40  Minn.  103, 
12  Am.  St.  Rep.  698,  11  N.  W.  643,  a  druggist's  clerk  sold  a 
deadly  poison  without  labeling  it  "Poison,"  as  required  by  the 
statute.  It  is  held  that  the  proprietor  was  liable,  both  under 
the  statute  and  at  common  law;  but  it  does  not  appear  from 
the  opinion  whether  there  was  a  mistake  in  filling  the  pre- 
scription or  not.  Crowhurst  v.  Board,  4  Ex.  6,  is  a  case  where 
a  poisonous  tree  was  permitted  to  grow  in  a  cemetery,  so  that 
its  branches  extended  over  the  fence  into  plaintiff's  pasture, 
and  f^his  horse  ate  of  it  and  died."  The  defendants  were  held 
liable.  Kennedy  v.  Ryall,  67  N.  Y.  379,  is  a  case  whore  a 
ffhip  was  fumigated,  and  a  portion  of  the  substance  used  there- 
for (a  deadly  poison)  left  where  it  was  afterward  found  and 
drank  ^^  by  a  small  child,  resulting  in  its  death.  The  mas- 
ter of  the  ship  was  held  liable.    EUdns  ▼.  McKean,  79  Pa.  St. 


150  Akebioak  State  Bepobts,  Vol.  91.  [lowa^ 

493,  is  a  case  in  which  the  manufacturers  of  illuminating  oil 
branded  it  as  bearing  a  fire  test  of  110''^  when  in  fact  it  only 
tested  64*'  or  GS*".  In  Carter  v.  Towne,  98  Mass.  667,  96 
Am.  Dec.  682,  gunpowder  was  sold  to  an  eight  year  old  boy. 
And  in  Dixon  t.  Bell,  5  Maule  &  S.  198,  a  loaded  gun  was 
given  to  a  girl  thirteen  or  fourteen  years  old,  and  while  in 
her  hands  it  was  discharged,  injuring  another.  In  Schubert 
V.  J.  A.  Clark  Co.,  49  Minn.  331,  32  Am.  St.  Hep.  559,  51  N. 
W.  1103,  the  plaintiff  was  injured  by  the  breaking  of  a  step- 
ladder  upon  which  he  was  standing  while  at  work.  The  ladder 
was  constructed  of  rotten  wood,  which  was  concealed  by  paint 
«nd  varnish.  Thomas  v.  Winchester,  6  N.  Y.  397,  57  Am. 
Dec.  455,  is  an  early  case  in  this  country,  and  is  often  cited, 
but  it  is  a  case  in  which  a  poisonous  drug  was  falsely  labeled. 
In  Wellington  v.  Downer  Oil  Co.,  104  Mass.  64,  the  defendant 
TOld  dangerous  oil,  not  safe  for  illuminating  purposes,  to  a 
t^ustomer  whom  it  knew  had  no  knowledge  of  its  dangerous 
character,  and  intended  to  sell  it  for  illuminating '  purposes- 
Bishop  V.  Weber,  139  Mass.  411,  62  Am.  Eep.  715,  1  N.  E. 
154,  is  a  case  where  unwholesome  food  was  sold.  And  Davis 
V.  Guamieri,  45  Ohio,  470,  4  Am.  St.  Bep.  548,  15  N.  E.  361 , 
Fleet  V.  HoUenkemp,  13  B.  Mon.  219,  56  Am.  Dec.  563,  and 
Brown  v.  Marshall,  47  ICch.  576,  41  Am.  Eep.  728,  11  N.  W. 
392,  are  all  cases  in  which  mistakes  were  made  in  putting  up 
medicine.  Standard  Oil  Co.  v.  Tiemey.  92  Ky.  367,  36  Am. 
St.  Bep.  595,  17  S.  W.  1025,  is  a  case  where  the  company 
shipped  naphtha  over  a  railroad,  the  barrels  being  marked, 
simply,  'TJnsafe  for  illuminating  purposes,*'  while  the  way- 
bill stated  that  it  was  '^carbon  oil.''  The  conducter  in  charge 
of  the  train  was  injured  by  an  explosion  of  the  naphtha,  and 
was  allowed  to  recover :  See,  ako,  Craft  v.  Parker,  Webb  &  Co., 
S6  Mich.  245,  55  N.  W.  812,  21  L.  R  A.,  note,  page  139.  *« 
In  some  of  the  cases  cited,  language  is  used  which  is  broader 
than  the  particular  case  under  consideration  called  for,  and 
which  at  first  glance  might  be  thought  to  support  the  plain- 
tiff's contention  in  this  case ;  but,  as  we  have  said,  an  examina- 
tion of  the  cases  themselves  shows  that  such  language  is  only 
general  and  not  entitled  to  controlling  weight  as  authority  in 
this  case.  Boston  etc.  B.  B.  Co.  v.  Shanly,  107  Mass.  568, 
though  not  cited  by  counsel,  is  a  case  in  which  gunpowder 
manufacturers  shipped  over  the  plaintifPs  road  what  was  al- 
leged to  be  a  ''new,  dangerous,  explosive,  combustible,  and  in- 
flammable  compound,  recently  discovered  and  manu&ctared. 


Dec.  1901.]  GiBflos  v.  Tobbe&t.  151 

<ailled  by  a  new  name,  not  generally  known,  now  new  in  the 
sarket,  and  the  qualities  were  and  are  not  generally  known, 
made  in  part  of  nitroglycerin  itself  an  exceedingly  dangerous 
ezplosiye  and  combustible  substance.''  This  substance  was 
shipped  as  'H^ualin/'  and  it  was  alleged  in  the  declaration  that 
not  only  was  the  plaintiff  railroad  company  not  notified  of  its 
dangerous  character,  but,  on  the  contrary,  it  was  assured  that 
it  was  safe,  and  not  of  a  dangerous  nature.  A  demurrer  to 
the  declaration  on  the  ground  that  it  did  not  state  a  cause  of 
action  was  overruled.  It  is  well  to  notice  here  that  the  dec* 
laration  charged  that  the  substance  was  new,  with  a  new  name; 
that  it  was  recently  placed  on  the  market;  and  that  the  plain- 
tiff was  informed  that  it  was  safe,  and  not  of  a  dangerous 
character — ^averments  not  to  be  found  in  the  petition  in  the 
case  at  bar.  We  believe  that  the  true  rule  deducible  from 
reason  and  from  authorities  is  that  when  a  person  has  reached 
the  age  of  discretion,  and  who  is  apparently  in  the  possession 
of  his  mental  faculties,  applies  to  a  druggist  for  a  certain 
drug,  he  represents  to  the  dealer,  by  implication,  at  least,  that 
he  knows  its  properties  and  uses,  and  that  he  is  a  fit  person 
to  whom  sale  thereof  may  be  made,  and  that  unless  there  is 
something  connected  with  the  transaction,  or  something  previ- 
ously known  to  the  seller,  indicating  that  the  would-be  pur- 
chaser ^^^  cannot  safely  be  intrusted  with  the  substance,  a 
sale  of  the  substance  called  for  may  be  made  without  explain- 
ing its  properties  or  the  manner  in  which  it  may  be  safely 
used  or  handled,  and  that,  under  such  circumstances,  the  seller 
is  not  liable  in  damages  for  injuries  to  the  purchaser  result- 
ing from  the  improper  use  or  handling  of  the  article,  no  mat- 
ter how  little  knowledge  the  purchaser  may  in  fact  have  had 
of  its  properties,  or  of  the  manner  in  which  it  could  not  be 
safely  used  or  handled.  It  appears  clear  to  us  that  the  ven- 
der's legal  duty  to  such  a  purchaser  can  go  no  further  than 
to  give  him  the  identical  substance  he  caUs  for.  Let  us  now 
apply  this  rule  to  the  facts  in  this  case.  Phosphorus  is  one 
of  the  elements  of  matter  that  was  discovered  more  than  two 
hundred  years  ago — ^in  fact,  its  illuminating  properties  were 
discovered  as  early  as  1680;  and  it  has  been  used  for  different 
purposes  to  a  limited  extent  ever  since  its  discovery.  Since 
1835  its  principal  use  has  be^a  in  the  manufacture  of  matches. 
Par  years  this  latter  use  has  been  a  matter  of  common  knowl- 
edge to  children,  even;  and  there  are  but  few  adults  of  ordi- 
Bary  observation  or  intelligence  who  are  not  familiar  with  this 


152  A^tERiCAN  State  Reports,  Vol.  91.  [Towa, 

use,  and  its  peculiar  quality  of  emitting  light.  It  is  also  gen- 
erally known  to  be  a  deadly  poison  when  taken  internally.  Tt 
is  contended,  however,  that  the  plaintiff's  letter  ordering  phos- 
phorus is  so  illiterate  that  it  alone  would  convey  to  a  man  of 
ordinary  care  information  that  the  plaintiff  was  not  a  suitable 
person  to  intrust  the  drug  without  specific  warning  as  to  its 
dangerous  properties;  but  we  cannot  accept  this  constructioii 
of  the  letter,  nor  the  inference  sought  to  be  drawn  therefrom. 
On  the  contrary,  we  think  the  letter  itself,  with  all  its  indica- 
tions of  illiteracy,  was  an  assurance  to  the  defendant,  to  a  cer- 
tain extent,  at  least,  that  the  writer  knew  the  substance  he  was 
ordering.  It  will  not  do  to  say  that  a  man  who  may  not  he 
able  to  correctly  compose  or  to  correctly  spell,  or  whose  writ- 
ing is  poor,  *''^  is  unfit  to  be  intrusted  with  dangerous  sub- 
stances; for  some,  at  least,  of  the  great  inventive  geniuses  of 
the  world  have  been  deficient  in  all  of  these  respects. 

The  claim  that  the  demurrer  was  improperly  sustained,  be- 
cause the  letter  should  have  been  left  for  the  construction  of 
a  jury,  we  cannot  assent  to,  because  we  are  of  opinion  that 
the  court  should  say,  as  a  matter  of  law,  that  it  does  not 
disclose  facts  which  would  require  the  defendant  to  explain 
to  the  plaintiff  in  detail  the  properties  of  phosphorus. 

It  is  questionable  whether  the  petition  sufficiently  charges 
the  defendant  with  knowledge  of  the  plaintiff's  ignorance  of 
the  dangerous  nature  of  phosphorus,  and  a  demurrer  only  ad- 
mits matter  well  pleaded;  but  even  if  there  were  no  doubt  on 
this  matter,  we  would  not  reverse  the  case,  because  of  our  firm 
conviction  that  the  plaintiff  has  no  legal  cause  of  action,  tak- 
ing his  petition  as  a  whole  in  connection  with  appellant's  ar- 
gument, which  discloses  that  the  only  evidence  of  this  fact  is 
the  inference  which  arises  from  the  lack  of  public  knowledge. 

The  judgment  is  affirmed. 


One  Who  8eVU  an  Explosive,  sneh  as  gunpowder,  to  a  child,  knowinf^ 
he  is  ignorant  of  its  dangerous  character,  ie  responsible  for  injuries 
sustained  by  him  in  ezplodinf?  it:  Carter  ▼.  Towne,  98  Mass.  567,  96 
Am.  Dec.  682.  As  to  the  liability  of  druggists  for  selling  and  dis- 
pensing dangerous  articles,  see  the  monographic  note  to  Howes  v. 
Bose,  55  Am.  St.  Kep.  255-258.  As  to  the  liability  of  one  selling 
gasoline  without  being  labeled  as  required  by  statute,  see  Tves  v. 
Welden,  114  Iowa,  476,  89  Am.  St.  Rep.  879,  87  N.  W.  408.  And  as 
to  the  duty  of  the  shipper  and  the  carrier  of  explosives,  see  Standard 
Oil  Co.  ▼.  Tiemey,  92  Ky.  867,  36  Am.  St.  Bep.  595,  17  8.  W.  1025. 


Dee.  1901.]       Smith  v.  Aetna  Lif£  Imb.  Co.  J  53 


SMITH  ▼.  AETNA  LIFE  INSURANCE  COMPANY. 

[115  Iowa,  217,  88  N.  W.  368.] 

nreUBANOE—Aeddeiit— Death  by»  Wliat  Byidonco  Suttcient 
to  PxoTe. — If  it  appears  that  a  paeeenger  on  a  railway  train,  intending^ 
to  alight  at  a  crossing,  left  his  seat  while  the  train  was  running,  went 
to  the  steps,  and,  descending  them,  stood  on  the  lower,  holding  the 
railing  with  both  hands,  and  he  was  next  seen  acting  as  if  he  was 
going  to  step  down  another  step,  and  next  holding  the  railing  with 
one  hand,  and  being  dragged,  the  jury  is  authorized  to  find  that  his 
resulting  injuries  were  accidentaL     (p.  155.) 

IKbUSANGE,  ACCIDENT— Ezposnro  to  Unnecessary  Danger. 
The  Burden  of  Proof  is  on  the  defendant  to  show  that  an  accident 
causing  death  resulted,  in  whole  or  in  part,  from  voluntary  exposure 
to  unnecessary  danger,     (p.  155.) 

IN8X7BAKCE,  ACCIDENT.— Volnntaxy  Ezposnre  to  Danger 
Means  something  more  than  negligence  proximately  eomtributing  to 
the  injury.  The  test  seems  to  be,  did  the  insured  appreciate  that,  by 
doing  the  aet^  be  was  putting  life  and  limb  in  ha^ird.     (p.  155.) 

IN8UBANCE  AGAINST  ACCIDENT.— Volnntary  Ezposore  to 
Danger  is  not  Prored  by  evidence  tending  to  show  that  the  insured 
stood  on  the  steps  of  a  moving  train,  holding  on  with  both  hands, 
and  fell  or  stepped  therefrom  in  the  belief  that  he  was  stepping  on 
a  lower  step,  which  in  fact  did  not  eadst.     (p.  155.) 

INBUBANCB,  ACCIDENT.— One  making  preparations  to  leave 
a  train  at  a  place  elsewhere  than  the  depot,  if  the  train  should  stop, 
is  not  guilty  of  a  violation  of  law,  and  does  not  break  the  conditions 
of  a  policy  of  insurance  exempting  the  insurer  from  liability  for 
injuries  sustained  in  acts  in  violation  of  law,  nor  does  he  violate 
the  condition  of  the  policy  exempting  the  insurer  from  liability  for 
injuries  suffered  by  the  insured  while  entering  or  leaving  a  moving 
eonveyance.     (p.  156.) 

Action  on  a  policy  of  insurance  against  accident.  Verdict 
and  judgment  for  the  plaintiff,  and  the  defendant  appealed. 

Dawson  &  Eetey  and  E.  A.  Dawson,  for  the  appellant. 

Boies  ft  Boies,  for  the  appellee. 

**•  WATERMAN,  J.  Samuel  E.  Smith,  who  was  a  deputy 
sheriff  of  Black  Hawk  county,  lost  his  life  by  stepping  or  fall- 
ing from  a  rapidly  moving  train  on  the  Illinois  Central  rail- 
road as  he  was  returning  to  his  home  in  Waterloo,  from  a  *^* 
trip  to  Independence,  where  he  had  been  for  the  purpose  of 
taking  a  patient  to  the  hospital  for  the  insane.  The  accident 
happened  shortly  after  midnight  of  September  7,  1899.  The 
first  complaint  made  is  that  the  evidence  does  not  sustain  the 
Terdict,  in  this :  The  burden  was  upon  plaintiff  to  establish  that 


154  Amebioan  State  Bsports,  Vol.  91.  [Iowa, 

Smith's  death  was  the  result  of  an  accident,  and  the  eridence 
does  not  so  show.    The  instructions  of  the  trial  court  placed 
the  burden  upon  plaintiff  of  establishing  that  the  death  of  the 
assured  was  ''caused  as  alleged''  (i.  e.,  by  accidental  means), 
and  we  have,  therefore,  to  determine  whether  she  made  any 
substantial  showing  in  this  respect.    When  he  went  upon  the 
train  at  Independence,  Smith  entered  the  smoking-car,  taking 
a  seat  and  riding  therein  until  reaching  Waterloo.    As  the 
train  entered  that  city.  Smith  left  his  seat  and  went  out  upon 
the  platform.    He  had  told  a  fellow-passenger  that  he  in- 
tended to  alight  when  the  train  stopped  at  the  crossing  of  the 
Oreat  Western  railroad,  as  that  would  save  him  about  three 
squares'  walk  in  getting  home.    As  a  matter  of  fact,  he  left 
the  train  at  a  point  ten  hundred  and  forty-six  feet  before  the 
Great  Western  crossing  was  reached,  and  while  the  train  was 
running  at  least  ten  miles  an  hour.    Two  witnesses  testify  as 
to  the  manner  in  which  he  got  off.    He  descended  the  steps 
and  stood  upon  the  lower  one  for  just  an  appreciable  space  of 
time.    It  was  quite  dark.    He  was  holding  onto  the  railing 
with  both  hands.    As  he  paused  for  an  instant  on  this  step, 
he  was  facing  inward,  as  one  witness  says — ^toward  the  center 
of  the  car.    In  this  position  he  left  the  train.    After  so  lear- 
ing,  he  hung  on  to  the  railing  with  his  left  hand,  and  was 
dragged  a  short  distance.    One  of  the  witnesses,  a  brakeman, 
says:  ''He  seemed  to  me  like  a  man  who  was  going  to  step 
down  on  another  step— as  if  he  thought  there  was  anotiier 
step  there."    While  the  question  in  response  to  which  this 
statement  was  made  was  objected  to  by  defendant,  it  was  gen- 
eral in  character,  calling  upon  the  witness  to  say  whether 
Smith  appeared  to  jump  or  fall  from  •*•  the  train.    No  mo- 
tion was  made  to  strike  the  answer,  and  no  assignment  of  error 
presents  the  question  of  the  propriety  of  the  court's  action 
in  receiving  this  testimony.    Further,  this  witness  stated  that, 
in  his  opinion.  Smith  fell  from  the  train.    The  record  on  this 
matter  is  the  same  as  we  have  set  out  with  relation  to  the  last 
question  and  answer  spoken  of,  except  that  there  was  a  motion 
to  strike  out  the  answer.    No  assignment  of  error  is  predi- 
cated upon  these  rulings  of  the  court.    Under  well-established 
rules,  this  evidence  stands  for  our  consideration.    Taking  the 
case  thus  made,  and  the  jury  were  authorized  in  finding  that 
Smith  did  not  intend  to  alight  until  the  train  stopped  at  the 
crossing,  and  inadvertently  did  so,  by  attempting  to  descend 
to  another  step,  which  he  supposed  was  below  the  one  upon 


Dec.  1901.]        Smith  v.  Aetna  Life  Ins.  Co.  155 

which  he  was  standing.  If  this  was  the  case,  his  injury  was 
accidental,  within  the  definition  of  that  term  as  heretofore  giren 
by  this  court,  for  it  was  the  result  of  an  event  which  took  place 
without  his  foresight  or  expectation.  It  was  an  Undesigned 
and  unexpected  happening:  Feder  y.  Iowa  State  Traveling 
Men's  Assn.,  107  Iowa,  538,  70  Am.  St.  Bep.  212,  78  N.  W. 
252. 

2.  The  policy  in  suit  did  not  cover  accident  or  death  result- 
ing in  whole  or  in  part  from  voluntary  exposure  to  unneces- 
sary danger,  and  it  is  claimed  on  the  part  of  appellant  that 
Smith's  death  was  so  caused.  The  burden  of  proof  was  upon 
the  defendant  to  establish  tiie  breach  of  this  clause  of  the  con- 
tract: Follis  V.  United  States  Mut.  etc.  Assn.,  94  Iowa,  435, 
58  Am.  St.  Bep.  408,  62  N.  W.  807;  Jones  v.  United  States 
Mut.  etc  Assn.,  92  Iowa,  652,  61  N.  W.  486;  Sutherland  v. 
Standard  Life  etc.  Ins.  Co.,  87  Iowa,  505,  54  N.  W.  453. 
'Voluntary  exposure  to  danger''  means  something  more  than 
negligence  contributing  to  the  injury.  "The  policy  was,  no 
doubt,  intended  to  cover  accidents,  although  the  assured  may 
have  been  guilty  of  negligence  which  approximately  contrib- 
uted to  his  injury^':  Follis  v.  United  States  Mut.  etc.  Assn., 
94  Iowa,  435,  58  Am.  St.  Bep.  408,  62  N.  W.  807.  The  act 
which  causes  the  exposure  may  be  voluntary,  yet  the  exposure 
may  be  involuntary:  Jones  v.  United  States  Mut.  etc.  Assn., 
92  Iowa,  652,  61  N.  W.  485 ;  Burkhard  v.  Travelers'  Ins.  Co., 
102  Pa.  St.  262,  48  Am.  Bep.  205;  Equitable  Ace.  Ins.  Co.  v. 
Osborn,  90  Ala.  201,  9  South.  869.  »*  The  test  seems  to 
be,  Did  the  assured  appreciate  that  by  doing  the  act  he  was 
putting  life  or  limb  at  hazard  ?  Matthes  v.  Imperial  Ace.  Assn., 
110  Iowa,  222,  81  N.  W.  484,  The  evidence  discloses  that 
Smith  was  accustomed  to  traveling  on  railroad  trains;  that 
he  had  ridden  on  this  train  before.  We  cannot  say,  as  mat- 
ter of  law,  that  his  standing  upon  the  car  steps,  holding  to 
the  rail  with  both  hands,  was  a  ^'voluntary  exposure  to  dan- 
ger,''  within  the  meaning  of  those  words  as  we  have  defined 
them.  This  conclusion  has  entire  support  in  the  opinion  of 
Mr.  Justice  Harlan,  in  the  circuit  court  of  appeals,  in  a  case 
so  like  in  its  facts  as  to  put  it  upon  all  fours  with  the  one  we 
are  considering:  See  Travelers'  Ins.  Co.  v.  Bandolph,  78  Fed. 
754 ;  also  Collins  v.  Bankers'  Ace.  Ins.  Co.,  96  Iowa,  216,  59  Am. 
St  Bep.  367,  64  N.  W.  778.  Indeed,  it  cannot  be  said,  as 
matter  of  law,  that  deceased  was  even  negligent  in  standing 
upon  the  platform  of  the  car,  holding  to  the  railings  as  he  did : 


156  American  State  Reports,  Vol.  91.  [Iowa, 

Sutherland  v.  Standard  Life  etc.  Ins.  Co.,  87  Iowa,  605,  54  N. 
W.  453,  and  cases  dted  therein.  The  cases  referred  to  by 
appellant  can  all  be  distinguished  from  the  one  at  bar.  Shev- 
lin  T.  American  Mut.  Ace.  Assn.,  94  Wis.  180,  68  N.  W.  Rep. 
866,  is  the  one  most  relied  upon.  In  that  case  the  condition 
in  the  policy  was  against  "exposure  to  unnecessary  danger**; 
and  the  court  bases  its  decision  on  the  wording  of  the  contract, 
and  distinguishes  the  case  from  those  in  which  the  condition 
was  against  "voluntary**  or  "willful  and  wanton**  exposure. 

8.  Defendant  asked  the  court  to  instruct  the  jury  that  if 
Smith  sustained  the  injuries  which  resulted  in  his  death  while 
he  was  leaving  or  attempting  to  leave  the  train,  without  the 
consent  of  the  person  in  charge,  at  a  place  other  than  the  estab- 
lished depot,  he  was  guilty  of  a  violation  of  law,  and  thus  broke 
a  condition  of  the  policy,  and  their  verdict  should  be  for  de- 
fendant. This  was  refused.  Section  4811  of  the  Code  is  the 
provision  sought  to  be  embodied  in  this  instruction.  So  far 
as  it  refers  to  an  attempt  to  leave  the  train,  it  is  erroneous. 
It  is  no  violation  of  this  section  for  one  lawfully  upon  a 
train  to  make  preparation  ***  with  the  intent  to  leave  it  at 
a  place  elsewhere  than  the  depot  if  the  train  shall  stop.  So 
far  as  the  instruction  is  confined  to  a  case  of  actual  alighting, 
the  matter  was  fully  covered  in  the  charge  given.  While  the 
court,  in  one  paragraph,  used  the  word  "intentional**  for  the 
word  "unintentional,**  it  was  in  such  a  connection  that  it  could 
not  have  been  misunderstood,  even  if  that  paragraph  had  stood 
alone.  There  were,  however,  other  instructions  containing  the 
same  thought,  expressed  with  clearness  and  precision. 

4.  It  was  a  condition  of  the  policy  that  the  risk  did  not  in- 
clude or  cover  the  act  of  entering  or  leaving  "a  moving  con- 
veyance using  steam  as  a  motive  power,  except  cable  and  elec- 
tric cars,**  etc.,  and  a  breach  of  this  condition  was  set  up  as 
a  defense.  On  this  issue  the  trial  court  instructed  as  follows : 
"4.  One  of  the  defenses  relied  on  by  the  defendant  in  this 
case  is  that  the  cause  of  death  of  the  deceased,  Samuel  E. 
Smith,  was  his  leaving,  or  trying  to  leave,  a  moving  convey- 
ance, using  steam  as  a  motive  power,  in  violation  of  the  terms 
and  conditions  of  the  policy  in  suit.  Upon  this  question  you 
are  instructed  that,  in  order  to  sustain  its  defense,  the  burden 
is  upon  the  defendant  to  show  by  a  fair  preponderance  of  the 
credible  evidence  before  you  that  the  deceased,  at  the  time  of 
receiving  the  injury  resulting  in  his  death,  was  purposely  leav- 
ing, or  trying  to  leave,  the  car  upon  which  he  was  riding,  and 


Dec  1901.]       Smith  v.  Aetna  Life  Ins.  Go.  167 

did  not  accidentally  slip  or  fall  from  the  steps  npon  which 
he   was    standing  immediately  prior  to   said  accident.    The 
fact  tiiat  deceased  was  standing  upon  the  platform  and  steps 
of  the  car  immediately  prior  to  said  accident  would  not  con- 
stitute a  defense^  under  this  clause  of  the  contract,  unless  he 
was  at  such  time  purposely  leaving  or  trying  to  leave  such  car 
and  steps,  and  to  alight  therefrom.'*    Certainly    the    burden 
was  upon  defendant  to  establish  this  defense:  See  authorities 
heretofore  cited.    It  seems  to  be  the  thought  of  counsel  for 
appellant  that  this  instruction  placed  the  burden  on  defend- 
ant, in  the  first  instance,  of  showing  that  Smith's  death  was 
not  accidental.    *^  But  the  whole  charge,  when  taken  to- 
gether, discloses  clearly  that  plaintiff  was  obliged  to  make  a 
prima  fade  case  of  accidental   death;   and  then   the   burden 
dufted  to  defendant  of  showing  that,  by  reason  of  the  breach 
of  some  condition  of  the  contract,  it  was  not  liable.    It  will 
be  noticed  that  the  instruction  does  not  say  that  a  failure  to 
sustain  such  burden  by  defendant  would  warrant  a  recovery 
by  plaintiff. 

We  have,  in  what  has  been  said^  covered  the  questions  ar- 
gued. We  find  no  prejudicial  error,  and  the  judgment  is 
aflSrmed. 


YoUmiarv  EwfMisure  to  Danger,  witMn  tbe  meaning  of  an  aeeident 
msuranee  poliey,  is  a  eonseions  or  intentional  exposure  involving 
gross  or  wanton  negligence:  Johnson  v.  London  etc.  Accident  Co.,  116 
Kieh.  S6,  69  Am.  St.  Bep.  549,  72  N.  W.  1115.  The  burden  is  on  the 
insurer  to  show  that  an  injury  is  due  to  such  exposure:  Follis  ▼. 
United  States  Mut.  Ace.  Assn.,  94  Iowa,  435,  58  Am.  St.  Bep.  408,  62 
N.  W.  S07;  Games  v.  Iowa  State  etc.  Assn.,  106  Iowa,  281,  68  Am.  St. 
Bep.  306,  106  N.  W.  281.  The  insurer,  to  absolve  himself  from 
liability,  must  not  only  allege  and  prove  that  the  insured  exposed 
himself  to  unnecessary  danger,  but  also  that  he  voluntarily  exposed 
himself  thereto:  Conboy  ▼.  Bailway  Officials  etc.  Assn.,  17  Ind.  App. 
62,  60  Am.  St.  Bep.  154,  46  N.  E.  363. 

A«  to  What  is  Death  ly  Accidental  Means,  within  the  meaning  of 
the  law  of  accident  insurance,  see  Keef  er  v.  Pacific  etc.  Ins.  Co.,  201 
Pa.  St.  448,  51  Atl.  366,  88  Am.  St.  Bep.  822,  and  authorities  cited  in 
the  cross-reference  note  thereto;  Sargent  v.  Central  Ace.  Ins.  Co^ 
112  Wis.  29,  88  Am.  St.  Bep.  946,  87  N.  W.  796.  Evidence  of  the 
cause  of  death  is  considered  in  the  note  to  Meadows  v.  Pacific  etc. 
Ins.  Co.,  50  Am.  St.  Bep.  441-443. 


168  Amerioak  State  Reports^  Vol.  91.  [Iowa, 


MALLOW  V.  WALKER. 

[115  Iowa,  238,  88  N.  W.  452.] 

WANT  OF  MENTAL  OAPAOITY  is  not  Made  Out  where  it 
appears  that  the  party  in  question  had  sufficient  mind  to  determine 
for  himself  what  he  wanted  to.  do,  and  to  carry  out  his  purpose  with 
reference  to  the  disposition  of  the  property  owned  by  him,  though 
he  acts  upon  an  antipathy  suddenly  formed,     (p.  160.) 

UNDUE  INFLUENOE.— The  Borden  of  Proving  undue  in- 
fluence, for  the  purpose  of  having  a  will  or  deed  set  aside,  is  upon  the 
party  seeking  that  relief,     (p.  161.) 

UNDUE  INFLUENOE,  to  Justify  the  Setting  Aside  of  a 
D66d»  must  have  been  such  as  to  overcome  the  will  of  the  grantor, 
and  to  destroy,  to  some  extent,  at  least,  his  free  agency.  It  must 
further  appear  that  the  undue  influence  was  exercised  at  the  time  the 
act  referred  to  was  done.     (p.  161.) 

UNDUE  INFLUENCE.— An  act  is  not  due  to  undue  influence 
though  it  resulted  by  reason  of  the  influence  of  affection  or  a  mere 
desire  to  gratify  the  wishes  of  another,  if  the  free  agency  of  the 
party  is  not  impaired,     (pi  161.) 

UNDUE  INFLUENCE  is  not  Proved  by  showing  that  a  dis- 
position made  by  a  parent  of  his  property  among  his  children  is  un- 
reasonable or  unjust,     (p.  161.) 

UNDXTE  INFLUENCE.— Parol  Declarations  of  Intention  con- 
trary to  a  subsequent  disposition  of  property  do  not  alone  prove  un- 
due influence,     (p.  161.) 

UNDUE  INFLUENCE  is  not  Presumed  from  the  fact  that  the 
provision  made  is  by  a  parent  in  favor  of  his  child,     (p.  161.) 

UNDUE  INFLUENCE.— Though  it  Appears  that  a  Deed  or 
Will  was  Executed  at  the  Suggestion  or  Bequest  of  the  (Grantee  or 
devisee,  and  was  prompted  by  the  influence  which  he  acquired  by 
business  confldenee  or  the  showing  of  an  affectionate  regard,  this 
does  not  prove  undue  influence,  uSess  freedom  of  will  has  been  in 
some  way  impaired  or  destroyed,     (p.  162.) 

WITNESS— Testimony  Against  a  Deceased  Person.— Under  a 
statute  prohibiting  a  person  from  being  examined  as  a  witness  as  to 
any  transaction  between  him  and  a  decedent  against  an  executor,  ad- 
ministrator, or  next  of  kin,  or  other  survivor,  such  person  may  be 
examined  as  to  a  conversation  between  decedent  and  another  person 
oeenrring  in  the  presence  of  the  witness,  but  in  which  he  did  not  par* 
ticipate.     (p.  162.) 

FBAUDUISNT  TSANSFBB8.— A  Conveyance  in  ConsideratlOB 
that  the  Orantee  Will  Support  the  Grantor,  made  when  the  latter  had 
substantially  no  other  property,  is  void  as  against  his  creditors,  (p. 
164.) 

FBAUDULENT  TltANSFEBS.— The  Administrator  of  an 
Estate  may  Maintain  an  Action  against  the  grantee  of  the  decedent 
to  set  aside  a  conveyance  in  fraud  of  the  letter's  creditors,     (p.  164.) 

CBEDITOBS'  BILL— Beducing  Claims  to  a  Judgment,  When 
not  Necessary.— It  is  not  necessary,  to  support  a  suit  by  an  admin- 
istrator to  set  aside  a  conveyance  by  a  decedent  as  in  fraud  of  the 
latter 's  creditor,  to  show  that  they  have  reduced  their  claims  to  judg- 
ment,    (p.  164.) 


Bee.  1901  .J  Mallow  v.  Walksb.  159 

TBJLXmvUasrc  TBAKSFEBS  are  Valid,  Except  as  Af  ainat  the 
dalniB  of  Orediton  whom  they  tend  to  defraud,  and  when  a  suit  it 
brought  by  an  administrator  of  a  decedent'  to  set  aside  a  conveyance 
made  by  him  in  f rand  of  bis  creditors,  the  grantee  mnst  be  permitted 
to  retain  whatever  remains  after  satisfying  the  creditors,     (p.  164.) 

Four  several  actions  for  the  distribution  of  the  estate  of 
Gamaliel  Walker^  deceased^  were  consolidated  and  tried  as  one 
equitable  action,  the  real  parties  in  interest  being  John  and 
Laura  Mallow  on  the  one  side  and  Simon  Walker  on  the  other. 
Both  sades  appealed. 

Holman  &  French  and  E.  E.  Hasner^  for  the  appellant. 

Cook  &  Leach,  for  the  appellee.  • 

*^  McCLAIN,   J.    GamaKel   Walker  died   December  21, 
1898,  having  attained  the  age  of  nearly  eighty-two  years,  and 
leaving,  as  his  estate,  one  forty-acre  tract  of  land  and  a  small 
amount  of  personal  property.    For  some  years  prior  to  Au- 
gust, 1898,  he  had  lived  with  his  daughter,  Laura  Mallow,  and 
her  husband,  John,  both  of  them  parties  in  these  proceedings. 
In  that  month,  however,  he  left  the  home  of  the  Mallows,  and 
went  to  live  with  his  son,  Simon   (the  appellant),  and  wife. 
While  living  with  the  Mallows,  Gamaliel  Walker  had  made  a 
vrill  devising  the  forty-acre  tract  of  land  above  referred  to, 
and  which  was  then  in  possession  of  the  Mallows,  to  his  daugh- 
ter, Laura,  but  immediately  after  leaving  the  home  of  the  Mal- 
lows he  withdrew  this  will  from  the  oflBce  of  the  clerk  of  the 
district  court,  where  it  had  been  desposited,  and  destroyed  it 
and  thereafter  executed  to  Simon  a  deed  to  the  forty  acres, 
in  consideration  of  support  for  the  balance  of  his  life  and  two 
hundred  dollars  to  be  paid  to  a  grandchild.    Before  the  death 
of  Gamaliel  Walker,  action  of  replevin  was  commenced  in  his 
name  against  John  Mallow  to  recover  possession  of  a  promis- 
sory note  executed  by  said  John  Mallow  ***  to  Gamaliel  Walker 
for  four  hundred  dollars  of  borrowed  money,  which  note  it 
was  alleged  was  wrongfully  in  the  possession  of  said  Mallow. 
Afterward  Simon  Walker,  claiming  under  an  assignment  of 
the  note  from  his  father,  was  substituted  as  plaintiff  in  this 
action.     Another  action  was  brought  by  John  Mallow  against 
Gamaliel  Walker  to  recover  a  balance  of  about  twelve  hundred 
dollars  on  an  account  for  boarding  the  latter  and  two  grand- 
children, and  for  small  sums  of  money  advanced.    In  this  ac- 
tion a  counterclaim  was  interposed  by  the  defendant  therein 
for  money  advanced  at  various  times  to  the  plaintiff  to  an 


160  Amebioan  State  Bepobts,  Vol.  91.  [Iowa, 

amoTint,  in  the  aggregate,  of  about  two  thousand  eight  hundred 
dollars.  In  this  action  J.  G.  Stevenson,  •as  administrator  of 
the  estate  of  Gamaliel  Walker,  deceased,  was,  after  the  death 
of  the  latter,  substituted  as  defendant.  Laura  Mallow,  after 
the  death  of  Oamaliel  Walker,  instituted  a  suit  to  have  the 
deed  to  the  forty  acres  from  her  father  to  Simon  set  aside 
as  executed  without  sufficient  mental  capacity  and  under  un- 
due influence,  basing  her  right  of  action  on  her  claimed  in- 
terest in  the  property  to  the  extent  of  one-third  as  heir. 
Finally,  Laura  Mallow,  then  administratrix  of  her  father's 
estate,  brought  suit  as  such  administratrix  to  have  the  said 
deed  set  aside  on  the  same  ground,  and  on  the  further  ground 
that  it  was  fraudulent  and  void  against  creditors,  and  asked 
that  the  property  be  subjected  to  the  payment  of  claims  against 
the  estate,  including  the  claim  of  John  Mallow  for  the  balance 
of  account  above  referred  to.  In  this  last  suit  John  C.  Steven- 
son, who  was  appointed  administrator  instead  of  Laura  Mal- 
low, was  substituted  as  plaintiff. 

From  the  foregoing  very  brief  statement  it  is  apparent  that 
all  the  controversies  involved  in  these  four  suits  are  really  be- 
tween John  and  Laura  Mallow  on  the  one  side  and  Simon 
Walker  on  the  other,  and  they  will  be  treated  as  the  adverse 
parties.  It  is  also  apparent  that  these  controversies  grow  out 
of  injured  feelings,  as  well  as  injury  to  property  **■  rights, 
and  that  their  solution  depends  to  a  considerable  extent  upon 
evidence  of  transactions  with  a  person  deceased,  and  upon 
the  competency  of  the  deceased,  an  old  and  infirm  man,  to 
make  disposition  of  his  property  as  between  his  heirs;  and 
involve  the  further  question  whether  such  disposition  was  of 
his  own  free  will  or  under  undue  influence.  The  conclusions 
we  have  reached  are  by  no  means  entirely  satisfactory  to  ns, 
and  yet  they  are  adopted,  in  the  belief  that  they  approximate, 
as  nearly  as  practicable  under  the  law  and  the  evidence,  to  the 
administration  of  abstract  justice.  We  shall  set  them  out  as 
briefly  as  possible. 

1.  There  is  much  evidence  relating  to  the  mental  capacity 
of  Gamaliel  Walker  at  the  time  he  destroyed  his  will  and  exe- 
cuted the  deed  to  Simon.  Without  discussing  it,  we  have  to 
say  that  we  agree  with  the  conclusion  of  the  lower  court  in 
the  holding  that  want  of  mental  capacity  was  not  shown. 
Gamaliel  Walker  seems  to  have  had  sufiicient  mind  to  determine 
for  himself  what  he  wanted  to  do,  and  to  carry  out  his  pur- 


Dec  1901.]  Mallow  r.  Walker.  161 

poses  with  reference  to  the  disposition  of  what  property  re- 
mained to  him,  and  it  is  not  for  us  to  pass  upon  the  reasonable- 
ness of  such  disposition.  His  antipathy  to  the  Mallows,  which 
seems  to  have  been  suddenly  formed,  may  have  been  justified; 
and,  even  if  unjustified,  would  not  show  mental  incapacity. 
The  owner  of  property,  having  the  right  to  make  such  disposi- 
tion of  it  as  he  sees  fit^  is  not  accountable  to  anyone  with  ref- 
erence to  the  motive  which  lead  him  to  act. 

2.  As  to  the  claim  that  the  deed  was  procured  by  Simon 
from  his  father  by  undue  influence,  it  is  sufficient  to  say  that 
no  evidence  of  any  such  undue  influence  appears.  The  burden 
of  proof  is  on  the  party  seeking  to  establish  the  fact  of  undue 
influence  for  the  purpose  of  having  a  conveyance  or  a  will  set 
aside,  and  the  evidence  must  show  that  the  influence  was  such 
as  to  overcome  the  will  of  the  grantor,  and  to  destroy,  to  some 
extent  at  least,  his  free  agency :  Mclntire  v.  McConn,  28  Iowa, 
***  480;  Orr  v.  Pennington,  93  Va.  268,  24  S.  E.  928.  And 
it  must  appear  that  the  undue  influence  was  exercised  at  the 
time  the  act  referred  to  was  done :  Herster  v.  Herster,  122  Pa. 
SL  239,  16  Atl.  342,  9  Am.  St.  Eep.  95.  "The  fact  that  the 
act  was  done  by  reason  of  the  influence  resulting  from  affec- 
tion or  attachment,  or  a  mere  desire  to  gratify  the  wishes  of 
another,  if  the  free  agency  of  the  party  is  not  impaired,  does 
not  affect  the  validity  of  the  act" :  Orr  v.  Pennington,  93  Va. 
268,  24  S.  E.  928.  The  mere  fact  that  the  distribution  made 
by  a  parent  of  his  property  among  his  children  appears  un- 
reasonable or  unjust  will  not  alone  establish  imdue  influence, 
and  prior  declarations  of  an  intention  contrary  to  the  subse- 
quent disposition  cannot  be  shown  to  establish  undue  influ- 
ence in  respect  to  the  disposition  finally  made :  Muir  v.  Miller, 
72  Iowa,  585,  34  N.  W.  429.  And  see  Pooler  v.  Cristman,  145 
HI.  405,  34  N.  E.  57.  The  mere  fact  that  the  provision  com- 
plained of  is  one  made  as  between  a  parent  and  child  will  not 
give  rise  to  the  presumption  that  it  was  the  result  of  undue 
influence.  While  a  conveyance  from  a  child  to  a  parent  may 
sometimes  be  deemed  presumptively  invalid  by  reason  of  the 
influence  which  the  parent  is  supposed  to  have  over  the  child 
▼hile  occupying  toward  him  a  confidential  relation,  this  does 
not  apply  when  the  conveyance  is  from  the  parent  to  the  child : 
Bauer  v.  Bauer,  82  Md.  241,  33  Atl.  643 ;  McColloch  v.  Camp- 
bell, 49  Ark.  367,  6  S.  W.  590 ;  Chambers  v.  Brady,  100  Iowa, 
622,  69  N.  W.  1015.  Even  if  it  appears  that  a  deed  or  will 
ia  executed  at  the  suggestion  or  request  of  the  grantee  or  de« 

Am.    St.   Rep.,   Vol.   91—11 


163  Akebioan  State  Bbports^  Vol.  91.  [Iowa, 

visee^  and  is  prompted  by  the  infltieiice  which  such  person  haa 
acquired  by  business  confidence^  or  the  showing  of  an  affection* 
ate  regard^  this  will  not  prove  nndne  inflnence,  nnless  the  free* 
dom  of  the  will  has  been  in  some  way  impaired  or  destroyed : 
Orr  V.  Pennington,  93  Va.  268,  24  S.  E.  928 ;  Chambers  v.Brady» 
100  Iowa,  622,  69  N.  W.  1016;  McCuUoch  y.  Campbell,  49 
Ark.  367,  6  S.  W.  690.  The  conveyance  to  Simon  is  not  shown, 
therefore,  to  be  invalid  on  account  of  undue  influence. 

***  3.  As  to  the  claim  of  John  Mallow  for  boarding  Gama- 
liel Walker  from  1892  to  1898,  the  facts,  as  far  as  we  can  dis* 
cover  them  from  the  competent  evidetice,  are  substantially  as 
follows:  Some  time  prior  to  1892  Gamaliel  Walker  and  hia 
wife  went  to  live  with  John  and  Laura  Mallow,  under  an  ar* 
rangement  by  which  Gamaliel  Walker  was  to  build  an  addition 
to  the  Mallow  house,  and  furnish  a  part  of  the  joint  family 
expenses ;  and  this  arrangement  was  carried  out  until  the  death 
of  Mrs.  Walker  in  1892.  From  that  time  on  Gamaliel  Walknr 
continued  to  live  with  the  Mallows,  so  far  as  it  appears^  with- 
out paying  board,  or  furnishing  supplies  for  the  family,  stat- 
ing to  various  persons  that  the  MaUowg  would  be  paid  for  his 
keeping.  John  Mallow  testifies  as  to  conversations  between 
his  wife  and  her  father,  and  Laura  Mallow  as  to  similar  con- 
versations between  her  father  and  her  husband,  in  which  thi» 
arrangement  was  made  quite  specific,  and  the  devise  of  the 
forty  in  controversy  in  this  case  to  Laura  Mallow  was  referred 
to  as  furnishing  the  compensation  for  board.  The  testimony 
of  John  and  Laura  Mallow,  respectively,  as  to  the  conversa- 
tion with  Gamaliel  Walker,  is  objected  to  as  prohibited  under 
section  4304  of  the  Code,  because  relating  to  personal  transac- 
tions or  communications  with  a  person  deceased;  but  each  wit- 
ness  testifies  to  statements  in  conversations  between  deceases? 
and  the  other,  in  the  presence  of  the  witness,  and  in  which 
the  witness  took  no  part,  and  such  testimony  is  competent: 
Erusha  v.  Tomash,  98  Iowa,  610,  67  N.  W.  390 ;  Auchampaugh 
V.  Schmidt,  77  Iowa,  13,  41  N.  W.  472.  In  the  face  of  th<ie 
direct  statements  of  the  witnesses  we  do  not  feel  justified  in 
excluding  what  they  say.  There  is  some  testimony  on  the 
part  of  John  Mallow  with  reference  to  conversations  between 
himself  and  Gamaliel  Walker  which  cannot  he  considered, 
but  we  think  that  from  competent  evidence  it  appears  that  it 
was  the  understanding  of  Gamaliel  Walker  that  the  Mallows 
should  receive  compensation  in  some  form  for  his  board,  and 
John  Mallow  **•  is  therefore  entitled  to  be  paid  out  of  the  es- 


Dec  1901.]  Mallow  v.  Walker.  163 

tate  of  Gamaliel  Walker  for  the  reasonable  yalne  of  the  board 
and  care  which  the  latter  received.  As  bearing  on  this  question. 
Bee,  without  further  discussion.  Van  Sandt  v.  Cramer,  60  Iowa, 
424,  15  N.  W.  269;  Sidler  v.  Bidler,  93  Iowa,  347,  61  N.  W. 
994;  Ridler  v.  Bidler,  103  Iowa,  470,  72  N.  W.  671;  McGarvy 
V.  Boods,  73  Iowa,  363,  35  N.  W.  488.  It  is  difficult,  under  the 
evidence  to  fix  any  value  for  the  services  thus  rendered.  Dur- 
ing part  of  the  time,  undoubtedly,  Gamaliel  Walker  was  quite 
helpless  by  reason  of  old  age  and  sickness,  but  it  does  not  ap- 
pear that  this  condition  existed  throughout  the  entire  six  years. 
For  part  of  the  time,  no  doubt,  the  charge  of  four  dollars  per 
week  would  be  reasonable,  but  that  is  more  than  a})pears  to  have 
ordinarily  paid  for  board  in  that  neighborhood.  We  think  that 
if  we  allow  three  dollars  per  week,  we  give  all  that  the  services 
were  reasonably  worth,  and  on  this  account  John  Mallow  is  en- 
titled to  one  thousand  and  twenty  dollars.  We  find  no  compe- 
tent evidence  that  the  estate  of  Gamaliel  Walker  is  liable  for 
the  board  of  the  grandchildren  during  that  time,  nor  for  sums 
of  money  claimed  to  have  been  advanced  as  charged  in  John 
Mallow's  account.  As  a  credit  on  this  account,  the  estate  is  en- 
titled  to  the  rental  value  of  the  forty  acres  above  referred  to, 
which  we  find  to  have  been  sixty-five  dollars  per  year — ^in  all, 
three  hundred  and  ninety  dollars — ^leaving  a  balance  of  six  hun- 
dred and  thirty  dollars.  As  to  the  counterclaim  interposed  by 
Gamaliel  Walker  when  this  claim  was  made  against  him,  after 
he  had  left  the  Mallows,  and  was  residing  with  Simon  Walker, 
we  do  not  find  that  the  items  are  established  by  any  competent 
evidence.  TTiere  is  much  testimony  relating  to  the  estate  of 
Gamaliel  Walker's  financial  affairs  during  these  years,  and  it  is 
contended  in  behalf  of  the  estate  that  he  had  considerable  money 
and  personal  property  when  he  Bved  with  the  Mallows,  and  that 
none  of  it  remained  at  the  time  of  his  death ;  but  we  cannot  in- 
fer, in  the  absence  of  any  evidence,  that  this  money  and  other 
personal  property  was  turned  over  to  either  John  or  Laura  Mal- 
low, and,  in  the  absence  of  any  direct  evidence  of  payment,  **• 
we  must  hold  that  there  are  no  payments  or  offsets  to  be  de- 
ducted. 

4.  While  the  conveyance  of  the  land  in  question  from  Gamaliel 
Walker  to  his  son,  Simon,  was  not  invalid,  as  we  have  already  indi- 
cated, on  the  ground  of  mental  incapacity  or  undue  influence, 
yet  inasmuch  as  Gamaliel  Walker  had  practically  no  other  prop- 
erty from  which  his  debts  could  be  paid,  this  conveyance  was,  in 
point  of  law,  invalid  as  to  his  creditors.     That  a  conveyance  by 


164  Amekican  State  Bepobts^  Vol.  91.  [Iowa, 

an  insolyent  in  consideration  of  future  support  is  void  so  far  as 
it  puts  the  property  of  the  grantor  out  of  the  reach  of  creditors, 
is  well  settled:  Strong  v.  Lawrence,  58  Iowa,  55,  12  K  W.  74; 
Graham  v.  Booney,  42  Iowa,  567;  Woodall  y.  Kelly,  85  A]^ 
368,  7  Am.  St.  Bep.  67,  5  South.  164 ;  Stanley  y.  Bobbins,  36 
Vt.  422 ;  Pease  v.  Shirlock,  63  Vt.  622,  22  Atl.  661 ;  Davidson 
y.  Burke,  143  111.  139,  36  Am.  St.  Bep.  307,  32  N.  E.  514.     It 
is  also  well  settled  that  the  administrator  of  an  estate  may  main* 
tain  an  action  against  decedent's  grantee  to  set  aside  a  conyey- 
ance,  if  in  fraud  of  decedent's  creditors:  Cooley  y.  Brown,  30 
Iowa,  470;  Parker  y.  Flagg,  127  Mass.  28;  1  Woemer's  Ameri- 
can Law  of  Administration,  630;  Wait  on  Fraudulent  Conyey- 
ance,  sees.  112,  113.    It  is  not  necessary,  in  support  of  such  an 
action,  that  the  creditors  haye  already  reduced  their  claims  to 
judgment:  Prentiss  y.  Bowden,  145  N.  Y.  342,  40  N.  E.  13. 
The  same  principle  is  applicable  to  the  transfer  to  Simon  of  the 
four  hundred  dollar  note  of  John  Mallow  to  Gktmaliel  Walker. 
In  short,  Simon  Walker  took  the  land  and  this  note,  which  con- 
stituted the  entire  estate  of  Gamaliel  Walker,  subject  to  im^ 
peachment  on  the  ground  that  the  transfer  was  in  fraud  of  the 
claim  of  Jolvn  Mallow  for  board  and  care  of  Gamaliel  Walker 
as  aboye  indicated.    The  conyeyance  of  the  land  to  Simon  was, 
however,  on  condition  that  he  execute  a  note  to  a  grandchild  of 
Gamaliel  Walker  for  the  payment  of  two  hundred  dollars,  and 
this  he  **''  appears  to  have  done.    To  that  extent  he  has  a  claim 
on  the  property,  provided,  of  course,  anything  is  left  after  satis- 
fying the  debts.     It  docs  not  follow,  however,  that  the  conyey- 
ance and  transfer  to  Simon  is  to  be  entirely  set  aside,  and  the 
residue  of  the  property,  after  the  payments  of  these  debts  and  the 
note  to  the  granddaughter,  is  to  be  distributed  as  property  of 
the  estate.    As  to  any  such  r^idue,  the  disposition  made  by 
Gamaliel  Walker  should  be  sustained,  and  Simon  Walker's  right 
thereto  is  to  be  upheld :  McLean  y.  Weeks,  61  Me.  277 ;  Bank 
of  United  States  y.  Burke,  4  Blackf.  141.    The  case  will  be  re- 
manded to  the  lower  court,  in  order  that  such  disposition  be 
made  of  the  various  issues  involved  as  to  carry  out  the  conclu- 
sions above  announced. 

As  the  findings  of  this  court  are  materially  different  from 
those  of  the  trial  court,  its  decree  must  be  reversed. 


Undue  Influence,  as  affecting  the  validity  of  a  will,  is  considered  is 
the  monographie  note  to  In  re  Hes<i'  Will,  SI  Am.  St.  Bep.  670-601. 
To  avoid  a  will,  undue  influence  must  destroy  the  free  agency  of  the 


Jan.  1902.]  Fbick  v.  Fritz.  165 

testator  at  the  time  and  in  the  very  act  of  making  the  will:  Englert  v. 
Englerty  198  Pa.  St.  326,  82  Am.  8t.  Bep.  808,  47  Atl.  940.  The 
burden  of  proving  anch  influence  is  upon  the  contestant.  It  cannot 
be  presumed  from  a  mere  coincidence  of  opportunity  to  influence, 
bnt  aifirmative  proof  is  required:  Schierbaum  ▼.  Sehemme,  157  Mo.  1, 
80  Am.  St.  Bep.  604,  57  S.  W.  526;  In  re  Shell's  Estate,  28  Colo.  167, 
89  Am.  St.  Bep.  181,  63  Pac.  413.  The  presumption  in  favor  of  the 
validity  of  a  iHJl  is  not  overcome  by  the  fact  that  it  unjustly  discrim- 
inates in  favor  of  a  son  of  the  testator:  Berberet  ▼.  Berberet,  131 
XIo.  399,  52  Am.  St.  Bep.  634,  33  S.  W.  61.  On  presumptions  of 
undue  influence,  see  the  monographic  note  to  Bichmond's  Appeal,  21 
Am.  St.  Bep.  94-104.  On  declarations  of  the  testator  as  evidence  of 
undue  inflnnncp,  see  the  note  to  Jackson  v.  Kniffen,  3  Am.  Dec.  395- 
399;  Schierbaum  v.  Schemme,  157  Mo.  1,  80  Am.  St.  Bep.  604.  57  S. 
W.  526:  Estate  of  Goldthorp,  94  Iowa,  336,  58  Am.  St.  Bep.  400,  62 
N.  W.  845. 

1  FraudfUeni  Cimveyance  is  valid  as  between  parties:  Preston- 
Psrton  Mill  Co.  v.  Dexter  Horton  ft  Co.,  22  Wash.  236,  79  Am.  St. 
Bepi  928,  60  Pac  412;  Doster  ▼.  Manistee  Nat.  Bank,  67  Ark.  325, 
77  Am.  St.  Bep.  116,  55  S.  W.  137.  A  conveyance  in  consideration 
of  future  support  is  fraudulent  as  to  creditors:  Harris  v.  Brink,  100 
Iowa,  366,  69  N.  W.  684,  26  Am.  St.  Bep.  578,  and  cases  cited  in  the 
eross-referenee  note  thereto. 


PRICK  y.  FBITZ. 

{lis  Iowa,  438,  88  N.  W.  961.1 

CHATTEL  MOBTOAOB— Defoctiye  DMerlptioiL— A  mortgage 
of  "101  yearlings  and  two-year-olds,  branded  with  the  letter  P  on 
left  hip,"  without  specifying  the  species  of  animals  mortgaged,  i» 
good  as  between  the  mortgagor  and  the  mortgagee,  where  the  mort- 
gage recites  that  it  is  for  purchase  money,  and  that  the  property  is 
b  possession  of  the  mortgagor  in  the  county  designated,     (p.  169.) 

OHATTEIi  M0BTOAOE8.— Parol  Bvidenee  ig  Admissible  for 
the  purpose  of  identifying  the  property  actually  mortgaged,  aa 
where  it  serves  to  supply  the  description  of  the  subject  matter  in- 
tended to  be  embraced  by  it,  and  not  to  change  the  description, 
(pp.  167,  168.) 

CnOATTEIi  MOBT0AOB  Defective  In  Deserij^on— Notice  of 
to  AtUchlng  Oreditoxa— Though  the  description  in  a  mortgage  of 
ehattels  intended  to  be  embraced  therein  is  too  imperfect  to  impart 
aotiee  to  an  attaching  creditor,  yet  if  he  or  his  attorney  is  advised 
hy  the  mortgagor  that  all  of  his  cattle  were  mortgaged  to  Morris  is 
Co.,  and  an  examination  is  thereupon  made  ot  the  records,  and  the 
mortgage  in  question  discovered,  such  creditor  must  be  regarded  as 
having  actual  notice  of  the  mortgage  and  that  the  property  im- 
perfectly described  is  subject  thereto,     (p.  169.) 

A  OHATTBIi  MOBTOAaS  la  not  Void  as  Against  Attaching 
Oredltors  because  it  incorrectly  states  that  the  steers  covered  thereby 
are  all  the  steers  owned  by  the  mortgagor,  if  such  creditor  has  readv 
means  of  aaeertaining  what  animals  are  included  in  the  aortgage. 
(p.  170.) 


166  Amebioan  State  Eepobts^  Yoi«.  91.  [Iowa, 


CHATTEL  HOBTOAOB.— The  Iat«niiliitfliigt  Afttr  th« 
tlon  of  a  Mdrtgage,  of  the  animals  subjeet  thereto  with  othere  cannot 
render  it  void  for  indefinitenees.    (p.  170.) 

Action  inyolving  the  right  to  the  possession  of  personal  prop- 
erty, the  plaintiff  claiming  as  attaching  creditor  of  the  defendant^ 
and  the  interveners  tinder  mortgages  executed  by  him.  Jadg- 
ment  for  the  plaintiff,  from  which  the  interreners  appealed. 

Hubbard,  Dawley  &  Wheeler,  for  the  appellants. 

Crisman,  Trewin  &  Holbrook,  for  the  appellees. 


SHEBWIN,  J.  July  20,  1898,  the  interveners  sold  and 
delivered  to  the  defendant  Fritz  one  hundred  and  one  yearling 
and  two-year-old  steers  at  the  agreed  price  of  two  thousand  three 
liundred  and  twenty-three  dollars,  and  took  his  note  therefor, 
and  a  chattel  mortgage  on  the  cattle  securing  the  same.  The 
deocription  of  the  cattle  in  the  mortgage  is  as  follows:  ''One 
hundred  and  one  yearlings  and  two-year-olds,  branded  with  the 
letter  P  on  left  hip.*'  ^^  The  mortgage  recites  that  it  is 
given  for  the  purchase  price,  that  the  property  is  unencumbered, 
4ind  that  it  is  in  possession  of  the  mortgagor  in  ''Bodman,  Palo 
Alto  county,  Iowa/'  It  was  properly  recorded  on  the  sixth  day 
of  August,  1898.  On  the  twenty-first  day  of  October,  1898,  the 
interveners  sold  and  delivered  to  Fritz  two  two-year-old  steers 
«nd  eighteen  yearling  steers  for  the  agreed  price  of  five  hundred 
and  thirty  dollars;  and  took  his  note  therefor,  secured  by  a 
mortgage  executed  on  the  same  day,  and  properly  recorded  on 
the  first  of  November,  1898.  The  following  is  the  description 
of  the  property  given  in  the  mortgage :  "Two  two-year-old  steers 
and  eighteen  yearling  steers,  ....  being  all  of  the  property  of 
the  kind  and  description  named  now  owned  by  me.  Said  prop* 
erty  is  free  from  all  liens  and  encumbrances,  and  is  now  in  my 

possession  on  the quarter  of  section  No.  20  of  township 

No.  96,  of  range  No.  31,  Palo  Alto  county,  state  of  Iowa.** 
These  mortgages  were  both  recorded  before  the  levy  of  the  at- 
tachment in  this  case,  and  the  plaintiff,  through  his  attorney, 
had  in  his  possession  certified  copies  of  both  when  the  levy  was 
directed  and  made.  '  It  is  also  clearly  proven  that  the  plaintiff's 
attorneys  had  been  told  by  Fritz  before  the  levy  that  his  cattle 
were  mortgaged  for  about  all  they  were  worth  to  Morris  ft  Co., 
or  to  Morris  and  his  partner.  The  name  of  the  mortgagee  given 
by  Mr.  Fritz  is  not  clearly  shown. 
The  first  question  for  solution  in  this  case  is  that  of  the  valid* 


Jan.  1902.]  FucK  v.  Fbttx.  167 

ity  of  the  first  mortgage  as  between  the  mortgagor  and  the  mort- 
gagee,  for  it  is  evident  that,  if  it  is  not  a  valid  mortgage  as  be- 
tween them^  the  controversy  thereoyer  between  the  mortgagee 
and  the  attaching  creditor  is  at  an  end.  No  particular  formal* 
ity  is  necessary  to  make  a  mortgage  yalid  as  between  the  mort- 
gagor and  the  mortgagee:  Oloyer  y.  McGilvray^  63  Ala.  508; 
Janes  v.  Penny,  76  Qa.  797;  Wihnerding  v.  Mitchell,  42  N.  J. 
L.  476 ;  Merchants'  etc.  Say.  Bank  y.  Lovejoy,  84  Wis.  601,  55 
N.  W.  108 ;  Whiting  v.  Eichelberger,  16  Iowa,  422.  Nor,  *** 
as  between  them,  need  it  be  in  writing:  5  Am.  &  Eng.  Ency.  of 
Law,  2d  ed.,  954,  and  notes. 

The  kind  or  species  of  yearlings  and  two-year-olds  mentioned 
in  the  mortgage  is  not  stated,  and  the  question  arises  whether, 
as  between  the  parties  to  the  instrument,  the  kind  of  stock  in- 
tended to  be  mortgaged  by  them  may  be  shown  by  parol.  It  is 
the  general  rule,  sustained  by  nearly  all  of  the  authorities,  that 
parol  evidence  is  admissible  for  the  purpose  of  identifying  the 
property  actually  mortgaged — ^in  other  words,  it  is  not  necessary 
that  the  property  be  so  particularly  described  that  it  may  be  se- 
lected or  pointed  out  by  anyone  from  an  inspection  of  the  mort- 
gage itself;  and  the  cases  are  numerous  in  which  a  resort  to 
parol  evidence  for  the  purpose  of  identification,  even  where  the 
ri^ts  of  third  parties  haye  been  affected  thereby,  has  been  sus- 
tained«  In  this  case,  however,  something  more  than  the  mere 
selecting  or  pointing  out  of  the  particular  animals  of  a  certain 
kind  or  species  named  in  the  mortgage  is  sought.  Here  the  ap- 
pellant seeks  to  show  by  parol  what  the  species  or  kind  is  that 
the  language  of  the  mortgage  was  intended  to  cover.  So  far  as 
tne  description  goes,  it  is  absolutely  correct,  and  the  admission 
of  parol  evidence  as  to  the  species  of  property  intended  to  be 
covered  VberAj  will  not  change  or  enlarge  it  so  as  to  make  it 
cover  something  not  included  in  its  terms,  for  it  purports  to 
cover  a  given  number  of  head  of  some  kind  of  stock.  This  is  at 
once  apparent  upon  examination  of  the  instrument,  so  that  such 
evidence  would  simply  supply  a  missing  word  in  the  description 
of  the  stock.  It  is  held  that,  "where  parol  evidence  serves  to 
apply  the  description  of  the  subject  matter  intended  to  be  em- 
braced by  it,  and  not  to  change  the  description,  it  is  admissible" : 
Nichols  Y.  Barnes,  3  Dak.  148,  14  N.  W.  110.  The  principle 
involyed  here  is  not  different  from  that  which  permits  identifica- 
tion of  the  property  by  parol  evidence  when  the  mortgage  cov- 
ers "all  personal  property  of  which  the  mortgagors  are  *** 
possessed^"  and  the  cases  are  many  in  which  it  is  held  that 


168 


American  State  Reports,  Vol.  91.  [Iowa, 


such  a  mortgage  is  valid  as  to  chattels  in  the  possession  of  the 
mortgagor  at  tiie  time  of  its  execution,  and  that  parol  evidence 
is  admissible  to  identify  them :  Harris  v.  AUen,  104  N.  C.  86, 
10  S.  E.  127.  It  is  a  general  rule,  deducible  from  the  authori- 
ties, that  parol  evidence  is  always  admissible  to  identify  mort- 
gaged chattels:  Cobbey  on  Chattel  Mortgages,  sec.  166,  and 
cases  cited  therein.  "Descriptions  of  property  do  not  of  them- 
selves identify  the  property,  but  furnish  the  means  or  data  from 

which  the  property  is  to  be  identified Descriptions  of 

property  in  chattel  mortgages  are  to  be  applied  and  interpreted 
in  the  light  of  the  facts  and  circumstances  known  to  the  parties 
at  the  time  the  mortgage  be  made*' :  Cobbey  on  Chattel  Mort- 
gages, sec.  155 ;  5  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  964,  and 
note  4 ;  Smith  v.  McLean,  24  Iowa,  322.  And  see  note,  14  Am. 
St.  Bep.  239 ;  Barrett  v.  Pisch,  76  Iowa,  663,  14  Am.  St.  Rep. 
238,  41  N.  W.  310. 

The  appellant  contends  that  the  omission  to  name  the  species 
of  stock  mortgaged  creates  a  patent  ambiguity  in  the  instrument 
which  cannot  be  explained  or  helped  by  parol  evidence,  and  says 
that  it  might  apply  as  well  to  ''cattle,  heifers,  steers,  bnllsy 
horses,  mules,  sheep,  swine  or  goats.''  We  quite  agree  with  the 
argument  that  it  may  be  so  applied  when  standing  alone,  but,. 
such  being  the  case,  a  latent  ambiguity  is  created,  and  nothings 
more,  for  "if  the  language  of  the  document,  though  plain  in  it- 
self, applies  equally  well  to  more  objects  than  one,  evidence  may 
be  given  both  of  the  circumstances  of  the  case  and  of  statements 
made  by  any  party  to  the  document  as  to  his  intentions  in  refer- 
ence to  the  matter  to  which  the  document  relates*' :  Stephen  on 
Digest  Evidence,  169;  Greenleaf  on  Evidence,  sees.  289,  290, 
297;  Chambers  v.  Watson,  60  Iowa,  339,  46  Am.  Rep.  70,  14 
N.  W.  336;  Beach  on  Modem  Contracts,  sec.  742;  St.  Luke's 
Home  for  Indigent  Christian  Females  v.  Association  etc.  for  In- 
digent Females,  62  N.  Y.  191,  198,  11  Am.  Rep.  697.  It 
is  also  competent  to  **•  prove  the  fact  that  the  language 
''yearlings  and  two-year-olds"  had  a  particular  meaning,  as  used 
by  the  grantor,  if  such  is  the  case;  for,  if  he  was  in  the  habit 
of,  or  if  in  this  particular  case  he  used  the  term  with  a  specific 
meaning,  it  may  be  shown  by  parol.  That  he  did  so  use  it  is 
almost  conclusively  evidenced  by  the  mortgage  itself,  because  it 
says  that  it  is  given  for  the  purchase  price  of  the  yearlings  and 
two-year-olds,  and  that  they  are  in  his  possession.  We  are 
clearly  of  opinion  that  parol  evidence  is  competent  to  show  the 
species  of  stock  mortgaged  in  this  instance,  and  that  the  mort- 


JiD.  1902.]  Fbick  v.  Fritz.  169 

g^e  wast  be  held  Talid  and  enforceable  as  against  the  mort- 
gagor: Cobbej  on  Chattel  Mortgages,  sees.  186-188;  Clapp  v. 
Trowbridge,  74  Iowa,  550,  38  N.  W.  411;  Piano  Mfg.  Co.  t. 
Griffith,  75  Iowa,  102,  39  N.  W,  214;  Lnce  v.  Moorchead,  77 
Iowa,  367,  42  N.  W.  328 ;  Smith  v.  McLean,  24  Iowa,  322 ;  CaU 
T.  Gray,  37  N.  H.  428 ,  75  Am.  Dec.  141 ;  Leighton  v.  Stuart, 
19  Neb.  546,  26  N.  W.  198. 

If  valid  as  to  the  mortgagor,  in  what  situation  does  it  leave 
ike  attaching  creditors?  All  of  the  steers  bonght  of  the  inter* 
Tenen,  except  a  few  that  died,  were  in  the  possession  of  Fritz, 
within  a  mile  or  so  of  Rodman  at  the  time  of  the  levy.  If  it  be 
eoneeded  that  fhe  mortgage  of  Jnly  20th  did  not  impart  notice 
to  the  plaintiff  because  of  insufficient  description  of  the  property, 
we  still  think  the  plaintiff  had  such  actnal  notice  and  knowledge 
of  fhe  mortgage  as  to  make  it  good  as  to  him.  In  the  first  place, 
Hb  attorney  visited  Mr.  Fritz  at  his  home,  where  the  cattle  were 
kept,  and  in  an  effort  to  secure  the  payment  of  the  claims  against 
him  sued  on  herein  asked  him  if  he  ''didn't  have  some  cattle 
that  he  conld  secure  him  on."  He  was  then  told  by  Mr.  Fritz 
that  his  cattle  were  mortgaged  for  all  tiiey  were  worth  to  Morris 
k  Co.,  or  to  Morris  and  his  partner.  In  the  second  place,  the 
tttoraey  himself  testifies  that  after  his  visit  to  Fritz,  and  before 
fte  levy,  he  made  an  examination  of  the  records  of  Palo  Alto 
county  for  the  express  purpose  of  finding  what  ^^^  chattel  mort- 
gages Fritz  had  on  his  property,  and  says  that  he  found  only 
the  two  mortgages  involved  in  this  case,  both  of  which  purported 
to  have  been  given  to  the  interveners  by  Fritz.  It  cannot  be 
doahted,  then,  that  the  attorney  had  actual  knowledge  that 
Fritz's  cattle  were  all  mortgaged.  He  knew  that  the  interveners 
were  the  mortgagees  because  no  other  mortgages  appeared  of  rec- 
ord. He  knew  that  the  mortgagees  were  given  for  the  purchase 
price  of  the  stock,  because  they  so  recited;  and  he  also  knew 
▼here  the  stock  could  be  found,  because  it  was  declared  to  be  in 
the  possession  of  the  mortgagor.  By  the  information  received 
{Tom  Fritz  and  by  the  information  received  from  the  record  of 
the  mortgages  the  plaintiff's  attorney  was  fully  advised  that  all 
of  the  cattle  then  in  the  possession  of  Fritz  were  in  fact  mort- 
gaged to  these  interveners.  He  was,  then,  in  possession  at  least 
of  Buch  knowledge  as  would  put  him,  as  a  reasonable  man,  upon 
inquiry:  Allen  v.  McCalla,  25  Iowa,  464,  96  Am.  Dec.  66.  In 
flie  case  of  Van  Evera  v.  Davis,  51  Iowa,  637,  2  N.  W.  509,  no 
MtTial  notice  was  shown ;  and  in  King  v.  Howell,  94  Iowa,  208, 

62  U.  W.  738,  where  there  was  an  absolutely  false  description. 


170  Akbbicak  State  Bbfobtb^  Vol.  91.         [Iowa, 

80  that  an  examination  of  the  record  showed  a  mortgage  on  prop* 
erty  that  did  not  ezist^  it  is  said  that  ''a  statement  to  the  sheriff 
that  such  com  is  mortgaged  only  gives  actual  notice  of  the 
mortgage  as  it  is  written/'  and^  as  applied  to  the  facts  in  tliat 
case,  it  is  correct 

It  is  argued  that  the  mortgage  of  October  21,  1898,  ia  not 
good  as  against  this  attachment,  because  it  says  that  the  steers 
covered  thereby  are  all  the  steers  owned  by  the  mortgagor,  when, 
as  a  matter  of  fact,  he  owned  the  one  hundred  and  one  others; 
but  this  statement  could  not  have  misled  the  plaintiff,  for  be 
had  the  ready  means  of  finding  out  what  part  of  the  entire 
bunch  of  steers  was  covered  by  the  second  mortgage.  It  cannot 
be  said  that  the  mortgage  is  void  for  indefiniteness,  because  it 
covers  a  part  of  an  unseparated  herd,  for  when  the  mort^^age 
was  given  this  stock  was  separate  from  the  rest,  and  was  as  dis- 
tinct and  as  certainly  ^^  pointed  out  and  identified  as  is  pos- 
sible in  any  case.  The  fact  that  they  were  afterward  put  with 
the  other  steers  would  not  bring  the  case  within  the  rule  oon- 
tended  for  under  the  holding  in  Parker  v.  Chase,  62  Yt.  206, 
22  Am.  St.  Bep.  99,  20  Atl.  198 ;  Meredith  v.  Kunze,  78  Iowa, 
111,  42  N.  W.  619,  and  other  cases  cited.  The  correct  part  of 
the  description  in  this  mortgage  is  su£Bcient,  and,  even  without 
the  actual  notice  had  by  the  plaintiff,  the  false  part  of  the  stat^ 
ment  will  be  rejected,  and  the  mortgage  held  good:  Jones  on 
Chattel  Mortgages,  sec.  61 ;  Kenyon  v.  Tramel,  71  Iowa,  698, 
28  N.  W.  37 ;  Smith  v.  McLean,  24  Iowa,  322. 

We  think  both  of  the  mortgages  under  consideration  good  as 
against  the  attachment  levied  herein.  This  holding  renders  it 
unnecessary  to  consider  the  other  matters  complained  of. 

The  judgment  of  the  district  court  is  reversed. 

Justicas  Desmer  and  BCeOlain  joined  in  a  diisenting  opinion  writt«B 
by  the  latter.  He  claimed  that  the  description  of  'UOl  yearlinga  and 
two-year-olds,  branded  with  the  letter  F  on  left  hip''  was  entirely 
insufficient,  and  that  parol  evidence  was  not  admissible  to  provs  what 
the  parties  supposed  the  mortgage  to  cover. 


The  Suf/Mency  of  the  DtseriptUm  of  the  subject  matter  of  a  chattel 
mortgage  is  considered  in  the  monographic  note  to  Barrett  v.  Fiseh, 
14  Am.  St.  Bep.  239-247.  As  to  the  description  of  mortgaged  live- 
stock, see,  also,  First  Nat.  Bank  v.  Bagsdale,  158  Mo.  668«  81  Am. 
St.  Bep.  332,  59  8.  W.  987;  Oxsheer  v.  Watt,  91  Tex.  124,  66  Am,  St. 
Bep.  863,  44  S.  W.  466;  Avery  v.  Popper,  92  Tex.  337,  71  Am.  St.  Eep. 
840,  49  8.  W.  219,  50  S.  W.  122;  State  Bank  v.  Felt,  99  Iowa,  688,  61 
Am.  St.  Bep.  253,  68  N.  W.  818;  Huse  v.  Estabrooks,  67  Vt.  288,  48 
Am.  St.  Bep.  810,  31  Atl.  2M:  Andre^g  v.  Brunskill,  87  Iowa,  351,  43 
Am.  St.  Bep.  388,  54  X.  W.  135.    The  description  in  a  chattel  mortgage 


Jan.  1902.]    Tolsbton  &  Stetbon  Co.  v.  Bobbbts.  171 

is  niffieisnty  if  it  will  enable  third  persons  to  indentif  j  the  property 
when  aided  hj  sneh  inqniries  as  the  instrument  suggests:  Bejnolds  t. 
Strong^  10  K.  Dak.  81,  88  Am.  St.  Bep.  680,  85  N.  W.  987.  Parol 
evidence  la  admissible  to  identify  the  property:  Beinstein  v.  Boberts. 
34  Or.  87,  75  Am.  St  Bep.  564,  55  Pae.  90;  note  to  Barrett  v.  Fiseh,  14 
Am.  St.  Bep.  239. 


TOLEBTON  ft  STETSON  CO.  ▼.  ROBERTS. 

[115  Iowa,  474^  88  N.  W.  966.] 

MOBTQAOBB— Application  of  Proceeds  of,  WImh  may  be  Oon- 
trotted  by  tlia  Mortgagee.— If  a  mortgage  is  given  to  secure  several 
notes,  upon  some  of  which  there  are  indorsers  or  sureties,  the  mort- 
gagee is  entitled  to  apply  any  moneys  received  from  the  mortgaged 
property  on  its  sale  to  the  payment  of  indebtedness  not  otherwise 
secured,     (p.  172.) 

MOBTOAOE— Application  of  Payments.— When  payment  on  a 
mortgage  is  the  result  of  compulsion,  its  application  is  not  to  be 
governed  by  the  rules  governing  voluntary  payments,     (p.  172.) 

MUVUAIi  MISTAKE  OF  LAW  with  reference  to  the  manner 
in  which  the  proceeds  of  mortgaged  property  will  be  applied  in  the 
event  of  its  foreclosure  does  not  entitle  a  party  to  relief,  nor  con- 
stitute a  sufficient  reason  for  not  applying  such  proeeeds  as  the  law 
directa     (p.  174.) 

Stdt  to  foreclose  a  chattel  mortgage  given  by  the  defendant 
M.  J.  Roberts  to  secure  the  payment  of  notes  executed  by  him 
and  his  cosureties.  P.  H.  Plumb  intervening,  sought  to  have 
the  proceeds  of  the  mortgaged  property  applied  to  the  satisfac- 
tion of  certain  of  the  notes  on  which  he  was  a  surety,  and  which 
matured  prior  to  the  notes  on  account  of  which  the  plaintiff 
sought  to  foreclose.  The  trial  court  granted  the  relief  prayed 
for  by  the  intervener,  and  the  plaintiff  appealed. 

J.  A.  Berry  and  D.  M.  Kelleher,  for  the  appellant 

William  Haxlett,  for  the  appellees. 

*^  McCSLAIN,  J.  Plaintiff,  as  creditor  of  the  A.  S.  Rob- 
erts Shoe  and  Grocery  Company,  which  had  made  an  assignment 
for  the  benefit  of  creditors,  purchased  from  the  assignee  a  stock 
of  goods  belonging  to  the  company  and  resold  the  same  to  de- 
fendant M.  J.  Roberts,  receiving  part  payment  in  cash,  and  the 
notes  secured  by  the  chattel  mortgage  in  this  suit  for  the  balance 
of  the  purchase  price,  which  was  made  up  of  four  hundred  dol- 
krs,  balance  after  applying  the  cash  payment  to  the  amount 


172  American  State  Reports,  Vol.  91.         [I 

which  plaintiff  had  paid  for  the  stocky  and  the  indebtedne^  of 
the  A.  S.  Boberts  Shoe  and  Grocery  Company  to  plaintiff.     By 
this  transaction  the  plaintiff  was  attempting  to  secure  payment 
for  what  it  had  advanced  in  the  purchase  of  the  stock  and  its 
indebtedness  against  the  former  company.    On  the  notes,  which 
represented  the    four  hundred  dollars  unpaid  balance  of  the 
money  paid  out  by  plaintiff  in  the  purchase  of  the  stock,  and 
which  were  the  first  notes  falling  due  secured  by  the  chattel 
mortgage,  plaintiff  also  secured  the  signature  of  the  intervener. 
Of  the  notes  on  which  intervener  was  security,  three  remain  in 
whole  or  in  part  unpaid,  as  do  also  a  considerable  number  of 
notes,  also  secured  by  the  mortgage,  which  were  not  signed  by 
intervener.    Plaintiff  in  the  action  as  originally  brought  sought 
to  foreclose  its  mortgage  and  apply  the  proceeds  of  the  mart* 
gaged  property  to  the  payment  of  the  notes  not  signed  by  in* 
tervener,  and  intervener,  by  his  intervention,  attempts  to  com- 
pel plaintiff  to  apply  the  proceeds  ^'^  of  the  mortgaged  prop-* 
erty  first  to  the  satisfaction  of  the  notes  on  which  intervener  is 
liable  as  surety.    Aside  from  any  agreement  between  the  partieSy 
intervener  is  not  entitled  to  have  the  proceeds  of  the  mortgaged 
property  first  applied  in  satisfaction  of  the  notes  on  which  he  is 
surety,  even  though  in  order  of  maturity  they  precede  the  other 
note  secured  by  the  mortgage.    A  court  of  equity  will  allow 
the  mortgagee  to  first  apply  the  proceeds  to  the  satisfaction  of 
indebtedness  not  otherwise  secured,  thus  realizing  the  full  bene- 
fit of  the  additional  security,  if  the  proceeds  of  the  mortgaged 
property  are  not  sufficient  to  satisfy  the  entire  debt:  Small  t. 
Older,  67  Iowa,  326, 10  N.  W.  734;  Hanson  v.  Manley,  72  lowa^ 
48,  33  N.  W.  357 ;  Citizens'  Bank  v.  Whinery,  110  Iowa,  390^ 
81  N.  W.  694 ;  Shellabarge  v.  Binns,  18  Kan.  346 ;  First  Nat. 
Bank  v.  Finck,  100  Wis.  446,  76  N.  W.  608 ;  Schuelenburg  t. 
Martin,  2  Fed.  747 ;  Nichols  v.  Knowles,  17  Fed.  494 ;  Jones 
on  Chattel  Mortgages,  sees.  638,  639.    While  the  mortgagor  in 
making  payments  on  the  indebtedness  covered  by  the  mortgage 
may,  no  doubt,  direct  application  of  payments  as  he  sees  fit,  if 
he  does  not  do  so  a  court  of  equity  will  adjust  the  application  of 
the  proceeds  of  the  mortgaged  property  on  foreclosure  in  ac- 
cordance with  its  own  notions  of  justice,  and  the  mortgagor  can- 
not control  such  application:  XJnited  States  v.  Eirkpatrick,  9 
Wheat.  720,  737 ;  Field  v.  Holland,  6  Cranch,  8,  28 ;  Lazarus  v. 
Freidheim,  51  Ark.  371,  11  S.  W.  518;  Applegate  v.  Eoons,  74 
Ind.  247;  Fairchild  v.  Holly,  10  Conn.  175,  184;  Robinson  v. 
Doolittle,  12  Vt.  216.     Where  the  payment  is  the  result  of  com- 


Jan.  1902.]    Tolebton  &  Stetsoiv  Co.  v.  Roberts.  173 

pulsion,  its  application  is  not  to  be  governed  by  the  rules  whieb 
goyem  voluntary  payments:  Armstrong  v.  McLean,  153  N.  Y. 
490,  47  N.  E.  912 ;  Orleans  Co.  Nat.  Bank  v.  Moore,  112  N.  Y. 
543,  20  N.  E.  357,  8  Am.  St.  Sep.  775.  The  last  two  cases 
seem  to  hold  that  under  such  circumstances  the  proceeds  of  the 
property  should  be  applied  pro  ^'^  rata  to  the  notes  secured, 
without  regard  to  priority  of  maturity,  and  without  regard  to 
other  security  which  the  creditor  may  have  for  some  of  such 
notes;  but  the  right  of  the  mortgagee  to  have  the  proceeds  ap- 
plied to  the  notes  not  otherwise  secured,  in  preference  to  those 
on  which  he  has  other  security,  has  been  fully  recognized  by  this 
court,  and  we  see  no  occasion  to  change  the  rule  which  we  have 
already  adopted  on  this  subject. 

These  are  the  principles  which  must  control  in  the  decision  of 
this  case,  and  they  are  not  seriously  controverted  by  the  inter- 
vener. But  he  contends  that  when  the  notes  were  executed,  a 
collateral  oral  agreement  was  entered  into  between  him  and 
plaintiff  that  the  mortgage  security  should  be  held  first  for  the 
payment  of  the  notes  on  which  he  was  surety,  and  that  this 
agreement  must  control  in  the  disposition  of  the  proceeds  of  the 
mortgaged  property.  We  will  not  follow  counsel  in  the  discus- 
sion of  the  question  whether  the  effect  of  the  mortgage  can  thus 
be  controlled  by  a  collateral  oral  agreement,  for  we  think  that 
no  such  agreement  was  made.  It  appears  that  there  was  some 
conversation  between  the  representative  of  plaintiff  and  the  in- 
tervener to  file  effect  that  intervener,  as  surety  on  the  first 
series  of  notes,  was  secured  by  the  mortgage.  In  a  sense, 
tins  was  the  result  of  the  mortgage  itself;  for  the  plaintiff 
would  be  required  to  satisfy  the  entire  indebtedness,  in- 
cluding the  first  series  of  notes,  out  of  the  proceeds  of  the 
mortgaged  property,  if  practicable.  It  was  also  true  that  the 
probability  of  tiie  payment  of  the  first  series  of  notes,  on  which 
intervener  was  surety,  was  greater  than  that  of  the  notes  subse- 
quently falling  due;  and  this  is  all  that  was  probably  intended 
to  be  stated  by  plaintiff's  representative.  But  even  if,  as 
daimed,  the  representative  of  plaintiff  stated  to  the  intervener 
that  these  'Vere  the  first  notes,  and  they  would  be  paid  from  the 
first  part  of  the  stocV  this  statement,  in  the  connection  in 
which  it  was  used,  was  plainly  a  statement  with  reference  to  his 
understanding  ^^*  of  the  law,  and  not  an  agreement  intended 
to  yaiv  the  legal  effect  of  the  mortgage.  It  seems  to  have  been 
aranmed  (erroneously,  of  course)  by  both  the  representatives 
of  plaintiff  and  the  intervener  that  in  case  of  foreclosure  the 


174  AiCBBiOAN  Statb  Bxpostb^  Vol.  91.  [Iowa, 

proceeds  wotdd^  as  matter  of  law^  be  applied  in  ibis  way ;  but, 
as  we  read  the  record,  the  testimony  of  intervener  himself  does 
not  show  that  either  party  supposed  that  he  was  entering  into 
a  definite  collateral  agreement  to  vary  the  legal  effect  of  the 
provisions  of  the  chattel  mortgage.    It  is  clear,  without  cita- 
tion of  authorities,  that  a  mutual  mistake  of  law  with  reference 
to  the  effect  of  the  transaction  would  not  entitle  the  intervener 
to  any  relief.    We  must,  "therefore,  hold  that  the  plaintiff  had 
the  right  to  foreclose  his  chattel  mortgage  as  to  the  notes  not 
signed  by  intervener  as  surety,  and  apply  the  proceeds  of  the 
property  to  the  satisfaction  of  those  notes,  without  regard  to  the 
payment  of  the  notes  on  which  intervener  was  surety,  though, 
of  course,  if  any  surplus  remains  after  the  payment  of  the  notes 
not  otherwise  secured,  such  surplus  must  be  applied  to  the  notes 
signed  by  intervener,  leaving  him  liable  only  for  any  unsatisfied 
balance.    Intervener  was  therefore  not  entitled  to  the  relief 
asked  in  his  petition,  and  his  intervention  should  have  been 
dismissed. 
Reversed. 


A  Mortgagee  is  Bau$id  to  Apply  the  Proceeds  of  a  sale  of  th« 
mortgaged  property  to  the  mortgage  debt,  without  any  direction 
to  that  effect  from  the  debtor:  Montague  ▼.  Btelts,  87  S.  C.  200, 
34  Am.  St  Bep.  736,  15  8.  E.  968;  Boyd  v.  JoneSy  96  Ala.  305,  88 
Am.  St.  Bep.  100,  11  South.  405.  When  there  are  several  mortgai^ 
notes,  the  proceeds  must  be  distributed  among  the  different  hold- 
ers, irrespective  of  the  dates  of  their  maturity  or  of  their  aesi^- 
ment:  Penzel  v.  Brookmire,  51  Ark.  105,  14  Ark.  23.  The  right  of 
a  creditor  to  apply  a  pa^onent  made  by  his  debtor  to  one  claim 
rather  than  another  is  conilned  to  cases  of  voluntary  payment.  And 
moneys  realised  from  a  forecloeure  sale  are  not  voluntary  payments: 
Orleans  County  Nat.  Bank  v.  Moore,  112  N.  Y.  543,  8  Am.  St  Bep. 
775,  20  N.  B.  857. 


Jan.  1902.]  Dowhimq  «•  Nicholsoh,  175 


DOWNING  T.  NICHOLSON. 

[115  lowm,  493,  88  N.  W.  1064.] 

WUJA— A  Derlae  to  Kephews  does  not  Inclndo  grandnepbews, 
QBless  there  ie  something  in  the  context  to  show  that  the  testator  in- 
tended to  inelnde  them,  or  there  is  such  an  ambiguity  as  to  au- 
thorize extrinsic  evidence  for  the  purpose  of  showing  that  the  grand- 
nephews  were  intended  to  be  included,     (p.  176.) 

wnJUi— Devise  to  a  Olass— Oonstmetion  of.— Since  a  will 
speaks  from  the  date  of  the  testator's  death,  the  members  of  a 
dass^  where  there  is  a  deyise  to  a  class,  must,  prima  facie,  be  de- 
termined upon  the  death  of  the  testator.  If,  however,  the  will  in- 
dicates a  contrary  intent,  that  intent  will  be  adopted  and  given 
effect-     (p.  177.) 

WIIX8  —Deyise  to  a  Class,  Whether  Affected  by  Statute  Pro- 
viding tliat  Heirs  of  a  Deceased  Devisee  May  Inlierit  His  Share.— 
As  a  general  rule,  a  statute  providing  that  if  a  devisee  dies  before 
the  testator,  his  heirs  inherit  the  property,  unless  a  contrary  intent 
appears  from  the  will,  applies  to  devises  to  a  class  as  well  as  to 
devises  where  the  devisees  are  specially  named,     (p.  179.) 

WILLS.— A  Devise  to  a  Class,  One  of  the  Members  of  Which  is 
Dead  When  the  Will  is  Executed,  cannot  operate  for  the  benefit  of 
his  heirs,  though  the  statute  of  the  state  declares  that  if  a  devisee 
dies  before  the  testator,  his  heirs  shall  inherit  the  property  devised 
to  him,  unless,  from  the  terms  of  the  will,  a  contrary  intent  is 
manifest.  Therefore,  a  devise  to  the  testator's  nephews  and  nieces 
fannot  benefit  a  son  of  a  niece  who  died  long  before  the  will  was  made, 
(p.  180.) 

Action  by  John  Downing,  grandnephew  of  John  Nicholson, 
seeking  to  be  declared  a  devisee  under  the  will  of  the  latter. 
Judgment  in  favor  of  the  plaintiff,  and  the  executor  appealed. 

D.  J.  Mnrphy,  for  the  appellant. 

W.  S.  Hart,  for  the  appellee. 

^^  DEEMES,  J.  John  Nicholson  died  testate  Jnne  2, 1898. 
His  will  was  executed  May  19th  of  the  same  year.  This  will 
made  certain  bequests  to  relatives  and  others,  and  contained  the 
following  residuary  clause:  ''After  paying  all  the  foregoing 
amounts,  I  give  and  bequeath  the  balance  of  my  property  to  be 
divided  equally  between  all  my  nephews  and  nieces.'^  John 
Downing,  the  applicant  herein,  is  a  son  of  Mary  Fitzpatrick, 
nee  Nicholson;  and  Mary  Fitzpatrick  was  a  daughter  of 
Michael  Nidiolson,  a  brother  of  the  deceased.  Mrs.  Fitzpat- 
rick, applicant's  mother,  died  June  15,  1883,  which,  as  will  be 
observed,  was  long  prior  to  the  time  John  Nicholson  made  his 
will.  John  Downing;  who  is  a  grandnephew  of  the  deceased, 
claims  that  he  is  entitled  to  take,  under  the  residuary  clause  of 
the  will,  the  share  his  mother  would  have  received,  had  she  out- 


176  American  State  Sepobts,  Vol.  91.  [Iowa, 

lived  the  testator.    This  clause  devises  the  remainder  of  his 
property  to  testator's  nephews  and  nieces  as  a  class^  and  appli- 
cant is  not  one  of  that  class.    His  claim,  however,  is  that  he  is 
a  substituted  legatee,  and  as  such  is  entitled  to  the  share  his 
mother  would  have  received  had  she  outlived  the  testator.     A 
devise  to  nephews  will  not  include  grandnephews  unless  there  be 
something  in  the  context  which  shows  that  testator  intended 
to  include  them,  or  unless  there  be  such  an  ambiguity  as  author- 
izes extrinsic  evidence  for  the  purpose  of  showing  that  grand- 
nephews  were  intended  to  be  included.    The  case  was  decided 
by  the  trial  court  on  the  pleadings,  and  the  facts  we  have  cited 
are  the  only  ones  admitted  ^^^  by  the  parties.    True,  some- 
thing is  said  in  the  petition  about  the  int^tion  of  the  testator; 
but  this  is  denied  in  the  answer,  and  therefore  cannot  be  treated 
as  a  fact  in  the  disposition  of  the  case.    The  proposition  of  law 
announced  is  too  plain  for  controversy,  and  we  need  onlj  cite 
in  its  support  In  re  Woodward,  117  N.  Y.  622,  23  KT.  E.  120, 
and  cases  tiierein  cited.    Applicant  practically  concedes   this 
rule,  but  he  relies  on  section  3281  of  the  Code,  which  readfl  as 
follows :  *T[f  a  devisee  die  before  a  testator,  his  heirs  shall  inherit 
the  property  devised  to  him,  unless  from  the  terms  of  the  will 
a  contrary  intent  is  manifest.'^    The  mischief  this  statute  was 
enacted  to  cure  was  the  common-law  rule  to  the  effect  that  a  de- 
vise to  one  who  dies  before  the  death  of  the  testator  lapses :  Me- 
Menomy  v.  McMenomy,  22  Iowa,  148.    Nearly  every  state  in 
the  Union  has  adopted  statutes  similar  to  this,  although  few 
are  as  comprehensive.     Some  of  them  apply  only  to  cases  where 
the  original  beneficiary  was  a  child  or  other  lineal  descendant 
of  the  testator;  some  to  cases  where  the  beneficiary  is  a  child 
or  other  relative,  and  dies  leaving  issue  surviving  the  testator 
(and  in  some  of  the  states  of  this  group  the  statute  applies  only 
to  certain  classes  of  relatives,  who  are  clearly  pointed  out  by  the 
statute) ;  and  some  to  all  cases,  no  matter  what  relation  the 
beneficiary  is  to  the  testator,  or  whether  the  beneficiary  leaves 
descendants  or  not :  Sec  statutes  and  cases  cited  and  referred  to 
in  18  Am.  ft  Eng.  Ency.  of  Law,  765,  766  et  seq.    The  remedy 
for  this  mischief  of  the  common  law  was  first  adopted  in  this 
state  with  the  code  of  1861,  which  was  in  the  same  language  as 
the  statute  under  consideration,  save  that  in  place  of  the  word 
"property"  the  word  "amount"  is  used.     Section  2319  of  the 
Revision  is  a  copy  of  section  1287  of  the  Code  of  1851,  and  tiiis 
same  language  is  carried  into  section  2337  of  the  Code  of  1873. 
For  more  than  fifty  years  it  has  been  the  policy  of  tiiis  state  to 
prevent  lapses  where  a  devisee  dies  before  the  death  of  the 


Jan.  1902.]  Downing  v.  Nicholson.  177 

tator,  and  this  has  ^^^  been  done  by  the  nse  of  the  broadest  and 
most  comprehensiye  language.  We  are  now^  for  the  first  time, 
called  upon  to  determine  whether  or  not  this  section  applies 
to  a  devise  to  a  class^  and^  if  so^  whether  or  not  it  applies  to 
snch  devisees  when  one  of  that  class  is  dead  at  the  time  testator 
made  his  will;  and  this  without  the  aid  of  other  extrinsic  evi- 
dence^ save  such  as  identifies  the  persons  belonging  to  the  class^ 
and  identifies  the  claimant  as  a  grandnephew  of  the  testator.  On 
entering  this  field,  we,  as  usual,  find  quite  a  number  of  con- 
flicting decisions,  and  are  again  reminded  that  it  seems  almost 
impossible  to  write  a  statute  in  language  so  clear  that  it  may 
not  be  the  subject  of  controversy. 

Since  a  will  speaks  from  the  day  of  the  testator's  death,  the 
members  of  the  class,  where  the  devise  is  to  a  class,  are  prima 
facie  to  be  determined  upon  the  death  of  the  testator :  Buggies 
V.  Bandall,  70  Conn.  44,  38  Atl.  886;  Richardson  v.  Willis,  163 
Mass.  130,  39  K  E.  1015 ;  Buzby  v.  Roberts,  63  N.  J.  Eq.  566, 
32  Atl.  9.    But  this  is  not  an  unyielding  rule,  even  at  common 
law.    The  will  itself  may  indicate  a  contrary  intent,  and  if 
that  be  so  this  intent  will  be  adopted  and  enforced:  In  re 
Swenson's  Estate,  55  Minn.  300,  66  N.  W.  1115;  Bailey  v. 
Brown,  19  B.  I.  669,  36  Atl.  581.    Under  the  common-law  rule, 
the  members  of  the  class  to  whom  testator  left  his  residue  estate 
would  be  determined  upon  the  day  of  his  death;  and,  as  appli- 
cant herein  is  neither  a  nephew  nor  a  niece,  he  would  be  ex- 
cluded.    Applicant's  counsel  contend,  however,  that  the  statute 
which  we  have  quoted  modifies  this  rule  to  this  extent :  that, 
although  the  members  of  the  class  are  to  be  determined  as  upon 
the  day  of  the  testator's  death,  yet,  as  the  applicant  is  an  heir 
of  one  of  that  class,  who  would  have  taken  under  the  will  had 
his  mother  survived,  he  is  entitled  to  her  share,  and  that  the  de- 
cree of  the  trial  court,  so  holding,  is  correct.     Some  of  the  cases 
hold  that  the  general  common-law  '*®^  rule  with  reference  to 
gifts  to  a  class  is  not  affected  by  these  statutes,  for  the  reason 
that  they  are  only  intended  to  apply  where  something  is  given 
by  will  to  one  who  dies  before  the  testator,  and  have  no  appli- 
cation to  gifts  to  a  class,  where  the  gift  is,  in  legal  effect,  only 
to  the  members  of  that  class  in  existence  at  a  designated  time: 
See  In  re  Harvey's  Estate,  [1893]  1  Ch.  567;  Martin  v.  Trus- 
tees of  Mercer  University,  98  Ga.  320,  25  S.  E.  622.    This  is 
also  the  rule  in  England :  Olney  v.  Bates,  3  Drew.  319 ;  Browne 
V.  Hammond,  Johns.  &  J.  210.     But   in    other    states    these 
statutes  are  held  applicable  to  gifts  to  a  class  as  well  as  to  indi- 

Am.   St.   R«p..   Vol.  91r-12 


178  AiCERiOAN  State  Repobts^  Vol.  91.  [lows, 

viduals :  Howland  v.  Slade,  155  Mass.  415,  29  N.  E.  631 ;  Bray 
V.  PuUen,  84  Me.  185,  24  AtL  811 ;  Strong  v.  Smith,  84  MicK 
567,  48  K  W.  183;  Parker  v.  Leach,  66  N.  H.  416,  31  Atl. 
19 ;  In  re  Bradley's  Estate,  166  Pa.  St.  300,  31  Atl.  96 ;  Jones 
V.  Hunt,  96  Tenn.  369,  34  S.  W.  693 ;  Wildherger  v.  Cheek,  94 
Va.  517,  27  S.  E.  441.    The  munerical  weight  of  authority 
seems  to  favor  this  rule,  although  it  also  will  yield  to  the  in- 
tent of  the  testator  as  found  in  the  context  of  the  will,  or  as 
shown  by  competent  and  legitimate  evidence:  White  v.  Massa- 
chusetts Institute,  171  Mass.  84,  50  N.  E.  512;  Bigelow   v. 
Clap,  166  Mass.  88,  43  N.  E.  1037 ;  Almy  v.  Jones,  17  R.  I. 
265,  21  Atl.  616.    The  reason  for  this  general  rule  appears 
to  be  that,  as  the  statute  is  remedial  in  character,  it  should  re- 
ceive a  liberal  construction,  so  as  to  advance  the  remedy  and 
suppress  the  mischief;  that  wills  are  presumed  to  be  drawn  with 
reference  to  existing  laws,  and  that  in  arriving  at  a  testator's 
intent  we  must  presume  that  he  had  knowledge  of  the  law,  and 
drafted  his  will  accordingly;  that  in  gifts  of  the  class  in  ques- 
tion a  testator  is  presumed  to  treat  all  members  of  the  class  as 
surviving,  although  some  of  them  be  dead,  and  that,  in  the  ab- 
sence ***  of  other  evidence,  this  presumption  will  be  conclusive; 
and  that  there  is  no  substantial  difference  between  a  gift  to  all 
of  a  class  and  a  gift  to  each  member  thereof,  naming  them. 
Where  there  is  such  conflict  in  authority,  much  may  be  said  in 
support  of  either  rule.    Despite  the  temptation,  we  will  not 
enter  into  a  further  discussion  of  the  matter,  but  content  our- 
selves with  saying  that  we  prefer  the  doctrine  announced  by  the 
greater  number  of  the  cases  as  a  rule  of  general  application,  but 
that,  like  all  other  rules  on  the  subject,  it  must  yield  to  the  in- 
tent of  the  testator  when  that  can  be  ascertained ;  for  that  is  the 
polar  star  of  all  inquiry  in  such  cases:  DaboU  v.  Field,  9  B.  L 
266. 

With  these  rules  settled,  we  are  now  brought  down  to  the  piv- 
otal point  in  the  case,  to  wit,  Does  the  statute  apply  to  a  case 
where  the  devise  is  to  a  class,  one  of  the  members  of  which  is 
dead  at  the  time  the  will  was  executed,  so  that  the  heirs  of  the 
deceased  member  take  by  substitution  or  representation?  Here^ 
again,  there  is  a  decided  and  irreconcilable  conflict  in  the  case. 
Holding  to  the  affirmative  of  the  proporition  are  Bray  v.  PuUen, 
84  Me.  185,  24  Atl.  811;  Wildberger  v.  Cheek,  94  Va.  517,  27 
S.  E.  441 ;  Winter  v.  Winter,  6  Hare,  306 ;  Moses  v.  Allen,  81 
Me.  268,  17  Atl.  66;  Jamison  v.  Hay,  46  Mo.  546;  Chenault 
V.  Chenault,  88  Ky.  83,  9  S.  W.  775.    On  the  other  hand,  atat- 


Jan.  1902.]  Downing  v.  Nicholson.  179 

utes  to  prerent  lapses  are  held  not  to  apply  where  the  supposed 
devisee  is  dead  at  the  time  the  will  is  made:  White  y.  Massa- 
chnsetts  Institute,  171  Mass.  84,  60  N.  E.  512 ;  Billingsley  y. 
Tongu^  9  Md.  575 ;  Lindsay  y.  Pleasants,  39  N.  C.  320 ;  Almy 
y.  Jones,  17  R.  L  265,  21  Atl.  216 ;  Tolbert  y.  Burns,  82  Ga. 
213, 8  S.  E.  Bep.  79.    We  cannot  take  the  time  or  space  necessary 
to  review  these  authorities.     Some  of  them  were  decided  on 
facts  indicating  the  testator^s  intent  to  be  in  accord  with  the 
statntory  construction,  and  at  least  one  on  a  statute  which  pro- 
vided ^®*  that  the  issue  of  a  devisee  who  is  dead  at  the  time 
of  the  making  of  the  will  shall  take  the  property  given  to  him. 
We  do  not  favor  any  arbitrary  rule  with  reference  to  this  mat- 
ter, preferring  to  leave  each  case  to  be  determined  on  its  own 
peculiar  facts.     We  may  say,  however,  that  at  common  law  a 
legacy  or  devise  to  a  person  who  was  dead  at  the  time  of  the 
making  of  the  will  was  void,  or,  as  some  cases  put  it,  lapsed. 
And  it  is  only  perforce  of  a  somewhat  strained  construction  of 
language  that  statutes  similar  to  the  one  under  construction  are 
held  to  modify  this  rule.     In  Kentucky,  there  is  an  express 
statute  which  does  so:  See  cases  heretofore  cited.    And  we 
understand  Tennessee  has  a  like  statute :  See  Dixon  v.  Cooper, 
88  Tenn.  177,  12  S.  W.  445.     This  general  rule  also  obtained 
even  where  the  testator  knew  that  the  donee  was  dead :  Dildine 
V.  Dildine,  32  N.  J.  Eq.  78.     If  a  deceased  beneficiary  is  speci- 
fically named  in  the  will,  this,  perhaps,  is  a  sufBcient  indication 
that  the  testator  intended  his  heirs  to  take,  under  the  statute 
before  quoted,  as  substitutional  or  representative  devisees.    But 
where  the  gift  is  to  a  class,  of  which  there  are  many  members,  it 
is  reasonable  to  suppose  that  the  testator  had  in  mind  only  those 
of  that  class  who  were  living  at  the  time  he  made  his  will.     To 
apply  the  rule  to  the  instant  case,  when  testator  made  his  will 
he  had  several  nephews  and  nieces  living.    He  also  had  at  least 
one  grandnephew,  whose  mother  had  been  dead  for  more  than 
ten  years.     In  the  residuary  clause  of  his  will  he  devised  his 
remaining  property  to  his  '^nephews  and  nieces,'*  share  and 
share  alike.     Did  he  intend  by  this  description  to  give  any 
part  of  it  to  this  grandnephew?    Surely  not;  for  it  would  have 
been  easy  to  include  him  if  he  had  so  desired.     Taking  the  will 
by  its  "four  comers,*'  and  reading  it  in  the  light  of  the  admit- 
ted facts,  we  hardly  think  one  unversed  in  the  law  would  say 
that  testator  intended  to  include  applicant  in  the  class  described 
as  **nephew8  and  nieces.**    If  he  '®®  had  intended  to  include 
the  grandnephew,  we  think  it  more  likely  that  he  would  have 


180  American  State  Hepobtb,  Vol.  91.  [Iowa, 

named  him.    Nephews  and  nieces  are  here  the  primary  devisees. 
Nothing  whatever  is  given  to  their  issue,  except  as  they  may 
be  substituted  under  the  statute.    In  order  to  claim  under  the 
will,  this  substituted  legatee  must  point  out  the  original  legatee 
in  whose  place  he  would  stand.    At  the  date  of  the  will  none  but 
living  nephews  and  nieces  of  the  testator  could  have  taken. 
the  issue  of  the  one  who  was  dead  at  that  time  can  show  no  ob- 
ject of  substitution,  and  to  give  him  an  original  legacy  would 
be,  in  effect,  to  make  a  new  will  for  the  testator.    Of  course,  if 
the  proposed  legatee  or  devisee  is  living  at  the  time  the  will  ia 
made,  and  subsequently  dies  before  the  death  of  the  testator, 
a  different  intent  is  manifest,  which  wiU  be  given  effect   in 
virtue  of  the  statute  under  which  applicant  claims.    But  wher^ 
as  in  this  case,  the  gift  is  to  a  class,  it  is  perfectly  clear  that 
testator  had  in  mind  only  those  members  of  the  class  who  were 
then  in  existence.    This  conclusion  is  not  in  harmony  with 
some  of  the  cases  we  have  cited,  which  hold  that  it  makes  no 
difference  whether  the  devise  is  to  a  class  or  to  designated  bene- 
ficiaries, but  we  think  that  in  arriving  at  the  testator's  intent 
there  is  a  manifest  difference.    In  the  one  case  there  is  a  devise 
to  a  particular  person,  showing  an  intent  that  that  person  or 
his  heirs  are  the  objects  of  his  bounty,  while  in  the  other  there 
is  a  devise  to  all  of  a  class,  and  not  to  one  of  a  different  class, 
who  is  in  no  manner  referred  to  in  the  will.    Mrs.  Fitzpatrick 
was  never  a  devisee  under  the  will,  for  she  was  dead  and  inca- 
pable of  taking  when  the  will  was  executed.    True,  her  son 
was  living;  but  that  the  testator  intended  to  exclude  him  is 
manifest  from  the  fact  that  he  makes  no  mention  of  him  by 
name,  nor  is  he  included  in  the  class  which  is  to  take  the  re- 
siduary estate.    The  primary  rule  in  the  construction  of  all 
wills  is  the  intent  of  the  testator.    When  this  is  ascertained, 
almost  all  arbitrary  and  judge  made  rules  will  yield,  and  the 
intent  prevail.    The  statute  in  "^^  question  is  based  on  the  as- 
sumption that  the  testator  would  prefer  his  estate  go  to  the 
legatee's  descendants  rather  than  to  have  it  lapse.    And  it  was 
not  intended,  we  think,  to  apply  to  a  case  like  this,  where  the 
persons  whom  he  intended  to  take  are  clearly  pointed  out  as  a 
class.     There  was  no  devise  in  this  case  which  would  lapse, 
unless  we  arbitrarily  say  that  he  intended  a  part  of  his  estate  to 
go  to  one  whom  he  knew  to  be  dead  when  he  made  his  last  will 
and  testament.     Although  it  has  been  a  difficult  task  to  pioneer 
onr  way  through  the  conflictin<:r  authorities  which  have  been 
cited  by  counsel,  and  others  which  we  have  discovered  on  an  in- 


Feb.  1902.]  McClure  v.  Deb.  181 

dependent  inyestigatioiiy  we  reach  the  quite  satisfactory  conclu- 
rion  that  the  applicant  is  not  entitled  to  take  under  the  will» 
and  that  the  court  was  in  error  in  declaring  him  a  beneficiary 
on  the  pleadings  as  they  stood  at  the  time  the  motion  for  decree 
was  submitted. 
It  follows  that  the  decree  must  be  reyersed. 


If  a  WiU  Directi  a  Gift  to  a  Class,  the  members  thereof  are  ordl- 
ivilj  to  be  ascertained  at  the  time  of  the  testator's  death.  A  will 
may,  however,  speak  from  the  date,  of  its  execution,  in  which  ease 
the  members  of  the  class  who  take  will  be  determined  at  the  time  of 
the  making  of  the  will:  See  the  monographic  note  to  Thomas  Tk 
Thomasi  73  Am.  St.  Bep.  414,  on  gifts  to  a  class. 


McCLTTBE  t.  DEE. 

[115  Iowa,  646,  88  N.  W.  1093.] 

BEDUS— liability  of  for  the  Debts  of  an  Ancestor.— B7  the 
eonmon  law  an  heir  or  dcTisee  was  not  liable  for  the  breach  of  a 
eoTenant  nnleas  ezpresslj  bound,  but  this  rule  did  not  apply  to. 
eorenants  which  ran  with  the  land,  among  which  are  covenants  to> 
▼arrant  and  defend  the  titles     (p.  183.) 

HEEB8 — Idabmty  of  on  Oorenants  of  Ancestor,  Wlion  Ack 
cnss.— To  authorize  a  recovery  against  an  heir  or  devisee,  it  must 
tppear  that  the  ancestor's  estate  was  settled  and  closed  before  the* 
ehim  aeerued  to  the  covenantee,     (p.  183.) 

HEIBS — Claims  Against,  Whether  Barred  by  the  Statnte  of 
limitations. — Though  a  covenant  against  encumbrances  is  broken  as 
■oon  u  made,  and  there  may  be  a  recovery  of  nominal  damages 
thereunder,  yet  there  can  be  no  recovery  of  substantial  damages  until 
the  eneumbranee  is  enforced,  and  therefore,  the  cause  of  action,  as 
to  such  damages,  cannot  be  regarded  as  accruing  or  becoming  sub- 
ject to  the  statute  of  limitations  until  that  time.     (p.  184.) 

PABTIE8  TO  ACTION  to  Enforce  Ancestor's  Liability.— If 
the  grantor  in  a  conveyance  with  covenants  of  warranty  or  against 
enenmbranees  subsequently  dies,  bequeathing  his  property  to  his 
wile  for  life,  with  power  to  use  both  principal  and  interest  to  supply 
herielf  with  the  comforts  and  luxuries  she  may  desire^  with  re- 
mainder to  a  trustee  for  several  beneficiaries,  an  action  for  dam- 
ages resulting  from  the  breach  of  the  testator's  covenant  is  prop- 
erly brought  against  the  wife  and  trustee,  instead  of  against  the 
remaindermen  under  the  will.  Perhaps  they  also  should  be  made 
parties,  but  as  this  question  is  not  covered  by  the  demurrer,  H  is  not 
decided,    (p.  185.) 

The  petition  showed  that  Warren  Dee,  being  in  April,  1879, 
the  owner  of  a  tract  of  land  which  was  subject  to  a  judgment 
in  favor  of  John  S.  Woolson,  conveyed  such  land,  for  a  valuable 


182  Amebioan  State  Befobts,  Vol.  91.  [Iowa, 

consideration^  to  the  Western  Wheel  Scraper  Company,  wbich, 
on  March  3,  1897,  conveyed  the  same  to  plaintiff.    Dee's  com- 
▼eyance  contained  general  covenants  of  warranty.    In  October, 
1897,  plaintiff  was  compelled  to,  and  did,  expend  eight  hondred 
and  fifty  dollars  in  paying  this  judgment.    Dee  died  testate, 
and  his  estate  had  been  closed  and  settled  prior  to  such  pay* 
ment.    The  defendant  Eliza  M.  Dee  was  the  widow  of  the  de- 
cedent.   The  will  gave  and  bequeathed  to  her,  for  and  daring 
her  natural  life,  all  his  property  of  every  character,  and  author* 
ized  her  to  use  it,  as  well  as  t}ie  principal  and  rents  and  profits, 
for  her  support,  and  to  supply  herself  with  such  luxuries  and 
^comforts  as  she  might  desire.    Subject  to  such  bequest,  he  be- 
queathed all  the  property  which  should  not  be  consumed  and 
tised  by  his  wife  to  John  C.  Power,  as  trustee,  directing  him  to 
•convert  the  property  into  money  and  to  distribute  it  among  a 
large  number  of  collateral  relatives  named  in  the  will.    Jndg- 
ment  was  asked  against  the  widow  and  Power  as  trustee.     A 
demurrer  was  interposed  on  the  grounds:  "1.  Said  cause   is 
barred  by  the  statute  of  limitations;  2.  The  facts  stated  do  not 
entitle  the  plaintiff  to  the  relief  prayed  for,  in  this:  (a)   De- 
fendants were  not  parties  to  the  deed  upon  which  this  action 
is  based;  (b)  Neither  of  the  defendants  has  wrongfully  con* 
Terted  any  property  belonging  to  said  Warren  Dee  to  their  own 
«ise;  (c)  It  appears  from  the  petition  and  amendment  that  the 
property  which  came  into  the  hands  of  the  defendants  under  the 
vrill  of  Warren  Dee  did  not  vest  in  them  in  fee,  but  for  specific 
purposes,  the  title  to  the  same  not  being  in  the  defendants,  or 
either  of  them.^*    The  demurrer  being  overruled,  and  defend- 
ants choosing  not  to  amend,  judgment  was  rendered  against 
them,  and  they  thereupon*  appealed. 

Power  &  Power,  for  the  appellants. 

Babb  ft  Babb,  for  the  appellee. 

•*•  WATERMAN,  J.  In  disposing  of  the  case,  we  shall  fol- 
low counsel  in  the  order  of  consideration  of  the  questions  pre- 
sented. 

According  to  the  earlier  common  law,  an  heir  was  liable  for 
the  specialty  debts  of  his  ancestor  to  the  extent  in  value  of  the 
assets  (real  estate)  which  descended  to  him:  Eawle  on  Cove- 
nants, 309,  310 ;  Bacon's  Abridgment,  tit.  ''Heir,*'  679.  In  two 
material  respects  this  rule  has  been  extended — first,  by  an  Eng- 
lish statute  (3  ft  4  W.  ft  M.)>  which  is  a  part  of  the  common 


Fab.  1902.]  McClubs  v.  Dss.  18 


law  of  this  country  (OTerrall  ▼.  Simplot,  4  Iowa,  381),  and  by 
wbich  sach  liabiliiy  was  imposed  also  upon  devisees :  Middoon  y. 
Moore,  65  N.  J.  L.  410,  26  Atl.  892 ;  Bawie  on  Covenants,  sec. 
311.     Bnt  irrespective  of  this  statute    the  provisions  of  our  law 
makiTig  real  property  liable  for  the  debts  of  the  owner  are  in 
line  of  development  of  the  common-law  principle  to  which  we 
have  adyerted,  and  operate  to  impress  such  property  with  a  trust 
to  secure  payment  of  the  ancestor's  debts,  when  it  is  found  in 
the  hands  either  of  an  heir  or  devisee:  Bohrbaugh  v.  Hamblin, 
57  Kan.  393,  57  Am.  St.  Rep.  334,  46  Pac.  706.    And  next,  an 
alteration  grew  out  of  the  statutes  of  those  states  (our  own 
among  them)  which  provide  for  the  descent  of  personalty  in  the 
same  manner  and  to  the  same  persons  ^^^^  as  real  estate.    The 
effect  of  these  statutes  is  to  impose  a  liability  upon  the  heir  for 
the  value  of  the  personalty  received,  as  well  as  the  real  estate: 
Hall  V.  Martin,  46  N.  H.  337.    According  to  the  common  law, 
the  heir  or  devisee  was  not  liable  for  breach  of  covenant,  unless 
expressly  bound.    But  this  rule  does  not  apply  to  covenants 
which  run  with  the  land :  Morse  v.  Aldrich,  19  Pick.  449.    The 
covenant  in  Dee's  deed  was  general;  that  is,  against  encum- 
brances, and  to  warrant  and  defend  the  title.    A  covenant 
against  encumbrances  does  not  usually  run  with  the  land,  for 
it  is  broken  as  soon  as  the  conveyance  is  made :  Martindale  on 
Conveyances,  139;  Clark  v.   Swift,  3   Met.  (Mass.)  392.    In 
England,  such  a  covenant  is  coupled  with  one  for  quiet  enjoy- 
ment, that  being  the  form  which  corresponds  with  our  warranty 
of  title;  and  in  such  case  it  rans  with  the  land,  for  it  is  then 
broken  only  by  eviction :  Bawle  on  Covenants,  89 ;  Anderson  v, 
Knox,  20  Ala.  156.    Whether  the  covenant  in  this  case  extended 
in  terms  to  quiet  enjoyment  does  not  appear.    We  think,  how- 
ever, that  must  be  its  effect.    But  the  matter  is  not  significant, 
for  the  general  covenant  to  warrant  and  defend  the  title  runs 
with  the  land  in  all  cases:  4  Kenfs  Commentaries,  528.    The 
heirs  and  devisees  are  boimd  for  a  breach  of  this  covenant.    Of 
course,  to  bind  either  heirs  or  devisees  it  must  appear  that  the 
ancestor's  estate  was  settled  and  closed  before  the  claim  accrued 
to  the  covenantee.    The  petition  alleges  such  to  have  been  the 
case  in  this  instance.    We  are  of  the  opinion  plaintiff  has  a 
right  of  action  for  breach  of  covenant.    The  case  of  Bohrbaugh 
V.  Hamblin,  cited  above,  which  is  quite  similar  in  its  facts  to 
the  one  before  us,  sustains  this  conclusion  fully. 

2.  This  brings  us  to  the  next  question  presented  by  the  do- 
mitrrer.    Is  the  claim  in  suit  barred  by  the  statute  of  limita- 


184  American  State  Reports,  Vol.  91,  [lows,  ' 

tions?    The  judgment  was  a  lien  on  this  land  when  Dee  con- 
veyed,  and  the  covenant  against  encumbrances  was,  therefore,, 
at  once  broken:  Harwood  v.  Lee,  85  Iowa,  622,  52  N.  W.  521. 
The  grantee  could  have  sued  at  once,  ***  but  he  would  have 
recovered  only  nominal  damages:  Harwood  v.  Lee,  85  Iowa, 
622,  52  N.  W.  521.    The  warranty  of  title,  which  includes  an 
assurance  of  possession,  was  not  broken  until  the  judgment, 
which  was  still  a  lien,  was  asserted  against  plaintiff  and  satis- 
fied by  him  in  the  year  1897.    This  action  was  brought  in  Au- 
gust, 1898.    In  Enadler  y.  Sharp,  36  Iowa,  234,  it  is  said: 
^'The  true  rule  in  such  cases,  doubtless,  is'  that  the  covenant 
against  encumbrances  is  broken  upon  the  making  of  the  con- 
veyance, 80  that  the  grantee  might  then  maintain  an  action  and 
recover  nominal  damages;  but  such  action  and  recovery  would 
not  defeat  or  prevent  another  action  by  that  grantee,  or  by  the 
grantee  of  that  grantee,  however  remote,  when  and  after  either 
had  been  required  to  discharge  the  encumbrance  in  order  to  pro- 
tect his  title.    The  breach  as  to  the  amount  thus  required  to  be 
paid  would  not  occur  until  the  payment,  and  then  in  favor  of 
the  party  holding  the  title  and  making  the  payment.^'    This 
doctrine  has  support  in  other  decisions  of  this  court  in  which 
it  is  held  that  the  technical  breach  of  covenant  against  encum- 
brances entitles  one  to  but  nominal  damages,  and  a  substantia] 
recovery  only  can  be  had  upon  the  satisfaction  of  the  lien :  Nor- 
man v.  Winch,  65  Iowa,  263,  21  N.  W.  698 ;  Nosier  v.  Hunt, 
18  Iowa,  212.    It  is  also  sustained  by  decisions  of  courts  of 
other  states :  Cheney  v.  Straube,  35  Neb.  521,  63  N.  W.  479 ; 
Wyatt  V.  Dunn,  93  Mo.  459,  2  S.  W.  402,  6  S.  W.  273;  Hunt 
V.  Marsh,  80  Mo.  396;  Guerin  v.  Smith,  62  Mich.  369,  28  N. 
W.  906 ;  Post  V.  Campau,  42  Mich.  98,  3  N.  W.  277.    In  the 
last-mentioned  case,  Mr.  Justice  Cooley,  speaking  for  the  court, 
says :  "The  doctrine  that  the  statute  shall  run  from  the  techni- 
cal beach  makes  the  covenant  in  many  cases  a  mockery.    If  the 
encumbrance  consists  of  a  mortgage  having  many  years  to  run. 
the  covenantee  has  no  right  to  pay  it  off  until  it  falls  due  and 
the  fiction  of  a  right  to  present  action  would  defeat  substantial 
redress."    We  do  not  think  the  decisions  of  this  court  which  are 
cited  by  appellants  as  sustaining  their  position  conflict  with  the 
"*  rule  above  announced.    The  language  quoted  from  Punk 
V.  Creswell,  6  Iowa,  62,  was  employed  in  discussing  the  ques- 
tion whether  a  grantee  could  voluntarily  satisfy  an  encumbrance 
existing  upon  the  land  when  he  took  title,  or  whether  he  must 
wait  until  it  was  enforced  against  him.    In  Yancey  ▼.  Tatlock, 


Feb.  1902.]  McClubs  v.  Deb.  185 

93  Iowa,  386,  61  N.  W.  997,  the  action  was  brought  within  ten 
years  from  the  date  and  deliyery  of  the  deed,  eo  the  issue  here 
eoDsidered  could  not  have  been  involved.  In  Harwood  v.  Lee, 
85  Iowa,  622,  52  N.  W.  521,  the  question  before  the  court  was 
only  whether  a  grantee  who  had  bought  in,  but  who  had  not 
satisfied,  the  encumbrance,  was  entitled  to  damages.  No  duty 
rested  on  plaintiff  to  satisfy  this  encumbrance  until  it  was  as- 
serted against  him.  Therefore,  defendants  cannot  complain  of 
the  delay.     The  claim,  in  our  opinion,  was  not  barred. 

3.  It  is  next  insisted  this  action  should  have  been  in  equity, 
and  against  those  entitled  to  the  probable  reversion.  As  Eliza 
M.  Dee  had  the  right  of  disposal  of  this  property  to  supply  her 
wants  or  gratify  her  wishes,  it  is  manifest  die  was  a  necessary 
party  defendant.  To  have  brought  the  action  against  those  only 
who  were  entitled  to  what  was  left  on  her  death  might  well 
have  been  ineffectual,  for  there  was  no  assurance  when  this  ac- 
tion was  brought  or  when  it  was  tried  in  the  district  court  that 
there  would  be  any  remainder.  We  do  not  think  her  own  per- 
sonal estate  is  liable  for  this  judgment,  leaving  the  whole  re« 
mainder  of  Warren  Dee's  estate  free  from  liability.  By  proper 
proceeding,  Warren  Dee's  property  can  be  made  to  bear  the  bur- 
den. We  are  not  called  upon  to  determine  exactly  what  estate 
Eliza  M.  Dee  took  under  the  will  of  her  husband.  If  she  took  an 
estate  in  fee,  there  is  certainly  no  merit  in  the  point  we  are  now 
considering. 

4.  It  is  said  that  Power  was  not,  in  any  event,  a  proper  party 
defendant  He  is  a  party  in  his  trust  capacity  ***  only.  The 
demurrer  was  joint,  raising  no  issue  on  behalf  of  Power  which 
was  not  raised  on  the  wife's  behalf.  But,  aside  from  this  fact, 
it  does  not  present  the  question  discussed  in  this  connection, 
viz.,  whether  Power,  as  trustee,  took  any  interest  in  the  person- 
alty prior  to  the  death  of  Eliza  M.  Dee.  Perhaps  the  residuary 
l^atees  should  also  have  been  made  parties,  and  the  action 
should  have  been  in  equity,  but  the  first  of  these  matters  is  not 
covered  by  the  demurrer,  nor  is  any  assignment  of  errors  suffi- 
cient to  raise  it,  and  the  other  matter  could  be  presented  only 
by  motion  to  transfer  to  the  proper  docket:  Code,  sec.  3432. 
The  demurrer  does  not  put  in  issue  the  fact  that  some  interest 
or  title  vested  in  Power  as  trustee  under  the  will,  but  asserts 
it  was  not  a  fee.  If  any  interest  passed,  it  was  because  the  wife 
did  not  take  an  absolute  estate ;  and,  if  this  was  the  case.  Power, 
as  trustee,  taking  a  legal  interest,  was  a  proper  party :  Tucker 
V.  Silver,  9  Iowa,  261 ;  Darlington  v.  Effey,  13  Iowa,  177.     Per- 


186  Ahebioak  Statb  Bbpoets^  Vol.  91.         [lo 


haps  the  petition  should  have  alleged  against  Power  that  tlie 
personal  assets^  which  alone  vested  in  him,  were  sufficient  in 
value  to  satisfy  plaintifPs  claim.  It  did  not  do  this.  Bat  again 
we  must  say  the  demurrer  does  not  present  the  question,  nor  ia 
it  discussed  by  counseL 
We  discover  no  error,  and  the  judgment  is  affirmed. 


CavenanU  for  Quiet  Enjoyment  and  eovenants  mnning  with  tka 
land  are  considered  generally  in  the  monographic  notes  to  Chest- 
nut V.  Tyson,  53  Am.  St.  Bep.  113-120;  Oeiszler  v.  De  Grmaf,  82 
St.  Bep.  664-690.  Heirs  may  be  liable  on  the  covenants  of 
of  their  ancestor  after  the  settlement  of  his  estate:  Bohrban^h 
Hamlin,  57  Kan.  893,  57  Am.  St.  Bep.  334,  46  Pac.  705.  A  brem«h 
of  a  covenant  against  encumbrances  takes  place,  if  at  all,  the  in- 
stant the  conveyance  is  made:  Huyck  ▼.  Andrews,  113  N.  7.  81, 
10  Am.  St  Bep.  432,  20  N.  £.  581.  As  to  limitation  of  actions  en 
covenants,  see  Jones  ▼.  BigstafP,  95  Ky.  395,  44  Am.  St.  Bep.  245, 
25  a  W.  889;  Pevey  v.  Jones,  71  Miss.  647,  42  Am.  St.  Bep.  ^86, 
16  South.  252;  Bronson  t.  Coffin,  108  Mass.  175,  11  Am.  Bep.  835. 


OASES 


SUPREME   COURT 


KANSAS. 


THOMPSON  V.  HARRIS. 

[64  Kan.  124,  67  Pac  456.] 

PBAOnOE— sunder— Motion  to  Mftke  Complaint  More  Beflnlta 
inA  Oertain. — If  a  complaint  containing  two  or  more  counts  al- 
leges a  speaking  by  the  defendant  of  the  different  slanderous  words 
stated  in  the  several  counts,  the  plaintiff,  on  motion  of  the  de- 
fendant, should  be  required  to  make  his  complaint  more  definite 
and  ceiitain  hj  showing  therein  whether  the  charges  made  in  such 
counts  an  relate  to  words  spoken  in  the  same  conversation,     (p.  188.) 

8LANDEB— Different  Words— When  Oive  Blse  to  but  One 
Oanae  of  Action. — If  several  slanderous  charges  are  all  made  in  a 
single  conversation,  though  relating  to  distinct  offenses,  thej  eon- 
■titute  but  one  cause  of  action,     (p.  188.) 

Jolin  Marshall^  for  the  plaintiff  in  error. 

Dan  Carr^  for  the  defendant  in  error. 

"*  CUNNINGHAM,  J.  This  was  an  action  by  the  defend- 
ant in  error,  as  plaintiff  below,  against  the  plaintiff  in  error, 
as  defendant  below,  to  recover  damages  occasioned  by  the  speak- 
ing by  him  of  certain  false  and  slanderous  language  concerning 
the  plaintiff.  The  petition  contained  four  causes  of  action. 
In  the  first  *^*  it  was  alleged  that  the  defendant  spoke  the 
words  concerning  the  plaintiff  which  were  claimed  to  be  slan- 
derous at  a  given  time  and  place  and  in  the  presence  of  a  cer- 
tain named  person.  The  third  cause  of  action  set  out  that  the 
defendant  spoke  of  the  plaintiff  certain  other  slanderous  words 
at  the  same  time,  the  same  place,  and  in  the  presence  of  the 
same  person  as  was  described  in  the  first  cause  of  action.  The 
second  cause  of  action  set  out  that  the  defendant  had  spoken 

(187) 


188  American  State  Bbports^  Vol.  91.        [Kansas^ 

certain  other  words  claimed  to  be  slanderoxifi  concerning  the 
plaintiff  at  a  time  and  place  and  in  the  presence  of  a  person  as 
therein  named.    The  fourth  canse  of  action  set  out  that  the 
defendant  had  spoken  certain  other  words  claimed  to  'he  slan* 
derous  concerning  the  plaintiff  at  the  same  time  and  place  and 
in  the  presence  of  the  same  person  as  was  alleged  in  the  second 
cause  of  action.     A  motion  was  made  by  the  defendant  to  re- 
quire the  plaintiff  to  make  his  petition  more  definite  and  cer- 
tain, by  stating  whether  the  slanderous  words  mentioned  in  the 
first  and  third  causes  of  action  were  in  the  same  conyersation, 
and  a]so,  whether  the  slanderous  words  set  out  in  the  second 
and  fourth  causes  of  action  were  spoken  in  the  same  conversa- 
tion.   This  motion  was  oyerruled  by  the  court  and  the  case 
went  to  trial  as  though  four  distinct  causes  of  action  were  stated. 
We  think  the  court  erred  in  this.    If  the  conyerdMions  upon 
which  the  first  and  third  causes  of  action  were  based  were  both 
parts  of  one  and  the  same  conyersation,  they  afforded  but  one 
cause  of  action.    It  would  appear  from  the  fact  that  these  were 
alleged  to  have  taken  place  at  the  same  time,  in  the  same  place 
and  in  the  presence  of  the  same  person,  and  that  they  stated 
parts  of  but  one  and  the  same  conyersation;  yet  as  this  did  not 
certainly  appear,  defendant  *••  was  entitled  to  be  definitely  in- 
formed what  plaintiff's  claim  was  in  this  regard. 

It  is  well  settled  that  ''when  there  are  different  sets  of  words, 
spoken  at  a  particular  time,  although  they  charge  distinct  of- 
fenses, there  will  be  but  one  cause  of  action*' :  Maxwell  on  Code 
Pleading,  352.  And  that  ''a  count  of  a  petition  in  an  action 
for  slander,  wHich  sets  out  the  entire  conyersation  in  which  the 
slander  was  spoken,  contains  only  one  cause  of  action,  although 
the  conversation  consists  of  several  parts,  each  of  which  is  ac- 
tionable'* :  Estee  on  Pleading,  3d  ed.,  sec.  1717. 

So  that  if  the  words  spoken  as  allged  in  the  first  and  third 
causes  of  action  were  in  fact  spoken  in  the  same  conversation, 
as  from  the  allegations  in  these  causes  of  action  they  reasonably 
appear  to  have  been,  there  was  but  one  cause  of  action  in  reality, 
and  the  defendant  was  entitled  to  know  exactly  the  fact  relative 
to  this  matter,  for  he  could  not  be  called  upon  to  answer  two 
causes  of  action  where  but  one  existed.  The  same  is  true  of  the 
second  and  fourth  causes  of  action. 

This  case  affords  ample  illustration  of  the  correctness  of  this 
rule,  for  upon  the  introduction  of  evidence  it  clearly  appeared 
that  the  actionable  words  counted  upon  in  the  first  and  third 
causes  of  action  really  did  constitute  but  one  conversation,  hence 


Jan.  1902.]      Atchison  etc.  R.  R.  Co.  v.  Obborn.  189 

one  cause  of  action;  so,  also,  with  regard  to  the  second  and 
fourth  causes  of  action.  Further  to  illustrate  the  correctness 
of  the  mle,  it  may  be  noted  that  the  court  in  its  instructions 
to  the  jury  in  this  case  permitted  it  to  find  the  defendant  guilty 
upon  any  one  of  the  four  causes  of  action  submitted  to  it,  and 
hence  put  the  defendant  upon  trial  for  and  punished  him  in 
four  causes  of  action,  *^  when  in  fact  he  should  have  been  put 
upon  trial  for  and  punished  in  but  two. 

There  are  several  other  errors  alleged  by  plaintiff  in  error, 
and  we  fliink  some  of  them  at  least  are  well  taken,  but  it  is 
probable  that  in  a  retrial  of  the  case  they  will  not  be  repeated ; 
hence  we  do  not  deem  it  necessary  to  comment  upon  them. 

The  judgment  of  the  court  below  will  be  reversed  and  the  case 
remanded  for  further  proceedings  in  accordance  with  this 
opinion. 

Ellis  and  Pollock,  JJ.,  concurring. 


Different  Slanderous  Words,  spoken  at  different  times,  eonetitnte 
difltinet  esnaes  of  action,  and  should  be  embodied  in  separate  counts; 
hat  different  sets  of  words,  importing  the  same  charge,  laid  as 
ipoken  at  the  same  time,  may  be  included  in  the  same  count:  Patter- 
■on  V.  Wilkinson,  '55  Me.  42,  92  Am.  Bee.  56S. 


ATCHISON,  TOPEKA  AND  SANTA  FE  RAILROAD  COM- 
PANY ▼.  OSBORN. 

[64  Kan.   187,  67   Pac.   547.] 

EVIDENOE  Taken  at  a  Former  Trial  may  be  Proved  on  a 
Bfleond  Txlal  of  tke  Same  Action  if  the  witness  has  removed  from 
the  state  or  is  otherwise  beyond  the  jurisdiction  of  the  court,  (p. 
190.) 

EVXDEKOE.— A  Stenographer  Who  Took  the  Testimony  at  a 
Poimer  Trial  of  the  Cause,  and  who  is  able  to  read  his  notes  and 
willing  to  testify  that  they  are  correct,  should  be  permitted  to  tes- 
tify therefrom  as  to  what  was  the  testimony  of  a  witness  at  such 
fonner  trial,     (p.  190.) 

A.  A.  Hurd  and  0.  J.  Wood,  for  the  plaintiff  in  error. 

Sankey  &  Campbell,  for  the  defendant  in  error. 

*^  JOHNSON,  J.  This  action  was  brought  by  M.  H.  Os- 
bom  against  the  Atchison,  Topeka  and  Santa  Fe  Eailroad  Com- 
pany to  recover  damages  for  the  destruction  of  wheat  by  fire 
alleged  to  have  been  negligently  started  by  the  railroad  com- 


190  Ambbican  State  Beports^  Vol.  91.       [Kansai^ 

pany.  The  first  trial  resulted  in  a  judgment  in  favor  of  Osbom, 
which  upon  review  was  set  aside^  and  the  case  was  remanded  for 
another  trial:  Atchison  etc.  R.  E.  Co.  v.  Osborn,  58  Kan.  768, 
51  Pac.  286.  At  the  second  trial,  the  testimony  of  three  per- 
sons who  had  testified  on  the  first  was  offered  by  the  railroad 
company  and  was  rejected;  and  this  ruling  is  the  principal  error 
assigned  for  reversal  by  the  company,  which  was  again  the  los- 
ing party. 

It  was  shown  that  the  witnesses  were  beyond  the  jurisdiction 
of  the  court  and  the  reach  of  its  process,  and  that  one  of  them 
resided  in  another  state.    It  was  agreed  that  the  persons  re- 
ferred to  were  called  as  witnesses  *®®  on  the  former  trial,  that 
they  were  examined  by  defendant  and  cross-examined  by  plain- 
tiff, and  that  their  testimony  was  taken  down  by  the  official 
stenographer,  who  appeared  with  the  same  ready  to  testify,  and 
that  he  was  then  able  to  read  the  notes  and  would  testify  that 
they  were  correct.     The  offered  testimony  was  unquestionably 
material  and  pertinent  to  the  issues  in  the  case,  and  we  think 
it  should  have  been  received.    Under  the  general  doctrine  gor- 
eming  the  admission  of  such  testimony,  it  was  early  decided 
that  the  testimony  of  a  deceased  witness  upon  a  former  trial 
between  the  same  parties  was  admissible,  and  that  it  was  not 
necessary  to  give  the  exact  words  of  the  witness,  but  it  was  snflB- 
oicnt  to  prove  the  substance  of  such  testimony:  Grannon    ▼. 
Stevens,  13  Kan.  447;  Solomon  R.  R.  Co.  v.  Jones,  34  Kan.  443, 
8  Pac.  730.    The  rule  was  upheld  in  a  ^criminal  case,  where- 
in the  personal  presence  of  the  witness  is  of  great  importance : 
State  V.  Wilson,  24  Kan.  189,  36  Am.  Rep.  257.     It  was  there 
held  that  the  admissibility  of  the  testimony  depended  upon  two 
essentials— one,  that  it  was  given  in  a  judicial  proceeding  be- 
tween the  same  parties,  upon  the  same  subject  of  inquiry ;  and 
the  other,  that  there  was   opportunity   and  power  to  cross- 
examine.    As  an  authoritv,  the  court  cited  1  Greenleaf  on  Evi- 
dence,  section  103,  where  the  learned  author  holds  that  the  rule 
as  to  deceased  witnosKOs  is  equally  applicable  to  witnesses  who 
are  outside  the  jurisdiction  of  the  court  and  out  of  the  reach 
of  its  process.     The  rule  laid  down  by  Creenleaf  was  recognizrwl 
in  the  case  of  Gilmore  v.  Butts.  Gl  Kan.  315,  59  Pac.  645, 
where  the  court  had  under  consideration  the  admission  of  a 
copy  of  a  lost  deposition.     It  was  there  said  that  ''the  trend 
of  modem  authorities  is  to  the  effect  that  if  the  witness,  though 
not  dead,  is  out  of  the  jurisdiction,  or  *®^  cannot  be  found 
after  diligent  search,  or  is  insane,  sick,  or  unable  to  testify,  or 


Jan.  1902.]      Atchisoh  stg.  R.  R.  Co.  v.  Osborn.  191 

has  been  sabpoenaed  but  appears  to  have  been  kept  away  by  the 
adTeise  party^  his  testimony  giyen  at  a  former  trial  may  be  re- 
ceived.'* 

The  supreme  conrt  of  Michigan  holds  that  a  witness  who  is 
beyond  the  jurisdiction  of  the  court  is^  to  all  intents  and  pur- 
pos^^  so  far  as  the  parties  to  the  litigation  are  concerned^  le- 
gally dead.  The  process  of  the  court  can  no  more  reach  him, 
and  the  parties  can  no  more  avail  themselves  of  his  personal 
presence  than  if  he  were,  in  fact,  dead :  Howard  v.  Patrick,  38 
Mich,  795.  While  there  is  some  diversity  of  judicial  opinion 
as  to  the  admissibility  of  testimony  given  by  a  witness  on  a 
former  trial,  the  great  weight  of  authority,  we  think,  sustains 
the  Greenleaf  rule:  Minneapolis  Mill  Cb.  v.  Minneapolis  etc. 
Ry.  Co.,  51  Minn.  304,  53  N.  W,  639;  People  v.  Devine,  46 
CaL  46;  City  of  Omaha  v.  Jensen,  35  Neb.  68,  37  Am.  St. 
Rep.  432,  52  N.  W.  833;  Young  v.  Sage,  42  iTeb.  37,  60  N. 
W.  313 ;  Perrin  v.  Wells,  155  Pa.  St.  299,  26  Ati.  543 ;  Magill 
V.  Kauffman,  4  Serg.  &  R.  317,  8  Am.  Dec.  713;  Reynolds  v. 
Powers,  96  Ky.  481,  29  S.  W.  299;  Shackleford  v.  State,  33 
Ark.  539 ;  Sneed  v.  State,  47  Ark.  180,  1  S.  W.  68 ;  Mattox  v. 
United  States,  156  U.  S.  237, 15  Sup.  Ct.  Rep.  337;  Brown  v. 
Luehrs,  79  111.  575;  Sullivan  v.  State,  6  Tex.  App.  319,  32 
Am.  Rep.  580 ;  Dean  v.  State,  89  Ala.  47,  8  South.  38 ;  Reese 
V.  Morgan  Silver  Min.  Co.,  17  Utah,  489,  54  Pac.  759;  Em- 
erson V.  Burnett,  11  Colo.  App.  86,  52  Pac.  752. 

The  provision  made  by  statute  for  the  taking  of  depositions 
does  not  militate  against  this  rule.  Testimony  taken  down 
word  for  word  at  a  former  trial  and  preserved  as  the  law  pro^ 
vides,  is  evidence  of  at  least  as  high  grade  as  a  deposition.  The 
testimony  is  taken  in  open  court,  in  the  presence  of  parties  and 
*••  witnesses,  under  the  eye  and  supervision  of  the  trial  judge, 
where  there  is  full  opportunity  to  examine  and  cross-examine 
the  witness,  to  search  his  motives,  appeal  to  his  conscience,  and 
test  his  recollection  and  the  accuracy  of  his  statements.  So 
taken,  it  must  be  as  high  order  of  testimony  as  a  deposition 
taken  upon  interrogatories  in  the  private  olBce  of  a  notary  pub- 
lic, or  other  like  ofiBcer,  in  some  town  or  city  remote  from  the 
one  in  which  the  trial  is  had.  Under  our  system,  where  the 
words  of  a  witness  are  taken  as  they  fall  from  his  lips  and  are 
recorded  by  an  oflBcial  stenographer  who  performs  his  duties 
under  the  sanction  of  an  oath,  the  written  testimony,  being  pre- 
served as  the  statute  directs,  is  likely  to  be  more  satisfactory 
and  reliable  than  that  taken  in  the  form  of  a  deposition. 


192  American  Statb  Bbports^  Vol.  91.        [KjinBM^ 

The  value  of  testimony  taken  and  preserved  under  the  mod- 
em system  is  well  illustrated  in  Wright  v.  Wright^  58  EZan.  522, 
50  Pac.  444^  where  it  was  hdd  that  ^^an  official  court  sten- 
ographer who  has  correctly  taken  the  testimony  of  a  witness 
may  read  his  notes  of  such  testimony  as  evidence  upon  a  sub- 
sequent trials  although  he  has  no  independent  recoUectioB  of 
such  testimony  and  can  relate  the  same  only  by  readin^^  his 
notes  thereof^:  See,  also,  Emerson  v.  Burnett,  11  Colo.  App* 
86,  52  Pac.  762.    The  fact  that,  since  the  first  trial,  new  facts 
may  have  come  to  light  which  would  affect  the  examination  of 
the  witness  or  the  value  of  his  testimony,  is  no  objection  to  th6 
admission  of  his  testimony  given  at  a  former  trial,  which  wu 
properly  taken  and  preserved.     Such  an  exigency  might  arise 
if  the  testimony  were  taken  by  deposition;  and  the  fact  that 
additional  information  was  received,  or  that  additional  testi- 
mony by  the  witness  was  a  necessity,  would  not  render  the  depo- 
sition first  taken  inadmissible.    The  *•*  fact  that  additional 
testimony  of  a  witness  is  taken  cannot  affect  the  admissibilty 
of  former  testimony,  whether  taken  in  or  out  of  court. 

Several  other  objections  are  made  to  the  rulings  of  the  trial 
court,  but  we  find  no  substantial  error  in  any  of  them.  For 
the  error,  however,  of  excluding  testimony  taken  on  the  former 
trial,  the  judgment  must  be  reversed  and  the  cause  remanded 
for  a  new  trial. 

All  the  justices  concurring. 


ADBnSSIBILITY  OF  EVIDEKCE  GIVEN  OK  FOBMEB  TBXAXi  DT 

OlVn.  OASES. 

I.    Scope  of  Koto. 
n.    Oroundfl  and  Beqnisites  of  AdmissioiL 

a.  Death  of  Witness. 

b.  Incapacity  of  Witness, 
e.    Absence  of  Witness. 

d.  Interept  of  Witness. 

e.  In  Other  Actions  or  Proceedings. 

1.  General  Admiflsibillty  of 

2.  Identity  of  Issues  and  Subject  Matt«. 

3.  Identity  of  Parties. 

f .  Opportunity  to  Cross-examine. 

g.  Katore  of  Proceeding, 
in.    Preliminary  Evidence. 

a.  Identity  of  Parties  and  Issues. 

b.  Showing  Death,  Illness,  or  Absence  of  WituiML 
c    Qualifications  of  Witness. 


Jan.  1902.]      Atchiboh  etc.  R.  B.  Co.  v.  Osbobn.  198 

IV.    Mode  of  Proof. 

a.  Hotoo  of  Testlmoiiy. 

b.  BillB  of  Ezceptioiui  or  Brief  of  Eyidoneo. 

I.  Scope  of  Koto. 
Thin  note  will  not  include  a  diBcussion  of  the  ftdmissibilitj  npon  a 
subsequent  trial  of  evidence  produced  npon  a  former  trial  or  pre* 
liminarj  examination,  in  criminal  cases,  as  this  subject  has  been 
fnUj  treated,  in  so  far  as  dead  or  absent  witnesses  are  eoneemed, 
in  a  note  to  Cline  ▼.  State,  61  Am.  St.  Bep.  873-892,  and  becanse 
the  mlee  of  evidence  in  relation  to  the  admission  of  evidence  given 
on  a  former  trial  are  so  nearly  similar  in  civil  and  criminal  eases  as 
to  make  any  special  discussion  of  the  latter  unnecessary .  at  this 
time.  Kor  will  the  subject  of  the  admissibility  of  stenographer's 
Doteo  of  evidence  taken  upon  a  former  trial  be  discussed,  as  that 
subject  is  exhaustively  treated  in  a  note  to  Padgitt  v.  Moll,  81  Am. 
St  Bep.  358-368. 

n.    Oronndfl  and  Beqnisltes  of  Admission. 

a.  Death  of  Witness.— The  rule  is  general  that  the  testimony  of 
a  witness^  since  deceased,  given  on  a  trial  in  which  he  was  cross- 
examined,  or  there  was  opportunity  for  cross-examination,  is  ad- 
missible in  evidence  in  a  subsequent  trial  of  the  same  action  or  pro- 
ceeding: Jeffries  v.  Castleman,  75  Ala.  262;  Bailway  Co.  v.  Sweet,  60 
Ark.  550,  31  8.  W.  571;  Bico  v.  Musgrave,  14  Colo.  79,  23  Pac.  458; 
Chicago  etc.  B.  B.  Co.  v.  O'Connor,  119  HI.  586,  9  N.  E.  264;  Western 
Assurance  Co.  v.  McAlpin,  23  Ind.  App.  220,  77  Am.  St,  Bep.  423,  55 
N.  E.  119;  Cave  v.  Cave,  13  Bush,  452;  Lewis  v.  Bonlo,  93  Mich.  475, 
53  N.  W.  622;  Detroit  B.  B.  Club  v.  Preston  Nat.  Bank,  113  Mich.  470, 
71  N.  W.  833;  Gerhauser  v.  North  British  etc.  Ins.  Co.,  7  Nov.  174; 
Kirehner  ▼.  Laughlin,  5  N.  Mex.  365,  23  Pac.  175;  Morehouse  v.  More- 
house, 41  Hun,  146;  Drajrton  v.  Wills,  1  Nott  &  McC.  409,  9  Am.  Dec. 
178;  Earl  v.  Tapper,  45  Vt.  275;  Powell  v.  Manson,  22  Gratt.  177; 
MeGeoch  v.  Carlson,  96  Wis.  138,  71  N.  W.  116.  This  rule  applies 
where  it  is  stipulated  between  opposing  counsel  that  a  witness,  if 
produced,  would  testify  to  certain  facts,  and  such  witness  dies  before 
the  trial  of  the  second  action:  Fortunate  v.  Mayor  of  New  York,  74 
App.  Div.  441,  77  N.  Y.  Supp.  574.  But  the  rule  allowing  the  testi- 
mony of  a  witness  since  deceased  to  be  produced  on  a  subsequent  trial 
does  not  permit  it  to  be  shown  that,  on  the  former  trial,  a  person, 
since  deceased,  offered  to  testify  to  certain  facts:  Lane  v.  Do  Bode 
(Tex.  Civ.  App.),  69  S.  W.  437. 

The  rule  that  the  testimony  given  on  a  former  trial  by  a  witness 
since  deceased  is  admissible  in  evidence  is  generally  applicable  to 
the  testimony  given  by  a  party  to  the  action:  Emerson  v.  Bleakley, 
2  Abb.  Pr.,  N.  &,  350.  Thus,  if  the  plaintiff  dies  after  the  trial,  in  a 
^ase  where  the  cause  of  action  survives,  and  his  administrator  is 
made  plaintiff,  and  the  cause  is  again  tried  upon  the  same  issues, 
it  ifl  competent  for  the  administrator  to  prove  on  the  last  trial  what 
Am.   St.    Rep.,   Vol.   91—13 


194  American  State  Bepobts,  Vol.  91.       [Kanwi% 

the  original  plaintiff  testified  to  on  the  first:  Chicago  ete.  B.  B.  Col 
▼.  O'Connor,  119  111.  586,  9  N.  E.  264.  And  eyidenee  of  what  a  plain- 
tiff testified  to  in  action  before  a  jnstice  of  the  peace  is  admiflsibl* 
on  the  trial  of  the  case  in  a  higher  conrt  on  appeal,  if  the  plaintiff 
is  dead  at  the  time  of  the  second  trial,  and  the  suit  was  revived  is 
the  name  of  his  administrator:  Lewis  v.  Bonlo,  93  Mich.  475,  53  N. 
W.  622;  Geoch  ▼.  Carlson,  96  Wis.  138,  71  N.  W.  116.  In  Hoover 
V.  Jennings,  11  Ohio  St.  624,  it  was  held,  however,  under  the  provision 
of  a  statute,  that  in  a  suit  by  or  against  an  administrator,  it  ia  not 
competent  for  him  to  prove  what  was  testified  to  hj  his  intestate 
on  a  former  trial  of  the  same  action.  In  a  suit  against  the  represent- 
ative of  a  deceased  person,  evidence  introduced  to  show  what  saeb 
person  testified  to  in  a  suit  against  him  in  his  lifetime,  for  sab- 
stantially  the  same  cause  of  action,  and  which  was  terminated  hj 
the  death  of  the  defendant,  is  admissible,  although  his  widow^  has 
become  competent  to  testify  by  his  death:  Mathewson  v.  Estate  of 
Sargeant,  36  Vt.  142. 

b.  Incapacity  of  Witness.— The  testimony  of  a  witness  on  a 
former  trial  who  has  since  become  mentally  incapacitated  to  testify 
is  competent  in  a  subsequent  trial  of  the  same  action.  Such  witness 
is  deemed  mentally  dead:  Stout  v.  Cook,  47  111.  530;  Howard  v.  Pat- 
rick, 38  Mich.  795;  Whi taker  v.  March,  62  N.  H.  477;  Bemey  v. 
Michell,  34  N.  J.  L.  337;  Drayton  v.  Wells,  1  Nott  ft  McC.  409,  9 
Am.  Dec.  718.  And  it  makes  no  difference  that  the  witness  who^ 
since  testifying,  has  become  insane,  is  a  party  to  the  suit:  Wafer 
V.  Hemken,  9  Bob.  (La.)  203.  If  it  is  shown  that  the  witness 
is  too  iU  to  attend  court,  his  testimony  taken  at  a  former  trial  be- 
tween the  same  parties  for  the  same  cause  may  be  admitted:  Miller 
V.  Bussel],  7  Merlin,  N.  a,  266;  Wafer  v.  Hemken,  9  Bob.  203; 
Howard  v.  Patrick,  38  Mich.  795;  Morehouse  v.  Morehouse,  41  Hnn,. 
146;  PerrizL  v.  Wells,  155  Pa.  St.  299,  26  Atl.  543.  But  if  the  sick- 
ness of  the  witness  is  not  so  severe  as  to  disable  him  from  doing 
some  work,  and  from  being  up  and  about  the  house,  his  evidence 
taken  on  the  former  trial  is  not  admiissible:  Siefret  v.^  Siefret,  123 
Mich.  664,  82  N.  W.  511.  Or  if  counsel  enter  upon  the  trial  of  a 
case  knowing  that  an  important  witness  is  ill  and  may  not  be  able 
to  attend,  it  seems  that  he  is  not  entitled,  in  the  midst  of  the  trial, 
to  present  the  fact  of  the  illness  of  such  witness,  and  then  testify 
to  what  the  latter  said  upon  the  former  trial  of  the  case.  In  such 
case,  counsel  should  ask  for  a  continuance  of  the  trial:  Chicago  etc 
B.  B.  Co.  V.  Mayer,  91  111.  App.  372.  If  from  extreme  old  age,  and 
both  physical  and  mental  infirmity,  a  witness  has  become  incompetent 
to  testify  to  facts  once  within  his  knowledge  and  memory,  and  it 
appears  likely  that  he  will  remain  in  such  condition,  or  grow  worse, 
there  is  no  abuse  of  discretion  in  admitting  in  evidence  his  testimony 
introduced  on  a  former  trial  of  the  same  ease  when  he  was  not  so 
afflicted  with  such  infirmities:  Central  B.  B.  etc.  Co.  v.  Murray,  97 


Jan.  1902.]      Atchison  etc.  R.  R.  Go.  v.  Osborn.  195 

Ga.  326,  22  S.  E.  972;  Bothroek  v.  GaUaher,  91  Pa.  St.  108;  Thornton 
T.  Britton,  144  Pa.  St.  126,  22  AtL  1048.  The  deposition  or  testimonj 
of  a  witness  formerly  taken  in  the  same  case  may  be  read  on  a  second 
trial  thereof  on  showing  that  he  was  sick  and  unable  to  attend,  in- 
nne,  or  in  saeh  a  state  of  senility  from  old  age  as  to  have  lost  his 
memory,  just  the  same  as  if  he  were  dead  or  out  of  the  jurisdiction: 
£inig  ▼.  Biehl,  76  Pa.  St.  359.  Testimony  of  a  witness  in  a  former 
trial  is  admissible  if  it  appears  that  by  reason  of  physical  incapacity 
he  is  unable  to  attend  the  trial,  and  that  his  deposition  could  not 
have  been  taken  by  the  exorcise  of  due  diligence:  Kirchner  v.  Laugh- 
IiHi  5  N.  Mez.  365,  23  Pae.  175.  The  deposition  of  a  witness  taken 
while  he  is  competent  should  not  be  rejected  on  the  second  trial  of 
the  suit  in  which  he  has  become  interested  as  a  party,  by  the  death 
of  the  person  who  took  the  deposition:  Smithpeters  ▼.  GrifSn,  10 
B.  Men.  259.  The  failure  of  the  witness  to  recollect  particular  facts, 
if  short  of  mental  incapacity,  will  not  admit  proof  of  his  testimony 
at  a  former  trial:  Stein  ▼.  Swenscn,  46  Minn.  860,  24  Am.  St.  Bep. 
234,  49  N.  W.  55.  And  the  mere  fact  that  the  witness  has  forgotten 
the  facts  to  which  he  formerly  testified  is  never  sufficient  to  render 
eyidenee  of  his  former  testimony  admissible:  Bobinson  ▼.  Oilman,  43 
N.  H.  295.  The  conviction  of  the  witness  of  an  infamous  crime 
renders  his  evidence  given  on  the  first  trial  of  a  civil  suit  inadmissible 
on  the  second  trial:  Le  Baron  v.  Crombie,  14  Mass.  234. 

e.  Absence  of  Witness.— The  fact  that  a  witness  is  beyond  the 
jurisdiction  of  the  state,  or  of  the  court,  is  generally  a  sufficient  ex- 
esse  for  not  producing  him.  Hence,  if  it  is  shown  that  a  witness  is 
absent  from  the  state,  or  a  nonresident,  or  out  of  the  jurisdiction  of 
the  eonrt,  or  if  his  place  of  residence  is  unknown,  testimony  given  by 
him  upon  a  former  trial,  and  correctly  preserved,  is  admissible  in 
evidence  on  a  subsequent  trial  of  the  same  cause.  It  makes  no 
difference  whether  his  testimony  was  given  in  the  form  of  a  deposi- 
tion, or  orally,  if  it  has  been  preserved  in  the  manner  pointed  out  by 
law:  Long  v.  Davis,  18  Ala,  801;  Mims  v.  Sturdevant,  36  Ala.  e'Se-^ 
Birmingham  Nat.  Bank  v.  Bradley  (Ala.),  30  South.  546;  Clinton  v. 
Sstes,  20  Ark«  216;  McTighe  v.  Herman,  42  Ark.  285;  Benson  v. 
Bhotwell,  103  Cal.  163,  37  Pac.  147;  Bico  Reduction  etc.  Co.  v.  Miis- 
grave,  14  Colo.  79,  23  Pac.  458;  Eagle  Mfg.  Co.  v.  Welch,  61  Ga.  444; 
AtlanU  etc.  By.  Co.  v.  Gravitt,  93  Ga.  369,  44  Am.  St.  Rep.  145,  20 
S.  R  550;  Reynolds  v.  Powers,  96  Ky.  481,  29  S.  W,  299;  Reynols  v. 
Bowley,  2  La.  Ann.  890;  Succession  of  Saunders,  37  La.  Ann.  769; 
Howard  v.  Patrick,  38  Mich.  795;  Stewart  v.  First  Nat.  Bank,  43 
Mich.  257,  5  N.  W.  302;  Wheeler  v.  Jenison,  120  Mich.  422,  79  N.  W. 
M3;  Minneapolis  Mill  Co.  v.  Minneapolis  etc.  Ry.  Co.,  51  Minn.  304, 
53  N.  W.  639;  Hill  v.  Winston,  73  Minn.  80,  75  N.  W.  1030;  Omaha 
St.  By.  Co.  V.  Elkins,  39  Neb.  480,  58  N.  W.  164;  Young  v.  Sage,  42 
Neb.  87,  60  N.  W.  313;  Ord  v.  Nash,  50  Neb.  335,  69  N.  W.  964; 
Kirehner  v.  Laughlin,  5  N.  Mex.  365,  23  Pac.  175;  Magill  v.  Kauff- 
wui,4  Serg.  ft  E.  317,  8  Am.  Dec.  713;  Noble  v.  McClintock,  6  Watts 


196  American  Statb  Bbports^  Vol.  91.       [Kansas 

A  S.  58;  Wright  v.  Cumpstj,  41  Pa.  St.  102;  Wheeler  v.  McFerron,  38 
Or.  105,  62  Pac.  1015;  Drayton  v.  WelUs  1  Nott  ft  MeC.  409,  9  Am. 
Dee.  718;  Yancey  v.  Stone,  9  Bich.  Eq.  429.  The  contrary  rule  ic 
announced  in  Berney  v.  Mitchell,  34  N.  J.  L.  337,  wherein  it  is  held 
that,  although  it  is  shown,  on  an  appeal  from  a  justice's  judgment, 
that  a  material  witness  who  testified  before  the  justice  has  left  the 
state  and  could  not,  after  due  diligence,  be  found,  nor  his  residenee  be 
ascertained,  yet  his  former  evidence  was  not  admissible  on  such 
appeal.  A  similar  ruling  is  found  in  Mutual  Life  Ins.  Co.  ▼.  Anthony, 
60  Hun,  101,  4  N.  Y.  Supp.  501,  and  in  Wilbur  ▼.  Selden,  6  Cow.  Iffii. 

Testimony  of  a  witness  given  at  a  former  trial  is  admissible  when 
his  presence  at  the  second  trial  of  the  same  ease  cannot  be  procurad: 
Closeman  ▼.  Barbancey,  7  Bob.  (La.)  438;  Powell  v.  Manson,  22  Grmtt. 
177.    If  it  is  impossible  to  secure  the  presence  of  a  witness  who  has 
testified  at  the  first  trial  of  the  case,  it  is  proper  to  admit  evidence  of 
an  unsuccessful  effort  to  find  him,  in  order  to  lay  the  f oundatioii  for 
admitting  his  testimony  given  on  the  former  trial:  Ballman  ▼.  Heron, 
169  Pa.  St.  510,  32  AtL  594.    Evidence  of  a  witness  who  has  sinee 
absconded,  and  cannot,  by  diligent  search  be  found,  and  whose  ad- 
dress is  unknown,  is  admissible  at  a  subsequent  trial  of  the  same 
cause:  Gunn  v.  Wades,  65  6a.  537;  Augusta  Wine  Co.  v.  Weippert,  14 
Mo.  App.  483.    Testimony  of  a  witness  given  on  a  former  trial  may  be 
given  on  a  trial  when  he  is  kept  away  from  the  second  trial  by  the  op- 
posite party:  Kirchncr  v.  Laughlin,  6  N.  Mez.  365,  23  Pac  175;  Dayton 
V.  Wells,  1  Nott  &  McC.  409,  9  Am.  Dec.  718;  Yancey  v.  Stone,  9  Bich. 
Eq.  429.    If  a  deputy  sheriff,  required  as  a  witness,  is  absent  on  oflieial 
duty,  his  testimony  given  on  a  former  trial  may  be  read  in  evi- 
dence: Noble  V.  Martin,  7  Martin,  N.  S.,  282.    Evidence  of  an  ab- 
sent witness  given  at  a  former  trial  is  not  admissible  if  his  deposi- 
tion has  been  taken  and  is  produced  at  the  second  trial:  Stein  v. 
Swensen,  46  Minn.  360,  24  Am.  St.  Bep.  234,  49  N.  W.  55.     And 
some  cases  hold  that  if  the  whereabouts  of  an  absent  witness  is 
known,  and  his  deposition  could  have  been  taken,  testimony  given 
by  him  on  a  former  trial  of  the  case  is  inadmissible:   Gastrell  v. 
Phillips,  64   Miss.   473,   1   South.   729;    Gerhauser   v.   North   British 
etc.  Ins.  Co.,  7  Nev.  174.    A  witness  outside  the  county,  but  within 
the  state,  is  not  out  of  the  jurisdiction  of  the  court,  so  as  to  au- 
thorize the  reading  of  his  testimony  given  on  a  former  trial:  Meyer 
V.  Both,  51  Cal.  582;  Butcher  v.  Vaca  Valley  B.  B.  Co.,  56  CaL  598. 
The  contrary  doctrine  is,  however,  maintained  in  Bank  of  Monroe  v. 
Gifford,  79  Iowa,  300,  44  N.  W.  558.    Parol  evidence  of  the  testi- 
monv  of  an  absent  witness  on  a  former  trial  of  the  same  case  is  not 
admissible  where  the  parties  have  relied  upon  his  mere  promise  to 
attend,  and  have  made  no  effort  to  compel  his  attendance,  although 
he  was  within  the  jurisdiction  of  the  court:  Prove  City  v.  Shortliff, 
4  Utah,  15,  5  Pac.  302. 

In  accordance  with  tho  holding  last  cited,  it  may  be  stated  as  a 
general  proposition  that  the  evidence  given  by  a  witness  at  a  former 


Jan.  1902.]      Atchison  etc.  R.  R.  Co.  v,  Osborn.  197 

trial  of  the  ease  is  not  admissible  on  tlie  second  trial,  when  saeb 
witness,  though  absent,  might  have  been  produced  on  the  trial: 
Savannah  ete.  By.  Co.  ▼.  Flannagan,  82  Ga.  579,  14  Am.  St.  Rep. 
183,  9  a  R  471;  McElmurray  ▼.  Turner,  86  Ga.  215,  12  S.  E.  359j 
Powell  V.  Waters,  17  Johns.  176;  Mott  v.  Ramsey,  92  N.  C.  152. 

The  testimony  of  a  party  or  witness  given  at  a  former  trial  can- 
not be  read  in  evidence  when  he  is  alive  and  in  the  presence  of  the 
eoort:  Curren  v.  Ampersee,  96  Mich.  553,  56  N.  W.  87;  Byrd  v. 
Hartman,  70  Mo.  App.  57.  If  a  party  and  his  witnesses  are  present 
in  court,  their  testimony  on  a  former  trial,  as  set  forth  in  a  bill 
of  exeeptionjy  is  not  admissible:  Sargeant  v.  Marshall,  38  111.  App. 
642;  Trimmel  v.  Marvel,  11  La.  Ann.  404;  Leeser  v.  Boekhoff,  38  Mo. 
App.  445.  The  testimony  of  a  witness  given  at  a  former  trial, 
when  such  witness  is  actually  or  presumptively  within  the  juris- 
diction or  presence  of  the  court  upon  the  second  trial,  is  hearsay 
and  inadmissible:  Michigan  8av.  Bank  v.  Butler,  98  Mich.  381,  57 
N.  W.  253;  Hunter  v.  Lanius,  82  Tex.  677,  18  8.  W.  201;  Salt  Lake 
City  V.  Smith,  104  Fed.  458.  The  testimony  of  a  witness  on  a 
former  trial  of  the  ease  is  not  generally  admissible,  if  he  is  tempo- 
rarily absent  from  the  place  of  trial  but  within  the  jurisdiction  of 
the  court:  Wabash  B.  R.  Co.  ▼.  Miller,  27  Ind.  App.  180,  61  N.  £. 
1005. 

d.  Interest  of  WitneBK— Testimony  taken  under  oath,  and  re- 
duced to  writing  on  the  first  trial  of  a  ease,  is  admissible  in  evi- 
dence on  the  second  trial  thereof  where  the  witness  hae  since  be- 
come interested  in,  and  a  party  to,  the  suit:  Wafer  v.  Hemken,  9 
Bob.  203.  The  testimony  of  a  person  becoming  interested  as  the 
hatband  of  a  deceased  contestant  of  a  will  may  be  given  in  evi- 
dence on  a  new  trial  of  the  case:  In  re  Budlong,  54  Hun,  181,  7  N.  Y^. 
8app.  289.  If  one  of  the  parties  dies  during  the  pendency  of  the 
tetion,  thereby  rendering  the  other  party  incompetent  to  testify,, 
his  testimony  given  at  the  first  may  be  proved  at  the  second  trial 
by  the  evidence  of  other  witnesses:  Lee  v.  Hill,  87  Ya.  497,  24  Am. 
8t  Rep.  666,  12  S.  E.  1052.  Notes  of  plaintiff's  testimony  taken 
OB  a  former  trial  of  the  same  cause  may  be  read  at  the  subsequent 
trial,  though  the  plaintiff  is  rendered  an  incompetent  witness  by 
the  death  of  the  defendant  before  the  trial  of  the  second  action: 
Pratt  V.  Patterson,  81  Pa.  St.  114.  It  has  been  held  that  the  tes- 
timony of  a  witness  given  on  a  former  trial  cannot  be  admitted 
on  the  ground  of  his  subsequent  disqualification  as  a  witness  by  ac- 
qoiring  an  interest  in  the  subject  matter  of  the  suit  before  the 
second  trial:  Chess  v.  Chess,  17  Serg.  &  B.  409.  It  seems  that  the 
testimony  of  a  party  given  on  the  trial  of  an  action  on  contract  be- 
tween such  party  and  an  agent  is  not  admissible  on  a  subsequent 
trill  of  the  action,  where  the  agent  has  died  since  the  first  trial: 
Turnkey  v.  Hedstrom,  131  HI.  204,  23  N.  £.  587. 

Evidence  of  the  testimony  of  a  witness  since  deceased  given  upon 
a  former  trial  is  inadmissible,  where,  if  living,  he  would  not  be  a 


198  Ambbican  State  Bbportb,  Vol.  91.       [Kanatfi 

competent  witness  on  the  second  trial  becanse  of  liis  interest  in  ttif 
ease:  Eaton  ▼.  Alger,  47  N.  Y.  345.  The  testimony  of  an  interested 
witness,  since  deceased,  cannot  be  proved,  in  a  second  trial,  hy  the 
party  in  whose  favor  he  was  interested,  against  the  objection  of  the 
other  party,  though  he  was  the  latter 's  witness  on  the  first  trial: 
Crary  v.  Sprague,  12  Wend.  41,  27  Am.  Dec.  110. 

e.    In  Other  Actions  or  Proceedings. 

1.  General  Admissibility  of.— The  rule  to  which  we  have  referred 
is  by  no  means  limited  to  the  testimony  given  at  a  former  trial 
of  the  action  or  other  proceeding  in  which  the  testimony  of  the 
deceased  or  absent  witness  is  offered.  Subject  to  the  limitations 
hereinafter  stated  requiring  identity  of  parties,  of  issues,  and  per- 
haps of  subject  matter,  testimony  given  on  the  trial  of  an  action 
or  proceeding  is  receivable  at  a  trial  of  another  and  different  ac- 
tion or  proceeding  to  the  same  extent  and  under  the  same  circum- 
stances as  it  would  be  receivable  if  taken  at  a  previous  trial  of 
•the  action  or  proceeding  in  which  it  is  offered:  Goodlett  v.  Kelly,  74 
Ala.  213;  School  Board  of  Trimble,  33  La.  Ann.  1073;  Price  v. 
Lawson,  74  Md.  499,  22  Atl.  206;  Howard  v.  Patrick,  38  Mich.  795; 
Mathewson  v.  Sargent,  36  Vt.  142;  Yancey  v.  Stone,  9  Bieh.  Eq.  429. 

2.  Identity  of  Issaes  and  Subject  Matter.— In  order  that  the  tes- 
timony given  on  a  former  *  trial  by  a  witness  since  deceased,  in- 
capacitated or  out  of  the  jurisdiction  of  the  court,  may  be  given 
in  evidence  on  a  second  trial  of  the  case,  not  only  the  parties,  but 
also  the  subject  matter  and  the  issues  involved  in  the  two  actions, 
TOust  be  the  same  or  at  least  substantially  the  same:  McTigbe  v. 
Herman,  42  Ark.  285;  Hutchings  v.  Corgan,  59  HI.  70;  Bucker  ▼. 
Hamilton,  3  Dana,  36;  Haslam  v.  Campbell,  60  Ga.  650;  Lathrop  v. 
Adkisson,  87  Ga.  339-343,  13  S.  E.  617;  Melvin  v.  Whiting,  7  Pick. 
79;  Jaceard  v.  Anderson,  37  Mo.  91;  Osbom  v.  Bell,  5  Denio,  370,  49 
Am.  Dec.  276;  Biyan  v.  Malloy,  90  N.  C.  608;  Cluggage  ▼.  Dnncan, 
1  Serg.  &  B.  110;  Bishop  v.  Tucker,  4  Bich.  178.  Some  of  the 
•earlier  cases  maintained  that  the  evidence  of  such  witness  was 
admissible  in  a  subsequent  suit  between  the  same  parties  or  their 
privies,  touching  the  same  subject  matter,  although  the  issues  ia- 
T'olved  in  the  two  suits  might  not  be  identical:  Long  v.  Davie,  18 
Ala.  801;  Atlafita  etc.  B.  B.  v.  Venable,  67  Ga.  697;  Jones  v.  Wood, 
16  Pa.  St.  25;  Parker  v.  Legett,  12  Bich.  198.  The  rule  seeme  to 
be  universally  adopted  by  the  later  authorities,  that  evidence  as  to 
what  a  deceased  or  absent  witness  testified  to  on  a  previous  trial 
is  not  admissible  when  it  appears  that  the  issue  therein  involved 
was  not  identical  or  substantially  the  same  as  that  in  controversy 
at  the  trial  at  which  such  evidence  is  offered:  Whitaker  v.  Arnold, 
110  Ga.  857,  36  S.  E.  231;  Hooper  v.  Southern  By.  Co^  112  Ga. 
^,  37  S.  E.  165;  Succession  of  Bieger,  37  La.  Ann.  104;  Goodwin 
V.  Neustadtl,  47  La.  Ann.  841,  17  South.  471;  Schindler  v.  Milwaukee 
etc.  R.  R.  Co.,  87  Mich.  400,  49  N.  W.  670;  Murphy  v.  New  Tork  ete.  B. 


Jad«  1902.]     Atghibon  btc.  R.  B.  Co.  v.  Osbobn.  199 

JL  Co.,  31  Hun,  358;  Bishop  ▼.  Tucker,  4  Bieh.  178.  This  question 
often  arieee  in  eases  where  an  infant  sues  to  recover  for  an  in- 
jnj  and  then  dies^  and  an  action  is  afterward  brought  by  his 
parent  to  recover  for  the  same  injury,  and  in  such  case  the  testimony 
of  the  infant  taken  on  the  first  trial  is  not  admissible  on  the  sec- 
ond, as  the  issues  are  not  the  same:  Hooper  v.  Southern  By.  Co., 
112  Ga.  96,  37  S.  £.  165;  Metropolitan  St.  By.  Co.  v.  Gumby,  99  Fed. 
192.  On  the  trial  of  an  action  by  an  administrator  to  recover  for 
the  death  of  hitt  intestate  caused  by  a  wrongful  act,  evidence  is  ad- 
niasible  to  prove  the  testimony  of  witnesses  since  deceased,  on  the 
trial  of  an  action  by  such  intestate,  abated  by  his  death,  to  recover 
damages  for  the  same  wrongful  act.  The  issues  are  the  same  in 
both  actions:  Indianapolis  etc.  B.  B.  Co.  v.  Stout,  53  Ind.  144.  In 
troTor  against  the  obligors  in  a  bond  of  indemnity  given  a  sheriff 
on  a  levy  of  execution,  testimony  of  witnesses  in  a  former  replevin 
suit  against  the  officer  to  recover  the  property  is  admissible:  Wood- 
worth  V.  Gorsline  (Colo.)>  69  Pac.  705.  The  testimony  given  in 
an  action  of  ejectment  is  not  admissible  in  a  subsequent  action  of 
ejeetment,  unless  both  actions  are  between  the  same  parties  or  their 
priTiea,  and  in  relation  to  the  same  title:  Davenport  v.  Henderson, 
84  Ga.  313,  10  8.  E.  920;  Cluggage  v.  Duncan,  1  Serg.  &  B.  Ill; 
Sample  v.  Conlson,  9  Watts  &  8.  62.  It  has  been  held  that  the  bare 
fact  of  two  persons  holding  different  parcels  of  what  was  once  an 
vodinded  tract  of  land,  deriving  title  from  the  same  source,  eon- 
Btitntea  no  privity  of  estate,  so  that  the  testimony  of  a  witness  since 
deeoaaed  on  a  trial  of  ejectment  against  one  for  the  premises  in  his 
pMseasion  can  be  given  in  evidence  in  an  action  of  ejectment  against 
the  other  for  the  premises  possessed  by  him,  although  both  actions 
ve  by  the  same  claimant:  Jackson  v.  Crissey,  3  Wend.  251. 

S.  Idsntity  of  Parties.— In  order  to  entitle  the  testimony  of  a  wit- 
aeas  rinee  deceased,  or  out  of  the  jurisdiction  of  the  court,  given  on  a 
formor  trial,  to  be  received  in  evidence,  it  must  be  shown  that  the 
testimony  was  given  in  a  case  in  which  the  parties  to  the  suit  in 
which  it  is  offered,  or  their  privies  were  parties:  Bryant  v.  Owen,  2 
8tew.  ft  P.  134;  McTighe  v.  Herman,  42  Ark.  285;  Lane  v.  Brainerd, 
30  Conn.  565;  Hughes  v.  Clark,  67  Ga.  19;  Goodrich  v.  Hanson,  38 
ni.  498;  Earl  v.  Hurd,  5  Blackf.  248;  Ephraims  v.  Murdoch,  7  Blaekf. 
10;  If'Cnlly  v.  Barr,  17  Serg.  ft  B.  445;  MeMorine  v.  Storey,  4  Dev. 
4  B.  189,  34  Am.  Dec.  374;  Killingsworth  v.  Bradford,  2  Over.  204. 
Evidenee  of  absent  heirs  given  on  a  former  trial  involving  the 
^ditj  of  a  will  is  admissible  in  a  subsequent  action  involving  the 
ttme  sabject  matter  and  privity  of  parties:  Payne  v.  Price,  16  B. 
Hon.  86.  If  a  parent  begins  suit  against  a  railroad  company  to  re- 
coTor  for  a  personal  injury  to  herself,  and  subsequently  dies  from  the 
nmlt  of  such  injury,  and  suit  is  then  brought  by  her  child  to 
THo?«i  for  the  same  injury,  evidence  given  by  the  mother  in  the 
"ntbj  herself  is  admissible  in  the  action  by  her  child:  Atlanta  etc 
^  B.  V.  YeaaUe,  67  Ga.  697.    An  action  of  unlawful  detainer  brought 


200  American  State  Beports^  Vol.  91.       [EZanm^ 

bj  the  executor  of  a  deceased  person  to  recover  the  posseBsion  of 
certain  premises  for  his  alleged  lessee,  and  a  subsequent  action  hj 
the  latter  against  the  heirs  at  law  of  the  deceased  to  quiet  n  tttl» 
claimed  to  have  been  acquired  by  adverse  possession  to   the    aame 
premisesy  are  actions  between  the  same  parties,  within  the  rule  under 
consideration:  Fredericks  v.  Judah,  73  Cal.  604,  15  Pac.  305.     A  dep- 
osition of  a  party  taken  so  as  to  be  admissible  in  a  pending  ease  is  ad- 
missible in  a  subsequent  suit  between  the  administrators  of  the  partiee 
involving  the  same  subject  matter:  Evans  v.  Beed,  78  Pa.  St.  415.  The 
conditions  on  which  the  evidence  of  a  witness  on  a  former  trial,  since 
deceased,  may  be  reproduced  on  the  trial  of  a  subsequent  suit  are  that 
the  matters  in  issue  and  the  parties  are  essentially  the  same  in  both  ac- 
tions. '^ Parties,"  as  thus  used,  comprehend  privies  in  blood,  in  lavr,  or 
in  estate:  Patton  ▼.  Pitts,  80  Ala.  373.    Hence,  the  testimony, of  n  vrit- 
necs  in  a  prior  action  is  not  admissible  after  his  decease,  in  a  sabse- 
quent  action  between  different  parties,  and  involving  a  controversy 
as  to  a  different  matter:  Marshall  v.  Hancock,  80  Cal.  82,  22  Pac.  61; 
Stockmeyer  v.  Weidner,  82  La.  Ann.  106;  Burnham  v.  Bumham,  46 
App.  Div.  518,  62  N.  Y.  Supp.  120;  affirmed,  165  N.  Y.  659,  59  N.  E. 
1119;   Harper  v.  Burrow,  6  Ired.   30;   Fellers   v.   Davis,   22   S-    C. 
425.    Nor  is  such  evidence  admissible  if  the  parties  in  the  two  saits 
are  different,  although  the  subject  matter  is  the  same:  Burroughs  ▼. 
Hunt,  13  Ind.  178.    Or  the  deposition  of  a  witness  taken  in  a  former 
action  is  not  admissible  in  a  subsequent  one,  unless  the  parties  sa-l 
matters  in  issue  in  the  latter  are  the  same  as  in  the  former:  Bryan 
V.  Malloy,  90  N.  0.  508.    Testimony  given  on  a  trial  in  ejectment  esn- 
not  be  introduced  after  the  death  of  the  witness,  in  an  action  between 
other  parties  in  interest  upon  a  covenant  of  warranty:  Mason  v.  Kel- 
logg, 38  Mich.  182.    The  testimony  of  a  witness,  since  deceased,  pven 
at  a  former  trial,  is  not  admissible  as  evidence  at  a  subsequent  trial, 
although  the  same  question  be  involved  between  the  same  parties, 
if  another  person  not  a  privy  is  added  as  a  new  party  at  the  sub- 
sequent trial:  Orr  v.  Hadley,  36  N.  H.  575;  Roberts  v.  Anderson,  3 
Johna  Gh.  371;  Yamum  v.  Hart,  47  Hun,  18;  Mathews  v.  Colbnrn,  1 
8trob.  258.    The  testimony  of  a  witness  who  is  dead  or  out  of  the 
state,  which  was  given  in  an  action  of  ejectment  by  one  cotenant, 
cannot  be  given  in  evidence  in  aether  action  of  ejectment  for  part  of 
the  same  land  by  another  cotenant:  Norris  v.  Mouen,  3  Watts,  465. 
And  a  disclosure  by  a  trustee  is  not  admissible  evidence  for  him  in 
another  action,  in  favor  of  one  not  a  party  to  the  trustee  process: 
Wise  V.  Hilton,  4  Qreenl.  435;  Edmond  v.  Caldwell,  15  Me.  340.    Testi- 
mony of  witnesses  recorded  in  a  case  made  cannot  be  introduced  as 
evidence  on  the  trial  of  an  action  between  strangers  to  the  record  of 
the  case  made,  involving  the  same  issues  and  subject  matter:  Ireton 
V.  Ireton,  59  Kan.  92,  62  Pac  74. 

f«  Opportimity  to  OrMS-eramlne.— If  a  witness  is  dead,  his  testi- 
mony in  one  proceeding  may  be  used  in  another  between  the  same 
parties,  if  the  party  against  whom  the  evidence  is  offered  actually 


Jaa  1902.]      Atchison  no.  B.  B.  Co.  v.  Osboen*  201 

trow^gamhied  Uoii.or  IumI  an  opportunitj  to  eroAB-examine  him  ia 
the  former  proceeding:  O'Biiui  ▼•  Ck>mmonwealth,  6  Bush,  564; 
Breeden  v.  Feurth,  70  Mo.  624;  Bitehie  ▼.  Lyne,  1  Call,  539.  If 
the  defendant  has  had  legal  notice  of  the  commencement  of  an 
action  against  him,  and  haa  not  appeared  either  by  himielf  or  attor- 
ns at  the  trial,  and  judgment  by  default  haa  been  taken  against  him, 
the  evidence  of  a  witness  since  deceased,  given  on  the  first  trial  to 
nstain  the  pleadings,  is  admissible  on  a  second  trial  of  the  same 
eaie,  although  there  was  no  cross-examination,  as  the  opportunity 
tksrefor  was  given:  Bradley  ▼.  Mirick,  91  N.  Y.  293;  O'Neill  v. 
Brown,  61  Tex.  34;  Beming  v.  Chase,  48  Yt.  382.  In  all  cases  where 
testimony  haa  been  given  in  a  former  trial  by  a  witness  since 
deeeaied,  and  there  haa  been  no  opportunity  to  cross-examine  him  by 
the  parties  to  the  second  action,  either  because  of  the  ex  parte 
Mtore  of  the  evidence,  or  because  the  second  action  is  between 
different  parties,  or  there  has  been  a  new  party  added  thereto,  the 
evidence  thus  given  is  not  admissible  in  the  second  suit.  This  rule 
isiUoetrated  by  the  cases  cited  supra  under  the  heading  of  ''Identity 
of  Parties,"  and  is  expressly  stated  in  Golden  v.  Newbrand,  52  Iowa, 
59, 35  An.  Bep.  257,  2  N.  W.  537;  Matter  of  Mason,  9  Bob.  (La.)  105; 
Wihh  T.  Melntire,  68  Md.  402,  13  AtL  348;  Bippowam  v.  Strong,  2 
Hilt  52,  The  testimony  of  a  witness  since  deceased,  given  at  a 
coroner 'a  inquest,  is  not  admissible  in  favor  of  defendant  on  the  trial 
tor  an  alleged  negligent  killing  unless  it  appears  that  the  plaintiff  had 
u  opportunity  to  cross-examine  the  witness  either  by  himself  or 
eovnael:  Jaekson  v.  Crilly,  16  Colo.  103,  26  Pac.  331;  Petrie  v.  Col- 
nabia  etc.  B.  B.  Co.,  29  8.  C.  303,  7  8.  E.  515.  Evidence  given  by  an 
expert  witness  since  deceased,  on  a  former  trial  between  the  same  par- 
ties is  not  rendered  inadmissible  by  the  fact  that  new  and  unexpected 
natters  have  been  introduced  on  the  second  trial,  upon  which  the  ex- 
pert was  not  cross-examined  on  the  first  trial:  First  Nat.  Bank  v.  Wire- 
bwh,  106  Pa.  St.  37. 

8>  Vatore  of  Proceeding. — The  rule  admitting  the  evidence  of  a 
witness  since  deceased  or  out  of  the  jurisdiction  of  the  court,  given 
01  a  former  trial  of  the  case,  if  the  action  is  again  tried  between 
the  same  parties  or  privies,  and  involves  the  same  subject  matter, 
refers  to  a  proceeding  in  the  first  place,  where  the  trial  is  closed 
ud  the  ease  submitted  to  the  jury:  Lawson  v.  Jones,  61  How.  Pr. 
434;  and  it  applies  to  any  former  trial,  and  not  merely  to  the  evi- 
denee  taken  at  the  last  preceding  trial,  where  there  has  been  more 
than  one:  Koehler  v.  Scheider,  16  Daly,  235.  The  rule  does  not  ap- 
ply to  a  trial  which  is  adjourned  before  the  cross-examination  of  a 
witness  since  deceased  is  completed:  Morley  v.  Castor,  63  App.  Div. 
^Tlli.  Y.  Supp.  363.  It  has,  however,  been  held  that  if  plaintiff 
<linnis8es  his  action  and  brings  another  in  renewal  thereof^  answers 
to  interrogatories  duly  sued  out,  executed  and  returned  while  the 
^  action  is  pending,  and  introduced  on  a  trial  thereof,  are  r<I- 
■ttnhle  on  a  trial  of  the  second  action:   Badford  v.  Georgia  etc. 


202  Ahbeican  Statb  Bidpobts^  Vol.  91. 

By.,  113  Ga.  627,  89  S.  E.  108.    The  testimony  of  a  witaoM  mt   fl 
f onner  trial,  who  has  sinee  died,  giTsn  before  a  court  haviag  Jnri* 
diction  of  the  parties  and  power  to  administer  oaths,  nay  be    i» 
troduced  in  evidenee  at  a  subsequent  trial  of  the  same  ease, 
less  of  the  fact  whether  the  court  had  jurisdiction  of  the 
matter  in  the  former  action  or  not:  Jerome  ▼.  Bohm,  21  Colo. 
40  Pac.  570.    The  testimony  of  a  witness  or  party  duly  taken  at  m 
hearing  before  a  master  is,  after  the  decease  of  such  witness,    md- 
missible  in  any  subsequent  trial  of  the  same  matter  in  court:  Bmiier 
y.  Battell,  83  BL  317;   Bonnet  ▼.  Dickson,  14  Ohio  St.  434.    Thm 
testimony  of  a  witness  sinee  deceased  given  before  a  magiatrmto 
in  a  criminal  proceeding  for  an  assault  may  be  used  against  or  tar 
the  defendant  in  a  subsequent  civil  suit  for  damages  by  the  person 
assaulted:  Gavan  v.  Ellsworth,  45  Ga.  283;  Charlesworth  v.  Tinker, 
18  Wis.  633.    Evidence  taken  orally  before  a  former  county  jndgpe 
in  an  action  pending  before  him  cannot  be  ordered  to  stand  as  evi- 
dence, upon  a  new  trial  of  the  case  before  his  successor:  Putnam  ▼*• 
Crumbie,  34  Barb.  232.    The  examination  of  a  witness  before  a  referee 
in  the  presence  of  the  parties  to  the  suit,  and  signed  by  the  witneea 
who  has  since  died,  may  be  read  as  evidenee  on  the  trial  of  the 
suit:  Nutt  V.  Thompson,  69  N.  C.  548.    It  is  a  general  rule  that  wliAt 
a  witness  swears  to  on  a  regular  trial  before  arbitrators   ia  legal 
evidence,  and  if  the  witness  is  dead  or  out  of  the  state,  his  eri- 
dence  given  before  arbitrators  may  be  proved  on  any  other  trial 
between  the  same  parties,  in  relation  to  the  same  matter:  Kelly  t. 
Connell,  3  Dana,  532;  Baily  ▼.  Woods,  17  N.  H.  865;  MeAdama  t. 
Stilwell,  13  Pa.  St.  90;  Insurance  Co.  ▼.  Johnson,  23  Pa.  St.  72; 
Wallbridge  v.  Knipper,  96  Pa.  St.  48.    In  Jessup  v.  Cook,  6  N.  J. 
L.  434,  it  is  held,  on  the  contrary,  that  evidenee  taken  before  ar- 
bitrators is  not  admissible  on  a  trial  of  the  same  causSi  though  tha 
witness  be  dead. 

m.    PreUminary  EYidence. 

a.  Identity  of  Parties  and  Issoes.— The  testimony  of  deceased  wit- 
nesses in  a  previous  action  between  the  same  parties  and  for  the 
same  subject  matter  is  admissible  as  evidence  in  a  subsequent  suit 
to  contest  the  same  right,  either  for  or  against  the  same  parties 
or  privies  in  law,  in  blood  or  in  estate.  But  such  privity  must  llrst 
be  shown  to  exist,  and  it  must  appear  that  such  evidence  was  regu- 
larly and  judicially  taken:  Bryant  v.  Owen,  2  Stew,  ft  P.  134.  It 
is  necessary  to  the  admission  of  such  evidence  that  it  be  ahoi 
by  the  record  of  the  former  trial  that  that  action  was  betw< 
the  same  parties  and  for  the  same  cause  of  action:  Ephraims  ▼.  Mnr- 
dock,  7  Blackf.  10;  Neff  v.  Smith,  91  Iowa,  87,  58  N.  W.  1072; 
Chambers  v.  Hunt,  22  N.  J.  L.  552;  Beals  v.  Guensey,  8  Johns.  446^ 
5  Am.  Dec  348;  Draper  v.  Stanley,  1  Heisk.  432.  It  has^  however, 
been  held  that,  upon  proof  that  a  deceased  witness  testifled  on  the 
former  trial,  his  testimony  may  be  read  in  evidence  without  a  f omal 


^.  1902.]     Atchibon  etc.  B.  R.  Co.  v.  Osbobn.  203 

Mti  of  the  record  of  the  previoiu  trial:  Lnetgert  r.  Yolker,  153 
BL  386,  39  N.  £.  113.  Such  testimoiiy  is  admissible,  it  seems,  though 
isaeeompaiiied  ivith  the  record,  if  no  objection  is  made  at  the  trial 
SB  that  ground:  Beals  ▼.  Gnemsej,  8  Johns.  i46,  5  Am.  Dec.  348; 
WMto  T.  Sibling,  11  Johns.  128. 

bi  Sliowliig  Death,  Utness,  or  Absence  of  Witness.— A  party  is  not 
permitted  to  proTo  what  one  of  his  witnesses,  alleged  to  have  since 
died,  swore  to  on  a  former  trial  of  the  same  cause,  until  he  has 
proved  that  such  witness  is  dead:  Hobson  r.  Doe,  2  Blaekf.  308; 
looker  ▼.  Parsley^  72  Ind.  497;  Woolen  ▼.  Whiteacre,  91  Ind.  502; 
Wabash  B.  B.  Co.  ▼.  Miller,  27  Ind.  App.  180-183,  60  N.  E.  1127; 
Jftdoon  T.  Bailey,  2  Johns.  17. 

The  testimony  of  a  witness  given  on  a  former  trial,  and  who  is 
in,  eumot  be  read  in  evidence  on  a  subsequent  trial  without  a 
SBiBdent  showing  that  such  witness  is  unable  to  attend  the  trial  of 
the  ease:  Edwards  ▼.  Edwards,  93  Iowa,  127,  61  N.  W.  413;  Franklin 
Goal  Co.  ▼.  McMillan,  49  Md.  549,  33  Am.  Bep.  280.  But  a  witness 
seed  sot  have  been  subpoenaed  before  his  former  evidence  may 
be  read,  when  he  is  a  paralytic,  and  absolutely  unable  to  attend  the 
trill:  Covanhovan  v.  Hart,  21  Pa.  8t.  495,  60  Am.  Dec.  67.  If  a 
iritnees  is  absent  from  the  state  or  out  of  the  jurisdiction  of  the 
eonrt,  endence  to  show  what  his  testimony  was  upon  a  former  trial 
of  the  ease  is  not  admissible  without  a  showing  of  his  absence  and 
of  due  diligence  to  procure  either  his  attendance  or  his  deposition: 
Cinady  v.  Trustees,  105  HI.  560;  Piano  Mfg.  Co.  v.  Parmenter,  56 
HL  App.  258;  Hemingway  ete.  Co.  v.  Porter,  94  HI.  App.  609;  Slusser 
T.  City  of  Burlington,  47  Iowa,  300;  Case  v.  Blood,  71  Iowa,  632, 
33  N.  W.  144;  Arderry  v.  Commonwealth,  8  J.  J.  Marsh.  183;  Dar- 
mH  v.  Goodwin,  1  Har.  ft  J.  282;  Wilder  v.  City  of  St.  Paul,  12 
MhuL  192;  Wittenberg  v.  MoUyneauz,  59  Neb.  203,  80  N.  W.  824. 
The  best  sources  of  information  reasonably  accessible  must  be  used 
to  leam  whether  the  witness  himself  cannot  be  found,  otherwise 
bis  previous  testimony  is  not  admissible:  Mawich  v.  Elsey,  47  Mich. 
10, 10  N.  W.  57.  Evidence  simply  that  such  witness  is  reputed  to  have 
left  the  state  is  not  sufficient  to  admit  his  former  testimony:  Bald- 
win V.  St.  Louis  etc.  By.  Co.,  68  Iowa,  37,  25  N.  W.  918.  If  the 
witaeai  is  only  temporarily  absent  from  the  state,  and  it  does  not 
appear  that  he  has  been  subpoenaed,  or  that  any  effort  has  been 
Bide  to  procure  his  testimony  or  personal  attendance,  his  former  tes- 
timony eannot  be  introduced:  Kellogg  v.  Secord,  42  Mich.  318,  3  N.  W. 


Where  it  has  been  impossible  to  secure  the  presence  of  a  witness 
vlio  has  testified  at  the  first  trial  of  the  case,  it  is  proper  to  admit 
^▼ideiiee  of  an  unsuccessful  effort  to  find  such  witness,  in  order  to 
lay  the  foundation  for  admitting  his  testimony  in  the  former  trial: 
Mmaa  v.  Heron,  169  Pa.  St.  510,  32  Atl.  594.  The  testimony  of 
*  witness  given  on  a  former  trial  is  admissible  on  a  subsequent 
Xnel  qI  the  same  action,  if  it  is  shown  that  a  subpoena  has  issued 


204  American  State  Bbpobts^  Vol.  91.        [KanflH 


for  such  witneaS)  and  that  an  officer  has  made  diligent  effort  to 
and  serve  him  within  the  eonnty  but  has  been  unable  to  do 
Spaulding  v.  Chicago  etc.  By.  Co.,  98  Iowa,  205,  67  N.  W.  287. 
is  especially  the  rule  when  fortified  with  other  evidence  of  an  li 
est  endeavor  to  locate  the  whereabouts  of  the  absent  witness:  Pilii 
V.  Kenner,  2  Bob.  (La.)  96.    Upon  the  preliminary  inquiry  in  suel 
cases   as  to  whether  the  witness  is  domiciled  out  of  the  state,  or  ii 
likely  to  remain  out  of  the  reach  of  the  process  of  the  court,   hu 
own  declarations  of  intention  are  admissible,  in  connection  with  evi- 
dence of  the  fact  of  his  departure  or  absence  from  the  state:  Kiiifl 
V.  McCarthy,  54  Minn.  190,  55  N.  W.  690.    Thus,  the  absence    of 
the  witness  from  the  jurisdiction  of  the  court  is  sufficiently  ahoirs 
to  admit  the  reading  of  his  former  testimony  in  evidence  by  the 
affidavit  of  the  officer  into  whose  hands  a  subpoena  has  been  plaeed 
for  service  on  such  witness,  that  he  was  unable  to  find  him  witfaia 
the  state,  and  was  informed  that  he  was  in  another  state,  mppte- 
mented  by  the  testimony  of  the  witness'  attorney  that  he  hmd 
informed  by  his  client  that  he  was  going  to  such  other  state, 
that  he  had,  just  previous  to  the  trial,  received  letters  from 
postmarked  in  such  other  state:  Wheeler  v.  Jenison,  120  Mich.  422^ 
79  K.  W.  643.    Evidence  that  a  witness  a  few  months  prior  to  tbe 
trial  left  for  a  foreign  country  with   the  intention  of  remaining 
there  for  two  years,  and  that  plaintiff  had  received  letters  from  him 
dated  in  such  country,  is  sufficient  proof  of  his  nonreeidence  to  ad- 
mit the  introduction  of  his  testimony  given  on  a  former  trial  of  the 
cas6:  Wheeler  v.  McFerron,  38  Or.  105,  62  Pae.  1015.    If  it  is  showa 
that  a  witness  has  removed  from  the  state  permanently,  his  testi- 
mony as  taken  and  preserved  on  a  former  trial  of  the  same  ease  ia 
admissible  without  a  showing  of  the  exercise  of  diligence  to  procure 
the  deposition  of  such  witness:  Emerson  v.  Burnett,  11  Colo.  App. 
86,  52  Pae.  752.    In  order  to  admit  the  evidence  of  an  absent  wit- 
ness given  on  a  former  trial,  it  must  be  first  shown  that  such  tea* 
timony  is  complete,  and  if  it  appears  that  the  witness  absented 
himself  from  that  trial  before  he  was  fully  examined,  his  testimony 
cannot  be  read  in  evidence:  Noble  v.  McClintock,  6  Watts  ft  8.  58. 

c  Qnalllications  of  Witness.— Although  it  has  been  held  that  if 
a  person  is  offered  as  a  witness  to  prove  the  testimony  of  a  witness 
sinco  deceased,  given  on  a  former  trial  of  the  same  case,  he  cannot 
be  permitted  to  testify,  if  he  states  that  he  can  give  only  the 
substance  of  such  testimony,  but  not  the  exact  language  of  the  wit- 
ness: Jackson  v.  Soude,  B.  M.  Charlt.  38;  Ephraims  v.  Murdoch,  7 
Blackf.  10;  Warren  v.  Nichols,  6  Met.  261;  Marsh  v.  Jones,  21  Vt. 
378,  52  Am.  Dec.  67;  Williams  v.  Willard,  23  Vt.  370;  such  a  doctrine, 
without  qualification,  is  undoubtedly  untenable  and  unsound,  as  will 
be  shown  by  authorities  cited  hereafter.  The  true  rule,  as  sustained 
by  numerous  authorities,  is,  that  the  testimony  of  what  a  deceased 
witness  swore  to  on  a  former  trial  of  the  same  case  is  admissible,  if 
the  witness  can  state  the  whole  substance  of  what  was  sworn  to,  al- 


Jan.  1902.]      Atchisoh  ktc.  R.  R.  Ca  v.  Obborn.  205 

tkoagb  he  may  not  be  able  to  give  the  exact  words:  Gilderaleeve  t. 
CRnwaj,  10  Ala.  260,  44  Am.  Dee.  485.  It  is,  however,  eaeential 
tbftt  the  witness  called  to  give  the  testimony  of  a  witness  since  de- 
eetsed  upon  a  former  trial  mast  be  able  to  state  the  substance  of 
the  whole  of  the  latter 's  testimony  on  the  particular  subject  which 
lie  is  called  to  prove.  This  must  include  the  cross-examination  of 
tbe  deceased  witness  as  well  as  his  direct  examination,  and  if  the 
witness  can  testify  only  to  what  was  sworn  to  by  the  deceased  per- 
wn  in  his  examination  in  chief  without  giving  the  eross-examina- 
tioB,  it  cannot  be  received  in  evidence:  Harrison  v.  Charlton,  42  Iowa, 
573;  Fell  v.  Burlington  etc.  B.  B.  Co.,  43  Iowa,  177;  Tibbetts  v. 
Itaden,  18  N.  H.  284;  Wright  ▼.  Stowe,  4  Jones,  516;  Buie  v. 
Cvrer,  73  N.  C.  264;  Wolf  v.  Wyeth,  11  Serg.  ft  B.  140;  Kinnard 
T.  Willmore,  2  Heisk.  610.  The  rule  is  clearly  stated  in  Summons 
T.  State,  6  Ohio  St.  326,  that  it  is  not  essential  to  the  competency 
of  Bach  evidence  that  it  be  given  in  the  exact  words  of  the  de- 
c«ued  person,  but  while  the  witness  is  allowed  to  give  the  sub* 
itanee  of  the  statements  of  the  deceased  person  on  the  former  trial, 
Ite  is  not  allowed  the  latitude  of  giving  their  mere  effect,  and  it 
ii  enential  to  the  competency  of  the  witness  called  to  give  this  kind 
of  fvidence:  1.  That  he  heard  the  deceased  person  testify  on  the 
fonner  trial;  and  2.  That  he  has  such  an  accurate  recollection  of 
tk«  matter  stated  that  he  will,  on  his  oath,  assume  or  undertake  to 
umte  in  substance  the  whole  matter  sworn  to  by  the  deceased  wit- 
AM,  in  all  its  material  parts,  or  that  part  whereof  he  may  be  called 
upon  to  prove. 

The  rule  is  so  often  applied  that  if  a  witness  can  state  the  sub- 

ttanee  of  the  whole  testimony,  or  of  the  part  that  he  is  called  to 

testify  about,  given  by  a  witness  since  deceased,  on  a  former  trial, 

^  it  competent  to  testify,  although   he  cannot  repeat  the   exact 

W°>^  of  the  deceased,  that  it  may  be  said  to  be  of  universal 

i^tieation,  and  that  this  is  the  test  to  be  applied  to  the  competency 

of  the  witness:  Buch  v.  Bock  Island,  07  17.  S.  603;  Clealand  v.  Huey, 

IB  Ala.  343;  Trammell  v.  Hemphill,  27  Ga.  525;  Hutchins  v.  Corgan, 

59  HL  70;  Chicago  etc.  B.  B.   Co.   v.   Harmon,   17   111.   App.   640; 

Horner  v.  Williams,  23  Ind.  37;  Woods  v.  Oevecke,  28  Iowa,  561; 

Small  V,  Chicago  etc.  B.  B.  Co.,  55  Iowa,  582,  502,  8  N.  W.  437; 

Gannon  v.  Stevens,  13  Kan.  447;  Thompson  v.  Blackwell,  17  B.  Mon. 

609;  Lime  Bock  Bank  v.  Hewett,  52  Me.  531;  Garrott  v.  Johnson,  11 

Oill  k  J.  173,  3o  Am.  Dec.  272;  Burson  v.  Huntington,  21  Mich.  415; 

Costigan  ▼.  Lnnt,  127  Mass.  354;  Smith  v.  Natches  Steamboat  Co.,  1 

How.  (Miss.)  470;  Young  v.  Dearborn,  22  N.  H.  372;  Sloan  v.  Som- 

««,  20  N.  J.  L.  66;  Crawford  v.  Loper,  25  Barb.  440;  Carpenter  v. 

Tncker,  98  N.  C.  316,  3  a  E.  831;  Wagers  v.  Dickey,  17  Ohio,  430, 

^  Am.  Dec.  467;   Cornell  v.  Green,   10  Serg.   &  B.   14;   Hepler  v. 

Hount  Carmel  Sav.  Bank,  07  Pa.  St.  420,  30  Am.  Bep.  813;  Thurmond 

▼.  Trammell,  28  Tex.  371,  01  Am.  Dec.  321;  Caton  v.  Lenox,  5  Band. 

»^.  The  testimony  of  the  deceased  witness  at  a  former  trial  of  the 

■Mie  ease  may  be  proved  by  anyone  who  is  competent  to  testify, 


206  American  State  Beports,  Vol.  91.        [Kansai 

and  who  heard  and  can  remember  it:  Longhry  ▼.  Mail,  34  III.  A] 
523;  Solomon  B.  B.  Co.  v.  Jones,  84  Kan.  443,  8  Pae.  730;  Costi 
T.  Lnnty  127  Mara.  354;  State  ▼.  McDonald,  65  Me.  466;  Glass 
Beach,  5  Yt.  172.    A  person  who  cannot  give  the  language  of  *tl 
deceased  witness  substantially  as  he  gave  it  should  not  be  permitti 
to  testify  to  it:  Corey  ▼.  Janes,  15  Gray,  453.    The  witness  must 
able   and  profess  to  state  all  the  facts  testified  to  by  the  dee< 
witness:  Black  v.  Woodrow,  39  Md.  194.     And,  if  after  rohearsii 
the  testimony  the  witness  admits  that  he   cannot  give  the   w1io]# 
of  it,  or  the  substance  thereof,  he  should  not  be  permitted  to  te^ 
tify:  Emery  v.  Fowler,  39  Me.  326,  63  Am.  Dee.  627.     A  witness  whs 
does  not  remember  that  the  deceased  testified  at  a  former  trisl   is 
not  competent  to  testify  that  he  did  not:  Kinnard  v.  WiUmore,  8 
Heisk.  619.    In  order  to  be  competent  to  prove  the  testimony  gives 
by  the  deceased  witness,  the  present  witness  must  be  able  to  givs 
the  substance  of  the  former  evidence  from  memory,  though  he  msy 
use  his  own  or  another's  notes  thereof  to  refresh  his  memory:  Waters 
T.  Waters,  35  Md.  531;   Trimmer  t.  Trimmer,  90  N.  Y.  675;   Car- 
penter T.  Tucker,  98  N.  C.  316,  3  S.  E.  831;  Yancey  v.  Stone,  9  Rich. 
£q.  429.    The  testimony  of  a  master  in  chancery  that  in  a  former 
suit  involving  the  same  issue  he  intended  to  take,  and  believed  that 
he  had  taken,  the  exact  words  of  a  witness,  since  deceased,  la  sd- 
missible,  together  with  the  evidence  so  taken:  Yale  v.  Comstoek,  112 
Mass.  267.    A  witness  is  competent  to  prove  what  another  witness 
since  deceased  did  not  testify  to,  though  he  may  not  be  able  to  give 
the  substance  of  all  that  such  witness  testified  to:  Bemus  v.  Howard, 
3  Watts,  256.    Although  the  evidence  of  a  deceased  witness  at  a 
former  trial  may  be  proved  in  a  subsequent  trial,  the  legal  effect 
of  such  evidence  cannot  be  proved:  Bowie  v.  O'Neale,  5  Har.  4  J. 
226.    Defendant's  admission  of  what  he  has  testified  to  in  a  former 
suit  dispensee  with  proof  of  such  testimony  by   other  iritnomioe: 
Lamb  v.  Briggs,  22  Neb.  188,  34  N.  W.  217. 

ZV.    Mode  of  Proof. 

a.  Kotes  of  Testimony.— As  we  have  already  shown,  it  is  well 
settled  that  where  the  testimony  of  a  deceased  witness  is  offered, 
the  substance  of  his  whole  testimony  must  be  proved:  Woods  v. 
Keyes,  14  Allen,  236,  92  Am.  Dec.  765;  Ward  v.  Dow,  44  N.  H.  45; 
Odell  V.  Solomon,  23  Jones  ft  &  410;  Philadelphia  etc.  B.  B.  Co. 
V.  Spearman,  47  Pa.  St.  300,  86  Am.  Dec.  544;  and  if  any  parts  of 
it  are  irrelevant,  the  court  may  reject  them,  but  the  witness  can- 
not determine  the  relevancy  of  the  portions  which  he  omits:  Magee 
V.  Doe,  22  Ala.  699.  One  of  the  methods  often  resorted  to  for  the 
production  of  the  testimony  of  the  deceased  or  absent  witness  is 
the  notes  thereof  taken  at  the  former  trial  by  the  presiding  judge 
or  counsel,  or  the  witness,  and  it  is  well  settled  that  minutes  of  the 
testimony  of  a  witness  since  deceased  are  not  admissible,  in  the  ab- 
sence of  proof  of  their  accuracy:  Morris  v.  Hammerle,  40  Mo.  489. 
And  the  judge's  notes  of  the  testimony  of  a  witness  since  deceased 


Jul  1902.]      Atchison  etc.  R.  R.  Co.  v.  Osbobn.  207 

ire  not  admiasible  per  ie  on  the  mbseqnent  trial  of  the  same  casey 
hnt  most  be  proven  to  be  correct:  Simmons  t.  Spratt,  22  Fla.  370, 
\  South.  860;  Hnff  ▼.  Bennett,  4  Sand.  120,  6  N.  Y.  337;  Livingston 
T.  Cox,  8  Watts   &  S.  6L    Some  cases  assert  the  broad  proposition 
that  notes  of  the  former  testimony  of  a  deceased  witness,  taken  by 
the  judge,  are   not  admissible   to  prove   snch   testimony:    Citizens' 
State  Bank  v.  Adams,  91  Ind.  280;  Schafer  v.  Schafer,  93  Ind.  5S6; 
Taneey  v.  Stone,  9  Bich.  £q.  429.    Even  when  certified  by  the  judge 
to  be  a  trae  copy  of  such  testimony:  Miles  v.  O'Hara,  4  Binn.  108. 
A  jnstice's  notes  of  the  testimony  of  a  witness  since  deceased  are 
ioadmissible  where  the  justice  testifies  that  he  thinks  that  they  con- 
tain aU  the  facts  stated  by  the  witness,  but  probably  not  all  of  his 
words:  Elberfeldt  t.  Waite,  79  Wis.  284,  48  N.  W.  525.    The  true 
role  we  take  to  be  is,  that  the  minutes  or  notes  of  the  judge  of  the 
testimony  of  a  witness  since  deceased,  given  on  a  former  trial,  are 
not  of  themselves  evidence,  but  if  the  judge  making  them  can  tes- 
tify that  they  are  correct,  or  that  he  has  no  doubt  of  their  being 
10,  they  are  admissible.    If  he  cannot  testify  that  they  are  full  and 
aeeniate,  they  cannot  of  themselves  be  regarded  as  evidence:  Huif 
7.  Bennett,  4  Sand.  120,  6  N.  Y.  337.     This  is  only  in  keeping  with 
the  established  rule  that  minutes  of  the  testimony  of  a  deceased  wit- 
ness taken  at  a  former  trial  by  one  who  states  that  he  tried  to  take 
down  all  that  the  witness  said,  not  the  substance  alone,  are  admis- 
sible, although  the  witness  will  not  swear  that  he  took  down  every 
word:  Clark  v.  Vorce,  15  Wend.  193,  30  Am.  Dec.  53;  Van  Buren 
V.  Coekburn,  14  Barb.  118;  Martin  v.  Cope,  3  Abb.  App.  Dec.  182; 
Cornell  v.  Green,   10   Serg.   &   B.   14.     The   notes   of   an   attorney, 
taken  at  a  former  trial  between  the  same  parties,  of  the  testimony 
of  a  witness  since  deceased,  are  not  admissible  as  evidence  of  such 
testimony  per  se  in  a  subsequent  trial:  Waters  v.  Waters,  35  Md. 
^1.   But  such  notes,  if  sworn  to  be  correct,  and  to  contain  all'  of 
the  evidence  given  by  the  deceased  witness,  or  the  whole  of  the  sub- 
lUnee  thereof,  are  admissible  to  prove  his  testimony,  although  coun- 
m1  making  snch  notes  does  not  recollect  such  testimony  independently 
of  his  notes:  Mineral  Point  B.  B.  Co.  v.  Keep,  22  111.  9,  74  Am.  Dec. 
124;  Jones  v.  Ward,  3  Jones,  24,  64  Am.  Dec.  590;  Ashe  v.  De  Bossett, 
5  Jones,  299,  72  Am.  Dec.  552;  Chess  v.  Chess,  17  Serg.  A  B.  409; 
Hoore  v.  Pearson,  6  Watts    ft  S.  51;  Bhine  v.  Bobinson,  27  Pa.  St. 
30;  Philadelphia  etc.  B.  B.  Co.  v.  Spearen,  47  Pa.  St.  300,  86  Am. 
-   Dee.  544;  Whitcher  v.  Morey,  39  Vt.  460;  Earl  v.  Tupper,  45  Vt.  275. 
b.  Bfll  of  Bxceptloiis  or  Brief  of  Eridence.— Another  method  of 
proTing  the  testimony  of  a  witness  since  deceased,  or  out  of  the 
jariidiction  of  the  court,  given  on  a  former  trial,  is  by  producing 
tad  admitting  it  as  preserved  in  a  brief  of  evidence  taken  on  the 
to  trial    This  rule  prevails  in  Georgia,  where  it  is  maintained  that 
what  a  witness  since  deceased  or  absent  swore  to  on  a  former  trial, 
aid  taken  down  in  a  brief  or  testimony,  either  verified  by  the  oath 
•f  one  who  heard  it  given,  or  agreed  upon  by  counsel  or  the  parties 


208  Ambricak  Statb  Exports^  Vol.  91.       [Kansas^ 

u  being  eorreet  is  eompetent  evidenee  on  the  subsequent  trial:  Big- 
gins T.  Brown,  12  Ga.  271;  Walker  ▼.  Walker,  14  Oa.  242;  Adair  v. 
Adair,  39  Ga.  75;  Jackson  ▼•  Jackson,  47  Ga.  100;  Latkrop  v.  Adkisson, 
87  Ga.  339,  13  8.  E.  517;  (Htj  of  Columbus  ▼.  Ogletree,  102  Ga.  294, 
29  8.  E.  748;  I>enson  ▼.  Denson,  HI  Ga.  809,  35  8.  E.  680;  Owen  t. 
Palmour,  111  Ga.  885,  36  8.  E.  969.  The  testimony  of  such  witness 
may  be  proTcd  in  the  subsequent  trial  by  a  ''case"  settled,  allowed 
and  certified  as  containing  all  of  the  evidence  produced  at  the  former 
trial:  Slingerland  r.  Slingerlaad,  46  Minn.  100,  48  N.  W.  605;  Dwyer 
▼.  Bassett,  1  Tex.  Civ.  App.  513,  21  8.  W.  621.  But  in  order  that 
the  testimony  may  be  thus  admitted,  the  death  of  the  witness  must 
be  proved,  and  the  testimony  contained  in  the  agreed  statement  of 
facts  must  be  shown  to  be  correct:  I>wyer  v.  Bippetoe,  72  Tex.  520, 

10  8.  W.  668.  A  transcript  of  the  testimony  of  the  deceased  witness 
given  on  the  former  trial  is  admissible  on  the  second  if  it  is  proved 
that  he  testified,  is  since  dead,  and  that  the  transcript  of  his  testi- 
mony is  correct:  Bredt  t.  8impson,  59  IlL  App.  333;  O'Connor  t. 
Mahoney,  159  HI.  69,  42  N.  E.  378;  Cooper  v.  Ford  (Tex.  Civ.  App.), 
69  8.  W.  487.  There  is  great  conflict  in  the  authorities  as  to  whether 
the  testimony  of  an  absent  witness  or  a  witness  since  deceased,  taken 
on  a  former  trial  and  preserved  in  a  bill  of  exceptions,  can  be  repro- 
dneed  and  admitted  at  the  second  or  subsequent  trial,  by  reading 
from  such  bill  of  exceptions.  Many  cases  hold  that  statements  con- 
tained in  a  bill  of  exceptions  of  the  testimony  of  a  witness  since 
deceased  or  absent  are  unqualifiedly  admissible  in  evidence  on  the 
second  trial:  Can tr ell  v.  Hewlett,  2  Bush,  311;  Coughlin  v.  Haeussler, 
50  Mo.  126;  Corby  v.  Wright,  9  Mo.  App.  5;  Franklin  v.  GumerseU, 

11  Mo.  App.  306;  Bruce  Lumber  Co.  v.  Hoos,  67  Mo.  App.  264; 
Wilson  V.  Noonan,  35  Wis.  321.  Other  eases  qualify  the  rule  by 
adding  that  in  order  to  make  the  testimony  admissible,  it  must  be 
first  shown  that  the  testimony  of  the  witness  as  contained  in  the 
bill  is  correct  as  taken  at  the  former  trial,  and  that  he  is  either 
dead,  unable  to  attend  the  trial,  or  without  the  jurisdiction  of  the 
court:  Torrey  v.  Burney,  113  Ala.  496,  21  8outh.  348;  Piano  Mfg. 
Co.  V.  Parmenter,  56  111.  App.  258;  Woollen  v.  Wire,  110  Ind,  251, 
11  N.  E.  236;  Fisher  v.  Fisher,  131  Ind.  462,  29  N.  R  31;  8coville 
V.  Hannibal  etc.  R.  R.  Co.,  94  Mo.  84,  6  8.  W.  654;  Davis  ▼.  Kline, 
96  Mo.  401,  9  8.  W.  724.  Other  cases  maintain  the  strict  doctrine 
that  a  bill  of  exceptions  is  not  admissible  to  show  what  the  testi- 
mony of  a  witness  since  deceased  or  out  of  the  jurisdiction  of  the 
court  was  at  the  former  trial.  Such  evidence  must  be  shown  bv 
the  testimony  of  sworn  living  witnesses,  wherever  the  latter  doctrine 
prevails:  Simmons  v.  Spratt,  26  Fla.  449,  8  South.  123;  Stem  ▼.  People, 
102  111.  540;  Kankakee  etc.  R.  R.  Co.  v.  Horan,  131  HI.  288,  23  N. 
E.  621;  Illinois  Central  R.  R.  Co. 'v.  Ashline,  171  111.  313,  49  N.  B. 
521;  City  of  Elgin  v.  Welch,  23  111.  App.  185;  Montgomery  ▼.  Handy, 
63  Miss.  43;  Kirk  v.  Mowry,  24  Ohio  St.  581;  Edwards  v.  Gimbel,  202 
Pa.  St.  30,  51  Atl.  357. 


Jan.  1902.]  Hall  v.  Eellbb.  209 


HALL  T.  KELLER 

[64  Kan.  211,  67  Pae.  518.] 

OONSiaKOB  AND  OONSIONEE— Liability  for  Failure  of 
Iftle.— Neither  the  payee  nor  a  bank  collecting  a  draft  drawn  hy 
tke  eonmgnor  of  grain  and  accompanying  a  bill  of  lading  ia  liable 
to  the  consignee  accepting  and  paying  the  draft  for  a  failure  of 
title  to  the  property  described  in  such  biU.     (pp.  211,  212.) 

B.  L.  King,  Thomas  0.  Kelley,  and  ELarnes,  New,  Hall  & 
Erauthoff,  for  the  plaintiffs  in  error. 

Eeller  &  Dean,  for  the  defendants  in  error. 

"  SMITH,  J.  Oliis  was  an  action  brought  by  the  firm  of 
Hall  &  Bobinson  against  Keller  &  Dean  imd  th^  First  National 
Baiik  of  Marion,  to  recover  the  sum  of  six  hundred  and  sixty-six 
dollars  and  interest.  The  facts  in  the  case  may  be  stated 
briefly:  Keller  &  Dean,  a  firm  of  lawyers  in  Marion,  brought 
6e?erals  actions  for  different  clients  against  a  farmer  in  Marion 
cotmty,  and  levied  writs  of  attachment  on  about  two  thousand 
bushels  of  com.  The  writs  were  served  by  one  Jacob  Konrath, 
a  constable.  While  he  had  the  com  in  his  possession,  it  was 
agreed  between  the  parties  to  the  actions  that  it  should  be 
dapped  to  Kansas  City,  in  order  to  obtain  the  highest  market 
price.  Konrath  loaded  the  grain  into  cars  of  the  Chicago,  Bock 
Hand  and  Pacific  Bailway  Company,  and  consigned  it  to  the 
order  of  himself  at  Kansas  City,  and  took  a  bill  of  lading  for 
«wii  car  (four  in  number).  On  the  following  day  he  drew  a 
sight  draft  on  Hall  &  Bobinson,  graindealers,  in  Kansas  City, 
«ft  follows: 

'TIBST  NATIOIsrAL  BANK  OP  MAEIOK 

"Marion,  Kan.,  August  28,  1890. 
"At  giglit,  pay  to  the  order  of  Keller  &  Dean  $716  and  no-100 
toffs,  value  received,  and  charge  to  the  account  of 

"JACOB  KONEATH.** 

"To  Hall  &  Bobinson,  Kansas  City,  Mo/' 

This  draft  was  indoreed  thus :  "Pay  to  First  National  Bank 
rf  Marion,  or  order. 

"KELLEE  &  DEAN.'' 

The  amount  of  the  draft  (seven  hundred  and  sixteen  dol- 
^)  vag  credited  to  Keller  &  Dean  on  the  books  of  the  bank. 
The  draft,  with  bills  of  lading  attached,  was  then  forwarded 

Am.  St   ReiK,   Vol.   »lr-14 


SIO  American  State  Beports^  Vol.  91.       [Kansav 

by  the  First  ITational  Bank  of  Marion  to  the  American  National 
Bank  at  Kansas  Citj^  indorsed  by  the  former  for  collection. 
Upon  its  arrival  there.  Hall  &  Eobinson  ***  accepted  it  for 
the  sum  of  six  hundred  and  sixty-six  dollars  only,  notifying  the 
drawer  (Konrath).  This  change  of  amount  was  not  objected 
to  by  the  drawer  or  indorsers,  and,  for  the  purpose  of  this  case, 
the  draft  may  be  treated  as  having  been  drawn  for  six  hundred 
and  sixty-six  dollars  in  the  first  instance,  The  above  amount 
was  collected  by  the  American  National  Bank  from  Hall  & 
Bobinson  and  remitted  to  the  First  National  Bank  of  Marion. 

On  the  day  that  the  com  was  shipped^  Konrath  wrote  a  letter 
to  plaintiffs  in  error,  as  follows : 

"Lehigh,  Kan.,  August  28,  1890. 
"Hall  &  Bobinson,  Kansas  City,  Mo.: 

"Gentlemen:  I  have  shipped  you  to-day  four  cars  com,  con* 
taining  2108  bus.  of  com ;  have  drawn  on  you  $716,  whidi  you 
will  please  honor  when  presented.  Sell  it  for  the  best  you  can 
and  make  return  to  me  at  Lehigh,  Kan. 

"Yours  truly, 

"JACOB  KONRATH.'* 
"Corn  is  billed  to  my  name.    I  indorse  bill  of  lading.'* 

The  com  covered  by  bills  of  lading  never  reached  Kanstia 
City.  It  was  replevied  and  taken  from  the  possession  of  the  car- 
rier by  another  bank,  under  a  paramount  lien.  It  appears  that 
the  bills  of  lading  were  indorsed  in  blank  by  Jacob  Konrath^ 
the  shipper.  There  was  a  judgment  entered  against  the  plain- 
tiffs below  for  costs  and  they  have  prosecuted  error  here. 

The  determining  question  in  the  case  is  whether  Keller  &  Dean 
and  the  First  National  Bank  of  Marion,  under  the  facts  stated, 
became  liable  to  the  plaintiffs  in  error  for  a  failure  of  title  in 
the  property  shipped.  There  are  two  decisions  called  to  our  at- 
tention which  hold  that  a  bank,  by  its  act  of  cashing  a  draft 
payable  to  its  order,  with  bills  of  lading  attached,  becomes  the 
owner  of  the  property  and  undertakes  to  carry  out  the  ***  con- 
tract made  by  the  drawer  (the  shipper)  with  the  drawee  (the- 
consignee) :  Landa  v.  Lattin,  9  Tex.  Civ.  App.  246,  46  S. 
W.  48 ;  Finch  v.  Gregg,  126  N.  C.  176,  35  S.  E.  251.  In 
both  of  these  cases  the  grain  covered  by  the  bills  of  lading  at- 
tached to  the  drafts  which  the  banks  cashed  was  of  inferior  qual- 
ity, and  the  banks  were  held  liable  to  the  consignees  and  ac- 
ceptors of  the  drafts,  after  the  same  had  been  paid,  for  the  dif- 
ference in  value  between  the  good  quality  of  grain  which  the 
consignor  agreed  to  ship  and  the  bad  quality  actually  received. 


Jan.  1902.]  Hall  v.  Kellsb.  211 

We  are  not  favorably  impressed  with  the  logic  of  the  opinions 
in  these  cases.  We  think  their  weakness  lies  in  the  fact  that 
the  banks  are  treated  as  purchasers  of  the  grain.  This  conld 
not  be  true,  for  the  property  shipped  had  already  been  sold  to 
the  consignees,  the  acceptors  of  the*  drafts,  and  the  legal  effect 
of  the  acceptance  of  such  negotiable  paper  in  the  hands  of  an 
indorsee  for  value  at  the  time  seems  to  have  been  overlooked. 
The  right  to  the  price  only  was,  in  our  judgment,  transferred 
to  the  bank  in  the  present  case,  and  it  held  possession  of  the 
com  as  security  for  the  money  it  had  advanced :  Tolerton  etc. 
Co.  V.  Anglo-California  Bank,  112  Iowa,  706,  84  N.  W.  930. 
See,  also,  Halsey  v.  Warden,  25  Kan.  128. 

The  doctrine  of  the  Texas  and  North  Carolina  cases  is  shown 
in  the  Iowa  case  cited  to  be  unsound  in  principle.  The  court 
said :  **The  two  cases  cited  [referring  to  those  above  mentioned] 
stand  alone  in  holding  the  purchaser  of  a  draft  with  the  bill 
of  lading  attached  liable  on  a  warranty  made  by  the  as- 
signor, and  the  line  of  reasoning  pursued  to  reach  this  conclu- 
sion is  so  at  variance  with  well-established  elementary  prin- 
dples  of  law  that  we  decline  to  accept  the  rule  they  announce.'* 

***  In  the  case  from  which  we  have  quoted,  the  rule  of  the 
law  of  commercial  paper  is  applied,  to  the  effect  that  after  the 
holder  of  a  negotiable  draft,  with  bill  of  lading  attached,  has 
secured  an  acceptance  of  such  draft  by  the  drawee  and  consignee, 
he  cannot  be  affected  by  any  equities  existing  between  such  con- 
signee and  the  seller  of  the  goods :  Arpin  v.  Owens,  140  Mass. 
144,  3  K  E.  25. 

In  an  exhaustive  note  to  the  case  of  Finch  v.  Gregg,  found 
in  49  L.  B.  A.  679-683,  the  annotator  cities  and  comments  on 
a  large  number  of  well-considered  cases  which  uphold  the  doc- 
trine of  the  Iowa  decision  above  referred  to,  and,  in  conclusion, 
says:  'Trom  these  cases,  all  of  which  hold  that  after  a  draft 
attached  to  a  bill  of  lading  is  accepted  the  consignee  becomes 
absolutely  liable  on  the  acceptance,  and  that  after  payment 
thereon  is  made  he  cannot  recover  it  back,  notwithstanding  any 
failure  of  consideration  between  him  and  the  drawer,  it  would 
seem  that  the  decisions  in  the  main  case,  and  in  Landa  v.  Lat- 
tin,  9  Tex.  Civ.  App.  246,  46  S.  W.  48,  were  based  on  a 
wrong  principle,  and  that  if  the  right  principle  had  been  con- 
sidered the  decisions  must  have  been  different.'' 

To  fix  a  liability  upon  the  bank,  or  upon  Keller  &  Dean,  un- 
der the  circumstances  of  the  present  case,  would  not  only  vio- 
late well-settled  rules  of  the  law  governing  commercial  paper. 


212  American  State  Bbpobtb^  Vol.  91.       [Kansas^ 

but  would  also  tend  to  decrease  the  immezise  Yolnine  of  busi- 
ness which  is  carried  on  by  shippers  of  stock,  grain  and  other 
commodities,  by  restricting  that  freedom  with  which  banks  ad- 
vance money  to  the  drawers  of  such  drafts  with  bills  of  lading 
attached.  If  banks  in  whose  favor  such  bills  are  drawn  aie 
made  liable  for  damage  on  account  of  the  defective  quality  of 
the  property  shipped,  ^*®  and  covered  by  the  bill  of  lading, 
or  for  failure  of  title  in  the  drawer  of  the  draft,  a  serious  im- 
pediment would  be  placed  in  the  way  of  shippers  who  need  a 
part  or  all  of  the  price  of  the  commodity  sold  before  its  arrival 
in  the  market  to  which  it  is  consigned.  To  hold  with  the  plain- 
tiff in  error  would,  to  use  the  language  of  the  author  of  the  note 
in  French  v.  Gregg,  49  L.  B.  A.  679,  "undoubtedly  cause  a  revo- 
lution in  commercial  circles,*' 
The  judgment  of  the  court  below  will  be  affirmed* 

All  the  justices  concurring. 


UABIUTT  OF  ASSIGNEE  OF  SILL  OF  LADING  WITH  DBAFT 
ATTAOHED  TO  CONSIGNEE  FOB  FAILX7BE  OF  TITLE  TO 
OB  DEFECT  IN  GOODS,  OB  FAILUBE  OF  CONSIDE&ATION. 

Although  the  authorities  directly  in  point  npon  the  topic  nnder 
consideration  are  meager  indeed,  and  in  hopeless  conflict,  we  feel 
assured  that  the  principles  announced  in  the  principal  case  must,  in 
the  end,  prevaiL  This  doctrine,  briefly  stated,  is,  that  after  a  draft 
attached  to  a  biU  of  lading,  indorsed  by  the  consignor  to  an  assignee, 
is  accepted,  the  consignee  becomes  absolutely  liable  on  the  acceptance, 
and,  after  payment  thereon,  he  cannot  recover  either  from  the  payee 
or  from  the  person  or  bank  paying  the  draft  for  a  failure  of  title 
in  the  drawer  thereof  to  the  property  shipped,  or  for  a  breach  of 
warranty  as  to  the  quantity  or  quality  thereof. 

We  believe  with  Mr.  Justice  Smith,  who  wrote  the  opinion  in  the 
principal  case,  that  to  maintain  the  contrary  doctrine  and  to  fix  a 
liability  upon  the  party  paying  the  draft  or  upon  the  payee  imder 
such  circumstiances  ''would  not  only  violate  well-settled  rules  of  the 
law  governing  commercial  paper,  but  would  also  tend  to  deerease 
the  immense  volume  of  business  which  is  carried  on  by  shippers  of 
stock,  grain  and  other  commodities,  by  restricting  that  freedom  with 
which  banks  advance  money  to  the  drawers  of  such  drafts  with  bills 
of  lading  attached.  If  banks  in  whose  favor  such  bills  are  drawn 
are  made  liable  for  damage  on  account  of  the  defective  quality  of  the 
property  shipped  and  covered  by  the  biU  of  lading,  or  for  the  fail- 
ure of  title  in  the  drawer  of  the  draft,  a  serious  impediment  would 
be  placed  in  the  way  of  shippers  who  need  a  part  or  all  of  the  price 
of  the  commodity  sold  before  its  arrival  in  the  market  to  which  it 
is  consigned." 


Jan.  1902.]  Hall  v.  Keller.  213 

The  doeirine  80  seyerelj  criticised  in  the  principal  case  and  other 
euee— namel^^  that  the  assignee  of  a  bill  of  lading  with  draft  at- 
tached is,  in  ease  he  receives  payment  of  the  draft,  subject  to  an 
action  for  the  return  of  the  money  if  the  property  covered  by  the 
hill  of  lading   does  not  comply  with  the  contract—is  maintained  by 
the  ease  of  Finch  v.  Gregg,  126  N,  G.  176,  35  8.  E.  251,  holding  that 
if  the  shipper  of  goods  assigns  the  bill  of  lading,  with  draft  at- 
tached upon  the  consignee,  snch  assignee  takes  the  contract  of  the 
shipper  and  stands  in  his  shoes,  with  the  same  rights,  and  that  the 
rights  of  the  consignee  are  not  impaired  or  disturbed  by  the  change 
of  the  ownership  in  the  property,  and  he  has  the   same  defenses 
tgainst  the  assignee  as  against  the  shipper.    In  another  case  (Landa 
V.  Lattin,  19  Tex.  Civ.  App.  246,  46  8.  W.  48}    it  appeared  that  a 
▼endor  of  wheat,  nnder  a  contract  warranting  its  quality,  shipped  it, 
Uking  a  bill  of  lading  to  the  shipper's  order,  with  a  draft  for  the 
purchase  price  attached,  which  he  transferred   to  a  bank  and  re- 
ceived credit  therefor,  the  bank  forwarding  the  draft  and  bill  of 
Uding,  and  delivering  the  latter  on  payment  of  the  draft  by  the 
pnrchaser,  who  had  no  previous  opportunity  to  examine  the  grain, 
which  proved  defective  in  quality.    It  was  held  that  the  bank  ac- 
quired the  right  of  property  subject  to  the  burdens  imposed  by  the 
contract  of  sale,  and  was  liable  to  the  consignor  for  damages  for 
s  breach  of  the  warranty  in  the  quality  of  the  grain.    Both  of  the 
eases  above  cited  are  based  on  the  holding  in  Columbian  Nat.  Bank 
V.  White,  65  Mo.  App.  677,  to  the  effect  that  where  the  shipper  as- 
aigni  the  bill  of  lading  and  accompanying  draft,  the  title  to  the 
property  shipped  at  once  vests  in  the  assignee,  but  such  transfer 
of  title  does  not  disturb  or  impair  the  defenses  of  the  consignee 
against  the  transferee  and  payor  of  the  draft,  which  defenses  remain 
the  nune  against  him  as  against  the  assignor. 

On  the  other  hand,  the  doctrine  announced  in  the  principal  case 
was  probably  first  promulgated  in  the  well-considered  case  of  Toler- 
toa  V.  Anglo-California  Bank,  112  Iowa,  706,  84  N.  W.  930,  where 
it  was  decided  that  a  bank  purchasing  a  draft  from  the  consignor 
of  goods  accompanied  with  the  bill  of  lading,  after  collecting  the 
full  amount  of  the  draft,  is  not  liable  to  the  consignee  of  the  goods 
for  a  breach  of  the  warranty  made  by  the  consignor,  because  after 
the  holder  of  a  negotiable  draft  has  secured  payment  from  the 
drawee,  he  is  unaffected  by  any  equities  originally  existing  between 
the  drawer  and  drawee. 

In  delivering  the  opinion  in  this  case  Mr.  Justice  Waterman  said : 
"The  facts,  so  far  as  we  have  to  consider  them  under  the  issue 
upon  which  we  make  the  case  hinge,  may  be  accepted  as  set  out  by 
plaintiff.  There  was  a  sale  of  these  goods  with  a  warranty,  which 
was  broken.  Defendant  was  the  payee  of  the  draft  drawn  by  the 
eanneries  company  on  plaintiff  for  the  price,  with  the  bill  of  lad- 
ing attached,  and  as  such  received  payment  of  the  full  purchase  price. 
The  question  to  be  determined  is  whether  defendant  is  now  liable 


214  American  Statb  Bepobts,  Vol.  91.       [Eaoflfts^ 

in  damages  for  the  breaeh  of  the  canneries  company's  warrantj.  It 
must  be  confessed  that  this  theory  of  its  liability  is  fully  mpported 
by  the  ease  of  Landa  v.  Lattin,  19  Tex.  Giy.  App.  246,  i6  S.  W.  48, 
and  that  the  doctrine  of  this  case  has  been  adopted  and  followed 
by  the  supreme  court  of  North  Carolina  in  Finch  t.  Gregg,  126  N. 
C.  176,  35  S.  K  251,  decided  since  the  trial  below.  If  we  were  pre- 
pared to  yield  our  assent  to  the  line  of  reasoning  pursued  in  these 
cases,  we  should  have  to  affirm  this  judgment.  These  decisions  pro- 
ceed upon  the  theory  that  the  assignee  stands  in  all  respects  in  the 
shoes  of  his  assignor,  and  to  this  broad  doctrine  we  cannot  agree. 
While  the  rights  of  such  an  assignee  are  to  be  measured  by  those  of 
his  assignor,  his  liability  is  not  necessarily  the  same. 

''Defendant  bank  could  not  have  compelled  payment  by  plaintiff 
of  any  greater  sum  than  could  have  been  collected  by  the  canneries 
company,  but  on  what  theory  can  we  say  it  is  liable  on  a  contract 
of  warranty  which  it  never  madef  The  rule  of  the  Landa  ease  is 
founded  on  the  thought  that  the  transfer  of  the  draft  and  bill  of 
lading  to  the  bank  amounted  to  a  sale  of  the  goods,  and  that  the 
bank  as  a  purchaser  undertook  to  deliver  the  goods  and  carry  out 
the  canneries  company's  contract  with  plaintiff,  and  because  of  these 
facts  it  necessarily  assumed  the  contract  of  warranty,  although  it 
may  have  been  in  fact  ignorant  that  any  warranty  was  made.  We 
do  not  think,  even  as  the  proposition  is  thus  stated,  the  premises 
justify  the  conclusion.  But  the  premises  are  not  correct.  The  trans- 
action between  the  canneries  company  and  defendant  was  not  and 
«ould  not  be  a  sale  of  the  goods,  for  they  had  already  been  sold  to 
plaintiff,  and  it  was  the  intention  of  all  parties  that  such  sale  to 
plaintiff  should  be  consummated  by  delivery.  What  was  in  fact  done 
by  the  assignment  of  the  draft  and  bill  of  lading  was  to  transfer 
to  the  bank  the  canneries  company's  right  to  the  price,  and  to  give 
it  the  possession  of  the  goods  as  security.  Manifestly,  while  the 
bank  could  collect  no  more  than  its  assignor  would  have  been  en- 
titled to,  the  character  of  its  engagement  was  not  such  as  to  impose 
upon  it  any  liability  to  the  buyer  which  it  did  not  expressly  assume. 
One  who  purchased  an  account  against  another  takes  it  subject  to 
defenses,  but  not  to  affirmative  claims  of  the  debtor  on  some  col- 
lateral agreement  with  the  original  creditor.  The  two  cases  cited 
stand  alone  in  holding  the  purchaser  of  a  draft  with  the  bill  of  lad- 
ing attached  liuble  on  a  warranty  made  by  the  assignor,  and  the 
line  of  reasoning  pursued  to  reach  this  conclusion  is  so  at  variance 
with  well-established  elementary  principles  of  law  that  we  decline  to 
accept  the  rule  tbey  announce. 

**2.  If  there  is  any  liability  on  defendant's  part  to  plaintiff,  it 
must  be  on  the  ground  that  it  has  received  money  which  it  cannot 
oquitably  retain.  The  canneries  company  could  have  collected  only 
the  price  uf  the  goods,  less  the  damages  for  breach  of  warranty.  Morv 
than  this  has  been  paid  to  defendant.  If  plaintiff  has  any  stand- 
ing here,  it  is  to  recover  this  excess  paid,  on  the  theory  just  stated. 


Jail  1902.]  Hall  v.  Eillxr.  215 

Bat  the  draft  given  tlie  bank  was  negotiable,  and  it  is  a  well-es- 
tiblished  rule  of  law  that,  after  the  holder  of  a  negotiable  draft 
with  bin  of  lading  attached  has  secured  an  acceptance  of  such  draft 
from  the  drawee  and  consignee,  he  is  unaffected  by  any  equities  origi« 
uDj  existing  between  such  consignee  and  the  seller  of  the  goods.  In 
neh  a  case  the  liability  of  the  drawee  becomes  fixed  to  the  payee:  Ar- 
pin  ▼.  Owens,  140  Mass.  144,  3  N.  £.  25;  Floumoy  y.  Bank,  78  Ga.  222, 
2  a  B.  547;  Nowak  v.  Stone  Co.,  78  111.  307;  Law  ▼.  Brinker,  6  Colo. 
555;  Yanstrum  t.  Liljengren,  37  Minn.  191,  33  N.  W.  555;  Hays  ▼. 
Hsthom,  74  N.  Y.  486;  Shafer  y.  Bronenberg,  42  Ind.  89;  Bandolph 
on  Commercial  Paper,  1876.  It  is  said  in  the  first  of  these  cases: 
'Tbe  payee  of  an  accepted  bill  holds  the  same  relation  to  the  ac- 
ceptor that  an  indorsee  of  a  note  holds  to  the  maker.'  Under  this 
mle,  the  plaintiff,  after  an  acceptance  of  the  draft,  could  not  haye 
set  up  against  the  bank  any  claim  for  breach  of  warranty  made  by 
the  canneries  company,  and  if  this  is  the  effect  of  an  acceptance,  it 
certainly  is  of  a  payment":  Tolerton  y.  Anglo-Calif ornian  Bank,  112 
Iowa,  708,  84  N.  W.  930. 

In  Schreiber  y.  Andrews,  101  Fed.  763,  the  court,  after  laying 
down  the  rule  fortified  by  a  citation  of  cases,  that  "the  title  to 
goods  consigned  to  a  purchaser  by  the  indorsement,  of  the  bill  of 
htding  and  an  attached  draft  for  the  purchase  price  passes  to  the 
?endee  when  the  price  is  paid,"  proceeds  to  decide  that  if  a  con- 
signor deliyers  goods  at  the  point  of  shipment,  takes  bills  of  lad- 
ing in  his  own  name,  indorses  them,  draws  for  and  receiyes  payment 
for  the  full  purchase  price  before  inspection,  the  title  passes  to  the 
consignee  when  the  draft  is  paid,  and  entitles  him  to  recoyer  of 
the  consignor  an  oyerpayment  for  goods  deliyered,  and  damages 
for  a  hreach  of  warranty  of  the  grade  of  goods  shipped.  Nothing 
is  here  said  implying  any  liability  on  the  person  or  bank  who  paid 
the  draft,  but  the  liability  is  placed  where  it  really  belongs^ namely, 
on  the  consignor  for  his  breach  of  contract:  Schreiber  y.  Andrews, 
101  Fed.  766.  Other  cases  uphold  the  rule  contended  for  in  the  prind- 
pd  ease.  Thus,  in  Goetz  y.  Bank  of  Kansas  City,  119  U.  S.  551,  7 
Sap.  Ct  Rep.  318,  it  appeared  that  a  bank  discounted  seyeral  drafts 
vith  hills  of  lading  attached  thereto,  and  the  consignee,  after  ac- 
cepting and  paying  seyeral  of  the  drafts,  found  that  the  bills  of 
Ikdlng  were  forged,  and  refused  to  pay  one  draft  already  accepted 
by  him,  and  brought  action  against  the  bank  to  recoyer  the  amount 
of  the  drafts  paid  by  him.  The  court  held  that  the  bank  did  not, 
hj  discounting  the  drafts  or  by  indorsing  inyoicea  attached  to  the 
hills  of  lading,  "for  collection,"  guarantee  the  genuineness  of  the 
billa  of  lading,  and  that  its  right  to  recoyer  the  accepted  drafts  was 
Mt  defeated  by  mere  failure  to  inquire  into  the  consideration  of  the 
draft,  although  it  had  knowledge  of  rumors  of  the  bad  reputation 
of  the  drawer.  The  above  case  was  decided  on  the  authority  of 
Hoffman  y.  Bank  of  Milwaukee,  12  Wall.  181,  where  it  was  further 
Wld  that  a  bank  or  payee  who  discounts  a  draft  at  the  request  of 


216  American  State  Beports,  Vol.  91.       [Kansas, 

the  drawer  is  regarded  as  a  stranger  to  the'  acceptor,  as  to  the  con- 
sideration for  the  acceptance,  and  if  the  acceptance  is  absolute  in 
its  terms,  and  the  draft  was  received  in  good  faith  and  for  value, 
the  payee  may  reeoTer,  though  there  was  no  consideration  for  the 
acceptance  or  such  consideration  had  failed.    It  was  also  held  that 
it  was  immaterial  whether  the   draft  was  accepted  while  in    the 
hands  of  the  drawer  at  his  request,  or  after  it  had  passed  into  the 
hands  of  the  payee  at  his  request.    And  to  the  same  effect  is  United 
States  V.  Bank  of  Metropolis,  15  Pet.  398.    The  acceptor  of  a  bill 
of  exchange  attached  to  a  bill  of  lading,  is  bound  to  know   the 
drawer's  signature,  and  cannot,  after  acceptance,  recover  money  paid 
to  the  payee  in  ease  of  a  forged  or  fictitious  bill  of  lading:  Yonn^ 
V.  Lehman,  63  Ala.  519;  Randolph  v.  Merchants'  Nat.  Bank,  7  Baxt. 
458.    In  such  ease  the  drawee  of  the  draft  is  liable  on  his  acceptance, 
whether  the  payee  become  a  holder  of  the  draft  before  its  acceptance 
or  not:  Oraig  y.  Sibbett,  15  Pa.  St.  238.    The  drawee  is  not   en- 
titled to  recover  of  the  payee  the  amount  of  a  bill  of  exchange  which 
he  has  accepted  and  paid,  upon  the  ground  that  he  has  paid  it  under 
a  mistake  of  f aet  as  to  the  nature  or  value  of  the  security  from  the 
drawer,  when  the  security  accompanying  the  bill  proves  to  be  fictitious 
and  worthless:  First  Nat.  Bank  v.  Burkham,  32  Mich.  328.    These 
cases,  we  think,  are  conclusive  of  the  justness  and  legality  of  the 
rule  contended  for  in  the  principal  ease,  that  neither  the  payee  nor 
a  bank  collecting  a  draft  drawn  by  the  consignor  of  goods,  with 
a  bill  of  lading  attached  thereto,  is  liable  to  the  consignee  after  hia 
acceptance  and  payment  of  the  draft,  for  a  failure  of  title  to  the 
property  described*  in  the  bill  of  lading,  or  for  a  breach  of  warranty 
as  to  the  quality  or  quantity  of  the  goods  shipped,  or  for  a  failure 
of  consideration  in  whole  or  in  part,  from  any  eausoi  between  the 
consignor  and  the  consignee. 


PABKER  V.  HUGHES. 

[64  Kan.  216,  67  Pac.  637.] 

BI£0TI0K8.— If  on  ballots  on  which  the  same  name  appears 
two  or  more  times  as  that  of  a  candidate  for  the  same  office,  a 
stamp  is  placed  opposite  such  name  in  two  of  the  places  in  which 
it  so  appears,  such  double  markings  do  not  constitute  distinguishing 
marks  nor  a  marking  of  more  names  than  there  are  persons  to  be 
elected  to  the  office,  but  only  a  marking  of  the  same  name  more 
times  than  is  necessary,  and  the  ballots  should  be  counted,     (p.  218.) 

ELEOTION8— Ballots.— A  distinguishing  mark,  to  warrant  the 
rejection  of  a  ballot,  must  be  found  to  have  been  made  for  the  pur- 
pose of  identification,     (p.  221.) 

EIiEOTIOKS.— If  a  Package  of  Betnms  from  an  Election  Pre> 
clnct  Contains  More  Ballots  than  were  Counted  Therein,  and  it  is  not 
possible  to  distinguish  those  which  were  not  counted  from  those  that 
were,  the  whole  package  is  not  to  be  rejected,  but  the  surplus  bal- 


Jul  1902.]  Pabkeb  v.  Hughes.  217 

kta  should  be  dedneted  from  the  count  of  both  parties  in  propor- 
tion to  the  vote  for  each  in  the  precinct,  but  if,  on  inspection,  it  is 
found  that  so  many  of  the  ballots  must  be  rejected  that  the  number 
rrnnaining  is  less  than  the  number  voted  in  the  precinct,  the  balance 
•f  the  bidlots  should  be  counted  for  the  candidates  for  whom  they 
were  respective!/  voted*     (p.  222.) 

BlgOnONS—Plstliigninhlng  Marks.— Ballots  marked  with  ink 
or  with  a  pencil  other  than  black,  or  with  a  single  stroke  instead 
of  a  eross^  or  with  a  cross  after  a  name,  and  also  with  a  cross  in 
the  square  after  the  blank  space  on  the  right  of  the  ballot  without 
anj  name  being  written  there,  must  all  be  rejected  as  bearing  dis- 
tiaguishing  marks.  The  same  result  must  follow  where  the  ballot 
has  lines  drawn  across  it  or  names  partiaUy  or  whoUj  obliterated 
hj  pencil-marks,  or  names  or  initials  written  thereon,    (pp.  221,  222.) 

EUBCnONS— BaUots,  Wkeii  Must  be  Rejected.— If  a  SUtute 
Makfls  it  Orimlnal  to  so  mark  a  ballot  that  it  can  be  distinguished, 
saeh  statute  necessarily  implies  that  such  ballot  cannot  be  counted, 
(pp.  219,  222.) 

G.  C.  Clemens,  David  Overmeyep,  and  Ferry  &  Doran,  for  the 
plaintiff. 

Garver  &  Larimer,  Bedden,  McKeever  &  Hayden,  and  F.  P. 
lindsay,  for  the  defendant. 

»^  CUNNINGHAM,  J.  At  the  spring  election  of  1901,  in 
the  dty  of  Topeka,  plaintiff  and  defendant  were  opposing  candi- 
dates for  the  office  of  mayor.  The  plaintiff  had  receiyed  the 
nomination  from  the  Democratic  party  and  had  also  been  nomi- 
nated at  a  meeting  of  citizens,  so  that  his  name  appeared  twice 
upon  the  official  ballot.  The  defendant  was  the  regular  nominee 
of  the  Republican  party,  and  had  been  declared  elected  by  the 
proper  board  of  canyasaers :  Hiighea  y.  Parker,  63  Kan.  297,  65 
Pac  265.  This  is  an  original  proceeding  in  qno  warranto  to 
determine  whether  plaintiff  or  defendant  was,  in  fact,  elected  to 
the  office  of  mayor  at  said  election.  Both  parties  allege  that 
they  receiyed  a  majority  of  the  yotes  cast  and  are  entitled  to 
hold  the  office. 

The  court  appointed  James  E.  Larimer,  Esq.,  commissioner 
to  hear  evidence,  connt  the  ballots  and  ascertain  the  number  and 
character  of  those  disputed.  This  he  has  done  in  a  most  pains- 
taking and  careful  manner,  and  from  his  report  we  find  that, 
of  the  yotes  cast  at  said  election  concerning  which  no  objections 
▼ere  made  by  either  party,  Mr.  Hughes  receiyed  six  thousand 
two  hundred  and  eighty-five  Mr.  Parker  six  thousand  one  hun- 
dred and  twenty-five;  that,  in  addition  to  this  number,  there 
were  two  hundred  and  seventy-four  ballots,  to  which  objections 
for  various  causes  were  made  by  both  parties,  two  hundred  and 
eerenteen  of  these  objections  ho^v^  msrlp  on  behalf  of  Mr. 
Hnghes  and  fifty-seven  on  behalf  of  Mr.  Parker. 


21&  AUERICAN  STA.TB  BbPOBTS,  ToU  91.  [EuiM% 

From  the  second  precmct  of  the  first  wmcd 
there  *"  came  a  package  of  thirJy-mi  bal- 
lots, which  package  was  marked,  "Thia  pack- 
age contains  defective  or  objected  to  balloti 
not  TOted."  From  the  evidence  taken,  it 
reasonably  appears  that  twenty-nine  of  these 
ballots  were  put  into  the  ballot-box,  and  the 
probabilities  are  that  this  package  was  made 
np  of  seven  ballots  which,  for  some  cause  cff 
other,  had  been  returned  by  the  voters  to  the 
judges  before  they  were  voted,  and  the  other 
twenty-nine  were  ballots  which  came  out  of 
the  ballot-box,  but  which  had  been  put  aside 
during  the  count  of  the  ballots  by  the  judges 
of  election,  because  their  counting  had  been 
'  objected  to,  and  then  finally  had  been  gath- 
ered together  and  placed  in  the  padcage 
marked  as  above. 

The  two  hundred  and  seventy-four  ballots 
were  imperfect  for  a  great  variety  of  reasons, 
the  greater  part  of  which  were  based  upon  tht 
claim  made  by  the  defendant  that  "donbla 
marked"  ballots — that  is,  those  on  whidi  the 
name  of  Mr.  Parker  was  marked  in  both  dM 
Democratic  and  Citizens'  column,  should  not 
be  counted.  This  class  of  votes,  so  fiir  as 
they  relate  to  the  office  of  mayor,  will  be 
illustrated  by  a  copy  of  the  ti<^et,  printed 
on  this  page. 

The  defendant  claims  that  these  should 
not  be  counted  because  such  double  mark- 
ings constitnte  distinguishing  "*•  marks, 
within  the  meaning  of  the  statute;  and,  fur- 
ther, because  they  are  vidouB,  under  the  pro- 
visions of  the  Etatute  which  provides  that, 
"if  a  voter  marks  more  names  than  there  are 
persons  to  be  elected  to  an  office  his  vote 
shall  not  be  counted  for  such  office."  The  court,  however,  is 
of  the  opinion  that  neither  of  these  claims  is  well  founded; 
that  in  this  case  the  voters  did  not  mark  more  names  than  there 
were  persons  to  be  elected  to  an  office;  they  only  marked  the 
same  name  more  times  than  was  necessary. 

The  majority  of  the  court,  while  not  agreeing  upon  the  rca- 


s 

ii 

m 

a 

1 
i 

Sa 

111 

SliJ 

0 

i 

Ii 

5 

i 
111 

i 

1 

1 

i 

Jan.  1902.]  Parub  v.  Hughsb.  219 

•cms  therefor,  arriye  at  the  same  conclusion,  that  such  ballots  are 
not  iuTalid  because  of  being  double  marked.  The  chief  justice 
and  Mr.  Justice  Pollock  arrive  at  this  conclusion  from  the  follow- 
ing reasoning:  Section  25  of  the  Australian  ballot  law,  chapter 
129  of  the  Laws  of  1897,  specifically  points  out  certain  ballots 
that  shall  not  be  counted  if  found  marked  in  the  manner  therein 
forbidden.  This  list  prohibits  the  use  of  ink  or  pencil  of  any 
other  color  than  black,  and  requires,  by  reference  to  section  22^ 
that  the  mark  used  to  distinguish  the  voter's  choice  shall  be  a 
cross,  and  they  think  that  this  list  of  acts^  so  enumerated,  is  ex- 
clusive of  all  others;  that  the  express  mention  of  them  for  this 
purpose  implies  that  others  are  excluded;  that,  had  the  legis- 
lature intended  that  ballots  should  be  excluded  for  other  rea- 
eons  than  those  mentioned  and  the  voter  thus  disfranchised, 
it  would  have  said  so  and  not  left  it  to  inference;  that,  there 
being  no  statute  requiring  the  rejection  of  ballots  because  of 
distinguishing  marks,  no  ballot  may  be  rejected  because  of  such 
marks.  True,  section  27  of  this  law  makes  the  act  of  placing 
such  marks  upon  the  ballot  a  penal  one,  and  while  the  general 
hiw  of  the  state  is  that  an  act  done  in  violation  of  a  criminal 
statute  is  a  nullity,  ^^  this  rule  does  not  here  obtain,  for  the 
reason  that  it  is  overborne  by  the  stronger  one,  that  the  legisla- 
ture having  designated  certain  ballots  that  must  be  rejected, 
those  are  the  only  ones  that  can  be  rejected.  This  view  will 
be  found  well  supported  by  the  following  authorities  where  the 
provisions  of  the  Australian  ballot  system  have  been  construed 
and  applied:  Wigmore^s  Australian  Ballot  System,  2d  ed.,  193 
et  seq.;  People  v.  Board  of  Canvassers,  156  N".  Y.  36,  50  N". 
E.  425;  Attorney  General  v.  Glaser,  102  Mich.  406,  61  N".  W. 
648;  Sawin  v.  Pease,  6  Wyo.  92,  42  Pac.  750;  State  v.  Faw- 
cett,  17  Wash.  188,  49  Pac.  349 ;  Nicholls  v.  Barrick,  27  Colo. 
432,  62  Pac  202.  Clearly,  under  this  reasoning,  the  double- 
marked  ballots  must  be  counted. 

Mr.  Justice  Smith  is  of  the  opinion  that  no  right  to  have 
the  vote  counted  in  a  candidate's  favor  ought  to  spring  from 
a  criminal  act  on  the  part  of  the  voter,  so  that,  if  it  appears 
that  a  mark  has  been  placed  upon  a  given  ballot  for  the  purpose 
of  distinguishing  it,  such  ballot  cannot  be  counted.  The  plac- 
ing of  names  or  initials  upon  the  ballot  and  the  making  of  cross- 
marks  in  the  squares  opposite  the  blank  spaces  with  no  names 
written  therein  are  cited  as  instances  of  such  distinguishing 
marks,  these  making  it  apparent  that  the  voter  intended  to  vio- 
late the  law.  But  the  double  marking  of  the  same  name,  where 
that  name  has  been  printed  twice,  and  thereby  an  implied  invi- 


220  American  State  Reports,  Vol.  91.        [Kansas^ 

tation  extended  to  the  voters  so  to  mark,  is  not  of  itself  such  a 
distinguishing  mark.    While  section  27  of  chapter  129  of  the 
Laws  of  1897  makes  it  a  penal  act  for  a  voter  to  place  on  hi« 
ballot  "any  character  or  mark  for  the  purpose  of  identifying 
said  ballot/*  he  feels  sure  that  no  court  would  sustain  a  con- 
viction under  this  provision  of  any  one  of  the  one  hundred  and 
seventy-six  electors  who  voted  ***  these  double  marked  ballotB, 
upon  their  admission  of  the  fact;   hence,  because  these  voters 
would  not  be  liable  to  the  punishment  under  this  penal  provision 
for  voting  these  double  marked  ballots,  he  thinks  tiiat  they  should 
be  counted;  that,  as  regards  other  irregular  and  questionable 
markings  on  the  ballots,  the  judges  of  election  or  of  courts  called 
upon  to  count  the  same  must  in  each  case  determine  from  an 
inspection  of  the  ballot  what  the  intention  of  the  voter  was — 
whether  such  mark  was  intended  as  a  distinguishing  one  or  not. 
Mr.  Justice  Ellis  is  of  the  opinion  that  not  only  must  those 
ballots  which  are  marked  in  the  manner  forbidden  by  section 
25  be  excluded,  but  also  ballots  marked  in  contravention  of  the 
penal  section  27 — ^that  is,  a  ballot  bearing  a  distinguishing  mark 
purposely  made  should  be  rejected  if  the  mark  is  of  such  nature 
or  is  so  placed  on  the  ballot  that  the  judges  or  courts  mi^t 
find,  in  the  absence  of  testimony,  or  upon  testimony  if  offered, 
that  there  were  reasonable  grounds  for  believing  that  such  mark 
was  made  by  the  voter  with  the  intent  that  his  ballot  should  be 
distinguished  from  others  in  the  box;  that,  in  determining  what 
ballots  should  be  counted,  the  court  should  look  at  the  ques- 
tioned one,  and  from  such  inspection,  aided  by  the  notorious 
facts  and  circumstances  of  the  election  at  which  it  was  cast, 
determine  whether  the  questioned  mark  was  intended  by  the 
voter  as  a  distinguishing  mark  or  not,  and  if,  upon  such  inspec- 
tion and  consideration,  aided  by  evidence  aliunde  if  offered,  the 
court  should  conclude  that  the  mark  was  made  for  the  purpose 
of  distinguishing  the  ballot,  or  might  be  reasonably  thought  so 
to  be  intended,  the  ballot  should  not  be  counted.    In  this  case, 
applying  this  rule,  the  conclusion  is  reached  that  the  double- 
marked  ballots  *^  should  all  be  counted  for  Mr.  Parker.    The 
justice  whose  views  have  just  been  outlined  lays  down  four  rules 
to  govern  in  the  counting  of  questioned  ballots.    He  would  ex- 
clude :  1.  Those  where  ink  or  pencil  other  than  black  has  been 
used  to  mark  it;  2.  Those  which  are  not  marked  as  required  by 
other  sections  than  section  26 ;  3.  Those  where  for  any  reason 
it  is  impossible  to  determine  the  voter's  choice  for  an  office  to 
be  filled,  excluding  the  vote  only  as  to  such  office;  and  4.  Those 
where  the  voter  has  marked  more  names  than  there  are  persons- 


Jan.  1902.]  Pabksb  v.  Hughes.  221 

to  be  dected  to  an  office^  excluding  the  vote  only  as  to  such 
office. 

Whether  we  take  the  view  that  the  counting  of  ballots  with 
distinguishing  marks  is  not  prohibited,  but  rather  required  by 
the  statute,  or  that  these  double  marked  ballots  are  not  vicious 
as  ballots  marked  to  be  distinguished,  it  follows  that  they  must 
all  be  counted  for  Mr.  Parker.  We  quote  with  approval  the  law 
as  laid  down  in  the  syllabus  in  People  v.  Board  of  Canvassers, 
156  N.  Y.  36,  60  N.  E.  425 :  "The  presence  of  cross-marks  be- 
fore the  name  of  the  same  candidate  for  the  same  ofiSce  in  two 
different  columns  is  to  be  regarded  as  surplusage  merely,  and 
does  not  render  the  ballot  invalid  as  a  ballot  marked  for  identi- 
fication^' :  See,  also.  Attorney  General  v.  Olaser,  102  Mich.  406, 
61  K  W.  648;  Sawin  v.  Pease,  6  Wyo.  92,  42  Pac.  760. 

It  is  not  contended  by  the  defendant  that  these  double  marked 
ballots^  of  which  tKere  are  some  one  hundred  and  seventy-«iz, 
are  in  terms  excluded  from  the  count  by  the  statute,  but  only 
tbat  they  must  be  excluded  because  such  double  marking  con* 
stitates  a  distinguishing  mark,  by  which  it  may  be  inferred  that 
the  voter  sought  to  distinguish  his  ballot  for  tiie  purpose  of  be- 
ing able  to  assure  a  purchaser  of  votes  that  he  had  "delivered 
the  goods.''  It  must  be  admitted  that  these  marks  ^^  do  not 
necessarily  indicate  a  corrupt  purpose.  It  is  as  reasonable,  or 
more  reasonable,  to  say  that  the  voter  so  marked  his  ballot  out 
of  a  superabundance  of  caution,  or  because  he  found  Mr.  Par- 
ker's name  printed  twice,  and  supposed,  therefore,  that  he  was 
to  put  down  two  crosses,  as  to  say  that  his  act  must  be  explained 
upon  the  hypothesis  of  a  corrupt  motive.  This  is  made  doubly 
forceful  when  we  remember  the  large  number  of  ballots  so 
marked,  coming  from  all  parts  of  the  city.  It  is  the  duty  of 
the  court  to  ascertain  the  intent  of  the  voter,  and  if  it  may  fairly 
snd  reasonably  deduce  a  motive  consonant  with  honesty,  rather 
than  dishonesty,  from  his  ballot,  to  count  the  same  for  the  can- 
didate of  his  choice,  rather  than  to  disfranchise  him.  A  dis- 
tinguishing mark,  to  warrant  the  rejection  of  the  ballot,  must 
be  found  to  have  been  made  for  the  purpose  of  identification. 

These  double  marked  ballots  must  all  be  counted  for  Mr. 
Parker.  This  leaves  fifty-seven  ballots  claimed  by  Mr.  Hughes 
and  objected  to  by  Mr.  Parker,  and  about  forty-one  ballots 
claimed  by  Mr.  Parker  and  objected  to  by  Mr.  Hughes,  to  be 
disposed  of.  No  general  rule  other  than  that  already  laid  down 
can  be  invoked  to  aid  us  in  counting  these.  Quite  a  number 
are  marked  with  ink  or  with  pencil  other  than  black,  and  these 
are  all  rejected.     Some  are  marked  with  a  single  stroke,  thus 


222  American  State  Bbpobts,  Vol.  91.        [Kansas, 

2J  or  thus  121  or  thus  [T]  or  thus  Q  ,  instead  of  a 
cross;  these  also  must  be  rejected.  Some  are  marked  with  a 
cross  after  a  name  and  also  with  a  cross  in  tiiie  square  after  the 
blank  space  on  the  right  of  the  ballot,  without  any  name  being 
written  there;  these  are  rejected  as  being  distinguishing  marks. 
Some  are  found  with  lines  drawn  diagonally  across  the  face  of 
the  ticket  not  voted;  others  with  perpendicular  lines  through 
these  ***  names;  others  where  names  of  candidates  have  been 
wholly  or  partially  obliterated  by  pencil-marks  drawn  over  them ; 
others  with  names  or  initials  written  thereon — ^these  are  rejected 
as  being  made  invalid  by  distinguishing  marks. 

As  to  the  balance  of  these  disputed  ballots,  they  have  all  been 
carefully  gone  over,  and  have  been  rejected  or  counted,  in  each 
case  as  the  court  by  an  examination  of  the  markings  thereon 
came  to  the  conclusion  that  there  were  reasonable  grounds  for 
believing  that  such  mark  was,  or  was  not.  made  by  the  voter  with 
the  intent  that  his  ballot  should  be  thereby  distinguished. 

In  the  matter  of  the  thirty-six  ballots  which  came  from  the 
second  precinct  of  the  first  ward,  the  plaintiff  claims  that  the 
extra  seven  ballots  should  be  excluded,  under  the  rule*  laid  down 
by  McCrary,  in  his  work  on  Elections,  fourth  edition,  section 
495 — ^that  is,  by  deducting  the  same  from  the  vote  of  both  par- 
ties in  proportion  to  the  vote  for  each  in  the  precinct.  The  de- 
fendant claims  that,  inasmuch  as  it  cannot  now  be  determined 
which  of  these  ballots  were  voted,  the  entire  thirty-six  ought  to 
be  excluded  from  the  count;  otherwise  votes  might  be  counted 
which  were  never  voted.  To  sustain  this  claim^  the  rule  in 
Paine  on  Elections,  section  513,  is  cited.  We  are  of  the  opin- 
ion that  the  rule  invoked  by  the  plaintiff  is  the  proper  one,  so 
we  consider  all  of  these  ballots.  But  upon  looking  into  them 
we  find  there  are  but  twenty-one  which  are  entitled  to  be  counted, 
the  balance  being  faulty  for  various  reasons.  These  twenty- 
one  ballots  we  count  for  the  candidates  for  whom  they  were  cast 
in  each  case. 

From  the  entire  list  of  disputed  ballots,  we  find  that  Mr. 
Parker  is  entitled  to  have  counted  for  him  one  hundred  and 
eighty-nine.  *^  These,  added  to  his  undisputed  ones,  give  him 
a  total  vote  of  six  thousand  three  hundred  and  fourteen.  Mr. 
Hughes  is  entitled  to  have  counted  for  him,  out  of  the  disputed 
ballots,  twelve,  which  gives  him  a  total  vote  of  six  thousand  two 
hundred  and  ninety-seven,  giving  Mr.  Parker  a  majority  of  sev- 
enteen votes. 

It  follows,  therefore,  that  the  judgment  of  the  court  must  be 
for  the  plaintiff. 


Jan.  1902.]  Pabker  v.  Hughes.  22S 

Mr.  Jortlee  OmmSni^aiii,  who  wrote  the  above  opinion,  did  so  for 
the  purpose  of  expressing  the  views  of  the  majority  of  the  court, 
from  which  both  he  and  Justices  Johnston  and  Green  dissented,  and 
he  expressed  his  and  their  dissent  in  quite  a  lengthy  dissenting  opin- 
ion, in  which^  however,  all  concurred  in  the  proposition  that  a  stat- 
ute making  it  criminal  to  mark  a  ballot,  *'so  that  it  can  be  dis- 
tingaished,''  necessarily  implied  that  if  so  marked  it  cannot  be 
counted. 

Justice  Cunningham  then  proceeded  to  state  what  he  regarded  as 
the  difference  between  his  own  opinion  and  that  of  the  majority  of 
the  court,  as  follows: 

''As  a  basis  of  this  argument,  it  will  be  assumed  that  ballots  ob- 
nozions  to  the  provisions  of  section  27  ought  not  to  be  counted.    At 
this  point,  however,  Justices  Smith  and  Ellis  leave  us.    They  prefer 
to  adopt  the  uncertain  rule  of  determining  from  the  face  of  the 
hallot,  aided  by  what  the  judges  may  happen  to  know  outside,  or 
hj  evidence  aliunde,  what  are  distinguishing  marks,  rather  than  by 
the  safe  and  certain  rule  prescribed  by  the  law.    It  is  entirely  com- 
petent for  the  legislature  to  throw  around  the  exercise  of  the  elective 
franchise  such  safeguards  as,  in  its  discretion  and  sound  judgment, 
it  shall  deem  best  to  insure  a  pure  and  secret  ballot.    It  is  the 
acknowledged   primary  object  of  the  Australian  ballot  law  to  ac- 
complish this  end.    Its  accomplishment  is  more  important  than  that 
all  persons  of  the  requisite  age  should  be  counted  in  the  poll,  the 
object  being,  as  regards  votes,  quality  first  and  quantity  afterward. 
So  the  law  may  well  say  to  the  voter  that  if  he  wishes  his  vote  to 
be  counted   he  must  record  his  choice  of  candidates  in  this  pre- 
scribed manner;  that  his  intention  to  vote  must  be  ascertained  in  a 
given  way.    There  is  no  hardship  in  this.    If  the  citizen  would  vote, 
let  him  prepare  himself  to  do  so  in  the  manner  that  the  law  pre- 
icribes.    In  this  there  is  safety  for  his  vote  and  our  institutions 
as  irelL    If  the  board  of  election  judges,  or  the  larger  board  of 
sopreme  court   judges,  wlio  have  counted  the  ballots  in  this  case, 
usome  to  ascertain  the  intention  of  the  voter  from  the  face  of  the 
ballot,  when  that  intention  has  not  been  expressed  in  the  way  pointed 
out  by  the  statute  they  may,  perchance,  deduce  the  wrong  intention 
—may  disfranchise  the  voter;  but,  however  this  may  be,  this  court, 
following  many  others,  has  already  decided  that  the  provisions  of 
the  Australian  ballot  law  are  mandatory^^and  that  ballots  not  marked 
in  aecordance  with  those  provisions  are  not  entitled  to  be  counted: 
Taylor  v.  Bleakley,  55  Kan.  I,  49  Am.  St.  Bep.  233,  39  Pac.  I04o. 
Hence,  there  only  remains  for  us  to  inquire  what  those  provisions  are. 
''As  to  the  marks  mentioned  in  section  25,  we  are  all  at  one.    The 
law  says  expressly  that  the  ballot  shall  not  be  counted  if  marked 
u  therein  forbidden.    As  to  the  so-called  distinguishing  marks  men- 
tioned in  section  27,  the  majority  hold  them  to  be  as  fatal,  if  they 
are  distinguishing  marks.    But,  to  be  distinguishing  marks  that  shall 
be  obnoxious  to  the  law,  Justices  Smith  and  Ellis  say  that   they 


224  American  State  Bspobts^  Vol.  91.        [Kanaaa, 

must  not  only  be  marks  that  distingnisli,  but  tbat  tbe  judges  br 
looking  at  them  must  in  some  unexplained  and  occult  manner  be 
able  to  deduce  therefrom  the  intent  of  the  voter  thus  to  distinguish 
the  ballots.  This  interpretation  is  faultj  for  two  reasons:  1.  it  is 
not  consonant  with  the  language  of  the  statute.  The  inhibition  bj 
the  statute  is  against  the  counting  of  the  ballot  when  'anj  person 
shall  ....  mark  or  fold  his  ballot  so  that  it  can  be  distinguished.' 
If  the  marking  or  folding  is  of  such  character  that  from  it  the 
ballot  could  be  distinguished,  then  it  may  not  be  counted.  The  baa 
of  the  law  is  upon  the  ballot  if  it  be  marked  or  folded  so  that  it 
can  be  distinguished.  2.  With  this  interpretation  the  law  is  en- 
tirely without  force  and  cannot  be  administered  with  certainty. 
One  judge  may  look  at  a  ballot  on  which  are  distinguishing  marks 
and  say  that  he  does  not  think  that  the  voter  intended  by  this 
mark  to  distinguish  the  ballot,  and  another  judge,  looking  at  the 
same  ballot,  may  come  to  a  contrary  conclusion.  This  case  fur- 
nishes many  examples  of  such  variance. 

"The  voter's  intention  in  this  matter  must  be  gathered  from  what 
he  does.  If  the  ballot  be  marked  'so  that  it  can  be  distinguished,' 
then  the  mark  is  a  distinguishing  mark.  If  the  voter  does  not  know 
how  to  mark  his  ballot,  sworn  assistants  are  provided.  If  he  spoil 
his  ballot,  another  can  be  obtained.  How  small  a  percentage  of 
voters  there  are  who  do  not  know  how  to  vote  under  this  system  is 
shown  by  the  fact  that  in  the  election  now  being  considered  onlj 
about  two  per  cent  of  the  votes  cast  are  involved  in  this  contro- 
versy. This  two  per  cent  of  the  voters  would  better  be  disfranchised 
than  that  the  ballot  law  be  despoiled  of  its  safeguards.  Our  brethren 
have  brought  the  principle  for  which  they  stand— that  of  arriving 
at  the  intention  of  the  voter— from  the  old  methods.  Before  the 
enactment  of  the  reformed  methods  of  voting,  commonly  called  the 
Australian  ballot  laws,  the  intention  of  the  voter  thus  determined 
was  the  solvent  which  was  applied  to  all  difficult  questions,  and 
unutterable  confusion  was  the  result.  ITnder  the  new  law  the  in- 
tention may  be  found  only  in  the  voter 's  act. 

"In  our  opinion,  these  double  marked  ballots  are  so  marked. that 
they  can  be  distinguished.  That  there  are  one  hundred  and  seventy* 
8ix  of  them  rather  than  one  does  not  change  their  character.  They 
should  not  be  counted,  because  the  law  forbids  the  counting  of  bal- 
lots with  distinguishing  marks.  That  in  this  case  there  are  so 
many  does  not  matter.  In  some  other  election  there  might  not  he 
BO  many.  It  is  a  rule  which  is  being  established,  and  not  a  par- 
ticular application.  We  think  the  authorities,  so  far  as  they  go, 
hold  with  this  contention.  The  case  of  Attorney  General  v.  Glaser, 
102  Mich.  406,  61  N.  W.  648,  cited  above,  was  one  in  which  the 
identical  question  at  issue  here  was  presented.  The  court  in  the 
original  opinion  (102  Mich.  396,  402,  64  N.  W.  828),  held  in  the  <ol- 


Jan.  1902.]  Pabkeb  v.  Hughss.  225 

lowing  language:  'A  large  nmnber  of  defective  ballots  had  a  erou 
under  the  party  name  of  the  Bepublican  and  also  of  the  Citizens' 
ticket  The  tickets  were,  it  is  true,  identical;  but  a  single  mark 
eonstitated  a  vote,  and  the  second  mark  was  wholly  unnecessary 
and  inappropriate  to  register  the  voter's  intent— as  mnch  so  as 
wonld  have  been  any  mark  placed  under  the  Democratic  ticket.  Such 
mark  might  have  been  an  agreed  means  for  identification  of  the 
ballot,  and  must  be  held  to  have  been  a  distinguishing  mark.  There 
were  also  a  number  of  tickets  in  which  the  names  of  the  candidates 
as  they  appeared  on  both  tickets,  both  being  identical,  were  marked. 
These  are  subject  to  the  same  considerations.' 

"But  afterward,  on  a  rehearing  of  the  case,  it  having  been  called 
to  the  attention  of  the  court  that  the  attorney  general  had  on  three 
different  elections  expressed  a  widely  disseminated  opinion  constru- 
ing the  law  otherwise,  which  opinon  had  quite  generally  been  acted 
upon,  the  court,  without  in  the  least  changing  its  former  judg- 
ment, expressed  itself,  at  page  409,  as  follows:  'We  think,  in  view 
of  this  practical  construction,  it  should  be  held  that  the  class  of 
ballots  above  referred  to  are  not  illegal.'  So  that  on  principle  the 
Michigan  supreme  court  stands  committed  to  the  proposition  that 
iaeh  ballots  should  not  be  counted. 

*'The  New  York  ease  (People  v.  Board  of  Canvassers,  156  N.  T. 
^»  50  N.  E.  425)  was  decided  by  a  divided  court.  Even  the  opin- 
ion  of  the  majority  is  based  upon  an  analogy  existing  between  the 
question  in  hand  and  the  express  provision  contained  in  another  part 
of  the  statute.  So  that,  at  its  best,  this  case  is  of  light  weight  as 
an  authority  here.  The  minority,  however,  two  to  three,  express 
themsdves  in  the  following  language,  speaking  of  double  marked 
ballots:  'It  was  an  attempt  to  vote  twice  for  the  same  candidate,  and 
wfaateyer  may  have  been  the  intention  of  the  voter,  the  second  vot- 
ing mark  is  prohibited  by  the  statute,  since  it  would  be  a  convenient 
means  of  identification,  and  hence  these  ballots  cannot  be  counted.' 
''As  bearing  upon  the  particular  question,  and  as  indicating  the 
strictness  with  which  the  various  courts  are  applying  the  provisions 
of  the  Australian  ballot  law,  and  as  suggestive  of  the  wide  departure 
this  court  is  making  by  the  judgment  of  the  majority  in  this  case 
from  such  general  trend,  the  following  quotation  is  made  from  a 
recent  California  case,  Farnham  v.  Boland,  134  Cal.  151,  66  Pac. 
200,  at  page  201:  'Under  objection  No.  1,  we  find  a  class  of  ballots 
counted  by  the  trial  court,  where  a  cross  is  placed  in  a  square,  there 
being  no  candidate's  name  opposite  the  square.  Such  a  cross  is  not 
in  a  legal  place.  The  voter  had  no  right,  under  the  law,  to  place 
it  there,  and  it  is  a  distinguishing  mark,  which  demands  the  rejection 
of  that  class  of  ballots.  Under  objection  No.  2,  a  cross  is  found 
upon  a  class  of  ballots  directly  upon  the  line  dividing  the  two  squares. 
There  is  also  a  cross  in  each  of  the  squares  after  the  respective 
candidate's  name.  Thus,  there  is  found  a  cross  not  authorized  by 
the  Uw,  which  may  well  serve  as  a  means  of  identifying  the  ballot, 
Am.   St.    Rep..   Vol.   Mr-15 


226  American  State  Beports^  Vol.  91.       [Easflas^ 

and  ballots  so  marked  shotild  be  rejected.  Under  objection  No.  l, 
the  court  finds  a  class  of  ballots  where  two  crosses  are  made  afttf- 
the  candidate's  name,  one  within  the  square  and  one  without  the 
square.  There  is  no  simpler  way  of  evading  the  provision  of  the 
law  than  for  a  voter  to  mark  his  ballot  in  this  manner.  These  crosses 
so  placed  are  clearly  identifying  marks,  and  all  ballots  so  appearing 
should  be  rejected.  Under  objection  No.  4,  the  court  finds  a  class 
of  ballots  with  two  crosses  in  the  square.  Upon  some  of  these 
ballots  the  crosses  are  entirely  separate,  and  upon  others  they  are 
interlaced  and  joined  in  many  different  ways.  The  law  says  the 
voter  shall  stamp  a  cross  after  the  name  of  the  candidate;  not  twe 
crosses,  or  three  crosses,  but  a  ''cross."  Two  crosses  in  the  square 
is  no  less  a  mark  of  identification  than  two  crosses,  one  without  and 
one  within  the  square.  An  allowance  of  this  practice  would  furnish 
a  simple  expedient  by  which  the  law  could  be  violated.  Two  crosses 
in  the  square  is  not  a  legal  mark  upon  the  ballot.  The  law  only 
contemplates  one  cross,  and  therefore  ballots  so  marked  should  be 
rejected.' 

''There  can  be  no  question  but  that  the  courts  generally  are 
strictly  applying  the  provisions  of  the  reformed  election  laws,  and 
holding  such  provisions  mandatory.  What  reason  else  for  these  lawsT 
Tf  the  old  rules  of  groping  and  agonizing  for  the  intention  of  the 
voter,  with  little  regard  for  the  actual  character  of  his  ballot,  were 
sufficient,  why  should  the  legislature  seek   to  introduce  others f 

"As  pointed  out  in  Taylor  v.  Bleakley,  55  Kan.  1,  49  Am.  St.  Bep. 
233,  89  Pac  1045,  the  legislature  of  this  state  has  authoritatively 
construed  its  own  law  by  adopting  without  dissent  the  report  of  a 
committee  containing  the  following:  'The  great  innovation  upon  the 
prior  law  made  by  the  Australian  law  is  that  the  intention  of  the 
voter  shall  be  ascertained  by  an  application  to  the  ballot  of  the  di- 
rections contained  in  the  statute,  and  the  provisions  of  our  statate 
directing  the  manner  in  which  the  voter  shall  express  his  choice 
are  mandatory.  Another  object  of  the  law  is  to  prevent  the  put- 
ting upon  the  ballot,  by  the  voter  or  any  other  person,  any  mark 
save  and  except  the  cross  in  the  proper  space  which  will  designate 
that  ballot  from  any  other  ballot  cast.  Should  the  door  be  opei» 
to  permit  the  counting  of  ballots  containing  any  other  than  the 
marks  permitted  by  the  statute,  it  would  enable  persons  who  had 
bargained  for  votes  to  agree  upon  a  distinguishing  mark,  whereby 
it  could  be  determined,  by  a  mere  inspection  of  the  ballot,  whether 
or  not  the  voter  had  carried  out  his  part  of  the  contract,  thereby* 
thwarting  one  of  the  main  objects  of  the  law. ' 

"The  declaration  on  the  part  of  the  legislature  of  a  rule  of  eon* 
struction  of  its  own  enactment  ought  to  be  felt  as  of  some  binding 
force  upon  this  court,  even  if  its  own  approval  of  that  rule,  as  found 
in  Taylor  v.  Bleakley,  55  Kan.  1,  49  Am.  St.  Bep.  233,  89  Pac.  1045^ 
is  not. 


Jan.  1902.]  Pabkkr  v.  Hughes.  227 

"The  difficulties  with  which  the  majority  have  stmg^gled  in  the 
application  of  their  'intention  of  the  voter'  theory  amply  illustrate 
the  nntenable  character  of  that  theory.  By  way  of  illustration,  we 
cite  a  few  noticed  as  the  count  proceeded  in  this  case.  A  cross- 
mark  after  the  name  of  -either  Hughes  or  Parker,  and  also  one  in 
the  square  on  the  Independent  ticket  without  a  name,  were  thought 
to  indicate  a  purpose  to  distinguish,  while  a  cross  after  the  name 
of  Parker  wherever  it  appeared  on  the  ballot  did  not.  A  cross  par- 
tially obliterated  by  scratching  with  a  black  lead  pencil  is  held  not 
to  be  a  distinguishing  mark,  while  one  still  further  scratched,  so 
that  the  cross  is  entirely  obliterated,  is  found  to  indicate  to  the 
discerning  mind  a  bad  purpose.  If  the  scratching  still  further  pro- 
ceeds, aided  apparently  by  the  sharp  edge  of  a  knife,  so  that  a  hole 
is  left  in  the  paper  where  the  black  spot  had  been,  we  are  able  to 
declare — by  seeing  through  it— that  the  ballot  was  not  thereby  in- 
tended to  be  distinguished.  A  cross-mark  to  the  left  of  a  name 
partially  erased  distinguishes' a  ballot,  but  a  like  mark  in  one  of 
the  squares  to  .the  right  of  Parker 's  name  does  not.  A  single  stroke 
in  the  square  after  Hughes'  name  makes  a  bad  ballot,  but  a  like 
stroke  in  one  of  the  squares  after  Parker's  name  does  not,  providing 
a  good  cross  is  found  in  the  other  square.  The  'intention  of  the 
voter'  is  found  to  be  bad  if  he  makes  a  cross  outside  of  the  printed 
square,  the  statute  not  specifically  requiring  it  to  be  made  in  the 
square.  A  name  or  initials  written  on  the  ballot  causes  it  to  be 
rejected,  unless  by  a  comparison  with  other  initials  on  the  ballot, 
supposed  to  be  those  of  an  election  judge,  and  by  looking  at  the 
words  'sworn  ballot'  also  written  thereon,  it  shall  be  decided  that 
probably  the  name  was  written  there  by  the  election  judge.  It  is 
decided  that  the  intention  of  the  voter  who  deposited  this  ballot 

ALRCT  PJUKKEI^  Q  ''«^"  *11  right;  while  the   voter  wh6  de- 


posited this  one  jfc  j.  w.  F.  HUQHBB.      l2jl  ii^tended  it  to  be  distin- 
guished.  The  size  of  the  mark  evidently  had  somewhat  to  do  with  the 

tpplicatioiL  of  the  theory,  because  this  ballot^  j  ^  -^  HU0HB8      PS 

was  found  to  be  without  fault. 

A  correct  intention  on  the  part  of  the  voter  was  occasionally  so 
clearly  discerned  from  the  face  of  the  ballot  that  a  cross-mark  specifi- 
cally required  by  the  statute  was  not  found  to   be  necessary  to 

«xpr««  it,  -  i.  evideneod  by  thi.  b»»ot     ^i.sggr'pASkEB.     jjl 

uA  tliis       J,  ^'p  HUGHES      El  '^^^"■^  ^*'*   counted.    However, 
it  is  not  permitted  that  this  departure  shall  go  too  far,  for  this  ballot 


228  American  State  Bepobts^  Vol.  91.        [Kansas, 


J.  W.  F  HUOHBB      0^  ^^^  rejected.    Again,  perhaps  the  size  of 

the  mark  had  somewhat  to  do  with  the  ability  to  determine  tho 
intention. 

"Had  the  court  in  this  case,  after  having  admitted  to  the  count 
all  of  the  ballots  doubled  marked  for  Mr.  Parker  with  two  good 
crosses,  then  applied  what  seems  to  us  to  be  the  rational  rule  in 
the  counting  of  the  balance,  the  result  would  have  been  different. 
We  think,  however,  that  these  double  marked  ballots  were  not  only 
distinguished  by  such  marking,  so  as  to  require  their  rejection,  but 
that  they  also  should  have  been  rejected  because  they  are  expressly 
excluded  from  the  count  by  the  language  of  the  statute.  'If  the 
voter  marks  more  names  than  there  are  persons  to  be  elected  to 
an  office^'  his  ballot  may  not  be  counted.  This  language  does 
not  mean  the  same  as  if  it  read:  'If  the  voter  marks  the  name* 
of  more  persons  than  are  to  be  elected  to  an  office.'  It  reads 
^more  names.'  Print  the  name  of  the  same  candidate  as  many 
times  as  you  may  choose  on  the  ticket— that  is.  advantage  enough— 
but  do  not  mark  it  but  once.  In  not  a  few  instance's  in  this  count 
did  Mr.  Parker  gain  a  vote  because  a  good  cross-mark  in  one  square 
helped  out  a  poor  one  in  the  other. 

"On  the  question  of  the  thirty-six  ballots  returned  from  the  sec- 
ond precinct  of  the  first  ward  under  cover  marked,  'This  package 
contains  defective  or  objected  to  ballots  not  voted,'  we  are  of  the 
opinion  that  none  of  the  ballots  should  have  been  counted,  it  not  ap- 
pearing which  of  them  had  been  voted.  We  do  not  now  know  but 
that,  at  least,  some  portion  of  the  ascertained  majority  for  ^Ir. 
Parker,  is  made  up  of  ballots  never  put  into  the  ballot-box.  It  may 
be  true  that  if  the  entire  thirty-six  ballots  be  thrown  out,  twenty- 
nine  legal  votes  will  be  ignored,  but  it  is  also  true  that  if  all  are 
considered  a  candidate  may  be  elected  to  office  by  votes  never  put 
into  the  ballot-box  and  which  represent  no  voter.  In  the  case  of 
State  V.  Stevens,  23  Kan.  456,  where  substantially  the  same  question 
was  presented,  this  court,  at  page  4^8,  used  this  language:  'While 
legal  and  honest  votes  were  cast,  yet  no  court  is  under  obligation 
to  attempt  to  sift  the  grain  of  truth  from  the  mass  of  falsehood.' 

"Finally,  we  deem  it  our  duty  to  call  attention  to  the  faet  that 
but  one  single  legal  proposition  is  settled  in  this  case.  All  of  the 
justices,  except  the  chief  justice  and  Mr.  Justice  Pollock,  hold  that 
ballots  which  are  obnoxious  to  the  penalties  denounced  upon  thosf 
who  mark  their  ballots  as  indicated  in  section  27  should  not  be 
counted;  and,  further,  that  the  apparent  abandoning  of  the  rule  for 
determining  the  validity  of  a  ballot  as  laid  down  by  this  court  is 
Taylor  v.  Bleakley,  55  Kan.  1,  49  Am.  St.  Eep.  233,  39  Pac  1045, 
is  more  apparent  than  real.  The  two  justices  last  named  repudiate 
the  proposition  that  a  ballot  can  be  rejected  at  all  on  account  of  a 
distinguishing  mark,  while  Justices  Smith  and  Ellis  only  stand  for 


Jan.  1902.]  Parkeb  v.  Hughes.  229 

the  rale  that  only  saeh  marks  are  distin^iehing  ones,  requiring  the 
rejection  of  the  ballot,  which  the  judge  who  is  counting  it  shall 
conelnde  from  all  of  the  circumstances  were  intended  to  distinguisb 
the  baUot. 

"Again,  we  say  that  in  our  opinion  the  statute  requires  the  re- 
jection of  all  ballots  on  which  the  voter  has  purposely  made  marks 
'so  that  it  can  be  distinguished/  and,  as  the  application  of  this  rule 
would  result  in  a  judgment  for  the  defendant  in  this  case,  we  dis- 
sent from  the  judgment  rendered  in  favor  of  the  plaintiff. '' 

Justice  EUis  also  concurred  with  the  views  of  the  majority  of 
the  court  in  a  separate  opinion,  in  which  he  expressed  his  views  as 
follows:  "In  the  hope  that  I  may  be  able  to  state  somewhat  more 
clearly  than  is  done  in  the  majority  opinion  the  principles  which  it 
seems  to  me  should  control,  and  the  rules  of  construction  which  I 
feel  bound  to  follow  in  this  case,  I  shall  undertake  to  recite  my 
vievrs  in  relation  thereto.  Tn  the  dissenting  opinion  it  is  said:  'Ou» 
brethren  have  brought  the  principle  for  which  they  stand— that  of 
arriving  at  the  intention  of  the  voter— from  the  old  methods.  So 
far  as  the  statement  relates  to  the  writer  it  is  partially  true,  and 
if  the  further  charge  had  been  made  that  we  are  inclined  to  hold 
that  we  could  not  abrogate  that  provision  of  our  present  statute 
which  negatively,  but  by  clear  implication,  requires  the  intention 
of  the  voter  to  be  considered,  the  position  of  the  two  members  of  the 
court  to  which  the  above  quotation  applies  would  have  been  fully 
stated.  The  rule  in  existence  before  the  adoption  of  the  Australian 
ballot  undoubtedly  was  that  the  intention  of  the  voter,  when  ascer- 
tainable by  an  inspection  of  the  ballot  by  the  election  board,  or  in 
case  of  an  ambiguous  ballot,  aided  by  evidence  aliunde  in  a  contest 
before  the  eourtsi,  should  govern.  So  general  was  the  acceptance  of 
that  precept  that  the  few  exceptions  only  served  to  emphasize  its 
salutary  nature  and  the  dominion  accorded  to  it  in  the  states  of  the 
Union. 

"In  People  v.  Cicott,  16  Mich.  283,  97  Am.  Dec.  141,  the  learned 
judge  and  text-writer,  Mr.  Justice  Cooley,  said:  'AH  rules  of  law 
which  are  applied  to  the  expression,  in  constitutional  form,  of  the 
popular  will  should  aim  to  give  effect  to  the  intention  of  the  electors, 
and  any  arbitrary  rule  which  is  to  have  any  other  effect,  without  cor- 
req^nding  benefit,  is  a  wrong,  both  to  the  parties  who  chance  to  be 
affected  by  it,  and  to  the  public  at  large.  The  first  are  deprived  of 
their  offices,  and  the,  second  of  their  choice  of  public  servants.  * 

"The  doctrine  received  the  cordial  support  of  Judge  McCrary,  who^ 
in  his  work  on  Elections  (chapter  14,  section  480)  strongly  indorses 
the  opinion  of  Justice  Cooley,  from  which  the  foregoing  excerpt  ia 
taken,  and  Mr.  Paine,  in  his  work  on  Elections,  unqualifiedly  ap- 
proves  this  interpretation  of  the  law;  Paine  on  Elections,  sec.  538. 
*'In  the  case  of  Clark  v.  Commissioners  of  Montgomery  Co.,  33i 
Kan.  202,  52  Am.  Bep.  526,  6  Pac.  311,  this  court  held:  <Thc  inten- 


230  American  State  Bepobts^  Vol.  91.       [Kanau^ 

tion  of  an  elector  is  to  be  ascertained  from  the  language  of  Us 
ballot,  read  in  the  light  of  the  circumstances  of  a  public  nature 
surrounding  the  election  at  which  it  is  cast;  and  though  his  will 
is  not  expressed  with  precision,  jet  if  it  is  fairly  apparent,  and 
can  be  determined  beyond  a  reasonable  doubt,  it  should  be  made 
effectual. ' 

"The  important  question  now  presented  is  whether  the  rule  that 
where  the  intention  of  an  elector  could  be  thus  ascertained  it  should 
be  made  effectual  has  been  abrogated  in  this  state.  It  certainly 
has  not  been  by  statute,  for  the  last  expression  of  the  legislative  will, 
subject  to  certain  exceptions,  continues  this  principle  in  force. 
Section  25  of  chapter  129  of  the  Laws  of  1897,  so  far  as  it  relatet 
to  the  subject  under  discussion,  reads  as  follows:. 'If  the  voter 
marks  more  names  than  there  are  persons  to  be  elected  to  an  ofBce, 
or  fails  to  mark  the  ballot  as  required  by  other  sections  of  this 
act,  or  uses  ink,  or  a  pencil  of  any  other  color  than  black  to  mark 
bis  ballot,  or  if  from  any  reason,  it  is  impossible  to  determine  the 
voter's  choice  for  an  office  to  be  filled,  his  ballot  shall  not  be  counted 
for  such  office.' 

"Note  the  language,  'if,  from  any  reason,  it  is  impossible  to  de- 
termine the  voter's  choice  for  an  office  to  be  filled,  his  ballot  shall 
not  be  counted  for  such  office';  e.  g.,  if  it  be  possible  'to  determine 
the  voter's  choice  for  an  office  to  be  filled,'  his  ballot  should  be 
counted  for  such  office,  unless  some  other  provision  of  the  statute 
requires  its  rejection.  It  is  submitted  that  its  vitality  has  not 
been  impaired  by  any, decision  of  this  court,  although  my  brethren 
who  dissent  cite  the  case  of  Taylor  v.  Bleakley,  55  Kan.  1,  49  Am. 
8t.  Bep.  233,  39  Pac  1045,  as  denying  the  continuance  of  the  rule. 
The  only  proposition  authoritatively  determined  in  that  case  was  that 
the  cross-marks  should  be  placed  within  the  squares  provided  for 
that  purpose,  in  eccor dance  with  a  provision  of  the  statute  which 
the  majority  in  this  case  have  respected  and  treated  as  mandatory. 
It  could  not  be  abolished  by  the  dictum  of  a  legislative  committee, 
whose  report  related  not  to  a  bill  recommended  for  passage.  That 
report  was  made  in  a  contest  case  under  an  existing  law,  and  it  gave 
an  opinion  of  such  committee  as  to  the  construction  which  it  thought 
should  be  given  the  provisions  of  such  law. 

' '  It  seems  to  be  claimed,  however,  that  the  will  of  the  voter  is  no 
longer  to  be  considered  in  those  states  which  have  adopted  what 
is  known  as  the  Australian  ballot  law,  although  such  laws,  as  en- 
acted in  the  different  states,  are  widely  dissimilar  in  their  provi- 
sions, and  are  still  subjected  to  frequent  amendments.  With  what 
talismanic  power  is  the  mere  name  'Australian  ballot  law'  invested 
that  it  may  be  held  to  work  such  a  transformation  f 

"It  may  be  profitable  to  investigate  the  question  whether  the 
salient  guides  so  long  and  generally  followed  have  been  set  aside 
by  the  adoption  of  those  statutes.    The  only  recognized  author  upon 


Jan.  1902.]  Pabkeb  v.  Hughbb.  231 

the  Aufltraliaa  ballot  qrstem,  in  the  last  edition  of  his  work,  said: 
^Wherever  our  statutes  do  not  ezpxessly  declare  that  particular  in- 
formalities avoid  the  ballot,  it  would  seem  best  to  consider  their 
requirements  as  directory  only.  The  whole  purpose  of  the  ballot 
as  an  institution  is  to  obtain  a  correct  expression  of  intention;  and 
if y  in  a  given  case,  the  intention  is  clear,  it  is  an  entire  misconcep- 
tion of  the  purpose  of  the  requirements  to  treat  them  as  essentials^ 
that  i^  as  objects  in  themselves,  and  not  merely  as  means':  Wigmore's 
Australian  Ballot  System,  2d  ed.,  193. 

''The  same  author,  continuing,  said:  'In  the  British,  Belgian, 
Canadian  and  some  of  the  Australian  statutes  an  identifying  mark 
is  specially  declared  to  avoid  the  ballot.  This  rule  has  been  in- 
terpreted in  two  ways.  By  some  courts  it  is  held  to  be  sufleient 
if  the  mark  is  one  by  which  the  voter  might  be  identified.  .... 
Thifl^  of  course,  results  in  throwing  out  a  very  large  proportion  of 
ballots  in  which  informal  marks  occur,  though  it  is  expressly  said, 
at  a  part  of  the  rule,  that  ordinary  deviations  due  to  awkward- 
ness or  carelessness  are  not  to  be  regarded The  rule  has  been 

stated  as  follows  (more  liberally  than  in  the  cases  supra):  "When- 
erer  the  court  is  convinced  that  the  irregularity  was  the  result 
of  awkwardness,  or  a  stiif,  heavy -or  trembling  hand,  of  carelessness, 
or  an  attempt  to  correct  a  supposed  defect  or  to  make  a  line  more 
dear  or  more  staight— whenever,  in  short,  it  appears  that  the  ad- 
dition to  the  requh'ed  cross  or  the  form  of  the  cross  or  its  embel- 
lishments are  owing  to  an  unskiUed  hand  rather  than  to  a  desire 
to  identify  one's  self— whenever  the  identification  of  the  voter  is 
rendered  impossible  by  the  impossibility  of  reproducing  the  same 
pencil-marks,  the  vote  is  good."  ' 

"The  same  author,  citing  with  approval  the  opinion  of  Mr.  Justice 
Alleyn,  in  Dionne  v.  Q«gnon,  9  Queb.  L.  E.  20,  said:  'According 
to  a  second  and  sounder  view,  the  ballot  must  itself  furnish  clear 
evidence  of  an  improper  agreement,  such  as  the  voter's  initials,  or 
a  mark  known  to  be  his,'  in  order  that  it  may  be  rejected:  Page 

m. 

"A  recent  decision  of  the  supreme  court  of  Connecticut,  one  of 
the  first  states  in  the  Union  to  adopt  the  Australian  ballot,  over- 
niled  the  early  case  of  Talcott  v.  Philbrick,  59  Conn.  472,  20  Atl. 
436,  and  held  as  follows:  'Marks  upon  the  face  of  ballots  which  ap- 
pear or  are  shown  to  have  been  made  accidentally  and  not  for  the 
purpose  of  indicating  the  voter,  and  changes  for  the  existence  of 
which  a  reasonable  explanation  consistent  with  honesty  and  good 
faith  either  appears  upon  the  face  of  the  ballot  or  is  shown  by 
proof,  do  not  render  the  ballots  void':  Coughlin  v.  McBlroy,  72 
Conn.  99,  43  AtL  864,  77  Am.  St.  Bep.  301-    See,  also,  cases  ated 

in  note. 

"In  the  case  of  State  v.  Fawcett,  17  Wash.  188,  49  Pac.  849,  it 
wu  held:  'It  is  also  undisputed  that  the  elective  franchise,  though 
a  eonstitutionAl  privilege  and  right,  must  be  exercised  under  such 


232  American  Statb  Bbpobts^  Vol.  91.       [Kansas, 

reasonable  legislatiye  refltrietions  as  will  prevent  intimidation,  brib- 
ery, and  fraud,  and  secure  an  honest,  untrammeled  and  genuine 
expression  of  publie  sentiment.  It  is  also  true,  however,  that  in 
the  absence  of  constitutional  inhibition,  all  statutes  tending  to  limit 
the  citizen  in  the  exercise  of  the  right  of  suffrage  should  be  lib- 
erally construed  in  his  favor.  If  his  ballot  is  rejected,  it  muat  come 
within  the  letter  of  the  prohibition;  and  when  the  statute  specifically 
declares  under  what  conditions  ballots  shall  be  rejected,  courts  should 
not  enlarge  those  conditions,  or  make  other  or  different  conditions 
from  those  expressed  in  the  statute  grounds  for  rejecting  the  bal- 
lots. •  •  •  •  The  important  thing  is  to  determine  the  intention  of  the 
voter,  and  to  give  it  effect.' 

''In  considering  a  case  under  the  Australian  ballot  law,  the 
supreme  court  of  Missouri  quoted  with  approval  the  following  lan- 
guage from  a  decision  of  a  sister  jurisdiction:  'AH  statutes  tending 
to  limit  the  citizen  in  his  exercise  of  this  right  [of  suffrage]  should 
be  liberally  construed  in  his  favor':  Bowers  v.  Smith,  111  Mo.  45, 
^3  Am.  St.  Bep.  491,  20  S.  W.  101. 

"The  supreme  court  of  California,  in  Tebbe  v.  Smith,  108  GaL 
101,  40  Am.  St  Bep.  68,  41  Pac.454^  cited  and  applied  the  languag*^ 
just  quoted  to  the  marking  of  a  ballot  by  a  voter  under  the  Cali- 
fornia statute.  In  a  recent  case  in  California  it  was  held  that  tba 
writing  by  a  voter,  on  his  ballot,  of  the  party  designation  of  » 
candidate,  after  the  name,  which  he  has  also  written  in,  does  not 
constitute  a  distinguishing  mark  which  invalidates  the  ballot:  Jen- 
nings V.  Brown,  134  Cal.  807,  46  Pac  77.  And  it  was  so  held  be- 
cause the  court  said:  'It  is  quite  manifest  in  this  ease  that  the 
words  were  not  intended  as  a  distinguishing  mark,'  and  for  the 
reason  that  the  law  might  be  construed  as  permitting  it. 

"In  State  v.  Bussell,  34  Neb.  116,  121,  33  Am.  St.  Bep.  625,  51 
N.  W.  465,  467,  it  was  determined:  'It  is  not  every  mark  by  mean* 
of  which  a  ballot  might  subsequently  be  identified  which  is  a  vio- 
lation of  the  statute.  The  mark  prohibited  by  law  is  such  a  one^ 
whether  letters,  figures,  or  characters,  as  shows  an  intention  on  the 
part  of  the  voter  to  distinguish  his  particular  ballot  from  others 
of  its  class,  and  not  one  that  is  common  to  and  not  distinguishable 
from  others  of  a  designated  class.' 

"The  court  in  that  case  approved  of  the  languajre  hereinbefore 
quoted  from  page  103  of  the  treatise  on  the  Australian  ballot  sys- 
tem by  Mr.  Wigmore. 

"In  Bechtel  v.  Albin,  134  Ind.  193,  33  N.  E.  967,  a  requirement 
that  the  voter  should  'indicate  the  candidates  for  whom  he  de- 
sires to  vote  by  stamping  the  square  immediately  preceding  their 
names,'  was  held  to  be  mandatory.  Still,  a  ticket  wherein  'the 
stamp  touched  slightly  the  lower  side  of  the  square'  was  held  to 
be  'in  substantial  compliance  with  the  law,  and  as  not  containing 
distinguishing  marks  and  mutilation.' 

"The  supreme  court  of  Colorado,  in  the  recent  case  of  Niekolls 


Jan.  1902.]  Parkeb  v.  Huqhsb.  283 

▼.  Bttriek,  27  Colo.  432,  62  Pae.  202,  206,  held:  'That  a  ballot  should 
be  admitted  if  the  spirit  and  intention  of  the  law  are  not  vio- 
lated, even  though  not  literally  in  aeeordance  with  iti  proTisiona; 
and  that  nnleae  the  statute  declares  that  a  strict  compliance  with 
its  requirements  by  the  voters  is  essential  to  have  their  ballots 
cevnted,  the  courts  will  not  undertake  to  disfranchise  them,  if,  in  the 
attempted  exercise  of  their  right,  there  is  manifestly  an  effort  to  com- 
ply in  good  faith  with  the  statutory  requirementa ' 

"Authorities  might  be  multiplied,  but  no  useful  purpose  would  be 
Bnbeerved  thereby.  On  the  other  hand,  it  is  true  that  the  courts 
of  Itst  resort  in  n^any,  and,  perhaps,  a  majority,  of  the  states  hay* 
lag  the  so-called  Australian  ballot  law  have  inclined  to  give  a 
stricter  and  lees  liberal  construction  of  its  provisiona  In  so  doing 
th^  have  disregarded  the  more  liberal  rules  of  construction  which 
obtain  in  Australia,  whence  many  proyisions  of  these  laws  are  de- 
rired.  Im  most  cases,  however,  the  rule  of  construction  thus  in- 
dorsed is  authorized  by  the  plain  letter  of  the  statute  in  the  par* 
ticular  state  adopting  it,  though  it  must  be  confessed  that  at  least 
two,  and  perhaps  more,  of  the  states  have  applied  with  great  vigor 
the  rule  ezdudiug  baUots  on  account  of  distinguishing  marks 
thereon,  althcugh  the  lawmakers  of  such  states  failed  to  enact  pro- 
▼inons  authorizing  such  decisions.  Nevertheless,  what  Jeremy  Ben- 
tham  styled  'judge-made  law'  is  now  gravely  commended  to  us  as  a 
eeatrolUng  factor  in  determining  the  questions  here  pending.  In- 
ssmuch  as  our  statute  does  not,  in  terms,  exclude  ballots  from  the 
count  because  of  distinguishing  marks,  the  question  here  presented 
is  not  BO  much  one  of  construction  as  whether  we  shall  read  into 
the  statute  words  not  placed  there  by  the  legislature. 

"Betnming  now  to  the  statute,  and  considering  directly  the  mat- 
ter of  distinguishing  marks  thereunder,  it  may  be  remarked  that  in 
esaeting  section  25  the  legislature  assumed,  if  it  did  not  Intend, 
that  some  baUots  with  marks  upon  them  other  than  those  required 
by  the  statute  should  be  counted,  at  least  in  part.  It  is  there  pro- 
Tided,  in  substance  and  effect,  that  if  it  is  impossible  to  determine 
the  voter's  choice  for  a  given  office,  his  ballot  for  such  office  shall 
be  rejected,  but  that  it  shall  be  counted  for  other  offices  as  to 
which  the  voter's  will  is  clear.  Of  course,  if  there  were  no  mark 
cpon  the  ballot  made  with  reference  to  the  office  for  which  it  is  not 
to  be  counted,  it  plainly  could  not  be  counted  for  that  office,  and 
s  legislative  expression  to  that  end  would  be  wholly  unnecessary. 
It  is,  therefore,  certain  that  the  provision  was  made  upon  the  sup- 
position that  certain  marks  would  be  made  upon  the  ballots  for  a 
given  office  from  which  it  would  not  be  possible  to  glean  the  voter 's 
intention;  still,  the  ballot  is  to  be  counted  for  other  offices  named 
therein,  notwitnstanding  it  bears  the  ineffective  marks  thus  made^  ex- 
cept in  eases  where  the  marks  are  of  such  nature  as  to  exclude  the  bal- 
lot nnder  other  clauses  of  that  section  or  other  sections  of  the  statute. 


234  Amebican  Statb  Bbpobts,  Vol.  91.       [Kanfias, 

Again,  it  £•  provided  in  the  same  eeetion  that  'if  the  roter  nuurk* 
more  names  than  there  are  persons  to  be  elected  to  an  office.  •  •  his 
ballot  shall  not  be  eonnted  for  such  office.'  This  clearly  impliea 
that  although  he  may  have  marked  more  names  than  there  ar» 
persons  to  be  elected  to  an  office,  and  thus  made  one  or  more  mmrks 
not  required  by  the  statute,  his  ballot  may  still  be  counted  for  other 
offices.  This  conclusion  is  irresistible,  because  the  only  provision 
in  the  statute  for  excluding  a  ballot  upon  which  a  voter  marks 
more  names  than  there  are  persons  to  be  elected  to  an  office  is  tho 
one  providing  that  it  'shall  not  be  counted  for  such  office.' 

"That  all  ballots  having  marks  upon  them  which  are  unnecessmiy 
and  which  might  possibly  serve  to  distinguish  them  from   others 
are  not  to  be  excluded  from  the  count,  logically  follows  from  the 
fact  that  the  law  expressly  provides  that  ballots  marked  in  a  par- 
ticular manner  shall  be  so  excluded.    The  maxim,  'Expressio  unius 
est  exdusio  alterius,'  is  directly  applicable  and  controlling  in  the 
construction  of  this  statute,  and  if  there  were  no  other  provision 
from  which  it  could  be  fairly  inferred  that  the  legislature  intended 
that  ballots  containing  certain  distinguishing  marks  should  not  be 
included  in  the  enumeration,  I  would  join  Mr.  Chief  Justice  JDoster 
and  Mr.  Justice  Pollock  in  holding  that  distinguishing  marks,  other 
than  those  designated  or  referred  to  in  section  25,  could  not  operate 
to  exclude  a  ballot  from  the  count.    I  am  constrained  to  believe^ 
however,  that  section  27. may  not  be  ignored  in  determining  what 
ballots   are   rendered   ineffective   because    of   distinguishing   ""f^^if^ 
It  is  there  provided  that  'any  person  who  shall  ....  nuurk  or  fold 
his  ballot  so  that  it  can  be  distinguished,  or  allow  his  ballot  to 
be  seen  by  any  person  with  an  apparent  intention  of  letting  it  be 
known  how  he  is  about  to  vote  ....  or  who  shall  place  upon  or 
induce  any  person  to  place  upon   his  ...  .  ballot,   any  character 
or  mark  for  the  purpose  of  identifying  said  ballot,'  shall  be  guilty 
of  an  offense  for  which  a  penalty  is  prescribed  in  said  section.    In 
view  of  the  maxim,  'Crimen  omnia  ex  se  nata  vitiat,'  I  am  unable 
to  see  how  one  who  marks  or  folds  his  ballot  so  that  it  can  be 
distinguished,  with  an  apparent  intention  of  letting  it  be  known 
how  he  is  about  to  vote,  or  who  places  upon  his  ballet  a  character 
or  mark  for  the  purpose  of  identifying  it,  in  violation  of  the  plain 
provisions  of  this  statute,  can  be  heard  to  complain  at  the  refusal 
of  election  boards  or  courts  to  give  effect  to  his  unlawful  exercise 
of  the  right  of  suffrage  by  counting  his  ballot;   and  it  Is  quite 
certain  that  a  candidate  for  whom  the  vote  was  intended  can  have 
no  standing  in  a  court  to  urge  that  he  be  awarded  the  fruits  of 
an  act  tainted  with  crime,  and  committed  in  violation  of  a  penal 
statute. 

"Without  restating  my  views  as  given  in  the  majority  opinion  of 
the  court,  I  only  desire  to  avoid  a  misapprehension  of  them  by 
specifying  that  it  is  not  believed  that  an  election  board,  whose 
duties  are  merely  ministerial,  has  any  authority  to  receive  •videneo 


Ju.  1902.]       Pabksb  v.  Hughes.  285 

as  to  &  Yotcr's  intention.  In  the  diasonting  opinion,  attention  ie 
eaUed  to  the  difficulties  to  be  encountered  in  an  application  of  the 
^intention  of  the  voter  theory.'  While  admitting  that  one  who  pur- 
mies  that  course  is  not  exempt  from  embarrassment,  it  is  submitted 
that  patient  and  learned  thought  and  research  have  not  yet  dis- 
covered a  method  of  dealing  with  the  subject  which  is  less  ob- 
noxious to  objection  and  criticism.  The  difficulties  which  must 
be  encountered  under  any  system  find  illustration  is  this  case. 

'*  Herein,  afl  ballots  not  otherwise  objectionable,  having  crosses 
within  the  prescribed  squares,  were  counted.    Some  of  these  crosses 
were  small,  others  were  large;  some  were  in  the  center,  others  at 
the  aides,  and  still  others  in  the  corners  of  the  squares.    Authorities 
are  agreed  that  if  the  cross  made  within  the  square   sufficiently 
conforms  to  the  statute  the  vote  must  be  counted,  although  the 
form  or  location  of  such  cross  might  possibly  serve  as  a  distinguish- 
ing mark.    Such  being  the  law,   suppose,   by  prearrangement,  the 
crosses  upon  a  given  ballot  were  all  made  in  the  lower  left-hand 
comers  of  th^   squares,  that  fact  would   serve  to  distinguish   the 
ballot,  and  still  it  would  have  to  be  counted  by  the  judges  of  elec- 
tion, and  in  ease  of  contest,  by  the  courts,  unless  by  evidence  aliunde 
the  vicious  compact  should  appear.    It  would  be  easy  to  point  out 
other  methods  of  marking  a  ballot  so  as  to  distinguish  it  without 
destroying  its  effectiveness,  in  the  absence  of  evidence.    Can  it  then 
be  assumed  that  the  legislature,  without  an  expression  to  that  ef- 
fect, intended  that  every  mark  upon  a  ballot  which  might  serve  to 
distinguish  it  from  others  should  render  such  ballot  impotent  f    If 
such  a  rule  had  been  applied  in  this  case,  several  ballots  for  Mr. 
Hughes  would  have  been  excluded  which  were  in  fact  included  in 
the  count.    One  ballot  was  soiled  as  by  a  sleeve  or   dirty  hand, 
probably  the  latter.    Another  had  a  short,  irregular  mark  upon  it, 
as  if  carelessly  made  by  the  voter  while  examining  the  ballot,  by 
pushing  or  drawing  the  pencil.    It  was  near  the  cross-mark  opposite 
Mr.  Hughes'  name,  and  connected  with  it,  though  partly  without 
the  square.    It   clearly  served   to   distinguish   the   ballot  from   all 
others;  still  it  was  counted  by  unanimous  agreement.    Many  ballots 
which  were  properly  marked  for  Mr.  Parker  in  the  Democratic  or 
Citizens'  column,  or  both,  were  rejected  because  opposite  the  blank 
for  mayor  on  the  so-called  'Independent  ticket,'  and  in  the  square 
provided  for  that  purpose  a  cross-mark  was  also  placed.    If  the  re- 
salt  had  been  affected,  I  would  have  dissented  from  the  decision 
of  the  court  in  excluding  them.    The  baUots  were  not   disfigured 
or  mutilated.    They  were  neither  in  terms  nor  by  fair  implication 
denied  enumeration  under  the  provisions  of  section  25,  and  it  can- 
not reasonably  be  deduced  that  the  crosses  so  made  were  intended 
to  serve  as  distinguishing  marks,  so  as  to  place  such  ballots  under 
the  ban  of  section  27. 

''The  decision  in  the  case  of  Farnham  v.  Boland,  134  Gal.  151,  66 
Psc  200y  which  holds  adversely  to  the  views  above  expressed,  was 


236  American  State  Bbports^  Vol.  91.       [Eanaajs^ 

in.  faet  rendered  under  a  statute  widely  different  from  ours, 
ii  not  pertinent." 


Bleetion  BaUoU  are  not  invalidated  if  the  name  of  a  eandidat* 
appears  on  two  tiekets,  and  a  eross  is  placed  in  the  square  opposite 
his  name  on  each  ticket:  See  the  monographic  note  to  Taylor  ▼. 
Bleakley,  49  Am.  St.  Bep.  246.  See,  in  this  connection,  the  recent 
cases  of  Perkins  y.  Bertrand,  192  111.  68,  85  Am.  St.  Bep.  315,  61 
K.  E.  405;  State  ▼.  Sadler,  25  Nev.  181,  83  Am.  St.  Bep.  673,  5ft 
Pac.  284,  68  Pac  128;  CoughUn  v.  McElroy,  72  Conn.  99,  77  Am. 
St.  Bep.  301. 

Irregularitiea  Avoiding  Elections  are  considered  in  the  monographie 
note  to  Patton  ▼.  Watkins,  90  Am.  St.  Bep.  46-02. 


McMTJLLEN    r.    WINPIELD    BUILDING    AND    LOAN 

ASSOCIATION. 

[64  Kan.   298,   67  Pac.   892.] 

OFFICIAL  BOND—Wheo  BetrospectiTe.— A  bond  executed 
after  the  commencement  of  the  year,  reciting  that  the  principal  had 
been  elected  secretary  of  an  association  for  the  year  beginning 
January  1st  and  ending  December  81st,  and  declaring  that  if  he 
should  perform  the  duties  of  the  office  during  such  year,  the  bond 
should  be  void  and  of  no  effect,  but  otherwise  should  remain  in 
force,  is  retrospective  in  its  terms^  and  renders  the  sureties  an- 
swerable for  defalcations  occurring  within  the  year,  but  prior  to 
the  execution  of  the  bond.     (p.  239.) 

OFFICIAL  BOND—Bnrdeii  of  Proving  Wlielher  DefalcaUons 
Ocevxred  Before  or  After  the  Ezecatlon  of  a  Bond.~Money  which 
comes  into  an  officer's  hands  before  the  execution  of  a  bond  is 
presumed  to  have  been  still  in  his  possession,  and  the  burden  is 
upon  his  sureties  to  prove  that  defalcations  by  him  occurred  before 
the  bond  was  given,     (p.  289.) 

OFFICIAL  BONDS— Burden  of  Proof  Boipeotliig  the  Date  of 
a  Misappropriation.— Where  there  are  successive  bonds,  and  money 
is  traced  to  the  principal  and  not  accounted  for,  the  burden  is  on 
him  and  his  sureties  to  show  what  became  of  the  money,  and,  fail- 
ing to  do  this,  the  presumption  is  that  the  defalcation  took  place 
during  the  term  covered  by  the  bond.     (p.  240.) 

OFFICIAL  BOND— Interest^  Whether  BecoTOXftble  in  Szeess 
of  the  Penalty.— Where  there  is  a  defalcation  equal  to  or  in  excess 
of  the  amount  of  the  principal  of  an  official  bond,  the  amount  of 
the  recovery  on  the  bond  may  include  interest  on  the  sum  misappro- 
priated from  the  date  of  the  misappropriation,     (p.  240.) 

A  STATUTE  OF  LIMITATIONS  In  Actions  to  BaeoTor  Mbneys 
Misappropriated  by  an  Oficial  does  not  begin  to  run  until  the  defal- 
cation is  discovered,  where  it  was  concealed  by  the  principal  by 
making  false  entries  in  his  books,  and  he  was  of  good  repute  for 
honesty,     (p.  241.) 

SUBSTISS— Statute  of  Limitations  in  Aetions  Against.— 
Where,  Because  of  Fraud  of  a  Principal  in  the  concealing  and  mis- 
appropriation of  money,  the  statute  of  limitations  does  not  run 
against  him,  it  does  not  run  against  the  sureties  on  his  bond.     (p.  242.) 

SUBETIES— Negligence  in  not  Discovering  Defalcations  of  the 

PrincipaL— Though  the  LooIls  of  the  sectetary  of  an  association  are 


Jan.  1902.]    MoMullbn  v.  Winfibld  Bldo.  etc.  Assn.    287 

cpen  to  the  examination  of  its  officers  and  members,  and  dae  dili- 
genee  might  have  detected  the  dishonesty  of  the  principal  and  pre- 
vented or  reduced  the  amount  of  his  defalcation,  his  sureties  are 
not  released,  provided  the  association  or  its  members  did  not  act 
in  bad  faith  toward  the  sureties,  nor  omit  any  effort  to  protect 
the  funds  of  the  association  after  receiving  notice  of  the  dishonesty 
and  unfaithfulness  of  the  secretary,     (p.  243.) 

J.  Jay  Buck  and  McDermott  &  Johnson,  for  the  plaintiifs  in 
error. 

Henick  &  Bogers  and  L.  H,  Webb,  for  the  defendant  in  error. 

*^  JOHNSTON,  J.  J.  P.  McMullen  acted  as  secretary  of 
the  Winfield  Building  and  Loan  Association  from  its  organiza- 
tion, in  January,  1881,  until  January,  1892,  having  been  elected 
at  the  beginning  of  each  year  during  that  period.  On  January 
13,  1885,  he  was  elected  for  that  year,  and  gave  a  bond  in  the 
sum  of  $2,000,  signed  by  J.  C.  McMullen  as  surety,  which  *^ 
was  dated  February  2,  1885,  and  approved  four  days  later.  He 
failed  to  account  for  all  the  moneys  received  by  him,  and  on 
Tebruary  2,  1892,  this  action  was  brought  against  him  and  his 
surety  upon  the  bond  mentioned. 

In  the  petition,  it  was  alleged  that  during  the  period  covered 
by  the  bond,  J.  P.  McMullen,  as  secretary,  collected  $2,190.91 
more  than  he  had  accounted  for  or  paid  over  to  the  treasurer  of 
the  association,  and  that  this  amount  he  had  fraudulently  con- 
verted to  his  own  use.  There  was  a  further  averment  that  by 
false  entries  made  in  the  books  of  the  association,  and  by  false 
statements  and  reports,  he  had  concealed  his  wrong  and  defaults, 
and  that,  therefore,  the  association  had  no  knowledge  of  the 
same  until  January,  1892. 

A  trial  was  had  upon  an  agreed  statement  of  facts,  and, 
among  other  things,  it  was  stipulated  that  during  the  year  1885 
he  collected  $10,799.34,  and  that  during  the  same  time  he  paid 
to  the  treasurer  only  $8,763.47,  so  that  from  January  1,  1885, 
until  December  31,  1885,  his  receipts  exceeded  the  amount  of 
his  payments  to  the  treasurer  $2,035.87.  From  the  facts  agreed 
upon,  the  court  found  that  J.  F.  McMullen  was  indebted  to  the 
association  on  January  1, 1886,  in  the  sum  of  $2,035.87,  and  that 
on  February  6, 1886,  he  paid  on  this  indebtedness  $197.46,  leav- 
ing $1,838.41  unpaid.  For  this  latter  sum,  with  interest  from 
January  31,  1886,  amounting  to  $3,725.84,  judgment  was  given 
against  both  the  principal  and  the  surety. 

It  will  be  observed  that  the  court  held  the  surety  liable  for  all 
the  funds  received  by  the  secretary  during  the  year  1885,  and 


238  American  Statb  Reports^  Vol.  91.        [Kansu^ 

for  wMcli  he  had  not  accounted.    It  is  contended  that  the  bond 
is  prospective  only,  and  that  it  did  not  cover  any  defaults  except 
those  occnrring  *®^  after  it  had  been  executed  and  accepted. 
As  has  been  seen,  the  election  occurred  after  the  first  of  the 
year;  the  bond  was  not  executed  until  February  2d,  and  was 
not  accepted  until  February  6th.    A  considerable  amount  of  the 
funds  involved  here  was  received  by  the  secretary  between  Janu- 
ary 1st  and  the  execution  and  acceptance  of  the  bond.     Does  the 
bond  cover  the  defaults  of  the  entire  year?    It  is  true,  as  plain- 
tiffs in  error  contend,  that  sureties  are  favorites  of  the  law,  and 
that  their  liability  cannot  be  extended  by  implication  nor  en- 
larged beyond  the  fair  scope  of  their  agreements.    At  the  same 
time,  their  obligation,  like  other  written  contracts,  must  be 
given  a  reasonable  interpretation,  and  if  the  fair  scope  of  its 
terms  covers  past  derelictions  il  must  be  so  enforced.     It  may  be 
assumed  that,  in  the  absence  of  a  provision  to  the  contrary,  a 
bond  can  only  be  regarded  as  prospective  and  to  cover  only  fu- 
ture transactions,  but  if  the  language  used  is  retrospective,  and 
clearly  shows  an  intent  to  include  defaults  occurring  before  the 
execution  of  the  instrument,  the  sureties  will  be  hdd  liable. 
The  condition  of  the  bond  is  as  follows : 

"Whereas,  said  J.  F.  McMullen  has  been  elected  secretary  of 
the  Winfield  Building  and  Loan  Association,  of  the  city  of  Win- 
field,  state  of  Kansas,  for  the  year  beginning  January  1,  1885, 
and  ending  December  31,  1885,  and  has  accepted  said  oflSce: 
Now,  therefore,  if  the  said  J.  F.  McMullen  shall  faithfully  per- 
form the  duties  of  his  office  as  secretary  of  said  association  dur- 
ing said  year,  then  this  bond  shall  be  void  and  of  no  effect;  but, 
otherwise,  shall  remain  in  full  force  and  effect.*' 

It  will  be  noticed  that  the  bond  definitely  fixes  the  period  of 
responsibility.    The  surety  binds  himself  for  the  faithful  per- 
formance of  the  duties  of  the  secretary  for  the  year  beginning 
January  1,  1885,  and  ending  ^^  December  31,  1885.    The 
principal  occupied  the  position  of  trust  during  that  period,  and 
it  was  competent  for  the  surety  to  make  himself  r^ponsible  for 
the  defaults  of  the  entire  year.    It  appears  to  have  been  an  an- 
nual office,  which  McMullen  held  continuously  for  about  eleven 
years,  and  he  was  elected  at  the  first  meeting  of  the  association 
Rel^  in  January  each  year.    The  fact  that  the  election  was  after 
the  first  of  the  year  and  term  is  not  controlling,  but  the  real 
question  is,  What  time  was  intended  to  be  covered  by  the  bond? 
and  that  must  be  determined  from  its  terms.     The  lani^iapre  if* 
plain,  and  manifestly  the  parlies  contemplated  that  the  bond 


Jed.  1902.]    McMollsn  v.  Wimfibld  Bldq.  etc.  Assn.    239 

should  be  refarospective  in  its  operation,  and  shonld  indemnify 
against  defaults  occnrring  from  the  first  to  the  last  of  the  year. 
When  it  appears  that  a  bond  is  intended  to  be  retrospectiye  as 
FeD  as  prospectiye,  ench  effect  must  be  given  to  it:  Brown  v. 
Wjandotte  County,  58  Kan.  672,  50  Pac.  888 ;  Myers  v.  Kiowa 
County,  60  Kan.  189,  66  Pac.  11;  State  v.  Finn,  98  Mo.  532, 
14  Am.  St  Eep.  664,  11  S.  W.  994;  Abrams  v.  Pomeroy,  13 
I1L134. 

The  amount  collected  during  the  year  and  not  paid  over  ex- 
ceeded the  amount  named  in  the  bond.  There  is  some  conten- 
tion as  to  the  money  on  hand  at  the  beginning  of  1885,  and 
whether  it  was  misappropriated  after  the  liability  of  the  surety 
began.  Presumably,  money  which  came  into  the  secretar/s 
hands  and  should  have  been  there  was  still  in  his  possession,  and 
the  burden  is  on  the  surety  in  cases  liSe  this  to  prove  that  the 
fimds  presumably  in  the  hands  of  his  principal  had  been  embez- 
zled and  misappropriated  before  he  became  liable  on  the  bond : 
Bemhard  v.  Ci^  of  Wyandotte,  33  Kan.  465,  6  Pac.  617 ;  Weak- 
ley V.  Cherry  Township,  62  Kan.  867,  63  Pac.  433 ;  Bruce  »^ 
▼.  tinited  States,  17  How.  437.  In  like  manner,  it  will  be  pre- 
snmed  that  moneys  collected  during  the  period  of  liability  and 
not  accounted  for  were  misappropriated  during  that  period. 
Where  there  are  successive  terms  and  bonds,  there  is  consider- 
able difficulty  in  filing  the  time  of  misappropriation  and  the 
liability  of  sureties,  but  when  money  is  traced  to  the  hands  of 
an  officer  or  trustee,  and  is  not  accounted  for,  the  burden  of 
proof  is  upon  the  principal  or  surety  upon  the  bond  to  show 
what  became  of  the  money.  The  officer  has  knowledge  of  the 
time  of  misapplicaikion,  and  by  reason  of  the  relations  existing 
between  principal  and  surety  the  latter  is  deemed  to  have  knowl- 
edge of  the  fact,  while  the  information  would  not  be  accessible 
to  the  parties  indemnified.  In  Boyd  v.  Withers,  20  Ky.  Law 
Bep.  611,  46  S.  W.  13,  a  case  of  successive  bonds  given  by  a 
guardian  who  had  defaulted,  and  where  the  ward  was  unable 
to  fix  the  date  of  the  conversion,  it  was  said :  '*The  liabilitv  of 
a  surety  on  a  guardian^s  bond,  so  far  as  the  ward  is  concerned,  is 
identic^  with  that  of  his  principal,  and  after  proof  of  the  re- 
ceipt by  the  guardian  of  the  ward's  money,  and  failure  to  ac- 
coimt  for  it,  the  guardian  has  not  faithfully  discharged  the  duty 
imposed  by  his  obligation  until  he  has  clearly  shown  how  it  has 
beoi  disposed  of.  Neither  can  the  surety  in  the  bond  be  permit- 
ted to  say,  Ton  cannot  prove  the  date  when  my  principal  con- 
Terted  the  money,  and  therefore  you  cannot  recover  on  any  of 


240  American  Statb  Bbpobts^  Vol.  91.       [Kanats, 

the  bonds.*  In  our  opinion,  the  law  requires  appellee  to  show 
what  became  of  the  money  of  appellants  which  was  received  bj 
the  guardian  while  he  was  bound  as  surety  on  his  bond ;  and,  in 
the  absence  of  proof  showing  clearly  that  at  the  date  of  the  exe- 
cution of  the  new  bond  the  fund  was  intact  in  the  hands  of  the 
guardian,  he  should  be  held  liable  for  the  balance  shown  by  the 
proof  to  be  due*^ :  •^  See,  also,  Wood  v.  Friendship  Lodge,  20 
Ky.  Law  Rep.  2002,  60  S.  W.  836. 

While  there  is  a  contention  as  to  the  application  of  payments 
by  the  secretary  in  1886,  and,  therefore,  as  to  whether  the 
amount  or  misappropriation  in  1885  was  correctly  found  by  the 
trial  court,  we  think  the  facts  in  the  record  are  sufficient  to  sop- 
port  the  judgment.  The  agreed  faots  include  Yoluminons  ac- 
counts and  seports,  which  it  is  not  practical  to  set  out,  bat  an 
examination  of  them  satisfies  us  that  they  made  a  prima  fade 
case  for  the  association. 

The  judgment  rendered  is  an  excess  of  the  penalty  of  the  bond 
by  reason  of  the  allowance  of  interest.  It  is  contended  that 
the  utmost  limit  of  the  surety's  liability  is  the  penalty  named 
in  the  bond,  and  it  may  be  granted  that  that  was  the  measure 
of  liability  when  the  liability  arose.  When  the  secretary  con- 
verted and  wrongfully  withheld  the  moneys  of  the  association, 
the  condition  of  the  bond  was  broken,  and  a  liability  arose 
against  both  principal  and  surety.  Interest  is  recoyerable 
against  both  of  them  from  the  time  of  the  default,  not  as  a 
part  of  the  penalty,  but  for  the  detention  of  the  money  after 
the  same  became  due.  During  the  continuance  of  the  defanlt 
interest  was  due  from  the  secretary,  just  the  same  as  in  cases 
where  money  is  not  paid  when  the  creditor  becomes  entitled 
to  it,  and  the  surety  who  bound  himself  against  the  defaults 
of  the  secretary  and  became  liable  for  them  when  they  occnrred 
can  claim  no  exemption  from  the  rule.  So,  while  it  is  true, 
as  the  plaintiffs  in  error  contend,  that  the  penalty  of  the  bond 
is  the  limit  of  liability  of  the  surety,  the  liability  arose  at  the 
time  of  the  default,  and  the  failure  to  discharge  that  liability 
when  it  matured  warranted  an  allowance  of  interest  beyond 
the  penalty:  Burchfield  v.  ^^  Haffey,  34  Kan.  42,  7  Pac.  ^648; 
1  Sedgwick  on  Damages,  sec.  303;  4  Am.  &  Eng.  Ency.  of 
Law,  2d  ed.,   701. 

It  is  next  contended  that  the  action  was  barred  by  the  stat- 
ute of  limitations.  A  default  may  be  said  to  have  occurred 
in  the  beginning  of  1886,  and  the  action  was  not  brought  nntil 
February,  1892 — ^more  than  six  years  after  the  default.  It 
was  based  on  the  written  bond,  and  therefore  falls  within  the 


Jad.  1902.]    McMdllen  v.  Winpield  Bldq.  etc.  Assn.    241 

fife  year  limitation.    The  question  then  arises^  Was  the  action 
bronght  within  five  years  after  the  cause  of  action  accmed  ?    It 
WIS  allied  that  the  secretary  artfully  and  fraudulently  con- 
eesled  his  misappropriations  by  making  false  entries  in  the 
books  and  by  failing  to  make  entries  in  the  books  of  moneys 
received   by  Mm^  as   well   as  by   making   false   entries   and 
statements  in  his  written  reports  of  the  transactions  of  his 
office^  and  that  the  association  had  no  knowledge  of  his  wrongs 
fill  and  fraudulent  acts  until  some  time  in  January,  1892. 
Among  the  agreed  facts^  it  is  stated  that  the  secretary's  reputa- 
tion for  honesty  and  integrity  during  all  the  time  that  he  was 
UL  charge  of  his  office  was  good,  and  that  the  officers  and  mem- 
bers of  the  association  had  perfect  confidence  in  his  honesty 
snd  integrity.    They  believed  that  his  statements  and  reports 
S8  to  the  money  collected  and  paid  out  were  true,  and  they  had 
no  knowledge  that  he  had  collected  more  than  was  reported 
mitil  about  ihe  first  day  of  January,  1892.     Did  this  fraudu- 
lent concealment  interfere  with  the  operation  of  the  statute 
of  limitations?    Did  the  cause  of  action  accrue  when  the  fraud 
was  committed,  or  not  until  the  fraudulent  conduct  and  defaults 
were  discovered?    Courts  of  equity  have  been  holding  that, 
independent  of  a  statutory  provision,  the  defendant's  fraud  and 
concealment  of  a  cause  of  action  will  postpone  the  running  of 
the  statute  of  limitations  until  '^^  such  time  as  the  plaintiff 
discovers  the  fraud;  and  this  upon  the  theory  that  the  defend- 
snt,  having  by  his  own  wrong  and  fraud  prevented  the  plain- 
tiff from  bringing  his  action,  cannot  take  advantage  of  his  own 
wrong  by  setting  up  the  statute  as  a  defense.     Some  authori- 
ties confine  this  rule  to  proceedings  in  courts  of  equity,  but 
bold  that  at  law  neither  fraud,  concealment  nor  other  circum- 
stance will  affect  the  operation  of  the  statute,  unless  it  is  ex- 
pressly provided  for  by  statute.    The  weight  of  authority  in 
this  country  and  in  England  applies  the  rule  to  actions  at  law 
as  well  as  to  suits  in  equity.     In  Bailey  v.  Glover,  21  Wall. 
342,  Mr.  Justice  Miller,  in  holding  that  concealed  fraud  was 
an  implied  exception  to  the  statute  of  limitations,   equally 
applicable  to  suits  at  law  as  well  as  in  equity,  said:  "Statutes 
of  limitations  are  intended  to  prevent  frauds,  to  prevent  parties 
from  asserting  rights  after  a  lapse  of  time  had  destroyed  or 
impaired  the  evidence  which  would  show  that  such  rights  never 
existed,  or  had  been  satisfied,  transferred  or  extinguished,  if 
fliey  ever  did  exist.    To  hold  that  by  concealing  a  fraud,  or 
by  committing  fraud  in  a  manner  that  it  concealed  itself  until 

▲m.  St.  Rep.,  Vol.  91—16 


242  American  State  Beports,  Vol.  91.       [ 

such  time  as  the  party  committiiig  the  fraud  could  plead  the 
statute  of  limitations  to  protect  it^  is  to  make  the  law  which 
was  designed  to  prevent  fraud  the  means  by  which  it  is  made 
successful  and  secure^':  See,  also,  Munson  t.  Hallowell,  26 
Tex.  475,  84  Am.  Dec,  682;  Eosenthall  v.  Walker,  111  XJ.  S. 
185,  4  Sup.  Ct.  Rep.  382;  Traer  v.  Clews,  116  U.  S.  628,  6 
Sup.  Ct.  Rep.  155;  Lieberman  t.  Bank,  40  Atl.  382;  lieber- 
man  v.  First  Nat.  Bank,  2  Penne.  (Del.)  416,  82  Am.  St 
Rep.  414,  45  Atl.  901;  Sparks  t.  Farmers'  Bank,  3  Del.  Ch. 
274;  Moore  v.  Waco  Bldg.  Assn.,  19  Tex.  Civ.  App.  68,  45 
S.  W.  974 ;  19  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  246. 

^^'^  McMuUen,  by  reason  of  his  position  and  duties,  occupied 
a  trust  relation,  and  was  in  fact  an  agent  of  the  association. 
His  misconduct  and  default  was  a  breach  of  the  relation  of 
trust  and  confidence,  and  the  general  rule  is,  that  the  statute 
of  limitations  does  not  begin  to  run  until  the  breach  of  trust 
or  default  in  the  performance  of  duties  occurs  and  is  brought 
to  the  knowledge  of  the  principal:  Perry  v.  Smith,  31  Kan. 
423,  2  Pac.  784;  Moore  v.  Waco  Bldg.  Assn.,  19  Tex.  Civ.  App. 
68,  45  S.  W.  974.  In  Lieberman  v.  First  Nat.  Bank,  2  Penne. 
(Del.)*.  416,  82  Am.  St.  Rep.  414,  45  Atl.  901,  which  was  a 
case  brought  upon  the  bond  of  a  defaulting  bank  clerk,  it 
was  contended  that  while  the  rule  as  to  concealed  fraud  was 
enforceable  against  the  one  who  committed  the  fraud,  it  did 
not  apply  to  innocent  sureties,  who  had  no  knowledge  of  and 
did  not  participate  in  the  fraud.  The  court,  after  reviewing- 
many  authorities  holding  that  sureties  stand  in  no  better  posi- 
tion than  their  principal,  said:  ^*It  therefore  seems  to  be  es- 
tablished that,  in  cases  on  official  bonds^  concealed  fraud  on 
the  part  of  the  principal  will  deprive  both  principal  and  surety 
of  the  benefit  of  the  statute  of  limitations;  that  the  statute 
does  not  begin  to  run  until  the  fraud  is  discovered.  The  reason 
seems  to  be  that  in  such  bonds  the  sureties  guarantee  the  good 
conduct  and  faithfulness  of  the  principal  in  the  discharge  of 
the  duties  of  his  office,  and  that  in  equity  and  good  conscience 
they  should  not  be  exempt  from  liability  for  his  misconduct 
and  peculations  when  by  fraudulent  concealment  he  has  pre- 
vented discovery  until  the  time  limited  by  the  statute  to  bring 
action  has  expired.  Any  other  construction  would  make  the 
very  frauds  against  which  the  sureties  covenanted  the  means 
for  relief  from  liability.  The  bond  in  such  case,  instead  of 
securing  the  faithfulness  of  the  officer,  would  tend  to  promote 
on  his  part  skillfully  and  fraudulently  concealed  peculations. 


Jan.  1902.J    McMullen  v.  Winfield  Bldg.  etc.  Assn.     248 

and  would  be  an  inducement  to  frand.  If  concealed  fraud, 
which  the  principal  undertakes  not  to  *^  perpetrate,  deprives 
rach  principal  of  the  protection  of  the  statute,  is  it  not  equally 
reasonable  that  the  undertaking  of  the  surety  that  such  fraud 
should  not  be  perpetrated  should  exclude  the  surety  also  ?  The 
principal  undertakes  not  to  commit  fraud.  The  surety  guar- 
antees that  he  shall  not  commit  fraud.  There  would  seem 
to  be  no  substantial  reason  why  their  respective  liabilities  for 
such  fraud  should  be  different.^' 

So,  here,  the  surety  guaranteed  the  honesty  and  faithfulness 
of  McMullen,  and  promised  to  make  good  his  defaults,  and 
there  is  no  good  reason  why  the  surety  should  be  relieved  of 
liability  for  the  dishonesty  of  the  secretary  when  by  reason 
of  the  same  dishonesty  the  liability  was  covered  up.  We  think 
the  liability  of  the  surety  depends  upon  the  liability  of  the 
principal.  There  is  no  distinction  between  their  liabilities 
in  cases  of  concealed  fraud,  and  the  statute  does  not  begin 
to  run  in  favor  of  either  until  the  fraud  is  discovered. 

On  the  part  of  the  surety,  there  is  a  contention  that  the 
books  of  the  association  were  open  to  the  inspection  of  its  offi- 
cers and  members;  that  they  should- have  detected  the  fraud; 
and  that  if  due  diligence  had  been  exercised,  the  dishonesty 
would  have  been,  detected  and  the  defalcation  prevented  or  re- 
duced.   While  negligence  frequently  is  a  bar  to  relief,  on  the 
principle  that  one  ought  not  to  recover  from  a  surety  damages 
caused  by  himself,  the  fact  is  that  the  surety  made  an  uncon- 
ditional promise  to  make  good  the  defaults  of  his  principal. 
No  positive  duty  to  the  surety  was  imposed  upon  the  officers 
and  members  to  keep  so  close  a  watch  over  the  conduct  of  the 
secretary  that  no  fraud  could  be  committed  nor  defalcation 
occur.    Of  course,  they  could  not  act  in  bad  faith  toward  the 
Burety,  and,  relying  upon  his  liability,  omit  any  eflfort  to  pro- 
tect the  funds  of  the  association,  after  receiving  ^^  notice  of 
the  dishonesty  and  unfaithfulness  of  the  secretary.     He  was 
a  trusted  oflBcer,  charged  with  the  management  of  their  busi- 
ness, and  as  he  bore  a  good  reputation  for  honesty  during  most 
of  his  incumbency,  they  had  a  right  to  assume  that  he  would 
faithfully  perform  his  duties  until  they  received  notice  to  the 
contrary.    They  had  no  knowledge  or  notice  of  unfaithfulness 
Tmtil  1892,  and  the  mere  fact  that  they  did  not  detect  crook- 
edneBS  in  his  books  and  reports  before  that  time  is  not  an  in- 
dication of  bad  faith  toward  the  surety,  and  does  not  exoner- 
ate him:  Ldeberman  v.  Bank  (Del.  Ch.),  40  Atl,  382 ;  Ideberman 


244  Ambbican  State  Ekports,  Vol.  91.       [Kansas 

v.'Krst  Nat.  Bank,  2  Penne.  (Del.)  416,  82  Am.  St  Rep.  414, 
45  Atl.  901 ;  Moore  v.  Waco  Bldg.  Assn.,  19  Tex.  Civ.  App.  68, 
45  S.  W.  974;  Graves  v.  Lebanon  Nat.  Bank,  10  Bnsh,  28,  19 
Am.  Eep.  60 ;  Wayne  v.  Commercial  Nat  Bank,  52  Pa.  St  343 ; 
Tapely  v.  Martin,  116  Mass.  275;  Amherst  Bank  v.  Root  2 
Met  640. 

The  judgment  of  the  district  court  will  be  affirmed. 
Cunningham,  Greene  and  Ellis,  JJ.,  concurring. 

The  Sureties  on  an  Oiftdal  Bond  are  not  answerable  for  default* 
occnrrmg  prior  to  its  exeeution,  unless  made  so  by  its  terms:  State 
V.  Finn,  98  Mo.  632,  14  Am.  St.  Bep.  654,  11  S.  W.  994.  Ordinarilj, 
the  bond  will  have  no  retrospective  operation:  Custer  CouiLtT  v 
Tunley,  13  8.  Dak.  7,  79  Am.  St.  Bep.  870,  82  N.  W.  84;  Independent 
School  Dist.  V.  Hubbard,  110  Iowa,  68,  80  Am.  St.  Bep.  271,  81  N.  W. 
241. 

The  Statute  of  lAmitatUms,  in  cases  of  fraud,  does  not  be^n  to 
run  until  the  discovery  of  the  fraud:  Smith  v.  Blaehley,  188  Pa. 
St.  550,  68  Am.  St.  Bep.  887,  41  Atl.  619;  Beid  v.  Matthews,  102 
Ga.  189,  66  Am.  St.  Bep.  164,  29  S.  E.  173;  or  untU  it  should  have 
been  discovered  by  the  exercise  of  proper  diligence  and  inqnirr: 
Chicago  etc.  By.  Co.  ▼.  Titterington,  84  Tex.  218,  31  Am.  St.  Ben. 
39,  19  a  W.  472.  ^^ 


SKINNER  T.  MOORE. 

[64  Kan.  360,  67  Pac  827.] 

HOMESTEAD  — Statnte  of  Idmitatlons— Payments  Made  1»y 
fliurt>and.~If  a  husband  and  wife  execute  a  mortgage  on  their 
homestead  to  secure  the  payment  of  a  note  made  by  him  only.  Ma 
payment  of  interest  from  time  to  time,  though  without  her  Imow^l- 
edge,  prevents  the  running  of  the  statute  of  limitations,  and  the 
mortgage  may  be  foreclosed  in  a  suit  commenced  more  than  five 
years  after  the  note  became  due.     (p.  245.) 

APPEIJiATE  PBOGEDUBE— Practice,  Who  may  be  Omitted 

from.— If  in  a  suit  to  foreclose  a  mortgage  certain  persons  are 
made  defendants  under  a  general  allegation  that  they  claim  to 
own  or  hold  some  right,  title,  or  interest  in  the  real  estate,  but  there 
is  no  judgment  for  or  against  them,  the  failure  to  make  them  par- 
ties to  the  proceeding  in  error  is  not  a  ground  for  dismissaL     (p.  247.) 

Prank  M.  Sheridan,  for  the  plaintiff  in  error. 

Sperry  Baker,  for  the  defendants  in  error. 

*^  SMITH,  J.  A  promissory  note  executed  by  a  hnsband 
alone  was  secured  by  a  mortgage  jointly  executed  by  the  hus* 
band  and  wife  on  real  estate  occupied  by  them  as  a  homestead. 
Payments  of  interest  were  made  from  time  to  time  by  the 


Jan.  1902.3  Skikner  v.  Moore.  245 

maker  of  the  note  (the  husband)  without  the  knowledge  of  the 
wife.  This  action  was  brought  in  the  conrt  below  more  than 
fire  years  after  the  note  became  due,  in  which  a  personal  judg* 
ment  against  the  husband  and  a  decree  foreclosing  the  mort- 
gage were  praved  for.  The  statute  of  limitations  had  not  run 
on  the  note  against  the  maker  by  reason  of  interest  payments 
made  by  him.  A  decree  of  foreclosure  was  denied  for  the 
reason  that  the  right  to  the  same  was  barred  as  against  the 
homestead  interest  of  the  wife  in  the  real  estate. 

••*•  We  think  the  district  court  erred.  A  recovery  on  the 
note  was  neyer  barred  by  the  statute  of  limitations.  No  one 
except  the  husband  was  obligated  to  pay  the  debt  evidenced 
by  llie  note.  The  mortgage  was  a  conditional  conveyance  se- 
curing the  payment  of  the  note  so  long  as  it  was  a  valid  and 
existing  demand  against  the  maker.  In  the  case  of  Perry  v. 
Horack,  63  Ean.  88,  88  Am.  St.  Bep.  225,  64  Pac.  990,  a  mort- 
gage on  a  homestead  was  executed  by  a  husband  and  wife  to 
secure  a  note  given  by  both  of  them.  Before  the  note  ma- 
tured the  husband  died  intestate,  and  the  widow  with  three 
infant  children  continued  to  occupy  the  homestead.  The 
mother  made  payments  on  the  debt  out  of  money  derived  from 
the  products  of  the  mortgaged  land.  The  minor  children 
made  no  payments. 

in  an  action  to  foreclose  the  mortgage,  brought  more  than 
five  years  after  the  maturity  of  the  note,  it  was  held  that  the 
payments  made  by  the  widow  kept  the  debt  alive,  and  that 
the  mortgage  could  be  foreclosed  against  all  the  land  mort- 
gaged.   The  court  said: 

'If  payment  had  been  made  by  one  not  obligated  to  pay  the 
debt,  there  would  be  more  reason  to  say  that  such  payment  did 
not  keep  the  mortgage  alive;  but  here  it  was  made,  as  we  have 
seen,  by  one  who  owed  the  whole  debt  and  who  joined  in  a 
mortgage  given  to  secure  the  whole  debt.  The  children  had  not 
assumed  any  personal  liability  for  the  debt,  and  had  nothing 
to  do  with  the  matter  of  payments,  but  they  took  the  land  bur- 
dened with  the  mortgage,  and  so  long  as  the  statute  of  limita- 
tions does  not  run  against  the  debt  secured  by  the  mortgage, 
it  would  seem  that  the  mortgage  itself  might  be  foreclosed 
and  the  property  sold  to  pay  the  debt  which  the  mortgage  was 
given  to  secure:  Waterson  v.  Kirkwood,  17  Kan.  9;  Schmucker 
▼.  Sibert,  18  Kan.  104,  26  Am.  Bep.  765. 

^'Paraent  by  Mrs.  Horack  kept  the  debt  alive,  and  *•■  if 
ne  should  treat  these  payments  as  for  herself  alone,  the  mort- 


246  American  State  Bbpobts^  Vol.  91.        [ 

gage  would  still  be  enforceable.  If  she  alone  had  made  €bm 
note^  and  the  children  had  joined  in  a  mortgage  on  their  pit>p* 
erty  to  secure  it,  and  the  debt  had  been  kept  alive  by  payment! 
of  the  maker,  no  one  would  contend  that  the  mortgage  would 
be  barred  as  to  the  children,  or  that  it  would  be  affected  by 
their  failure  to  make  payments  or  otherwise  acknowledge  the 
existence  of  the  debt.  The  children  occupy  no  better  position 
here,  and  the  life  of  the  note  and  the  mortgage  no  more  depends 
upon  their  acts  than  in  the  case  above  supposed. 

''Considering  the  interest  of  the  parties  in  the  homestead, 
their  relations  to  the  debt  and  to  each  other,  we  conclude  that, 
the  debt  having  been  kept  alive,  the  mortgage  which  it  was  given 
to  secure  is  enforceable  against  the  entire  property  included  in 
it.^' 

In  Jackson  v.  Longwell,  63  Kan.  93,  64  Pac.  991,  a  note  was 
executed  jointly  by  the  husband  and  wife,  and  the  land  of  the 
latter  mortgaged  to  secure  its  payment.  The  note  became  barred 
by  limitation  as  to  the  wife,  but  was  kept  alive  by  the  husband 
by  payments  of  interest.  From  a  decree  foreclosing  the  mort- 
gage against  the  wife's  land  error  was  prosecuted  in  this  court, 
and  the  judgment  afiSrmed.  The  court  said:  '^The  statute  of 
limitations  having  run  in  favor  of  Mrs.  Jackson,  she  was  dis- 
charged from  personal  liability  on  the  note,  and,  therefore,  she 
sustained  the  same  relation  to  the  note  as  though  she  had  never 
signed  it,  but  this  in  no  way  affected  her  agreement  that  her 
property  should  be  subjected  to  the  payment  of  her  husband's 
debt  evidenced  by  the  note,  and  the  case  remained  the  same 
as  though  he  only  had  signed  the  note  when  it  was  made,  and 
both  had  at  that  time  given  a  mortgage  to  secure  it." 

In  the  present  case  the  obligation  to  pay  the  note  rested  on 
its  maker  with  the  same  force  and  effect  at  •••  the  time  the  ac- 
tion was  begun  as  it  did  when  the  note  was  executed  and  when 
the  mortgage  was  given  to  secure  Ihe  note,  so  long  as  it  remained 
a  valid  and  subsisting  evidence  of  debt  against  the  maker.  The 
reason  is  much  stronger  for  not  releasing  the  mortgaged  prop- 
erty involved  here  than  in  the  two  cases  from  which  we  have 
quoted. 

Other  parties  were  made  defendants  in  the  court  below.  The 
petition  alleged  that  they  "claim  to  own  or  hold  some  right, 
title  or  interest  in  and  to  the  above-described  real  estate.*'  They 
have  not  been  made  parties  here.  There  is  no  judgment  for  or 
against  them  appearing  in  the  record.  They  seem  to  have  been 
dropped  out  of  the  case.    The  allegations  of  the  petition  were 


Jan.  1902.]  Skinnsb  v.  Mooiub,  247 

insuffident  to  state  a  cause  of  action  against  them:  Short  y. 
Nooner,  16  Kan.  220.  A  failure  to  make  them  parties  to  this 
proceeding  in  error  is  not  ground  for  dismissal. 

The  facts  being  agreed  to^  the  judgment  of  the  court  below 
wQl  be  reversed^  with  directions  to  enter  a  decree  foreclosing 
the  mortgage. 

Doster;  C.  J.,  and  Johnston  and  Greene,  JJ.,  concurring. 


The  Principal  Case  was  followed  in  Fuller  ▼.  McMahan.  64  Kan. 
441,  67  Pae.  828,  where  both  husband  and  wife  joined  in  a  note  and 
in  the  mortgage  of  their  homestead  to  seenre  its  payment,  and  he, 
before  the  bar  of  the  statute  became  eomplete,  made  two  acknowledg- 
ments in  writing  of  his  liability  on  the  note,  and  promised  to  pay  it. 
The  result  of  this  action  on  the  part  of  the  husband  was  by  the  ap- 
pellate court  declared  to  be  the  same  as  if  he  ''had  made  payment 
on  the  note  when  he  executed  and  delivered  his  written  acknowledg- 
ment of  indebtedness  and  promised  to  pay.''  In  Investment  Se- 
curities Co.  ▼.  Manwarren,  64  Kan«  636,  68  Pac.  68,  the  rule  of 
the  principal  case  was  again  applied,  and  the  court  said:  "It  being 
within  the  power  of  the  husband  to  suspend  the  running  of  tho 
statute  of  limitations  as  against  himself  upon  his  obligation  to  pay 
the  debt  by  an  acknowledgment  of  a  subsisting  liability,  either  by 
the  making  of  payments  thereon,  or  by  an  acknowledgment  in  writ- 
ing of  an  existing  liability,  as  by  law  provided  for  tolling  the  stat- 
ute of  limitations,  and  as  the  mortgage  remained  enforceable  so 
long  as  his  obligation  to  pay  the  debt  remained  enforceable  in  law, 
it  foUows,  and  must  be  held,  in  an  action  to  recover  the  debt  and 
to  foreclose  the  mortgage,  that  the  statute  of  limitations  cannot  be 
snecessfuUy  interposed  by  either  husband  or  wife  to  defeat  the  mort- 
gage Uen,  so  long  afl  the  right  of  action  to  recover  the  debt  may  be 
maintained  against  either."  The  case  of  Bank  v.  Hardman,  62  Kan. 
242,  61  Pac   1131,  was  expressly  overruled. 

The  Part  Payment  relied  upon  to  remove  the  bar  of  the  statute 
of  limitations  must,  in  general,  be  made  by  the  party  to  be  charged 
or  hy  his  agent:  Gowhick  v.  Shingle,  5  Wyo.  87,  63  Am.  St.  Bep. 
17,  37  Pac.  689;  Moffitt  v.  Carr,  48  Neb.  403;  58  Am.  St.  Bep.  696; 
67  N.  W.  150.  A  grantee  of  a  mortgagor,  who  assumes  and  agrees 
to  pay  the  mortgage,  does  not,  by  subsequent  payments  of  prin- 
cipal and  interest,  toll  the  statute  as  against  the  original  mortgagor: 
CottreU  V.  Shepherd,  86  Wis.  649,  39  Am.  St.  Bep.  919,  67  N.  W. 
t)83.  And  a  payment  by  cne  joint  debtor  does  not  stop  the  running 
of  the  statute  as  to  the  other:  Boynton  v.  Spafford,  162  Til.  113,  53 
Am.  St.  Bep.  274,  44  N.  £.  379;  Cowhick  v.  Shingle,  5  Wyo.  87,  63 
Am.  St.  Bep.  17,  37  Pac.  689.  See,  further,  Maddox  v.  Duncan,  143 
Mo.  613,  65  Am.  St.  Bep.  678,  45  S.  W.  688;  Patterson  v.  Collier,  113 
Mieh.  12,  67  Am.  St.  Bep.  440,  71  N.  W.  827. 


240  American  Stats  Sbposts^  Yol.  91.        [Eansu^ 

the  bonds/  In  our  opinion,  the  law  requires  appellee  to  sbov 
what  became  of  the  money  of  appellants  which  was  receiyed  by 
the  guardian  while  he  was  bound  as  surety  on  his  bond ;  and,  in 
the  absence  of  proof  showing  clearly  that  at  the  date  of  the  exe- 
cution of  the  new  bond  the  fund  was  intact  in  the  hands  of  the 
guardian,  he  should  be  held  liable  for  the  balance  shown  by  tte 
proof  to  be  due^' :  •^  See,  also,  Wood  v.  Friendship  Lodge,  20 
Ky.  liaw  Rep.  2002,  60  S.  W.  836. 

While  there  is  a  contention  as  to  the  application  of  pajrments 
by  the  secretary  in  1886,  and,  therefore,  as  to  whether  the 
amount  or  misappropriation  in  1885  was  correctly  found  by  the 
trial  court,  we  think  the  facts  in  the  record  are  sufficient  to  sup- 
port the  judgment.  The  agreed  facts  include  voluminous  ac- 
counts and  seports,  which  it  is  not  practical  to  set  out,  but  an 
examination  of  them  satisfies  us  that  they  made  a  prima  fade 
case  for  the  association. 

The  judgment  rendered  is  an  excess  of  the  penalty  of  the  bond 
by  reason  of  the  allowance  of  interest.  It  is  contended  that 
the  utmost  limit  of  the  surety's  liability  is  the  penalty  named 
in  the  bond,  and  it  may  be  granted  that  that  was  the  measure 
of  liability  when  the  liability  arose.  When  the  secretary  con- 
yerted  and  wrongfully  withheld  the  moneys  of  the  association, 
the  condition  of  the  bond  was  broken,  and  a  liability  arose 
against  both  principal  and  surety.  Interest  is  recoyerable 
against  both  of  them  from  the  time  of  the  default,  not  as  a 
part  of  the  penalty,  but  for  the  detention  of  the  money  after 
the  same  became  due.  During  the  continuance  of  the  default 
interest  was  due  from  the  secretary,  just  the  same  as  in  cases 
where  money  is  not  paid  when  the  creditor  becomes  entitled 
to  it,  and  the  surety  who  bound  himself  against  the  defaults 
of  the  secretary  and  became  liable  for  them  when  they  occurred 
can  claim  no  exemption  from  the  rule.  So,  while  it  is  true, 
as  the  plaintiifs  in  error  contend,  that  the  penalty  of  the  bond 
is  the  limit  of  liability  of  the  surety,  the  liability  arose  at  the 
time  of  the  default,  and  the  failure  to  discharge  that  UabilitT 
when  it  matured  warranted  an  allowance  of  interest  beyond 
the  penalty:  Burchfield  y.  »«*  Haffey,  34  Kan.  42,  7  Pac.  548; 
1  Sedgwick  on  Damages,  sec.  303;  4  Am.  &  Eng.  Ency.  of 
Law,  2d  ed.,  701. 

It  is  next  contended  that  the  action  was  barred  by  the  stat- 
ute of  limitations.  A  default  may  be  said  to  haye  occurred 
in  the  beginning  of  1886.  and  the  action  was  not  brought  until 
February,  1892 — ^more  than  six  years  after  the  default.  It 
was  based  on  the  written  bond,  and  therefore  falls  within  the 


Jan.  1902.]    McMullen  v.  Winfibld  Bldg.  etc.  Absn.    241 

five  year  limitation.    The  question  then  arises,  Was  the  action 
bron^t  within  five  years  after  the  cause  of  action  accmed  ?    It 
was  alleged  that  the  secretary  artfully  and  fraudulently  con- 
cealed his  misappropriations  by  making  false  entries  in  the 
books  and  by  failing  to  make  entries  in  the  books  of  moneys 
leceiTed    by  him,  as   well   as  by   making   false   entries   and 
statements  in  his  written  reports  of  the  transactions  of  his 
office,  and  that  the  association  had  no  knowledge  of  his  wrongs 
ful  and  fraudulent  acts  until  some  time  in  January,  1892. 
Among  the  agreed  facts,  it  is  stated  that  the  secretary's  reputa- 
tion for  honesty  and  integrity  during  all  the  time  that  he  was 
in  charge  of  his  office  was  good,  and  that  the  officers  and  mem- 
bers of  the  association  had  perfect  confidence  in  his  honesty 
and  integrity.    They  believed  that  his  statements  and  reports 
as  to  the  mjoney  collected  and  paid  out  were  true,  and  they  had 
no  knowledge  that  he  had  collected  more  than  was  reported 
until  about  the  first  day  of  January,  1892.     Did  this  fraudu- 
lent concealment  interfere  with  the  operation  of  the  statute 
of  limitations  ?    Did  the  cause  of  action  accrue  when  the  fraud 
was  committed,  or  not  until  the  fraudulent  conduct  and  defaults 
were  discovered?    Courts  of  equity  have  been  holding  that, 
independent  of  a  statutory  provision,  the  defendant's  fraud  and 
concealmoit  of  a  cause  of  action  will  postpone  the  running  of 
the  statute  of  limitations  until  '^^  such  time  as  the  plaintiff 
discovers  the  fraud;  and  this  upon  the  theory  that  the  defend- 
ant, having  by  his  own  wrong  and  fraud  prevented  the  plain- 
tiff from  bringing  his  action,  cannot  take  advantage  of  his  own 
wrong  by  setting  up  the  statute  as  a  defense.     Some  authori- 
ties confine  this  rule  to  proceedings  in  courts  of  equity,  but 
hold  that  at  law  neither  fraud,  concealment  nor  other  circum- 
stance will  affect  the  operation  of  the  statute,  unless  it  is  ex- 
pressly provided  for  by  statute.     The  weight  of  authority  in 
this  country  and  in  England  applies  the  rule  to  actions  at  law 
as  well  as  to  suits  in  equity.     In  Bailey  v.  Glover,  21  Wall. 
342,  Mr.  Justice  Miller,  in  holding  that  concealed  fraud  was 
an  implied  exception  to  the  statute   of  limitations,   equally 
applicable  to  suits  at  law  as  well  as  in  equity,  said:  "Statutes 
of  limitations  are  intended  to  prevent  frauds,  to  prevent  parties 
from  asserting  rights  after  a  lapse  of  time  had  destroyed  or 
impaired  the  evidence  which  would  show  that  such  rights  never 
eidsted,  or  had  been  satisfied,  transferred  or  extinguished,  if 
ihey  ever  did  exist.     To  hold  that  by  concealing  a  fraud,  or 
by  committing  fraud  in  a  manner  that  it  concealed  itself  until 

Am,  St  Rep.,  Vol.  91—16 


250  Ambbican  Statb  Bbpobts,  Vol.  91.       [Kaxua^ 

80  long  as  its  regulations  are  impariaal  and  nnif  orm ;  but  it  has 
no  power  to  establish  rules  which,  under  pretense  of  regulating 
the  presentation  of  evidence,  go  so  far  as  altogether  to  preclude 
a  party  from  exhibiting  his  rights.    Except  in  those  cases  which 
fall  within  the  familiar  doctrine  of  estoppd.  at  the  common  law, 
or  other  cases  resting  upon  the  like  reasons,  it  would  not,  we 
apprehend,  be  in  the  power  of  the  legislature  to  declare  that  a 
particular  item  of  evidence  should  preclude  a  party  from  estab- 
lishing his  rights  in  opposition  to  it.    In  judicial  investigations 
the  law  of  the  land  requires  an  opportunity  for  a  trial;  and 
there  can  be  no  trial,  if  only  one  party  is  suffered  to  produce 
his  proofs.    The  most  formal  conveyance  may  be  a  fraud  or  a 
forgery;  public  officers  may  connive  with  rogues  to  rob  the  citi- 
sen  of  his  property;  witnesses  may  testify  or  officers  certify 
falsely,  and  records  may  be  .collusively  manufactured  for  dis- 
honest purposes ;  and  that  legislation  which  would  preclude  the 
fraud  or  wrong  being  shown,  and  deprive  the  party  wronged  of 
all  remedy,  has  no  justification  in  the  principles  of  natural  jus- 
tice or  of  constitutional  law.'' 

In  Arkansas,  a  statute  was  enacted  which,  according  to  a  cet- 
tain  theory  of  construction,  imposed  upon  railroad  companies 
an  absolute  liability  to  pay  for  stock  killed  by  their  trains,  and 
withdrew  from  the  jury  all  considerations  of  negligence  of  the 
owner  of  the  stock  or  due  care  on  the  part  of  the  company.  The 
court  held  that  such  theory  of  construction  could  not  be  applied, 
notwithstanding  the  language  of  the  act  lent  some  countenance 
to  it.  for  the  reason  following:  'T[t  is  not  within  the  province  of 
the  legislature  to  devest  rights  by  prescribing  to  the  courts  what 
should  be  conclusive  evidence 'The  legislature  may  de- 
clare what  shall  be  received  as  evidence,  but  it  cannot  make  tiiat 
conclusively  true  which  may  be  ®^  shown  to  be  false;  at  all 
events,  if  such  facts  are  necessary  to  show  that  the  substantial 
rights  of  property  are  to  be  affected^  and  he  is  made  to  lose  his 
property* " :  Little  Eock  etc.  B.  B.  Co.  v.  Payne,  33  Ark  816, 
34  Am.  Bep.  55. 

In  Minnesota,  a  statute  was  enacted  which  made  the  fact  that 
a  person  who  performed  labor  or  furnished  material  in  the  erec- 
tion of  a  house  on  another's  land  conclusive  evidence  that  the 
labor  was  performed  or  the  material  furnished  with  the  owner's 
consent,  unless  the  latter  had,  by  suit  in  the  courts,  enjoined 
the  act  as  a  trespass.  Of  this  act  the  court  said :  ^'A  man  can- 
not be  thus  deprived  of  his  property  without  his  consent.  The 
legislature  may  doubtless  establish  rules  of  evidence;  but  to  en- 


Jan.  1902.]    Missouri  etc.  By.  Go.  v.  Simonson.  251 

Act  a  law  making  evidence  conclnfiiye  wliich  is  not  so  necessarily 
in  and  of  itself^  and  thus  preclude  a  party  from  showing  the 
truth,  would  be  nothing  short  of  confiscation  of  property  and  a 
destruction  of  vested  rights  without  due  process  of  law*' :  Meyer 
T.  Berlandi,  39  Minn.  438, 12  Am.  St.  Eep.  663,  40  N.  W.  613. 

An  act  of  Congress  in  1862,  in  relation  to  enlistments  in  the 
military  service  of  the  United  States,  provided  that  '^the  oath  of 
enlistment  taken  by  the  recruit  shall  be  conclusive  as  to  the  age/' 
In  an  action  of  habeas  corpus  brought  by  the  parent  or  guardian 
of  a  minor  recruit,  it  was  held  that  the  statute  was  not  binding 
on  the  petitioner  as  establishing  a  conclusive  presumption  of  age, 
for  the  reason  that  the  declaration  as  to  age  was  a  '^judicial  act,'* 
a  matter  for  judicial  inquiry,  from  entering  on  which  the  courts 
could  not  be  precluded :  Wantlan  v.  White,  19  Ind.  470. 

The  legislature  of  Minnesota  enacted  a  statute  providing  that 
the  schedule  of  rates  for  the  transportation  of  property  over  the 
railroads  of  that  state,  made  and  published  by  the  board  of  rail- 
road and  warehouse  ®^^  commissioners,  should  be  final  and  con- 
clusive as  to  what  were  equal  and  reasonable  charges.  The  su- 
preme court  of  the  United  States  held  the  act  void :  Chicago  etc. 
By.  Co.  V.  Minnesota,  134  U.  S.  418,  10  Sup.  Ct.  Rep.  702. 

A  statute  of  this  state  assuming  to  authorize  counties  to  pay 
bounties  for  the  killing  of  gophers  was  held  unconstitutional, 
for  the  reason  that  the  subject  had  not  been  expressed  in  its  title. 
Later,  a  statute  was  enacted,  probably  intended  to  be  curative  of 
the  authority  exercised  under  the  former  one,  but  which  was  so 
worded  as  to  validate  the  mere  ministerial  act  of  issuing  the  war- 
rants in  payment  of  the  bounty  only,  and  not  the  original  au- 
thority to  issue  them.  The  warrants  so  issued  were  declared 
*^ereby  legalized,  and  hereby  made  county  charges  and  payable 
out  of  the  general  fund  of  the  county.  This  so-called  curative 
act  was  held  to  be  in  the  nature  of  a  legislative  judgment  against 
the  county  in  favor  of  the  holders  of  the  warrants,  an  endeavor 
to  preclude  investigation  into  the  rightfulness  of  their  issuance, 
and,  therefore,  a  usurpation  of  the  judicial  function  to  try  and 
determine  causes,  and  consequently  void:  Felix  v.  Wallace 
Comity,  62  Kan.  832,  84  Am.  St.  Hep.  424,  62  Pac.  667. 

The  theory  on  which  all  these  cases  proceed  is  that  an  act  of 
the  legislature  which  undertakes  to  make  a  particular  fact  or 
matter  in  evidence  involving  the  substantive  right  of  the  case 
conclusive  upon  the  parties,  and  which  precludes  inquiry  into  the 
meritorious  issues  of  the  controversy,  is  an  invasion  of  the  judi- 
cial province  and  a  denial  of  due  process  of  law.    The  legisla- 


252  Ahbrican  State  Bbposts^  Yol.  91.        [Kansas, 

ture  may  regulate  the  form  and  the  maimer  of  use  of  the  in- 
struments of  evidence — ^the  media  of  proof — but  it  cannot  pre- 
clude a  party  wholly  from  making  his  proof.  A  statute  which 
declares  what  ®^^  shall  be  taken  as  conclusive  evidence  of  a 
fact  is  one  which,  of  course,  precludes  investigation  into  the  fact, 
and  itself  determines  the  matter  in  advance  of  all  judicial  in- 
quiry. If  such  statutes  can  be  npheld,  there  is  then  little  use 
for  courts,  and  small  room  indeed  for  the  exercise  of  their  func- 
tions. 

It  will  be  observed  that  the  statute  in  question  by  it  terms 
shuts  out  all  proof  as  to  the  occurrence  of  fraud  or  mistake  in 
the  making  of  the  bill  of  lading.  Admitting,  however,  that  of 
necessity  there  must  be  read  into  the  act  an  exception  against 
fraud,  why  should  there  not  be  an  exception  in  favor  of  mistake 
as  well,  for  if  the  bill  of  lading  was  executed  by  the  mutual  mis- 
take of  both  parties,  it  does  not  evidence  the  contract  of  either 
one?  In  order  to  constitute  a  contract,  the  minds  of  the  parties 
thereto  must  have  met.  If  by  reason  of  mutual  mistake  no  such 
concurrence  has  been  had,  it  follows  that  no  contract  has  been 
entered  into,  notwithstanding  the  fact  that  written  evidence  of 
one  may  have  been  executed.  Therefore,  to  give  effect  to  the 
act  in  question,  we  must  say  that  the  legislature  has  the  power 
to  force  contracts  npon  parties  by  making  indisputable  that 
which  in  reality  is  only  evidence  of  their  contract.  It  is  hard 
to  see  where  this  would  end  were  its  entrance  admitted.  Of 
course,  the  contracts  of  parties  are  binding  on  them.  It  does 
not  require  an  act  of  the  legislature  to  make  them  so.  It  is  tiie 
function  of  the  court  and  not  of  the  legislature  to  determine 
when  contracts  exist  and  what  they  are.  To  shut  out  proof  that 
what  purports  to  be  a  contract  is  not  really  such,  by  reason  of 
mutual  mistake  of  the  parties  thereto,  is  in  effect  to  require  the 
performance  of  an  act  which  was  never  agreed  on  between  them ; 
or,  in  other  words,  it  is  to  ®^  allow  the  legislature  to  make  for 
parties  a  contract  which  they  never  made  for  themselves. 

It  is  claimed  that  this  sort  of  legislation  is  defensible  and 
proper  under  the  law  of  estoppel,  and  that,  where  the  parties 
have  entered  into  the  seeming  contract,  they  may  be  prohibited 
by  the  terms  of  their  act  from  denying  its  effect  as  written.  The 
trouble,  however,  lies  in  the  application  of  the  rule  of  estoppel 
and  in  the  assumption  that  the  bill  of  lading  speaks  the  contract 
of  the  parties.  Whether  it  does  is  the  very  question  at  issue, 
the  very  question  on  which  the  plaintiff  in  error  sou0it  to  offer 
evidence.    If  the  writing  was  not  the  expression  of  the  contract 


Jan.  1902.]     Missouri  etc.  Rt.  Co.  v.  Suonson.  268 

of  the  parties  to  it  by  reason  of  mutual  mistake  or  frauds  then 
how  could  either  be  estopped  by  it?  Estoppel  is  only  predicated 
of  contracts  which  parties  have  really  made.  We  do  not  intend 
to  role  that  there  are  no  classes  of  acts  or  contracts  that  may  not 
be  made  conclnsiye  upon  the  parties  thereto  by  the  legislature, 
but  we  do  intend  to  hold  that  it  is  incompetent  for  the  legisla- 
ture to  make  that  conclnsiTO  of  the  fact  and  character  of  a  con- 
tract which  does  not  in  reality  express  a  contract  because  of 
fraud  or  mistake  that  may  inhere  therein. 

There  was  error,  also,  for  another  reason — in  rejecting  the 
deposition.  The  evidence  offered  was  to  the  effect  that  the  Qars 
in  which  the  hay  was  shipped  were  sealed  at  the  loading  point, 
and  that  the  seals  were  found  unbroken  at  the  point  of  destina- 
tion. Had  this  evidence  been  admitted,  it  would  have  tended 
to  prove  that  whatever  hay  the  company  received  it  safely  trans- 
portedj  and,  inasmuch  as  the  plaintiff  claimed  that  the  company 
received  the  amount  receipted  for  in  the  bills  of  lading,  the  evi- 
dence tended  to  prove  that  the  same  amount  was  transported  and 
**•  delivered.  For  this  reason  the  deposition  should  have  been 
admitted,  and,  therefore,  its  rejection  was  error. 

The  claim  is  made  that  the  statute  heretofore  discussed  is  in 
violation  of  the  interstate  commerce  clause  of  the  federal  con- 
stitution. This  claim  is  untenable.  It  does  not  regulate  rates, 
levy  taxes  or  impose  restrictions  of  any  kind  on  commerce  be- 
tween the  states.  It  is  a  police  regulation  designed  to  pro- 
mote accuracy  in  dealings  between  shippers  and  carriers,  by  com- 
pelling the  latter  to  furnish  f a^jilities  for  ascertaining  the  weight 
of  products  offered  for  shipment. 

A  statute  in  Texas  imposed  a  penalty  on  railroad  companies 
for  refusing  to  deliver  freight  on  demand  of  the  consignee  and 
tender  of  the  charges.  It  was  contended  that,  as  to  shipments 
originating  in  other  states,  the  act  was  a  regulation  of  interstate 
commerce,  and  could  not  have  effect.  The  contention  was  over- 
ruled :  Gulf  etc.  Ry.  Co.  v.  Dwyer,  75  Tex.  572,  16  Am.  St.  Rep. 
926, 12  S.  W.  1001. 

A  statute  of  Iowa  required  railroad  companies  to  post  their 
schedules  of  transportation  rates  in  their  station-houses,  and  af- 
fixed penalties  to  the  nonperformance  of  the  duty.  The  act, 
although  applying  to  interstate  as  well  as  local  rates,  was  held 
not  to  be  a  regulation  of  interstate  commerce :  Railroad  Co.  v. 
Fuller,  17  Wall.  560.  The  principle  on  which  these  cases  rest, 
that  such  enactments  were  police  regulations,  likewise  underlies 
the  statute  in  nuestion. 


254  American  State  Beports^  Vol.  91.        [Kansas, 

The  statute  allows  an  attorney's  fee  for  the  successful  prose- 
cution of  a  case  under  its  provisions.  The  reason  for  this  is 
the  negligence  of  the  carrier  in  failing  safely  to  transport  and 
deliver  the  goods  committed  to  its  charge.  The  case  in  that  re- 
spect comes  fully  within  the  principle  of  Atchison  etc.  R.  R. 
Co.  V.  Matthews/  ®^*  68  Kan.  447,  49  Pac.  602,  affirmed  by  the 
supreme  court  of  the  United  States  in  174  XI.  S.  96, 19  Sup.  Ct. 
Rep.  609.  See,  also,  British  American  Assur.  Co.  v.  Bradford, 
60  Kan.  82,  55  Pac.  335. 

For  error  in  rejecting  the  deposition  for  the  reasons  above 
given,  the  judgment  of  the  court  below  is  reversed  and  a  new 
trial  is  ordered. 

Johnston,  Cunningham,  Greene,  and  Pollock,  JJ.,  concurring. 

Smith  and  Ellis,  JJ.,  dissenting  from  the  first  paragraph  of 
the  syllabus  and  corresponding  portion  of  the  opinion. 

Cmief  Justice  Doster  Dissented  from  the  proposition  that  the  leg- 
islature may  not  give  to  the  receipt  in  a  bill  of  lading  issued  by 
a  common  carrier  a  conclusive  effect  as  evidence  of  the  weight  of 
the  thing  receipted  for;  and  Justices  Smith  and  Ellis  joined  in  the 
dissent.  He  maintained  that  the  cases  upon  which  the  majority 
relied  related  either  to  statutes  declaring  a  conclusive  presumption 
of  negligence  from  the  killing  of  livestock,  a  conclusive  presump- 
tion of  assent  to  a  trespass  from  a  failure  to  apply,  to  the  courts 
to  enjoin  it,  and  a  conclusive  presumption  that  railway  rates,  of- 
ficiaUy  published,  were  reasonable;  and  he  was  of  the  opinion  that 
these  cases  did  not  tend  to  support  the  judgment  of  reversal.  He 
also  declared  that  the  cases  of  Felix  v.  Wallace  County,  62  Kslb. 
832,  84  Am.  St.  Bep.  424,  62  Pac.  667,  and  Orient  Ins.  Co.  v.  Da^gs, 
172  T7.  S.  557,  19  Sup.  Ct.  Bep.  281,  while  more  nearly  supporting 
the  views  of  the  majority,  were  still  not  in  point,  and  he  relied,  as 
supporting  his  views,  upon  Daggs  v.  Orient  Ins.  Co.,  136  Mo.  382, 
58  Am.  St.  Bep.  638,  38  S.  W.  85. 


The  Leffisluiiire  Cnnnotf  it  has  been  held,  prescribe  a  rule  of  con- 
elusive  evidence:  Little  Bock  etc.  By.  Co.  v.  Payne,  33  Ark.  816,  34 
Am.  Bep.  55.  Compare  the  note  to  People  v.  Cannon,  36  Am.  St.  Bep. 
686-689;  and  see  Larson  v.  Dickey,  39  Neb.  463,  42  Am.  St.  Bep.  595, 
58  N.  W.  167.  A  statute  is  in  excess  of  the  power  of  the  legislature 
which  makes  conclusive  the  action  of  the  state  weighmaster  in  weigh- 
ing grain  at  terminal  elevators:  Vega  Steamship  Co.  v.  Consolidated 
Elev.  Co.,  75  Minn.  308,  74  Am.  St.  Bep.  484,  77  N.  W.  973. 

The  Canstitutittnality  of  Statutes  allowing  attorneys'  fees  is  con- 
sidered in  Matter  of  Chapman  v.  New  York,  168  N.  T.  80,  85  Am. 
St.  Bep.  661,  61  N.  E.  108;  monographic  note  to  Dell  v.  Marvin,  71^ 
Am.  St.  Bep.  178-186. 


Jan.  1902.]  In  bs  Nobton.  256 


IN  BE  NORTON. 

[64  Kan.  842,  68  Pac.  639.] 

OOUBT  DE  FAOTO—When  Cannot  Exist.— Though  an  election 
is  authorized  to  be  held  to  determine  whether  a  court  shall  exist, 
and  after  sneh  election  returns  are  canvassed,  the  proper  officers 
certify  that  the  proposition  has  carried,  and  a  judge  and  other  neces- 
sary officers  are  appointed  and  assume  to  exercise  the  duties  of 
their  offiees,  yet  if  it  is  afterward  established  that  the  result  of 
neh  election  was  not  in  favor  of  creating  such  court,  it  cannot  be 
treated  as  a  court  de  facto,     (p^  257.) 

COURTS  Ain>  OFFICEBS  De  Facto.— There  cannot  be  a 
eourt  or  officer  de  facto  where  there  can  be  no  court  or  officer  de  jure, 
(p.  257.) 

PXTBIJC  OFFICEBS— Color  of  Office.— An  appointment  or 
election  of  one  to  an  office  that  has  no  legal  existence  gives  no  color 
of  existence  to  the  office  or  color  of  authority  to  the  person  so  ap- 
|K>iiited  or  elected,     (p.  258.) 

HABEAS  OOBFUS— Inquiry  Into  TTJ^n  tbe  Aittbority  of  a 

Court. — On  habeas  corpus  it  may  be  shown  that  the  court  under 
^Thore  judgment  or  order  the  prisoner  is  deprived  of  his  liberty  had 
no  legal  existence  or  is  not  a  eourt  of  competent  jurisdiction,  (p. 
259.) 

JUEISDICnOK.— A  Court  is  not  of  Competent  Jorisdiction 

i-nless  it  is  provided  for  in  the  constitution  or  created  by  the  legisla- 
ture, and  has  jurisdiction  of  the  subject  matter  and  of  the  person, 
(p.  260.) 

Blue  &  Glafise^  for  the  petitioner. 

A.  A.  Godard,  attorney  general^  and  J.  N.  Dnnbar^  county  at- 
torney, for  the  respondent. 

®**  GREENE,  J.  Thifl  is  an  original  proceeding  in  habeas 
corpus.  On  the  thirtieth  day  of  June,  1900,  the  petitioner, 
John  D.  Norton,  was  conyicted  in  the  court  of  common  pleas  of 
Cherokee  and  Crawford  counties  of  murder  in  the  second  degree, 
and  sentenced  to  imprisonment  at  hard  labor  in  the  state  peni- 
tentiary for  a  term  of  twenty  years.  Norton  presents  his  peti- 
tion for  a  writ  of  habeas  corpus,  alleging  ***  that  said  court 
bad  no  legal  existence  at  the  time  he  was  convicted  and  sen- 
tenced, and,  therefore,  that  his  imprisonment  is  illegal  and  he 
ought  of  right  to  be  discharged  therefrom. 

The  court  of  common  pleas  of  Cherokee  and  Crawford  coun- 
ties WBA  created  by  chapter  16  of  the  Laws  of  1898,  passed  at 
the  special  session.  Section  1  provides :  ''That  a  new  court  of 
record  be,  and  such  court  is  hereby  created  and  established  for 
the  counties  of  Cherokee  and  Crawford,  to  be  called  the  court  of 


256  American  State  Buposts,  Vol.  91.        [Kanaifi, 

common  pleas.  Said  court  ehall  have  one  presiding  judge,  whose 
style  of  oflBce  shall  be  'judge  of  the  court  of  common  pleas' ;  and 
said  court  shall  have  two  clerks,  and  style  of  office  shall  be  'clerk 
of  the  court  of  common  pleas*;  provided,  however,  that  the  ma- 
jority of  the  qualified  electors  of  said  counties  shall  vote  in  favor 
thereof  as  hereinafter  provided.** 

The  act  provides  for  the  calling  of  an  election  in  each  of  said 
counties,  at  which  the  question  of  the  creation  and  establishment 
of  said  court  shall  be  submitted  to  the  qualified  electors  thereof, 
and  for  the  canvass  of  the  votes  and  the  certification  of  the  re- 
sult to  the  governor  by  the  county  clerks  of  said  counties.  It 
also  provides  for  the  appointment  by  the  governor  of  a  judge 
for  such  court,  provided  a  majority  of  the  electors  voting  at  such 
election  in  each  of  said  counties  shall  vote  in  favor  of  the  crea- 
tion and  establishment  of  such  court.  It  also  defines  the  juris- 
diction of  the  court,  the  term  of  office  and  salary  of  the  judge, 
provides  for  clerks  and  the  terms  of  court,  and  makes  all  other 
necessary  provisions  for  carrying  out  the  purpose  of  the  act,  in 
the  event  the  court  should  be  established  by  a  vote  of  the  electors 
of  said  counties. 

An  election  was  held  at  which  the  proposition  to  establish  such 
court  was  submitted  to  the  qualified  ®**  electors.  The  respec- 
tive boards  of  county  commissioners  of  the  two  counties  met 
thereafter,  canvassed  the  returns,  and  caused  the  result  to  be  cer- 
tified to  the  governor,  who  thereupon  appointed  a  judge  of  said 
court.  The  person  thus  appointed  qualified  and  acted  as  such 
judge  until  his  successor,  who  was  elected  at  the  general  election 
in  November,  1899,  qualified  and  took  possession  of  the  office. 
Thereafter  such  successor  held  court  in  the  several  counties,  tried 
causes,  and  transacted  all  other  business  coming  within  the  juris- 
diction of  the  court  as  contemplated  by  the  act,  and  in  June, 
1900,  tried,  convicted  and  sentenced  the  petitioner  herein,  as 
alleged  in  his  petition. 

Not  withstanding  the  commissioners,  from  a  canvass  of  the 
vote,  and  the  governor,  from  the  returns  thereof  certified  to  him, 
determined  that  the  proposition  to  create  and  establish  such 
court  had,  by  a  majority  vote  of  the  electors  voting  at  such  elec- 
tion, been  adopted  and  such  court  created,  it  is  now  conceded  by 
the  respondent  that  such  was  not  the  fact ;  that  at  the  election 
held  for  such  purpose  in  the  county  of  Crawford  there  were 
seven  thousand  and  thirteen  electors  voted;  that  there  were  three 
thousand  and  ninety-five  votes  for  the  creation  and  establishmoit 
of  such  court,  which  were  four  hundred  and  twelve  less  than  a 
majority  of  the  votes  cast. 


Jan.  1902J  In  rb  Norton.  257 

The  question  whether  such  court  was  legally  eetablifihed  was 
before  ns  in  In  re  Davis,  62  Kan,  231,  61  Pac.  809,  where  it  was 
held  Qiat  the  proposition  must  be  accepted  by  a  majority  of  all 
the  electors  Yoting  at  the  election  in  each  of  said  counties,  and 
that,  as  a  majority  of  the  electors  voting  in  Crawford  cotmty 
did  not  vote  in  favor  of  establishing  such  court,  there  was  no 
such  court  created. 

While  it  is  admitted  by  the  respondent  that  the  court  of  com- 
mon pleas  had  no  legal  existence,  it  is  *•*  contended  that  it  was 
lecognized  by  the  chief  executive  in  appointing  a  judge  therefor, 
by  the  sheriffs  of  both  counties,  who  served  its  processes,  and  by 
the  people,  who  elected  a  judge  in  1899  to  preside  over  it,  and 
as  such  court  it  tried  many  cases,  and  was  in  operation  for  sev- 
eral months,  and  was,  therefore,  a  de  facto  court,  and  its  judg- 
ment conclusive  and  unimpeachable.  The  argument  is,  that 
tiie  same  reasoning  and  necessity  that  demand  and  obtain  recog- 
mtion  by  courts  of  the  acts  of  de  facto  officers  demand  in  this 
instance  the  recognition  of  the  court  of  common  pleas  as  a  de 
facto  court  We  cannot  accede  to  this.  While  there  is  some  au- 
thority for  this  conclusion,  and  while  cases  may  arise  where  it 
would  be  proper  so  to  hold,  yet  mere  form  or  color  of  an  office 
should  not  be  permitted  to  stand  between  a  citizen  and  his  lib- 
erty. There  must  be  a  reality  in  the  existence  of  the  court  that 
imdertakes  to  deprive  one  of  the  liberty.  In  all  cases  where 
ihe  acts  of  de  facto  officers  have  been  upheld,  there  existed  a  de 
jnie  office.  The  strongest  reasoning  why  the  acts  of  de  facto 
officers  are  sustained  is  that  the  office  is  created  by  the  public 
and  put  in  operation  as  part  of  a  system  of  organized  society, 
and  a  continued  administration  of  the  office  becomes  necessary 
to  the  proper  adjustment  of  its  affairs  and  to  the  perpetuity  of 
'the  system.  This  reasoning  loses  force  when  we  imdertake  to 
apply  it  to  a  de  facto  office.  Such  office,  not  having  been  created 
by  the  public,  and  not  having  been  adopted  into  the  organized 
system,  never  becomes  a  part  of  it,  and  its  displacement  does  not 
disturb  the  harmony  of  the  organization.  The  act  attempting 
to  create  the  court  of  common  pleas  was  never  a  consummated 
Kslity.  Its  existence  as  a  completed  act  depended  wholly  on  a 
precedent  condition — the  affirmative  vote  of  the  electors  of  the 
conntieB  to  be  affected. 

**•  The  contention  here  made  was  made  in  Norton  v.  Shelby 
C5ounty,  118  IT.  S.  426,  441,  6  Sup.  Ct.  Eep.  1121,  1126.  The 
eourt^  speaking  through  Mr.  Justice  Field,  said:  '^ut  it  is  con- 
tended that  if  the  act  creating  the  board  was  void,  and  the  com* 

▲m.  St.  Rep.,  Vol.  91h-17 


258  American  State  Bbports^  Vol.  91.       [KanBU, 

miseioners  were  not  oflScers  de  jure,  they  were  neyeriheless  of- 
ficers de  facto,  and  that  the  acts  of  the  board  as  a  de  facto  court 
are  binding  upon  the  county.  Thia  contention  is  met  by  the 
fact  that  there  can  be  no  officer,  either  de  jure  or  de  f acto^  if 
there  be  no  office  to  fill.  As  the  act  attempting  to  create  fhe 
office  of  the  commissioner  never  became  a  law,  the  office  never 
came  into  existence.  Some  persons  pretended  ihat  they  held  the 
office,  but  the  law  never  recognized  their  pretensions,  nor  did  the 
supreme  court  of  the  state.  Whenever  such  pretensions  were 
eonsidered  in  that  court,  they  were  declared  to  be  without  any 
l^gal  foundation^  and  the  commissioners  were  held  to  be  nsur- 
pers.*' 

This  reasoning,  in  addition  to  the  very  great  esteem  we  have 
for  its  author,  convinces  us;  it  is  more  rational  than  the  con- 
trary doctrine. 

The  result  of  the  election  as  found  by  the  canvassing  boarcky 
and  as  certified  to  the  governor,  showed  plainly  and  condusiyely 
that  the  majority  of  the  qualified  electors  voting  at  said  election 
in  each  of  said  counties  had  not  voted  in  favor  of  the  establish- 
ment of  said  court.  There  had  been^  therefore,  no  court  created 
at  the  time  the  executive  made  the  appointment,  nor  was  there 
any  such  condition  as  would  give  color  to  its  existence.  It  was 
as  if  no  act  had  been  passed  contemplating  the  creation  of  gndi 
a  court.  The  want  of  power  in  the  court  of  common  pleas  to 
try  the  petitioner  does  not  arise  from  any  latent  defect  in  the 
law  creating  or  conferring  jurisdiction,  which,  notwithstanding, 
might  have  given  color  to  its  existence  as  a  court,  but  because 
the  ®*^  proposition  submitted  by  the  legislature  to  the  electors 
to  establish  such  court  was  by  such  electors  rejected,  and  this  in 
the  most  public  manner.  The  appointment  or  election  of  one 
to  an  office  that  has  no  legal  existence  gives  no  color  of  existence 
to  the  office,  or  color  of  authority  to  the  person  so  appointed  or 
elected.  In  this  instance  the  court  was  not  established;  there 
was  no  office  created  to  be  filled  by  appointment  or  election,  and 
all  acts  performed  by  such  pretended  court  are  void. 

The  second  contention  on  the  part  of  respondent  is  that  the 
legality  of  the  court  which  tried  and  convicted  the  petitioner 
cannot  be  challenged  or  drawn  in  question  by  habeas  corpus. 
In  support  of  this  contention,  we  are  referred  to  the  cases  of  In 
re  Short,  47  Kan.  250,  253,  27  Pac.  1005;  In  re  Eabbitt,  47 
Kan.  382,  27  Pac.  1006.  It  will  be  observed  that  in  those  cases 
the  existence  of  the  courts  was  not  questioned.  It  was  not  de- 
nied in  the  case  of  In  re  Short,  47  Kan.  250,  253,  27  Pac  1006, 


Jan.  1902.]  In  rb  Norton.  269 

that  the  ofiBce  of  district  judge  existed ;  that  the  court  Tras  prop- 
erly organized ;  that  the  incumbent  was  the  judge  of  the  court,  or 
tiiat  the  territory  in  which  the  court  was  held  was  within  the 
jiirisdiotion  of  the  court.  The  questions  decided  are  that  ''where 
a  public  organization^  of  a  corporate  or  quasi  corporate  character, 
has  an  existence  in  fact,  and  is  acting  under  color  of  law,  and 
its  ezifitence  is  not  questioned  by  the  state,  its  existence  cannot 
be  collaterally  drawn  in  question  by  private  parties'*:  In  re 
Short,  47  Kan.  260,  253,  27  Pac.  1006,  1006.  To  this  rule  we 
find  no  exceptions  in  the  authorities.  The  state  organizes  coun- 
ties and  townships,  that  through  their  assistance  it  may  better 
administer  public  affairs,  and  where  such  organizations  are  in 
operation  and  recognized  by  the  state,  an  indiTidual  may  not  in 
a  proceeding  collaterally  •*•  attack  such  organization.  To 
adopt  the  rule  contended  for  by  the  petitioners  in  those,  cases 
would  disrupt  all  established  procedure  in  civil  as  well  as  crim- 
inal litigations,  and  would  in  a  measure  defeat  the  purpose  in- 
tended to  be  accomplished  by  the  state  in  the  organization  of  its 
assistant  municipalities.  If,  in  every  dvil  or  criminal  litigation, 
the  litigant  could  inject  into  the  lawsuit  the  legality  or  illegality 
of  the  public  organization  in  which  the  court  was  being  held,  a 
litigation  which  should  be  speedily  ended  would  become  inter- 
minable. We  think  the  principles  announced  in  those  cases  are 
sound,  but  have  no  application  here.  The  petitioner  maintains 
that  tiie  court  of  common  pleas  never  had  any  legal  existence 
and  no  power  to  try  or  sentence  him,  and  that  for  these  reasons 
the  process  under  which  he  is  detained  is  illegal. 

llie  remaining  question  is,  Can  this  court,  on  a  return  to  a 
writ  of  habeas  corpus,  inquire  into  the  jurisdiction  of  the  court 
under  whose  process  the  defendant  is  held?  This  must  be  an- 
swered in  the  affirmative,  unless  a  restriction  may  be  found  in 
the  statute.  Section  660  of  the  Civil  Code  (Gen.  Stats.  1901, 
sec  6166)  provides  that  "every  person  restrained  of  his  liberty 
under  any  pretense  whatever  may  prosecute  a  writ  of  habeas 
oorpuB  to  inquire  into  the  cause  of  the  restraint,  and  shall -be  de- 
livered therefrom  when  illegal.**  This  is  but  the  re-enactment 
of  the  common  law.  The  only  restriction  is  found  in  section 
671  (Qen.  Stats.  1901,  sec.  5167),  which  reads:  'TSTo  court  or 
judge  shall  inquire  into  the  legality  of  any  judgment  or  process 
whereby  the  pari;y  is  in  custody,  or  discharge  him  when  the  term 
of  commitment  has  not  expired,  in  either  of  the  cases  following: 
1.  Upon  process  issued  by  any  court  or  judge  of  the  United 
States^  or  where  such  court  or  judge  has  ®^  exclusive  jurisdic- 


260  American  Statu  Bepobts^  Vol.  91.        [KflnfMW 

tion;  or  2.  Upon  any  process  issued  on  any  final  judgment  of 
a  court  of  competent  jurisdiction.'' 

It  will  be  observed  that  this  limitation  does  not  preclude  the 
court  from  inquiring  into  the  validity  of  the  process,  or  deter- 
mining whether  the  court  whose  judgment  is  in  question  was  a 
court  of  competent  jurisdiction. 

It  was  held  in  In  re  Bolfs,  30  Ean.  758,  1  Pac  523^  and 
Franklin  y.  Westfall,  27  Ean.  614,  that  on  a  return  of  a  writ  of 
habeas  corpus  the  court  could  investigate  the  jurisdiction  of  the 
court  under  whose  commitment  the  petitioner  was  held.  To  the 
same  effect  are  the  decisions  in  State  v.  Billings,  55  Minn.  467, 
43  Am.  St.  Rep.  525,  57  N.  W.  206,  794,  Ex  parte  Page,  49  Mo* 
291,  and  in  People  v.  liscomb,  60  N.  Y.  559,  19  Am.  Hep.  211. 

Was  the  court  of  common  pleas  of  Cherokee  and  Crawford 
counties  a  court  of  competent  jurisdiction?  We  suppose  it  will 
be  conceded  that  a  court  of  competent  jurisdiction  is  one  pro- 
vided for  in  the  constitution  or  created  by  the  l^slature,  and 
having  jurisdiction  of  the  subject  matter  and  of  the  person.  In 
People  V.  Liscomb,  3  Hun,  769,  it  was  said  that  a  ^'competent 
tribunal"  meant  a  ''tribunal  having  jurisdiction  of  the  subject 
matter  and  the  person" ;  in  Babbitt  v.  Doe,  4  Ind.  359,  it  is  said 
that  the  term  ''competent  jurisdiction,  in  its  usual  signification, 
embraces  the  person  as  well  as  the  cause";  and  in  the  notes  ta 
People  V.  McLeod,  3  Hill,  665,  it  was  said  that  "if  there  was  na 
legal  power  to  render  the  judgment  or  decree  or  issue  the  prooe88> 
there  was  no  competent  court,  and,  consequently,  no  judgment  or 
process." 

The  court  that  tried  the  petitioner  had  no  l^al  existence;  it 
was  not,  therefore,  a  court  of  competent  ^'^  jurisdiction,  or.  In 
fact,  of  any  jurisdiction,  and  had  no  power  to  try  or  sentesioe 
him. 

The  process  under  which  he  is  now  incarcerated  is  illegal  and 
void,  and  he  is  discharged  from  the  commitment  under  which  he 
is  now  being  held,  and  the  warden  of  the  state  penitentiary  is 
instructed  to  deliver  him  to  the  sheriff  of  Cherokee  county,  pro- 
vided he  makes  demand  on  or  before  the  first,  day  of  May,  1902» 

All  the  justices  concurring. 


On  Habeas  Corpus,  after  conviction  and  judgment,  the  title  of  the 
judge  or  justice  to  bis  office  cannot  be  determined.  It  seemB,  how- 
ever, that  the  prisoner  may  be  released  in  sneh  proceedings  if  the 
office  has  no  legal  existence:  See  the  monographie  note  to  Koepke  ▼• 
Hill,  87  Am,  St.  Bep.  177,  178. 


OASES 


SDPEEME  JUDICIAL  COTJET 


MASSACHUSETTS. 


GLEASON  V.  SMITH. 

[180  Mass.  6,  61  N.  E.  220.] 

NISGUGENOXS— Child,  Wlien  Gnllty  of  Oontrlbntory.— A  boy 
twelve  years  of  age,  of  capacity  and  experience  nsnal  to  boys  of  hui 
yeara^  is  guilty  of  contributory  negligence,  if,  while  engaged  in  the 
street  in  a  game  with  other  boys,  he  dodges  rapidly  into  a  collisioA 
with  a  slowly  approaching  team,  when  chasing  another  boy,  and 
without  taking  any  measures  to  ascertain  the  approach  of  vehicles 
or  to  otherwise  avoid  danger,     (p.  262.) 

Action  of  tort  brought  on  behalf  of  an  infant  by  his  father  to 
lecoyer  for  injuries  sustained  by  coming  in  contact  with  defend- 
ant's horse  and  wagon,  alleged  to  have  been  driven  negligently 
by  defendant's  employ6.  The  trial  court  directed  a  verdict  for 
the  defendant,  and  the  plaintiff  alleged  exceptions. 

T.  B.  O'Donnell  and  M.  J.  Griffin,  for  the  plaintiff. 

W.  Hamilton  and  W.  H.  Brooks,  for  the  defendant. 

•  BAEKER,  J.  The  defendant's  team  was  traveling  slowly, 
for  a  lawful  purpose  and  in  a  manner  which,  according  to  the 
plain  weight  of  tiie  evidence,  was  in  no  respect  negligent.  But 
as  one  witness  testified  that  the  servant  who,  according  to  the 
testimony  of  the  other  witnesses,  was  driving,  was  not  in  fact 
driving,  and  was  in  fact  looking  into  the  delivery  basket  which 
was  in  the  rear  end  of  the  wagon,  we  assume  in  favor  of  the 
plaintiff,  that  there  was  some  evidence  of  negligence  on  the  part 
of  the  defendant's  servant. 

The  plaintiff  was  about  twelve  years  old,  and  there  is  no  con- 
tention that  he  was  not  equal  in  capacity  and  experience  to  fhe 

(261) 


262  AiiBBiCAN  State  Sbpobts,  Vol.  91.  [Mbsk. 


usual  boy  of  that  age.    With  several  other  boys  of  a  siimlar 
he  was  using  the  street  as  a  place  in  which  they  were  playing  a 
game  which  required  them  to  run  from  one  sidewalk  to  the 
other,  and  in  which  the  plaintiff  was  trying  to  catch  some  other 
boy  as  the  others,  upon  the  plaintiff's  call,  ran  from  side  to  side 
of  the  street    The  game  had  been  in  progress  for  fifteen  min* 
utes  or  more,  and  the  plaintiff  had  been  engaged  in  it  for  ^  ser* 
eral  minutes.    His  part  required  him  to  stand  between  the  side- 
walks, give  the  call  at  which  the  other  boys  were  to  run  acro6S». 
and  to  attempt  to  catch  some  one  of  them  as  they  did  so.     It 
was  to  be  expected  that  the  boys  would  run  fast  and  would  dodge, 
and  in  attempting  to  catch  a  boy  who  was  so  doing  the  plaintiff' 
came  in  contact  with  the  team  and  was  huri    The  occurrence 
was  about  dusk.    There  was  an  electric  light  in  the  neighbor- 
hood,  and  the  team,  if  going  faster  than  a  walk,  was  going  slowly. 
It  is  plain  from  the  uncontradicted  testimony  that  neither  the 
plaintiff  nor  any  of  the  other  boys  engaged  with  him  in  the  play 
took  any  care  or  precaution  to  avoid  collision  with  vehicles  using 
the  street  for  purposes  of  travel.    They  were  all  using  the  street 
as  they  might  use  a  playground  set  apart  for  such  sport.    While 
the  plaintiff  was  bound  to  exercise  only  such  care  as  ordinary 
boys  of  his  age  and  intelligence  are  accustomed  to  exercise  under 
like  circumstances,  yet  the  standard  is  the  conduct  of  boys  who 
are  ordinarily  careful:  Hayes  v.  Norcross,  162  Mass.  546,  548, 
39  N.  E.  282.    To  dodge  rapidly  into  collision  with  a  slowly  ap- 
proaching team,  while  chasing  another  boy  in  order  to  catch  him 
while  he  croesed  the  street,  without  taking  any  measures  to  as- 
certain the  approach  of  vehicles  or  to  avoid  danger,  was  conduct 
which  the  judgment  of  common  men  would  universally  condemn 
as  careless  in  a  boy  of  the  plaintiff's  age. 

In  this  view  of  the  case,  it  is  unnecessary  to  express  anj 
opinion  upon  the  exception  relating  to  the  ordinance  piohiMt-^ 
ing  the  playing  of  any  game  in  the  street. 

Exceptions  overruled. 


The  Oase  of  Aiken  t.  Holyoke  St.  By.  Ck>.»  180  Mass.  8,  61  N.  B. 

657,  is  somewhat  similar  to  the  principal  case,  the  main  diiferene* 
between  them  being  that  in  the  Aiken  case  there  was  evidence  to 
prove  that  the  plaintiff,  when  injured,  was  not  engaged  in  play,  but 
was  merely  running  home  after  his  play  was  completed.  A  street- 
ear  turned  into  the  street,  running  at  the  rate  of  from  two  to  five 
miles  an  hour,  and  there  was  evidence  to  the  effect  that  the  gong 
did  not  sound,  and  otherwise  sufficient  to  warrant  the  jury  in  findin|^ 
that  the  driver  of  the  car  was  guilty  of  negligence.    The  boy  and  the 


Oct  1901.]  Walsh  v.  Loobkm.  263 

esr  collided,  and  it  itm  daimed  that  he  waa  guilty  of  eontribntory 
aej^eneey  because  he  waa  running  at  the  time  and  did  not  see  the 
esr.  He  was  only  six  years  of  age.  The  appellate  eonrt  said:  "  Con- 
sidering the  tender  age  of  the  plaintiff,  if  he  was  not  engaged  in 
phiy,  he  eoold  not  be  said,  as  matter  of  law,  to  have  been  guilty  of 
B^ligenee  in  running  aerosa  the  street  on  his  way  home.  It  could  be 
foand  from  the  evidence  that  when  he  ran  from  the  lawn,  the  car 
liad  not  yet  entered  the  street,  and  it  does  not  appear  that  there  was 
any  other  vehicle  in  the  street  with  which  there  was  any  danger  of 
his  coming  into  coUision.  It  cannot  be  held,  as  matter  of  law,  that 
for  a  child  of  ax  or  seven  years  to  run  across  a  street  on  his  way 
home  from  school  is,  of  itself,  negligence.  He  himself  te8tifie4 
that  his  attention  was  attracted  by  the  whistle  of  steam  cars  which 
were  crossing  the  same  street  at  a  more  distant  point,  and  neither 
the  fact  that  he  waa  running,  nor  that  he  did  not  see  the  electric 
ear,  precluded  a  finding  that  he  was  in  the  exercise  of  such  care  as 
might  be  expected  from  an  ordinarily  prudent  child  of  his  years.'' 

A  Chad  may  be  Chargeable  with  Contributory  Negligenee:  Hermanns 
V.  Kinnare,  190  HI.  156,  83  Am.  St.  Bep.  123,  60  N.  £.  21S;  Holdridge 
▼.  Mendenhall,  108  Wis.  1,  81  Am.  St.  Bep.  871,  83  N.  W.  1109; 
Boanoke  v.  Shull,  97  Ya.  419,  75  Am.  St.  Bep.  791,  34  S.  E.  34.  But 
in  the  application  of  the  doctrine  of  contributory  negligence  to 
children,  the  rule  governing  adults  is  greatly  modified.  A  child  is  held 
to  exercise  such  a  degree  of  care  and  discretion  only  as  is  reasonably 
to  be  expected  from  children  of  his  age:  TuUy  v.  Philadelphia  etc. 
B.  B.  Co.,  2  Penne.  (Del.)  537,  82  Am.  St.  Bep.  425,  47  Atl.  1019; 
Queen  v.  Dayton  Coal  etc.  Co.,  95  Tenn.  458,  49  Am.  St.  Bep.  935,  32 
6.  W.  460;  Foley  v.  California  Horseshoe  Co.,  115  Cal.  184,  56  Am. 
St.  Bep.  87,  47  Pac.  42;  Price  v.  Atchison  Water  Co.,  58  Kan.  551,  62 
Am.  St.  Bep.  625,  50  Pac  450;  monographic  note  to  Barnes  v.  Shreve* 
port  City  B.  B.  Co.,  49  Am.  St.  Bep.  408-413.  He  may  be  of  such 
tender  years  as  to  be  incapable  of  contributory  fault:  Evers  v.  Phil- 
adelphia Traction  Co.,  176  Pa.  St.  876,  53  Am.  St.  Bep.  674,  35  Atl. 
140;  Highland  etc  B.  B.  Co.  v.  Bobbins,  124  Ala.  113,  82  Am.  St.  Bep. 
U3,  27  South.   422. 


WALSH  V.  LOOREM. 

[180  Mass.  18,  61  N.  E.  222.] 

ITEaLIOEKOE  in  the  Care  of  Children— What  la  Not.— Where 
a  mother  leaves  her  child,  less  than  eighteen  months  of  age,  playing 
with  other  children  in  a  neighbor's  yard,  between  whicn  and  tue 
street  there  is  no  fence  or  other  obstruction,  the  street  being  a  quiet 
one,  it  cannot  be  held,  as  a  matter  of  law,  that  the  child  might  dart 
out  into  the  street  before!  the  mother  saw  it,  or  might  fail  to  notice 
it,  though  it  went  out  so  slowly  that  she  was  guilty  of  such  negligence 
that  the  case  should  be  taken  from  the  jury,  in  an  action  to  recover 
for  damages  sustained  by  it  from  being  overrun  in  such  street  by 
defendant's  wagon,     (p.  264.) 


264  American  Statb  Bbpobtb,  Vol.  91.  [MasB. 

W.  E.  Heady,  for  the  defendant. 

W.  H.  McClintock,  J.  B.  Carroll  and  D.  A.  Coyne,  for  tlift 

plaintiff. 

^®  HOLMES,  C.  J.  This  is  an  action  nnder  the  Statutes 
of  1898,  chapter  565,  for  cansing  the  death  of  the  plaintifPs 
intestate,  an  infant  aged  seventeen  months  and  twenty-seireEi 
days,  by  running  over  him  with  a  wagon  in  the  highway.  The 
plaintiff  has  had  a  verdict,  and  the  case  is  here  on  the  defend- 
ant's exception  to  a  refusal  to  take  the  case  from  the  jury,  on 
the  ground  that  the  mother  of  the  child  left  it  unattended  ao  far 
as  to  amount  to  a  want  of  due  care. 

The  mother  had  been  going  to  and  fro  between  her  house  and 
that  of  Mrs.  Oriffin,  which  was  the  next  house  but  one  to  hers. 
She  had  left  the  child  with  or  near  some  other  children  in  the 
back  part  of  Mrs.  OrifBn's  yard,  telling  it  to  go  back  and  play 
with  them,  and  had  returned  with  Mrs.  Qriffin  to  her  own  yard, 
where  she  was  working  in  a  flower-bed  when  the  accident  hap- 
pened. Mrs.  Gri£Bn  went  back  again  to  her  own  house  and  saw 
the  child  at  or  near  her  flower-bed  at  the  side  of  the  house.  She 
went  downstairs  for  some  potatoes,  and  when  she  came  up  the 
child  had  been  run  over.  The  estimates  of  time  are  all  some- 
what vague,  but  it  would  seem  that  the  mother  must  have  left 
the  child  from  ten  to  twenty  minutes  at  least,  but  that  the  time 
between  Mrs.  Griffin's  last  sight  of  it  and  the  accident  was  inside 
of  five  minutes.  Mrs.  Griffin's  yard  had  no  fence  between  it  and 
^  the  street^  but  the  mother,  from  where  she  was>  could  see  the 
street  in  front  beyond  the  Griffin  lot.  The  accident  happened 
on  the  further  side  of  the  street  from  where  the  child  was  lef^ 
nearly  in  front  of  where  its  mother  was  at  work.  There  was 
evidence  that  the  street  was  a  quiet  street. 

The  length  of  time  that  the  child  was  in  the  Griffin  lot  in 
safety  does  not  seem  to  be  very  material  in  this  case.  There 
were  children  near  it  with  whom  it  had  been  told  to  play,  and 
Mrs.  Griffin's  return  may  be  said  to  mark  a  new  starting  point 
from  which  to  consider  the  mother's  conduct.  The  child  then 
was  under  a  competent  eye,  as  the  mother  knew  that  it  would 
be.  The  question,  then,  is  whether  leaving  the  child  where  it 
might  dart  out  into  a  quiet  street  before  the  mother  saw  it,  or 
failing  to  notice  it  if  it  went  out  more  slowly,  were  so  clearly 
negligent  that  the  case  should  have  been  taken  from  the  jury. 
It  seems  to  us  that  that  is  more  than  we  ought  to  say.  As  the 
jury  were  of  opinion  that  such  oversight  as  the  mother  could  nse^ 


Not.  1901.]  Oillib  v.  Goodwin.  265 

«Dd  may  be  presumed  to  have  used,  were  as  mncli  as  fairly  coidd 
be  expected  or  required  from  one  in  her  situation  we  cannot  say 
fttt  they  were  wrong :  McNeil  v.  Boston  Ice  Co.,  173  Mass.  570, 
576,  577,  64  N.  E.  267;  Butler  v.  New  York  etc.  B.  B.  C!o., 
177  Mass.  191,  193,  68  N.  B.  692.  In  Grant  v.  Ktchburg,  160 
Mbsb.  16,  39  Am.  St.  Bep.  449,  35  N.  E.  84,  it  was  undisputed 
that  the  child  had  been  in  the  street  or  close  to  it  for  fifteen 
minntes.  "Biere  the  jury  may  have  found  that  the  child  had 
just  got  into  the  street  from  Mrs.  Griffin^s  lot 
Exceptions  oyermled. 


The  negligence  of  a  Parent  as  aif eeting  his  right  to  recoYsr  for  in- 
joiies  to  his  ehild  is  considered  in  Cotter  v.  Lynn  ete.  B.  B.  Co.,  180 
MMM.  145,  61  N.  E.  818,  post,  p.  267,  and  eases  sited  in  the  cross- 
referenee  note  thereto.  For  eireumstances  nnder  which  a  parent  is 
Bot,  u  a  matter  of  law,  barred  of  his  right  to  recover  for  injuries 
iQsUined  by  hia  child  whom  he  has  permitted  to  wander  into  the  pnb* 
lie  streets,  see  Bosenkranta  v.  Lindell  By.  Co.,  106  Mo.  9,  32  Am. 
8t  Bep.  SSS,  18  S.  W.  800;  Marsland  y.  Mnrray,  148  Mass.  91,  12 
An.  St  Bep.  520,  18  N.  £.  680. 


GILLIS  V.  GOODWIK 

[180  Mass.  140,  61  N.  E.  813.] 

A  MIsrOB  May  Disaffirm  and  Avoid  a  Oontraet  hj  him  made 
for  the  pnrehase  of  a  bicycle  of  which  he  has  had  possession  and 
use,  and  recover  a  sum  which  he  paid  on  account  of  such  purchase 
without  putting  the  other  party  in  statu  quo  or  allowing  anything 
for  the  rent  and  use  of  the  property  while  in  his  possoMion  under 
the  contract  of  purchase,  though  the  reasonable  value  of  the  use  of 
the  bicycle  was  equal  to  the  sum  paid  by  him  on  account  of  its  pur- 
ohise.    (p.  266.) 

S.  P.  Congblin,  for  the  defendant. 
W.  J.  Davison,  for  the  plaintifE. 

*^  MOBTON,  J.  This  is  an  action  by  a  minor,  by  his  next 
friend,  to  recover  certain  sums  paid  by  him  under  a  contract  for 
the  conditional  sale  and  purchase  of  a  bicycle.  The  plaintiff 
failed  to  perform  the  contract  and  the  defendant  took  posses- 
acn  of  the  bicycle,  as  he  had  a  right  to  do  under  the  contract, 
and  now  has  it.  The  plaintiff  demanded  the  amount  which  he 
had  paid,  and  the  defendant  refused  to  pay  over  the  same. 
There  was  evidence  that  the  amount  paid  by  the  plaintiff  would 


266  American  Statb  Bbports^  Vol.  91.  [Mm. 

not  be  an  nnreasonable  sum  for  the  rent  and  use  of  the  bicydt 
during  the  time  that  the  plaintiff  had  the  possession  and  use 
of  it.  The  defendant  asked  the  judge  to  rule  that  the  plain- 
tiff could  not  avoid  his  contract^  and  further  asked  the  judge 
to  find  for  the  defendant.  The  judge  refused  both  reqnestfl^ 
and  found  for  the  plaintiff^  and  the  case  is  here  on  the  de^ 
fendanfs  exceptions. 

Whatever  may  be  the  law  elsewhere  (see  Eice  v.  Butler,  160 
N.  Y.  578,  73  Am.  St.  Rep.  703,  65  N.  E.  275),  it  is  settled 
in  this  state  that  a  minor  can  avoid  a  contract  like  that  in  this 
case,  and  is  not  obliged  to  put  the  other  party  in  statu  quo  or 
allow  anything  for  the  rent  and  use  of  the  property  while  in 
his  possession:  Morse  v.  Ely,  154  Mass.  458,  26  Am.  St. 
Eep.  263,  28  N.  E.  577;  Pyne  v.  Wood,  145  Mam.  558,  14 
N.  E.  775;  McCarthy  v.  Henderson,  138  Mass.  310;  Dube  v. 
Beaudry,  150  Mass.  448,  15  Am.  St.  Bep.  228,  23  N.  E.  222; 
Walsh  V.  Young,  110  Mass.  396;  Chandler  v.  Simmons,  9T 
Mass.  508,  514,  93  Am.  Dec.  117. 

The  judge  must  have  found  that  the  bicycle  and  its  use  did 
not  come  under  the  head  of  necessaries,  and  such  a  finding 
was  plainly  warranted  as  matter  of  law. 

Exceptions  overruled. 


An  Infant  should  not  be  allowed  to  rescind  a  contract  of  which  he 
has  had  the  benefit  without  accounting  for  such  benefit  or  retominK 
its  equivalent:  Bice  v.  Butler,  160  N.  Y.  578,  73  Am.  St.  Bep.  708,  55 
N.  E.  275.  In  this  case  the  contract  involved  was  for  the  purchase 
of  a  bicycle  by  the  minor.  The  general  rule  is,  that  an  Infant  may 
rescind  his  contract  of  purchase,  and  recover  back  the  purchase 
money  paid,  at  least  if  he  offers  to  restore  the  property.  And  the 
vendor  is  not  entitled  to  recoup  for  the  use  of  the  propeoiy  while  la 
the  possession  of  the  minor:  See  the  monographie  note  to  Craig  v. 
Van  Bobber,  18  Am.  St.  Bep.  597. 


Nov.  1901.]      GoTTBB  V.  Lynn  NTa  R.  B.  Ca  267 


COTTEB  V.  LYNN  AND  BOSTON  BAILROAD  COMPANY. 

[180  ICaai.  145,  61  N.  E.  818.] 

iimijD— Negligence  of  Parent— Wben  Predndee  Becoyery 
for  XBjnrlai  to.— If  a  child  Ib  injured  in  a  publie  street  by  collisioik 
vith  a  street-ear,  and  there  is  no  evidenee  that  the  child  used  the 
care  which  would  be  expected  of  an  adnlt,  if  there  is  negligence  on 
the  )>art  of  its  parents  in  allowing  it  to  be  where  it  was,  it  cannot 
recover,     (p.  267.) 

moUOEKOS  OF  PABEMTB  BzpoBiiig  CQilld  to  mjvry  in  » 
nuie  street* — While  the  limited  powere  of  the  poor  must  be  taken) 
into  account,  as  a  general  fact  in  drawing  the  line  at  which  the 
responaibilitj  of  persons  injuring  a  child  in  the  public  streets  begini^ 
still  third  persons  cannot  be  held  accountable  for  an  accident  from 
the  fact  that  the  parents  of  the  child  did  the  best  they  could.  There 
is  a  certain  minimum  of  precaution  against  danger  into  which  Infants 
will  wander  which  must  be  taken  into  account  before  another  i» 
made  to  pay.     (p.  268.) 

NEOUaENOE  OF  PABENT8  Which  Precludes  Becoverjr  by 
Qdld. — If  a  child  less  than  three  years  old  is  left  unattended  in  a 
yard  fronting  on  a  public  street,  in  which  there  is  considerable  team- 
ing and  a  line  of  electric  cars,  between  which  yard  and  street  there 
is  a  gate  always  open,  and  the  child  strays  out  into  the  street,  and, 
in  trying  to  return,  is  run  over  and  injured  by  a  car,  the  negligence 
of  the  x>arents  is  such  as  to  preclude  any  recovery  by  a  chil<j^  where 
it  was  not  using  the  care  of  a  prudent  person,     (p.  268.) 


Tort  by  an  infant  to  recover  for  injuries  sustained  in  being 
run  over  by  an  electric  car.  The  trial  judge  ruled  that  the 
plftiTififf  was  not  entitled  to  recover,  and  gave  verdict  for  the 
defendant;  the  plaintiff  alleged  exceptions. 

W.  A.  Kdley,  for  the  plaintiff. 

H.  F.  Hurlburt  and  D.  E.  Hall,  for  the  defendant. 

**•  HOLMES,  C.  J.  This  is  an  action  for  personal  in- 
juries caused  by  an  electric  car.  The  plaintiff  was  three  years 
and  ten  months  old  at  the  time  of  the  accident,  and  was  try- 
ing to  run  across  the  street  directly  in  front  of  the  car  when 
she  was  ran  down.  There  is  no  evidence  that  she  used  the 
care  that  would  be  expected  of  an  adult,  and,  therefore,  if 
there  was  negligence  on  the  part  of  her  parents  in  allowing 
her  to  be  where  she  was,  she  cannot  recover:  Collins  v.  South- 
Boston  B.  B.  Co.,  142  Maes.  301,  313,  66  Am.  Bep.  676,  7 
N.  E.  866;  Butler  v.  New  York  etc.  B.  B.  Co.,  177  Mass.  191, 
193,  58  N.  E.  692.  With  regard  to  the  latter  question,  *^<^ 
while,  as  was  said  in  the  case  last  cited,  the  limited  powers  of 
Ae  poor  must  be  taken  into  account,  as  a  general  fact,  in  draw* 
nig  the  line  at  which  the  defendants  responsibility  ahall  be* 


1368  American  State  Reports^  Vol.  91.  [Ma6& 

gin^  stilly  the  other  side  must  be  considered  also  before  a  third 
person  is  made  responsible  for  an  accident,  and  this  responai* 
bility  does  not  follow  of  necessity  from  the  fact  that  flie 
parents  did  the  best  they  could.'  There  is  a  certain  miTiiimiTn 
■of  precaution  against  the  dangers  into  which  infants  will 
wander  which  must  be  taken  if  another  is  to  be  made  to  pay. 

The  plaintiffs  parents  lived  in  a  tenement  on  a  busy  street 
in  Itjrm,  where,  as  the  plaintiff's  father  testified,  there  was 
considerable  teaming  and  a  line  of  electric  cars.    There  were 
other  busy  streets  hard  by.    The  plaintiff  had  been  left  in 
charge  of  her  mother,  who  had  been  up  from  a  confinement 
only  about  a  week  and  was  not  very  strong.    The  mother  ai« 
lowed  the  plaintiff  to  go  downstairs  and  play  in  the  yard  of 
the  house  with  a  boy  of  five.    At  about  half-past  8  she  locdoed 
out  of  the  window,  sent  the  boy  on  an  errand,  and  saw  the 
plaintiff,  thus  left  unattended,  for  the  last  time  before  the 
accident,  which  seems  to  have  happened  between  half-past  9 
and  10.    The  size  of  the  yard  does  not  appear,  but  it  had  a 
gate,  which  was  always  open,  and  the  plaintiff  had  strayed 
out  and  was  trying  to  return  when  she  ran  into  the  car.    It 
is  obvious  on  these  facts  that  the  happening  or  not  happening 
of  such  an  accident  as  was  likely  to  happen  to  a  child  of  three, 
alone  in  a  busy  street,  was  left  by  the  mother  wholly  to  chance 
and  the  instincts  of  the  child.    Exactly  what  view  she  com- 
manded from  her  window  does  not  appear.    If  we  assume 
that  she  could  have  kept  her  eye  on  the  movements  of  her 
child  as  long  as  she  was  in  the  yard,  she  did  not  do  so.    What 
she  could  see  beyond  we  do  not  know. 

Of  course  when  the  case  gets  near  the  line  whiqh  divides  those 
instances  in  which  it  can  be  ruled,  as  matter  of  law,  that  the 
parent  was  negligent  from  those  in  which  it  can  be  ruled  that 
due  care  was  shown,  it  is  left  to  the  jury.  But  in  the  cases 
most  like  this  in  which  a  jury  has  been  called  in,  the  precau-. 
tions  taken  were  greater,  or  the  danger  was  less  obvious  and  not 
so  great,  and  the  time  shorter  during  which  the  child  was  left  to 
itself :  Creed  v.  Kendall,  156  Mass.  291,  31  N.  E.  6,  and  cases 
cited;  Powers  v.  Quincy  etc.  By.  Co.,  163  Mass.  6,  39  N.  B. 
345;  **''  Hewitt  v.  Taunton  Street  By.  Co.,  167  Mass.  483, 
46  N.  E.  106;  McNeil  v.  Boston  Ice  Co.,  173  Mass.  670,  54 
N.  E.  257 ;  Butler  v.  New  York  etc.  B.  B.  Co.,  177  Mass.  191, 
58  N.  E.  592 ;  Walsh  v.  Loorem,  180  Mass.  18,  ante,  p.  263,  61 
N.  E.  222.  The  present  case  seems  to  us  to  fall  on  the  same 
«ide  of  the  line  with  Casey  v.  Smith,  152  Mass.  294,  23  Am. 


Dec.  1901.]     Homer  v.  Barr  PuMPiNa  Enoinb  Ca  26^ 

at  Bep.  842,  25  K  E.  734,  Grant  v.  Fitchburg,  160  Mass. 
16,  39  Am.  St.  Sep.  449,  36  N.  E.  84,  and  Hayes  v.  Norcroae,. 
162  Masa.  546,  39  N.  E.  282.  As  we  have  intimated,  there 
can  be  no  pretense  that  the  plaintiff  herself  was  nsing  the 
care  of  a  prudent  adult:  Grant  v.  Fitchburg,  160  Mass.  16,. 
39  Am.  St.  Bep.  449,  36  N.  B.  84;  Hayes  v.  Norcroas,  162 
Mass.  546,  39  N.  E.  282. 
ExceptionB  OTemded. 


The  IteQUffenee  of  •  Parent  cannot,  by  the  weight  of  authority,  h%^ 
iBimted  to  his  chfld:  Ivea  v.  Welden,  114  Iowa,  476,  89  Am.  St. 
Rep.  379,  87  N.  W.  408;  Roanoke  ▼.  Shull,  97  Va.  419,  75  Am.  St.  Eop. 
i91,  34  S.  E.  34.  Snch  negligence,  however,  may  bar  the  parent 'a 
right  of  recovery  for  injuries  sustained  by  the  child:  See  the  mono^ 
graphic  note  to  Barnes  ▼.  Shreveport  City  B.  B.  Co.,  49  Am.  St.  B^.. 
406-408;  aa  where  ho  is  permitted  to  wander  into  the  street:  Grant  ▼. 
Fitehbnrg,  160  Mass.  16,  39  Am.  St.  Bep.  449,  35  N.  E.  84.  But  see^ 
Walsh  ▼.  Loorem,  180  Mass.  18,  61  N.  £.  222,  ante,  p.  263,  and  cases 
eited  in  the  cross-reference  note  thereto.  In  Fox  ▼.  Oakland  etc 
St  By.  Co.,  118  Cal.  55,  62  Am.  St  Bep.  216,  50  Pac.  25,  it  is  held,^ 
though  we  think  erroneously,  that  evidence  of  the  parents'  poverty 
28  not  admissible  in  such  a  case  ss  tending  to  aid  the  jury  in  de^ 
termining  the  question  of  the  parents'  negligence. 


HOMES  y.  BABE  PUMPING  ENGINE  COMPAITT, 

[180  Mass.  163,  61  N.  £.  883.] 

A  BBOEIVEB  of  a  Ctoiporation  has  no  right  to  sue  outside  of 
the  jurisdiction  appointing  him,  unless  he  is  actually  or  virtually  an 
tnignee  of  the  claim  upon  which  he  brings  the  action,     (p.  270.) 

BBOEIVEB— Pleading  in  Actions  by.— In  an  action  by  a  re* 
evver  of  a  foreign  corporation,  he  must,  under  the  general  denial,, 
{trove  that  he  is  authorized  to  bring  actions  in  his  own  name  in  the 
tourta  of  the  state,     (p.  271.) 

Action  of  contract  by  a  recdver  of  a  corporation  organized 
imder  tbe  lawe  of  the  state  of  Maryland  for  moneys  claimed 
to  be  due  for  boilers  furnished  to  the  defendant  as  part  of  a. 
plant  located  at  Washington,  D.  C.  The  defendant  and  cor* 
poiation  pleaded  payment  on  the  general  issue,  and,  in  an 
amended  answer,  alleged  that  the  boilers  were  faulty  in  con* 
>farQction  to  its  injury,  for  which  it  sought  to  recoup.  Defend- 
ant adced  the  trial  judge  to  rule  that  plaintiff  had  no  right  to> 
suuntain  the  action  as  receiver.  Defendant  also  asked  for  a 
T^ng  to  the  eflfect  that  the  teat  applied  to  the  boilers  was  not 


1870  American  State  Reports,  Vol.  91.  [Msfl 

prescribed  by  the  contract,  but  it  appeared  that  the  contni 
-did  not  provide  for  any  specific  test.  The  judge  refneed  i 
mle  as  requested,  and  the  jury  returned  a  verdict  for  tiie  plain 
tiff,  and  the  defendant  alleged  exceptiomk 

J.  G.  Bobinson,  for  the  defendant. 
B.  E.  Crowell,  for  the  plaintifiL 

*«*  KNOWLTON,  J.  The  plaintiff  sued  as  a  receiYer  a 
a  foreign  corporation,  and  averred  in  different  counts  of  hi 
declaration  that  the  defendant  was  liable  to  him  as  snch  re 
cdver,  under  a  contract  and  on  account  of  transactions  wiQ 
the  corporation.  The  answer  to  this  part  of  ihe  case  is  a  gen* 
'Oral  denial. 

The  law  in  regard  to  the  right  of  receivers  of  corporations  tu 
«ue  in  their  own  name  on  claims  due  the  corporation  has  oft^ 
been  considered,  and  the  general  rule  in  this  commonwealth 
and  in  some  other  jurisdictions  is  that  a  receiver  has  no  siidi 
right  that  follows  him  beyond  the  jurisdiction  of  the  tribunal 
that  appoints  him,  unless  he  is  actually  or  virtually  an  as- 
signee of  the  claim  which  he  seeks  to  enforce:  Amy  v.  Man- 
ning, 149  MsM.  487,  21  N.  E.  943;  Wilson  v.  Welch,  157 
Mass.  77,  31  N.  E.  712;  Buswell  v.  Order  of  the  Iron  Hall, 
161  Mass.  224,  36  N.  E.  1065;  Fort  Payne  Coal  etc.  Co.  v. 
Webster,  163  Mass.  134,  39  N.  E.  786;  Ewing  v.  King,  169 
Mass.  97,  47  N.  E.  597 ;  Howarth  v.  Lombard,  175  Mass.  570, 
56  N.  E.  888 ;  Hayward  v.  Leeson,  176  Mass.  310,  325,  57  N. 
E.  656. 

In  the  present  case  there  is  nothing  to  show  that  the  plaintiiF 
is  an  assignee  of  the  corporation's  property,  or  that  he  has  any 
authority  to  sue  in  his  own  name  other  than  an  appointment  as 
receiver  by  the  circuit  court  of  Baltimore  city  in  the  state  of 
Maryland,  which  appointment  authorized  him  to  sue  in  that 
state,  tither  in  his  own  name  or  in  the  name  of  the  corporation. 
The  auditor  found  that  under  the  law  of  Maryland  a  receiver  of 
a  corporation  appointed  in  another  state  in  the  usual  way,  with 
a  right  under  the  judicial  decisions  of  the  foreign  state  to  sue 
^^  in  its  courts  in  his  own  name,  is  not  authorized  to  bring  an 
action  in  his  own  name  in  Maryland.  In  this  respect  the  law  of 
that  state  seems  to  be  like  our  own.  He  also  decided  that  under 
our  law  this  action  could  not  have  been  maintained  without  sab- 
stituting  the  corporation  as  plaintiff  for  the  receiver,  if  the  quer 
tion  had  been  properly  raised  by  the  pleadings. 


Jan.  1902.]  Kares  v.  Covell.  271 

On  the  facts  found  we  are  of  opinion  that  the  action  cannot 
be  maintained  in  its  present  form.  The  plaintifPg  declaration 
feayes  upon  himself  the  burden  of  showing  that  he  is  a  receiver 
authorized  to  bring  the  action  in  our  courts  in  his  own  name. 
In  order  to  recover^  he  must  prove  that  the  defendant  is  now 
liable  to  him  as  receivery  in  such  a  sense  that  in  the  present  form 
of  action  he  ia  entitled  to  a  favorable  judgment  from  the  court. 
The  defendant's  general  denial  puts  this  averment  in  issue^  and 
the  mling  on  this  part  of  the  case  should  have  been  in  favor  of 
&e   defendant. 

We  aee  no  other  error  in  the  matters  excepted  to.  The  de- 
fendant's requests  in  regard  to  a  test  referred  to  in  the  con- 
tract aeem  to  have  been  founded  on  a  mistaken  view  of  the 
contract.    The  instructions  on  this  part  of  the  case  were  correct 

Exceptions  sustained. 


A  F€treign  BeoHver  cannot  maintain  an  action  at  law  in  Ms  owa 
name  withont  having  tho  legal  title  to  the  matter  or  thing  in  issna: 
Mnrtey  ▼.  Allen,  71  Yt.  377,  76  Am.  St.  Bep.  779,  45  AtL  752;  mono- 
graphic note  to  AJley  ▼.  Caspari,  6  Am.  St.  Bep.  185.  Bnt  see  Small 
T.  Smith,  14  S.  Dak.  621,  86  N.  W.  649,  86  Am.  St.  Bep.  808,  and  eases 
in  the  cross-reference  note  thereto. 


KABES  V.  COVELL. 

[180  Mass.  206,  62  N.  E.  244.] 

VENDOB  AND  VENDEE— Partial  Fannre  of  Title.— If  a 
vendor  cannot  convey  all  of  the  property  according  to  his  contntcty 
there  is  a  partial  failure  of  consideration,  for  which  the  vendee  may, 
at  his  election,  hold  the  vendor  liable  in  damages,  or  rescind  and 
recover  the  purchase  price,  if  the  parties  can  be  put  in  statu  quo. 
(p.  273.) 

VENDOR  AND  VENDEE— Partial  Failure  of  Title  Arising 
After  the  Contract  of  Purchase  Was  Made.— Though,  when  a  con- 
tract to  convey  is  made,  the  vendor 's  title  is  perfect,  yet  if  afterward 
part  of  the  property  is  lost  to  him  by  being  taken  for  the  widening 
of  a  street,  the  vendee  may  recover  damages  for  the  part  thus  taken, 
it  the  vendor  covenanted  to  convey  a  good  title  free  from  all  en- 
cumbrances,    (p.  273.) 

VENDOB  AND  VENDEE— Oovenant  for  Title  When  Applies 
to  the  Time  of  Conveying  Bather  than  to  that  of  the  Contract  of  Sate. 
If  a  contract  for  the  sale  of  real  property  provides  for  the  payment 
of  part  of  the  purchase  price  at  a  subsequent  date,  and  that  thereupon 
the  vendor  will  convey  **a  good  and  clear  title  free  from  all  encum- 
brances,'' the  vendor  is  answerable  for  any  encumbrance  or  failure 
of  title  arising  after  the  sale  and  before  the  making  of  the  deed, 
thoQgh  not  due  to  his  fault,  as  where  part  of  the  property  is  taken  for 
a  public  street.       (p.  274.) 


972  American  State  Eeports,  Vol.  91.  [Mass.. 

Action  to  recover  moneys  paid  by  the  plaintiJS  to  the  de* 
fendant  nnder  a  bond  for  the  flale  of  real  property,  which  wia 
dated  April  27,  1896,  and,  so  far  as  material,  is  as  follows: 
''The  condition  of  this  obligation  is  such,  that  whereas  the 
said  obligor  has  agreed  to  sell  and  convey  nnto  the  said  oUigee 
a  certain  parcel  of  real  estate,  situate  in  New  Bedford  and 
bounded  as  follows,  namely  [description].  The  same  to  be 
conveyed  by  a  good  and  sufficient  deed  of  the  said  obligor,  con* 
veying  a  good  and  dear  titie  to  the  same,  free  from  all  en- 
cumbrances.  And  whereas  for  such  deed  and  conveyance  it 
is  agreed  that  the  said  obligee  shall  pay  the  sum  of  thirteen 
hundred  dollars,  of  which  three  hundred  dollars  have  been 
paid  this  day,  and  one  thousand  dollars  are  to  be  paid  in  cash 
upon  the  delivery  of  said  deed  at  any  time  within  three  years 
from  the  date  of  this  bond,  with  interest  at  the  rate  of  six 
per  cent  per  annum,  the  interest  to  be  paid  semi-annually,  also 
the  obligee  to  pay  the  taxes  after  1896.  Now,  therefore,  if 
the  said  obligor  shall,  upon  tender  by  the  said  obligee  of  the 
aforesaid  cash,  at  any  time  within  three  years  from  this  date, 
deliver  unto  said  obligee  a  good  and  sufficient  deed  as  afore- 
said, then  this  obligation  shall  be  void;  otherwise  it  shall  re- 
main in  full  force  and  virtue."  The  land  described  in  the 
bond  contained  about  twenty-seven  square  rods,  of  which  six 
rods  were  taken  in  December,  1899,  for  the  widening  of  a 
public  street.  The  defendant  tendered  a  conveyance  of  all 
the  property  except  that  so  taken,  which  the  plaintiff  refused 
to  accept.  Judgment  for  the  plaintiff  for  the  amount  sued 
for,  and  the  defendant  alleged  exceptions. 

T.  F.  Desmond,  for  the  defendant 

W.  C.  Parker  and  E.  SuUavou,  for  the  plaintiff. 

•^  HAMMOND,  J.  The  lot  of  land  called  for  by  the  bond 
contained  nearly  twenty-seven  square  rods,  and  the  titie  was 
to  be  free  from  all  encumbrances.  By  reason  of  the  taking 
of  nearly  one-fourth  of  it  for  highway  purposes,  between  the 
time  of  the  execution  of  the  bond  and  the  time  for  the  de- 
livery of  the  deed,  the  trial  judge  found  that  it  was  impossible 
for  the  defendant  substantially  to  perform  his  contract,  and 
that  it  did  not  appear  *^  that  this  condition  of  things  was 
in  any  way  caused  by  the  plaintiff. 

No  part  of  the  money  was  paid  for  any  specific  part  of  the 
land,  but  the  whole  price  was  paid  for  the  whole  land,  and 


Jan.  1902.]  Earss  v.  Covbll.  278 

the  whole  land  was  to  be  free  from  encumbrances.  The  con- 
tract was  entire.  If,  therefore,  the  bond  is  to  be  interpreted  as 
an  agreement  to  convey  the  whole  land  free  of  encumbrances 
at  the  time  of  the  delivery  of  the  deed,  it  is  manifest  that  the 
defendant  cannot  do  what  he  agreed  to  do^  and  there  has  been 
at  least  a  partial  failure  of  consideration  in  the  case  of  an 
entire  contract.  Under  these  circumstances,  the  plaintifE  may, 
at  his  election,  take  what  the  defendant  can  give  him,  and 
bold  the  defendant  answerable  to  him  in  damages  as  to  the 
rest,  or  when  the  parties  may  be  put  in  statu  quo  he  may  rescind 
the  contract  and  recover  back  the  money  he  has  paid.  The 
plaintiff  has  chosen  to  rescind. 

We  do  not  understand  the  defendant  to  contest  that  this 
would  be  the  rule  if  the  true  construction  of  the  bond  is  that 
the  title  must  be  free  from  encumbrances  at  the  time  the  deed 
is  to  be  delivered.    He  contends,  however,  that  the  inability 
to  give  a  good  title  which  would  excuse  the  plaintiff  from 
paying  the  purchase  price  and  entitle  him  to  recover  back  the 
money  already  paid  must  be  the  result  of  a  want  of  a  good 
title  in  the  obligor  at  the  time  the  bond  was  given,  or  of  some 
act  of  the  obligor  after  the  bond  was  given;  and  he  has  made 
an  elaborate  argument  in  support  of  that  contention.    But 
the  contention    does  not  seem   to  us  sound.    The    argument 
proceeds  upon  the  assumption  that  by  the  bond  an  equitable 
interest  in  the  land  is  transferred  to  the  obligee,  and  that  the 
provision  that  the  land  shall  be  free  of  encumbrance  at  the 
time  of  the  delivery  of  the  deed  is  in  the  nature  of  a  cove- 
nant like  the  covenant  against  encumbrances  or  of  warranty 
in  a  warranty  deed,  or  that  for  quiet  enjoyment  in  a  lease; 
and  that  inasmuch  as  these  are  held  applicable  only  to  encum- 
brances outstanding  at  the  time  of  the  deed  or'  lease   (Ellis 
V.  Welch,  6  Mass.  246,  4  Am.  Dec.  122 ;  Patterson  v.  Boston, 
20  Pick.  159),  such  should  be  the  rule  in  the  case  of  the  bond 
in  this  case.    He  further  argues  that,  inasmuch  as  all  land 
is  held  subject  to  the  liability  to  be  taken  for  public  purposes 
imder  the  right  of  eminent  domain  and  that  where  it  is  so 
taken,  as  in  *®®  this  case,  after  the  covenant,  the  taking  is  not 
regarded  as  a  breach  of  the  covenant  (Ellis  v.  Welch,  6  Mass. 
846,  4  Am.  Dec.  122;  Patterson  v.  Boston,  20  Pick.  169),  the 
rule  diould  be  the  same  in  the  case  of  this  bond. 

The  cases  upon  which  the  defendant  relies  are  inapplicable. 
Where  the  title  passes,  as  in  a  warranty  deed  or  lease,  it  is  cer- 
tainly true  that  the  covenants  have  reference  only  to  rij^iti 


274  American  State  Bbports^  Vol.  91.  [Maas^ 

outstanding  at  the  time  of  the  delivery  of  the  deed  or  lease^  and 
that  a  subsequent  taking  by  the  sovereign  power  for  public  pur- 
poses is  not  a  breach  of  the  covenant,  for  the  simple  liability  to 
be  taken  is  not  an  encumbrance  until  the  power  has  been  exer- 
cised. But  in  the  case  of  a  bond  like  this,  while  the  obligee^ 
for  certain  purposes  and  as  against  the  obligor,  may  have  cer- 
tain rights  to  ihe  land  which  may  be  enforced  in  equity,  still 
the  bond  is  simply  the  preliminary  contract.  It  contemplates 
and  provides  for  another  and  final  contract  to  be  executed  in 
the  future,  by  which  the  legal  title  will  pass,  and  the  object  of 
this  preliminary  contract  is  to  settle,  among  other  things,  the 
terms  of  that  final  contract  It  would  seem  to  be  dear  that 
when,  by  the  terms  of  this  preliminary  contract,  it  is  provided 
that  when  the  time  comes  for  the  execution  of  the  final  contract 
the  land  is  ''to  be  conveyed  by  a  good  and  sufScient  deed  of  the 
said  obligor,  conveying  a  good  and  clear  title  to  the  same,  free 
from  all  encumbrances,''  the  language  refers  to  the  title  whidi 
is  to  pass  by  the  deed,  and  not  to  the  state  of  things  existiiig 
at  the  time  of  the  preliminary  contract 

It  follows  that  since  the  d^endant  is  unable  substantially  to 
perform  his  contract,  the  plaintiff  may  rescind  and  recover  badk 
what  he  has  paid.  We  see  no  material  error  in  the  manner  in 
which  the  court  dealt  with  the  defendant's  request  for  instmo- 
tions. 

Exceptions  overruled. 


If  a  Contract  U  Made  for  the  Sale  of  Land,  the  vendor  to  give  a 
warranty  deed  on  the  payment  of  the  purchase  money,  and  betweei 
the  time  of  the  contract  and  the  making  of  the  deed,  a  portion  of 
the  land  is  condemned  for  a  railroad,  damages  for  the  taking  belong 
in  equity  to  the  purchaser,  and  he  cannot  treat  such  taking  as  an 
encumbrance,  and  recoTor  therefor  on  the  covenants  in  the  deed: 
Stevenson  v.  Loehr,  57  BL  509,  11  Am.  Bep.  86. 


Jan.  '02.}    W0BCB8TBB  BTC.  Ry.  Co.  v*  Tba vblbbb*  Imb.  Co.    275 


WOBCESTER  AND  SUBURBAN  STREET  RAILWAY 
CO.  T.  TRAVELERS'  INSURANCE  CO, 

[180  MaM.  263,  62  N.  K  364.] 

BAXLWAY8— Insurance  of,  Against  Ual>ility  for  Accident— 
When  Does  not  Include  Death  of  Passenger.— Under  a  poliey  insuring 
a  railway  corporation  ' '  against  loss  from  liability  to  any  person  who 
may,  during  the  period  of  twelve  montha^  aceidentally  sustain  bodily 
injuries  while  traveling  on  any  railway  of  the  insured  under  sir* 
eumstanees  which  shall  impose  upon  the  insured  a  eommon^lair  or 
statutory  liability  for  such  injuries,''  there  can  be  no  recovery  be* 
cause  of  an  accident  due  to  the  fault  of  the  insured,  if  the  person 
inured  dies  instantly  and  without  conscious  suffering,     (pb  278.) 

Contract  by  a  street  railway  corporation  upon  a  policy  in- 
suring it  ^against  loss  from  liability  to  erery  person  who  may, 
dnring  a  period  of  twelve  months,  from  12  o'clock  M.  of  Au- 
gust 18,  1898,  accidentally  sustain  bodily  injuries  while  trav- 
eling on  any  car  of  the  insured,  or  while  in  a  car  or  upon  the 
railroad-bed  or  other  property  of  the  insured,  under  circum- 
stances which  shall  impose  upon  the  insured  a  common  law 
ix  statutory  liability  for  such  injuries.''  It  appeared,  in  the 
complaint^  that  the  persons  on  account  of  whose  death  recov- 
ery was  sought  had  died  instantly  and  without  conscious  suf- 
fering, in  consequence  of  bodily  injuries  sustained  by  them 
while  traveling  on  one  of  the  plaintiff's  cars  on  its  railway. 
A  demurrer  to  the  complaint  was  overruled  and  judgment 
directed  to  be  entered  for  the  plaintiff,  but,  at  the  request  of 
the  parties,  the  court  reported  all  questions  of  law  raised  upon, 
the  demurrer  and  declaration  for  the  determination  of  the 
appellate  court.  If  error  was  found,  final  judgment  must  be 
entered  for  the  defendant,  otherwise  the  judgment  pronounced 
bjr  the  trial  court  was  to  stand. 

H.  Parker  and  C.  C.  Milton,  for  the  defendant 

B.  W.  Potter  and  E.  A.  Stewart,  for  the  plaintiff. 

■•*  LATHROP,  J.  By  the  terms  of  the  policy  the  defend- 
ant insured  the  plaintiff  "against  loss  from  liability  to  every 
person  who  may,  during  a  period  of  twelve  months"  from  a 
tiinc  named,  "accidentally  sustain  bodily  injuries  while  travel- 
ing on  any  railway  of  the  insured,  or  while  in  a  car  or  upon  the 
lailway-brf  or  other  property  of  the  insured,  under  circum- 
stances which  shall  impose  upon  the  insured  a  common-law 
«r  Btatutory  liability  for  such  injuries." 


276  American  State  Beports,  Vol.  91.  [tfaflfl. 


The  question  presented  is  whether  the  terma  of  the  policy 
hroad  enough  to  cover  the  case  where  a  person  who  is  a  traveler 
on  the  plaintiff  road  dies  instantly  and  without  conscious  suf* 
fering,  in  consequence  of  an  accident  for  which  the  plaintiff  is 
responsible.  The  plaintiff  contends  that  the  terms  are  soffi* 
ciently  broad.  The  defendant  contends  that  the  policy  is  sat- 
isfied by  limiting  the  words  used  to  cases  of  bodily  injuries 
sustained^  for  which  the  plaintiff  is  liable,  either  at  common 
law  or  by  statute,  to  the  person  sustaining  the  injury,  or  to 
his  executor  or  administrator,  if  the  injured  person  surrives 
the  injury  and  subsequently  dies. 

The  diligence  of  counsel  has  furnished  us  with  no  case  in 
which  a  policy  in  the  terms  of  the  one  before  us  has  been  con- 
strued, and  we  are  obliged  to  consider  the  case  mainly  upon 
general   principles. 

It  may  be  conceded  that  the  policy  is  to  receive  a  reasonable 
construction,  in  view  of  the  plaintiff's  business  (Mandell  y. 
Fidelity  etc.  Co.,  170  Mass.  173,  64  Am.  St.  Eep.  291,  49  N. 
E.  110) ;  but  when  we  have  said  this  we  have  not  advanced 
very  far,  for  it  is  obvious  that  the  parties  may  not  have  in- 
tended that  all  the  risks  incurred  by  the  plaintiff  as  a  common 
carrier  of  passengers  should  be  covered.  Whatever  was  their 
actual  intention,  we  are  obliged  to  determine  the  intent  from 
the  natural  meaning  of  the  language  used,  viewed  in  the  light 
of  the  attendant  circumstances. 

It  is  plain  that  an  accident  insurance  policy  may  insnre 
a  person  against  an  injury  caused  by  an  accident,  or  against 
*^  death  resulting  from  an  accident,  or  it  may  combine  tiie 
two.  All  these  forms  are  or  have  been  in  use.  It  cannot  be 
said,  therefore,  that  in  the  policy  before  us  death  is  necessarily 
included. 

In  this  commonwealth  there  is  no  common-law  liability  for 
death:  Carey  v.  Berkshire  B.  R.  Co.,  1  Cush.  475,  48  Am 
Dec.  616 ;  Moran  v.  HoUings,  125  Mass.  93.  Nor  is  there 
any  statute  which  gives  a  right  of  action  for  the  death  of  a 
person  to  his  executor  or  administrator  as  an  asset  of  the  es- 
tate. In  all  the  statutes  which  have  allowed  an  executor  or 
administrator  to  bring  an  action  on  account  of  the  killing  of 
a  person  by  the  negligence  of  a  corporation  or  its  servants, 
the  action  is  for  the  benefit  of  the  widow,  children  or  next  of 
kin:  Pub.  Stats.,  c.  112,  sec.  212;  Stats.  1886,  e.  140;  Stats. 
1887,  c.  270;  Stats.  1898,  c.  565. 

An  action  for  a  personal  injury,  which  has  accmed  to  a  per- 
ton  in  his  lifetime^  survives,  since  the  Statutes  of  IMS,  ohapter 


Jan.  n)2.]    Worcester  etc.  Ry.  Co.  v.  Travelers'  Ins.  Co.    277 

89:  Pub.  Stats.,  c.  165,  sec.  1.  But  there  is  nothing  in  the 
statutes  above  cited  which  recognizes  any  right  of  survivorship 
in  case  of  death.  The  power  to  recover  in  such  a  case  was 
first  given  by  an  indictment,  and  a  fine  was  imposed  for  the 
benefit  of  the  widow,  etc.,  of  the  deceased.  While  an  action 
of  tort  was  afterward  allowed,  the  relief  obtained  was  devoted 
to  the  same  use,  and  not  to  the  estate  of  the  person  killed. 

The  difference  between  the  right  to  recover  for  an  injury 
and  for  a  loss  by  death  has  been  recognized  in  our  decisions. 
Thus,  under  the  Statute  of  1879,  chapter  297,  which  gave, 
among  other  things,  a  right  of  action  to  a  wife,  injured  in  her 
means  of  support  by  reason  of  the  intoxication  of  her  hus- 
baikd,  against  a  person  causing  the  intoxication,  it  was  held 
that  no  action  lay  for  death  caused  by  intoxication:  Barrett 
V.  Dolan,  130  Mass.  366,  39  Am.  Bep.  456. 

The  Published  Statutes,  chapter  52,  section  17,  give  a  right 
of  action  not  exceeding  one  thousand  dollars  to  the  executor 
or  administrator  of  a  person  killed  by  reason  of  a  defect  or 
want  of  repair  in  a  highway,  etc.,  for  the  use  of  the  widow 
and  children.     Section  18  gives  a  right  of  action  to  a  person 
who  "receives  or  suffers  bodily  injury**  under  similar  circum- 
stances.   These  two  actions  are  independent;  and  both  may 
be  maintained,  if  warranted  by  the  evidence.    Thus,  in  Bowes 
v.  Boston,  155  Mass.  344,  349,  29  K  E.  633,  it  was  said  by 
Mr.  Justice  Knowlton :  ''The  right  to  recover  damages  suffered 
in  his  *••  lifetime  by  one  who  dies  from  an  injury  received 
on  a  highway  survives  to  his  administrator  for  the  benefit  of 
his  estate,  and  the  damages  are  estimated  on  the  theory  of 
making  compensation.  .  •  •  '•  The  action  by  an  administrator, 
under  section  17,  on  account  of  his  intestate's  loss  of  life,  is 
to  recover  a  sum  not  exceeding  one  thousand  dollars  for  the 
benefit  of  the  widow  and  children  oKof  the  next  of  kin  of  the 
deceased,  to  be  estimated  according  to  the  degree  of  culpa- 
bility of  the  defendant.    Both  actions,  under  the  statute,  may 
proceed  at  the  same  time,  on  independent  grounds  and  for  dif- 
ferent purposes.*' 

We  are  not  aware  of  any  legislation  in  this  commonwealth 
giving  a  right  of  recovery  for  personal  injuries,  which  has 
been  construed  to  give  a  right  of  action  for  death.  Nor  are  we 
aware  of  any  legislation  giving  the  right  of  recovery  for  death, 
in  which  the  fact  of  bodily  injury  to  the  deceased  is  made  an 
element  in  the  computation  of  damages.  The  statutes  gen- 
erally give  damages  for  death  between  certain  fixed  limitB, 
aeoording  to  ilie  degree  of  eidpability  of  the  defendant    Thej 


278  Ambrican  Statb  Bbpobts^  Vol.  91. 

give  a  new  right  of  action  to  the  executor  or  administrator, 
and  not  a  right  of  action  to  the  deceased,  which  goes  to  the 
executor  or  administrator  by  suryiyal  only:  Commonwealth 
V.  Boston  etc.  S.  B.  Co.,  134  Mass.  211,  213;  Littlejohn  t. 
Pitchbnrg  R.  R.  Co.,  148  Mass.  478,  483,  20  N.  E.  103 ;  Mul- 
hall  V.  Fallon,  176  Mass.  266,  268,  79  Am.  St  Bep.  309,  ST 
N.  E.  386. 

By  the  terms  of  the  policy  the  plaintiff  is  insured  against  losn^ 
from  liability  to  e?ery  person  who  may  accidentally  snstain 
bodily  injuries,  under  circumstances  which  impose  upon  the 
insured  a  common-law  or  statutory  liability  for  such  injuries. 
The  liability  is  to  a  person  who  sustains  bodily  injuries,  and 
such  person  must  hare  a  right  o£  action  therefor,  either  at  com- 
mon law  or  by  statute.  The  policy  cannot  include  the  case  of 
death,  for  which  the  person  never  had  a  right  of  action. 

According  to  the  terms  of  the  report  the  order  must  be,  in  the 
opinion  of  a  majority  of  the  court,  judgment  for  the  defendant. 

MORTON",  J.  I  regret  that  I  am  unable  to  agree  with  the 
majority  of  the  court.  The  question  is  one  of  construction,  and 
is  whether,  in  the  language  of  Lord  Cairns,  in  Sackville-West 
V.  Holmesdale,  L.  R.  4  H.  L.  643,  674,  we  shall  servilely  fol- 
low ^^'^  the  literal  sense  of  the  words  used,  which  I  agree  can 
be  done,  or  whether  we  shall  construe  them  liberally,  and  in  a 
manner  more  in  accord  with  the  nature  of  the  contract  and 
the  situation  of  the  parties.  It  seems  to  me  that  the  latter 
course  should  be  followed. 

The  contract  is  one  of  indemnity  against  loss  from  liability 
for  personal  injuries  caused  by  accidents  for  which  the  plaintiff 
was  responsible,  and  the  precise  question  is  whether  the  liability 
of  the  plaintiff,  which  is  a  street  railway  company,  for  damages 
for  death  caused  by  its  negUgence,  comes  fairly  within  the  terms 
of  the  policy.  At  common  law  damages  for  death  caused  by  the 
negligence  of  another  person  were  not  recoverable.  But  such 
damages  are  now  recoverable  by  statute  in  this  state  and  in 
other  states  in  many  cases,  and  in  England  generally,  and  it 
seems  to  me  that  that  fact  should  be  borne  in  mind  in  construing 
the  policv  before  us :  Pub.  Stats.,  c.  62,  sec.  17 ;  Pub.  Stats.,  c. 
112,  sec."  212;  Stats.  188G,  c.  140;  Stats.  1887,  c.  270,  sec.  2; 
Stats.  1898,  c.  565;  Stats.  9  &  10  Vict.,  c.  93;  Sedgwick  on 
Damages,  sec.  671. 

It  is  undoubtedly  true  that  such  damages  do  not  constitute, 
generally  speaking,  assets  of  the  estate  of  the  deceased,  and  that 
flie  right  of  action  is  a  new  one.    But  it  does  not  follow  that  the 


Jan.'02.]    WoBcssTKB  XTc.  Bt.  Ca  f^.  TiiAVXLXBa' Inb.  Co.   279 

liahiKty  to  loss  on  account  of  personal  injuries  which  is  insured 
against  may  not  be  fairly  construed  to  include  such  damages. 
Parties  well  may  be  supposed  to  contract  with  reference  to 
new  conditions^  though  they  use  the  old  terma^  and  the  old 
terms  will  be  giyen  a  new  content  if  they  fairly  admit  of  such 
a  oonstraction  and  such  appears  to  have  been  the  intention  of 
the  parties.    The  ground  on  which  damages  for  death  are  al- 
lowed ia  that  a  person  causing  the  death  of  another  by  his 
negligence  should  not  be  suffered  to  escape  liability  therefor. 
And  whether  the  damages  assessed  are  awarded  according  to 
the  culpability  of  the  defendant  as  in  the  employer's  liability 
aet  in  tiiis  state,  or  according  to  the  pecuniary  loss  sustained  by 
the  fitmily  of  the  deceased  as  in  the  English  act,  they  go  in  fact, 
though  not  in  terms,  to  those  to  whom  the  estate  of  the  deceased 
passes  at  his  death.    The  fact,  therefore,  that  such  damages  do 
not,  strictly  speaking,  constitute  assets  of  the  estate  of  the  de- 
ceased person  would  not  seem  to  be  of  vital  consequence,  if  we 
look  at  substance  rather  than  form.    There  can  be  no  doubt  that 
'^  it  is  and  was  understood  by  street  railway  companies  and  by 
liability  insurance  companies,  that  damages  for  death  caused  by 
the  negligence  of  the  railway  companies  are  recoverable  in  ac- 
tions against  them  therefor.  •  It  is  obvious  that  there  can  be  no 
good  reason  why  a  railway  company  should  wish  to  protect  itself 
against  liability  for  damages  when  the  injury  did  not  result  in 
death,  and  not  against  liability  for  damages  for  death.     Of 
course,  a  contract  is  not  to  be  construed  according  to  the  under- 
standing of  one  party  to  it.    But  it  is  equally  obvious,  I  thiuk, 
that  the  matter  would  present  itself  in  the  same  light  to  an 
insurance  company.    It  seems  to  me,  therefore,  that  the  words 
in  the  policy,  "against  loss  from  liability  to  every  person  who 
may,*'  etc.,  should  be  construed  as  meaning  ^liability  in  respect 
to  every  person  who  may,'*  etc.,  and  as  having  regard,  not  to  the 
extent  of  recovery,  or  the  nature  of  the  remedy,  but  to  the  sub- 
ject of  the  injury.    The  -application,  which  is  made  a  part  of  the 
policy,  begins  by  saying  that  the  railway  company  applies  for  a 
railway  policy.    The  policy  that  was  issued  is  entitled  "Street 
Railway  Liability  Policy.''    Evidently  a  railway  liability  policy 
was  and  is  a  weU-known  form  of  insurance.     Assuming,  as  we 
are  bound  to  do,  good  faith  on  the  part  of  the  insurer  and  in- 
sured, it  is  difficult,  it  seems  to  me,  to  believe  that,  as  business 
men,  those  in  charge  of  railway  and  insurance  companies  could 
have  intended  or  understood  the  insurance  to  have  the  partial 
character  given  to  it  by  the  majority  of  the  court.    The  appli- 


280  American  State  Bbports^  Vol.  91.  [Mass. 

cation  goes  on  to  provide  that,  ''if  the  applicant  shall  fail  to 
comply  with  the  requirements  of  any  law,  by-law,  or  ordinance 
respecting  the  safety  of  persons,  the  policy  shall  not  cover  inju- 
ries resulting  from  such  failure/'  There  is  nothing  here  to  show 
that  death  resulting  from  the  failure  spoken  of  was  not  one  of 
the  injuries  contemplated.  It  would  be  an  extraordinary  con- 
struction to  say  that  the  safeguards  provided  for  related  to  lesser 
injuries,  but  not  to  death.  In  the  statements  contained  later  in 
the  application  in  regard  to  persons  injured  and  suits  against  the 
road  for  damages  and  apparently  required  of  the  plaintiff  by  the 
defendant,  there  is  nothing  which  tends  in  the  least  to  show  that 
cases  of  death  were  in  fact  excluded,  or  were  intended  to  be 
excluded,  in  considering  the  nature  of  the  risk  or  the  liability 
insured  against.  The  application  contains  nothing,  I  think, 
^•^  which,  fairly  construed,  excludes  from  or  does  not  include 
in  the  insurance  applied  for  the  liability  for  damages  for  death. 
Neither  is  there  anything  in  the  policy,  it  seems  to  me,  which 
requires  a  construction  of  the  words  describing  the  risk  that  will 
exclude  liability  for  damages  for  death.  Such  a  liability,  as 
already  observed,  is  a  statutory  one.  But  the  policy  expressly 
provides  that  the  liability  insured  against  shall  include  statutory 
as  well  as  common-law  liabilities.'  Among  the  conditions  con- 
tained in  the  policy,  and  to  which  the  insurance  was  subject, 
were  the  following:  that  the  defendant's  liability  shall  not  ex- 
ceed twenty  thousand  dollars  ''for  all  injuries  .  .  •  •  consequent 
upon  any  one  accident;  that  "this  policy  shall  not  take  effect 
unless  the  premium  is  paid  previous  to  any  accident  under  which 
claim  is  made'' ;  that  "this  insurance  does  not  cover  claims  upon 
which  suit  shall  be  commenced  after  six  years  from  the  date  of 
the  accident" ;  that  in  case  of  loss  covered  by  other  like  insur- 
ance, the  company  shall  be  liable  only  for  its  pro  rata  share,  and 
shall  be  subrogated  to  the  plaintiff's  rights  against  any  third  per- 
son ;  and  that  immediate  written  notice  shall  be  given  of  any  ac- 
cident and  of  all  claims  made  by  injured  persons  with  all  the  in- 
formation in  the  plaintiff's  possession  relating  to  the  accident  or 
any  claim  made  on  account  thereof.  These  provisions,  which 
contain  the  more  important  conditions,  are,  to  say  the  least,  as 
consistent  with  the  view  that  damages  for  death  are  included 
in  the  risk  as  with  the  view  that  they  are  not.  "Accidents," 
"injuries,"  "claims"  and  "losses"  are  spoken  of  without  distin- 
guishing between  cases  in  which  the  accident  or  injury  resulted 
in  death  and  cases  where  it  did  not,  or  between  claims  whidi 
included  damages  for  death  and  those  which  did  not. 


JaQ.'02.]   WoBcssTXR  ETC.  By.  Co  v.  Travblebs' Ins.  Co.    281 

Of  course  it  may  be  said  that  when  the  risk  has  once  been  de- 
fined all  other  provisions  in  the  policy  are  to  be  construed  as  re- 
lating to  the  risk  so  defined.  But  the  question  in  this  case  is, 
What  was  the  risk  that  was  insured  against?  And  in  answering 
that  question,  the  nature  of  the  contract,  the  provisions  con- 
tained in  the  application  and  policy^  and  the  effect  of  the  con- 
struction contended  for  on  the  one  side  and  the  other,  are  all, 
I  think,  to  he  taken  into  account.  The  effect  of  the  construc- 
tion adopted  by  the  majority  of  the  court  will  be  to  limit  the 
plaintiff's  right  of  recovery,  in  respect  to  statutory  liabilities  to 
cases  where  a  right  *^®  of  action  has  been  given  by  statute  to 
persons  injured  and  passes  by  statute  on  their  death  to  their 
executors  or  administrators.  It  will  exclude  a  class  of  cases — 
equally  important^  to  say  the  least— in  which  a  right  of  action 
has  been  given  to  the  executor  or  administrator,  or  to  the  widow 
or  next  of  kin,  to  recover  damages  for  the  death  of  a  person  in- 
jured by  the  negligence  of  a  railway  company.  Such  a  construc- 
tion  does  not  seem  to  me  to  be  a  reasonable  one.  It  is  said  that 
bodily  injuries  do  not  include  death.  But,  as  already  observed, 
the  matter  is  one  of  construction.  There  is  nothing  in  the 
words  themselves  to  prevent  them  from  being  so  construed,  if 
it  is  apparent  that  the  parties  so  used  them.  Moreover,  it  is 
provided  by  the  employers*  liability  act  that,  if  the  death  is  pre- 
ceded by  conscious  suffering,  or  is  not  instantaneous,  damages 
for  the  death  may  be  recovered  by  the  executor  or  administrator 
in  the  action  for  personal  injuries:  Stats.  1892,  c.  260,  sec.  1. 
The  use  and  construction  of  the  words  in  the  policy  as  includ- 
ing death  and  the  liability  to  loss  for  damages  for  death  is,  there- 
fore, warranted  by  the  statute. 

For  these  reasons  it  seems  to  me  that  the  ruling  was  right  and 
that  the  judgment  should  be  affirmed. 

Ur.  Justice  Barker  concurs  in  this  opinion. 

Tnstiees  Barker  and  Morton  Dissented,  and  expressed  their  dissent 
in  an  opinion  written  by  the  latter.  Thej  claimed  that  the  eonrt 
ought  not  to  servilely  follow  the  literal  sense  of  the  words^  but  should 
eoneftme  them  liberally  and  in  a  manner  in  accord  with  the  nature  of 
the  contract  and  the  situation  of  the  parties;  that  there  was  no  good 
reason  why  the  company  should  wish  to  protect  itself  against  liability 
for  damages  when  the  injuries  did  not  result  in  death,  and  not  include 
liability  for  damages  for  death;  that  there  was  nothing  in  the  policy 
to  indicate  that  death  resulting  in  the  manner  described  in  the  com- 
plaint was  not  one  of  the  injuries  contemplated. 


282  AifBRiCAN  State  Bbports,  Vol.  91.  [Mit^ 

A  BaUuxip  Company  may  contract  with  a  news  company  for  la* 
demnity  from  any  loss  it  may  sustain  by  having  to  pay  for  injurMa 
to  employes  of  the  news  company,  while  on  its  cars.  And  this  coa* 
tract  may  cover  the  railway's  liability  for  the  death  of  a  newsboy: 
Kansas  City  etc.  B.  B.  Go.  v.  Sonthern  By.  News  Co^  151  Mo.  378.  74 
Am.  St.  Bep.  545,  52  8.  W.  205. 


BUTHBRFORD  v.  PADDOCK. 

[180  Mass.  289,  62  N.  E.  881.] 

8IiAin>BB--Pleadiiig.— The  justification  of  dandorooa 
mat  be  as  broad  as  the  charge,     (p.  288.) 

SLAITOBB.— Charging  one  with  being  '<a  dirty  old  whore"  i» 
not  justified  by  proof  of  adultery  on  different  occasions  with  the  same 
person,  if  the  jury  is  of  the  opinion  that  the  charge  meant  that 
plaintiff  made  merchandise  of  her  person,  for  hire.     (p.  285.) 

Tort  for  slander.  The  plaintiff  alleged  that  she  was  a  mar* 
lied  woman,  and  that  the  defendant  '^publicly,  falsely,  and  ma* 
liciouslj  charged  her  with  adultery,  by  words  apoken  of  the 
plaintiff  substantially  as  follows :  ^Take  that,  you  [meaning  the 
plaintiff]  dirty  whore.  You  [meaning  the  plaintiff]  are  a  dirty 
old  whore,  and  I  can  prove  it.  You  are,  and  I  can  prove  it.'  ^ 
The  answer,  after  denying  plaintiff's  allegations,  pleaded  jus- 
tification as  follows:  ^^If  it  shall  be  proved  that  the  defendant 
epoke  and  published  of  the  plaintiff  the  words  as  charged  in  the 
declaration,  and  charged  the  plaintiff  with  the  crime  of  adulterj 
88  therein  alleged,  the  same  were  true,  and  the  plaintiff  had,  be* 
fore  said  words  were  spoken  and  published,  committed  the  crime 
of  adultery,  so  that  the  defendant's  accusation  was  true.**  At 
the  trial  there  was  evidence  tending  to  show  that  the  plaintiff 
had  committed  adultery  on  two  or  three  occasions  with  the  same 
person.  The  defendant  requested  the  judge  to  rule  as  follows: 
**The  words  as  alleged  in  the  declaration  are  actionable,  without 
proof  of  special  damage,  only  because  they  charge  the  plaintiff 
with,  or  impute  to  her,  the  commission  of  a  crime — ^the  crime  of 
adultery.  The  defendant  therefore  justified  if  she  proves  that 
before  the  words  were  spoken  the  plaintiff  had  committed  the 
crime  of  adultery.  It  is  not  necessary  for  her  to  prove,  in 
Older  to  justify,  the  full  truth  of  the  words  spoken — ^i.  e.,  that 
the  plaintiff  was  a  whore  in  the  ordinary  acceptation  of  the 


JaiL  1902.J  BuTHBRFOBD  V.  Faddock.  28$ 

TTord,  if  she  proves  that  defendant  had  committed  the  only 
crime  which  those  words  import,  to  wit,  the  crime  of  adultery/ 
The  judge  refused  to  so  rule,  and  left  the  case  to  the  jury,  which 
zetumed  a  yerdict  for  the  plaintiff,  and  the  defendant  alleged 
exceptions. 

G.  S.  Taft,  for  the  defendant. 

J.  E.  Thayer,  A.  P.  Eugg,  and  S.  B.  Taft,  for  the  plaintiff. 

»•  HOLMES,  C.  J.  This  is  an  action  of  tort  brought  by  a 
married  woman  for  calling  her  a  dirty  old  whore.  We  repeat 
the  qualifying  adjectives  as  bearing  on  what  we  have  to  say.  At 
the  trial  the  defendant  asked  for  a  ruling  that  a  justification  wafr 
made  out  by  proof  that  before  the  words  were  spoken  the  plain- 
tiff had  committed  adultery.  The  judge  refused  so  to  rule,  but 
left  it  to  the  jury  to  decide  in  what  sense  the  words  were  used,. 
*•*  and  instructed  them  that  the  justification  must  be  as  broad 
as  the  charge.  On  this  ground  the  judge  further  instructed 
them  that  proof  that  the  plaintiff  had  committed  adultery  at 
gome  time  would  not  be  a  justification,  if,  that  is  to  say,  the  jury 
should  be  of  opinion  that  the  words  meant  more  than  the  charge 
of  the  act  on  a  single  occasion,  and  imported,  for  instance,  mak- 
ing merchandise  of  the  plaintiffs  person  for  hire.  The  defend^ 
ant  excepted. 

No  special  reference  was  made  to  the  pleadings  in  the  request 
or  ruling,  and  so  we  lay  on  one  side  the  fact  that  the  justifica- 
tion pleaded  followed  the  innuendo  of  the  declaration,  which 
went  little  or  no  further  than  to  aver  that  the  defendant  charged 
the  plaintiff  with  the  crime  of  adultery :  See  Simmons  v.  Mit- 
chell, 6  App.  Cas.  156,  162;  Haynes  v.  Clinton  Printing  Go.,^ 
169  Mass.  612,  515,  48  N.  E.  275.  Of  course  the  judge  was 
right  in  his  instruction  that  the  justification  must  be  as  broad 
as  the  charge.  Apart  from  the  pleadings,  clearly  the  jury  were- 
at  liberty  to  find  that  the  words  charged  the  commission  of  adul- 
tery on  more  than  one  occasion,  and  therefore  the  ruling  re- 
quested was  wrong. 

But,  as  a  general  rule,  the  justification  need  be  no  broader 
than  the  charge  in  a  legal  sense — ^than  the  actionable  portion  or 
rignificance  of  the  words.  It  need  not  extend  to  the  further 
abuse  with  which  a  sentence  or  word  may  be  loaded,  where  the 
truth  of  the  substance  of  the  imputation  has  been  made  out: 

Morrison  v.  Harmer,  3  Bing.  N".  C.  759,  767.     Edwards  v.  Bell, 

1  Bing.  403,  409.     The  judge,  by  suggesting  that  usually  the- 


284  American  State  Reports,  Vol.  91.  [Mass. 

-epithet  carried  the  notion  of  hire,  implied  that  if  that  meaning 
were  found  the  justification  must  extend  to  that.  There  is  no 
■doubt  that  the  jury  were  warranted  in  finding  that  the  epitii^ 
with  its  adjectives  meant  more  and  worse  in  a  social  sense  than 
even  repeated  lapses  from  conjugal  faith.  But  it  would  be 
rather  a  stretch  to  say,  and  it  was  not  argued,  that  they  could 
have  found  that  any  other  crime  was  charged — ^for  instance,  that 
of  being  a  common  night-walker,  or  a  lewd,  wanton  and  lascivi- 
ous person  in  speech  or  behavior  under  Public  Statutes,  chapter 
"207,  section  29.  Therefore,  the  question  is  suggested  whether 
we  are  to  confine  the  cause  of  action  to  so  much  of  the  charge 
as  imports  criminal  conduct,  or  are  to  recognize  as  an  element 
to  be  included  in  the  *•*  justification  such  further  import  of 
the  word  as  adds  to  the  heinousness  of  the  crime  and  possibly 
affects  the  degree  of  the  punishment,  although  it  does  not  change 
the  technical  character  of  the  offense. 

If  we  take  the  former  view,  we  follow  to  its  extreme  results  a 
tradition  of  the  common  law,  the  reasons  for  which  have  dis- 
appeared, and  which  has  been  corrected  in  England  and  in  some 
of  our  states  by  statute :  Odgers  on  Libel  and  Slander,  3d  ed.,  90. 
By  the  old  law,  apart  from  an  allegation  of  special  damage,  an 
action  lay  in  the  spiritual  courts  only,  because  the  offense 
charged  was  dealt  with  only  in  the  spiritual  courts,  and  it  was 
said  that  therefore  the  spiritual  courts  alone  could  determine  the 
truth  of  the  charge :  T.  B.,  27  Henry  VIII,  14,  pi.  4.  Perhaps 
it  would  have  been  simpler  to  say  that  originally  the  whole  jur- 
isdiction was  ecclesiastical,  and  that  it  was  retained  by  tba 
church,  except  in  those  instances  where  for  special  reasons  the 
common  law  had  encroached.  In  Coke's  time  the  state  of  flie 
law  seems  to  have  been  accounted  for  or  justified  by  treating 
such  charges  as  'Tbrabling  words*' :  Oxford  v.  Gross,  4  Eep.  18. 
But  see  Ogden  v.  Turner,  6  Mod.  104, 106 ;  Graves  v.  Blanchet, 
2  Salk.  696;  Davis  v.  Sladden,  17  Or.  269,  262,  263,  21  Pac 
140.  It  has  been  suggested  that  the  taking  by  the  common-law 
courts  of  a  portion  of  the  original  ecclesiastical  jurisdiction  over 
slander  started  from  the  fact  that  in  the  cases  where  the  com- 
mon law  interfered  the  matter  charged  was  the  subject  of  a 
common-law  writ,  and  that  the  principal  matter  drew  to  it  the 
accessory.  In  such  cases  the  common-law  courts  best  could 
determine  the  truth  of  the  charge :  Smith  v.  Teutonia  Ins.  Co., 
Fed.  Cas.  No.  13,115,  6  Am.  Law  Rev.  693,  695,  603,  606.  Of 
course  at  that  stage  the  common  law  could  not  present  a  sys- 
tematic scheme  of  liability,  but  only  examples  of  occasionsl 


Jan.  1902.]     Buthsrfobd  v.   Paddock.  285 

interference  which  fieemed  merely  arbitrary  when  the  ezplana* 
tion  was  lost. 

At  the  present  day^  when  slander  is  fully  domiciled  in  the 
common  law  as  a  tort  and  the  only  remedy  recognized  as  a  rem* 
edy  mnst  be  f  oimd  in  the  common-law  courts,  it  may  be  argued 
with  some  force  that  there  should  be  an  effort  after  consistency 
of  theoiy,  and  that  the  remedy  for  one  of  the  greatest  wrongs 
that  can  he  done  by  words  should  not  be  distorted  by  the  neces- 
sity of  referring  it  to  the  liability  to  a  small  fine  or  imprison- 
ment if  the  falsehood  were  true.    The  older  law  already  has 
*••  been  broken  in  upon  by  holding  liability  to  a  trivial  pimish- 
ment  enough  if  the  crime  involves  moral  turpitude,  or  if  the 
punidiment  wiU  bring  disgrace:  See  Miller  v.  Parish,  8  Pick. 
384;  Brown  v.  Nickerson,  6  Gray,  1.     Compare  Turner  v.  Og- 
den,  2  Salk.  696,  6  Mod.  104;  Onslow  v.  Home,  2  W.  Black,  760> 
753,  3  Wils.  177, 186;  Holt  v.  Scholefield,  6  Term  Bep.  691,  694; 
Eure  V.  Odom,  9  K  C.  (2  Hawks)  52.    At  all  events,  so  long 
as  the  action  for  slander  is  preserved  and  lies  for  imputing  un- 
ehastity  to  a  woman,  it  is  so  reasonable  to  hold  the  liability  co- 
ertensive  with  the  imputation  that  we  shall  not  be  more  curious 
than  our  predecessors  in  finding  an  arbitrary  and  technical 
limit    In  Doherty  v.  Brown,  10  Gray,  250,  251,  it  was  said  by 
a  very  able  judge,  and  said  as  a  material  part  of  the  reasoning 
on  which  the  case  was  decided,  that  proof  of  the  unchastity  of 
the  plaintiff  would  not  be  a  justification  of  the  charge  that  she 
was  a  whore.     We  are  content  to  take  the  law  as  we  find  it 
stated:  See  Cleveland  v.  Detweiler,  18  Iowa,  299;  Shechey  v. 

Cokley,  43  Iowa,  183,  22  Am.  Bep.  236;  Petorson  v.  Murray^ 

13  Ind.  App.  420,  41  N.  E.  836. 
Exceptions  overruled. 


JUSTIFICATIOK  IN  SLANDEB  AND  ZJBEIi. 

I.    Scope  of  the  Note. 

n.   Defenses  not  Amounting  to  Jnstiflcation  Because  not  Aftaalkng. 
the  Truth  of  the  Defamatory  Matter. 

a.  Want  of  Injury  to  Plaintiff. 

b.  The  Existence  of  Prior  Beports  to  the  flame  Effect. 

c.  Belief  in  the  Truth  of  the  Defamatory  Charge. 

d.  Apology  or  Betraetion. 

e.  Defendant's  Conatmction  of  the  Words  Used  by  BIm.. 

HL    Tnth  as  a  Defense, 
a.    In  Civil  Actions. 
h.    In  Criminal  Prosecations. 


^86  American  State  Reports,  Vol.  91.  [M 

£V.    Partial  Justificatloxi. 

a.  Where  Defendant  Used  Fart  Only  of  the  Defaanatovsr 

Words. 

b.  Where  Defendant  Seeks  to  Estebliah  the  Truth  of  PsKt 

Only  of  the  Words  Used  by  Him. 
V.    The  Plea  of  Justification. 

a.  The  General  Issue  or  Oeneral  Denial 

b.  The  Plea  Must  be  as  Broad  as  the  Charge. 

c    Justifsring  by  Pleading  Different  or  Lesser  Orimas  m 
Acts. 

d.  The  Plea  Most  not  bo  Conditional  or  ContlngeBl; 
•.    Must  Sespond  to  the  Innuendo. 

f  •    The  Forai  of  the  Plea. 

1.  Cteneral  Bulo. 

2.  When  the  Charge  is  Spocille  in  Its  Details. 

8.    When  the  Charge  IuyoIyos  a  Mere  Opinion  or  Oob- 
clusion. 

4.  Illustrations  of  Jtstiileation  Where  Crime  has  Imsb 

Charged. 

5.  Partial  J^istifieation. 

6.  Must  Confess  the  Use  of  the  Defamatory  Weeis 

justified, 
g.    Joining  Justification  With  Inconsistent  Pleas, 
h.    Eifect  in  Aggravating  Damages,  or  as  EYidence  of  MaUoe^ 
L    Withdrawal  of  the  Plea. 
TL    Evidence  of  Justification. 

a.  Burden  of  Proof. 

b.  The  Degree  or  Amount  of  Proof  Beguired. 

1.  In  Civil  Cases. 

2.  m  Criminal  Prosecutions. 

e.  Evidence  Admissible  and  Necessary  to  Justify  a  duoge 

of  Crime. 

L    Scope  of  Kote. 

We  have  heretofore  given  special  attention  to  the  subject  ef  newe- 
paper  libel  for  the  purpose  of  showing  to  what  extent,  if  at  aUy  the 
>law  applicable  to  other  persons  may  be  regarded  as  equally  applicable 
to  persons  or  corporations  engaged  in  the  publication  of  journals 
whose  object  it  is  to  collect  and  disseminate  news,  and  also  to 
•critieise  individuals,  whether  public  or  private  (note  to  McAllister 
v.  Detroit  Free  Press  Co.,  15  Am.  St.  Bep.  333-369),  and  we  shall 
not  again  enter  upon  the  consideration  of  this  topic,  except  in  so  far 
as  it  may  be  incidentally  and  necessarily  involved  in  the  question  of 
justification.  Neither  shall  we  here  discuss  under  what  circumstances 
the  publisher  of  a  libel  or  slander  may  be  exempt  from  liability  on 
the  ground  that  his  communication  was  privileged.  Justification,  as 
applied  to  the  law  of  slander  and  libel,  does  not  imply  that  somethinn 
has  been  done  which  is  privileged,  or  excused  on  account  of  some 
-duty  owing  by  the  publisher  to  the  public,  or  to  the  person  to  whom 
the  publication  was  made.    Nor  does  justification  inv<dve  the  question 


Jan.  1902.]  Rutherford  v.  Paddock.  287 

of  the  eirenmstaiiees  which,  though  not  excusing 'the  wrongdoer  from 
liability,  tend  to  mitigate  hie  offense,  when  he  is  prosecuted  in  a 
eriminal  proceeding,  and  to  reduce  the  damages  which  may  properly 
be  assesaeJ  against  him  in  a  civil  action.  In  truth,  strictly  speaking, 
there  can  be  no  justification  of  a  slander  or  libeL  The  defense  of 
justification  always  implies  that  no  slander  or  libel  has  been  com- 
mitted, or,  in  other  words,  that  what  has  been  said  or  written  is  true. 
Hence  thia  note  will  be  taken  up  with  showing  that  the  only  absolute 
justification  to  an  alleged  slanderous  or  libelous  publication  is  its 
truth,  and  with  considering  the  pleadings  and  evidence  in  support  of 
the  plea  of  justification.  That  nothing  except  the  truth  is  a  plea  in 
justification  may,  perhaps,  be  more  fully  demonstrated  by  considering 
some  of  the  defenses  which  have  commonly  been  offered  and  held  in- 
flufleient. 

a   Defenses  not  Amoimting  to  JnstUleatlon  Beeanse  not  AlWrmlng 

tbe  Trnili  of  tbe  Defamatory  Matter. 

a.  Want  of  Injuzy  to  the  Plaintiff,  however  it  may  affect  the  dam- 
agee  to  be  awarded,  is  not  a  jnstiflcation  of  a  slander  or  libel,  where 
the  words  eharged  are  not  true.  .  They  may  have  been  spoken  to  a 
person  who  did  not  believe  them,  or  knew  absolutely  that  they  were 
false,  and  hence  may  not  injuriously  affect  the  plaintiff's  reputation. 
8tiU  a  right  of  action  in  his  favor  is  created  which  cannot  be  de- 
stroyed by  proof  of  the  absence  of  injury  to  him,  or  that  all  the 
persons  hearing  or  reading  the  f ab»  reports  knew  of  their  falsity 
and  gave  no  credence  to  them:  Marble  v.  Chapin,  132  Mass.  225; 
Burt  V.  McBain,  29  Mich.  260;  McMeans  v.  Calhoun,  1  Nott   &  McC. 

422. 

b.  Tbe  EJdBtenee  of  Prior  Beports  to  the  flame  Effect.— For  the 
purpose  of  mitigating  damages,  or,  in  other  words,  of  showing  that 
litUo  or  no  injury  has  resulted  to  the  plaintiff,  the  defendant  may 
prove  that  he  repeated  prior  reports  already  in  general  circulation. 
Such  reports,  however,  do  not  constitute  a  justification,  and  evidence 
of  them,  when  admissible,  must  be  received  only  for  the  purpose  of 
reducing  damages.    The  repetition  of  a  slander  or  Ubel  originated  by 
another  is  a  repubUcation  of  it,  and  cannot  be  justified  by  prior 
reports,  however  extensively  circulated:  Lewis  v.  Niles,  1  B/ot,  346; 
Rl^rdson  t.  Roberts,  28  Ga.  215;  Funk  v.  Beverly,  112  Ind.  190,  13 
N  B  573-  Cade  ▼.  Bedditt,  15  La.  Ann.  492;  Harris  v.  Minvielle,  48 
li  Ann.  908  19  South.  925;  Clark  v.  Munsell,  6  Met.  373;  Kenney  v. 
McLaughUn,  5  Gray,  3,  66  Am.  Dec.  345;  Brewer  v.  Chase,  121  Mi^h. 
526,  80  Am.  St.  Bep.  527,  80  N.  W.  575;  Moberly  v.  Preston,  8  Mo.  462; 
WOTld  P    Co  v.  Mullen,  43  Neb.  126,  47  Am.  St.  Bep.  737,  61  N.  W. 
108-  Mapes  v.  Weeks,  4  Wend.  659;  Nelson  v.  Evans,  12  N.  C.  (1 
Dev'.)  9;  Johnston  v.  Lance,  29  N.  C.  (7  Ired.)  448;  Upton  y   Hume, 
24  Or  420.  41  Am.  St.  Bep.  863,  33  Pac.  810.    Nor  can  justification 
he  nuide  out  by  proving  that  the  defendant,  at  the  time  of  uttenng 
the  defamatory  charge,  declared  that  he  was  stating  only  a  general 
lelort-  Funk  v.  Beverly,  112  Ind.  190,  13  N.  E.  573;  Wheeler  v. 
8Srds,Xun.  348;  Waikin  v.  Hall,  L.  B.  3   Q.  B.  396;  or  that  he 


288  American  State  Eeports,  A'ol.  91.  [ilass* 

was  ri^peating  a  chargo  maintaised  by  some  apeeifled  person,  givind 
the  name  of  the  latter:  Dole  v.  Lyon,  10  Johns.  447,  6  Am.  Dee.  346;.; 
MePherson  ▼.  Daniels,  10  Bam.  &  G.  263,  5  M.  &  B.  251. 

c  Belief  in  the  Tmth  of  the  Defamatory  Charge  does  not  eon- 
stitnte  any  justification  for  its  publication.  It  is  not  material  for 
this  purpose  that  the  belief  was  entertained  upon  apparently  enffieient 
grounds:  Woodruff  v.  Biehardson,  20  Conn.  288;  Fountain  ▼.  West^ 
23  Iowa,  9,  92  Am.  Dee.  405;' nor  that  the  plaintiff,  by  his  eonduct,. 
created  the  belief  on  the  part  of  the  defendant:  Parkhurst  v.  Ket- 
chum,  6  Allen,  406,  83  Am.  Dec.  689;  Clark  t.  Brown,  116  Slass.  304; 
Morgan  v.  Rice,  3B  Mo.  App.  591;  Fry  v.  Bennett,  8  Bosw.  200; 
Holmes  v.  Jones,  147  N.  Y.  59,  49  Am.  St.  Bep.  646,  41  N.  E.  409; 
Wozelka  v.  Hettriek,  98  N.  C.  10;  as  where  the  plaintiff,  by  taking 
property  in  jest,  induced  the  belief  that  he  had  eommitted  larceny r 
Clark  ▼.  Brown,  116  Mnss.  504. 

d.  Apology  for  Retraction  usually  tends  to  diminish  the  damages 
of  the  defamatory  publication,  and  hence  may  always  be  proved  in 
mitigation  of  damages.  It  can  never,  however,  constitute  a  complete 
defense,  and  hence,  as  a  plea  in  justification,  must  be  declared 
entirely  inadequate:  Storey  v.  Wallace,  60  HI.  51;  Cass  v.  New 
Orleans  Times,  27  La.  Ann.  214;  Williams  v.  McManus,  38  La.  Ann. 
161,  58  Am.  Bep.  171;  Davis  v.  Marxhausen,  103  Mich.  315,  61  N.  W. 
604. 

e.  Defendant's  Oonstmction  of  the  Words  Used  by  Htaa.— De- 
fendant's intent  is  not  material  so  far  as  the  question  of  justiflcation 
is  involved.  It  is  not  sufficient  that  his  motives  were  good.  Neither 
can  he  be  justified  on  the  ground  of  any  special  construction  he  may 
have  intended  to  be  put  upon  the  words  used  by  him:  Mitchell  v. 
Spradley,  23  Tex.  Civ.  App.  43,  56  S.  W.  134.  "The  question  is. 
What  effect  would  the  publication  have  upon  the  mind  of  the 
ordinary  reader!  What  construction  would  he  have  put  upon  itt 
For,  in  defamatory  language,  it  is  not  so  much  the  idea  which  the 
speaker  or  writer  intends  to  convey,  as  what  he  does  in  fact  convey. 
It  is  the  effect  upon  the  character  of  the  person  alleged  to  be  de- 
famed by  the  utterance  which  the  law  considers,  and  therefore  the 
ntterer  uses  the  language  at  his  peril":  Belo  v.  Smith,  91  Tex.  221, 
42  S.  W.  850.  Other  illustrations  might  be  added,  all  tending  to 
confirm  what  we  have  already  stated,  that  there  can  be  no  justification 
which  does  not  amount  to  an  afBrmance  of  the  truth,  in  all  ite 
essential  details,  of  the  defamatory  publication  of  which  the  plea  i» 

made. 

XXL    Truth  as  a  Defense. 

a.  In  OItU  Actions,  as  already  suggested,  truth  is  the  only  com* 
plete  justification.  That  it  is  a  justification  in  all  civil  action%. 
whether  for  slander  or  libel  is  generally,  though  not  universally,  eon* 
ceded:  Henderson  v.  Fox,  83  Ga.  233,  9  a  E.  839;  Heilman  v.  Shanklin,, 
60  Ind.  424;  Castle  v.  Houston,  19  Kan.  41?,  27  Am.  Bep.  127; 
Mundy  v.  Wight,  26  Kan.  173;  Boldon  v.  Thompson,  60  Kan.  856,  56 
Fae.  181;  Katcliff  v.  Louisville  Courier- Journal  Co.,  99  Ky.  416,  86' 


Jan.  1902.]  Butherford  v.  Paddock.  289 

8.  W.  177;  Bayne  ▼.  Taylor,  14  La.  Ann.  406;  Snllinga  v.  Shakespeare^ 
46  ICiclL  408,  41  Am.  Bep.  166,  9  N.  W.  451;  Simons  v.  Bnmham,  102 
Hieh.  189,  60  N.  W.  476;  McAtee  v.  Yalandlngham,  75  Mo.  App» 
45;  Kelly  ▼.  Taintor,  48  How.  Pr.  270;  Halt  ▼.  Bennett,  4  Sand. 
120;  Fry  ▼.  Bennett,  8  Bosw.  200;  Joannes  ▼.  Jennings,  6  N.  Y» 
Sap.  Ct.  Bep.  138;  George  ▼.  Jennings,  4  Hon,  66;  Fnlkerson  ▼. 
Ocorge,  3  Abb.  Pr.  75;  Press  Co.  ▼.  Stewart,  119  Pa.  584,  14  Atl.  51; 
Perry  ▼.  Man,  1  B.  I.  263;  Haynes  ▼.  Spokane  0.  P.  Co.,  11  Wash. 
503,  39  Pae.  969;  Whitney  v.  Janesville  Gazette,  5  Biss.  330,  Fed. 
Css.  No.  17,590;  and  its  effect  as  a  plea  ini  defense  is  not  diminished 
by  showing  that  the  words,  though  true,  were  spoken  in  malice: 
Foss  ▼.  Hildreth,  10  Allen,  76;  Perry  v.  Porter,  124  Mass.  338;  or 
thmt  the  knowledge  of  their  truth  did  not  come  to  the  defendant 
until  after  they  were  spoken:  Cox  ▼.  Strickland,  101  Ga.  482,  28  S. 
E.  655.  In  several  of  the  states,  however,  the  rule  still  obtains  in 
eiyil  actions  for  libel  that  the  defendant  may  be  held  answerable, 
though  the  defamatory  statements  made  by  him  were  true,  if  he 
was  actuated  by  malice  or  mischievous  intent  (Delaware  etc.  Co.  v. 
CroasdaJe,  6  Houst.  18}.),  or  if  his  publication  was  not  made  for  good 
motives  and  justifiable  ends:  Wilson  v.  Marks,  18  Fla.  322;  Jones  v. 
Townsend,  21  Fla.  431;  Perret  v.  New  Orleans  Times,  25  La.  Ann. 
170;  Sweeney  v.  Baker,  13  W.  Ya.  205;  McClaugherty  v.  Cooper,  39 
W.  Va.  313,  19  S.  E.  415. 

In  Nebraska,  the  rule  has  been  somewhat  varied  by  a  declaration 
of  the  constitution.  Generally,  the  provisions  of  the  American 
constitutions,  so  far  as  they  relate  to  this  subject,  have  tended  not 
merely  to  require  the  admission  of  the  truth,  but  to  make  it  a  com- 
plete justification  in  criminal,  as  well  as  civil,  c-ases;  but  the  con- 
stitution of  this  state  declares  that  "in  all  trials  for  libel,  both  civil 
and  criminal,  the  truth,  when  published  with  good  motives  and  for 

justifiable  ends^  shaU  be  a  sufficient   defense From   this    it 

would  seem  that  even  the  truth  is  not  a  complete  defense  in  an 
action  for  libel,  unless  the  libel  was  published  with  good  motives 
■ad  for  justifiable  ends":  Pokrok  Z.  P.  Co.  v.  Zizkovsky,  42  Neb. 
64,  60  N.  W.  358.  The  effect  of  this  constitutional  provision  was 
eontidered  in  Neilson  v.  Jensen,  56  Neb.  430,  76  N.  W.  866,  where 
the  court  said:  "In  a  civil  case,  at  common  law,  the  truth  of  the 
eharge  published  was  a  defense  to  one  who  was  sued  for  libel;  but 
our  constitution  has  changed  this  rule,  and  a  publisher  may  not  be 
exempt  himself  from  liability  for  libeling  another  simply  by  show- 
ing that  the  eharge  published  was  true,  but  must  go  further  and 
■how  that  the  publication  was  made  under  such  circumstances  as 
would  justify  the  conclusion  that  he  acted  with  good  motives,  and 
for  justifiable  ends.  The  framers  of  the  constitution  may  hav» 
been  of  the  opinion  that  the  peace,  good  order,  and  well-being  of 
the  Btate  would  be  beet  subserved  if  every  citizen  devoted  at  least 
a  part  of  his  time  to  attending  to  his  own  business,  instead  of 
constituting  himself  an  agent  for  bruiting  abroad  the  short-comings 
Am.  St.  aep.»  Vol  S3r-19 


290  American  State  Beports,  Vol.  91.  [Maat. 

■of  hif  neighbor;  bnt  whatever  may  have  been  their  motives,  the  pro- 
vision on  the  subject  of  libel  is  a  part  of  the  supreme  law  of  tlM 
land.  What  motives  induced  the  publication  of  the  libel  is,  of 
•course,  a  question  of  fact;  and  whether  these  motives  warrant  the 
•conclusion  that  the  publication  was  justifiable  is  probably  for 
•determination  by  the  jary  or  other  triers  of  fact.'' 

b.  In  Oriminal  Prosecutioiis.— By  the  common  law,  it  la  weD 
bown  that  in  criminal  prosecutions  for  libel  the  truth  of  the  de- 
famatory charge  did  not  alone  constitute  a  justification  for  its  pab- 
llcation:  Commonwealth  v.  Clap,  4  Mass.  163,  3  Am.  Dec  212;  Coa- 
monwoalth  y.  Blanding,  8  Pick.  304,  15  Am.  Dec.  215;  Commonwemltli 
V.  Morris,  1  Ya.  Cas,  175,  5  Am.  Dee.  515.  This  is  because  falseneas 
is  no  part  of  the  common-law  definition  of  a  criminal  libel:  New- 
hall  on  Slander  and  Libel,  2d  ed.,  937.  In  the  United  States  the 
common-law  rule  has  been  generally  modified,  and  in  some  of  the 
states  abolished,  either  by  constitutional  or  statutory  provisional  im 
which  the  truth  of  the  libelouf  charge  is  admissible  in  justificatioR 
in  criminal  prosecutions^  provided  it  further  appears  that  the  pub* 
lication  was  made  with  good  motives  and  for  justifiable  eade: 
State  V.  Bice,  56  Iowa,  431,  9  N.  W.  843;  State  v.  Haskins,  109  Iowa, 
656,  80  N.  W.  1063;  Castle  v.  Houston,  19  Kan.  417, 27  Am.  Bep.  127; 
State  V.  Bienvenu,  86  La.  Ann.  878;  Commonwealth  v.  Snellin^  15 
Pick.  837. 

XV.    Partial  JoBtUlcatloB. 

a.    WlMre  Defendant  Used  Part  Only  of  tbe  Defamatory  Words.^ 

The  question  of  whether  there  may  be  a  i>artial  justification  of  a 
libel,  or,  in  other  words,  whether  the  defendant  may,  under  a  plea 
of  justification,  show  that  the  alleged  defamatory  matter  was  par- 
tially true,  may  be  considered  with  reference  (1)  to  those  eases  in 
which  the  defendant  admits  or  is  shown  to  have  been  responsible 
for  or  guilty  of,  publishing  part  only  of  such  matter,  and  seeka  to 
justify  with  respect  to  such  part,  and  (2)  to  cases  in  which,  though 
he  published  or  uttered  all  the  alleged  libelous  words,  he  wishes 
to  undertake  to  prove  part  only  of  them  to  be  true.  In  the  eaaea 
of  the  first  class,  there  can  be  no  doubt  in  reason  and  principle 
that  he  need  not  justify  to  any  divisible  part  of  the  libel  or  slander 
of  which  he  was  not  guilty,  but  may  deny  the  publication  of  the 
words  for  whose  publication  he  is  not  in  fault,  and  as  to  the  balance, 
may  justify  by  showing  that  it  was  true:  Cloidt  v.  Wallace,  56  UL 
App.  389;  Hollingsworth  v.  Spectator  Co.,  53  App.  Div.  291,  65  N. 
Y.  Supp.  812.  It  is  always  permissible  for  the  defendant  to  deny 
uttering  or  publishing  any  part  of  the  defamatory  matter  attributed 
to  him:  Palmer  v.  Smith,  21  Minn.  419.  "The  plea  or  notice  of 
justification  must  aver  the  truth  of  the  material  and  substantial 
charges,  or  of  each  substantial  and  libelous  charge,  in  language  as 
broad  as  the  charge,  in  its  full  and  legal  sense;  and  although,  where 
there  are  separate  and  distinct  charges  in  the  same  libel,  it  is 
allowable  in  the  same  plea  or  notice  to  plead  the  general  issue  as 


Jan.  1902.]  Rutherfobo  v.  Paddock.  291 

to  a  l>art,  and  justify  as  to  the  other  charges,  yet  It  is  essential 
thst  the  plea  or  notiee  should  substantially  answer  the  whole  eount 
or  ground  of  action  declared  on":  Van  Derveer  ▼.  Sutphin,  6  Ohio 
St.  293.  ''Where  the  words  charged  are  divisible  without  materially 
changing  the  sense,  or  constitute  two  distinct  slanders  or  charge* 
against  plaintiff,  the  defendant  may  justify  one  and  rely  on  the 
general  iaene  in  defense  of  the  other":  Nott  y.  Stoddard,  38  Vt.  20^ 
4S8  Am.  Dec  633. 

b.    Where  Defendant  Se^ka  to  BstabUsih  tlie  Troth  of  Part  Only 
of  the  Words  Used  bj  Him.— If,  on  the  other  hand,  defendant  waa 
gaQtyt  of  publishing  the  whole  of  the  alleged  defamatory  matter,  he 
cannot  joatify  by  showing  that  aome  part,  though  diyisible  from 
the  rest,  was  true:  Toll  ▼.  David,  27  Ind.  877;  Hake  ▼.  Bramea,  W 
Ind.  161;  Miller  ▼.  McDonald,  139  Ind.  465,  39  K.  E.  159;  Whitte- 
more  t.  Weiss,  33  Mich.  848;  Thompson  v.  Pioneer  P.  Co.,  37  Minn. 
285,  33  N.  W.  856;  Morgan  v.  Bice,  35  Mo.  App.  591;  Keilson  ▼.  Jen- 
sen, 56  Neb.  430,  76  N.  W.  866;  Stilwell  ▼.  Barter,  19  Wend.  487;  Col- 
Us  ▼.  Press  P.  Co^  68  App.  Div.  38,  74  N.  Y.  Supp.  78;  Torrey  ▼• 
Held,  10  Yt.  353;  Knapp  &  Go.  ▼•  Campbell,  14  Tex.  Civ.  App.  199, 
36  &  W.  765.    This  is  upon  the  principle  that,  though  the  plaintiff 
may  have  committed  one  or  more  crimes,  or  been  guilty  of  one  or 
more  acts  tending  to  discredit  him  in  the  public  esteem,  the  de- 
fendant is  not  therefore  justified  in  charging  him  with  additional 
crimes  or  acts  of  which  he  was  innocent:  Peoples  ▼•  £yening  Newa, 
51  Mich.  11,  15  N.  W.  185,  691;  Young  ▼.  Fox,  26  App.  Div.  261^  49 
K.  Y.  Supp.  634;  Holmes  v.  Jones,  121  N.  Y.  461,  24  N.  E.  701; 
Lsnpher  v.  Clark,  149  N.  Y.  472,  44  N.  E.  182;  Edwards  v.  Kansas 
City  T.  Co.,  32  Fed.  813.    In  such  a  case,  however,  it  is  clear  that 
the  plaintiff,  if  guilty  of  some  of  the  acts  or  crimes  imputed  to  him, 
is  less  injured  than  if  innocent  at  ail.    The  general  declaration  met 
with  so  frequently  in  the  decisions,  that  the  justification  must  be  aa 
broad  as  the  charge,  tends  to  mislead  by  producing  the  impression 
that,  unless  the  defendant  can  prove  the  truth  of  all  the  charges 
made  by  him,  it  is  useless,  or  even  dangerous,  to  prove  any.    We 
apprehend  that  all  that  is  meant  by  this  general  declaration,  wher- 
ever made^  is  that  nothing  less  than  proof  of  the  whole   charge 
made  by  defendant  can  entitle  him  to  a  verdict.    This  must  be  so, 
il^  as  is  already  suggested,  he  is  not  justified  in  making  a  false 
charge  by  the  fact  that  other  charges  made  by  him  are  true;  but 
it  cannot  be  true  that  where  by  the  plea  or  evidence  it  appears  that 
acme  only  of  the  charges  made  by  defendant  are  false,  plaintiff 
can  be  entitled  to  damages  as  if  all  had  been  admitted  or  shown  to 
be  so:  Kerr  v.  Force,  3  Cranch  C.  C.  8,  Fed.  Gas.  No.  7730.    The 
jrroper  mode  of  pleading  when  the  defendant  wishes  to  show  that 
some  only  of  the  charges  made  by  him  are  true,  we  shall  hereafter 
consider.    Where,   however,   the   plea   is   sufficient   to   warrant   the 
reception   of   evidence   of   the   partial   truth   of   the   charge,   it   ia 
admissible  to  mitigate  damages:   Jones  v.  Greeley,  25  Fla.  629,  6 
ftnilh.  448;  Staey  ▼•  Portland  P.  Co.,  68  He.  270;  Hay  t.  Beid,  U 


292  American  State  Seports^  Vol.  91. 

Mich.  296,  48  N.  W.  607.    But,  if  tlie  libel  contains  bnt  one 
stantial  charge,  it  must  be  regarded  as  indivisible,  and  the  defendant 
cannot  be  permitted  to  justify  as  to  some  clause  or  sentenee  only: 
Palmer  ▼.  Smith,  21  Minn.  419.    ''There  is  no  suen  thing  aa  a  half- 
way  justification.    When  several   distinct  things  are   charged,    the 
defendant  may  justify  as  to  one,  though  he  may  not  be  able  to  do  so 
as  to  all;  but  as  to  any  one  charge,  the  justification  will  either  be 
everything  or  nothing.     If  the  charge  be  of  stealing  a  horse,  it  i» 
not  half  of  a  defense,  nor  any  part  of  one,  to  show  that  the  plaintiff 
took  the  horse  by  a  mere  trespass;  or  if  the  charge  be  perjury,  proof 
that  the  plaintiff  swore  falsely  through  an  innocrat  mistake  amounts 
to  nothing":  Fero  v.  Ruscoe,  4  N.  Y.  162.    ''The  rule  of  pleading  that 
the  justification  shall  be  as  broad  as  the  charge,  does  not  mean  that 
the  answer  in  justification  must  be  broad  enough  to  embraeo  every 
slanderous  charge .  stated  in  the  complaint.    When  several  aeparat* 
and  distinct  things  are  charged,  the  defendant  may  justify  aa   to 
one,  though  he  fail  as  to  the  othera    In  this  case  the  plaintiil  ha«l 
alleged  that  the  defendant  falsely  and  maliciously  spoke  and  paV 
lished  of  and  concerning  her  personally,  and  of  and  concerning  her 
place  of   business,  that   she  kept  a  disorderly   house.    It  ia  true^ 
according  to  the  allegatigfts  of  the  complaint,  that  he  also  charged 
her  with  many  other  things,  but  the  charge  of  keeping  a  disorderly 
house  was  distinct  and  separate  from  all  the  rest,  and  the  defendant 
was  entitled  to  justify  that  charge  if  he  could,  though  he  fail  aa  to 
all  the  rest.    When  the  defamatory  charge  imputes  to  the  plaintiff 
two  or  more  separate  and  distinct  things,  as  larceny  or  perjury,  tho 
rule  that  the  justification  must  be  as  broad  as  the  charge,  meana 
that  it  shall  be  fnll  and  complete  as  to  at  least  one  of  the  ehargea 
■eparately  and  distinctly  made  and  alleged":  Lanpher  v.  Clark,  14» 
N.  T.  472,  44  N.  E.  182. 

V.    The  Plea  of  Jnstiflcation. 

a.  The  Genenl  Iflsiie  or  Oeaenl  Denial.— It  was  nnquestionably 
tme  that  the  plea  of  general  denial  did  not,  at  the  eonunon  law, 
entitle  the  defendant  to  put  in  evidence  a  justification.  In  other 
words,  it  admitted  the  fahwnees  of  the  alleged  defamatory  matter, 
and  hence  for  no  purpose  was  the  defendant  entitled  to  have  evi- 
dence admitted  in  his  favor  if  it  tended  to  prove  that  the  ehargea 
made  by  him  were  true:  Arrington  v.  Jones,  9  Port.  139;  Donge  t. 
Pearce,  13  Ala.  127;  Donaghue  v.  Gaffey,  53  Conn.  43,  2  AtL  397; 
Atwater  v.  Morning  News  Co.,  67  Conn.  504,  84  AtL  865;  Kinney  t» 
Hosea,  3  Harr.  397;  Sheahan  v.  Collins,. 20  HI.  325,  71  Am.  Dee.  271v 
Burke  v.  Miller,  6  Blackf.  155;  Beardsley  v.  Bridgman,  17  Iowa,  290; 
Miller  v.  Boy,  10  La.  Ann.  231;  Taylor  v.  Bobinsoa,  29  Me.  S23; 
Hagan  v.  Hendry,  18  Md.  177;  Padgett  v.  Sweeting,  65  Md.  404,  « 
AtL  887;  Alderman  v.  French,  1  Pick.  1,  11  Am.  Dee.  114;  Knight 
T.  Foster,  39  N.  H.  576;  Fero  v.  Buscoe^  4  N.  T.  168;  Eagan  t» 
Qratt,  1  MeMull.  468;  Essterwood  v.  Quin,  2  Brer.  64^  8  Am.  Dee. 
700;  MeCMnpbeU  t.  Thomburgh,  8  Head,  IV^;  Banw  T.  .Webb.  1 


Jan.  1902.]  Rutherford  v.  Paddock.  293 

Tjler,  17;  Grant  v.  Hover,  6  Munf.  13;  Sweeney  v.  Baker,  13  W.  Va. 
158,  31  Am.  Eep.  757;  Eatoa  ▼.  White,  2  Pinn.  42;  Langton  v.  Hag- 
erty,  35  Wis.  150.  No  decinon  or  text-book  has  come  within  our 
observation  discussing  the  question  whether  this  rule  ought  to  be,  or 
is,  applicable  to  the  general  denial  under  the  code  system  of  plead- 
ing^ but  such  has  alwaya  been  assumed  to  be  the  rule,  and  therefore 
«videnee  of  the  truth  of  the  defamatory  matter  has  been  excluded 
mleoi  it  was  specially  pleaded:  Thrall  v.  Smiley,  9  Gal.  529;  Fero  v. 
Boaeoe,  4  N.  Y.  162;  Penstermaker  v.  Tribune  P.  Co.,  12  Utah,  439, 
43  Pac  112;  Langton  v.  Hagerty,  35  Wis.  150;  Bliss  on  Code  Plead- 
ing,  sec.  359a;  Kinkead's  Code  Pleading,  sec.  764. 

h.    The  Plea  Must  be  as  Broad  as  the  Charge.— In  heretofore 
peaking   of   partial  truth  as  a  justification  or   defense,  we  have 
showa  that  the  eonunitting  of  one  or  more  of  the  crimes  or  the 
doing  of  one  or  more  of  the  disgraceful  acts  imputed  to  the  plaintiff 
cannot  bo  regarded  as  a  justification  of  the  other   charges  made 
against  him,  and  therefore  that  there  can  be  no  complete  justificatioa 
which  does  not  allege  the  truth,  or  at  least,  the  substantial  truth 
of  the  defamatory  language  used  by  the  defendant.    As  the  defense 
of  justification  is  not  admissible  under  the  general  issue  at  common 
law,  nor  under  the  general  denial  where  the  code  system  of  pleading 
prevails,  it  follows  that  the  defendant  must,  by  his  plea  in  justifica- 
tion, show  that  the  whole  of  the  charge  made  by  him  against  the 
plaintiff  is  true.    To  make  a  complete  defense,  the  matter  alleged  in 
the  defendant's  plea  must  in  every  way  correspond  with  the  imputa- 
tion contained  in  the  declaration:  Kerr  v.  Force,  3  Cranch    C.  C.  8, 
Fed.  Caa.  No.  7730.    ''There  is  no  better  settled  point  in  slander 
than  this:  the  plea  must  justify  the  same  words  contained  in  the 
declaration,  or,  at  least,  so  many  of  them  as  are  actionable.   It  is  not 
enough  to  justify  the  sentiment  contained  in  the  words'':  Skinner 
T.  Grant,  12  Yt.  456.    ''It  is  a  well-established  rule  that  the  plea 
of  justification  should  fully  meet  the  declaration  in  every  substantial 
paitienlar.    Great  certainty  of  averment  is  requisite.   It  must  justify 
the  Bubstance  of  the  publication,  its  character  and  imputations,  and 
also  the  sense  in  which  the  innuendos  explain  it,  if  they  do  so  fairly. 
If  the  plea  does  not  aver  that  the  words  are  true,  in  the  sense 
imputed  to  them  in  the  complaint  by  proper  innuendo,  it  is  bad.    It 
must  be  as  broad  as  the  charge,  and  must  specify  the  charge  claimed 
to  be  libelous":  Jones  v.  Townsend,  21  Fla.  431,  58  Am.  Rep.  676. 
The  justification  must  go  to  the  whole  of  the  charge  of  which  the 
defendant  wishes  to  undertake  to  prove  the  truth,  or,  in  other  words, 
it  must  be  as  broad  as  the  libel  and  answer  every  material  part  of 
the  declaration:  Thrall  ▼.  Smiley,  9  Cal.  529;  Trebby  v.  Transcript 
P.  Co.,  74  Minn.  84,  73  Am.  St.  Rep.  330,  76  N.  W.  961;  Holton  v. 
Muzzy,  30  Vt  366;  Smith  v.  Tribune  Co.,  4  Biss.  477,  Fed.  Cas.  No. 
13,118.    "That   a   plea  in   bar   must   answer   that   portion   of   the 
declaration  which  it  professes  to  answer   is  a  rule  not  controverted. 
The  rules  of  pleading,  in  a  case  of  libel  or  slander,  require  that  the 
plea  of  justification  must  contain  a  specific  charge  set  forth  with 


294  Ambrican  Statb  Bbports,  Vol.  91. 

certainty  and  particularity,  and  that  the  plea  must  be  as  eztennve 
as  the  imputation  complained  of  in  the  declaration.  In  order  t» 
determine  what  ia  the  extent  of  the  imputation,  we  must  look  at  th* 
whole  language  which  the  plea  professes  to  justify.  If  a  plea 
justify  everything  that  is  essential,  it  will  be  a  good  answer;  but  if 
it  justify  that  part  of  the  alleged  libelous  matter  which  ia  eott- 
paratively  unessential,  leaving  out  that  part  which  gives  a  atin^  U> 
the  whole,  it  must  certainly  be  adjudged  bad":  Ames  v.  Hazard^ 
6  R.  L  83S. 

e.    Jtistifyiiig  by  Pleading  Different  or  Z«e8Mr  Crimes  or  Acta. — 
It  follows  from  what  we  have  just  stated,  if  the  defamatory  matter 
amounts  to  a  charge  of  several  distinct  crimes  or  discreditable  aets^ 
the  justification,  to  be  complete,  must  allege  the  truth  of  all  of  tkem, 
and  cannot  be  made  out  by  proving  a  crime  or  act  different  froia, 
and  having  some,  but  not  all,  of  the  substantial  elements   of   the 
crime  or  act  alleged.    If  the  libelous  charge  implies  that  the  plaim- 
tiff  sold  Chinese  pork  and  lard  containing  the   germs  of    dieea— ^ 
defendant  cannot  justify  by  showing  that  plaintiff  bought  pork  and 
lard  of  Chinese,  and  afterward  sold  them,  and  that  Chinamen  often 
■old  diseased  meat:  Mowry  v.  Baabe,  89  CaL  606,  27  Pac  127.     A 
charge  of  adultery  with  C.  cannot  be  justified  by  the  plea  of  adultery 
with  B.:  Bicket  v.  Stanley,  6  Blackf.  169;  Buckner  v.  Spaulding,  127 
Ind.   229,  26  N.   E.  792.    A   charge   that   a  teacher   took  indecent 
liberties  with  his  pupils  is  not  justified  by  a  plea  or  proof  that  he 
was  of  a  grossly  immoral  character  and  in  the  habit  of  keeping 
intoxicating  liquors  in  school:  Thibault  v.  Sessions,  101  Mich.   279, 
5&  N.  W.  624;  nor  a  charge  of  being  a  thief  by  proof  that  the  plain- 
tiff was  guilty  of  cheating,  fraud,  or  false  pretenses:   Youngs    ▼. 
Adams,  113  Mich.  199,  71  N.  W.  585;  nor  a  charge  that  the  plaintiff 
"has  no  moral  character, '^  by  a  plea  that  he,  being  the  agent  of  a 
company  to  sell  certain  articles,  collect  the  money  therefor,  and  re- 
turn it  to  the  company,  had  received   such  articles  and  had    not 
returned  them:  Coffin  v.  Brown,  94  Md.  190,  89  Am.  St.  Bep.  422,. 
60  Atl.  567;  nor  a  charge  of  committing  crime  against  nature  ^rith 
a  mare,  that  the  plaintiff  had  committed  such  crime  with  a  eow: 
Andrews  v.  Vanduzer,  11  Johns.  88;  nor  a  charge  that  the  plaintiff' 
was  indicted  for  fraud,  by  a  plea  that  he  had  been  indicted  and 
arrested  for  conspiracy  to  cheat  and  defraud:  Loveland  v.  Hoamer,  S 
How.  Pr.  215;  nor  a  charge  of  illegally  selling  intoxicating  liqnors^ 
by  a  plea  that  he  had  sold  such  articles  to  certain  specified  peraona 
without  any  allegation  that  the  sales  were  in  any  respect  contrary 
to  law:  Helton  v.  Muzzy,  30  Vt.  365;  nor  a  charge  that  a  plaintiff  ia 
a  scoundrel  and  knave,  not  fitted  to  be  trusted  with  a  half  million 
of  money,  by  a  plea  that  he  falsified  the  books  of  his  oiBee,  and 
coerced  his  clerks  to  subscribe  for,  and  support,  a  newspaper  of  which 
he  was  the  publisher:  Cook  v.  Tribune  Assn.,  5  Blatchf.  352,  Fed* 
Gas.  No.  3165. 

In  one  ease  it  was  determined  that  the  charge  of  being  a  thief,. 
jhwigfc   made  with  respect   to   a  particular  transaction,   could    be 


Jan.  1902.]  Ruthbrfobd  v.  Paddock.  295 

jnstiiled  bj  evidenee  that  the  plaintiff  had  been  guilty  of  larceny 
in  another  transaction:  Qnaid  ▼.  Tipton,  21  Tex.  Civ.  App.  131,  61 
S.  W.  264;  but  if  this  decision  can  be  flustained,  it  must  be  upon  th» 
ground  that  the  charge  made  was  general,  and  not  restricted  to  any 
particular  transaction,  for  nothing  is  clearer  than  that  a  charge  imput- 
ing one  crime  cannot  be  justified  by  pleading  another,  though  of  the 
um»  general  eharacter:  Bichardson  ▼.  Boberts^  28  Ga.  216;  Beggarly 
T.  Crafty  31  Ga.  309,  76  Am.  Dec.  687;  Downs  v.  Hawley,  112  Mast. 
237;  Watters  v.  Smoot,  11  Ired.  316;  Burford  ▼.  Wible,  32  Pa.  St. 
96;  DilLard  ▼.  Collins,  26  Orat.  343.  The  case  of  McLeod  ▼.  Crosby 
(Mich.),  87  N.  W.  883,  is,  therefore,  probably  not  in  accord  with 
the  weight  of  authority,  for  by  it  a  charge  of  stealing  property  was 
kdd  to  be  justified  by  a  plea  of  its  embezzlement,  on  the  ground 
that  "embezzlement  includea  the  elements  of  statutory  larceny.'' 

d.  The  Flea  Most  not  be  Oondltloiial  or  Oontl]igeiit.^If  the  de- 
famatory matter  eharged  plaintiff  with  being  guilty  of  a  crime,  the 
justification  must  state  of  what  crime  he  was  guilty.  If  the  charge 
is  of  perjury,  it  cannot  be  justified  by  pleading  that  the  plaintiff  in 
two  actions  gave  contradictory  testimony  respecting  a  certain 
material  fact,  and  that  he  hence  committed  perjury  in  the  one  case 
or  the  other:  Hull  v.  McKuight^  67  Ind.  636;  nor  can  a  plea  in 
justification  be  good,  if  it  merely  states  that  if  the  plaintiff  prove 
certain  specified  things,  then  the  defendant  will  prove,  in  justifica- 
tion, certain  matters  disclosed  by  his  answer:  Ltfwis  v.  Kendall,  6 
How.  Pr.  59. 

••   Must  Bespond  to  the  Innnendo.— The  plea  must  justify  the 
charge  in  the  sense  in  which  it  was  made  and  intended.    It  is  not 
■oifieient  that  the  plea  justify  the  words  used  in  their  literal  sense; 
it  must  have  been  understood  in  a  different  sense,  or  as  implying 
some  charge  in  addition  to  that  expressed  in  the  libelous  publica- 
tion.   Thus,  a  publication  to  the  effect  that  the  plaintiff  has  been 
j^ed  on  the  charge  of  horse  stealing  implies  that  he  was  guilty  of 
that  offense^  or,  at  least,  that  he  has  been  regularly  and  properly 
imprisoned  or  placed  under  arrest  for  that  crime,  and  it  is  not  a 
snfileient  justification  merely  to  say  that  he  was  charged  with  the 
offense,  and  jailed  on  account  of  the  charge,  where  there  is  no  claim 
that  he  was  guilty  or  that  he  ought  to  have  been  jailed:  Downey  v» 
Dillon,  62  Ind.  442.    Hence,  if  by  innuendo,  the  words  are  explained 
or  shown  to  have  been  used  and  understood  in  a  particular  manner,, 
the  plea  in  justification  is  not  sufficient  if  it  morely  avers  the  truth 
of  the  words  spoken,  without  also  showing  that  they  were  true  'Mn 
the  sense  ascribed  to  them  in  the  declaration'':  Jones  v.  Townsend, 
21  Fla.  431,  S8  Am.  Bep.  676;  Sanford  v.  Gaddis,  13  HI.  329;  Bicket 
T.  Stanley,  6  Blackf.  169;  Spooner  v.  Keeler,  61  N.  Y.  626;  Ajues  v. 
Hazard,  8  B.  I.  143;  Dement  v.  Houston  P.  Co.,  14  Tex.  Civ.  App.  391^ 
87  a  W.  986;  Mayo  v.  Blair,  1  Hayw.  ft  H.  96.    <<  When  the  charge 


296  Ambeican  State  Reports,  Vol.  91.  [Mi 

ia  made  directly,  the  plea  should  aver  the  truth  of  the  charge   as 
laid  in  the  declaration;    but  when  the  charge  is  made  by  insinuation  and 
ciicumlocution,  so  as  to  make  it  necessary  to  use  introductory  matter 
to  give  point  to  and  show  the  meaning  of  the  words,  the  plea  sboiild 
aver  the  truth   of  the   charge  which   the   declaration   alleges    Tra« 
meant  to  be  made.    If  the  words  are  'Brittain  is  as  deep  in  the  miid 
as  Welch  is  in  the  mire,'  and  the  declaration,  with  proper  introdne- 
tory  matter,  alleges  that  these  words  were  meant  to  make  the  charge 
of  passing  counterfeit  money,  the  plea  should  aver  that  the  plaintiff 
was  guilty  of  passing  counterfeit  money":  Snow  v.  Witcher,  9  Ired. 
346.    On  the  other  hand,  the  innuendo  may  restrict  the  meaning  of 
the  charge  or  show  that  it  did  not  impute  the  offense  which  would 
naturally  be  understood  from  it,  in  which  event  it  is  sufficient   to 
justify  the  charge  as  thus  restricted  by  the  innuendo:  Sanford   t. 
Oaddis,  13  HI.  329;  Spooner  v.  Eeeler,  51  N.  Y.  527.    Of  eonrse,  the 
defendant  la  not  bound  by  the  averments  of  the  innuendo.    He  may 
deny  that  his  words  were  used  or  understood  in  the  sense  impnted  to 
them,  and  justify  the  words  themselves:  Continental  Nat.  Bank  ▼• 
Bowdre,  92  Tenn.  723,  23  8.  W.  131.    "While  a  defendant  is  not 
bound  to  justify  any  forced^  construction  made  by  way  of  innuendo 
upon  the  language  of  the  publication,  he  is  bound  to  more  than  a 
literal  justification;  he  must  justify  the  substance  of  the  pubUeation, 
its  character,  and  its  imputations,  and  he  must  justify  in  the  senae 
in  which  the  innuendos  explain  it,  if  they  explain  it  fairly":  Amev 
▼.  Hazard,  8  B.  1.  143;  Boyee  v.  Maloney,  57  Yt.  325. 

f  .  The  Fonn  of  the  Plea. 
1.  Qeneral  Bnle.— Naturally,  it  would  seem,  espoeially  under  thm 
code  rules  of  pleading,  .to  be  sufficient  to  deny  that  the  alleged  de> 
famatory  matter  was  false,  or  to  aver,  in  general  terms,  that  it  was^ 
true.  We  have  seen,  however,  that  the  defense  of  justification  if 
not  admissible  under  the  general  issue  at  the  common  law,  nor  the 
general  denial  under  the  code  systems.  This  rule  is  founded  on  the 
assumption  that  the  plea  of  justification  should  be  affirmative  in 
its  character,  and  should  state  with  fullness  and  particularity  the 
acts  which  the  defendant  imputed  to  the  plaintiff,  and  which  will 
be  sought  to  be  proved  against  the  latter  at  the  trial.  To  some  ex- 
tent, at  least,  if  the  plaintiff  has  been  accused  of  a  criminal  act,  and 
the  defendant  justifies,  the  former  is  regarded  as  if  placed  on  trial 
for  such  act  and  entitled  to  have  the  plea  and  the  evidence  to  be 
of  the  same  general  character  as  to  particularity  and  condusiveneM 
as  if  he  were  proceeded  against  by  indictment  or  other  authorized 
accusation  of  crime.  Sometimes  the  justification  is  by  plea,  and 
eometimes,  under  the  practice  prevailing  in  the  particular  state,  the 
defendant  is  permitted  to  plead  the  general  issue,  and  thereafter  to 
give  notice  in  writing  of  special  matters  intended  to  be  relied  upon 
by  him  as  a  defense:  Newell  on  Slander  and  Libel,  2d  ed.,  600;  Burg- 
win  V.  Babcook,  11  IlL  28;  Shepard  v.  Merrill,  18  Johns.  476.    '<At 


Jan.  1902.]  Ruthebfobd  v.  Paddock.  297 

tile  eomraon  law  the  plea  of  jostification  must  be  pleaded  with  the 
neatest  precision.  It  ought  to  state  the  charge  with  the  same 
degree  of  certainty  and  precisioB  as  is  required  in  an  indictment. 
The  object  of  the  plea  is  to  give  the  plaintiff,  who  is  in  truth  an 
aeeused  }>er8on,  the  means  of  knowing  what  are  the  matters  alleged 
against  him.  It  is  said  that  he  must  know  them  already;  it  is 
trne  that  he  knows  his  own  conduct,  but  he  does  not  know  what 
asother  means  to  impute  to  him.  It  is  because  the  acts  charged 
against  the  plaintiff  are  within  the  peculiar  knowledge  of  the  defend- 
ant that  he  ought  to  specify  them  in  his  plea":  Newell  on  Slander 
and  Libel,  2d  ed.,  654. 

2.   When  tlie  diarge  is  Spsdilc  In  Its  Dstails.— The  rule  as  stated 
above  did  not,   however,  even  at  the  common  law,  apply,  except 
when  the  defamatory  matter  involved  a  conclusion  or  inference,  and 
banee  the  plaintiff  could  not  know  from  the  accusation  alone  what 
wrongful  acts  were  thereby  imputed  to  him  and  were  intended  to  ba 
affirmed  by  the  justification.    If  the  defamatory  matter  consists  of 
a  statement  of  special  facts  in  detail,  and  the  plea  declares  in 
rabstance  that  such  statement  is  true,  it  is  suflcient.    This  is  be* 
cause  the  charge,  as  made  by  the  plaintiff's  declaration,  shows  the 
precise  facts  of  which  he  has  been  accused,  and  the  plea  affirms  the 
existence  of   such  facts,  and  the  two,  taken  together,  inform  the 
plaintiff  as  fully  as  any  pleading  can  of  the  acts  which  will  be 
sought  to  be  proved  against  him:  Swan  v.  Thompson,  124  Cal.  198, 
56  Pae,  878;  Hauger  v.  Benua,  153  Ind.  642,  53  N.  £.  942;  Campbell 
V.  Irwin,  146  Ind.  681,  45  N.  E.  810;  Dover  v.  Clark,  44  Kan.  745,  95 
Pae.  205;Maretzek  v.  Cauldwell,  2  Bob.  715;  Stark  v.  Knapp  &  Co., 
180  Mo.  529,  61  8.  W.  669;  Kingsley  v.  Kingsley,  79  Hun,  569,  29  N. 
Y.  Snpp.  921;  Sweeney  v.  Baker,  18  W.  Va.  158,  31  Am.  Bep.  757. 
''Where  the  defamatory  matter  complained  of  is  in  general  terms, 
as  that  plaintiff  is  a  murderer,  thief,  or  other  imputation,  which 
is  a  mere  conclusion  or  inference  of  facts,  the  particular  facts  relied 
opon  warranting  the  inference  charged  must  be  set  forth  specifically 
in  a  plea  of  justification,  so  that  the  plaintiff  may  be  advised  of  the 
matter  that  he  will  be  called  upon  to  meet.   But  when  the  defamatory 
natter  charged  is  itself  specific,  it  is  sufficient  to  allege  generally 
t]iat  the  charge  is  true":  Stark  v.  Knapp  ft  Co.,  160  Mo.  529,  61 
fl.  W.  669.    This  rule  was  applied  when  "the  substance  of  the  de- 
famatory matter  charged  was  that  the  plaintiff,  as  the  representative 
of  a  eormpt  combine  of  the  school  board,  and  the  leader  of  a  lobby 
composed  of  contractors  and  go-betweens,  who  have  fattened  on  the 
cormption  of  the  present  system,  and  are  working  for  a  continua- 
tion of  fat  opportunities,  is  a  malign  influence,  working  at  Jefferson 
City  to  defeat  the  civic  federation  school  bill  in  the  senate":  Stark 
v.  Knapp  &  Co.,  160  Mo.  529,  61  S.  W.  669.    Also,  when  the  charge 
against  the  plaintiff  was  that  at  the  time  and  place  specified  he  pur- 
chased and  killed  a  steer  that  to  all  appearances  would  have  died 
of  its  injuries  before  night,  butchered  it,  dressed  the  meat,  and  took 


298  American  Statb  Rbportb,  Vol.  91.  [ 

it  to  his  market,  and  there  offered  it  for  sale  to  his  eustomers: 
▼.  Young,  78  Tex.  344,  14  8.  W.  796.  Also,  when  the  charge 
that  a  little  girl  lived  with  plaintiff's  family,  that  they  tired  of  her, 
and  at  a  time  and  place  specified,  told  her  "to  get  out  and  go> 
somewhere— they  did  not  care  where— and  never  come  back  agaia," 
but  not  to  go  near  sheepherders  or  they  would  kill  her,  and  with  this 
fear  in  her  heart,  she  wandered  about  on  the  desert  for  two  days 
and  nights,  where  she  was  found  by  a  sheepherder,  and  begged 
piteonsly  for  her  life,  thinking  she  would  be  killed,  and  that  vrhea 
found  she  was  in  an  emaciated  condition,  having  had  nothing  to  eafc 
for  about  three  days,  and  being  almost  famished  for  water:  Feaater- 
Biaker  v.  Tribune  P.  Co.,  12  Utah,  439,  43  Pac.  112. 

8.    When  the  Charge  InTolres  a  Mere  Opinion  or  Oondnsloiii.^ 
Ob  the  other  hand,  if,  from  the  form  of  the  libelous  or  slanderona 
charge,  the  plaintiff  or  the  court  may  reasonably  be  in  doubt  re- 
specting the  crime  or  other  wrongful  or  improper  act  attributed  te 
him,  a  plea  in  justification  which  merely  denies  the  falsenesa,   or 
affirms  the  truth,   of   the   charge  is  insufficient.    It   must   proeeed 
affirmatively  to  point  out  the  act  of  which  the  plaintiff  is  claimed  t» 
have  been  guilty:  De  Armond  v.  Armstrong,  87  Ind.  35;  Waehter  t. 
Quenzer,  29  N.  Y.  547;  Knox  ▼.  Commercial  Agency,  40  Hun,  50A» 
If  it  charges  plaintiff  generally  with  having  committed   a   erime^ 
without  designating  the  details,  then  the  justification  must  allege  the 
existence  of  facts  from  which  the  inference  necessarily  follows  that 
plaintiff  was  guilty  of  such  crime,  or  it  must  charge  the  crime  ia 
language  which  would  be  sufficient  in  an  indictment  or  other  erimiaal 
accusation:    Atterbury   v.   Powell,    29   Mo.   429,   77   Am.   Bee.    570. 
Hence,  if  the  defamatory  words  charge  plaintiff  with  being  a  ''beef 
thief,  hog  thief,  and  a  sheep  thief,"  a  justification  stating  that  the 
plaintiff  had  stolen  beef,  hogs,  and  sheep  is  insufficient,  because  it 
gives  no  notice  to  the  plaintiff  of  the  time  and  place  intended  to  be 
proved,  of  the  person  to  whom  the  beef,  hogs,  and  sheep  belonged^ 
nor  whether  stolen  at  one  time  and  place,  or  at  different  times  aad 
places:  Nail  v.  Hill,  7  Tenn.  (Peck.)    325.    So  if  the  charge  ia  that 
the  plaintiff  swore  to  a  lie  on  filing  some  bills  in  the  chancery  courts 
a  justification  stating  that  he  lied  in  swearing  to  a  bill,  whieh  ia 
sufficiently    described,    by    stating,    among   other    things,    that    the 
estate  of  John  Steele  owed  no  debts,  "when  the  plaintiff  knew  at 
the  time  he  took  such  oath,  in  swearing  to  such  bill,  that  said  estate 
was  indebted,"  the  specification  in  the  justification  is  "too  vague 
and  uncertain  to  form  an  issue  upon":  Steele  v.  Phillips,  29  Tena.. 
(10  Humph.)     461.    If   the   charge   was   that   plaintiff,   a   minister^ 
"had  been  egged  out  of  his  own  county,  had  parted  a  man  and  wife^ 
and  would  have  better  clothes  and  appear  more  decent  if  he  did  aot 
spend  his  time  running  after  so  many  dirty  bitches,  and  spend  his 
money  riding  on  the  tfnin  with  them,''  a  justification  in  whieh  the 
defendant  states  that  these  matters  were  told  to  him,  and  are  tme^ 
is  materially  defective,  because  it  does  not  give  any  particulars  of 


Jan.  1902.]  Ruthbbfobd  v.  Paddock.  299 

timey  plaee^  or  occasion:  Amot  t.  Stockert,  47  W.  Ya.  109,  34  8.  E» 
821. 

4.  niustratioxis  of  JnstiiicatioiiB  Wliere  Crime  has  been  Oliarged. — 
Where  the  defamatory  matter  amounts  to  a  charge  that  the  plain- 
tiff had  committed  a  specific  crime^  a  general  averment  that  the 
words  used  were  true  is  ordinarily,  as  we  have  seen,  not  sufficient. 
The  charge  may,  however,  be  so  specific  that  a  mere  averment  in  the 
justification  that  it  is  true  gives  plaintiff  sufficient  notice  of  what 
win  be  sought  to  be  proved  against  him.  Thus,  if  the  charge  is,, 
that  the  plaintiff  signed  defendant's  name  to  a  note  without  hia 
pemdision,  a  plea  that  the  plaintiff  did  so  sign  such  name,  giving 
the  time  and  place  of  signing,  is  good:  Creelman  ▼.  Marks,  7  Blackf^ 
281. 

A  charge  of  being  a  thief  has  been  the  occasion  of  many  prosecu- 
tions for  libel  and  slander.  If  the  charge  is  that  the  plaintiff  stole  a 
specified  article  or  articles,  of  course  there  can  be  no  adequate 
justification  which  charges  him  with  some  other  wrong  or  crime  or  of^ 
stealing  some  other  article:  Eastland  v.  Caldwell,  2  Bibb,  21,  4  Am. 
Dec  6G8;  Kent  v.  Bonzey,  38  Me.  433;  Gardner  v.  Self,  15  Mo.  480; 
Hall  V.  Adkins,  59  Mo.  144.  If  the  charge  is  generally  that  the- 
plaintifT  is  a  thief,  or  a  member  of  a  band  of  thieves,  the  justifica- 
tion must  do  more  than  aver  him  to  be  a  thief  or  a  member  of  a 
band  of  thieves,  and  must  proceed  to  state  the  specific  instances  of 
theft  on  which  the  defendant  relios:  Anonymous,  3  How.  Pr.  406;. 
Kansas  City  S.  Co.  v.  Carlisle,  108  Fed.  344. 

A  charge  that  the  plaintiff  is  a  prostitute  cannot  be  justified  by 
pleading  that  she  is  guilty  of  some  kindred  offense,  such  as  living 
in  the  same  house  with  women  who  are  prostitutes:  Swartzel  v. 
Bey,  3  Kan.  244;  nor  can  the  charge  of  keeping  a  house  of  prostitu- 
tion be  justified  by  the  plea  that  the  plaintiff  had  kept  a  house  in- 
which  lewd  women  were  permitted  to  live:  Eaton  v.  White,  2  Pin. 
42.  A  charge  of  being  a  prostitute  does  not  of  itself  allege  any 
spedfie  act.  Hence,  the  averment  in  the  plea  of  justification  that 
the  charge  Is  true  does  not  sufficiently  advise  plaintiff  of  the 
evidence  which  she  must  meet.  Where  the  justification  averred 
that  the  plaintiff  ''was  a  person  of  notorious  bad  character  for 
chastity,  and  that  the  words  and  declarations  as  charged  in  the 
fomplaiut  were  true,  it  wns  held  that  the  justification  was  insufficient, 
because  unfair  to  the  plaintiff,  and  that  "defendant  should  have 
been  held  to  the  allegation  and  proof  of  some  specific  act  or  acts 
of  whoredom  on  the  part  of  the  plaintiff,  in  justification,"  and  it 
was  said  that  "it  is  necessary,  although  the  libel  or  slander  con- 
tain a  general  imputation  upon  the  plnintlff's  character,  that  the^ 
iiiswer  should  state  specific  facts,  showing  in  what  particular  in- 
itanees,  and  in  what  exact  manner,  he  has  misconducted  himself": 
Eonman  ▼.  Brewin,  52  Ind.  140.  The  application  to  cases  of  thi» 
character  of  the  rule  that  specific  acts  must  be  alleged  in  justification 


300  American  State  Bbports^  Vol.  91.  [M; 

is  of  doubtful  propriety,  first,  because  a  specific  act  of  ineontinenej 
does  not  prove  general  porostitution  (Rutherford  ▼.  Paddock,  180  Mai*. 
289,  ante,  p.  282,  62  K.  E.  381),  and  second,  because  the  ehari^e  of 
being  a  prostitute  can  rarely  be  proved  otherwise  than  by  eridenee 
of  general  reputation:  Proctor  ▼.  Houghtaling,  37  Mich.  41. 

A  charge  that  the  plaintiff  is  a  liar  can  be  justified  oxdj  hy  ml- 
ieging  specific  facts,  and  not  by  a  general  averment  of  the  truth 
of  the  charge:  Jones  v.  Cecil,  10  Ark.  592;  and  a  justification  of  a 
charge  that  the  plaintiff  had  been  guilty  of  perjury  most  l>e  as 
complect e  as  an  indictment  for  the  same  offense,  and  must  not  omit 
any  essential  of  the  crime:  McGough  v.  Rhodes,  12  Ark.  625;  Tilsom 
T.  Clark,  4S  Barb.  178.  Though  a  justification  sufficiently  alleges 
the  taking  of  the  oath,  its  materiality,  and  that  it  was  false,  it 
must  proceed  further  and  show  that  it  was  willfully  and  eoTmptlj 
false,  for  merely  swearing  to  an  untruth  does  not  constitute  perjury- 
Downey  ▼.  Dillon,  62  Ind.  442.  Probably  an  exception  to  the  gen- 
eral rule  arises  when  the  charge  alleged  in  the  declaration  la  so 
epecifie  that  its  reiteration  by  the  plea  of  justification  sufiSeiently 
advisee  the  plaintiff  of  the  testimony  to  be  produced  against  kim, 
and  thereby  prevents  his  being  surprised  by  its  production:  Starr 
▼.  Harrington,  1  Ind.  515;  Lewis  v.  Black,  27  Miss.  425. 

5.  Partial  Jostiflcation. — Though  it  cannot  constitute  a  complete 
defense,  partial  justification  may  and  ought  to  be  pleaded  wheneTsr 
"defendant  wishes  to  deny  the  use  of  some  part  only  of  the  defama- 
tory  words  attributed  to  him     or  to  show  that  some  part  only  of 
the  defamatory  charge  made  by  him  is  true:  Stacy  v.  Portland  P. 
Oo.,  68  Me.  279;  Ames  ▼.  Hazard^  6  B.  I.  335;  Nott  v.  Stoddard^ 
38  Vt.  25,   88   Am.   Dec.   633;    Sweeney  v.   Baker,   13   W.  Va.    158^ 
31   Am.   Bep.    757.    With    respect  to  the    part    of    the   defamatory 
charge  which  the  defendant  seeks  te  justify,  there  is  no  doubt  that 
the  same  rules  apply  to  his  pleading  as  if  the  justification  were  of 
the  whole  charge,  one  of  which  rules  is  that  the  "precise   charge 
must  be  justified,  and  the  whole  of  the  precise  charge":  Jones  ▼. 
Greeley,  25  Fla,  629,  6  South.  448;  Amee  v.  Hazard,  6  E.  I.  335.     We 
find  the  general  statement  made  that  the  defendant  may  plead  the 
general  issue,  and  in  his  notice  of  special  matter  to  be  relied  on  by 
bim  may  specify  any  matter  constituting  a  justification  as  to   any- 
distinct   and    severable    part  of  the    defamatory    charge:    Cloidt    ▼. 
Wallace,  56  lU.  App.  389.    In  another  case  it  is  said  that  "although 
where  there  are  separate  and  distinct  charges  in  the  same  libel,  it 
is  allowable  in  the  same  pleading  or  notice  to  plead  the  general  is- 
«ue  as  to  a  part  and  justify  as  to  the  other  charges,  yet  it  ia  es- 
sential that  the  plea  or  notice  shall  substanially  answer  the  whole 
count  or  ground  of  action  declared  on":  Van  Derveer  v.  SntpheUi 
S  Ohio  St.  293. 

6.  Must  Ctonfess  the  Use  of  the  Defamatory  Words  Jnstilied.— 
It  is  said  that  the  plea  of  justification  necessarily  proceeds  apoa 


Jan.  1902.]  Buthsbfobd  v.  Paddock.  801 

the  theory  that  all  of  the  material  averments  of  the  eomplaint  ar» 
tdmitted:  Over  v.  Schiffling,  102  Ind.  191,  26  N.  E.  91.  This  state- 
Bent  is  not  altogether  eonrect,  for,  as  we  have  shown,  there  may 
he  a  partial  plea  of  justification  whieh  avera  the  truth  of  a  sepa- 
rable part  of  the  defamatory  charge  attributed  to  the  defendant,, 
hat  which  denies  that  he  has  been  guilty  of  uttering  or  publishing^ 
the  balance,  but  it  is  true  that  the  precedents  all  indicate  that  in 
•0  far  as  the  defendant  wishes  to  justify  any  part  of  the  defama- 
tory charge  made  by  him,  the  plea  should  be  by  way  of  confession 
and  avoidance — that  is  to  say,  he  should  confess  the  use  by  him 
of  the  words  which  he  intends  to  justify,  and  then  should  proceed 
to  aver  that  they  are  true:  Davis  v.  Mathews,  2  Ohio,  257;  Folsom 
V.  Brawn,  25  N.  H.  115;  Williama  v.  McEee,  98  '^enn.  139,  38  a 
W.  730.  It  has  generally  been  assumed  that  the  various  codes  of 
procedure  have  not  in  this  respect  changed  the  rules  of  pleading: 
Anibal  v.  Hunter,  6  How.  Pr.  255;  Goodman  v.  Bobb,  41  Hun,  605. 
g.  totaling  Justiflcation  with  Inconsistent  Pleas.— As  we  hav» 
just  shown,  the  common-law  rule  uponi  the  subject  was  that  the  plea 
of  justification  is  in  the  nature  of  confession  and  avoidance,  an«l 
that  the  defendant  must,  therefore,  as  a  part  of  his  plea  of  justifica- 
tion, admit  the  defamatory  charge  attributed  to  him,  or  some  sev- 
erable and  distinct  part  thereof.  But  under  the  codes  and  statutea 
of  many  of  the  United  States  a  defendant  is  conceded  the  privilego 
of  pleading  inconsistent  defenses,  and  the  question  has,  therefore,, 
arisen  whether  this  statutory  rule  extends  to  actions  of  libel  and 
slander.  Perhaps  it  must  be  conceded  that  this  question  is  not 
everywhere  free  from  doubt,  for  there  are  several  decisions  at  least 
assuming  that  the  common-law  rule  upon  the  subjiect  remains  in 
force^  and,  therefore,  that  a  defendant  cannot  in  the  same  answer 
assert  the  apparently  contradictory  defense  that  he  was  not  guilty 
of  the  defamatory  charge,  and  that  it  was  true:  Atterberry  v.  Pow- 
ell, 29  Mo.  i29,  77  Am.  Dec.  679;  Anibal  v.  Hunter,  6  How.  Pr.  255; 
Goodman  v.  Bobb,  41  Hun,  605.  He  cannot,  we  think,  as  we  have 
already  shown,  plead  conditionally  or  contingently  by  alleging  that 
he  did  not  make  the  defamatory  charge,  but  if  it  should  be  proved 
that  he  did  make  it,  it  is  true.  He  may,  however,  interpose  sepa* 
rate  and  distinct  defenses,  the  effect  of  one  being  to  put  the  plaintifT 
on  proof  that  the  defendant  made  the'  defamatory  charge,  and  the 
other  being  to  allow  the  defendant  to  prove  that  such  charge  was 
true,  as  where  he  interposes  a  general  denial  or  a  plea  of  not  guilty 
and  also  a  separate  plea  in  justification  of  the  charge,  or  of  some 
separable  part  thereof:  Wright  v.  Lindsay,  20  Ala.  428;  Corbley  v. 
Wilson,  71  HI.  209,  22  Am.  Bep.  98;  Kinyon  v.  Palmer,  18  Iowa,. 
377;  Weston  v.  Lumley,  33  Ind.  486;  Pay  son  v.  Macomber,  8  Allen, 
69;  Pallet  v.  Sargent,  36  N.  H.  496;  Stiles  v.  Gomstock,  9  How. 
Pr,  48;  HoUenbeck  v.  Clow,  9  How.  Pr.  289;  Buhler  y.  Wentworth, 
17  Barb.  649;  Kiagsley  v.  Kingsley,  79  Hnn,  571,  29  N.  Y.  Supp. 
921;  Smith  v.  Smith,  39  Pa.  St.  441;  Peters  v.  Ulmer,  74  Pa.  SU 


302  American  Statb  Bbports,  Vol.  91. 

402;  Upton  v.  Hume,  24  Or.  420,  41  Am.  St.  Bep.  863,  83  Pae.  8M: 
Young  V.  Kuhn,  71  Tex.  645,  9  S.  W.  860;  Kelly  ▼.  Craig,  9  Hnmpk. 
:215;  Murphy  v.  Carter,  1  Utah,  17. 

h.    Effect  of  In  Aggrayating  Damages  or  as  Evidence  of  M«llr?t. 
There  is  peril  to  the  defendant  in  his  plea  of  justification.     It   im, 
to  a  certain    extent,   a  repetition   of   the   slander   or  libel,    nnd    at 
•sM  events,  unless  sustained,  may  be  considered  by  the  jury  as  a^ 
gravating  damages:   Bobinson  ▼.  Drummond,  24  Ala.  174;    Pool   ▼• 
DeverSy  30  Ala.  672;  Bichardson  ▼.  Boberts,   23   Ok.  215;  I>owniii^ 
IT.  Brown,  3  Colo.  671;  Fero  ▼.  Bnscoe,  4  N.  Y.  162;  Shartle  ▼.  Hnt^li- 
inson,  3  Or.  337;  Updegrove  ▼.  Zimmerman,  13  Pa.  8t.  619;   Bnrelc- 
halter  v.  Coward,  16  S.  C.  435;  Finch  t.  Finch,  21  8.  C.  S42;   be- 
cause it  is  evidence  of  actual  or  expressed  and  continued    msdiee: 
Jackson  v.  Stetson,  15  Mass  48;  Doss  v.  Jones,  5  How.  (Mies.)   158; 
Gorman  v.  Sutton,  32  Pa.  St.  247;  Wilson  ▼.  Nations,  5  Yorg.   211; 
Yliet  V.  Bowe,  1  Pinn.   (Wis.)   413.    The  jury  cannot  be   required 
to  give  any  conclusive  or  special  effect  to  it.    It  must  be  regarded 
as  a  matter  of  evidence  and  considered  in  connection  with  the  other 
•evidence  properly  submitted,  for  the  purpose  of  considering  whether 
the  defendant  was  actuated  by  malice  and  in  determining  the  amoimt 
•of  damages  which  they  should  award  against  him.    In  many  of  the 
states  the  common  law  has  been  much  modified.    Thus,  in  Calif  oraiay 
upeaking  of  a  justification  not  sustained  by  the  evidence,  the  eonrt 
-said:  "If  the  defendant  willfully  aUeged  the  existence  of  each  |Rre> 
tended  facts,  not  believing  or  having  no  reason  to  believe  them  to 
be  true,  this  might  properly  be  considered  by  the  jury  as  shcwiaf 
a  continuing  and  express  malice.    The  defendant  in  an  action   ^d 
Blander  cannot  abuse  his  privilege  of  pleading  any  appropriate  mat- 
ter as  a  bar,  or  in  mitigation   of   damages,  by  spreading    on    the 
record  a  renewed,   wanton,   and   malicious   assault  upon  the  reputa- 
tion of  his  adversary":  Chamberlin  v.  Yanee,  51  Cal.  75.    In   Con- 
necticut "the  rule  seems  to  be  this:  If  the  defendant  malictoiuly 
and  for   the  purpose    of    spreading    and    perpetuating    a    alaader 
pleads    the    truth    of   the  words    in    justification,    and    fails     to 
prove  it,  it  may  be  regarded  as  evidence  proving,  or  tending   to 
prove,  malice  in  speaking  the  words  originally;  and  might  tend  in- 
directly to  increase  the  damages  for  speaking  the  slanderous  wrords 
charged  in  the  declaration  by  showing  the  degree  of  malice  in  speak- 
ing them.    It  is  a  circumstance  to  be  considered  in  estimating  dam- 
ages for  the  cause  of  action  alleged  in  the  declaration  and  proved, 
though   it   is  not   of   itself   a   cause   for   which    damages   may    be 
directly  assessed  in  that  suit":  Ward  v.  Dick,  47  Conn.  300,  36  Am. 
Bep.   75.    In  Georgia   "the  necessary  legal   effect  of   every   striet 
plea  of  justification  in  actions  of  slander  not  involving  privileged 
communications  is  to  reaffirm  the  charge  or  charges  justified,   and 
aver  the  truth  of  the  words  spoken  if  they  impute  a  crime  paniafa- 
able  in  law.    Such  reaffirmation  may  or  may  not  be  an  aggravation 
-of  the  original  slander.    Whether  it  is  so  or  not  is  to  be  determiaed 


Jan.  1902.]  Ruthebfobd  v.  Paddock.  803 

hj  tbe  jury.  When  the  plea  is  filed  in  good  faith  and  under  an 
bmiett  expectation  of  being  able  to  establish  the  alleged  jostifiea- 
tion,  the  jury  riionld  consider  it  warranted,  and  add  nothing  to  the 
damages  on  account  of  it,  although  the  proof  should  fall  short  of 
establishing  it.  On  the  other  hand,  if  they  should  believe  it  un- 
warranted and  unfounded^  they  ought  to  treat  it  as  an  aggravation 
and  as  cause' for  augmenting  the  damages":  Henderson  v.  Fox,  83 
Gs.  233,  9  8.  E.  889.  In  Illinois,  "where  a  plea  of  justification  is 
filed  without  an  honest  belief  that  it  can  be  sustained,  it  only  ag- 
gravatea  the  slander— it  is  a  new  publication  of  a  defamation,  and 
flhenld,  therefore,  aggravate  the  damages.  On  the  contrary,  how- 
ever, if  the  plea  is  filed  in  good  faith,  it  should  never  produce  that 
result.  And  to  determine  that  question  the  jury  should  consider 
all  of  the  eireumstanees  under  which  the  plea  was  filed'':  Freeman 
V.  Tiasley,  50  OL  497;  Hawver  v.  Hawrer,  78  ID.  412.  In  this  state 
a  trial  court  inatmcted  a  jury  that  the  defense  of  justification,  when 
net  sustained  by  the  evidence^  was  an  odious  one.  This  was  held 
to  be  erroneous^  the  appellate  court  saying:  "Our  statute  confers 
upon  every  defendant  to  an  action  the  right  to  plead  as  many  mat* 
ters  of  fact  in  several  pleas  as  he  may  deem  neccessary  for  his 
defense.  This  is  always  the  law  in  this  state.  Being  a  right  se- 
cnred  by  law,  it  cannot  be  odious  to  interpose  a  plea  of  justifica- 
tion if  it  is  not  sustained.  Such  is  not  the  law.  So  instructing  the 
jory  could  not  but  have  influenced  them  against  the  defendant":  Cor- 
hley  V.  Wilson,  71  IlL  209,  22  Am.  Rep.  98.  In  Indiana,  where  a 
ptea  of  justification  was  interposed  and  some  evidence  given  to  sup- 
port it,  an  instruction  was  thereupon  given  that  if  the  defendant 
had  failed  to  prove  that  his  plea  was  true,  this  was  a  great  ag- 
gravation of  the  slander,  and  that  the  jury  should  take  it  into 
eeiaideration  in  assessing  damages  against  the  defendant,  the  ap- 
pellate court  declared  the  instruction  to  be  erroneous,  saying  that 
it  did  not  necessarily  follow  that  justification  not  fully  proved  should 
tggravate  the  damages,  that  though  the  plea  was  not  entirely 
proved,  yet  if  the  evidence  under  it  showed  that  the  defendant  had 
naaon  to  believe  from  the  plaintiff's  conduct  that  the  charge  was 
tme,  then  the  damage  could  not  be  increased  in  consequence  of 
the  plea:  Byrket  v.  Monohon,  7  Blackf.  83,  41  Am.  Dec  212;  Shank 
V.  Case,  1  Ind.  170.  Later,  in  the  same  state,  the  general  posi- 
tion was  taken  and  maintained  that,  as  the  statute  authorized  de- 
fendant to  file  as  many  pleas  as  he  thought  proper,  what  he  said 
in  one  plea  ought  to  have  no  operation  against  him  on  the  trial 
of  an  issue  on  any  other  plea;  that  each  plea  should  stand  entirely 
independent  of  the  others;  and  that  an  issue  of  fact  in  any  one 
of  the  pleas  should  be  tried  and  the  damages  assessed  in  the  same 
manner  in  which  they  would  have  been  had  there  been  no  other 
plea:  Murphy  v.  Stout,  1  Ind.  372;  Swails  v.  Butcher,  2  Ind.  84. 
In  Iowa,  under  a  statute  declaring  that  in  actions  of  slander  and 
Hbel  the  defendant  might  in  his  answer  allege  both  the  truth  of 


804  American  State  Beports^  Vol.  91.  [ICaMr 


tbe  matter  charged  at  defamatory  and  any  mitigating  cireomataiK 
snlBcient  in  law  to  rednee  the  amount  of  the  damage,  or   nai^t 
allege  either  one  of  them  without  the  other,  and  that  the  allegm- 
tion  of  the  truth  of  the  matter  charged  should  not,  if  ha  tmii  t» 
establish   it,  be   determined   in  itself  proof  of  the  malice    of   saek 
words,  but  that  the  jury  should  decide  upon  the  whole  ease  whetkor 
such  defense  was  or  was  not  made  with  malicious  intent,  and  'whether 
he  proved  the  justification  or  not,  he  might  give  in  evidence    the 
mitigating  circumstances,  but  that  each  defense  must  be  separately 
stated  and  numbered,  the  court  held  that  the  failure  to  snetain  a. 
justification  would  not  of  itself  be  deemed  proof  of  malice;  Kinyo» 
▼.  Palmer,  18  Iowa,  377.    So  under  the  statute  of  Michigan  **tke 
mere  failure  to  prove  a  justification  is  not  suiBcient  to  create  an 
inference  of  malice  from  the  plea  or  notice.    If  there  is  aetnal  g^ood 
faith  in  attempting  to  prove  the  justification  and  the  testimony  tmirly 
tends  to  prove  the  charge,  the  defendant  is  not  now  held  enlpable 
for  the  attempt,  though  it  fails.    But  no  one  can  be  justified   in 
repeating  a  slander  unless  upon  such  evidence  as  legitimately  tend* 
to  establish  its  truth,  although  it  may  be  rebutted  or  fall  short  of 
absolute   certainty.    And   if  the  justification  ia  in  fact  only  eolor- 
able,  and  the  testimony  is  only  introduced  for  the  purpose  of  cast* 
ing  suspicions  which  it  has  no  tendency  to  confirm,  and  which  eould 
not  establish  the  defense  under  color  of  which  it  is  introduced,  maeh 
a  course  would  not  be  deserving  of  favor  and  might  in  some  rnocs 
be   found    malicious":    I^octor   v.    Hough taling,    37    Mich.    41«     In 
New  Hampshire,  ''if  the  defendant,  under  color  of  a  justification, 
seeks  to  repeat  or  perpetuate  his  slander,  it  is  evidence  of  malice 
which  the  jury  may  consider  against  him,  but  if  he  believed  vrhea 
he  spoke  the  words  that  they  were  true,  and  makes  a  bona  fide  de- 
fense to  the  action  under  a  plea  of  justification,  we  do  not  see  why 
he  should  make  it  under  the  penalty  of  being  punished  by  increased 
damages  if  he  should  fail  to  satisfy  the  jury  of  the  fact  any  more 
than  in  another  case  where  a  defendant  does  not  succeed  in  a  bona 
fide  defense.    We  think  it  should  be  left  to  the  jury  to  decide  from 
the  weight  and  character  of  the  evidence  introduced  in  support  of 
the  plea  and  the  manner  and  spirit  in  which  the  defense  is  con- 
ducted, whether  the  real  object  of  the  plea  in  evidence  was  to  de- 
fend the  action  with  a  reasonable  expectation  of  success,  or  to  re* 
peat  the  original  slander.    This,  we  think,  is  the  true  rule,  and  un- 
der it  the  defendant  cannot  be  embarrassed  in  making  a  fair  and 
hones^  defense  to  the  action  under  a  plea  justifying  the  words  and 
offering   competent    evidence  in  mitigation    of    damages   under    the 
general,  issue":    Pallet    v.  Sargent,  36  N.  H.  496.    In   New    York 
there  is  no  doubt  that  in  all  cases  iji  which  justification  is  pleaded 
and  there  is  no  attempt  to  prove  it,  that  this  cannot  be  regarded 
as  showing  malice  conclusively,  but  it  is  in  every  case  proper  to  be 
consideired  by  the  jury,  and  will  justify  them  in  reaching  the  eon- 
elusion  that  the  defendant  was  actuated  by  malice:  Klinck  v.  Colby^ 


Jan.  1902.]  Ruthebfobd  v.  Paddock.  805 

46  K.  Y.  427,  7  Am.  Bep.  360;  Distin  ▼.  Bose,  69  N.  Y.  122;  Marx 
T.  IVesB  Pab.  Co.,  134  N.  Y.  561,  31  N.  E.  918.    If  tlie  defendant 
tuiM  to  establish  the  justification  set  up  in  his  answer,  the  jury  may 
determine  whether  it  was  set  up  in  good  or  bad  faith,  and  if  they 
find  it  was  set  up  in  bad  faith,  they  may  take  it  into  considerationr 
in  estimating  the  damages  to  be  awarded  by  thepa:  Holmes  ▼.  Jones,. 
121  N.  Y.  461,  24  N.  E.  701.    In  Ohio,  views  expressed  by  the  su- 
preme eourt  of  Illinois  have  been  considered  and  the  following  rule 
formulated:  "When,  therefore,  in  an  action  of  slander  the  truth  of 
the  words  spoken  is  pleaded  in  good  faith  and  under  an  honest  be- 
Kef  in  their  truth  and  with  reasonable  ground  for  such  belief,  the 
plaintiiT  is  not,  by  reason  of  such  plea  or  the  failure  of  proof  of 
truth,  entitled  to  exemplary  damages;  nor  should  it  be  regarded  a» 
an  aggravation  beyond  the  real  inji^ry  sustained   by  the  plaintiff. 
Tbe  motive  with  which  the  justification  was  pleaded  is  for  the  con- 
rideration  of  the  jury.    If  they  find  that  it  was  done  with  intention 
to  injure  the  plaintiff,  they  may  rightfully  consider  it  in  aggrava- 
tion of  damages;  but  where  no  wrongful  intention  is  found,  there 
ii  no  just  ground  for  the  punishment  of  the  defendant:  Bayner  v.. 
Kinney,  14  Ohio  St.  283.    A  trial  court  in  Oregon  having  iuBtructed 
that  if  the  plea  of  the  truth  of  the  charge  in  justification  is  not  sus- 
tained by  the  evidence,  "the  jury  may  consider  that  as  a  repetition 
and  republication  of  the  original  charge,  and  consider  the  same  in 
aggravation  in  assessing  damages  and  as  evidence  of  malice  on  the 
part  of  the  defendant  against  the  plaintiff,"  such  instruction  was 
regarded  as  reversible  error  under  section  91  of  the  code  of  that 
itate,  declaring  that  the  defendant  might  in  his  answer  allege  the 
truth  of  the  matter  charged,  and  any  mitigating  circumstances  to 
reduce  the  damages,  and  whether  he  prove  the  justification  or  not, 
■ight  give  in  evidence  the  mitigating  circumstances, '  the  appellate 
eoort  saying:    "It   will    depend   upon    the  motive  with   which    the 
plea  was  interposed  and  the  good  faith  of  the  defendant.    If,  un- 
dsr  the  color  of  justification,  the  defendant  seeks  to  reiterate  and 
parpetuate  hia  slander,  it  may  be  considered  by  the  jury  as  evidence 
of  malice  and  in  aggravation  of  damages;   but  where  the  plea  ia 
Bade  in.  good  faith,  and  all  that  can  be  said  is  that  he  has  failed 
to  fully  support  it  by  competent  proof,  we  do  not  see  the  justice 
of  applying   a   rule   to   him   not   applicable  to  other   litigants    who 
happen  to  fail  in  a  bona  fide  defense '':  Upton  v.  Hume,  24  Or.  420, 
41  Am.  St.  Bep.  363,  33  Pae.  810.    In  Texas  where  the  statute  au- 
thorises a  defendant  to  interpose  as  many  defenses  as  to  him  may 
Mem  necessary  and  which  are  peirtinent  to  the  cause,  it  is  held  that 
there  can  be  no  qualification  of  his  right  by  holding  his  unsustained 
plea  of  justification  to  be  evidence  of  maUce:   Express  P.  Co.  v. 
Gopelaad,  64  Tex.  864;  and  it  i%  therefore,  not  admissible  on  the 
trial  of  the  cause  for  that  purpoae:  Young  ▼.  Knhii,  71  Tex.  646,. 
»  &  W.  860. 

Ail  St  Bfl»w,  YoL  Hr-SO 


306  Ambbicam  State  Bbpobts,  Vol.  91. 

L    Withdrawal  of  tbo  Plea.— After  the  defendant  hat  closed   bis 
case  offering  no  evidence  in  support  of  the  plea  of  jnetifieation,  it 
is  said  to  be  too  late  for  him  to  withdraw  it,  and  the  plaintiff  hmm 
the  right  to  haye  it  considered  by  the  jury  in  aggravation  of  dmnt- 
ftgea^  Lea  v.  Bobertson,  1  Stew.  138;  and  a  like  result  must  follow^ 
though  the  plea  ia  Withdrawn  by  the  consent  of  the  court,  if  it  ^wsa 
not  withdrawn  until  after  the  plaintiff  has  closed  his  ease  and  the 
notice  of  the  plea  of  justification  had  been  read  to  the  jury:  Beasley 
T.  Meigs,  16  HL  139.    In  Illinois,  it  has  been  held  that  the  defend- 
ant, when  the  ease  was  called  for  trial,  has  an  absolute   right   to 
withdraw  his  plea  of  justification,  and  that  it  is  error  in  the  eoart 
to  deny  the  exereise  of  such  right,  that  the  case  did  not  call  for  mmy 
determination  of  the  question  as  to  whether  the  withdrawsii  of  the 
plea  by  the  defendant,  had  it  been  permitted,  would  have  wholly 
relieved  him  from  the  eonsequeneee  of  having  interposed  it:    Fits- 
gerald  v.  Furgeson,  26  HL  138.    In  California^  it  has  been  decided 
that  if  the  defendant,  by  permission  of  the  court,  withdraws   his 
plea  and  files  an  answer  omitting  all    the    objectionable     matter, 
that  the  plaintiff  eaiihot  thereafter  show  that  such  justificstioA  had 
been  pleaded  and  relied  upon  at  the  former  trial:  Morris  w, 
man,  68  GaL  109,  8  Pao.   799.    Under  the  practise  in  Tennt 
the  defense  interposes  what  is  called  a  short  plea,  oonsiatin^  mersly 
of  the  word  "justification.''    This  plea  should  be  treated  as  a  nul- 
lity and  disregarded,  and  if  it  is  withdrawn  formally,  it  is  improper 
for  the  court,  because  of  any  subsequently  occurring  event,  to 
mit  it  to  be  read  to  the  jury  for  the  purpose  of  aggravating 
ages:  Shirley  v.  Keathy,  4  Cold.  29. 

VL    Evidence  of  JostlflcatioiL 

a.  Burden  of  Proof.— It  is  an  undoubted  rule  that  the  plaintiff 
need  only  show  the  utterance  or  publication  by  defendant  of  the 
defamatory  matter  attributed  to  him.  It  will  be  presumed  prinsa 
facie  not  to  be  true,  and  the  plaintiff  is,  therefore,  under  no  obligs- 
tion  to  offer  any  evidence  of  its  falseness.  Whenever  justification 
is  pleaded,  the  burden  of  proof  is  upon  the  defendant,  and  he  is^ 
therefore,  if  this  is  the  only  issue  presented  by  the  pleadings,  placed 
with  respect  to  him  in  the  attitude  of  a  plaintiff  or  affllrmer,  and 
is  entitled  to  the  opening  and  dosing:  Bansome  v.  Christian,  66  Ga. 
351;  TuU  V.  David,  27  Ind.  377;  Heilman  v.  Shanklin,  60  Ind.  424; 
Stith  V.  FuUinwider,  40  Kan.  73,  19  Pac  314;  Finley  v.  Widner,  112 
Mich.  230,  70  N.  W.  433;  Nelson  v.  Wallace,  48  Mo.  App.  198;  dark 
▼.  Bohms  (Tex.  Civ.  App.),  37  S.  W.  347. 

b.    The  Degree  or  Amount  of  Proof  Beqnired. 

1.  In  Oivll  Oases. — If  a  defamatory  charge  does  not  impute  te 
the  plaintiff  the  commission  of  a  crime,  we  apprehend  that  there  ia 
nowhere  any  doubt  that  the  defendant  can  sustain  hia  plea  of  jna-. 
tification  by  producing  a  preponderance  of  evidence  in  his  favor. 
In  the  majority  of  the  eases,  however,  the  defamatory  charge  doea 


Jan.  1902.]  Rutherford  v.  Paddock.  807 

impnte  to  the  plaintiff  the  commission  of  a  erime,  and  under  a  plea 
at  justification  he  is  in  a  certain  sense  placed  on  trial  for  the  crime, 
and  the  sustaining  of  the  plea,  while  it  cannot  expose  him  to  pnnish- 
menty  must  be  nearly  as  derogatory  to  his  reputation  as  if  he  had 
i>6en  {woseeuted  and  found  guilty  of  the  erime  ehaxged  against  him. 
In  a  criminal  prosecution  he  would  be  entitled  to  an  instruotion  to 
the  jury  to  find  him  not  guilty  unless,  from  the  evidence,  they  were 
satisfied  of  his  guilt  beyond  a  reasonable  doubt.  There  are  many 
decisions  holding  such  to  be  the  rale  in  a  ciTli  aetion.  Upon  this 
sabjeet  the  decisions  in  the  different  states  axe  by  no  means  har- 
monious, and  there  would  be  no  difficulty,  in  some  instances,  in 
showing  a  like  want  of  harmony  between  the  courts  of  final  resort 
in  the  same  state.  The  following  affirm  that  the  defendant  mnst 
either  produce  a  record  of  the  plaintiff's  conviction  of  the  crime 
imputed  to  him,  or  must  introduce  competent  evidence  from  which  the 
jury  are  satisfied  of  the  plaintiff's  guilt  beyond  a  reasonable  doubt: 
Williams  y.  Gunnels,  66  Ga.  521;  Crotty  y.  Morrissey,  40  DL  App. 
477;  Corbley  v.  Wilson,  71  BL  209,  22  Am.  Bep.  08;  Wonderly  y. 
Nokes,  8  Blaekf.  589;  Hutts  y.  Hutts,  62  Ind.  214;  Fowler  y.  Wal- 
Itee^  131  Ind.  347,  31  N.  E.  63;  Wintrode  v.  Benbarger,  150  Ind.  556, 
30  N.  E.  570;  Fountain  v.  West,  23  Iowa,  9,  92  Am.  Dec.  405;  Ellis 
V.  Lindley,  38  Iowa,  461;  Polston  y.  Lee,  54  Mo.  291;  Burckhalter 
▼.  Coward,  16  8.  C.  435.  The  decisions  in  Georgia,  Iowa,  and 
MisBouri  to  this  effeet  have,  however,  been  overruled  by  the  later 
cases:  Atlanta  Journal  y.  Mayson,  92  Ga.  640,  44  Am.  St.  Bep. 
104^  18  8.  £.  1010;  Biley  y.  Norton,  65  Iowa,  306,  21  N.  W.  649; 
Edwirds  v.  Knapp,  97  Mo.  432,  10  8.  W.  54;  and  statutes  enacted 
It  a  comparatively  recent  day  have,v  in  IlUnois  and  Indiana,  adopted 
the  rule  generally  recognized  in  other  states:  Tunnell  v.  Ferguson, 
17  BL  App.  76;  Wintrode  v.  Benbarger,  150  Ind.  556,  50  N.  E.  570; 
which  is^  that  in  a  civil  action  for  libel  or  slander,  though  the 
defamatory  charge  imputes  to  the  plaintiff  the  commission  of  a 
crime,  irrespective  of  its  dignity,  it  is  sufficient  for  the  defendant 
to  satisfy  the  jury  by  a  preponderance  of  the  evidence  of  the  truth 
ef  his  justification.  He  need  not  in  any  case  prove  the  guilt  of 
the  plaintiff  beyond  a  reasonable  doubt:  Spruil  v.  Cooper,  16  Ala. 
791;  Hearne  v.  De  Toung,  119  Cal.  670,  52  Pac.  150,  499,  958; 
Downing  v.  Brown,  3  Colo.  571;  Anderson  v.  Savannah  P.  Co.,  100 
Qa.  454,  28  a  £.  216;  Tunnell  v.  Ferguson,  17  IlL  App.  76;  Biley 
▼.  Norton,  65  Iowa,  306,  21  N.  W.  649;  Hloan  v.  GUbert,  75  Ky. 
51,  23  Am.  Bep.  708;  Ellis  v.  Bunzell,  60  Me.  209,  11  Am.  Bep.  204; 
ICcBee  v.  Fulton,  47  Md.  403,  28  Am.  Bep.  465;  Peoples  v.  Even- 
faig  News,  61  Mieh.  11,  16  N.  W.  185,  691;  Owen  v.  Dewey,  107 
Kieh.  67,  65  N.  W.  8;  Edwards  v.  Knapp,  97  Mo.  432,  10  S.  W.  54; 
Folsom  y.  Brawn,  25  N.  H.  114;  Kincade  v.  Bradshaw,  10  N.  G. 
6);  Barfield  y.  Britt,  47  N.  C.  41,  62  Am.  Dec.  190;  Bell  y.  Me- 
OfuMSi^  40  Ohio  8t.  20^  48  Am.  Bep.  673;  McOlaugherty  y.  Cooper, 


806  American  State  Bbpobts,  Vol.  91. 

80  W.  Ya.*  318,  19  S.  £.  415;  Kidd  y.  Fleek,  47  Wis.  443,  2  K.   W. 
1121. 

A   further    question  may  arise   concerning   the    character,    mtlur 
than  the  amount,   of  the   evidence.    Thus,  with  respect  to    eertaia 
crimes,  the  law  may  require  on  the  trial  of  a  criminal  prosecution 
mot  merely  that  the  jury  be  satiafied  of  the  defendant's  ^uilt   be- 
yond a  reasonable  doubt,  but,  further,  that  the  evidence  againat  bias 
be  of  a  specified  character,  bm,  for  instance,  in  a  prosecution    for 
perjury,  that  the  guilt  of  the  defendant  be  established  by  the  tee- 
timony  of  two  or  more  witnesses,  or  in  other  prosecutions    that  the 
guilt  of  the  defendant    be   not   established   by   the   uncorroborated 
testimony  of  an    accomplice.    When    the   defamatory   charges    ivas 
that  the  plaintiff  had  been  guilty  of  per  jury,  it  was  seversi  timee 
held  that  the  defendant  could  not  sustain  the  justification  ezeept 
by  producing  the  record  of  the  plaintiff's  conviction  of  that  erime^ 
or  by  proving  his  guilt  by  two  witnesses,  or  by  one  witnees,    and 
the  same  corroborating  circumstances  as  would  have  been 
to  sustain  his  conviction   in    a    criminal    prosecution:    Banaome 
Christian,  56   Ga.  351;   Byrpet  v.  Monohon,  7  Blackf.  88,   41 
Dec.  212;  Bradley  v.  Kennedy,  2  G.  Greene,  231;  Newbit  v.  Statnek^ 
85  Me.  315,  58  Am.  Dec.  706;  Woodbeck  v.  Keller,  6  Cow.  118;  Hop- 
kins V.  Smith,  3  Barb.  599;  Steinman  v.  McWilliams,  6  Pa.  Bt.   170; 
Gorman  v.  Sutton,  32  Pa.  St.  247;   Coulter  v.  Stuart,  2  Yerg.   22& 
The   force   of   these   decisions   ia  much  impaired  by   the   fact    that 
most  of  them  were  pronounced  at  a  comparatively  early  day    and 
by  courts  which  were  inclined  to  regard  the  defendant  as  bound  te 
sustain  his  plea  by  the  same  amount,  as  well  as  by  the  same  char- 
acter, of  evidence  as  was  required  to  sustain  a  conviction  tw  thm 
same  crime. 

2.  In  Criminal  ProsecntionB  the  defendant  is  entitled  to  the  bene- 
fit of  every  reasonable  doubt  arising  upon  the  evidence.  In  other 
words,  he  is  not  to  be  convicted  if  the  jury,  from  all  the  evidence!,. 
entertain  a  reasonable  doubt  of  his  guUt.  This  rule  is  applicable 
to  criminal  prosecutions  for  slander  or  libel.  If  the  jury,  sifter 
hearing  all  the  evidence  offered,  are  not  satisfied  beyond  a  reaeon- 
able  doubt  that  the  prosecuting  witness  was  innocent  of  the  erim» 
attributed  to  him,  then  it  follows  that  they  are  not  satisfied  that 
the  defendant  has  been  guilty  of  slandering  or  Ubeling  aoch  preae- 
cutor,  and  should  return  a  verdict  of  not  guilty:  HcArthur  v.  State^ 
59  Ark.  431,  27  S.  W.  628;  State  v.  Bush,  122  Ind.  42,  28  N.  £.  «77; 
State  V.  Wait,  44  Kan.  310,  24  Pac  354;  Manning  v.  State,  87  Tex. 
Cr.  Eep.  180,  39  S.  W.  118. 

c.  Evidence  Admissible  and  Kecessary  to  Justify  a  OhMCffe  «f 
Crime.— We  shall  not  here  enter  upon  the  consideration  of  the  evi- 
dence necessary  to  prove  the  different  crimes  reqMctiag  which  an 
issue  may  be  formed  by  the  plea  of  justification.  Aa  to  the  ehar^ 
acter  of  the  evidence,  it  is  manifest  that  it  mast  he  the  pane  ae 
would  be  competent  in  a  criminal  prosecution.    It  cannot  eonaiat  of 


Jan.  1902.]  Huntington  v.  Shutb.  809 

^Cftnay  or  evidence  of  general  repute,  where  sueli  evidence  could  not 
properly  be  received  in  criminal  prosecutions:  State  v.  Butmao,  15 
La.  Ann.  166;  Commonwealth  v.  Snelling,  15  Pick.  337;  People  v. 
Jackman,  96  Mich.  269,  55  N.  W.  809;  State  ▼.  White,  29  N.  C. 
<7  Ired.)    180. 

The  plea  of  justification  is  not  sustained  unless  the  evidence 
tends  to  prove  every  element  essential  to  the  existence  of  the  crime 
impnted  to  the  plaintiff:  WeUer  v.  Butler,  15  111.  App.  209;  Seeley 
V.  Blair,  Wright,  683.  It  la  not  suificient  that  the  evidence  es- 
tablishes the  existence  of  suspicious  circumstances  or  of  some  one 
of  several  elements,  which  together  make  up  the  crime  chargedi 
Peterson  ▼.  Murray,  13  Ind.  App.  420,  41  N.  £.  836;  Sheehy  y.  Cok- 
ley,  43  Iowa,  183,  22  Am.  Bep.  236;  Mielenz  v.  Quasdorf,  68  lowa^ 
726,  28  N.  W.  41;  Murphy  v,  Olberding,  107  Iowa,  547,  78  N.  W. 
205;  Smith  v.  Wyman,  16  Me.  14.  If  the  crime  charged  is  perjury, 
it  is  not  suflicient  to  prove  that  the  plaintiff  testified  and  that  his 
testimony  was  untrue,  but  the  defendant  must  go  further  and  show 
all  the  additional  elements  whichr  would  be  required  to  sustain  a 
eeavietion,  as  that  the  testimony  was  also  material  to  the  issut 
and  was  corruptly  and  willfully  f also  and  was  given  under  all  the 
drenmstances  required  to  warrant  a  conviction  for  perjury:  Me^ 
Olemery  y.  Keller,  3  Blackf.  488;  Tull  y.  David,  27  Ind.  377;  Sloan 
V.  Gilbert,  12  Bush,  61,  23  Am.  Bep.  708;  Wood  v.  Southwick,  97 
Ksss.  854;  McEinly  v.  Bob,  20  Johns.  851;  Hopkins  v.  Smith,  ft 
Barb.  599;  Jenkins  v.  Gockerham,  23  N.  G.  309;  Chandler  v.  Bob- 
iasQfs,  29  N.  C.  480;  McClanghery  t.  Cooper,  89  W.  Ta.  813,  19  a  B. 
4Uw 


HUNTINOTON  y.  SllUTJS. 

[180  Mass.  871,  62  N.  E.  880.] 

HBOOTIABZA  IlffSTBUMEKTS— Burden  of  Proof  as  to  Ooa^ 
MfltatioiL— la  aa  aetion  upon  a  promissory  note  the  burden  of 
proof  is  upon  the  plaintiff  to  establish  that  it  was  given  for  » 
valuable  consideration,  though  it  purports  to  be  for  value  received. 
While  the  production  of  the  instrument  with  proof  or  admission  of 
its  execution  makes  a  prima  facie  case,  yet  if  the  defendant  put* 
ui  evidence  a  want  of  consideration,  the  burden  of  proof  remains 
with  the  plaintiff,  who  must  satisfy  the  jury,  by  a  fair  preponder- 
ance of  the  evidenea,  of  the  existence  of  a  valuable  consideration. 
<p.  310.) 

Action  on  a  promissory  note,  of  which  the  following  is  a  copj : 
**|750.OO  Boston,  Mass.,  April  21,  1898. 

''One  year  from  date^  on  demand^  we  promise  to  pay  to  the 


310  American  State  Reports,  Vol.  91. 

order  of  Eliza  P.  Huntington  seven  hundred  and  fifty  doUiiTS. 
Value  received.    Interest  at  3J  per  cent  per  annum. 

''CHARLES  S.  SHTJTE. 

''ROSETTA  E.  SHUTE.'' 

The  defense  of  want  of  consideration  having  heen  made^  the 
trial  court  instructed  the  jury  that  the  words  **for  value  re* 
ceived,"  appearing  in  the  note,  were  equivalent  to  an  admission 
on  the  part  of  the  defendants  that  they  had  received  full  value,. 
and  required  them  to  assume  the  burden  of  proof  to  show  that 
there  was  no  consideration.  Verdict  for  the  plaintifE,  and  the 
defendant  alleged  exceptions. 

E.  B.  Powers  and  D.  L.  Smith,  for  the  defendants. 

J.  W.  Titus,  for  the  plaintiflE. 

^'^  LATHROP,  J.  The  rule  is  well  settled  in  this  common- 
wealth that,  in  an  action  on  a  promissory  note,  the  burden  of 
proof  is  upon  the  plaintiff  to  establish  the  fact  that  it  is  glTen 
for  a  valuable  consideration.  While  the  production  of  the  note,^ 
with  the  admission  or  proof  of  the  signature,  makes  a  prima 
facie  case,  yet  if  the  defendant  puts  in  evidence  of  a  want  of  con- 
sideration, the  burden  of  proof  does  not  shift,  but  remains  upon 
the  plaintiff,  who  must  satisfy  the  jury,  by  a  fair  preponderance 
of  the  evidence,  that  the  note  was  for  a  valid  consideration  r 
Morris  v.  Bowman,  12  Gray,  467 ;  Estabrook  v.  Boyle,  1  Allen, 
412;  Smith  v.  Edgeworth,  3  Allen,  233;Perley  v.  Perley,  144 
Mass.  104. 

It  does  not  appear  from  the  reports  of  these  cases  whether  the 
note  declared  on  in  each  contained  the  words  "value  received." 
These  words,  however,  were  in  the  note  in  suit  in  the  case  of 
Delano  v.  Bartlett,  6  Cush.  364,  but  the  case  was  decided  on  the 
general  rule :  See,  also,  Noxon  v.  De  Wolf,  10  Gray,  343,  346 ; 
Simpson  v.  Davis,  119  Mass.  269,  20  Am.  Rep.  324. 

We  can  see  no  reason  for  changing  the  rule  so  well  estab* 
lished,  merely  because  the  note  contains  the  words  "value 
ceived.^' 

Exceptions  sustained. 


The  Burden  of  Showing  a  Want  of  a  Consideration  for  a  prominoly 
note  is  ordinarily  upon  the  defendant.  When  the  execution  and 
delivery  of  the  note  are  admitted,  the  presumption  is  that  it  is 
founded  upon  a  sufficient  consideration:  Carnwright  v.  Gray,  127  N. 
Y.  92,  24  Am.  St.  Rep.  424,  27  N.  E.  835;  Perot  ▼•  Cooper,  17  Colo. 
80,  81  Am.  St.  Rep.  258,  28  Pac.  391. 


Jan.  1902.]        Cohuohwealth  v.  Goldbtbin.  811 


COMMONWEALTH  v.  GOLDSTEIN. 

[180  Mass.  374,  62  N.  E.  378.] 

PBAOnSE— Mode  of  Objecting  to  the  Line  of  Argument  of 
-If,  on  tbe  trial  of  a  person  accused  of  a  crime,  the  prose- 
eniing  attorney  relies  upon  a  fact  from  which  the  defendant's  at- 
torney elaims  that  no  inference  can  be  drawn  against  him,  the 
proper  practise  is  for  him  to  ask  the  court  to  mle  that  such  fact 
18  not  evidence,  and  cannot  be  nsed  against  the  accused  for  any 
purpose  on  the  trial,  and  if  such  ruling  be  refused,  to  except,  (p, 
312.^ 

CBIMIKAL  TBIAIiS.— The  fact  that  the  accused,  though  not 
represented  by  an  attorney,  offered  no  testimony  at  the  preliminary 
examination,  is  admissible  at  his  trial,  especially  where  his  defense 
is  an  alibi.  What  conclusion  shall  be  drawn  from  such  evidence  ia 
for  the  jury  to  determine,    (pp.  311,  312.) 

T.  E.  Grover,  for  the  defendant. 

R.  H.  O.  Sehnlz,  assistant  district  attorney,  for  the  com- 
monwealth. 

^^  HOLMES,  C.  J.  The  defendant  was  complained  of  in 
the  district  court  for  breaking  and  entering  a  building  in  the 
night  with  intent  to  commit  larcexiy  and  committing  larceny 
therein.  He  pleaded  not  guilty,  but  offered  no  evidence,  and 
was  ordered  to  recognize  for  appearance  in  the  superior  court. 
At  this  time  *^  he  was  without  counsel.  At  the  trial  in  the 
superior  court  he  endeavored  to  prove  an  alibi,  but  was  con- 
victed. In  arguing  the  case  the  assistant  district  attorney  com- 
mented on  the  fact  that  the  evidence  had  not  been  offered  below. 
The  counsel  for  the  defendant  asked  the  judge  to  stop  this  line 
of  argument  and  excepted  to  his  refusal  to  interfere,  and  after- 
ward asked  for  a  ruling  that  the  defendant's  making  no  defense 
in  the  district  court  was  not  evidence  against  him  and  could  not 
be  nsed  for  any  purpose  at  this  trial.  This  ruling  was  refused 
and  the  defendant  excepted  again.  By  this  request  and  excep- 
tion the  defendant  saved  his  rights :  O'DriscoU  v.  Lynn  etc.  B. 
R  Co.,  180  Mass.  187,  62  N.  E.  3. 

It  is  argued  that  the  offense  was  a  felony  not  within  the  juris- 
diction of  the  district  court  to  punish  (Pub.  Stats.,  c.  203,  sec. 
12;  Pub.  Stats.,  c.  210,  sec.  1;  Stats.  1893,  c.  396,  sec.  34), 
tliat  the  proceedings  in  that  court  were  merely  to  determine 
whether  the  defendant  should  be  bound  over  to  answer  in  the 
superior  court,  and  that  not  only  was  any  unfavorable  conclu- 
aon  from  the  defendant's  conduct  unwarranted,  but  it  is  put- 
^g  a  pressure  upon  a  prisoner  from  which  he  should  be  free> 


r,12  American  State  Reports,  Vol.  91.  [Mass. 

if  his  failure  to  produce  his  evidence  upon  such  proceedings  can 
be  turned  against  him :  Templeton  v.  People,  27  Mich.  501. 

We  certainly  should  be  slow  to  lay  down  any  general  propo- 
sition concerning  the  conclusion  to  be  drawn  from  silence  in 
the  district  court.  If  due  .to  strategic  considerations,  which  in 
this  case  it  was  less  likely  to  be  than  if  the  defendant  had  had 
counsel,  we  should  hesitate  to  say  that  it  tended  to  show  a  bad 
case.  Similar  conduct  in  civil  causes  is  familiar.  It  has  been 
held  that  a  waiver  of  examination,  although  it  has  the  same 
effect  as  a  finding  by  a  magistrate  of  probable  cause  to  believe 
the  defendant  guilty  (State  v.  Cobb,  71  Me.  198),  is  not  such 
an  admission  of  probable  cause  as  to  preclude  a  subseqnent  ac- 
tion for  malicious  prosecution:  Schoonover  v.  Myers,  28  111. 
308;  Hess  v.  Oregon  Baking  Co.,  31  Or.  503,  49  Pac.  803. 
And  to  this  we  quite  agree.  Nevertheless,  however  nncertain 
the  inference  from  the  conduct  of  an  accused  party  may  be  with 
regard  to  his  innocence  or  guilt,  such  conduct  generally  is  ad- 
missible in  evidence,  and  what  conclusions  shall  be  drawn  from 
it  generally  is  left  to  the  jury  to  decide. 

•^®  Probably  more  circumstances  were  before  the  jury  than 
appear  in  the  exceptions;  b^it  even  the  exceptions  do  not  leave 
the  question  in  the  naked  form  whether  a  failure  to  put  in  evi- 
dence under  the  Public  Statutes,  chapter  212,  section  30,  war- 
rants an  unfavorable  inference  on  the  trial  above.  The  char- 
acter of  the  defense  is  to  be  noticed.  It  certainly  might  be 
thought  likely  that  if  a  plain  man,  unadvised,  were  charged  with 
such  a  crime,  and  knew  that  several  persons  could  prove  that  he 
was  at  home  at  the  time,  he  would  say  so  and  would  make  some 
effort  to  produce  them.  Whatever  the  nature  of  the  proceed- 
ings, they  give  the  defendant  an  opportunity  to  get  rid  of  further 
trouble,  and  the  defense  is  so  untechnical,  so  obvious,  and,  if  the 
witnesses  are  believed,  so  conclusive,  that  a  jury  fairly  might 
think  that  it  would  be  natural  to  set  it  up  at  the  first  chance, 
;So  far  as  the  legitimacy  of  an  unfavorable  inference  is  con- 
(Cemed,  if  the  jury  should  draw  it  on  all  their  impressions  of  the 
^^ase,  we  cannot  say  that  it  would  be  unwarranted. 

As  to  the  undue  pressure  on  the  prisoner,  it  does  not  seem  to 
us  a  good  reason  for  freeing  him  from  the  effect  of  any  legiti- 
mate and  natural  inference  against  him  that  he  can  make  a 
more  effective  defense  if  he  has  a  chance  to  catch  the  govern- 
ment by  surprise.  It  is  not  to  be  supposed  that  knowing  what 
he  has  to  meet  will  lead  a  prosecuting  officer  to  do  more  than 
investigate  and  try  to  present  the  truth.    A  defendant  has  no 


Jan.  1902.]        Commonwealth  v,  Goldbtbxn.  813 

general  immunity  from  comment  on  his  mode  of  conducting  his 
defense  in  a  criminal  case.  If  new  evidence  should  be  pro- 
duced at  a  second  trial  which  might  have  been  produced  before, 
there  is  no  doubt  that  it  would  be  open  to  the  criticism  and  ar- 
gument objected  to  in  this  case.  So,  the  failure  to  produce  a 
witness  who  had  testified  at  the  first  trial  (Commonwealth  v. 
Haskell,  140  Mass.  128),  or  to  offer  evidence  in  explanation  or 
<xmtradiction  of  circumstances  tending  to  prove  guilt,  when  such 
evidence,  if  it  existed,  would  be  at  the  prisoner's  command: 
Commonwealth  v.  Webster,  6  Cush.  295,  316,  62  Am.  Dec.  711 ; 
Commonwealth  v.  Clark,  14  Gray,  367,  373 ;  Commonwealth  v. 
Costley,  118  Mass.  1,  27. 

The  ground  on  which  Templeton  v.  People,  27  Mich.  501,  is 
put  is  that  the  statute  expressly  gives  the  prisoner  an  election 
to  make  or  not  to  make  a  defense,  and,  therefore,  impliedly  pro- 
hibits •^^  an  unfavorable  inference  from  his  choice.  We  find 
no  such  provisions  in  our  laws.  It  is  beyond  our  province  to 
examine  where  it  was  found  in  the  statutes  of  Michigan:  See 
Tweedle  ▼.  State,  29  Tex.  App.  586,  591, 16  S.  W.  544. 

Exceptions  overruled. 


In  O'DriscoU  v.  Lynn  etc.  B.  B.  Co.,  180  Mass.  187,  62  N.  K  3, 
Ttf erred  to  in  the  principal  case,  it  appeared  that  the  plaintiff'^ 
eooBsel  objected  to  a  line  of  argument  made  by  the  defendant '9 
attomej,  on  the  ground  that  it  was  not  warranted  by  a  certain 
paper  admitted  in  evidence,  and  that  such  paper  was  not  evidence 
of  tnj  fact  upon  which  such  argument  was  based,  but  'Hhe  argu- 
ment was  allowed  to  stand,  and  the  plaintiff  alleged  exceptions." 
^e  appellate  court  held  that  this  was  not  sufficient  to  present  any 
<IQe8tion  for  its  consideration,  that  it  was  not  the  duty  of  the  courts 
to  eonitne  arguments  to  the  line  of  view  destined  ultimately  to  pre* 
^^  and  that  the  plaintiff  had  no  ground  for  exception,  unless  it 
▼as  shown  that  the  court,  being  asked  to  rule  as  to  whether  the 
paper  relied  upon  warranted  the  conclusion  that  the  defendant's 
€onnsel  sought  to  draw,  made  some  ruling  against  the  plaintiff  er- 
roneous in  point  of  law. 

/f  an  Accused  Testifies  at  his  preliminary  examination,  his  state- 
meats  then  made  are  admissible  against  him  on  a  subsequent  trial: 
Dill  V.  State,  35  Tex.  Crim.  Bep.  240,  60  Am.  St.  Bep.  37,  33  S.  W. 
126. 


314  American  State  Reports^  Vol.  91.  [Mattu 


AINSWOBTH  V.  LAKIN. 
[180  Maes.  397,  62  N.  E.  746.] 

BiniiDINGHE^  Walls  of,  Wbfln  Bevert  to  tlio  bad  Ownor.— If 

one  owns  the  first  and  second  stories  of  a  building,  the  third  storj 
of  which  has  been  conveyed  to  certain  trustees  to  hold  during  the 
life  of  the  building,  and  it  has  been  destroyed  by  ^re,  leaving  the 
walls  standing,  the  wall  of  such  third  story  immediately  beeomea> 
his  property,     (p.  315.) 

BUILDIKaS,  Dangeroiia  Walls,  Liability  for.^If,  through  the 
destruction  of  a  building  by  fire,  the  title  to  the  third  story  of 
the  wall  thereon  vests  in  the  owner  of  the  land,  he  does  not  im* 
mediately  become  liable,  but,  before  liability  grows  up  against  him^ 
he  is  entitled  to  a  reasonable  time  to  make  necessary  investigations 
and  to  take  such  precautions  as  are  required  to  prevent  the  wall 
from  doing  harm.     (pp.  315,  316.) 

NEaLIGENOi:— Care  Which  Land  Owner.  Muit  Take  to  Pra- 
vent  Ihjnry  by  His  Property.— Where  a  eertain  lawful  use  of  prop- 
erty will  bring  to  pass  wrongful  eonsequences  from  the  conditioa 
m  which  the  property  is  put,  if  these  are  not  guarded  against,  aa 
owner  who  makes  such  a  use  is  bound  at  his  peril  to  see  that 
proper  care  is  taken  in  every  particular  to  prevent  the  wrong* 
(p.  317.) 

NEOLIOENCE  in  Falling  to  Bemovo  Walla  Destroyed  by  FtrsL 

Where  there  is  standing  in  close  proximity  to  other  property  the  wall 
of  a  building  destroyed  by  fire,  the  fall  of  which  must  injure  a 
neighbor,  the  landlord  must  pull  down  such  wall  or  use  such  care 
in  its  maintenance  as  will  absolutely  prevent  injuries,  except  from 
causes  over  which  he  can  have  no  control,  such  as  via  major,  acts 
of  public  enemies,  or  wrongful  acts  of  third  persons  which  human 
foresight  could  not  be  reasonably  expected  to  anticipate  and  prevent, 
(p.  318.) 

DAMAOES,  Measure  of— Interest.— In  awarding  damages  for 
an  injury,  the  jury  should  take  into  account  the  lapse  of  time 
since  it  was  suffered,  and  put  plaintiff  in  as  good  position  as  if  the 
damages  had  been  paid  immediately.  Therefore,  they  may  fix  such 
damages  by  ascertaining  what  was  the  amount  which  should  have 
been  paid  at  the  time  the  injury  occurred  and  by  adding  thereto 
such  sum  as  will  compensate  delays  in  its  payment,  not  exceeding 
the  legal  rate  of  interest,     (p.  319.) 

JT7BT  TBIAL— Instmctions  not  Technically  but  Substantially 

Accurate.— Though  the  trial  court  instructed  the  jury  that  they 
should  allow  interest  from  the  date  of  the  injury  to  the  date  of 
the  verdict  in  estimating  the  amount  of  damages,  when  it  should 
have  instructed  them  that  they  should  take  into  account  the  lapse 
of  time  and  put  plaintiff  in  as  good  position  as  if  the  damage  had 
been  paid  immediately,  a  new  trial  will  not  be  granted  if  there  is 
nothing  to  indicate  that  the  defendant  was  injured  by  the  instme* 
tion.     (p.  319.) 

Tort  for  damage  to  the  property  of  the  plaintiff  from  the  fall- 
ing of  a  wall  on  the  land  of  the  defendant's  intestate,  and  which 
wall  had  been  left  standing  after  the  building  of  which  it  was  a 
part  had  been  destroyed  by  fire.  Verdict  for  the  plaintiff;  the 
defendant  alleged  exceptions. 


Feb.  1902.]  Ainbworth  v.  Lakin.  81  & 

A-  8.  Knefl,  S.  S.  Taft,  and  B.  A.  Allyn,  for  the  defendant. 
J.  B.  Carroll  and  W.  H.  McClintock,  for  the  plaintiflf. 


KNOWLTON,  J.  The  defendant's  intestate  was  the 
owner  of  the  land  and  of  the  first  two  stories  of  the  building- 
which  stood  npon  it  before  the  fire.  The  third  story  had  been 
conveyed  by  the  former  owners  to  Lewis,  Noble  and  Laflin,  trus- 
teesy  to  hold  during  the  life  of  the  building.  By  the  fire  the 
life  of  the  building  was  destroyed,  and  the  ownership  of  Lewi» 
and  others  in  the  third  story  was  terminated:  Ainsworth  v.. 
Mount  Moriah  Lodge,  172  Mass.  257,  52  N.  E.  81.  The  de- 
fendant's  intestate  was  left  with  his  land  and  the  walls  and  some 
other  parts  of  the  first  and  second  stories  standing  upon  it,  and 
with  the  walls  of  the  third  story,  which  had  previously  belonged 
to  the  trustees,  resting  on  the  structure  below,  and  connected 
with  it  as  a  part  of  the  realty.  All  rights  of  other  persons  in 
the  walls  of  the  third  story  had  come  to  an  end.  As  owner  of 
the  land  and  of  the  first  and  second  stories  of  the  building,  he 
was  owner  of  everything  upon  it  which  was  a  part  of  the  real 
estate:  Stockwell  v.  Hunter,  11  Met.  448,  45  Am.  Dec.  420;. 
Shawmut  Nat.  Bank  v.  Boston,  118  Mass.  125.  His  position  in 
reference  to  the  walls  of  the  third  story  was  like  that  of  a  land- 
lord whose  tenant  leaves  the  leased  land  at  the  end  of  the  term 
with  structures  that  he  has  erected  upon  it,  which  have  become 
a  part  of  the  realty.  These  structures  which  are  abandoned 
by  the  tenant  immediately  become  the  property  of  the  landlord 
to  whose  land  they  are  affixed :  Burk  v.  Hollis,  98  Mass.  65 ; 
Madigan  v.  McCarthy,  108  Mass.  376, 11  Am.  Bep.  371 ;  WatrisB 
V.  First  Nat.  Bank  of  Cambridge,  124  Mass.  571,  26  Am.  Rep. 
694;  Mclver  v.  Estabrook,  134  Mass.  550. 

As  the  owner  of  the  land  and  the  structures  upon  it  which 
were  subject  to  the  power  of  gravitation,  and  likely  to  do  injury" 
to  others  if  they  fell,  the  defendant's  intestate  owed  certain  du- 
ties to  adjacent  land  owners.    His  duty  immediately  after  the 
fire  was  affected  by  the  fact  that  until  then  he  had  had  no  own- 
ership or  control  of  the  upper  part  of  the  wall,  and  that  the  con- 
dition of  the  whole  had  been  greatly  changed  by  the  effect  of  the 
fire  and  the  destruction  of  the  connected  parts.     For  dangers 
growing  '^^  out  of  changes  which  he  could  not  prevent  he  was 
not  immediately  liable:  Gray  v.  Boston  Gaslight  Co.,  114  Mass. 
149, 19  Am.  Rep.  324;  Mahoney  v.  Libbey,  123  Mass.  20,  25  Am. 
Bep.  6.    The  jury  were  therefore  rightly  instructed  that,  before 
a  liability  could  grow  up  against  the  defendant's  intestate  after 


316  American  State  Reports,  Vol.  91. 

the  fire,  he  was  entitled  to  a  reasonable  time  to  make  neceasaiy 
investigation,  and  to  take  such  precautione  as  were  required  to 
prevent  the  wall  from  doing  harm. 

We  come  next  to  the  question,  ''What  was  his  duty  and  what 
was  his  liability  after  the  lapse  of  such  a  reasonable  time?^ 
There  is  a  class  of  cases  in  which  it  is  held  that  one  who,  for  hi^ 
own  purposes,  brings  upon  his  land  noxious  substances  or  other 
things  which  have  a  tendency  to  escape  and  do  great  damage, 
ie  boimd  at  his  peril  to  confine  them  and  keep  them  on  his  own 
premises.    This  rule  is  rightly  applicable  only  to  such  unusual 
and  extraordinary  uses  of  property  in  reference  to  the  benefita 
to  be  derived  from  the  use  and  the  dangers  or  looses  to  which 
others  are  exposed,  as  should  not  be  permitted  except  at  the  sole 
risk  of  the  user.    The  standard  of  duty  established  by  the  courts 
in  these  cases  is  that  every  owner  shall  refrain  from  these  un- 
warrantable and  extremely  dangerous  uses  of  property  unless 
he  provides  safeguards  whose  perfection  he  guarantees.     The 
case  of  Bylands  v.  Fletcher,  L.  K.  3  H.  L.  330,  Fletcher  r.  Bjr- 
alls,  li.  R.  1  Ex.  267,  rests  upon  this  principle.    In  this  ocMn- 
monwealth  the  rule  has  been  applied  to  the  keeping  of  manure 
in  a  vault  very  near  the  well  and  the  cellar  of  a  dwelling-house 
of  an  adjacent  owner:  Ball  v.  Nye,  99  Mass.  582,  97  Am.  Dee. 
56.    See,  also,  Fitzpatrick  v.  Welch,  174  Mass.  486,  55  N.  S. 
178.    That  there  are  uses  of  property  not  forbidden  by  law  to 
which  this  doctrine  properly  may  be  applied  is  almost  universally 
acknowledged. 

This  rule  is  not  applicable  to  the  construction  and  main- 
tenance of  the  walls  of  an  ordinary  building  near  the  land  of  an 
adjacent  owner.  In  Quinn  v.  Crimmings,  171  Mass.  255,  858, 
68  Am.  St.  Bep.  420,  50  N.  E.  624,  626,  Mr.  Justice  Ilohnes 
shows  that  in  reference  to  the  danger  from  the  falling  of  a  stmc- 
inre  erected  on  land  ''the  decision  as  to  what  precautions  are 
proper  naturally  may  vary  with  the  nature  of  the  particular 
structure."  He  says:  ''As  it  is  desirable  that  buildings  and 
fences  should  be  put  up,  the  law  of  this  commonwealth  does  not 
ihrow  the  risk  of  that  act  any  more  than  of  ^^^  other  necessary 
conduct  upon  the  actor,  or  make  every  owner  of  a  structure  in- 
jure against  all  that  may  happen,  however  little  to  be  foreseen." 

The  principle  applicable  to  the  erection  of  common  buildings 
whose  fall  might  do  damage  to  persons  or  property  on  the  ad- 
jacent premises  holds  owners  to  a  less  strict  duty.  This  prin- 
<;iple  is  that  where  a  certain  lawful  use  of  property  will  bring  to 
pass  wrongful  consequences  from  the  condition  in  whidi  the 


Feb.  1902.J  Ainsworth  v.  Lakin.  817 

property  is  put,  if  these  are  not  guarded  against,  an  owner  who- 
makes  such  a  use  is  bound  at  his  peril  to  see  that  proper  care  is 
taken  in  every  particular  to  prevent  the  wrong:   Woodman  v. 
Metropolitan  B.  E.  Co.,  149  Mass.  335, 14  Am.  St.  Eep.  427,  21 
N.  E.  482,  and  cases  cited;  Curtis  v.  Kiley,  163  Mass.  123,  2^ 
N.  E.  421 ;  Pye  v.  Faxon,  166  Mass.  471,  31  N.  E.  640 ;  Harding- 
?.  Boston,  163  Mass.  14, 19,  39  N.  E.  411,  and  cases  cited;  Cabot 
V.  Kingman,  166  Mass.  403,  406,  44  N.  E.  344;  Bobbins  v,  At- 
kins, 168  Mass.  46,  46  N.  E.  426 ;  Thompson  v.  Lowell  etc.  By. 
Co.,  170  Mass.  677,  64  Am.  St.  Bep.  323,  49  N".  E.  913 ;  Quinn 
V.  CrimmingB,  171  Mass.  265,  266,  68  Am.  St.  Eep.  420,  50  N". 
E.  624;  Boomer  v.  Wilbur,  176  Mass.  482,  57  N.  E.  1004;  Ses- 
sengut  V.  Posey,  67  Ind.  408,  33  Am.  Eep.  98 ;  Anderson  v.  East, 
117  Ind.  126,  10  Am.  St.  Eep.  36, 19  N.  E.  726 ;  Chicago  v.  Bob- 
bins, 2  Black,  418,  428 ;  Homan  v.  Stanley,  66  Pa.  St.  464,  6« 
Ahl  Bep.  389 ;  Mayor  of  New  York  v.  Bailey,  2  Denio,  433 ;. 
Bower  v.  Peate,  1  Q.  B.  D.  321 ;  Tarry  v.  Ashton,  1  Q.  B.  D. 
314;  Gray  v.  Pullen,  5  Best  &  S.  970,  981;  Dalton  v.  Angus,  6 
App.  Cas.  740,  829.    The  duty  which  the  law  imposes  upon  an 
owner  of  real  estate  in  such  a  case  is  to  make  the  conditions  safe 
flo  far  ae  it  can  be  done  by  the  exercise  of  ordinary  care  on  the 
part  of  all  those  engaged  in  the  work.    He  is  responsible  for  the 
n^gence  of  independent  contractors  as  well  as  for  that  of  his 
fler?ants.    This  rule  is  applicable  to  everyone  who  builds  an  or- 
dinaiy  wall  which  is  liable  to  do  serious  injury  by  falling  out^ 
tide  of  his  own  premises.    It  is  the  rule  on  which  the  decision 
in  Gorham  v.  Oross,  126  Mass.  232,  28  Am.  Bep.  234,  rests,  and 
fte  ease  is  not  an  authority  for  any  liability  of  a  land  owner  that 
goes  beyond  this :  See,  also.  Gray  v.  Harris,  107  Mass.  492,  9^ 
Am.  Bep.  61;  Shrewsbury  v.  Smith,  12  Cush.  177.    The  uses 
of  property  governed  by  this  rule  are  those  that  bring  new  con* 
ditions  which  involve  risks  to  the  persons  or  property  of  others, 
but  which  are  ordinary  and  usual,  and,  in  a  sense,  natural,  as  in- 
cident to  the  ownership  of  the  land.    The  rule  first  referred  ta 
applies  to  unusual  and  extraordinary  uses  which  are  so  fraught 
*^^  with  peril  to  others  that  the  owner  should  not  be  permitted 
to  adopt  them  for  his  own  purposes  without  absolutely  protect- 
ing his  neighbors  from  injury  or  loss  by  reason  of  the  use.    In 
Ingland  this  rule  which  was  laid  down  in  Bylands  v.  Fletcher, 
L  B.  3  H.  L.  330,  L.  R  1  Ex.  267,  in  reference  to  a  reservoir 
ot  utter,  has  since  been  held  to  be  inapplicable  where  the  collec- 
tion of  the  water  is  in  the  natural  and  ordinary  use  of  the  land : 
IMcher  Vt  Smith,  2  App.  Cas.  781.    See  Carstairs  v.  Tayhnr,  L. 


318  American  State  Bbpobts^  Vol.  91.  [Mjul 


B.  6  Ex.  217.    So  far  as  we  know^  there  is  no  case  in 

it  has  been  applied  to  the  erection  or  maintenance  of  the  walk 

of  an  ordinary  building. 

The  construction  which  shonld  be  pnt  upon  the  judge's  charge 
in  regard  to  liability  for  standing  walls  is  by  no  means  oertam. 
Some  broad  statements  in  it  might  seem  to  indicate  that  he  was 
laying  down  a  rule  applicable  to  the  construction  and  mainteii- 
ance  of  walls  of  ordinary  buildings  so  situated  that  if  ihey  fall 
they  will  be  likely  to  injure  the  property  of  the  adjacent  owner. 
If  this  were  the  meanings  the  instructions  would  be  wrong.    But 
taking  the  charge  in  its  different  parts  in  connection  with  &e 
facts  stated  in  the  bill  of  exceptions,  we  think  it  was  intended  to 
«tate  the  rule  applicable  to  the  kind  of  wall  that  the  jury  were 
considering,  and  not  to  the  walls  of  buildings  generally.    As 
was  decided  in  a  previous  suit  brought  by  this  plaintiff,  the  life 
of  the  building  had  been  destroyed  by  fire,  and  the  walls  whidi 
subsequently  fell  were  no  longer  used  in  supporting  a  building: 
Ainsworth  v.  Mount  Moriah  Lodge,  172  Mass.  257,  52  N.  E.  81. 
Kot  only  was  this  the  testimony  of  the  plaintiff's  witnesses,  but 
it  was  the  substance  of  the  eyidence  introduced  by  the  defendant 
His  experts  testified  that  before  any  part  of  the  wall  could  safely 
be  built  upon,  the  third  story  at  least  would  have  to  be  taken 
down.    This  upper  part  of  the  wall  was  that  which  was  most 
in  danger  of  falling,  and  the  part  whose  fall  would  be  most 
likely  to  do  damage.    To  maintain  it,  or  to  leave  it  standing  to 
its  full  height,  could  serve  no  useful  purpose.    Its  condition  in 
xeference  to  fitness  for  use  was  an  undisputed  fact  on  the  eri- 
"dence.     Instead  of  being  a  part  of  a  building  adapted  to  occupa- 
tion  it  was  a  part  of  the  ruins  of  a  building.    To  maintain  sadi 
a  wall  after  the  expiration  of  a  reasonable  time  for  investigatioD 
and  for  its  removal,  would  not  be  a  reasonable  and  proper  use  of 
one^s  property.    It  was  the  duty  of  the  defendant  not  to  ^* 
suffer  such  a  wall  to  remain  on  his  land  where  its  fall  would 
injure  his  neighbor,  without  using  such  care  in  the  maintenance 
of  it  as  would  absolutely  prevent  injuries,  except  from  causes 
over  which  he  would  have  no  control,  such  as  vis  major,  acts  of 
public  enemies,  or  wrongful  acts  of  third  persons  which  human 
foresight  could  not  reasonably  be  expected  to  anticipate  and 
prevent.    This  was  the  rule  of  law  stated  by  the  judge  to  the 
jury.    With  this  construction  of  the  charge  we  tWnk  that  flw 
jury  were  rightly  directed  to  a  consideration  of  the  evidence  on 
the  principal  issue  of  fact. 

The  jury  were  instructed  to  allow  interest  on  the  amount  of 


Veb.  1902.]  A1N8WORTH  V.  Lakin.  819 

images  from  the  date  of  the  injury.    It  would  have  been  more 
accurate  to  inetmct  them  that  in  assessing  damages  of  this  kind 
a  plaintiff  is  not  to  be  awarded  interest  as  interest^  but  that  in 
ascertaining  the  damage  at  the  date  of  the  verdict^  the  jury 
should  take  into  account  the  lapse  of  time,  and  put  the  plaintiff 
in  as  good  a  position  in  reference  to  the  injury  as  if  the  damages 
directly  resulting  from  it  had  been  paid  immediately :  Frazer  v. 
Bigelow  Carpet  Co.,  141  Mass.  126,  4  N.  E.  620.     This  princi- 
ple would  authorize  the  jury  to  fix  the  damages  at  the  date  of 
their  yerdict  by  adding  interest  at  the  legal  rate  on  the  amount 
of  damages  at  the  time  of  the  injury,  but  it  would  not  require 
them  to  do  this.     There  might  be  circumstances  such  that  an 
allowance  less  than  interest  at  six  per  cent  would  compensate  for 
the  delay.    The  damages  in  this  case  were  of  a  different  charac- 
ter from  the  amount  to  be  awarded  for  the  taking  of  land  under 
the  right  of  eminent  domain,  in  which  the  value  of  the  property 
rights  taken  should  be  paid  at  the  time  of  the  taking :  See  Old 
Colony  R.  B.  Co.  v.  Miller,  126  Mass.  1,  3,  28  Am.  Rep.  194. 
But  it  does  not  appear  that  there  was  anything  in  this  case  to 
take  it  out  of  the  ordinary  rule  in  regard  to  compensation  for  a 
delay  in  payment  by  the  allowance  of  interest.     In  the  absence 
of  anything  in  the  bill  of  exceptions  to  show  that  the  defendant 
was  injured  by  the  instruction,  we  are  of  opinion  that  a  new  trial 
should  not  be  granted. 

The  defendant  made  many  requests  for  instructions  which  we 
do  not  think  it  necessary  to  consider  more  particularly. 
Exceptions  overruled. 


The  Owner  of  Property  holds  it  subject  to  the  implied  obligation 
that  he  will  so  use  it  as  not  to  interfere  with  the  rights  of  others: 
State  V.  Yopp,  97  N.  C.  477,  2  Am.  St.  Kep.  305,  2  S.  E.  458;  Sul- 
livan V.  Dunham,  161  N.  Y.  290,  76  Am.  St.  Eep.  274,  55  N.  E.  923. 
As  to  his  liability  for  the  falling  of  defective  walla,  see  Byder  v. 
Kmsey,  62  Minn.  85,  54  Am.  St.  Bep.  623,  64  N.  W.  94;  Schwartz 
V.  Gilmore,  45  111.  455,  92  Am.  Dec.  227;  Mahoney  v.  Libbey,  123 
Mass.  20,  25  Am.  Bep.  6;  Cork  v.  Blossom,  162  Mass.  380,  44  Am. 
8t  Bep.  362,  38  N.  £.  495. 


3S0  American  State  Bbpobts^  Vol.  91.  [Maas. 


FOLSOM  V.  BARRETT. 

[180  Mass.  439,  62  N.  E.  723.] 

UEN— When  not  WaiTod  by  Demanding  a  Sum  Qreater  tfeas. 
tbat  Dne.— If  one  entitled  to  retain  personal  property  untfl  a  lien 
in  his  favor  thereon  is  paid  demands  a  sum  exceeding  that  due  him, 
he  does  not  thereby  waive  his  lien  nor  forfeit  his  right  to  retain 
possession  of  the  property,  if  his  demand  was  made  in  good  faith 
and  in  the  belief  that  he  was  entitled  to  sneh  snm,  and  no  payment 
or  tender  was  made  of  the  amount  actually  dne.     (p.  321.) 

TEKDEB  of  Amoimt  to  Satisfy  a  Lien,  when  not  Waivod.— 

Though  a  lienholder  states  tbat  he  will  not  deliver  personal  prop- 
erty until  paid  a  sum  which  he  names,  and  which  is  in  excess  of  that 
to  which  he  is  entitled,  this  is  not  a  waiver  of  a  tender  of  the 
amount  actually  due,  where  it  does  not  appear  that  he  had  reaeon 
to  believe  tbat  the  other  party  was  thinking  of  a  tender  and  pre- 
pared to  make  it.     (p.  322.) 

UENHOLDEB— Bight  of  to  the  Expenses  of  Keeping  Prop* 

ertjr.— The  owner  of  a  horse  whieh  another  is  holding  as  secarity 
for  the  payment  of  a  debt  is  personally  liable  for  the  expenses  of 
keeping  such  horse  after  a  demand  made  for  its  possession,  and  a 
demand  in  good  faith  by  the  lienholder  of  a  sum  in  excess  of  that 
due,  if  such  owner  does  not  tender  the  sum  due,  and  such  tender  is 
not  waived,     (p.  323.) 

Action  to  recover  a  balance  claimed  to  be  due  from  the  defend- 
ant to  the  plaintiff  for  commissions  for  buying  and  selling 
horses,  and  for  board  and  training  and  other  expenses  incnxred 
on  account  of  a  horse  called  "Sun  Pointer."  One  question  in* 
▼olved  was  whether  the  plaintiff  was  entitled  to  recover  any- 
thing on  account  of  that  horse  after  July  27,  1899.  On  tiiat 
day  defendant  demanded  the  horse,  but  the  plaintiff  refused  to 
deliver  him  until  paid  three  hundred  dollars  and  ninety-six  cents 
on  account  of  his  board  and  other  expenses  incurred  for  him. 
The  auditor  to  whom  the  case  was  referred  found  that  the  sum 
due  on  such  day  was  only  one  hundred  and  twenty-nine  dollars 
and  seventeen  cents.  The  report  of  the  auditor  was  reodved  in 
evidence  on  the  trial,  and  thereafter  the  defendant  asked  for 
the  instructions  stated  in  the  opinion  of  the  court,  and,  a  verdict 
having  been  returned  against  him,  alleged  exceptions. 

W.  B.  Buckminster,  for  the  defendant. 
P.  B.  Bunyan,  for  the  plaintiff. 

*^  HAMMOND,  J.  On  July  27,  1899,  the  plaintiff  had  a 
lien  upon  the  horse  "Sun  Pointer,"  to  secure  him  for  the  pay- 
ment of  the  expenses  of  its  keeping  up  to  that  time.  The 
amount  due  as  claimed  by  the  plaintiff  was  three  hundred  dollars 


Feb,  1902.]  Folsom  v.  Babbett.  821 

and  ninety-six  cents,  and,  although  requested  by  the  defendant^ 
he  refused  to  deliver  up  the  horse  except  upon  the  payment  of 
that  sum.  The  auditor  has  found  that  the  balance  due  at  that 
time  was  only  one  hundred  and  twenty-nine  dollars  and  seven- 
teen cents. 

The  defendant  requested  the  judge  to  rule  in  substance,  that 
(1)  if  the  defendant  demanded  the  horse  of  the  plaintiff,  and 
the  plaintiff  refused  to  deliver  him  up  except  upon  the  payment 
of  a  certain  sum  which  was  larger  than  the  sum  actually  duo- 
then  as  matter  of  law  the  plaintiff  wrongfully  held  the  horse; 
and  (8)  if  the  defendant  requested  of  the  plaintiff  a  statement 
of  the  amount  due,  so  that  the  defendant  could  pay  what  was 
due  and  take  his  horse,  and  if  upon  that  the  plaintiff  stated  that 
he  would  not  give  up  the  horse  except  upon  the  payment  of  a 
certain  sum  then  named  by  him,  which  was  materially  in  excess 
of  the  amount  actually  due,  then  the  defendant  was  not  bound  to> 
tender  any  sum  to  the  plaintiff,  and  the  latter  wrongfully  held 
the  horse. 

The  judge  refused  to  rule  as  requested,  but  ruled  in  substance 
^^  that  if  the  plaintiff  fraudulently  claimed  more  than  was  due 
for  the  purpose  of  keeping  possession  of  the  horse,  he  wrongfully 
kept  the  horse ;  but  that  if  he  believed  the  sum  due  him  to  be  as 
stated  by  him  at  the  time  he  refused  to  deliver  the  horse,  then 
the  fact  that  that  sum  was  excessive  would  not  work  a  discharge 
of  the  lien.  No  instructions  were  given  as  to  the  subject  of 
tender. 

Where  a  lienor  bases  his  refusal  to  surrender  property  upon 
some  right  independent  of  or  inconsistent  with  the  lion,  it  is 
held  that  he  has  waived  his  lien,  and  he  cannot  aftei'ward  set  it 
up:  Boardman  v.  Sill,  1  Camp.  410,  note;  Dirks  v.  Richards, 
4  Man.  &  6.  574.  But  that  is  not  this  case.  Here  the  plaintiff 
expressly  named  his  lien  and  insisted  upon  it,  and  there  was  no 
question  as  to  its  nature.  It  was  for  the  keeping  of  the  horse 
a  certain  definite  time.  He  based  his  right  to  hold  the  horse 
upon  that  lien,  and  upon  nothing  else.  His  demand,  however,, 
was  excessive.  He  was  right  as  to  the  existence  of  the  lien  upon 
which  right  alone  he  was  insisting,  but  wrong  as  to  the  amount 
due.  If  he  fraudulently  claimed  more  than  was  due,  he  lost  his 
lien,  but  if  his  claim  was  made  in  good  faith,  it  was  still  in  the 
power  of  the  defendant  to  discharge  the  lien  by  a  payment  of  the 
sum  actually  due.  If  such  a  payment  had  been  made  at  that 
time,  the  lien  would  have  been  destroyed,  and  consequently  the 
subsequent  detention  of  the  horse  by  the  plaintiff  would  have 

Am.   St.  R«p-*  Vol.  91—21 


322  American  Statb  Bepobts,  Vol.  91.  [Mssil 

been  wrongful;  and  that  would  hare  been  6o  whether  or  not  the 
plaintiff  honestly  believed  his  claim  to  be  correct.  The  lien  wa« 
simply  a  right  to  hold  the  horse  until  a  certain  sum  was  paid, 
and  when  that  sum  was  paid  the  right  was  gone.  The  good 
faith  of  the  plaintiff  could  not  increase  that  sum.  The  same 
result  would  have  followed  if  a  tender  of  the  sum  due  had  been 
made  and  refused:  Coke  on  Littleton^  207a;  Coggs  v.  Bernard, 
Ld.  Baym.  909, 917;  Bacon's  Abridgment,  "Bailmenf*(B)  ;  Jar- 
vis  V.  Bogers,  15  Mass.  389,  409;  Schayer  v.  Commonwealth 
Loan  Co.,  163  Mass.  322,  39  N.  E.  1110,  and  cases  cited. 

No  payment  or  tender,  however,  was  made;  and  where,  as  in 
this  case,  there  is  a  lien  which  is  insisted  upon  by  the  creditor, 
and  his  only  error  ia  in  making  an  excessive  demand  whidi  he 
licmestly  believes  to  be  correct,  the  fact  that  the  demand  is  ex- 
cessive does  not  ordinarily  relieve  the  debtor  from  the  necesRity 
^^^  of  making  a  tender.  If  the  debtor  desires  to  avail  himaelf 
of  this  honest  mistake  of  the  creditor,  he  must  make  or  tender 
payment  of  the  sum  actually  due,  and  neither  the  ability,  readi- 
ness or  simple  offer  to  pay  is  a  tender.  There  must  be  an  actual 
production  of  the  money,  unless  such  production  be  dispensed 
with  by  the  express  declaration  of  the  creditor  that  he  will  not 
accept  it,  or  by  some  equivalent  declaration  or  act :  Thomas  ▼. 
Evans,  10  East.  101 ;  Breed  ▼.  Hurd,  6  Pick.  356.  See  Chitty 
on  Contracts,  10th  Am.  ed.,  890,  891,  and  cases  cited. 

We  are  of  opinion  that  there  is  no  evidence  in  this  case  of  any 
declaration  or  conduct  of  the  plaintiff  which  would  excuse  the 
defendant  from  making  an  actual  tender.  It  is  true  that  the 
bill  recites  that  the  plaintiff  refused  to  deliver  up  the  horse  ex- 
cept upon  the  payment  of  the  three  hundred  dollars  and  ninety- 
six  cents,  but  it  does  not  appear  that  the  defendant  ever  desired 
or  attempted  to  make,  or  indeed  that  he  ever  was  ready  to  make, 
any  tender  whatever,  or  that  the  plaintiff  ever  had  any  reason 
to  suppose  that  in  any  of  the  interviews  with  the  defendant  the 
latter  was  thinking  of  a  tender,  or  was  prepared  then  and  there 
to  make  it,  or  to  make  any  exhibition  of  money.  Under  these 
eiix^umstances,  the  simple  statement  made  by  the  plaintiff  at 
the  time  the  horse  was  demanded,  that  he  would  not  deliver  him 
up  except  upon  payment  of  the  whole  sum,  is  not  enough  to  war- 
rant a  finding,  that  he  had  dispensed  with  the  right  to  an  ex- 
hibition of  the  money  of  the  defendant,  or,  in  other  words,  that 
he  had  waived  the  right  to  a  formal  and  complete  tender ;  and 
the  judge  presiding  at  the  trial  was  right  in  declining  to  instnut 
as  to  the  law  of  tender. 


Feb.  1902.]  Folsom  v.  Barrett.  823 

The  case  ig  clearly  distinguishable  from  Hamilton  v.  Mc- 
Uoghlin,  145  Mass.  20, 12  K.  £.  424,  upon  which  the  defendant 
lelies.  There  being  no  tender  and  no  lawful  excuse  for  not 
making  one,  there  was  no  error  in  instructing  the  jury  that  in 
this  case  the  lien  was  not  lost  by  the  excessive  demand  made  by 
ihe  plaintiff  in  good  faith :  Kerf ord  v.  Mondel,  6  Hurl.  &  N. 
ni;  Alderson,  B.,  in  Jones  v.  Tarleton,  9  Mees.  &  W.  676; 
Jones  on  Liens,  sees.  1025,  1026,  and  cases  therein  cited.  See, 
ako,  Fowler  v.  Parsons,  143  Mass.  401,  9  N.  B.  799. 

That  being  so,  the  further  question  remains  whether  the  plain- 
tiff can  hold  the  defendant  personally  liable  for  the  expense  in- 
curred after  the  demand.  At  common  law,  a  lienor  not  only 
had  the  right  to  keep  the  object  of  the  lien,  but  he  could  do 
nothing  ^^  else  with  it  if  he  desired  to  maintain  his  lien.  If 
he  lost  posseasion^  he  lost  his  lien;  if  he  sold«  he  was  guilty  of 
<»aTersion;  and,  although  there  is  now  quite  generally  some 
statutory  provision  for  a  sale,  still  there  can  be  no  doubt  that  in 
this  state  it  is  optional  with  the  lienor  whether  to  enforce  hia 
iien  under  the  statute  or  under  the  common  law.  The  plaintiff 
kept  ihe  horse,  as  he  had  a  right  to  keep  it,  and  he  kept  it  for 
the  defendant— 'that  is  to  say,  he  kept  it  so  that  when  the  som 
due  was  paid,  the  horse  could  be  delivered  up.  In  keeping  the 
hone,  the  plaintiff  was  performing  a  duty  he  owned  to  the  de- 
fendant^ which  was  to  keep  the  horse  for  him.  The  horse  must 
be  fed  or  die,  and  both  parties  knew  that.  It  does  not  appear 
tbit  the  defendant  ever  relieved  the  plaintiff  from  that  duty  by 
i;iving  him  to  understand  that  the  original  contract  by  which 
the  charge  of  keeping  was  to  be  at  the  defendant's  expense  was 
iiecessarily  ended  by  the  plaintiff's  refusal  to  give  up  the  horse 
unless  the  bill  was  paid,  or  that  he  never  should  discharge  the 
lien.  For  aught  that  appears  to  the  contrary,  the  defendant 
nay  have  acquiesced  in  the  position  of  the  plaintiff  as  reasonable 
and  in  acco^Lance  with  the  contract.  -If  he  intended  to  revoke 
the  contract  for  board,  he  should  have  manifested  that  intent. 
Under  these  circumstances,  we  think  that  the  law  raises  a  prom- 
ise on  the  part  of  the  defendant  to  pay  for  the  expense  iiicurred 
tfter  the  time  of  the  demand.  The  horse  was  left  by  the  de- 
fendant in  the  hands  of  the  plaintiff  without  the  latter's  fault, 
and  the  plaintiff  was  bound  to  take  reasonable  measures  for  its 
preservation.  For  this  expense  he  may  hold  the  horse  or  recover 
^^gainst  the  defendant :  See  Great  Northern  By.  Go.  v.  Swaffield^ 
L.  S.  9  Ex.  132. 

BioeptioBS  overruled* 


324  American  State  Reports,  Vol.  91.  [Masa. 

A  Bailee* 8  Lien  is  waived  by  an  vnqnaliiled  refusal  to  deliTor 
the  chattel  to  the  owner,  without  placing  the  refusal  on  the  grooad 
of  the  lien:  Hanna  ▼.  Phelps,  7  Ind.  21,  63  Am.  Dec.  410,  and  note* 


HOMANS  V.  BOSTON  ELEVATED  BAILWAY  COMPANY. 

[180  Mass.  456,  62  N.  E.  737.] 

DAMAGES  for  Kerrovs  Shock.— If  the  plaintifP,  in  eoBS»- 
quence  of  a  collision,  received  certain  physical  injuries  on  aeeoont 
of  which  the  defendant  is  liable,  and  also  a  nervous  shock,  she  is 
entitled  to  recover  for  the  consequences  of  the  shock,  whether  it  was 
due  to,  or  merely  accompanied,  the  visible  injury,     (p.  325.) 

Tort  for  injuries  snflfered  from  a  collision  near  the  snbway 
on  Boylston  street,  Boston,  by  which  the  plaintiff  waa  thrown 
against  the  seat  of  a  car,  receiving  certain  bruises  and  also  a  ner- 
vous shock  which  was  later  followed  by  paralysis.  Verdict  for 
the  plaintiff,  and  defendant  alleged  exceptiona 

P.  H.  Cooney  and  A.  I.  Peckham,  for  the  defendant. 
M.  Coggan,  for  the  plaintiff. 

^^'^  HOLMES,  C.  J.  This  is  an  action  for  personal  injur- 
ies. The  plaintiff  was  in  one  of  the  defendant's  cars  and  wa» 
thrown  against  a  seat,  receiving  a  slight  blow,  in  conaeqnence 
of  a  collision  for  which  the  defendant  was  to  blame.  She  after- 
ward had  a  good  deal  of  suffering  of  a  hysterical  nature,  and  the 
question  before  us  on  the  exceptions  concerns  the  rule  of  liabil- 
ity for  the  nervous  shock.  It  was  decided  in  Spade  y.  Ljfnn  etc. 
K.  B.  Co.,  172  Mass.  488,  70  Am.  St.  Bep.  298,  42  N.  E.  747, 
that,  if  the  defendant  was  a  wrongdoer,  it  must  answer  for  the 
actual  consequences  of  the  battery  to  the  plaintiff  as  she  was,  al- 
though she  might  be  abnormally  nervous.  It  was  also  decided, 
however,  that  if  a  nervous  ehod^  was  due  to  causes  for  which  the 
defendant  was  not  answerable,  such  as  the  behavior  of  a  drunken 
man  whom  it  was  engaged  in  removing,  it  could  not  be  held  for 
the  shock,  notwithstanding  its  liability  for  a  battery  happening 
at  the  same  time.  The  defendant,  by  various  requests,  tried  to 
press  the  latter  principle  so  far  as  to  require  the  plaintiff  to 
prove  that  the  nervous  shock  was  the  consequence  of  the  battery, 
whereas  the  judge  allowed  her  to  recover  for  a  shock  ending  in 
paralysis  if  it  resulted  from  a  jar  to  her  nervous  system  which 
aocompanied  the  blow  to  her  person.    It  was  understood,  of 


Feb.  1902.]     Houans  v.  Boston  Blsvatbd  By.  Co.  825 

couise,  that  the  jar  was  due  to  the  same  cause  as  the  blow,  and 
both  to  the  defendant's  fault. 

We  are  of  opinion  that  the  judge  was  right,  and  that  further 
refining  would  be  wrong.  As  has  been  explained  repeatedly,  it 
is  an  arbitrary  exception,  based  upon  a  notion  of  what  is  prac- 
ticable, that  prevents  a  recoveiy  for  visible  illness  resulting  from 
nervous  shock  alone:  Spado  v.  Lynn  etc.  B.  B.  Co.,  168  *** 
Mass.  286,  288,  60  Am.  St  Bep.  893,  47  N.  E.  88;  Smith  v. 
Postal  Tel.  Cable  Co.,  174  Mass.  676,  75  Am.  St.  Bep.  374,  66 
N.  E.  380.  But  when  there  has  been  a  battery  and  the  nervous 
shock  results  from  the  same  wrongful  management  as  the  bat- 
tery, it  is  at  leaat  equally  impracticable  to  go  further  and  to  in- 
quire whether  the  shock  comes  through  the  battery  or  along  with 
it  Even  were  it  otherwise,  recognizing,  as  we  must,  the  logic 
in  favor  of  the  plaintiff  when  a  remedy  is  denied  because  the 
only  immediate  wrong  was  a  shock  to  the  nerves,  we  think  that 
when  the  reality  of  the  cause  is  guaranteed  by  proof  of  a  sub- 
stantial battery  of  the  person,  there  is  no  occasion  to  press  fur- 
ther the  exception  to  general  rules.  The  difference  between  this 
case  and  the  Spade  case  in  its  second  presentation  is  that  in  the 
latter  the  defendant's  wrong,  if  any,  began  with  the  battery,  and 
it  was  not  responsible  for  the  previous  sources  of  fear,  whereas 
here  the  defendant  was  responsible  for  the  trouble  throughout. 
The  decisions^  although  not  explicit,  favor  the  conclusion  to 
which  we  have  come:  Canning  v.  Williamstown,  1  Cush.  451; 
Warren  v.  Boston  etc.  B.  B.  Co.,  163  Mass.  484,  487,  40  N.  E. 
895. 

Exceptions  OYerruled. 


Damace$  eannot  be  reeovered  for  mere  fright  or  mental  shock 
alone:  8t^  Louis  etc.  By.  Co.  v.  Bragg,  69  Ark.  402,  86  Am.  St.  Bep. 
206,  64  a  W.  226;  Lee  y.  Barlington,  113  Iowa,  366,  86  Am.  St. 
Bep.  379,  85  N.  W.  618.  But  damages  mar  be  bad  if  there  is  con- 
temporaneotui  physical  injury:  Nelson  ▼•  Crawford,  122  Mich.  466, 
80  Am.  8t.  Bc^  577,  81  N.  W.  885;  monographie  note  to  Gulf  ete. 
Ify.  Co.  y.  Hayter,  77  Am.  St.  Bep.  860. 


326  Amsbican  Statb  Bbpobts,  Vol.  91. 


EAELE  ▼.  COMMONWEALTH. 

[180  Haas.  579,  63  N.  R  10.] 

ISMINENT  DOMAIN— OoiistltQtioiuaitsr  of  SUtnto 
Damages.— It  is  within  the  power  of  the  legislature  to  authorise  tli« 
allowance  of  damages  in  proceedings  in  the  exercise  of  the  power 
of  eminent  domain,  though  such  danagee  are  of  a  charaeter  for 
which  it  need  not  have  authorized  such  allowance.  The  legialaturs 
i»  not  forbidden  to  be  just  in  some  eases  where  it  is  not  required 
to  be  by  the  letter  of  paramount  law.     (p.  329.) 

EBnNENT  DOMAIK— OenstitaUoaaUty  of  Stotntai  AJtamtag 

CkHnpensation  for  Iioss  of  Business.— A  statute  authorizing,  in  pro- 
ceedings in  the  exercise  of  the  power  of  eminent  domain,  an  al- 
lowance to  persons  who  have  the  possession  of  lands  in  a  specified 
town,  whether  such  lands  were  taken  or  not,  for  decrease  in  the 
value  of  business,  is  not  unconstitutional,     (p.  329.) 

EMINENT  DOMAIN— Owner  of  Established  Bnsfneas  on 
laaAf  Who  is.- Under  a  otatnte  proTiding  that  anyone  owntn^  an 
established  business  in  a  designated  town,  whether  on  lands  talcen 
or  not,  shall  be  allowed  damages  for  a  decrease  in  the  value  ef 
his  business,  whether  by  loss  of  custom  or  otherwise,  a  physician  -who 
has  his  office  in  a  house  belonging  to  his  wife,  which  is  taken  under 
the  act,  is  entitled  to  be  allowed  for  any  loss  accruing  to  hini  hj 
the  consequent  changing  of  his  place  of  business,     (p.  S29.) 

EMINENT  DOMAIN— Market  Value- When  not  the  Measure 
of  Damages.- Under  a  statute  allowing  compensation  for  decrease 
in  value  of  business  due  to  carrying  out  a  statute,  the  amotint  re- 
coverable is  not  measured  by  the  difference  in  the  market  value  of 
the  business  before  and  after  the  taking,  but  by  the  difference  in 
value  between  the  business  carried  on  before  the  proceeding  was 
taken  under  the  statute  and  a  similar  business  carried  on  by  the 
same  person  in  the  nearest  available  place,     (p.  330.) 

Petition  for  the  assessment  of  damages  tmder  section  14  of  the 
metropolitan  water  supply  act :  Stats.  1895,  c.  488.  The  section 
is  as  follows :  "In  case  any  individual  or  firm  owning  on  the  first 
day  of  April,  the  year  one  thousand  eight  hundred  and  ninety- 
ftve,  an  established  business  on  land  in  the  town  of  West  Boyl»- 
ton,  whether  the  same  shall  be  taken  or  not  under  this  act,  or 
the  heirs  or  porsonal  representatives  of  such  individual  or  firm, 
shall  deem  that  such  business  is  decreased  in  value  by  the  carry- 
ing out  of  this  act,  whether  by  loss  of  custom  or  otherwise ,  and 
unable  to  agree  with  said  board  as  to  the  amount  of  damages  to 
be  paid  for  such  injury,  such  damages  shall  be  determined  and 
paid  in  the  manner  hereinbefore  provided.*' 

The  petitioner  established  himself  as  a  practising  physician 
in  West  Boylston  in  1881.  He  continued  in  such  business,  and 
in  April,  1895,  resided  and  had  his  ofiSce  in  a  house  belonging  to 
his  wife,  and  which  was  taken  by  the  metropolitan  water  boards 


Fdb.  1902.]  Eablb  v.  Commohwsalth.  827 

aetmg  under  the  statute  above  referred  to.  He  had  built  up  a 
practise  extending  throughout  West  Boylston,  Holden,  Wert 
Sterling,  the  edge  of  Princeton,  Boylston  Center,  and  some  other 
places.  His  gross  income  up  to  1891  or  1892  was  about  $2,500 
per  year.  In  1893  he  doubled  the  charges  for  his  visits  and  con- 
saltations,  and  in  the  following  year  opened  an  of5ce  in  Worces- 
ter, which  he  kept  until  1898,  at  first  visiting  it  three  times  a 
week,  and  later  on  every  afternoon.  His  gross  income  in  1892 
was  $3,046.25;  in  1893,  $2,368.75;  in  1894,  $1,286.25;  in 
1895,  $1,365.25;  in  1896,  $1,316.20;  in  1897,  $1,073.25,  not 
including  his  Worcester  practice.  After  leaving  West  Boylston, 
in  1898,  he  went  to  New  York  and  studied  there  for  the  purpose 
of  becoming  a  specialist  in  diseases  of  the  eye.  He  resumed 
practice  in  Massachusetts  in  1901  as  a  specialist,  but  did  not 
afterward  earn  any  money  beyond  his  expenses. 

The  claim  of  petitioner  was  objected  to  on  the  ground  that  he 
had  not  shown  that  he  owned  '^an  established  business  on  land 
in  the  town  of  West  Boylston."  The  commissioners  found  that 
the  taking  of  the  land  at  West  Boylston  practically  embraced  all 
the  business  part  of  the  town,  wiped  out  all  important  indus- 
tries, and  necessarily  affected  the  petitioner  to  a  considerable  ex- 
tent, and  they  reported  that  if  the  court  should  be  of  *the  opin- 
ion that  the  provisions  of  section  14  covered  injuries  to  the 
business  of  a  practising  physician  who  resided  within  the  terri- 
tory taken,  and  visited  pati^its  there  and  in  neighboring  townsi^ 
and  there  had  his  established  office  to  which  patients  resorted  for 
advice,  that  the  petitioner  was  entitled  to  recover  damages. 

The  commonwealth  insisted  that  the  rule  of  damages  in  this 
ease  was  the  difference  between  the  market  value  of  the  business 
April  1,  1895,  and  its  market  value  after  carrying  out  the  pro- 
visions of  the  act,  and  requested  the  commissioners  to  rule  that 
the  petitioner  had  not  shown  that  he  owned  an  established  busi- 
ness in  or  on  the  land  in  the  town  of  West  Boylston,  and  was, 
therefore,  not  entitled  to  damages ;  that  if  he  was  entitled  to  re- 
cover at  all,  the  measure  of  damages  was  the  difference  between 
the  market  value  of  the  business  owned  by  him  on  land  in  West 
Boylston  on  the  1st  of  April,  1895,  and  its  market  value  after 
the  carrying  out  of  the  act;  that  the  commissioners  find  that 
ihe  establi^ed  business  owned  by  the  petitioner  was  not  de- 
creased in  value  by  carrying  out  the  act;  and  that  the  evidence 
of  what  petitioner  had  earned  since  the  abandonment  of  his 
general  practise  was  not  evidence  of  what  he  could  have  earned 
bsd  he  attempted  to  build  up  a  general  practise.    The  oommis* 


328  American  State  Bbports,  Vol.  91,  [Mass. 

€1  oners  refused  to  give  any  of  the  rulings  requested.  Begpond- 
«nt  excepted. 

The  petitioner  insisted  that  he  was  entitled  to  recover  such  a 
gam  of  money  as  would  give  him  the  equivalent  of  his  loss  of  in- 
•come  by  reason  of  the  taking,  for  such  reasonable  time  as  would 
he  required  to  get  back  into  a  practise  of  the  same  amount  which 
"he  had  had  in  West  Boylston  on  April  1,  1895.  If  the  court 
should  adopt  the  rule  of  damages  contended  for  by  respondent, 
the  commissioners  found  the  amount  would  be  $760.00,  but  if 
the  court  should  adopt  the  rule  of  damages  contended  for  by 
the  petitioner,  the  commissioners  found  the  amount  should  be 
^7,360. 

It  was  also  contended  that  the  provisions  of  section  14  were 
unconstitutional. 

E.  M.  Morse,  for  the  petitioner. 

J.  M.  Hallowell  and  A.  W.  DeOoosh^  assistant  attorneys  gen- 
eral, for  the  commonwealth. 

*«*  HOLMES,  C.  J.  This  is  a  petition  brought  by  a  prac- 
tising physician  to  recover  for  damage  to  his  business  by  tbe 
carrying  out  of  the  metropolitan  water  supply  act:  Stats.  1895, 
c.  488,  sec.  14.  The  case  was  referred  to  a  commission.  It  re- 
ports that  the  plaintiff  lived  and  had  his  office  in  West  Boylston, 
snd.  had  a  practise  which  extended  through  that  and  some  neigfa- 
iboring  towns.  The  taking  of  land  at  West  Boylston  necessarily 
iiffected  his  business  to  a  considerable  extent,  and  the  damages 
4ire  assessed  at  alternative  sums  according  to  the  rules  suggested 
by  the  plaintiff  and  defendant  respectively.  The  questions  of 
law  arising  on  the  report  were  reserved  by  one  of  the  justices  for 
the  consideration  of  the  full  court. 

The  commonwealth  in  the  first  place  contends  that  the  mate- 
rial portion  of  the  statute,  if  it  applies  to  cases  like  this,  is  un- 
constitutional. The  ground  seems  to  be  that  taxes  cannot  be 
levied  for  purposes  of  this  sort,  except  to  pay  for  property  taken 
or  destroyed,  and  that  the  business  of  a  doctor  is  not  property 
within  the  principle.  The  test  of  what  may  be  requiied  to  be 
•**  paid  for  if  destroyed  or  damaged  under  the  power  of  emi- 
nent domain,  is  not  whether  the  same  thing  could  have  been  sold, 
•nor  is  it  whether  the  destruction  or  harm  could  have  been  au- 
thorized without  a  provision  for  payment.  Very  likely  the 
plaintiff's  rights  were  of  a  kind  that  might  have  been  damaged, 
if  not  destroyed,  without  the  constitutional  necessity  of  compen- 


Jeb.  1902.]  Barlb  v.  Commonwbalth.  829 

cation.  But  some  latitude  is  allowed  to  the  legislature.  It  is 
not  forbidden  to  be  just  in  some  cases  where  it  ia  not  required 
to  be  by  the  letter  of  paramount  law.  We  think  it  so  plain  that, 
as  was  assumed  by  everybody  in  Sawyer  v.  Metropolitan  Water 
Board,  178  Mass.  267,  59  N.  E.  658,  the  provision  is  constitu- 
tional, that  we  prefer  to  say  so  without  stopping  to  consider 
whether  the  question  is  open :  See  Opinion  of  Justices,  175  Mass. 
599,  57  N.  E.  675 ;  Town  of  Guilford  v.  Supervisors  of  Chenango 
County,  13  N.  Y.  143,  149;  Blanding  v.  Burr,  13  Cal.  343; 
United  States  v.  Realty  Co.,  163  U.  S.  427,  16  Sup.  Ct.  Rep. 
1120 ;  Guthrie  Nat.  Bank  v.  Guthrie,  173  TJ.  S.  528,  536,  537 , 
19  Sup.  Ct  Rep.  613 ;  New  Orleans  v.  Qark,  95  U.  S.  644. 

Next  it  is  contended  that  the  petitioner  was  not  an  ^'individ- 
ual ....  owning  ....  an  established  business  on  land  in  the 
town  of  West  Boylston*'  within  the  meaning  of  section  14.  A 
majority  of  the  court  does  not  see  why  not.  The  defeudant 
cites  Ex  parte  Breull,  16  Ch.  Div.  484,  for  the  proposition  that 
the  word  ''business''  has  no  definite  technical  meaning.  We 
agree,  and  think  it  quite  wide  enough  to  include  the  practise  of 
a  doctor.  It  is  suggested  that  the  practise  was  not  established 
on  land  in  West  Boylston.  It  is  true  that  a  doctor  can  give  ad- 
vice elsewhere  than  in  his  office,  and  that  in  fact  he  does  so  to  a 
greater  extent  than  a  shopkeeper  sells  his  goods  outside  his 
shop.  But  no  less  than  a  shopkeeper  a  doctor  usually  has,  as 
the  petitioner  had,  a  locally  established  center  to  which  patients 
resort^  and  from  which  he  goes  his  rounds.  There  is  even  a 
certain  amount  of  salable  goodwill,  as  is  made  familiar  to  us  by 
English  law  and  literature  as  well  as  by  an  occasional  case  in 
our  own  reports:  Smith  v.  Bergengren,  153  Mass.  236,  26  N.  E. 
690. 

The  respondent  demanded  a  finding  or  ruling  that  the  peti- 
tioner's business  was  not  decreased  in  value  by  the  carrying  out 
of  the  act,  because  of  the  figures  given  for  his  income  in  1894 
and  1895,  and  later.  But  the  commission  may  have  found,  and, 
for  all  that  we  can  see,  rightly,  that  the  diminution  of  *^®*  in- 
come before  April  1,  1895,  was  due  to  precautions  taken  by  the 
petitioner  in  anticipation  of  the  change,  and  we  are  unable  to 
6ay  that  the  respondent's  request  should  have  been  granted. 

The  respondent  next  contends  that  the  measure  of  damages  is 
the  difference  in  the  market  value  of  the  business  between  April 
1, 1895,  and  after  the  act  was  carried  out.  This  recurs  to  the 
notion  that  the  only  interests  which  the  law  will  recognize  are 
salable  and  that  the  petitioner  can  recover  only  for  such  good- 


330  American  Statb  Bspobts,  Vol.  91.  [Mml 


will  as  might  have  been  transferred  for  cash.  The  word  * 
mg''  in  the  statute  is  invoked.  We  shall  not  speculate  whether 
ownership  of  an  equitable  life  estate  wonld  be  denied  to  a  lesratee 
deprived  of  the  right  of  alienation.  It  is  enough  to  say  that,  if 
the  petitioner's  business  is  within  the  protection  of  the  act  and 
''is  decreased  in  value/'  damages  are  to  be  paid  for  "such  in- 
jury"— ^that  is  to  say,  for  the  actual  decrease  in  value  of  thai 
business^  not  for  the  decrease  in  the  value  of  such  elements  in 
it^  only^  as  admitted  of  being  sold.  There  is  no  practical  diifi* 
culty  in  the  way  of  carrying  out  the  statute  according  to  its 
meaning.  The  money  value  of  the  petitioner's  business  oonU 
be  estimated^  even  though  absolutely  personal  to  himself. 

But  the  rule  suggested  by  the  petitioner  also  seems  to  u» 
unsafe  on  the  facts  before  us.  The  damage  theoretically  would 
be  the  difference  in  value  between  the  business  as  it  had  been 
and  as  it  was  left.  Perhaps  it  might  be  reached  by  taking  the 
difference  in  value  between  the  business  carried  on  as  it  was  in 
West  Boylston  and  a  similar  business  carried  on  by  the  peti* 
tioner  in  the  nearest  available  place,  bearing  in  mind  the  effect 
of  requiring  all  West  Boylston  patients  to  move.  It  may  be 
that  the  commission  will  find  as  a  practical  matter  that  the 
method  suggested  by  the  petitioner  is  as  near  as  can  be  got  to 
the  thing  to  be  determined,  but  as  the  case  stands  we  do  not  feel 
warranted  in  adopting  it.  The  commission  has  not  said  that  it 
could  not  make  an  estimate  on  more  obviously  correct  principles. 
It  has  confined  itself  to  finding  the  damages  according  to  the 
rules  suggested  on  the  two  sides. 

A  request  for  a  ruling  that  what  the  petitioner  had  earned  as 
a  specialist  since  his  abandonment  of  his  general  practise  could 
not  be  considered,  went  too  far.  Undoubtedly,  the  evidence  was 
not  very  important,  and  probably  it  was  not  regarded  as  being  so. 

Beport  recommitted. 


Damages  In  Eminent  Doma#i  do  not,  as  a  mlo,  iadvde  injiiTy  t» 
business  or  the  p:oodw}ll  thereof:  See  the  irono^aphie  aote  to  Board 
of  Trade  Tel.  Co.  ▼.  Darst,  85  Am.  8t.  Bep.  299. 


OASBS 


SUPREME  COURT 


OP 

MINNESOTA. 


ATWATEB  T.  SPALDING. 

[86  Minn.  101,  90  N.  W.  370.] 

EJISUTMENT— Complaint,  SnULciency  of.— A  complaint  i» 
cjeetment  alleging  that  plaintiff  is  the  owner  and  entitled  to  the- 
poBsesiion  of  the  land  deaeribed  therein,  and  that  it  is  wrongfidlj' 
withheld,  is  sufficient,  without  alleging  in  detail  the  particular  fact» 
vpim  which  his  claim  of  title  is  based,     (p^  331.) 

Welch,  Hajne  &  Hubachek,  for  the  appellant. 

Cohen,  Atwater  &  Shaw,  for  the  respondent. 

*^  COLLINS,  J.  In  Curtiss  v.  Livingston,  36  Minn.  880, 
31  N.  W.  357,  it  was  eaid,  obiter,  that  "in  ejectment  it  is  suffi- 
dent  for  plaintiff  to  allege  that  ^^^  he  is  the  owner  and  enti- 
tled to  the  possession,  and  that  the  land  is  wrongfully  withheld,, 
without  alleging  in  detail  the  partienlar  facts  on  whidi  his 
daiai  of  title  is  based.''  This  is  a  eorrect  statement  of  the  rale 
which  shonld  prevail  whenever  the  statute  requires,  as  it  does  in 
this  jurisdiction,  that  all  complaints  shall  contain  a  plain  and 
concise  statement  of  the  facts  constituting  the  cause  of  action, 
without  unnecessary  repetition.  That  it  would  be  so  held  by 
this  court  has  been  foreshadowed,  in  addition  to  the  case  above 
cited,  in  Kipp  v.  BuUard,  30  Minn.  84, 14  N.  W.  364;  Stuart  v. 
Lowry,  49  Minn.  91,  61  N.  W.  662 ;  Freeman  v.  Brewster,  70 
Mum.  203,  72  N.  W.  1068 ;  Parker  v.  Minneapolis  etc.  R.  R. 
Co.,  79  Minn.  372,  82  N.  W.  673 ;  while  the  case  of  McArthur 
v.  Clark,  86  Minn.  166,  post,  p.  333,  90  N.  W.  369,  seems  con- 
dusiYe  upon  the  question.  This  rule  has  been  indorsed  elsp- 
where:  Oarwood  v.  Hastings,  38  CaL  216;  Burt  y.  Bowles,  69 


332  American  Statb  Bbpobts^  Vol.  91.        [Miiul 

Ind.  1.  See,  also,  Johnson  v.  Crookshanks,  21  Or.  339,  28 
Pac.  78. 

There  are  courts  in  which  it  has  been  held  that  in  ejectment 
it  is  necessary  to  go  further,  and  set  up  in  the  complaint  the  na- 
ture, quality,  and  kind  of  ownership,  but  we  regard  these  deci- 
sions as  altogether  too  narrow  and  technical  for  code  pleading. 
'''Owner,*'  according  to  Black's  Dictionary,  is  the  person  *%i 
whom  is  vested  the  ownership,  dominion,  or  title  of  property." 
Webster  defines  an  ''owner*'  as  "one  who  owns;  a  rightful  pro- 
prietor; one  who  has  the  legal  or  rightful  title,  whether  he  ii 
the  possessor  or  not." 

In  actions  of  replevin,  a  plaintiff  may^  under  our  system,  al- 
l^e  generally  that  he  is  the  owner  and  entitled  to  the  immediate 
possession  of  the  property,  and  under  such  an  allegation  may 
prove  any  right  of  property,  general  or  special,  that  entitles  him 
to  possession:  Miller  v.  Adamson,  45  Minn.  99,  47  N.  W.  452; 
Adamson  v.  Wiggins,  45  Minn.  448,  48  N.  W.  186 ;  Cumbey  ▼. 
Lovett,  76  Minn.  227,  79  IT.  W.  99.  There  is  no  reason  why  tho 
same  rule  should  not  apply  in  ejectment.  Both  actions  are  pos- 
sessory. It  is  the  "possessory  title"  which  is  important^  and  in 
both  the  plaintiff  must  show  that  he  is  entitled  to  immediate 
possession  in  order  to  recover,  no  matter  in  what  form  his  title 
may  be. 

Order  affirmed. 


B feeiment. ^In  an  action  to  reeover  real  property  under  tlie  eods 
system  of  pleading,  no  partieolar  form  of  complaint  la  neee— ary;  it 
is  only  required  that  it  shonld  be  adapted  to  the  estate  sought  ts 
he  recovered  and  the  facts  desired  to  be  put  in  issue:  Caperton  ▼. 
Schmidt,  26  CaL  479,  85  Am.  Dee.  187.  A  general  allegatioB  of 
ownership  is  suiBeieatx  ICeArthnr  t.  Olark,  86  Minn.  166,  po^  p^ 
883,  90  N.  W.  869. 


Haj,  1902.]  McAbthub  v.  Clabk.  88a 


MisAETHUB  v.  CLABK. 

[86  Minn.  165,  90  N.  W.  369.] 

OWKZBSHIP— Pleading.— A  general  allegation  of  ownersliip 
of  real  property,  in  a  pleading  in  either  a  legal  or  an  equitable  ao* 
tion,  is  raffieient  to  admit  proof  of  any  legal  title  held  by  the- 
piaader.     (p.  334.) 

PABTinOK.— Bnles  of  Pleading,  Practise  and  IBvidence  ap- 
plicable generally  to  eiyil  actions  apply  to  an  action  for  partition* 
(p.  334.) 

PABTinOK— Pleading  and  Proof— AdTerse  Ponession.— A 
general  aUegation  by  a  defendant  in  his  answer  to  a  suit  in  par- 
tition, of  his  ownership  of  the  property,  is  snfficient  to  admit  proof 
of  bis  title  by  adverse  possession,  and  the  effect  of  such  eyidencO' 
is  not  only  to  bar  plaintiff's  right  of  action,  but  also  to  establish 
an  absolute  legal  title  in  the  defendant,    (p.  334.) 

W.  H.  Harries,  for  the  appellant. 
Dnzbury  &  Dnzbury,  for  the  respondents. 

^^  BROWN,  J.  Action  for  partition.  Defendants  had  jndg* 
ment,  and  plaintiff  appealed  from  an  order  denying  her  motion 
for  a  new  trial. 

There  is  only  one  question  presented  in  the  case,  and  tiiat  is- 
whether  the  trial  court  erred  in  receiving  evidence  offered  by 
defendants  tending  to  show  title  in  them  to  the  land  in  contro- 
versy by  adverse  possession. 

Plaintiff  alleges  in  her  complaint,  in  general  terms,  that  she 
is  the  owner  of  an  undivided  three-fourths  of  the  land  in  contro-^ 
versy,  that  the  defendants  are  the  owners  of  an  undivided  one- 
foitrih,  that  she  is  desirous  of  having  a  partition  of  the  land,, 
and  prays  judgment  accordingly.  The  defendants  answer  (a) 
by  a  general  denial;  and  (b)  that  the  defendants  are  the  owners 
in  fee  of  the  land  described  in  the  complaint,  and  in  the  posses- 
sion thereof,  and  that  plaintiff  has  no  right,  title,  or  interest 
therein.  Plaintiff  did  not  disclose  in  the  complaint  the  source 
of  her  title,  nor  do  defendants  disclose  the  source  of  their  title. 
On  the  trial,  plaintiff  offered  certain  documentary  evidence  tend- 
ing to  show  the  title  to  the  property  to  be  as  alleged  in  the  com- 
plaint, and  rested  her  case,  whereupon  defendants  offered  evi- 
dence tending  to  show  that  they  had  been  in  actual,  open,  no- 
torious, and  continuous  possession  of  the  land  for  more  than  fif- 
teen years,  to  which  counsel  for  appellant  objected  on  the  ground 
that  defendants  had  not  alleged  any  such  title  in  their  answer. 
The  court  overruled  the  objection,  received  the  evidence,  and 


334  American  State  Bbpobtb^  Vol.  91.        [Mmn. 

found  as  a  fact  that  defendants  were  the  owners  of  the  land  in 
controversy,  by  reason  of  such  adverse  possession ;  and  judgment 
was  ordered  in  their  favor.  The  only  question^  as  already  sug- 
gested, is  whether  the  evidence  tending  to  prove  defendants' 
title  was  admissible  under  the  answer;  the  same  not  having  been 
specifically  pleaded. 

The  rule  has  long  been  settled  in  this  state  in  respect  to  •&• 
tions  concerning  rights  in  real  prop^ty,  and  also  rights  in  per- 
«onal  property,  *•''  that  a  general  allegation  of  ownership  in  a 
pleading  is  sufficient  to  admit  proof  of  any  legal  title,  general 
or  special:  Kipp  v.  Bullard,  30  Minn.  84,vl4  N.  W.  364;  Wdla 
v.  Masterson,  6  Minn.  401  (566) ;  Miller  ▼.  Adamson,  45 
Minn.  99,  47  N.  W.  452;  Adamson  v.  Wiggins^  45  Minn. 
448,  48  N.  W.  185 ;  Stuart  v.  Lowry,  49  Minn.  91,  61  N.  W. 
€62 ;  Travelers'  Ins.  Co.  v.  Walker,  77  Minn.  438,  80  N.  W.  618 ; 
Freeman  v.  Brewster,  70  Minn.  203,  72  N".  W.  1068.  An  alle- 
gation of  title  in  general  terms,  without  stating  the  souroe 
thereof,  is  an  allegation  of  legal  title  only,  and  under  such  an 
allegation  any  legal  title  may  be  shown:  Stuart  v.  Lowry,  49 
Minn.  91,  51  N.  W.  662. 

Though  this  is  an  action  for  partition,  and  may  be  classed,  as 
counsel  for  appellant  contends,  as  an  equitable  proceeding  Gen. 
Stats.  1894,  c.  74,  under  which  it  is  authorized  and  conducted, 
expressly  provides  that  the  proceedings  shall  be  governed  by 
the  rules  and  provisions  of  law  applicable  to  civil  actions;  and, 
in  the  nature  of  things,  this  includes  all  rules  relating  to  plead- 
ing, practise,  and  evidence  applicable  to  ordinary  civil  actions. 
In  a  complaint  in  ejectment,  or  an  action  to  determine  adverse 
claims,  or  in  any  action  where  the  title  to  real  property  is  in- 
volved, under  a  general  allegation  of  ownership  in  the  com- 
plaint a  title  by  adverse  possession  may  be  shown.  No  reason 
occurs  to  us  why  the  same  rule  should  not  apply  to  an  answer 
and  to  a  case  where  the  defendant  alleges  generally  that  he 
is  the  owner  of  the  property  involved  in  the  action,  and  entitled 
to  its  possession.  If  the  plaintiff  may  prove  title  by  adverse 
possession  under  such  a  general  allegation,  clearly  the  same 
rule  should  apply  to  the  defendant. 

Proof  of  facts  constituting  title  by  adverse  possession  is  more 
than  mere  proof  of  the  statute  of  limitations,  as  respects  plain* 
tiflf's  right  of  recovery.  It  goes  beyond  this,  and  not  only  bars 
his  right  of  action,  but  shows  an  absolute  legal  title  in  de- 
fendant: Nelson  v.  Brodhack,  44  Mo.  596,  100  Am.  Dec.  S28; 
Oldig  V.  Fisk,  53  Neb.  156,  73  N.  W.  661 ;  Pink  v.  Dawson, 


Maj»  1902.]  Mc Arthur  9.  Clark.  836 

52  Neb.  647,  72  N.  W.  1037 ;  Donahue  v.  Thompson,  60  Wis. 
500,  19  N.  W.  520;  13  Bncy.  of  PI.  &  Pr.  284.  There  can 
be  no  distinction,  so  far  as  this  role  of  pleading  is  concerned, 
between  legal  and  equitable  actions.  Of  course,  if  an  equitable 
title  is  relied  upon,  all  facts  constituting  it  must  be  specially 
pleaded,  but  *^*®  a  legal  title  may  be  shown  under  a  general 
allegation :  Freeman  t.  Brewster,  70  Minn.  203,  72  N.  W.  1068. 
A  general  allegation  of  ownership  in  an  equitable  action,  whether 
shown  in  the  complaint  or  answer,  is  just  as  effective  and  com* 
prehensive  as  in  an  action  at  law,  and  admits  of  similar  proof 
of  title:  Buckholz  t.  Grant,  15  Minn.  329  (406);  Curtiss  v. 
Livingston,  36  Minn.  380,  31  N.  W.  357;  Souter  v.  Maguire, 
78  Cal.  543,  21  Pac  183;  Schneider  v.  Sdbert,  50  HI.  284; 
UcKenzie  v.  Baldridge,  49  Ala.  564. 

If  the  mere  question  as  to  whether  plaintiff's  right  of  action 
wag  barred  by  the  statute  of  limitations  was  alone  involved, 
then,  within  the  decisions  of  this  court,  the  statute  would  not 
be  available  to  defendant  unless  pleaded.  But  the  defense  of 
title  by  adverse  possession  in  the  case  at  bar,  as  we  have  already 
suggested,  goes  further  than  to  bar  the  plaintiffs  right  of  ac- 
tion. It  establishes  legal  title  to  the  property  in  defendants. 
Clearly,  under  our  rules  of  pleading  in  actions  of  this  kind, 
whatever  may  be  the  rule  in  other  states,  the  allegations  of  the 
answer  were  sufficient,  and  the  evidence  was  properly  received 
thereunder:  La  Plante  v.  Lee,  83  Ind.  159;  Hill  v.  Bailey,  8 
Kg.  App,  85. 

Order  aflBrmed. 


Plending, — In  ejectment  the  defendant  may  prove  a  preseripUve 
title  in  support  of  his  general  denial  of  the  plaintiff's  ownership: 
Chealham  v.  Tonng,  113  N.  C.  161,  37  Am.  St.  Rep.  617,  18  S.  B. 
92;  Stocker  v.  Green,  94  Mo.  280,  7  8.  W.  279,  4  Am.  St.  Rep. 
382,  and  note.  In  fact,  he  may  introduce  any  evidence  tending  to 
defeat  the  plaintiff's  title:  Sparrow  v.  Rhoades,  76  Gal.  208,  9  Am. 
St.  Bep.  197,  18  Pae.  245.  And  a  complaint  alleging  that  the  plain* 
tiff  is  the  owner  and  entitled  to  the  possession  of  the  land  described 
and  that  it  ia  wrongfully  withheld,  is  sufficient:  Atwater  v.  Spald- 
ing^ 86  Minn.  101,  ante,  p.  381,  90  N.  W.  370. 


336  American  State  Beports^  Vol.  91.         [Minn. 

NOETHEEN  PACIFIC  EAILWAY  COMPANY  v.  OWENS. 

[86  Minn.  188,  90  N.  W.  871.] 

OFFIOEB8— Liability  for  Moneys  Stolen  ftom.— If  a  statute^ 
either  in  direct  terms  or  from  its  general  tenor,  imposes  a  dntj  Qpo» 
a  public  ofiScer  to  pay  over  money  received  by  him  in  his  official 
capacity  either  for  the  public  or  private  parties,  the  obligation  thu» 
imposed  is  an  absolute  one  and  binding  on  his  sureties.  The  plea 
that  the  money  has  been  stolen  or  lost  without  his  fault  does  not 
constitute  a  defense  to  an  action  for  its  recovery.  This  rule  applies 
to  a  clerk  of  a  district  court  as  to  money  reeeiyed  nnder  eondemna* 
tion  proceedings,     (pp.  840,  342.) 

J.  L.  Washburn  and  W.  D.  Bailey,  for  the  appeUant 

L.  C.  Harris  and  DaviSy  Hollister  &  Hicks,  for  the  respondentia 

*«®  STAKT,  C.  J.  The  material  facts  of  this  case  neceesaiy 
to  be  here  stated  are  these:  John  Owens,  hereafter  designated 
as  the  ^^defendant/'  was  clerk  of  the  district  court  of  the 
county  of  St  Louis  for  four  years,  his  term  ending  January 
2,  1899.  Upon  assuming  the  duties  of  the  office,  he  gave  a 
bond  as  principal,  with  his  codefendants  as  sureties,  *•••  con- 
ditioned for  the  faithful  discharge  of  his  official  duties.  There 
was  paid-  to  him  by  his  predecessor  two  thousand  seven  hundred 
and  eighty-nine  dollars  and  seventy-five  cents,  which  had  been 
paid  to  the  clerk  of  the  court  in  certain  pending  condemnation 
proceedings,  pursuant  to  the  provisions  of  the  General  Statutes 
of  1894,  section  2649.  He  accepted  the  money  in  his  official 
capacity,  and  deposited  it  in  the  Marine  National  Bank  of 
Duluth,  in  his  name  as  clerk  of  such  court.  He  never  obtained 
any  order  of  the  court  designating  the  bank  as  a  depositary  of 
such  money,  nor  was  any  such  order  ever  made.  Subsequent 
to  the  making  of  this  deposit,  and  before  the  court  ordered  its^ 
payment  to  the  party  entitled  to  it,  the  bank  became  insolvent, 
and  went  into  the  hwidsof  a  receiver  in  November,  1896.  The 
receiver  paid  to  the  defendant  sixty-five  and  one-half  per  cent 
of  the  sum  so  deposited.  The  amount  so  paid  he  turned  over 
to  his  successor  in  office,  and  no  more.  Such  proceedings  were 
thereafter  had  in  the  condemnation  proceedings  that  on  Feb- 
ruary 27,  1900,  the  court  ordered  two  thousand  dollars  of  the 
sum  originally  paid  to  the  defendant  to  be  paid  to  the  plain- 
tiff; but  the  then  clerk,  having  received  only  thirteen  hundred 
and  ten  dollars  from  the  defendant,  paid  over  only  that 
amount,  leaving  six  hundred  and  ninety  dollars  unpaid.  This 
balance  the  plaintiff  duly  demanded  of  the  defendaiit,  who 


May,  1902.]    Northern  Pacific  Ry.  Co.  v.  Owsn8.  887 

fused  to  pay  ii  Thereupon  this  action,  by  leave  of  the  court, 
was  brought  upon  the  defendant's  official  bond,  to  recover  the 
balance  of  the  fund  which  was  lost  by  the  failure  of  the  bank. 
At  the  time  the  deposit  was  made  the  bank  was  solvent,  and 
in  making  it,  and  permitting  it  to  remain  therein,  the  defend- 
ant acted  in  good  faith,  and  with  reasonable  care  and  diligence. 
Hie  trial  court,  as  a  conclusion  of  law  from  these  facts,  directed 
judgment  for  the  defendants  upon  the  merits.  The  plaintiff 
appealed  from  an  order  denying  its  motion  for  a  new  trial. 

The  sole  question  presented  by  the  record  for  our  decision  is 
whether  a  clerk  of  the  district  court  of  this  state,  and  the  sureties 
upon  his  official  bond,  are  liable  for  money,  whether  belonging  to 
the  public  or  to  individuals,  deposited  with  him  in  his  official 
capacity,  when  it  is  lost  without  fault  or  negligence  on  his  part. 
Or,  in  other  words,  is  a  clerk  of  the  court  absolutely  liable  for 
funda  deposited  with  him  in  his  official  capacity? 

The  liability  of  public  officers  at  common  law  for  funds  de- 
posited with  them  was  substantially  that  of  a  bailee  for  hire, 
and  they  *®®  were  not  liable  for  the  loss  of  such  funds  if  it 
oocurred  without  their  fault.  This,  however,  is  not  the  measure 
of  the  liability  of  such  officers  and  the  sureties  on  their  official 
bonds  in  this  state.  The  question  of  the  liability  of  public 
officers  for  funds  deposited  with  them  in  their  official  capacity 
is  one  of  first  importance.  The  decisions  of  the  courts  of  the 
country  are  not  uniform  upon  the  question.  A  majority  of  the 
courts  which  have  passed  upon  the  question  hold,  upon  grounds 
of  public  policy,  and  upon  a  consideration  of  the  provisions  of 
the  statute  and  the  conditions  of  the  official  bond  in  each  par- 
ticular case,  to  the  doctrine  of  the  absolute  liability  of  such 
officers  for  the  loss  of  public  money  received  by  them  in  their 
official  capacity.  Other  able  courts,  however,  have  followed 
the  common-law  rule.  We  find  it  unnecessary  to  enter  upon 
any  general  discussion  of  the  question,  for  this  court  thirty  years 
ago  adopted  the  rule  of  absolute  liability,  and  has  ever  since 
enforced  it.  The  only  doubtful  questions  in  this  case  are 
whether,  in  view  of  the  provisions  of  the  statutes  relating  to 
the  duties  of  the  clerk  of  the  district  court,  the  rule  applies  to 
such  officer,  and  further,  if  so,  whether  it  extends  to  private 
fonds  deposited  with  him  in  legal  proceedings. 

1.  The  first  question  is  to  be  answered  by  a  review  of  the 
decisions  of  this  court  upon  the  subject  and  the  reasons  therefor. 
The  first  case  on  this  subject  was  County  Commra.  of  Hennepin 
Go.  V.  Jones,  18  Minn.  182  (199).    It  was  an  action  upon  a 

Am.  St.  Repw,  Vol.  tD— 22 


338  American  State  Bbports,  Vol.  91.        [Miiin. 

county  treasurer's  ofBdal  bond,  conditioned  that  he  ''shall  .  .  •  • 
safely  keep  and  faithfully  pay  over  according  to  law  all  moneys 
which  come  into  his  hands/'  ^hich  were  the  conditions  provided 
for  by  statute.  The  defense  was  that  the  fundfl  which  tiie 
treasurer  failed  to  pay  oyer  were  stolen  from  the  county  safe 
without  any  fault  on  his  part;  but  the  court  held  this  to  be  no 
defense^  for  the  reason  that  the  treasurer,  by  reason  of  &e 
conditions  of  his  bond  and  the  provisions  of  tiie  statute,  was 
absolutely  liable  for  all  public  money  deposited  with  hinu  The 
court,  however,  discussed  generally  the  question  of  the  liability 
of  public  ofBcers  for  money  deposited  with  them  in  their  official 
capacity,  as  ajlected  by  considerations  of  public  policy,  and  by 
implication,  at  least,  approved  the  doctrine  of  the  absolute 
liability  of  public  officers  for  public  funds,  based  '^  upon  con- 
siderations of  public  policy,  as  laid  down  in  the  case  of  United 
States  V.  Prescott,  3  How.  578. 

The  next  case  was  County  Commis.  of  McLeod  Go.  t.  Gilbert, 
19  Minn.  176  (214),  which  waa  an  action,  not  upon  an  ofBdal 
bond,  but  one  to  recover  from  the  county  treasurer  oertain  taxes 
which  he  had  collected,  and  failed  to  pay  over  or  to  account 
for.  The  defendant  admitted  the  receipt  of  the  money,  and  al- 
leged as  a  defense  that  it  was  stolen  from  the  county  safe  with- 
out any  neglect  or  fault  on  his  part  This  plea  the  court,  fol- 
lowing the  Jones  case,  held  to  be  no  defense,  for  the  reason  that 
the  same  degree  of  responsibility  enforced  in  that  case  rested 
upon  a  county  treasurer,  independent  and  outside  of  his  lia- 
bility upon  his  official  bond.  The  statute  then  in  force  was 
to  the  effect  that  the  treasurer  should  pay  over  all  moneys  re- 
ceived by  him,  and  account  therefor  according  to  law.  The 
court  stated  that  it  had  not  referred  to  considerations  of  pub- 
lic policy,  as  affecting  the  responsibility  which  should  be  ex- 
acted from  public  officers  for  money  held  by  them  as  such,  for 
the  reason  that  it  was  tmnecessary  to  add  anything  to  what 
was  said  on  the  point  in  the  first  case. 

The  third  case  was  Board  of  County  Commrs.  of  Redwood  Co. 
V.  Tower,  28  Minn.  45,  8  N.  W.  907,  which  was  an  action  upon 
the  defendant's  official  bond  as  county  treasurer,  conditioned, 
as  provided  by  the  statutes,  for  the  faithful  execution  of  the 
duties  of  his  office,  and  the  safekeeping  and  paying  over  accord- 
ing to  law  of  all  moneys  which  come  into  his  hands.  The  al- 
leged breach  was  that  the  defendant  had  failed  to  pay  over  cer- 
tain money  belonging  to  the  county.  The  answer  alleged  that 
the  money  was  received  on  a  day  named  too  late  to  be  deposited 


May,  1902.]    Nokthbrn  Pacific  Ry.  Co.  v.  Owbnb.  389 

in  the  county  depositary,  and  was  placed  in  the  county  safe, 
from  which  it  was  stolen  without  any  fanlt  of  the  defendant. 
The  court  held  that  the  alleged  facts  had  no  tendency  to  relieve 
the  treasurer  from  liability,  citing  the  Jones  and  Gilbert  cases, 
without  comment. 

Next  in  order  was  Board  of  Education  v.  Jewell^  44  Minn. 
427,  20  Am.  St.  Eep.  686,  46  N.  W.  914,  which  was  an  action 
upon  the  official  bond  of  the  defendant,  as  treasurer  of  an  in- 
dependent school  district,  for  money  received  by  him,  but  never 
paid  out  by  him,  nor  delivered  to  his  successor  in  office.  The 
defense  was  that  the  money  was  locked  in  ^®*  an  iron  safe  in 
his  place  of  business,  from  which  it  was  stolen  by  burglars 
without  his  fault.  The  statute  then  in  force  (Gen.  Stats.  1878, 
c  86,  see.  107)  relating  to  the  bond  and  duties  of  such  treas- 
urer required  him  to  execute  a  bond  ^conditioned  for  the  faifh- 
fnl  discharge  of  his  duties  as  treasurer.'^  It  also  declared  iliat 
the  treaffurer  diould  receive  and  pay  out  upon  the  order  of 
the  board  all  moneys  belonging  to  the  district,  and  pay  to  his 
snocesser  in  office,  upon  demand,  all  money  in  his  hands  be- 
hmging  to  tiie  district.  His  bond,  in  addition  to  the  condition 
teqnired  by  the  statute,  also  provided  that  he  ''shall,  at  the 
expiration  of  his  term  of  office,  pay  over  to  his  successor  in 
effioe  all  moneys  remaining  in  his  hands  as  treasurer."  The 
court  held  that  the  fact  that  the  money  was  stolen  from  Ike  Ae- 
feodant  without  his  fault,  was  not  a  defense  to  the  action.  The 
opinion,  by  Justice  Dickinson,  is  an  able  one,  and  fully  discusses 
the  question  upon  principle  and  authority,  and  cites  net  only  the 
dedsions  of  this  court,  but  the  leading  cases  in  otiier  jurisdie- 
tions.  T%ie  conclusion  reached  was  that  ^where  the  stetute  in 
direct  terms,  or  from  its  general  tenor,  imposes  the  duty  to  pay 
e? er  puUic  moneys  received  and  held  as  such,  and  no  condition 
hmiting  that  obligation  is  discoverable  in  the  statute,  the  obliga- 
tion thus  imposed  upon  and  assumed  by  the  officer  will  be  deemed 
to  be  absolute,  and  the  plea  that  the  money  has  been  stolen  or 
lost  without  his  fault  does  not  constitute  a  defense  to  an  action 
for  its  recoTery.''  This  conclusion  was  rested  not  oaoly  upon  the 
tenns  of  the  statute  and  the  conditions  of  tiie  bond,  but  upon 
familiaT  considerations  of  public  policy. 

The  last  case  was  State  v.  Bobleter,  83  Minn.  479,  86  N".  W. 
461,  which  was  an  action  on  the  defendant's  bond  as  state  treas- 
luer  for  money  received  in  his  official  capacity,  and  not  paid  to 
Us  sBccesBor,  because  it  had  been  lost  by  the  failure  of  certain 
itate  JtopoBitariBB  in  which  it  was  deposited..    His  bond  was  eon- 


340  American  State  Beports,  Vol.  91.        [Minn^ 

ditioned  for  the  faithful  discharge  of  the  duties  of  his  oGBce,  and 
the  statute  imposed  upon  him  the  duty  of  safely  keeping  the  pub- 
lic money,  and  paying  it  out  as  directed  by  law.  This  court,  ap* 
proving  United  States  v.  Prescott,  3  How.  578,  expressly  recog- 
nized and  enforced  the  rule  of  the  absolute  liability  of  pnblie 
officers  for  money  in  their  hands  as  such,  for  the  reason  that  the 
statute  (Gen.  Stats.  1894,  sec,  344,  subd.  2)  providing  *•"  for 
state  depositaries  expressed  the  purpose  not  to  impair  such  lia* 
bility. 

The  conclusion  which  we  draw  from  this  review  of  our  own 
decisions  is  this:  It  is  the  settled  law  of  this  state  that,  where  • 
statute,  either  in  direct  terms  or  from  its  general  tenor,  impoBe» 
the  duty  upon  a  public  officer  to  pay  over  moneys  received  and 
held  by  him  in  his  official  capacity,  the  obligation  thus  imposed 
is  an  absolute  one,  unless  it  is  limited  by  the  statute  imposing  the 
dutv  or  the  conditions  of  his  official  bond. 

This  brings  us  to  the  question  whether  the  rule  applies  to  m 
clerk  of  the  district  court.  Counsel  for  the  defendant  concede 
that  it  was  his  official  duty  as  clerk  to  receive  the  money  in  qne9- 
tion,  and  turn  it  over  to  his  successor,  if  it  had  not  been  lost 
without  his  fault.  But  it  is  insisted  that,  to  make  him  an  in- 
surer of  the  fund,  he  must  have  contracted  to  be  one,  in  effect^ 
in  his  bond,  or  the  statute  under  which  the  bond  was  given  mnst 
have  so  provided,  and  that  neither  his  bond  nor  the  statute  im- 
poses upon  him  the  liability  of  an  insurer  of  the  fund« 

The  statutory  condition  of  the  bond  of  a  clerk  of  the  district 
court  is  predsdy  the  same  as  in  the  bond  of  the  state  treaauier 
and  that  of  the  treasurer  of  an  independent  school  district  The 
statutory  condition  in  each  case  is  that  the  officer  ''shall  faith- 
fully discharge  his  official  duties.'^  This  does  not  imply  any 
limitation  of  the  liability  imposed  by  law  upon  such  treasurer  or 
clerk  for  a  failure  to  discharge  any  of  his  official  duties.  The 
question,  then,  is  narrowed  to  the  inquiry  whether  the  statute  re- 
lating to  the  duties  of  clerks  of  the  district  court,  either  in  direct 
terms  or  from  its  general  tenor,  imposes  upon  tiiem  the  duty  to 
pay  over  money  received  by  them  in  their  official  capacity.  The 
statutory  provisions  as  to  the  duties  of  such  clerks  touching  the 
care  and  payment  of  money  deposited  with  them  are  meager. 
We  have  no  statute  which  specifically  requires  him  to  pay  over 
such  money  on  the  order  of  the  court,  or,  if  no  such  order  is 
made  during  his  term,  then  to  his  successor  in  office.  The  clerk 
of  the  district  court,  however,  unless  a  court  depositary  has  been 
appointed,  is,  by  the  settled  practise  of  the  court,  recognized  by 


May,  1902.]    Northern  Pacific  Ry.  Co.  v.  Owens.  841 

tiie  statute  as  the  oflScial  *®*  custodian  of  all  moneys,  Trhether 
public  or  private^  paid  into  conrt^  and  bound  to  safely  keep  them, 
and  pay  iiiem  out  on  the  order  of  the  court,  or  deliver  them  to 
to  his  fitsccessor.  It  is  provided  by  the  General  Statutes  of  1894, 
section  866,  that :  ''Every  derk  of  the  district  court,  before  en- 
tering on  the  duties  of  his  office,  shall  execute  a  bond  to  the 
board  of  county  commissioners,  with  two  or  more  sureties,  ap- 
proved by  said  board,  in  the  penal  sum  of  one  thousand  dollars, 
conditioned  for  the  faithful  discharge  of  his  official  duties,  and 
take  and  subscribe  the  oath  required  by  law ;  which  oath  and  bond 
diall  be  filed  and  recorded  in  the  office  of  the  register  of  deeds; 
provided,  that  the  judge  of  the  district  court  in  any  county  may 
order  all  monevB,  paid  into  court  to  abide  the  result  of  any  legal 
proceedings,  to  be  deposited,  until  the  further  order  of  said  court, 
in  some  duly  incorporated  bank  or  banks,  to  be  designated  by 
the  court  as  such  depositary;  or  said  judge,  on  application  of 
any  person  or  corporation  paying  such  money  into  court,  may  re- 
quire said  clerk  to  give  an  additional  bond,  with  like  effect  as  the 
bond  provided  for  in  this  section,  in  such  amount  as  said  judge 
shall  deem  sufficient.  That  the  clerk  of  said  district  court  shall 
be  entitled  to  receive  a  commission  of  one  per  cent  on  every  dol- 
lar for  receiving  and  paying  over  money  which  may  be  deposited 
with  him,  to  wit :  One-half  of  such  commission  for  receiving,  and 
the  other  half  for  paying,  the  same*  Said  per  cent  to  be  paid  by 
the  party  depositing  the  money/' 

Sections  2649  and  2650  of  the  General  Statutes  of  1894,  pro- 
vide that  in  condemnation  proceedings  the  railroad  company,  if 
in  doubt  as  to  tiie  party  entitled  to  the  damages,  or  any  portion 
hereof,  awarded  for  land  taken  for  its  railway,  may,  upon  filing 
an  affidavit  to  that  effect  with  the  derk  of  the  court  in  which  the 
pioceedingB  are  pending,  pay  the  amount  thereof  into  court,  and 
be  released  from  further  liability  in  the  premises.  And  when 
the  court  finally  detennines  to  whom  the  fund  belongs,  it  must 
be  paid  upon  its  order  to  them.  Again,  in  actions  for  partition 
of  real  estate,  if  a  sale  is  ordered  of  the  premise8>  and  there  ifl 
any  question  as  to  whom  any  portion  of  the  proceeds  thereof  be- 
longs, the  clerk  of  the  court  must  receive,  hold,  and  invest,  sub- 
ject to  the  order  of  the  court,  such  portion  for  the  use  and  benefit 
of  the  parties  entitled  thereto :  Gen.  Stats.  1894,  sec.  5809.  So, 
also,  in  an  action  where  there  are  adverse  claimants  to  money 
^hich  the  plaintiff  seeks  to  recover  from  the  defendant,  he  may 
pay  the  amount  thereof  to  the  clerk  of  the  court:  Laws  ^^ 
1895,  c.  329.    A  surety  on  a  forfeited  recognizance  may  pay  the 


S4B  American  Statb  Bbforts^  Vol.  91.        [IGbb* 

amoimt  thereof  to  tiie  clerk  of  the  courty  and  be  disehai^cd  f  roi^ 
further  liability:  Gen.  Stats.  1894,  eec.  7158.  And  money  ac- 
cepted by  a  magistrate  in  lieu  of  a  recognizance,  where  the  d&* 
fendant  is  held  to  bail  to  await  the  action  of  the  grand  jury,, 
must,  it  would  seem,  be  delivered  to  the  clerk  of  tiie  district 
court,  as  a  substitute  for  a  recognizance :  Gen.  Stats.  1894,  secsi. 
7149,  7156. 

It  is  clear  from  the  general  tenor  of  these  statutes  that  ihc^ 
impose  upon  the  clerk  of  the  district  court  tiie  duly  of  receiving 
keeping,  and  paying  over  on  the  order  of  the  court,  or  to  his  sno* 
cesser  in  office,  all  money  paid  into  court  or  to  him.  We  there* 
fore  hold  that  the  rule  of  absolute  liability  of  public  officers  and 
the  sureties  on  their  official  bonds  for  moneys  receiyed  by  them 
in  their  official  capacity,  as  declared  and  enforced  in  this  comt 
in  actions  against  state,  county,  and  school  district  treasurers^ 
rsspectiyely,  applies  to  clerks  of  the  district  court  and  the  sure- 
ties  on  their  official  bonda 

2.  Does  this  rule  extend  to  private  funds — ^that  is^  funds  le* 
ceived  by  a  public  officer  by  virtue  of  his  office,  which  are  ulti- 
mately to  be  paid  by  him  to  private  parties?  It  is  urged  by 
counsel  for  one  of  the  sureties  in  this  case  that  the  rule  is  limited 
to  strictly  public  funds,  and  that  in  any  event  tlie  liability  of  the 
officer  in  this  case  is  only  that  of  a  bailee  for  hire.  The  cases  of 
People  V.  Faulkner,  107  N.  Y.  477, 14  N.  B.  415,  Wilson  v.  Peo- 
ple, 19  Colo.  199, 41  Am.  St  Rep.  343,  34  Pac.944,  and  Pairchild 
V.  Hedges,  14  Wash.  117,  44  Pac.  126,  tend  to  support  this  con- 
tention. But,  on  the  other  hand,  the  cases  of  Morgan  v.  Long, 
29  Iowa,  434,  Wright  v.  Harris,  31  Iowa,  272,  Havens  v.  La- 
thene,  75  N.  C.  505,  and  State  v.  Gatzweiler,  49  Mo.  17,  8  Am. 
Bep.  119,  do  not  recognize  the  distinction  claimed.  The  cases  in 
this  court  which  we  have  cited  do  not  suggest  any  distinction  be-^ 
tween  public  and  private  funds.  This  is  not  specially  signifi- 
cant, for  the  subject  matter  of  each  of  those  cases  was  public 
money. 

Upon  principle,  we  are  unable  to  make  any  distinction  between 
public  and  private  funds  in  the  hands  of  a  public  officer,  as  to 
his  liability  therefor.  In  both  cases  the  funds  are  paid  to  the 
officer  in  obedience  to  the  mandate  of  the  statute,  which  makes 
no  distinction  between  them,  and  imposes  the  same  duty  as  to 
eadi.  The  ^^^  same  bond  secures  both  in  the  same  terms.  Can 
it  be  true  that  a  county  can  recover  on  such  a  bond  the  amount 
of  a  forfeited  recognizance  lost  by  tiie  clerk  without  his  fault, 
Imt  that  money  received  by  him  in  his  official  capacity  for  a  pri* 


Ma7»1^^-J    Nobthebk  Pacific  By.  Co.  v.  Owens.  343 

vate  party^  and  bo  lost,  cannot  be  recovered  by  an  action  on  the 
same  bond?    It  is  not  the  character  of  the  fund,  but  the  statute 
and  considerations  of  public  policy,  which  impose  the  liability 
upon   the   officer.     The  same  considerations  of  public  policy 
which  require  that  public  oflBcers  who  receive  public  money  be 
held  to  a  strict  measure  of  responsibility  therefor  apply  just  as 
forcibly  to  private  funds  oflBcially  received  by  them,  for  private 
property  is  just  as  sacred  as  public  property.    This  is  especially 
true  of  money  paid  to  the  clerk  of  the  district  court,  as  in  this 
case,  in  condemnation  proceedings.    The  money  in  such  a  case 
is  not  deposited  by  its  owner.     He  is  not  consulted  in  the  prem- 
ises.    On  the  contrary,  his  land  is  taken  for  a  public  purpose 
without  his  consent,  and  the  money,  which  is  a  substitute  there- 
for, is  placed  in  the  official  custody  of  the  clerk,  to  be  paid  to 
the  owner  whenever  (it  may  be  after  years  of  litigation)  the 
court  decides  that  he  is  entitled  to  it.     Surely,  a  wise  public 
policy  demands  in  such  a  case,  if  it  does  in  any  case,  that  the 
official  custodian  of  the  money  should  be  held  to  a  strict  measure 
of  responsibility  therefor.     We  hold,  therefore,  that  a  public 
officer  is  liable  for  the  loss  of  private  funds  received  and  held  by 
him  in  his  official  capacity  whenever  he  would  be  liable  for  the 
loss  of  public  funds  under  the  same  circumstances,  for  in  re- 
spect to  his  liability  for  the  loss  of  money  in  his  official  custody 
there  is  no  distinction  between  public  and  private  funds. 

It  follows  that  the  order  herein  appealed  from  must  be  -re- 
versed, and  the  case  remanded  with  directions  to  the  district 
court  to  amend  its  conclusions  of  law  to  the  effect  that  the  plain- 
tiff is  entitled  to  recover  from  the  defendants  the  amount 
claimed  in  its  complaint,  and  cause  judgment  to  be  entered  ac- 
cordin^y.     So  ordered. 

Ifir.  Justice  I«0Wl8  Dtssented,  and  after  stating  that  the  majority 
opinion  is  based  upon  the  principle  that  "where  a  statute,  either 
in  direet  terms  or  from  its  general  tenor,  imposes  the  duty  upon 
a  public  officer  to  pay  over  moneys  received  and  held  by  him  in  hiE^ 
official  capacity,  the  obligation  thus  imposed  is  an  absolute  one,  un- 
less it  is  limited  in  the  statute  imposing  the  duty,  or  the  conditions 
of  his  official  bond,''  said  that  "this  proposition  is  taken  from  the 
opinion  in  Board  of  Education  v.  Jewell,  44  Minn.  427,  20  Am.  St. 
Bep.  286,  46  N.  W.  914,  with  the  addition  of  the  words  'or  the 
conditions  of  his  official  bond.'  As  I  understand  the  decision  in 
the  Jewell  case,  the  court  had  no  intention  of  extending  the  liability 
of  the  officer  and  his  sureties,  unless  the  statutory  provisions  ex- 
pressed obligations  greater  than  those  imposed  by  the  common-law 


344  American  State  Beports,  Vol.  91.         [Miim. 

rule.  This  common-law  rule,  as  shown  by  the  principal  caae,  ina- 
X>08ed  upon  public  officers  substantially  the  liability  of  a  bailee  for 
hiro  as  to  funds  deposited  with  them,  and  they  are  not  liable  for 
a  loss  thereof  occurring  without  their  fault. 

''In  the  present  case  the  duties  imposed  upon  the  clerk  of  eonrt 
with  reference  to  funds  coming  into  his  hands  are  no  other  or  greater 
than  those  imposed  by  the  common  law,  and  the  mere  fact  that  an 
inference  arises  by  the  general  tenor  of  the  statute  that  he  is  to  pajr 
over  such  moneys  to  the  proper  parties  does  not  change  that  ndeu 
I  have  found  no  case,  nor  has  one  been  presented,  where  the  striet 
rule  of  absolute  liability  has  been  applied  under  a  statute  aimilar 
to  the  one  now  involved.  Jn  every  instance  the  language  corre- 
sponded to  that  already  referred  to  in  the  cases  above  reviewed. 

"The  courts  have  given  different  reasons  for  coming  to  the  same 
conclusions,  and,  as  in  New  York,  have  distinguished  between  pri- 
vate and  public  funds;  but  nowhere,  by  any  court,  has  the  common- 
law  rule  been  abrogated,  in  the  absence  of  express  provisions  either 
in  the  statute  or  bond.  In  order  to  hold  the  officer  under  consid- 
eration absolutely  liable,  such  obligation  must  rest  upon  one  of  two 
grounds:  Either  because  the  statutory  provisions  referred  to  abro- 
gated the  common-law  rule,  or  that  the  common-law  rule  should  be 
abrogated,  regardless  of  the  statute,  upon  considerations  of  pnblie 
policy.  I  do  not  believe  the  language  of  our  statute  either  directly 
or  impliedly  extends  the  common-law  test  of  liability.  And  I  tan. 
not  prepared  to  fasten  upon  this  class  of  officers  the  strict  rule  ap- 
plied by  the  decision.  That  degree  of  responsibility  is  manifestlj 
unreasonable  and  unjust  when  applied  to  officers  whose  posseaaiom 
of  funds  is  merely  incidental  to  their  official  duties,  and,  whether  it 
shall  be  so  applied,  the  legislature,  not  the  court,  should  detennine. 

"I  therefore  dissent." 


A  PuhUo  Offlcer  becomes  an  insurer  of  funds  coming  into 
hands,  and  not  a  mere  bailee,  when  he  executes  a  bond  binding  him 
to  perform  the  duties  of  his  office:  Estate  of  Ramsay  v.  People,  1^ 
lU.  672,  90  Am.  St.  Bep.  177,  64  N.  E.  549;  State  v.  Nevin,  19  Ner. 
162,  3  Am.  St.  Bep.  873,  7  Pac.  650.  The  authorities  on  the  qneo- 
tion,  however,  are  not  uniform.  For  contrary  cases,  see  Cumberland 
V.  Pennell,  69  Me.  357,  31  Am.  Bep.  284;  York  County  v.  Watsoiiy 
15  S.  C.  1,  40  Am.  Bep.  675;  and  consult  tbe  note  on  this  subjeet 
to  State  V.  Harper,  67  Am.  Dec.  365-373. 


Hay,  1902.]     Bsnedict  v.  Minnbafolis  etc.  R.  R.  Co.      345 


BENEDICT  V.  MINNEAPOLIS  AND  ST.  LOUIS  RAIL- 

ROAD  COMPANY. 

[86  MinxL  224,  90  N.  W.  360.] 

BAHAOADS— Passengers  Leaning  Ont  of  Car  or  Biding  on 
FlatfornL — The  voluntary  exposure  by  a  passenger  of  his  body,  or 
any  part  thereof,  beyond  the  sides  of  a  moving  railroad  train,  or 
the  use  of  the  car  platform  as  a  place  for  riding  when  there  is 
room  within  the  car  where  his  safety  is  assured,  is  negligence  on 
his  party  barring  recovery  for  any  injury  resulting  therefrom,  (p. 
348.) 

SAHaBOADS— Passenger  on  Platform— Negligence. —If  a  rail- 
road company  receives  compensation  for  carrying  passengers  upon 
the  platforms  of  its  cars  because  of  the  overcrow(Ied  condition  of 
the  latter^  it  cannot  avoid  responsibility  for  an  injury  to  a  passenger 
occupying  such  platform  to  which  he  does  not  contribute;  but  if 
the  passenger,  while  riding  on  the  car  platform,  extends  hia  body,  or 
tome  part  thereof,  beyond  the  side  of  the  car  from  curiosity  or 
other  unjustifiable  cause,  his  act  is  negligent,  and  he  cannot  recover 
for  an  injury  resulting  therefrom,     (p.  349.) 

NEGLIOEKCE— Tonfh  of  Inunatnre  Tears.— A  boy  sixteen 
years  of  age,  travelins;  alone,  is  not,  because  of  his  youth,  in- 
eapable  in  law  of  exercising  sufficient  judgment  and  discretion  to 
avoid  incurring  the  risk  of  a  voluntary  exposure  of  part  of  his  body 
beyond  the  sides  of  a  moving  railroad  train,  or  to  avoid  the  eon- 
seqaenees  of  any  act  of  culpable  negligence,     (p.  350.) 

T.  Canty,  for  the  appellant. 

A.  E.  Clarke,  for  the  respondent. 

*^  LOVELY,  J.  Plaintiff,  as  administratrix,  seeks  to  re* 
cover  for  the  death  of  her  son,  occurring  through  the  alleged 
negligence  of  defendant,  who  demurs  to  the  complaint  upon  the 
ground  that  it  does  not  state  a  cause  of  action.  The  demurrer 
wag  sustained,  from  which  order  plaintiff  appeals. 

The  essential  facts  in  the  complaint  are  as  follows:  During 
the  summer  season  of  1901  defendant  operated  trains  between 
Kinneapolis  and  points  on  Lake  Minnetonka.  Defendants 
passenger  station  is  near  the  center  of  the  city,  and  its  tracks 
extend  four  miles  westerly  therefrom  within  the  corporate  lim- 
its. Two-fifths  of  a  mile  west  of  the  depot  its  railroad  passea 
under  a  bridge  on  Lyndale  avenue.  It  is  claimed  that  the  de- 
fendant negligently  maintains  its  tracks  so  close  to  the  posts 
which  support  this  hridge  that  the  sides  of  its  cars  pass  within 
"ten  inches  of  the  same.  At  **®  this  time  defendant  was  run- 
ning suburban  trains,  and  transporting  passengers  thereon  be- 
tween the  city  and  Lake  Minnetonka  in  each  direction,  not  only 


346  American  State  Bbpobts,  Vol.  91.        [Mian* 

for  ordinary  purposes^  but  upon  the  occasion  of  picnicB  and  ex* 
curaionfi^  when  the  cars  would  be  greatly  overcrowded^  so  that 
their  doors  and  windows  had  to  be  open^  and  paesengerB  w€fre 
required  to  ride  upon  the  platforms  and  steps  at  the  end  of  the 
cars.  That  the  yards  of  defendant  for  a  mile  west  of  the  depot 
had  switches  and  side  tracks  adjacent  to  its  main  tracks,  and  at 
various  points  within  this  distance  such  tracks  were  croaeed  by 
fltreet  bridges  overhead,  supported  by  iron  posts  erected  in  tfaa- 
yard  at  the  sides  of  the  tracks.  That  these  bridges  reeemble 
each  other,  and  look  alike  to  passengers.  That  the  depot  i» 
east  of  and  very  close  to  one  of  the  bridges,  so  ttiat  when  traina 
arrive  from  the  west  they  stop  partly  under  it  for  passengera  to 
alight.  That  the  conductors  and  brakemen  of  the  train  an* 
nounce  the  stations  as  the  trains  slow  up  and  stop  at  Tariona 
points  under  the  bridges,  when  the  passengers  frequently  and 
usually  lean  out  from  the  platforms  of  the  cars  and  look  ahead 
to  see  if  their  train  has  arrived  at  its  destination,  which  is  their 
usual  and  customary  habit  and  known  to  defendant.  On  June 
30,  1901,  plaintifiTs  intestate,  a  minor,  of  the  age  of  gixteen 
years,  was  a  passenger  on  one  of  these  trains  coming  to  the  city 
from  Lake  Minnetonka.  That  this  train  was  overcrowded  with 
passengers  returning  from  a  picnic.  That  many  drunken  and 
disorderly  persons  were  riding  thereon,  whereby  intestate  was 
compelled  to  stand  upon  the  platform  of  his  car.  The  train 
suddenly  slowed  up  near  the  Lyndale  avenue  bridge,  when  he^ 
with  the  consent  of  the  defendant,  and  without  any  warning  of 
the  danger  (or  knowledge  of  the  bridge),  leaned  out  slightly^ 
and  looked  ahead,  to  see  if  it  was  arriving  or  had  arrived  at  its^ 
destination,  when  his  head  immediately  came  into  collision  with 
one  of  the  iron  posts  referred  to,  and  he  received  the  injoiiea 
from  which  he  died. 

The  position  of  the  defendant  in  support  of  the  order  of  the 
trial  court  is  that  intestate,  by  extending  his  person  beyond  the 
line  of  the  car  while  in  motion,  committed  an  act  of  negligence,, 
which  was  the  proximate  cause  of  his  injury,  and,  therefore,  pre- 
cludes recovery. 

■*^  The  law  undoubtedly  enjoins  upon  the  railway  carrier  of 
passengers  extraordinary  diligence.  This  rule  is  intended,  for 
reasons  of  public  policy,  to  secure  their  safe  carriage,  so  far  as- 
human  skill  and  foresight  can  accomplish  that  result :  Smith  t. 
St.  Paul  City  Ey.  Co.,  32  Minn.  1,  50  Am.  Bep.  550,  18  N.  W- 
827.  However,  railways  must  construct  and  arrange  their 
tracks  and  yards  to  attain  practical  purposes  in  the  operation  of 


IfAjy  1902.J    BfiNSDicT  V.  Minneapolis  ktc.  B.  B.  Ca      347 

fiieb  loads.    They  have  been  permitted,  without  restraint  from 
polioe  regulation^  to  bnild  tracks  with  switches,  when  necessary,, 
in  dose  proximity  to  each  other.    This  course  is  unavoidable  in 
city  yards,  where  the  right  of  eminent  domain,  in  view  of  publio 
as  well  as  private  interests,  has  restricted  the  appropriation  of 
land  for  railroad  uses.    A  common  incident  of  city  yai*ds  are 
Oferhead  bridges,  with  posts  to  sustain  them,  as  well  as  adjacent 
tracks  upon  which  trains  are  continually  passing  so  near  to  eacb 
other  that  a  slight  extension  of  the  himian  body  beyond  the  sides^ 
of  a  car  is  fraught  with  danger  to  life  and  Umb.    These  condi* 
tioiis  have  always  existed.    They  are  customary^  and  to  a  large 
extent  indispensable;  hence  the  high  degree  of  duty  to  patrons 
exacted  of  carriers  of  passengers  has  been  generally  regarded  as- 
fnlfiUed  with  reference  to  outside  arrangements  at  such  places^ 
vhere  a  safe  and  secure  place  has  been  provided  within  its  cars 
for  their  occupatioxL    Having  done  this,  the  carrier  is  not  re- 
quired, in  maintaining  adjoining  structures,  to  guard  against 
the  anticipated  carelessness  of  those  who  are  in  no  danger  so- 
long  as  they  remain  in  the  place  of  safety  which  the  carrier  has 
famished.     The  customary   methods   of   constructing  tracks^ 
building  bridges,  and  running  trains  in  railroad  yards  render 
any  exposure  of  a  person  beyond  the  car  line  imminently  haz- 
ardous; hence  there  must  arise  a  presumption  in  behalf  of  the 
earner,  when  injury  arises  from  such  exposure,  that  the  conduct 
of  its  business  in  this  respect  is  not  negligent,  and  imposes  upon 
the  injured  party  the  burden  of  showing  that  it  was  otherwise  in 
any  particular  case.    While,  as  a  general  rule,  it  may  be  said 
that  railroads  can  arrange  structures  adjoining  their  tracks  U> 
aooomplish  practical  ends,  even  though  the  maintenance  of  the 
flame  is  dangerous  to  those  who  are  themselves  reckless,  yet  it 
cannot  be  said  either  that  an  unnecessary  or  useless  act  by  tho 
laibroad  in  ^^®  this  regard  would  not  be  n^ligent  as  to  an  em- 
ploji  required  to  work  in  the  yards,  or  even  a  passenger,  whose 
person  through  no  fault  of  his  own,  as  by  extraneous  force,  im- 
pending danger,  sudden  emergency,  or  other  unavoidable  cause^ 
vonld  be  exposed  to  danger. 

Subject  to  the  qualifications  above  stated,  the  courts  have  not 
been  able  to  impose  upon  railway  carriers  burdens  so  unreason- 
tUe  that  they  could  not  be  fulfilled,  nor  have  passengers  been 
idiered  from  the  exercise  of  restraint  from  the  curiosity  which 
prompts  them  to  expose  their  persons  to  the  imminent  risk  of 
eoUition  with  objects  outside  of  cars.  Car  windows  and  doors 
lie  for  the  admisaion  of  light  and  air,  not  to  enable  passengera 


348  American  State  Bbpobts,  Vol.  91.        [Minn. 

■to  pursue  a  course  which  general  experience  declares  to  be  ^- 
iremely  hazardous.    The  proper  nse  of  platforms  is  to  afford 
travelers  a  safe  and  convenient  means  of  entrance  and  exit  to 
and  from  the  cars  when  not  in  motion.    But  it  f oUowsi,  in  Tier 
of  the  conditions  above  stated^  that  the  voluntary  exposure  of 
the  body  beyond  the  sides  of  a  moving  train,  or  the  improper  use 
•of  the  platform  when  safety  is  assured  within  the  car,  must  be 
regarded  as  reckless,  and  the  almost  inevitable  disaster  that  fol- 
lows remediless.    These  conclusions  are  supported  by  the  g^reat 
weight  of  authority  in  this  country :  Beach  on  Contributory  Neg- 
ligence, 2d  ed.,  sec.  156 ;  Todd  v.  Old  Colony  R.  R.  Co.,  3  AUen^ 
18,  80  Am.  Dec.  49 ;  7  Allen,  207,  83  Am.  Dec.  679 ;  Pittsbnrg 
etc.  R.  R.  Co.  V.  McClurg,  56  Pa.  St.  294;  Indianapolis  etc  B. 
R.  Co.  V.  Rutherford,  29  Ind.  82,  92  Am.  Dec.  336;  Favre  t. 
Louisville  etc.  R.  R.  Co.,  91  Ky.  641,  16  S.  W.  370;  Georgia 
Pacific  Ry.  Co.  v.  Underwood,  90  Ala.  49,  24  Am.  St.  Rep.  756, 
«  South.  116;  Moakler  v.  Willamette  etc.  Ry.  Co.,  18  Or.  189, 
17  Am.  Si  Rep.  717,  22  Pac.  948 ;  Carrico  v.  West  Virginia  etc 
Ry.  Co.,  35  W.  Va.  389,  14  S.  E.  12 ;  Richmond  etc.  Ry.  Co.  t. 
Scott,  88  Va.  968,  14  S.  E.  763 ;  Scheiber  v.  Chicago  etc.  By. 
Co.,  61  Minn.  499,  63  N.  W.  1034. 

In  a  large  measure  the  learned  counsel  for  appellant  concedes 
the  rule  as  laid  down  in  the  cases  cited.  We  quote  from  his 
thorough  and  exhaustive  brief  as  follows :  *T.  concede  that,  as  a 
general  rule,  a  passenger  who  stands  on  the  platform,  or  pro- 
trudes his  head  out  of  the  window  or  outside  of  the  outer  line 
of  the  car,  on  a  rapidly  moving  train  on  an  ordinary  steam  nul- 
road,  under  ordinary  circumstances^  and  is  thereby  injured,  is 
guilty  of  contributory  negligence  as  a  matter  of  law.** 

^^^  But  it  is  urged  that  this  complaint  discloses  exceptional 
eircumstances,  which  take  this  case  out  of  the  general  rule. 
These  exceptions  are:  The  moderate  speed  of  the  train;  its 
frequent  stops;  the  misleading  appearance  of  the  overhead 
bridges,  calculated  to  provoke  inquiry;  the  knowledge  by  de- 
fendant of  the  habit  of  passengers  to  put  their  heads  out  of  the 
windows  of  the  cars  at  such  places;  the  omission  to  give  wam« 
ings  forbidding  such  acts;  the  overcrowded  condition  of  the 
cars,  with  the  incidental  necessity  of  passengers  riding  on  plat- 
forms, permitted  by  the  defendant;  as  well  as  the  immature  age 
of  the  deceased — which  it  is  claimed  relieve  intestate  from  the 
imputation  of  recklessness. 

We  are  unable  to  give  force  to  the  view  that  the  speed  of  tiba 
train  is  of  significance,  for  it  was  moving  with  sufSdent  rapid- 


May,  1902.]    Benedict  v.  Minneapolis  etc.  R.  R.  Ca      849 

itf  to  make  the  exposure  of  any  part  of  the  body  dangerous,  as 
{he  unfortunate  accident  in  this  case  demonstrates.  The  mis- 
leading appearance  of  the  overhead  bridges  may  have  excited 
curiosity^  but  cannot  justify  a  dangerous  exposure,  which  was 
not  necessary,  particularly  as  defendant  was  required  to  an* 
nounce  the  stations  when  reached,  and  this  legal  duty  was  ad* 
mittedly  performed;  hence  we  cannot  hold  that  curiosity  alone 
can  furnish  an  excuse  for  negligent  self -exposure  in  such  cases. 

The  allegation  of  the  custom  of  passengers  to  extend  their 
heads  beyond  the  sides  of  the  car  with  the  knowledge  and  con- 
sent of  defendant,  it  is  claimed,  required  warnings  of  the  dan- 
ger incurred  thereby.  These  facts  undoubtedly  charged  a  reck* 
less  habit  of  the  passengers  thus  exposing  themselves.  The  gen- 
eral rule  denying  liability  when  accidents  occur  in  such  cases 
rests  upon  the  ground  that  such  conduct  is  so  hazardous  within 
the  range  of  common  experience  that  all  travelers  must  and 
ahould  have  knowledge  thereof,  and  that  dangers  from  such 
causes  should  be  so  well  known  and  anticipated  that  specific 
warning  ought  not  to  be  required,  and  would  be  useless  if  given. 
These  considerations  have  all  been  carefully  weighed  and  an- 
swered in  the  evolution  of  the  rule  forbidding  unnecessary  ex- 
posure of  their  persons  by  travelers  on  railways  in  the  cases  cited 
above,  and  have  not  been  considered  sufficient  to  modify  its 
force,  so  as  to  be  the  subject  of  innovation  in  this  respect.  The 
fact  that  the  train  on  which  intestate  was  a  passenger  ^^^^  was 
one  among  other  surburban  trains,  and  that  such  trains  were 
habitually  overcrowded  by  passengers  who  were  permitted  and 
required  to  ride  on  the  platforms  with  the  knowledge  and  con- 
sent of  the  defendant,  may  well  have  excused  intestate  in  choos- 
ing the  place  he  occupied  when  injured. 

If  railway  companies  subject  their  trains  to  the  same  uses 
adopted  on  urban  electric  or  trolley  cars,  and  receive  compensa* 
tion  for  carrying  passengers  upon  the  platforms  of  the  same,, 
they  cannot  avoid  responsiblility  for  an  injury  arising  merely 
from  the  occupation  of  such  places  by  their  patrons  to  which 
the  injured  party  does  not  contribute :  Reem  v.  St.  Paul  City 
By.  Co.,  77  Minn.  603,  80  N.  W.  638.  Had  intestate  fallen 
from  the  train  by  reason  of  its  being  overcrowded,  or  had  he 
been  pushed  therefrom  by  causes  attributable  to  the  dangerous 
ooxtTse  of  conduct  pursued  by  defendant  in  allowing  passengers 
to  hde  on  its  platforms,  we  could  not  hold  that  intestate^s  con- 
duct was  negligent;  but  the  complaint  rests  plaintiffs  right  to 
leoover  upon  the  expressed  ground  that  the  accident  resulted 


360  American  State  Bbports^  Vol.  91.        (IIjiul 

irom  the  action  of  intestate  himself.  It  is  alleged  therein  tlul 
«t  the  inoppbrtime  moment  he  then  leaned  out  slightly  ani 
looked  ahead  as  said  train  moved  along^  to  see  if  it  was  arriTiiig 
or  had  arrived  at  its  destination.  This  averment  repeb  the  in* 
ference  that  the  efficient  cause  of  the  accident  was  the  orer* 
<Towding  of  the  train ;  and,  while  his  position  on  the  platf cm 
may  be  excused  by  the  course  of  defendant^  it  was  the  Toltmtary 
act  of  tiie  unfortunate  youth  himself^  wherein  he  exercifled  his 
•own  judgment,  and  took  chances^  which  resulted  in  his  deaA. 
Under  the  admissions  of  the  plaintiff,  her  son's  conduct  can  no 
more  excuse  him  from  negligence  than  in  the  case  of  a  passenger 
within  the  car,  who  protrudes  his  head  from  a  window  and  is 
struck  by  a  passing  train. 

It  remains  to  consider  whether  the  immature  age  of  intestate 
would;  as  a  matter  of  law,  demand  a  submission  to  a  jury  of  tbe 
•que^on  of  his  capacity  to  appreciate  the  risks  incurred.  Hie 
allegation  in  the  complaint  in  this  respect  is  that  he  ^'was  nx- 
ieen  years  of  age.''  There  are  no  facts  alleged  to  show  lack  of 
intelligence,  discretion,  or  ability  ordinarily  exercised  by  per- 
sons of  that  age.  The  rule  of  care  imposed  upon  persons  of 
immature  years  ^^  has  been  stated  in  a  former  decision  of  this 
<»urt  in  the  following  language :  **The  law  very  properly  holds 
that  a  child  of  such  tender  years  as  to  be  incapable  of  exercising 
judgment  and  discretion  cannot  be  charged  with  contributorr 
negligence ;  but  this  principle  cannot  be  applied  as  a  rule  of  law 
to  all  children,  without  regard  to  their  age  or  mental  capadtv. 
Children  may  be  liable  for  their  torts  or  punished  for  their 
crimes,  and  they  may  be  guilty  of  negligence  as  well  as  adults. 
The  law  very  humanely  does  not  require  the  same  degree  of  care 
on  the  part  of  a  child  as  of  a  person  of  mature  years,  but  he  is 
responsible  for  ihe  exercise  of  such  care  and  vigilance  as  may 
reasonably  be  expected  of  one  of  his  age  and  capacity,  and  Vbt 
want  of  that  degree  of  care  is  negligence":  Twist  v.  Winona  etc 
Ry.  Co.,  39  Minn.  164, 168, 12  Am.  St  Bep.  626,  89  N.  W.  402. 
-See,  also,  Ludwig  v.  Pillsbury,  36  Minn.  256,  28  N.  W.  606; 
Powers  V.  Chicago  etc.  Ry.  Co.,  57  Minn.  332,  59  N.  W.  307; 
Tucker  v.  New  York  etc.  R.  R.  Co.,  124  N:  Y.  308,  21  Am.  St. 
Rep.  670,  26  N.  E.  916;  Masser  v.  Chicago  etc.  Ry.  Co.,  68 
Iowa,  602,  27  N.  W.  776.  The  general  rule  that  it  is  for  ths 
jury  to  determine  the  capacity  of  a  minor  to  exercise  discretioii 
and  judgment,  and  whether  the  failure  to  do  so  is  oontributoiT 
negligence,  cannot  reasonably  be  applied  in  cases  where  nA 
persons  are  infants  only  in  legal  theory.    An  infant  at  f ourtooi 


Jane,  1902.]  Btatb  v.  Zimmerman.  861 

je&rs^  under  the  policy  of  our  law,  has  sufficient  discretion  to 
select  a  guardian  (Oen.  Stats.  1894,  sec.  4535),  and  is  capable  of 
malice  which  woald  subject  him  to  penal  consequences  for  crime 
▼hen  above  the  age  of  twelve:  Gen.  Stats.  1894,  sec.  6301.  It 
woTild  seem  to  follow  ihsi  the  mere  fact  alone  that  the  infant 
is  above  that  age,  though  under  twenty-one,  would  not  pre- 
sumptively absolve  him  from  the  consequence  of  contributory 
Diligence.  While  an  infant  over  twelve  years  might  not  have 
sofiSdent  capacity  to  appreciate  the  risk  of  a  dangerous  situa* 
tion,  owing  to  peculiar  individual  chaTacteristics  affecting  his 
capacity,  yet  we  aie  unable  to  hold  that  a  youth  sixteen  years  of 
age,  traveling  alone  on  a  railway  train,  is  not,  as  a  matter  of 
law,  oidowed  with  sufficient  intelligence  and  discretion  to  avoid 
the  consequences  of  acts  which  the  law  oonaiders  culpably  negli- 
gent:  Patterson  on  Bailway  Accident  Law,  sec  7 ;  Nable  v.  Alle- 
gheny, 88  Pa.  St  35,  32  Am.  Sep.  413;  Deitrich  v.  Baltimore 
«tc.  Ry.  Co.,  58  Md.  347. 
The  order  appealed  from  is  affirmed. 


^  o  Punsmifer  to  Ride  upat^  the  Platform  of  a  railway  ear  is  not 
negligence  per  se.  If  he  is  compelled  to  ride  there  by  reason  of  in- 
sufficient accommodations,  the  railway  company  is  answerable  for 
injniies  received  by  him  while  thus  riding,  unless  he  is  guilty  of 
contiibotory  negligence.  Whether  he  is  so  guilty  is  a  question  for 
the  jury.  Generally  speaking,  however,  he  takes  upon  himself  the 
risks  of  hia  position,  if  there  is  room  for  him  inside:  Graham  v. 
Kd^eUl,  20  Wash.  466,  55  Pac.  631,  72  Am.  St.  Bep.  121,  and  eases 
cited  in  the  cross-reference  note  thereto;  Woodroile  v.  Bozborough 
•tc  By.  Co^  201  Pa.  St.  521,  51  Atl.  324,  88  Am.  St.  Bep.  827,  and 
cues  cited  in  the  cross-reference  note  thereto. 


STATE  V.  ZIMMERMAN. 

[86  Minn.  353,  90  N.  W.  783.] 

MUNXOLPAIi  COBPOBATIONS— Pnblic  Health—Oonstmction 
^  Powers  Oooferred.— Powers  conferred  by  statute  upon  municipal- 
>ti«  or  boards  of  health  to  secure  the  preservation  of  the  public 
■••1th,  and  to  provide  for  the  enforcement  of  aU  proper  and  neces- 
^  unitary  regulations,  and  for  the  summary  suppression  of  all 
«oaditions  detrimental  to  the  lives  and  health  of  the  people,  should, 
^o^thgtanding  the  individual  liberty  of  the  citizen  is  in  a  large 
jwsure  involved,  receive  a  broad  and  liberal  construction  in  aid  of 
wft  beneficial  piurposes  of  their  enactment,     (p.  854.) 

KDncOCFAIi  0OBP0BATI0N8— Vaccination.— A  broad  'and 
^•nprftheniive  delegation  of  power  by  statute  to  municipidities  or 


353  American  State  Reports,  Vol.  91.         [Minn. 

health  boards  to  do  all  acts  and  make  all  regulations  for  the  prewr- 
vation  of  the  public  health  as  are  deemed  expedient,  confers  npoB 
the  proper  authorities  power  to  make  and  enforce  a  regulation  that 
in  cases  of  emergency  caused  by  an  epidemic  of  smallpox,  all  ehil- 
di  •  shall  be  required  to  be  vaccinated  as  a  condition  precedent  X» 
their  admission  to  the  public  schools,     (p.  356.) 

MUNICIPAL  OOBPOBATIONS— Oharten  of.— The  ▼arioiv 
and  proper  provisions  of  a  municipal  charter,  legally  framed,  enneted 
and  adopted  by  a  city,  have  all  the  force  and  effect  of  legislative 
enactments,  and  may  properly  include  provisions  relating  to  the 
preservation  of  the  public  health,     (p.  356.) 

F.  A.  Pike,  for  the  appellant 

J.  E.  Markham,  P.  H.  Qriaw,  and  T.  McPermott,  for  the 

respondents. 

**^  BROWN,  J.  Mandamus  to  compel  respondents,  who  are 
members  of  the  board  of  school  inspectors  for  the  city  of  Si 
Panl,  to  admit  Edith  Freeman,  a  child  eight  years  of  age,  aad  a 
resident  of  that  city,  to  the  public  schools  of  said  city.  She  was 
refused  admission  because  of  the  fact  that  she  had  not  complied 
with  certain  regulations  of  the  board  requiring  pupils  to  be 
vaccinated.  Bespondents  had  judgment  in  the  court  below,  and 
relator  appeals. 

The  cause  came  on  for  trial  in  the  court  below  upon  the  alle- 
gations contained  in  the  writ  and  respondents'  answer.  The 
trial  court  submitted  three  questions  to  a  juiy,  namely:  "1. 
Was  there  in  the  month  of  January,  1901,  an  epidemic  of  small* 
pox  in  St.  Paul,  or  the  territory  tributary  thereto,  or  was  thefe 
at  that  time  danger  to  the  public  health  from  the  existence  and 
threatened  spread  of  such  disease?  2.  Is  vaccination  a  pre* 
ventive  of,  or  does  it  materially  assist  in  preventing,  the  disease 
of  smallpox  or  the  spread  of  such  disease?  3.  Under  the  condi- 
tions as  they  existed  in  January,  1901,  was  it  a  reasonable  re- 
lation to  require  children  attending  the  public  schools  of  the  dty 
of  St.  Paul  to  have  been  vaccinated  within  five  years  P'  The 
jury  answered  each  question  in  the  afBrmative. 

•*^*  The  question  whether  the  public  authorities  may  require 
the  vaccination  of  childr^  as  a  condition  precedent  to  their 
right  to  attend  public  schools,  has  been  much  discussed  by  the 
courts.  The  authorities  are  not  uniform  on  the  subject  Bj 
some  courts  it  is  held  that  the  power  exists  and  may  be  exercised 
without  regard  to  the  existence  of  an  emergency  occasioned  bj 
an  epidemic  of  smallpox;  other  authorities  limit  the  right  to 
exefdse  the  power,  whether  expressly  conferred  by  legislative 
enactment  or  not»  to  the  presence  of  an  epidemic,  and  when  there 


June,  1902.]  Stats  v,  Zimmebman.  858 

18  immineat  danger  of  the  disease  epreading  among  the  people 
of  the  commimity ;  and  by  still  other  courts  that,  even  without 
legislatiye  authority,  health  officers  possess  the  power  to  impose 
soch  conditions,  and  may  enforce  them  in  cases  of  emergency 
amounting  to  "an  overruling  necessity/'  An  interesting  dis- 
cussion of  the  subject  may  be  found  in  4  Law  Notes,  224. 

But  whatever  may  be  the  correct  rule  to  apply  to  controversies 
of  this  kind,  if  the  power  may  be  exercised  under  any  circum- 
stances, where  legislative  authority  has  been  granted,  it  should 
be  where,  as  in  the  case  at  bar,  there  is  an  epidemic  of  smallpox^ 
and  imminent  danger  of  its  spreading.  The  courts  are  not  con- 
cerned with  the  question  of  the  efficacy  of  this  treatment,  nor 
with  considerations  relative  to  its  necessity  and  propriety  as  a 
police  regulation,  except,  perhaps,  in  those  cases  where  an  abuse 
of  power  is  pleaded  and  shown.  The  treatment  may  be,  as 
claimed  by  some,  a  gross  interference  with  individual  liberty, 
or,  as  claimed  by  others,  a  certain  preventive  of  a  much  dreaded 
disease,  and  the  spread  of  the  same,  and  therefore  a  great  public 
1)enefactor.  We  are  not  to  be  understood  as  expressing  an  opin* 
ion  upon  the  merits  of  the  treatment.  It  was  said  by  the  su- 
preme court  of  the  state  of  Indiana  that  '*the  question  is  one 
which  the  legislature  or  boards  of  health,  in  the  exercise  of  the 
powers  conferred  upon  them,  must  in  the  first  instance  deter- 
mine, as  the  law  affords  no  means  for  the  question  to  be  sub- 
jected to  a  judicial  inquiry  or  determination** :  Blue  v.  Beach, 
155  Ind.  121,  127,  80  Am.  St.  Eep.  195,  56  N.  E.  89.  This  is 
m  line  with  the  general  rule  that  the  exercise  of  the  police 
power  is  a  matter  resting  in  the  discretion  of  the  legislature,  or 
the  board  or  tribtmal  to  which  the  power  is  delegated,  in  the 
exercise  of  **•  which  power  the  courts  will  not  interfere,  except 
where  the  regulations  adopted  for  that  purpose  are  arbitrary, 
oppressive,  and  unreasonable :  State  v.  Barge,  82  Minn.  256,  84 
N.  W.  911 ;  Northwestern  Tel.  Exch.  Co.  v.  City  of  Minneapo- 
lis,  81  Minn.  140,  83  N.  W.  527,  86  N.  W.  69 ;  18  Aul  &  Eng. 
Ency.  of  Law,  1st  ei,  746. 

But  these  suggestions  are  only  incidental,  and  of  no  particu- 
lar importance.  Counsel  for  relator  does  not  contend  that  the 
rabject  is  not  within  the  control  of  the  legislature,  and  may  not 
be  delegated  to  municipal  authorities.  His  main  contention, 
and  upon  which  he  relies  for  reversal,  is  that  the  legislature  of 
the  state  has  never  conferred  the  power  upon  the  board  of  educa- 
tion, the  common  council,  or  the  health  officers  of  the  city  of  St. 
Paul,  and,  further,  if  it  be  shown  that  authority  has  been  so 

Am.  St  B«^,  Vol  n-28 


354  American  Statb  Bbpobts,  Vol.  91.         [Minn, 

conferred,  that  it  does  not  appear  ever  to  have  been  put  into 
operation  by  them,  and  was  not  acted  on  by  respondents  in  this 
case.  Whether  such  authority  has  been  conferred  is  the  princi- 
pal question  in  the  case. 

We  may  adopt  for  present  purposes  the  rule  that  the  power  to 
enforce  vaccination,  as  a  condition  to  the  right  of  admission  to 
the  public  schools,  may  be  exercised  by  local  authorities  in  cases 
of  emergency  only,  and  not  then  unless  expressly  or  by  fair 
implication  conferred  upon  them  by  the  legislature;  and,  if  that 
power  be  found  wanting  in  this  case,  a  reversal  must  follow. 
That  there  was  an  emergency  prompting  the  action  of  respond- 
ents in  this  case,  and  that  vaccination  is  effective  for  the  pur- 
poses claimed  for  it,  and  that  to  require  all  children  to  be  vac- 
einated  was  a  proper  and  reasonable  regulation,  are  questions 
which  not  only  the  local  authorities  have  determined,  but  which 
the  verdict  of  the  jury  affirms.  It  remains  to  inquire  whether 
the  power  existed^  and  whether  the  proceedings  complained  of 
were  founded  thereon.  The  basis  of  the  authorit7,  whether  ex- 
ercised directly  by  the  legislature,  or  through  local  officers,  is 
the  police  power.  This  the  legislature  may  in  all  cases  itself 
exercise  in  the  interests  of  the  public  health  and  welfare,  or 
delegate  to  municipal  authorities  and  inferior  boards  and  tri- 
bunals. There  is  no  claim  that  tiie  legislature  itself  has  ever 
imposed  vaccination  as  a  condition  precedent  to  the  rij^t  of 
children  to  attend  the  public  schools  of  St.  Paul,  and  we  tuni 
at  once  to  the  question  whether  the  authority  to  enforce  such 
^^  a  regulation  has  ever  been  delegated  to  the  authorities  of 
that  city. 

The  authority  of  boards  of  health  legally  organized  in  cities 
and  villages  of  this  state,  or  other  bodies  designated  to  act  as 
boards  of  health,  is  prescribed,  as  a  rule,  by  general  enactments 
of  the  legislature,  or  by  municipal  charters.  Power  is  usually 
conferred  in  ample  measure  to  secure  the  preservation  of  pub* 
lie  health,  and  to  provide  for  the  enforcement  of  all  proper 
and  necessary  sanitary  regulations,  and  for  the  summary  sup- 
pression of  all  conditions  detrimental  to  the  lives  and  health 
of  the  people.  In  view  of  the  importance  of  the  interests  con- 
fided to  the  care  of  health  officers,  the  various  statutes  con- 
ferring such  powers  should,  notwithstanding  the  individual 
liberty  of  the  citizens  is  in  a  large  measure  involved,  receive 
a  broad  and  liberal  construction  in  aid  of  the  beneficial  pur- 
poses of  their  enactment:  Parker  &  Worthington  on  Law  of 
Public  Health,  sec  79.    And  the  courts  should  be  cautious 


June,  1902.]  State  v.  Zimmerman.  356 

in  declaring  any  curtailment  of  their  authority,  except  upon 
clear  grounds:  Gregory  v.  City  of  New  York,  40  N.  Y.  273. 
With  this  rule  in  mind,  we  shall  consider  some  of  the  section? 
of  the  statutes  which  are  relied  upon  to  confer  the  authority 
exercised   in  this  case. 

Section    7048   of  the  General   Statutes  of  1894    provides, 
among  other  things,  that  all  villages  and  cities  in  the  state 
shall  have  a  board  of  health,  to  be  chosen  and  consist  of  the 
number  as  therein  designated,  ^'anything  in  the  charter  of  any 
such  village,  borough  or  city,  to  the  contrary  notwithstanding/' 
It  also  provides  that  such  boards  shall  within  their  respective 
villages  and  cities  *T[iave  and  exercise  all  the  powers  necessary 
for  the  preservation  of  the  public  health,'*  and  they  are  author- 
ized to  make  such  rules  and  regulations  as  may  be  deemed  neces- 
sary for  the  health  and  safety  of  the  inhabitants,  and,  further, 
that  any  person  who  shall  violate  any  such  regulation  shall  be 
deemed  guilty  of    a  misdemeanor.    Section    7045    provides: 
''Whenever  any  part  of  this  state  appears  to  be  threatened 
with,  or  is  affected  by,  any  epidemic  or  infectious  disease,  the 
state  board  of  health  may  make,  and  from  time  to  time  alter 
and  revoke  regulations  for  all  or  any  of  the  following,  among 
other  purposes:  .  .  •  .  Guarding  against  the  spread  of  disease 
by  quarantine  or  exclusion  of  any  infected  persons;  and  may 
by  order  declare  all  or  any  of  the  regulations  so  made  to  be  in 
force  within  the  whole  or  any  part  or  parts  of  the  district  of 
any  local  board  of  health  in  this  state.'* 

**  Section  7047  provides:  'T^e  local  board  of  health  of 
any  district  or  districts  within  which,  or  part  of  which,  regu- 
lations so  issued  by  the  state  board  of  health  are  declared  to  be 
in  force,  shall  superintend  and  see  to  the  execution  thereof, 
.  .  •  .  and  do  and  provide  all  such  acts,  matters  and  things  as 
may  be  necessary  for  mitigating  or  preventing  the  spread  of 
any  such  disease." 

The  provisions  of  the  last  two  sections  cited  are  of  no  special 
importance,  for  it  is  not  claimed  that  the  state  board  of  health 
took  any  part  in  the  proceedings  here  in  question,  but  they  tend 
in  a  general  way  to  show  an  intention  on  the  part  of  the  legis- 
lature to  clothe  all  boards  of  health  with  general  supervisory 
powers  in  matters  pertaining  to  the  public  health  and  sanitary 
conditions.  ' 

It  will  be  noted  that  none  of  the  provisions  of  the  statutes 
just  quoted  expressly  authorizes  municipal  authorities  or  health 
officers  to  require  children  to  be  vaccinated,  as  a  condition 
precedent  to  fhdi  admiflsion  to  the  public  schools;  yet  we 


356  American  State  Beports^  Vol.  91.         [Miniu 

have  no  hesitation  in  holding  (giving  the  several  pro  visions 
referred  to  a  broad  and  liberal  construction)  that  the  legisla- 
ture intended  to  confer  such  power  upon  them.    A  broad  and 
comprehensive  delegation  of  power  to  do  all  acte  and  make 
all  regulations  for  the  preservation  of  the  public  health  as  are- 
deemed  expedient  confers^  by  fair  implication,  at  leasts   the 
power  sought  to  be  exercised  in  this  case.    In  the  case  of  In 
re  Bebenack,  62  Mo.  App.  8^  a  legislative  grant  of  power  to  a 
school  board  "to  make  all  rules^  ordinances^  and  statutes  proper 
for  the  government  and  management  of  such  schools"   was 
held  su£5cient  authority  for  a  regulation  requiring  children  to 
be  vaccinated^  as  a  condition  to  their  right  to  attend  school.     A 
general  grant  of  power  to  do  all  acts  necessary  for  the  preser- 
vation of  the  public  health  and  welfare  was  held  to  authorize  a 
similar  regulation  in  Indiana:  Blue  v.  Beach,  155  Ind.   121, 
127,  go  Am.  St.  Rep.  195,  56  N.  E.  89.     The  same  conclusion 
was  reached  in  Hazen  v.  Strong,  2  Vt.  427,  and  in  Duffield  t. 
Williamsport,  162  Pa.  St.  476,  29  Atl.  742. 

But  the  necessary  power  and  authority  to  support  the  action 
of  respondents  is  not  dependent  alone  on  the  general  statutes 
cited.  The  charter  of  the  city  of  St.  Paul  confers  ample  power- 
to  that  end  in  definite  and  explicit  terms.  This  charter  was 
enacted  by  the  *^*  citizens  under  and  pursuant  to  constitu- 
tional and  legislative  authority,  and  it  was  within  their  power 
to  include  as  a  subject  matter  thereof  provisions  relating  to  a 
health  department.  Such  a  department  very  properly  belongs 
and  is  incident  to  the  government  of  municipalities  (State 
V.  O'Connor,  81  Minn.  79,  83  N.  W.  498),  and  the  provisions 
of  the  charter,  of  which  we  are  required  to  take  judicial  notice 
(Laws  1899,  c.  351),  have  all  the  force  and  e£Fect  of  legislative 
enactments. 

This  charter  provides  for  and  creates  a  health  department 
for  the  city,  designating  certain  officers  as  members  of  that  de- 
partment By  section  2,  chapter  10,  the  office  of  oommissioner 
of  health  is  created ;  and  the  occupant  of  that  position  is  made 
the  head  of  the  department,  and  is  clothed  with  the  manage- 
ment and  control  of  all  matters  and  thingfs  pertaining  thereto. 
By  section  25  of  the  same  chapter  the  commissioner  is  empow- 
ei^d  to  make  such  rules  and  regulations  for  the  government 
or  health  of  the  city  as  he  may,  from  time  to  time,  deem  nee* 
essary  and  expedient.  Section  9  makes  it  his  duty  to  enforce 
all  the  laws  of  the  state  and  ordinances  of  the  city  relating  to 
nnitary  regulations,  and  to  cause  all  nuisances  to  be  abated 
with  imfflishlf)  promptness.    Section  16  provide!  Iliat  in 


June,  1902.]  Stat£  v.  Zimmehman.  357 

at  pestilence  or  epidemic  disease^  or  of  danger  of  impending 
pegtilence^  it  shall  be  the  duty  of  the  commissioner  to  take  such 
messures,  and  to  do  and  order,  and  cause  to  be  done,  for  the 
preservation  of  the  pubKc  health  as  he  may  in  good  faith  deem 
the  public  safety  to  demand.  By  section  16  he  is  expressly 
required  to  take  such  measures  as  may  be  deemed  necessary  to 
prevent  the  spread  of  smallpox,  by  requiring  all  persons  in  the 
<nty  not  vaccinated  to  be  vaccinated  within  such  time  as  he 
«hall  prescribe.  Section  33  authorizes  him  to  require  a  cer- 
tificate of  yaccination  as  a  condition  to  the  admission  of  chil- 
dren to  the  public  schools.  The  authority  thua  granted  and 
the  duties  imposed  are  ample  to  sustain  the  commissioner  of 
health  in  the  r^ulation  ordered  enforced  in  this  instance,  if 
the  general  statutory  provisions  be  insufficient. 

It  is  further  contended  that  the  proceedings  complained  of 
▼ere  not  founded  on  any  valid  regulation  authorizing  them. 
That  the  commissioner  acted  and  made  an  order  or  regulation 
requiring  all  ^^  children  of  school  age  to  be  vaccinated,  as 
a  condition  precedent  to  their  admission  to  the  public  schools, 
i«  not  disputed.  It  is  urged,  however,  that  as  he  assumed  to 
act  under  and  by  authority  of  an  ordinance  of  the  city  of  St. 
Paul,  his  order  was  a  nullity,  because  of  the  invalidity  of  the 
ordinance,  and,  further,  that  as  the  ordinance  was  not  ad- 
mitted in  evidence  on  the  trial  below,  it  is  not  now  before  this 
court  We  do  not  find  in  the  charter  any  provision  requiring 
the  board  of  health  to  authorize  previously,  or  subsequently 
affirm,  any  act  that  may  be  deemed  necessary  to  be  taken  by  the 
commissioner  for  the  preservation  of  the  public  health.  The 
provisions  of  the  charter  in  respect  to  the  express  duties  im- 
posed upon  that  officer  are  self-executing,  requiring  no  action 
<m  the  part  of  the  board  of  health  or  city  council  to  authorize 
tiie  performance  of  the  same.  He  is  made  the  executive  officer 
of  the  health  department,  and  is  required  to  perform  the  sev- 
eral acts  and  duties  specified,  without  reference  to  any  action 
taken  by  the  board.  It  is  not  controlling  that  he  assumed  to 
proceed  by  authority  of  an  ordinance,  for  the  warrant  justifying 
the  regulation  made  by  him  is  found  in  the  provisions  of  the 
statutes  and  the  charter  we  have  quoted.  Had  he  stated  in 
the  order  that  it  was  founded  on  a  regulation  of  the  police 
department,  it  would  have  been  none  the  less  valid  and  enforce- 
able. 

In  addition  to  the  rule  or  order  of  the  commissioner,  it  ap- 
pears that  the  sdiool  board  had  previously  enacted  a  by-law 


358  American  Statb  Bbports^  Vol.  91.        [Minn. 

or  rule  directly  covering  the  subject.  This  rule  proTideSy. 
among  other  things^  that  a  pupil  applying  for  admission  for 
the  first  time  to  the  public  schools  must  be  accompanied  by  a 
parent  or  guardian^  who  sh&U  give  satisfactory  evidence  that 
the  child  has  been  vaccinated  within  five  years.  This  rule  wa» 
enacted  a  number  of  years  ago^  and  it  is  contended  by  relator 
that  it  is  void  because  arbitrary  and  unreasonable,  and  not 
enacted  in  the  presence  of  an  epidemic  of  smallpox.  Whether 
this  is  so  or  not,  we  need  not  determina  The  commissioner 
of  health  did  not  act  by  its  authority,  and  the  existence  of  the 
rule  is  not  necessary  to  the  validity  of  his  order.  In  addition 
to  this  rule,  however,  the  school  board  expressly  acquiesced  in 
the  order  of  the  commissioner,  and  directed  the  principals  of 
the  several  city  schools  to  *®*  obey  and  follow  its  instructions^ 
and,  if  a£5rmative  action  on  their  part  was  at  all  essential  to 
the  validity  of  the  action  taken  by  the  commissioner,  this  act 
on  the  part  of  the  board  answered  that  purpose.  From  ill 
this  it  must  follow — and  there  is  no  escape  from  the  condu* 
sion — ^that  the  proceedings  complained  of  on  the  part  of  re- 
spondents were  fully  authorized  by  law. 

It  is  very  true  that  the  statutes  of  our  state  provide  that  ad- 
mission to  the  public  schools  shall  be  free  to  all  persons  of  s 
defined  age  and  residence,  and  that  every  parent  having  control 
of  any  child  of  school  age  is  expressly  required  to  send  such 
child  to  school,  and  that  all  teachers  are  required  to  receiTe 
themi,  and  that,  if  any  child  of  school  age  is  denied  admission 
or  suspended  or  expelled  without  su£Scient  cause,  the  board  or 
other  officers  may  be  fined.  But  all  these  statutory  provisions 
must  be  construed  in  connection  with,  and  subordinate  to,  the 
statutes  on  the  subject  of  the  preservation  of  the  public  health 
and  the  prevention  of  the  spread  of  contagious  disease.  The 
welfare  of  the  many  is  superior  to  that  of  the  few,  and,  as  the 
regulations  compelling  vaccination  are  intended  and  enforced 
solely  for  the  public  good,  the  rights  conferred  thereby  are 
primary  and  superior  to  the  rights  of  any  pupil  to  attend  the 
public  schools. 

Our  conclu9ions  are  in  harmony  with  those  reached  by  the 
learned  trial  judge,  and  the  order  appealed  from  is  aflSrmed. 


The  Power  of  Boards  of  Eealth  to  make  the  vaccination  of  ehildrea 
eompulsory,  when  such  authority  is  not  expressly  conferred  by 
statute,  is  considered  in  the  monographic  note  to  Blue  v.  Beach,  Se 
Am.  St.  Bep.  230,  281,  on  what  powers  may  be  delegated  to  boards 
of  public  health. 


June,  1902.]  Sngstrand  v.  Klbffhan.  859 


ENGSTRAND  ▼.  KLEFFMAN. 

[86  Minn.  403,  90  N.  W.  1054.] 

EVIDE1TCE.~-It  l8  Presumed  that  the  Oonunon  Law  is  the 
Mme  in  the  several  states  of  the  Union,     (p.  860.) 

JUDOIAENTS  Void  as  to  One  Whether  Void  as  to  A}L— At 
eommon  law  a  judgment  in  an  action  ex  delicto,  against  two  or  more 
defendants  jointly  and  severally  liable,  though  void  as  to  one  of 
them  for  want  of  jurisdiction,  is  not  necessarily  void  as  to  the  other 
or  others     (p.  361.) 

J.  H.  Norton  and  W.  H.  Smallwood,  for  fhe  appellant. 

J.  J.  Skiise  and  H.  G.  Gearhart,  for  the  respondent. 

^^^  BBOWN,  J.  Action  to  recover  upon  a  foreign  jndg^ 
menl  Plaintiff  had  judgment  in  the  court  below,  and  defend- 
ant Edward  Kleffman  appealed  from  an  order  denying  a  new 
triaL 

The  facts  are  as  follows:  Heretofore  plaintiff  brought  an 
action  ^^^  against  defendants  in  the  circuit  court  of  the  state 
of  Wisconsin  to  recover  damages  for  an  alleged  fraud  com- 
mitted by  them  in  a  transaction  had  between  the  parties  which 
resulted  in  a  sale  of  certain  real  property  to  plaintiff,  which 
defendants  falsely  represented  they  owned.  The  summons 
therein  was  served  upon  this  appellant,  but  not  upon  his  code- 
fendant.  Appellant  appeared  and  answered,  and  proceedings 
in  the  action  resulted  in  a  judgment  for  plaintiff  against  both 
defendants  for  the  sum  of  about  one  thousand  dollars.  The 
defendant  not  served  with  summons  made  no  appearance  what- 
erer,  nor  was  he  represented  in  that  court  on  the  trial  of  the 
action.  Subsequently  this  action  was  brought  in  this  <ttate  to 
recover  upon  the  judgment,  and  the  summons  was  served  upon 
both  defendants.  They  both  appeared  in  the  action,  and  de- 
fendant John  Kleffman,  who  was  not  served  with  summons  in 
the  Wisconsin  action,  answered,  setting  up  the  want  of  service, 
that  he  did  not  appear  in  that  action,  and  that  the  Wisconsin 
court  had  no  jurisdiction  to  render  the  judgment  against  him. 
The  trial  court  found  this  defense  to  be  true,  and  ordered 
judgment  in  his  favor,  but  against  appellant,  who  was  served 
with  summons  in  the  Wisconsin  action. 

It  is  contended  on  the  part  of  appellant  that  the  judgment 
med  upon,  being  void  as  to  one  of  the  defendants,  was  void 
u  to  bothy  and  that  the  court  below  erred  in  ordering  judg- 


360  American  State  Bbpobts^  Vol.  91.        [Minn. 

inent  against  him.  This  is  practically  the  only  question  in 
the  case^  and^  as  the  statutes  of  the  state  of  Wisconsin  on  the 
subject  are  not  shown^  we  are  guided  in  its  determination  by 
the  rules  of  the  common  law^  which^  in  the  absence  of  proof 
to  the  contrary,  is  presumed  to  be  the  same  in  the  several  states : 
Crandall  v.  Great  Northern  Ey.  Co.,  83  Minn.  190,  85  Am. 
St.  Rep.  458,  86  N".  W.  10. 

Many  authorities  are  found  in  the  books  bearing  upon  the 
question,  but  they  are  not  uniform  or  harmonious,  at  least  aB 
respects  actions  founded  upon  contract  liability.  Some  cases 
hold  that  in  an  action  upon  a  joint,  or  a  joint  and  several,  lia- 
bility, a  judgment  given  against  all  the  defendants^  if  void  as 
to  one  of  them,  either  for  want  of  jurisdiction  or  other  cause, 
is  void  as  to  all.  Other  cases  hold  to  that  rule  only  in  actions 
foimded  on  a  joint  liability,  and  still  others  hold  that  such 
a  judgment  is  not  void  ^^^  where  the  cause  of  action  was 
joint  and  several:  1  Black  on  Judgments,  sees.  210,.  211. 
But  the  cases  referred  to  were  all  in  actions  ex  contractu,  and 
whatever  may  be  the  correct  rule  as  to  judgments  in  actions  of 
that  sort — ^whether  upon  joint  or  joint  and  several  liability — ^thc 
principles  there  announced  can  have  no  controlling  application 
in  actions  ex  delicto.  The  latter  are,  according  to  the  roles 
of  the  common  law,  joint  and  several,  and  a  judgment  against 
one  of  several  wrongdoers  is  not  a  bar  to  an  action  against 
others;  and  so  far  as  we  have  been  able  to  discover,  the  rule 
that  a  judgment  on  a  joint  contract  obligation,  if  void  as  to 
one  of  the  several  defendants  jointly  liable,  is  void  as  to  all, 
has  never  been  applied  to  actions  of  that  kind:  11  Ency.  of 
PL  &  Pr.  852;  Elliot  v.  Porter,  6  Dana,  299,  30  Am.  Dec. 
689;  Sessions  v.  Johnson,  95  IT.  S.  347;  Fleming  v.  McDonald, 
50  Ind.  278,  19  Am.  Eep.  711 ;  Preston  v.  Hutchinson,  29  Vt 
144;  Kirkwood  v.  Miller,  5  Sneed,  455,  73  Am.  Dec.  134,  and 
note. 

The  reasoning  of  the  cases  holding  such  a  judgment  void  in 
actions  ex  contractu,  where  there  is  a  joint  liability,  is  not  only 
that  the  cause  of  action  is  merged  in  the  judgment,  but  the 
parties  liable  thereon  have  the  right  of  contribution,  which 
right  the  plaintiff  is  bound  to  respect,  and  is  not  permitted  to 
take  any  action  or  step  that  would  deprive  any  of  the  defend- 
ants of  the  benefits  to  accrue  therefrom.  If  one  defendant 
thus  jointiy  liable  is  compelled  to  pay  the  entire  judgment, 
he  has  recourse  against  his  codefendants  for  reimbursement; 
and  if  the  judgment  be  void  as  to  any  such  defendant,  the 


June,  1902.]  Enobtband  v.  Kleffman.  361 

defendant  thus  compelled  to  pay  the  whole  debt  is  deprived 
of  that  remedy^  for  nothing  remains  upon  which  to  base  pro- 
ceedings to  enforce  it ,  the  cause  of  action  being  merged  in  the 
judgment,  which  is,  in  tum^  canceled  and  discharged  by  pay- 
ment But  this  reasoning,  conceding  its  soundness  to  the  full 
extent,  can  have  no  application  in  actions  in  tort,  where  the 
liability  of  the  wrongdoers  is  joint  and  several,  at  the  election 
of  plaintiff,  and  the  entry  of  judgment  against  any  one  of  the 
wrongdoers  does  not  extinguidx  the  cause  of  action,  except  as 
to  the  defendant  against  whom  rendered;  nor,  in  cases  like 
that  at  bar,  where  the  wrong  complained  of  was  intentional, 
is  there  any  right  of  contribution — at  least  none  which  the  in- 
jured party  is  under  any  duty  or  obligation  to  respect — as  there 
is  in  **^  cases  where  there  is  a  joint,  or  joint  and  several, 
contract  liability.  The  law  on  this  subject  is  stated  in  2  Black 
en  Judgments,  section  777,  and  11  Encyclopedia  of  Pleading 
and  Practice,  862,  where  many  of  the  authorities  are  collected 
and  discussed ;  and,  as  to  actions  founded  on  contract  liability,  1 
Black  on  Judgments,  sections  210,  211.  See,  also,  7  Am.  & 
Eng.  Ency.  of  Law,  364;  Ankeny  v.  Moflfett,  37  Minn.  109, 
33  N.  W.  320. 

That  the  cause  of  action  on  which  the  judgment  in  question 
uras  rendered  was  one  sounding  in  tort,  there  is  no  question. 
The  action  was,  as  we  have  already  suggested,  one  to  recover 
damages  for  the  fraud  of  defendants  in  the  matter  of  the  sale 
of  certain  real  property.  While  this  does  not  appear  upon  the 
face  of  the  judgment,  it  does  appear  from  the  complaint  in  that 
action,  and  to  that  the  court  may  look  in  determining  the  na- 
twe  of  the  action :  Mclntyre  v.  Moore,  105  Ga.  112,  31  S.  B. 
144. 

It  is  urged  by  appellant  that,  because  the  complaint  in  the 
Wisconsin  action  did  not  allege  that  defendants  knew  that  their 
representations  were  false,  it  must  be  assumed  that  the  action 
▼as  for  the  breach  of  a  warranty  of  title;,  and  not  for  fraud.  A 
reading  of  the  complaint  does  not  sustain  this  contention.  Tlie 
complaint  alleges  that  defendants,  ''for  the  purpose  of  inducing 
plamtifEs  to  purchase^'  certain  lands,  ''and  for  the  purpose  of 
deceiving  and  defrauding  them,  falsely  and  fraudulently  repre- 
WDted  to  said  plaintiffs,  ....  and  said  representations  .... 
▼ere  entirely  false  and  untrue.*'  This  suflBciently  alleges  the 
scienter — ^the  intent  to  deceive  and  defraud. 

The  further  point  is  made  that  the  complaint  contains  no 
allegation  that  a  judgment  void  as  to  one  of  the  defendants  is 


86^  American  State  Bbpobts,  Vol.  91.        [Minn. 

Talid  under  the  laws  of  the  state  of  Wisconsin.  In  determining 
whether  it  is  valid,  we  are  controlled  by  the  common-law  rule 
already  referred  to.  By  that,  such  judgment  is  valid  and 
binding  against  the  defendant  served  with  process,  even  though 
it  may  be  void  as  to  a  codefendant  not  served.  In  additioik 
to  this,  it  was  conceded  on  the  trial  that  the  circuit  court  of 
Wisconsin,  in  which  the  judgment  in  question  was  rendered*, 
was  a  court  of  general  jurisdiction.  The  validity  of  the  judg* 
ment  must  therefore  be  presumed.- 
Order  afGirmed. 


EKTIBETT  OF  JT7DOMENTS  VOID  AS  AaAINST  80MB  OF 


I.  Void  as  to  One,  Whether  Void  as  to  AIL 

TL  Jurlsdlctiona,  Where  Held  Void  in  Toto. 

ZIL  Jurisdictions  Where  Held  Valid  as  to  Dsfendaat  flen^sdi 

ZV.  Disposition  Upon  AppeaL 

V.  Oondusion. 

L    Void  as  to  One,  Whether  Void  as  to  AIL 

We  think  it  may  be  safely  asserted  that  the  wei^t  of  authority  im 
against  the  doctrine  that  a  judgment  irregularly  or  mietakenly 
tendered  against  two  joint  defendants,  one  of  whom  is  not  snsft- 
moned,  or  over  whom  the  court  has  no  jurisdiction,  and  allowed  to 
stand  unreversed,  though  void  as  to  the  defendant  over  whom  ths 
eourt  rendering  it  has  no  jurisdiction,  is  necessarily  void  as  to 
the  summoned  defendant.  In  most  ntates,  there  are  statutes  aothor- 
izing  judgments  against  two  or  more  joint  debtors  upon  service  of 
enmmons  oi^  but  one  of  them,  but  the  discussioB  of  the  entirety  of 
the  judgment  may  more  profitably  be  confined  to  eases  of  jndgmoats 
irregularly  rendered,  and  without  statutory  sanetioa* 

Upon  this  topic  the  eases  are  in  irreconcilable  eonflicty  and  quit* 
a  respectable  line  of  authority  asserts  and  enforces  the  propositios 
that  a  judgment  is  an  entirety,  and  if  void  as  against  one  defend- 
ant, it  is  void  as  against  all,  though  it  remains  unappealed  from  and 
unreversed.  This  doctrine  is  based  upon  numerous  expressions  found 
in  the  authorities  to  the  effect  that  a  judgment  is  an  entirety,  and 
if  rendered  against  several  defendants  jointly,  and  erroneous  or 
irregular  as  to  one  of  them,  it  cannot  be  purged  thereof  so  as  to 
stand  good  and  valid  against  the  remainder. 

n.    Jurisdictions  Where  Held  Void  in  Toto. 

It  is  held,  accordingly,  in  quite  a  number  of  the  states,  that  if  the 
judgment  is  void  as  against  one  defendant  for  want  of  juriadiction 
over  him,  or  for  other  valid  cause,  it  must  be  considered  as  void  as 
to  all  of  the  defendants,  and  therefore  a  mere  nullity.  The  rule 
probably  originated,  so  far  as  the  United  States  is  concerned,  in  a 


Jane,  1902.]  Engstband  v.  Eleffman.  8()S 

orelesB  and  ill-eonsidered  express] oo  emanatiiis;  from  a  very  dis- 
tiiigoished  eotirt  in  the  ease  of  Hall  y.  Williams,  6  Pick.  232,  17  Am. 
Bee.  356,  wherein  it  was  said  that  "the  judgment  being  entire,  if 
it  is  a  nullity  with  respect  to  one,  it  is  also  in  the  whole." 

This  case,  like  many  of  its  successors  sustaining  the  same  proposi- 
tion, was  a  suit  on  a  judgment  recovered  in  another  state  in  which 
one  or  more  of  the  joint  defendants  was  not  seiVed  with  process,, 
and  neither   had  notice  nor  appeared  in  the  original  action.     This- 
inle  arising  from  a  dictum,  that  the  judgment  is  entire,  and  if  void* 
as  to  one  defendant,  where  there  are  several,  it  is  void  as  to  all, 
may  be  said  to  be  the  settled  doctrine  in  Massachustts,  as  it  ia 
announced  and  upheld  in  Knapp  v.  Abell,  10  Allen,  485,  and  Wright 
▼.  AndrewBy  130  Mass.  149.    In  several  of  the  states  the  courts  have* 
adopted  this  rule  upon  the  authority  of  Hall  y.  Williams,  6  Pick. 
232,  17   Am.   Pec.  356,  without   discussion  or  reasoning.     Thus,  in 
New  Hampshire,  it  is  settled  that  a  joint  judgment  against  several 
Oef  end  ants  is  an  entirety,  and  if  void  as  to  one  for  want  of  notice^ 
it  is  void  as  to  all:  Bangely  v.  Webster,  U  N.  H.  299;  Wilbur  y. 
Abbot,  60  N.  H.  40.    In  Maine,  the  same  rule  prevails,  it  being  held 
that  a  judgment  against  two  defendants  jointly  is  one  and  entire,, 
sad  is  void  against  both  if  one  was  not  an  inhabitant  of  the  state, 
nd  no  legal  service  of  the  writ  was  made  upon  him:  Buffum  v. 
Bamsden,  55  Me.  252,  92  Am.  Dec.  589;  Winslow  v.  Lambard,  5T 
He.  357.    In  the  epmparatively  recent  case  of  Hanley  v.  Donoghue,. 
68  Md.  239,  43  Am.  Bep.  554,  decided  in  1882,  the  question  was  pre* 
wnted  for  the  first  time  to  the  supreme  court  of  Maryland  for  its^ 
detemunation,  and  that  court  decided  that  in  an  action  on  a  judg- 
ment recovered  in  another  state  against  two  defendants  jointly,  only 
one  of  whom  was  served  with  process,  there  can  be  no  recovery,  even; 
tgainst  the  one  served,  and  the  court  said  that  "if  a  suit  is  brought 
in  this  state  on  a  foreign  judgment,  which  is  admitted  to  be  void 
•I  to  some  of  the  defendants,  such  a  judgment  must  be  held  void  as> 
to  alL    The  reason  of  the  law  is  that  the  judgment  is  an  entire 
tiling,  and  cannot  be  separated  into  parts.    If  execution  is  issued 
upon  such  a  judgment,  it  must  be  issued  against  aU  of  the  defend- 
utt.  ....  Courts  have  permitted  judgments,   on  motion,   some   of 
them  in  a  quasi  equitable  jurisdiction,  to  be  set  aside  as  to  one 
defendant  and  to  stand  as  to  others.    And  in  some  states  it  ha» 
l>een  decided  that  a  judgment  may  be  valid  as  to  one  defendant 
and  void  as  to  others:  Douglass  v.  Massie,  16  Ohio,  271,  47  Am.  Dec 
375.    The  weight  of  authority  is,  we  think,  decidedly  the  other  way, 
aad  in  aeeord  with  the  law  as  laid  down  in  Hall  v.  Williams,  6 
Pick,  232,    17   Am.   Dec    356.    Looking   at    the    question    from    an 
equitable  standpoint  purely,  there  is  some  force  in  the  appellants' 
eontention  that  a  judgment  may,  and  ought  to  be,   held  valid  as 
to  parties  summoned,  and  who  had  an  opportunity  to  make  their 
defenses,  even  though  it  may  be  void  as  to  others,  against  whom  nj> 


364  American  State  Reports,  Vol.  91.         [Mrnn* 

process  was  issued.  But  if  it  be  well  settled— and  sucE  seems  to  Im 
the  law— that  a  judgment  which  is  vo;d  as  to  one  of  the  defendants 
is  void  also  as  to  the  others,  the  plaintiff  in  taking  such  a  judgmest 
has  no  one  to  blame  but  himself.  In  bringing  suit  against  t^ro 
parties  on  a  joint  contract,  it  was  his  duty  to  have  directed  pr( 
to  be  issued  ag^nst  both,  and  if  he  failed  to  do  so,  and 
quently  took  a  judgment  against  one  of  the  defendants  who  never 
had  been  summoned,  he  has  no  right  to  complain,  because  the  lav 
will  not  enforce  the  payment  of  such  a  judgment":  Hanle^r  ▼• 
Donoghue,  59  Md.  239,  43  Am.  Kep.  S54.  It  would  appear  from  thm 
Above  quotation  that  the  court  was  guided  more  by  precedent  im 
reaching  its  conclusion  than  by  sound  reasoning,  and  that  it  wmm 
no^  entirely  satisfied  with  its  own  decision. 

The  courts  of  Mississippi  also  seem  to  be  committed  to  the  doetrine 
that  a  judgment  against  joint  defendants  is  an  entirety,  and  if  ▼okl 
as  to  one,  is  void  to  all,  whether  such  invalidity  arises  from  the  faet 
of  the  death  of  such  defendant,  or  because  he  was  not  served  with 
process,  or  from  any  other  cause:  Martin  v.  Williams,  42  Miaa.  210, 
97  Am.  Dec.  456;  Weis  v.  Aaron,  75  Miss.  138,  65  Am.  St.  Bepw  594^ 
21  South.  763. 

In  New  York  the  question  has  been  decided  both  ways.  Thiis^  im 
Holbrook  v.  Murray,  5  Wend.  161,  it  was  said  that  "the  fact  stated 
in  this  plea  being  admitted  by  the  demurrer,  the  defense  of  a  wmat 
of  jurisdiction  as  to  the  person  of  this  defendant  is  established.  Af 
to  him  the  judgment  is  not  conclusive;  it  is  not  even  evidence  of  a 
demand;  it  ia  a  nullity.  What  effect  has  this  on  the  other  defend- 
ants whose  plea  does  not  afford  any  defense  ff  The  judgment  is 
entire,  and  if  void  as  to  one  defendant,  where  there  are  several,  i% 
ih  void  as  to  all.  This  precise  point  was  decided  in  Hall  v.  WiUianu^ 
C  Piek«  232-247,  17  Am.  Dec.  356,  and  in  Bichards  v.  Walton,  12 
Johns.  434."  This  case  is,  neceesarily,  in  conflict  with  the  deeiaioa 
in  St.  John  v.  Holmes,  20  Wend.  609,  32  Am.  Dec.  603,  that  judg- 
ment against  a  firm  will  not  be  vacated  because  it  was  unauthorised 
by  one  of  the  firm,  unless  the  motion  to  vacate  was  made  by  the 
member  against  whom  the  judgment  was  entered  without  his  author- 
ity. The  judgment  is  good  against  the  partner  who  assented  to  it, 
though  it  may  be  inoperative  against  his  copartner. 

The  inferior  courts  of  Illinois  have  gone  to  the  extent  of  holding 
that  a  judgment  against  joint  defendants  is  a  unit,  and  if  erroneous 
or  void  as  to  one  of  them,  is  void  as  to  aU:  Grace  v.  Casey  etc 
Marble  Co.,  62  IIL  App.  149;  Larsen  v.  Larsen,  90  111.  App.  384. 
These  decisions  purport  to  be  based  on  those  of  the  supreme  court 
ef  that  state,  but  the  latter  do  not  support  the  proposition  as  thus 
stated,  and  only  hold  what  may  be  conceded  as  undeniably  true,  that 
a  judgment  against  two  joint  defendants,  if  one  is  not  served  and 
does  not  appear,  is  erroneous,  and,  on  appeal  therefrom,  the  judgment 
should  be  reversed  as  to  aU  of  the  defendants  and  remanded  geaer- 


Jane,  1902.]  Engstramd  v.  El£Ffman.  36& 

tXty,  and  the  appellate  eourt  has  no  power  to  direct  the  trial  eourt 
to  enter  a  several  judgment  against  the  defendant  served:  Broekman^ 
V.  HeDonald,  16  HI.  112;  Williams  v.  Chalfant,  82  HI.  218;  Claflin  v. 
Dcnne,  129  SL  241,  16  Am.  St.  Bep.  263,  21  N.  £.  834;  Supreme 
Lodge  Knights  of  Honor  v.  Ck>ldberger,  175  Til.  19,  51  N.  £.  647. 
Of  eonrse,  the  question  discussed  in  the  latter  cases  involves  an 
entirely  different  question— namely,  the  disposition  to  be  made  on> 
i^peal  of  a  voidable  judgment,  and  not  of  a  judgment  absolutely 
void,  simply  because  of  its  entirety.  And  the  same  may  be  said 
ef  the  decisions  in  Missouri,  as  in  the  City  of  St.  Louis  v.  Gleasoiv 
15  Mo.  App.  25,  wherein  it  was  held  that  a  decree  which  is  void  for 
Vint  of  jurisdiction  as  to  one  of  several  defendants  is  void  as  to  all^ 
while  the  farthest  that  the  decisions  of  the  supreme  court  of  that 
state  have  gone  is  to  affirm  that  if  there  is  a  defective  service  of 
process  upon  one  of  several  defendants,  the  one  not  properly  served 
is  entitled  to  have  the  judgment  rendered  against  him  jointly  with 
the  others  set  aside  and  that  being  an  entire  thing,  he  must  have  it 
Kt  aside  as  to  all  of  the  defendants,  as  it  cannot  be  split  up  and 
affinned  as  to  some,  and  reversed  as  to  others  against  whom  it  has 
been  rendered:  Bandalls  v.  Wilson,  24  Mo.  76;  Smith  v.  Bollins,  25 
Kg.  408;  Dickerson  v.  Chrisman,  28  Mo.  134.  This,  we  apprehend,  i» 
a  very  different  proposition  from  affirming  that  such  judgment  unap- 
pealed  from,  is  absolutely  void  as  to  all  of  the  defendants,  because- 
of  its  entirety. 

In  Texas,  a  final  judgment  is  indivisible.  Hence,  a  judgment 
against  joint  defendants,  when  only  part  of  them  have  been  served 
with  process,  is  void  as  to  all:  Hulme  v.  Janes^  6  Tex.  242,  65  Am. 
Dec  774;  Long  v.  Gamett,  45  Tex.  400. 

The  rule  that  a  judgment  against  joint  defendants  is  an  entirety,, 
and  if  void  as  to  one  of  them  is  void  as  to  all,  is  sustained  by  Don- 
seDy  V.  Graham,  77  Pa.  St.  274;  Stenhouse  v.  Bonum,  12  Bieh.  620; 
Boberts  v.  Pawley,  50  S.  C.  491,  27  &  B.  913;  Jackson  v.  Heults,  d 
Maekey,  548.  If  this  rule  is  to  prevail,  then,  when  such  judgment  is- 
aade  the  basis  of  an  action,  whether  in  a  domestic  tribunal  or  not,, 
against  the  defendant  who  has  been  properly  summoned,  he  has  a 
right  to  show  the  irregularity  in  respect  to  his  eodefendant,  or  that 
the  court  never  obtained  jurisdiction  of  the  latter,  and  then  he  i» 
entitled  to  defeat  a  recovery  against  himself,  and,  although  such  a 
remit  seems  scarcely  in  keeping  with  sound  reason  and  equal  justice, 
■ome  of  the  eases  considering  the  judgment  as  an  entirety  have 
l)eea  forced  to  maintain  this  position:  Hanley  v.  Donaghue,  59  Md. 
299,  43  Am.  Bep.  554;  Holbrook  v.  Murray,  5  Wend.  161.  It  is  con- 
ceded that  the  doctrine  that  a  judgment  void  as  to  one  defendant  is 
void  as  to  all  applies  only  to  judgments  at  law  and  not  to  decrees 
in  equity:  Dickerson  v.  Chrisman,  28  Mo.  134;  Yoorhis  v.  Gamble,  6- 
Mo.  App.  1« 


366  American  IStatb  Bbpobts,  Vol.  91.        [IGmi. 

m.    Jurisdictions  Where  Held  Valid  as  to  Defendant  Serred. 

We  now  eome  to  the  cojasideration  of  those  cases  which  support 
what  may  be  termed   the   majority  rule^   and   which   repudiate   the 
<loetrine  that     a  judgment  against  joint  defendants,  if  void  as  ts 
one,  is  necessarily  void  as  to  all.    It  is  now  firmly  established  im 
many  states  as  a  sound  proposition  of  law  that  where,  in  an  action 
upon  a  joint    or    joint    and    several    obligation,    all    parties    lisLbto 
thereon  are  made  defendants,  the  fact  that  the  judgment  thereua 
tendered  is  void  as  to  one  of  such  defendants,  because  he  was  not 
-summoned,  or  because  his  voluntary  appearance  was  unauthorised, 
or  if,  from  such  or  any  other  cause,  the  eourt  failed  to   acquire 
jurisdiction  over  him,  this  does  not  render  the  judgment  void  ma  to 
All  of  the  defendants.    This,  of  course,  is  the  doctrine  adopted  in  thm 
principal  case,  and  certainly  seems  to  us  to  be  by  far  the  mote 
logical  and  better  considered  rule,  and  the  one  which  must  in  the 
•end  prevail  everywhere,  except  perhaps  in  those  jurisdictions  where 
the  court  feels  itself  too  firmly  bound  by  its  former  precedents  te 
depart  from  the  old  and  contrary  rule.    In  Nebraska  it  is  well  set- 
tled that  the  fact  that  a  joint  judgment,  either  domestic  or  of  a 
tdster  state,  is  invalid  and  void  as  to  one  of  the  defendants,  because 
jurisdiction  over  him  was  never  acquired  in  the  action  is  not  invalid 
-as  to  his  codef endants,  nor  ground  for  their  avoidance  of  such  judge- 
ment:  Mercer  v.  James,  6  Neb.  406;  Council  Bluffs  8av.  Bank  v. 
Oriswold,  50  Neb.  754,  70  N.  W.  376.    In  Ohio,  the  same  doctrine 
prevails,  and  the  cases  maintaining  the  opposite  rule  are  expreealj 
repudiated:  Douglass  v.  Massie,  16  Ohio,  271,  47  Am.  Dee.  37S;  Ash 
V.  McCabe,  21  Ohio  St.  181;   Newburg  v.  Munshower,  29  Ohio  St 
4S17,  23  Am.  Rep.  769.    It  is  there  held  that  if  judgment  is  taken 
against  several  defendants  jointly,  only  part  of  whom  have  appeared 
in  the  action  or  been  served  with  process,  the  defendants  properly 
summoned  cannot  reverse  the  judgment  for  such  error  or  irregularity: 
Ash  V.  McCabe,  21  Ohio  St.  181.    Such  a  judgment  is  not  void,  and 
if   land   is   sold  under   an   execution   issued   thereon,   title   to   part 
thereof  at  least  will  pass  to  the  purchaser  at  sheriff's  sale:  Douglass 
v.  Massie,  16  Ohio,  271,  47  Am.  Dec.  375.    In  New  York,  although, 
as  we  have    already  shown,  there  is  a  conflict  in  the  authorities^ 
the  majority  of  them  maintain  the  rule  that  if  judgment  is  rendered 
against  joint  defendants,  and  it  is  irregular  as  to  one  of  them  be- 
•cause  he  was  not  properly  before  the  court,  it  certainly  is  not  void 
AS  to  both,  and  that  if  execution  is  issued   thereon  against   both, 
the  court  will  not  set  it  aside  on  the  application   of  the  defend- 
ant properly  before  the  court,  nor  even  as  against  his  codefendant, 
but  as  to  the  latter  it  will  be  ordered  that  no  execution  shall  go 
Against  his  person  or  goods:  Green  v.  Beals,  2  Gaines,  254;  Brittia 
V.  Wilder,  6  Hill,  242;  Crane  v.  French,  1  Wend.  311;  St  John  v. 
Holmes^  20  Wend.  609,  32  Am.  Dec.  603,  and  note,  p.  604^  eontaining 


Jime,  1902.1  Engstrand  v.  Kleffm an.  867 

t  rigorouB  attack  upon  the  doctrine  of  Hall  v.  Williams,  6  Pick. 
232,  17  Am.  Dec  356,  and  giving  the  reasons  for  the  maintenance 
of  the  rule  under  consideration,  since  adopted  by  courts  and  law- 
writers  alike. 

That  a  judgment  yoid  as  to  one  or  more  defendants  is  not 
aeeessarily  void  as  to  all  is  the  rule  in  Arkansas,  as  shown  hy 
Cheek  V.  Pugh,  19  Ark.  674,  where  it  was  decided  that  a  judgment 
against  a  principal  in  an  attachment  bond  and  also  against  his 
soreties  who  were  not  made  parties  to  the  suit  is  not  void  as  to 
SDch  principal,  though  a  mere  nullity  as  to  such  sureties. 

In  Georgia   it  is  also   maintained  that  a  judgment   against   two 
defendants    on    a   joint  and  several    contract,   where    one    of    them 
has  never    been  served  with  summons^  io  void  only  as  to  the  one 
not  served,    and  the  other   can   take   no   advantage   of   the   error: 
Kitchens  v.  Hntchins,  44  Ga.  620.    In  Illinois,  although,  as  before 
said,  the  inferior  courts  hold  that  a  judgment  against  joint  defend- 
ants is  necessarily  a  unit,  and  if  void    as  to  one  must  be  void 
as  to  all  (Iiarsen  v.  Larsen,  90  HI.  App.  384),  this  is  not  the  propo- 
sition announced  by  the  supreme  court  of  that  state.    In  Murphy 
V.  Orr,  32  HL  489,  it  was  announced  that  if  the  court  has  jurisdic- 
tion of  the  subject  matter  of  the  suit   and  of  the  person  of  one  of 
the  defendants,  a  judgment  against  him  until  reversed  or  set  aside 
ii  binding  on  him,  although  it  may  be  inoperative  as  to  his  code- 
fendants  therein  by  reason  of  their  not  having  been  properly  brought 
into  court.    And  to  the  same  effect  are  the  cases  of  Williams  v. 
Chalfant,  82  HI.  218,  and  Supreme  Lodge  Knights  of  Honor  v.  Gold- 
berger,  175   HI.   19,  51  N.  E.  647,  which  simply  hold  that  such   a 
judgment  is  erroneous,  and  may,  upon  appeal,  be  reversed  as  to  all 
^i  the  ilefendants.    In  Iowa  a  confession  of  judgment  by  one  part- 
ner in  the  name  of  the  firm,  without  the  consent  at  his  copartners 
is  Talid  against  the  partner  making  the  confesaion:  North  v.  Mudge, 
13  Iowa,  496,   81   Am.  Dec.  441.    In  Missouri,  also,   the  prevailing 
nile  is  that  when  a  joint  judgment  is  rendered  against  several  de- 
fendants, and  one  of  them  is  not  summoned  and  does  not  appear, 
the  judgment  is  not  void  as  to  the  defendant  or  defendants  served, 
and  though  the  judgment  may  be  considered  as  an  entirety  for  the 
porposes  of  review  on  appeal  or  writ  of  error,  and  would  be  reversed 
as  to  all  of  the  defendants  if  thus  directly  attacked,  it  cannot  be 
collaterally  assailed  in  another  proceeding:  Lenox  v.  Clarke,  52  Mo. 
115;  Bailey  v.  McGinness,  57  Mo.  362;  Holton  v.  Towner,  81  Mo. 
360;  Williams  v.  Hudson,  93  Mo.  524,  6  8.  W.  261;  Boyd  v.  Ellis, 
107  Mo.  394,  18  S.  W.  29.    In  Pennsylvania,  if  a  judgment  is  rendered 
generally  against  several  defendants,  one  of  whom  is  not  served, 
the  judgment,  though  void  as  to  the  latter,  is  valid  as  to  the  others: 
^amieson  v.  Pomeroy,  9  Pa.  St.  230;  Shallcross  v.  Smith,  81  Pa.  St. 
132.   Or  if  a  judgment  is  confessed  by  one  partner  in  the  name  of 


368  American  State  BEroRTS,  Vol.  91.         [Minn„ 

\ 

the  firm  without  the  authority  of  the  copartner,  although  it  is  voi^l 
HB  to  the  latter,  is  valid  as  to  the  former,  both  as  evidence  of  th^\ 
amount  of  hit  indebtednesa  and  as  a  lien  upon  his  land:  Y'ork  1 
Bank's  Appeal,  36  Pa.  St.  458« 

If  judgment  is  entered  against  all  of  the  def endantf  where  some 
are  not  served  with  process  and  do  not  appear,  the  judgment  is  not 
void  as  to  those  served,  but  onljr  erroneous  or  voidable,  and  may  bo 
reversed  on  writ  of  error.  Such  is  the  rule  in  Tennessee:  Winchester 
V.  Beardin,  10  Humph.  247,  61  Am.  Dec.  702;  Crank  v.  Flowers^  4 
Heisk.  629;  Collins  v.  Knighty  3  Tenn.  Ch.  183. 

The  same  doctrine  prevails  in  Virginia:  Gray  v.  Stuart,  S3  Ormtt. 
351,  where  it  is  said  in  this  connection  that  ''there  is  a  manifest- 
distinction  between  an  erroneous  judgment  and  a  void  judgment. 
The  first  is  a  valid  judgment,  though  erroneous,  until  reversed,  pro- 
vided it  is  the  judgment  of  a  court  of  competent  jurisdiction.  The 
latter  is  no  judgment  at  all;  it  is  a  mere  nullity.  The  first  cannot 
be  assailed  in  any  other  court  but  an  appellate  court;  the  latter 
may  be  assailed  in  any  court,  anywhere,  whenever  any  claim  is 
made  or  right  asserted  under  it'^  Gray  v.  Stuart,  33  Gratt.  351. 
In  a  late  case  in  Wisconsin  it  has  been  decided  that  the  fact  tknt 
a  joint  judgment  is  invalid  as  to  one  of  the  defendants  becanao 
jurisdiction  was  never  acquired  over  him  does  not  avoid  the  judg- 
ment as  to  his  codefendant  who  was  properly  served:  Keith  v.  Stiles, 
92  Wis.  15,  64  N.  W.  860,  65  N.  W.  860. 

ZV.    Disposition  upon  AppeaL 

When  consideration  is  had  of  the  question  as  to  the  proper  dis- 
position to  be  made  of  a  joint  judgment  against  several  defendant* 
which  is  irregular  or  voidable  as  to  one  of  them,  when  it  is  bron^t 
before  an  appellate  court  or  court  of  review  by  writ  of  error  or 
appeal,  the  authorities  are  found  to  be  verj  nearly  harmonious,  and, 
in  general,  they  agree  that  it  cannot  be  affirmed  as  to  one  defend- 
ant and  reversed  as  to  another,  but  must  be  reversed  as  to  them 
all  as  an  entirety,  upon  the  application  of  one  of  them:  Ellison  ▼. 
State,  8  Ala.  273;  Gargan  v.  School  Dist.,  4  Colo.  53;  Streeter  ▼. 
Marshall  Silver  Min.  Co.,  4  Colo.  535;  Tedlie  v.  Dill,  3  Ga.  104;  Kim- 
baU  V.  Tanner,  63  HI.  519;  Williams  v.  Chalfant,  82  HI.  218; 
Claflin  V.  Dunne,  129  111.  241,  16  Am.  St.  Bep.  263,  21  N.  E.  834; 
Supreme  Lodge  Knights  of  Honor  v.  Goldberger,  175  HL  19,  51  N.  E. 
647;  Cavender  v.  Smith,  6  Iowa,  157;  Joyes  v.  Hamilton,  10  Bush, 
544;  Murphy  v.  O'Reiley,  78  Ky.  263;  Winslow  v.  Lambard,  57  Me. 
356;  Covenant  etc  Ina  Co.  v.  Clover,  36  Mo.  392;  Holton  v.  Towner, 
81  Mo.  360;  Sargeant  v.  French,  10  N.  H.  444;  Burt  v.  Stevens^ 
22  N.  H.  229;  Frazier  v.  Williams,  24  Ohio  St  625;  Newbnrg  ▼. 
Munshowor,  29  Ohio  St.  617,  23  Am.  Bep.  769;  Donnelly  v.  Graham, 
77  Pa.  St.  274;  Boberts  v.  Pawley,  50  &  C.  491,  27  8.  E.  918;  Dn^ier 
T.  State,  1  Head,   262;   Wood   v.   Smith,   11  Tez.  867;   Diekson  ▼. 


Jnne,  1902.]  Engstband  v.  Eleffman.  S69 

Bnrkfl^  28  Tex.  117.  An  entire  judgment  against  seyeral  defendants^ 
whether  rendered  in  an  action  for  a  tort  or  npon  a  contract,  cai^ 
not  be  reversed  as  to  one  defendant  and  affirmed  as  to  the  others: 
Powers  ▼.  Irish,  23  Mich.  429;  Sheldon  ▼.  Quinlen,  5  HiU,  441.  If 
a  jiid|i:ment  is  rendered  against  defendants  on  a  joint  contract,  grant- 
ing a  new  trial  on  the  application  of  one  for  an  irregularity  as  to 
him  -vacates  ihe  judgment  as  to  both  defendants:  Hughes  v.  Lind- 
sey;  10  Ark.  S55;  Wootters  v.  Kauflman,  67  Tex.  488,  3  S.  W.  465. 
It  has  also  been  held  that  if  the  judgment  is  void  as  to  some  of  the 
defendanta,  it  may  be  vacated  on  motion,  though  made  by  a  defend- 
ant over  whom  the  court  had  jurisdiction:  Pomeroy  v.  Betts,  31  Mo. 
419.  If  the  judgment  is  several  as  to  the  parties,  it  may  be  good 
as  to  one  while  invalid  as  to  another,  and  in  such  case  the  appellate 
eonrt  may  reverse  it  in  part  and  affirm  it  in  part,  but  this  is  not 
so  where  it  is  joint  and  an  entirety  against  several  defendants: 
Cavender  v.  Smith,  5  Iowa,  157;  Poweis  v.  Irish,  23  Mich.  429; 
Shalleross  v.  Smith,  81  Pa.  St.  132.  The  rule  that  a  joint  judgment, 
if  invalid  as  to  one  of  the  defendants,  must  be  reversed  as  to  all 
and  in  toto,  does  not  apply  in  Nevada.  In  this  state  it  may  be  af- 
firmed against  the  defendant  as  to  whom  it  is  valid,  and  reversed 
as  to  the  defendants  against  whom  it  is  irregular  and  invalid;  Wood 
V.  Olney,  7  Nev.  109.  The  rule  in  California  seems  to  be  that  if 
only  one  of  several  defendants  against  whom  judgment  has  been  ren- 
dered appeals,  the  appellate  court,  if  it  reverses  the  judgment,  may 
reverse  or  modify  as  to  all  or  any  of  the  parties  defendant.  If  in 
each  ease  the  error  assigned  affects  only  the  party  appealing,  error 
is  not  presumed  as  to  the  parties  not  appealing,  and  the  judgment 
'Will  not  be  reversed  as  to  them,  though  reversed  as  to  the  defendant 
appealing:  Bicketson  v.  Bichardson,  26  Cal.  149.  In  Texas  it  has 
been  held  that  if  there  are  several  defendants,  one  of  whom  is  not 
served,  and  judgment  by  default  is  rendered  against  all  of  them, 
and  sdl  appeal,  the  judgment  may  be  reformed  in  the  appellate 
court  by  dismissing  the  action  as  to  the  one  not  served,  and  affirm- 
ing the  judgment  as  to  the  others:  Saffold  v.  Navano,  15  Tex.  76. 
The  practise  in  this  respect  certainly  may  be,  and  we  apprehend  i^ 
^olated  by  statute  in  many  of  the  states. 

V.    Conclusion. 

In  eonelusion,  it  may  be  said  that  on  one  side  we  have  a  line 
authority  maintaining  that  "the  judgment  is  entire,  and,  if  void 
to  one  defendant,  where  there  are  several,  it  is  void  as  to  all,'' 
id  that  being  absolutely  void  it  cannot  be  enforced  against  any  of 
"tlae  def endantSy  whether  appealed  from  or  not.  Under  this  rule  such 
jiadgmsnt  is  a  mere  nullity,  binding  no  one,  and  under  which  no 
ovM  eaa  acquire  any  rights,  while  the  debtor  defendant  regularly 
gsii  imd  and  against  whom  no  irregularity  exists,  may  impeach  the 
judgment  in  either  a  direct  or  a  eoUateral  proeeadiag,  although  he 

St.  Be^,  Vol  Mr-24 


370  Ambbican  Statb  Bbports,  Vol.  91.        [IGniL 

baa  been  depriyed  of  no  rights  nor  injured  by  the  irregular  or  er 
roneous  service  of  process  on  his  codefendant.  This  rule  does  not 
■seem  to  us  to  teem  with  sound  legal  reason  or  justice. 

The  other  line  of  atithority,  which  is  vastly  in  the  majority,  e»- 
tablishes  what  seems  to  us  the  much  more  reasonable  rule — namely, 
that  although  a  joint  judgment  against'  several  defendants  may  be 
•erroneous,  and  hence  invalid  as  to  one  of  the  defendants  for  want 
•of  service  on  him  and  jurisdiction  over  him,  still  it  is  not  an  ab- 
-solute  entirety,  but  is  divisible,  and  is  valid  and  binding  nx>on  the 
^others,  who  are  regularly  served,  or,  at  most,  voidable  as  to  them 
and  not  void  in  toto.  If  this  view  is  adopted,  it  is  evident  that  the 
.judgment  will  be  attended  with  the  usual  incidents  of  a  valid  judg- 
ment as  against  any  defendant  over  whom  jurisdiction  has  attached, 
mntil  it  is  regularly  reversed  or  vacated,  and  that  until  such  aetioa 
is  successfully  taken,  suit  will  lie  on  the  judgment  against  him,  and 
•he  will  Bot  be  permitted  to  attack  the  judgment  collaterally,  or  take 
advantage  ef  its  irregularity  as  to  his  codefendant  for  his  owa  bene* 
iftt.  This  is,  undoubtedly,  tiie  true  and  eorrect  reasoning  om  a  maeh 
▼ezed  legal  proposition,  over  the  determination  of  which  tka  eoorti 
«f  the  sevaral  states  have^  unfortunately,  fallen  into  irrecoaeilabls 
eoniliet. 


MAOOUN  T.  FIREMAITS  FUND  INSURANCE  CO. 

[86  Minn.  486,  91  N.  W.  5.] 

nraUSAHOB— Estate  of  Deceased.— A  policy  insuring  tht 
''f^gtate''  of  a  deceased  person  against  loss  by  Are  is  valid  and 
enforceable,    (p.  372.) 

IN8UBAK0E— Mortgage  Olaiise.— A  policy  of  insurance  pro> 
viding  that  if  it  shaU  be  made  payable  to  a  mortgagee  of  the  in- 
sured property,  no  act  or  default  of  any  person  except  such  mort- 
gagee, his  agents,  or  those  claiming  under  him,  shall  affeet  ths 
right  of  the  mortgagee  to  recover  in  case  of  loss,  which  shall  he 
payable  to  a  certain  named  person,  mortgagee^  as  his  interest  bu7 
appear,  gives  to  such  mortgagee  independent  insurance,  which  can- 
not be  destroyed  by  any  act  or  default  of  the  mortgagor,  or  of  anj 
person  except  the  mortgagee,  his  agent,  or  privies,     (p.  374.) 

nrSURAKOB^Failnre  of  Agent  to  Dlsdoae  Facts— Bscositve 
Xniarance. — If  an  insurance  agent  is  part  owner  of  the  insored  prop- 
erty as  heir  to  one  deceased  subsequently  to  the  execution  of  a 
mortgage  on  the  property,  and  also  one  of  the  makers  of  the  mort- 
gage note,  his  failure  when  issuing  the  policy  to  notify  his  eosi- 
{#any  of  these  facts,  or  that  there  was  a  prior  policy  upon  the  prop- 
erty issued  to  such  mortgagee,  does  not  void  the  policy  last  issood, 
although  the  amount  of  insurance  is  in  excess  of  the  amount  por- 
mitted  as  concurrent  insurance,    (p.  875.) 


June,  1902.]    MAeouN  v.  Fibbman's  Fund  Ins.  Ca  871 

nVBUBAJrOB— Ohaiigv  In  Title.— If  an  agreement  nnder  wbieli 
«  mortgagee  is  to  reeeiye  a  conveyance  of  insured  premisee  in  sat- 
isfaction of  the  mortgage  debt  is  not  fully  consummated  prior  to 
loss  nnder  the  policy,  there  is  no  change  in  the  legal  title  to  thei 
property,  so  as  to  constitute  that  a  ground  for  the  avoidance  of  the 
poliey.     (p.  375.) 

TRIAL— Question  for  Jury.— A  pure  issue  of  fact  must  be 
"Submitted  to  the  jury,  and  it  is  reversible  error  for  the  court  to  take 
the  question  thus  involved  away  from  and  direct  the  verdict,  (p. 
37«.) 

Brown  ft  Kerr  and  Y.  Steama^  for  tie  appellant. 

McGiffert  ft  Hunter  and  Baldwin  ft  Baldwin,  for  the  re* 
epondent. 

^^^  COLLINS,  J.  This  action  was  brought  by  the  plaia- 
tiff,  as  mortgagee,  to  recover  upon  a  Minnesota  standard  fire 
insurance  policy  ineuring  a  dwelling-honse,  issued  by  the  de- 
fendant company,  payable  to  the  ''estate  of  Elizabeth  L.  Hazen 
and  legal  representatives,''  with  lose,  if  any,  payable  to  the 
plaintiff,  as  mortgagee,  as  her  interest  might  appear.  It  con- 
tained this  provision :  ''If  this  policy  shall  be  made  payable  to 
a  mortgagee  of  the  insured  real  estate,  no  act  or  default  of 
any  person  other  than  such,  mortgagee  or  his  agents  or  those 
claiming  under  him  shall  affect  such  mortgagee's  right  to  re- 
cover in  case  of  loss  on  such  real  estate." 

The  mortgage  held  by  plaintiff  was  given  to  secure  an  in*' 
debtednees  of  eighteen  hundred  dollars,  evidenced,  according 
to  the  mortgage,  by  the  note  *®®  of  Elizabeth  L.  Hazen,  then 
owner  of  the  property,  but  who  had  deceased  prior  to  the  issu- 
ance of  the  policy.  Her  eon,  Edward  Hazen,  was  also  one  of 
the  makers  of  the  note.  He  was  also  a  member  of  the  firm  of 
Hazen  ft  Getchell,  agents  for  the  defendant  company  at  Duluth. 
His  brother,  C.  S.  Hazen,  and  himself  were  sole  heirs  at  law 
of  the  deceased,  Elizabeth,  their  mother,  and  the  owners  of 
the  insured  property,  subject  to  the  mortgage  and  a  settlement 
of  the  estate  in  the  probate  court.  The  insurable  value  of  the 
dwelling-house  was  two  thousand  four  hundred  dollars.  After 
the  decease  of  Elizabeth  an  agent  of  the  plaintiff  mortgagee 
requested  Edward  Hazen  to  insure  the  property,  and,  it  is 
^U^TPed,  then  and  there  informed  him  that  plaintiff  had  pre- 
viously procured  a  policy  insuring  her  interest,  as  mortgagee, 
to  the  amount  of  eighteen  hundred  dollars,  which,  it  is  to  be 
observed,  was  the  full  amount  of  her  claim.  The  loss  was  totaL 
At  the  conclusion  of  the  evidence  defendant's  counsel  moved 
for  a  directed  verdict  in  favor  of  their  client,  which  waa  de- 


372  American  State  Bepobts,  Vol.  91.        [Minn. 

niedL  The  plaintiff's  counsel  then  moyed  the  court  to  direct  • 
verdict  in  favor  of  the  plaintiff  for  the  full  amount  claimed 
in  the  complaint,  which  motion  was  granted,  and  such  verdict 
returned.  Later,  upon  a  settled  case,  an  alternative  motion 
(Lawe  1895,  c.  320)  was  made  by  defendant's  counsel,  and 
was  denied.  This  appeal  is  from  the  order  dcn}dng  the  al- 
ternative motion. 

A  large  number  of  assignments  of  error  are  presented^  manr 
of  which  need  no  consideration.  It  is  claimed  by  defendant^ a 
counsel:  1.  That  the  policy  was  void  upon  its  face,  becaiue 
made  payable  to  the  ''estate  of  Elizabeth  L.  Hazen  and  I^a) 
representatives'' ;  2.  That  it  was  void  because  it  was  issued  hj 
an  agent  of  defendant  company,  who  was  in  fact  part  owner 
of  the  property  insured,  and  was  also  one  of  the  makers  of 
the  note  secured  by  the  mortgage — ^the  position  assumed  being 
that  he  was  thereby  incapacitated  from  acting  as  defendant's 
agent  in  the  issuance  of  a  policy — ^these  facts  being  known  to 
plaintiff's  agent  to  whom  the  policy  was  delivered;  3.  That  it 
was  void  because  plaintiff  had  other  insurance,  which,  with  that 
now  involved,  was  in  excess  of  the  insurable  value;  and  4.  That 
the  policy  was  avoided  because  plaintiff  had  actually  pur- 
chased the  property  from  the  heirs  at  law  in  full  satisfaction 
of  the  note,  and  thereby  had  **•  destroyed  the  right  of  sub- 
rogation ae  against  Edward  Hazen,  to  which  defendant  would 
have  been  entitled,  by  the  terms  of  the  policy,  upon  payment 
of  the  loss.     We  take  these  contentions  in  their  order. 

1.  It  is  beyond  question  that  a  policy  insuring  the  estate  of  a 
deceased  person  against  loss  by  fire  is  valid  and  enforceable. 
This  statement  is  supported  by  all  of  the  text-books  upon  the 
subject  of  fire  insurance,  and  is  based  upon  the  self-evident 
proposition  that  an  insurance  company  should  not  be  permitted 
to  issue  a  poUcy,  so  worded  by  its  own  agent,  take  the  pre- 
mium for,  and  pretend  to  insure  and  protect  from  loss,  and 
then,  when  the  loss  occuie,  insist  that  it  is  not  liable,  because, 
instead  of  having  named  the  heirs,  executors,  or  administra- 
tors of  the  deceased  person  as  the  insured,  it  simply  specified 
the  estate  of  such  person  as  the  insured — an  error,  if  such  it  is, 
which  can  be  easily  corrected  by  a  reformation  of  the  contract: 
Clinton  v.  Hope  Ins.  Co.,  51  Barb.  647,  affirmed  in  the  court  of 
appeals,  45  N.  Y.  454 ;  Herkimer  v.  Rice,  27  N.  T.  163 ;  Weed 
V.  Hamburg-Bremen  Ins.  Co.,  133  N.  Y.  394,  31  N.  E.  231. 
To  the  same  effect  in  fact  is  Holbrook  v.  Si  Paul  etc.  Ins.  Co., 
25  Minn.  229.    The  case  cited  in  opposition — ^Eenaston  v. 


June,  1902.]     Magoun  v.  Fibazian'b  Fund  I»b.  Co.  87& 

Long,  81  Minn.  454,  84  N.  E.  323 — is  not  in  point  at  all,  for 
there  the  question  was  as  to  the  passage  of  the  legal  title  to  real 
estate  by  a  sheriff^s  certificate  of  foreclosure,  in  which  the 
giantee  was  the  ^'estate  of  A  B,  deceased.''  In  disposing  of  this 
point  it  is  not  necessary  to  consider  the  fact  that  the  policy  was 
abo  made  payable  to  the  '^egal  representatiyes''  of  the  Hazen 
estate. 

2.  As  before  stated,  Hazen  was  one  of  the  firm  representing 
defendant  company  at  Duluth,  was  one  of  the  heirs  at  law  of 
the  deceased  owner,  and  ako  one  of  the  makers  of  the  secured 
note.  We  are  not  now  prepared  to  assent  to  the  contention  of 
defendant's  counsel  that  his  interest  in  the  insured  premises 
was  such  that  he  could  not  bind  defendant  company  by  the  issu- 
ance of  its  policy,  because  there  would  be  such  a  conflict  of  duty 
on  his  part  as  would  require  the  courts  to  hold  that  such  a 
<K)ntraet  is  void  as  against  public  policy.  If  this  be  the  law, 
insurance  agents,  who  habitually  insure  their  own  property,  and 
-agents  who  make  a  practise  of  insuring  property  confided  to 
their  care  in  companies  ^•^  represented  by  them,  have  for  years 
beoi  taking  great  risks  themselves,  and  have  also  been  jeopardiz- 
ing the  interests  of  others;  for  it  ie  well  known  that  insurance 
agents  are  frequently  selected  because  of  desirable  risks  owned 
or  controlled  by  them  which  can  be  carried  by  the  companies 
they  represent.  But  we  are  not  compelled  to  decide  the  ques- 
tion at  this  time,  for  the  efficiency  of  the  insurance  contract 
with  this  plaintiff  was  not  dependent  upon  the  validity  of  a  con- 
tract between  defendant  company  and  the  estate  of  the  deceased 
or  her  legal  representatives,  nor  upon  the  act  of  defendant's 
agents. 

The  plaintiff  was  not,  under  the  terms  of  the  policy,  simply  a 
'Conditional  appointee  to  receive  what,  if  anything,  might  become 
dne  to  the  estate,  as  she  would  have  been  had  she  been  wholly 
dependent  upon  the  ''open  mortgage  clause,"  so  called,  formu- 
lated in  flie  words,  'liose,  if  any,  .  •  •  .  payable  to  Mary  Y. 
Magoun  .  •  .  .  as  her  interest  may  appear."  Her  status  was 
<rf  a  more  certain  and  definite  nature,  because  the  policy  con- 
tained, in  substance,  what  is  known  as  the  "union  mortgage 
clause"  as  distinguished  from  the  "open  mortgage  clause."  It 
haB  by  statute  b^n  made  a  part  of  the  standard  policy,  inopera- 
tive when  etanding  alone,  but  made  valid  and  enforceable  when 
the  clause  making  the  loss,  if  any,  payable  to  the  mortgagee,  is 
attached.  It  is  an  independent  contract  of  insurance  covering 
&e  mortgagee's  interest,  and  giving  him  the  same  protection  as 


374  Ambbican  Statb  Bbpobts,  Vol.  91.        [ifmn. 

if  he  had  taken  out  a  separate  policy.  By  it  he  is  freed  from 
conditions  imposed  upon  the  owner.  It  is  well  settled  that  * 
clause  of  this  kind  applies  exactly  in  the  manner  expressed 
therein.  The  conditions  of  insurance  relating  to  such  interests* 
are  governed  and  controlled  in  the  manner  written  upon,  at* 
tached,  or  appended  to  the  policy,  and  not  otherwise.  A  pro* 
vision  of  this  sort  is  an  independent  contract  between  the  de- 
fendant company  and  the  mortgagee^  and  where  it  is  fonnd  in 
the  policy  the  mortgagee's  right  to  recover  is  not  affected  or  in- 
validated  by  the  act,  neglect  or  omission  or  default  of  the  mort- 
gagor or  '^of  any  person  other  than  such  mortgagee  or  his 
agents/'  His  insurance  cannot  be  destroyed  by  the  acts  or  de* 
fault  of  the  mortgagor- or  others.  Its  clear  purpose  is  to  secure 
and  make  certain  the  interests  of  the  mortgagee,  and  it  is  to  be 
construed  *®^  in  this  light :  13  Am.  ft  Bng.  Ency.  of  Law,  2d 
ed.,  205,  206 ;  Elliott  on  Insurance,  sec.  341. 

A  comparison  of  the  union  clause  as  it  appears  in  polid®^ 
Issued  in  different  states  with  that  now  before  us  will  show  that 
there  is  no  substantial  difference  in  them,  and  the  authorities 
are  uniform  in  their  construction  of  such  a  clause.  It  mm^ 
follow  that  the  mortgagee  was  not  responsible  for  the  failure  of 
Hazen  to  advise  the  defendant  company  that  he  was  part  owner 
of  the  property  insured,  and.  was  also  one  of  the  makers  of  the 
note  secured  by  the  mortgage.  Under  this  clause  his  act  or  de* 
fault  in  this  respect  is  not  attributable  to  her.  Nor  was  she 
liable  for  his  failure  to  inform  the  company  of  the  additional 
insurance,  for  the  delivery  of  the  policy  to  the  mortgagee  witb 
notice  of  this  outstanding  insurance  constitutes  consent  upo» 
the  part  of  the  insurer  to  the  additional  insurance.  This  is  » 
general  rule,  and  is  not  affected  by  the  fact  that  Hazen  was  part 
owner  of  the  premises,  and  was  also  one  of  the  makers  of  the 
note,  because  of  the  independent  contract  provided  for  in  the 
union  mortgage  clause. 

3.  It  is  further  daimed  that  the  policy  was  invalidated  before 
the  fire,  because  there  was  a  conveyance  of  the  insured  property 
to  the  mortgagee  in  satisfaction  of  the  mortgage  note.  It  i» 
true  that  a  written  agreement  was  made  between  the  plaintiff'^ 
agent  and  Edward  Hazen,  which,  if  executed,  would  have  placed 
the  legal  title  of  the  property  in  the  mortgagee ;  but  this  agree* 
ment  was  not  complied  with.  By  its  terms  Hazen  was  to  pro- 
vide for  the  expense  of  publishing  a  notice  of  foreclosure,  was  to 
execute  and  deliver  a  quitclaim  deed  conveying  the  premises^ 
presumably  to  the  mortgagee,  and  also  his  promissory  note  for 


June,  1902.]    Maqoun  9.  Fibsmajn'b  Fttnd  Iks.  C!o.  876 

oiie  hundred  dollars.  Plaintiff  was  to  bid  in  the  premises  at  & 
foiedoenre  sale  for  the  full  amount  due,  and  thus  release  Hazen 
from  further  liability.  The  latter  never  made  or  attempted  to 
piOYide  for  the  expense  of  publication^  and  did  nothing  about  it. 
Fairly  construed,  this  agreement  meant  that  Hazen  was  to  pay^ 
or  secure  payment  of,  the  cost  and  expense  of  the  publication. 
He  simply  caused  to  be  executed  and  delivered  to  plaintiff's 
sgent  a  quitclaim  deed  of  the  premises.  This  was  never  ac- 
cepted by  the  agent  as  a  fulfillment  or  performance  of  the  con- 
tract It  conclusively  appears  that  none  of  the  parties  con- 
odered  ^^^  that  the  agreement  had  been  complied  with^  or  that 
the  title  had  passed.  The  daim,  therefore,  that  by  these  acts 
plaintiff  released  Edward  Hazen  from  the  note,  of  which  he  was 
a  signer,  and  therefore  deprived  the  defendant  company  of  its 
rig^t  to  subrogation,  is  without  foundation. 

4.  As  above  stated,  it  was  claimed  by  the  plaintifiPs  agent, 
tad  he  so  testified  upon  the  trial,  that  when  requesting  further 
insurance  from  Hazen  he  advised  him  of  the  existence  of  an- 
other policy  in  which  the  plaintiff's  interest  was  secured  to  the 
extent  of  eighteen  hundred  dollars.    Hazen  upon  the  witness- 
stand  denied  this,  and  claimed  that  he  had  no  notice  of  existing 
additional  insurance  until  after  the  loss  occurred.    Here  was 
an  issue  of  fact  between  these  parties  which  should  have  been 
sabmitted  to  the  jury.    If  a  jury  should  find  that  Hazen  was 
informed  of  this  additional  insurance  at  the  time  of  the  request 
that  another  policy  issue,  or  at  any  time  before  it  was  delivered, 
tiiis  amounted  to  notice  to  the  defendant  company,  and  it  would 
be  bound  by  it;  but  if,  upon  the  other  hand,  Hazen  had  no 
notice  of  this  additional  insurance,  which  violated  a  policy  pro-> 
vision,  until  after  the  fire,  the  defendant  company  would  not  be 
liable.    It  was  error  for  the  court  to  take  this  question  from  the 
jniy,  and  for  that  reason  a  new  trial  must  be  granted. 

5.  Counsel  for  plaintiff  insist  that,  in  any  event,  the  unau- 
thorized, acts  of  defendant's  agents  were  subsequently  ratified 
by  the  company  with  full  knowledge  of  the  facts.  We  find  some 
testimony  strongly  tending  to  show  a  ratification,  but  it  con- 
sists in  part  of  answering  letters  written  to  Mr.  Hazen  by  de- 
fendant's general  agent,  after  the  fire,  and  after  the  latter  had 
been  informed  of  the  additional  insurance,  and  also  that  Hazen 
▼as  part  owner  of  the  property.  The  letters  from  Mr.  Hazen 
to  the  agent,  which  induced  these  answers,  are  not  in  evidence, 
iod  we  are  unable  to  say  from  the  testimony  produced  that,  as 


376  Ambbican  Statb  Bbpobts^  Vol.  91.        [Miim. 

a  matter  of  law,  the  defendant  company  ratified  the  acts  of  iti 
agents. 

6.  In  conclusion^  we  wish  it  understood  that  we  are  not  now 
deciding  that  plaintiff  has  the  absolute  right  to  recoTer  upon  tiic 
policy.  The  contract  was  that  she  should  recover  ''as  her  in- 
terest may  appear.^'  What  her  interest  actually  was  might  be 
affected  by  "^^  full  or  part  payment  of  concurrent  iosaimoee 
through  the  other  policy. 

Order  reversed,  and  a  new  trial  granted. 


If  a  Policy  of  Fire  Imurance  makes  the  loss  payable  to  the  nevt- 
gagee^  and  also  provides  that  no  violation  of  its  conditions  hj  the 
mortgagor  shall  affect  the  mortgagee,  the  latter  may  recover  to  the 
extent  of  his  interest,  notwithstanding  snch  violation:  Bee  the 
monographic  note  to  Oakland  Home  Ins.  Go.  v.  Bank  of  Gommeree^ 
58  Am.  St.  Bep.  672;  Lancashire  Ins.  Go.  v.  Boardman,  58  Kan.  3S% 
62  Am.  St.  Bep.  621,  49  Pac  92.  The  assignment  bj  one  of  the 
mortgagors  of  his  interest  in  insured  property  does  not  avoid  the 
right  of  the  mortgagee  to  recover  on  a  policy  payable  to  hla[^  aad 
providing  that  the  act  of  no  one  other  than  himself  or  those  dalm- 
ing  under  him  shall  affect  his  right  to  recover  in  case  of  loss:  Whit- 
ing V.  Burkhardt,  178  Mass.  535,  86  Am.  St.  Bep.  503,  61  N.  S.  1. 


GILMOEE  V.  LAMPMAN. 

[86  Minn.  493,  90  N.  W.  1113.] 

JUBISDIOnON.— CkmstmctiTe  Service  of  Fxoeess  is  purely  a 

ftatatory  creation,  in  derogation  of  the  common  law,  and  the  re- 
quirements of  the  statute  must  be  strictly  observed  or  the  attempted 
service  will  be  fatally  defective,    (p.  378.) 

JUBISDIonON— Ckmstmctive  Service  of  Process.— The  af- 
iidavit  for  publication  of  summons  is  of  itself  the  prerequisite  npoa 
which  jurisdiction  is  based,  and  it  must  contain  and  state  poeitt^dy 
ell  the  facts  required  by  the  statute,  otherwise  it  is  fatally  def estiva 
(P»  879.) 

JUBISDIOnON.— Afldavlt  for  PubHcatioii  of  SnmmoiM  wkkk 
fails  to  state  that  the  defendant  has  propertv  within  the  states  er 
that  the  subject  matter  of  the  action  is  within  the  state,  is  ftiteUy 
defective,  and  does  not  confer  jurisdiction,    (p.  379.) 

JUUSDIOTION.— AfMavit  for  Pablieatioii  of  SnmnwiM^  il 
defective,  cannot  be  aided  by  reference  to  the  other  papers  of  reeotd 
in  the  case  for  the  purpose  of  conferring  jurisdiction*    (p.  8fQL} 

A.  0.  Morey,  for  the  appellant 

Wilson  &  Van  Derlip,  for  the  respondent 

^■M  LEWIS,  J.    In  an  action  to  foreclose  a  mechanic's  HeOt 
service  by  publication  was  attempted  to  be  made  as  to  the  v^ 


June,  1902.]  Oilmobb  v.  Lamphan.  877 

•pondent,  Adelaide  B.  Lampman,  and  fhe  following  affidayit 
was  executed  on  June  27th^  and  filed  on  July  18^  1901 : 

"*•*  *'State  of  Minnesota,     i 
County  of  H^inepin.  J 

"A.  G.  Morey,  being  first  dnly  sworn,  deposes  and  says:  That 
he  is  the  attorney  for  the  plaintiffs  in  the  above-entitled  action ; 
that  the  above  action  was  brought  for  the  purpose  of  f orecloeing 
a  mechanic's  lien,  and  that  Adelaide  B.  Lampman,  one  of  the 
defendants,  has  property  in  this  city,  and  is  the  owner  of  prop- 
erty  described  in  the  complaint;  that  he  believes  that  the  said 
defendant  Adelaide  B.  Lainpman  is  not  a  resident  of  the  state 
of  Minnesota,  but  that  she  is  a  resident  of  Newark,  Essex 
eoimty.  New  Jersey.  AiSant  further  says  that  this  affidavit  is 
made  for  the  purpose  of  obtaining  an  order  of  this  court  that 
the  service  of  the  summons  in  this  action  may  be  made  upon 
Adelaide  B.  Lampman,  one  of  the  aaid  defendants,  by  publica- 
tion. ABTHUE  G.  MOEEY. 

^Subscribed  and  sworn  to  before  me  this  27th  day  of  Jun^ 
1901. 
"[Notarial  Seal]  B.  C.  WYVELL, 

"Notary  Public,  Hennepin  County,  Minn.** 

Subsequently,  on  July  19th,  another  affidavit  was  filed,  stat- 
ing that  on  that  day  a  true  copy  of  the  summons  in  the  action 
was  deposited  in  the  postoffice  at  Minneapolis,  Minnesota,  in- 
closed in  an  envelope  duly  stamped  and  addressed  to  Adelaide 
B.  Lampman  at  Newark,  Essex  county.  New  Jersey.  The  first 
publication  of  the  summons  was  on  Saturday,  July  20th.  The 
complaint  was  verified  on  July  9th  and  filed  on  July  18,  1901, 
and  stated  that  the  respondent  was  the  owner  of  real  estate  (de- 
scribing it)  in  the  city  of  Minneapolis,  Hennepin  county,  Min- 
nesota. On  February  11,  1902,  respondent  appeared  specially 
by  counsel,  and  moved  the  court  for  an  order  to  set  aside  the 
s^yice  of  the  summons  on  the  ground  that  the  same  was  void« 
The  motion  was  granted,  and  plaintiffs  appealed. 

The  only  question  before  the  court  is  the  sufficiency  of  the 
affidavits  for  publication.  Appellants  complied  with  the  provi- 
Bion  of  the  General  Statutes  of  1894,  section  5204,  unless,  in 
the  first  affidavit  referred  to,  there  was  a  failure  to  state  that 
respondent  had  property  in  the  state  of  Minnesota,  and  that  the 
court  had  jurisdiction  of  the  subject  of  the  action,  or  that  the 
iabject  of  the  action  was  real  property  within  the  state.    It 


378  American  Statb  Bbports,  Vol.  91.        [Miniu 

will  be  conceded  that  the  second  affidavit  *®*  was  sufficient  to 
cover  the  omission  in  the  first  as  to  the  posting  of  the  simunonSb 
Appellant  contend  for  the  sufficiency  of  the  affidavit  upon  ibe 
ground  that  in  respect  to  the  description  of  the  property  owned 
by  respondent  in  the  state  of  Minnesota^  reference  might  be  had 
to  the  complaint  on  file,  and  that,  if  the  affidavits  were  insuffi* 
cient  under  the  third  subdivision  of  section  5204,  then  thej 
were  sufficient  under  the  fifth  subdivision. 

The  nature  of  constractive  service  by  publication  has  been 
expressed  in  the  following  language:  ^'Constructiye  service  of 
process  is  purely  a  statutory  creation,  and  in  derogation  of  the 
common  law,  for  which  reason  the  requirements  of  the  statute 
must  be  strictly  observed,  ....  and  a  failure  to  follow  the 
statute  will  render  the  attempted  service  fatally  defective.^  Or, 
as  stated  in  the  case  of  Barber  v.  Morris,  87  Minn.  194,  5  Am. 
St  Bep.  836,  33  N.  W.  559 :  ''The  statute  prescribes  the  means^ 
through  a  constructive  service  of  the  summons,  by  which  a  court 
may  acquire  jurisdiction  to  render  judgment  affecting  property 
witiiin  the  state.  This  mode  of  conferring  jurisdiction  is  ef- 
fectual only  as  the  statute  makes  it  so,  and  whatever  the  statute 
prescribes  as  a  prerequisite  condition  cannot  be  dispensed  with.'^ 
In  that  case,  the  affidavit  for  publication  was  not  filed  until  the 
entry  of  judgment. 

In  the  case  of  Feikert  t.  Wilson,  38  Minn.  841,  37  N.  W.  585, 
the  affidavit  stated,  upon  information  and  belief,  that  the  de- 
fendant had  property  within  the  state,  instead  of  stating  the 
fact  in  a  direct  and  positive  manner,  and  the  court  held  that  the 
statute  required  a  strict  compliance  with  its  terma.  The  role 
laid  down  in  Barber  v.  Morris,  37  Minn.  194,  5  Am.  St  Bep. 
836,  33  N.  W.  559,  is  also  applied  and  approved  in  Brown  t. 
Northern  Pac.  By.  Co.,  38  Minn.  506,  88  N.  W.  698.  In  the 
case  of  Easton  v.  Ghilds,  67  Minn.  242,  69  N.  W.  903,  it  is  held 
that  under  section  5204  the  filing  of  the  sheriff's  return  is  not 
a  jurisdictional  prerequisite  to  the  publication  of  the  gnmmons, 
overruling  Corson  v.  Shoemaker,  65  Minn«  386,  57  N.  W.  134. 
Thifl  decision  supports  the  theory  that  such  statutes  ahould  be 
strictly  construed,  but  requires  no  more  to  be  done  than  is  ex- 
pressly stated.  The  statute  does  not  require  the  filing  of  the 
sheriffs  return  before  commencement  of  the  publication,  and  it 
waa  therefore  properly  held  tiiat  ^•^  the  filing  was  not  a  pre- 
requisite to  the  publication,  but  was  prima  facie  evidence  in  ita 

support 
In  this  case  the  affidavits  themsdyeB  were  wboUj  deficient 


June,  1902.]  Gilmobb  v.  Lampman.  879' 

because  they  did  not  state  that  respondent  had  property  in  the 
state  of  Minnesota.  The  affidavit  itself  is  the  prerequisite  npoiv 
irhich  jurisdiction  is.  based^  and  it  must  contain  and  state  posi- 
tively all  of  the  facts  required  by  the  statute.  When  a  proceed- 
ing is  commenced  to  obtain  service  by  publication,  the  defendant 
has  the  right  to  examine  the  affidavit  on  file,  and  to  govern  his^ 
conduct  accordingly.  It  is  immaterial  that  the  complaint  con- 
tains the  information  wanting  in  the  affidavit,  for  the  interested 
]Matj  is  not  required  to  examine  the  complaint  to  ascertain  the 
factsw  Whatever  may  have  been  the  holdings  in  some  jurisdie- 
tions,  we  know  of  no  case  where,  under  a  similar  statute,  it  has- 
been  held  that  the  affidavit  may  be  aided  by  reference  to  other 
papers  of  record.  It  has  become  the  weU-recognized  and  settled 
role  in  this  state  that  the  affidavit  must  be  complete  in  itself  as- 
to  all  material  matters,  and  we  hold  that  the  affidavits  in  ques- 
tion are  insufficient,  and  did  not  confer  jurisdiction. 
Order  a£5nned. 


When  Service  of  Froeees  it  CofUtrueHve,  rather  than  actual  or  per- 
SDiialy   greater   strietness   of   proceeding  is  exacted   than  when   the- 
node  of  acquiring   jurisdiction    is   more   dearly   according    to    the- 
twn%  of  the  common  law:   See  the  monographic  note  to  Sanford 
V.  Edwards,  61  Anu  St.  Bep.  494,  495.    The  sole  purpose  of  an  af- 
ftdavit  for  the  publication  of  summons  is  to  enable  the  court  to  de* 
tenosine  whether  the  action  is  one  in  which  jurisdiction  may  be  ob- 
tained bj  service  by  publication.    And  it  is  suiBcient  if  it  advise» 
the  court  of  the  nature  of  the  action,  and  that  the  action  is  of  sucb 
a  eharaeter  that  the  court  can  acquire  jurisdiction  by  such  service: 
Leigh  V.  Green,  S2  Neb.  344,  89  Am.  St.  B^  761,  86  N.  W.  1093. 
An  order  for  the  publication  must  be  based  upon  an  affidavit  show- 
ing a  cause  of  action,  and  that  the  defendant  is  a  nonresident: 
Anderson  ▼.  Ooif,  7S  CaL  66,  1  Am.  St.  Bep.  34,  18  Pac.  73.    See,. 
»I«o,  Beckett  v.  Cuenin,  15  Oolo.  281,  22  Am.  St.  Bep.  399,  26  Fac. 
187;  HartzeU  ▼.  Vigen,  6  N.  Dak.  117,  66  Am.  St.  Bep.  589,  69  N. 
W.  203;  Woodward  ▼.  Brown.  119  CaL  288,  68  Am.  St.  Bep.  108.  51 
^»«.  2,  «42, 


380  American  State  Bbpobts,  Vol.  91.        [IGsa. 


BUBEOWS  T.  WESTEEN  UNION  TELEQBAPH  CO. 

[86  ICinn.  499,  90  N.  W.  UlL] 

0HE0K8  IndorMd  Wlwn  Presanttd  are  to  be  reecired 

prima  faeie  evidence  that  they  bear  the  indorsements  of  the 
<p.  383.) 

0HE0K8— Indonement-— Presomptlon.-— If  the  person  tedi 
ing  a  eheek  as  payee  and  presenting  it  has  been  identified  ms  tli« 
person  who  received  it  from  the  maker,  and  whom  the  maker 
nated  as  payee,  he  is  presumed  to  be  the  payee  in  favor  of  an 
<eent  purchaser  from  him.     (p.  383.) 

TBUBQAAPH  00MPANIE8— DaUvery  of  Ohedc  to 
Pemon — Innocent  Pnrcbasar. — If  a  telegraph  company,  npon 
der,  issnes  and  delivers  its  check  to  the  wrong  person  by 
it  is  liable  thereon  to  an  innocent  purchaser  who  takes  the  eheek 
from  the  holder  npon  his  indorsement.  It  is  presumed  in  fniror 
of  such  purchaser  that  the  indorser  is  the  payee  intended,  eepeeinlly 
when  the  purchaser  has  identified  him  as  the  person  to  whom  thie 
•check  was  delivered  as  payee,     (pp.  380,  384.) 

0HE0E3— DeUvery  of  to  Wrong  Person— Innoca&t  rmiliaiB 
ft  is  the  duty  of  a  drawer  of  a  check  to  know  that  the  persen  to 
whom  it  is  delivered  is  the  one  for  whom  it  is  intended,   and  a* 
against  an  innocent  purchaser  from  the  holder  by  indorsement  the 
•drawer  is  estopped  from  denying  the  validity  of  a  check,     (p^  3M.) 

J.  B.  Bichards,  for  the  appellant 

Greene  &  Wood,  for  the  respondent 

«^  LEWIS,  J.  The  firm  of  ScheflEer  &  Boasum,  of  St  PaaL 
liad  in  their  employ  a  traveling  agent  by  the  name  of  Jo8q)h 
E.  Jerome,  who  resided  and  made  his  headquarters  at  Crook- 
ston,  Minnestoa.  On  October  8,  1900,  a  telegram  vas  reoetved 
by  the  firm  as  follows: 

''Dnlnth,  Minn.,  Oct  8ili,  1900. 

^Tleceiver's  No.  12Q. 

^Time  filed,  11 :25  A.  M.    10  Paid.    Bush. 

^^0  Scheffer  &  Bossnm,  St  Paul,  Minn.: 
''Telegraph  me  $50.00  at  once;  extra  deaL 

[Signed]    ''J.  E.  JEBOMK 

''Will  caU.** 

In  response  to  this  message  the  firm  paid  fifty  dollars  to  the 
respondent  company  at  St  Paul,  and  the  agent  of  the  tdegimpli 
company  at  Dnluth  was  authorized  to  pay  the  money  to  Joeqdi 
E.  Jerome.  Mr.  Fletcher,  the  Dnluth  manager,  made  out  a 
check  for  the  amount,  and  handed  it  to  Mr.  Kent,  the  cashier. 
When  the  instructions  were  received  from  St  Paul  to  pay  tbe 


Jan^  1902.]     Burrows  v.  Western  Union  Tel.  Co.        881 

money,  the  supposed  Jerome  was  in  the  ofi5ce^  aiid  it  was  known 
to  Kent  that  he  was  the  party  who  wired  for  the  money.  The 
imposter  then  went  to  get  some  one  to  identify  him,  and  soon 
after  6  o'clock  in  the  evening  he  called  again  in  the  company 
of  one  Belleveau,  a  resident  of  Dnluth,  who  identified  him  aa 
Joseph  E.  Jerome,  whereupon  the  following  check  was  deliv^ 
ered  to  him: 


"No.  706. 
^T^estem  Union  TeL  Co. 

''Duluth,  Minn.,  October  8th,  1900. 
"American  Exchange  Bank: 

^'Pay  to  the  order  of  Joseph  E.  Jerome  fifty  and  no  lOO 
dollars. 
«$50.00. 

[Signed]    "G.  B.  FLETCHER, 

"Oflfice  Manager.** 

A  receipt  was  taken,  signed  by  Joseph  E.  Jerome,  the  date  of 
which  shows  that  the  check  was  issued  at  6 :40  P.  M.  The  party 
who  obtained  the  check,  in  company  with  Bellevean,  went  imme- 
diately across  the  street  to  a  store  of  appellant,  and  purchased  a 
hat,  offering  the  check  in  payment.  He  indorsed  the  check,, 
writing  the  name  "Joseph  E.  Jerome^'  on  the  back  thereof,  re- 
ceived the  difference  in  cash,  and  departed.  The  telegraph 
company  having  discovered  that  the  party  receiving  the  check 
was  not  in  fact  the  Joseph  E.  Jerome  in  the  employ  of  Scheffer 
ft  Bossnm,  stopped  payment  of  the  check,  and  the  present 
action  was  brought  by  appellant  to  recover  the  amount  paid 
thereon. 

This  presents  a  question  somewhat  diflScult  of  solution.  We 
have  found  no  case  in  the  books  presenting  exactly  the  same 
facts.  It  is  well  settled  that  a  bank  has  no  authority  to  pay 
out  the  money  of  its  depositors  upon  a  check  where  the  name 
of  the  payee  has  been  forged.  It  is  also  the  law  that  where 
the  entire  transaction  is  fictitious,  and  the  payee  and  check 
have  no  existence  in  fact,  at  no  time  does  such  a  check  obtain 
legal  status,  no  matter  whether  parties  deal  with  it  in  good 
faith  or  not.  It  has  been  decided  that  where  a  check  has  been 
issued,  payable  to  a  certain  party  as  payee,  and  another  party 
of  IJie  same  name  comes  into  possession  of  it  either  by  mistake 
or  fraud,  and  forges  the  signature  of  the  real  party,  this  does 
not  give  the  check  any  legal  status,  so  as  to  protect  a  bank 
agamst  which  it  was  drawn:  Mead  v.  Young,  4  Term  Rep, 
88;  Graves  v.  American  etc.  Bank,  17  N.  T.  205;  Famous  etc. 


382  American  State  Reports^  Vol.  91.         [IGfli 

Clothing  Co.  v.  Crosswhite,  124  Mo.  34,  46  Am.  St  Rep.  41 
"27  S.  W.  397.  The  authorities  on  this  subject  are  quite  tha 
oughly  reviewed  in  the  note  to  Land  Title  etc.  Co.  v.  Northvei 
-era  Nat.  Bank,  50  L.  E.  A.  75, 84,  and  thus  summarized :  '^Vfhi 
ever  the  true  theory  may  be,  it  is  apparent  from  the  foregoia 
eases  that  the  drawer  of  a  check,  draft,  or  bill  •^^  of  exchang 
who  delivers  it  to  an  impostor,  supposing  him  to  be  the  pel 
«on  whose  name  he  has  assumed,  must,  as  against  the  drawee  i 
bona  fide  holder,  bear  the  loss,  where  the  impostor  obtaii 
payment  of  or  negotiates  tiie  same.  On  the  other  hand,  if  fl) 
check,  draft,  or  bill  is  delivered  to  an  impostor,  who  has  m 
sumed  to  be  the  agent  of  the  person  named  as  payee,  the  loi 
will  not  fall  on  the  drawer,  at  least  if  was  free  from  negligeooi 
and  there  was  a  real  person  bearing  that  name,  whom  he  in 
tended  to  designate  as  payee.''  But  not  one  of  the  cases  ther 
reviewed  presents  exactly  the  same  state  of  facts  as  are  boi 
under  consideration. 

In  order  to  apply  the  general  legal  principles  recognized  13 
•commercial  law  to  the  facts  in  this  case,  we  must  keep  in  viei 
the  relations  of  the  two  parties  concerned.  Scheffer  &  Bossun 
intended  that  the  money  should  be  delivered  to  their  travelii^ 
agent,  and  to  no  one  else,  and  for  that  purpose  they  constitatd 
the  respondent  company  their  agent.  It  must  be  conceded  thai 
under  the  evidence  the  party  who  sent  the  telegram  for  the 
money  was  known  to  Belleveau,  who  identified  him  as  Josepl 
E.  Jerome,  and  that  the  fraud  practised  was  in  personating 
the  representative  of  Scheffer  &  Bossum.  But  it  would  mah 
no  difference  if  the  impostor  had  imposed  on  Belleveau,  the 
name  Jerome  being  in  fact  assumed.  The  check,  iheref<m 
had  a  legal  inception,  because  the  telegraph  company  was  au- 
thorized to  issue  it,  and  the  mistake  was  made  in  issuing  and 
delivering  it  to  the  wrong  person.  The  fraud  was  possible 
for  the  reason  that  the  agents  of  the  telegraph  company  at  Dn* 
luth  accepted  as  satisfactory  the  identification  which  was  of* 
iered.  Whether  the  agents  in  so  doing  exercised  reasonable 
eaution,  and  such  care  as  would  relieve  respondent  from  lia- 
bility to  Scheffer  &  Bossum,  we  need  not  inquire;  but  tiie 
Duluth  agents  exercised  their  judgment,  issued  the  check,  and 
placed  it  in  the  hands  of  the  impostor,  and  thereby  put  it  into 
his  power  to  dispose  of  it  to  an  innocent  purchaser.  Therefore, 
eonceding  that,  as  between  itself  and  Scheffer  &  Bossum,  it  did 
all  that  could  be  required,  what  was  appellant  required  to  do,  b; 


tane,  1902.]    Bubbowb  v.  Westebn  Union  Tel.  Co.        888 

Ehe  general  mles  of  commercial  law^  when  the  check  was  ten- 
doed  to  him  in  payment  of  goods?  If  the  check  was  in  fact 
a  nnlUty,  *^®*  and  never  had  any  legal  existence,  then  appel- 
lant acqxiired  no  title  to  it^  even  though  he  had  taken  the  usual 
method  of  identifying  the  indorser  as  the  party  receiving  it. 
If  the  check  had  been  issued  and  delivered  to  the  right  Jerome, 
and  thereafter  the  impostor  had  forged  his  name  and  pre- 
sented it^  plaintiff  would  acquire  no  title,  even  though  the 
impostor  had  been  identified  as  the  indorsee,  becauee  in  that 
«a8e  the  check  would  not  have  been  made  negotiable  by  virtue 
«f   the   indorsement. 

The  test  to  be  applied  is  wheth^,  by  the  usual  custom  with 
leference  to  identification,  appellant  was  negligent  in  failing  to 
haTe  the  party  presenting  the  check  identified  as  the  party  to 
whom  it  was  given.    It  was  said  in  the  case  of  Estes  v.  Lov- 
ering  Shoe  Co.,  59  Minn.  604,  50  Am.  St  Bep.  424,  61  N. 
W.  674,  that  a  check  is  within  the  purview  of  the  General 
^Statutes  of  1878,  chapter  73,  section  89,  which  provides  that 
possession  of  a  note  or  bill  is  prima  facie  evidence  that  the 
same  was  indorsed  by  the  person  by  whom  it  purports  to  be 
indorsed,  and  checks  were  brought  within  this  provision  of  the 
statute,  for  the  reason  that  they  are  negotiable  instruments, 
much  used  and  growing  in  use  in  business  transactions,  and 
possessing  all  of  the  characteristics  of  inland  bills.    If,  there- 
fore, a  check  is  indorsed  when  presented,  it  is  to  be  received 
as  prima  facie  evidence  that  it  is  the  indorsement  of  the  payee, 
because  such  rule  is  required  by  the  necessities  of  business. 
For  like  reason,  when  the  person  indorsing  a  check  as  payee, 
and  presenting  it,  has  been  identified  as  the  party  who  re- 
ceived it  from  the  maker,  and  whom  the  maker  designated  as 
payee,  he  is  presumed  to  be  the  payee,  and  entitled  to  receive 
the  proceeds. 

Appellant  was  required  to  do  no  more  in  this  instance.  He 
was  required  to  determine  whether  the  party  presenting  the 
check  to  him  was  the  person  to  whom  it  had  been  delivered  as 
the  payee  by  the  telegraph  company.  He  could  have  ascer- 
tained that  fact  by  accompanying  the  indorser  across  the  Street 
to  the  office  of  the  tel^[raidi  company^  and  asking  them  if  this 
was  tiie  party  ^titled  to  the  check.  Or  Belleveau,  who  was 
▼aiting  at  the  door  of  the  store,  might  have  been  called  in, 
snd  repeated  the  identification  made  to  the  telegraph  company. 
In  such  case'  app^ellant  would  have  been  justified  in  taking  the 


384  American  State  Beports,  Vol.  91.         [Minn. 

check.  Instead  of  so  doings  ^^^  he  took  his  chances  as  to  his 
being  the  same  man.  He  was  the  same^  and  hence  inqniiy  was 
unnecessary.  Respondent  sent  the  man  out  with  the  check, 
and  with  tiie  authority  to  dispose  of  it  in  the  usual  comse  c^ 
business  to  anyone  who  in  good  faith  believed  him  to  be  the 
party  to  whom  the  check  had  been  delivered  as  payee;  and,  a» 
against  such  innocent  purchaser^  it  is  estopped  from  denying 
the  validity  of  the  instrument  which  it  set  afloat  in  the  com* 
mercial  world.  • 

However,  it  is  claimed  that  appellant  was  negligent  in  tak-^ 
ing  no  steps  to  make  inquiry  about  the  personality  of  the  party 
presenting  the  check,  for  the  reason  that,  if  he  had,  he  might 
possibly  have  discovered  that  the  party  was  not  the  real  Jerome. 
We  have  already  answered  this  objection.  It  was  not  the  duty 
of  appellant  to  go  beyond  the  necessities  of  identification  a» 
above  outlined,  and  the  mere  fact  that  he  might  have  discov- 
ered more  than  he  was  required  to  cannot  be  charged  against 
him  as  an  act  of  negligence  unless  there  were  facts  which 
should  put  him  upon  inquiry.  The  facts  in  this  case  are  vn* 
disputed.  There  was  nothing  to  arouse  suspicion,  and  appel* 
lant  is  entitled  to  the  relief  sought  as  a  matter  of  law. 

Judgment  reversed,  with  directions  to  affirm  the  judgment  of 
the  municipal  courts 

^^^  COLLINS,  J.,  concurring.  On  the  facts,  no  distinction 
can  be  made  between  the  case  at  bar  and  Schuneman  v.  Tolman, 
86  Minn.  130,  88  N.  W.  1103,  in  which  a  per  curiam  opinion 
was  written,  characterizing  the  appeal  as  frivolous,  and  the 
questions  at  issue  unworthy  of  discussion.  If  the  majority 
opinion  here — ^in  which  I  concur — ^is  not  right,  our  disposition 
of  the  Schuneman  case  was  clearly  and  palpably  wrong.  Each 
has  been  properly  disposed  of,  and  no  case  establishing  a  con- 
trary doctrine  can  be  cited.  In  these  days  it  is  the  duty  of 
the  drawer  of  a  check  to  know  the  party  to  whom  it  is  delivered 
is  the  one  for  whom  it  was  intended.  It  is  his  business  to 
ascertain  that  he  has  not  been  imposed  upon  by  a  false  persons- 
tion  of  the  party  to  whom  it  was  intended  the  check  should  be 
made  payable. 

Mr.  Obief  Justice  Start  Dissented,  and  expressed  the  opinion  tbat 
in  a  case  where  a  check  is  made  payable  to  the  order  of  one  per- 
son and  by  mistake  of  the  drawer  is  delivered  to  another,  who  in- 
dorses it  to  an  innocent  purchaser  for   valaey   the  latter   obtaiiii 


rune,  1902.]    Bubrows  v.  Western  Unios  Tel.  Co*        885 

obIj  an  apparent  title  to  the  cheek,  and  eannot  reeoTer  the  anumnt 
thereof  from  the  drawer,  iiiilen  the  latter  is  estopped  from  show 
iBg  that  the  cheek  waa  not  indorsed  by  the  real  payee.  Under  the- 
fseta  of  the  present  ease  the  drawer  is  not  estopped  because  of  the- 
aegiigeaiee  of  the  purchaser  in  failing  to  inyestigate  and,  if  possible, 
aseertsdn  ^whether  the  person  indorsing  the  check  was  the  real  payee 
aamed  therein. 


BlUe  and  Nofea.^Jt  a  bill  is  payable  to  the  order  of  a  person,  and 
another  of  the  same  name  obtains  possession  of  it  and  indorses  it 
to  a  third  person  in  good  faith  and  for  yalne,  the  latter  acquires  no 
title:  Beattie  ▼•  National  Bank,  174  BL  571,  66  Am.  St.  Bep.  818,  51 
N.  S.  608. 

8t.  R^,  YoL  »-25 


OASES 


SUPEEME   COURT 


MONTANA. 


STATE  V.  TOOLB. 

[26  Mont.  22,  66  Pao.  496.] 

MAHDAMUB  may  Issne  ▲gainst  a  Pablie  Ofllear  of  tte  Slali 
if  the  dutj  to  be  performed  is  purely  ministerial,  though  it  is  eoa- 
eeded  that  the  state  is  not  directly  subject  to  salt.     (p.  388.) 

BiANDAMUB  may  Issae  to  Ck>iiipel  a  State  Fumfrtiing  BoaiA 
to  execute  a  contract  which  it  has  awarded  to  the  lowest  reoponsl* 
ble  bidder,     (p.  389.) 

STATE  OFFICEBS»  Ck>ntract8  with— Oonditioiis  Wlildi  may 
not  be  Inserted  in.— Where  a  state  board  has  accepted  a  bid  asi 
awarded  a  contract,  it  has  no  power  to  insert  in  the  formal  written 
•contract  any  condition  not  consonant  with  the  contract  already  made 
by  virtue  of  the  acceptance  of  the  bid,  though  such  contract  ia  sub- 
ject to  the  approval  of  the  governor  and  the  state  treasurer,     (p.  339.) 

STATE  OFFICERS— Contracts— Power  of  to  CanceL — A  state 
furnishing  board  has  no  power  to  cancel  a  contract  created  by  tke 
acceptance  of  a  bid,  unless  for  some  cause  which  the  law  recognise! 
as  sufficient  to  invalidate  the  contract,     (p.  390.) 

PT7BLIC  CONTRACT— Bight  to  Befnse  to  Complete  Beeanss 
Xabor  Unions  were  Hostile  to  the  Accepted  Bidder.— A  state  furnish- 
ing board  has  no  power  or  discretion  to  refuse  to  enter  into  a  wri^ 
ten  contract  in  pursuance  of  an  award  theretofore  made  by  it  oa 
the  ground  that  the  other  contracting  party  is  in  hostility  to  lahor 
unions,  and  may  therefore  be  embarrassed  and  dela}[^ed  in  comply- 
ing with  his  contracts  because  of  strikes  and  labor  troubles.  (p> 
392.) 

FUBUC  CONTBACTS.— Letting  by  Contract  to  the  LowMt 
Bidder  Kecessarlly  Implies  Equal  opportunities  to,  and  freedom  ist 
4iU  whose  interests  or  inclinations  may  impel  them  to  compete  at  t&« 
Ibidding.     (p.  393.) 

PUBLIC  CONTBACTS— Limiting  of  to  Persons  Bnq^loyiiig 
"Union  Labor  Only. — A  contract  entered  into  by  the  acceptance  <rf 
s  bid  for  public  work  tendered  in  pursuance  of  an  advertieemest 
limiting  the  right  to  bid  to  persons  employing,  or  who  will  in  the 
.future  employ,  union  labor  only,  is  void.     (p.  393.) 

(8M) 


Oct  1901.]  Statk  1^.  Toole.  887 

FUBLIO  CONTBAOTS— BeaMiu  for  OuioeUiig  Need  not  be 
Omeetly  Stated  at  the  Time.— Although  the  reason  given  at  the 
time  of  the  attempted  eaneeling  of  a  publie  contract  is  not  valid, 
yet  the  eaneeling  may  be  sustained  if  there  was  another  cause  suffi- 
cient to  render  the  contract  void.     (p.  394.) 

FUBIiIG  C0NTBACT8— Defects  in  Advertising  for«— If  a  stat- 
ute declares  that  before  any  contract  is  let,  the  board  must  adver- 
tise in  two  daily  newspapers  printed  in  the  state,  one  of  which  must 
be  printed  at  the  seat  of  govemment,  the  letting  of  a  contract  based 
en  an  advertisement  only  in  a  newspaper  printed  at  the  seat  of 
government  is  unauthorized  and  void.     (p.  395.) 

CONSnTUnOKAIi  LAW— Advertistng  for  Proposals- Power 
of  the  Iiegislatnre  to  BeQolre. — A  constitutional  provision  requiring 
contracts  for  materials  to  be  given  to  the  lowest  responsible  bidder 
under  such  reflations  as  may  be  prescribed  by  law  does  not  pro- 
tibit  the  legislature  from  providing  that,  before  any  contract  is  let, 
aa  advertisment  inviting  proposals  therefor  must  be  published  for 
twenty  days  in  two  newspapers,     (p.  395.) 

Handamtis  on  the  relation  of  the  Mitchell  Furniture  Com- 
peny  against  the  state  furnishing  board  to  compel  it  to  enter 
into  a  formal  contract  for  the  furnishing  of  supplies  by  the 
lelator.  After  the  bids  had  been  accepted,  a  protest  was  filed 
<m  behalf  of  many  labor  organizations,  and  it  appeared  that 
the  refusal  to  enter  into  the  contract  was  solely  because  of  such 
protest,  and  because  it  was  feared  that  the  hostility  of  the  or- 
ganizations might  expose  the  successful  bidder  to  strikes  and 
ether  labor  troubles.  The  bond  required  by  the  relator,  as  a 
condition  precedent  to  the  making  of  the  contract,  had  never 
been  presented  to  the  state  furnishing  board,  but  the  evidence 
tended  to  show  that  this  did  not  constitute  one  of  the  reasons 
for  refusing  to  proceed  with  the  contract.  There  was  a  defect 
in  the  publishing  of  the  advertisements  for  proposals^  which  is 
folly  disclosed  in  the  opinion  of  the  court. 

Toole  &  Bach,  for  the  relator. 

James  Donovan,  attorney  general,  for  the  defendants. 

^  PIQOTT,  J.  Many  questions  have  been  argued  which 
▼e  need  not  decide;  for  instance,  we  find  it  unnecessary  to 
determine  whether  the  furnishing  of  a  bond  in  conformity  with 
flie  provisions  of  section  708  of  the  Political  Code  is  always  a 
prerequisite  to  a  valid  contract  with  the  board,  or  to  determine 
the  kindred  question  whether  the  board  might  waive  or  excuse 
the  failure  of  the  plaintiff  to  present  a  bond  with  its  bid,  and, 
if  it  could,  whether  it  did  so;  and  also  the  question  whether 
the  plaintiff  followed  the  requirement  of  the  latter  sentence  of 
«ection  706  of  the  Political  Code  providing  that  "a  sample 
tnA  minute  description  of  every  article  must  accompany  and  be 


388  American  State  Eeports,  Vol.  91.     [Sfontanav 

deposited  with  each  proposal."  For  the  purposes  of  the  pro- 
ceeding we  assume,  but  do  not  decide,  that  these  questions  sxtd 
all  others  not  specially  discussed  should  be  solved  in  plaintiffs- 
favor.  So  viewing  the  case,  we  deem  it  necessary  or  adyiEftUe 
to  consider  but  four  questions. 

1.  The  defendants  Donovan  and  Hays  attack  the  petition 
and  alternative  writ  of  mandate  upon  the  ground  that  the  pfnK 
ceeding  is,  in  effect,  an  action  against  the  state,  and  say  that  a 
state  of  the  Union  is  not  without  its  express  consent  subject  to- 
suit  in  its  own  courts  or  in  those  of  another  state.    They  bblj 
that  the  doctrine  is  absolute,  and  cannot  be  overthrown  indi- 
reetly  by  the  institution  of  actions  against  state  officers  when 
in  effect  they  are  actions  against  the  state.    With  this  we  agree: 
Langford  v.  King,  1  Mont.  33 ;  Pisk  v.  Cuthbert,  2  Mont.  693 ; 
State  V.  Kenney,  9  Mont.  389,  24  Pac.  96;  23  Am.  &  Eng. 
Ency.  of  Law,  1st  ed.,  83.    But  the  present  proceeding  is  not, 
in  effect,  an  action  or  proceeding  against  the  state.     If  the 
allegations  of  the  petition  are  true,  the  proposal  of  the  plain- 
tiff was  regularly  accepted  and  the  contract  let  to  it  as  the 
lowest  responsible  bidder  after  a  compliance  with  all  the  statu- 
tory   requirements.    The  state,  by  ite  authorized  agent,  ** 
awarded  a  contract,  and  the  object  of  the  present  proceed- 
ing iB  to  compel  the  defendants,  as  public  officers  of  the  state, 
to  sign  the  formal  contract,  and  thereby  perform  what  is  al- 
leged to  be  their  ministerial  duty.    If  the  duty  to  be  per- 
formed  by  a  public  officer  of  the  state  is  purely  ministerial,  the 
writ  of  mandate  may  be  issued,  the  case  being  otherwise  a 
proper  one  for  the  employment  of  such  writ:  State  v.  Smith, 
23  Mont.  44,  67  Pac.  449,  and  cases  there  cited;  Marburj  v. 
Madison,  1  Cranch,  137;  In  re  Ayers,  123  U.  S.  606,  8  Sup. 
Ct.  Bep.  183.    In  the  case  last  cited  the  court  approved  the 
following  extract  from  the  opinion  in  Board  of  Liquidation 
V.  McComb,  92  U.  S.  541:  *'A  state,  without  its  consent,  can- 
not be  sued  by  an  individual;  and  a  court  cannot  substitute 
its  own  discretion  for  that  of  executive  officers  in  matters  be- 
longing to  the  proper  jurisdiction  of  the  latter.    But  it  has 
been  well  settled  that  when  a  plain  official  duty,  requiring  no 
exercise  of  discretion,  is  to  be  performed,  and  performance  is 
refused,  any  person  who  will  sustain  personal  injury  by  such 
refusal  may  have  a  nmndamus  to  compel  its  performance;  and, 
when  such  duty  is  threatened  to  be  violated  by  some  positive 
official  act,  any  person  who  will  sustain  personal  injury  tiierebji 
for  which  adequate  compensation  cannot  be  had  at  law,  may 
have  an  iiqunciion  to  prevent  it^'^  and  upon  that  {nndplfr 


Oct.  1901.]  State  v.  Toole,  889 

this  court  has  often  entertained  proceedings  against  state  offi- 
<ers>  the  latest  being  State  v.  Barret^  25  Mont  112,  63  Pac. 
1031.  If  the  defendants  owe  to  the  plaintiff  the  performance 
of  an  act  which  the  law  specially  enjoins  as  a  duty  resulting 
from  an  ofiSce — ^in  other  words^  if  the  defendants,  as  members 
•of  the  boards  owe  to  the  plaintiff  a  duty,  and  the  performance 
4>f  ibsit  duty  is  a  ministerial  act  not  involving  the  exercise  of 
discretion  or  judgment — ^the  writ  of  mandate  will  lie  to  com- 
pel such  performance^  and  the  state  is  not  thereby  subjected 
to  an  action  or  proceeding.  The  petition  is  not  obnoxious  to 
the   objection  urged. 

2.  Section  707  of  the  Political  Code  provides  with  refer- 
ence *^  to  the  state  furnishing  board :  "The  proposals  received 
nmst  be  directed  to  the  board,  opened  and  compared  by  it  at 
its  office  at  12  o'clock  noon  of  the  day  specified  in  the  ad- 
▼ertisment,  and  the  board  must  award  the  contract  for  fur- 
nishing such  siTpplies,  or  any  of  them,  to  the  lowest  responsible 
bidder  at  such  time/'    Section   709   provides,   among  other 
things,  that  any  and  all  bids  may  be  rejected  and  the  board  may 
advertise  again.    The  board  is  a  governmental  agency,  possess* 
ing  such  powers  and  jurisdiction,  and  such  only,  as  the  law 
confers  upon  it.    In  the  examination,  comparison,  and  consider- 
ation of  the  proposals  and  in  awarding  the  contract  the  board 
exercises  its  discretion.    The  duty  imposed  is  to  award  the  con- 
tract to  the  lowest  responsible  bidder,  unless  the  bids  be  re- 
jected.   This  the  statute  commands  it  to  do;  and  whenever, 
after  a  compliance  with,  the  statutory  prerequisites  essential 
to  the  valid  acceptance  of  a  bid,  it  has  regularly  awarded  the 
contract,  there  spring  into  existence  vested  rights  which  the 
board  cannot  destroy  or  impair.    It  cannot  insert  into  the  for- 
mal written  contract  any  condition  not  consonant  with  the  eon- 
tract  already  made  by  virtue  of  the  acceptance  of  the  bid: 
American  lighting  Go.  v.  McGuen,  92  Md.  703,  48  Atl.  352. 
In  the  absence  of  f  rand,  accident  and  mistake,  or  other  legal 
reason  sufBcient  to  render  the  acceptance  void  or  voidable,  the 
contract  resulting  therefrom  cannot   (unless  by  mutual  con- 
lent)  be  changed  or  annulled,  nor  may  its  obligation  be  im- 
paired, by  any  act  of  the  board.    True,  such  a  contract  is  sub- 
ject to  the  approval  of  the  governor  and  state  treasurer  (Const., 
art  5,  sec.  30 ;  Pol.  Code,  sec.  710 ;  State  v.  Hogan,  22  Mont. 
384,  66  Pac.  818;  State  v.  Smith,  23  Mont.  44,  67  Pac  449), 
but  this  is  a  matter  which  does  not  concern  the  members  of  the 
board  nor  give  it  the  right  to  recall  the  acceptance  and  award. 


890  Akebioan  State  Reports,  Vol.  91.     [IContana^ 

When  it  has  thus  regularly  discharged  the  duty  imposed  npoD 
it  hy  the  law,  its  jurisdiction  in  respect  of  awarding  the  con* 
tract  is  exhausted;  its  discretion  was  exercised  and  the  power 
further  to  exercise  it  is  gone.  We  are  *^  aware  that  there  i» 
some  conflict  of  opinion  upon  this  subject,  but  we  think  that 
such  must,  in  the  nature  of  things,  be  the  rule  applicable  tc^ 
boards  and  officers  clothed  with  specially  delegated  authority 
and  intrusted  with  limited  jurisdiction.  Support  for  fheao 
general  observations  may  be  found  in  People  r.  Board  of  Coa- 
tract  etc.,  2  How.  Pr.,  N.  S.  423 ;  People  v.  Campbell,  72  X. 
Y.  496;  State  v.  York  County,  13  Neb.  57,  12  N.  W.  817; 
Wren  ▼.  Fargo,  2  Or.  20;  People  v.  Gleason,  121  N.  T.  63U 
26  N.  E.  4;  Boren  ▼.  Darke  Co.  Commrs.,  21  Ohio  St  311; 
State  y.  Barbour,  53  Conn.  76,  55  Am.  Bep.  65,  22  Atl.  ^6. 

The  action  of  the  board  in  attempting  to  cancel  the  contract 
was  void,  unless  a  cause  existed  which  the  law  recognizes  a* 
sufficient  to  invalidate  the  contract.  We  proceed  to  ascertain 
whether  such  cause  appears. 

3.  In  behalf  of  the  attorney  general  and  the  Secretary  of 
State  the  argument  is  advanced  that  the  reason  stated  in  the 
resolution  was  sufficient  to  justify  tiie  board  in  reconsidering 
the  motion  by  which  the  bid  of  the  plaintiff  was  adopted  and 
in  canceling  the  contract  thereby  created.  It  is  asserted  and 
seriously  argued  that,  conceding  the  regularity  of  all  the  pro* 
ceedings  precedent  to  the  letting  of  the  contract  and  the  validity 
of  the  letting,  the  board  possessed  the  right  to  cancel  the  con* 
tract  upon  the  ground  that  the  plaintiff  ^was  denominated  by 
the  labor  unions  of  the  United  States  as  hostile  to  labor  organi* 
zations  and  was  classed  as  a  scab  company.'^  The  advertise* 
ment  was  silent  upon  the  subject  of  union  labor  and  nonunion 
companies  or  persons;  it  did  not  pretend  to  limit  the  bidding 
to  those  who  were  friendly  or  indifferent  to  labor  organuBation^ 
— if  it  had  done  so  it  would,  as  we  shall  see,  have  been  invalid; 
on  the  contrary,  the  notice  was  addressed  to  all  persons — the 
invitation  to  present  proposals  was  general.  The  proposal  of 
the  plaintiff  was  filed ;  the  board  declared  it  to  be  the  lowest  re* 
sponsible  bidder  and  awarded  the  contract  to  it.  The  plaintiff 
^^  was  not  guilty  of  fraud  or  deceit;  the  board  was  not  misled; 
it  was  not  induced  to  let  the  contract  by  any  misrepresentation 
whatever;  the  bid  of  the  plaintiff  was  not  accepted  through  any 
accident  or  mistake.  By  what  sort  of  logic  do  the  attorney 
general  and  Secretary  of  State  attempt  to  defend  their  position? 
Let  their  answer  speak  upon  this  point.    After  reciting  that  the 


Od.  1901.]  Btatx  i^.  Tools.  891 

plaintiff  was  hostile  to  labor  organizations  and  was  classed  as- 
a  nonimioii  company,  it  ayers  that  this  ''fact,  in  the  judgment, 
of  defendants  as  said  state  furnishing  board,  rendered  said* 
company  liable  to  be  enjoined  from  carrying  out  said  contract,. 
and  on  the  further  grounds  that  said  company  was  more  liable* 
to  be  unavoidably  delayed  by  strikes  and  labor  troubles  than  if 
said  contract  were  let  and  awarded  to  a  company  or  person  not 
hostile  to  labor  organizations;  that,  knowing  the  attitude  of 
labor  organizations  toward  the  relator  herein,  it  was  probable^ 
and  likely  that  the  furnishing  and  deUvery  of  the  furniture 
and  supplies  under  said  oontract  by  said  relator  would  result 
in  great  damage  and  iujury  to  the  state,  which  could  not  be- 
adequately  provided  against  under  the  contract    The  fact  that 
said  company  was  hostile  to  labor  organizations,  and  having^ 
been  so  claesed  by  them  as  a  nonunion  company,  was  a  reason, 
in  the  judgment  of  the  defendants  as  such  state  fumishing^ 
board,  which  would  affeet  their  responsibility  as  bidders,  and' 
render  than  less  responsible  and  trustworthy  than  if  they  were 
not  hostile  to  labor  organizations  or  classed  as  a  nonunion  com- 
pany.    That  said  fact  that  said  relator  was  hostile  to  labor 
oiganizationB  and  classed  as  a  nonunion  company  was  not 
known  to  the  defendants  at  the  time  they  let  and  awarded  said 
contract  to  the  relator  herein/'    Is  it  not  wasting  words  to  de- 
clare the  eyident  and  palpable  fact  that  this  is  not  a  reason 
vhieh  the  law  recognizes  as  a  sufficient  cause  for  avoiding  the 
eontnct?    We  are  not  to  be  understood  as  denying  the  legal' 
Ti^  of  the  board  in  good  faith,  but  erroneously  to  award  a 
ccmtract  to  one  who  is  not  in  fact  the  lowest  responsible  bidder, 
ior  we  apprdiend  the  rule  in  this  state  to  be  that  the  action  of 
the  board  will  be  controlled  or  interfered  with  only  where  it: 
AsxAj  appears  "^  that  the  refusal  to  award  the  contract  to* 
file  lowest  responsible  bidder  was  fraudulent  or  in  bad  faith,  or 
vas  Ihe  result  of  an  abuse  of  discretion  (which  is  equivalent 
to  a  failure  to  exercise  discretion) ;  that  the  refusal  was  merely 
tnoneous  is  not  sufficient  to  justify  the  issuance  of  the  writ 
of  mandate.     Such  seems  to  be  the  principle  underlying  the 
dedaion  in  State  v.  Bichards,  16  Mont  145,  60  Am.  St.  Eep- 
476,  40  Pac.  210.    It  may  be  that  the  refusal  to  award  a  con- 
^^^  to  the  lowest  bidder  who  is  in  all  respects  responsible* 
for  the  sole  reason  that  he  is  inimical  to  organized  labor  and 
^  clasaed  as  a  nonunion  employer,  would  be  arbitrary,  oppres- 
nve  and  unjust  conduct,  indicating  that  the  board  failed  to 
fttttiae  discretion.    But  however  this  may  be,  the  rule  stated 


392  Amsbioan  State  Bepobts^  Vol.  91.     [Montana^ 

is  inapplicable  to  the  case  at  bar.    The  action  of  the  defend- 
ants must  be  tested  by  a  more  rigid  rule,  for  the  board  did  noife 
Tefnse  to  let  the  contract;  it  awarded  the  contract  to  the  plain- 
tiff^ and  seventeen  days  thereafter  ordered  its  cancellation  far 
the  alleged  reason  stated  in  the  resolution  of  Angost  23d. 
If  a  contract  was  made  by  the  acceptance  of  the  bid,  the  board 
was  powerless  to  rescind  its  action  and  thereby  cancel  the  caa* 
tract,  except  for  a  canse  which,  in  the  eye  of  the  law,  rendered 
it  void  or  voidable.    In  this  respect  it  was  like  a  contract  be- 
tween individual  persons,  in  which  each  enters  into  coYenantB 
with  the  other — ^it  could  not  be  annulled  at  the  pleasure  or 
-caprice  of  one  party  alone.    Can  it  be  sanely  suggested  by  even 
the  most  prejudiced  man  that  a  private  person  possesses  the 
legal  right  to  hold  for  naught  a  contract  to  which  he  is  a  party 
because  the  other  party  is  a  person  who  is  inimical  to  organized 
labor  and  is  classed  as  a  nonunion  employer,  the  contract  bein^; 
silent  on  that  subject?    Of  course  the  law  would  not  recognise 
such  reason  as  cause  for  the  annulment  of  the  contract;  and 
equally,  as  a  matter  of  course,  is  the  rule  the  same  in  the  case 
of  contracts  between  boards  and  the  individual  person  or  cor- 
poration.   In  so  far  as  its  legal  value  and  force  is  concerned, 
the  reason  assigned  might  as  well  have  been  that  the  plaintiff 
employed  members  of  labor  tmions,  was  therefore  inimiflfti  to 
*^  nonunion  workingmen,  and  was  classed  as  a  union  company; 
or  that  the  directors  of  the  plaintiff  believed  in  the  dogma  of 
the  infallibility  of  the  Pope,  and  were  therefore  unfriendly  to 
Protestants,  or  in  the  doctrine  of  transubstantiation  and  in 
auricular  confession,  or  were  high  churchmen,  and  therefore 
classed  as  ritualists ;  or  that  they  were  in  sympathy  with  Eng^ 
land's  policy  toward  Ireland,  and  therefore  distasteful  to  the 
Fenians;  or  were  members  of  a  law  and  order  league,  and  hence 
inimical  to  anarchists  and  their  sympathizers.    In  pasdng  we 
observe,  by  way  of  illustration,  that  a  contract  between  private 
persons  may  provide  that  it  shall  cease  to  be  obligatory  or  be 
void  if  either  party  to  it  shall  employ  nonunion  men,  and  the 
law  will  permit  the  provision  to  have  its  full  force ;  and  so  with 
an  inhibition  against  the  hiring  of  union  men  and.with  all  other 
stipulations  which  are  not  impossible  of  performance,  not  im- 
moral, nor  contrary  to  public  policy.    A  private  person  seeking 
proposals  may  give  notice  that  the  bidders  must  be  members 
of  labor  organizations  or  employers  of  none  but  union  woric- 
men ;  Ihe  acceptance  of  a  bid  made  in  accordance  with  Ihe  terms 
of  the  notice  would  constitute  a  contract  the  conditions  whereof 


Oct  1901.]  Statk  v.  Tooub.  893 

niU  be  binding.  But  the  advertisement  for  proposals  and  the 
<x)ntract  created  by  the  acceptance  of  a  proposal  made  pursuant 
thereto  to  do  work  or  furnish  supplies  for  the  state  stand  upon 
a  different  footing.  The  object  of  advertising  for  proposals  is 
to  invite  and  secure  the  benefit  of  competitive  bidding.  Section 
705  of  the  Political  Code  prescribes  that  before  any  contract 
is  let  the  board  must  advertise  in  two  daily  newspapers  printed 
in  the  state,  one  of  which  must  be  printed  at  the  capital^  for 
sealed  proposals  to  furnish  the  supplies  desired.  This  court, 
in  State  v.  Goad,  23  Mont  131,  57  Fac.  1092,  quoted  with  ap- 
proval the  following  language  from  the  opinion  of  Dement  v. 
Eokker,  126  111.  174,  19  N.  E.  33 :  '^Letting  by  contract  to  the 
lowest  responsible  bidder'  necessarily  implies  equal  oppor- 
tunity to  and  freedom  in  all  whose  interests  or  inclinations 
might  thus  impel  them  to  compete  at  the  bidding.  No  one 
may  be  compelled  to  bid  at  such  a  letting,  ^  but  there  must 

be  entire  fairness  and    freedom    in    competition The 

manifest  purpose  in  requiring  the  contract  to  be  let  to  'the 
lowest  responsible  bidder'  is  to  protect  the  state  against  im- 
position and  extortion.''  A  contract  entered  into  by  the  ac- 
ceptance of  a  bid  for  public  work  tendered  pursuant  to  an 
advertisement  limiting  the  right  to  bid  to  persons  employing, 
or  who  will  in  the  future  employ,  union  labor  only,  is  neces- 
sarily void;  the  advertisement  is  illegal,  for  it  tends  to  defeat 
the  very  purpose  it  was  intended  by  the  legislature  to  subserve. 
In  Adams  v.  Brenan,  177  111.  194,  69  Am.  St.  Rep.  222,  52 
y.  E.  314,  the  board  of  education  advertised  for  bids  for  the 
construction  of  a  roof  for  an  addition  to  one  of  the  free  school 
buildings,  the  advertisement  containing  the  following  notice: 
^None  but  union  labor  shall  be  employed  on  any  part  of  the 
work  where  such  work  is  classified  under  any  existing  union." 
The  bid  of  one  Knisely  was  accepted,  and  a  contract  made 
containing  a  provision  that  none  but  union  labor  should  be 
employed  by  him.  A  taxpayer  filed  a  bill  asking  that  the  con- 
tract be  declared  void,  and  that  the  board  be  enjoined  from 
carrying  it  out  or  expending  money  under  it.  One  of  the 
reasons  given  in  the  application  to  the  board  for  the  adoption 
of  the  clause  respecting  the  employment  of  union  labor  was 
that  it  would  do  away  with  strikes  upon  school  buildings  and 
ther^y  save  the  board  much  annoyance  and  delay.  The  syllabi 
accurately  state  the  conclusions  of  the  court  as  follows:  ^'3. 
Board  of  education  cannot  bind  itself  to  give  only  union  men 
employment.    A  board  of  education  has  no  pow^  to  agree 


894  Amebican  Statb  Beports,  Vol.  91.     [  Montana 

with  the  representatives  of  labor  organizfltions  to  insert  in  al 
its  contracts  for  work  upon  school  buildings  a  provision  thai 
none  but  union  men  should  be  employed  in  such  work,  or  p1«r^ 
upon  its  pajnroUs.  4.  A  board  of  education  has  no  di8crc!tio« 
to  make  contracts  restricting  competition.  That  a  board  ol 
education  might  have  been  of  the  opinion  its  action  was  foi 
the  public  benefit  affords  no  justification  for  limiting  compe- 
tition among  bidders  upon  school  building  contracts,  by  requir- 
ing them  to  employ  only  union  men  in  the  work.  5.  Stipula- 
tion •*  in  public  contract  for  employment  of  union  meir  only  is 
illegal.  A  provision  in  a  contract  for  a  pubUc  school  buiMin^ 
which  requires  the  employment  of  union  men  only,  creates  a 
monopoly  in  their  favor,  and  restricts  competition  by  prevent* 
ing  contractors  from  employing  any  but  union  men,  exdnding' 
all  others  engaged  in  the  same  kin-d  of  work."  The  like  prin- 
ciple is  the  basis  of  the  decision  in  State  v.  Portland  Nataral 
Gas  etc.  Co.,  163  Ind.  483,  74  Am.  St.  Rep.  314,  63  N.  E.  1089. 

Although  the  reason  given  at  the  time  of  the  attempted  can- 
cellation is  not  recognized  by  Ihe  law  as  valid,  yet  if  there  is 
cause  sufficient  to  render  the  contract  void  it  may  be  shown. 
The  defendants  are  not  estopped  to  urge  other  defenses.  An 
absolutely  void  contract  cannot  be  made  valid  by  the  failure  of 
public  officers  to  object  to  it  upon  the  proper  ground.  There 
is  no  need  of  precedents  to  sustain  this  statement.  State  v. 
Board  of  Canvassers  of  Ghoteau  Co.,  13  Mont  23,  31  Pac.  879, 
is  not  exactly  in  point.  The  case  of  Newell  v.  Meyendorff,  ^ 
Mont.  254,  18  Am.  St.  Sep.  738,  23  Paa  833,  is  not  pertinent 

4.  Was  the  advertisement  inviting  proposals  published  ac- 
cording to  law?  It  was  inserted  in  the  ''Helena  Independent,*^ 
a  daily  newspaper  published  at  the  seat  of  government,  where 
it  ran  for  twenty  days  prior  to  the  time  when  the  bids  were 
opened  and  compared;  but  it  was  not  printed  in  any  other 
newspaper  within  the  state.  Section  705  of  the  Political  Code 
reads  as  follows:  ''Before  any  contract  is  let,  the  board  must 
advertise  for  twenty  days  in  two  daily  newspapers  printed  in 
the  state,  one  of  which  must  be  published  at  the  seat  of  gov- 
ernment, for  sealed  proposals  to  furnish  any  and  all  the  sup- 
plies mentioned  in  the  next  preceding  section."  The  adver- 
tisement appeared  in  but  one  paper  printed  in  the  state,  and 
hence  the  section  was  not  complied  with.  Where  advertising 
for  bids  is  a  statutory  requirement,  the  law  is  that  neither  the 
municipality  nor  its  agents  can  make  a  contract  binding  upon 
it  without  compliance  with  the  formalities  so  prescribed.    "Bids 


OcL  1901.]  Statb  v.  Toole.  39& 

need  not  ••  be  called  for  unless  the  statute  requires  it;  but 
if  notioe,  adyertising  and  similar  preliminaries  are  required,  a 
contract  entered  into  without  attention  to  these  preliminaries 
will  be  held  invalid.  ....  The  same  rule  applies  to  the  let- 
ting of  contracts  on  behalf  of  the  state,  and,  before  a  contract 
can  become  valid  and  binding  upon  the  state,  the  statutory 
formalities  must  be  complied  with'':  State  v.  Coad,  23  Mont. 
131,  67  Pac  1092,  and  cases  there  cited.  The  only  argument 
advanoed  by  the  plaintiff  against  this  objection  to  the  contract 
is  that  section  705  conflicts  with  section  30  of  article  5  of  the- 
state  constitution,  which  ordains  that  ''all  stationery,  printing,. 
paper,  fuel  and  lights  used  in  the  legislative  and  otiixer  depart- 
ments of  govemmoit  shall  be  furnished,  and  the  printing  and 
binding  and  distribution  of  the  laws,  journals  and  department 
reports  and  other  printing  and  binding,  and  the  repairing  and 
fnmiahing  the  halls  and  rooms  used  for  the  meeting  of  the- 
t^gislative  assembly  and  its  committees  shall  be  perfornied 
under  contract,  to  be  given  to  the  lowest  responsible  bidder 
bebw  such  wiayimuni  price  and  under  such  regulations  as  may^ 
be  prescribed  by  law/'  Counsel  for  the  plaintiff  argue  that 
the  legislative  assembly  had  no  power  to  require  the  publication 
«f  the  advertisement  to  be  made  in  any  newspaper  other  than 
the  ''Helena  Independent,"  the  proprietor  of  which  had  the 
oontract  for  the  public  printing,  and  that  the  publication  of 
the  advertisement  in  that  newspaper  constituted  a  compliance 
with  the  law.  The  position  of  counsel  is  imtenable.  It  is  ap- 
parent to  us  that  advertisements  for  proposals  are  not  publia 
printing,  within  the  language  or  spirit  of  section  30 — a  con- 
tnd  for  advertising  for  proposals  to  furnish  supplies  is  not 
required  to  let  as  a  printing  contract  to  the  lowest  responsible^ 
bi^er;  in  oth^  weirds,  within  the  purview  and  intent  of  sec- 
tion 30,  an  advertisem^Eit  inviting  bids  is  not  printing,  the  con- 
tract for  which  must  be  let  to  the  lowest  responsible  bidder ;  a 
contract  for  doing  the  printing  mentioned  in  section  30  does 
not  include  advertisements  for  bids.  In  the  absence  of  a  con- 
stitutional inhibition,  the  legislative  assembly  has  the  right  to> 
^  prescribe  the  manner  of  giving  notice  for  proposals  to  fur- 
nish supplies.  It  has  done  so  by  section  705,  which  requires 
that  the  state  furnishing  board  must  advertise  for  such  pro- 
posals in  two  daily  newspapers  printed  in  the  state,  one  of 
which  must  be  printed  at  the  capitaL  This  section  is  in  no 
wise  repugnant  to  the  constitution. 


396  Amerioak  Statb  Reports,  Vol.  91.     [Montana, 

For  the  reason  that  the  advertisement  for  proposals  was  not 
published  in  accordance  with  the  requirements  of  section  705 
of  the  Political  Code,  the  alternative  writ  is  quashed  and  the 
proceeding  is  dismissed,  at  the  costs  of  the  plaintiff.  Let 
judgment  be  entered  accordingly. 

Writ  quashed  and  proceeding  dismissed. 


The  Writ  of  MandamuB  may  issue  to  an  officer  required  bjr  law  to 
perform  some  ministerial  duty,  bnt  not  in  a  matter  requiring  judg- 
ment or  discretion  to  direct  him  in  the  exercise  of  either:  State  r. 
Bolte^  151  Mo.  362,  74  Am.  St.  Bep.  637,  52  a  W.  262;  OliTcr  r. 
Wilson,  8  N.  Dak.  590,  73  Am.  St.  Bep.  784,  80  N.  W.  757.  Manda- 
mus does  not  lie^  against  state  officers  to  compel  them  to  execute 
an  executory  contract  between  an  individual  and  the  state:  MHIer 
Y.  State  Board  of  Agriculture,  46  W.  Ya.  102,  76  Am.  St.  Bep.  811, 
32  S.  E.  1007.  See,  also,  State  ▼.  Bickards,  16  Mont.  145,  40  Pac 
SIO,  50  Am.  St.  Bep.  476,  and  note. 

Public  C(mtraeU,—An  agreement  between  the  representatlTea  of  a 
labor  union  and  a  board  of  education  that  the  latter  shall  insert  in 
all  contracts  for  work  upon  school  buildings,  a  provision  that  none 
but  union  labor  shall  be  employed  in  such  work,  and  that  none  but 
union  workmen  shall  be  employed  and  placed  upon  the  payrolls  of 
the  board,  is  void:  Adams  v.  Brenan,  177  lU.  194,  60  Am.  St.  Bep. 
222,  52  N.  E.  314.  The  rights  of  bidders  for  public  contracts  are 
<^onsidered  in  Givins  v.  People,  194  HI.  150,  88  Am.  St.  Bop.  143,  08 
N.  E.  534;  monographic  note  to  State  ▼.  Bickards,  50  Am.  St.  Bra. 
489-497. 


JORDAN-  y.  ANDBUS. 

[26  Mont.  37,  66  Pac  502.] 

OOKSTITUnOKAL  LAW  —  Supremo  Oonrt  —  Legislattw 
Power  to  Annul  Bole  of  Bespecting  the  Mode  of  Printing  Traasexlvli 
on  Appeal.— A  rule  of  the  supreme  court  requiring  transcripts  on 
appeal  to  be  printed  cannot  be  abrogated  by  the  act  of  the  legisla- 
ture permitting  them  to  be  typewritten,  though  the  constitution  de- 
clares that  the  appellate  jurisdiction  of  the  supreme  court  shall 
extend  to  all  casea  at  law  or  in  equity,  subject^  however,  to  such 
limitations  and  restrictions  as  may  be  prescribed  by  law.     (p.  401.) 

APPELIiATE  PBOOEDUBE.— An  Order  Befoslng  an  Injimc- 
tion  Pendente  Lite  Is  Appealable  under  the  statutes  of  Montana. 
<p.  401.) 

Strevell  &  Porter  and  George  W.  Farr,  for  the  appdlants. 
O.  W.  Myers  and  Sidney  Sanner,  for  the  respondents. 


Oct.  1901.]  Jordan  v.  Andrub.  89T 

••  MILBUEN,  J.    This  cause  is  before  the  court  tipon  the 
motion  of  the  respondents  to  dismiss  the  appeal  upon  the* 
grounds:  ''1.  That  the  transcript  on  appeal  herein  by  the  said 
appellants  is  not  printed  nor  made  upon  paper  ten  inches  long 
by  Beven  inches  wide,  nor  are  the  typewritten  pages  thereof 
seven  and  one-half  inches  long  by  three  and  one-half  inches- 
wide,  nor  is  said  transcript  otherwise  or  at  all  made  in  con- 
formity with  subdivision  1  of  rule  6  of  this  court;  2.  That 
said  transcript  on  appeal  is  not  in  conformity  with  subdivision 
1  of  rule  7  of  this  court  in  this:  that  the  cover  thereof  does- 
not  state  the  title  of  this  court  or  of  said  cause^  or  otherwise 
or  at  all  conform  to  said  rule  in  relation  to  covers  in  transcripts- 
on  appeal;  3.  That  said  transcript  is  made  out  in  a  slovenly 
manner;  ....  4.  That  the  order  of  the  district  court  from; 
which  this  appeal  is  taken  or  sought  to  be  taken,  to  wit,  tho 
order  made  and  entered  July  16,  1901,  dissolving  and  vacating 
the  temporary  restraining  order  theretofore  made  in  this  action, 
is  not  an  appealable  order,  within  the  meaning  of  sections  1722 
and  1723  of  the  Code  of  Civil  Procedure,  as  amended  Febru- 
ary 28,  1899,  and  an  appeal  does  not  lie  from  said  order  to 
this  court.'* 

The  transcript  is  typewritten.  Subdivision  1  of  rule  6  re- 
quires transcripts  to  be  printed.  Is  the  rule  abrogated  and  an- 
nulled by  the  act  of  the  legislature  approved  March  9,  1901, 
known  as  "Senate  Bill  No.  101''  (Laws  1901,  p.  161),  and  pro- 
viding that  all  transcripts,  documents  and  papers  filed  in  ^^ 
the  supreme  court  in  connection  with  any  appeal  taken  and 
mentioned  in  the  chapter  in  the  Code  of  Civil  Procedure  upon 
appeals  in  civil  actions  may  be  printed  or  typewritten,  at  the 
election  of  the  appellant?  If  the  act  is  within  the  powers  of 
the  l^slature,  then  the  rule  of  this  court  opposed  to  it  is  null,. 
and  the  motion  to  dismiss  the  appeal  must  be  denied,  so  far  as 
the  first  ground  is  concerned. 

This  particular  question  is  not  treated  of  in  any  opinion  of 
any  court  to  which  we  have  been  referred,  or  by  any  of  the 
learned  writers,  many  of  whose  works  we  have  examined. 

The  constitution  of  this  state  vests  the  powers  of  government 
in  three  different  and  distinct  departments — the  legislative, 
the  executive,  and  the  judicial.  It  is  not  necessary  to  quote 
from  the  multitudinous  authorities  supporting  the  proposition 
.that  it  is  not  lawful  for  any  department  or  ofScer  thereof  to 
interfere  vrith  the  power  of  any  other  department.  It  is  suffi- 
cient to  refer  to  the  constitution  (article  4,  section  1),  and  to- 
SUte  V.  Smith,  23  Mont.  44,  57  Pac.  449. 


:398  American  State  Beports,  Vol.  91.     [Hontaal 

Section  3  of  article  8  of  the  constitution  of  this  state  dl 
clares  that  "the  appellate  jurisdiction  of  the  supreme  co«l 
shall  extend  to  all  cases  at  law  and  in  equity,  subject^  boweritf 
to  such  limitations  and  regulations  as  may  be  prescribed  kj 
law/'  Section  2  of  the  same  article  also  gives  the  legislating 
power  to  subject  the  appellate  jurisdiction  to  "r^ulations^  tad 
^limitations'*;  and  section  15  of  the  article  is  as  follows 
^^Writs  of  error  and  appeals  shall  be  allowed  from  the  decision 
•of  the  said  district  courts  to  the  supreme  court  under  such  reg* 
lations  as  may  be  prescribed  by  law." 

What  is  meant  by  'limitations''  and  ''regulations"?  Th 
words,  in  their  ordinary  sense,  are- easily  understood  to  mesi 
what  they  in  legal  parlance  respectively,  imply,  to  wit,  lestrie 
tions  of  power  and  rules  of  conduct  or  proceeding.  The  mattei 
•of  this  rule  need  not  be  treated  as  in  any  wise  affected  by  tin 
power  of  the  legislature  to  establish  limitations  to  jurisdictioiL 
Its  power  to  make  rules  of  conduct  or  proceeding — ^that  is,  rnki 
of  procedure  and  practice — ^is  all  that  can  be  considered  on  thii 
^•^  motion.  The  question  is,  Has  the  legislature  the  anthori^ 
under  the  constitution,  after  having  enacted  a  Code  of  Civil  Pro- 
cedure, including  a  chapter  establishing  the  procedure  and 
practise  in  the  matter  of  appeals  to  the  supreme  court,  to  dic- 
tate to  the  supreme  court  as  to  the  very  physical  substance  <rf 
the  pleadings  and  other  instruments  which  it  may  be  necessarj 
for  the  justices  to  handle,  read  and  study  in  their  deliberation! 
after  the  cause  is   submitted? 

What  style  of  typewriter  would  the  legislature  permit  tiie 
appellant  to  use?  What  size  of  type?  How  close  shall  the 
lines  be?  How  thick  is  to  be  the  paper?  How  small  or  large 
shall  the  pages  be  ?  What  sort  of  ink  shall  the  operator  use  in 
preparing  the  papers — record  or  copying?  How  skillful  in  the 
use  of  the  machine  shall  the  t3rpewriting  operator  be?  If  lie 
legislature  has  the  power  to  dictate  as  to  carbon  copies  of  tran- 
scripts to  be  used  on  appeal,  why  has  not  the  l^islature  the 
power,  under  the  constitution,  to  force  the  justices  to  read, 
study  and  handle,  during  its  deliberations,  sometimes  extending 
through  a  long  period  of  time,  papers  prepared  upon  tissue 
paper,  with  machines  making  faint  impressions  from  small 
type,  and  with  such  ink  or  carbon  that  they  will  be  annoying, 
inconvenient,  untidy  and  soon  indecipherable?  Could  a  re- 
lation such  as  that  last  above  suggested  be  within  the  powers  of 
the  legislature  to  regulate  the  procedure  and  practise  on  appetl 
to  the  supreme  court?    If  not,  then  we  cannot  see  bow  anf 


Oct  1901.]  Jordan  v.  Andrus.  809 

T^nlatioB  of  any  character  dictating  to  our  department  of  the 
fitate  govemment  what  kind  of  ink  or  other  material  substance 
Aall  be  nsed,  or  how  the  ink  shall  be  put  on,  in  the  manufac- 
turing of  the  pleadings  and  papers  to  be  handled  and  perused 
by  the  justices,  can  be  valid.  Might  not  the  legislature  go  fur- 
iber,  and  permit  the  appellant  to  use  a  pen  instead  of  a  type- 
writer? Power  to  dictate  to  this  department  of  govemment  as 
to  the  use  of  typewritten  transcripts  includes  the  right  to  order 
m  to  struggle  through  a  mass  of  penwritten  transcripts  and  all 
other  reoordfl  and  papers,  including  briefs. 

Wherein  would  such  acts  be  within  the  power  of  the  legis- 
lature, **  aa  a  '^regulation'*  of  the  appellate  jurisdiction  of  this 
court?  Would  it  not  be  simply  and  only  an  obstruction  put  in 
the  way  of  the  court,  and  interfering  with  its  deliberations  upon 
a  cause  or  xoAtter  after  its  submission,  and  of  which  it  has  ao- 
<Iiiired  jurisdiction  imder  the  constitution  and  the  laws  defin- 
ing, limiting  and  establishing  its  powers,  and  under  the  lawful 
procedure  and  practise  through  and  by  no  means  of  which  the 
litigants  had  presented  their  several  contentions  to  the  court? 
We  think  it  would  be  an  illegal  attempt  to  interfere  with  the 
operations  of  the  judiciary  in  the  performance  of  its  duties 
after  it  had  acquired  jurisdiction. 

It  is  doubtless  true  that  the  legislature  has  power  by  ''regu- 
lations^^ to  establish  the  procedure  in  civil  and  criminal  cases — 
that  is,  the  steps  to  be  taken  by  the  parties  in  an  action  or 
oflier  legal  proceeding  before  this  court — so  far  as  such  pro- 
cedure does  not  amoxmt  to  a  denial  of  justice^  and  has  power  to 
dedare  by  law  what  shall  be  the  practise  on  appeal — ^that  is  to 
ny,  to  fix  the  form,  manner  and  order  of  conducting  and  car- 
rying on  causes  through  their  various  stages  according  to  the 
principles  of  law;  but  we  cannot  see  how  the  power  to  make 
regulations — ^that  is,  to  establish  procedure  and  practise — ^in- 
dndes  the  power  to  interfere  with  the  discretion  of  this  court 
in  saying  that  the  instruments  filed  for  the  reading  of  the 
jnBtices  of  the  court  shall  be  printed  and  upon  certain  sized 
paper,  to  the  end  that  causes  may  be  conveniently  heard  and 
disposed  of,  and  not  delayed  by  the  necessity  of  handling  and 
retding  papers  which  are  inconvenient  in  shape  and  condition. 

To  admit  power  in  the  legislature  to  annul  the  rule  referred 
to,  and  to  permit  the  appellant,  at  his  option,  to  compel  the 
justices,  desirous  to  learn  the  facts  and  to  consider  the  points 
cf  counsel,  to  labor  through  a  mass  of  carbon  copies  of  type- 
written matter,  is  as  unwarranted  as  to  admit  that  the  legida- 


400  American  State  Eepoutb,  Vol.  91.     [Montai 

tare  has  power  to  authorize  counsel^  without  the  consent 
courts  to  submit  their  causes  without  argument,  oral  or  printi 

To  require  transcripts  to  be  printed  is  to  regulate  the  maofl 
of  hearing  and  considering,  and  does  not  interfere  witti  ai 
^^  right  of  the  appellant  to  take  and  perfect  his  appeal,  or 
take  or  to  omit  any  step  in  procedure,  or  to  alter  the  practise 
that  is,  the  form,  manner  or  order  of  conducting  his  appa 
The  rule  is  only  a  declaration  on  the  part  of  the  court  that, 
doing  its  share  of  the  labor  in  connection  with  the  appeal, 
must  have  the  papers  of  such  material  substance,  style  ai 
size  that  the  justices  may  not  have  their  labors  increased  beyoi 
what  they  should  be. 

Under  the  federal  constitution  the  supreme  court  of  ti 
United  States  has  appellate  jurisdiction  ^^under  such  regjaik 
tious  as  the  Congress  shall  make.^'  Is  there  a  single  law^ 
in  the  world  who  believes  that  the  latter  named  court  wool 
recognize  as  valid  an  act  of  Congress  such  as  our  Senate  Bi 
No.  101?  If  the  answer  to  this  question  is  ^^No,''  as  it  mia 
be,  then  by  what  process  of  reasoning  can  we  hold  this  act  i 
our  legislature  as  binding  upon  this  court? 

Mr.  Justice  Field,  of  the  supreme  court  of  the  United  Stats 
in  1859,  when  a  justice  of  the  supreme  court  of  Califoniii 
in  Houston  v.  Williams,  13  Cal.  24,  73  Am.  Dec.  565^  sped 
ing  of  an  act  amending  the  practise  act,  and  requiring  th 
t  opinion  of  the  court  to  be  given  in  writing,  said :  "If  the  powe 

of  the  legislature  to  prescribe  the  mode  and  manner  in  whid 
the  judiciary  shall  discharge  their  official  duties  be  once  recog 
1  nized^  there  will  be  no  limit  to  the  dependence  of  the  latter 

If  the  legislature  can  require  the  reasons  of  our  decisions  to  b 
stated  in  writing,  it  can  forbid  their  statement  in  writing,  aoc 
enforce  their  oral  announcement,  or  prescribe  the  paper  upoi 
which  they  shall  be  written,  and  the  ink  which  shall  be  used 
And  yet  no  sane  man  will  justify  any  such  absurd  pretension 
But  where  is  the  limit  to  this  power  if  its  exercise  in  any  pti" 
ticular  be  admitted  ?  The  truth  is,  no  such  power  can  exist  ii 
the  legislative  department,  or  be  sanctioned  by  any  court  whici 
has  the  least  respect  for  its  own  dignity  and  independence,  li 
its  own  sphere  of  duties,  this  court  cannot  be  trammeled  by  anj 
legislative  restrictions."  This  opinion  of  the  learned  justice 
has  never  been  adversely  criticised  by  any  court  or  by  any  law- 
book writer,  so  far  as  we  have  been  advised. 

^^  It  is  true  that  the  California  constitution  did  not  in  1S59 
give  the  legislature  power  to  make  such  regulations  as  are  pro- 


Ml 


Oct.  1901.]  Jordan  v.  Andbus.  401 

nded  for  in  our  constitution,  but,  in  view  of  the  inherent  pow- 
ers of  our  court,  which  we  do  not  believe  the  constitution  takes 
away  and  reposes  in  the  legislature,  we  think  the  language  of 
Justice  Field  appropriate  to  the  matter  before  us;  and  we  can 
reasonably  believe  that  the  supreme  court  of  the  United  States 
would  adopt  the  words  and  thoughts  of  Mr.  Justice  Field  if 
Congress  should  assume  to  act  under  the  powers  conferred  by 
the  constitution,  and  should  enact  a  statute  similar  to  our  Sen- 
ate Bill  No.  101. 

Although  the  cases  were  not  upon  facts  identical  with  those 
in  the  case  at  bar,  yet  the  views  expressed  by  the  court  of  In- 
diana in  In  re  Petition  of  Leach,  134  Ind.  665,  34  N.  E.  641, 
and  by  the  supreme  court  of  Illinois  in  In  re  Application  of 
Day,  181  111.  73,  54  N.  E.  646,  go  far  to  support  what  we  have 
said  above  as  to  the  inherent  powers  of  this  court,  which  are 
beyond  the  power  of  the  legislature  to  control.  In  the  latter 
case  it  was  held  that  a  statute  overriding  the  rules  of  the  court 
respecting  the  admission  of  attorneys,  by  requiring  the  admis- 
rion  of  any  person  who  began  to  study  law  before  a  specified 
time,  provided  he  has  obtained  a  diploma  from  a  law  school 
in  Ihe  state  after  a  specified  period  of  attendance,  or  has  passed 
a  satisfactory  examination  before  an  examining  board  after  a 
prescribed  course  of  study,  is  an  unconstitutional  assumption 
of  power  properly  belonging  to  the  courts. 

Senate  Bill  No.  101  is  unconstitutional  and  of  no  binding 
force  upon  this  court. 

Examination  of  the  transcript  shows  that  there  is  nothing 
in  the  second  ground  of  the  motion. 

As  to  the  third  point,  it  is  sufficient  to  say  that  the  inter- 
lineations and  general  appearance  complained  of  are  very  ap- 
parent, and  are  such  as  will  not  appear  in  a  printed  transcript; 
but,  on  account  of  the  fact  that  the  appeal  is  to  be  dismissed 
apon  the  first  ground  of  the  motion,  it  is  not  necessary  to  say 
more  as  to  this,  the  third  ground. 

^  The  fourth  ground  is  not  tenable.  The  order  appealed 
from  is  not  one  dissolving  a  mere  restraining  order,  but  one 
refusing  an  injunction  pendente  lite,  and  is  appealable.  The 
case  of  Wetzstein  v.  Boston  etc.  Min.  Co.,  25  Mont.  135,  63 
Pac.  1043,  does  not  apply,  except  so  far  as  it  shows  the  differ- 
ence between  a  restraining  order  and  an  injunction  pendente 
Ute. 

As  appellants  in  good  faith  complied  with  the  act  which  at-* 
tempts  to  grant  the  privilege  of  filing  typewritten  transcripts 

Am.  St.  Rep.,  Vol.  n— 26 


402 


Amehioan  State  Reports,  Vol.  91.     [Montmns, 


with  carbon  copies,  they  should  not  be  called  upon  to  suffer  tin 
loss  of  all  opportunity  to  appeal. 

Therefore,  this  appeal  is  dismissed  without  prejudice  to  a  mo- 
tion to  reinstate  if  a  transcript  be  prepared,  served  and  filed 
in  accordance  with  rules  6  and  9  of  this  court  within  sixtj 
days  from  this  date. 

Dismissed. 


Rules  of  Court  in  contravention  of  the  organic  or  statute  law  oi 
the  state  are  to  that  extent  void:  State  v.  Gideon,  119  Mo.  94,  24 
S.  W.  748,  41  Am.  St.  Bep.  634,  and  monographic  note.  Ho'weT^, 
the  three  departments  of  government  are  distinct  from  each  other, 
so  far  as  any  direct  control  or  interference  is  concerned:  Greenwood 
Cemetery  etc.  Co.  v.  Boutt,  17  Colo.  156,  31  Am.  St.  Bep.  284,  28  Pae. 
1125.  And  it  has  been  held  that  the  legislature  cannot  require  the 
f^uprcme  court  to  state  the  reasons  for  its  decisions  in  writini^,  the 
constitutional  duty  of  the  court  being  discharged  by  the  renditioB 
*of  its  decisions:  Houston  ▼.  Williams,  13  CaL  24,  73  Am.  Dee.  56S. 


SPELMAN  V.  GOLD  COIN  MINING  AND  MILLING  CO. 

[26  Mont.  76,  66  Pac.  597.] 

PBINOIPAL  AND  AGENT.— The  Powers  of  an  Agent  eumot 

be   Enlarged  by  his    unauthorized    representations    and    promiseiL 
(p.  405.) 

MEDICAL  8EBVI0E8  TO  ANOTHEB— ImpUed  Promlae  te 
Pay  for — When  does  not  Exist. — An  implied  promise  on  the  part  of 
one  who  requests  performance  of  medical  or  surgical  services  to  an- 
other to  pay  for  them  does  not  arise  unless  the  relation  of  the 
patient  to  the  person  making  the  request  is  such  as  raises  a  l^al 
obligation  on  his  part  to  call  in  a  physician  and  pay  for  his  eerrieeflL 
(p.  405.) 

MININa  COMPANIES— Authority  of  General  BCanager  to 
Employ  Physicians  for  Injured  Employ^— If  employes  of  a  mining 
corporation  are  injured  by  an  accident  for  which  it  is  not  liable, 
its  general  manager  has  no  implied  authority  on  its  behalf  to  employ 
physicians  or  surgeons  to  attend  them,  or  to  bind  it  by  a  promise 
to  pay  for  such  services,     (p.  406.) 

MA8TEB  AND  8EBVANT— Medical  or  Surgical  Aid— Duty 
to  Fundsh. — An  employer  does  not  owe  to  his  servant  or  employ^  a 
duty  to  furnish  medical  or  surgical  aid  to  him  or  to  nurse  him  when 
sick,  disabled,  or  injured  while  working  for  the  master  or  employer, 
(pi  406.) 

MININO  COBPOBATIONS— General  Manager— Powers  of.— 
Unless  the  limits  of  bis  authority  are  shown  to  have  been  enlarged^ 
the  duties  of  the  general  manager  of  a  mining  corporation  are  eon- 
fined  to  the  transaction  of  the  business  of  the  corporation  as  dis- 
tinguished from  its  mere   ethical  duties  ana  consequent  imperfect 


\ 

Oct.  1901.]    SPELif  AN  V.  Gold  Cotn  Min.  etc.  Co.  403 

•bligatioiu  or  supposed  charities.  The  fact  that  a  certain  person  !• 
maoager  of  such  a  corporation  does  not  in  itself  impose  authority 
on  him  to  bind  it  in  matters  other  than  those  of  business  affairs, 
(p.  408.) 

CLeary  &  I^Iaiden,  for  the  appellant. 

J.  B.  Boarman^  for  the  respondent. 

^  PIGOTT,  J.  This  was  an  action  to  recover  judgment  for 
the  reasonable  value  of  services  alleged  to  have  been  rendered 
by  the  plaintiff  and  one  McKenzie,  as  physicians  and  surgeons, 
at  the  special  instance  and  request  of  the  defendant,  a  corpo- 
ration organized  for  the  purpose  of  mining  and  engaged  in 
that  business  in  the  county  of  Deer  Lodge,  Montana.  The  de- 
fendant denied  that  it  ever  employed  the  plaintiff  or  Mc- 
Kenzie, and  traversed  the  allegation  of  the  complaint  touching 
the  reasonable  value  of  the  services.  The  evidence  disclosed 
or  tended  to  show  the  existence  of  the  following  facts:  One 
Shafner  was  the  president  of  the  defendant,  one  Loomis  its 
secretary  and  general  manager,  and  one  Beaton  its  assistant 
manager  and  foreman.  On  January  13,  1898,  Beaton  and 
two  other  employes  of  the  defendant  were  injured  by  the  ex- 
plosion of  a  blast  in  the  Gold  Coin  mine,  owned  by  the  de- 
fendant and  in  which  they  were  then  working.  On  the  same 
day  the  men  were  taken  to  a  hospital  in  Anaconda,  where  they 
received  at  the  hands  of  the  plaintiff  and  McKenzie  medical 
and  surgical  attendance  and  treatment  for  several  month?. 
The  hospital  had  no  contract  with  the  defendant,  nor  were 
there  any  relations  between  it  and  the  defendant.  The  plain- 
tiff was  surgeon  to  the  hospital.  After  the  first  examination 
of  the  men  the  plaintiff  suggested  to  Beaton  the  employment 
of  a  specialist  in  diseases  of  the  eye  and  that  it  would  be  well 
to  call  in  one  Grigg.  To  this  Beaton  assented,  saying  that 
the  defendant  would  pay  all  the  expenses  incident  to  the  treat- 
ment of  himself  and  of  the  other  men.  Thereupon  the  plaintiff 
called  in  Grigg,  who  gave  to  the  eyes  of  the  men  such  attention 
as  was  necessary.  On  the  14th,  which  was  the  day  after  the 
accident,  Loomis  telegraphed  to  the  plaintiff  to  spare  no  ex- 
pense in  giving  Beaton  the  best  possible  nursing  and  attention, 
and  if  the  other  men  who  had  been  injured  needed  surgical  and 
hospital  treatment,  to  provide  it,  and  he  would  pay  all  the  ex- 
pense. Thereafter,  and  while  the  plaintiff  was  professionally- 
attending  Beaton  and  his  companions,  Loomis  orally  assured 
^  the  plaintiff  and  McKenzie  that  the  defendant  would  pay 
them.    McKenzie  assigned  his  account  to  the  plaintiff.     Gri^rg  3 


404  American  State  Eeports,  Vol.  91.     [Mon 

bill  for  the  services  rendered  by  him  was  paid  in  part  by  Beaton^ 
and  in  part  by  a  check  on  some  part  of  which  appeared  the  name 
of  the  defendant,  Grigg  testifying  that  he  did  not  know  where 
the  name  of  the  defendant  appeared  thereon,  but  it  was  hia 
^^impression  that  it  was  signed  by  the  Gold  Coin  Mining  Cooa- 
pany  per  some  one  else's  order/^  On  motion  of  the  defendant 
the  court  granted  a  nonsuit,  for  the  reason  that  no  authoritj 
had  been  shown  in  either  Loomis  or  Beaton  to  employ  the 
plaintiff  or  McKenzie  on  behalf  of  the  defendant,  to  attend 
the  men  injured,  that  the  evidence  did  not  show  that  the  em- 
ployment of  the  plaintiff  or  his  assignor  came  within  the  scope 
of  the  authority  of  either  Loomis  or  Beaton,  and  that  there- 
fore the  plaintiff  failed  to  show  the  liability  of  the  defendant. 
The  order  granting  the  motion  was  followed  by  a  judgm^it 
in  favor  of  the  defendant,  from  which  and  from  an  order  re- 
fusing a  new  trial  the  plaintiff  appeals. 

Several  errors  are  specified,  but  the  question  presented  by 
the  order  granting  the  nonsuit  is  the  only  one  that  requires  con- 
sideration. The  plaintiff  contends  that  Loomis,  the  general 
manager  of  the  defendant,  was,  by  virtue  of  his  office,  empow- 
ered to  employ  the  plaintiff  and  McKenzie  in  the  name  of  his 
principal  and  to  bind  it  by  his  promise  to  pay  thenL  He  in- 
sists that  authority  to  employ  physicians  and  surgeons  to  attend 
upon  miners  injured  while  engaged  in  working  for  the  defend- 
ant was  impliedly  delegated  to  Loomis  by  his  appointment  to 
the  office  of  general  manager,  and  that  neither  express  authority 
nor  subsequent  ratification  by  the  company  need  be  shown ;  and 
that  the  defendant  paid  a  part  of  Grigg's  bill,  thereby  ratifying 
the  employment  of  the  plaintiff.  It  is  argued  that  Loomis,  in 
his  capacity  of  secretary  and  general  manager  of  the  defendant,^ 
was  its  representative,  and  in  the  transaction  of  its  ordinary 
affairs  might  do  whatever  the  corporation  could  do  within  the 
scope  oT  its  powers,  and  that  the  general  manager  of  a  mining 
company  must  necessarily  receive  full  power  to  act  for  the 
''^  company  in  all  emergencies.  In  short,  the  contention  is 
that  the  law  presumes  the  general  manager  of  a  mining  corpo- 
ration to  be  clothed  with  the  power  which  Loomis  attempted 
to  exercise,  and  that  courts  must  take  judicial  notice  of  such 
power. 

A  principal  is  bound  only  by  the  authorized  acts  of  his  age^t, 
and  prior  authority  or  subsequent  ratification  must  be  shown 
in  order  to  render  the  principal  answerable  ex  contractu  for  the 
conduct  of  his  agent.     The  agent's  authority  may  be  either  ex- 


Oct.  1901.]     Spelbcan  v.  Gold  Coin  Min.  etc.  Co.  406 

• 

press  or  implied;  but  the  act  done  or  the  promise  made  by  the 
igent  most  be  within  the  powers  expressly  or  impliedly  dele- 
gated to  him ;  though  the  act  was  not  authorized  at  the  time  it 
was  done,  it  may  be  ratified  subsequently  by  a  competent  prin- 
cipal. Powers  of  the  agent  cannot  be  enlarged  by  his  unauthor- 
ized representations  or  promises.  The  principal  is  bound,  how- 
ever, by  the  acts  of  the  agent  who  is  held  out  by  him  as  possess- 
ing authority  to  do  the  act  which  he  does ;  in  such  case  his  acts 
we  the  principal's  when  done  imder  such  apparent  authority, 
and  the  principal  is  estopped  to  deny  the  agent's  authority  when 
the  person  dealing  with  the  agent  relied  upon  the  holding  out. 
The  implication  of  a  promise  on  the  part  of  one  who  requests 
the  performance  of  medical  or  surgical  services  for  another 
to  pay  for  them  does  not  arise  '^unless  the  relation  of  the  per- 
son making  the  request  to  the  patient  is  such  as  raises  a  legal 
obligation  on  his  part  to  call  in  a  physician  and  pay  for  the 
services''  (Meisenbach  v.  Southern  Cooperage  Co.,  45  Mo. 
App.  232;  Boyd  v.  Sappington,  4  Watts,  247;  Crane  v.  Bau- 
donine,  55  N.  Y.  256)  ;  to  make  him  liable  there  must  be  an  ex- 
press promise  or  engagement  to  pay  by  the  one  who  called  in 
the  surgeon  or  by  his  authorized  agent.  These  general  rules 
are  applicable  to  corporations  as  well  as  to  natural  persons: 
Bntte  &  Boston  Consol.  Min.  Co.  v.  Montana  Ore  Purchasing 
Co.,  21  Mont  539,  52  Pac.  375 ;  Trent  y.  Sheriock,  24  Mont. 
255,  61  Pac.  650.  Both  alike  are  bound  by  the  acts  of  their 
agents  done  within  the  scope  of  the  authority  ostensibly  dele- 
gated. 

In  the  case  at  bar  certain  employes  of  the  defendant,  while 
*•  working  in  its  mine,  were  injured  by  the  explosion  of  a  blast. 
It  does  not  appear  that  the  company  was  in  any  wise  at  fault — 
the  employment  of  the  plaintiff  by  Beaton  and  Loomis,  who  as- 
sumed to  act  in  the  name  of  the  company,  being  (of  itself)  no 
evidence  that  the  defendant  was  negligent  or  that  in  their  opin- 
ion it  was  responsible  for  the  accident.  The  men  were  removed 
to  a  hospital  with  which  the  defendant  had  no  connection  or 
contract  whatever,  and  were  there*  treated  by  physicians  and 
surgeons  to  whom  the  general  manager  of  the  defendant  made 
promises  to  the  effect  that  the  defendant  would  pay  them. 
There  was  nothing  tending  to  show  that  the  general  manager 
had  theretofore  assumed  so  to  bind  the  defendant;  there  was 
nothing  to  show  that  the  corporation  had  in  any  manner  what-* 
ever  expressly  delegated  to  the  general  manager  authority  to 
exercise  such  power,  nor  was  there  any  eyidence  that  general 


40G  AstEBicAN  State  Bepobts,  Vol.  91.     [Hontua* 

managers  of  mining  corporationa  habitnall;  aerdmi  tiwt 
power.  Can  the  court  declun',  upon  this  state  of  facts,  that  the 
general  manager  of  the  deffiidant  poseesaed  authoii^  to  bind 
the  defendant  by  employing  physicians  and  Burgeons?  We 
think  not.  While  there  can  be  no  doubt  of  the  implied  pova* 
of  a  corporation  of  the  class  to  which  the  defendant  belongs 
"to  incur  espense  on  account  of  injuries  received  by  its  employ^ 
in  the  line  of  their  employment,  in  the  absence  of  any  expras 
statutory  grant  of  euch  power"  (5  Thompson  on  Corporations, 
sec.  5840),  the  law  unquestionably  is  that  such  a  corporation 
does  not  owe  to  its  employes  any  implied  legal  duty  to  do  sol 
Without  attempting  to  enuiiierate  every  duty  of  the  master, 
we  may  say,  in  general  terms,  that  a  corporation,  like  any  other 
master,  discharges  its  primary  duties  as  master  to  the  servant 
when  it  furnishes  him  with  a  reasonably  safe  place  in  which  to 
work,  reasonably  safe  tools  with  which  to  work,  and  •atea  rea- 
sonable care  in  selecting  fellow-servants,  or,  rather,  is  free  from 
negligence  in  those  three  respects.  It  would  not  serionsly  be 
asserted  that  a  natural  pcrsori  owes  to  Ma  servant  or  employ^ 
the  legal  duty  to  furnish  medical  or  surgical  aid  to  him  or  to 
nurse  him  when  sick  or  disal)lcd,  or  when  injured  while  work- 
ing for  tlie  master  ^*  or  employer — indeed,  we  apprdiend  the 
law  does  not  impose  Bueh  obligation  apon  him  in  any  erent 
without  an  agreement  l)y  which  he  assumes  each  burden-  For 
irstanee,  a  servant  suffers  a  l)odily  injury  through  the  action- 
able negligence  of  the  master;  although  the  master  most  an- 
swcr  to  the  servant  in  damages  for  all  loss  proximately  result- 
ing, including  physicians'  and  surgeons'  charges,  yet  the  law 
does  not  require  him  to  cnp::ig(!  their  services  or  to  pay  them 
for  performing  the  services — he  may,  if  he  chooses,  employ 
phvaieians,  surgeons  and  nurses  and  promise  to  pay  them,  and 
of  course  he  would  then  bo  liable  directly  to  those  employed. 
■Whether  or  not  in  such  a  case  as  the  one  last  saggeated  the 
general  manager  of  a  minimi  company  can  bind  his  principal 
is  not  necessary  to  be  deciiled  upon  this  appeal.  If  he  can, 
the  power  must  rest  upon  the  assumption  or  theory  that  in 
appointing  a  general  manager  the  company  impliedly  del^st«a 
to  him  authoritv  to  lessen  the  extent  of  the  injuries  inflicted 
by  the  principal's  wrong,  and  thereby  diminish  the  amount  of 
damages  for  which  the  laltfp  would  otherwise  be  liable.  A* 
has  been  said,  there  is  nolliing  in  the  case  at  bar  to  indicate 
that  the  defendant  was  at  fault,  or  that  it  had  agreed  with  the 
wounded  men  to  provide  surgeons  or  pbyiiicians  for  them  in 


)ct  1901-3    Spxlman  17.  Gold  Coin  Mm.  etc.  Co.  407 

ease  of  accident.    If  the  defendant^ b  directors  had  met  and 
employed  the  plaintiff  and  McEenzie  to  attend  the  wounded 
men,  thej  woidd  have  bonnd  the  defendant;  but  the  directors 
would  not  thereby  have  performed  a  duty  imposed  by  law  upon 
fhem  or  npon  the  defendant.    Beyond  doubt  the  corporation 
fiirongh  its  board  of  directors — ^its  governing  body — possessed 
the  right  at  any  time  to  delegate  the  exercise  of  this  power  to 
any  officer  or  person.    Now,  the  general  manager  represents 
flie  corporation  in  all  matters  falling  within  the  scope  of  the 
powers  actually  conferred  or  which  he  is  held  out  by  the  com- 
pany to  possess;  "whenever  a  corporation  appoints  a  general 
manager  or  superintendent,  by  whatever  name  called,  it,  by 
that  very  fact,  impliedly  holds  him  out  to  the  public  as  pos- 
sessed of  the  authority  to  bind  it  by  contracts  which  are  nec- 
essary, proper,  or  usual  to  be  made  in  the  ordinary  prosecution 
**  of  its  business*^:  4  Thompson  on  Corporations,  sec.  4850; 
Georgia  Military  Academy  v.  Estill,  77  Ga.  409.    In  Trent  v. 
Sherlock,  24  Mont.  256,  61  Pac.  650,  we  said:  "No  principle 
of  law  is  more  clearljr  settled  than  that  an  agent  to  whom  is 
intrusted  by  a  corporation  the  management  of  its  local  affairs, 
whether  such  agent  be  designated  as  president,  general  mana- 
ger, or  superintendent,  may  bind  his  principal  by  contracts 
which  are  necessary,  proper,  or  usual  to  be  made  in  the  ordi- 
nary prosecution  of  its  business The  fact  that  he  oc- 
cupies, by  the  consent  of  the  board  of  directors,  the  position 
of  such  an  agent,  implies,  without  further  proof,  the  authority 
to  do  anything  which  the  corporation  itself  may  do,  so  long 
as  the  act  done  pertains  to  the  ordinary  business  of  the  com- 
pany  Even  where  the  contract  in  question  pertains  to 

matters  without  the  ordinary  course  of  business,  but  within 
the  power  of  the  corporation — that  is,  such  as  is  not  prohibited 
by  its  charter  or  by  express  provision  of  law — ^the  authority 
of  the  agent  may  be  established  by  proof  of  the  'course  of  busi- 
ng between  the  parties  themselves;  by  the  usages  and  prac- 
tise which  the  company  may  have  permitted  to  grow  up  in 
its  business;  and  by  the  knowledge  which  the  board,  charged 
with  the  duty  of  controlling  and  conducting  the  transactions 
and  property  of  the  corporation,  had,  or  must  be  presumed  to 
haye  had,  of  the  acts  and  doings  of  its  subordinates  in  and 
about  the  affairs  of  the  corporation.*  ....  'There  is  no  reason, 
and  can  be  no  legal  principle,  which  will  put  the  agent  of  a 
corporation  on  any  different  footing  than  the  agent  of  an  in- 
dividual, in  regard  to  the  same  business.*  **    He  cannot,  how- 


408  American  State  Bepohts,  Vol.  91.     [Montani 

ever,  bind  liis  principal  by  a  contract  to  confer  a  gratuity  a 
bestow  a  cliarity,  however  strong  the  promptings  of  humani^l 
may  be.     He  acts  for  and  is  virtually  the  compaDy   itself  ii! 
those  matters  only  which  have  to  do  with  its  ordinary  basinea 
and  are  within  the  scope  of  the  duties  delegated  to   him   ftw 
performance.     Unless  the  limits  of  hia  authority  are    shown 
to  have  been  enlarged,  the  duties  of  the  general  manager  are 
confined  to  the  transaction  of  the  business  of  the  corporation. 
as  distinguished  from  its  mere  ^  ethical  duties  and  consequent 
imperfect  obligations,  or  su]i]i03ed  charities.     The  fact   that  * 
eertajn  person  is  general  manager  of  a  mining  company  does 
not  in  and  of  itself  imply  authority  in  him  to  bind  the  com- 
pany in  matters  other  than  those  of  business  affairs.      It  nuj 
not  be  said,  as  matter  of  law,  or  declared  as  a  fact  judicially 
loiowii,   that   general   managiTs   of   mining   corporations    are 
usually  clothed  with'  such  authority  as  that  assumed  by  Loomis. 
So  to  hold  would  be  to  affirm  that  every  general  manager  may 
contract  with  ph_\-9icians  and  surgeons  in  behalf  of  the  mining 
company  for  which  he  is  agent,  irrespective  of  the  rights  of 
the  company  and  without  regard  to  whether  it  was  at   fault. 
If  he  has  such  authority  by  virtue  of  his  office,  then  he  may 
bind  the  company  to  pay  for  the  services  and  eipenaes  of  snr- 
geons,  physicians,  nurses  and  others  rendered  to  and  paid  out 
for  men  who,  through  their  o«'n  gross  negligence,  have  suffered 
injuries  in  his  companj-'s  mines,  and  his  promise  in  the  nama 
of  the  company  to  pay  any  price  that  might  be  agreed  upon 
by  him  and  those  employed  would,  in  the  absence  of  fraud,  bind 
the   corporation.     If  such   authority   inheres   in  the  office  of 
general  manager,  then,  as  was  remarked  by  Mr.  Justice  Graves 
in  Marquette  etc.  E.  R.   Co.  v.  Taft,  88  Mich,  289,   Loomii= 
"must  be  taken  to  have  had  not  merely  the  ordinary  powers  of 
control  and  management  pertaining  to  superintendency,  biit  tlie 
larger  and  more  imperial  power  to  bind  the  treasury  of  the 
company  to  bestow  what  in  law  would  have  to  be  considered  a^ 
something  originally  resting  on  imperfect  obligation."     If  such 
authority  is  conferred  on  a  general  manager,  the  court  does  not 
take  judicial  notice  of  it.     Evidence  tending  to  prove  it  must 
He  adduced. 

We  are  aware  of  the  many  cases  holding  that  the  general 
agent,  managing  agent,  general  manager  or  superintendent  nf 
a  railway  company  has.  by  virtue  of  his  office,  implied  author- 
ity to  employ,  on  behalf  of  the  company,  physicians  and  sur- 


^ 


Oct.  1901.]    Spelman  1^.  Gold  Coin  Min.  etc.  Co.  409 

geons  to  attend  persons  injnred  by  the  company,  including 
those  injured  in  the  line  of  their  duties  while  working  for  it, 
of  which  the  following  are  typical :  Walker  v.  Qreat  Western 
**  Ey.  Co.,  L.  R.  2  Exch.  228 ;  Atlantic  etc.  R.  R.  Co.  v.  Reis- 
ner,  18  Kan.  458;  Pacific  R.  R.  Co.  v.  Thomas,  19  Kan.  256; 
Atchison  etc.  R.  R.  Co.  v.  Reecher,  24  Kan.  228;  Toledo  etc. 
By.  Co.  ▼.  Rodrigues,  47  111.  188,  95  Am.  Dec.  484;  Toledo 
etc.  Ry.  Co.  v.  Prince,  50  111.  26;  Indianapolis  etc.  R.  R.  Co. 
?.  Morris,  67  111.  295 ;  Cairo  etc.  R.  R.  Co.  v.  Mahoney,  82  111. 
73,  25  Am.  Rep.  299;  Cincinnati  etc.  Ry.  Co.  v.  Davis,  126 
Ind.  99,  25  N.  E.  878,  and  cases  there  cited;  and  of  some  cases 
in  which  the  contrary  doctrine  is  announced :  Brown  v.  Missouri 
etc  Ry.  Co.,  67  Mo.  122 ;  Stephenson  v.  New  York  etc.  R.  R. 
Co.,  2  Duer  (N.  T.),  341.  Whether  the  doctrines  announced 
in  the  class  of  cases  first  mentioned  would  have  been  applied 
to  mining  corporations  under  the  facts  here  disclosed,  we  need 
not  inquire.  Whatever  may  be  the  role  touching  the  pre- 
sumptions with  respect  to  the  powers  of  railway  officials,  in 
our  opinion  a  presumption  that  the  general  manager  of  a  min- 
ing corporation  has  been  clothed  with  the  delegated  power  to 
exercise  the  authority  which  Loomis  assumed  to  exercise  can- 
not be  indulged.  In  some  of  the  cases  cited  the  judges  seem 
to  have  been  unconsciously  influenced  more  by  considerations 
of  humanity,  or  moral  obligations,  and  of  hard^ip,  than  by  the 
law  of  agency.  Legal  principles  must  govern  all  cases  falling 
within  them,  without  regard  to  the  views  entertained  by  the 
judges  touching  the  supposed  hardship  occasioned  in  a  par- 
ticular instance:  Sanford  t.  Oates  etc.  Co.,  21  Mont  290,  53 
Pac  749. 

.  As  to  the  contention  that  the  company  ratified  the  employ- 
ment of  the  plaintiff,  suffice  it  to  say  that  the  testimony  of 
Grigg  did  not  constitute  sufficient  evidence  to  prove  a  ratifica- 
tion, and  that  there  was  no  other  evidence  tending  to  show  it. 
•*  Finding  no  error  in  the  record,  the  judgment  and  order 
refusing  a  new  trial  are  affirmed. 

The  chief  justice,  having  tried  the  cause  in  the  court  bo- 
low,  takes  no  part  in  this  decision. 


Medical  Aid  for  Servant— The  general  manager  and  superintendent 
of  a  businefls  eorporation  has  no  implied  authority  to  employ  and 
fonuh  medical  aid  and  assistance  to  a  servant  of  the  corporation^ 
who  has  been  injured  outside  the  scope  of  his  employment,  and  the 
phjneiaii  cannot  recover  therefor  from  the  eorporation:   Chase  v. 


!        1 

f  ! 


410  Amebicak  Stats  Sepobts^  Vol.  91.     [Mcmtu 

Swift,  60  Neb.  696,  83  Am.  St.  Bep.  552,  84  N.  W.  86.  8m,  al 
PittRburgh  etc.  B.  B.  Co.  y.  Sullivan,  141  Tnd.  83,  50  Am.  St.  Bi 
313,  40  N.  E.  138.  And  compaie  Cairo  etc.  B.  B.  Co.  ▼.  Malioal 
82  HI.  73,  25  Am.  Bep.  299;  Toledo  etc.  B.  B.  Co.  ▼•  Bodrignai^  * 
IlL   188,  95  Am.  Dee.  484. 


HUGHES  V.  GOODALE. 

[26  Mont.   93,   66  Pac.   702.] 

JUDGMENTS-— When    Voidable  or    Void.— The    orders    !■ 

judgments  of  a  court,  within  its  jurisdiction,  maj  be  voidable  fi 
error  or  irregularity,  but  such  error  or  irregularity  does  not  of  itsd 
make  them  void.     (p.  414.) 

GUABDIAN'S  SALE— When  not  Void  for  FailiDra  to  Off 

Bond. — Though  a  statute  requires  a  guardian,  before  making  a  ml 
of  the  property  of  his  ward,  to  give  a  specified  bond  for  the  appi 
cation  of  the  proceeds,  a  sale  made  without  giving  such  bond,  bi 
subsequently  confirmed  by  the  court,  is  not  void^    (pp.  417,  420.) 

Suit  to  determine  whether  the  plaintiff  was  the  owner  n 
fee  of  certain  real  property  purchased  by  him  at  a  guardian*) 
sale.  Defendants  were  the  guardian  who  made  the  sale  iim 
his  minor  ward.  Apparently,  the  only  question  was  whetha 
the  sale  was  void  because  the  guardian,  before  making  it,  faiM 
to  give  the  special  bond  referred  to  in  the  opinion  of  the  court 
Judgment  for  the  defendants   and  the  plaintiff  appealed. 

I  I  H.  Lowndes  Maury,  for  the  appellant. 

i  'i  William  D.  Burbage,  for  the  respondent. 

'  ^^  PIGOTT,  J.    The  single  question  arising  upon  the  agreed 

\  statement  is  whether  the  omission  of  the  guardian  to  give  a  spe- 

cial  bond  before  the  sale  invalidated  the  sale  authorized  by  ihfl 
order.  ®*  Both  parties  assume  that  the  provisions  of  section 
387  of  the  probate  practise  act  (Comp.  Stats.  1887)  reqniw 
such  a  bond  to  be  given  whenever  the  sale  of  a  ward's  real 
estate  is  directed  to  be  made.  Before  proceeding  to  consider 
the  arguments  of  counsel  based  upon  this  assumption,  we  deem 
^  it  not  improper  to  suggest  a  possible  solution  of  the  ultimite 

y  i  question  upon  a  ground  not  discussed  by  counsel.    It  might  be 

argued,  with  plausibility  at  least,  that  section  387  does  not  re- 
A  quire  a  sale  bond  to  be  given  in  all  cases.    This  section  pro- 

f  ,  vides  that  ^^every  guardian  authorized  to  sell  real  estate  mrai, 

before  the  sale,  give  bond  to  the  probate  judge  [district  judge], 
with  sufScient  surety,  to  be  approved  by  him,  with  conditiooi 


<?  ' 


Oct.  1901.]  HUQHBS   V.    GOODALE.  411 

to  sell  the  same  in  the  manner^  and  to  account  for  the  pro- 
ceeds of  the  sale,  as  provided  for  in  this  chapter  and  chapter 
7  of  this  title.*'  Section  388  provides  that  "all  the  proceed- 
ings under  the  petitions  of  guardians  for  sales  of  property  of 
their  wards,  making  orders,  rejecting  or  confirming  sales,  and 
reports  of  sales^  ordering  and  making  conveyances  of  property 
sold,  acconnting  and  the  settlements  of  accounts,  must  be  had 
and  made  as  required  by  the  provisions  of  this  title  concerning 
estates  of  decedents,  imless  otherwise  specially  provided  in  this 
chapter/'  Section  407  declares  that  the  provisions  relative  to 
estates  of  decedents,  so  far  as  they  pertain  to  the  practise  in 
the  probate  or  district  court,  apply  to  proceedings  touching 
estates  of  minors  under  guardianship.  Now,  section  76  of 
chapter  3  of  the  title  referred  to  in  section  388,  supra,  after 
imposing  upon  the  district  judge  the  duty  to  require  an  ad- 
ditional bond  whenever  the  sale  of  lands  belonging  to  a  de- 
cedent is  ordered,  proceeds :  "But  no  such  additional  bond  must 
be  required  when  it  satisfactorily  appears  to  the  court  that  the 
penalty  of  the  bond  given  before  receiving  letters,  or  of  any 
bond  given  in  the  place  thereof,  is  equal  to  twice  the  value  of 
the  personal  property  remaining  in,  or  that  will  come  into,  the 
possession  of  the  executor  or  administrator,  including  the  an- 
nual rents,  profits,  and  issues  of  real  estate,  and  twice  the  prob- 
able amount  to  be  realized  on  the  sale  of  the  real  estate  to  be 
sold/'  If  section  ®*  387  is  to  be  read  with  and  interpreted 
in  the  light  of  section  76,  a  special  bond  need  not  be  required 
of  a  guardian  when,  in  the  opinion  of  the  court,  the  penal  sum 
mentioned  in  his  general  bond  is  sufficiently  large  to  cover  the 
items  enumerated  in  section  76,  and  affords  ample  security  to 
the  ward  for  the  proceeds  of  the  intended  sale.  If  this  theory 
be  correct,  **it  is  not  otherwise  specially  provided"  in  the  chap- 
ter relating  to  guardians  that  they  must  always  give  a  bond 
before  maldng  sales  of  real  estate ;  hence  in  the  case  at  bar  the 
guardian  was  under  no  obligation,  so  far  as  the  record  dis- 
closes, to  furnish  a  special  bond,  for  the  presumption  that  the 
court  below  properly  refrained  from  requiring  a  special  bond 
must  be  indulged.  We  merely  mention  this  as  a  possibly  cor- 
rect construction  of  the  statutes.  Counsel  have  not  suggested 
it  and  we  do  not  decide  that  the  theory  advanced  is  the  cor- 
rect one,  nor  intimate  an  opinion  upon  it,  its  determination 
being  unnecessary  to  a  decision.  For  the  purposes  of  this  ap- 
peal we  shall  treat  section  387  as  unaffected  in  this  regard  by 
lection  76. 


412  Americam  State  Reports,  Vol.  91.     [iSoatd 

The  contention  of  counsel  for  the  defendant  is  that  eiedSt 
387  requires  a  guardian  to  give  a  Bpecial  bond  in  every  cfl 
that  the  provision  is  mandatory,  and  that  an  omission  so  toj 
renders  the  sale  void,  Coimsd  for  the  plaintiff  insists  fi 
the  requirement  is  directory  only.  . 

The  question  presented  ia  one  of  first  impression  in  9 
court.  In  Power  v.  Lenoir,  22  Mont.  1G9,  56  Pae.  106,  it  A 
held  that  the  giving  of  the  general  bond  required  by  a  gna 
ddan  by  section  3S8  of  tho  probate  practise  act  (Comp.  Sti 
1887),  ia  indispensable  to  tlie  validity  of  his  acts  so  far  ■ 
rights  of  the  ward  are  concerned,  the  section  prOTiding  i 
"before  the  order  appointing  any  person  guardian  under  t 
chapter  takes  effect,  and  hiifore  letters  issue,  the  judge  n 
require  of  such  person  a  bond  to  the  minor,  with  sufficient  s 
ties,  to  be  approved  by  the  judge,  and  in  such  sum  as  be  s 
order,  conditioned  that  Ihn  guardian  will  faithfully  eieL_ 
the  duties  of  his  trust  according  to  law;  and  the  foUowiaj 
conditions  shall  form  a  part  of  such  bond  without  •''  beJa 
crpressed  therein:  1.  To  make  an  inventory  of  all  the  esbdq 
real  and  personal,  of  his  ward,  that  comes  to  his  poHaeaaion  q 
knowledge,  and  to  return  the  same  within  such  time  as  tid 
judge  may  order;  3.  To  dispose  of  and  manage  the  estate  ■» 
cording  to  law  and  for  the  beat  interest  of  the  ward,  and  faitt" 
fully  to  discharge  his  trust  in  relation  thereto,  and  also  in  i^ 
lation  to  the  care,  custody,  and  education  of  the  ward ;  3.  T» 
render  an  account,  on  oatli,  of  the  property,  estate,  and  moDen 
of  the  ward  in  hia  hands,  and  all  proceeds  or  interest  derived 
therefrom,  and  of  the  management  and  disposition  of  the  esne, 
within  three  months  after  his  appointment,  and  at  such  other 
times  as  the  court  directs,  and  at  the  expiration  of  hia  trust  to 
settle  his  accounts  with  thi^  probate  judge,  or  with  the  ward,  if 
he  be  of  full  age,  or  his  legal  representatives,  and  to  pay  over 
and  deliver  all  the  estate,  moneys  and  eftects  remaining  in  bii 
hands,  or  due  from  him  on  such  settlement,  to  the  person  or  pe^ 
sons  who  are  lawfully  entitled  thereto.  Upon  filing  the  bond, 
duly  approved,  letters  of  guardianship  must  issue  to  the  perKin 
appointed.  In  form,  the  li'tters  of  guardianship  must  be  Ed1>- 
stantially  the  same  as  Ictf'Tg  of  administration,  and  the  oath  ot 
the  guardian  must  be  indor-icd  thereon  that  he  will  perform  tbc 
duties  of  his  office  as  such  guardian  according  to  law."  In  thit 
case  we  said :  "Section  3jS  of  our  probate  law  plainly  and  posi- 
tively provides  that,  before  the  order  appointing  any  persoit 
guardian  takes  effect,  and  before  letters  issue,  the  judge  niuit 


Oct.   1901.]  HUQHES   V.    OOODALB.  413 

require  of  such  person  a  bond  to  the  minor^  with  snflBcient  sure- 
ties.    The  intention  of  the  legislature  could  hardly  have  been 
more  plainly  manifested.    From  the  other  sections  of  the  stat- 
ute cited  supra,  it  appears  that  it  did  not  even  deem  it  wise  to 
allow  the  parent  to  relieve  the  guardian  of  this  duty  by  testa- 
mentary direction;  for  though  a  provision  is  made  recognizing 
the  right  of  parents  to  select  by  will  the  person  to  whom  they 
wish  to  intrust  the  care  of  their  children  and  their  estates  (sec- 
tion 351^  supra)  y  yet  it  requires  such  person  so  selected  (section 
362)   to  give  bond  and  qualify  as  other  guardians.    It  is  not, 
therefore^  the  recognition  ®®  by  any  court  of  the  relation  of 
guardian  and  ward  that  gives  it  validity,  but  the  fact  that  the 
relation  has  been  properly  established  by  a  compliance  with  the 
requirementB  of  the  law.    A  person  who  purchases  the  property 
of  a  minor^  or  who  seeks  to  devest  him  of  title  to  his  property, 
will  not  be  heard  to  say  that  the  minor  is  estopped  and  con- 
cluded by  the  irresponsible  acts  and  doings  of  some  person  who 
has  presumed  to  act  as  his  guardian  without  first  giving  the 
minor  the  protection  and  security  the  law  requires  for  him. 
.  .  .  •  The  latter  [the  ward]  is,  so  to  speak,  the  special  favorite 
of  the  courts,  and  the  courts  will  always  see  that  his  rights  are 
protected*'^     The  decision  was  that  the  order  appointing  a 
groardian  is  without  effect  unless  and  until  the  bond  required  by 
section  358  shall  have  been  given.     Section  75  of  the  probate 
practise  act  (Comp.  Stats.  1887)  requires  that  ''every  person  to 
whom  letters  testamentary  or  of  administration  are  directed  to 
issue  must,  before  receiving  them,^'  execute  a  bond.    In  In  re 
Craigie's  Estate,  24  Mont.  37,  60  Pac.  495,  we  intimated,  by 
way  of  argument,  that  the  failure  of  the  person  appointed  ad- 
ministrator to  give  a  bond  does  not  ordinarily  or  usually  render 
void  the  letters  of  administration  issued  to  him.    It  is  proper 
to  observe  that  section  75  requires  a  person  to  whom  letters  are 
directed  to  issue  to  execute  a  bond  before  receiving  them,  but 
does  not  declare  that  the  order  is  ineffectual  unless  the  bond  be 
given.     The  decision  in  the  Graigie  case  was  to  the  effect  that 
the  failure  of  a  public  administrator  who  had  duly  qualified  by 
giving  bond  and  taking  oath  to  file  an  additional  bond  required 
by  the  district  judge  as  further  security  for  the  interest  of  an 
estate  in  his  himds,  did  not,  ipso  facto,  create  a  vacancy  in  the 
office  of  public  administrator,  although  the  statute  declared  that 
upon  failure  of  any  public  administrator  to  give  such  bond  as 
might  be  required  by  a  probate  judge,  his  office  should  become 
vacant.     Neither  of  these  cases  announces  a  rule  which  must 
govern  the  decision  of  the  case  at  bar. 


414  American  State  Eepobts,  Vol.  91.     [MoDb 

If  the  omission  to  give  a  sale  bond  was  Eufficjent  to  depi 
the  court  of  jurisdiction,  the  judgment  must  be  affirmed; 
**  other  words,  if  the  order  of  eale  was  invalidated  by  the  on 
aion  to  give  a  special  bond,  then  by  the  sale  the  plaintiff  to<A 
title  as  against  the  minors.  If,  upon  the  other  haad,  the  cat 
was  clotlied  with  jurisdiction  to  make  the  order  of  sale,  and  t 
omission  to  give  the  special  bond  did  not  deprive  the  ordw 
its  legal  force,  then  the  plaintiff,  by  virtue  of  the  confirmati 
of  the  sale,  followed  by  the  deed  of  conveyance,  acquired  all  S 
title  which  the  minora  had  to  the  property. 

The  orders  and  judgments  of  a  court  within  Its  jorisdictif 
may  be  voidable  for  error  or  irregularity,  but  such  error  i 
irregularity  does  not,  of  itself,  avoid  the  orders  or  judgmnrf 
This  rule  applies  to  courts  of  general  common-law  jurisdictia 
to  courts  of  equity,  and  to  inferior  courts  of  limited  powers;  i 
is  applicable  to  all  courts  alike.  Whenever  it  appears  that  it 
act  done,  the  order  made,  or  the  judgment  rendered  was  witM 
the  scope  of  the  power  conferred,  jurisdiction  must  be  sdmittn 
and,  unless  that  jurisdiction  is  shown  to  have  been  lost,  the  ad 
order,  or  judgment  cannot  be  characterized  as  a  nullity.  Di 
the  omission  of  the  guardian  to  give  a  special  bond  render  ii 
effectual  the  order  of  sale  iind  the  confirmation  thereof,  tberel]> 
depriving  the  court  of  jurisdiction  in  the  premises?  That  th 
defendant  was  the  duly  appointed,  qualified  and  acting  goardia 
is  conceded;  it  must  be  presumed  that  upon  a  proper  petitia 
and  after  a  hearing  the  court  ordered  the  guardian  to  sell  tli 
lands  of  his  wards;  in  piir?~uance  of  that  order  the  sale  m 
made  and  confirmed ;  a  doed  of  conveyance  was  thereupon  diilj 
executed  by  the  guardian  and  delivered  to  the  plaintiffl  TW 
the  district  court  had  juri>dJction  of  the  class  of  cases  or  pro- 
ceedings to  which  the  one  at  bar  belongs,  and  therefore  of  tbe 
subject  matter  of  this  proceeding,  and  had  jurisdiction  of  tk 
persona  of  the  wards,  is  iilso  conceded.  Its  juriadiction  tu 
regularly  invoked.  In  iiuiking  the  order  of  sale  its  jurisdictiaB 
was  duly  exercised.  As  we  have  said,  the  sale  was  not  void 
unless  the  omission  to  give  a  special  bond  rendered  the  order  irf 
sale  ineffectual;  that  is  tt)  say,  unless  the  court  lost  juriediction 
of  the  subject  matter  by  tin!  failure  of  *****  the  guardian  toeif 
cute  a  special  sale  bond,  llie  plaintiff  by  the  sale  acqnlred  title 
to  the  lands.  Xo  mere  i  iT'^gularity,  however  great,  can  tnS 
the  defendant  or  his  wards  in  such  an  attack  aa  la  here  mule- 
Such  defect  OF  irregularity  cannot  be  inquired  into  by  majwo' 
a  collateral  action. 


rt.  1901.]  Hughes  v.  (joodalb.  415 

The  object  sought  to  be  attained  by  section  387  is  the  protec- 
km  of  the  financial  interests  of  the  ward.  For  any  loss  which 
.  decedent^s  estate  may  suffer  by  reason  of  the  failure  of  an 
dministrator  properly  to  account  for  and  pay  over  the  proceeds 
I  a  sale  of  land^  the  sureties  on  his  general  bond  are  certainly 
Dswerable.  This  appears  by  sections  75  and  76^  supra,  and  we 
lerceiYe  no  reason  why,  under  the  statutes  of  Montana,  any 
tifferent  rule  should  be  applied  to  sureties  on  the  general  bond 
if  a  guardian.  By  section  358  the  guardian  must  execute  to 
he  minor  a  bond  with  sufficient  sureties  in  such  sum  as  the 
godge  may  order,  conditioned  for  the  faithful  performance  of 
lis  trust  according  to  law.  As  appears  from  the  quotation  here- 
nbefore  made,  the  following  implied  conditions  form  a  part  of 
be  bond :  "2.  To  dispose  of  and  manage  the  estate  according  to 
iw  and  for  the  best  interest  of  the  ward,  and  faithfully  to  dis* 
diarge  his  trust  in  relation  thereto,  and  also  in  relation  to  the 
are,  custody,  and  education  of  the  ward ;  3.  To  render  an  ac-  ^j. 

R>imt,  on  oath,  of  the  property,  estate,  and  moneys  of  the  ward 
in  his  hands,  and  all  proceeds  or  interest  derived  therefrom^  and 
of  the  management  and  disposition  of  the  same,  within  three 
months  after  his  appointment,  and  at  such  other  times  as  the 
court  directs,  and  at  the  expiration  of  his  trust  to  settle  his  ac- 
counts with  the  probate  judge,  or  with  the  ward,  if  he  be  of  full 
age,  or  his  legal  representatives,  and  to  pay  over  and  deliver  all 
the  estate,  moneys,  and  effects  remaining  in  his  hands,  or  due 
from  him  on  such  settlement,  to  the  person  or  persons  who  are 
lawfully  entitled  thereto/'   Among  the  powers  and  duties  of  the 
guardian  are  the  following:  To  pay  all  debts  of  the  ward  out  of 
his  personal  estate  and  the  income  of  his  real  estate,  but,  if  these 
sources  are  insufficient,  then  out  of  his  real  estate,  upon  obtain- 
ing an  *®^  order  for  its  sale,  "and  disposing  of  the  same  in  the 
manner  provided  in  this  title  for  the  sale  of  real  estate  of  de- 
cedents'* (section  367) ;  he  must,  if  the  income  and  profits  of 
tiie  estate  be  insufficient  for  the  purposes,  sell  the  real  estate  of 
his  ward  upon  obtaining  an  order  of  the  court  therefor,  and  ap- 
ply 80  mudi  of  the  proceeds  as  may  be  necessary  to  the  mainten- 
uu»  and  support  of  the  ward  and  his  family  (section  369) ; 
ttid  to  sell  the  ward's  real  estate  when  it  appears  for  the  benefit 
of  the  ward  to  do  so,  and  put  the  proceeds  out  at  interest  or  oth- 
erwise reinvest  the  same  (section  377).    These  powers  are  con- 
ferred and  these  correlative  duties  are  imposed  upon  guardians 
jpnerally,  to  be  exercised  and  performed  whenever  the  condi- 
tions contemplated  by  the  statute  arise;  in  brief,  whenever  it  ap- 


41C  Amemcan  State  Rkpohtb,  Vol.  91.     [Hoaial 

pears  either  necessary  or  for  the  benefit  of  the  w&rd  that  I! 
real  estate  or  some  part  of  it  should  be  sold,  the  court  ti 
grant  an  order  therefor  (section  386).  To  obtain  an  orderfl 
sell,  to  sell  and  to  account  for  the  avails  of  the  sale  ordered,' 
one  of  the  general  duties  of  the  guardian.  We  think  the  sib 
ties  on  such  bond  of  the  guardian  are  liable  for  any  lose  wUI 
tlie  ward  may  suffer  by  reason  of  the  guardian's  failnre  fiM 
fully  to  execute  the  duties  of  hia  truBt,  among  vhich  are  tlul 
pertaining  to  sales  of  real  estate,  and  that  they  are,  com 
qnently,  liable  for  hia  default  with  respect  to  the  proceedi  I 
such  sales.  Section  402  of  the  probate  practise  act  (Cmi 
Stats.  1S87)  authorizes  the  judge  to  require  a  new  bond  to  k 
given  by  a  guardian  whenever  he  deems  it  necessary.  He  m^ 
at  any  time,  evtn  after  sa^,  require  a  new  or  additional  bonj 
These  provisions  illustrate  the  design  and  show  the  intention  i 
the  legislative  assembly  in  enacting  section  387.  This  sectifll 
provides  no  penalty  for  tlic  omission  to  require  or  give  a  apedi 
bond,  nor  docs  it  declare  that  the  order  of  sale  depends  npn 
the  performance  of  such  a  condition  subsequent.  Nowhere  daa 
the  statute  declare  that  if  a  special  bond  be  not  given  the  nil 
shall  not  be  made,  or,  if  maile,  shall  be  void.  It  is  not  proviW 
that  the  order  of  sale  becomes  effective  only  when  such  spedil 
bond  is  given.  In  Stewart  v.  Bailey,  28  Mich.  »«■  251,  flu 
statute  required  a  special  sale  bond  and  provided  that  in  cast  d 
an  action  relating  to  any  estate  sold  by  a  guardian  in  which  tin 
ward  should  contest  the  vnlidity  of  the  sale,  the  sale  should  not 
be  avoided  on  account  of  .inv  irregularity  in  the  proeeedmgi, 
provided  it  should  appear,  among  other  things,  that  the  guardiu 
pave  a  special  sale  bond.  This  was  tantamount  to  declaring  • 
sale  made  without  bond  to  be  voidable  in  such  an  action,  snd 
the  court  so  held.  The  snrue  statutes  governed  the  decision  in 
Ryder  v,  Flanders,  30  Midi.  336.  ITie  interpretation  of  similn 
statutes  was  involved  in  :M.-Keever  v.  Ball,  71  Ind.  39S,  Vdd 
V,  Johnson  Mfg,  Co.,  84  Wis,  637,  64  N.  W.  335,  998,  B»*- 
e!or  V.  Korb.  58  Neb.  IS';?.  70  Am.  St.  Eep.  70,  78  N.  W.  4M, 
and  in  Goldsmith  v.  Giinianfl  (C.  C),  23  Fed.  645,  Ib 
Barber  v,  Hopewell,  1  Met.  (Ky.)  260,  the  statute  in  force  pw- 
vided  that  if  the  guardiiin  failed  to  give  the  special  bond,  the 
sale  should  not  bo  made,  iind  "any  decree,  sale,  or  conveyuic* 
thereof  shall  bo  void";  and  the  court  held  that  a  sale  of  lu* 
without  giving  the  special  bond  rendered  the  sale  a  nuUityiito 
the  ward.  These  decipionp.  owing  to  the  difference  between  ov 
statutes  and  those  under  w]uch  tiiej  were  rendered,  are  not  in 


JBt  1901.]  Hughes  v.  Goodalb.  417 

Uttnt.  Other  cases  seemingly  in  favor  of  the  defendant's  posi- 
k>n  may  readily  be  distinguished;  for  example,  Williams  v. 
lorton,  38  Me.  47,  61  Am.  Dec.  229,  holds  that  a  conveyance 
^f  land  by  the  guardian  of  a  ward,  under  order  of  a  court  of 
(lobate,  vests  no  title  in  the  grantee  unless  the  guardian  shall 
me  given  the  sale  bond  required  by  statute;  but  the  court  so 
idd  for  the  reason  that  in  Maine  the  general  bond  of  the  guard- 
an  did  not  stand  as  security  for  the  proper  application  of  the 
poceeds  of  a  sale  of  real  estate.  Such  was  the  condition,  like- 
rise,  in  Vanderburg  v.  Williamson,  62  Miss.  233.  This  is  also 
Jie  basis  of  the  decision  in  Lyman  v.  Conkey,  1  Met.  (Mass.) 
H7. 

We  are  of  the  opinion  that  the  omission  of  the  court  to  re- 
luire,  *^^  and  of  the  guardian  to  give,  the  special  sale  bond  in 
Ehe  case  at  bar  was  a  mere  irregularity  in  no  wise  affecting  or 
impairing  the  jurisdiction  of  the  court  which  ordered  and  con- 
firmed the  sale.     As  has  already  been  said,  the  general  bond  of 
the  guardian  stands  as  security  for  the  proper  application  of 
file  proceeds  of  the  sale;  the  court  was  clothed  with  power  to 
entertain  the  petition  praying  for  the  sale;  it  had  jurisdiction 
d  the  subject  matter  and  of  the  parties;  it  made  the  order  of 
sale;  the  property  was  sold,  the  sale  was  confirmed,  and  a  con- 
veyance executed.     The  statute  omits  to  denounce  as  void,  for 
want  of  a  special  bond,  a  sale  made  pursuant  to  such  an  order. 
The  sale  was  not  void.     Many  cases  support  this  conclusion.    In 
Palmer  v.  Oakley,  2  Doug.  433,  47  Am.  Dec.  41,  the  following 
language  is  used:  'TTie  last  objection  to  the  regularity  of  the 
proceedings  by  the  guardian  in  conducting  the  sale  is,  that  the 
notice  of  sale  given  was  insufficient,  and  was  given  before  the 
bond  was  executed.     The  statute  requires  that,  before  making 
sale  of  any  real  estate  by  a  guardian,  a  bond  shall  be  given  with 
BuretieB,  and  thirty  days'  notice  of  the  intended  sale.    An  oath 
is  also  required.     The  requirement  in  respect  to  the  bond  and 
notice  is  contained  in  a  proviso,  and  may  be  considered  as  a 
limitation  or  restriction  upon  the  authority  to  sell.     But  does 
the  neglect  on  the  part  of  the  guardian  to  comply  with  these 
several  provisions  of  the  statute  render  the  sale  absolutely  void, 
and  can  it  afEect  the  rights  of  an  innocent  bona  fide  purchaser, 
daiming  through  the  decree  authorizing  the  sale?    I  think  the 
rights  of  such  a  purchaser,  especially  after  the  lapse  of  so  many 
years,  are  not  to  be  disturbed  in  consequence  of  the  failure  of 
the  guardian  to  perform  acts  in  pais  subsequent  to  the  decree  of 
sale.   The  acts  of  the  guardian  are,  in  legal  contemplation,  the 

St  Rep..   Vol.   91—27 


418  AuEBiCAH  STA.TE  Befobts,  Vol.  91.     [UontuM 

actB  of  the  ward,  whom  he  replresents;  and  it  cannot  now  1 
permitted  to  the  ward  to  come  in  aod  allege  the  nonfeasance  c 
his  g:uardian,  to  disturb  a  title  derived  from  him  through  sod 
his  legally  constitHted  representative.  All  that  a  purchaser  i 
judicial  sale  is  bound  to  look  to  with  a  view  to  his  protection  i 
to  see  that  the  court  ^'^  by  whom  the  sale  was  authorized  wi 
empowered  to  make  the  decree.  If  the  court  had  t^e  powa 
the  failure  of  the  guardian,  as  in  this  case,  to  fulfill  certain  d 
rpctions  which  the  law  imposed  on  her,  should  not  and  cannc 
prejudice  the  rights  acquired  by  such  purchaser.  If  the  war 
is  prejudiced  by  any  n^lect  on  the  part  of  the  guardian  in  (h 
execution  of  the  trust  reposed  in  her,  his  remedy  is  upou  h« 
bond.  It  never  could  have  been  contemplated  by  the  legislatur 
that  the  validity  of  a  sale  should  be  made  to  depend  upon  tii 
observance  of  those  provisions  of  the  law,  which  are  in  thai 
nature  directory  to  the  guardian.  If  such  a  rule  were  to  obtain 
but  few  purchasers  would  be  found  at  judicial  sales;  for  bn 
few  would  incur  the  hazard  of  purchasing  and  paying  then 
iiiocey  when  the  purchase  so  made  may,  at  the  distance  of  ta 
iir  fifteen  years,  be  held  void,  in  consequence  of  a  noncompliana 
hy  a  guardian  with  the  requisitions  of  the  statute  Such  a  ruh 
would  also  operate  injuriously  on  the  ward,  as  upon  every  ait 
made  the  purchaser  would  take  into  account  the  hazard  he  in- 
curs. The  best  interests  of  infants  require  that  no  nnneceesaiy 
obstacles  should  be  thrown  in  the  way  of  obtaining  the  best  pos- 
sible price  for  their  estates  when  sold.  If  a  wrong  is  done  them 
by  tiieir  guardians,  they  have  a  full  and  ample  remedy.  In  tbe 
case  of  Perkins  v.  Fairfield,  H  Mass.  227,  it  was  held  that  • 
f[illure  by  an  administrator  to  give  the  bond  required  by  the  act 
<jf  Massachusetts  of  17S3  before  the  sale  of  real  estate  of  his  in- 
tt'stt.te  would  not  invalidate  a  title  derived  through  such  admin- 
islrator," 

In  Bunce  t.  Bunco,  59  Iowa,  533,  13  N.  W.  705,  the  court 
paid:  "The  remaining  objections — the  want  of  a  sale  bond,  tni 
tbe  alleged  want  of  approval  of  the  sale — may  be  considered  to- 
gether. The  statute  provided  that,  before  a  sale  can  be  eie- 
cutei,  the  guardian  must  give  security:  Heviaion,  see.  S556. 
Tile  statute  abo  required  that  the  sale  must  be  approved:  Be- 
visicn,  sec.  2558.  In  the  absence  of  a  sale  bond,  it  would  doubt- 
lr~s  be  error  to  approve  the  sale;  but,  where  jurisdiction  hu 
attached,  and  the  sale  has  been  approved,  it  cannot,  we  think, 
he  snccessfully  attacked  in  a  collateral  proceeding  **•  by  sllep 
iiLg  the  want  of  a  izie  bond.     The  question  raised  mast  be 


Oct.  IdOl.]  Hughes  v.  Goodale.  419 

deemed  to  have  been  passed  on,  and  whether  correctly  or  incor- 
rectly^ the  court  cannot^  we  think^  in  a  collateral  action,  in* 
quire/'    This  was  approved  in  Hamiel  v.  Donnelly,  75  Iowa, 
93,  39  N.  W.  210.     The  same  doctrine  or  principle  is  announced 
in  Perkins  v.  Fairfield,  11  Mass.  227;  Lockhart  v.  John,  7  Pa. 
St  137;  Merklein  v.  Trapnell,  34  Pa.  St.  42,  76  Am.  Dec.  634; 
Diicy  V.  Laning,  49  Pa.  St.  143 ;  Foster  v.  Birch,  14  Ind.  446 ; 
Dequindre  v.  Williams,  31  Ind.  444.     In  Arrowsmith  v.  Har- 
moning,  42  Ohio  St.  264,  the  court,  in  approving  Mauarr  v.  Par- 
rish,  26  Ohio  St.  636,  said :  "The  decision  in  Mauarr  v.  Parrish, 
26  Ohio  St.  626,  was  right.    The  probate  court  had  jurisdiction 
of  the  subject  matter — ^i.  e,,  it  was  clothed  with  authority  to  order 
the  sale  of  the  lands  of  a  minor  on  the  petition  of  his  guardian; 
and  it  is  fair  to  say  from  the  record  that  notice  of  filing  the 
petition,  provided  for  by  the  statute,  had  been  served  on  the 
minor,  before  any  order  was  made  in  the  proceeding,  in  the 
manner  in  such  statute  provided;  and  hence,  when  the  order 
of  sale  was  made,  and  also  when  the  sale  was  confirmed,  the 
probate  court  had  not  only  jurisdiction  of  the  subject  matter, 
but  also  the  parties.    This  being  true,  the  order  of  sale  and  the 
order  of  confirmation,  although  they  may  have  been  erroneous, 
were  not  void.    T?he  judgment  or  final  order  of  a  court  having 
jurisdiction  of  the  subject  matter  and  parties,  however  errone- 
ous, irregular,  or  informal  such  judgment  or  order  may  be,  is 
valid  until  reversed  jor  set  aside,  ....  within  which  rule  the 
orders  of  probate  courts  are  classed:  Shroyer  v.  Richmond,  16 
Ohio  St.  466.     If  the  judgment  or  order  is  erroneous,  it  may  be 
reversed;  if  it  is  irregular  or  informal,  it  may  be  corrected  on 
motion;  in  neither  case,  however,  is  it  subject  to  collateral  at- 
tack*: Wehrle  v.  Wehrle,  39  Ohio  St.  365.    True,  Mauarr  v. 
Parrish,  26  Ohio  Si  636,  is  very  briefiy  reported  on  the  question 
we  are  considering.    ^^^  But  tiie  strength  of  an  opinion  is  not 
to  be  determined  from  its  length.    Frequently  cases  are  dis- 
posed of  by  the  application  of  principles  so  firmly  settled  that 
the  citation  of  authorities  in  support  of  them  would  be  a  work 
of  supererogation.    The  judge  delivering  the  opinion  in  Mauarr 
V.  Parrish^  26  Ohio  St.  636,  probably  thought  the  case  belonged 
to  that  dasBy  and  hence   the   brevity  of   the  report;   but  the 
ground  of  the  decision  is  clearly  indicated — ^that  is,  that   the 
court  having  jurisdiction  of  the  subject  matter  and  parties,  the 
order  of  sale  and  the  order  of  confirmation,  though  they  mav 
have  been  erroneous,  were  not  void — and  that  is  sufficient.     The 
reeoid  and  a  brief  on  each  side  of  the  case  have  remained  on 


430  Amebigan  Staib  Bepokis,  Vol.  91.     [Montui 

file  in  this  court,  and  wg  hare  no  doubt  that  the  questifm  ii 
ceived  the  careful  consideration,  as  in  iti  decision,  in  the  »d 
stated,  it  received  the  concurrence,  of  every  member  of  Qi 
court.  And  although  caf^a  in  apparent  oppoedtiou  to  Mann 
V.  Tarrish,  26  Oliio  St.  fiSU,  hare  been  cited,  yet  nearly  all  < 
them  are  clearly  distinguishable  from  it,  when  regard  is  ha 
fo  the  atntutes  on  which  tliey  were  based;  and  Mauarr  ».  Pu 
rish,  26  Ohio  St.  636,  is  fully  supported  by  Watts  v.  Cook,  S 
Kan.  SrS;  Bunce  V.  Bunce,  69  Iowa,  533,  13  N.  W.  705;  Lodf 
hart  V.  John,  7  Pa.  St.  137;  Mericlein  t.  Trapnell,  34  Pa.  31 
43;  Appeal  of  Thorn,  35  Pa.  St.  47;  Dixcy  v.  Inning,  49  Pi 
St.  143."  Watts  V.  Cook,  24  Kan.  278,  is  also  directly  in  pmal 
The  statute  of  Kansas  (Comp.  Laws  1879,  c.  46,  sec.  15)  pro 
vided  that  before  any  guardian's  sale  of  lands  "can  be  mai 
or  executed,  the  guarcJiaii  must  give  security  to  the  satisfactia 
of  the  court,  the  penalty  oT  which  shall  be  at  least  doable  6» 
value  of  the  property  to  be  sold,  ....  conditioned  that  it 
will  faithfully  pcrfonn  his  duties  in  that  respect,  and  acconn) 
for  and  apply  all  moneys  received  by  him  under  the  directiai 
of  the  court."  It  was  said  (llr.  Justice  Brewer,  Mr,  Chief  Jus- 
tice Horton,  and  Mr.  Justice  Valentine,  composing  the  conrt): 
"The  authorities  differ  as  to  the  validity  of  guardians'  sales  ia 
the  absence  of  security.  Some  hold  such  sales  void  (Wilhimi 
V.  Morton,  38  Me.  47,  61  Am.  Dec.  229),  and  others  merelT 
tTronmus:  Lockhart  v.  John,  7  Pa.  St.  137;  >""  Perkins  r. 
Fairfield,  11  Mass.  237;  Foster  T.  Birch,  14  Ind.  445.  We  »n 
inclined  to  believe  the  latter  the  true  rule.  Probate  conrii 
BJioiild  cautiously  observe  tlie  provisions  of  the  section  quoted, 
and  are  greatly  negligent  in  permitting  sales  on  mortgages  bj 
guardians  without  security :  yet  we  cannot  hold  that  the  failnrt 
to  give  sccurilv  deprives  the  court  of  jurisdiction.  It  is  in 
error  of  a  court  baring  competent  and  full  jurisdiction,  subjed 
to  reversal  or  avoidance  hy  due  proceedings.  The  abseucc  ot 
the  security  did  not  render  the  proceedings  void,  but  only  ir- 
regular." Tliis  case  wap  approved  in  Howbert  v.  Heyle,  *7 
Kan.  58,  27  Pac.  116,  altliough  the  judge  writing  the  opinion 
entertained  the  view  that  the  decision  in  Mauarr  v.  Parrisb, 
26  Ohio  St.  636,  was  Bf,':iii!st  the  great  weight  of  authority. 

We  are  satisfied,  upon  reason  as  well  as  by  the  weight  of 
authority,  that  the  provisions  of  section  387  are  directory,  in^ 
hence  that  the  sale  wa.-?  not  void  because  the  guardian  omittoi 
to  give  the  special  bond  rnfjuired  thereby.  The  judgment  oMt 
therefore,  be  reversed  and  the  cause  remanded,  with  directtons 


one,  1902.]  State  v.  WwaHT.  421 

[>  the  court  below  to  render  judgment  in  favor  of  the  plaintiff, 
nd  it  Ib  so  ordered. 


Gvardian's  Sale.^A  statute  providing  that  a  guardian  licensed 
>  sell  real  estate  "shall,  before  the  sale,  give  bond  or  sureties, 
I  be  approved  hj  such  judge,"  is  mandatory;  and  where  the  bond 
tven  is  not  approved  by  the  judge  of  the  district  court,  the  guard- 
ku's  sale  of  his  ward's  real  estate  is  void:  Bachelor  v.  Kerb,  58 
leb.  122,  76  Am.  St.  Rep.  70,  78  N.  W.  485;  Tracy  v.  Boberts,  88 
[e.  310,  51  Am.  St.  Rep.  394,  34  Atl.  68.  (Compare  Palmer  v.  Oak- 
ey,  2  Doug.  (Mich.)  433,  47  Am.  Dec.  41. 


STATE  T.  WRIGHT. 

[26  Mont.  540,  69  Pae.  101.] 

MANDAMUS  does  not  Lie  to  Compel  a  Olexk  of  a  Oonrt  to 
Ssae  an  Alias  Ezecation  or  Order  of  Sale,  because  there  is  a  com- 
plete and  adequate  remedy  bj  motion  in  the  eaose  in  whieh  the 
derk  is  desired  to  act.     (p.  422.) 

Uandamns  to  compel  the  clerk  of  the  district  court  of  Per- 
ils connty  to  issue  an  order  of  sale.  Judgment  for  the  relator; 
defendant  appealed. 

William  M.  Blackf ord,  Stranahan  &  Stranahan^  and  Clayberg 
k  Gunn^  for  the  appellant. 

•**  MILBUBN,  J.  This  is  an  appeal  from  an  order  grant- 
ing a  writ  of  mandate.  A  decree  of  foreclosure  of  liens  and 
an  order  of  sale  under  the  decree  were,  respectively,  made  and 
issued  in  a  number  of  actions  which  had  been  consolidated. 
The  order  of  sale,  directing  several  pieces  of  property  to  be 
sold,  was  placed  in  the  hands  of  the  sheriff,  which  ofGcer  sold 
all  but  one  certain  piece  of  property.  The  order  of  sale  was 
returned  by  the  sheriff  with  a  certificate  that  all  of  the  property 
was  sold,  excepting  ***  one  piece,  upon  which  there  was  a 
certain  lien.  About  three  years  later  the  relator  demanded  of 
the  clerk  of  the  district  court  that  an  alias  order  of  sale  be 
issued  out  of  his  office,  directing  the  sheriff  to  sell  the  certain 
piece  of  property  to  satisfy  the  lien  upon  it.  The  clerk  re- 
fused, and  the  relator  prayed  for  a  writ  of  mandate  to  issue 
out  of  the  district  court,  directed  to  the  clerk,  ordering  him 
to  issue  the  alias  order  of  sale.    The  clerk  depiurred  to  the 

petition  for  the  writ.    The  demurrer  was  overniled,  and,  upoii 


iy€ 


422  Amehican  State  Eepobts,  Vol.  91.     [Montui 

hiB  failure  to  answer,  the  district  court  granted  the  writ,  tImbi 
upon  the  cleric  appealed.  The  specification  of  errors  relied  npti 
arc:  1.  That  the  court  erred  in  overruling  the  defendant's  di! 
murrer  to  the  petition  for  the  writ;  aad  2.  That  the  court  emi 
in  granting  the  writ  of  mandate. 

T}ie  only  question  necessary  for  ns  to  consider  is  one  e! 
practise,  to  wit.  Is  the  writ  of  mandate  the  proper  reniedyi 
There  has  not  been  any  appearance  on  the  part  of  the  respotkd 
ont  in  this  court.  The  question  before  ua  has  not  heaa  jn 
Bented  in  this  form  heretofore,  but  has  been  considered  aii<! 
decided  by  other  courts.  We  have  carefully  considered  tin 
lirief  of  the  appellant,  and  the  authorities  which  he  has  dtei 
in  support  of  his  contention;  and,  lieetdes,  we  have  examimd 
the  decisions  and  opinions  contra. 

Had  the  respondent  a  plain,  speedy,  and  adequate  remedy 
at  law,  without  resorting  to  a  proceeding  in  mandamus?  We 
think  that  he  had.  He  could  have  gone  into  the  court  whieb 
made  the  decree,  and,  by  proper  motion,  prayed  for  an  order 
in  the  case  upon  the  clerk  of  the  court,  directing  him  to  ism 
the  alias  order  of  sale,  without  reporting  to  a  proceeding  in 
mandamus:  Fulton  t.  Hauna,  40  C-A.  278.  The  case  of  Ql- 
routte  V.  Haley,  lOi  Cal.  i97,  38  Pac.  194,  is  one  in  which 
the  court  concluded  that  it  was  the  duty  of  the  clerk  to  issiie 
an  execution  when  requested  by  the  plaintiff,  and  granted  the 
application  for  a.  writ  of  mandamus.  In  this  case,  howerer, 
the  question  of  whetlier  or  not  mandamus  would  lie  was  not  ii 
any  wise  raised  or  discussed;  it  seeming  to  have  been  tacitly 
"^^  admitted  by  counsel  that,  if  the  judgment  were  still  ia 
force,  mandamus  might  issue;  and  the  case  cannot  be  considered 
as  being  one  in  which  the  court  intended  to  overrule  its  fonner 
holding  that  mandamus  would  not  lie,  as  decided  in  Fulton  v. 
Hanno,  40  Cal.  278. 

Being  of  the  opinion  that,  as  above  stated,  there  was  a  ^lin, 
speedy  and  odeiiuate  remedy  by  motion  in  the  case  in  the 
proper  court,  mandamus  was  not  tlni  proper  remedy.  There- 
fore, the  contention  of  the  appellant  juust  be,  and  is,  sostained. 

Reversed  and  remanded. 

Tlir  Writ  of  itandamus  will  not  li?,  it  hu  been  held,  to  eompd 
R  clerk  of  coart  to  issue,  nor  a  sherifT  to  levy  a  writ  of  ezecntJM 
fir  the  re&BOO.  that  tbe  person  entitlol  to  the  writ  hu  *  foil  mi 
adequate  remedy  at  law.  It  is  doubtful,  however,  whether  thii  t> 
tlic  prevailing  rule:  See  Wricht  v.  Boati,  127  N.  C.  M,  80  Am.  Bt 
Hep.  791.  37  3.  E.  63;  Stale  v.  Cone,  40  Fla.  409,  25  South.  871,  H 
Am.  3t.  Bep.  IGO,  and  note. 


GASES 

Zn  THX 

COURT  OP  ERR0E8  AM)  APPEALS    • 

or 

NEW  JERSEY. 


STATE  T.  BONOPIOLIO. 

[67  N.  J.  L.  239,  52  AtL  712.] 

HOMICIDE—Silliiig  Attempted  Sobber.— A  person  upon 
whom  an  attempt  to  rob  is  being  made  is  justified  in  killing  his  as- 
nilant,  without  attempting  to  nse  other  or  less  radical  means,  or  td 
letreat,  even  though  sueh  means  may  be  resorted  to  with  entire 
ttfety  to  himself,  and  would,  manifestly,  be  successful,     (p.  424.) 

HOMICIDE— Murder— Deliberation.— The  presence  of  a  spe- 
dlic  intent  to  take  life  is  not,  standing  alone,  conclusive  that  the 
homicidal  act  was  done  with  deliberation  and  premeditation,  (p. 
426.) 

HOMICIDE— Jnstiflable.— A  man  may  protect  himself  against 
assault,  even  to  the  extent  of  taking  the  life  of  his  adversary, 
when  that  act  is,  or  reasonably  appears  to  be,  necessary  to  the 
pfsservation  of  his  own  life  or  to  protect  himself  from  serious  bod- 
ily harm.     (p.  427.) 

C.  G.  Blacky  for  the  plaintiff  in  error. 

J.  E.  P.  Abbott,  for  the  state. 

•*•  GITMMERE,  C.  J.  This  writ  of  error  brings  here  for 
review  a  conviction  of  Bonofiglio^  the  defendant  below,  of 
the  crime  of  murder  in  the  first  degree,  committed  in  the 
fihooting  to  death  of  one  Bafode  di  Pasquale.  The  defense 
set  up  by  him  at  the  trial  was  that  the  homicide  was  a  justifi- 
able one  for  two  reasons:  1.  Because  the  killing  was  done 
by  him  in  resisting  a  robbery  which  the  deceased  and  his 
brother  Constantine  were  attempting  to  commit  upon  him; 
and  2.  Because  it  was  done  in  self-defense.  The  principal 
groimd  upon  which  the  validity  of  the  conviction  is  attacked 
18  that  the  trial  judge  erred  in  his  instruction  to  the  jury  upon 

(428) 


l^i.!:- 


'i 


416  Amebican  State  Bepobts^  Vol.  91.    [Monttai, 

pears  either  necessary  or  for  the  benefit  of  the  ward  tiiat  Ui 
real  estate  or  some  part  of  it  should  be  sold,  the  court  mii 
grant  an  order  therefor  (section  386).  To  obtain  an  order  t« 
sell;  to  sell  and  to  account  for  the  avails  of  the  sale  ordered,  ii 
one  of  the  general  duties  of  the  guardian.  We  think  the  sure- 
ties on  such  bond  of  the  guardian  are  liable  for  any  loss  whidi 
the  ward  may  suffer  by  reason  of  the  guardian's  failure  faith- 
fully to  execute  the  duties  of  his  trust,  among  which  are  tho« 
pertaining  to  sales  of  real  estate,  and  that  they  are,  conse- 
quently, liable  for  his  default  with  respect  to  the  proceeds  ol 
such  sales.  Section  402  of  the  probate  practise  act  (Comp. 
Stats.  1887)  authorizes  the  judge  to  require  a  new  bond  to  be 
given  by  a  guardian  whenever  he  deems  it  necessary.  He  maj 
at  any  time,  eVlen  after  sale,  require  a  new  or  additional  bond. 
These  provisions  illustrate  the  design  and  show  the  intention  ot 
the  legislative  assembly  in  enacting  section  387.  This  section 
provides  no  penalty  for  the  omission  to  require  or  give  a  speciil 
bond,  nor  does  it  declare  that  the  order  of  sale  depends  upon 
the  performance  of  such  a  condition  subsequent.  Nowhere  does 
3  the  statute  declare  that  if  a  special  bond  be  not  given  the  sale 

i|  shall  not  be  made,  or,  if  made,  shall  be  void.    It  is  not  provided 

that  the  order  of  sale  becomes  effective  only  when  such  special 
bond  is  given.  In  Stewart  v.  Bailey,  28  Mich.  *^  251,  the 
statute  required  a  special  sale  bond  and  provided  that  in  case  of 
an  action  relating  to  any  estate  sold  by  a  guardian  in  whidi  the 
ward  should  contest  the  validity  of  the  sale,  the  sale  should  not 
be  avoided  on  account  of  any  irregularity  in  the  proceedings, 
provided  it  should  appear,  among  other  things,  that  the  guardian 
gave  a  special  sale  bond.  This  was  tantamount  to  declaring  a 
sale  made  without  bond  to  be  voidable  in  such  an  action,  and 
the  court  so  held.  The  same  statutes  governed  the  decision  in 
Ryder  v.  Flanders,  30  Mich.  336.  The  interpr^tion  of  similar 
statutes  was  involved  in  McKeever  v.  Ball,  71  Ind.  398,  Wdd 
V.  Johnson  Mfg.  Co.,  84  Wis.  537,  64  N.  W.  335,  998,  Bach- 
elor  V.  Korb,  68  Neb.  122,  76  Am.  St.  Eep.  70,  78  N.  W.  485, 
and  in  Goldsmith  v.  Gilliland  (C.  C),  23  Fed.  645.  In 
Barber  v.  Hopewell,  1  Met.  (Ky.)  260,  the  statute  in  force  pro- 
vided that  if  the  guardian  failed  to  give  the  special  bond,  the 
sale  should  not  be  made,  and  "any  decree,  sale,  or  conveyance 
thereof  shall  be  void" ;  and  the  court  held  that  a  sale  of  lands 
without  giving  the  special  bond  rendered  the  sale  a  nullity  aa  to 
the  ward.  These  decisions,  owing  to  the  difference  between  our 
statutes  and  those  under  which  they  were  rendered,  are  not  in 


Oct  1901.]  HUQHBS    V.    GOODALE.  417 

point.  Other  cases  seemingly  in  favor  of  the  defendant's  posi- 
tion may  readily  be  distinguished;  for  example,  Williams  v. 
Morton,  38  Me.  47,  61  Am.  Dec.  229,  holds  that  a  conveyance 
of  land  by  the  guardian  of  a  ward,  under  order  of  a  court  of 
probate,  vests  no  title  in  the  grantee  unless  the  guardian  shall 
have  given  the  sale  bond  required  by  statute;  but  the  court  so 
held  for  the  reason  that  in  Maine  the  general  bond  of  the  guard- 
ian did  not  stand  as  security  for  the  proper  application  of  the 
proceeds  of  a  sale  of  real  estate.  Such  was  the  condition,  like- 
wise, in  Vanderburg  v.  Williamson,  62  Miss.  233.  This  is  also 
the  basis  of  the  decision  in  Lyman  v.  Conkey,  1  Met.  (Mass.) 
317. 

We  are  of  the  opinion  that  the  omission  of  the  court  to  re- 
quire, *^  and  of  the  guardian  to  give,  the  special  sale  bond  in 
the  case  at  bar  was  a  mere  irregularity  in  no  wise  affecting  or 
impairing  the  jurisdiction  of  the  court  which  ordered  and  con- 
firmed the  sale.     As  has  already  been  said,  the  general  bond  of 
the  guardian  stands  as  security  for  the  proper  application  of 
the  proceeds  of  the  sale;  the  court  was  clothed  with  power  to 
entertain  the  petition  praying  for  the  sale;  it  had  jurisdiction 
of  the  subject  matter  and  of  the  parties;  it  made  the  order  of 
Bale;  the  property  was  sold,  the  sale  was  confirmed,  and  a  con- 
veyance executed.    The  statute  omits  to  denounce  as  void,  for 
want  of  a  special  bond,  a  sale  made  pursuant  to  such  an  order. 
The  sale  was  not  void.     Many  cases  support  this  conclusion.    In 
Pahner  v.  Oakley,  2  Doug.  433,  47  Am.  Dec.  41,  the  following 
language  is  used:  *'The  last  objection  to  the  regularity  of  the 
proceedings  by  the  guardian  in  conducting  the  sale  is,  that  the 
notice  of  sale  given  was  insufficient,  and  was  given  bpfore  the 
bond  was  executed.     The  statute  requires  that,  before  making 
Bale  of  any  real  estate  by  a  guardian,  a  bond  shall  be  given  with 
suretieB,  and  thirty  days'  notice  of  the  intended  sale.     An  oath 
is  also  required.     The  requirement  in  respect  to  the  bond  and 
notice  is  contained  in  a  proviso,  and  may  be  considered  as  a 
limitation  or  restriction  upon  the  authority  to  sell.    But  does 
the  neglect  on  the  part  of  the  guardian  to  comply  with  these 
several  provisions  of  the  statute  render  the  sale  absolutely  void, 
Mid  can  it  affect  the  rights  of  an  innocent  bona  fide  purchaser, 
claiming  through  the  decree  authorizing  the  sale?     I  think  the 
rights  of  such  a  purchaser,  especially  after  the  lapse  of  so  many 
years,  are  not  to  be  disturbed  in  consequence  of  the  failure  of 
the  guardian  to  perform  acts  in  pais  subsequent  to  the  decree  of 
sale.    The  acts  of  the  guardian  are,  in  legal  contemplation,  the 

Am.   St.   Rep..  Vol.  91—27 


•> 


'^. 


418  Amebican  State  Bepobts^  Vol.  91.     [Montana, 

acts  of  the  ward^  whom  he  rep):^sents ;  and  it  cannot  now  be 
permitted  to  the  ward  to  come  in  and  allege  the  nonfeasance  of 
his  guardian,  to  disturb  a  title  derived  from  him  through  such, 
his  legally  constituted  representative.     All  that  a  purchaser  at 
judicial  sale  is  bound  to  look  to  with  a  view  to  his  protection  i« 
to  see  that  the  court  ^^^  by  whom  the  sale  was  authorized  ww 
empowered  to  make  the  decree.    If  the  court  had  the  power, 
the  failure  of  the  guardian,  as  in  this  case,  to  fulfill  certain  di- 
rections which  the  law  imposed  on  her,  should  not  and  cannot 
prejudice  the  rights  acquired  by  such  purchaser.     If  the  ward 
is  prejudiced  by  any  neglect  on  the  part  of  the  guardian  in  the 
execution  of  the  trust  reposed  in  her,  his  remedy  is  upon  her 
bond.    It  never  could  have  been  contemplated  by  the  legislature 
that  the  validity  of  a  sale  should  be  made  to  depend  upon  the 
observance  of  those  provisions  of  the  law,  which  are  in  thdr 
nature  directory  to  the  guardian.    If  such  a  rule  were  to  obtain, 
but  few  purchasers  would  be  found  at  judicial  sales;  for  but 
few  would  incur  the  hazard  of  purchasing  and  laying  their 
money  when  the  purchase  so  made  may,  at  the  disibance  of  ten 
or  fifteen  years,  be  held  void,  in  consequence  of  a  noncompliance 
by  a  guardian  with  the  requisitions  of  the  statute.     Such  a  rule 
would  also  operate  injuriously  on  the  ward,  as  upon  every  sale 
made  the  purchaser  would  take  into  account  the  hazard  he  in- 
curs.   The  best  interests  of  infants  require  that  no  nnnecessaij 
obstacles  should  be  thrown  in  the  way  of  obtaining  the  best  poe- 
sible  price  for  their  estates  when  sold.    If  a  wrong  is  done  them 
by  their  guardians,  they  have  a  full  and  ample  remedy.    In  the 
case  of  Perkins  v.  Fairfield,  11  Mass.  227,  it  was  held  that  t 
failure  by  an  administrator  to  give  the  bond  required  by  the  act 
of  Massachusetts  of  1783  before  the  sale  of  real  estate  of  his  in- 
testate would  not  invalidate  a  title  derived  through  such  admin- 
istrator." 

In  Bunce  v.  Bunco,  59  Iowa,  533,  13  N.  W.  705,  the  court 
said :  ^^The  remaining  objections — ^the  want  of  a  sale  bond,  and 
the  alleged  want  of  approval  of  the  sale — may  be  considered  to- 
gether. The  statute  provided  that,  before  a  sale  can  be  exe- 
cuted, the  guardian  must  give  security:  Eevision,  sec.  2556. 
The  statute  also  required  that  the  sale  must  be  approved:  Ee- 
vision, sec.  2558.  In  the  absence  of  a  sale  bond,  it  would  doubt- 
less be  error  to  approve  the  sale;  but,  where  jurisdiction  has 
attached,  and  the  sale  has  been  approved,  it  cannot,  we  think, 
be  successfully  attacked  in  a  collateral  proceeding  '^^  by  alleg- 
ing the  want  of  a  sale  bond.     The  question  raised  must  be 


Oct  1901.]  HUQHBB    V.   GOODALE.  419 

deemed  to  have  been  passed  on,  and  whether  correctly  or  incor- 
rectly, the  court  cannot,  we  think,  in  a  collateral  action,  in- 
quire.'*    This  was  approved  in  Hamiel  v.  Donnelly,  75  Iowa, 
93,  39  N.  W.  210.     The  same  doctrine  or  principle  is  announced 
in  Perkins  v.  Fairfield,  11  Mass.  227 ;  Lockhart  v.  John,  7  Pa. 
St  137 ;  Merklein  v.  Trapnell,  34  Pa.  St.  42,  75  Am.  Dec.  634 ; 
Dixcy  V.  Laning,  49  Pa.  St  143 ;  Poster  v.  Birch,  14  Ind.  445 ; 
Dequindre  v.  Williams,  31  Ind.  444.     In  Arrowsmith  v.  Har- 
moning,  42  Ohio  St.  254,  the  court,  in  approving  Mauarr  v.  Par- 
rish,  26  Ohio  St.  636,  said :  "The  decision  in  Mauarr  v.  Parrish, 
26  Ohio  St.  626,  was  right     The  probate  court  had  jurisdiction 
of  the  subject  matter — ^i.  e.,  it  was  clothed  with  authority  to  order 
the  sale  of  the  lands  of  a  minor  on  the  petition  of  his  guardian ; 
wad  it  is  fair  to  say  from  the  record  that  notice  of  filing  the 
petition,  provided  for  by  the  statute,  had  been  served  on  the 
minor,  before  any  order  was  made  in  the  proceeding,  in  the 
mamier  in  such  statute  provided;  and  hence,  when  the  order 
of  sale  was  made,  and  also  when  the  sale  was  confirmed,  the 
probate  court  had  not  only  jurisdiction  of  the  subject  matter, 
but  also  the  parties.     This  being  true,  the  order  of  sale  and  the 
order  of  confirmation,  although  they  may  have  been  erroneous, 
were  not  void.     ^The  judgment  or  final  order  of  a  court  having 
jurisdiction  of  the  subject  matter  and  parties,  however  errone- 
ous, irregular,  or  informal  such  judgment  or  order  may  be,  is 
valid  until  reversed  ^r  set  aside,  ....  within  which  rule  the 
orders  of  probate  courts  are  classed:  Shroyer  v.  Eichmond,  16 
Ohio  St  455.     If  the  judgment  or  order  is  erroneous,  it  may  be 
reversed;  if  it  is  irregular  or  informal,  it  may  be  corrected  on 
motion;  in  neither  case,  however,  is  it  subject  to  collateral  at- 
tack*: Wehrle  v.  Wehrle,  39  Ohio  St.  365.     True,  Mauarr  v. 
Parrish,  26  Ohio  St  636,  is  very  briefly  reported  on  the  question 
▼e  are  considering.     ^^^  But  the  strength  of  an  opinion  is  not 
to  be  determined  from  its  length.     Frequently  cases  are  dis- 
posed of  by  the  application  of  principles  so  firmly  settled  that 
the  citation  of  authorities  in  support  of  them  would  be  a  work 
of  supererogation.    The  judge  delivering  the  opinion  in*  Mauarr 
▼.  Parrish,  26  Ohio  St  636,  probably  thought  the  case  belonged 
to  that  dasB,  and  hence   the   brevity  of    the  report;    but  the 
gioimd  of  the  decision  is  clearly  indicated — ^that  is,  that^  the 
court  having  jurisdiction  of  the  subject  matter  and  parties,  the 
order  of  sale  and  the  order  of  confirmation,  though  they  mav 
have  been  erroneous,  were  not  void — and  that  is  sufficient.     The 
record  and  a  brief  on  each  side  of  the  case  have  remained  on 


420 


American  State  Bepobts^  Vol.  91.     [Montana, 


file  in  this  courts  and  we  have  no  doubt  that  the  question  re- 
ceived the  careful  consideration,  as  in  its  decision,  in  the  way 
stated,  it  received  the  concurrence,  of  every  member  of  this 
court.    And  although  cases  in  apparent  opposition  tx)  Mauarr 
v.  Parrish,  26  Ohio  St.  636,  have  been  cited,  yet  nearly  all  of 
them  are  clearly  distinguishable  from  it,  when  regard  is  had 
to  the  statutes  on  which  they  were  based;  and  Mauarr  v.  Par- 
rish, 26  Ohio  St.  636,  is  fully  supported  by  Watts  v.  Cook,  24 
Kan.  278;  Bunce  v.  Bunce,  69  Iowa,  533,  13  N.  W.  705;  Lock- 
hart  V.  John,  7  Pa.  St.  137 ;  Merklein  v.  Trapnell,  34  Pa.  St 
42;  Appeal  of  Thorn,  35  Pa.  St.  47;  Dixcy  v.  Laning,  49  Pa. 
St.  143.''  *  Watts  V.  Cook,  24  Kan.  278,  is  also  directly  in  point 
The  statute  of  Kansas  (Comp.  Laws  1879,  c  46,  sec.  15)  pro- 
vided that  before  any  guardian's  sale  of  lands  '^can  be  made 
or  executed,  the  guardian  must  give  security  to  the  satisfaction 
of  the  court,  the  penalty  of  which  shall  be  at  least  double  the 
value  of  the  property  to  be  sold,  ....  conditioned  that  he 
will  faithfully  perform  his  duties  in  that  respect,  and  account 
for  and  apply  all  moneys  received  by  him  under  the  direction 
of  the  court."    It  was  said  (Mr.  Justice  Brewer,  Mr.  Chief  Jus- 
tice Horton,  and  Mr.  Justice  Valentine,  composing  the  court) : 
*The  authorities  differ  as  to  the  validity  of  guardians'  sales  in 
the  absence  of  security.     Some  hold  such  sales  void  (WUliams 
V.  Morton,  38  Me.  47,  61  Am.  Dec.  229),  and  others  merely 
erroneous:  Lockhart  v.  John,  7  Pa.  St.  137;  *®''  Perkins  t. 
Fairfield,  11  Mass.  227 ;  Foster  v.  Birch,  14  Ind.  445.     We  are 
inclined  to  believe  the  latter  the  true  rule.     Probate  courts 
should  cautiously  observe  the  provisions  of  the  section  quoted, 
and  are  greatly  negligent  in  permitting  sales  on  mortgages  by 
guardians  without  security;  yet  we  cannot  hold  that  the  failure 
to  give  security  deprives  the  court  of  jurisdiction.     It  is  an 
error  of  a  court  having  competent  and  full  jurisdiction,  subject 
to  reversal  or  avoidance  by  due  proceedings.     The  absence  of 
the  security  did  not  render  the  proceedings  void,  but  only  ir- 
regular."   This  case  was  approved  in  Howbert  v.  Heyle,  47 
Kan.  58,  27  Pac.  116,  although  the  judge  writing  the  opinion 
entertained  the  view  that  the  decision  in  Mauarr  v.  Parrish, 
26  Ohio  St.  636,  was  against  the  great  weight  of  authority. 

We  are  satisfied,  upon  reason  as  well  aa  by  the  weight  of 
authority,  that  the  provisions  of  section  387  are  directory,  and 
hence  that  the  sale  was  not  void  because  the  guardian  omitted 
to  give  the  special  bond  required  thereby.  The  judgment  must, 
therefore,  be  reversed  and  the  cause  remanded,  with  directions 


June,  1902.]  State  v.  WwaHT.  421 

to  the  court  below  to  render  judgment  in  favor  of  the  plaintiflf, 
and  it  is  so  ordered. 


Guardian's  Sale,— A  statute  providing  that  a  guardian  licensed 
to  sell  real  estate  "shall,  before  the  sale,  give  bond  or  sureties, 
to  be  approved  by  such  judge,"  is  mandatory;  and  where  the  bond 
given  is  not  approved  by  the  judge  of  the  district  court,  the  guard- 
idol's  sale  of  his  ward's  real  estate  is  void:  Bachelor  v.  Kerb,  58 
Neb.  122,  76  Am.  St.  Rep.  70,  78  N.  W.  485;  Tracy  v.  Boberts,  88 
Me.  310,  51  Am.  St.  Bep.  394,  34  Atl.  68.  Compare  Palmer  v.  Oak- 
ley, 2  Doug.  (Mich.)  433,  47  Am.  Dec  41. 


STATE  V.  WRIGHT. 

[26  Mont.  540,  69  Pae.  101.] 

IffANDAMUS  does  not  Lie  to  Compel  a  Oleik  of  a  Court  to 
ISBiia  an  Alias  Ezecntion  or  Order  of  Sale,  because  there  is  a  com- 
plete and  adequate  remedy  by  motion  in  the  eame  in  whieh  thm 
elerk  is  desired  to  act.     (p.  422.) 

Mandamus  to  compel  the  clerk  of  the  district  court  of  Fer- 
gus county  to  issue  an  order  of  sale.  Judgment  for  the  relator; 
defendant  appealed. 

William  M.  Blackf ord,  Stranahan  &  Stranahan^  and  Clajberg 
ft  Gunn^  for  the  appellant. 

•**  MILBUEN,  J.  This  is  an  appeal  from  an  order  grant- 
ing a  writ  of  mandate.  A  decree  of  foreclosure  of  liens  and 
an  order  of  sale  under  the  decree  were,  respectively,  made  and 
issued  in  a  number  of  actions  which  had  been  consolidated. 
The  order  of  sale,  directing  several  pieces  of  property  to  be 
sold,  was  placed  in  the  hands  of  the  sheriff,  which  ofGcer  sold 
all  but  one  certain  piece  of  property.  The  order  of  sale  was 
returned  by  the  sheriff  with  a  certificate  that  all  of  the  property 
was  sold,  excepting  ***  one  piece,  upon  which  there  was  a 
certain  lien.  About  three  years  later  the  relator  demanded  of 
the  clerk  of  the  district  court  that  an  alias  order  of  sale  be 
issued  out  of  his  oflSce,  directing  the  sheriff  to  sell  the  certain 
piece  of  property  to  satisfy  the  lien  upon  it.  The  clerk  re- 
fused, and  the  relator  prayed  for  a  writ  of  mandate  to  issue 
out  of  the  district  court,  directed  to  the  clerk,  ordering  him 
to  issue  the  alias  order  of  sale.  The  clerk  depiurred  to  the 
petition  for  the  writ.    The  demurrer  was  overniled,  and,  upon 


,5 


.■t^' 


r 


422  American  Statb  Sepobts^  Vol.  91.    [Montam^. 

his  failure  to  answer^  the  district  court  granted  the  writ,  where- 
upon the  clerk  appealed.  The  specification  of  errors  relied  upoa 
are :  1.  That  the  court  erred  in  overruling  the  defendant's  de- 
murrer to  the  petition  for  the  writ;  and  2.  That  the  court  erred 
in  granting  the  writ  of  mandate. 

The  only  question  necessary  for  us  to  consider  is  one  of 
practise^  to  wit.  Is  the  writ  of  mandate  the  proper  remedy? 
There  has  not  been  any  appearance  on  the  part  of  the  respond- 
ent in  this  court.  The  question  before  us  has  not  been  pre- 
sented in  this  form  heretofore,  but  has  been  considered  and 
decided  by  other  courts.  We  have  carefully  considered  the 
brief  of  the  appellant,  and  the  authorities  which  he  has  cited 
in  support  of  his  contention;  and,  besides,  we  have  examined 
the  decisions  and  opinions  contra. 

Had  the  respondent  a  plain,  speedy,  and  adequate  remedj 
at  law,  without  resorting  to  a  proceeding  in  mandamus?  We 
think  that  he  had.  He  could  have  gone  into  the  court  which 
made  the  decree,  and,  by  proper  motion,  prayed  for  an  order 
in  the  case  upon  the  clerk  of  the  court,  directing  him  to  issue 
the  alias  order  of  sale,  without  resorting  to  a  proceeding  in 
mandamus:  Fulton  v.  Hanna,  40  Cal.  278.  The  case  of  Ga- 
routte  V.  Haley,  104  Cal.  497,  38  Pac.  194,  is  one  in  which 
the  court  concluded  that  it  was  the  duty  of  the  clerk  to  issue 
an  execution  when  requested  by  the  plaintiff,  and  granted  the 
application  for  a  writ  of  mandamus.  In  this  case,  however, 
the  question  of  whether  or  not  mandamus  would  lie  was  not  in 
any  wise  raised  or  discussed;  it  seeming  to  have  been  tacitly 
*^3  admitted  by  counsel  that,  if  the  judgment  were  still  in 
force,  mandamus  might  issue;  and  the  case  cannot  be  considered 
as  being  one  in  which  the  court  intended  to  overrule  its  former 
holding  that  mandamus  would  not  lie,  as  decided  in  Fulton  t. 
Hanna,  40  Cal.  278. 

Being  of  the  opinion  that,  as  above  stated,  there  was  a  plain, 
speedy  and  adequate  remedy  by  motion  in  the  case  in  the 
proper  court,  mandamus  was  not  the  proper  remedy.  There- 
fore, the  contention  of  the  appellant  must  be,  and  is,  sustained. 

Reversed  and  remanded. 


The  Writ  of  Mandamus  will  not  lie,  it  has  been  held,  to  compel 
A  clerk  of  court  to  issue,  nor  a  sheriff  to  levy  a  writ  of  exeeutioo, 
for  the  reason  that  the  person  entitled  to  the  writ  has  a  full  and 
adequate  remedj  at  law.  It  is  doubtful,  however,  whether  this  is 
the  prevailing  rule:  See  Wright  v.  Bond,  127  N.  C.  39,  80  Am.  8t 
Rep.  781,  37  S.  E.  65;  State  v.  Cone,  40  Fla.  409,  25  South.  279,  74 
Am.  St.  Rep.  160,  and  note. 


GASES 

Zn  THX 

COURT  OF  ERRORS  AND  APPEALS    • 

or 

NEW  JERSEY. 


STATE  T.  BONOPiaLIO. 

[67  N.  J.  L.  239,  52  AtL  712.] 

HOMIOIDE^Silliiig  Attempted  Sobber.— A  person  upon 
wliom  an  attempt  to  rob  is  being  made  is  justified  in  killing  his  as- 
lailant,  witbont  attempting  to  nse  other  or  less  radical  means,  or  t3 
Ktreat,  even  though  such  means  may  be  resorted  to  with  entire 
niety  to  himself,  and  would,  manifestly,  be  successful,     (p.  424.) 

HOBGCIDE— Murder— Deliberation.— The  presence  of  a  spe- 
dile  intent  to  take  life  is  not,  standing  alone,  conclusive  that  the 
bomicidal  act  was  done  with  deliberation  and  premeditation,  (p. 
486.) 

HOMZOIDE— Jnstiflable.— A  man  may  protect  himself  against 
sasault,  even  to  the  extent  of  taking  the  life  of  his  adversary, 
when  that  act  is,  or  reasonably  appears  to  be,  necessary  to  the 
preservation  of  his  own  life  or  to  protect  himself  from  serious  bod- 
ily harm.     (p.  427.) 

C.  G.  Black,  for  the  plaintiff  in  error. 

J.  E.  P.  Abbott,  for  the  state. 

•*•  GTJMMERE,  C.  J.  This  writ  of  error  brings  here  for 
review  a  conviction  of  Bonofiglio,  the  defendant  below,  of 
the  crime  of  murder  in  the  first  degree,  committed  in  the 
filiooting  to  death  of  one  Bafode  di  Pasquale.  The  defense 
set  vp  by  him  at  the  trial  was  that  the  homicide  was  a  justifi- 
able one  for  two  reasons:  1.  Because  the  killing  was  done 
by  him  in  resisting  a  robbery  which  the  deceased  and  his 
brother  Constantine  were  attempting  to  commit  upon  him; 
and  2.  Because  it  was  done  in  self-defense.  The  principal 
ground  upon  which  the  validity  of  the  conviction  is  attacked 
ia  that  the  trial  judge  erred  in  his  instruction  to  the  jury  upon 

(428) 


42i  Amebican  State  Reports,  Vol.  91.     [New  Jeraej 

the  subject  of  th?  right  nf  ohe  person  to  kill  another  who  i 
engaged  in  an  attempt  to  commit  a  robbery.  The  judge  h«* 
ing  first  accurately  defined  what  conBtituted,  in  law,  an  attemjl 
to  commit  the  crime  of  robbm,  proceeded  to  instruct  the  joijl 
in  addition,  as  follows:  'It  is  a  settled  principle  that  whofi 
such  a  defense — i.  e.,  ihat  the  homicide  occurred  in  reBistiBg 
an  attempt  to  commit  a  robbery — is  set  up  as  an  eicuse  tid 
taking  the  life  of  another,  the  killing  having  been  shown,  Qa 
burden  of  establishing  it  is  upon  the  accused,  who  must  ihrt 
to  the  satisfaction  of  the  jury  a  situation  and  circttmst&ncel 
under  which  such  right  to  tiike  life  could  be  lawfully  ezerdsot 
subject  to  the  right  of  the  acouBed  to  have  the  benefit  of  til 
reasonable  doitbt  after  the  whole  case  is  in.  ""  This  nieani 
that  the  defendant  mttst  show,  among  other  things,  in  justifi- 
cation, that  an  attempt  to  rob  him  was  actually  made,  and  saA 
an  attempt  as  cornea  within  the  requirements  of  the  law  n 
I  have  stated  it.  And  if  it  be  thus  established  that  the  pm- 
oner,  at  the  time  that  he  shot  the  deceased,  honestly,  and  witk- 
out  negligence  on  his  part,  believed  that  the  dec«ued  was  in 
the  process  of  committing  a  robbery  of  his  person,  in  the  seme 
that  I  hfive  defined  that  ofTimse,  which  could  only  be  resirtrf 
hy  the  dpath  of  his  assailnnt,  then  the  defendant  is  ezciued  in 
having  killed  the  deceased,  pnd  should  be  acquitted." 

The  trial  judge,  in  this  instruction  to  the  jury,  failed  to 
clearly  distinguish  between  a  homicide  done  in  resisting  u 
attempt  to  rob,  actually  in  process  of  execution,  and  one  whid 
occurs  where  the  party  killing  was  justified  in  believing  thit 
such  an  attempt  was  beinjj  made,  although  it  is  shown  subee- 
(juently  that  the  fact  was  otherwise.  In  the  former  case  the 
person  upon  whom  the  attempt  is  being  made  is  not  required 
to  retreat  or  to  use  other  niid  leas  radical  means  than  the  kill- 
ing of  his  assailant  to  render  the  attempt  abortive,  even  thoagh 
such  means  may  be  resorted  to  with  entire  safety  to  himself, 
and  would,  manifestly,  be  successful.  His  right  to  kill  is  ib- 
Bolute.  Our  statute  (Crimes  Act,  sec.  110;  Pamphlet  Ij»! 
1898,  p.  825)  declares  that  "any  person  who  shall  kill  anothff 
by  misadventure  ....  or  who  shall  kill  any  person  attempt- 
ing to  commit  arson,  biirgliiry,  murder,  rape,  robbery  or  sodomy 
shall  be  guiltless  and  totally  acquitted  and  discharged."  Sw 
does  this  enactment  inject  a  new  feature  into  the  law  of  homi- 
cide; it  is  merely  declaratory  of  the  common  law.  Hawldnti 
in  his  treatise  on  the  Plens  of  the  Crown,  thns  states  the  rale 
of  the  common  law  upon  this  subject :  "The  killing  of  a  wnag- 


Dec  1901.]  State  v.  Bonofiglio.  426 

doer  may  be  justified  in  many  cases;  as  where  a  man  kills  one 
who  assaults  him  in  the  highway  to  rob  or  murder  him;  or  the 
owner  of  a  house,  or  any  of  his  servants  or  lodgers,  etc.,  kills 
one  who  attempts  to  bum  it,  or  to  commit  in  it  murder,  rob- 
bery or  other  felony;  or  a  woman  kills  one  who  attempts  to 
raTish  her*':  1  Hawkins*  Pleas  of  the  Crown,  c.  28,  sec.  21. 
So,  too.  Hale  declares  that,  "at  common  law,  if  **■  a  thief 
had  assaulted  a  man  to  rob  him,  and  he  had  killed  the  thief 
in  the  assault,  it  had  been  se  defendendo;  but  yet  he  had  for- 
feted  his  goods  as  some  have  thought  (11  Coke  Sep.  82b), 
though  other  books  be  to  the  contrary.  But  now,  by  the  statute 
<rf  24  Henry  VIII,  chapter  6,  *if  any  person  attempts  any  rob- 
bery of  any  person  in  or  near  any  common  hi^way,  cartway, 
horseway  or  footway,  or  in  their  mansion-house,  or  do  attempt 
to  break  any  mansion-house  in  the  night-time,  and  shall  happen 
to  be  slain  by  any  person  or  persons,  etc.  (though  a  lodger  or 
serrant),  they  shall,  upon  their  trial,  be  acquitted  and  dis- 
charged in  like  manner  as  if  he  had  been  acquitted  of  the 
death  of  such  person'  '* :  Hale's  Pleas  of  the  Crown,  487. 

The  necessary  effect  of  the  instruction  complained  of  upon 
the  jury  was  to  leaye  their  minds  under  an  erroneous  impres- 
sion that  in  order  to  be  entitled  to  an  acquittal,  the  burden 
was  upon  the  prisoner,  not  only  to  establish  that  an  attempt 
was  being  made  to  rob  him,  but  that  he  was  justified  in  be- 
lieving that  such  attempt  could  only  be  thwarted  by  the  kill- 
ing of  his  assailant.  That  the  instruction  was  inaccurate  has 
been  pointed  out;  that  the  error  was  injurious  to  the  defend- 
ant is  apparent.  For  this  reason  the  conviction  must  be  set 
aside  and  a  new  trial  directed. 

Our  attention  has  been  called  to  two  other  inaccuracies  in 
the  charge  to  the  jury;  and,  although  neither  of  them  is  made 
the  subject  of  an  exception,  we  deem  it  advisable  to  refer  to 
them,  in  view  of  the  fact  that  the  case  is  to  be  retried.  It  is 
proper,  however,  in  this  connection,  to  say  that  neither  of  them 
originated  with  the  trial  judge,  but  resulted  from  his  accepting 
as  accurate  certain  rules  of  the  law  of  homicide  contained  in 
the  published  opinions  of  our  judges. 

The  first  of  these  inaccuracies  appears  in  the  instruction  of 
the  judge  concerning  the  different  degrees  of  criminal  homi- 
cide. After  stating  that,  by  our  statute,  murder  which  is  per- 
petrated by  means  of  poison,  or  by  lying  in  wait,  or  bv  any 
other  kind  of  willful,  deliberate  and  premeditated  killing,  is 
murder  in  the  first  degree,  the  court  proceeded  as  follows :  ''I 


126  American  Stats  Repobis,  Vol.  91.     [New  Jent 

instruct  you  that  the  distinguishing  feature  of  Que  crime  i 
murder  in  the  first  degree  is  the  presence  in  the  party  chu|i 
"■**  therewith  of  an  iotent  to  take  life.  No  particular  lengl 
of  time  need  intervene  between  the  formation  of  the  parpooe  i 
kill  and  its  execution.  It  is  not  necessary  that  the  delibv 
tion  and  premeditation  should  continue  for  an  hour  or  a  mil 
ute.  It  is  enough  that  the  design  to  kill  be  fully  oonceired  aa 
purposely  executed.  The  law  is  that  whereTer  tJliere  is,  i 
committing  homicide,  a  specific  intention  to  take  Ufe,  ib«v  ii 
in  the  language  of  the  statute,  a  willful,  deliberate  and  pn 
meditated  kilhng,  and  the  oSense  in  that  case  is  murder  in  tit 
first  degree." 

This  portion  of  the  charge  is  an  excerpt  from  the  opimoi 
of  the  supreme  court,  delivered  by  Chief  Justice  Green,  in  ib 
case  of  Connelly  v.  State,  36  M".  J.  L.  463,  510.  The  doctiii* 
enunciated  in  the  latter  part  of  the  excerpt,  howcTer,  did  mI 
originate  with  him,  but  was  adopted  from  the  opinion  of  Ux 
court  of  appeals  of  New  York,  in  the  case  of  People  t.  Claik, 
7  S.  Y.  385,  and  Wharton  on  Criminal  Law,  secUon  1084,  both 
of  which  he  cites. 

When  the  Donnelly  case  came  into  this  court,  on  a  review  of 
the  judgment  of  the  supreme  court,  it  was  said  that  Chid 
Justice  Green  "succinctly  and  accurately  stated  the  law  in  the 
following  words:  'To  constitute  murder  in  the  first  degret 
there  must  be  an  intention  to  take  life.  No  particular  leDgtk 
of  time  need  intervene  between  the  formation  of  the  puipoK 
to  kill  and  its  execution.  It  is  not  necessary  that  the  deUboi- 
tion  and  premeditation  should  continue  for  an  hour  or  a  mift* 
ute.  It  is  enough  that  the  design  to  kill  be  fully  conceited 
and  purposely  executed' " :  Donnelly  t.  State,  26  N,  J.  L.  616. 
It  is  to  he  oteerved  that  the  further  declaration  that  "whwerer 
there  is,  in  committing  homicide,  a  specific  inteatiim  to  take 
life,  there  is  a  willful,  deliberate  and  premeditated  kiUing. 
and  the  offense  is  murder  in  the  first  degree,"  waa  not  incladed 
in  what  was  accepted  by  tlils  court  as  an  accurate  statement  of 
the  law ;  and,  presumably,  this  omission  occurred  aiU-tsedlj. 
for  the  constniction  thus  put  upon  the  words  "dehberate"  ind 
"premeditated"  nullifies  each  of  them,  and  makes  erery  homi- 
cide murder  in  the  first  ilcgree  when  the  killing  is  willful- 
This  is  manifest,  for  the  \s-ord  "willful,"  although  broader  i» 
***  its  signification  than  '-intentional,"  embraces  the  latter  in 
its  meaning.  A  reading  of  our  statute  shows  that  the  legidfr 
tnre,  when  it  used  the  words  "deliberate"  and  "praneditated," 


kec  1901.]  State  v.  Bomofiglio.  427 

leant  that  something  more  than  the  bare  intent  to  kill  should 
adst  in  order  to  constitute  murder  in  the  first  degree^  for  it  first 
pecified  two  cases  of  homicide  in  which  both  deliberation  and 
Remeditation  are  present  to  a  marked  degree^  viz.,  by  the  ad- 
uinistration  of  poison  and  by  lying  in  wait,  and  then  declared 
iiat  murder  perpetrated  by  any  other  kind  of  willful,  delib- 
vaie  and  premeditated  killing  should  be  murder  of  the  first 
kgree.  The  specification  of  these  two  cases  is  significant;  it 
anphaaizes  the  meaning  which  the  legislature  intended  should 
be  giyen  to  the  words  "deliberate*'  and  ^'premeditated/' 

In  our  opinion,  notwithstanding  the  great  respect  we  have 
(or  the  learning  and  accuracy  of  statement  of  the  distinguished 
Jurist  who  delivered  the  opinion  of  the  supreme  court  in  the 
Donnelly  case,  the  presence  of  a  specific  intent  to  take  life  is 
ifit,  standing  alone,  conclusive  that  the  homicidal  act  was 
done  with   deliberation  and  premeditation. 

And  iJiis  seems  to  be  the  present  view  of  the  New  York  court  ^ 

of  appeals,  notwithstanding  the  decision  in  People  v.  Clark,  f 

1  N.  Y.  385.  In  the  case  of  People  v.  Majone,  91  N.  Y.  211, 
Earl,  C,  says:  *TJnder  the  statute  [defining  murder  in  the 
fcst  degree]  there  must  be  not  only  an  intention  to  kill,  but 
there  must  also  be  a  deliberate  and  premeditated  design  to  kill. 
Sxich  design  must  precede  the  killing  by  some  appreciable  space 
of  time.  But  the  time  need  not  be  long.  It  must  be  sufficient 
foT  some  reflection  and  consideration  upon  the  matter  for  the 
choice  to  kill  or  not  to  kill,  and  for  the  formation  of  a  definite 
P^iffpose  to  kilL  And  when  the  time  is  sufBtfient  for  this,  it 
matters  not  how  brief  it  is.'*  The  same  statement  of  the  law 
appears  in  the  later  case  of  People  v.  Schmidt,  168  N.  Y.  668, 
61  N.  E.  907. 

The  second  inaccuracy  appears  in  the  instruction  to  the  jury 
on  the  law  of  self-defense,  the  judge  stating  that  '^before  a 
pci^n  can  avail  himself  of  the  defense  that  he  used  a  weapon 
in  defense  of  his  life,  he  must  satisfy  the  jury  that  that  de- 
fense was  necessary  to  protect  his  own  life,  or  to  protect  him- 
8df  ***  from  such  serious  bodily  harm  as  would  give  him  rea- 
sonable apprehension  that  his  life  was  in  immediate  danger.^' 
This  instruction  was  in  accordance  with  the  rule  laid  down  in 
3  finsB.  on  Crimes,  208,  cited  in  the  opinion  of  Mr.  Justice  Depue 
in  the  case  of  Brown  v.  State,  62  N.  J.  L.  666,  708,  42  Atl.  811, 
in  discussing  the  law  of  self-defense. 

A  reading  of  the  opinion,  however,  will  show  that  the  rule 
VIS  not  accepted  by  the  learned  justice  as  entirely  accurate. 


~*  '.1 


428  American  Statb  Bepobts^  Vol.  91.     [New  Jeraej, 

for  he  follows  its  citation  almost  immediately  by  a  reference 
to  the  opinion  in  the  case  of  State  v.  Wells,  1  N.  J.  L.  424, 
1  Am.  Dec.  211,  in  which  the  rule  is  stated  to  be  that  ^no  man 
is  justified  or  excusable  in  taking  the  life  of  another  unless 
the  necessity  for  so  doing  is  apparent  as  the  only  means  of 
avoiding  his  own  destruction  or  some  great  injury.*' 

The  rule  laid  down  in  Coze  has  always  been  accepted  by 
our  courts  as  an  accurate  statement  of  the  right  to  take  life  in 
self-defense,  and  it  will  be  perceived  that  it  is  considerably 
broader  than  the  rule  laid  down  in  Bussell,  the  latter  author 
declaring  that  the  bodily  harm  which  is  threatened,  and  whicb 
a  man  is  justified  in  protecting  himself  against  by  taking  the 
life  of  his  assailant,  must  be  so  serious  as  to  cause  a  reasonable 
apprehension  that  his  own  life  is  in  immediate  danger.  This 
limitation  has  no  existence  in  New  Jersey.  Here  a  man  may 
protect  himself,  even  to  the  extent  of  taking  the  life  of  his 
adversary,  when  that  act  is,  or  reasonably  appears  to  be,  neces- 
sary in  order  to  preserve  his  own  life  or  to  protect  himsdf 
from  serious  bodily  harm. 

The  judgment  under  review  should  be  reversed. 

DIXON,  J.  My  dissent  from  the  judgment  rendered  in  Hub 
case  is  not  caused  by  any  dissent  from  the  doctrines  stated  in 
the  opinion  delivered  by  the  chief  justice.  I  concur  in  the 
principles  there  expressed. 


A  Homicide  is  Jusiiflahle  if  eommitted  in  preventinfr  tlie  perpetrt- 
tion  of  inch  felonies  as  murder,  robbery,  and  burglary:  See  tbe 
monographic  note  to  State  v.  Sumner,  74  Am.  St.  Bep.  738. 

Self-defense.— One  may  proteet  himself  against  an  assault  to  the 
extent  of  taking  life,  if  apparently  necessary  to  the  preservatioii  of 
bis  own  life,  or  save  himself  from  great  bodily  harm:  See  the  mono- 
graphic note  to  State  v.  Sumner,  74  Am.  St.  Bep.  725;  Palmer  v. 
State,  9  Wyo.  40,  87  Am.  St.  Bep.  910,  59  Pae.  7Ml 


Uarch,  1902.]  Belles  v.  Eellnsb.  429 


BELLES  V.  KELLNEB. 

[67  N.  J.  L.  256,  51  AtL  700.] 

KBOLIOENCE— Leaying  Horse  Untied  in  Street.— It  is  not 
negli^^ence  for  the  driver  of  a  quiet,  gentle  horse  to  leave  him  un- 
ticid  and  otherwise  unattended  on  the  side  of  a  public  street  or  high- 
wajy  as  he  is  accustomed  to  do  without  accident,  and  with  nothing 
of  an  unusual  character  present  to  alarm  the  horse  while  the  driver 
is  near  by  loading  goods  into  the  wagon  to  which  the  horse  is 
MUhed.     (p.  431.) 

.S.  Ealisch^  for  the  plaintiff  in  error. 

Lindabuij^  Depne  &  Faulks,  for  the  defendants  in  error. 

«»  VAN  SYCKEL,  J.  This  case  was  tried  in  the  Essex 
drcnit  court,  where  a  judgment  was  rendered  for  the  plaintiff. 
The  supreme  court  reversed  that  judgment,  and  the  judgment 
of  the  supreme  court  is  in  this  court  for  review. 

The  facts  of  the  case  are  very  concisely  stated  in  the  opinion 
of  Mr.  Justice  Fort  in  the  supreme  court,  as  follows:  "This 
was  an  action  for  damages  tried  at  the  Essex  circuit,  brought 
by  the  plaintiff  to  recover  for  an  injury  alleged  to  have  been 
occasioned  by  a  horse  of  the  defendants  left  standing  in  the 
public  street  of  the  city  of  Newark,  without  being  in  charge 
of  any  person  and  without  being  tied  or  otherwise  secured. 
The  plaintiff  is  a  letter  carrier,  and  was  in  the  habit  of  passing 
upon  his  wheel  three  or  four  times  daily  the  place  where  the 
accident  happened.  The  defendants  are  retail  merchants  in 
the  city  of  Newark,  and  their  delivery  wagonfi  are  accustomed 
to  be  backed  ^*  up  to  the  curb  line  adjoining  their  property 
on  Halsey  street;  the  wagons  are  cut-under  wagons,  and  the 
horses  are  turned  so  as  to  stand  parallel  with  the  sidewalk^  and 
left  untied  while  the  wagons  are  being  loaded.  With  these  facts 
the  plaintiff  was  familiar. 

"It  is  claimed  by  the  plaintiff  that  upon  the  day  of  his  injury 
three  of  these  ddivery  wagons  were  thus  standing  with  the 
horses  hitched  thereto,  facing  to  the  north,  parallel  with  the  east 
Bide  of  Halsey  street.  The  plaintiff  states  that  he  was  ridinc: 
at  a  speed  of  about  six  miles  an  hour;  that  he  had  passed  two  of 
the  wagons  of  the  defendants,  and  was  about  to  pass  the  third, 
when  the  horse  attached  to  it,  to  quote  his  language,  ^suddenly, 
without  any  warning  at  all,  swerved  around,  knocking  me  on 
the  right  side,  and  lifted  me  from  my  wheel,  and  threw  me  so 
I  hinded  on  the  asphalt  pavement  on  my  left  shoulder  and  head 
with  my  heels  in  the  air.' '' 


430  American  State  Beports^  Vol.  91.     [New  Jersey, 

The  suit  in  the  circuit  court  was  brought  to  recover  damages 
for  this  alleged  injury.  It  appeared  by  the  evidence  on  the  part 
of  the  defendants,  which  was  uncontradicted,  that  the  horse  was 
quiet  and  gentle,  and  accustomed  to  being  left  untied  while  the 
driver  was  a  short  distance  from  him  engaged  in  his  work ;  that 
the  defendants  had  purchased  this  horse  fourteen  or  fifteen 
years  before,  and  had  constantly  used  him  in  their  bnsines. 
During  all  that  time  it  was  the  habit  of  the  drivers  not  to  tie  or 
secure  the  horse  in  any  way  while  leaving  him  to  load  the  wagon 
or  to  deliver  parcels,  and  during  all  that  time  he  had  never  been 
known  to  run  away  or  to  move  from  the  place  where  he  was  left 
standing. 

The  testimony  on  the  part  of  the  defendants,  also,  was  Hiat 
the  driver  of  the  horse  was  upon  the  sidewalk,  about  midway 
between  the  wagon  and  the  elevator  in  defendants^  store.  That 
elevator  was  ten  or  fifteen  feet  from  the  wagon,  and  therefore 
the  driver  was  distant  from  five  to  seven  and  a  half  feet  from  fhe 
•wagon.  The  place  where  the  horse  was  standing  was  free  from 
the  presence  of  a  locomotive  or  music  passing  at  the  time^  or  any 
^^^  unusual  thing  which  could  be  supposed  to  frighten  a  gentle 
horse  accustomed  to  be  left  in  that  condition  in  the  street.  All 
the  horse  did  was  to  move  around  toward  the  center  of  the 
street  without  moving  the  wagon  from  its  position  against  the 
curbstone. 

To  entitle  the  plaintiff  to  recover  he  was  required  to  show  by 
a  preponderance  of  evidence  that  the  defendants  were  guilty  of 
some  negligent  act  which  was  the  proximate  cause  of  the  injury 
to  the  plaintiff.  In  reviewing  this  case  upon  the  alleged  error 
in  the  trial  court,  we  must  assume  that  the  testimony  on  the 
part  of  the  defense  is  true,  and  therefore  the  only  question  is 
whether  the  mere  fact  of  leaving  the  horse  untied  under  the  con- 
ditions stated  constituted  actionable  negligence. 

The  defendants'  counsel  requested  the  court  to  charge :  'It  is 
not  negligence  for  the  driver  of  a  quiet,  gentle  horse  to  leave 
him  untied  and  otherwise  unattended  on  the  side  of  a  public 
highway,  while  the  driver  is  upon  the  sidewalk  loading  goods  in 
the  wagon.'^  The  trial  court  refused  so  to  charge,  and  to  such 
refusal  exception  was  taken,  and  error  is  assigned  thereon. 

In  dealing  with  this  request  to  charge,  it  was  the  duty  of  the 
trial  court  to  consider  and  apply  it,  and  to  instruct  the  jury 
upon  it  as  applicable  to  the  facts  and  circumstances  of  the  case 
before  them,  assuming  that  the  horse  was  kind  and  gentle,  ac- 
customed to  such  use  as  before  stated,  and  that  the  driver  was 


March,  1902.]  Belles  v.  Eellner.  431 

near  him  upon  the  sidewalk^  nothing  of  an  unusual  character 
being  present  to  alarm  a  qniet,  gentle  horse. 

The  question  is  whether,  under  these  circumstances,  there 
u  anything  from  which  an  inference  can  he  drawn  that  a  man 
of  ordinary  prudence  could  have  reasonably  believed  that  injury 
might  result  from  his  act.  With  what  additional  care  he  might 
have  been  charged  if  the  horse  had  been  left  near  a  steam  rail- 
road track  where  locomotives  were  passing,  or  in  a  place  where 
fire-engines  or  bands  of  music  were  approaching,  is  not  a  ques- 
tion in  this  case.  It  ha^  been  frequently  held  that  leaving  a 
horse  untied  and  unattended  in  the  street— that  is,  with  no  one 
near  enough  to  ***®  control  him  by  voice  or  otherwise,  or  to 
leave  him  in  that  condition  in  proximity  to  a  steam  railroad,  or 
where  the  horse  is  not  gentle — ^are  circumstances  from  which  neg- 
ligence may  be  inferred :  Lynch  v.  Nurden,  1  Ad.  &  E.,  N.  S., 
422 ;  Rumsey  v.  Nelson,  68  Vt.  690,  3  Atl.  484 ;  Drake  v.  Mount, 
33  N.  J.  L.  442 ;  Hoboken  Land  etc.  Co.  v.  Lally,  48  N.  J.  L. 
601,  7  Atl.  426. 

The  facts  regarded  as  controlling  in  those  cases  are  absent 
in  the  case  before  us.  Here,  in  my  judgment,  there  was  noth- 
ing to  lead  a  reasonably  prudent  man  to  believe  that  any  greater 
care  was  necessary.  The  fact  that  the  horse  was  left  so  that  he 
could  move  a  short  distance  before  the  driver  could  stop  him 
did  not  constitute  negligence;  it  would  be  diflScult  to  tie  a  horse 
so  that  he  would  have  no  freedom  of  movement  whatever. 

As  the  court  of  appeals  said  in  Wasner  v.  Delaware  etc.  B.  B. 
Co.,  80  N.  Y.  212,  there  is  no  absolute  rule  of  law  that  requires 
one  who  has  a  horse  in  a  street  to  tie  him,  or  to  hold  him  by  the 
reins.  It  would  doubtless  be  careless  to  leave  a  horse  in  a  street 
whoUy  unattended  without  tying  him  to  something;  but  it  is 
common  for  persons  doing  business  in  streets  with  horses  to 
leave  them  standing  in  their  immediate  presence  while  they  at- 
tend to  business,  and  it  is  not  unlawful  for  them  to  do  so. 

In  Hayman  v.  Hewitt,  Peake,  170,  Lord  Kenyon  said :  "He 
▼as  performing  his  duty  while  removing  the  goods  into  the 
house,  and  if  every  person  who  suffered  a  cart  to  remain  in  the 
street  while  he  took  goods  out  of  it  was  obliged  to  employ  an- 
other to  look  after  his  horse,  it  would  be  impossible  for  the  busi- 
ness of  the  metropolis  to  go  on.'' 

A  like  view  was  taken  in  Griggs  v.  Fleckenstein,  14  Minn.  81, 
100  Am,  Dec.  199,  where  the  court  said :  "The  degree  of  care 
required  of  the  plaintiff,  or  those  in  charge  of  his  horse  at  the 
time  of  the  injury,  is  that  which  would  be  exercised  by  a  person 


432  American  State  Reports,  Vol.  91.     [New  Jersey, 

of  ordinary  care  and  prudence  under  like  circnmstances.  It 
cannot  be  said  that  the  fact  of  leaving  the  horse  nnhitehed  is  in 
itself  negligence;  whether  it  is  negligence  to  leave  a  horse  tm- 
hitched  must  depend  upon  the  disposition  of  the  horse ;  whether 
he  was  under  the  observation  and  control  of  some  ^'^  person 
all  the  time,  and  many  other  circumstances,  and  is  a  question 
to  be  determined  by  the  jury  from  the  facts  in  each  case." 

In  the  case  under  judgment  there  is  nothing  but  the  mere  fact 
of  leaving  a  gentle  horse  as  he  had  been  left  for  years  under 
the  observation  and  control  of  the  driver.  From  that  fact, 
under  the  conditions  which  must  be  conceded  to  exist  in  this 
case,  no  inference  of  negligence  can  arise.  There  are  no  cir- 
cumstances to  be  submitted  to  a  jury  under  the  situation  to 
which  the  request  to  charge  applies  from  which  a  contrary  infer- 
ence can  be  drawn.  The  trial  court  should  have  charged :  "It 
is  not  negligence  for  the  driver  of  a  quiet,  gentle  horse  to  leave 
him  untied  and  otherwise  unattended  on  the  side  of  a  public 
highway  while  the  driver  is  upon  the  sidewalk  loading  goods  on 
the  wagon." 

There  was  evidence  which  would  have  fully  justified  the  jury 
in  finding  tiiat  the  horse  was  quiet  and  gentle,  and  that  the 
driver  was  upon  the  sidewalk  loading  goods  on  the  wagon  at  the 
time  of  the  alleged  injury,  and  that  the  horse  had  been  used  for 
years  in  that  way  without  an  accident. 

The  refusal  of  the  trial  court  to  charge  as  requested  left  the 
jury  free  to  find  a  verdict  against  the  defendants,  although  the 
jury  was  convinced  that  these  facts  were  proven. 

The  judgment  of  the  supreme  court  reversing  the  judgment 
of  the  trial  court  should  be  affirmed. 

MA6IE,  C,  dissenting.  In  my  judgment,  the  trial  court 
committed  no  reversible  error  in  declining  to  charge  the  request 
in  question,  because  it  immediately  proceeded  to  give  instructioDS 
on  the  subject  which  were,  in  my  judgment,  unezceptionaL 


Leaving  a  Horse  Unhitched  in  the  street  is  not  in  itself  negligence. 
Whether  or  not  it  is,  is  a  question  to  be  determined  by  the  jury 
from  aU  the  facts.  And  in  determining  the  question,  testimoBT 
that  the  horse  was  trustworthy  to  stand  unhitched  in  the  street  i^ 
admissible:  Griggs  v.  Fleckstein,  14  Minn.  81,  100  Am.  Dec  199. 
Bee,  also,  the  note  to  Wasmer  v.  Delaware  etc  B.  B.  Co.,  36  Am. 
Kep.  612. 


ICarch,  1902.]  Fkench  v.  Robb.  483 


FRENCH  V.  ROBB. 

[67  N.  J.  L.  260,  51  Atl.  509.] 

IN  BJECTM£KT  for  Land  Occupied  by  Defendant,  his  plea 
of  not  guilty  admits  a  possession  or  claim  of  title,  not  in  subordina- 
tion to  plaintiff,     (p.  434.) 

£JECTBflENT— Pablic  Streets.— The  owner  of  the  soil  in  a 
public  street  has  such  a  right  of  possession  as  is  capable  of  sup- 
porting the  action  of  ejectment,     (p.  435.) 

EJECTMENT— Public  Streets.— The  owner  of  the  soil  in  a  pub- 
lic street  cannot  maintain  ejectment  against  a  public  corporation 
occupying  the  street  within  the  limits  of  the  public  right,     (p.  436.) 

EJECTMENT— Poles  and  Appliances  for  Lighting  Street.— 
The  owner  of  the  soil  in  a  public  street  cannot  maintain  ejectment 
<9 gainst  a  person  occupying  part  of  the  street  with  poles  and  ap- 
pliances for  lighting  it,  under  a  contract  made  by  the  city  and  au- 
thorized by  statute,  and  if  he  uses  such  appliances  wrongfully  for 
private  lighting  in  addition  to  their  public  use,  he  does  not  thereby 
lose  his  right  to  maintain  them,  but  is  liable  to  an  action  by  the 
owner  of  the  soil  for  an  injunction,  or  for  damages,     (p.  436.) 

EJECTMENT— Poles  and  Appliances  in  Street.— A  person  who 
has  rightfully  placed  poles  and  appliances  in  a  public  street  for 
the  purpose  of  lighting  it  has  no  such  right  to  the  use  of  the  street 
in  the  immediate  vicinity  for  the  purpose  of  supporting  the  poles  as 
will  support  a  plea  of  not  guilty  in  an  action  of  ejectment  by  the 
owner  of  the  soil  in  the  street,     (p.  437.) 

S.  H.  Richards,  for  the  plaintifiE  in  error. 

J.  M.  E.  Hildreth,  for  the  defendant  in  error. 

*^  DIXOX,  J.  The  plaintiff  brought  an  action  of  ejectment 
in  the  supreme  court  against  the  Delaware  and  Atlantic  Tele- 
graph and  Telephone  Company,  Joseph  Q.  Williams,  receiver 
of  the  Franklin  Electric  Light  Company,  and  Thomas  Robb, 
executor  of  William  0.  Eobb,  deceased,  for  the  possession  of  a 
plot  of  land  five  feet  square  within  the  limits  o£  Washington  and 
Jefferson  streets,  in  the  city  of  Cape  May.  The  receiver  did  not 
plead,  but  the  telegraph  company  and  Bobb  each  pleaded  "not 
guilty.^'  At  the  trial  in  the  Cape  May  circuit  of  the  issues  thus 
raised  the  facts  appeared  as  *"^  follows:  The  plaintiff,  as 
owner  of  the  land  abutting  upon  the  streets,  owned  also  the 
locus  in  quo,  subject  to  the  public  easement ;  under  an  ordinance 
«nd  a  contract  between  the  city  of  Cape  May  and  the  Franklin 
Electric  light  Company,  dated  November  30, 1897,  and  running 
to  July  23,  1902,  the  company  became  bound  to  light  the  streets 
of  the  city  with  electricity  and  to  furnish,  erect  and  maintain  all 
necessary  poles,  wires,  etc.,  the  location  and  erection  of  the  ap' 

Am.   St   Rep.,   Vol.   91—28 


434  American  State  Reports,  Vol.  91.     [New  Jersey, 

pliances  in  the  streets  being  subject  to  the  approval  of  the  city 
council;  accordingly,  a  pole  was  placed  about  the  center  of  the 
locus  in  quo  and  wires  strung  thereon.     In  June,  1899,  the  elec- 
tric company  had  passed  into  the  hands  of  a  receiver,  and,  the 
pole  being  then  in  poor  condition,  the  receiver  permitted  the 
telegraph  company  to  erect  a  new  pole  in  its  stead  and  to  string 
thereon  a  telephone  wire,  the  pole,  however,  to  be  the  property 
of  the  electric  company.    Afterward,  by  virtue  of  an  order  of 
the  court  of  chancery,  the  plant  of  the  electric  company  wa* 
turned  over  by  the  receiver  to  the  defendant  Eobb,  and  when 
this  suit  was  brought  he  was  carrying  out  the  contract  with  the 
city  for  lighting  the  streets,  and  for  that  purpose  he  was  in  pos- 
session and  use  of  the  pole  and  some  of  the  wires.     Other  wires 
on  the  pole  were  used  by  him  for  private  lighting,  and  the  tele- 
graph company  was  using  its  wire  for  telephone  purposes.     On 
this  state  of  facts  the  trial  court  directed  a  verdict  for  the  plain- 
tiff against  the  telegraph  company,  of  which  no  complaint  is  now 
made ;  and  also  directed  a  verdict  in  favor  of  Bobb  for  so  much 
of  the  land  as  was  occupied  by  the  pole,  and  instructed  the  jury 
to  find  further  in  his  favor  for  so  much  of  the  land  around  the 
pole  as  they  should  think  reasonably  necessary  to  be  used  in 
maintaining  and  taking  care  of  the  pole.     To  such  direction  and 
instruction  the  plaintiff  excepted,  and  the  jury  having  found 
Robb  not  guilty,  the  plaintiff  seeks  to  reverse  the  consequent 
judgment. 

Before  considering  the  special  aspects  of  the  controversy,  it 
may  be  helpful  to  advert  to  the  real  nature  of  an  action  of  eject- 
ment. 

^^  Originally,  it  was  designed  to  recover  only  damages  for 
the  wrongful  ejection  of  the  plaintiff  from  the  possession  of  land 
in  which  he  had  a  term  of  years ;  later,  the  recovery  was  extended 
to  the  possession  of  the  land.  To  succeed,  the  plaintiff  was  re- 
quired to  prove  a  lease  to  himself  for  a  term  of  years,  made  by 
a  lessor  entitled  to  the  possession  and  on  the  land  when  the  lease 
was  made  his  entry  under  the  lease,  and  ouster  by  the  defendant. 
The  action  was  usually  instituted  against  a  person  not  interested 
in  the  land,  called  the  casual  ejector,  who  gave  notice  of  the 
suit  to  the  actual  possessor,  and  he,  on  application  to  the  court, 
was  substituted  as  defendant.  But,  as  a  condition  of  such  sub- 
stitution, the  court  required  him  to  stipulate  that  at  the  trial 
he  would  confess  the  lease,  entry  and  ouster  alleged  by  the  plain- 
tiff, thus  leaving  the  only  fact  to  be  proved  by  the  plaintiff  the 
title  of  his  lessor.     If,  however,  the  claim  of  the  applicant  was 


March,  1902.]  French  v.  Robb.  41)5 

such  as  would  not  warrant  him  in  ousting  the  plaintiff,  and  yet 
would  justify  his  own  possession,  as  if  he  claimed  only  as  joint 
tenant  with  the  lessor,  then  he  stipulated  to  confess  ouster  of 
the  plaintiff  only  in  case  the  plaintiff  should  prove  actual  ouster 
of  the  lessor.  If,  at  the  trial,  the  plaintiff  showed  such  title  in 
his  lessor  as  made  the  confessed  ouster  wrongful,  or  if,  when 
ouster  was  only  conditionally  confessed,  he  showed  an  actual 
ouster  of  the  lessor,  or  a  title  against  which  any  possession  by 
the  defendant  was  wrongful,  then  he  recovered  damages  and 
possession;  otherwise,  his  suit  failed.  Thus  the  technical  issue 
in  the  case  was  always  whether  the  defendant  had  wrongfully 
ousted  the  plaintiff. 

Under  our  statute  the  technical  issue  remains  the  same,  al- 
though presented  by  a  different  procedure.  The  real  claimant, 
the  old  lessor,  is  the  plaintiff,  and  his  complaint  is  that  the  de- 
fendant wrongfully  deprives  him  of  possession.  The  defendant 
is  the  real  counter-claimant,  and  if  he  means  to  defend  abso- 
lutely he  pleads  not  guilty,  and  by  that  plea  admits  a  possession 
or  claim  of  title  which  should  exclude  or  oust  the  plaintiff; 
while  if  he  means  to  defend  only  for  a  possession  or  claim  of 
title  which  does  not  exclude  the  plaintiff — o.  g.,  as  joint  tenant 
with  him — ^he  must  give  notice  with  *^*^  his  plea  that  he  admits 
the  right  of  the  plaintiff  to  an  undivided  share  of  the  land,  and 
denies  actual  ouster:  Combs  v.  Brown,  29  N.  J.  L.  36.  Then  if, 
at  the  trial,  on  the  simple  plea,  the  plaintiff  shows  a  title  against 
which  the  defendant's  exclusive  possession  or  claim  would  be 
wrongful,  or,  on  the  plea  and  notice,  he  shows  an  actual  ouster 
wrongful  in  view  of  his  admitted  right,  or  a  greater  right  which 
makes  the  defendant's  possession  a  wrongful  ouster,  the  plaintiff 
will  be  entitled  to  judgment;  otherwise  not. 

In  the  present  case,  the  locus  in  quo  being  within  the  limits 
of  public  streets,  a  preliminary  question  arises,  whether  the 
plaintiff,  as  owner  of  the  soil,  has  such  a  right  of  possession  as 
is  capable  of  supporting  the  action  of  ejectment.  In  Cincin- 
nati V.  White,  6  Pet.  431,  Mr.  Justice  Thompson  urged,  with 
much  force,  the  negative  of  this  query ;  but  in  Xew  Jersey  the 
affirmative  must  be  regarded  as  settled  by  the  decision  of  this 
court,  reversing  the  judgment  of  the  supreme  court,  in  Wright 
V.  Carter,  27  N.  J.  L.  76 .  See  State  v.  Laverack,  34^  N".  J.  L. 
207 ;  Burnet  v.  Crane,  56  N.  J.  L.  288,  44  Am.  St.  Eep.  395,  28 
Atl.  691. 

The  plea  of  the  defendant  Robb  is  simply  "not  guilty'' — i.  o., 
that  he  has  a  possession  or  claim  which  rightly  excludes  the 


436  American  State  Bepobts,  Vol.  91.     [New  Jeisey, 

owner  of  the  soil.  It  is  established^  by  express  decision,  in  this 
state  that  the  public  corporation,  which  represents  the  public 
right  to  the  use  of  streets,  may  maintain  ejectment  against  any 
person,  even  the  owner  of  the  soil,  who  occupies  a  street  in  a 
manner  inconsistent  with  the  public  use:  Hoboken  Land  etc.  Co. 
V.  Hoboken,  36  N.  J.  L.  540.  From  this  it  logically  follows  that 
the  owner  of  the  soil  cannot  maintain  ejectment  against  such 
public  corporation  occupying  the  street  within  the  limits  of  the 
public  right.  This  was  so  adjudged  by  the  federal  supreme 
court,  in  Cincinnati  v.  White,  6  Pet.  431,  and  Barclay  v.  Howell, 
(>  Pet.  498,  cases  which  are  cited,  with  evident  approval,  by  Mr. 
Justice  Depue,  in  Hoboken  Land  etc.  Co.  v.  Hoboken,  36  N.  J. 
L.  540.  The  same  exemption  from  successful  attack  must  be 
conceded  to  the  agencies  through  which  the  public  corporation 
exercises  its  rights,  whether  those  agencies  be  designated  by  *•* 
employment  or  by  contract,  for  its  rights  would  be  fruitless  if 
they  could  not  be  used  to  protect  the  individuals  through  whom 
they  may  be  lawfully  exercised  and  without  whose  intervention 
the  corporation  could  not  enjoy  them. 

One  of  the  rights  belonging  to  the  corporation  is  to  occupy 
the  streets  with  poles  and  wires  for  public  lighting.  This  right 
was  expressly  conferred  by  the  act  of  May  22,  1894  (Pamphlet 
Tjaws,  p.  477),  according  to  which  it  may  be  exercised  either 
directly  by  the  city  itself  or  indirectly  through  parties  contract- 
ing with  the  city,  and  is  not  conditioned  upon  consent  of  the 
owner  of  the  soil:  Meyers  v.  Hudson  County  Electric  Co.,  63 
N.  J.  L.  573,  44  Atl.  713.  When  the  contract  under  which  Bobb 
claims  was  made,  this  statute  was  in  complete  force,  and  al- 
though "An  act  concerning  townships,**  approved  March  24, 
1899  (Pamphlet  Laws,  pp.  372,  476),  attempts  to  repeal  it,  yet, 
as  the  title  of  this  act  limits  its  operation  to  townships,  the  stat- 
ute still  remains  effective  in  cities. 

So  far,  therefore,  as  Bobb  occupied  the  streets  with  poles 
and  other  appliances  for  public  lighting,  and  thereby  excluded 
the  plaintiff,  the  ouster  was  not  tortious,  and  a  verdict  of  not 
guilty  was  properly  directed.  But  the  defendant  pleaded  not 
guilty  for  the  entire  locus  in  quo,  and  we  must  consider 
whether,  outside  of  the  space  occupied  by  these  appliances  for 
public  lighting,  he  has  shown  a  right  to  the  exclusive  posses- 
sion which  his  plea  sets  up. 

No  color  of  right  is  shown  for  maintaining  apparatus  for 
private  lighting,  and  as  to  the  wire  strung  for  that  purpose  the 
defendant  was  clearly  guilty.    The  plaintiff  urges  that  the 


March^  1902.]  Fbbnch  v.  Bobb.  437 

wrongful  use  of  the  pole  to  sustain  this  wire  should  he  visited 
with  the  forfeiture  of  the  entire  right ;  hut  we  find  no  ground 
for  such  contention.  Such  a  judgment  would  inflict  a  loss  upon 
the  puhlic  for  the  private  fault  of  one  of  its  instruments.  The 
plaintiff  does  not  need  such  rigor  for  his  protection.  So  far  as 
the  appliances  are  not  used  for  puhlic  purposes,  this  suit  will 
result  in  abating  them ;  so  far  as  those  required  for  public  pur- 
poses have  been  wongfully  used,  the  plaintiff  can  he  compen- 
sated hv  an  action  on  the  case  for  damages,  and  equity  will  re- 
strain their  misuse  in  the  future. 

*•**  There  remains  for  consideration  the  defendant's  claim 
to  the  land  around  the  pole  and  appliances,  found  by  the  jury 
to  he  necessary  for  his  use  in  maintaining  them. 

The  right  to  use  that  ]and  for  such  a  purpose  did  not  justify 
the  exclusive  possession  admitted  hy  the  plea.  It  was  only  the 
right  enjoyed  hy  every  member  of  the  community  while  in  ac- 
tual use  of  the  street.  It  was  discontinuous,  and  lacked  the 
permanent  and  exclusive  characteristics  which  are  necessary  to 
support  or  defend  an  action  of  ejectment.  As  a  personal  right 
it  was,  in  essence,  like  a  private  right  of  way,  which  cannot 
constitute  a  defense  in  an  action  of  ejectment  brought  by  the 
owner  of  the  soil:  Burnet  v.  Crane^  56  N.  J.  L.  285,  44  Am. 
St.  Hep.  395,  28  Atl.  591. 

The  proper  conduct  of  the  trial  at  the  circuit  required  a  ver- 
dict that  the  defendant  .Robb  was  not  guilty  as  to  that  part  of 
the  locus  in  quo  which  was  actually  occupied  by  the  pole  and 
other  appliances  used  for  public  lighting,  and  that  as  to  the 
residue  he  was  guilty. 

The  present  judgment  should  be  reversed  and  a  venire  de 
novo  awarded. 


The  Ovoner  of  the  Fee  in  a  Puhlic  Street  or  hijjrhwar  may  maintain 
trespass  against  any  person  committing  a  wrong  therein:  See  the 
note  to  Hayhew  v.  Norton,  28  Am.  Dec.  305;  Huffman  v.  State,  21 
Ind.  App.  449,  69  Am.  St.  Rep.  368,  52  N.  E.  713.  And  in  a  proper 
ease  he  may  bring  ejectment  against  those  encroaching  thereon: 
Bee  the  note  to  Mavhew  v.  Norton,  28  Am.  Dec.  304,  305;  Smeberg 
V. .  Cunningham,  96  Mich.  378,  35  Am.  St.  Rep.  613,  66  N.  W.  73; 
as  where  a  telegraph  corporation  constructs  and  maintains  its  line 
upon  the  highway  without  his  consent  and  without  compensating 
him:  Postal  Tel.  Cable  Co.  v.  Eaton,  170  HL  5,  13,  62  Am.  St.  Rep. 
890,  49  N.  E.  365. 


438  American  Statb  Bepobts,  Vol.  91.     [New  Jersey, 


CAMPBELL  V.  MANUFACTUEEE'S  NATIONAL  BANK. 

[67  N.  J.  L.  301,  61  AtL  497.] 

AOEKOT— Bank  OasUer.^Tlie  same  rules  of  agency  applj 
to  bank  eashiers  as  to  other  persons  ocenpying  fiduciary  relatioasL 
(p.  439.) 

AOENOT.— Ko  Person  can  Legally  Act  as  an  agent  in  a  trans- 
action in  which  he  has  an  interest  or  to  which  he  is  a  party  on  tk« 
side  opposite  to  his  principal,     (pp.  439,  440.) 

^  AOENOT—Bank  CasMers.— A  person  cannot  deal  with  a  bank 
cashier  as  an  individual  in  securing  a  draft,  and  then  claim,  after 
the  draft  is  delivered,  that  it  has  become  the  transaction  of  th« 
bank.     (p.    440.) 

AOENOY.^To  Make  Acts  of  Bank  Cashiers  Valid  as  against 
their  banks,  the  transaction  must  be  a  bank  transaction  made  by 
the  cashier,  within  his  express  or  implied  authority  in  the  conduct 
of  the  business  of  the  bank,  and  so  long  as  a  person  deals  with  the 
cashier  in  a  matter  wherein,  as  between  himself  and  the  cashier, 
he  is  dealing  with,  or  has  a  right  to  believe  he  is  dealing  with,  the 
bank,  the  transaction  is  obligatory  upon  the  latter,     (p.  440.) 

BAKES  AND  BANKINO—Power  of  Bank  Cashiers— Presmni^ 
tions. — While  a  bank  cashier  is  presumed  to  have  all  the  authority 
he  exercises  in  dealing  with  executive  functions  legally  within  the 
powers  of  the  bank,  or  which  are  usually  or  customarily  done,  or 
neld  out  to  be  done  by  such  officer,  the  test  of  the  transaction  is 
whether  it  is  with  the  bank  and  its  business,  or  with  the  cashier  per- 
sonally and  in  his  business.  As  to  the  former,  all  presumptions  are 
in  favor  of  its  validity  as  against  the  bank.  In  the  latter  no  such 
presumptions   are  indulged,     (p.  440.) 

BANES  AND  BANEINO— Transactions  with  Cashier.— If  a 
transaction  between  an  individual  and  a  bank  cashier  is  known  to 
the  individual  to  be  a  personal  transaction,  and  not  one  for  the  bank, 
the  burden  of  proof  is  upon  him  to  establish  that  the  act  of  the 
cashier  thus  done  for  his  individual  benefit  was  authorized  or  ratified 
by  the  bank.     (p.  440.) 

BANES  AND  BANEINO— Fraudulent  Acts  of  Cashier— Batt- 
flcation  and  EstoppeL— If  a  bank  gives  its  cashier  authority  to 
draw  drafts  for  his  own  account  on  its  funds,  or  ratifies  his  acts  in 
known  transactions  which  he  openly  conducts,  honestly  or  dishon- 
estly, it  is  estopped  to  say  that  a  similar  transaction,  secretly  and 
by  concealment  conducted  by  him,  does  not  bind  it,  but  such  es- 
toppel and  ratification  does  not  arise  from  concealed  dishonest  trans- 
actions by  the  cashier  unknown  to  the  bank.     (p.  442.) 

BANES  AND  BANEINO— Fraudulent  Acts  of  Cashier— Bati- 
flcatlon.— Failure  on  the  part  of  the  officers  and  directors  of  a  bank 
•  to  detect  the  concealed  and  fraudulent  acts  of  its  cashier,  which  an 
inspection  of  the  records  and  books  of  the  bank  with  ordinary  care 
would  not  have  disclosed,  will  not  work  a  ratification  of  such  dis- 
honest  acts.     (p.   444.) 

J.  Coult,  F.  ChUd,  and  J.  A.  Miller,  for  the  plaintiff  in  error. 

B.  V.  Lindabury  and  S.  Depue,  for  the  defendant  in  error. 

•^^  FORT,  J.     This  is  an  action  by  the  receiver  of  the  Mid- 
dlesex County  Bank  to  recover  back  money  paid  to  the  plaintiff 


Mar.  1902.]    Campbell  v.  Mahufactdsbbb'  Nat.  Bank.    489 

in  error  by  George  M.  Valentine,  who  was,  at  the  time  of  the 
payment,  cashier  of  said  bank.  The  payment  was  made  by 
Valentine  in  satisfaction  of  his  individual  debt.  The  method 
of  payment  was  by  a  draft  of  the  Middlesex  County  Bank, 
drawn  on  the  National  Park  Bank  of  New  York,  its  corre- 
spondent, and  signed  "Qeorge  M.  Valentine,  Cashier.'*  The 
draft  thns  issued  was  drawn  to  the  order  of  John  A.  Miller,  at- 
torney, and  delivered  to  him  for  the  plaintiff  in  error. 

The  transaction  out  of  which  the  indebtedness  of  Valentine 
to  the  plantiff  in  error,  the  Manufacturers'  National  Bank,  arose 
was  the  discounting  of  a  note,  made  by  a  firm  of  which  Valen- 
tine was  a  member,  and  indorsed  by  Valentine  individually  and 
others.  This  note,  thus  discounted,  fell  due  and  was  protested, 
and  afterward  judgment  was  obtained  thereon  against  the  mak- 
ers thereof  and  Valentine  individually.  The  Middlesex  County 
Bank  had  no  interest,  directiy  or  indirectly,  in  the  note  or  its 
proceeds. 

All  these  facts  were  known  to  the  plaintiff  in  error,  both  be- 
fore and  after  the  judgment.  The  judgment  was  entered  March 
4, 1899.  Mr.  Miller,  the  attorney  of  the  plaintiff  in  error,  after 
several  attempts,  found  Valentine  at  the  bank,  in  Perth,  Amboy, 
on  March  13,  1899.  Payment  of  the  judgment  was  demanded, 
and,  after  some  talk,  Valentine,  in  the  presence  of  Miller,  took 
the  draft-book  of  the  Middlesex  County  Bank,  *®*  containing 
blank  drafts  of  tiiat  bank  on  the  National  Park  Bank  of  New 
York,  and  filled  out  a  draft  of  the  Middlesex  County  Bank  upon 
the  National  Park  Bank  of  New  York,  for  the  sum  of  seven 
thousand  five  hundred  dollars,  to  the  order  of  J.  A.  Miller,  at- 
torney as  aforesaid,  and  signed  it  ^'George  M.  Valentine,  Cash- 
ier,'* and  handed  this  draft  to  Miller.  The  draft  thus  delivered 
to  Miller  was  not,  and  did  not  pretend  to  be,  anything  other  than 
the  draft  of  the  Middlesex  County  Bank,  made  by  its  cashier,  in 
his  official  capacity,  against  the  funds  of  the  Middlesex  County 
Bank  deposited  in  the  National  Park  Bank  of  New  York,  and 
was  intended  by  Valentine,  and  known  by  Miller,  to  be  issued 
for  the  payment  of  the  debt  of  George  M.  Valentine  as  an  indi- 
viduaL  With  all  of  these  facts  the  plaintiff  in  error,  by  its 
officers  and  its  attorney,  was  familiar. 

There  is  no  reason  which  is  founded  on  principle  that  can  be 
given  for  not  applying  the  same  rule  of  agency  to  a  cashier  as 
to  other  persons  occupying  fiduciary  relations.  No  person  can 
act  as  an  agent  in  a  transaction  in  which  he  has  an  interest,  or 
to  which  he  is  a  party,  on  the  side  opposite  to  his  principaL 


440  American  State  Bepobts^  Vol.  91.     [New  Jersey^ 

This  must  be  so  where  the  person  dealing  with  the  agent  has 
knowledge  of  the  facts. 

A  person  cannot  deal  with  a  cashier  of  a  bank  as  an  individual 
in  securing  a  draft,  and  claim  after  the  draft  is  delivered  it  has 
become  the  transaction  of  the  bank.  To  make  the  acts  of  ihe 
cashier  valid,  the  transaction  in  which  the  draft  is  delivered 
must  be  a  bank  transaction,  made  by  the  cashier,  witiiin  his  ex* 
press  or  implied  authority,  in  the  conduct  of  the  business  of  the 
bank.  So  long  as  a  person  deals  with  the  cashier  in  a  matter 
wherein^  as  between  himself  and  the  cashier,  he  is  dealing  with, 
or  has  a  right  to  believe  he  is  dealing  with,  the  bank,  the  trans- 
action is  obligatory  upon  the  bank. 

The  cashier  ia  presumed  to  have  all  the  authority  he  exercises 
in  dealing  with  executive  functions  legally  within  the  powers 
of  the  bank  itself,  or  which  are  usually  or  customarily  done,  or 
held  out  to  be  done,  by  auch  an  officer.  But  the  test  of  the  trans- 
action is  whether  it  is  with  the  ^^^  bank  and  its  business,  or 
with  the  cashier  personally  and  in  his  business:  Claflin  v.  Farm- 
ers' Bank,  25  N.  Y.  293 ;  Moores  v.  Citizens'  Nat.  Bank,  111  U. 
S.  156.  As  to  the  former,  all  presumptions  are  in  favor  of  its 
regularity  and  binding  force.  In  the  latter^  no  such  presump- 
tion arises ;  in  fact,  upon  proof  that  it  was  known  to  the  claimant 
to  be  an  individual  transaction,  and  not  one  for  the  bank,  the 
burden  is  cast  upon  the  claimant  to  establish  by  proof  that  the 
act  of  the  cashier  thus  done,  for  his  own  individual  benefit,  was 
authorized  or  ratified. 

These  are  fundamental  principles  applicable  to  principal 
and  agent  in  every  transaction  arising  out  of  that  relation: 
Bank  of  New  York  v.  American  Dock  etc.  Co.,  143  N. 
Y.  559,  564,  38  N.  E.  713 ;  Manhattan  Life  Ins.  Co.  v.  Forfy- 
second  etc.  Ferry  Co.,  139  N.  Y.  146,  151,  34  N.  B.  776 ;  Shaw 
V.  Spencer,  100  Mass.  382,  390,  394,  97  Am.  Dec.  107,  1  Am. 
Rep.  115 ;  Petrie  v.  Clark,  11  Serg.  &  R.  377,  14  Am.  Dec.  636 
(Chief  Justice  Gibson) ;  Bochester  etc.  Bead  Co.  v.  Paviour, 
164  N.  Y.  281,  286,  58  N.  E.  114;  Huffcut  on  Agency,  2d 
ed.,  110. 

Little  contention  was  made  in  this  case,  even  by  the  counsel 
of  the  plaintiff  in  error,  against  the  rule  above  stated,  although 
some  effort  was  made  to  distinguish  between  the  rule  applicable 
to  principal  and  agent,  as  applied  to  a  cashier,  as  contradistin- 
guished from  other  agency  relations,  but  we  are  unable  to  ac- 
cept such  a  theory  or  to  hold  the  rule  to  be  any  broader  in  the 
case  of  a  cashier  than  as  above  declared. 


Mar.  1902.]    Campbell  v.  Manufactubbbs'  Nat.  Bake.    441 

Strong  contention  was  made  by  the  plaintiff  in  error  for 
the  light  to  retain  the  fund  received  for  Valentine's  individual 
dd>t  from  the  proceeds  of  the  draft  of  the  Middlesex  Gonnty 
Banky  upon  the  gronnds:  1.  That  Valentine  was  authorized 
to  issue  such  drafts;  and  2.  That  if  he  were  not  so  author- 
ized,  his  act  in  this  case  would  be  deemed  ratified^  through  the 
knowledge  of  the  bank's  oflScers,  obtainable  from  the  draft  it- 
self or  the  records  of  the  bank,  from  which  they  actually  knew, 
or  were  chargeable,  in  the  exercise  of  ordinary  care,  with  know- 
ing  the  transaction. 

The  case  is  utterly  devoid  of  proof  that  Valentine  was  ever 
authorized  by  anyone  to  draw  drafts  of  this  character  for  his 
indiTidual  account  against  the  funds  of  the  bank  with  its  '^^ 
Kew  Tork  correspondent.  It  does  appear  that  he  had  over- 
drawn his  account  and  borrowed  money  on  questionable  securi- 
ties, but  those  transactions  are  stated,  by  the  letters  to  the 
banking  department,  to  be  ones  with  whidi  the  directors  were 
familiar,  and  about  which  the  directors  knew,  and  for  which 
fhey  held  securities,  and  in  which  the  directors  only  differed 
with  the  banking  department  as  to  the  sufficiency  of  the  se> 
curity  they  had  required  Valentine  to  pledge  for  those  loans. 

There  is  no  proof  that  those  loans  were  not  made  in  the 
usual  course;  nor  that  the  directors  authorized  or  acquiesced 
in  the  use  of  the  bank's  funds  by  Valentine  before  or  with- 
out their  knowledge;  nor  that  Valentine,  in  any  of  the  trans- 
actions out  of  which  these  obligations  arose,  had  ever  dealt 
with  any  person  to  create  his  indebtedness  to  the  bank  before 
the  bank  directors  knew  of  it  and  had  authorized  his  use  of  the 
funds;  nor  is  there  anything  to  show,  in  any  of  those  letters  to 
the  banking  department  by  the  president  of  the  bank,  or  from 
that  department  to  the  bank,  that  the  directors  knew  he  was 
using  the  funds  of  the  bank,  without  their  knowledge  or  con- 
sent, in  his  individual  transactions,  or  that  he  had  paid  a 
single  individual  debt  before  they  were  advised  of  it  and  had 
received  security  from  him  for  the  money  which  he  proposed 
to  use  to  pay  it.  It  would  have  been  an  entirely  different 
situation  if  he  had  been  in  the  habit  of  drawing  similar  drafts 
against  the  bank's  funds  for  his  individual  purposes  before  con- 
sulting the  president  or  the  directors,  and  they  had  known  of 
or  subsequently  approved  such  acts.  That  would  have  made 
a  case  within  the  principle  ruled  in  Goshen  Bank  v.  State, 
hereafter  considered,  but  that  is  not  this  case.  Whatever 
acts  are  proven  to  have  been  done  by  Valentine,  without  the 
approval  of  the  president  or  directors  first  obtained,  were 


442  Ahebioak  State  Bepobts^  Vol.  91.    [New  Jenej, 

admittedly  concealed  transactions — ^not  open  ones — ^frandnknt 
acts.  It  is  not  pretended  that  a  single  one  of  the  thirteen 
drafts  alleged  to  be  fraudulent^  out  of  over  sixteen  thousand 
honest  ones,  was  actually  authorized  or  ratified  by  the  prerident 
or  the  directors;  nor  is  it  pretended  ***•  that  a  single  opca 
transaction  of  that  kind  was  known  to  or  ratified  by  them. 

It  is  not  concealed  dishonest  transactions  which  made  a 
ratification,  but  open  ones,  of  a  character  similar  to  the  alleged 
dishonest  ones:  Oale  y.  Chase  Nat.  Bank,  104  Fed.  214.  If 
a  bank  gives  its  cashier  authority  to  draw  drafts  for  his  own 
account  on  its  funds,  or  ratifies  his  acts  in  known  transactions 
which  he  openly  conducts,  honestly  or  dishonestly,  it  will  not 
be  permitted  to  say  that  a  similar  transaction  which  he  secretly 
and  by  concealment  conducts  does  not  bind  it.  The  distinction 
is  just  here.  This  was  the  basis  of  the  dedsion*  of  the  New 
York  court  of  appeals,  in  Goshen  Nat  Bank  v.  State,  141  N. 
Y.  379,  36  N.  E.  316,  upon  which  the  plaintiff  in  error  so 
strenuously  relies.  The  opinion  in  that  case  cites  the  facts  veiy 
meagerly.  Through  the  courtesy  of  the  present  chief  judge 
of  that  court  I  have  had  before  me  all  the  proofs,  findings  and 
exhibits  upon  which  that  case  was  decided,  and  an  examination 
of  the  record  fully  sustains  Judge  Peckham  in  saying  that  iht 
cashier  there  ^Hiad  the  right  to  draw  a  draft  on  the  correspcmd- 
ing  bank  of  the  claimant  for  himself  upon  the  same  terms  that 
he  had  to  draw  a  draft  for  a  stranger.''  Henry  Bacon,  tbe 
president,  testified  (at  page  9  of  the  record)  that  '%e  [flie 
cashier]  had  a  right  to  draw  a  draft  on  the  Importers'  and 
Traders'  National  Bank  for  himself  upon  the  same  terms  that 
he  would  draw  for  a  stranger."  Qeorge  Grier,  the  assistant 
cashier  of  the  bank,  testified  that  he  was  well  acquainted  with 
the  cashier's  methods  of  drawing  drafts  in  all  his  transactions 
as  coimty  treasurer,  for  more  than  a  year  prior  to  the  drawing 
of  the  fraudulent  draft  in  controversy,  and  that  during  that 
period  Murray  ^Vas  accustomed  to  draw  checks  as  connty  treas* 
urer  against  the  funds  in  his  hands  as  such  treasurer,  on  de- 
posit in  the  Ooshen  National  Bank,  payable  to  the  Gk)shen  Na- 
tional Bank,  in  various  amounts,  and  then,  as  cashier  of  said 
Ooshen  National  Bank,  to  draw  drafts  for  a  similar  amount 
on  the  Importers'  and  Traders'  National  Bank  of  the  City  of 
New  York,  against  the  fimds  of  the  Ooshen  National  Bank  on 
deposit  with  said  ^^  Importers'  and  Traders^  National  Bank, 
placing  said  drafts  to  his  credit  in  said  Importers'  and  Traders' 
National  Bank  as  county  treasurer.'' 


liar.  1902.]     Campbell  v.  Manufactorsbb'  Nat.  Bank.    448 

There  was  no  dispute,  tmder  the  facts  in  that  case,  that 
piactically  all  the  time  that  Murray^  the  cashier^  was  county 
treasurer  he  had  used  the  bank's  drafts  for  his  own  purposes^ 
8s  snch  treasurer^  to  transfer  funds  to  New  York^  with  the 
knowledge  of  the  president^  assistant  cashier  and  directors. 
He  was  also  permitted  to  draw  such  drafts  to  himself  or  a 
stranger,  in  county  treasurer  matters^  with  the  same  freedom 
that  he  would  issue  such  a  draft  to  any  customer  of  the  bank. 
They  had  allowed  him  to  treat  himself,  in  his  ofiBcial  relation 
of  county  treasurer,  in  the  matters  of  issuing  cashier's  checks 
or  drafts,  for  county  treasurer's  account,  as  he  was  permitted 
to  do  for  any  other  depositor  or  other  person  dealing  with 
the  bank  in  the  ordinary  course  of  business. 

That  case  was,  upon  its  facts,  in  exact  conformity  with  the 
principle  here  sustained,  and,  upon  all  the  cases,  under  the  facts 
proven,  was  rightly  decided.    Judge  Peckham  himself  expressly 
distinguishes  the  Goshen  Bank  case  from  cases  like  the  one  before 
us  in  Bank  of  New  York  v.  American  Dock  etc.  Co.,  143  N.  Y. 
559,  564,  38  N.  E.  713.     Nor  will  the  facts  in  this  case  jus- 
tify a  finding  of  constructive  notice  to  the  directors  of  the  Mid- 
dlesex County  Bank,  arising  from  a  failure  to  know  what  they 
would  have  known  had  they  exercised  ordinary  care,  as  to  the 
draft  issued  by  Valentine  to  Miller.    If  the  draft  had  been 
drawn  to  Valentine's  own  order,  it  would  have  been  discover- 
c^ble  upon  inspection,  and  some  question  might  then  have  arisen. 
This  draft  was  drawn  to  "John  A.  Miller,  Attorney,'*  and  was 
regularly  entered  on  the  stub  of  the  draft-book,  and  would  ap- 
pear p^ectly  regular  in  the  account  current  when  returned 
by  the  National  Park  Bank,  with  the  vouchers,  at  the  end  of 
the  month.    A  bank  may  issue  its  draft  to  anyone  who  pays 
for  it.     Is  it  to  be  said  that  a  bank  will  be  held  to  ratify  a 
draft  fraudulently  issued  by  its  cashier,  though  regular  on 
its  face,  because  the  other  officers  of  the  bank  do  not  trace 
through  the  books  of  the  bank  to  see  to  what  account  it  is 
^^  charged?    Upon  the  face  of  the  draft  no  one  but  Miller, 
the  attorney,  and  the  officers  of  the  plaintiff  in  error,  besides 
Valentine,  could  have  known  the  draft  was  for  his  individual 
debt.  # 

That  which  is  discernible  by  inspection,  upon  the  face  of  a 
draft  or  record,  and  which  needs  no  investigation  to  show  it 
to  be  out  of  the  ordinary,  and  therefore  speaks  for  itself,  will, 
no  doubt,  raise  an  implied  or  constructive  ratification,  if  seen 
by  officers  or  directors.  And  failure  to  exercise  ordinary  care 
in  checking  off  vouchers  or  inspecting  records  by  bank  officers 


444  AiiSBiOAN  State  Bepobts,  Vol.  91.     [New  Jeneg 

will^  no  donbt^  also  raise  such  a  ratification^  if  it  appears  that, 
if  they  had  so  examined  the  same^  a  simple  inspection  thereof 
would  have  shown  the  facts. 

They  are  undoubtedly  chargeable  with  the  things  they  know, 
or  would  have  known  by  the  exercise  of  ordinary  care,  and  are 
estopped  from  denying  their  responsibility  thereon  unless  re- 
pudiated within  a  reasonable  time  after  such  knowledge  or 
imputed  knowledge.  But  the  facts  in  this  case^  as  to  the  draft 
in  question^  do  not  bring  it  within  this  rule. 

All  the  points  here  determined  are  fully  discussed  by  the 
opinion  in  Lamson  v.  Beard^  decided  in  the  United  States  cir- 
cuit court  of  appeals,  and  the  same  conclusion  reached  as  here: 
Lamson  v.  Beard,  94  Fed.  30. 

Under  all  the  cases  and  upon  principle^  under  the  facts  in 
evidence,  the  trial  court  was  right  in  directing  a  yerdict  for 
the  plaintiff,  and  the  judgment  of  the  supreme  court  entered 
on  ttiat  verdict  is  affirmed. 

OABBISON,  J.,  concurring.  I  have  not  been  able  to  see 
how  one  agent  of  a  bank  could  confer  general  authority  upon 
another  agent  of  the  bank  to  transfer  the  property  or  (sedits 
of  the  bank  to  the  latter's  individual  creditors  in  payment  of 
his  personal  debts.  If  express  authority  to  this  effect  had  been 
shown,  it  would  not,  in  my  judgment,  have  altered  the  case. 
Hence,  of  course,  I  do  not  consider  that  it  was  error  to  refuee 
to  permit  the  jury  to  determine  whether  or  not  there  was  im* 
plied  authority  to  the  same  end.  For  this  reason  I  shall  vote 
to  affirm  the  judgment  of  the  trial  court.  I  concur  in  the  view 
of  Mr.  Justice  Fort  that  there  was  no  proof  of  ratification  of 
this  particular  transaction. 

Mr.  Justice  Dixon  Bissentad  on  the  ground  that  the  evidenM 
produced  at  tlie  trial  made  it  a  question  necessarily  to  be 
eubmitted  to  the  jury  whether  or  not  the  aet  of  the  eashier  wm 
within  the  authority  conferred  upon  him  by  the  board  of  direeton 
of  the  bank. 


The  Cashier  of  a  Bank  is  only  its  agent,  and  his  eondnet  ia  governed 
by  the  general  law  of  agency.  Hence  the  bank  is  bound  so  long  u 
he  keeps  within  the  scope  of  his  authority,  but  is  not  answerable 
if  he  acts  beyond  his  authority  or  in  his  individual  capacity:  See 
the  monographic  note  to  Corser  v.  Paul,  77  Am.  Dec.  759-763;  8im- 
PT'Ona  Hardware  Co.  v.  Bank,  41  S.  C.  177,  44  Aril.  St.  Rep.  700, 
19  8.  £.  502;  L'Herbette  v.  Pittsfield  Nat.  Bank,  162  Mass.  157, 
44  Am.  St.  Bep.  354,  38  N.  £.  368;  Oakland  County  Sav.  Bank  t. 
State  Bank,  113  Mich.  284,  67  Am.  St.  Bep.  463,  71  N.  W.  453;  Allen 
V.  First  Nat.  Bank,  127  Pa.  St.  51,  14  Am.  St.  Bep.  829,  17  Atl.  $86i 
Davenport  v.  Stone,  104  Mich.  521,  53  Am.  St.  Bep.  467,  62  N.  W. 
722. 


Tune,  1902.]     Fivbt  v.  Pennsylvania  B.  B.  Co.  445 


FIVEY  V.  PENNSYLVANIA  RAILEOAD  COMPANY. 

[67  N.  J.  L.  627,  62  Atl.  472.]  . 

OOKTRAOTS— Pregninption  tliat  Signer  Read.— Affixing  a  sig- 
natiire  to  a  contract  creates  a  conclusive  presumption,  except  as 
against  fraud,  that  the  signer  read,  understood  and  assented  to  its 
terms,     (p.  448.) 

FRAT7D— Evidence.— To  establish  a  misrepresentation  that 
irill  invalidate  a  contract  it  must  appear  that  the  representation  was 
not  only  false,  but  made  with  intent  to  deceive,  and  that  the  person 
seeking  relief  acted  upon  and  was  misled  by  it.     (p.  449.) 

FBAUI>  l8  not  Presumed,  but  must  be  clearly  and  dis* 
tiactly  proved  by  the  person  who  asserts  it.     (p.  450.) 

FBAUD— Burden  of  Proof.— A  person  who  claims  that  his  sig- 
nature to  a  written  contract  was  procured  by  fraud  has  the  burden 
ef  proof  to  elearly  establish  such  fraud,  as  innocence,  and  not  fraud, 
is  always  presumed,     (p.  450.) 

APPFiTiTiATE  PRACTICE.— Assignments  of  Error  framed  in 
entire  disregard  of  the  rules  of  pleading  and  of  practise  in  the  ap- 
pellate  court  cannot  be  considered  on  appeaL     (p.  451.) 

T.  P.  Wickes,  for  the  plaintiflE  in  error. 

J.  B.  Vredenburgh,  for  the  defendant  in  error. 


HENDEICKSON,  J.  The  plaintiff  brought  suit  against 
the  defendant  company  to  recover  damages  for  an  injury  result- 
ing from  the  alleged  negligence  of  the  company.  The  defense 
^was  a  denial  of  the  negligence  and  a  release.  The  case  was 
tried  at  the  Hudson  circuit,  and  resulted  in  a  direction  of  the 
verdict  in  favor  of  the  defendant.  Exception  was  taken  to  thia 
action  of  the  trial  judge,  and  error  has  been  duly  assigned 
thereon. 

The  plaintifFs  injury  happened  on  March  14,  1899,  in  the 
Harsimus  freight  yard  of  the  defendant  at  Jersey  City,  while 
in  its  employ  as  a  brakeman.  A  freight  train  of  open  cars, 
loaded  with  lumber,  was  engaged  in  drilling,  cutting  off  a  car 
at  a  time  and,  by  means  of  switches,  locating  them  upon  the 
tracks  at  the  various  piers  of  the  company  on  the  river.  The 
plaintiff  was  in  charge  of  one  of  these  cars  just  '^cut  off^'  from 
the  train,  and  was  standing  at  its  easterly  end,  regulating  its 
movements  by  means  of  a  hand-brake,  which  consisted  of  a 
wheel  on  top  of  an  upright  rod,  with  a  "ratchet"  at  the  foot, 
into  which  a  "dog'*  would  fall  at  each  rotary  movement  of  the 
brake  and  hold  it  in  place  until  moved  again.  *^  While  the 
car  was  moving  eastwardly  toward  the  dock  a  switch  was  mis- 
placed, whereby  the  car  was  being  carried  upon  the  wrong  track 


446  Ambbioan  State  Eeports,  Vol.  91.     [New  Jersey, 

and  was  about  to  collide  with  an  engine  standing  there.  The 
plaintiflPs  story  is  that  he  at  once  applied  the  brake,  but  in- 
eflfectually,  because  it  was  out  of  order,  and,  from  the  force  of 
the  impact  of  the  collision,  the  lumber  in  the  car  was  thrown 
against  him,  causing  his  injuries.  He  says  the  defect  in  the 
brake  was  that  the  rod  was  bent,  causing  the  ''dog"  to  fall  be- 
low the  ratchet,  leaving  him  to  hold  the  brake  in  place  by  main 
strength.  It  will  be  perceived  that  the  charge  of  negligence 
involved,  as  questions  of  fact,  the  alleged  defect  in  the  brake, 
and  the  failure  of  the  company's  agents  to  discover  it  by  the 
exercise  of  reasonable  care,  and  whether  the  defect  had  existed 
for  such  a  length  of  time  as  to  afford  the  company  a  reasonable 
opportunity  to  discover  it. 

The  plaintiff's  evidence  upon  these  questions  was  traversed 
by  that  of  the  defendant,  but  since  the  judge's  direction  was 
confined  to  the  proof  upon  the  subject  of  the  alleged  release, 
we  will  not  consider,  for  the  present  at  least,  the  question  of 
the  failure  to  prove  negligence,  which  was  one  of  the  grounds 
of  the  motion  to  direct  the  verdict.  In  addition  to  other 
defenses,  the  defendant  pleaded  and  offered  proof  in  support 
of  the  following  facts,  to  wit:  That  the  plaintiff,  as  an  em- 
ploy6  of  the  defendant,  some  time  prior  to  the  accident,  had 
applied  for  membership  in  the  relief  fund  managed  by  the 
defendant  company,  as  alleged,  for  the  protection  and  benefit 
of  such  of  its  employes  as  might  desire  to  avail  themselves  of 
its  provisions ;  that  one  of  the  agreements  in  the  application  is 
that  if  the  applicant  should  be  accepted  as  a  member,  the  ac- 
ceptance of  benefits  from  the  relief  fund  for  injury  or  death 
should  operate  as  a  release  of  all  claims  for  damages  against 
the  company  arising  from  such  injury  or  death,  and  that  the 
plaintiff  or  his  legal  representativea  would  execute  such  further 
instruments  as  might  be  necessary  to  formally  evidence  such 
acquittance;  that  the  application  was  duly  approved  by  the  de- 
fendant, and  the  plaintiff  thereupon  accepted  and  admitted 
as  a  member  in  the  relief  f imd ;  that  after  the  ®®*  date  of  the 
alleged  injury  the  plaintiff  accepted  from  the  relief  fund,  for 
his  said  injuries,  certain  payments,  made  from  time  to  time, 
aggregating  the  sum  of  eighty-two  dollars,  and  gave  receipts 
and  acquittances  for  the  same,  which  operated  as  a  release  of 
all  the  claims  for  damages  alleged  in  the  suit. 

The  plaintiff  did  not  deny  the  facts  thus  alleged,  but,  br 
his  pleading  and  proof,  sought  to  avoid  the  effect  of  such  al- 
leged release,  on  the  ground  that  the  agreement  in  question 


Jane,  1902.]    Fiysy  v.  Pennsylvania  B.  B.  Co.  447 

was  unknown^  at  the  time  of  the  execution  of  the  application 
for  membership,  and  that  it  was,  in  fact,  obtained  from  him 
by  fraud  and  deceit.  The  replication  setting  up  the  fraud  by 
general  averment  was  sustained  on  demurrer :  Fivey  y.  Pennsyl- 
Tania  R.  B.  Co.,  66  K  J.  L.  23,  48  Atl.  553.  And,  under  the 
point  we  are  now  considering,  the  question  is.  Was  there  suffi- 
cient proof  of  the  alleged  fraud  and  deceit  before  the  court  to 
send  the  case  to  the  jury?  In  such  an  inquiry  we  must  take 
that  view  of  the  evidence  which  is  most  favorable  to  the  plain- 
tiff. 

The  case  shows  that  the  execution  of  the  application  for 
membership  took  place  in  the  presence  of  the  medical  ex- 
aminer of  the  defendant,  in  the  relief  department  at  Jersey 
City,  to  whom  the  plaintiff  had  presented  himself  for  the  re- 
quired physical  examination.  It  occurred  at  the  close  of  the 
examination,  the  results  of  which  are  found  embodied  in  the 
examiner's  certificate  attached  to  and  forming  part  of  the  ap- 
plication, which  was  partly  printed  and  partly  written.  The 
plaintiff  gives  his  version  of  the  transaction,  from  which  we 
are  asked  to  gather  the  elements  of  the  fraud  alleged,  as  fol- 
lows: 

"Q.  At  the  time  when  it  was  handed  to  you  for  execution — 
that  day  when  you  went  up  to  the  doctor's  office— confine  your 
evidence  to  what  was  said  to  you  when  the  paper  W€ls  handed 
to  you  for  execution.  A.  He  simply  shoved  it  in  front  of  me 
and  told  me  to  sign  my  name;  that  it  was  aU  a  matter  of  form; 
that  is  all. 

'^Q.  What  was  said  to  you  at  this  time  by  Dr.  Simpson  in 
reference  to  this  document  just  before  you  signed  it?  A.  Noth- 
ing whatever. 

•31  *'Q.  (The  Court.)  You  can  read  and  write?  A,  Tea; 
there  is  plenty  of  words  I  didn't  understand. 

'Q.  (The  Court.)  You  can  read?    A.  A  little,  not  much. 

^Q.  You  can  read  print?    A.  With  the  exception  of  some 

words. 

"Q.  What,  if  anything,  did  Dt.  Simpson  say  to  you  at  this 
particular  time  touching  the  nature  of  the  paper  which  he  asked 
yon  to  sign?  A.  He  said  it  was  a  benevolent  association  be- 
longing to  the  employes  of  the  railroad,  and  there  was  so  much 
deducted  from  their  wages  every  month  to  contribute  toward  the 
support  of  this  fund,  according  to  what  class  you  would  go  in. 

**Q.  Did  he  say  anything  to  you  about  the  railroad  company's 
being  a  part  of  this  fund?    A.  Nothing  whatever. 


448  American  Stats  Bkpobts^  Vol.  91.     [New  Jeney, 


''Q.  Did  he  say  anything  to  you  at  this  time  abont  your 
leasing  the  railroad  company  in  case  of  any  accident  to  jom? 
A.  No,  sir. 

*^Q.  Did  he  request  you  at  any  time  to  sign  the  paper?  A. 
When  he  was  all  through  he  shoved  it  in  front  of  me,  and  he 
said,  'Sign  it';  I  commenced  to  read  it;  he  said  it  was  all  s 
matter  of  form — ^it  was  immaterial. 

*'Q.  How  did  you  commence  to  read  it?  A.  I  commenced 
to  look  at  the  print  out  of  curiosity  to  see  what  it  contained,  if 
I  could  possibly  make  it  out. 

'^Q.  Did  you  read  any  part  of  what  is  written  in  that  left- 
hand  page  before  he  told  you  that  it  was  a  matter  of  form  or 
immaterial?    A.  He  would  not  give  me  time  to  read  it. 

«Q.  Did  you  read  it?    A.  No,  I  did  not. 

'^Q.  Did  you  read  at  that  time  anything  on  either  side  of  the 
paper?    A.  No,  sir.*' 

The  witness  further  testified  that  the  doctor  did  not,  at  or 
prior  to  the  time  of  signing,  read  to  him  anything  from  the  •■■ 
paper,  nor  from  any  book  like  the  book  of  the  regulations  of 
the  relief  fund  oflEered  in  evidence  by  the  defendant  Is  there 
to  be  found  in  this  testimony  such  elements  of  fraud  or  deceit 
as,  under  the  law,  are  sufficient  to  discharge  a  person  who  can 
read  and  write  from  the  binding  force  of  a  contract  in  writ- 
ing, otherwise  valid,  which  has  been  duly  executed  by  him? 
The  fact  that  the  plaintiff  did  not  choose  to  read  the  paper, 
or  the  material  parts  of  it,  before  signing,  or  did  not  know 
its  contents  at  the  time^  cannot,  in  the  absence  of  actual  fraud, 
relieve  him  from  its  obligations. 

This  doctrine  arises  from  the  well-settled  principle  that 
affixing  a  signature  to  a  contract  creates  a  conclusive  presump- 
tion, except  as  against  fraud,  that  the  signer  read,  understood 
and  assented  to  its  terms. 

In  Lewis  v.  Great  Western  R.  R.  Co.,  5  Hurl,  ft  N.  867, 
where  a  suit  was  brought  to  recover  for  a  sack  of  clothes,  whidi 
had  been  shipped,  but  not  delivered,  the  defense  was  that  the 
package  was  not  called  for  within  the  time  required  by  the 
conditions  to  a  receiving  note  signed  by  the  shipper.  The 
plaintiff  testified :  "I  delivered  in  a  paper,  specifying  what  the 
things  were;  I  signed  it:  I  did  not  read  the  paper;  a  person 
told  me  to  sign  it;  he  did  not  call  my  attention  to  the  condi- 
tions or  read  them;  I  think  I  must  have  seen  the  word  'condi- 
tions.' *'  The  case  was  heard  before  Chief  Baron  Pollock  and 
his  associates,  and  it  was  held  that  there  was  nothing  to  rebut 


June,  1902.]     Fivby  v.  Pennsylvania  R.  R.  Co,  449 

the  presumpdon  arising  from  the  signature  of  the  paper  that 
the  signer  understood  that  the  contract  was  subject  to  the  con- 
ditions. 

In  Bice  v.  Dwight  Mfg.  Co.,  2  Cush.  80,  the  principle  found 
expression  in  these  words :  '^A  party  who  enters  into  a  contract 
in  writing,  without  any  fraud  or  imposition  being  practised  upon 
him,  is  conclusively  presumed  to  understand  and  assent  to  its 
terms  and  legal  effecf 

Other  authorities  in  point  are  In  re  Greenfield's  Estate,  14 
Pa.  St  491;  Van  Deventer  v.  Van  Deventer,  46  N.  J.  L.  460; 
TJpton  V.  Tribilcock,  91  U.  S.  45;  Vickers  v.  Chicago  etc.  R. 
R.  Co.,  71  Fed.  139 ;  Wallace  «»»  v.  Chicago  R.  R.  Co.,  67 
Iowa,  547,  25  N.  W.  772 ;  Chu  Pawn  v.  Irwin,  82  Hun,  607, 
31  N.  Y.  Supp.  724. 

To  return,  then,  to  the  question  of  actual  fraud,  the  alle- 
gation is  that  fraud  was  practised  upon  the  plaintiff,  in  pro- 
curing his  signature,  by  fraudulent  representations  as  to  the 
nature  of  the  paper  signed  and  as  to  the  party  with  whom  plain- 
tiff was  contracting. 

This  averment  is  based  upon  the  plaintiflPs  version  of  what 
the  medical  examiner  said  as  to  the  nature  of  the  paper  about 
to  be  signed.  This  has  already  been  recited.  It  is  not  a 
Btaiement  as  to  the  contents  of  the  paper,  but  rather  a  remark 
as  to  its  nature.  Whether  the  remark  was  called  out  by  a 
question  does  not  appear.  The  statement  is  condemned  as 
false  and  misleading,  not  because  it  defines  the  association 
as  a  benevolent  one  belonging  to  the  employes  of  the  railroad, 
for  that  was  a  fairly  accurate  description  of  it.  The  case 
shows  that  the  relief  fund  is  for  the  exclusive  benefit  of  the 
employes  who  are  members  of  it  and  contribute  to  its  support, 
and  who  become  disabled  by  sickness  or  accident,  and  of  the 
relatives  or  other  beneficiaries  in  the  event  of  death.  It  is  con- 
tended that  the  statement,  though  true  in  fact,  became  fraudu- 
lent and  misleading  in  not  stating  that  the  railroad  itself  was 
a  party  to  the  contract  and  interested  in  the  association.  But 
the  balance  of  the  statement,  to  the  effect  that  there  was  so 
much  deducted  from  the  wages  of  the  employes  every  month 
to  contribute  toward  the  support  of  this  fund,  according  to  the 
class  they  should  go  in,  would  seem  to  indicate  that  the  com- 
pany was  connected  with  it.  But  to  establish  a  misrepresenta- 
tion that  will  invalidate  a  contract,  it  must  appear  that  the  rep- 
resentations were  not  only  false,  but  made  with  intent  to  deceive, 
and  that  the  party  seeking  relief  acted  upon  and  was  misled 

Am.   St.   Rep.,  Vol.  91—29 


450  American  State  Repobts,  Vol.  91.     [New  Jersey, 

by  them.  It  is  difficult  to  see  wherein  the  statement  of  the 
medical  examiner  was  false  or  fraudulent  within  the  rule  here 
stated.  Especially  must  this  be  so  when  we  look  at  the  other 
circumstances  proved.  It  must  have  been  in  the  minds  of  the 
parties  that  the  plaintiff  would  be  associated  with  fellow-em- 
ployes who  were  members  ••*  of  the  relief  fund,  who  would 
be  likely  to  be  acquainted  with  the  rules  and  regulations  of 
the  association,  and  who  would  readily  give  such  information 
as  plaintiff  desired.  It  also  appeared  that,  very  shortly  after 
signing  the  application,  the  plaintiff  was  furnished,  according 
to  the  regular  practise,  with  a  small  book,  convenient  for  the 
pocket,  in  which  was  pasted  a  copy  of  the  certificate  of  member- 
ship, and  which  contained  all  the  regulations  of  the  relief  de- 
partment and  an  exact  copy  of  the  form  of  application.  This 
book  contained  upon  the  outside  cover,  upon  the  fly-leaf  and 
as  headlines  upon  several  pages,  the  words  in  large  print,  '*The 
Pennsylvania  Railroad  Voluntary  Relief  Department  The 
evidence  showed,  and  the  fact  was  not  denied  by  the  plaintiff, 
that  he  received  the  book  and  certificate  over  two  months  be- 
fore the  accident.  But  in  this  case  it  is  contended  that  there 
are  other  circumstances  giving  color  to  this  charge  of  fraud. 
The  fact  is  pointed  to  that  after  this  statement  the  medical  ex- 
aminer '^shoved  the  paper**  in  front  of  the  plaintiff  and  'told 
him  to  sign**  his  name;  that  plaintiff  "commenced  to  read  it,** 
and  **he  was  told  by  the  doctor  it  was  all  a  matter  of  form — 
it  was  immaterial.** 

In  the  case  of  Van  Deventer  v.  Van  Deventer,  46  N.  J.  L 
460,  the  objection  was  that  the  party  who  had  executed  the  ob- 
ligation did  not  know  its  nature,  and  was  told  by  the  plaintiff 
that  the  papers  were  of  no  account  and  only  a  formal  matter. 
But  since  it  was  not  shown  that  the  obligor  was  defrauded  by 
any  representation  that  the  documents  were  of  a  different  char- 
acter or  import  from  that  plainly  appearing  on  their  face,  and 
it  appearing  that  the  obligor  could  read  and  had  liberty  to  exam- 
ine the  papers,  the"  supreme  court  held  the  objection  insufficient 
to  avoid  the  obligation. 

In  considering  this  question  it  should  also  be  observed  that 
a  charge  of  fraud  must  be  clearly  and  distinctly  proved  by  the 
party  who  asserts  it.  The  presumption  is  in  favor  of  innocence^ 
and  fraud  is  not  to  be  assumed  on  doubtful  evidence:  Kerr  on 
Fraud  and  Mistake,  384. 

The  point  has  been  pressed  also  that  because  the  application 
was  a  long  one  and  contained  on  the  back,  in  small  type^ 


June,  1902.]    Fivet  v.  Pennsylvania  B.  R.  Co.  451 

the  rules  and  regulations  of  the  association,  this  fact  should  be 
regarded  as  a  badge  of  fraud.  But,  in  fairness,  it  must  be  said 
that  the  application  itself,  in  which  was  contained  the  agree- 
ment of  release  upon  which  the  defense  is  based,  and  also  the 
book  of  regulations  referred  to,  were  printed  in  plain,  legible 
type.  It  was  further  intimated,  rather  than  argued,  that  the 
defense  should  be  regarded  with  disfavor  on  the  ground  that  the 
contract  is  a  hard  one  from  the  plaintiiBE's  standpoint.  But 
we  see  nothing  in  the  case  to  justify  a  departure  from  the  ordi- 
nary rules  applying  to  the  enforcement  of  contracts.  The  valid- 
ity of  the  agreement  in  question  was  passed  upon  by  this  court, 
after  very  careful  consideration,  in  Beck  v.  Pennsylvania  R.  R. 
Co.,  63  N.  J.  L.  232,  76  Am.  St.  Rep.  211,  43  Atl.  908,  and  it 
was  there  held  that  the  contract  was  not  against  public  policy, 
nor  lacking  in  mutuality  or  consideration,  nor  ultra  vires. 

The  case  of  O'Neil  v.  Lake  Superior  Iron  Co.,  63  Mich.  690, 
30  N.  W.  688,  was  cited  for  the  plaintiff  as  authority  for  the 
proposition  that  in  a  case  like  this  the  court  should  be  astute  to 
discover  a  fraud  upon  the  employ^  in  such  an  action,  but  it  is 
not  in  point,  because  it  was  shown  that  the  employ^  could  not 
read,  and  had  no  knowledge  of  the  terms  or  conditions  of  the 
printed  matter. 

The  other  cases  cited  are  not  out  of  harmony  with  the  legal 
rules  herein  expressed.  There  was  in  the  present  case  an  entire 
failure  to  show  the  indicia  of  actual  fraud;  hence  the  deter- 
mination of  this  point  was  for  the  court,  and  the  result  follows 
that  the  learned  trial  judge  was  justified  in  directing  the  verdict 
for  the  defendant.  There  were  a  number  of  exceptions  taken 
and  sealed  to  the  admission  and  rejection  of  evidence  by  the 
trial  judge,  but  they  are  not  properly  before  us,  and  cannot  be 
considered. 

The  questions  overruled,  nine  or  more  in  number,  are  all  in- 
cluded in  a  single  assignment  of  error.  And  the  questions  re- 
jected, twelve  or  more  in  number,  are  likewise  embraced  in  a 
single  assignment.  The  objection  raised  by  the  defendant  to 
these  assignments  is  that  they  are  multifarious.  ®**  These  as- 
signments are  framed  in  entire  disregard  of  the  rules  of  plead- 
ing and  of  the  practise  of  this  court,  and  cannot  for  that  reason 
be  conflidered:  Associates  v.  Davison,  29  N.  J.  L.  415,  418;  2 
Ency.  of  PL  &  Pr.  938,  note  5 ;  3  American  Digest,  Cent,  ed., 
3028. 

It  may  be  stated,  however,  that  the  only  exceptions  under 
these  last  assignments  pressed  upon  our  consideration  at  the 


452  American  Statb  Bbpobts^  Vol.  91.     [New  Jenej. 

argament  were  those  taken  to  the  oyerruling  of  questions  de- 
signed to  elicit  from  the  plaintiff  an  answer  to  the  questions 
whether^  at  any  time  from  the  date  of  his  application  until  the 
occasion  of  his  signing  the  last  receipt  for  benefits,  he  knew  he 
would  be  releasing  his  cause  of  action  against  the  railroad  com- 
pany by  so  doing.  It  is  quite  apparent,  from  what  has  already 
been  said,  that,  in  the  absence  of  proof  of  fraud,  the  evidence  to 
be  thus  elicited  was  entirely  immaterial,  and  was  properly  OTer- 
ruled. 

We  find  no  error  in  the  record,  and  the  result  is  that  the  judg- 
ment below  must  be  afiirmed. 


One  Cannot  Release  Himself  from  JAaMUiy  on  a  contract  upon  the 
ground  that  he  did  not  read  it  before  signing,  in  the  absence  of 
fraud:  Grim  v.  Grim,  162  Mo.  544,  85  Am.  St.  Bep.  621,  63  8.  W.  489. 
It  is  otherwise,  however,  if  the  signature  is  procured  by  misrepre- 
sentation, especially  if  the  obligor  is  an  illiterate  person:  See  Green  t. 
Wilkie,  98  Iowa,  74,  60  Am.  St.  Bep.  184,  66  N.  W.  1046;  WiUard 
V.  Nelson,  35  Neb.  651,  37  Am.  St.  Bep.  455,  53  N.  W.  572.  Yet  the 
general  rule  as  to  fraud  is,  that  it  cannot  be  presumed,  but  must  be 
proved  clearly  and  distinctly  by  the  party  alleging  it:  Snayberger 
V.  Fahl,  195  Pa.  St.  336,  78  Am.  St.  Bep.  818,  45  Atl.  1065;  Eaha 
V.  Traders'  Ins.  Go.,  4  Wyo.  419,  62  Am.  St.  Bep.  47,  34  Pac  1095; 
Bank  of  Little  Bock  ▼.  Frank,  63  Ark.  16,  58  Am.  St.  Bep.  65,  87  &  W. 
400.  But  he  is  not  required  to  establish  it  beyond  any  doubt:  Bal- 
timore etc.  By.  Go.  t.  Scholes,  14  ludu  App.  52^  56  Am.  St.  Bep.307, 
43  N.  E.  156. 


OASES 

IN   THC 

SUPREME  COURT 


OREGON. 


SHOBERT  V.  MAT. 

[40  Or.  68,  66  Pac.  466.] 

NBQUQBKOB  Is  the  Failure  to  Exercise  that  Degree  of  Oar« 
And  Forethought  which  a  prudent  person  might  be  expected  to  use 
under  similar  circumstances.  The  degree  of  care  necessary  to  be 
exercised  must  always  be  commensurate  with  the  danger  incident 
to,  or  reasonably  to  be  apprehended  from,  the  instrumentalities  used, 
and  is  measured  by  the  extent  of  the  legal  duty  owing  to  the  per- 
son who  might  sustain  injury  from  any  neglect  in  the  use  of  such 
agencies,     (p.  454.) 

NEOLiaEKOE— Oare  Which  ISnst  he  Ezerdsed  by  Store- 
keepers Toward  their  Patrons.— He  who  maintains  a  store  for  the 
sale  of  goods  impliedly  solicits  patronage,  and  one  who  accepts  the 
invitation  to  enter  is  not  a  trespasser  nor  a  mere  licensee,  but  is 
rightfully  on  the  premises  by  invitation,  and  there  arises  in  his 
favor  a  legal  duty  which  demands  reasonably  safe  arrangements  for 
his  protection,     (p.  454.) 

THE  NEaUGENOE  of  the  Defendant  is  Always  a  Question 
for  the  Jury,  though  there  is  no  conflict  in  the  evidence^  and  it  is 
error  for  the  court  to  instruct  them,  as  a  proposition  of  law,  that 
upon  the  conceded  facts  the  defendant  was  guilty  of  negligence, 
(pp.  456.  457.) 

Dolph,  Mallory,  Simon  &  Gearin^  for  the  appellants. 

Mitchell  &  Tanner,  for  the  respondent. 

•^  MOORE,  J.  This  is  an  action  to  recover  damages  for  a 
personal  injnry,  alleged  to  have  been  cansed  by  the  defendants' 
neglig^iee.  The  plaintifPs  testimony  is  to  the  effect  that  on 
March  14,  1899,  at  about  5  o'clock  P.  M.,  he  entered  the  de- 
fendants' hardware  store  at  Portland  to  purchase  some  hinges, 
and  being  informed  by  a  clerk  that  the  desired  articles  might 
possibly  be  found  in  the  second  story,  and  directed  to  a  stairway 
leading  thereto,  he  proceeded  in  that  direction,  and,  the  day 
being  cloudy,  and  haying  no  warning  of  danger  ahead,  walked 
into  an  elevator  well  and  fell  to  the  cellar,  breaking  his  leg, 
whereby  he  became  permanently  crippled.  An  employ^  of  the 
defendants,  as  their  witness,  testified  that  the  side  of  the  elevator 
well  into  which  the  plaintiff  walked  has  a  post  at  each  comer, 
between  which  a  wooden  bar,  one  by  six  inches,  placed  about 

(4SS) 


454  Ahebioan  State  Bepobts^  Vol.  91.        [Or^oo, 

three  feet  from  the  floor^  is  usually  extended,  but  at  the  tune  of 
the  injury,  which  was  about  3  o'clock,  one  end  of  the  bar  was 
left  resting  on  the  floor.  The  trial  having  resulted  in  a  judg- 
ment for  the  plaintiff  in  the  sum  of  fifteen  hundred  dollars,  the 
defendants  appeal 

The  court  instructed  the  jury,  as  a  matter  of  law,  to  the  effect 
that  under  the  facts  admitted  the  defendants  were  guilty  of  neg- 
ligence. An  exception  to  this  part  of  the  charge  having  been 
reserved,  it  is  contended  by  defendants'  counsel  that  the  court 
erred  in  taking  from  the  jury  the  consideration  of  the  question 
of  alleged  negligence,  while  plaintiff's  counsel  maintained  that, 
the  facts  being  admitted,  tiie  defendants'  negligence  is  con- 
clusively inferable  therefrom,  and,  this  being  so,  it  was  the  duty 
of  the  court,  as  a  matter  of  law,  so  to  instruct  the  jury. 

Negligence,  as  defined  by  this  court,  is  a  failure  to  exercise 
that  degree  of  care  and  forethought  which  a  prudent  person 
might  be  expected  to  use  under  similar  circumstances:  Hurst 
V.  Bumside,  12  Or.  520,  8  Pac.  888 ;  Cassida  v.  Oregon  By.  ^ 
etc.  Co.,  14  Or.  551, 13  Pac.  438.    The  degree  of  care  necessary 
to  be  exercised  under  circumstances  of  the  character  here  ad- 
verted to  is  always  commensurate  with  the  danger  incident  to, 
or  reasonably  to  be  apprehended  from,  the  instrumentalities 
used,  and  is  measured  by  the  extent  of  the  legal  duty  owing  to 
the  person  who  might  sustain  an  injury  from  any  neglect  in  the 
use  of  such  agencies.    In  the  case  at  bar,  the  defendants,  having 
opened  their  store  for  the  sale  of  goods,  thereby  impliedly  solic- 
ited patronage;  and  the  plaintiff,  having  accepted  their  invita- 
tion, was  not  a  trespasser  or  mere  licensee,  but  was  rightfully 
on  the  pr^nises  by  invitation  of  the  def  endants^  who  owed  to  him 
a  legal  duty,  which  demanded  reasonably  safe  arrangements  for 
the  protection  of  their  customers:  Camp  v.  Wood,  76  N.  Y. 
S2,  32  Am.  Bep.  282;  Corrigan  v.  Elsinger,  81  Minn.  42,  83 
K.  W.  492.    The  plaintiff  denied  that  any  bar  obstructed  the 
passageway  to  the  elevator,  but,  the  defendants  having  offered 
testimony  to  that  effect,  it  must  be  considered  for  the  purpose 
of  determining  the  consequences  of  the  instruction  complained 
of.    The  bar  placed  at  the  entrance  of  the  elevator  would  un- 
doubtedly have  been  sufficient  to  prevent  the  defendants'  cus- 
tomers from  falling  into  the  well,  if  it  had  extended  from  one 
post  to  the  other;  and  the  failure  to  keep  it  in  position  is  not 
a  total  disregard  of  the  duty  imposed  upon  the  defendants  by 
the  demands  of  the  business  in  which  they  were  engaged,  for 
the  bar  being  up  at  one  end  evidences  some  degree  of  care.    If 
it  be  assumed  that,  to  facilitate  the  dispatch  of  business,  the  bar 


Not.  1901.]  Shobbrt  v.  Mat.  455 

had  been  entirely  removed  at  the  time  plaintiff  was  injured^  as 
be  maintains  it  was,  the  question  of  negligence  should,  in  our 
judgment,  have  been  submitted  to  the  jury,  to  determine 
whether,  from  a  consideration  of  all  the  circumstances,  the  de- 
fendants had  exercised  that  degree  of  care  and  forethought 
which  the  law  requires.  The  defendants  having  provided  a  bar 
to  prevent  injury  to  their  customers,  thereby  evidencing  some 
care^  at  least,  for  their  welfare,  it  is  not  the  province  of  a  courts 
except  upon  a  motion  for  a  judgment  of  nonsuit,  or  in  pursu- 
ance of  a  request  to  instruct  the  jury  to  return  a  verdict  for  the 
defendants,  to  estimate  ^*  the  degree  of  care  which  a  prudent 
man  should  exercise:  Crook  v.  Jadis,  5  Bam.  &  Adol.  909. 
Ix)rd  Chief  Justice  Tindal,  illustrating  this  principle,  in 
Vaughan  v.  Menlove,  3  Bing.  N.  C.  *468,  says :  'The  care  taken 
by  a  prudent  man  has  always  been  the  rule  laid  down;  and,  as 
to  the  supposed  diflBlculty  of  applying  it,  a  jury  has  always  been 
able  to  say  whether,  taking  that  rule  as  their  guide,  there  has 
been  negligence  on  the  occasion  in  question.*'  The  testimony 
shows  that  the  defendants'  store  is  about  fifty  or  sixty  feet  from 
front  to  rear,  and  that  the  elevator  is  situated  at  the  rear  end. 
If  the  elevator  were  in  the  front  part  of  the  store,  where  cus- 
tomers usually  congregate,  the  imminence  of  the  danger  reason- 
ably to  be  apprehended  would  certainly  require  a  greater  degree 
of  care  to  prevent  injury  than  if  it  were  placed  in  the  rear  of 
the  building,  where  it  could  not  reasonably  be  expected  that  cus- 
tomers would  usually  resort. 

In  Philadelphia  etc.  B.  B.  Co.  v.  Spearen,  47  Pa.  Si  300,  86 
Am.  Deo.  544,  Mr.  Justice  Agnew,  discussing  this  question,  says : 
^There  is  no  absolute  rule  as  to  negligence  to  cover  all  cases. 
That  which  is  negligence  in  one  case  by  a  change  of  circum- 
stances will  become  ordinary  care  in  another,  or  gross  negligence 
in  a  third.  It  is  a  relative  term,  depending  upon  the  circum- 
stances, and,  therefore,  is  always  a  question  for  the  jury  upon 
the  evidence,  but  guided  by  proper  instructions  from  the  court.'' 
If,  therefore,  there  were  no  controversy  in  respect  to  the  facts, 
and  it  was  admitted,  as  the  plaintiff  testified,  that  the  bar  was 
entirely  removed  from  the  elevator  well  when  he  sustained  the 
injury,  we  think  the  question  of  negligence  should  have  been 
submitted  to  the  jury  for  their  consideration  as  to  whether,  in 
view  of  all  the  circumstances,  the  defendants  had  exercised  that 
degree  of  care  which  the  rules  of  law  require.  "It  by  no 
means  necessarily  follows,*'  says  Mr.  Justice  Johnson,  in  Ireland 
V.  Oswego  etc  Plank  Eoad  Co.,  13  N.  Y.  626,  '^because  there  U 
no  conflict  in  the  testimony  that  the  court  is  to  decide  the  issue 


456  American  State  Reports^  Vol.  91.        [OregoHy 

between  the  parties  as  a  question  of  law.  The  fact  of  negligence 
is  very  seldom  established  by  such  direct  and  positive  evidence 
that  it  can  be  taken  from  the  '^  consideration  of  the  jury  and 
pronounced  upon  as  a  matter  of  law.  On  the  contrary,  it  is  al- 
most always  to  be  deduced  as  an  inference  of  fact  from  several 
facts  and  circumstances  disclosed  by  the  testimony,  after  their 
connection  and  relation  to  the  matter  in  issue  have  been  traced, 
and  their  weight  and  force  considered  In  such  cases  the  in- 
ference cannot  be  made  without  the  intervention  of  a  jury,  al- 
though all  the  witnesses  agree  in  their  statements,  or  there  be 
but  one  statement,  which  is  consistent  throughout/'  To  the 
same  effect,  see  Eailroad  Co.  v.  Stout,  17  Wall.  657. 

There  are  to  be  found  expressions  of  judicial  utterance  which 
at  first  glance  would  seem  to  support  the  theory  adopted  by  the 
court.  Thus,  in  Qagg  v.  Vetter,  41  Ind.  228, 13  Am.  Eep.  322, 
Mr.  Justice  Buskirk  says:  ''The  question  of  negligence  is  one 
of  mingled  law  and  fact,  to  be  decided  as  a  questioii  of  law  by 
the  court  when  the  facts  are  undisputed  or  conclusively  proved, 
but  not  to  be  withdrawn  from  the  jury  when  the  facts  are  dis- 
puted and  the  evidence  conflicting.'*  In  Louisville  etc.  Canal 
Co.  V.  Murphy,  9  Bush,  522,  it  is  said:  "When  the  facta  are 
conceded  upon  which  the  question  of  negligence  is  based,  it  then 
becomes  a  question  of  law  as  to  whether  a  case  of  negligence  has 
been  made  out.'*  Many  excerpts  to  the  same  effect  might  be 
collated,  but  a  careful  examination  of  the  cases  from  which  they 
could  be  extracted  will  show  that  in  nearly  every  instance  the 
language  was  intended  to  apply  either  to  a  motion  for  a  judg- 
ment of  nonsuit,  or  upon  a  request  to  instruct  the  jury  to  fijid 
for  the  defendant.  In  other  words,  when  the  uncontradicted 
testimony  and  the  only  inference  deducible  therefrom  conclu- 
sively shows  that  the  plaintiff  upon  whom  the  burden  of  proof 
rests  has  not  made  out  a  case  of  negligence  sufficient  to  be  sub- 
mitted to  the  jury,  or  if  his  negligence  has  contributed  to  the 
injury  of  which  he  complains,  the  court  may  take  the  case  from 
the  jury  and  decide  the  issue  as  a  question  of  law.  Mr.  Chief 
Justice  Lord,  in  Durbin  v.  Oregon  Ey.  etc.  Co.,  17  Or.  5,  11 
Am.  St.  Rep.  778,  17  Pac.  5,  discussing  this  question,  says :  "It 
is  true  that  negligence  is  ordinarily  a  question  of  fact  for  the 
jury  to  '^  determine  from  all  the  circumstances  of  the  case,  and 
that  the  cases  where  a  nonsuit  is  allowed  are  exceptional,  and 
confined  to  those,  as  here,  where  the  uncontradicted  facts  show 
the  omission  of  acts  which  the  law  adjudges  negligent*':  See, 
also,  McBride  v.  Northern  Pac.  B.  Co.,  19  Or.  64,  23  Paa  814; 


KoT.  1901.]  Ladd  v.  Holmes.  457 

Bkckbnm  y.  Southern  Pac.  Co.,  34  Or.  215,  55  Pac.  226.  This 
is  as  far  as  the  rule  ought  reasonably  to  be  extended,  and  in 
cases  where  the  negligence  of  the  defendant  is  to  be  determined, 
notwithstanding  there  may  be  no  conflict  in  the  testimony,  that 
party,  in  our  judgment,  is  entitled,  under  the  organic  law  of  the 
state  (Const.,  art.l,  sec.  17),  to  the  verdict  of  a  jury,  unless 
waived,  to  the  effect  that  he  has  not  exercised  that  degree  of  care 
that  the  law  exacts  under  all  the  circumstances  of  the  case,  be- 
fore he  can  be  compelled  to  respond  in  damages. 

Other  exceptions  were  taken  and  allowed,  but  the  matters  ex- 
cepted to,  if  prejudicial  error  was  thereby  committed,  can  prob- 
ably be  avoided  at  a  retrial  of  the  cause.  For  the  error  in  giv- 
ing Ihe  instruction  complained  of,  the  judgment  is  reversed  and 
ft  new  trial  ordered. 


Thai  the  Quettion  of  Vegligenee  is  one  of  law  for  the  court,  if  tlie 
cridenee  is  not  in  conflict,  and  bnt  one  reasonable  inference  can  be 
drawn  from  the  facts,-  is  a  proposition  often  met  with  in  the  de- 
cided eases:  See  Heinmann  v.  Kinnare,  190  HL  156,  88  Am.  St. 
Bep.  123,  60  N.  £.  215;  Tully  v.  Philadelphia  etc.  Bw  B.  Co.,  2  Penne. 
(Del.)  537,  82  Am.  St.  Bep.  425,  47  Atl.  1019;  Kilpatrick  v.  Grand 
Tnmk  By.  Co.,  72  Yt.  263,  82  Am.  St.  Bep.  939,  47  Atl.  827;  Consoli- 
dated Traction  Co.  v.  Scott,  58  N.  J.  L.  682,  65  Am.  St.  Bep.  620, 
M  AtL  1094;  Borden  v.  Daisy  BoUer  MiU  Co.,  98  Wis.  407,  67  Am.  St. 
Bep.  816,  74  N.  W.  91;  Watson  v.  Portland  etc.  By.  Co.,  91  Me.  584, 
64  Am.  St.  Bep.  268,  40  Atl.  699  >  Wade  v.  Columbia  etc.  Power  Co., 
51  &  G.  296,  64  Am.  St.  Bep.  676,  29  S.  E.  233.  We  do  not  interpret 
the  aboye  decisions  as  adjudging  that  the  court  may,  in  any  case 
at  a  matter  of  law,  pronounce  the  defendant  guilty  of  negligence. 
However,  it  is  held  in  Magoffin  v.  Missouri  Pac.  By.  Co.,  102  Mo. 
510,  22  Am.  St.  Bep.  798,  15  S.  W.  76,  that  where  facts  admitted  by 
itipnlation  make  a  prima  facie  case  of  negligence  on  the  part  of  the 
defendant,  and  are  unrebutted  and  undisputed  by  him,  it  is  the 
daty  of  the  court  to  direct  the  jury  to  find  a  verdict  for  the  plain- 
tiff: See,  too,  Fullerton  t.  Fordyce,  121  Mo.  1,  42  Am.  St.  Bep.  516, 
25  8.  W.  587;  Savannah  etc.  By.  Co.  t.  Evans,  115  Qa.  315,  90  Am. 
6t  Bep.  116,  41  S.  £.  631. 


LADD  V.  HOLMES. 

[40  Or.  167,  66  Pac  714.] 

SPBCIAZa  LEGISLATIOK.— A  Statute  Providing  for  Primary 
Eleetloiui  in  cities  of  ten  thousand  or  more  population,  ' '  as  shown  by 
the  hwt  state  or  federal  census, '^  though  applicable  to  only  one  city 
wbni  enacted,  extends  to  all  that  subsequently  may  reach  such  pop- 
alation,  and  is  not  special  or  local,     (p.  466.) 

ElrZSOnOKS.— The  Words  **Free"  and  *'Eanal»'  in  a  con- 
■titntional  provision  that  all  elections  shall  be  free  and  equal,  signify 


458  Amebioak  Statb  Bbpobts,  Vol.  91.        [Oregov 

that  elections  shall  not  only  be  open  and  nntrammeled  to  all  eadowi 
with  the  eleetiye  franchise,  but  shall  be  dosed  to  all  not  in  the  «»- 
joyment  of  such  privilege,     (p.  466.) 

PRIMABT  EIaEOTIONS.~-A  Statnto  Beanirlng  primarj  alee* 
tions  for  the  selection  of  delegates  to  nominating  eonyentioaa  pi#- 
▼ides  ^or  elections  ' '  authorized  by  law  and  not  elsewhere  provided  for 
by  the  constitution,"  within  section  2,  article  2  of  the  Oregon  eon- 
Btitution,  prescribing  the  qualifications  of  electors,     (p.  467.) 

A    FBIMABT   EIiEOTIOK   IJIW   Limiting    the     Eleetanl 

Privilege  at  the  respective  primaries  to  party  members  is  eonstits- 
tionaL     (p.  467.) 

A    PBIMABT    ELEOTIOK    IJIW     Denying    Its    Frivilegw 

to  parties  casting  less  than  three  per  cent  of  the  vote  at  the  pr^ 
ceding  election,  but  providing  a  mode  of  obtaining  representation  ee 
the  official  ballot  for  such  parties^  is  constitutionaL    (p^  469.) 

PRQjiABT  ELECTION.— Every  Elector  Should  be   as  Fne 

to  express  his  choice  of  a  candidate  for  office  as  to  denote  his  choice 
of  an  office  at  tho  polls,     (p.  472.) 

PBIMABT  ELECTIONS.— Party  Management  and  Affairs*  so 

far  as  they  concern  the  naming  of  candidates  for  pnblie  office^  are 
proper  objects  of  legislative  supervision,     (p.  473.) 

PBIMABT  ELECTION  LAW— Invasioir  of  Party  AlUis.— 

A  primary  election  law  providing  for  the  appointment  of  judges  mad 
cleiks  of  the  election  by  the  county  court,  prescribing  a  test  for 
party  affiliation,  and  directing  the  manner  of  the  election  of  com- 
mitteemen, fixing  their  terms  of  office,  and  specifying  their  dntie^ 
is  not  an  unwarranted  interference  with  party  management,  (pk 
475.) 

PBIMABT  ELECTIONS— NonreglBtered  Voter.— The  Oregon 
primary  election  law  providing  that  no  one  may  vote  unless  "he 
shall  have  complied  with  the  requirements  of  the  law  reUting  to 
registration  of  electors,  and  shall  be  entitled  to  vote  at  the  ensaing 
general  election,"  does  not  close  the  doors  to  all  electors  who  had 
not  secured  registration  prior  to  primary  day.  They  may  vote  under 
eertain  conditions,     (p.  476.) 

PBIMABT  ELECTIONS— Special  Election.— It  is  no  valid 
objection  to  a  primary  election  law  that  it  makes  no  provision  for 
special  elections,     (p.  476.) 

PBIBd:ABT   ELECTION   LAW.— The    Coimtry   Precincts   srs 

not  discriminated  against  under  sections  24  and  25  of  the  Or^os 
primary   election   law.    (p.   476.) 

TITLE  OF  PBIMABT  ELECTION  LAW.— A  section  of  a 
statute  relating  to  the  appointment  of  a  county  managing  committee, 
and  its  functions  and  duties,  is  within  the  purview  of  the  title  of  aa 
acty  "To  provide  for  primary  elections  in  cities  •  •  •  •  and  providing 
for  the  manner  of  conducting  the  same,''  etc.     (p.  476.) 

PBIMABT    ELECTIONS— Ezpense8.—Tlie    LegisUtiire    may 

impose  the  expense  of  primary  elections  in  a  city  upon  the  whole 
eonnty  wherein  it  is  located,     (pp.  476,  477.) 

Edw.  W.  Bingham  and  Wallace  McCamant,  for  the  appdlsnia. 

Oeorge  E.  Chamberlain,  Charles  H.  Car^,  and  Gharlss  & 
Lockwoody  for  the  respondent 


Nov.  1901.]  Ladd  v.  Holmjes.  459 


WOLVEBTON",  J.  This  is  a  suit  to  enjoin  the  clerk  of 
the  comiiy  court  of  Multnomah  county  from  incurring  any 
peeaniary  liability  in  behalf  of  the  county  under  the  acts  passed 
by  the  legislatiye  assembly  at  its  last  session  for  the  regulation 
of  primary  dections  within  the  city  of  Portland,  known  as  the 
Morgan  and  Lockwood  acts,  the  evident  purpose  being  to  test 
the  constitutionality  of  both  acts.  The  circuit  court  declared 
the  Morgan  act  invalid^  but  sustained  the  other,  and  the  plain- 
tiSs  appeal. 

The  defendant  not  having  appealed,  there  are  left  for  our 
consideration  the  questions  presented  as  they  have  relation  to 
^'^  the  Lockwood  act  only.  The  plaintiffs  are  all  taxpayers  of 
Multnomah  county,  and  reside  within  the  city  of  Portland,  ex- 
cept Bain,  who  lives  outside  of  the  city  limits.  McKercher 
bdongs  to  the  Prohibition  party,  which  polled  less  than  three 
per  cent  of  the  entire  vote  (»st  in  the  county  at  the  last  general 
election^  while  Bain  has  no  party  affiliations.  Thus  are  brought 
into  the  record  all  classes  of  individuals  affected  by  the  act  in 
question,  as  it  respects  their  personal  rights  and  privileges  under 
the  constitution.  The  act  provides,  inter  alia,  that  ^^dections 
hereafter  held  in  any  incorporated  city  of  the  state  containing 
a  population  of  ten  tiiousand  or  more,  as  shown  by  the  last  state 
or  federal  census,  by  any  voluntary  political  association  or  party, 
for  the  purpose  of  selecting  delegates  to  any  convention  to  nomi- 
nate candidates  for  public  office,  shall  be  held  under  the  pro- 
visions of  this  act,  and  such  elections  shall  be  styled  primary 
elections'' :  Laws  1901,  p.  317.  But  it  is  not  to  be  construed  to 
affect  direct  nominations  without  conventions,  or  nominations 
by  assemblages  or  dectors,  as  may  otherwise  be  provided  for  by 
law.  It  is  made  the  duty  of  the  county  clerk  to  designate  a 
day,  not  less  than  sixty  days  before  any  general  dection,  to  be 
known  as  'Trimary  Day.*'  Any  and  all  political  parties  or 
associations  which  at  the  election  next  preceding  polled  a  suffi- 
cient percentage  of  the  entire  vote  in  the  state,  county,  city, 
precinct,  or  other  electoral  district  for  which  nominations  are  to 
be  made  by  the  convention,  to  be  entitled  to  make  nominations 
as  a  political  party  or  association  under  the  laws  of  the  state 
governing  general  elections,  shall  be  entitled  to  vote  at  such 
primary  election  for  delegates  to  thdr  respective  party  conven- 
tions. No  nomination  made  by  any  convention  of  delegates 
shall  be  deemed  lawfully  made,  or  be  printed  upon  the  sample 
or  official  ballot  for  use  in  any  general  or  mimicip^l  election, 
unless  such  delegates  were  selected  by  a  primary  dection  hdd 


460  American  State  Eeports,  Vol.  91.        [Oregon, 

in  accordance  with  this  act.    Not  less  than  seven  days  before 
the  time  designated  for  holding  the  elections  the  managing  com- 
mittee of  the  political  party  desiring  to  hold  a  convention  of 
delegates  shall  cause  notice  to  be  given,  designating  the  ntinibcr 
of  delegates  ^^*  to  be  selected,  and  the  apportionment  thereof 
to  each  election  precinct.    Provision  is  made  for  the  nomination 
of  delegates,  and  for  having  them  certified  by  the  county  clerk 
and  placed  upon  the  official  ballot,  which  is  the  only  one  that 
may  be  nsed  at  the  polls.    The  judges  and  clerks  of  the  general 
election,  as  selected  by  law,  are  required  to  serve  at  the  primary 
election.    If  an  elector  is  challenged,  an  oath  may  be  adminis- 
tered, and  he  may  be  examined  touching  his  qualifications  as  an 
elector  at  that  election,  and  as  a  member  of  the  political  parfy 
or  association  whose  ticket  he  may  desire  to  vote,  and,  in  deter- 
mining his  residence  and  qualification,  the  judges  shall  be  gov- 
erned by  the  rules  for  the  conduct  of  general  elections,  so  far 
as  applicable;  but  no  person  is  entitled  to  vote  a  ticke£  of  any 
political  party  unless  he  resides  in  the  precinct  and  shall  have 
complied  with  the  requirements  of  the  law  relating  to  the  regisr 
tration  of  electors,  ^'nor  unless,  if  challenged,  he  shall  swear  or 
afBrm  that  he  voted  for  a  majority  of  the  candidates  of  sudi 
party  or  association  at  the  last  election,  or  intends  to  do  eo  at 
the  next  election'^ :  Laws  1901,  p.  323.    The  names  of  the  elec- 
tors voting  are  to  be  counted,  and  the  number  written  in  each 
of  the  poll-books  and  certified  by  the  judges  and  clerks;  and 
the  returns  are  to  be  canvassed  by  the  county  clerk  with  the 
assistance  of  two  justices  of  the  peace,  who  shall  certify  and 
publish  the  names  of  the  persons  having  the  highest  number  of 
votes,  and  those  only  shall  be  entitled  to  sit  in  the  convention. 
Parties  are  entitled  to  make  provision  as  they  deem  proper  for 
the  election  of  delegates  for  outside  precincts.    One  committee- 
man may  be  selected  by  each  city  or  county  convention  from  each 
election  precinct,  who  shall  be  the  representative  of  his  party 
in  and  for  such  precinct,  and  the  committeemen  from  all  parts 
of  the  county  shall  constitute  the  county  central  committee 
The  term  of  office  is  two  years  from  the  date  of  the  first  meeting, 
immediately  following  the  election,  and,  in  case  of  a  vacancy 
occurring,  the  remaining  members  may  fill  it. 

To  pursue  logically  the  inquiry  presented  by  the  record,  we 
have  first  to  consider  whether  the  act  is  special  or  local,  and  *** 
within  the  inhibition  of  the  state  constitution,  article  4,  section 
23,  subdivision  13,  as  to  the  passage  of  any  law  "providing  for 
opening  and  conducting  the  elections  of  state,  county,  or  town- 


Not.  1901.J  Ladd  v.  Holmes.  461 

ship  ofiScers^  and  designating  the  places  of  voting/'  because^  if 
it  is,  there  is  no  necessity  for  looking  further^  as  it  disposes  of 
the  case  at  once.  It  is  insisted  that  by  the  express  provisions  of 
the  ad;  it  was  intended  to  have  operation  in  the  city  of  Port- 
land alone — that  being  the  only  city  with  a  population  of  ten 
thousand — and  that  it  can  never  extend  to  or  include  other 
cities^  should  they  come  to  have  or  possess  as  great  or  larger 
population.  If  such  is  the  true  intendment  of  the  act,  the  point 
would  be  well  taken,  as  it  would  then  be  locals  or,  as  the  term 
is  defined  by  Mr.  Sutherland,  "special  as  to  placed':  Suther- 
land on  Statutory  Construction,  sec.  127.  "A  local  act,'' 
says  Mr.  Justice  Lord,  in  Maxwell  v.  Tillamook  County,  20 
Or.  495,  600,  26  Pac.  803,  804,  "applies  only  to  a  limited  part 
of  the  state.  It  touches  but  a  portion  of  its  territory,  a  part 
of  its  people,  or  a  fraction  of  the  property  of  its  citizens."  A 
law  may  be  general,  however,  and  have  but  a  local  application, 
and  it  is  none  the  less  general  and  uniform,  because  it  may 
apply  to  a  designated  class,  if  it  operates  equally  upon  all  the 
subjects  within  the  class  for  which  the  rule  is  adopted;  and,  in 
determining  whether  a  law  is  general  or  special,  the  court  will 
look  to  its  substance  and  necessary  operation  as  well  as  to  its 
form  and  phraseology:  People  v.  Hoffman,  116  HI.  587,  56 
Am.  Eep.  793,  6  N.  E.  596,  8  N.  E.  788;  Nichols  v.  Walter,  37 
ICmi.  264,  33  N.  W.  800.  This  is  the  accepted  rule  everywhere. 
Referring  to  a  provision  in  the  constitution  of  North  Da- 
kota of  similar  import  to  the  one  here  invoked,  Mr.  Chief  Jus- 
tice Corliss  says:  ^'To  say  that  no  classification  can  be  made 
under  such  an  article  would  make  it  one  of  the  most  pernicious 
provisions  ever  made  in  the  fundamental  law  of  the  state.  It 
would  paralyze  the  legislative  will.  It  would  beget  a  worse 
evil  than  unlimited  legislation — ^grouping  together  without 
homogeneity  of  the  most  incongruous  objects  under  the  scope 
of  an  all-embracing  law" :  Edmonds  v.  Hcrbrandson,  2  N.  Dak. 
270,  273,  50  N.  W.  970,  971.  The  ^^  greater  difficulty  cen- 
ters about  the  classification.  It  may  not  be  arbitrary,  and  re- 
quires something  more  than  a  mere  designation  by  such  char- 
acteristics as  will  serve  to  classify.  The  mark  of  distinction 
mnst  be  something  of  substance,  some  attendant  or  inherent 
peculiarity  calling  for  legislation  suggested  by  natural  reason 
of  different  character  to  subserve  the  rightful  demands  of  gov- 
ernmental needs.  So  that,  when  objects  and  places  become 
the  subject  of  legislative  action,  and  it  is  sought  to  include  some 
and  exclude  others,  the  inquiry  should  be  whether  the  distinc- 


4:62  Ahbbioan  State  Bepobts^  Vol.  91.        [Oregon, 

tive  characteristics  upon  whicli  it  is  proposed  to  found  different 
treatment  are  such  as  in  the  nature  of  things  will  denote  in  some 
reasonahle  degree  a  practical  and  real  basis  for  discrimination : 
Sutherland  on  Statutory  Construction,  sees.  127,  128;  Nichols 
V.  Walter,  37  Minn.  264,  33  N.  W.  800 ;  Edmonds  v.  Herbrand- 
son,  2  N.  Dak.  270,  60  N.  W.  970,  971 ;  State  v.  Hammer,  42 
N.  J.  L.  435 ;  People  v.  Board  of  Supervisors,  185  III.  288,  56 
N".  E.  1044.     Accordingly,  it  was  held  that  a  law  general  in  its 
scope,  framed  upon  a  classification  governed  by  these  distinc- 
tive principles,  is  not  special  or  local  because  there  happens  to 
be  but  one  individual  of  the  class,  or  one  place  in  which  it  has 
actual  and  practical  operation :  Van  Riper  v.  Parsons,  40  N.  J- 
L.  1,  40  N.  J.  L.  123,  29  Am.  Rep.  210.    A  statute,  however, 
which  is  plainly  intended  to  affect  a  particular  person  or  thing, 
or  to  become  operative  in  a  particular  place  or  locality,  and 
looks  to  no  broader  or  enlarged  application,  may  be  aptly  char- 
acterized as  special  and  local,  and  falls  within  the  inhibition. 
Of  such  is  State  v.  Mitchell,  31  Ohio   St.  692.    There  the  act 
complained  of  was  made  applicable  to  "cities  of  the  second  class 
having  a  population  of  over  thirty-one  thousand  at  the  last 
federal  census*' ;  the  language  quoted  being  construed  as  signi- 
fying the  federal  census  last  taken  prior  to  the  passage  of  the 
act,  which  made  it  operative  in  the  single  city  of  Columbus, 
and  it  could  never  extend  to  or  include  other  cities,  notwith- 
standing they  might  advance  to  a  like  population.    The  act 
was,  therefore,  although  general  in  terms,  purely  local  in  its 
operation.     So,  in  State  ^'^^  v.  Anderson,  44  Ohio  St.  247,  6 
N.  E.  571 — a  case  involving  an  act  creating  the  ofBce  of  police 
judge  in  all  cities  of  the  second  and  third  classes,  having  a 
population  at  the  last  federal  census  of  sixteen  thousand  five 
hundred  and  twelve,  and  no  more — ^it  was  held  that  the  act  wm 
special,  as  it  could  under  no  condition  apply  to  any  other  citv 
thajv  Akron.    To  the  same  purpose  are  Mott  v.  Hubbard,  59 
Ohio  St.  199,  53  N.  E.  47;  Nichols  v.  Walter,  37  Minn.  264, 
33  N;  W.  800 ;  Edmonds  v.  Herbrandson,  2  N".  Dak.  270,  60  N. 
W.  970,  971;  Devine  v.  Commissioners,  84  111.  590;  Common* 
wealth  V.  Patton,  88  Pa.  St.  258.    In  all  these  the  language 
of  the  acts  concerned  was  so  restrictive  as  to  confine  their 
operation  strictly  to  definite  localities — so  much  so,  as  was 
said  in  the  last  case  cited,  that  the  legislature  may  as  well 
have  pointed  out  the  places  by  naming  them,  and  thus  have  ex- 
cluded all  others.     It  may  be  stated  as  a  positive  rule  of  gen- 
eral application  that  all  acts  or  parts  of  acts  attempting  to 


Not.  1901.]  Ladd  v.  Holmes.  468 

create  a  classification  of  cities  by  population  which  are  con- 
fined in  their  operation  to  a  state  of  facts  existing  at  the  date 
of  their  adoption  or  any  particular  time,  or  which  by  any  de- 
▼ice  or  snbterfuge  exclude  other  cities  from  ever  coming  within 
their  purview,  or  based  upon  any  classification  which  in  rela- 
tion to  the  subject  concerned  is  purely  illusory,  or  founded 
upon  unreasonable,  obnoxious,  or  ill-advised  distinctions,  are 
ineffectual,  as  not  being  founded  in  substance,  are  inimical  to 
the  constitutional  interdiction  against  special  and  local  legisla- 
tion, and  are  therefore  null  and  void:  State  v.  Donovan,  20 
Nev.  75,  15  Pac.  783. 

Upon  the  other  hand,  many  acts  have  been  sustained,  and 
are  constantly  being  upheld,  tiiat  have  local  application  mere- 
ly, where  they  are  based  upon  a  reasonable  and  proper  classi- 
fication .  People  V.  Hoffman,  116  111.  587,  66  Am.  Rep.  793,  5 
N.  E.  596,  8  N.  E.  788,  is  a  case  which  involved  a  law  contain- 
ing an  exception  requiring  supervisors  in  a  county  containing 
a  soldiers'  home  to  provide  a  polling  place  within  the  inclosure 
of  such  home.     So  in  Hanlon  v.  Board  of  Commissioners,  53 
Ind.  123.     There  the  act  declared  that  the  county  auditor  in 
oach  county  *''*  should  receive  increased  compensation  "when 
the  population  of  the  county  exceeds  fifteen  thousand,  as  shown 
by  the  last  preceding  census  taken  by  the  United  States.'*    See, 
also,  State  v.  Reitz,  62  Ind.  159,  30  Am.  Rep.  203,  where  the 
act  gave  the  judges  of  the  criminal  courts  two  thousand  dollars 
per  annum,  with  a  provision  **that  in  all  counties  having  a 
population  of  forty  thousand  the  salary  ....  shall  be  two  thou- 
sand five  himdred  dollars'* ;  and,  in  City  of  Indianapolis  v.  Na- 
vin,  151  Ind.  139,  47  N.  E.  525,  51  N.  E.  80,  where  the  act  was 
niade  to  apply  only  to  street  railroad  companies  operating  in 
cities  of  one  hundred  thousand  or  more  population.    A  similar 
case  is  Tuttle  v.  Polk,  92  Iowa,  433,  60  N.  W.  733,  and  many 
otheiB  may  be  cited:  See  People   v.    Wallace,    70    111.    680; 
People  T.  Onahan,  170  111.  449,  48  N.  E.  1003 ;  Wheeler  v.  City 
of  Philadelphia,  77  Pa.  St.  338;  Kilgore  v.  Magee,  85  Pa. 
St.  401;  Seabolt  v.  Commissioners,  187  Pa.  St.  318,  41  Atl.  22; 
Vamey  ▼.  Kramer,  62  K  J.  L.  483^  41  Atl.  711 ;  Thomason  v. 
Ashworth,  73  Cal.  73,  14  Pac.  615;  In  re  Church,  92  N.  Y. 
1;  People  v.  Squire,  107  N.  Y.  593,  1  Am.  St.  Rep.  893,  and 
note,  14  N.  E.  820;  Darrow  v.  People,  8  Colo.  417,  8  Pac. 
661;  State  v.  Higgins,  125  Mo.  364,  28  S.  W.  638;  Dunne  v. 
Kansas  City  Ry.  Co.,  131  Mo.  1,  32  S.  W.  641 ;  Johnson  v.  City 
of  Milwaukee,  88  Wis.  383,  60  N.  W.  270;  Boyd  v.  City  of  Mil- 


464  Akerioan  State  Bepobts^  Vol.  9L        [Orraoiiy 

waukee,  92  Wis.  456,  66  N.  W.  603;  Harwood  v.  Wentwoitli 
(Ariz.),  42  Pac.  1026,  162  U.  S.  647,  16  Sup.  a.  Bep.  890; 
Holmes  Furniture  Co.  v.  Hedges,  13  Wash.  696,  43  Paa  944; 
State  V.  Stuht,  52  Neb.  209,  71  N.  W.  941. 

We  come  now  to  an  interpretation  of  the  statute,  since  we 
have  ascertained  the  rule  by  which  we  may  distinguish  between 
a  general  and  special  or  local  law.    Much  has  been  said  rela- 
tive to  the  duty  of  the  court  to  uphold  the  law,  as  constitutiosal, 
if  it  is  possible  to  do  so  without  doing  violence  to   common 
reason  and  understanding.    But  we  do  not  conceiye  the  roles 
of  construction  in  ascertaining  the  intendment  of  an  act,  and 
thereby  determining  whether  it  is  within  or  without  the  con- 
stitution, to  be  different  from  those  applicable  ordinarily,  **• 
where  its  true  intendment  and  purpose  are  brought  to  the  test 
for  the  ascertainment  of  its  operative  effect,  for  where  the  one 
is  determined  the  other  is  resolved  also.    There  is  this,  how- 
ever, to  be  borne  in  mind:  That  by  reason  of  the  l^islature 
having  adopted  the  act,  there  goes  with  it  a  presumption  that 
it  is  within  the  pale  of  the  fundamental  law,  otherwise  it  would 
not  have  met  with  the  approval  of  that  body;  and  in  every  case 
where  there  exists,  when  proper  tests  have  been  brought  to  bear. 
a  rational  doubt  upon  the  subject,  it  should  be  resolved  in 
favor  of  its  validity.    Courts  are  never  called  upon  to  adopt 
a  strained  or  unnatural  construction  for  the  specific  purpoae 
of  upholding  a  law,  and,  when  they  have  ascertained  by  fair 
and  reasonable  intendment  that  it  is  inimical  to  some  funda- 
mental provision,  they  will  not  hesitate  to  so  declare.    This  is 
a  solemn  duty  enjoined  upon  them  by  the  settled  law  of  &e 
land,  as  well  as  by  the  oath  which  individual  judges  take  to 
support  the  constitution,  under  which  they  derive  their  powers 
primarily.    The  act  is  to  have  operation  in  any  incorporated 
city  containing  a  population  of  ten  thousand  or  more,  "as 
shown  by  the  last  state  or  federal  census.'^    Portland,  at  the 
time  of  its  passage,  was  the  only  city  falling  within  the  dasd- 
fication.    This  fact,  as  we  have  seen,  does  not  derogate  from 
the  validity  thereof.    But  does  the  language  employed  limit  the 
operation  of  the  act  to  that  city  alone,  to  the  exclusion  of  other 
cities  within  the  state  that  may  subsequently  acquire  the  pre- 
scribed population?    If  it  does  not,  the  next  inquiry  will  be 
wlicther  the  classification  is  one  founded  upon  some  real  and 
substantial,  not  fanciful,  distinction,  suggested  and  prompted 
by  reason  and  experience.     Some  cases  have  been  alluded  to 
wherein  the  population  forming  the  basis  of  classification 


Kov.  1901.]  Ladd  v.  Holmib.  466 

referable  to  the  last  census,  state  or  federal,  naming  but  one, 
and  the  acts  embodying  the  idea  were  all  held  to  be  inyalid. 
By  the  present  act  both  the  state  and  federal  census  are  named 
in  the  altematiye.    It  is  a  matter  of  judicial  cognizance  that 
the  federal  census  is  taken  at  the  close  of  a  decade,  while  the 
state  census  is  taken  five  years  thereafter    (Const.,  art.  4.  sec. 
5;  Hill's  Annotated  Laws,  sec.  2233) ,  thus  affording  a  census 
enumeration  ^'^'^  every  five  years — the  last  federal  census  hav- 
ing been  taken  in  1900,  and  that  of  the  state  in  1895.    Now, 
it  is  reasonable  to  suppose  that  the  legislature  had  this  state 
of  the  law  in  mind  when  it  adopted  the  act,  and  that  it  used 
the  words  *last  state  or  federal  census,^'  not  for  the  purpose 
of  adopting  the  census  of  1900  as  an  inflexible  standard,  but 
rather  that  the  census,  as  taken  from  time  to  time,  whether  state 
or  federal,  should  constitute  the  basis  by  which  the  classifica- 
tion should  be  governed.    If  the  intention  had  been  otherwise, 
the  most  natural  expression  would  have  been  the  ^^ast  federal 
census,^^  which  would  have  meant  unmistakably  the  federal  cen- 
sus of  1900,  and  the  validity  of  the  act  would  have  been  tested 
thereby  to  its  destruction.    The  expression  employed  does  not 
convey  that  idea  at  all,  but  was  intended  to  signify,  no  doubt, 
the  last  preceding  census,  whether  state  or  federal,  so  that  in 
any  period  of  five  years  other  cities  advancing  to  the  desig- 
nated standard  wiU  fall  within  the  class,  and  be  subject  to  the 
operation  of  the  act.    The  identical  language  is  used  in  the  pri- 
mary act  of  1891,  and  its  validity  has  never  been  questioned 
upon  the  ground  that  it  was  special  or  local,  and  the  construc- 
tion that  we  have  given  to  the  act  in  controversy  has  been 
adopted  in  actual  practice  and  usage.    Now,  as  to  the  other 
point,  experience  has  shown  that  rules  and  regulations  of  more 
specific  and  stricter  character  are  needful  for  properly  con- 
trolling and  governing  elections  in  larger  and  more  densely 
populated  cities  and  towns  than  in  the  smaller  ones>  and  in 
rural  districts;  so  that  a  classification  with  respect  to  elections 
founded  upon  population  is  but  a  reasonable  method  of  regula- 
tion, and  the  basis  adopted  affords  an  appropriate  and  legiti- 
mate distinctive  characteristic  for  the  purpose.    We  conclude, 
therefore,  that  the  act  in  question  is  general,  and  not  in  contra- 
vention of  the  state  constitution,  article  4,  section  23,  subdivi- 
sion 13.     This  disposes  of  the  other  contention,  also,  that  the 
act  is  special  and  local,  as  providing  for  the  punishment  of 
crimes  and  misdemeanors.    The  offenses  alluded  to  are  crea- 

Am.  St.  R^..  Vol.  91—30 


466  American  Statb  Ebpoets,  Vol.  91.        [Oregon, 

tures  of,  and  incident  *^®  to,  the  act,  and,  it  being  general, 
the  punishment  was  properly  provided  for. 

This  contention  being  resolved  favorably  to  the  validity  of 
the  act,  we  are  next  brought  to  the  consideration  of  its  appro- 
priate relation  to  a  group  of  constitutional  provisions,  as  to 
each  of  which  it  is  strenuously  urged  that  it  stands  in  positive 
contravention.  These  are  article  1,  section  20,  and  article  2, 
sections  1,  2.  Article  2,  section  1,  provides  that  all  elections 
shall  be  free  and  equal.  To  be  free  means  that  the  voter  shall 
be  left  in  the  untrammeled  exercise,  whether  by  civil  or  mili- 
tary authority,  of  his  right  or  privilege;  that  is  to  say,  no 
impediment  or  restraint  of  any  character  shall  be  imposed  upon 
him,  either  directly  or  indirectly,  whereby  he  shall  be  hindered 
or  prevented  from  participation  at  the  poUs :  De  Walt  v.  Bart- 
ley,  14G  Pa.  St.  529,  28  Am.  St.  Rep.  814,  24  Atl.  185;  People 
V.  Hoffman,  116  111.  587,  56  Am.  Rep.  793,  5  K  B.  596,  8  N.  E. 
788.  The  word  "equaF'  has  a  different  signification.  Every 
elector  has  the  right  to  have  his  vote  count  for"  all  it  is  worth, 
in  proportion  to  the  whole  number  of  qualified  electors  desiring 
to  exercise  their  privilege.  Now,  if  persons  not  legitimately 
entitled  to  vote  are  permitted  to  do  so,  the  legal  voter  is  denied 
his  adequate,  proportionate  share  of  influence,  and  the  result 
is  that  the  election,  as  to  him,  is  unequal ;  that  is,  he  is  denied 
the  equal  influence  to  which  he  is  entitled  with  all  other  quali- 
fied electors:  ^'Ballot  Reform,  Its  Constitutionality''  (John  H- 
Wigmore),  23  Am.  Law  Rev.  719;  Edmonds  v.  Banbury,  28 
Iowa,  267,  271,  4  Am.  Rep.  177;  Davis  v.  School  Dist.,  44  N. 
H.  398,  404;  Commonwealth  v.  McClelland,  83  Ky.  686.  So 
that  the  terms  "free''  and  '^equaV  used  as  they  are,  correla- 
tively,  signify  that  the  elections  shall  not  only  be  open  and  un- 
trammeled to  all  persons  endowed  with  the  elective  franchise, 
but  shall  be  closed  to  all  not  in  the  enjoyment  of  such  privilege 
imder  the  constitution. 

Does  the  election  provided  for  by  the  act  in  controversy  come 
within  the  purview  of  section  2,  article  2  of  the  constitution, 
which  provides  that,  ^'in  all  elections  not  otherwise  provided  for 
by  this  constitution,  every  white  male  citizen  of  the  *^  United 
States,  of  the  age  of  twenty-one  yei^rs  and  upward,  who  shall 
have  resided  in  the  state  during  the  six  months  immediately 
preceding  such  election,  and  every  white  male  of  foreign  birth 
of  the  age  of  twenty-one  years  and  upward,  who  shall  have>  re- 
sided in  this  state  during  the  six  months  immediately  preceding 
such  election,  shall  have  declared  his  intention  to  become  a 


Nov.  1901.]  Ladd  r.  Holmes.  467 

citizen  of  the  United  States  one  year  preceding  such  electiony 
conformably  to  the  laws  of  the  United  States  on  the  subject  of 
naturalization^  shall  be  entitled  to  yote  at  all  elections  author- 
ized by  law**?    We  believe  that  it  does.    We  had  occasion  to 
construe  this  clause  in  Harris  v.-  Burr,  32  Or.  348,  52  Pac.  17, 
Its  significance,  as  then  ascertained,  is  that  the  individuals 
therein  designated  are  entitled  to  vote  at  all  elections  authorized 
by  law,  not  otherwise  provided  for  by  the  constitution.    School 
elections  are  controlled  by  the  constitutional  provision  whereby 
the  legislative  assembly  is  required  to  provide  by  law  for  the  es- 
tablishment  of  a  uniform  and  general  system  of  common  schools. 
Therefore,  it  was  held  that  such  elections  were  otherwise  pro- 
vided for  by  the  constitution,  and  that  a  law  extending  to  women 
the  privilege  of  voting  at  school  elections  was  not  inimical  to 
section  2,  article  2.    It  seems  to  us  hardly  a  matter  of  serious 
controversy  that  the  elections  presently  provided  for  are  such 
as  are  authorized  by  law.    They  are,  in  practical  effect,  required 
to  be  held  by  all  parties  polling  a  three  per  cent  vote,  as  no  con- 
vention nomination  can  be  legally  made  unless  the  delegates 
attending  such  convention  from  the  precincts  included  within 
a  city  falling  within  the  class  prescribed  are  selected  at  such 
primary  .election.    The  judges  of  election  appointed  under  the 
general  law  are  authorized  and  required  to  preside  at  the  primary 
election,  and  to  count  and  certify  the  vote;  and  the  county  clerk, 
a  public  functionary,  is,  with  the  assistance  of  two  justices  of 
the  peace,  required  to  make  abstracts  from  the  returns,  and 
thereupon  to  publish  the  result,  the  delegates  receiving  the 
highest  number  of  votes  being  entitled  to  sit  in  the  convention, 
and  the  election  is  held  at  public  expense.    With  all  this,  there 
is  certainly  an  election  authorized  by  law,  *®^  and  such  a  one 
as  is  not  elsewhere  provided  for  by  the  constitution:  Spier  ▼- 
Baker,  120  Cal.  370,  52  Pac.  669;  Britton  v.  Board,  129  Cal. 
337,  61  Pac.  1115.    The  act  is  none  the  less  valid  because  it 
provides  for  a  party  election,  or,  to  speak  more  precisely,  elec- 
tions had  at  party  primaries..    All  electors  of  parties  authorized 
or  required  to  hold  such  elections  are  entitled  to  vote  at  their 
respective  party  primaries,  and  not  elsewhere.    It  is  not  true 
that  every  citizen  accorded  the  elective  franchise  under  the  con- 
stitution is  entitled  to  vote  at  all  elections.    A  citizen  of  one 
county  is  not  entitled  to  vote  at  an  election  held  in  another 
county  for  local  officers,  and  a  citizen  of  one  precinct  is  not  en- 
titled to  vote  in  another,  nor  of  one  city  or  town  in  another;  so 
that  the  right  of  all  electors  to  vote  does  not  extend  to  all  dec- 


468  Amebioak  State  Bepobts^  Vol.  9L        [Oregon, 

tions  authorized  by  law,  but  is  dependent  largely  upon  the  place 
of  residence,  and  the  nature  of  the  election  to  be  held.  So  it  is 
where  party  primary  elections  are  held,  such  as  are  authorized 
and  required  by  law,  and  under  the  supervision  and  inspection 
of  public  functionaries ;  it  is  not  a  violation  of  the  constitution 
that  all  electors  are  not  permitted  to  vote  at  a  particular  party 
election.  Electors  of  one  party  have  no  desire,  unless  prompted 
by  sinister  or  evil  motives,  nor  have  they  any  inherent  right, 
within  or  without  the  constitution,  to  vote  at  some  other  party 
primary  or  election;  hence  no  right  or  privilege  of  which  they 
can  complain  has  been  intrenched  upon  or  violated.  We  see 
no  objection  to  the  legislature  providing  for  party  elections, 
and  limiting  the  electoral  privilege  to  party  members.  The 
exclusion  of  other  party  members  from  participating  in  such 
elections  is  not  an  infringement  or  denial  of  a  constitutional 
right  or  privilege. 

The  state  constitution,  article  1,  section  20,  provides  that  *^ 
law  shall  be  passed  granting  to  any  citizen  or  class  of  citizens 
privileges  or  immunities  which,  upon  the  same  terms,  shall  not 
equally  belong  to  all  citizens/*  Mr.  McKercher  complains  (he 
being  a  Prohibitionist,  and  a  member  of  a  party  casting  less 
than  three  per  cent  of  the  vote  at  the  preceding  general  elec- 
tion) that  there  is  an  unjust  and  unwarranted  discrimination 
^^^  against  his  party  as  a  class,  as  no  provision  is  made  in  the 
act  whereby  his  party  may  hold  primary  elections  for  the  pur- 
pose of  selecting  representatives  to  a  convention  of  delegates, 
and  hence  that  he  and  his  party  are  denied  a  privilege  granted  to 
parties  casting  more  than  three  per  cent  of  the  vote.  The  re- 
quirements of  the  act,  however,  do  not  amount  to  more  than  a 
regulation  suited  to  the  larger  number  of  adherents  entitled  to 
participate,  for  the  better  safeguarding  and  preservation  of  the 
privileges  of  electors.  Under  the  Australian  ballot  law,  only 
€uch  parties  as  have  cast  a  three  per  cent  vote  are  entitled  to 
have  the  names  of  their  candidates  printed  upon  the  oflBcial 
ballot  through  the  instrumentality  of  a  convention' of  delegates. 
Parties  of  a  smaller  membership  can  only  secure  a  place  upon 
such  ballot  by  means  of  an  assembly  of  electors  or  a  certificate 
of  nomination  by  individual  electors;  and  this  is  held  to  be  a 
regulation  merely,  and  not  an  infringement  of  any  constitutional 
right  of  the  minor  or  smaller  parties,  or  the  members  thereof. 
Such  a  provision  was  brought  to  the  test  in  Pennsylvania  in 
De  Walt  V.  Bartley,  146  Pa.  St.  529, 28  Am.  St  Rep.  814, 24  Atl 
185,  where  the  insistence  was  the  same  as  here,  respecting  which 


Nov.  1901.]  Ladd  v.  Holmes.  469 

Mr.  Chief  Justice  Pazson  saya:  ''The  contention  is  plausible, 
but  nnsoxind.    The  act  does  not  deny  any  voter  the  exercise  of 
the  elective  franchise  becanse  he  happens  to  be  a  member  of  a 
party  which  at  the  last  general  election  polled  less  than  three 
per  cent  of  the  entire  vote  cast.    The  provision  referred  to  is 
but  a  regulation,  and  we  think  a  reasonable  one,  in  regard  to 
the  printing  of  tickets.**    So,  in  Wisconsin,  where,  as  in  Penn- 
sylvania, the  Australian  ballot  law  was  challenged  upon  the  disr 
tinctive  ground  that  it  was  an  unwarrantable  discrimination 
between  different  classes  of  voters,  it  was  held,  in  effect,  that  a 
reasonable  qualification  for  party  representation  upon  the  official 
ballot   was  not  a  constitutional  discrimination  between  such 
classes :  State  v.  Anderson,  100  Wis.  523,  76  ST.  W.  483.    To 
the  same  purpose  is  State  v.  Poston,  68  Ohio  St.  620,  51  N.  B. 
150,  and  Hansom  v.  Black,  54  N.  J.  L.  446,  24  Atl.  489,  1021. 
The  **■  privilege  of  holding  primaries  under  regulations  pre- 
scribed by  law,  if  it  can  be  denominated  a  privilege,  is  but  a 
means  employed  for  the  designation  or  certification  of  delegates 
whose  business  it  becomes  to  name  candidates  for  public  office, 
the  ultimate  purpose  being  to  afford  party  representation  upon 
the  official  ballot.    The  minor  parties  are  afforded  ample  oppor- 
tunity for  obtaining  a  like  representation  thereon,  and,  while  a 
different  mode  of  procedure  is  pointed  out  for  the  accomplish- 
ment of  the  purpose,  there  is  no  denial  or  infringement  upon 
the  ultimate  right  or  privilege  of  voting  for  the  candidate  of 
their  choice  with  equal  ease  and  facility.    The  difference  in  the 
mode  of  obtaining  representation  upon  the  official  ballot  is  rea- 
sonably suited  to  the  proper  direction,  supervision,  and  control 
of  the  greater  parties  at  their  primaries,  with  a  view  of  securing 
a  free  and  equal  ballot;  and  the  system  was  so  designed,  and 
cannot  be  considered  else  than  a  regulation  looking  to  that  end. 
There  is  no  discrimination  against  the  minor  parties,  except  in 
the  mode  of  certifying  their  nominations,  as  they  may  yet  hold 
primaries  and  conventions,  and  this  is  justified  by  the  substan- 
tial difference  in  party  conditions.    The  analogy  between  this 
and  the  Australian  ballot  law  in  respect  to  obtaining  a  place 
upon  the  official  ballot  is  apparent  and  complete. 

Another  contention  strongly  pressed  is  that  the  system  of 
primary  elections  provided  for  by  the  act  unwarrantably  inter- 
feres with  the  party  management  of  political  concerns.  It  is 
not  claimed  that  any  positive  constitutional  provision  is  in- 
trenched upon,  except  as  sections  26  and  33  of  article  1  of  the 
Bill  of  Bights  may  affect  the  matter  incidentally.    It  is  said  in 


470  American  State  Bepobts,  Vol.  91.        [Or^;iHiy 

the  brief  that^  ^'independent  of  any  expression  in  the  funds- 
mental  law  of  the  state^  there  are  certain  political  rights,  ind* 
dental  to  those  guarantied  by  the  con^titation,  whidi  cannot  be 
abridged  by  the  legislature/'  In  elaboration  of  that  idea.  a;s 
applicable  generally^  we  quote  from  tiie  language  of  Mr.  Justice 
Chase  in  Calder  v.  BuU,  3  Dall.  386 — a  case  cited  by  oounseL 
He  says:  ''There  are  certain  vital  principles  in  our  free  repub- 
lican governments  which  will  determine  and  overrule  ***  an 
apparent  and  flagrant  abuse  of  legislative  power,  as  to  authorize 
manifest  injustice  by  positive  law,  or  to  take  away  that  security 
ior  personal  liberty  or  private  property  for  the  protection 
"whereof  the  government  wafl  established.  An  act  of  the  legis- 
<lature  (for  I  cannot  call  it  a  law)  contrary  to  the  great  first 
.principles  of  the  social  compact  cannot  be  considered  a  rightful 

exercise  of  legislative  authority It  is  against  aU  reason 

and  Justice  for  a  people  to  intrust  a  legislature  with  such  pow- 
ers, and  therefore  it  cannot  be  presumed  that  they  have  done 
it.*'  Citizens'  Sav.  Assn.  v.  Topeka,  20  Wall.  655,  662,  is  to  the 
same  purpose.  The  Bill  of  Rights  declares  (article  1,  section 
>33)  that  the  enumeration  of  rights' and  privileges  therein  con- 
stained  shall  not  be  construed  to  impair  or  deny  others  retained 
Jby  the  people.  The  rights  insisted  upon  here,  it  is  thought,  are 
among  those  retained  or  reserved.  By  sections  26,  article  ly 
there  can  be  no  restraint  of  any  of  the  inhabitants  of  the  state 
from  assembling  together  in  a  peaceable  manner  to  consult  for 
their  common  good.  Based  upon  these  principles,  the  plaintiffs 
assert  that  they  and  all  other  citizens  of  Oregon  are  vested  with 
certain  political  rights  that  are  invaded  by  the  act,  among  which 
are  the  right  of  association  with  others  for  political  purposes, 
and  the  right  to  protect  their  organizations  from  invasion  and 
control  by  those  whose  purposes  in  politics  are  adverse.  This 
leads  to  an  inquiry  touching  those  political  rights,  and  to  what 
extent  they  may  be  regulated  and  restricted  by  legialative  action. 
In  the  United  States,  the  history  of  parties  begins  with  the 
constitutional  convention  of  1787.  It  extends  throughout  all 
the  ramifications  and  complexities  of  the  national  and  state 
governments,  and  continues  to  the  present  time.  Parties  are 
important  factors  in  propagating,  maintaining,  and  promul- 
gating governmental  policy;  and  it  is  largely  through  their 
operation  and  influence  that  the  destiny  of  the  country  is  molded 
and  established,  and  it  may  be  that  they  are  absolutely  essai- 
tial  to  the  maintenance  of  a  representative  form  of  govern- 
ment.   Before  the  constitution  it  was  the  custom  in  Massa- 


Not.  1901.]  Ladd  v.  Holmes.  471 

chnsetts,  and  some  other  colonies,  perhaps,  for  a  coterie  of  lead- 
ing *®*  citizens  to  put  forward  candidates  for  oflBce,  and  the.«e 
were  generally  accepted  without  question.  Clubs  sprang  up  in 
£ome  localities,  especially  in  New  York,  and  became  the  organs 
of  groups  and  parties,  and  brought  out  candidates,  while  in  New 
England  the  clergy  participated  in  leadership.  "Presently,^^ 
it  is  said,  ^'as  the  democratic  spirit  grew,  and  people  would  no 
longer  acquiesce  in  self-appointed  chiefs,  the  legislatures  began 
to  be  recognized  as  the  bodies  to  make  nominations  for  the  higher 
federal  and  state  ofiQces.  Each  party  in  Congress  nominated 
the  candidate  to  be  run  for  the  presidency,  each  party  in  a  state 
legislature  the  candidate  for  governor,  and  often  for  other  places 
also/^ 

This  lasted  through  the  early  decades  of  the  nineteenth  cenr 
tnry,  but  as  party  struggles  became  more  intense,  a  closer  and 
more  comprehensive  organization  was  established,  which  satisfied 
the  claims  of  the  party  leaders,  concentrated  the  efforts  of  in- 
dividuals, and  knit  them  together  for  a  common  purpose,  while 
it  expressed  absolute  equality  of  all  voters,  and  the  right  of  each 
to  participate  in  the  selection  of  candidates  and  the  adoption 
of  party  platforms.    This  new  party  regime  grew  and  ripened, 
as  it  respects  the  Democratic  party,  about  the  year  1835,  and, 
as  to  the  Whigs,  some  years  later;  and,  when  the  Sepublican 
party  sprang  up,  it  adopted  the  system  in  all  of  its  essential 
features.    The  true  theory  of  popular  sovereignty  requires  that 
the  ruling  majority  must  name  its  own  standard  bearers  or  can- 
didates>  must  define  its  policy,  and  in  every  way  express  its  own 
mind  and  will;  and  the  system  thus  developed  and  matured  is 
in  accord  with  that  theory.    It  is  strictly  representative  through- 
out ,  is  not  a  mere  contrivance  of  party  intrigue,  or  for  prevent- 
ing dissensions,  but  an  essential  feature  of  matured  democracy : 
2  Bryce^s  American  Commonwealth,  c.  69  (entitled  ^Tarty  Or- 
ganizations'^), p.  44.    It  will  be  seen,  therefore,  that  the  system 
in  vogue  has  developed  under  the  constitutions,  federal  and 
state,  although  not  a  matter  of  special  concern  at  the  time  of 
their  adoption-    The  parties  or  organs  of  the  system  are  volun- 
tary associations,  pure  and  simple,  while  the  functions  they  per- 
form relate  in  the  main  to  public  ^®*  concerns.    The  primary 
is  the  initial  step  in  the  system  looking  to  the  nomination  of  can- 
didates whose  names  are  to  find  a  place  upon  the  official  ballot, 
and  through  its  agencies  to  be  submitted  to  the  qualified  electors 
for  an  expression  of  their  choice.    At  the  top,  the  constitution 
expressly  declares  there  shall  be  a  free  and  untrammeled  ballot, 


472  American  State  Bepoets,  Vol.  91.        [Oregon, 

but  its  spirit  pervades  the  whole,  and  reaches  hack  to  the  incep- 
tion of  the  choice  of  a  candidate;  so  that  every  elector  must  be 
as  free  to  express  his  own  choice  of  a  candidate  as  to  denote  his 
choice  of  a  public  oflBcer  at  the  polls.  If  it  were  not  so,  of  what 
avail  would  be  the  ballot  in  the  hands  of  the  people?  Once  the 
stream  is  polluted  at  its  source,  access  to  its  waters,  however 
free,  will  not  serve  to  purify  it.  So  it  is  if  the  people  or  party 
members  are  deprived  of  their  free  choice  of  candidates,  their 
sacred  privilege  of  exercising  an  elective  franchise  is  stripped  of 
its  virtue.  Mr.  Bryce,  in  speaking  of  party  management  and 
the  agencies  employed,  including  the  primary,  in  securing  nomi- 
nations and  promoting  their  selection  by  the  people,  says: 
'These  details  have  more  significance  and  make  more  difference 
to  the  working  of  the  government  than  many  of  the  provisions 
of  the  constitution  itselP :  2  Brvce's  American  Commonwealth,, 
c.  60  (entitled  "Party  Organizations*'),  p.  57.  It  would  seem, 
from  these  observations  and  conditions,  that  party  management 
is  of  such  vital  importance  to  the  public  and  the  state  as  tliat  ita 
operation,  in  so  far  as  it  respects  the  naming  of  candidates  for 
public  office,  is  an  object  of  special  legislative  concern,  to  see 
that  the  purposes  of  the  constitution  are  not  perverted^  and  the 
people  shorn  of  a  free  choice. 

No  attempt  is  made  to  specify  all  the  particulars  in  which 
the  act  in  question  invades  the  right  of  party  management,  but 
there  are  three  which  have  become  prominent  in  the  discus- 
sion. These  are  the  appointment  of  judges  and  clerks  of  the 
election  by  the  county  court,  the  test  prescribed  for  indicating 
party  affiliation,  and  the  manner  pointed  out  for  the  election 
of  committeemen,  fixing  their  terms  of  office,  and  specifying 
their  duties.  It  is  admitted  that  the  legislature  has  power  to 
require  parties  to  keep  a  registry  of  voters  in  precincts,  adopt 
**•  rules  and  regulations  for  purging  from  the  lists  the  names 
of  persons  as  they  die,  move  out  of  the  precinct,  or  change  their 
politics,  and  to  provide  for  a  secret  ballot  at  their  primaries. 

The  primary  act  of  1891  requires  parties  to  give  notice  of  the 
time  of  holding  primaries  in  cities  of  two  thousand  five  hun- 
dred or  more  of  population,  and  prescribes  the  manner  of  giv- 
ing it;  designates  the  number  of  judges  to  be  appointed,  fixes 
their  qualifications,  and  requires  them,  together  with  the  clerks 
to  be  named,  to  perform  their  functions  under  the  sanction  of 
an  oath;  and  directs  that  their  returns  shall  be  made  to  the 
county  clerk,  as  well  as  to  the  political  organizations  under 
whose  authority  such  primary  elections  are  held.    These  aie 


Not.  ISOl.]  Ladd  v.  Holmes.  473 

regolatioiis^  also,  which  are  virtually  conceded  to  have  been 
authoritativly  made  by  the  legislature.    There  is  here  some 
r^Qlaidon  of-  the  acts  of  political  parties,  looking  to  the  nomi- 
nation of  candidates  for  public  office;  and  how  much  further 
the  law-making  power  may  be  permitted  to  go,  or  where  it  shall 
stop,  is  not  pointed  out.    But  it  seems  to  us  that  if  the  power  is 
appropriate  to  requiring  an  oath  of  judges  and  clerks,  such  as 
is  prescribed  for  the  judges  and  clerks  at  general  elections,  it 
is  also  adequate  to  the  naming  of  these  officers  through  the  in* 
stmmentality  of  the  civil  authorities.    It  is  urged  that  parti- 
san boards  should  preside  over  partisan  primaries;   and  it 
might  be  better  that  they  should;  but  that  is  a  matter  of  policy, 
and  not  of  power.     So,  too,  with  ihe  manner  in  which  commit- 
teemen shall  be  selected,  the  designation  of  their  duties,  and 
their  term  of  office.    If  a  managing  committee  may  be  required 
to  give  notice  in  a  particular  manner  touching  an  anticipated 
primary  election  and  appoint  judges,  why  may  not  the  legisla- 
ture go  a  step  further,  and  provide  for  the  selection  of  its  mem- 
bers^ denoting  the  terms  of  office,  and  prescribe  their  duties? 
If  the  power  exists  in  the  one  case,  where  is  the  line  to  be  drawn 
to  mark  the  boundary?    It  seems  to  us  that  when  any  super* 
vision  of  the  acts  of  political  parties  looking  to  the  selec- 
tion of  candidates  to  be  submitted  to  the  suffrages  of  the 
people  under  the  constitution    is  conceded  to  be  within  the 
power  of  the  legislature,  a  power  commensurate  with  a  super- 
vision ^^^  of  the  entire  scheme  of  nominations  for  public  office 
is  also  conceded.    In  the  case  of  People  v.  Democratic  General 
Committee  of  Kings  County,  164  N.  Y.  335,  68  N.  E.  124,  it 
was  held  that,  imder  a  law  requiring  each  political  party  to 
have  a  general  committee  in  each  county,  the  members  to  hold 
their  office  for  one  year,  and  to  be  selected  at  primary  elections 
in  the  manner  pointed  out  by  law,  a  member  thereof  could  not 
be  removed  by  the  committee  during  the  term  for  which  he 
was  elected,  and,  again,  that  legislative  action  contrary  to,  and 
inconsistent  with,  the  rules  and  regulations  of  parties,  and  of 
conventions  and  committees  thereof,  will  effectually  displace 
and  supplant  all  such  rules  and  regulations,  and  render  them 
nugatory.    Here  is  positive  judicial  recognition  of  legislative 
autiiority  for  the  supervision  of  party  affairs,  as  it  concerns 
nominations  for  public  office,  that  goes  beyond  any  provision  of 
the  Lockwood  act. 

The  test  prescribed  for  participating  in  a  party  primary  is 
that  the  elector  ^'voted  for  a  majority  of  the  candidates  of  such 


474  Amerioan  State  Bepoets,  Vol.  91.        [OregaD, 

party  or  association  at  the  last  election^  or  intends  to  do  so  at 
the  next  election/'  The  authority  of  the  legislature  to  pre- 
ecribe  any  test  whatever  is  challenged ;  that  being  a  matter^  it 
is  contended^  wholly  within  the  discretion  of  the  parties  them- 
selves. The  California  primary  act  of  1899  was  declared  inop- 
erative because  it  prescribed  no  test  whatever,  and  permitted 
persons  of  diflPerent  party  afiiliations  to  vote  for  party  dele- 
gates :  Britton  v.  Board  of  Election  Commrs.,  129  CaL  337,  61 
Pac.  1115.  Hence  it  would  seem  that  a  test  is  necessarv.  But 
who  shall  prescribe  it?  Neither  the  legislature  nor  the  parties 
can  prescribe  any  test,  it  is  plain,  that  will  operate  to  exclude 
legal  voters  of  the  same  political  faith,  nor  admit  any  that  are 
not  legally  qualified,  as  otherwise  the  election  would  not  be 
free  and  equal.  The  election  being  authorized  by  law,  parties 
cannot  claim  any  higher  authority  touching  the  qualifications 
of  voters  thereat  than  the  legislature.  If  so,  they  might  easily 
subvert  the  will  of  the  legislature,  and  render  the  law  nuga- 
tory for  any  substantial  purpose.  So  the  question  recurs  as  to 
whether  this  feature  is  one  of  regulation,  also.  We  think  it  is, 
*®®  and  within  the  power  of  the  legislature  to  prescribe  the 
rules  relative  thereto  under  the  constitution.  The  fundamental 
principle  upon  which  such  legislative  authority  proceeds^  and 
must  proceed,  is  that  its  ultimate  purpose  is  the  election  of 
public  officers  by  a  free  and  equal  choice  of  the  qualified  elec^ 
tors.  A  free  and  equal  choice  of  such  officers  includes  a  free 
and  equal  choice  by  party  members  of  the  delegates  whose 
function  it  becomes  to  select  partisan  candidates,  and  the  \e^ 
lative  authority  is  adequate  to  prescribe  all  reasonable  rules  and 
regulations  looking  to  the  security  and  safeguarding  of  these 
sacred  rights  and  privileges.  In  so  doing,  the  right  of  the  ad- 
herents of  the  respective  parties  to  assemble  and  consult  to- 
gether for  their  common  good  is  in  no  way  impinged  upon,  and 
they  may  still  advocate  and  promulgate  political  doctrines  and 
principles  without  restriction,  so  that  it  is  done  in  a  peaceable 
manner,  and  does  not  tend  to  moral  obliquity,  the  infraction 
of  the  law  (Davis  v.  Beason,  133  TJ.  S.  333,  10  Sup.  Ct,  R^. 
299),  or  the  destruction  of  the  government  itself.  In  so  far 
as  Britton  v.  Board,  129  Cal.  337,  61  Pac.  1116,  is  not  in  har- 
mony with  this  view,  if  it  may  be  so  considered,  we  cannot  ap- 
prove it. 

These  observations  are  applicable  to  other  features  of  tiie  law 
to  which  objections  are  made.  Is  the  test  a  reasonable  rqfula- 
tion  by  which  to  ascertain  party  affiliation  ?    Mr.  Biyce  says  tbe 


Hov.  1901.]  Ladd  v.  Holmes.  475 

usual  test  adopted  by  parties  is,  '^id  the  claimant  vote  the  party 
ticket  at  the  last  important  election — ^generally  the  presidential 
election^  or  that  for  the  state  governorship  ?**  2  Bryce's  American 
Commonwealth,  c.  60,  p.  55.  The  Wisconsin  acts  of  1895  and 
1897  prescribe,  in  effect,  that  precise  test:  Wis.  Sess.  Laws  1895, 
p.  567,  Wifi.  Sess.  Laws  1897,  p.  699.  The  California  act  of 
1897  provides  that  if  a  person  challenged  make  oath  that  it  was 
his  bona  fide  present  intention  to  support  the  nominees  of  the 
convention  to  which  delegates  are  to  be  elected  for  such  politi- 
cal party  or  organization,  he  should  be  entitled  to  vote:  Cal. 
Stats.  1897,  p.  124.  The  act  was  declared  unconstitutional, 
but  not  upon  that  ground:  Spier  v.  Baker,  120  Cal.  370,  52 
Pac  659.  And  the  legislature  evidently  ^®®  so  understood 
it,  as  at  its  session  of  1901  it  passed  another  act  containing 
precisely  the  same  test  to  be  applied  at  a  party  primary  elec- 
tion: Cal.  Stats.  1901,  p.  615.  By  the  New  York  act,  the 
elector  must  declare  that  he  is  in  general  sympathy  with  the 
principles  of  the  party  at  whose  primary  he  desires  to  vote; 
that  it  is  his  intention  to  support  generally  at  the  next  gen- 
eral election,  state  or  national,  the  nominees  of  such  party  for 
state  or  national  offices;  and  that  he  has  not  enrolled  with  or 
participated  in  any  primary  election  or  convention  of  any  other 
party  eince  the  first  day  of  the  preceding  year:  N.  Y.  Sess. 
Laws  1898,  vol.  1,  c.  179,  p.  334.  This  is  as  far  as  we  have 
been  able  to  find  precedent,  and  we  are  impressed  that  the 
New  York  provisions  are  better  calculated  to  serve  the  purpose 
for  which  they  are  intended  than  the  others;  and  yet  it  is  con- 
cededly  impossible  to  provide  any  test  by  which  all  fraud  and 
illegal  voting  may  be  detected  and  prevented.  Much  must  be 
left  to  the  legislature  to  determine,  and,  so  long  as  it  cannot 
be  said  that  the  test  adopted  is  inapt  and  imreasonable,  it 
ought  to  be  permitted  to  stand;  hence  we  are  constrained  to 
hold  that  the  present  law  is  valid  as  it  respects  that  specific 
objection* 

Special  attention  is  directed  to  section  14,  relating  to  per- 
sons entitled  to  vote  at  the  primary.  The  language  is:  '^But 
no  person  «hall  be  entitled  to  vote  a  ticket  of  any  political  party 
or  association  unless  he  resides  in  the  precinct  where  he  offers 
to  vote,  shall  have  complied  with  the  requirements  of  the  law 
relating  to  registration  of  electors,  and  shall  be  entitled  to  vote 
at  the  next  ensuing  general  election  under  the  provision'*  of 
the  registration  law:  Laws  1901,  p.  323.  Plaintiffs'  counsel 
claim  a  significance  for  that  clause  which  would  close  the  door 


476  Ahsbioan  Statb  Bepobtb^  Vol.  91.        [Or^oBy 

to  all  electors  who  had  not  secured  registration  prior  to  pri- 
mary day^  but^  when  construed  with  the  preceding  section,  it  is 
apparent  that  it  was  not  so  intended.  That  section  prescribes 
the  usual  oath  to  be  propounded  to  electors  at  a  general  elec- 
tion^ which  indicates  that  a  person  entitled  to  vote  must  be  a 
qualified  elector  at  that  particular  election,  not  that  he  would 
be  entitled  to  vote  at  the  general  election  following.  The  evi- 
dent ^•^  purpose  was  to  give  operation  to  the  registry  act,  so 
far  as  applicable,  so  that  the  voter  must  either  register,  or  stand 
challenged  at  the  primary  polls,  whereupon  he  shall  produa* 
proofs  entitling  him  to  vote,  as  required  by  section  16  of  the 
registry  act  (Laws  1899,  p.  128),  before  he  may  be  allowed  to 

do  80. 

Objection  is  made  that  the  law  makes  no  provision  for  any 
special  election  that  may  become  necessary,  but  this  is  not 
vital,  as  the  effect  would  be  to  relegate  the  parties  to  the  law 
heretofore  governing  primary  elections. 

Another  invasion  of  political  management  complained  of  is 
that  there  is  a  discrimination  against  country  precincts;  it 
being  maintained  that,  by  a  reading  of  the  last  clause  of  section 
24  in  juxtaposition  with  the  last  clause  of  section  25,  it  becomes 
manifest  that  such  precincts  might  be  deprived  of  all  represen- 
tation in  the  county  convention.  Such  an  events  however,  could 
hardly  happen  when  it  is  considered  that  the  managing  com- 
mittee is  to  be  composed  of  a  representative  from  each  precinct 
in  the  county,  who  are  to  apportion  the  delegates  in  accordance 
with  the  party  vote  polled  at  the  last  precetling  dection. 

It  is  next  insisted  that  section  25  of  the  act  which  relates  to 
the  appointment  of  a  county  managing  committee,  and  its  func- 
tions and  duties,  is  without  the  purview  of  the  title  of  the  act 
The  title  is :  ''To  provide  for  primary  elections  in  cities  having 
a  population  of  more  than  ten  thousand  inhabitants^  and  pro- 
viding the  manner  of  conducting  the  same,'*  etc  Now,  the 
matter  contained  in  the  section  alluded  to  is  germane  to  the 
subject  expressed,  being  a  regulation  connected  with  the  holding 
of  primaries,  and  is  therefore  within  its  purview,  within  the 
meaning  of  article  9,  section  20  of  the  state  constitution* 

And,  again,  it  is  insisted  that  it  was  not  competent  for  tbe 
legislature  to  impose  the  burden  of  primary  elections  within  the 
city  of  Portland  upon  the  whole  county  of  Multnomah,  which  is 
made  a  special  cause  of  complaint  by  Mr.  Bain,  who  reside*: 
and  is  a  taxpayer  outside  of  the  city  limits.  The  answer  to  this, 
it  seems  to  us,  is  that  the  expense  is  incident  to^  and  in  ^*^ 


Dec  1901.]    PAanc  States  Savings  bto.  Co.  v.  Hill.     477 

pursuance  of,  a  general  law  of  the  state,  although  it  operates 
locally.  The  election  is  for  the  selection  of  precinct  delegates 
and  officers,  which  is  properly  a  county  charge:  Board  of 
Cornmrs.  of  Marion  County  v.  Center  Tp.,  107  Ind.  584,  8  N. 
E.  625.  This  is  unlike  the  case  of  Simon  v.  Northup,  27  Or. 
487,  40  Pac.  660,  where  the  attempt  was  made  to  impose  a  debt 
of  the  city  upon  the  county  which  the  county  was  neither  under 
legal  nor  moral  obligation  to  pay.  Nor  is  the  act  one  providing 
for  a  tax  which  is  required  to  be  equal  and  uniform,  but  it 
simply  provides  for  the  adjustment  of  a  public  burden  which  is 
appropriately  incident  to  the  county. 

This  disposes  of  all  the  questions  involved,  and,  being  favor- 
able to  the  respondent,  the  decree  of  the  court  below  will  be  af- 
firmed. 


As  to  Whether  a  Statute  is  Special  or  Local  when  it  can  apply  to 
but  one  city  within  the  commonwealth,  see  State  v.  Jones,  66  Ohio  St. 
453,  64  N.  E^  424,  90  Am.  St.  Bep.  592,  and  cases  cited  in  1;he  erosa- 
reference  note  thereto. 

The  Legislature  is  Competent  to  Regulate  Elections,  to  the  end  of 
preserving  their  purity  and  the  independence  of  voters,  so  far  as  the 
regulations  adopted  are  reasonable:  Taylor  v.  Bleakley,  55  Kan.  1, 
49  Am.  St.  Bep.  233,  39  Pac-  1045;  Whittam  v.  Zahorik,  91  Iowa,  23, 
51  Am.  St.  Bep.  317,  59  N.  W.  57;  State  ▼.  MeElroy,  44  La.  Ann.  796, 
32  Am.  St.  Bop.  355,  11  South.  133;  De  Walt  v.  Bartley,  146  Pa.  St. 
529,  2S  .Am.  St.  Bep.  814,  24  Atl.  185;  note  to  Blair  v.  Bidgely,  97  Am. 
Dec  266.  Statutes  requiring  registration  as  a  prerequisite  to  the 
right  to  vote  are  valid:  Stallcup  v.  Tacoma,  13  Wash.  141,  52  Am.  St. 
Rep.  25,  42  Pac  541;  note  to  Capen  v.  Foster,  23  Am.  Dec.  642-651. 


PACIFIC  STATES  SAVINGS,  LOAN  AND  BUILDING 

COMPANY  V.  HILL. 

[40  Or.  280,  67  Pac  103.] 

FOBEIGN  OOBPOBATION—Agent  to  Becelve  Serylce.~A 
loan  association  is  not  within  the  purview  of  a  statute  requiring 
foreign  banking  concerns  to  appoint  a  resident  of  the  state  as  at- 
torney on  whom  writs  and  process  may  be  served,     (p.  480.) 

USUBY.— A  Ck>ntract  of  a  Bnlldiiig  and  Loan  Association 
which  exacts  from  a  borrowing  member  interest,  and  also  dues  on 
stock  absolutely  assigned  to  the  association  as  a  premium  bid  in  con- 
sideration of  the  loan,  is  usurious,  when  the  interest  and  dues  in  the 
Aggregate  exceed  the  legal  rate  of  interest,     (p.  481.) 

OOKFLICT  OF  IjAWS.~A  Contract  for  the  Payment  of 
money  entered  into  bona  fide  in  one  place  and  made  payable  in  an- 
other* is  construed,  governed,  and  enforced  according  to  the  law 
of  the  place  where  payable,     (p.  482.) 


478  American  State  Repobts,  Vol.  91.        [Oregon, 

USUBY—Snbterfage.— Usury  is  a  Moral  Taint  Wherever  it 
exists,  and  no  subterfuge  should  be  permitted  to  conceal  it  from  the 
eyes  of  the  law.     (p.  482.) 

USUBY.—A  Loan  by  a  Foreign  Building  and  Loan  association 
to  a  citizen  of  this  state  is  solvable  by  its  laws,  notwithstanding  the 
loan  is  stipulated  to  be  paid  at  the  domicile  of  the  association,  when 
s'jch  stipulation  is  designed  to  evade  the  usury  laws  of  this  state, 
(pp.    483,    484.) 

The  plaintiff  is  a  corporation  organized  and  having  its  prin- 
cipal place  of  business  at  San  Francisco,  California.  On  Octo- 
ber 22,  1891,  the  defendant,  J.  L.  HiU,  applied  for  memBership 
in  the  company  and  subscribed  for  seventy  shares  of  stock.  On 
October  24,  1891,  a  certificate  for  the  desired  stock  was  issued 
on  the  conditions  that  the  shareholder  should  pay  sixty  cents 
monthly  on  each  share  until  matured  or  withdrawn,  and  that 
when  such  payments  on  a  share  should  amount  to  $100,  it 
should  be  deemed  matured  and  might  be  retired.  On  the  back 
of  the  certificate  appears  an  assignment  of  sixty  shares  to  the 
company,  bearing  date  February  24,  1892.  On  the  day  of  ap- 
plying for  membership.  Hill  also  applied  for  a  loan  of  $3,000 
on  his  bond  and  mortgage  to  secure  the  same  on  realty  in  Al- 
bany, Oregon.  The  venue  of  his  verification,  in  maldng  this 
application,  is  Lynn  county,  Oregon.  Attached  to  the  applica- 
tion is  a  certificate  of  the  officers  and  directors  of  the  company's 
local  board  at  Albany,  recommending  the  loan. 

On  February  9,  1892,  Hill  put  in  a  written  bid  for  a  loan  of 
$3,000,  whereby  he  agreed  to  hold  sixty  shares  of  the  stock  and 
continue  payment  of  installments  thereon  until  maturity^  or 
the  loan  was  otherwise  paid,  and  also  to  pay  the  company  a 
bonus  of  thirty  shares  of  such  stock  as  a  consideration  for  the 
loan,  and  on  the  16th  the  company  advanced  and  loaned  to  Hill 
the  sum  bid  for  upon  terms  and  conditions  stated  in  the  bond 
executed  by  him  and  wife  for  the  repayment  of  the  same.  To 
secure  the  bond.  Hill  and  wife  made,  executed,  and  delivered 
to  plaintiff  a  mortgage  upon  real  estate  in  Albany.  Both  the 
bond  and  mortgage  were  dated  and  executed,  and  the  mortgage 
acknowledged,  in  Linn  county,  Oregon.  The  conditions  of  the 
bond  are  that  Hill  shall  pay  to  the  company  at  the  office  of  its 
treasurer  in  the  city  of  San  Francisco,  on  or  before  seven  years 
from  date,  $3,000,  and  the  full  amount  of  the  premium,  if  sixty 
shares  have  matured  and  become  worth  par,  or,  in  case  said 
stock  has  not  matured,  then  so  much  of  said  premium  as  may 
have  been  earned  at  the  time  the  whole  of  the  sum  advanced  is 
repaid,  together  with  interest  thereon  at  the  rate  of  six  per  cent 


Dea  1901.]     Paciyio  States  Sayings  stc.  Co.  v.  Hill.     479 

per  tnnimi  from  the  dzteenfh  day  of  February^  1892,  payable 
monthly;  or  shall  pay  the  sum  of  $36  on  the  second  Tuesday  of 
each  month  as  and  for  the  monthly  dues  on  sixty  shares^  the  fur- 
ther sum  of  $15  per  month  as  and  for  the  monthly  installments 
of  interest  on  the  loan  at  the  rate  of  six  per  cent  per  annum,  and 
all  fines  and  charges  that  may  become  due  on  such  stock  until 
finally  matured ;  then,  and  in  either  case,  the  obligation  to  become 
void,  otherwise  to  be  and  remain  in  full  force  and  virtue ;  pro- 
vided, however,  that,  in  case  default  is  made  in  any  payment  stip- 
ulated for,  the  whole  sum  advanced,  together  with  such  propor- 
tion of  the  premium  as  has  been  earned,  shall,  at  the  election  of 
the  company,  vrithout  notice,  become  due  and  payable,  and  the 
whole,  less  the  vrithdrawal  value  of  the  sixty  shares  of  capital 
stock,  may  be  enforced  and  recovered,  together  with  the  accrued 
interest,  fines,  and  charges.  There  is  a  further  provision  that 
the  whole  of  the  premium  shall  be  deemed  earned,  due,  and 
payable  whenever  the  sixty  shares  of  stock  shall  have  matured, 
and  one-seventh  of  such  premium  shall  be  deemed  earned  each 
year,  or  fraction  thereof,  elapsing  after  the  date  of  the  bond. 

This  suit  was  instituted  October  9,  1899,  to  foreclose  the 
mortgage.  The  complaint  sets  out  the  facts  hereinbefore  stated, 
and  further  alleges  that  the  monthly  payments  on  the  sixty 
shares  of  stock,  from  and  inclusive  of  the  second  Tuesday  of 
November,  1891,  to  the  second  Tuesday  of  August,  1899, 
amount  to  $3,348,  of  which  $3,132  has  been  paid,  leaving 
due  from  defendants  to  plaintiff  $216,  as  and  for  the  monthly 
dues  on  sixty  shares  of  stock;  that  of  the  said  $3,132  paid, 
$1,566  was  paid  to  plaintiff  in  accordance  with  the  bid  for  the 
loan,  and,  with  the  knowledge  and  consent  of  the  defendants, 
applied  to  the  payment  of  the  monthly  dues  on  the  thirty  shares 
of  stock  so  bid  as  a  premium,  and  $1,566  to  the  payment  of  the 
monthly  dues  of  the  said  thirty  shares  of  stock  so  pledged  veith 
plaintiff  for  the  payment  of  said  loan ;  that  the  monthly  install- 
ments of  interest  on  said  loan  at  the  rate  of  six  per  cent  per  an- 
num up  to  the  second  Tuesday  of  August,  1899,  amount  to 
$1,350,  of  which  sum  $1,260  has  been  paid,  leaving  due  the  sum 
of  $90  on  monthly  installments  of  interest  on  the  loan;  that  the 
said  thirty  shares  of  stock  pledged  for  the  payment  of  such  loan 
are  not  fully  paid  in,  nor  have  they  become  worth  par,  or  any 
greater  sum  than  $82.50  per  share.  The  prayer  is  for  a  decree 
awarding  to  plaintiff  the  sum  of  $3,306,  less  $2,475,  the  present 
value  of  the  shares  pledged,  and  attomey^s  fees  and  costs.    There 


480  Ahbrioak  State  Bbpobtb,  Vol.  91.        [Oregon, 

was  a  demurrer  to  the  complaint^  which  resulted  in  a  'Tfimi'irfl 
of  the  Buit,  and  plaintiff  appeals. 

G.  W.  Allen  and  George  W.  Wright,  for  the  appellant 

Weatherf ord  &  Wyatt^  Hewitt  &  Sox,  and  Cannon  &  Newport, 
for  the  respondent. 

'^  WOLVEETON,  J.  1.  It  will  be  noted  that  these  tran*- 
actions  of  which  the  complaint  speaks  were  had,  and  the  loan 
consummated,  before  the  passage  of  the  act  of  1895,  r^alating 
the  incorporation  and  business  of  building  and  loan  and  savings 
and  loan  associations  doing  a  general  business,  and  it  is  claimed 
that  the  loan  was  lawfully  negotiated,  although  the  company 
had  not  at  the  time  executed  and  acknowledged  a  power  of  at- 
torney, appointing  a  citizen  and  resident  of  the  state  as  its  at- 
torney, with  authority  to  accept,  and  upon  whom  lawful  serrice 
may  be  made  of,  writs  and  process  necessary  to  give  jurisdiction 
of  the  incorporation  to  any  of  the  courts  of  the  state,  as  pre- 
scribed by  HilFs  Annotated  Laws,  sections  3276,  3277.  To 
overcome  this  position  it  is  maintained,  upon  the  other  side,  that 
the  plaintiff  is  a  banking  concern.  We  do  not  think  enough  ap- 
pears by  the  record  by  which  it  can  be  so  classified.  It  is, 
rather,  to  be  denominated  a  loan  company  or  association,  and 
not  such  an  institution  as  comes  within  the  purview  of  the  stat- 
ute cited:  Singer  Mfg.  Co.  v.  Graham,  8  Or.  17,  34  Am.  Bep. 
572;  Conmiercial  Bank  v.  Sherman,  28  Or.  573,  52  Am.  St 
Eep.  811,  43  Pac.  658;  Oregon  etc.  Invest.  Co.  v.  Eathbum,  5 
Saw.  32,  Fed.  Cas.  No.  10,555.  It  was,  therefore,  lawful,  with- 
out the  observance  of  the  conditions  there  prescribed,  for  it  to 
do  or  transact  business  in  this  state.  It  must  be  conceded  that 
it  is  beyond  the  power  of  the  legislature,  by  retrospective  act,  to 
impair  in  any  degree  the  obligations  of  a  contract ;  nor  are  w€ 
advised  of  any  provision  of  the  act  of  1895  that  impinges  upon 
this  principle.  Apparently,  the  act  was  drafted  *•*  with  a 
view  to  avoid  such  a  contingency,  as  witness  the  declarations  of 
section  7  relating  to  usury. 

2.  Plaintiff  insists  that  it  is  a  legitimate  building  and  loan 
or  savings  and  loan  association,  organized  and  operating  under 
the  special  plan  or  system  that  characterizes  those  peculiar  or- 
ganizations or  associations.  But,  to  show  that  it  is  not,  we 
will  advert  to  one  feature  of  its  plan  of  operation.  It  requires 
a  bidding  to  fix  the  amount  of  the  premium,  which,  no  donbt, 
is  legitimate.    But  it  exacts  of  the  purchaser  of  the  loan^  or  the 


Dec.  1901.]     Pacific  States  Savings  etc.  Co.  v.  Hill,     481 

borrower,  that  he  bid  a  certain  amount  of  his  stock  (in  this 
case,  fifty  per  cent),  which  is  to  be  assigned  to  the  company,  and 
henceforth  to  become  its  property,  the  borrower  being  required, 
notwithstanding,  to  pay  the  monthly  dues  or  premium  upon  the 
assigned  stock  until  it  is  matured,  which  must,  from  the  nature 
of  tiie  obligation,  be  to  the  time  of  the  maturity  of  his  own 
stock,  when  the  loan  is  extinguished — ^that  is,  the  full  time  the 
loan  remains  unpaid  in  any  part.    Note  its  present  operation. 
Defendant  assigned  to  plaintiff  thirty  of  his  sixty  shares  of  capi- 
tal stock  absolutely,  as  a  premium  bid  in  consideration  of  ob- 
taining the  loan  of  $3,000,  and  pledged  the  balance  of  thirty 
shares  as  security  for  its  payment.    He  was  required  to  pay 
sixty  cents  per  month  denominated  ^'dues^^  to  the  company,  not 
only  upon  the  thirty  shares  pledged,  but  also  upon  the  thirty 
assigned  to  the  company  absolutely,  being  $36  per  month;  but 
only  one-half,  or  $18  per  month,  went  to  the  reduction  or  the 
extinguishment  of  his  loan,  or  was  available  to  him  for  the  ac- 
cumulation of  profits  in  the  concern,  the  other  half  being  a 
sheer  contribution  to  the  company.    Aside  from  this,  defendant 
was  required  to  pay  six  per  cent  on  the  amount  of  the  loan,  or 
$15  per  months  as  interest.    The  result  is  that  defendant  was 
paying  to  the  company  $18  per  month,  aside  from  the  $15 
called  interest — ^that  is,  $33  per  month,  or  13.20  per  cent  for  the 
use  of  the  $3,000  advanced;  so  that  ultimately  the  defendant 
paid  in  monthly  installments  toward  said  loan,  during  the  time 
from  November,  1891,  to  August,  1899,  the  sum  of  $4,392,  and 
yet  plaintiff  insists  that  the  obligation  is  not  discharged  by  $831, 
leaving  nearly  a  third  *®^  of  it  for  which  a  decree  is  demanded. 
The  scheme  is  a  vicious  one,  and  foreign  to  the  operations  of  .a 
Intimate  building  and  loan  or  savings  and  loan  association, 
and  falls  within  the  denunciation  of  this  court:  Washington 
Invest.  Assn.  v.  Stanley,  38  Or.  319,  84  Am.  St.  Bep.  793,  63 
Pac.  489;  Western  Sav.  Co.  v.  Houston,  38  Or.  377,  84  Am. 
8t  Bep.  808,  note,  65  Pac.  611;  14  Am.  &  Eng.  Corp.  Cas.,  N. 
8.,  710.     The  pretended  measure  adopted  for  the  bidding  of  a 
premium,  and  the  regulation  for  the  payment  of  dues  on  the 
stock  assigned  to  the  company  therefor,  is  a  subtle  method  for 
collecting  interest  by  another  name,  and  constitutes  a  shift  or 
device  for  the  cover  of  usury.    This  renders  the  transaction  a 
loan  merely,  and  the  payments  made,  under  whatsoever  denomi- 
nation, should  go  to  its  extinguishment,  along  with  the  interest 
reserved,  under  the  holding  in  Western  Sav.  Co..  v.  Houston,  38 
Or.  377,  84  Am.  St.  Rep.  808,  note,  65  Pac.  611;  14  Am.  &  Eng. 

^Am.   St  Rtp.,  Vol.  n— 31 


483  American  State  Reports,  Vol.  91.        [Oregon, 

Corp.  Cas.,  N.  S.,  710.  These  payments  are  more  than  sufficient 
to  discharge  the  same  in  fnll,  unless  it  be  true,  as  contended  by 
plaintiff,  that,  the  contract  being  for  money  payable  in  the  state 
of  California,  it  is  solvable  by  the  laws  of  that  state,  where  par- 
ties are  permitted  to  contract  for  any  rate  of  interest  they  may 
desire. 

3.  It  is  sound  doctrine,  no  doubt,  that  a  contract  for  the  pay- 
ment of  money  entered  into  bona  fide  in  one  place,  and  made 
payable  in  another,  is  to  be  construed,  goremed,  and  enforced 
according  to  the  laws  of  the  state  or  country  where  pajaUe. 
But  it  is  without  application  where  there  is  a  purpose  manifest 
to  avoid  the  laws  of  usury.  Mr.  Chief  Justice  Taney,  in  a  dis- 
cussion of  the  subject,  in  Andrews  v.  Pond,  13  Pet.  65,  78,  says: 
''The  general  principle  in  relation  to  contracts  made  in  one 
place,  to  be  executed  in  another,  is  well  settled.  They  are  to  be 
governed  by  the  law  of  the  place  of  performance ;  and  if  the  in- 
terest allowed  by  the  laws  of  the  place  of  performance  is  higher 
than  that  permitted  at  the  place  of  contract,  the  parties  may 
stipulate  for  the  higher  interest,  without  incurring  the  penalties 
of  usury;  but,''  continues  the  eminent  jurist  in  another  para- 
graph, ''the  same  ^^  rule  cannot  be  applied  to  contracts  for- 
bidden by  its  [the  place  of  contract]  laws,  and  designed  to 
evade  them.  In  such  cases,  the  legal  consequences  of  such  an 
agreement  must  be  decided  by  the  law  of  the  place  where  the 
contract  was  made.  If  void  there,  it  is  void  everywhere.**  So 
in  Miller  v.  Tiffany,  1  Wall.  298,  310,  Mr.  Justice  Swayne.  after 
stating  the  general  rule  and  observing  that  the  converse  is  also 
true,  says :  "These  rules  are  subject  to  the  qualification  that  the 
parties  acted  in  good  faith,  and  that  the  form  of  the  transaction 
is  not  adopted  to  disguise  its  real  character.  The  validity  of 
the  contract  is  determined  by  the  law  of  the  place  where  it  la 
entered  into.'*  And  in  De  Wolf  v.  Johnson,  10  Wheat  367,  it 
was  held  that  the  lex  loci  contractus  must  govern  in  a  question 
of  usury:  See,  also,  Holmes  v.  Manning  (Mass.),  19  N.  E.  25. 
Usury  is  a  moral  taint  wherever  it  exists,  and  no  subterfuge 
should  be  permitted  to  conceal  it  from  the  eyes  of  the  law. 
This,  it  is  said,  is  the  substance  of  all  the  cases.  As  a  principle 
of  international  jurisprudence,  no  state  is  bound  or  ought  to  en- 
force or  hold  valid  in  its  courts  of  justice  any  contract  which  is 
injurious  to  its  public  rights,  offends  its  morals,  contravenes  its 
policy,  or  violates  a  public  law:  Dickinson  v.  Edwards,  77  X. 
Y.  573,  676,  33  Am.  Rep.  671;  2  Kenfs  Commentaries,  458; 
Vamum  v.  Camp,  13  N.  J.  L.  326,  26  Am.  Dec.  476.    It  it 


Dec.  1901.]    Pacific  States  Savings  etc.  Co.  v.  Hill.     463 

scarcely  controverted  that  plaintiff  was  doing  business  in  this 
state.  Indeed,  the  fact  is  apparent  from  the  minutes  of  plain- 
tifPs  board  of  directors,  set  out  in  the  complaint,  showing  that 
loans  were  negotiated  with  persons  resident  within  the  state 
other  than  the  defendant.  Besides,  plaintiff  had  a  local  ad- 
visory board,  composed  of  its  stockholders  and  members,  and 
an  agent  in  Albany,  so  that  beyond  question  it  was  transacting 
business  here,  and  was  subject  to  the  observance  of  the  public 
laws  and  policy  of  the  state,  as  much  as  any  citizen  thereof. 
Certainly,  international  or  interstate  comity  does  not  go  so  far 
as  to  require  the  enforcement  of  a  contract  in  favor  of  a  non- 
resident doing  business  here  that  the  courts  of  the  state  would 
not  enforce  in  favor  of  one  of  its  own  citizens. 

*•*  Now,  we  have  seen  that  the  plaintiff,  although  pretending 
to  be  operating  as  a  building  and  loan  association,  had  adopted 
a  plan  or  scheme  not  in  accord  with  the  true  principles  and 
purposes  of  that  character  of  associations,  with  the  manifest 
design  of  collecting  interest  by  another  name,  and  by  deception 
to  induce  the  payment  of  an  unusual  and  unlawful  rate.  It  is 
also  manifest  that  the  defendant  Hiirapplied  to  become  a  mem- 
ber of  the  company,  not  that  he  especially  desired  to  be  a  mem- 
ber and  stockholder  thereof,  but  solely  for  the  purpose  of  ob- 
taining a  loan  under  the  conditions  offered.  So  it  is  perfectly 
reasonable  and  altogether  natural  to  conclude  that  the  stipula- 
tion for  payment  in  San  Francisco  was  introduced  into  the  con- 
tract to  avoid  the  usury  laws  of  this  state.  A  contract  of  the 
kind  consummated  with  such  a  purpose  is  an  evasion  of  our 
laws,  and  contrary  to  the  declared  policy  of  the  state,  and  can- 
not receive  the  sanction  of  this  court.  But,  aside  from  this> 
ttiere  is  very  little  to  distinguish  the  case  from  that  of  Wash- 
ington Investment  Assn.  v.  Stanley,  38  Or.  319,  84  Am.  St.  Rep. 
793,  63  Pac.  489.  There  the  association  had  conformed  to  the 
act  of  1896,  and  appointed  a  resident  attorney,  become  duly 
licensed  to  contract  business  in  the  state,  and  had  a  solicitor 
residing  where  the  loan  was  negotiated.  In  the  present  case, 
the  plaintiff  was  transacting  business  here,  as  it  had  a  right  to 
do,  but  it  had  an  agent  and  local  board  here  composed  of  its  resi- 
dent members,  appointed  under  the  by-laws  and  usages  of  the 
association,  whose  functions  it  was  to  promote  the  membership 
thereof,  and  approve  its  loans.  The  bond  and  mortgage  were 
executed  by  citizens  of  the  state,  realty  situated  within  the  state 
was  hypothecated  as  security,  and  the  money  used  in  business 
here;  so  we  must  conclude  that,  notwithstanding  the  express 


'484  Ai£BBiOAK  Statb  Bbpobts,  Vol.  91.        [Oiegon, 

stipulation  that  the  bond  was  payable  in  San  Francisco,  the  con- 
tract is  solvable  by  the  laws  of  this  jurisdiction.  We  have  not 
overlooked  the  cases  of  Bedford  v.  Eastern  Bldg.  etc.  Assn.,  181 
II.  S.  227,  21  Sup.  Ct  Eep.  597,  and  Dygert  v.  Vermont  etc 
Co.,  94  Fed.  913,  but  in  each  of  these  cases  the  bona  fides  of  the 
transaction  seems  to  have  been  unquestioned,  and  the  point  of 
controversy  was  resolved  ^^  to  the  general  proposition  that  a 
contract  made  in  one  state,  which  by  its  terms  is  payable  in  an- 
other, is  to  be  controlled  by  the  laws  of  the  state  where  payable. 
These  considerations  affirm  the  decree  of  the  court  below^  and 
it  is  so  ordered* 


The  Principal  Case  was  followed  in  HieinbotlierB  v.  Interstate  Sav. 
etc.  Assn.,  40  Or.  511,  69  Pac.  1018.  There  the  defendant,  a  Mibb* 
csota  corporation,  had  loaned  money  to  a  citizen  of  Oregon,  and 
taken  a  mortgage  on  land  in  the  latter  state.  The  aetion  was 
brought  to  cancel  the  mortgage  on  the  ground  that  it  had  been  paid. 
Tbe  contract  was  conceded  to  be  usurious  under  the  laws  of  Oregon. 

''The  position  of  the  defendant  is,  however,  that  the  eontract 
should  be  construed  according  to  the  laws  of  Minnesota,  where  it  is 
valid,  and  not  according  to  the  laws  of  tbls  state.  There  is  some 
diversitv  of  opinion  whether  a  contract  of  a  foreign  building  and 
loan  association,  such  as  the  one  now  under  consideration,  that  is 
not  usurious  under  the  laws  of  the  state  where  the  corporatioii  is 
organized  and  domiciled,  and  where  the  obligation  is  made  payable, 
can  be  attacked  for  usury  in  the  courts  of  the  state  of  the  bor- 
rower's residence,  where  the  contract  was  aetnaUy  made,  and  the 
mortgaged  premises  are  situated;  but,  by  the  great  weight  of  anthor- 
itv,  the  validity  of  such  a  contract  is  solvable  by  the  law  of  the 

X)1ace  where  It  was  made,  and  not  whore  payable The  ease 

now  under  consideration  cannot  be  distinguished  on  principle  frooi 
Pacific  etc.  Bldg.  Co.  v.  Hill,  40  Or.  280,  ante,  p.  477,  67  Pac  103, 
the  contracts  in  both  being  made  before  the  passage  of  the  act  of 
18i)5  (Laws  1895,  p.  103)  regulating  the  business  of  buflding  and 
loan  associations.  The  fact  that  the  plaintiff  in  the  Hill  eaae  had 
made  loans  to  other  citizens  of  Oregon,  had  a  local  advisory  board 
composed  of  citizens  of  the  state,  and  exacted  from  borrowers  a  bid 
of  fifty  per  cent  of  their  stock,  to  be  assigned  to  the  company,  does 
not  differentiate  it  from  the  present  case.  Such  circumstances  only 
went  to  show,  and  were  alluded  to  by  the  court  as  evidence,  that 
the  company  was  in  reality  doing  business  in  Oregon,  and  that  the 
agreement  between  it  and  Hill  was  not  an  isolated  instance  of  a 
nonresident  making  a  contract  with  a  citizen  of  this  state,  to  be 
performed  elsewhere.  So,  too,  here,  while  the  defendant  did  not 
have  a  local  advisory  board,  and  it  does  not  appear  that  it  had  in 
fact  made  loans  to  other  persons,  it  is  averred  that  it  had  a 
resident  agent  here,  with  authority  Uo  take  applications  for  loans, 
and  forward  them  to  the  home  office,'  and,  although  it  was  stip- 
ulated that  all  payments  on  stock,  premiums,  and  interest  were  dne 
and  payable  at  the  home  office,  it  did,  'for  the  convenience  of  its 
members,'  send,  'for  collection,  to  the  local  bank  or  treasurer,  the 
monthly  installment  receipts.'  In  short,  it  was  doing,  or  offering 
to  do,  a  general  loan  and  savings  business  in  the  state,  of  like  char- 
acter with  that  of  the  plaintiff  in  the  Hill  case." 


Jan.  1902.]  Salem  v.  Anson.  485 

For  other  reeent  eases  involving  the  question  of  usury  decided 
in  the  principal  ease,  see  People's  Bldg.  etc.  Assn.  v.  Berlin^  201 
Pa.  St.  1,  60  AtL  308,  88  Am.  St.  Bep.  764,  and  cases  cited  in  the 
eross-reference  note  thereto:  National  ete.  Loan  Assn.  v.  Brahaa 
(Miss.),  31  South.  840. 


SALEM  y.  ANSOK 

[40  Or.  339,  67  Pae.  190.] 

BOMB  to  Ctomply  With  FranchiBe— Power  to  Bract.— Under  a 
charter  authorizing  a  city  to  grant  the  use  of  its  streets  to  those 
desiring  to  furnish  it  with  light,  a  bond  may  be  exacted  from  the 
grantee  of  such  privilege  eonctitioned  for  the  completion  of  his  plant 
within   a   specified  time.     (pp.  487,  488.) 

BOND  to  Ck>mpl7  with  Franchise— Liquidated  Damages.— ^ 
If  a  city^  grants  the  use  of  its  streets  to  one  proposing  to  construct 
an  electric  light  plant,  and  exacts  a  bond  from  him  conditioned  for 
the  coDiplotion  of  the  plant  within  a  certain  time,  the  sum  therein 
specified  is  liquidated  damages,  and  recoverable  without  proof  of 
actual    damages,     (pp.   491,   492.) 

Action  on  a  bond  execnted  by  F.  R.  Anson,  as  principal,  and 
the  Fidelity  and  Deposit  Company  of  Maryland  as  surety.  On. 
May  17,  1900,  npon  the  application  of  Anson,  the  common 
council  of  the  city  of  Salem  passed  an  ordinance  granting  to 
him  the  right  to  establish  and  maintain  an  electric  light  plant 
within  the  city  and  use  its  streets,  alleys,  and  highways  therefor* 
Anson,  under  the  terms  of  the  ordinance,  was  to  have  the  plant 
so  far  completed  by  the  first  day  of  April,  1901,  as  to  be  ready 
to  serve  private  consumers,  and,  in  default  thereof,  was  to  for- 
feit the  rights  and  privileges  so  granted.  After  the  plant  should 
be  installed  and  in  operation,  he  was  to  pay  to  the  city  monthly 
two  per  cent  of  the  gross  income  therefrom.  The  city  reserved 
the  right  of  purchasing  and  acquiring  the  entire  plant  at  any 
time,  at  the  actual  cost  thereof.  By  section  8  of  the  ordinance, 
Anson  was  required  to  file  with  the  recorder  of  the  city,  within 
thirty  days  from  its  approval,  "a  bond  in  the  sum  of  five  thou- 
sand (5,000)  dollars,  lawful  money  of  the  United  States,  with 
two  or  more  sureties,  or  a  surety  or  guaranty  company,  to  be 
approved  by  the  mayor,  conditioned  that  he  or  they  will  install 
the  electric  plant  authorized  by  this  ordinance  on  or  before  the 
first  day  of  April,  A.  D.  1901,  which  said  plant  shall  have  a 
maximum  capacity  of  at  least  one  hundred  horse-power^  and 
that  such  plant  shall  be  in  actual  operation  on  such  date.^ 


486  Amebicak  State  Bepobts,  Vol.  91.        [Or^on, 

Anson  failed  to  construct  the  plant,  dr  any  part  thereof,  as 
required  by  the  ordinance,  and  this  action  was  brought  against 
him  and  his  surety  to  recover  five  thousand  dollars,  the  amount 
specified  in  the  bond.  The  complaint  sets  out  the  bond  and 
ordinance  in  full,  but  does  not  allege  that  the  city  was  in  any 
way  damaged  by  Anson's  default.  The  court  sustained  a  de- 
•snurrer  to  the  complaint  and,  the  plaintiff  not  pleading  further, 
•entered  judgment  against  it,  from  which  it  appeals. 

W.  H.  and  Webster  Holmes,  for  the  appellant. 

Hamsey  &  Bingham,  for  the  respondent. 

^^^  BEAN,  C.  J.  1.  The  first  question  is  as  to  the  right 
of  the  city  to  take  and  receive  the  bond  upon  which  this  action 
was  brought.  The  charter  of  Salem  declares  that  the  common 
council  shall  have  exclusive  power  to  ^'contract  for  water  and 
lights  for  city  purposes,  or  to  lease,  purchase,  or  construct  a 
plant  or  plants  for  water  or  lights,  or  both,  for  city  purposes, 
in  or  outside  the  city  limits;  provided,  that  the  council,  upon 
making  a  careful  and  accurate  estimate  of  building  or  pur- 
chasing and  running  such  plant  or  plants,  finds  that  the  same 
may  be  constructed  or  purchased  and  run  at  a  much  less  ex- 
pense to  the  city  than  can  be  contracted  for  with  private 
parties.  The  expanse  for  building  or  purchasing  such  plant 
or  plants  cannot  be  entered  into  except  by  two-thirds  vote  of 
all  the  legal  voters  voting  at  any  general  election,  or  at  a  spe- 
cial election  called  by  the  council  for  such  purpose,  by  a  two- 
thirds  vote  to  incur  such  expense,  the  council  may  enter  into 
a  contract;  provided,  that  the  coimcil  may  grant  and  allow 
the  use  of  streets  and  alleys  of  the  city  to  any  person,  com- 
pany or  corporation  who  may  desire  to  establish  works  for 
supplying  the  city  and  inhabitants  thereof  with  such  water 
or  light  upon  such  terms  and  conditions  as  the  council  may 
prescribe"*  (Laws  1899,  p.  924,  sec.  6,  subd.  6) ;  and  *'to  allow 
and  regulate  the  erection  and  maintenance  of  poles  or  poles 
and  wires  for  telegraph,  ....  electric  light  or  other  purposes, 
....  upon  or  over  the  streets,  alleys  or  public  grounds  of 
the  city;  to  permit  and  regulate  the  use  of  the  streets,  alleys 
and  public  grounds  of  the  city  for  laying  down  and  repairing 
gas  and  water  mains,  *^  for  building  and  repairing  sewers, 
and  the  erection  of  gas  or  other  lights;  to  preserve  the  streets, 
alleys,  side  and  cross  walks,  bridges,  and  public  grounds  from 


Jan.  1902.]  Salsu  v.  Anson.  487 

injury^  and  prevent  the  unlawful  use  of  the  same^  and  to  legis- 
late their  nse*' :  Laws  1899,  p,  927,  sec.  6,  snbd,  26.  The  leg- 
islature had  thus  delegated  to  the  city  the  power  of  regulating 
and  controlling  the  use  of  the  streets  hv  light  and  water  com- 
panics,  and  vested  it  with  exclusive  autiiority  to  grant  to  such 
companies  the  privilege  of  so  using  them,  upon  such  terms 
and  conditions  as  the  council  may  prescribe.  The  paramount 
authority  over  streets  and  highways  is  vested  in  the  legislature 
as  the  representative  of  the  entire  people.  It  may,  however, 
delegate  to  municipal  corporations  such  a  measure  of  its  pow^ 
as  it  may  deem  expedient,  and  the  local  authorities,  by  virtue 
of  such  delegation,  can  enact  ordinances  and  local  laws,  which 
have,  within  their  jurisdiction,  the  force  of  the  general  stat- 
utes of  the  state:  Tiedeman  on  Municipal  Corporations,  sec. 
289. 

The  granting  of  authority  to  public  service  companies  to 
use  the  streets  and  highways  is  a  legislative  act,  entirely  be- 
yond the  control  of  the  judicial  power,  so  long  as  it  is  within 
proper  constitutional  limitations.  It  may  be  exercised  directly 
by  the  legislature,  or  be  delegated  by  that  body  to  a  municipal 
corporation;  and,  when  so  delegated,  the  municipality  ha% 
within  the  authority  granted,  the  same  rights  and  powers  that 
the  legislature  itself  possesses.  To  that  extent  it  is  endowed 
with  l^slative  sovereignty,  the  exercise  of  which  has  no  limit, 
so  long  as  it  is  within  the  objects  and  trusts  for  which  the 
power  was  conferred.  It  is  admitted  that  the  legislature  may, 
by  virtue  of  its  paramount  authority,  require  bonds  or  under- 
takings of  the  grantees  of  such  privileges,  conditioned  that 
they  will  construct  their  works  within  a  specified  time,  or  that 
they  will  otherwise  comply  with  the  terms  of  their  grant,  and 
a  municipal  corporation  to  which  the  exclusive  power  over  the 
subject  has  been  delegated  may  exercise  the  same  right.  There 
is  no  express  provision  in  the  charter  of  Salem  authorizing 
the  council,  upon  granting  the  privileges  to  use  the  streets, 
to  require  that  the  work  shall  be  done  within  a  specified  time ; 
***  nor  is  it  necessary.  It  is  given  the  exclusive  power  to 
make  the  grant  ''upon  such  terms  and  conditions''  as  it  may 
prescribe,  which  necessarily  authorizes  it  to  impose  such  rea- 
sonable conditions  precedent  or  subsequent  to  the  granting  or 
exercise  of  the  franchise  as  may  be  deemed  necessary  or  proper, 
including  a  requirement  that  the  grantee  shall  give  a  bond, 
conditioned  as  the  one  in  suit:  City  of  Indianola  v.  Gulf  etc. 


488  AifEEiOAN  State  Seports^  Vol.  91.        [Oregon, 

By.  Co.,  56  Tex.  694.  In  City  of  Aberdeen  v.  Honey,  8  Wash. 
251,  35  Pac.  1097,  the  power  of  the  municipality  was  limited 
by  the  terms  of  its  charter,  and  the  court  held  that,  by  reason 
of  such  limitation,  it  did  not  have  the  authority  to  exact  a 
bond  from  the  grantee  of  a  franchise  for  a  street  railway. 
Hence  that  case  is  not  authority  here.  We  are  of  the  opinion, 
therefore,  that  the  bond  in  suit  was  valid,  and  within  the  power 
of  the  city  to  require  and  accept. 

2.  The  remaining  question  is  as  to  whether  the  sum  specified 
in  the  bond  is  to  be  regarded  as  a  penalty,  or  as  liquidated 
damages.  It  is  often  difficult  to  determine  whether  a  sum 
stipulated  in  a  contract  to  be  paid  on  breach  thereof  shall  be 
considered  as  liquidated  damages  or  as  a  penalty,  and  there  is 
a  wide  divergence  of  opinion  in  the  adjudged  cases  on  the  sub- 
ject. The  object  is,  of  course,  to  ascertain  the  intention  of 
the  parties,  as  nearly  as  possible,  and  to  enforce  the  contract 
according  to  their  agreement.  In  doing  this,  the  courts  are 
not  governed  altogether  by  the  language  of  the  contract  or 
by  the  term  employed  to  designate  the  sum  to  be  paid.  *^{  it 
is  liquidated  damages,  they  will  enforce  it,  though  erroneously 
called  a  ^penalty,'  and,  on  the  other  hand,  if  it  is  in  the  nature 
of  a  penalty,  they  will  not  allow  it  to  be  enforced,  althou^ 
the  parties  have  expressly  stated  that  it  is  to  be  paid  as  ^qui- 
dated  damages,'  and  not  as  a  'penalty"':  Clark  on  Contracts, 
599.  See,  also,  53  Cent.  L.  J.  183;  19  Am.  &  Eng.  Ency. 
of  Law,  2d  ed.,  400;  Kemp  v.  Knickerbocker  Ice  Co.,  69  N. 
Y.  45 ;  Foley  v.  McKeegan,  4  Iowa,  1,  66  Am.  Dec.  107.  For 
the  construction  of  such  contracts,  as  between  private  parties, 
certain  arbitrary  rules  have  been  laid  down,  which,  although 
not  necessarily  controlling  in  all  cases,  are  regarded  as  afford- 
ing a  •**  general  guide  by  which  controversies  relating  thereto 
may  be  determined.  Among  these  are:  1.  Where  the  contract 
is  conditioned  for  the  performance  of  some  collateral  agree- 
ment, the  sum  mentioned  therein  will  be  presumed  to  be  a 
penalty,  and  it  is  incumbent  upon  the  party  desiring  to  recover 
the  sum  named  as  liquidated  damages  to  show  that  it  was  so 
intended  by  the  contracting  parties :  O^Keefe  v.  Dyer,  20  Moni 
477,  52  Pac.  196 ;  Davis  v.  Gillet,  52  N.  H.  126 ;  Dill  v.  Law- 
rence, 109  Ind.  564,  10  N.  E.  573;  and  2.  When  the  actual 
damages  in  case  of  a  breach  of  the  contract  must  necessarily 
be  speculative,  uncertain,  and  incapable  of  definite  ascertain- 
ment, the  stipulated  sum  will  be  regarded  as  liquidated  dam- 


Jan.  1902.]  Salem  v.  Anson.  480 

ages,  and  may  be  recovered  as  such  without  proof  of  actual 
damages,  unless  the  language  of  the  contract  sliows,  or  the  cir- 
cumstances under  which  it  was  made  indicate,  a  contrary  in- 
tention of  the  parties,  or  it  so  manifestly  exceeds  the  actual 
injury  suffered  as  to  be  unconscionable:  19  Am.  &  Eng.  Ency. 
of  Law,  2d  ed.,  402 ;  Clark  on  Contracts,  600 ;  1  Sutherland  on 
Damages,  2d  ed.,  sec.  283;  Commonwealth  v.  Ginn,  23  Ky. 
Law  Rep.  621,  63  S.  W.  467 ;  Malone  v.  City  of  Philadelphia, 
147  Pa.  St.  416, 23  Atl.  628 ;  Emery  v.  Boyle,  200  Pa.  St.  249,  49 
Ati.  779 ;  Taylor  v.  Times  Newsp.  Co.,  83  Minn.  623,  86  Am. 
St  Sep.  473,  86  N.  W.  760.    Where  the  damages  are  uncertain 
and  speculative,  the  presumption  ordinarily  is  that  the  parties 
have  taken  that  into  consideration  in  making  the  contract, 
and  have  agreed  upon  a  definite  sum  to  be  paid  in  case  of  a 
breach,  in  order  to  put  the  question  beyond  dispute  and  con- 
troYersy  and  to  avoid  the  difficulty  of  proving  actual  damages. 
It  would  seem,  therefore,  that,  even  if  the  present  case  is  to  be 
controlled  entirely  by  the  rules  applicable  to  controversies  be- 
tween private  parties,  there  is  reason  for  holding  that  the 
amount  stipulated  in  the  bond  should  be  regarded  as  liquidated 
damages,  and  not  as  a  penalty.    The  damages^  if  any,  to  the 
city  from  Anson's  failure  to  build  his  plant  within  the  speci- 
fied time,  were  necessarily  speculative  and  uncertain,  if  not 
absolutely  incapable  of  proof.    Indeed,  it  is  quite  doubtful 
whether  the  city  could  have  been  damaged  in  any  way  by  such 
failure.     It  could  gain  nothing  in  its  political  or  sovereign 
*^  capacity  by  the  construction  of  the  plant,  and  could  lose 
nothing  by  its  nonconstruction.    The  damages  resulting  from 
the  loss  of  the  promised  share  of  the  gross  income  of  the  pro- 
posed plant  and  the  right  of  purchase  are  not  covered  by  the 
bond,  and,  moreover,  are  so  speculative,  uncertain,  and  depend- 
ent upon  so  many  contingencies,  that  they  can  scarcely  be  re- 
garded as  a  subject  of  judicial  investigation. 

But  whatever  the  rule  might  be  as  between  private  individ- 
uals, this  action  is  not  to  be  determined  wholly  by  the  princi- 
ples applicable  to  contracts  of  that  kind.  The  sum  specified 
in  the  bond  is  somewhat  in  the  nature  of  a  statutory  penalty 
for  the  nonperformance  of  a  duty  enjoined  by  law.  The  ordi- 
nance granting  to  Anson  the  right  and  privilege  to  use  the 
streets  and  highways  of  the  city  in  the  construction  and  main- 
tenance of  his  plant  had  the  force  and  effect  of  a  statute,  and 
by  his  acceptance  of  its  provisions  he  became  bound  to  comply 


490  AiiEBiOAK  Statb  Bepobts^  Vol.  91.        [Oregn^ 


with  its  tenns  as  a  statutory  duty.    The  bond  in  question 
given  as  security  for  the  performance  of  sudi  duty,  and  ibe 
sum  specified  therein  is  in  the  nature  of  a  penalty,  to  be  im- 
posed as  a  punishment  for  disobeying  or  disregarding  the  pro- 
visions of  the  ordinance :  Maryland  v.  Baltimore  etc  R.  R  Co., 
3  How.  634.    The  case  of  Clark  v.  Barnard,  108  U.  S.  436, 
2  Sup.  Ct.  Rep.  878,  is-  very  similar  to  the  one  in  hand.    The 
legislature  of  Rhode  Island  passed  an  act  authorizing  the  Bos- 
ton, Hartford  and  Erie  Railroad  Company  to  locate  and  con- 
struct a  railroad  through  the  state,  but  the  act  was  not  to  go 
into  effect  unless  the  railroad  company  should,  within  ninety 
days  from  the  adjournment  of  the  legislature,  deposit  in  the 
office  of  the  treasurer  its  bond,  with  sureties  satisfactory  to 
V  the  governor,  in  the  sum  of  one  hundred  thousand  dollars, 
that  it  would  complete  the  road  before  the  first  day  of  January, 
1872.    In  compliance  with  this  statute,  the  railroad  company 
made,  executed,  and  filed  in  the  office  of  the  treasurer  an  ordi- 
nary penal  bond  in  the  sum  stated,  conditioned  as  in  the  act 
required.    It  failed  to  build  the  road,  and,  in  a  suit  to  enjoin 
the  treasurer  from  receiving  or  collecting  the  sum  specified  in 
the  bond,  it  was  contended,  as  here,  that  the  obligation  re- 
quired by  the  statute  **''  and  given  by  the  company  was  an 
ordinary  penal  bond,  upon  which  no  recovery  could  be  had 
except  for  the  damages  the  state  actually  sustained  from  the 
breach  of  its  conditions,  and,  it  being  admitted  that  no  damages 
had  resulted,  the  money  arising  from  the  payment  of  a  cer- 
tificate of  indebtedness  pledged  in  lieu  of  sureties  on  the  bond 
reverted  to  the  plaintiff.    This  position  was  sustained  bj  the 
trial  court,  but  on  appeal  the  decree  was  reversed,  and  it  was 
held  that  the  state  was  entitled  to  collect  the  full  amount  of 
the  bond,  notwithstanding  it  was  admitted  that  it  had  not  been 
damaged  by  the  breach  thereof.    The  judgment  is  based  upon 
two  principal  considerations:  1.  That  it  was  not,  and  could 
not  have  been,  intended  by  the  parties  that  the  bond  was  a 
mere  indemnifying  bond;  and  2.  That  the  sum  mentioned 
therein  was  imposed  by  the  state  as  a  statutory  penalty  for  ^ 
nonperformance  of  a  statutory  duty. 

After  pointing  out  that  no  damage  could  possibly  have 
arisen  to  the  state  in  its  sovereign  or  political  capacity  by  the 
failure  of  the  railroad  company  to  construct  its  road  as  pro- 
vided in  this  statute,  Mr.  Justice  Matthews,  speaking  for  the 
court,  said:  '^The  question  of  damages  and  compensation  was 


Jao.  1902.]        Salem  v.  Anson.  491 

Bot^  because  it  could  not  have  been^  in  contemplation  of  the 
partiea.  There  was  no  room  for  supposing  that  there  could  be 
any.  To  assume  that  the  statute  required  this  bond  and  secur- 
ity in  this  sense,  in  full  view  of  the  legal  conclusion  which  it 
is  said  necessarily  flows  from  its  form,  and  that  in  the  event 
contemplated,  of  the  failure  to  build  the  road,  all  that  remained 
to  be  done  was  that  the  state  should  hand  back  canceled  the 
obligation  and  security  it  had  been  at  such  pains  to  exact,  is  to 
put  upon  the  transaction  an  interpretation  altogether  inad- 
missible. It  would  have  been,  upon  such  an  assumption,  a 
vain  and  senseless  thing,  and,  however  private  persons  may 
be  sometimes  supposed  to  act  improvidently,  we  are  not  to 
put  snch  constructions,  when  it  is  legally  i)ossible  to  avoid 
them,  upon  the  deliberate  and  solemn  acts  and  transactions  of 
a  sovereign  power,  acting  through  the  forms  of  legislation. 
The  conclusion,  in  our  opinion,  cannot  be  resisted  that  the  in- 
tention ^'^^  of  the  parties  in  the  transaction  in  question  was 
that)  if  the  railroad  should  not  be  built  within  the  time  limited, 
the  corporation  should  pay  to  the  state,  absolutely  and  for  its 
own  use,  the  sum  named  in  the  bond  and  secured  by  the  de- 
posited certificate  of  indebtedness.  The  supposition  is  not 
open  that  the  penalty  was  prescribed  merely  in  terrorem,  to 
secure  punctuality  in  performance,  with  the  reserved  intention 
of  permitting  subsequent  performance  to  condone  the  default, 
for  a  distinct  section  of  the  statute  .  •  .  •  declares  that,  in 
cases  of  failure  to  complete  the  road  within  the  time  limited, 
the  act  itself  should  be  void  and  of  no  effect.*'  In  Nilson  v. 
Town  of  Jonesboro,  57  Ark.  168,  20  S.  W.  1093,  the  dty 
granted  to  Nilson  the  right  to  construct  a  street  railway  over 
and  through  the  streets  of  the  city,  and  took  from  him  a  bond, 
in  the  sum  of  five  himdred  dollars,  conditioned  for  the  faithfid 
performance  by  him  of  the  provisions  of  the  ordinance.  In  an 
action  to  recover  on  the  bond  because  of  his  failure  to  construct 
the  railway  within  the  time  specified,  the  single  question  pre- 
sented was  whether  the  sum  mentioned  in  the  bond  should  be 
treated  as  a  penalty  or  as  liquidated  damages^  and,  after  a 
careful  examination  of  the  authorities,  it  was  held  that  plaintiff 
was  entitled  to  recover  the  amount  specified,  without  proof  of 
actual  damages,  and  notwithstanding  it  appeared  that  the  dam- 
ages were  in  fact  capable  of  assessment.  In  City  of  Indianola 
V.  Gulf  etc.  By.  Co.,  56  Tex.  594,  the  city  of  Indianola  granted 
i  railway  company  the  right  to  construct  its  road  through  one 


492  American  State  Bepobtb,  Vol.  91.        [Oregon, 

of  the  streets  of  the  city,  on  the  condition  that  it  should  ex- 
tend it  to  a  point  sixty-five  miles  distant  within  a  certain 
definite  time,  and  exacted  a  bond  in  the  sum  of  fifty  thousand 
dollars,  conditioned  for  the  faithful  performance  of  the  grant 
on  its  part  The  company  failed  to  construct  the  road,  and  in 
a  suit  on  the  bond  it  was  held  that  the  sum  stated  therein  was 
stipulated  damages,  and  that  the  dty  could  recover  the  full 
amount  thereof  without  proof  of  actual  damages.  It  is  true 
that  in  that  case,  as  also  in  Nilson  v.  Town  of  Jonesboro,  57 
Ark.  168,  20  S.  W.  1093,  the  term  'liquidated  damages^  was 
used  in  the  contract.  But  the  decisions  did  not  turn  upon 
•*•  that  fact,  but  were  principally  controlled  by  the  considera- 
tion that  no  accurate  computation  of  the  real  damages  oould  be 
made. 

Within  the  doctrine  of  these  cases — ^and  they  seem  to  be 
eound — ^the  demurrer  to  the  complaint  should  have  been  over- 
ruled. The  judgment  of  the  court  below  must,  therefore,  be 
reversed,  and  the  cause  remanded  for  such  further  proceedings 
as  may  be  proper,  not  inconsistent  with  this  opinion* 


Jf  Damoffes  are  Uncertain  and  insusceptible  of  ready  aseertainmtit, 
and  the  smn  fixed  as  damages  is  not  unreasonable,  it  ordinarily  wiU 
be  treated  as  liquidated  damages;  bnt  if  the  damages  are  certain  and 
susceptible  of  ready  ascertainment,  or  if  the  sum  fixed  is  out  of  pro- 
portion to  the  probable  damages,  it  wiU  be  treated  as  a  penalty: 
See  the  monographic  note  to  Williams  v.  Vance,  30  Anu  Bep.  2S; 
Taylor  v.  Times  Newspaper  Co.,  83  Minn.  523,  86  N.  W.  760,  85  Am. 
8t.*Rep.  473,  and  eases  eit^  in  the  cross-reference  note  thereto. 


FELLEB  V.  GATES. 

[40  Or.  543,  67  Pae^  416.] 

OFFICIAL  BOKBB— Acts  in  Private  Capacity.— A  eonstaUe, 

who  receives  money  from  a  judgment  debtor  to  stay  execution  and 
give  time  to  perfect  an  appeal,  acts  in  his  private  character.  His 
sureties,  therefore,  are  not  liable  for  a  conversion  of  the  money, 
(p.  496.) 

Action  by  Francis  Feller  against  John  H.  Gates  and  the 
sureties  on  his  official  bond  for  money  alleged  to  have  been 
by  him  in  virtue  of  his  office  as  constable  and  con- 


Jan.  1902.]  Fxllkb  v.  Gates.  493 

Terted  to  his  own  use.  It  appears  that  Angie  L.  Feller  re- 
coTered  a  judgment  in  the  justice^s  court  against  the  plaintiff 
berein  for  one  hundred  and  sixteen  dollars  and  forty  cents, 
and  an  execution  thereon  was  delivered  to  Oates.  In  pursu- 
ance of  the  writ,  Gates  threatened  to  collect  the  sum  from  the 
plaintiff.  In  order  to  stay  the  execution  and  gain  time  to  take 
an  appeal  from  the  judgment,  the  plaintiff  paid  Gates  the  sum 
demanded  and  also  ten  dollars  claimed  as  costs.  Gates  gave 
this  receipt  therefor: 

'^Received  of  Francis  Feller  one  hundred  and  twenty-six  dol- 
lars and  forty  cents  cash  in  lieu  of  an  undertaking  on  appeal 
in  the  ahove^entitled  court  and  cause,  and  to  stay  execution  in 
judgment  against  defendants  above  named  until  said  cause  is 
fully  determined  upon  appeal  in  the  circuit  court  of  Marion 
county.  It  being  understood  that  said  money  is  not  to  be  ap- 
plied upon  or  toward  the  payment  of  said  judgment,  and  that 
said  money  will  be  returned  to  Fmncis  Feller  upon  his  filing 
with  the  justice  of  the  above-named  court  a  sufiBcient  undertak- 
ing, and  making  service  of  notice  of  appeal  on  plaintiff  in  said 
cause  within  the  statutory  time." 

It  is  alleged  that,  in  accordance  with  the  above  conditions  of 
the  receipt,  the  plaintiff  prosecuted  an  appeal  to  the  circuit 
court,  where  the  judgment  was  reversed ;  and  that,  demand  be- 
ing made  on  Gates  to  pay  over  the  one  hundred  and  twenty-six 
dollars,  he  refused  to  comply.  A  demurrer  to  the  complaint 
wae  sustained,  and^  the  plaintiff  refusing  to  plead  further,  the 
action  was  dismissed,  and  he  appeals. 

Carson  &  Adams,  for  the  appellant. 

J.  C.  Johnson,  F.  G.  Eby,  H.  J.  Biggs,  and  Grant  Corby,  for 
the  appellant. 

*"*  MOOSE,  J.  It  is  contended  by  plaintiff's  counsel  that 
Gates  received  said  sum  of  one  hundred  and  twenty-six  dollars 
and  forty  cents  in  his  official  capacity  as  constable,  and,  not 
having  repaid  it  upon  plaintiff's  demand,  the  sureties  on  his 
official  undertaking  are  liable  for  his  conversion  thereof,  and 
hence  the  court  erred  in  sustaining  the  demurrer  to  the  com- 
plaint and  in  dismissing  the  action.  "The  sureties  of  a  sheriff 
or  constable,"  says  Mr.  Brandt  in  his  work  on  Suretyship  and 
Guaranty,  second  edition,  section  566,  ^'are  liable  for  his  acts  in 
seizing  property  which  are  done  virtute  officii,  but  whether  or 


494  Aherioan  State  Sepobts^  Vol.  91.         [Or^oi, 

not  they  are  liable  for  his  acts  done  colore  oflRcii  is  a  matter 
concerning  which  there  is  great  conflict  of  authority/^     In  Peo- 
ple V.  Schuyler,  4  N.  Y.  173,  Mr.  Justice  Pratt,  in  defining 
these  terms,  and  explaining  when  the  sureties  are  liable  *•• 
for,  and  when  exempt  from,  the  consequences  of  the  acts  of 
the  chief  executive  and  administrative  officer  of   a    countr, 
says:  "The  authorities  recognize  a  principle  or  rule  by  which 
the  acts  of  the  sheriff,  for  which  his  sureties  may  be  held 
liable,  can  be  distinguished  from  those  acts  for  which  they 
will  not  be  held  liable.    The  former  are  termed  'acts  done 
virtute  officii,'  and  the  latter,  'colore  officii.*    The  distinctioii 
is  this:  Acts  done  virtute  officii  are  where  they  are  within 
the  authority  of  the  officer,  but  in  doing  it  he  exercises  that 
authority  improperly,  or  abuses  the  confidence  which  the  law 
reposes  in  him,  whilst  acts  done  colore  officii  are  where  they 
are  of  such  a  nature  that  his  office  gives  him  no  authority  to 
do  them.'*    The  allegatioi^  of  the  complaint  is  to  the  effect 
that  Gates,  by  virtue  of  his  office  as  constable,  and  in  pursu- 
ance of  the  command  of  the  execution  which  had  been  deliv- 
ered to  him,  threatened  to  collect  from  plaintiff  herein  the  sum 
named  in  the  writ.    If  this  averment  were  not  qualified  by 
the  receipt,  which  is  made  a  part  of  the  complaint,  it  would 
undoubtedly  show  a  collection  in  pursuance  of  the  execntion, 
and  by  virtue  of  his  office  as  constable,  thereby  rendering  the 
complaint  unassailable  on  demurrer.    The  receipt  shows  that 
Gates  did  not  intend  to  apply  the  money  specified  therein  to 
the  satisfaction  of  the  judgment  against  the  plaintiff,  but  that 
its  acceptance  was  to  enable  the  latter  to  take  an  appeal — t 
jproceeding  in  which  a  constable  has  no  right  to  intermeddle, 
and  in  which  he  was  powerless  to  stay  the  enforcement  of  the 
judgment,  which  could  only  have  been  secured  by  giving  an 
undertaking  conditioned  that  the  appellant  would  satisfy  any 
judgment  that  might  be  given  against  him  in  the  appellate 
court  on  appeal,  and  upon  the  filing  of  such  undertaking  the 
justice  rendering  the  judgment  would  have  recalled  the  exe- 
cution: Laws  1899,  p.  109,  sees.  42-44.    It  was  incumbent, 
therefore,  upon  Gates  to  execute  the  command  of  the  writ 
delivered  to  him,  and,  if  necessary,  to  levy  upon  and  sell  the 
personal  property  of  the  judgment  debtors,  so  that  he  might 
make  the  sum  demanded,  on  or  before  the  return  day,  for  the 
benefit  of  the  judgment  creditor,  whose  agent  he  was  for  that 
**''  purpose :  Freeman  on  Executions,  2d  ed.,  sec.  283.    Instead 
of  discharging  the  obligation  imposed  upon  him  by  law,  he 


I 


Jaa*  1902.]        Fellsb  v.  Gates.  495 

agreed  to  repay  to  plaintiff  herein  the  money  so  received,  when 
an  appeal  from  the  judgment  should  be  taken  and  perfected; 
thns  manifestly  stipulating  to  violate  his  trust.  The  promise 
of  the  constable  to  repay  the  money  upon  the  performance  of 
the  stipulated  condition  necessarily  shows  that  it  was  not  re- 
ceived even  under  color  of  office;  for,  to  render  the  payment 
a  collection  colore  officii,  the  party  making  it  must  part  with 
the  title  to  the  money,  relying  upon  the  right  of  the  officer  to 
receive  it  in  trust  for  the  adverse  party.  The  receipt  con- 
clusively shows  that  the  plaintiff  herein  did  not  intend  to 
part  with  the  title  to  the  money,  or  expect  the  constable  would 
pay  any  part  of  it  to  the  judgment  creditor,  so  that  Gates 
received  it  in  his  private  character,  in  trust  for  plaintiff,  and 
not  by  virtue  or  even  color  of  his  office. 

It  remains  to  be  seen  if  the  sureties  on  his  official  under- 
taking are  liable  for  the  acts  of  their  principal  on  account  of 
money  so  received.    In  Governor  v.  Perrine,  23  Ala.  807,  it 
was  held  that  when  a  sheriff  has  ta*ken  property  under  attach- 
ment,  which  he  afterward  sells   by  agreement  between  the 
plaintiff  and  defendant  in  attachment,  without  an  order  of 
court,  his  sureties  are  not  liable  on  their  bond  for  his  failure 
to  pay  over  the  money.    Mr.  Justice  Gibbons,  speaking  for 
the  court  in  deciding  the  case,  says:  ''The  sale  of  the  goods 
having  taken  place  without  any  order  of  court,  or  authority  to 
the  sheriff  to  make  the  sale,  but  being  made  by  the  consent 
of  the  parties  in  the  attachment  suit,  it  could  not  be  said  to  be 
an  official  act  of  the  sheriff,  but  rather  that  of  a  private  individ- 
ual as  the  agent  of  the  parties  to  the  suit.    The  securities  of 
the  sheriff  are  only  liable  for  his  defaults  while  acting  in  his 
oflBcial  capacity;  and  that  has  been  defined  to  be    action  in 
obedience  to  legal  process  in  his  hands.^^    In  Schloss  v.  White, 
16  CSal.  65,  the  plaintiff  and  defendant,  a  sheriff,  entered  into 
an  agreement  in  respect  to  the  sale  of  attached  property  so 
rimilar  to  the  contract  evidenced  by  the  receipt  in  the  case  at 
bar  that  we  quote  copiously  therefrom:  "It  seems  that  plain- 
tiff ^^  sued  out  attachment  against  one  Kalkmann,  and  had  it 
levied  on  some  goods.    Other  creditors  issued  similar  process, 
also  levied  on  tiie  same  goods.    Afterward  the  plaintiff  dis- 
missed his  proceeding,  and  claimed  that  the  goods  levied  on,  or 
a  part  of  them,  were  his  own  property,  they  having  been  pro- 
<mred  by  Kalkmann  by  false  pretenses.    The  plaintiff  sued  the 
aheriff  in  replevin.    He  did  not  take  the  goods  out  of  the 


496  Ameeioan  State  IIepobts^  Vol.  91.        [On^ra, 

sheriff's  possession^   but  came  to   an   arrangement  with  the 
sheriff  whereby  the  sheriff  agreed  to  sell  the  goods,  and  keep 
the  proceeds  to  answer  the  judgment,  if  the  plaintiff  obtained 
one  in  his  replevin  suit.     The  sheriff  sold  the  goods  and  paid 
the  money  into  court,  saying  nothing  abont  this  arrangement; 
and  the  money  was  paid,  nnder  the  order  of  the  conrt,  on  the 
claim  of  the  other  creditors.    The  sureties  of  the  sheriff  had 
nothing  to  do  with,  and  gave  no  sanction  to,  this  arrangement 
The  question  is.  Are  they  bound  to  the  plaintiff  for  the  goods 
or  the  money  received  from  the  sale,  the  plaintiff  having  ob- 
tained judgment  in  the  replevin  suit?    We  think  they  are 
not.    It  was  no  part  of  the  sheriff's  duty  to  make  this  agree^ 
ment  with  the  plaintiff  to  sell  the  goods,  and  to  hold  the  pro- 
ceeds for  the  plaintiff  in  a  certain  event.    He  had  no  l^al 
authority,  as  sheriff,  to  sell  these  goods,  and  to  hold  the  money 
on  bailment  for  the  plaintiff.    If  the  plaintiff  trusted  him 
with  the  custody  of  the  goods,  and  gave  him  authority  to  sdl 
them,  he  became,  so  far,  the  agent  of  the  plaintiff,  and  the 
plaintiff  must  look  to  him  merely  as  his  agent.    He  cannot 
hold  the  sureties  bound  for  executory  contracts  of  this  sort, 
entered  into  without  their  consent.    If  so,  there  would  be 
scarcely  a  limit  to  their  responsibility;  for  contracts  of  this 
sort  might  run  for  years,  and  represent  every  variety  of  com- 
plication.   If  the  sheriff  had  retained  the  goods,  he  might  have 
obtained  a  bond  of  indemnity  from  the  other  creditors;  or, 
if  the  plaintiff  had  given  bond,  he  might  have  relieved  the 
sheriff  from  the  custody  of  the  goods.    But  here  the  sheriff 
assumes,  by  this  agency,  a  responsibility  for  himself  and  his 
sureties  greater  in  degree  and  different  in  kind  from  that 
imposed  by  law,  and  it  would  be  unjust  and  impolitic  to  en- 
courage **^  such  dealings  by  holding  sureties  responsible  for 
them.    It  would  be  against  law  so  to  hold;  for  the  sureties 
are  entitled  to  stand  upon  the  precise  terms  of  their  contract 
by  which  they  stipulated  in  this  case  for  the  official,  not  the 
personal,  dealings  of  their  principal." 

In  the  case  at  bar  the  contract  entered  into  between  the 
plaintiff  and  the  constable  was  private  in  character,  and  pre- 
sumably for  their  mutual  benefit ;  and  as  the  sureties  may  prop- 
erly invoke  the  rule  of  strictissimi  juris  (Murfree  on  Sherift, 
sec.  82),  thereby  rendering  them  liable  only  for  official  acts 
(Hill  V.  Kemble,  9  Cal.  71;  State  v.  Mann,  21  Wis.  ♦6S4),  it 
follows  that  the  judgment  is  affirmed. 


Jan.  1902.]  Feller  v.  Qates.  497 

AOXS   FOB   WHICH    SUBETIBS    OK    OFFIOIAL    BONDS    ABB 


X.    Beop«  of  Kote. 
XL    General  Principles. 

a.  Obligation  of  Sureties  to  be  Strictly  Oonstmed. 

1.  General  Bole. 

2.  Oonstmction  to  be  Beasonable^  Thongb  Strict. 

3.  Principal  and  Sureties  Bound  to  Same  Extent  on 

Bond. 

b.  Liability  for  Performance  of  Dnties  Imposed  Upon  Prin- 

ciple Snbseanent  to  Execution  of  Bond. 

L    Where  New  I>nties  are  not  Germane  to  OUL 

A.  In  GeheraL 

B.  Under  Statute  Making  Bond  Oorsr  Sabee- 

qnently  Imposed  Bntiea 
2.    Where  New  IHrties  are  Germane  to  Old. 

A.  Gteneral  Bole. 

B.  Instances. 

(1)  Treasurers. 

(2)  Sheriif's  Constable^  etc. 

(3)  Tax  Collectors. 

(4)  Qerks  of  Oonrt. 

c    Where  Special  Additional  Bonds  are  Beqnired. 
L    Liability  of  Sureties  on  General  Bond. 

A.  General  Bule. 

B.  Instances. 

(1)  Sheriif  as  Tax  Collector. 

(2)  County  Treasurer  as  School  Treas- 

urer. 

(3)  Tax  Collector  in  Collection  of  Spe- 

cial Levies. 
2.    Liability  of  Sureties  on  Special  Bond. 
d.    Liable  for  Official  Acts  Only. 

1.  General  Bule. 

2.  Statutory  Exceptions. 

*UFKBSlfCK8  TO  MONO«SAPHIC  MOTXS. 

When  set  of  incumbent  of  office  It  to  be  regarded  oa  an  official  act  and  when  not: 
IIAm.StBep.180-188.  ^    _ 

Liability  of  inretles  on  inceeuive  bonds:  10  Am.  St.  Rep.  84M60. 

Liability  of  Boreties  ol  therlfE  for  personal  Injary  inflicted  by  officer:  71  Am.  St. 
Stitp,  bV^'&tL 

Whether  and  when  the  loreties  on  an  official  bond  may  eecape  liability  on  the 
ground  that  their  principal  was  a  trespasser :  78  Am.  St.  Rep.  420-l2(>. 

litability  of  sureties  of  notaries:  82  Am.  bt.  Kep.  38&-888. 

What  constitute  breaches  of  official  boudi  of  snerlfli  and  oonitables:  iS  Am.  Dea 
109^517. 

What  will  exonerate  treasurers  and  other  public  official!  from  payment  of  money 
once  in  their  custody:  €7  Am.  Dec.  SO'S-^iTS.  i 

Official  bonds  when  valid  and  when  void:  82  Am.  Dec.  700-764. 

When  aa  official  bond  becomes  binding  on  the  euretiee  and  what  irregularitlea  ! 

itH  to  reUevethem  from  liability:  90  Am.  St.  Rep.  177-200. 

Am.  8t   Rep.,  VoL  91—32 


498  American  State  Eeports,  Vol.  91.        [OiegQii^ 

8.    Distinction  Between  Acts  Under  Oolar  and  If 

Virtae  of  Office. 
4.    Immaterial  tliat  Object  of  Defanit  Is  PMBMsal 

Profit. 

0.  Konyayment    of    Bills    Incoxred    In    PecfomlBf 

Official  Duty. 
6.    Konirapnent  hf  I>e   Facto   Officer   to   De  Jvre 
Officer,  of  Fees,  etc.  Collected. 

e.  LlablUty  for  Jtdldal  Acts. 

1.  Oeneral  Bole. 

2.  Where  Done  Oomptly. 

8.    Wbat  Deemed  Jodldal  Acts. 

f.  Loss  of  Funds  Without  Fanlt. 

1.  In  OeneraL 

2.  Doctrine  that  IdablUty  Is  Absolute,  as  of  a  DeMior. 

A.  In  Oeneral. 

B.  Basis  of  Doctrine. 

O.    Effect  of  Btatnteo  Prohibiting  OoBTsnloii 
of  Public  Funds. 
8.    CMilllet  of  Authority. 
4.    Doctrine  that  UabUlty  Is  Absolute  DUesi  Bi* 

presdy  Qualified. 

A.  In  General. 

B.  Basis  of  Doctrine. 

(1)  Terms  of  Bond. 

(2)  Public  Policy. 

0.  Iioss  by  Bobbery,  Thefti  etc. 

D.  Loss  by  Inevitable  Accident,  Flre^  ete. 

E.  Loss  by  Failure  of  Depositary. 

F.  Iioss  by  Act  of  God,  or  Public  Bneny. 

(1)  In  CtaneraL 

(2)  What   Constitutes   Act   of  PiAUe 


O.    Prlyate  Funds  Ofildally  HMd  by  Public 
Officer. 

(1)  View  that  LUbUity  Is  for  NetUfnt 

Iioss  Only. 

(2)  View  that  LiablUty  Is  Absotaite. 
H.    When   UabUlty   Is   Qualified   by   Ofldal 

Bond, 
i.    Doctrine  that  LUbillty  Is  for  Los  by  Xei^lgnee 
Only. 

A.  In  OeneraL 

B.  Basis  of  Doctrine. 

C.  Authorities  Bupportlng  DoctrlnOi 

D.  Where  Loss  Is  Negligent,  or  After  Prefl0» 

Default. 


» 


Jan.  1902.]       Fellsb  9.  Gates.  499 

• 

f.    liability  for  Xnterest  Bacelired  on  Public  Funds. 

b.    Kecesslty  of  Demand  of  Ferf  onuance. 

i.    liability  for  Statotory  Fenaltios. 

J.    LiabiUty  Wheore  Default  is  from  Several  Fnnds  Covered 

by  Separate  Official  Bonds, 
k.    CNMd  Faith  of  Officer  Immaterial. 
L    Kegligenee  or  Default  of  Other  Officers. 

1.  Where  the  Cause  of  Principal's  Default. 

2.  Where  not  Cause  of  Principal's  Default. 

XXX.    Idability  of  Sureties  on  Bonds  of  Various  Classes  of  Officers, 
a.    Sheriffs,  Constables,  etc 

1.  In  OeneraL 

2.  Failure  to  Execute  Writ. 

A.  (General  Bule. 

B.  As  Agent  for  Collection. 

8.    Seiaure,  Arrest,  etc..  Without  Process. 

A.  Of  Property. 

B.  Of  Persons. 

(1)  General  Bule. 

(2)  Where  Process  Unnecessary. 

(3)  Where  Bond  Covers  Injury  to  Pub* 

lie  Only. 
4.    Acts  Under  Process. 

A.  Under  Process  Irregular  or  Void. 

(1)  Seizure,  etc.,  of  Property. 

(2)  Arrest  of  Person. 

B.  Seizure  of  Bzempt  Property. 

C.  Seizure  of  Property  of  Stranger  to  Writ. 

(1)  In  C^eneraL 

(2)  Doctrine  that  Sureties  not  Liable. 

(3)  Weight      of      Authority— Sureties 

liable. 

D.  Arrest,  etc.,  of  Stranger  to  Writ. 

B.    lb    Excess    of    Authority    Conferred    by 


F.    Injury  to  Property  in  Custody. 

0.  Injury  to  Person  in  Custody. 
B.    Escape. 

1.  improper  Belease  of  Person  or  Property  in 

Custody. 
X    Betum  of  Process. 

(1)  Failure  to  Betum. 

(2)  False  Betum. 
6b    PAiceeds  of  Levy,  etc. 

A.    Beceived  Without  Process. 

(1)  (General  Bule. 

(2)  As  Agent  for  CoUectioo* 


wo  AiiEBiOAN  State  Bepokts,  Vol.  91.        [OiegQn, 

B.  fieceived  Under  Leyy  of  Ixregnlar  or  Vdd 

Process. 

C.  Beceiyed  Under  Iiory  of  I>efanct  Ftocea. 

D.  Secelyed  Under  Valid  Levy. 

(1)  In  CtoneraL 

(2)  Effect  of  Tender  and  BefosaL 
B.    Beceiyed  by  Arrangement  with  Debtor. 

(1)  Deposit  to  Stay  Execution. 

(2)  Of  Property  Other  than  Mon^. 

(3)  In  GeneraL 
e.    Taking  Security. 

A.  Pailnre  to  Take  BaiL 

B.  Wben  Acts  Deemed  JndidaL 

7.  Acts  of  Deputies. 

8.  Acts  in  Ez-ofllcio  or  Appointiye  Capacities. 

A.  As  Tax  Collector. 

(1)  Where  no  S^arate  Bond  Beoilred. 

(2)  Where  S^arate  Bond  Beqmied. 

B.  In  General— As  Trustee^  Treasurer,  el& 
bb    Tax  Collectors. 

1.  Pailnre  to  Collect 

2.  Seizure  of  Exempt  Property. 
8.    Proceeds  of  Collection. 

A.  Oeneral  Bule. 

B.  Immaterial     that     Tax     was     Irregiilaily 

Iieyied  or  Collected. 

C.  Defense  that  Tax  was  UnoonstitutionaL 

D.  Miscellaneous. 

4.    As  Ex-ofllclo  Treasurer. 
e.    Treasurers. 

1.  Failure  to  Bender  True  Beports. 

2.  Befusal  to  Pay  Iiegal  Warrants. 
8.    Payment  of  Illegal  Warrants. 

4.    Improper  Issuance  of  Tax  Beceipts;  Warraoti^  ^ 
6.    Misappropriation  of  Public  Funds. 

A.  In  GeneraL 

B.  Funds  Unauthorizedly  Beceiyed. 

C.  Funds  Improperly  Baised  or  Collected. 

D.  Funds  not  Actually  Beceiyed. 

6.  Duties    Imposed    Subsequently   to    Execution  tf 

Official  Bond. 

7.  Fnnds  Covered  by  Special  Bond. 

8.  Deposit  of  Funds  in  Bank. 

d.    Clerical  Officers—Clerks  of  Court*  City  Clerks^  Ooniitj 
Clerks,  etc. 
1.    Clerks  of  Court. 

A.    Issuance  of  Writs,  etc 


Jaiu  1902.]  FfiLLEB  V.  Gates.  501 

B.  Israance  of  Letteni  of  Qnardlanalilp,  etc. 

O.  iBsofuice  of  Marriage  ZdcenBes. 

D.  Ministerial  Duties  Generally* 

E.  Approval  of  Bonds. 

F.  Oollection,  etc.,  of  Fees. 

O.    Misappropriation  of  Funds  Beceived  by. 
2.    Oity  Oleiks,  Oonnty  Clerks,  etc. 

A.  Ifisappropriaticn  of  Funds. 

B.  Issuance  of  Waxrants. 

8.    Acta  of  CQerk  of  Court  in  Bx-oillcio  or  AppolntiTt 
Capacities. 

A.  As  License  or  Tax  Collector. 

B.  As  Becorder,  etc 

C.  Under  Appointment  l»y  Court. 

(1)    In  General. 

.(2)    Wbere  Separate  Bond  is  Beqiulred. 
(8)    Where  Separate  Bond  is  not  Be- 
quired. 

e.    Auditors. 

f  •    Supervisors,  Tx^istees,  etc. 

g.    Public  Inspectors,  Superintendents,  ete. 

1.  For  Injuries  from  Failure  to  Inqpect»  ete. 

2.  For  Money  Beceived  tiy. 
]l    Judicial  Officers. 

1.  In  General. 

2.  Ministerial  Acts. 

A.  Justice  of  Peace. 

B.  Probate  Judge,  etc 
8.    Judicial  Acts. 

A.  (General  Bule. 

B.  What  Deemed  Judicial  Acts. 

C.  Corruptly  Done. 

D.  Approval  of  Bonds. 

E.  Without  Jurisdiction. 
4.    For  Money  Beceived  by. 

A.  In  General. 

B.  Where  Authorlzedly  Beceived. 
'C.  Where  Unauthorizedly  Beceived. 
D.  As  Agent  for  Collection. 

(1)  General  Bule. 

(2)  In  Satisfaction  of  Judgment. 
6.    Acts  in  Ez-offlcio  or  Appointive  Capacity. 

1    Notaries  Public 
]•    Conclusion. 

I.    Scope  of  Kotc 
la  the  following  consideration  of  the  acts  for  whieh  sureties  on 
eHeial  bonds  are  liable,  the  discussion  will  be  confined  to  the  bonds 


502  Amesioan  State  Beportb,  Vol.  91.        [Or^;on, 

of  officers  who  are^  strietly  fpeakiBg,  ''pablie  offiMTS."  Those  exer- 
cising quasi  public  funetions,  such  ae  guardians^  exeeutorSy  recei^er^ 
etc.,  will  not^  theref ore,  be  considered.  Horeovery  so  far  as  it  Biay 
be  done  consistently  with  a  full  treatment  of  the  matters  covered, 
the  inquiry  into  what  acts  constitute  breaches  of  official  bonds  so  as 
to  render  the  bondsmen  answerable  will  be  limited  to  a  determination 
of  the  acts  which,  in  their  nature,  amount  to  a  breach  of  the  bond. 
Other  considerations,  for  instance,  such  as  whether  the  time  at  which 
the  act  was  done  wcs  within  the  period  eovered  by  the  undertaking 
of  the  sureties,  while  equally  important  in.  determining  the  liability 
of  the  latter,  are  outside  the  scope  of  this  note.  Likewise  matters 
i)f  evidence  or  practise,  such  as  the  binding  effect  on  the  sureties  of 
admissions  and  representations  by,  or  of  judgments  recovered  against, 
Ibeir  principal  will  be  excluded  from  this  discussion.  For  the  liabil- 
ity of  sureties  on  successive  bonds,  see  the  monographic  note  to 
<]lrawn  v.  Commonwealth,  10  Am.  8t.  Bep.  843;  and  for  questions 
■as  to  the  validity  of  official  bonds,  or  what  irregularities  are  snffi- 
'Cient  to  avoid  them,  see  the  very  recent  monographic  note  to  Estate 
of  Bamsay  v.  People,  90  Am.  St.  Bep.  188-206. 

In  the  treatment  of  the  matters  which  are  to  be  covered  in  this 
note,  the  general  principles  governing  the  liability  of  sureties  on 
official  bonds  for  the  acts  of  their  principals  will  first  be  considered. 
The  application  of  these  principles  to  the  liability  of  the  sureties 
«n  the  bonds  of  any  particular  class  of  officers,  and  such  principles 
:as  are  peculiar  to  that  class  will  be  treated  under  the  heading  of 
that  particular  class. 

n.    General   Principles. 

a.    Obligation  of  Sureties  to  be  Strictly  Oonstmed. 

1.  General  Bole.— Sureties  are  persons  favored  by  the  law.  Their 
obligations  are  ordinarily  assumed  without  pecuniary  compensation, 
and  are  not  to  be  extended  by  implication  or  construction.  Their 
liability  is,  as  it  is  put,  strictissimi  juris.  They  have  a  right  te 
«tand  upon  the  terms  of  their  obligation,  and,  having  consented  to 
be  bound  to  a  certain  extent  only,  their  liability  must  be  found 
within  the  terms  of  that  consent,  strictly  construed:  Morrow  v. 
Wood,  56  Ala.  1;  Clark  v.  Lamb,  76  Ala.  406;  Heidt  v.  Minor,  89 
Cal.  115,  26  Pac.  627;  People  v.  Cobb,  10  Colo.  App.  478,  51  Pac  523; 
State  V.  Montague,  34  Fla.  32,  15  South.  589;  McDonald  v.  Bradshaw, 
2  6a.  248,  46  Am.  Dec.  385;  Cooper  v.  People,  85  IlL  417;  Orton  v. 
City  of  Lincoln,  156  HI.  499,  41  N.  E,  159;  Weisenbom  v.  People,  53 
111.  App.  32;  Fuller  v.  Calkins,  22  Iowa,  301;  Schmidt  v.  Drouet,  42 
La.  Ann.  1064,  21  Am.  St.  Bep.  408,  8  South.  396;  Cressey  v.  Giermaa, 
7  Minn.  398;  State  v.  Conover,  28  N.  J.  L.  224,  78  Am.  Dec  54; 
People  V.  Pennock,  60  N.  T.  421;  Prairie  School  T^.  v.  Haselea,  8  N. 
Dak.  328,  55  N.  W.  938;  Lowe  v.  City  of  Guthrie,  4  Okla.  287,  44  Pae. 


Jan.  1902.]  Felleb  v.  Gates.  603 

198;  Brown  ▼.  Sneed,  77  Tex.  471,  14  S.  W.  248;  Territory  ▼.  Bitter, 
1  Wyo.  318;  BoeHn  v.  Blythe,  46  Fed.  181. 

2.  OoiiBtnictloii  to  be  Beaaonable  Though  Strict.— This  rule  doe« 
not  require  tliat  a  strained  construction  be  put  upon  the  plain  words 
of  a  bond  in  order  that  the  sureties  may  escape  liability.  What  is 
demanded  is  merely  that  the  sureties  are  not  to  be  bound  by  im- 
plication, or  beyond  the  extent  to  which  they  have  obligated  then- 
aelvee  in  the  execution  of  the  bond.  ' '  Whilst  the  liabiUties  of  sure- 
ties are  to  be  strictly  construed,  it  is  not  the  duty  of  courts  to  aid 
them  to  escape  liability  by  technical  and  hypercritical  construction'': 
Cawley  ▼.  People,  95  HI.  249. 

S.  Principal  and  Sureties  Bound  to  Same  Extent  on  Bond.— That 
the  favor  accorded  sureties  by  the  law,  while  it  does  not  permit 
them  to  be  bound  beyond  the  terms  of  their  contract,  does  not  release 
them  from  any  liability  reasonably  imposed  by  those  terms,  is  shown 
by  the  comparative  liability  of  the  principal  and  his  sureties  on  the 
bond.  Whatever  may  be  the  extent  of  the  liability  of  an  officer  per- 
sonally or  otherwise,  outside  of  his  bond,  so  far  as  his  liability  on  the 
bond  is  concerned,  it  is  no  greater  nor  less  than  that  of  his  sureties  on 
the  instrument.  The  liability  of  both  is  measured  by  the  terms  of  the 
bond  reasonably,  but  strictly*  construed.  As  is  said  by  Wright,  J., 
in  Fuller  v.  Calkins,  22  Iowa,  301:  ''We  concede  the  proposition 
stated  by  appellants,  that  the  liability  of  the  sureties  is  to  be  meas- 
ured by  strict  law,  and  that  they  are  only  liable  for  the  failure  of 
the  principal  to  perform  an  official  duty.  In  looking  at  or  construing 
the  obligation,  however,  we  must  put  that  construction  upon  it 
which  the  language  employed  fairly  and  reasonably  implies.  In 
this  respect  the  same  rules  should  be  applied  to  all  those  who  have 
jointly  obligated  themselves  in  the  undertaking.  True,  the  principal 
may  be  liable  outside  of  the  bond,  and  the  sureties  released.  But  if 
the  instrument,  by  its  terms,  covers  the  defalcation  charged,  the 
soreties  must  be  held  equally  with  their  principaL"  To  the  same 
effect  see  Smith  v.  United  States  (Ariz.),  45  Pac.  341;  Gilbert  v« 
Isham,  16  Conn.  525;  Hutchinson  v.  Commonwealth,  6  Pa.  St.  124; 
Wylie  V.  €Fallagher,  46  Pa.  St.  205. 

b.    zaablUty  for  P«rf ormance  of  Duties  Imposed  Upon  Principal 

Subsequent  to  Ezecntion  of  Bond. 
1«  Whers  New  Ihities  are  not  Ctarmans  to  Old. 
A.  In  OeneraL- One  of  the  most  frequent  applications  of  the  so- 
ealled  "strictissimi  juris"  rule— that  the  liability  of  sureties  on 
official  bonds  is  confined  to  the  obligation  in  terms  assumed  by 
them— is  with  reference  to  their  responsibility  for  their  principals 
in  the  performance  of  duties  imposed  by  the  legislature  subsequent 
to  the  execution  of  the  bond.  It  is  well  settled  that  the  sureties  of 
a  public  official  are  not  answerable  for  the  defaults  of  their  prin- 
cipal in  the  performance  of  duties  imposed  or  assomed  subsequent 
l0  ths  sxeeution  of  the  bond|  and  not  of  a  character  germane  to  those 


604  American  Statb  Reports^  Vol.  91.        [Oregon, 

required  of  him  at  the  time  6f  the  execution  of  that  instmment.  If 
the  duties  subsequently  imposed  have  no  natural  relation  to  the 
ordinary  duties  of  the  particular  office,  and  are  not  such  as  naturally 
and  ordinarily  belong  to  that  office,  they  cannot  be  said  to  have 
been  within  the  contemplation  of  the  sureties,  when  they  assumed 
to  answer  for  the  faithful  performance  by  the  officer  of  his  duties, 
and  are  not,  therefore,  within  the  scope  of  the  obligation  of  surety- 
ship. Thus,  it  has  been  held  that  the  sureties  of  a  state  treasurer 
are  not  liable  on  the  bond  for  his  defaults  as  cashier  of  the  state  bank 
where  his  duties  in  the  latter  connection  were  imposed  after  the  bond 
had  been  executed:  Beynolds  v.  Hall,  2  IlL  35.  Nor  are  the  sureties 
of  an  inspector  of  grain,  whose  duties  at  the  time  of  the  execution 
of  the  contract  of  suretyship  covered  no  more  than  the  faithful  in« 
spection  of  grain,  responsible  for  his  acts  in  the  collection  and  care 
of  fees  and  charges  for  inspection  where  the  duties  of  earing  for 
such  funds  was  one  subsequently  prescribed:  People  ▼.  Tompkins, 
74  IlL  482. 

On  the  same  principle  it  was  held  in  United  States  v.  CheesemaB^ 
8  Saw.  424,  Fed.  Gas.  No.  14,790,  that  the  obligation  of  the  bond  of 
an  assistant  treasurer  of  the  United  States,  and  treasurer  of  a  branek 
mint,  did  not  cover  duties  subsequently  imposed  on  such  an  officer 
with  reference  to  the  sale  of  revenue  stamps.  ''The  duties  of  treas- 
urers are  usually  to  keep  safely,  and  pay  out  upon  lawful  author^ 
ity,  the  public  moneys,  not  to  act  as  collectors  of  customs,  postmasters^ 
receivers  of  land  offices,  or  other  officers  engaged  in  collecting  the 
different  branches  of  the  public  revenues.  Treasurers  are  ordi- 
narily understood  to  be  keepers  of  the  public  funds  collected  by 
ether  classes  of  public  officers,  to  whom  those  specific  duties  are 
specifically  assigned.  We  do  not  think  the  words  of  the  treasmrer's 
bond  under  consideration  would  cover  the  duties  of  collectors  of 
customs,  etc.,  imposed  by  an  act  of  Congress,  or  a  regulation  of  the 

treasury  department,  after  the  giving  of  the  bond There  is 

no  natural  or  necessary  connection  of  this  service  with  the  ordinary 
duties  of  that  officer,  as  treasurer."  This  holding,  and  the  language 
quoted  were  enunciated  in  a  case  in  which  the  bond,  after  covering 
fully  the  duties  of  the  treasurer  in  the  receipt^  custody  and  disburse- 
ment of  the  public  funds,  provided  for  his  faithful  performance  of 
"all  other  duties  as  fiscal  agent  of  the  government  which  have  been 
or  may  be  imposed  by  any  act  of  Congress,  or  by  any  regulation  of 
the  treasury  department  made  in  conformity  to  law.''  The  effect 
of  this  and  other  cases  in  which  sureties  have  been  held  not  liable 
for  the  defaults  of  their  principal  in  the  performance  of  subsequently 
imposed  duties  (see  in  addition  to  cases  already  cited,  White  v.  City 
of  East  Saginaw,  43  Mich.  567,  6  N.  W.  86;  Brown  v.  Sneed,  77  Tex. 
471,  14  S.  W.  248;  United  States  v.  Cutter,  Fed.  Cas.  No.  14,911),  is  to 
limit  the  liability  of  the  sureties  in  such  cases  to  such  duties  as  have 


Jan.  1902.]  Fblleb  v.  Gates.  505 

•ome  natural  relation  to  the  ordinary  dnties  imposed  npon  the 
officer  giving  the  bond.  General  terms  in  the  bond,  and  proyisions 
that  tho  bond  shall  cover  all  duties  which  may  thereafter  be  imposed 
bj  law,  are  to  be  read  in  the  light  of  this  rale,  and  do  not,  therefore, 
extend  the  responsibility  of  sureties  over  matters  in  their  nature 
unconnected  with  the  office  as  it  existed  at  the  time  of  the  execution 
cf  the  bond,  and  which  the  sureties  cannot  reasonably  be  supposed 
to  have  contemplated  in  assuming  liability.  (Compare,  however, 
Mahaska  County  v.  Ingalls,  14  Iowa,  170.) 

B.  Under  Statute  Making  Bond  Oover  Snbseqnently  Imposed 
Duties. — In  a  number  of  states  the  statutes  providing  for  official 
bonds  provide  that  they  shall  cover  such  duties  as  may  be  required 
of  the  officer  by  any  law  passed  subsequently  to  the  execution  of 
the  bond:  See  Coleman  v.  Ormond,  60  Ala.  828;  Morrow  v.  Wood,  56 
Ala.  1.  These  provisions  are  very  properly  construed,  as  are  similar 
elanses  when  they  appear  in  the  bond  itself,  and  are  held  to  include 
•uch  subsequently  imposed  duties  only  as  are  germane  to  the  duties 
required  of  the  principal,  at  the  time  ef  the  execution  of  the  bond: 
People  ▼.  Edwards,  9  GaL  286. 

2.    Where  New  Ihities  are  Oermaae  to  OUL 

A.  Cleneral  Bole.— In  an  Alabama  case,  it  is  said  that  "if  the 
engagement  of  suretyship  relates  to  a  particular  office,  with  pre- 
scribed duties,  it  extends  only  to  such  duties  as  are  prescribed  when 
the  engagement  is  entered  into,  and  not  to  such  as  may  be  subse- 
quently attached  to  the  office '^  Morrow  v.  Wood,  56  Ala.  1  (citing 
Bartlett  v.  Attorney  General,  Park.  277;  Bowdage  v.  Attorney  Gen- 
eral, Park.  488);  Coleman  v.  Ormond,  60  Ala.  828.  The  rale  is,  how- 
ever, undoubtedly  the  other  way,  and  by  the  great  weight  of  author- 
ity it  is  well  settled  that  the  sureties  of  a  public  officer,  unlike  the 
sureties  on  a  contract  between  private  parties,  are  not  discharged  by 
every  change  in  the  duties  of  the  principal  obligor. 

<<  A  public  officer,''  says  Hunt,  J.,  in  People  v.  Vilas,  36  N.  Y.  459, 
P3  Am.  Dec  520,  ''takes  his  office  with  the  obligation  to  perform  all 
the  duties  incident  to  or  connected  with  it,  then  existing,  or  that 
may  be  added  by  the  legislature,  provided  the  nature  and  char- 
acter of  the  duties  remain  the  same.  The  imposition  of  duties  of 
the  same  nature  and  character,  or  the  withdrawal  of  portions  of  them 
pertain  to  the  position.  It  is  indispensable  to  the  proper  manage-* 
ment  of  public  affairs,  and  serious  injury  to  the  public  interest 
would  occur  were  the  rule  otherwise.  The  obligation  is  for  a  faithful 
performance  of  all  the  duties  of  the  office,  not  of  the  duties  as  they 
exist  at  any  particular  moment.  His  duties  vary  with  the  requisi- 
tions of  the  statute;  and  whatever  the  statute  imposes  or  with- 
draws becomes  or  ceases  to  be  a  part  of  his  duty.  The  only  limita- 
tion to  this  rule  is  that  the  duties  imposed  shall  be  of  the  same 
general  nature  and  character."  Founded,  therefore,  upon  considera- 
tions of  public  policy,  and  on  the  theory  that  in  becoming  surety 


506  Amebigan  State  Bepobtb,  Vol.  91.        [Oiegooip 

for  the  faithful  performance  bj  another  of  hie  duties  as  »  pabfie 
officer,  the  snretj  must  have  contemplated  the  posaibilit^  and  piob- 
able  necessity  of  some  change  by  the  legieOatore  in  the  duties  iflv- 
posed  upon  his  principal,  the  rule  uniformly  recognized  is  that  snek 
sureties  on  official  bonds  are  liable  for  the  faithful  performance  by 
their  principal  of  all  duties  imposed  subsequent  to  the  exeeotiom 
of  the  bond,  which  are  of  the  same  general  nature  and  character 
as  those  already  required,  and  are  appropriate  to  the  office. 

B.  Instances. 
(1^  Treasurers.— Thus  it  is  held  that  the  bond  of  a  county  treas- 
urer conditioned  for  the  faithful  performance  of  his  duties  "accord- 
ing to  law,"  the  phrase  ''according  to  law"  embraces  statute  law  im 
force  during  the  term  of  office,  whether  passed  before  or  after  the 
execution  of  the  bond.  The  sureties  on  such  bond  are  therefore  liable 
for  moneys  belonging  to  a  city  or  school  district  which  have  come 
into  the  hands  of  the  county  treasurer  by  virtue  of  a  statute  paeeed 
subsequent  to  the  execution  of  the  bond  and  giving  the  eoanty 
treasurer  the  custody  of  city  or  school  funds:  Dawson  v.  State,  38 
Ohio  St.  1.  And  as  a  general  rule,  a  statute  which  merely  commits  te 
the  custody  of  a  county  or  other  treasurer  a  fund  not  preyionalj'  in- 
trusted to  him,  as  a  school  fund,  is  not  regarded  as  imposing  a  duty 
different  in  its  general  character  from  the  duties  already  required, 
or  inappropriate  to  the  office.  Where,  therefore,  the  statute  pre- 
scribing the  new  duty,  either  expressly  or  impliedly  makes  the 
sureties  on  the  treasurer's  general  official  bond  liable  for  the  new 
fund  committed  to  his  charge,  they  will  be  responsible  for  the  £sLitli- 
ful  performance  by  their  principal  of  his  duties  with  reference  to 
that  fund:  Mahaska  County  v.  Ingalls,  14  Iowa,  170;  People  t.  Vilaa, 
36  N.  Y.  459,  93  Am.  Dec  520;  Board  of  Education  ▼.  Quiek,  99 
N.  Y.  138,  1  N.  E.  683. 

(2)  Sheriffs,  OonstaUes,  etc— Similarly,  in  the  case  of  sherifts 
and  constables,  the  execution  of  process  is  a  duty  covered  hy  the 
general  nature  of  the  office,  and  the  sureties  on  the  bond  of  snelL  an 
officer  are  responsible  for  his  acts  in  the  execution  of  process  ^vrhieli 
a  law  passed  subsequent  to  the  date  of  the  execution  of  the  bond 
authorized  to  be  directed  to  the  sheriff:  King  y.  Nichols,  16  Ohio 
St.  80.  See,  also,  Bartlett  v.  Prather,  2  Bibb  (Kj.),  586.  Nor 
does  a  statute  attaching  a  constable  to  a  municipal  court  instead  vt 
a  justice's  court  so  materially  change  the  nature  of  his  office  mm  te 
release  his  sureties  from  liability  for  his  acts  in  the  altered  capacity: 
iPreeland  v.  Akers,  5  Misc.  Bep.  528,  25  N.  Y.  Supp.  986;  Levin  t. 
Bobie,  5  Misc.  Bep.  529,  25  N.  Y.  Supp.  982. 

(3)  Tax  Collectors.— As  applied  to  the  liability  of  sureties  on 
the  bonds  of  collectors  of  taxes  or  customs,  the  rule  is  that  the 
subsequent  authorization  of  a  new  or  special  levy  does  not  introduce 
duties  of  a  nature  different  from  those  already  required  of  the 
principal|  and  the  sureties  are  responsible  for  the  official  acta    or 


Jan.  1902.]  Fsixeb  v.  Gates.  607 

omissioTifl  of  the  latter  in  tbe   collection   of  such   taxes:    Common- 
wealth T.  Gabbert,  5  Bush  (KjJ),  438.    See,  also,  Postnuurter  General 
-v.  Mnnger,  2  Paine,  189,  Fed.  Gas.    No.  11,309.    Nor  will  a  mere 
extension  of  the  time  within  which  the  taxes  must  be  accounted  for: 
Commonwealth  v.  Holmes,  25  Gratt.  (Ta.)  771;  or  a  change  of  the 
Im-w  permitting  the  receipt  of  currency  in  payment  of  taxes  (Bordon 
V.    Houston,  2  Tex.  594),  relieve    the  sureties  from  liability  on  the 
l>oiid.     So  the  obligation  to  pay  storekeepers  is  regarded  as  germane 
to  the  ordinary  duties  of  a  collector  of  internal  revenue:   United 
States  ▼.  McCartney,  1  Fed.  104.    Even  where  the  new  duties  cannot 
1>e  regarded  as  appropriate  to  the  office,  and,  therefore,  within  the  lia- 
bility of  the  sureties,  this  does  not  affect  their  responsibility  for  the 
nets  lawfully  covered  by  the  bond,  but  they  remain  liable  for  the 
faithful  performance  by  the  principal  of  such  duties  as  the  bond 
does  cover:  Commonwealth  v.  Holmes,  25  Gratt.  (Ya.)  771;  United 
States  V.  Gaussen,  2  Woods,  92;  Fed.  Cas.  No.  15,192,  affirmed  in  97 
U.   8.  584. 

(4)  Clerks  of  Court.— The  sureties  on  the  bond  of  a  clerk  of 
court  are  responsible  for  his  acts  in  reference  to  fees,  which,  al- 
though, he  was  authorized  to  collect  at  the  time  of  the  execution  of 
tbe  bond,  he  was  required  to  collect  by  a  subsequent  statute:  State 
v.  Bidgway,  12  111.  14.  So  the  bond  covers  a  subsequently  imposed 
duty  of  the  clerk  to  collect  sheriff's  fees:  Weisenborn  v.  People,  53 
IIL  App.  32;  or  license  taxes:  Wilmington  v.  Nutt,  78  N.  C.  177. 
^here  a  statute  relating  to  the  docketing  of  judgments  by  the 
clerk  imposed  duties  not  materially  different  from  those  required  of 
him  by  the  common  law,  it  does  not,  of  course,  release  the  sureties 
on  the  official  bond  of  the  clerk  from  liability  for  the  acts  of  the 
clerk  in  docketing  the  judgment:  Governor  of  State  v.  Dodd,  81  HI. 
162.  So  merely  adding  a  new  animal  to  the  list  of  those  for  whose 
skins  a  probate  judge  is  to  issue  certificates  under  the  bounty  law 
changes  the  duties  of  such  officer  in  degree,  but  not  in  kind,  and 
the  sureties  are  liable  for  his  performance  of  such  new  duties: 
Territory  v.  Carson,  7  Mont.  417,  16  Pac.  569.  Statutes  authorizing 
the  receipt  of  new  funds  by  an  officer  are  not,  however,  retro- 
active, and  do  not  affect  the  liability  of  the  sureties  on  his  bond  for 
sums  when  received  prior  to  the  enactment  of  the  statute:  McKee 
T.  Griffin,  66  Ala.  211. 

c.    Where  Special  or  Additional  Bonds  are  Beqnlred. 

1.  IilAbility  of  Sureties  on  Oeneial  Bond. 
A.  General  Bnle.— Another  and  a  frequent  application  of  the  rule 
that  the  sureties  on  the  bond  of  a  public  officer  are  entitled  to  a 
strict  eonstruclion  of  their  obligation  occurs  where,  in  addition  to 
the  general  official  bond  required  of  the  officer,  he  is  by  law  com- 
pelled to  give  another  and  separate  bond  before  entering  upon  cer- 
tain partieolar  duties,  or  duties  required  of  him  in  an  ex-officio  ca- 
pacity.   Where  this  is  required,  it  is  quite  uniformly  held  that  the 


608  American  State  Beports,  Vol.  91.        [Oregon, 


mireties  on  the  general  official  bond  are  not  liable  for  the  perf 01 
ance  by  the  principal  of  those  duties  covered  by  the  special  bomd. 

B.    Instances. 

(1)  Sheriff  as  Tax  Collector.^  Thus,  where  a  sheriff  as  ex-offieio 
tax  collector  is,  in  addition  to  his  official  bond  as  sheriff,  required 
to  execute  a  bond  for  the  faithful  performance  of  his  duties  ae  tax 
collector,  his  general  official  bond  as  sheriff  does  not,  it  is  held, 
cover  his  acts  as  tax  collector.  The  law  requiring  another  bond 
for  the  performance  of  particular  duties,  these  are  not  to  be  re- 
garded as  having  been  within  the  contemplation  of  the  snretieB 
on  the  general  official  bond  as  sheriff:  Cooper  ▼.  People,  85  JQL  417: 
Governor  v.  Barr,  13  N.  C.  65;  Jones  v.  Montford,  20  N.  C.  73;  Boger 
Y.  Bradshaw,  32  K.  0.  229;  Columbia  Co.  y.  Massie,  31  Or.  292,  4S 
Pac  694.  Where,  however,  the  bond  as  tax  collector  is  not  re- 
quired, but  the  county  board  is  authorized  to  demand  it  if  Beeessasy, 
it  will  be  regarded  as  cumulative  security  merely,  and  the  suretiee 
on  the  general  official  bond  of  the  sheriff  will  be  held  liable  for  his 
defaults  as  tax  collector:  State  y.  Harney,  57  Miss.  863.  (8ee^  gen- 
erally, for  the  liability  of  the  sureties  of  a  sheriff  for  his  sets  as 
collector  of  taxes,  post,  III,  a,  8,  A,  (1)). 

(2)  County  Treasurer  as  School  Treasorer.—The  same  rule  applies 
where  a  separate  bond  is  required  of  a  treasurer  for  the  faithful 
performance  by  him  of  his  duties  in  eonneetion  with  a  partieiilar 
fund  intrusted  to  his  custody:  State  v.  Young,  23  Minn.  551;  Bed* 
wood  County  Commrs.  v.  Tower,  28  Minn.  45,  8  N.  W.  907;  Board 
of  Commrs.  of  Scott  County  v.  Bing,  29  Minn.  398,  13  N.  W.  181; 
Board  of  Commrs.  y.  Knudson,  71  Minn.  461,  74  N.  W.  158;  State 
y.  Mayes,  54  Miss.  417;  State  v.  Felton,  59  Miss.  402;  SUte  y. 
Hall  (Miss.),  8  South.  464;  State  v.  Johnson,  55  Mo.  80;  State  y. 
Batement,  102  N.  C.  52,  11  Am.  St.  Bep.  708,  8  8.  £.  882;  Board  y. 
City  of  Paris,  66  Tex.  119,  18  S.  W.  342;  Milwaukee  Co.  Bujiervisors 
V.  Ehlers,  45  Wis.  281.  Compare  Mahaska  County  y.  Tngi^Hf^  14 
Iowa,  170.  The  sureties  on  the  general  bond  may,  of  course,  by  apt 
words  therein  indicating  their  intention  to  become  sureties  for  the 
conduct  of  the  principal  in  respect  to  the  fund  for  which  the  law 
requires  a  separate  bond,  bind  themselves  in  the  one  instrument  as 
sureties  on  both  the  general  and  special  bond  contemplated  by« 
the  law:  Hall  v.  State,  69  Miss.  529,  13  South.  3S;  Wake  County 
Commrs.  v.  Magnin,  86  N.  C.  285.  (See,  generally,  for  the  liability 
of  the  sureties  of  a  city,  county  or  state,  etc,  treasurer  for  his  aeto 
as  custodian  of  special  funds,  post.  III,  c,  7.) 

(3)  Tax  Collector  in  Collection  of  Special  Leyies.— In  the  appli* 
cation  of  the  doctrine  to  the  general  official  bond  of  a  tax  collector, 
it  is  held  that  the  sureties  on  such  instrument  are  not  responsible 
for  the  acts  or  defaults  of  their  principal  in  the  collection  of  a  tax 
levy  for  which  he  is  by  law  required  to  give  a  special  bond:  Waters 
y.  State,  1  Oill  (M4.),  302.    In  Kentucky,  the  same  rule  is  recognised 


Jan.  1902.]  Feller  v.  Gates.  509 

and  applied:  Anderson  v.  Thompeon,  10  Bush,  132;  Elliott  ▼.  Kit- 
eben,  14  Bush,  289;  Cook  v.  Clark,  13  Ky.  Law  Eep.  100,  16  8.  W. 
269;  but  under  various  statutory  provisions  there  in  force  it  is  held 
that  the  sureties  on  the.  general  official  bond  are  liable  for  taxes 
covered  by  a  special  bond  required  by  law,  where  for  any  reason 
the  latter  bond  ia  not  executed:  Kenton  Co.  v.  Lowe,  91  Ky.  367,  16 
S.  W.  82;  Howard  ▼.  Commonwealth,  105  Ky.  604^  49  S.  W.  466; 
Fidelity  etc.  Co.  ▼.  Commonwealth,  104  Ky.  579,  47  S.  W.  579, 
49  &  W.  467;  Pulaski  County  ▼.  Watson,  21  Ky.  Law  Eep.  61,  50 
S.  W.  861;  Catron  v.  Commonwealth,  21  Ky.  Law  Eep.  650,  52  S. 
^W.  929;  Adair  v.  Hancock  Dep.  Bank,  21  Ky.  Law  Eep.  934,  53  S. 
^W.  295;  Indiana  Bridge  Co.  v.  Carr,  95  Fed.  594,  37  C.  C.  A.  187. 
IVbere,  however,  the  special  bond  is  executed,  the  sureties  on  the 
^enerslbond  are  not,  it  is  held,  liable  for  the  taxes  covered  by  the 
paxtieular  bond:  Whaley  v.  Commonwealth,  23  Ky.  Law  Eep.  1292, 
61  8.  W.  35;  Lyons  v.  Breckinridge  County  Court,  101  Ky.  715,  42 
S.  W.  748. 

For  the  liabilities  of  the  sureties  of  clerical  officers,  as  clerks 
of  eourt,  county  clerks,  etc.,  on  their  general  bonds  for  acts  done 
in  ex-officio  or  appointive  capacities,  see  post,  HI,  d,  3. 

2.  lalabllity  of  Sureties  on  Special  Bond.— Where  an  officer  is  by 
law  required  to  give  several  bonds  each  for  the  performance  of  a 
certain  set  of  duties,  the  mere  fact  that  the  bond  also  contains 
general  terms  covering  the  faithful  performance  of  the  duties  im- 
posed  upon  the  principal  obligor  does  not  extend  the  bond  to  take 
in  duties  provided  for  in  another  and  different  bond,  but  it  is  con- 
fined to  such  as  partake  of  the  nature  of  those  specifically  men- 
tioned. This  construction  is  merely  the  application  of  the  rule  that 
general  terms  are  to  be  read  in  the  light  of  their  context,  and  unless 
the  rule  were  followed,  "the  penalty  to  secure  one  set  of  duties 
might  be  absorbed  in  covering  delinquencies  in  others":  Scott  v. 
Kenan,  94  N.  C.  296;  Crumpler  v.  Governor,  12  N.  C.  (1  Dev.)  52; 
County  Trustee  v.  Matlock,  12  N.  0.  (1  Dev.)  214;  Hunter  v. 
Boutlege,  51  N.  C.  (6  Jones)  216;  8tate  v.  Sutton,  120  N.  C.  298,  26 
8.  E.  920;  Eaton  v.  Kelly,  72  N.  C.  110;  State  v.  Paling,  44  W.  Ya. 
312,  28  8.  E.  930.  In  one  case  at  least,  however  (Holt  v.  McLean,  75 
N.  C.  347),  the  supreme  court  of  North  Carolina  seems  to  have  lost 
sight  of  the  reason  of  the  role.  In  that  case  it  was  held  that  an 
official  bond  of  a  register  of  deeds,  conditioned  that  he  should 
*' safely  keep  the  records  and  books  of  his  said  office,  and  shall  in  all 
respects  truly  and  faithfully  discharge  the  duties  of  the  said  office," 
did  not  cover  the  acts  of  the  principal  in  issuting  a  marriage  license. 
The  theory  on  which  the  court  proceeded  was  that  the  general  words 
of  the  bond  could  not  enlarge  the  operation  of  the  bond  bej^ond 
the  "keeping  of  the  records  and  books  of  the  said  office."  So  far 
as  appears  from  the  report,  however,  no  other  bond  was  required  of, 
or  given  by,  the  register  of  deeds,  and  the  decision  seems  one  in, 


610  Ambmoan  Statb  Bepobts^  Vol,  91.         [Oregon, 

which  a  rule  originally  laid  down  as  applicable  to  a  case  ^rhere 
several  bonds  were  given,  each  covering  a  particular  set  of  duties,  and 
which  was  intended  to  confine  each  bond  to  the  particular  duties 
covered  by  it,  is  applied  to  a  case  where  but  one  bond  was  called 
for.  What  was  evidently  intended  as  a  general  official  bond  is  in 
Holt  v.  McLean,  75  N.  C.  847,  restricted  to  a  narrower  scope 
merely  because  of  the  enumeration  therein  of  a  portion  of  the  duties 
the   bond  was  intended  to   cover. 

d.    Liable  for  Official  Acts  Only. 

1.  Oentral  Bnls.— In  assuming  liability  upon  the  official  bond  of  a 
public  officer,  his  sureties  become  answerable  for  the  faithful  per- 
formance of  his  duties  and  the  propriety  of  his  conduct  as  an  offieer. 
But  there  the  liability  ceases.  "The  sureties  do  not  bind  them- 
selves to  protect  the  publie  against  every  act  of  their  principal, 
nor  do  they  become  his  sureties  to  keep  the  peace":  State  t.  Cob- 
nover,  28  N.  J.  L.  224,  78  Am.  Dec.  54.  A  breach  of  his  duties 
as  a  man  and  a  citizen  may  render  an  officer  personally  liable,  but 
it  does  not  create  any  liability  on  the  part  of  the  sureties  on  kis 
official  bond.  The  latter  are  responsible  only  for  the  breaek  of  his 
duties  as  an  officer— for  his  official  acts  and  omissions.  This  is  tkc 
general  principle  by  which  the  liability  of  the  bondsmen  of  an  of- 
ficial is  to  be  determined,  and,  stated  as  a  general  principle  merely, 
it  is  so  undoubted  that  a  citation  of  the  authorities  in  which  it  is 
recognized  and  applied  could  answer  no  practical  purpose.  While 
unanimous  in  their  recognition  of  the  principle,  the  authorities  ar«^ 
however,  by  no  means  harmonious  in  its  application,  and  by  far 
the  larger  portion  of  this  note  is  concerned  with  the  determinatioa 
of  what  does  or  does  not  constitute  an  "official  act"  within  the 
meaning  of  the  rule. 

2.  Statutory  Bzceptions.— A  statute  may,  of  eourse,  render  th^ 
sureties  on  the  bond  of  a  public  officer  liable  for  certain  acts  of  the 
latter,  which  as  an  officer  he  is  not  required  to  perform,  and  in 
the  performance  of  which  his  official  character  plays  no  part.  Thns^ 
in  Williams  v.  Williamson,  6  Ired.  281,  45  Am.  Dec  494^  by  a  stotnte 
of  1818  of  North  Carolina,  the  bond  of  a  constable  in  addition  to 
covering  the  faithful  discharge  of  his  duty  as  a  constable,  likewise 
assured  "his  diligently  endeavoring  to  collect  claims  put  into  his 
hands  for  collection  and  faithful  paying  over  all  sums  thereon  re- 
coived,  either  with  or  without  suit.''  As  was  said  by  the  court 
in  that  case:  "The  act  does  not  impose  any  new  duties  or  powers 
on  a  constable,  as  such,  but  merely  makes  his  sureties  liable  for 
his  acts  as  agent,  as  he  himself  was  before."  Statutes  of  this 
nature  are,  however,  very  infrequent,  and  do  not  at  all  affect  the 
force  of  the  general  and  undoubted  rule  that  the  bondsmen  of  a 
public  official  are  responsible  only  for  his  official  acts  or  omissions. 

8.    I>i8ti&ction  Between  Acts  Under  Oolor  and  by  Virtue  of  Offlos. 
In  applying  the  rule  that  sureties  on  official  bonds  are  responsible 


Jan.  1902«]  Fsllbb  v.  Gates.  511 

for  breaebes  by  the  principal  obligor  of  official  dutiet  only,  many 
of  the  courts  have  recognized  and  sought  to  apply  a  distinction  be- 
tween acts  done  by  the  principal  by  virtue  of  his  office  (virtute 
cfficii),  and  those  done  under  color  of  office  (colore  officii)  merely. 
As  commonly  put,  those  acts  are  virtute  officii  which  "are  within  the 
authority  of  the  officer,  but  in  doing  which  he  exercises  that  au- 
thority improperly,  or  abuses  the  confidence  which  the  law  reposes 
in  him;  whilst  acts  done  colore  officii  are  where  they  are  of  such 
a  nature  that  the  office  gives  him  no  authority  to  do  them."  For 
the  former,  the  sureties  are  said  to  be  liable,  while  as  to  their  lia- 
bility for  acts  of  the  principal  done  colore  officii  the  authorities 
are  in  conflict. 

The  distinction  suggested  has  been  productive  of  anything  but 
harmony  among  the  authorities,  and  in  its  attempted  application  to 
particular    eases  it  has  served   to   confuse   rather   than   to    clarify. 
It  is  a  distinction  hard  to  make  in  theory,  and  even  more  difficult  to 
apply  in  practise.    Not  only  do  the  courts  differ  as  to  the  liability 
of  the  sureties  for  acts  colore  officii,  but  among  those  authorities 
which  agree  that  such  acts  are  covered  by  the  obligation  of  th*> 
bond,  the  most  widely  divergent  views  are  entertained  as  to  what 
constitute  acts  ''colore  officii"  within  the  meaning  of  the  definition. 
While,  therefore,  the  cases  are  full  of  discussions  concerning  the 
nlstinction  between  acts  done  by  virtue  and  those  done  under  color 
of  office,  the    distinction    is    "of     little     practicable    application" 
(Drolesbaugh  v.  Hill,  64  Ohio  St.  257,  60  N.  E.  202),  and  the  ap- 
parent conflict  "exists  rather  in  the  application  and  use  of  terms 
than  the  principles  enunciated":  Hawkins  v.  Thomas,  3  Ind.  App. 
399,  29  N.  E.  157.    See,  also,  People  v.  Cobb,  10  Colo.  App.  478,  51 
Pae.  523;  Lewis  ▼.  State,  65  Miss.  468,  4  South.  429.    It  is  in  the 
application   of  the   general  principles  to  particular   cases  that  the 
difficulty   arises,   and   those   cases  in  which   the   conflict   upon   the 
general  question  of  what  are  acts  "colore  officii,"  and  the  liabil- 
ity of  the  sureties  therefor,  has  affected  the  determination  of  their 
liability  for  particular  acts  will  be  hereinafter  considered.    See,  how- 
ever, generally,  as  taking  the  view  that  sureties  are  not  liable  for 
the  acts  and  omissions  of  the  principal  obligor  done  colore  officii, 
the  following  cases:  Bourne  v.  Shapleigh,  9  Mo.  App.  64;  Huffman 
V.  Eoppelkom,  8  Neb.  344,  1  N.  W.  243;  Ottenstein  v.  Alpaugh,  9 
Neb.  237,  2  N.  W.  219;  State  v.  Connover,  28  N.  J.  L.  224,  78  Am. 
Dec  54;  Ex  parte  Beed,  4  Hill,  572  (overruled  in  People  v.  Schuyler, 
4  N.  Y.  173);  Lowe  v.  City  of  Guthrie,  4  Okla.  287,  44  Pac.  198; 
Bysart  v.  Lurty,  3  Okla.  601,  41  Pac.  724;   Taylor  v.  Parker,  43 

VTis.  78. 

On  the  other  hancl,  the  preponderance  of  authority  holes  the 
toreties  on  an  official  bond  liable  'Where  the  acts  were  done  colore 
officii:  Jefferson  v.  Hartley,  81  Ga.  716,  9  S.  E.  174;  State  v.  Walford, 
U  Ind.  App.  892,  29  N.  E.  162;  St«te  T.  McGiU,  15  Ind.  App.  289, 


512  Ameeican  State  Reports^  Vol.  91.        [Oregon, 

43  N.  E.  1016;  XeweU  ▼.  Mills,  3  Bush  (Ky.),  62;  Knowlton  t. 
Bartlett,  1  Pick.  271;  Lowell  v.  Parker,  10  Met.  S09,  43  Am.  'Dec. 
436;  Turner  ▼.  Bisson,  137  Mass.  191;  Lewis  ▼.  State,  65  Mifls.  468, 
4  South.  429;  State  ▼.  Byland,  163  Mo.  280,  63  S.  W.  819;  Stmte 
V.  Jennings,  4  Ohio  St.  418;  Drolesbaugh  ▼.  Hill,  64  Ohio  St.  257, 
6G  N.  £.  202;  Mace  ▼.  Gaddis,  8  Wash.  Ter.  125,  13  Pae,  545.  la 
some  jurisdictions,  as  in  Alabama  and  North  Carolina,  this  role 
is  the  one  adopted  bj  statutory  enactment:  Tallman  ▼.  Drake,  lltf 
Ala.  262,  22  South.  485;  Couch  ▼.  Davidson,  109  Ala.  313,  19  Scmth. 
507;  Savage  v.  Matthews,  98  Ala.  535,  13  South.  328;  AUbright  t. 
MUls,  86  Ala.  324,  5  South.  591;  Qark  v.  Lamb,  76  Ala.  406;  Mason 
V.  Crabtree,  71  Ala.  479;  State  v.  Boyd,  120  N.  C.  56,  26  S.  K  700; 
Thomas  v.  Connelly,  104  N.  C.  342,  10  8.  E.  520.  See,  generally, 
in  connection  with  the  distinction  between  acts  virtute  and  eolore 
oiBcii  as  affecting  the  liability  of  sureties  on  official  bonds,  Town 
of  Norwalk  ▼.  Ireland,  68  Conn.  1,  35  AtL  804;  State  t.  Berkener, 
132  Ind.  371,  32  Am.  St.  Bep.  257,  31  N.  E.  950;  State  ▼.  Brown,  54 
Md.  318;  State  v.  Fowler,  88  Md.  601,  71  Am.  St.  Bep.  452,  42  AtL 
201;  Feller  v.  Gates,  40  Or.  543,  ante,  p.  492,  67  Pae.  416,  and 
monographic  note  to  State  v.  Timmons,  78  Am.  St.  Bep.  420. 

4.  Immaterial  that  Object  of  Default  is  Personal  Profit.— In  de- 
termining whether  or  not  an  act  done  by  a  public  officer  is  private 
or  official  in  character,  the  nature  of  the  act  rather  than  the  person 
who  profits  by  it  is  the  proper  ground  of  discrimination.  If,  there- 
fore, an  officer  authorized  to  issue  warrants  for  a  county  issues  a 
fraudulent  warrant  payable  to  himself,  this  latter  circumstance  does 
not  change  it  from  an  official  to  an  individual  act.  Thus^  in  Jonee 
V.  Commissioners  of  Lucas  Co.,  57  Ohio  St.  189,  63  Am.  St.  Bep. 
710,  48  N.  E.  882,  an  auditor  presented  a  claim  for  compensation 
for  services  to  which  he  was  not  entitled,  and,  it  having  been  al- 
lowed by  the  board  of  county  commissioners,  the  auditor  as  such 
drew  a  warrant  on  the  county  treasury  payable  to  himself,  and 
was  paid  the  amount  called  for.  "It  is  insisted,"  says  Spear,  J., 
delivering  the  opinion  of  the  court,  "that  each  presentation  was 
simply  a  personal  application  for  pay  for  personal  services,  and  the 
money  was  drawn  by  virtue  of  the  allowance  of  the  commissioners 
after  due  submission  and  approval  by  the  board,  and  that  the 
drawing  of  money  ....  then  became  a  personal,  and  not  an  of- 
ficial, act,  and  hence  was  not  a  violation  of  the  official  bond.  .... 
The  proposition  that  the  drawing  of  money  from  the  county  treas- 
ury by  a  county  auditor  upon  his  own  warrant  on  a  claim  in  his 
own  favor,  known  by  him  to  be  illegal,  for  alleged  services  rendered 
the  county  is  a  matter  merely  of  individual  action,  and  not  a  dis- 
regard of  olTicial  duty,  is  at  least  a  startling  one.  It  appears  to 
be  based  upon  an  attempt  to  distinguish  between  the  man  as  an 
individual  and  the  man  as  an  officer.  The  distinction  cannot  hold. 
•  •  •  •  The  money  being  drawn  upon  the  auditor's  official  warrant, 


Jan.  1902.]  Felleb  v.  Gates.  513 

why  is  not  that  an  official  aetf  Wo  think  it  ia.''  To  the  aaane 
effect  see,  where  warrants  payable  to  himself  were  drawn  by  aa 
anditor  of  publie  accounts:  Mahaska  Go.  ▼.  Baan,  45  Iowa,  328;  by 
a  eity  or  county  clerk:  Spindler  ▼.  People,  154  HL  637,  39  N.  E. 
580,  affirming,  51  HL  App.  613;  Armington  ▼.  State,  45  Ind.  10; 
People  y.  Treadway,  17  Mich.  480;  by  a  probate  judge:  Smith  y« 
liovell,  2  Mont.  332. 

Where  the  officer  issuing  or  procuring  the  warrant  had  no  power 
to  do  so  as  an  officer,  the  case  is  different.    If,  for  instance,  a  town- 
ship  trustee  without  any  authority  to  issue  warrants,  fraudulently 
procures  one  to  be  certified  by  the  auditor,  when,  as  a  matte^  of 
fact,  the  claim  for  which  it  purports  to  be  given  has  already  been 
paid,  his  act  in  procuring  and  cashing  the  warrant  is  an  individual 
and  not  an  official  act:  State  ▼.  Keifer,  120  Ind.  113,  22  N.  E.  107. 
So  where  a  county  clerk  prepared  and  certified  a  false  statement 
of  what  the  county  owed  him,  the  facts  being  of  record,  and  after 
the  expiration  of  his  term  presented  it  and  had  it  allowed,  there 
was   held  to  have  been  no  breach  of  his  official  bond:   People  v. 
Toomey,  25  HL  App.  46;  affirmed,  122  HL  308,  13  N.  E.  521.    See, 
also.  State  v.  Kent,  53  Ind.  112.    Nor  are  the  sureties  on  the  bond 
of  a  sheriff  liable  for  his  false  certification  of  the  bills  of  third  per- 
sons against  the  county,  he  having  no  authority  or  duty  to  certify 
such  bills:  People  v.  Foster,  133  HI.  496,  23  N.  E.  615.    Similarly, 
the  bond  of  a  county  clerk  is  not,  it  is  held,  and  properly,  breached 
by  a  false  certificate  being  made  by  the  clerk  to  the  effect  that  a 
claim  in  his  favor  had  been  allowed  by  the  county,  where  he  had 
no  authority  to  certify  the  allowance  of  any  bill  or  claim:  Ottenstein 
▼.  AJpaugh,  9  Neb.  237,  2  N.  W.  219.    Where  a  sheriff  presents 
a  claim  against  the  county  after  the  expiration  of  his  term,  as  pro- 
vided by  law,  for  money  expended  by  him  during  his  term  for  the 
<are  of  prisoners,  the  presentation  of  a  false  claim  is  not  an  of- 
ficial, but  an  individual,  act,  and  the  sureties  on  his  official  bond 
are  not  answerable  therefor:  Furlong  v.  State,  58  Miss.  717. 

5.  Konpayment  of  Bills  Incurred  in  Performing  Official  Duty.— 
A  question  involving  very  similar  considerations  arises  with  refer- 
ence to  the  liability  of  the  sureties  on  an  official  bond  for  the 
refusal  or  failure  of  the  officer  to  pay  bills  incurred  by  him  in 
the  discharge  of  his  duties.  If,  for  instance,  the  law  requires  that 
a  sheriff  shall  advertise  a  sale,  or  that  a  tax  collector  shall  publish 
notice  of  a  tax  sale,  does  the  official  bond  of  such  sheriff  or  tax 
collector  become  breached  by  his  failure  to  pay  the  printer  the 
amount  of  his  bill,  which  has  been  allowed  to  the  officer  f  By  the 
weight  of  authority,  it  is  not.  Thus,  in  Commonwealth  ▼.  Swope, 
45  Pa.  St.  536,  84  Am.  Dec.  518,  which  was  an  action  by  a  printer 
on  the  official  bond  of  a  sheriff  to  recover  money  received  by  the 
latter  for  advertising  certain  notices  which  it  was  conceded  the 
Am.  St.  Rep..  Vol.  M— 33 


514  American  State  Bepobts^  Vol.  91.        [Or^gon^ 

Bheriif  was  hj  law  required  to  adTertise,  it  was  beld  tliat  ike 
action  could  not  be  maintained.  As  was  said  by  the  conrt:  "^Ul* 
u'-e  to  give  such  notices  would  be  a  breach  of  his  official  dutj  for 
which  his  sureties  would  be  liable.  But  the  printer  who  publishes 
the  notices  does  his  work  for  the  sheriff  and  not  for  the  partiesi 
His  position  is  no  better  than  that  of  a  sheriff's  deputy,  or  of  one 
who  lets  to  him  a  horse  or  a  vehicle  to  enable  him  to  execute  pro- 
cess. It  does  not  follow,  because  his  duty  to  advertise  ia  official, 
the  duty  to  pay  is  also  official* '^  To  the  same  effect,  see  Gould  t. 
State,  2  Penne.  (Del.)  548,  49  AtL  170,  overruling  News  Pub.  Co. 
V.  Gquld,  1  Penne.  (Del.)  366,  40  Atl.  659;  State  v.  Montague,  M 
Fla.  32,  15  South.  589;  Brown  v.  Phipps,  6  Smedes  &  M.  51;  Allca 
V.  Bamey,  4  Strob.  (S.  C.)  30.  On  the  same  principle  the  sureties 
of  a  United  States  marshal  are  not,  it  is  held,  liable  on  his  offieial 
bond  for  his  failure  to  pay  his  deputies,  although  he  may  have 
leen  allowed  and  have  received  from  the  government  the  fees  due 
such  deputies:  Ballin  v.  Blythe,  46  Fed.  181;  United  States  v.  Fits- 
simmons,  50  Fed.  381;  and  the  bond  of  a  constable  is  not  breached 
by  his  failure  to  pay  to  one  who  had  kept  property  levied  on  by 
the  constable  the  amount  agreed  upon  as  services  for  keeping  it: 
Hickman  v.  State,  1  Ind.  App.  527,  27  N.  E.  1110;  Wilson  v.  State,. 
13  Ind.  341.  Compare,  however,  Martin  v.  Seeley,  15  Neb.  136^ 
17  N.  W.  346. 

In  State  v.  Whitworth,  98  Tenn.  263,  39  S.  W.  10,  the  cases  hold- 
ing that  a  failure  to  pay  bills  for  advertising  incurred  by  an  officer 
in  the  performance  of  his  official  duties  is  not  a  breach  of  his 
official  bond  are  distinguished,  on  the  ground  that  the  statutes  at 
Tennessee^  unlike  those  in  the  cases  referred  to,  fixed  the  amount 
of  the  printer's  fees,  instead  of  leaving  it  to  private  contract  be- 
tween the  latter  and  the  officer,  and  made  the  printer  a  "party  in- 
terested"  in  the  fees  collected.  Where  the  oAcer  is  merely  & 
disburser  of  fees  due  from  the  government,  as  where  a  United  Statee 
marshal  receives  witness  fees  for  disbursement,  his  sureties  are,  of 
course,  liable  for  his  failure  to  pay  them  to  the  persons  entitled: 
Bollin  V.  Blythe,  46  Fed.  181. 

6.  Nonpayment  by  De  Facto  Officer  to  De  Jure  Officer  of  Fe€%. 
etc..  Collected.— The  sureties  on  the  bond  of  an  officer  de  facto  are 
not,  it  is  held,  liable  to  the  de  jure  officer  on  the  recovery  of  the 
office  by  the  latter,  for  the  fees,  salary,  etc.,  collected  by  their 
principal  while  in  possession  of  the  office.  The  fact  that  the  bond 
is  conditioned  for  the  payment  of  "all  fees  or  sums  of  money  re- 
ceived, etc.,  into  the  proper  office  or  to  the  person  entitled,"  does 
not  change  this  rule,  the  undertaking  not  having  been  given  to- 
render  the  sureties  liable  to  the  rightful  officer  for  fees  earned 
by  the  de  facto  officer  or  to  bind  the  sureties  to  a  guaranty  of  the 
validity  of  the  title  of  their  principal  to  the  office  he  was  ezercis- 


Jan.  1902.]       Feller  v.  Gates.  516 

ingr  Curry  v.  Wright,  86  Tenn.  636,  8  S.  W.  698;  Bowlett  ▼.  Whit«, 
18  Tex.  Civ.  App.  688,  46  S.  W.  372. 

e.    Liability  for  Judicial  Acts. 

1.  Gflberal  Bule.— It  is  also  a  general  rule  that  an  ofQcial  bond 
not  only  does  not  cover  acts  of  the  principal  obligor  which  are  of 
a  private  or  eztraofficial  character,  bnt  extends  only  to  such  official 
acts  as  are  not  judicial  in  their  nature.    Officers  charged  with  the 
exercise  of   judicial   functions   are   by   the   policy   of    the   law   not 
amenable  to  civil  suit  for  the  manner  in  which  they  perform  these 
fxu&etions.    Where,   therefore,    an    officer    upon   whom    duties,    both 
ministerial  and  judicial,  are  imposed  is  required  to  give  a  bond  for 
the  faithful  performance  of  the  duties  of  the  office,  the  effect  of 
saeh  bond  is  not  to  enlarge  his  liabilities  or  render  him  responsible 
for  aets  of  a  judicial  nature  for  which  he  was  not  formerly  answer- 
able,   but   the   bond   simply    furnishes   additional    security    for    the 
proper  performance  of  his  ministerial  duties,  and  imposes  no  new  or 
additional  liability  for   his  judicial   acts.    ''The   boundary   of  his 
judicial  character  is  the  line  that  marks  and  defines  his  exemption 
from  civil  liability"  on  the  bond  as  well  as  apart  from  the  bond, 
and  the  liability  of  his  sureties  is  the  same:  McGrew  v.  Governor, 
19  Ala.  89;  Hamilton  ▼.  Williams,  26  Ala.  527;  Thompson  v.  Holt, 
52  Ala.  491;  Irion  v.  Lewis,  56  Ala.  190;  Grider  v.  Tally,  77  Ala. 
422,   54  Am.  Bep.   65;   Coleman   v.  Roberts,   113   Ala.   323,  59   Am. 
St.  Bep.  Ill,  21  South.  449;  Scott  ▼.  Byan,  115  Ala.  587,  22  South. 
284;  People  v.  Bartels,  138  HI.  322,  27  N.  E.  1091;  Place  v.  Taylor, 
22  Ohio  St.  317;  Fairchild  v.  Keith^  29  Ohio  St.  156;  Commonwealth 
T.  Haines,  97  Pa.  St.  228,  39  Am.  Bep.  805. 

2.  Wbere  Done  Conuptly.'By  the  weight  of  authority  the  ex- 
emption of  an  officer  and  Ms  bondsmen  from  all  liability  for  the 
conseqnenoes  of  his  judicial  acts  is  unaffected  by  the  motives  which 
impel  such  action.  In  a  few  jurisdictions,  however,  it  is  held  that 
this  exemption  does  not  cover  judicial  acts  corruptly  done:  State 
V.  Flinn,  3  Blaekf.  (Ind.)  72,  23  Am.  Dec.  380;  Go  wing  v.  Gowgill, 
12  Iowa,  495;  Commonwealth  v.  Tilton,  23  Ky.  Law  Bep.  753,  63 
S.  W.  602.  Even  in  these  jurisdictions,  however,  an  error  of  judg- 
ment, or  even  a  judicial  act  "oppressively  and  unlawfully  done," 
gives  no  right  of  action  on  the  bond.  The  act  must  be  corruptly 
done:  State  v.  Littlefield,  4  Blackf.  129;  State  v.  Jackson,  68  Ind. 
58;  Doepfner  t.  State,  36  Ind.  11. 

3.  Wbat  Deemed  Judicial  Acts.— In  general,  an  act  is  judicial 
'*  where  it  is  the  result  of  judgment  or  discretion.  When  the  of- 
ficer has  the  authority  to  hear  and  determine  the  rights  of  person 
or  property  or  the  propriety  of  doing  an  act,  he  is  vested  with 
judicial  power Official  duty  is  ministerial  when  it  is  ab- 
solute, certain  and  imperative,  involving  merely  the  execution  of  a 
set  task,  and  when  the  law  which  imposes  it  prescribes  and  defines 


516  Ahebioan  State  Bepobts,  Vol.  91.        [Or^joo^ 

the  time,  mode  and  occasion  of  its  perfonnanee  with  such  certaiaft^ 
that  nothing  remains  for  judgment  or  discretion.  Official  action  is 
ministerial  when  it  is  the  result  of  performing  a  certain  and  ^eeile 
duty,  arising  from  fixed  and  designated  facts":  People  t.  Barids, 
1S8  ni.  322,  27  N.  E.  1091.  The  application  of  this  distinction  to 
the  particular  classes  of  acts  performed  by  the  various  classes  of 
public  officials  will  be  hereinafter  considered  in  detaiL 

f  •  Loss  of  Funds  Wltboat  Fault. 
1.  In  General.— But  few,  if  any,  questions  relating  to  the  nature 
ef  the  acts  for  which  sureties  on  the  bonds  of  public  officers  ar« 
liable  have  given  rise  to  as  much  discussion  and  conflict  as  their 
liability  for  public  moneys  once  in  the  custody  of  their  priaeipal% 
which  have  been  lost  without  negligence  on  the  part  of  the  eueto- 
dians.  The  application  of  the  law  in  this  connection  is  most  fr»> 
<]uent  in  the  case  of  treasurers,  who  from  the  nature  of  their  duties 
are  most  frequently  intrusted  with  large  amounts  of  public  moaey. 
The  principles  governing  the  question  are^  however,  equally  applica- 
ble to  all  classes  of  public  officials  intrusted  to  any  extent  witk 
public  funds,  and  will,  therefore,  be  considered  at  this  point.  The 
question  is  treated  at  some  length  in  the  monographic  note  to  8t&t« 
V.  Harper,  67  Am.  Dee.  365. 

2.    Doctrine  that  Liability  Is  Absolute  as  of  a  Debtor. 

A.  In  OeneraL — According  to  one  theory,  adopted  in  a  few  juria- 
dictions,  an  officer  receiving  public  moneys  takes  title  in  himself 
to  such  funds  and  becomes  a  debtor  of  the  city,  county,  townaliip 
or  state  whose  money  he  receives.  Like  any  other  debtor,  his  ob- 
ligation to  repay  is  absolute,  and  is  not  excused  by  any  showing 
that  'without  his  negligence  the  money  has  been  lost.  His  position 
is  not,  under  this  theory,  that  of  a  bailee  of  public  funds,  bot 
that  of  a  debtor  owing  the  county,  state  or  other  political  district 
of  which  ho  is  an  officer  an  amount  equal  to  that  he  has  received. 
This  debt  is  not  to  be  discharged  by  the  exercise  of  any  amount  of 
care  in  keeping  funds  belonging  to  himself,  nor  is  its  payment  ex- 
cused by  the  fact  that  such  funds  have  been  stolen  or  loet  hy 
inevitable  accident,  and  without  any  negligence  or  default  on  bia 
part:  See  Hiatt  v.  State,  110  Ind.  472,  11  N.  E.  359;  Common. 
wealth  V.  Godshaw,  92  Ky.  435,  17  8.  W.  737;  Perley  Counter  ▼. 
Muskegon,  32  Mich.  182,  20  Am.  Bep.  637;  Muzzy  v.  Shattneky    1 

Denio,  233. 

B.  Basis  Of  Doctrine.— The  cases  adopting  this  view  are  baaed 
upon  the  force  of  the  statutes  relating  to  the  particular  offii^era 
whose  liability  was  involved,  and  where  such  statutes  indicate 
that  the  title  to  the  funds  in  his  custody  is  in  the  officer,  the  con- 
clusion reached  in  these  cases  is  undoubtedly  sound.  In  a  nam. 
ber  of  cases,  however,  it  is  said  that  the  liability  of  the  of- 
ficer to  account  for  moneys  received  is  absolute  as  a  'debtor,'* 


Jan.  1902.]  Fjsller  v.  6ateb«  517 

'vrliere  it  if  not  meant  that  he  takes  title  to  the  monej  in  hii 
enstody,  but  merely  that  the  statutes  of  the  particular  state 
impose  upon  him  an  sbsolnte  liability  to  account  for  all  sums  re- 
eeiTed.  This  absolute  liability  is,  however,  quite  consistent  with 
'the  position  of  a  bailee,  and  what  is  meant  in  such  cases  when  they 
describe  the  officer's  liability  as  that  of  a  "debtor,  an  accountant 
l>ound  to  pay  over  the  money  he  has  collected"  is  that  by  statute 
lie  is  bound  absolutely  to  pay  over  all  sums  received  by  him,  rather 
than  that  he  actually  takes  title  ''as  debtor"  to  such  funds:  See, 
for  instance,  State  v.  Clark,  73  N.  C.  256;  Havens  v.  Lathene,  75 
J*^.  C.  505.  Compare,  also,  Hancock  v.  Hazzard,  12  Cush.  112,  59 
Am.  Dec  171,  with  Bailroad  Nat.  Bank  v.  City  of  Lowell,  109  Mass. 
214. 

O.  Effect  of  Statutes  Prohibiting  Oonversion  of  Public  Fmids.^ 
As  is  said  above,  the  view  that  a  public  officer  having  the  custody 
of  public  funds  takes  title  thereto  and  becomes  liable  therefor  as 
a  debtor,  rests  upon  the  peculiarity  of  the  statute  applicable  which 
impresses  his  position  with  that  character:  See  City  of  Healdsburg 
V.  Mulligan,  113  Cal.  205,  45  Pac.  337;  (himberland  County  v.  Pen- 
selly  69  Me.  357,  31  Am.  Bep.  284.  Where,  however,  the  statutes 
indicate  that  the  officer  does  not  take  title  to  the  funds  in  his 
-charge,  as  where  he  is  forbidden  to  make  profit  from  them  or  to 
convert  them  to  his  own  use  in  any  way,  it  is  evident  that  whatever 
the  liabiUty  of  such  officer  for  funds  lost  or  stolen  without  his  neg- 
ligence, he  is  not  liable  on  the  ground  that  he  becomes  a  ''debjtor*' 
to  the  city,  county  or  state  for  the  money  received  by  him:  State  ▼• 
Houston,  78  Ala.  576,  56  Am.  Bep.  59;  City  of  Healdsburg  v.  Mulligan, 
113  Cal.  205,  45  Pac  337;  United  States  v.  Thomas,  15  Wall.  337.  In 
saeh  cases  the  measure  of  his  liability  and  that  of  his  sureties  must 
be  found,  either  in  the  general  law  of  bailments,  or  in  the  provisiona 
of  the  statutes  controlling  and  the  terms  of  his  bond. 

3.  Oonflict  of  Authority.— Passing,  therefore,  to  those  cases  in 
which  the  liability  of  a  public  officer  for  public  moneys  coming 
into  his  hands  is  unaffected  by  local  statutes  investing  him  with 
title  thereto,  the  question  arises  whether  the  sureties  on  the  official 
bond  of  such  an  officer  are  responsible  for  losses  of  funds  held  by 
the  latter,  where  such  losses  have  occurred  without  negligence  or 
other  default  on  his  part.  As  to  this  the  authorities  are  in  an  irre- 
concilable conflict.  According  to  both  views,  a  public  officer  in 
charge  of^  public  funds  is  a  bailee  or  custodian  merely.  The  conflict 
arises,  however,  in  determining  the  extent  of  his  liability  as  such 
bailee  and  in  the  selection  of  the  proper  criteria  for  such  determina- 
tioUtf 

4.    Doctrine  that  Liability  is  Absolute  Unless  Expressly  QnaUfled. 
A    In  OanaraL — Under   one   theory,  and   the  one  which   is  un- 
doubtedly supported  by  the  weight  of  authority  numerically  speak- 


518  Ahesioan  Stats  Bbpobt8>  Vol.  91.        [Oiegcm, 

ing,  the  officer,  wliile  a  bailee  mwelyi  ia  one  the  extent  of  wham 
obligations  ia  to  be  determined  from  the  proYinons  of  the  atatntet 
and  the  terms  of  hia  bond,  and  who,  when  neither  the  statute  nor 
bond  in  terms  qualifies  or  limits  his  liability,  ia  anawerable  for  all 
moneys  received  by  him  unless  he  can  account  for  their  loaa  by 
an  act  of  (jh>d  or  of  the  public  enemy.  In  other  words,  unleaa  his 
liability  ia  expressly  qualified,  he  is  an  inaurer  of  the  aafety  of 
the  funds  intrusted  to  his  charge,  except  where  the  loaa  haa  ariaea 
from  one  of  the  two  exceptional  causes  aboye  mentioned,  and  no 
defense  of  due  care  or  diligence  can  relieve  him  or  his  sureties  from 
responsibility  for  their  loss. 

B.    Basis  of  Doctrine. 

(1)  Terms  of  Bond.— If,  under  this  view,  the  official  bond  is  con- 
ditioned to  ''pay  over''  to  his  successor  the  funds  received  by 
virtue  of  the  office,  or  to  "keep  them  safely,"  or  if  such  expressions 
are  to  be  found  in  the  statutes,  although  the  bond  is  merely  gen- 
eral and  for  the  faithful  performance  of  his  duties  as  an  officer,  his 
sureties  are  deemed  to  have  contracted  that  he  will  account  ab- 
solutely for  all  sums  received  by  him,  and  cannot  defend  because 
they  have  been  stolen  from  him  or  lost  witnout  negligence  on  his 
part  by  the  failure  of  a  bank  in  which  they  were  deposited.  Under 
this  view,  whatever  his  liability  otherwise,  his  sureties  by  con- 
tracting that  he  will  ''pay  over,"  "keep  safely,"  etc,  without 
qualifying  their  liability  in  this  regard,  have  assumed  a  contractual 
obligation,  to  be  measured  by  the  terms  of  the  bond,  and  these 
being  unqualified,  have  agreed  to  insure  the  safety  of  the  funds. 
By  the  greater  number  of  cases  adopting  this  view  it  is  admitted 
that  the  liability  of  public  officers  at  common  law  was  that  of  a 
bailee  for  hire,  and  attached  only  where  the  loss  was  caused  by 
their  negligence,  but  the  theory  of  such  cases  is  that  where  the 
officer  and  his  sureties  have  entered  into  a  bond,  this  forms  the 
true  measure  of  their  responsibility,  and  if  without  exception  or 
qualification  they  have  contracted  that  he  will  turn  over  to  his 
successor  the  money  received  by  him,  or  will  keep  them  safely, 
or  have  used  other  expressions  of  a  like  tenor,  they  are  liable 
if  he  fails  to  pay  the  funds  over  or  keep  them  safely,  however  his 
failure  to  perform  may  have  been  caused— short,  perhaps,  of  an  act 
of  God  or  the  public  enemy. 

(2)  Public  Policy.— In  theory,  this  view  of  the  liability  of  an  of- 
ficer and  his  sureties  on  the  official  bond  rests  mainly  on  the  terms 
of  that  bond.  In  fact,  however,  the  rule  is  quite  as  much,  if  not 
more  the  result  of  a  public  policy,  which  is  deemed  to  require  a 
stringent  liability.  If  it  be  true  that  the  courts  have  in  most  cases 
looked  to  the  terms  of  the  bond  to  determine  the  extent  of  liability 
of  the  sureties,  it  is  equally  true  that  in  the  construction  of  those 
terms  they  have  been  guided  to  a  great  extent  by  what  they  regard 


Jan.  1902.]  Fbllxb  v.  Gates.  519 

•9  a  neeessaiy  publie  policy.  Mr.  Justice  McLean,  in  delivering  tlie 
opinion  of  the  court  in  United  States  ▼.  Prescott,  8  How.  678, 
thus  expressed  this  view:  "Public  policy  requires  that  every  de- 
positary of  the  public  money  should  be  held  to  a  strict  accounta- 
bility; not  only  that  he  should  exercise  the  higj&est  degree  of  vigi- 
lance, but  that  'he  should  keep  safely'  the  moneys  which  come  to 
Ills  hands.  Any  relaxation  of  this  condition  would  open  a  door  to 
frauds,  which  might  be  practised  with  impunity.  A  depositary 
would  have  nothing  more  to  do  than  to  lay  his  plans  and  arrange 
liia  proofs,  so  as  to  establish  his  loss  without  laches  on  his  part." 

C.  Loss  by  Bobbery,  Thefts  e^.— Perhaps  the  most  frequent  ap- 
plication of  the  rule  we  have  been  considering  ia  to  those  cases 
in  which,  without  any  negligence  on  the  part  of  the  depositary 
or  other  officer,  money  in  his  charge  has  been  stolen  surreptitiously, 
or  with  violence.  Such  theft  or  robbery,  although  coupled  with 
no  neglect  on  the  part  of  the  officer  robbed,  does  not,  according  to 
this  view,  furnish  any  defense  to  an  action  on  his  official  bond 
for  the  amount  lost.  Unless  that  instrument  qualifies  his  respon- 
sibility where  the  funds  in  his  charge  are  stolen  without  fault  on 
bifl  part,  his  liability  and  that  of  his  sureties  for  such  funds  is 
absolute:  Thompson  v.  Board  of  Trustees,  30  UL  99;  Halbert  v. 
State,  22  Ind.  125;  Morbeck  v.  State,  28  Ind.  86;  Taylor  Dist.  Tp. 
▼.  Morton,  37  Iowa,  550  (distinguishing  Boss  v.  Hatch,  "5  Iowa,  149); 
Hennepin  Go.  Gommrs.  v.  Jones,  18  Minn.  199;  Bedwood  Go.  Gommrs. 
▼.  Tower,  28  Minn.  45,  8  N.  W.  907;  State  v.  Nevin,  19  Nev.  162,  3 
Am.  St.  Bep.  873,  7  Pac.  650;  United  States  v.  Watts,  1  N.  Mex. 
553  (compare  United  States  v.  Swan,  8  N.  Mex.  401,  45  Pac.  980); 
Muzzy  V.  Shattuck,  1  Denio,  233;  State  v.  Clark,  73  N.  G.  255; 
State  V.  Blair,  76  N.  C.  78;  State  v.  Harper,  6  Ohio  St.  607,  67 
Am.  Dec.  363;  Commonwealth  v.  Gomly,  3  Pa.  St.  372;  Bogg  v.  State, 
46  Tex.  10;  Goe  v.  Force,  20  Tex.  Civ.  App.  550,  50  S.  W.  616; 
United  States  v.  Boyd,  15  Pet.  187;  United  States  v.  Prescott,  3 
How.  578;  United  States  v.  Morgan,  11  How.  154;  United  States 
V.  Dashill,  4  WalL  182;  Boyden  v.  United  States,  13  Wall.  17; 
United  Stetes  v.  Bosbyshell,  73  Fed.  616,  afirmed  in  77  Fed.  944, 
23  C.  C.  A.  581;  writ  of  error  dismissed,  19  Sup.  Gt.  Bep.  873; 
United  States  v.  Bryan,  82  Fed.  290;  United  States  v.  Zabriskie,  87 
Fed.  714;  Pond  v.  United  States,  111  Fed.  989,  49  C.  C.  A.  582;  see, 
also.  State  v.  Gatzweiler,  49  Mo.  16.  The  fact  that  the  money  is  stolen 
by  a  deputy,  even  though  appointed  under  civil  service  rules,  does  not, 
it  is  held*  under  this  rule  excuse  the  officer  on  whose  bond  suit  is 
brought:  United  States  v.  Bryan,  82  Fed.  290;  affirmed  in  90  Fed.  473, 
33  G.  C.  A.  617.  See,  also,  United  States  v.  Zabriskie,  87  Fed.  714; 
Pond  V.  United  States,  111  Fed.  989,  49  C.  G.  A«  582. 

D.  Loss  by  Xneyitable  Aeddenti  Fire,  etc.— In  the  jurisdictions 
whieh  apply  thli  stringent  rul6»,  a  lost  occasioned  by  inevitable 


520  Amsrioak  Statb  Bepobts,  Vol.  91.        [Oregoiw 

Reeident,  saeh  as  fire,  ftandB  upon  the  name  basis  as  one  resnltinp 
from  theft,  and  the  sureties  on  the  bond  of  a  public  official  are  held 
answerable  to  the  same  extent:  Clay  County  ▼.  Simonsen,  1  Dak. 
403,  46  N.  W.  592;  Union  Dist.  Tp.  v.  Smith,  39  Iowa,  9,  18  Am.  Bep. 
39.    In  a  very  recent  case  decided  by  the  supreme  court  of  the  United 
States  and  not  yet  officially  reported  (Smythe  ▼.  United  States,  de- 
cided January  26,  1903),  it  appeared  that  certain  treasury  notes  m 
the  custody  of   the  superintendent  of  the  mint   at  New   Orleans 
had  been  destroyed  by  a  fire  occurring  without  his  fault  or  negligence. 
The  court  reyiewing  at  considerable  length  all  of  the  cases  pravionaly 
decided  by  it  relating  to  the  liability  of  sureties  on  official  bonds 
for  moneys  lost  or  stolen  from  public  officers,  says,  speaking  throagb 
Mr.  Justice  Harlan:  "The  general  rule  announced  in  those  cases — and 
the  question  need  not  be  discussed  anew— is  that  the  obligations 
of  a  public  officer,  who  received  public  moneys  under  a  bond  con- 
ditioned that  he  would  discharge  his  duties  according  to  law  and 
6afely  keep  such  moneys  as  came  to  his  hands  by  virtue  of   his 
office,  are  not  to  be  determined  by  the  principles  of  the  law  of  bail- 
ments, but  by  the  special  contract  evidenced  by  his  bond  conditioned 
as  above  stated;  consequently,  it  is  no  defense  to  a  suit  brought  by 
the  government  upon  such  a  bond  that  the  moneys  which  were  iu 
the  custody  of  the  officer  had  been  destroyed  by  fire  occurring  with- 
out his  fault  or  negligence.    The  rule,  so  far  from  being  modifiea 
by  the  Thomas  case  [United  States  v.  lliomas,  15  Wall.  337],  is 
reaffirmed  by  it,  subject,  however,  to  the  exception  (which,  indeed, 
some  of  the  prior  cases  had,  in  effect,  intimated)   that  it  was   a 
valid  defense  that  the  failure  of  the  officer  to  account  for  publie 
moneys  was  attributable  to  overruling  necessity  or  to  the  publie 
enemy.    The  case  now  before  us  is  not  embraced  by  either  exception. 
The  result  is  that  the  special  defense  here  made  cannot,  in  view  of 
former  adjudications,  avail  the  superintendent  or  his  sureties." 

E.  lioss  by  Failure  of  Depositary.— In  a  large  number  of  cases 
the  loss  of  public  funds  for  which  it  was  sought  to  hold  the  sureties 
on  official  bonds  has  resulted  from  the  failure  of  banks  in  which  the 
principals  had  deposited  such  funds.  Under  the  view  of  the  cases 
which  hold  the  sureties  to  a  strict  responsibility  on  the  terms  of  their 
contract  and  on  grounds  of  public  policy,  the  lack  of  negligence  and 
tne  good  faith  of  the  official  in  selecting  an  apparently  solvent  bank 
as  depositary  and  his  vigilance  in  seeking  to  protect  the  funds 
deposited,  furnishes  no  defense.  His  liability  was  to  "keep  safely" 
or  to  ''pay  over"  absolutely,  and  his  diligence  or  bona  fides  is  im* 
material:  Gaitley  v.  People,  24  Colo.  155,  49  Pac.  272  (compare  2S 
Colo.  227,  64  Pac.  208);  Swift  v.  Trustees  of  Schools.  189  IlL  684, 
60  N.  E.  44;  affirming  91  HI.  App.  221;  Estate  of  Bamsey  t.  People, 
197  HI.  572,  64  N.  E.  549,  affirming  97  HI.  App.  288;  Northern  Paeifie 
By.  Co.  V.  Owens,  86  Minn.  188,  ante,  p.  886,  90  N.  W.  871; 
Oriifin  v.  Board  of  Commrs^  71  Miss.  767,  15  South.  107;  State  ▼• 


Jan.  1902.]  Faixeb  v.  Oatbs.  521 

Koore,  74  Mo.  413,  41  Am.  Bep.  322;  Bush  v.  Jobnson  County,  48  Neb. 
1,  58  Am.  St.  Bep.  673,  66  N.  W.  1023;  Thomssen  v.  HaU  Co.  (Neb.), 
89  N.  W.  389;  Tillinghast  v.  Merrill,  151  N.  Y.  135,  56  Am.  St.  Bep. 
612,  45  N.  E.  375,  affirming  «77  Hun,  481,  28  N.  Y.  Supp.  1089; 
HaveiiB  ▼.  Lathene,  75  N.  C.  505;  Van  Trees  ▼.  Territory,  7  Okla.  353, 
54  Pac  495;  Nason  v.  Directors  of  Poor,  126  Pa.  St.  445,  17  AtL  616; 
Commonwealth  v.  Bailey,  129  Pa.  St.  480,  10  Atl.  764;  Wilson  ▼. 
Wichita  County,  67  Tex.  647,  4  S.  W.  67;  McKinney  v.  Bobinson,  84 
Tex.  489,  19  S.  W.  699;  Fairchild  v.  Hedges,  14  Wash.  117,  44  Pae. 
125.  See,  also,  Maloy  ▼.  Board  of  Commrs.  of  Bernallillo  Co.,  10 
N.  Mez.  638,  62  Pac.  1106. 

F.    Loos  by  Act  of  CKm!  or  Fnblle  Enemy, 
<1)     In  GeneraL— In  nearly  all  of  the  cases  adopting  the  rule 
of  strict  liability  on  official  bonds  for  losses  occurring  without  negli- 
gence, an  exception  is  stated  to  exist  where  the  loss  is  caused  by 
an  act  of  God  or  of  the  public  enemy.    By  this  is  not  meant  that  the 
sureties  are  relieved  from  responsibility  for  losses  occurring  by  in- 
evitable  accident,   for  "inevitable  accident''  is,  legally  speaking, 
not  synonymous  with  the  phrase  "act  of  God,"  and  sureties  are, 
as  we  have  seen  (supra,  IT,  f,  4,  D),  held  liable  for  loss  arising 
frcvm   an  agency,  such   as  fire.    A  failure  to  distinguish  between 
these  classes  of  destructive  agencies  has,  in  some  cases,  led  to  the 
statement  that  according  to  one  line  of  cases,  sureties  are  absolute 
insurers,  though  the  loss  be  caused  by  an  act  of  God.    Except,  how* 
ever,  for  some  casual  dicta  in  a  few  cases  (see,  for  instance.  State 
V.  darky  73  N.  C.  255;  Havens  v.  Lathene,  75  N.  C.  505),  the  author- 
ities are  uniform  in  recognizing  losses  arising  from  the  operation 
of  an  act  of  God  or  the  pnblic  enemy   as  furnishing  an  exception 
to  the  general  rule  of  liability  on  the  part  of  the  surety  under  even 
the  most  stringent  view.    Thus,  in  United  States  v.  Thomas,  15  WalL 
887  it  was  held  that  a  depositary  of  public  moneys  and  the  sureties 
on  his  official  bond  were  not  responsible  for  money  seized  by  the 
rebel  aathorities  by  the  use  of  force.    This  was  held  to  constitute 
an  act  of  the  public  enemy  for  which,  upon  any  ground  of  liability^ 
a  bailee  (which  the  officer  was  shown  to  be)  could  not  properly  be 
held  answerable.    Mr.  Justice  Miller,  in  a  dissenting  opinion,  after 
expressing  his  dissatisfaction  with  the  strict  liability  in  cases  of  loss 
by  pnblic  officials  without  negligence   which  had  been  declared  and 
Imposed  by  the  previous  cases  decided  by  the  court,  doubted  the  prin- 
ciple of  public  policy  which  was  supposed  to  demand  the  rule.    He 
then  continued:  ''Still  more  strongly  do  I  dissent  from  the  distinction 
attempted  to  be  drawn  between  this  case  and  those.    If  a  theft  or 
robbery  in  time  of  profound  peace  can  be  so  easily  simulated,  and 
the  collusion  can  be  so  successful  that  public  policy  requires  that 
no  such  defense  be  listened  to,  I  leave  it  to  any  ordinary  understand- 
ing to  say  how  much  more  easily  the  pretense  of  force  by  the  rebels 
eaa  be  arranged  and  proved  by  consenting  parties,  and  how  much 


522  Amebican  State  Bepobts,  Vol.  91.        [Oiegon^ 


more  difficult  for  the  government  to  disprove  such  collusive 
ments  than  in  the  other  case  mentioned."  The  doctrine  that  acts 
of  a  public  enemy  do  not  render  sureties  answerable  for  the  1 
occasioned  hj  them  is,  however,  uniformly  accepted,  and  has  very 
cc-ntly  been  recognized  by  the  federal  supreme  court:  See  Smythe  t. 
United  States,  decided  January  26,  1903. 

(2)  VHiat  Ctonstitntes  Act  of  Public  Enemy.— To  amount  to  aa 
act  of  the  public  enemy  within  the  meaning  of  this  exertion,  the 
facts  relied  upon  as  a  defense  must  have  consisted  in,  or  been  ac- 
companied by,  the  coercion  of  armed  forces.  Mere  payment  of  the 
money  held  in  accordance  with  an  act  of  the  Confederate  Congress 
and  on  a  requisition  from  the  Confederate  authorities,  unaccompanied 
by  the  application  of  any  physical  force,  furnished,  it  was  held»  no  de- 
fense to  any  action  on  the  bond  of  the  official  making  the  payment: 
United  States  v.  Keehler,  9  WalL  83;  United  States  v.  Morrison, 
Fed.  Cas.  No.  15,817.  In  United  States  v.  Humason,  6  Saw.  199,  Fed. 
Cas.  No.  15,421,  where  a  public  officer  was  lost  at  sea,  together  with 
public  funds  in  his  custody,  and  without  negligence  on  his  part,  it 
was  held  that  the  breach  of  the  official  bond  had  been  caused  by  an 
*'act  of  God,''  and  the  sureties  were  held  not  liable. 

O.  Priyato  Fimds  Officially  Held  by  Public  Ofllcen.— In  the  great 
majority  of  cases  the  loss  for  which  reparation  is  sought  by  aa 
action  on  the  official  bond  is  from  public  funds  held  by  the  offieer. 
Public  officers  are,  however,  by  law  at  times  required  to  aasiune  the 
custody  of  funds  which  are  not,  strictly  speaking,  public  fnndi^ 
as  where  a  clerk  of  court  receives  money  paid  in  in  eondemnatioa 
proceedings,  or  a  probate  judge  assumes  custody  under  the  law  of 
money  awaiting  distribution.  Assuming  that  the  receipt  of  sack 
funds  as  an  offieer  is  authorized  by  law,  so  that  there  may  be  no 
question  as  to  whether  their  receipt  was  eztraoffieial  or  not,  the  qaes- 
tion  still  remains  whether  in  those  states  in  which  public  officers  are 
held  *' insurers"  of  public  funds  in  their  charge  the  same  measure 
of  liability  applies  to  funds  held  for  private  individuals. 

(1)    View  That  Uabllity  is  for  Hegtigsnt  Lose  Only.-^Aeeording 

to  one  view  the  same  rule  is  not  properly  applicable  to  such  private 
funds  as  the  courts  apply  with  reference  to  funds  actually  owned 
by  the  city,  county  or  state.  Thus,  in  Gartley  ▼•  People,  28  Colo.  227, 
64  Pac.  208,  funds  awaiting  distribution  were  paid  by  the  adminis- 
trator of  an  estate  to  the  county  treasurer  as  provided  bj  law. 
The  money  having  been  lost  without  negligence  by  the  county  treas- 
urer, through  the  failure  of  a  bank  in  which  he  had  deposited  it,  suit 
was  brought  on  his  official  bond.  ''Such  funds,''  says  Mr.  Jaatiee 
Garbert,  delivering  the  opinion  of  the  court,  "by  virtue  of  having 
been  paid  to  the  treasurer,  did  not  become  the  property  of  the  coon^. 
llie  latter,  through  its  treasurer,  became  the  mere  bailee  of  these 
moneys,  with  the  obligation  imposed  to  pay  them,  without  interest^ 
to  such  persons  as  the  county  court  having  administration  of  the 


Jan.  1902.]  Fbllbe  v.  Gates.  523 

estate  might  direet.  At  the  custodian  of  these  funds,  it  was  only 
l*onnd  to  exercise  that  degree  of  care,  through  it  treasurer,  in  pro- 
tecting them  from  loss  which  a  reasonably  prudent  man  would  in  like 
circumstances.  The  Uabilitj  of  the  agent  would  be  no  greater  than 
that  of  the  principal;  in  other  words,  if  the  county  was  not  respon- 
ttblo  for  the  loss  of  such  funds,  its  agent  would  not  be,  either  to  the 

eeunty  or^  the  persons   entitled   thereto The   funds  received 

by  the  treasurer  from  the  administrator  were  deposited  in  a  bank 
reputed  to  be  sound.  He  was  the  mere  custodian  of  those  funds 
by  order  of  the  court  under  whose  direction  they  were  placed  in  his 
hands.  It  appears  from  the  arerments  of  this  amendment  that  he 
'was  not  guilty  of  negligence  in  permitting  them  to  remain  in  this 
bank.  On  the  contrary,  it  appears  that  he  exercised  the  same 
degree  of  care  with  respect  to  these  funds  which  a  reasonably  pru- 
dent person  would  have  ordinarily  employed  in  caring  for  his  own. 
They  were  not  public,  and  did  not  belong  to  the  county.  The  de- 
murrer to  the  amended  defense  should  have  been  overruled. ''  To  the 
Fame  effect  are  Wilson  v.  Peoplcy  19  Colo.  199,  41  Am.  St.  Bep.  243,  34 
Pae.  344  (as  distinguished  in  Gartley  v.  People,  24  Colo.  155,  49  Pae. 
272,  and  Van  Trees  v.  Territory,  7  Okla.  353,  54  Pac.  495),  and  People 
V.  Paulkner,  107  N.  Y.  477,  14  N.  E.  415.  See,  also,  SUte  v. 
Gramm,  7  Wyo.  329,  52  Pac.  533. 

(2)  View  that  UablUty  is  Absolute.— On  the  other  hand,  the  dis- 
tinction made  by  these  cases  is  repudiated  in  a  recent  case  decided 
by  the  supreme  court  of  Minnesota  (Northern  Pac.  By.  Co.  v.  Owens, 
86  Minn.  188,  ante,  p.  336,  90  N.  W.  371),  where  money  paid 
into  court  in  condemnation  proceedings  was  lost  by  the  failure  of  a 
bank  in  which  the  clerk  of  the  court  had  deposited  it,  acting  in  tho 
exercise  of  reasonable  care.  Suit  being  brought  on  his  official  bond, 
the  court  thus  disposed  of  the  argument  drawn  from  the  distinction 
taken  by  the  cases  above  cited:  ''Upon  principle,  we  are  unable  to 
make  any  distinction  between  public  and  private  funds  in  the  hands 
of  a  public  officer  as  to  his  liability  therefor.  In  both  cases  the 
funds  are  paid  to  the  officer  in  obedience  to  the  mandate  of 
the  statute,  which  makes  no  distinction  between  them  and  imposes 
the  same  duty  as  to  each.  The  same  bond  secures  both  in  the  same 
terms.  Can  it  be  true  that  a  county  can  recover  on  such  a  bond  the 
amount  of  a  forfeited  recognizance  lost  by  a  clerk  without  his  fault, 
but  that  money  received  by  him  in  his  official  capacity  for  a  private 
party,  and  so  lost,  cannot  be  recovered  by  an  action  on  the  same 
bondf  It  i&  not  the  character  of  the  fund,  but  the  statute  and  con- 
siderations of  public  policy,  which  impose  the  liability  upon  the 
officers.  The  same  considerations  of  public  policy  which  require 
that  public  officers  who  receive  public  money  be  held  to  a  strict 
measure  of  responsibility  therefor  apply  just  as  forcibly  to  private 
funds  officially  received  by  them,   for  private  property   is  just  as 


624  American  State  Bepobts^  Vol.  91.        [Oregtuv 

nered  as  publie  property.  •  •  •  .  We  hold,  therefore,  that  a  pnblie 
officer  is  liable  for  the  loss  of  private  funds  received  and  held  bj 
him  in  his  official  capacity  whenever  he  wonld  be  liable  for  the  Ion 
of  pnblio  funds  under  the  same  circumstances,  for  in  respect  to  his 
liability  for  the  loss  of  money  in  his  official  custody,  there  is  no  dis- 
tinction between  public  and  private  funds."  The  reasoning  is  eon* 
vincing.  ^ 

H.  When  Uability  Is  QnalUled  by  OffleUl  Bond.— In  those  juris- 
dictions in  which  the  strict  measure  of  responsibility.  Is  favored 
great  reliance  Is,  as  we  have  seen,  placed  upon  the  fact  that  the 
terms  of  the  bond  are  unqualified,  and  call  for  the  payment  over  er 
safekeeping  of  the  money  received  without  excepting  losses  from  any 
cause*  Where,  therefore,  this  circumstance  is  not  present,  bat  the 
bond  is  conditioned  for  the  exercise  of  ''all  reasonable  diligence  and 
care  in  the  preservation  and  disposal  of  all  money,''  etc.,  ''reaeon- 
able  diligence''  Is  all  that  is  required,  and  if  a  loss  occurs  In  spite 
of  such  diligence,  as  by  theft  or  robbery,  the  sureties  on  the  bond  are 
not  answerable  therefor:  Boss  v.  Hatch,  6  Iowa,  149.  Even  where 
the  bond  is  in  this  form,  however,  the  fact  that  money  was  lost  by 
the  failure  of  a  bank,  without  any  negligence  on  the  part  of  the 
officer  making  the  deposit  will  not  relieve  the  sureties,  where  by 
statute  loans  of  public  funds  are  forbidden.  The  depoaity  however, 
carefully  made,  Is  itself  a  breach  of  the  statute  and  of  the  ottcial 
bond:  Lowry  v.  Polk  County,  51  Iowa,  50,  33  Am.  Bep^  114»  49  N. 
W.  1049. 

In  District  Tp.  of  Union  v.  Smith,  89  lewa,  9,  18  Am.  Bep.  39, 
it  was  held  that  a  bond  conditioned  for  the  faithful  performance 
of  the  duties  of  treasurer  ''to  the  best  of  his  ability  and  according 
to  law,"  did  not  qualify  the  strict  measure  of  responsibility  becavse 
of  the  words  "to  the  best  of  his  ability."  "It  would,  indeed,  be 
an  extraordinarily  liberal  construction  of  these  words  that  would 
discover  in  them  a  condition  exempting  the  officer  from  perfons- 
ance  of  his  duty  on  account  of  accident,  or  inability  brought  about 
by  accident.  He  is  obligated  by  the  bond  to  discharge  his  duty  to  the 
best  of  his  ability.  Without  the  words  used  he  would  be  so  bound, 
for  it  can  hardly  be  claimed  that  anything  more  or  less  can  be  re- 
quired of  a  public  officer.  But  admitting  that  they  have  special 
force,  it  certainly  cannot  be  claimed  that  they  operate  to  exempt  the 
defendants  form  liabilities  resulting  from  accident  that  would  other- 

wise  exist It  is  vain  to  say  that  they  express  any  such  thouglit 

as  that  the  defendants  have  provided  by  stipulation  to  the  eiffect 
that  they  shall  be  excused  from  the  performance  of  the  conslderatioa 
of  the  contract  by  accident  over  which  they  have  no  eontroL"  If 
the  words  express  any  thought  whatever,  their  only  possible  eftect 
would  seem  to  be  that  denied  them  in  the  language  quoted. 


J«n.  1902.]  Fellbb  v.  Gates.  625 

5.    I>octri]i«  Tbat  Uability  is  for  Loss  by  Hegligence  Only. 

A.  In  CtaneraL — We  have  up  to  this  point  considered  two  theories 
respecting  the  validity  of  sureties  on  official  bonds  for  funds  lost 
l>y  or  stolen  from  their  principals.  One  rests  upon  local  statutes, 
Ibe  effect  of  which  is  to  vest  titlo  in  a  public  officer  to  public  funds 
received  by  him,  and  to  hold  him  and  his  sureties  responsible  for  the 
repayment  of  the  amount,  regardless  of  loss  of  the  funds  from  any 
eauae  whatever.  The  second,  based  upon  the  absolute  terms  of  the 
official  bond  and  considerations  of  public  policy,  imposes  the  liability 
ol  an  insurer  against  loss  from  any  cause  except  an  act  of  God  or  the 
jsublie  enemy,  unless  such  absolute  liability  is  expressly  stipulated 
ai^inst  in  the  bond.  Conflicting  with  these,  particularly  with  the 
second,  is  a  third  theory  as  to  the  liability  of  sureties,  which  holds 
tbem  liable  for  such  losses  only  as  are  caused  by  the  negligence  or 
default  of  their  principaL 

Adopting  this  view  are  the  states  of  Alabama,  California,  Maine, 
Montana,  South  Carolina,  Tennessee  and  Wyoming.  Though  much 
fewer  in  number  than  those  authorities  which  insist  upon  the  more 
stringent  measure  of  responsibility,  the  cases  supporting  the  minority 
view  are  very  well  reasoned,  and  on  principle  seem  preferable. 

B*  Baais  of  Doctrine.— According  to  these  case%  the  terms  of 
the  bond  form  no  new  basifl  of  responsibility.  As  wa«  said  by  Mr. 
Justice  Miller,  in  his  dissent  from  the  majority  opinion  in  United 
States  V.  Thoma%  82  TJ.  S.  (15  Wall.)  337:  ''I  do  not  believe,  now, 
that  on  sound  principle  the  bond  should  be  construed  to  extend  the 
obligation  of  the  depositary  beyond  what  the  law  imposes  upon  him, 
though  it  may  contain  words  of  express  promise  to  pay  over  money. 
I  think  the  true  construction  of  such  a  promise  is  to  pay  when  the 
law  would  require  it  of  the  receiver  if  no  bond  had  been  given, 
the  object  of  taking  the  bond  being  to  obtain  sureties  for  the 
performance  of  that  obligation." 

As  to  the  public  policy  which,  in  the  majority  of  states,  is  deemed 
to  require  a  stringent  measure  of  responsibility,  its  existence  is 
uniformly  and  forcibly  denied  by  the  cases  adopting  the  more  lenient 
role.  What  was  characterized  in  Cumberland  County  v.  Pennell,  69 
Me.  357,  31  Am.  Bep.  284,  as  a  "new-bom  public  policy,  based  upon 
supposed  facility  or  temptation  which  depositaries  of  public  money 
are  said  to  possess  for  collusive  robbery,"  is  thus  denied  in  City  of 
Healdsburg  v.  Mulligan,  113  Cal.  205,  45  Pac.  337:  "It  is  urged  in 
many  of  the  cases  which  hold  the  officer  to  an  absolute  responsibility 
for  all  moneys  coming  to  his  hands,  that  if  robbery  or  larceny  were 
held  to  be  a  defense,  it  would  endanger  the  security  of  public  funds 
&nd  encourage  simulated  robberies  and  pretended  larcenies.  But  we 
cannot  assume  that  courts  of  justice  are  unable  to  protect  the  public 
in  such  cases,  and  even  if  they  could  not  do  so  in  all  cases,  justice 
does  not  require  that  the  public  shall  be  protected  by  enforcing 
against  its  servant,  the  officer  and  his  sureties,  a  liability  the  law 


526  Amebicak  State  Befosts^  Vol.  91.        [Oregon, 

has  not  imposed  upon  them,  and  which  they  have  not  aasumed."  la- 
deed,  public  policy  is  in  the  Maine  case  (Cumberland  County  t. 
Pennell,  69  Me.  357,  31  Am.  Bep.  284)  relied  upon  to  sustain  the  lev 
rigorous  rule  on  the  ground  that  many  persons  willing  to  vouch  for 
the  integrity  of  a  public  official  "would  long  hesitate  to  insure  the 
public  against  possible  loss  happening  in  spite  of  such  qualities;  for 
to  insure  against  such  a  loss  is  not  only  vouching  for  the  integrity 
of  the  officer,  but  practically  for  that  of  the  rest  of  mankind — that 
they  will  not  rob  him."  That  the  rule  of  public  policy  relied  upon 
by  the  cases  adopting  the  rule  of  strict  responsibility  has  not  eqnaDy 
impressed  the  legislatures  in  those  jurisdictions  is  shown  by  the 
acts  of  Congress  relieving  certain  classes  of  federal  officers  from 
the  strict  liability  imposed  by  the  rule  adopted  by  the  United  States 
supreme  court  (see  monographic  note  to  State  v.  Harper,  67  Am. 
Dec.  370),  and  the  special  laws  in  a  number  of  jurisdictions  relieving 
public  officials  who  claimed  to  have  suffered  loss  in  the  absence  of 
neglect:  See  State  v.  Gramm,  7  Wyo.  829-359,  52  Pac  633. 

O.  Anthorities  Supporting  Doctrine.— For  the  authorities  adopting 
the  view  that  neither  by  general  terms  in  the  official  bond,  nor 
because  of  a  supposed  public  policy  are  sureties  on  official  bonds  an- 
swerable for  losses  of  public  funds  not  traceable  to  neglect  or  default 
of  their  principals,  see  State  v.  Houston,  78  Ala.  576,  56  Am.  Bep.  59; 
City  of  Healdsburg  v.  Mulligan,  113  Cal.  205,  46  Pac.  337;  Sonoma 
County  V.  Stofen,  125  Cal.  32,  57  Pac.  681;  Cumberland  County  v. 
Pennell,  69  Me.  357,  31  Am.  Bep.  284;  City  of  Livingston  ▼.  Wood% 
20  Mont.  91,  49  Pac  437,  overruling  Jefferson  County  Commrs.  v. 
liineberger,  3  Mont.  231,  35  Am.  Bep.  462;  York  County  v.  Watson, 
15  S.  C.  1,  40  Am.  Bep.  675;  State  v.  Copeland,  96  Tenn.  296,  54  Am. 
St.  Bep.  840,  34  S.  W.  427;  State  v.  Gramm,  7  Wyo.  829,  52  Pac  538; 
Boberts  v.  Board  of  Commrs.  of  Laramie  Co.,  8  Wyo.  177,  56  Pac  915; 
Miller,  J.,  dissenting,  in  United  States  v.  Thomas,  15  WalL  887.  Bee, 
also,  Albany  Co.  Supervisors  v.  Dorr,  7  Hill,  583;  affirmed,  25  Wend. 
440;  overruled  in  Tillinghast  v.  Merrill,  151  N.  Y.  185,  56  Am.  St. 
Bep.  612,  45  N.  E.  375. 

D,  Where  Loss  is  Kegligent,  or  After  Previous  Default.— Where 
the  official  from  whose  custody  the  funds  were  lost  has,  by  his 
negligence,  contributed  to  the  loss,  his  sureties  are,  of  course,  re- 
sponsible: State  V.  Houston,  78  Ala.  576,  56  Am.  Bep.  59.  Whether 
he  has  been  so  negligent  is,  however,  in  each  case  a  question  of  fact: 
State  V.  Houston,  83  Ala.  361,  3  South.  859.  And  where  the  loss  is 
claimed  to  have  arisen  from  robbery,  the  defense  to  avail  the  sureties 
must  be  clearly  shown:  Sonoma  County  v.  Stofen,  125  Cal.  32,  57 
Pac  681.  Where  by  making  a  deposit  in  bank  of  public  funds  in 
violation  of  a  statute  prohibiting  this,  or  where  by  a  failure  to  pay 
over  funds  to  the  county  treasurer  when  required  by  law,  the 
official  bond  has  been  breached,  the  fact  that  a  subsequent  loss  of 


Jan.  1902.]  Fbllbb  v.  Gates.  627 

th9  funds  oeenrred  without  any  negligence  on  the  part  of  the  eus- 
todian  fnmiaaes  no  defense  to  the  sureties.  The  default  of  the 
official  had  taken  place,  and  his  liability  and  that  of  his  bondsmen 
tM»came  fixed  before  the  actual  loss  occurred:  Alston  v.  State,  92  Ala. 
124,  9  South.  782;  Johnson  Co.  ▼.  Hughes,  12  Iowa,  860;  State  ▼. 
X«anier,  31  La.  Ann.  432;  Monticello  ▼.  Lowell,  70  Me.  437;  Be  vans 
▼.  United  States,  18  Wall.  56. 

g.  Idablllty  for  interest  Beceired  on  PnbUc  Funds.— The  liability 
of  an  officer  and  the  sureties  on  his  official  bond  for  interest  received 
hy  him  on  public  funds  which  he  has  employed  is  in  some  states  pro- 
vided for  by  express  statute  requiring  him  to  pay  over  all  profits  so 
received:  Cooper  v.  People,  85  HI.  417;  Hughes  v.  People,  82  HL  78. 
See,  also,  Session  Laws  of  Colorado  of  1891,  p.  196.  In  the  absence 
of  such  a  statute,  however,  the  liability  of  a  public  officer  and  his 
sureties  for  interest  on  the  public  funds  received  by  him  seems  to 
be  held  by  the  courts  to  depend  upon  the  measure  of  such  officer's 
responsibility  on  his  bond  for  money  lost  without  neglect  on  his 
}«art.  Accordingly,  in  those  jurisdictions  where  the  liability  of  the 
officer  is  held  to  be  absolute,  no  action  can  be  maintained  against 
the  sureties  for  interest  received  by  the  officer,  although  the  loaning 
of  public  funds  is  made  a  felony  or  prohibited:  State  v.  Walsen, 
17  Colo.  170,  28  Pac.  1119.  Compare  Arapahoe  County  v.  Hall,  9  Colo. 
A  pp.  538,  49  Pac  370;  Benfroe  v.  Colquitt,  74  Ga.  618;  Shelton  v. 
State,  53  Ind.  331,  21  Am.  Bep.  197;  Bock  v.  Stinger,  36  Ind.  346; 
Commonwealth  v.  Gadshaw,  92  Ky.  435,  17  S.  W.  737;  Maloy  v. 
Board  of  Commissioners,  10  N.  Mex.  638,  62  Pac.  1106.  Where,  how- 
ever, the  less  stringent  rule  is  upheld,  the  sureties  are.  It  seems,  held 
responsible  for  profits  made  by  the  principal  from  loans  of  the  public 
moneys  held  by  him  (see  State  ▼.  Walsen,  17  Colo.  170,  28  Pac. 
1119,  and  Maloy  v.  Board  of  Commissioners,  10  N.  Mex.  638,  62  Pac. 
1106),  and  interest  is  recoverable  only  after  a  breach  of  the  bond. 

Jl  necessity  of  Demand  of  Performance.— Where  an  officer  is  by 
statute  required  to  pay  over  money  to  a  certain  official  at  a  certain 
time,  or  to  turn  over  the  property  in  his  hands  to  his  successor,  such 
payment  and  delivery  at  the  time  specified  is  an  active  duty,  and  if 
he  fail  to  perform  it,  his  bond  is  breached.  There  need  not,  in 
such  ease,  be  any  demand  that  he  perform:  San  Francisco  v.  Heyne- 
maJi,  71  Cal.  153,  11  Pac.  870;  Clay  County  v.  Simousen,  1  Dak.  403, 
46  N.  W.  592;  Wake  Co.  Commrs.  v.  Magnin,  86  N.  C.  285;  Wooland 
V.  Favorite,  17  Ohio  C.  C.  72;  State  v.  Lake,  30  S.  C.  43,  8  S.  E.  322. 
Where,  howev^,  he  holds  such  money  for  a  private  person,  and  no  pre- 
eiae  time  is  fixed  by  statute  for  its  payment,  or  no  person  fixed  as  the 
proper  payee,  his  failure  to  pay  constitutes  no  breach  of  the  bon^ 
until  a  demand  and  refusal:  Price  v.  Farrar,  5  HI.  App.  536;  State  v. 
Pent,  121  Mo.  162,  25  S.  W.  924;  Furman  v.  Timberlake,  93  N.  C.  66; 
Btate  v.  Bird*  2  Bieh.  (S.  C.)  99.    Compare,  however.  Governor  v. 


528  AiiEBiCAN  State  Befoets^  Vol.  91.        [Oregtf^ 

Boley,  31  Ga.  173.     Where  the  breach  of  the  bond  oeeura  prior  to  tlie 
failnre  to  pay,  there  need,  of  course,  be  no  demand  of  pxymieaL 
finch  is  the  case  where  the  money  has  been  converted  previou  to 
the  time  when  it  must  be  paid:  Furman  t.  Timberlake^  93  N.  C  68. 
8o  where  a  seizure  of  property  by  a  sheriff  is  itself  a  breach  of  the 
bond,  there  need  be  no  demand  for  a  return  of  the  property:  Diab- 
nean  v.  Newton,  91  Wis.  399,  64  N.  W.  879.    Similarly,  it  is  held  ia 
Missouri   that  where  a  county  clerk  makes  a  correct  report  of  fees 
received  by  him,  there  is  no  breach  of  the  bond  for  failure  to  pay 
them  into  the  county  treasury  until  ordered  to  do  so  by  the  eoonty 
court:  State  v.  Dent,  121  Ho.  162,  25  S.  W.  924;  but  where  mch 
repoTtn  are  fraudulent  and  deceitful,  no  subsequent  demand  or  order 
by  the  court  is  necessary  to  fix  a  breach  of  the  bond  of  the  derk: 
State  v.  Henderson,  142  Mo.  598,  44  S.  W.  737;  State  v.  Chick,  146 
Mo.  645,  48  S.  W.  829;  State  y.  Gideon,  158  Mo.  327,  59  8.  W.  99. 

i.  IdabiUty  for  Statutory  Penalties.— Any  extended  diseuBsioB  (tf 
the  elements  or  measure  of  damages  in  actions  against  sureties  on 
official  bonds  is  outside  of  the  scope  of  this  note,  and  will  not  be 
attempted.  There  are,  however,  one  or  two  principles  conneeted 
with  these  questions  which  are  relevant  to  a  discussion  of  the  aets 
for  which  such  sureties  are  liable. 

Where  a  certain  act  Lb  prohibited  or  required  of  a  pubUe  officer, 
and  the  statute  imposes  a  penalty  upon  him  for  noncompliance^  it 
is  frequently  a  question  whether  the  sureties  on  his  bond  are  likewise 
responsible  for  the  statutory  penalty.  Where  the  statute  expressly 
or  by  necessary  implication  subjects  them  to  the  penalty,  they  are,  of 
course,  answerable  to  that  extent:  Wilson  v.  Toung,  58  Ark.  593,  25 
a  W.  870;  Kerr  v.  Atkinson,  40  Ark.  877.  See,  also,  Chriatiaa  v. 
Ashley  Co.,  24  Ark.  142;  Norris  v.  State,  22  Ark.  524;  Boss  v.  Cobb, 
64  Mo.  464;  State  v.  Peterson,  142  Mo.  526,  89  8.  W.  453,  40  &  W. 
1094;  Territory  v.  Carson,  7  Mont.  417,  16  Pac  569.  See,  also,  Stote 
V.  Allen,  48  W.  Va.  154,  86  Am.  St.  Bep.  29,  85  8.  £.  990.  In  a 
number  of  cases,  however,  the  statute  did  not  necessarily  impose 
the  penalty  on  the  sureties,  and  yet  it  was  held  to  be  recoverable 
against  them,  as  well  as  against  the  principal:  Tappan  v.  People,  67 
HI.  339;  State  v.  Hays,  7  La.  Ann.  118;  State  v.  Breed,  10  La.  Ann. 
492;  State  v.  Hampton,  14  La.  Ann.  679;  Eastin  v.  School  Directors, 
40  La.  Ann.  706,  4  South.  880;  Joyner  v,  Boberts,  112  N.  C.  Ill,  16 
S.  B.  917;  Jerould  Co.  v.  Williams,  7  S.  Dak.  196,  63  N.  W.  905;  State 
V.  McDannel  (Tenn.),  59  S.  W.  451. 

On  the  other  hand,  it  is  held  by  many  cases  that  sureties  are  not 
liable  for  fines  and  forfeitures  imposed  upon  their  principal  bj 
statute,  unless  such  liability  is  very  plainly  prescribed  by  the  statute. 
The  bond,  it  is  said,  is  essentially  a  contract  of  indemnity,  and  the 
sureties  undertake  to  answer  only  for  such  damage  as  may  be 
caused  by  a  breach  of  the  bond.  A  penalty  for  forfeiture  is  in  no 
proper  sense  a  damage  sustained,  but  is   rather  a  means  of  punish- 


Jan.  1902.]  Feller  v.  Oatbs.  629 

ingr  &  delinquent  official,  and  not  to  be  regarded  as  witbin  the  pur- 
view of  the  bond,  unless  made  so  by  statute:  Brooks  y.  GoTemor,  17 
Ala.  806;  Jeffreys  ▼.  Malone,  105  Ala.  489,  17  South.  21;  Wilson  ▼. 
Jjo^iy  (Ariz.),  52  Pac.  777;  Qlascock  v.  Ashman,  52  CaL  494;  State 
Bank  ▼.  Brennan,  7  Colo.  App.  427,  43  Pae.  1050;  Bobinson  v.  Kinney, 
2  Idaho,  1170,  31  Pac.  S15;  State  v.  Plynn,  157  Ind.  52,  60  N.  E.  684; 
Foote  T.  Yanzandt,  34  Miss.  40;  State  v.  Hall,  68  Miss.  719,  10  South. 
54;  Knapp  ▼.  Sweet,  24  N.  Y.  Supp.  817;  Treasurers  t.  Hilliard,  8 
Bich.  (S.  C.)  412;  McDowell  v.  Burwell,  4  Band.  (Ya.)  317.  For 
a  similar  holding  as  to  the  liability  of  the  sureties  of  a  sheriff  for 
peexmiary  damages  properly  assessable  against  the  latter,  see  John- 
son ▼.  Williams    (Ky.),  63  S.  W.  759. 

J.  IdabiUty  Where  Default  is  from  Sereral  Funds  Oovered  by 
Separate  Oi&cial  Bonds.— Where  an  officer  holds  two  funds  for  each 
of  which  a  separate  bond  is  given,  the  sureties  on  one  are  not  liable 
for  his  defaults  with  respect  to  the  bond  covered  by  the  other  bond: 
See,  supra,  U,  c  Where  the  officer  has  mingled  the  two  funds,  and 
appropriated  from  the  mass,  the  sureties  on  both  bonds  are  liable, 
each  set  for  such  proportion  of  the  deficit  as  the  fund  covered  by 
their  bond  bore  to  the  whole  sum:  People  v.  Stewart,  6  HI.  App.  62; 
Board  of  Commissioners  v.  Knudson,  82  Minn.  151,  84  N.  W.  657; 
Frost  ▼.  Mixsell,  38  N.  J.  £q.  586;  Britton  v.  City  of  Fort  Worth,  78 
Tex.  227,  14  S.  W.  585. 

k.  Qood  Faith  of  Officer  ImmateriaL— The  liability  of  an  officer 
performing  judicial  functions  for  acts  corruptly  done  has  already 
been  touched  upon:  Supra,  p.  515.  Apart  from  this,  however,  the  good 
faith  or  absence  of  improper  motives  in  the  principal  obligor  fur- 
nishes no  defense  to  the  sureties  on  his  bond  in  an  action  for  its 
breach.  Fraudulent  and  dishonest  acts  are  not  the  only  ones  «for 
which  the  bond  stands  as  indemnity:  Palmer  v.  Pettingill  (Idaho), 
55  Pac.  663;  Marshall  Field  &  Co.  v.  Wallace,  89  Iowa,  597,  57  N.  W. 
303;  Wemtz  v.  Kramer,  44  La.  Ann.  35,  10  South.  416;  People  v. 
Colby,  39  Mich.  456;  Yan  Etten  v.  Commonwealth,  102  Pa.  St.  596; 
United  States  v.  Thorn,  Fed.  Cas.  No.  16,493.  Compare,  however, 
Iowa  Co.  Supervisors  v.  Yivian,  31  Wis.  217;  Alexander  v.  Corse,  2 
Cranch  C.  C.  363,  Fed.  Cas.  No.  183;  Bank  of  United  States  v.  Brent, 
2  Cranch  C.  C.  696,  Fed.  Cas.  No.  910. 

L    Negligence  or  Default  of  Other  Officers. 

1«  Where  the  Cause  of  Principars  Default.— The  sureties  on  the 
bond  of  one  officer  do  not  assume  responsibility  for  the  acts  or 
defaults  of  other  public  officials.  Where,  therefore,  the  neglect  or 
illegal  acts  of  other  officials  have  rendered  their  principal  unable 
to  perform  his  duties  according  to  law,  they  cannot  be  held  liable  for 
a  failure  to  perform  arising  from  such  inability.  The  bond  of  a 
county  treasurer,  for  instance,  is  not  breached  by  a  failure  to  make 
Am.   St.  Rep.,  Vol.   91—34 


530  American  State  Beports,  Vol.  91.        [Oregon^ 

a  report  of  delinquent  taxes  at  the  time  specified  by  law,  where  the 
rendering  of  the  report  is  made  impossible  by  the  failure  of  tax 
coUeetors  to  return  their  reports  in  season:  Houghton  County  Super- 
visors T.  Bees,  34  Mich.  481.    So  a  constable  does  not  render  his 
sureties  liable  for  his  failure  to  collect,  where  the  judgment  on 
which  the  collection  was  sought  has  been  superseded,  although  by  the 
mistake  of  the  justice  the  supersedeas  was  invalid:  State  v.  Keeeh, 
16  Md.  512;  nor  are  the  bondsmen  of  a  postmaster  responsiblo  for  a 
loss  of  funds  by  theft  from  the  depositary  to  which  he  had  re- 
mitted: Prairie  School  Tp.  ▼.  Haseleu,  3  N.  Dak.  328,  55  N.  W.  938. 
On  the  same  principle  it  is  held  that  the  bond  of  a  county  auditor 
is  not  breached  by  placing  on  the  assessment-roll  assessments  as 
illegally  reduced  by  the  board  of  equalization:  State  v.  Fish*  4  Nev. 
216;  nor  are  a  school  treasurer  and  the  sureties  on  his  bond  liable 
for  moneys  not  paid  to  him  for  bonds  wrongly  negotiated  by  the 
school  board:  Prairie  School  Tp.  v.  Haseleu,  3  N.  Dak.  328,  55  N.  W. 
938.    Where  by  law  an  officer  is  required  to  give  a  special  bond  for 
particular  duties,  the  failure  or  neglect  of  other  officers  to  require 
such  bond   cannot  render  the  sureties  on  his  general  bond  liable  for 
his  proper  performance  of   those  duties:  Hunter   v.  Boutledge,  51 
N.  C.  216. 

2.  Where  not  Cause  of  Principal's  Default.— On  the  other  hand, 
where  the  negligence  or  wrongful  acts  of  other  officers  has  not  been 
the  cause  of  their  principal's  default,  such  negligence,  it  is  well  set- 
tled, furnishes  no  defense  whatever  to  the  sureties.  ''The  official 
bond  of  a  county  treasurer  is  intended  to  secure  the  public  from  loss 
by  reason  of  the  official  delinquency  of  that  officer.  For  that  pur- 
pose a  bond  is  required.  For  that  purpose  it  is  deemed  to  be  given. 
The  bbligation  of  the  sureties  of  the  treasurer  is  such  as  is  declared 
in  the  condition  of  the  bond.  It  is  not  contingent  upon  the  integrity 
of  other  public  officers,  nor  upon  the  faithful  perfozmance  by  them 
of  their  official  duties.  The  sureties  upon  such  a  bond  enjoy  what- 
ever protection  there  may  be  in  the  law  imposing  supervisory  duties 
upon  other  public  officers;  but  there  is  no  undertaking  or  guaranty 
on  the  part  of  the  county,  or  of  the  state,  in  favor  of  such  sureties, 
either  express  or  implied,  that  the  requirements  of  the  law  shall  be 
complied  with— that  public  officers  shall  perform  their  prescribed 
duties,  nor  that  th^  shall  not  be  guilty  of  criminal  malfeasance. 
There  is  no  such  condition  affecting  the  contract  expressed  in  the 
bond":  Board  of  Commrs.  ▼.  Sheehan,  42  Minn.  57,  43  N.  W.  690. 
The  fact,  therefore,  that  the  negligence,  collusion,  or  criminality  of 
other  officials  has  made  possible  or  aided  the  default  of  the  principal 
obligor  in  an  official  bond,  or  that  but  for  their  laches  his  defaults 
would  have  been  earlier  discovered,  furnishes  no  defense  to  his 
sureties  in  an  action  on  the  bond:  Jackson  Co.  v.  Derrick,  117  Ala. 
848,  23  South.  193;  Stern  v.  People,  102  HI.  540;  People  v.  Foster,  133 


Jan.  1902.]  Feller  v.  Gates.  531 

BL  496.  23  N.  E.  615;  Campbell  v.  People,  154  HI.  595,  39  N.  E.  57S^ 
affirming  52  HI.  App.  338;  Estate  of  Bamsay  y.  People,  197  111.  572^ 
90  Am.  St.  Bep.  177,  64  N.  E.  549;  Spindler  v.  People,  51  111.  App.. 
613,  affirmed  in  154  HI.  637,  39  N.  E.  580;  Armington  v.  State,  4S 
Ind.  10;  Hagne  t.  State,  28  Ind.  App.  285,  62  N.  E.  656;  Commrs.. 
V.  Tate,  89  Ky.  587,  13  S.  W.  113;  State  v.  Powell,  40  La.  Ann.  234^ 
8  Am.  St.  Bep.  522,  4  South.  46;  Johnson  v.  Goodridge,  15  Me.  29; 
Town  of  Winthrop  v.  Soule,  175  Mass.  400,  56  N.  E.  575;  People  v. 
Treadway,  17  Mich!  480;  Board  of  Countj  Commrs.  v.  Sheelian,  42 
Minn.  57,  43  N.  W.  690;  Lewis  v.  State,  65  Miss.  468,  4  South.  420;^ 
Bnah  t.  Johnson  Co.,  48  Neb.  1,  58  Am.  St.  Bep.  673,  66  N.  W.  1023;^ 
Conunonwealth  v.  Holmes  (Va.),  25  Gratt.  771;  United  States  r^ 
Boyd,  15  Pet.  187;  United  States  v.  Bee,  54  Fed.  112,  4  C.  C.  A.  219; 
United  States  v.  Adams,  54  Fed.  114;  United  States  v.  Cutter,  ^ 
Curt.  617,  Fed.  Cas.  No.  14,011. 

HI.    Inability  of  Sureties  on  Bonds  of  Various  Classes  of  Ofilcen^ 

a.    Sheriffs,  CtonstableB,  etc. 

1.  In  Oeneral.— Having  now  considered  the  more  general  prin^ 
ciples  which  determine  the  acts  for  which  sureties  on  official  bond» 
are  liable,  the  application  of  these  principles  to  the  sureties  oa 
tbe  bonds  of  the  particular  classes  of  public  officers  remains  to  b» 
considered.  Separate  treatment  in  connection  with  each  of  th«> 
vumermis  pabUc  offices  recognized  by  the  laws  of  the  various  juris- 
dictions is,  of  eourse,  neither  practicable  nor  advisable,  and  in  the- 
foUowing  discussion  those  offices  the  duties  of  which  are  of  the  same- 
natore  will  be  considered  together.  Of  the  classes  so  formed,  th*- 
first  to  be  discussed  will  be  that  into  which  fall  those  officers  whose 
prineipal  duties  consist  in  the  service  and  execution  of  process  and) 
other  functions  of  a  similar  nature.  This  class  includes  such  officials 
as  sheriffs^  eonstables.  United  States  and  town  marshals,  etc. 

2.    Failure- to  Execute  Writ. 

A.  General  Bule.— Where  an  officer  charged  with  the  duty  of  levy- 
ing process  fails  or  refuses  to  do  so,  such  failure  is,  of  course,  an^ 
omission  amounting  to  a  breach  of  his  official  bond,  and  renders  his. 
bandsmen  liable  for  the  resultant  damage:  Mathis  v.  Carpenter,  9S 
Ala.  156,  86  Am.  St.  Bep.  187,  10  South.  341;  Shannon  v.  Common- 
wealthy  8  Serg.  ft  B.  (Pa.)  444.  See,  also.  People  v.  Lucas,  93  N.  Y^ 
385.  On  the  same  principle  the  bond  is  breached  by  a  levy  on 
property  insufficient  to  pay  an  attachment,  where  the  attachment  de- 
fendant had  other  property:  Sutherland  v.  McKinney,  10  N.  Y.  Supp^ 
876,  18  Civ.  Proe.  Bep.  216.  This»  however,  assumes  that  the  process 
is  such  that  he  is  in  law  bound  to  execute  it,  and  where  it  is  voici^ 
no  liability  can  arise  against  either  the  officer  or  his  sureties  for  fail- 
ure to  levy:  Hawkins  v.  Commonwealth,  17  Ky.  (1  T.  B.  Mon.)  144^ 
Williamston  v.  Willis,  81  Mass.  (15  Gray)    427.    So  a  sheriff  not  be- 


633  American  State  Reports,  Vol.  91.        [Oregon, 

ing  empowered  to  serve  process  on  his  deputy  is  not  chargeable  os 
his  bond  for  failure  to  do  so:  Dane  v.  Gilmore^  51  Me.  54i;  and  eaa- 
Tiot  be  held  for  failure  to  arrest  the  officers  of  a  corporation  oa 
process  running  against  the  corporation:  Hall  etc  Go.  ▼.  Bamefl»  115 
Oa.  945,  42  S.  £.  276.  Failure  to  execute  a  fieri  facias,  where  the 
plaintiff  himself  authorises  the  sheriff  to  desist  from  the  the  lerj  is 
not  a  breach  of  the  official  bond:  Gallier  v.  Stoddard,  19  Ga.  274. 
AVhere  a  writ  of  attachment  is  placed  in  the  hands  of  a  sheriff  to 
lovy,  a  bond  of  indemnity  given,  and  property  in  the  possession  of 
the  defendant,  apparently  subject  to  levy,  is  pointed  out,  the  sheriff 
is  prima  facie  liable  for  a  failure  to  make  the  levy,  and  the  burden 
re&ts  on  him  to  show  that  the  property  was  exempt:  Mathis  ▼.  Gar- 
penter,  95  Ala.  156,  86  Am.  8t.  Bep.  187,  10  South.  341.  Only  nominal 
<^.i)mage8  are  recoverable  where  it  does  not  appear  that  the  failure 
to  levy  execution  has  prevented  the  collection  of  the  debt  from  the 
judgment  debtor:  Brunhild  v.  Potter,  107  N.  G.  415,  12  &  E.  55. 
In  Galifornia,  it  is  held  that  the  sureties  on  a  sheriff's  bond  are  not 
liable  for  a  penalty  imposed  by  statute  against  their  principal  for 
neglect  to  levy  when  requested:  Glascock  v.  Ashman,  52  GaL  4M. 
This,  however,  is  a  question  upon  which  the  authorities  are  not 
harmonious:  Supra,  IE,  L 

B.  As  Agent  for  Collection.— Where  it  is  made  the  duty  of  a 
sheriff  to  collect  fees  due  a  clerk:  Logan  t.  State,  89  Md.  177;  or 
militia  fines  delivered  him  for  collection:  Bartlett  v.  Prather,  8  Bibb 
(Ky.),  586;  his  failure  to  do  so  is  a  breach  of  bis  official  bond. 
It  is,  however,  no  part  of  the  official  duty  of  a  sheriff  or  eonstablt 
to  act  as  collection  agent,  or  to  take  out  execution  in  behalf  of  private 
persons.  If,  having  contracted  to  do  these  things,  he  fails  to  perform 
the  contract,  the  liability  incurred  is  for  failure  to  perform  any  extra- 
official  acts,  and  is  personal  to  the  officer.  It  does  not  attach  to  the 
f  13  re  ties  on  his  official  bond:  Snell  t.  Allen,  81  Tenn.  (1  Swan)  808; 
State  V.  McGollum,  61  Tenn.   (2  Baxt.)    102. 

S.    Seisnre,  Arrest,  etc.,  ITHthont  Process. 

A.  Of  Property.— The  rightful  authority  of  peace  officers  of  the 
class  under  consideration  to  seize  the  person  or  property  of  an  in- 
dividual is,  particularly  as  regards  the  seizure  or  sale  of  property, 
ordinarily  derivable  only  from  a  warrant  or  other  process,  regular  oa 
its  face,  directed  to  the  officer,  and  commanding  him  to  make  the 
seizure  or  sale.  The  liability  of  the  sureties,  as  we  have  seen,  covers 
culy  such  acts  as  are  official  in  their  nature,  and  it  is,  therefore,  a 
question  of  not  infrequent  occurrence,  and  involved  in  no  little 
difficulty,  whether  or  not  such  sureties  are  responsible  for  the  acts 
of  their  principal,  done  without  process,  or  under  defective  process, 
or  in  excess  of  the  authority  conferred  by  the  process  held. 

By  the  weight  of  authority,  a  levy  or  sale  by  a  sheriff  or  con- 
stable made  without  process  is  a  personal  trespass,  and  an  act  for 


Jan.  1902.]  Feller  t;.  Gates.  633 

which  Ha  sureties  are  in  no  way  answerable.  According  to  the 
cases  taking  this  view,  such  an  officer  who  assumes  to  act  in  the 
seizare  of  the  property  of  another  without  any  writ  or  warrant  giv- 
ing him  authority  so  to  act  does  not,  in  any  sense,  act  officially: 
Best  V.  Johnson,  78  Cal.  217,  12  Am.  St.  Bep.  41,  20  Pac.  415;  Com- 
monwealth V.  Cole,  7  B.  Mon.  250,  46  Am.  Dec.  506,  and  monographic 
note,  pp.  509,  515;  Eaton  v.  Kelly,  72  N.  C.  310;  Qerbor  v.  Ackley,  37 
Wis-  43,  19  Am.  Rep.  T51;  Chandler  v.  Rutherford,  101  Fed.  774,  43 
C.  C.  A.  218.  See,  also.  Governor  v.  Perrine,  23  Ala.  807.  Nor  under 
these  cases  is  it  material  that  the  officer  in  maj^ing  the  levy  or  sale 
claimed  to  possess  and  be  acting  under  process.  A  mere  claim  of 
process  does  not,  it  is  held,  make  his  personal  trespass  an  official  act 
or  the  less  a  trespass:  Commonwealth  v.  Cole,  7  B.  Mon«  250,  46  Am. 
Dec.  506;  Gerber  v.  Ackley,  37  Wis.  43,  19  Am.  Rep.  751. 

There  are,  however,  cases  taking  the  opposite  view.  Thus,  In 
Ader  t.  Foley,  50  La.  Ann.  1262,  24  South.  333,  it  was  held  that  the 
sureties  of  a  constable  were  liable  for  his  act  in  seizing  the  property 
of  the  plaintiff  without  any  writ  whatever,  where  he  erroneously 
believed  that  a  note  from  the  owner  authorized  the  seizure.  And  in 
State  V.  E'lmundson^  71  Mo.  App.  172,  the  sureties  of  a  constable  were 
held  liable  under  very  similar  circumstances,  where  the  officer  acting 
without  writ,  but  believing  that  a  memorandum  of  costs  gave  him 
authority,  levied  on  and  sold  the  property  of  an  individual.  These 
cases  may  both,  perhaps,  be  more  properly  regarded,  by  reason  of  the 
belief  of  the  officer  that  he  held  process,  as  cases  in  which  the  levy 
was  made  under  process  void  on  its  face:  See,  post,  in,  a,  4,  A.  For 
the  liability  of  the  sureties  of  an  officer  for  his  misappropriation  of 
the  proceeds  of  a  levy  or  sale  made  without  process,  see  post,  III,  a» 
5»  A. 

B.    Of  Persons. 

(1)  (General  Bvle.— Ordinarily,  an  officer,  in  making  an  arrest  of 
the  person  of  an  individual,  must  act  under  process  quite  the  same 
as  in  making  a  seizure  of  his  property.  If,  therefore,  he  assumes 
to  make  an  arrest  without  warrant,  he  acts,  according  to  one  line  of 
cases  representing,  it  seems,  the  weight  of  authority,  outside  of  his 
official  capacity,  and  commits  a  personal  trespass  for  which  his 
sureties  are  not  answerable:  Hawkins  v.  Thomas,  3  Ind.  App.  399,  29 
N,  B.  157;  State  v.  McDonough,  9  Mo.  App.  63  (compare  State  v. 
Edmundson,  71  Mo.  App.  172);  Kendall  v.  Aleshire,  28  Neb.  707,  26 
Am.  St.  Rep.  367,  45  N.  W.  167;  Dysart  v.  Lurty,  3  Okla.  601,  41  Pac. 
724;  Marquis  v.  Willard,  12  Wash.  528,  50  Am.  St.  Bep.  906,  41 
Pac.  889;  Chandler  v.  Rutherford,  101  Fed.  774,  43  C.  C.  A.  218, 
affirming  2  Ind.  Ter.  379,  51  S.  W.  981.  It  is  held  in  North  Carolina, 
on  the  other  hand,  that  where  the  statute  extends  official  bonds  to 
cover  all  acts  done  "by  virtue  and  under  color  of  office,''  an  arrest 


^534  Ambkican  State  Bepobts^  Vol.  91.        [Oiegoo, 

without  warrant  is  held  to  give  an  actioii  on  the  bond  of  eonstabl*: 
«tat6  V.  Boyd,  120  N.  C.  56,  26  S.  E.  700. 

<2)  Wliere  Pzocess  UnnaceoBary.— A  warrant  is  not»  however,  mae- 
^tssary  in  all  cases  to  justify  an  offieer  in  making  an  arrest,  and 
where  an  arrest  can  be  made  without  warrant,  the  faet  that  it  was 
snade  in  gratification  of  private  malice  is  immateriaL  The  act  is 
nevertheless  an  act  done  ''in  the  line*  of"  official  duty:  Yonnt  ▼. 
X^arney,  91  Iowa,  659,  60  N.  W.  114;  Clancy  ▼.  Kenworthy,  74  Iowa, 
740,  7  Am.  Bt.  Bep.  508,  35  N.  W.  427.  Nor  is  it  material  thjtt  the 
mrrest  was  without  reasonable  or  probable  cause:  Drolesbaugh  ▼. 
'Hill,  64  Ohio  St.  257,  60  N.  K  202. 

In  Chandler  v.  Butherford,  101  Fed.  774,  43  C.  a  A.  218,   affirm- 
ing 2  Ind.  Ter.  379,  51  S.  W.  981,  the  principle  recognized,  and  rery 
pioperly,  it  would  seem,  applied  in  the  cases  cited  in  the  preceding 
"was  urged  upon  the  court,  but  was  overruled  for  reasons  not  en- 
tirely satisfactory.    In  that  case  a  felony  (the  larceny  of  a  horse) 
%ad  been  committed  and  a  deputy  United  States  marshal  had  been 
apprised  of  the  fact,  and  that  one  Carver  was  believed,  on  reason- 
4kble  grounds,  to  be  the  thief.    Being  told  that  Carver  was  in  the 
-vicinity,  the  deputy  marshal  secured  a  posse  and  started  without 
{^lecuriug  a  warrant  to  arrest  Carver.    The  posse,  acting  with  this 
intent   and   without   using    reasonable    diligence    to    identify    the 
jL,piaintiff  as  Carver,  although  believing  him  to  be  the  latter,   shot 
Vhim.    By  a  statute  in  force  in  Indian  Territory  at  the  time  it  was 
;provided  that  a  peace  officer  might  arrest,  ''first,  in  obedience  to 
a  warrant  of  arrest  delivered  to  him;   second,  without  a   wairaat 
^irhere   a   public   offense   is   committed    in   his   presence,   or    where 
he  has  reasonable  grounds  for  believing  that   the  person   arrested 
has  committed  a  felony. '^    ''The  contention  is,"  says  Thayer,  J^ 
ia  delivering  the   opinion  of  the   circuit   court   of  appeals,    "that, 
-as  this   statute   authorizes   an   arrest   without   warrant   in    two   in- 
stances,   the    deputy    marshal    must    be    regarded  as  having    acted 
^colore  officii  in  such  a  sense  as  will  render  the  marshal  and  his  sureties 
liable  for  the  wrong  committed.    It  will  be  observed,  however,  that 
vzM>  offense  had  been  committed  in  the  deputy  marshal's  presence 
-^Irea  he  attempted  to  arrest  the  plaintiff,  and  that  such  knowledge 
«s  he  had  of  an  offense  having  been  committed  was  derived  from 
hearsay.    It  is  further  noticeable  that  the  complaint  fails  to  show 
that  prior  to  the  arrest  the  deputy  marshal  had  been  informed  that 
the  plaintiff  was  Flave  Carver,  or  that  any  effort  was  made  by  the 
officer   or   any  member  of  his   posse   to   ascertain   whether   he   was 
dn   fact  Flave   Carver,   who  was   accused   of   horse   stealing,    while 
it  is  expressly  averred  that  the  arrest  was  attempted  without  the 
-exercise  of  reasonable  diligence  or  any  diligence  whatever  to  aseer- 
"tsin  whether  or  not  the  plaintiff  was  the  peison  whom  they  were 
looking  for  and  seeking  to  arrest.    It  is  clear,  therefore,  under  the 
-averments  of  the  complaint,  that,  if  the  arrest  had  been  eonsum- 


Jan.  1902.]  Fbllbb  i^.  Gates.  635 

mated,  without  the  use  of  firearms,  or  any  vnixsnal  force  or  yiolenee, 
the  deputy  marahal  would  have  been  guilty  of  a  trespaea,  and  could 
act  have  justified  his  conduct  under  the  statute  aforesaid,  beeausoy 
having  no  knowledge  or  information  whatever  as  to  whom  the  per- 
■oa  was  whom  he  attempted  to  arrest,  he  cannot  be  said  to  have  had 
any  ground  for  believing  that  the  plaintiff  had  committed  a  felony. 
When  aa  officer  seeks  to  justify  an  arrest  without  a  warrant,  un- 
der a  statute  like  the  one  now  under  consideration,  and  the  act  for 
whieh  the  arrest  was  made  was  not  committed  in  his  presence, 
ho  must  show  that  he  acted  on  information  such  as  would  justify 
a  reasonable  man  in  believing  that  the  particular  person  arrested  was 
guilty  of  felony.  .  •  •  .  The  deputy's  act  on  the  occasion  in  ques- 
tion was  not  only  unauthorized,  but  it  did  not  have  the  appearance 
of  being  done  in  obedience  to  the  mandate  of  the  law;  in  other 
words,  he  did  not  act  colore  officii  in  any  such  sense  or  under  sueh 
cireamstanees  as  will  render  the  sureties  responsible. '' 

The  effect  of  this  reasoning  is  to  include  within  the  scope  of  an 
official  bond  only  such  acts  as  are  entirely  justifiable,  and  which, 
therefore,  create  no  liability  at  all.  The  language  of  the  supreme 
court  of  Iowa  in  Clancy  v.  Kenworthy,  74  Iowa,  740,  7  Am.  St.  Bep. 
£08,  35  N.  W.  427,  is  pertinent:  ''But  it  is  insisted  that,  aa  the  con- 
stable is  shown  to  have  had  no  lawful  authority  to  arrest  plaintiff, 
his  act  was,  therefore,  not  done  in  the  line  of  his  duty.  In  truth, 
his  act  was  in  the  line— direction— of  official  duty,  but  was  illegal, 
because  it  was  in  excess  of  his  duty.  In  the  discharge  of  official 
functions  he  violated  his  duty,  and  oppressed  the  plaintiff.  This 
is  all  there  is  of  it.  If,  in  exercising  the  functions  of  his  office, 
defendant  is  not  liable  for  acts  because  they  are  illegal  or  forbidden 
by  law,  and  for  that  reason  are  trespasses  or  wrongs,  he  cannot 
be  held  liable  on  the  bond  at  all,  for  the  reason  that  all  violations 
of  duty  and  acts  of  oppression  result  in  trespasses  or  wrongs.  For 
lawful  acts  in  discharge  of  his  duty  he,  of  course,  is  not  liable.  It 
follows  that,  if  defendant's  poiBition  be  sound,  no  action  can  be 
maintained  upon  the  bond  in  any  case." 

(3)  Where  Bond  Ooyers  Injury  to  PnbUe  Only.— In  Alexander  v. 
laon,  107  Ga.  745,  33  S.  E.  657,  it  was  held  that  the  bond  required 
of  a  city  chief  of  police  that  he  "well  and  truly  demean  himself 
in  the  office,  •  •  .  .  and  well  and  truly  account  for  all  moneys  com- 
ing into  his  hands  by  reason  of  said  office,''  was  not  intended  to 
furnish  indemnity  to  individuals  for  wrongs  done  them  by  the 
chief  of  police,  but  was  given  for  the  protection  of  the  city  in  its 
corporate  capacity. 

4.    Acts  xnider  Procssa 
A.    Under  Process  Irregnlar  or  Void. 

(1)  Setsore,  et&,  of  Property.— So  far  as  furnishing  any  juatlfica- 
tion  for  the  seizure  of  property,  an  execution  or  other  process  void 


636  American  State  Beports,  Vol.  91.        [Oregon^ 

on  its  face    has  no  force  whatever.    The  officer  ia  not  bound    to 
levy  it,  and  an  act   done  under  it  is  no  more  authorized   than   if 
done  without  any  process  whatever.    Where,  therefore,  an   aet   to^ 
bind  the  sureties  must  be  done  virtute  officii,  a  levy  or   sale   nn- 
der  a     void  warrant  is  regarded  as  an  extraofficial  and   personal 
trespass,  not  covered  by  the  officer's  official  bond:  State  t.  Timmona* 
90  Md.  10,  78  Am.  St  Bep.  417,  44  Atl.  1003.    In  those  juiisdictiona, 
on  the  other  hand,  where  by  statute  or  otherwise   acts  done  colore 
officii,  as  they  are  termed,  are  held  to  be  official  acts  in  the  senae 
that  they  bind  the  sureties  on  the  official  bond,  a  seizure   or  sale,, 
although  made  under  a  void  process,   is  deemed  made  in    the   as- 
sertion of  a  legal  authority,  and  renders  the  bondsmen  of  the  of- 
ficer responsible:  AUbright  v.  Hills,  86  Ala.  3^,  5  South.  591;  Couch 
v.  Davidson,  109  Ala.  813,  19  South.  607;  Tieman  t.  Haw,  49  Iowa, 
312.    So  in  State  v.  Hendricks,  88  Mo.  App.  560,  it  was  held  that 
a  sale  by  an  officer  under  a  warrant     not  directed  to  him  was  » 
personal  trespass  merely,  for  which  his  official  bondsmen  were  not 
answerable;  while  in  Masfachusetts  the  execution  of  process  by  one 
officer,  though  it  is  not  directed  to  him,  is  deemed  an  act  colore 
officii,  for  which  his  sureties  are  responsible:  Turner  t.  Sisson,  137 
Maes.  191.    Service  by  a  constable  of  an  attachment  writ,   which, 
because  of  the  amount,  he  had  no  authority  to  serve,  is  placed  upon 
the  same  ground,  and  binds  the  sureties:  Lowell  v.  Parker,  51  Mass. 
(10  Met.)  309,  43  Am.  Dec  436.    Compare,  however.  Commissioners 
V.  Sommers,  3  Bush,  555. 

Where  process  is  void  by  reason  of  facts  not  appearing  on  its 
face,  the  sureties  of  the  officer  serving  it  incur  no  liability,  since 
process  ''fair  on  its  face"  is  a  full  protection  to  an  officer  obeying 
its  commands:  Holdrege  v.  McCombs,  8  Kan.  App.  663,  56  Pac  536. 
For  the  responsibility  of  official  bondsmen  for  misappropriation  by 
their  principal  of  the  proceeds  of  a  levy  or  sale  under  void  or  ir- 
regular process,  see  post,  m,  a,  5,  B. 

(2)     Arrest  of  Person.— An  arrest  of  the  person  of  an  individual 
under  process  void  on  its  face  is  governed  by  the  same  principles 
as  are  applicable  in  the  case  of  a  levy  or  sale  of  property,  and  in 
those  jurisdictions  in  which  acts  virtute  officii  are  deemed  the  only 
acts  "official"  as  being  within  the  official  bond,  an  arrest  under 
void  process  does  not  constitute  a  breach  of  such  bond:  Allison  r. 
People,  6  Colo.  App.  80,  39  Pac.  903;  McLendon  v.  State,  92  Tean. 
520,  22  S.  W.  200.    In  the  Colorado  case  the  invalidity  of  the  ar- 
rest arose  from  the  fact  that  the  writ  was  not  directed  to  the  arrest- 
ing officer,  while  in  the  McLendon  case  the  writ  was  void  because  it 
did  not  run  in  the  name  of  the  state.    Whatever  the  liability  oi 
the  sureties  for  an  arrest  by  their  principal  under  a  void  warrant, 
the  arrest  and   any  detention  because  of  it   are,   of  course,  illegal 
and  the  release   of   the   prisoner   so   wrongfully   r^ctained    can  give 


Jan.  1902.]  Fbllbb  v.  Gates.  537 

rise  to  no  liability  on  the  part  of  the  BoretieB  of  the  officers:  Ap- 
pomatox  Co.  v.  Buffolooy  121  N.  G.  37,  27  S.  E.  999. 

B.  Beiziire  of  Ezemi»t  Property.— Where  an  officer  acting  under 
m  valid  writ,  levies  on  or  sells  property  exempt  from  execution 
or  sale,  after  the  steps  necessary  to  establish  the  exemption  have 
teen  taken,  the  authorities  are  uniform  in  holding  the  act  to  be 
one  for  which  the  sureties  on  his  official  bond  are  liable:  McElhaney 
V.  Gilliland,  30  Ala.  183  (see  Bryan  v.  Kelly,  85  Ala.  569,  5  South. 
346);  Wilson  v.  Lowry  (Ariz.),  52  Pac.  777;  Strunk  t.  Ochletree, 
11  lowii,  158;  Bichardflon  v.  Samuelson,  45  Kan.  589,  26  Pac. 
12;  Hursey  y.  Marty,  61  Minn.  430,  63  M.  W.  1090;  State  v. 
Moore,  19  Mo.  369,  61  Am.  Dec.  568;  State  v.  Horn,  94  Mo.  162, 
7  a  W.  116;  Kriesel  v.  Eddy,  87  Neb.  63,  55  N.  W.  244;  Qrieb  v. 
Northmp,  66  App.  Div.  86,  72  N.  Y.  Supp.  481;  Scott  v.  Kenan,  94 
N.  G.  296  (in  effect  overruling  State  v.  Brown,  11  Ired.  (33  N.  G.) 
141);  State  v.  Jennings,  4  Ohio  St.  418;  Mace  v.  Gaddis,  3  Wash. 
Ter.  125,  13  Pac.  545.  Such  an  act  is  not  done  colore  officii  merely, 
but  is  a  type  case  of  what  are  classed  by  the  authorities  as  acts 
virtute  officii— "within  the  authority  of  the  officer,  but  in  doing 
which  he  exercises  that  authority  improperly  or  abuses  the  con- 
fdenee  which  the  law  reposes  in  him."  Whatever  the  conflict, 
therefore,  as  to  the  effect  of  acts  colore  officii,  a  levy  on  property 
by  law  exempt  from  execution  is  a  breach  of  the  official  bond  of 
a  sheriff  or  constable.  On  the  same  principle,  the  sureties  of  such 
an  officer  are  responsible  for  his  sale  of  goods  covered  by  a  prior 
lien,  where  the  levy  was  made  with  knowledge  of  the  lien.  And 
where  by  statute  acts  ''under  color  of  office''  are  covered  by  the 
bond,  it  is  immaterial  whether  the  writ  under  which  the  levy  was 
made  was  regular  or  irregular,  voidable  or  void,  the  sale  being  made 
in  the  assertion  of  a  legal  authority  under  the  writ:  Couefi  v.  David- 
son, 109  Ala.  313,  19  South.  507. 

0.    Seizure  of  Property  of  Stranger  to  Writ. 

(1)  In  OeoeraL— No  question  connected  with  the  liability  of  the 
sureties  on  the  bond  of  an  officer  for  acts  done  by  him  in  the  exe- 
cution of  process  has  given  rise  to  more  discussion  than  that  of 
their  responsibility  for  his  act  in  levying  on  the  property  of  une 
person  process  which  runs  against  the  property  of  another.  Omit- 
ting all  question  of  when  a  sheriff  or  constable  is  justiiied  in 
levying  on  the  property  of  one  person  which  he  finds  in  the  pos- 
•ession  of  another,  in  executing  a  writ  against  the  latter  (see 
Geo.  H.  Puller  Desk  Co.  v.  McDade^  113  Gal.  360,  45  Pac.  94), 
there  is  a  conflict  among  the  authorities  as  to  the  liabilities  of 
the  sureties  on  an  official  bond,  where  the  principal  obligor  without 
excuse  levies  on  the  property  of  a  stranger  to  the  writ. 

(2)  Doctrine  that  Sureties  not  Liable.— A  few  states,  notably  New 
York,  and  to  a  less  extent  Wisconsin  and  North  Carolina,  have  at 


538  Amebicak  State  Bspobts^  Vol.  91.        [OregoOy 

times  leaned  to    the  doctrine  that  saeli  an  aet  does  not  render  the 
official  bondsmen  liable.    With  one  exception,  howover,  the  Isw  in 
these  states  may  now  be  said  to  be  settled  the  other  way.    in  Kew 
Jersey,  the  view  that  the  sureties  are  not  liable  for  a  levy  agminst 
the  property  of   a   stranger   to  the   writ   remains,  we   belieTe,    tlie 
law.    The  process  of  reasoning  by  which  tiiis  conclusion  ib  reached 
is  based  on  the  frequently  mentioned  distinction  between  aeta  colore 
officii  and  virtute  officii.    ''If  a  sheriff,  having  an  execution  in  his 
hands  seizes  the  property  of  a  stranger,"  it  is  said  by  Haines,  X,  in 
State  V.  Oonover,  28  N.  J.  L.  224,  78  Am.  Dec  54,  ''he  ie  a  tree- 
passer.    He  may  be  resisted  notwithstanding  his  being  a  sherilF  and 
having  the  execution.    If  he  calls  for  assistance,  he  and  the  per- 
sons assisting  are  all  trespassers,  and  may  be  resisted,   foree   by 

force One  acting  under  color  of  authority  cannot  justify  the 

act.  He  is  not  acting  officially.  ....  Where  there  is  no  aothority 
there  is  no  office  and  the  act  cannot  be  virtute  officiL  •  •  .  .  For 
such  unauthorized  act  the  sureties  never  assumed  any  responaibility." 
The  reasoning  here  employed  is  subject  to  the  same  objection  as  that 
hereinbefore  urged  in  another  connection  (m,  a,  3,  B,  (2).  It  treat! 
those  acts  only  as  official  which  are  justifiable,  and  which  therefore 
can  give  rise  to  no  liability  at  all.  The  case  is,  however,  opposed  to 
the  overwhelming  weight  of  authority. 

As  already  suggested,  in  a  few  states,  conflicting  eaeea  are  to  be 
found  relating  to  the  liability  of  sureties  for  a  levy  by  their  prin- 
cipal on  the  property  of  a  stranger  to  the  process.  New  York  pre- 
sents the  most  conspicuous  example  of  this,  but  the  law  of  thai 
state  may  perhaps  be  regarded  as  settled  in  maintaining  the 
bility  of  sureties  for  such  an  act.  It  is  true  that  the  latest 
decided  by  the  court  of  appeals  of  that  state  held  the  suretiee  not 
responsible  for  the  erroneous  levy  (People  v.  Lucas,  93  N.  Y.  $85^ 
reversing  25  Hun,  610),  but  the  decision  went  on  the  very  reetrieted 
language  of  the  bond  then  before  the  court.  The  opinion  expressly 
disclaimed  any  intention  of  overruling  People  v.  Schuyler,  4  N.  Y. 
173,  which  settled  the  general  liability  of  the  sureties  in  eases  of 
levies  against  the  property  of  a  stranger;  and  subsequent  eases 
(decided  in  the  intermediate  courts  of  the  state)  have  adhered 
to  this  latter  view:  See  People  v.  Schuyler,  4  N.  Y.  173  (overruling 
Ex  parte  Beed,  4  Hill,  572) ;  Dennison  v.  Plumb,  18  Barb.  80;  Hanger 
V.  Bernstein,  7  Daly,  340;  Bishop  v.  Mosher,  20  N.  Y.  Supp.  G04» 
65  Hun,  519  (distinguishing  People  v.  Lucas,  03  N.  Y.  686);  Beny 
V.  Schaad,  63  N.  Y.  Supp.  349,  50  App.  Div.  132  (reversing  on  this 
point,  t>9  N.  Y.  Supp.  551,  28  Misc.  Bep.  380,  and  also  distinguishing 
People  V.  Lucas,  93  N.  Y.  585);  People  v.  Lueas,  26  Hun,  610  (re- 
versed, in  03  N.  Y.  585). 

In  Wisconsin  a  few  of  the  earlier  cases  leaned  toward  the  view 
that  the  sureties  were  not  liable  for  an  erroneous  levy  of  the  kind 


Jan.  1902.]  Fblleb  v.  Gatbs.  539 

vnder  consideration:  State  ▼.  Mann,  21  Wis.  684;  Taylor  v.  Parker, 
43  Wis.  78.  But  the  later  decisions  in  that  state  have  placed  it  iu 
line  with  the  weight  of  authority:  Bishop  ▼.  McQillia,  80  Wis.  576, 
27  Am.  St.  Bep.  63,  50  N.  W.  779;  Dishnean  ▼.  Newton,  91  Wis.  199, 
64  N.  W.  879.  So,  also,  in  North  Carolina  a  dictum  occurs  in  an 
early  ease  (State  ▼.  Brown,  11  Ired.  (N.  C.)  141),  to  the  effect  that 
"the  books  are  full  of  cases  where  sheriffs  have,  under  an  exe- 
eutioB  against  one  man,  taken  the  goods  of  another;  but  in  no  in- 
stance have  the  sureties  been  held  responsible."  This  can,  how- 
ever, hardly  be  said  to  have  amounted  to  a  holding  to  that  effect, 
and  the  law  of  North  Carolina  is  otherwise:  Martin  v.  Buffaloe,  128 
N.  C.  305,  83  Am.  St.  Bep.  679,  88  S.  £.  902. 

In  Lanynon  v.  Fensier,  111  IT.  S.  17,  4  Sup.  Ct.  Bep.  286,  other 
states  are  mentioned  as  having  maintained  the  view  of  nonliability 
in  the  sureties,  among  them  being  Alabama,  Indiana  and  Mississippi, 
while  in  National  Bank  of  Bedemption  v.  Butledge,  84  Fed.  400, 
Tennessee  is  mentioned  as  possibly  taking  this  view.  The  cases 
eited  in  support  of  these  statements  are,  however,  all  plainly  dis- 
tinguishable from  the  case  of  a  levy  against  a  stranger  to  the  writ, 
and,  with  the  exception  already  considered  of  New  Jersey,  it  is 
doubtful  whether  the  liability  of  the  sureties  for  such  an  act  is 
now  anywhere  denied. 

(3)  Weight  of  Anthority—Snreties  Liable.— In  most  of  the  cases 
this  liability  is  placed  upon  the  ground  that  a  levy  against  the 
goods  of  a  person  other  than  that  named  in  the  writ  is  an  act  colore 
officii,  and  is,  therefore,  under  one  theory  an  act  rendering  the  sure- 
ties liable.  In  those  states,  however,  in  which  acts  merely  colore 
officii  are  deemed  unofficial  acts  for  which  the  sureties  are  not  an- 
swerable, the  particular  act  now  under  consideration  is  regarded 
as  an  act  done  virtute  officii,  or  as  forming  a  class  by  itself.  What- 
ever the  differences  as  to  the  true  reason  for  the  rule,  however,  the 
xule  itself  is  sustained  by  a  long  list  of  authorities:  Albright  v. 
Mills.  86  Ala.  324,  5  South.  591;  Van  Pelt  v.  Littler,  14  Cal.  194; 
Newman  v.  People,  4  Colo.  App.  46,  34  Pac.  1006;  United  States 
V.  Hine,  3  McAr.  (D.  C.)  27;  Town  of  Norwalk  v.  Ireland,  68  Conn. 
1,  35  Atl.  804;  Jefferson  v.  Hartley,  81  Ga.  716,  9  S.  B.  174;  Wickler 
V.  People,  68  Ql.  App.  282;  Hawkins  v.  Thomas,  3  Ind.  App.  399,  29 
N.  B.  157;  Keck  v.  State,  12  Ind.  App.  119,  39  N.  E.  399;  Charles 
V.  Haskins,  11  Iowa,  329,  77  Am.  Dec  148;  Commonwealth  v. 
Stockton,  5  T.  B.  Mon.  (Ky.)  192;  Harris  v.  Hanson,  11  Me.  241; 
State  V.  Brown,  54  Md.  318;  Greenfield  v.  Wilson,  13  Gray,  384; 
Turner  v.  Sisson,  137  Mass.  191;  People  v.  Mersereau,  74  Mich.  687, 
42  N.  W.  153;  Hursey  v.  Marty,  61  Minn.  30,  63  N.  W.  1090;  State 
v.  Fitzpatrick,  64  Mo.  185;  State  r,  Edmundson,  71  Mo.  App.  172; 
Noble  V.  Himeo,  12  Neb.  193,  10  N.  W.  499;  Turner  v.  Killian,  12 
Neb.  680,  12  N.  W.  101;  Walker  v.  Wonderlick,  33  Neb.  504,  50  N. 


640  Amebioan  State  Sepobts^  Vol.  91.        [Oregon, 

W.  446;  Wondorlick  v.  Walker,  41  Neb.  806,  60  N.  W.  103;  Thorau 
V.  Markman,  43  Neb.  823,  62  N.  W.  206;  Manl  ▼.  Drexel,  55   Keb. 
446,  76  N.  W.  168;   State  t.  Jennings,  4  Ohio  8t  418;  Dyaari  t. 
Lurty,  8  Okla.  601,  41  Pae.  724;  Lowe  v.  City  of  Onthrle,  4  Okla. 
287,  44  Pae.   198;   Bnxnott  v.   MeKee,  6   Watts    &  8.    (Pa.)    513; 
HoUiman  y.  Carroll,  27  Tex.  23,  84  Am.  Dee.  606;  Marquis  ▼.  Wil- 
lard,  12  Wash.  628,  60  Am.  St.  Bep.  906,  41  Pae.  889;  Fish  ▼.  Nether> 
eutt,  14  Wash.  682,  63  Am.  St.  Bep.  892,  45  Pae.  44;  Lanimon  ▼. 
Fensier,  111  IT.  S.  17,  4  Snp.  Ct.  Bep.  286;  National  Bank  of  B«- 
demption  v.  Butledge,  84  Fed.  400.    For  the  eases  in   New  York, 
North  Carolina  and  Wisconsin,  see  preceding  paragraphs. 

D.  Arrest,  etc.,  of  Stranger  to  Writ.— The  same  principle  applies 
Inhere  in  endeavoring  to  effect  the  arrest  of  one  person  an  officer, 
seting  under  writ,  mistakes  another  for  the  person  wanted,  and 
arrests  him,  or  in  the  attempt  to  make  the  arrest  injures  or  kills 
him.  This,  the  cases  quite  uniformly  hold,  constitutes  a  breach 
of  the  official  bond:  Johnson  v.  Williams,  23  Ky.  Law  Bep.  658, 
63  S.  W.  769;  Huffman  v.  Kopplekom,  8  Neb.  344,  1  N.  W.  243; 
Kopplekom  ▼.  Huffman,  12  Neb.  95,  10  N.  W.  577;  West  r.  Cabeli, 
163  IT.  S.  78,  14  Sup.  Ct.  Bep.  752.  Compare,  however.  Chandler  ▼. 
Butherford,  101  Fed.  774^  43  C.  C.  A.  218,  aiBrming  2  Ind.  Ter. 
879,  61  S.  W.  981. 

Whether  the  liability  in  such  case  depends  upon  negligence  or  is 
absolute  is  a  question  on  which  the  cases  are  not  agreed.  In  the 
two  Nebraska  cases  above  cited,  a  prisoner  in  the  custody  of  a 
sheriff  under  valid  process  escaped,  and,  while  attempting  to  prevent 
the  escape  of  the  plaintiff,  whom  he  had  arrested,  erroneously  be- 
lieving him  to  be  the  escaped  prisoner,  shot  the  plaintiff.  In  the 
report  in  Kopplekom  v.  Huffman,  12  Neb.  95,  10  N.  W.  577,  it  was 
held  that  the  liability  of  the  sheriff  and  his  bondsmen  depended 
upon  whether  he  had  acted  with  a  ''high  degree  of  care  and  dili- 
gence in  ascertaining  whether  he  had  the  right  or  wrong  man,"  or 
*  *  whether  in  what  he  did  in  and  about  the  arrest  and  attempted  de- 
tention of  the  defendant  in  error  he  was  wanting  in  that  reasonable 
care  and  caution  which  is  due  to  the  safety  and  rights  of  the 
innocent."  In  the  Kentucky  case,  on  the  other  hand,  where  a 
deputy  sheriff  killed  a  person  whom  he  erroneously  b^eved  the 
defendant  in  a  warrant  of  arrest,  while  trying  to  prevent  his  es- 
cape, it  was  said:  "If  ho  [sheriff]  has  a  warrant  against  one,  and 
under  it  arrests  another,  he  is  liable  on  his  bond  for  the  tort  thus 
committed.  He  cannot  justify  the  wrongful  arrest  by  showing  he 
lelieved,  and  had  reasonable  ground  for  believing,  that  he  was 
executing  it  upon  the  psrty  named  in  it.  If  he  cannot  in  that 
way  justify  a  wrongful  arrest,  much  less  should  he  be  permitted 
to  justify  the  killing  of  another  by  showing  that  he  had  probable 
cause  for  believing  that  he  was  shooting  at  the  party  whom  he 


Jan.  1902.]  Feller  v.  Gates.  .  641 

was  authorized  to  arrest.  The  law  which  gives  an  officer  the  right 
to  kill  an  escaping  felon  certainly  requires  him  to  know  that  it  is 
the  felon,  not  an  innocent  party,  whose  life  he  is  attempting  to 
take":  Johnson  v.  William,  23  Ky.  Law  Rep.  658,  63  S.  W.  759. 
With  authority  thus  divided,  principle  would  seem  to  favor  the 
▼ieir  taken  by  the  Kentucky  case.  A  trespass,  especially  when 
it  takes  the  form  of  a  homicidal  assault,  is  hardly  excused,  on 
principle  at  least,  by  the  plea  that  it  was  made  in  the  exercise 
of   due  care. 

B.  In  Szcess  of  Authority  Conferred  by  Process.— Where  the  of- 
ficer acts  in  the  line  of  his  duty,  but  in  excess  of  his  authority, 
the  sureties  on  the  official  bond  are  liable.  Since  civil  process  fur- 
nishes no  justification  or  authority  to  force  the  outer  door  of  a 
dwelling,  an  officer  who  does  this  in  the  execution  of  civil  process 
acts  in  excess  of  his  authority  merely:  State  v.  Beckener,  132  Ind. 
371,  32  Am.  St.  Bep.  257,  31  N.  E.  950.  Most  of  the  eases  of  excess 
of  authority  occur,  however,  in  cases  where  in  the  execution  of  crimi- 
nal process  injury  is  done  the  party  whom  it  is  sought  to  arrest 
or  recapture.  Such  are  the  cases,  for  instance,  in  which  an  officer, 
to  prevent  the  escape  of  a  misdemeanant,  and  in  excess  of  his  au- 
thority, inflicts  bodily  injury  upon  or  kills  the  one  attempting  to 
escape.  For  such  acts  the  sureties  of  the  officer  are  liable:  See 
Thomas  v.  Kinkead,  55  Ark.  502,  29  Am.  St.  Bep.  68,  18  S.  W.  854; 
Brown  t.  Weaver,  76  Miss.  7,  71  Am.  St.  Bep.  512,  23  South.  388; 
Stephenson  t.  Sinclair,  14  Tex.  Civ.  App.  133,  86  S.  W.  137.  A 
review  of  the  authorities  in  this  general  connection  in  the  mono- 
graphic note  to  Brown  v.  Weaver,  71  Am.  St.  Bep.  519-522,  renders 
their  treatment  here  unnecessary. 

F.  Injury  to  Property  In  Oustody.— Where  an  officer  has  the  cus- 
tody of  goods  under  an  attachment  or  other  writ,  it  is  his  duty  to 
use  reasonable  care  in  the  preservation  and  protection  of  them. 
Whether  his  duty  goes  beyond  this,  and  is  absolute,  rendering  him 
liable  for  their  loss  in  the  absence  of  all  negligence,  is  a  question 
upon  which  the  authorities  are,  it  seems,  in  conflict:  See  Cumber- 
land Co.  V.  Pennell,  69  Me.  357,  366,  31  Am.  Bep.  284.  As  to  his 
liability  and  that  of  the  sureties  on  his  official  bond  for  a  loss  or 
injury  caused  by  his  negligence  there  is  no  doubt.  Where,  there 
tore,  an  officer  seized  a  ripe  fruit  crop  and,  refusing  to  let  it  be 
picked,  permitted  it  to  rot,  he  was  held  liable  on  his  bond:  State 
V.  Fowler,  88  Md.  661,  71  Am.  St.  Bep.  452,  42  Atl.  201;  and  neg- 
ligence on  his  part  in  threshing  wheat  held  under  an  attachment  is 
likewise  a  breach  of  his  bond:  Holdredge  v.  McCombs,  8  Kan.  App. 
663,  56  Pac.  536.  His  sale  of  a  stock  of  merchandise  as  '' per- 
ishable,'^  when  it  is  ia  fact  not  so,  is  an  act  for  whidh  his  sureties 
are  responsible:  Work  v.  Kinnev  (Idaho),  51  Pac.  245.  And,  in 
general,  his  official  bond  covers  any  injury  or  loss  to  property  held 


642  American  State  Eeports,  Vol.  91.        [Oregon, 

hj  him  nnder  attaclimeiit,  which  results  from  his  negligenee:  Wil- 
kowski  Y.  Hem,  82  Cal.  604,  23  Pae.  132;  Tieman  v.  Haw,  49  Iowa. 
312;  Linokey  v.  Peters  etc  Co.,  66  Miss.  471,  14  Am.  3t.  Rep.  375,  5 
South.  632;  or  wanton  destruction  of  it:  Governor  v.  Hancock,  2  Ala. 
728.  In  Tieman  v.  Haw,  49  Iowa,  312,  it  is  held  immaterial  that 
there  was  no  legal  authority  for  the  writ  nnder  which  the  property 
was  held,  where  the  o£B.cer  assumed  to  act  under  color  of  the  ^war- 
rant. 

O.  Injnry  to  Person  in  Onstody.— In  State  v.  Wade,  87  Hd.  629, 
40  Atl.  104,  it  was  held  that  unless  a  sheriff  maliciously  injures  a 
prisoner,  or  aids  and  abets  others  in  injuring  him,  he  ia  not  liable 
en  his  bond.  In  that  case  it  was  charged  that  through  the  gross 
negligence  of  the  sheriff  in  not  furnishing  sufficient  protection  to 
a  prisoner  in  his  custody,  a  mob  was  enabled  to  and  did  lynch  the 
prisoner.  The  sureties  were  held  not  responsible,  and  the  opinion 
of  the  court,  if  it  does  not  expressly  hold,  at  least  very  strongly 
implies,  that  in  the  absence  of  malice  on  the  part  of  the  sheriff  no 
such  action  can  be  maintained. 

The  weight  of  authority  is,  however,   the  other  way.    A  aheriir 
is  bound  to  use  due  care  in  the  preservation  of  property  in  hie 
custody  by  virtue  of  his  office.    ''Is  a  helpless  prisoner  in  the  cus- 
tody of  a  sheriff,''  Baker,  J.,  pointedly  asks  in  State  v.  Gobrin,  M 
Fed.  48,  ''less  entitled  to  his  care  than  a  bale  of  goods  or  a  dumb 
beast f"    And  continues:  "The  law  is  not  subject  to  any  saeh  re- 
proach.   When  a  sheriff,  by  virtue  of  his  office,  has  arrested  and  im- 
prisoned a  human  being,  he  is  bound  to  exercise  ordinary  and  rea- 
sonable care,  under  the  circumstances  of  each  particular  case,  for 
the  preservation  of  his  life  and  health.    This  duty  of  care  is  one 
owing  by  him  to  the  person  in  his  custody  by  virtue  of  his  office, 
and  for  a  breach  of  such  duty  he  and  his  sureties  are  responaible 
in  damages  on  his  official  bond. ' '    Such  is  undoubtedly  the  true  rule 
on  principle  and  on  authority  as  well.    Under  it  a  sheriff  and  the 
sureties  on  his  bond  ore  liable  if  by  his  negligent  failure  to  pro- 
tect a  prisoner  the  latter  falls  a  victim  to  mob  violence:   Appeal 
of  Jenkins,  25  Ind.  App.  532,  81  Am.  St.  Bep.  114,  58  N.  E.  560; 
Hixon  V.  Cupp,  5  Okla.  545,  49  Pac.  927;  Asher  v.  Cabell,  60  Fed. 
818,  1  C.  C.  A.  693;  State  of  Tennessee  v.  Hill,  60  Fed.  1005,  9  C.  C. 
A  326.    In  Governor  v.  Pearce,  31  Ala.  465,  it  was  held  that  the 
sureties  of  a  Elieriff  were  not  liable  for  the  ill-treatment  by  a  jailer 
of  a  slave  committed   to   the   custody   of   the  ^eriff  by  a   justice 
of  the  peace^  who  had  no  jurisdiction  to  order  the  commitment.    A 
sheriff  has,  it  is  held,  in  State  v.  Glausmier,  154  Ind.  599,  77  Am.  St. 
Bep.  511,  57  N.  £.  541,  rightful  authority  to  take  the  photograph 
and  measurements  of  a  prisoner,  where  no  force  or  violence  is  used 
and  where  it  is  deemed  necessary  to  secure  the  prisoner's  safekeep- 
ing and  to  facilitate  recapture  in  case  of  escape.    If,  however,  the 


Jan.  1902.]  Fbllbb  v.  Gates.  543 

sheriff  sends  out  eopies  of  these  photographs  to  other  police  de- 
jtartmentSy  his  act  in  so  doing  is  extraoffieial,  and  his  sureties  are 
Bot  responsible  for  it  or  for  libelons  matter  written  on  such  photo- 
graphs and  descriptions. 

The  bond  of  a  sheriff  is  not,  it  has  been  held  hj  the  supreme 
eonrt  of  the  United  States,  liable  on  his  bond  for  a  failure  to  pre- 
sarre  the  public  peace,  whereby  a  citizen  sustains  injury.  As  a 
peace  officer,  his  dnty  to  keep  the  peace  is  one  due  to  the  public 
g^enerally  and  not  owed  to  some  particular  individual,  and  for  the 
breach  of  such  a  duty  he  is  answerable  to  the  public  and  not  to  any 
prirate  citizen  to  whom  he  owes  no  particular  duty:  South  v.  Mary- 
land, 18  How.  (XJ.  S.)  396.  See,  in  this  general  connection,  the  mono- 
graphie  note  to  Brown  t.  Weaver,  71  Am.  St.  Rep.  519-^22,  on  the 
liability  of  the  sureties  of  a  sheriff  for  personal  injury  inflicted  by 
the  officer. 

H.  Escapa— At  common  law,  a  sheriff  is  liable  for  an  escape, 
though  an  armed  mob  break  the  jail  and  effect  a  rescue,  the  theory 
being  that  "the  sheriff  has  the  power  of  the  county  at  his  back  to 
aid  him  in  the  execution  of  precepts,  and  '  the  law  supposes  the  posse 
to  be  a  sufficient  defense  against  a  rescue,  and  that  no  force  is  able 
to  resist  successfully  the  sheriff  and  his  posse'  ":  Cumberland  County 
^.  Pennell,  69  Ma  357,  31  Am.  Bep.  284.  The  United  States  may, 
it  is  held,  sue,  where  permitted  by  a  state  statute,  in  the  name  of 
the  state,  and  recover  on  the  bond  of  a  sheriff  for  the  escape  of  a 
federal  prisoner:  State  of  Tennessee  v.  Hill,  60  Fed.  1005,  9  C.  C. 
A.  326.  Where  an  escape  has  taken  place  the  bond  of  the  delin- 
quent officer  is  breached,  although  he  has  the  prisoner  in  cour^  on 
the  return  day:  United  States  v.  Brent,  1  Cranch  C.  C.  525,  Fed. 
Caa  No.  14,639. 

I.  Improper  Belease  of  Person  or  Property  in  Onstody.— Where  a 
sheriff  or  constable  has  taken  property  into  his  custody  under  attach- 
ment or  otjier  process,  it  is  his  duty  to  hold  it  until  by  the  order 
of  a  court  of  competent  jurisdiction  or  in  some  other  legal  manner 
the  levy  is  released,  and  then  it  becomes  his  duty  to  deliver  the 
property  to  the  rightful  owner.  If,  therefore,  he  prematurely  re- 
leases the  property,  he  makes  a  default  in  his  official  capacity  and 
his  bond  is  breached:  State  v.  Atkinson  (Ark.),  13  S.  W.  415; 
Cooper  v.  Mowry,  16  Masa  5;  Butler  v.  Williams,  22  Miss.  (14 
Smedes  ft  M.)  54;  Halpin  v.  Hall,  42  Wis.  176  (see,  also,  Brinster 
V.  Gavin,  127  Ala.  317,  28  South.  410).  So  a  refusal  to  re- 
lease the  property  when  by  the  termination  of  the  action  in  the 
owner's  favor,  or  for  any  other  reason,  the  force  of  the  levy  has 
ceased,  is  likewise  a  breach  of  the  officer's  official  l^ond:  San  Yuen 
v.  McMann,  99  CaL  497,  34  Pac  80;  Dennie  v.  Smith,  129  Mass. 
143;  Levy  v.  McDowell,  45  Tex.  220.  Where,  during  the  time  an 
attachment  is  in  force,  the  property  attached  is  sold  and  notice  of 


544  Ahebican  ^tate  Sepobts^  Vol.  91.        [Or^oiiy 

the  tale  given  the  attaching  oi&eer,  he  is  bound  to  deliver  the 
property,  on  the  release  of  the  leYj,  to  the  rightful  owner,  sad 
becomes  liable  on  his  bond  if  he  delivers  to  the  vendor:  State  ▼. 
Fitzpatrickf  64  Mo.  183. 

J.    Betnm  of  Process. 

(1)  Failure  to  Setum.— The  due  return  of  process  is  as  mneh 
a  part  of  an  officer's  duty  in  the  execution  of  process  as  is  the 
seizure  of  property  under  it.  A  failure^  therefore,  to  make  retom 
of  execution  or  other  process  on  the  day  fixed  as  the  return  day 
i0  a  breach  of  the  official  bond  of  a  sheriff  or  constable:  Noble  ▼. 
Whitehead,  45  Ala.  361;  Norris  v.  State,  22  Ark.  524;  Herr  v. 
Atkinson,  40  Ark.  377;  Atkinson  v.  Herr,  44  Ark.  174;  Jett  v.  Shinn, 
47  Ark.  373,  1  S.  W.  693;  Wilson  v.  Young,  58  Ark.  593,  25  S.  W. 
870;  Babka  v.  People,  73  HI.  App.  246;  Carpenter  v.  Doody,  1 
Hilt.  (N.  Y.)  465;  Sloan  v.  Case,  10  Wend.  370,  25  Am.  Dec  569; 
Davis  V.  Dyer,  37  Tenn.  (5  Sneed)  680.  Compare  United  Stotes  ▼. 
Williams,  Fed.  Cas.  No.  16,  714,  5  Cranch  C.  C.  400.  The  writ  must 
be  a  valid  process;  no  liability  can  accrue  from  failure  te  return 
a  writ  void  on  its  face:  Putnam  v.  Traeger,  66  HL  90;  Hawkins  ▼. 
Commonwealth,  1  T.  B.  Mon.  144;  bnt  a  mere  irregularity,  sueh  as 
the  omission  of  the  clerk's  signature,  does  not  render  the  writ  void, 
and  furnishes  no  excuse  for  a  failure  to  return:  Jett  ▼.  Shinn,  47 
Ark.  37.^,  1  S.  W.  693. 

The  insolvency  of  the  judgment  creditor  (Noble  v.  Whetstone,  45 
Ala.  361;  Atkinson  v.  Herr,  44  Ark.  174),  or  the  fact  that  no  money 
has  been  received  on  the  process,  does  not  render  a  return  unnec- 
essary: Sloan  V.  Case,  10  Wend.  370,  25  Am.  Dec.  569  (distinguishing 
Warner  v.  Bacey,  20  Johns.  74).  Nor  does  the  fact  that  the  judg- 
ment creditor  hindered  or  prevented  a  sale  avoid  liability  for  a 
failure  to  return  process:  Norris  v.  State,  22  Ark.  524;  Jett  v.  Shina. 
47  Ark.  373,  1  S.  W.  693.  Indorsement  of  return  on  an  execution 
does  not  take  the  place  of  an  actual  return:  Wilson  v.  Young,  58 
Ark.  593,  25  S.  W.  670;  Atkinson  v.  Herr,  44  Ark.  174;  nor  does 
the  fact  that  the  clerk's  office  was  closed,  and  a  return  within  the 
statutory  period  thereby  prevented,  excuse  a  failure  to  make  a  re- 
turn as  soon  thereafter  as  possible:  Atkinson  v.  Herr,  44  Ark  174. 
In  Graves  v.  Bulkley,  25  Kan.  294,  37  Am.  Bep.  249,  it  is  held 
that  the  receipt  by  the  execution  creditor  of  the  fruits  of  an  exe- 
cution amounts  to  a  waiver  of  a  neglect  on  the  part  of  the  officer 
to  make  a  return  within  the  prescribed  period,  and  such  creditor 
cannot  afterward  hold  him  or  his  sureties  for  the  neglect  in  making 
the  return.  And,  as  a  general  rule,  there  can  be  recovery  by  an 
execution  plaintiff  for  a  neglect  by  the  officer  to  return  process  as 
required  by  law,  where  the  plaintiff  himself  has  authorized  tbe 
<lolay:  Rolinson  v.  Cokcr,  11  Ala.  466;  State  v.  Parchmen,  40  Tenn. 
C3  Head)  611.     See,  also,  Collier  v.  Stoddard,  19  Ga.  274. 


Jan.  1902.]  Feller  v.  Oatbs.  645 

(2)  False  Seturn.*-!]!  State  t.  Hugbee,  19  Ind.  App.  266,  49  N. 
E.  393,  an  action  was  brought  on  the  bond  of  a  sheriff,  for  in  his 
met  in  making  a  false  return  to  the  effect  that  service  of  summons 
Itad  been  made  on  plaintiff,  who  was  at  the  time  defendant  in  an 
action  on  a  promissory  note^  as  a  consequence  of  which  false  re- 
turn judgment  was  taken  against  him.  It  was  held  that  the  ac- 
tion  was  maintainable  only  on  a  showing  of  damage  to  the  plain- 
tiff, and  where  it  appeared  that  he  had  no  defense  to  the  former 
action  no  damage  was  shown. 

5.    Proceeds  of  Levy,  etc. 

A.    Beceived  Without  Process. 

(1)  Ctaneral  BtUe.— As  a  general  rule,  the  liability  of  the  sure- 
ties of  a  public  officer  for  money  received  by  him  as  the  proceeds 
ef  m  levy  or  sale  depends  upon  the  same  considerations  as  does 
tbeir  liability  for  his  act  in  making  the  levy  or  sale.  In  both  cases 
their  responsibility  hinges  upon  the  official  or  nonofficial  character 
of  the  levy  or  sale,  since  if  the  levy  was  official,  the  officer's  re- 
ceipt of  the  proceeds  is,  of  course^  of  the  same  nature.  In  line, 
therefore,  with  the  cases  holding  that  a  levy  or  sale  made  by  an 
offieer  without  legal  process  of  any  kind  in  his  hands  is  a  personal 
trespass,  and  not  an  act  for  which  his  bond  is  answerable  (see 
sopra,  in,  a,  3,  A),  it  is  held  that  his  sureties  are  likewise  not 
responsible  for  his  misappropriation  of  the  proceeds  of  such  levy 
or  sale.  The  proceeds  of  the  trespass  stand  on  no  different  ground 
than  the  trespass  itself,  so  far  as  the  liability  of  the  sureties  is 
concerned:  Babs  v.  Thompson,  3  Stew.  &  P.  385;  Best  v.  Johnson, 
78  GaL  217,  12  Am.  St.  Rep.  41,  20  Pac.  415;  Oreenwell  v.  Common- 
wealth, 78  Ky.  320;  United  States  v.  Cranston,  Fed.  Cas.  No.  14,889, 
3  Cranch  C.  C.  289.  In  those  states,  however,  in  which  a  levy, 
although,  without  process,  if  made  under  claim  of  authority,  is  ap- 
parently regarded  as  an  official  act  covered  by  the  bond  (see  supra, 
in,  a,  3,  A),  it  seems  that  the  proceeds  of  such  a  levy  would  nec- 
essarily be  regarded  as  held  officially,  and  a  misappropriation  thereof 
would  render  the  officer's  bondsmen  responsible.  In  Tennesseb  this 
role  was  established  by  an  express  provision  of  statute:  State  v. 
Gilmore,  3  Sneed,  503;  Haynes  v.  Bridge,  1  Cold.  33.  Compare  State 
T.  McCallum,  2  Bazt.    102. 

(2)  As  Agent  for  Collection.— In  a  few  jurisdictions  the  official 
bond  of  a  sheriff  or  constable  is  by  statute  extended  to  cover  the 
collection  of  and  accounting  for  claims  placed  in  his  hands  to  col- 
lect. These  statutes  do  not  ordinarily  make  it  the  duty  of  the 
•heriff  to  receive  all  claims  offered  him  for  collection,  but  simply 
extend  the  operation  of  the  bond  to  the  diligent  collection  and  faith- 
ful accounting  for  such  as  he  may  assume  to  collect:  Williams  v. 
Williamson,   6  Ired.   281,  45   Am.  Dec.  494;   and  in  Commonwealth 

Am.   9t   Rep.,  Vol.   91-35 


546  American  State  Bepobts^  Vol.  91.        [Oregon, 

▼.  SommerSy  3  Bush,  555,  it  w&s  held  that  the  statute  there  ia- 
volved  did  not  cover  the  collection  of  claims  by  a  constable  irbere 
he  assumed  to  collect  claims  of  an  amount  beyond  the  jorisdietior 
of  the  courts,  whose  precepts  a  constable  could  serre. 

B.    Beoeived  Under  Levy  of  Irregular  or  Void  Process.— Where  a 

warrant  is  not  void,  but  merely  irregular  in  some  particular,  money 
received  on  it  is  held  to  be  received  in  an  official  capacity,  and  for 
a  misappropriation  of  it,  the  sureties  of  the  officers  are  liable:  People 
V.  Dunning,  1  Wend.  16.  The  cases  differ,  however,  as  has  been 
noted  (supra,  III,  a,  4,  A,  (1))>  with  reference  to  the  liability  of 
sureties  for  a  levy  under  void  process,  and  it  is  quite  probable  that 
in  determining  the  liability  of  the  sureties  for  the  misappropriation 
of  the  proceeds  of  such  levy  the  same  principles  would  eontroL  In 
those  states,  therefore,  in  which  a  levy  under  void  procesa  is 
deemed  an  extraofficial  act  or  mere  pM'Sonal  trespass,  money  received 
as  a  result  of  it  would,  it  seems,  likewise  to  be  regarded  as  held 
by  the  officer  in  a  personal  capacity,  and  not  within  the  purview 
of  his  official  bond^  while  in  those  jurisdictions  where  levies  under 
void  process  are  considered  acts  colore  officii  and  are  held  to  render 
the  sureties  answerable,  they  would  in  all  probability  be  held  equally 
responsible  for  the  proper  application  by  the  officer  of  the  proeeeds 
of  such  levies  or  sales  made  under  them:  See  Williamston  v.  WiUis^ 
15  Gray,  427. 

O.  Beceived  Under  Levy  of  Defunct  Process.— Where  execution  19 
issued  returnable  at  a  certain  time,  it  is  valid  to  authorize  a  levy 
only  up  to  the  time  at  which  it  should  be  returned.  Thereafter,. 
it  is  functus  officio  so  far  as  authorizing  the  seizure  of  property. 
Accordingly,  it  is  held  that  money  received  subsequent  to  the  re- 
turn day  on  such  a  writ  is  not  received  in  an  official  capacity,  and 
for  its  misappropriation  the  official  bondsmen  of  an  officer  are  not 
reei>onsible:  Bobo  v.  Thompson,  3  Stew,  ft  P.  (Ala.)  385;  Farmers' 
Bank  v.  Beid,  3  Ala.  299;  Dean  &  Johnson  v.  Governor,  13  Ala. 
526;  Chapman  v.  Cowles,  41  Ala.  103,  91  Am.  Dee.  508;  Turner  v. 
Ck>llier,  51  Tenn.  (4  Heisk.)  89;  Virginia  v.  Wise,  1  Craneh  a  C. 
142,  Fed.  Cas.  No.  16,972.  Except  in  Nebraska,  however,  the  arrival 
of  the  return  day  of  the  writ  does  not  prevent  proceedings  subse- 
quent to  the  levy  and  necessary  to  dispose  of  property  previously 
levied  on  (see  Freeman  on  Executions,  3d  ed.  III,  353),  and  money 
received  by  a  sheriff  or  constable  after  the  return  day,  but  as  pro- 
ceeds  of  the  sale  of  property  levied  on  before  that  date  is  receive<t 
by  him  in  his  official  capacity,  and  is  covered  by  his  official  bond; 
Evans  v.  Governor,  18  Ala.  659,  54  Am.  Dec.  172;  Dennis  v.  Chap* 
man,  19  Ala.  29,  54  Am.  Dec  186. 

D.    Beceived  Under  Valid  Levy. 

(1)     In  GeneraL — It  is  a  proposition  too  plain  to  require  or  jus- 
tify the  citation  of  authorities  that  a  sheriff  or  constable  is  liable 


Jan.  1902.]  Fbllbb  v.  Gates.  547 

on  his  official  bond  for  his  failure  to  pay  over  to  the  person  en- 
titled money  received  by  him  on  valid  process,  or  which  he  was  by 
law  required  to  receive.  This  applies  not  only  to  the  payment  of 
money  dne  attachment  or  execution  creditors  (which  is,  of  course, 
the  most  frequent  instance  of  its  application),  but  is  equally  ap- 
plicable to  moneys  received  as  fees  of  other  officers,  and  which  he 
was  by  law  bound  to  collect:  Hagood  v.  Blythe,  37  Fed.  249;  to 
money  received  for  the  redemption  of  property:  County  Commrs.  of 
Bamsey  Co.  v.  Brisbin,  17  Minn.  451,  etc.  So  a  failure  to  apply 
to  the  prior  lien  of  a  docketed  judgment  money  held  as  the  pro- 
ceeds of  a  sale,  where  he  at  the  time  held  a  writ  of  execution,  is- 
sued on  such  judgment,  is  a  breach  of  his  bond:  Titman  v.  Bhyne, 
89  N.  C.  64.  See,  also,  monographic  note  to  Commonwealth  v.  Cole, 
46  Am.  Dec  ol0-512. 

(2)  Effect  of  Tender  and  BefnsaL— Where  a  sheriff  or  constable 
holding  money  in  his  hands  belonging  to  a  third  person  duly  makes 
a  tender  of  such  money,  if  such  person  refuses  to  receive  it,  the 
sureties  are  discharged.  This  was  held  in  Hull  v.  Chapel,  77  Minn. 
159,  79  N.  W.  669,  in  which  the  court  expresses  its  disapproval  of 
the  contrary  holding  in  State  v.  Alden,  12  Ohio,  59,  and  says: 
"The  refusal  of  the  creditor  to  receive  the  money  is  a  fraud  on 
the  surety  which  exposes  him  to  greater  risk  after  the  debt  is  dne 
and  payable,  the  creditor  cannot,  by  his  unjustifiable  refusal  to  ac- 
cept payment  from  the  principal,  compel  the  surety  to  continue 
responsible  for  the  future  acts  of  the  principal  as  his  debtor  or 
bailee  of  the  money."  The  fact  that  the  bond  of  a  public  officer 
constitutes  a  continuing  guaranty  of  the  fidelity  of  the  latter  does 
not,  in  the  opinion  of  the  court,  alter  the  principle.  Where  the  re- 
fusal of  the  tender  is  by  a  publie  officer  acting  for  the  state  oi 
county,  a  question  whether  the  publie  could  have  its  rights  thus  dis- 
posed of  by  an  officer  might  arise.  ' '  But  the  breach  here  complained 
of  was  of  a  duty  owing  to  a  private  individual,  and  one  in  which 
no  one  but  he  had  any  interest.  As  respects  such  a  liability,  we 
fail  to  see  why  the  same  acts  on  the  part  of  the  creditor  which 
would  release  a  surety  on  a  private  bond  should  not  also  release  a 
surety  on  a  sheriff's  official  bond."  The  case  is  an  excellently  con- 
sidered one,  and  its  view  seems  preferable  to  that  of  the  Ohio  case: 
8ute  V.  Alden,  12  Ohio,  59. 

In  Hill  V.  Kemble,  9  CaL  71,  a  constable  offered  to  pay  to  the 
execution  creditor  money  received  on  execution,  and  was  told  that 
be  might  use  it.  It  was  held  that  it  thereupon  became  a  private 
debt,  for  the  nonpayment  of  which  his  sureties  were  not  liable.  In 
Boice  V.  Main,  4  Denio,  55,  on  the  other  hand,  it  was  held  that  the 
mere  yielding  assent  by  the  execution  creditor,  without  considera- 
tion, to  a  temporary  delay  in  paying  money  collected  on  an  exe- 
cution did  not  discharge  the  constable's  sureties  from  liability  for 


548  American  State  Ebports^  Vol.  91.        [Oregon, 

his  subsequent  failure  to  pay.  The  ease  is  distingaisbable,  ho^wever. 
since,  according  to  the  court,  ''there  was  no  evidence  that  tlie 
constable  offered  to  pay  the  money,  provided  the  plaintiff  ^vronld 
assent  to  his  request,  nor  any  pretense  that  the  plaintiff  loaned  tlM 
money  to  him." 

E.    Beceived  by  Arrangement  with  Debtor. 

(1)  Deposit  to  Stay  Execution.— Where  the  law  authorizes  an  of- 
ficer  to  take  the  bond  of  a  judgment  debtor  to  stay  execution,  if, 
instead  of  taking  a  bond  the  officer  takes  a  deposit  of  moneys  he 
is  deemed  to  do  so  by  virtue  of  a  private  contract,  and  not  in  his 
official  capacity,  and  his  sureties  are  not  liable  for  hia  misap- 
propriation of  the  money  so  received.  The  principal  ease  (If'eller 
V.  Gates,  40  Or.  543,  ante,  p.  492,  67  Pac.  416)  is  of  this  nature^ 
and  the  conclusion  there  reached  is  in  accord  with  the  authorities 
generally:  De  Sisto  v.  Stimmel,  69  N.  Y.  Supp.  431,  58  App.  Div, 
486;  Ellis  v.  Long,  8  Ired.  (N.  C.)  513;  People  v.  Hilton,  38  Fed.  172. 
Compare  Broughton  v.  Haywood,  61  N.  G.  (PhiU.)  380;  Creasy 
V.  Gierman,  7  Minn.  398. 

(2)  Of  Property  Other  than  Money.— On  the  same  principle  it 
is  held  that  where  a  sheriff  or  constable  is  authorized  to  receive 
money  only  in  satisfaction  of  a  debt  on  whieh  process  has  issued, 
his  receipt  of  other  property  is  an  extraofficial  act,  and  neither  the 
judgment  debtor  who  is  compelled  again  to  pay  (Brown  v.  Ifosely, 
11  Smedes  &  M.    (19  Miss.)    354),  nor  the  execution  creditor   can 
recover  for  the  misappropriation  of  such  property:  Haynes  v.  Bridge. 
1  Cold.  33;  Draper  v.  State,  1  Head    (Tenn.),  263.    Compare,  how- 
ever, Meherin  v.  Saunders,  110  Cal.  463,  42  Pac.  966.    When  prom- 
issory  notes    are   received   by   a  sheriff  as   consideration   for   land 
sold  at  judicial  sale  and  in  accordance  with  the  law,  they  are,  of 
course,  received  by  him  in  his  official  capacity,  and  his  sureties  are 
liable  for  his  conversion  of  such  notes:  Brobst  v.  Skillen,  16  Ohio 
St.  382,  88  Am.  Dec.  458. 

(3)  In  OeneraL— Where  money  or  other  property  is  received  by 
a  sheriff  under  a  private  arrangement  with  the  judgment  debtor  as 
to  its  disposition,  it  is  not  received  by  him  as  an  officer,  but  as 
an  agent  of  the  debtor,  and  his  sureties  are  in  no  way  answerable 
for  his  defaults  of  the  money  or  property.  Thus,  in  Schloss  v. 
White,  16  CaL  65,  the  plaintiff  levied  an  attachment  against  certain 
goods,  which  were  subsequently  attached  by  other  creditors.  By 
arrangement  between  the  sheriff  and  the  plaintiff,  the  sheriff  agreed 
to  hold  the  proceeds  realized  from  a  sale  of  the  goods  to  pay  any 
judgment  which  plaintiff  might  recover  in  a  replevin  suit  brought 
Against  him  (the  sheriff)  by  plaintiff.  Instead,  he  paid  the  money 
into  court,  and  it  was  applied  to  the  claims  of  the  other  attaching 
creditors,  plaintiff  having  previously  released  the  lien  of  his  at- 
tachment.   The   sureties   on   the   sheriff's   official   bond   were  held 


Jan.  1902.]  Feller  v.  Gates.  649 

not  liable.  Neither  the  contract  nor  his  def&uU  in  performing 
it  was  an  official  act.  So  it  is  held  that  where  the  parties  introduce 
private  matters  into  a  "settlement"  with  the  sheriff  for  the  sum 
due  on  an  execution  in  his  hands,  his  lefusal  to  repay  an  amount 
received  by  mistake  in  excess  of  the  amount  rightly  due  him  is  not 
a  breach  of  his  official  bond:  State  v.  Tapscott,  68  N.  C.  300.  See, 
also,  in  this  connection,  Boone  Co.  Bank  v.  Eoff,  66  Ark.  321,  SO  S.  W. 
688;  Knowlton  v.  Bartlett,  1  Pick.  271. 

6.    Taking  Security. 

A.     FaUnre  to  Take  Bail. — At  common  law  it  seems  to  have  been  the 
rale  thaty  where  a  sheriff  was  given  a  writ  of  capias  ad  respon- 
dendnm,  he  discharged  his  duty  if  he  had  the  body  of  the  debtor  at 
the  retilm  of  the  writ,  and  in  the  meantime  he  might  imprison  him 
or  noty  as  he  saw  fit:  Governor  v.  Jones,  9  N.  C.  359.    Accordingly,, 
the  mere  release  of  a  debtor  before  the  return  of  the  writ  and  with- 
out taking  bail  did  not  of  itself  constitute  a  breach  of  the  official 
bond    of   the  sheriff:    Governor   v.  Jones,   2   Hawks    (N.   0.),   359. 
Where,    however,    a   statute   makes   the   sheriff   special   bail   where 
he  fails  to  take  bail,  his  sureties  are  liable  for  his  failure  to  pay  the 
bsiil:  People  v.  Dikeman,  4  Keyes  (N.  Y.),  93,  3  Abb.  Ct.  App.  Dec. 
50;  Barker  v.  Munroe^  15  N.  G.  412;  although  even  under  such  a  stat- 
ute the  mere  failure  to  take  bail  does  not  in  Itself  give  rise  to  any  lia- 
bility on  the  bond:  Barker  v.  Munroe,  15  N.  C.  412.    If  a  sheriff 
releases  a  debtor  on  his  depositing  a  sum  of  money,  the  money  depos- 
ited is  received  not  in  the  officer's  official  capacity,  but  by  virtue  of 
a  private  contract^  and  his  failure  to  repay  the  sum  is  not  a  matter 
whieh  concerns  his  sureties,  who  have  agreed  to  become  answerable 
lor  his  official  defaults  only:  State  v.  Long,  8  Ired.  (30  N.  C.)  415; 
Ellis  V.  Long,  30  N.  C.  513;  United  States  v.  Moore,  2  Brock,  317,. 
Fed.  Caa  No.  15,802. 

B.  When  Acts  Deemed  JudldaL— The  judicial  functions  of  an 
officer  and  his  proper  performance  of  them  are,  as  we  have  seen,, 
(n,  e)  ordinarily  not  within  the  purview  of  his  official  bond.  Ac- 
cordingly, it  is  held  in  Scott  v.  Byan,  115  Ala.  587,  22  South.  284^ 
that  the  act  of  a  sheriff  in  erroneously  fixing  the  penalty  of  a  forth- 
coming bond  which  it  is  his  duty  to  take,  and  in  misjudging  the  sol- 
vency of  the  sureties  thereon  does  not  render  his  official  bondsmen 
liable.  In  performing  the  acts  complained  of  he  was  compelled  to 
exercise  a  discretion,  and  acted  judicially.  Where,  however,  the  act 
was  one  not  involving  discretion,  the  default  of  a  sheriff  in  taking 
security  is  as  much  a  breach  of  the  bond  as  his  failure  to  execute 
process.  Thus,  where  he  takes  a  bond  which  does  not  run  to  the 
plaintiff  as  required  by  statute  (Hughes  v.  Newsom,  86  N.  C.  425), 
or  where  he  fails  to  have  the  sureties  on  a  bond  justify,  his  failure 
is  in  reference  to  the  performance  of  a  ministerial  act,  and  renders 
bim  and  his  sureties  on  the  official  bond  liable:  People  v.  Lee,  65 


650  Amebioak  State  Beports^  Vol.  91.        [Oregon^ 

Mich.  557,  S2  N.  W.  817;  Barton  v.  Shull,  62  Neb.  570,  87  N.  W.  322; 
MagnuB  ▼.  Woolery,  14  Wash.  43,  44  Pac  130.  In  Nebraska  it  is 
held  that  if  an  officer  is  negligent  in  determining  the  mffieieney 
of  the  sureties  on  a  replevin  bond,  he  is  liable  regardless  of  bis  good 
faith:  Shull  v.  Barton,  66  Neb.  716,  71  Am.  St  Bep.  698,  77  N.  W. 
132,  58  Neb.  742,  79  N.  W.  732;  Barton  v.  Shull  62  Neb.  570,  87  N.  W. 
322.  In  a  very  recent  case  in  Georgia  (Hall  &  Brown  Co.  ▼.  Barnes, 
115  Ga.  945,  42  S.  £•  276)  it  was  held  that  in  an  action  of  trover 
against  a  corporation,  the  sheriff  was  not  authorized  to  arrest  the 
officers  of  the  corporation,  and  not  being  able  to  arrest  a  corporation, 
eould  not  be  held  answerable  on  his  official  bond  for  failure  to  re- 
quire a  bond  for  the  forthcoming  of  the  property.  "The  giving  of 
the  bond  is  a  voluntary  act  on  the  part  of  the  defendant  in  the 
bail  process.  He  may  give  bond  or  not,  as  he  chooses,  and  the  sherilf 
has  no  authority  to  force  him  to  give  bond.  The  sheriff's  authority 
is  limited  to  seizing  the  property  or  arresting  the  defendant  anlesa 
a  bond  is  given.  When,  in  the  case  now  under  consideration,  the 
defendant  corporation  refused  to  give  bond,  there  was  no  one  whom 
the  sheriff  could  arrest  and  imprison,  and  therefore  he  cannot  be 
held  liable  for  a  failure  to  do  an  act  which  it  was  illegal  for  him  to 
do." 

7.  Acts  of  Deputies. — So  far  as  the  liability  of  the  sureties  of  a 
sheriff  for  the  acts  of  the  latter 's  deputies  is  concerned,  the  prin- 
ciples controlling  are  those  applicable  where  the  default  is  by  the 
sheriff  himself.  So  far  as  such  acts  are  official,  they  are  covered 
by  the  official  bond  of  the  sheriff.  So  far  as  they  are  extraofficial, 
they  stand  upon  the  same  ground  as  the  personal  acts  of  the  sherilf 
himself,  and  like  these  are  not  within  the  purview  of  the  bond: 
in  this  general  connection,  Mathis  v.  Carpenter,  95  Ala.  156,  36 
St.  Bep.  187,  10  South.  341;  People  v.  Otto,  77  Cal.  45,  18  Pac  860; 
Chandler  v.  Butherford,  2  Ind.  Ter.  379,  Zl  S.  W.  981;  SUte  v.  Moore, 
19  Mo.  369,  61  Am.  Dec.  563;  Dysart  v.  Lurty,  3  Okla.  601,  41  Pxm. 
724;  Dishneau  v.  Newton,  91  Wi&  199,  64  N.  W.  879;  monographic 
notes  to  Commonwealth  v.  Cole,  46  Am.  Dec.  506, 517,  and  Campbell  ▼. 
Phelps^  11  Am.  Dec.  145,  and  references  made  in  note  to  Mathia  t. 
Carpenter,  86  Am.  St.  Bep.  190. 

8.    Acts  in  Ez-offlcio  or  Appointive  Capacities. 
A.    As   Tax    Collector. 

(1)  Where  No  Separate  Bond  Beqnired.— The  functions,  aside 
from  such  as  are  ordinarily  incident  to  the  office,  with  which  a 
sheriff  is  ex-officio  most  frequently  clothed,  are  those  in  the  exer- 
cise of  which  he  performs  the  duties  of  a  tax  collector.  The  lia- 
bility of  the  sureties  on  the  general  official  bond  of  a  sherill^  eoa- 
stable  or  marshal  for  defaults  in  his  duty  of  collecting  and  paying 
over  the  taxes,  depenus  upon  the  application  of  general  principles 


Jan.  1902.]  Felleb  v.  Gates.  651 

already  disenssed.  Where  but  one  bond  is  given  eovering  the  faith- 
ful performance  of  the  officer's  duties  as  sherifF,  etc.,  this  is  held 
to  eover  his  acts  as  ez-officio  tax  collector:  People  v.  Edwards,  9 
Oal.  286;  Bedwood  t.  Grimmenstein,  68  Cal.  612,  9  Pae.  560;  State  ▼. 
Matthews,  57  Miss.  1;  and  if  an  additional  bond  for  his  acts  in  the 
latter  capacity,  while  authorized,  is  not  required  by  law  to  be  taken, 
if  executed  it  is  eumnlatiye  security  only.  The  general  bond  remains 
liable:  State  ▼.  Harney,  67  Miss.  863. 

<2>  "Wliere  Separata  Bond  Beqnlred.— On  the  other  hand,  in  line 
with  the  general  principle  (supra,  n,  c,  1),  where  in  addition  to 
the  g^eneral  official  bond  required  of  the  officer  as  a  sheriff,  he  is 
required  by  law  to  give  a  separate  bond  as  tax  collector,  his  general 
bond  does  not  cover  his  duties  as  collector  of  revenue:  Christian  ▼. 
Ashley  Co.,  24  Ark.  142;  People  v.  Burkhart,  76  Cal.  606,  18  Pac. 
776;  Cooper  v.  People,  85  HL  417;  Elliot  v.  Kitchen,  14  Bush,  289; 
Cnunpler  v.  Governor,  12  N.  C.  52;  Columbia  County  v.  Massie, 
31  Or.  292,  48  Pac  694.    See,  also,  supra,  and  cases  cited. 

In  White  v.  East  Saginaw,  43  Mich.  567,  6  N.  W.  86,  it  is  held 
that  the  sureties  on  the  bond  of  a  sheriff  are  not  answerable  for  his 
acts  in  reference  to  the  collection  of  taxes  where  this  last  was  a 
duty  imposed  subsequently  to  the  execution  of  the  bond.  Such  duties 
are  not  germane  to  those  of  a  sheriff  generally,  and  are  not  deemed 
to  have  been  within  the  contemplation  of  the  sureties  on  executing 
the  bond.  In  Marion  School  Dist.  v.  Donohue,  7  Pa.  Co.  Ct.  264,  it 
was  held  that  the  official  bond  of  a  constable  covered  his  defaults 
as  collector  of  school  taxes,  where  he  had  been  appointed  as  pro- 
vided by  law,  for  this  purpose,  on  the  school  directors  failing  to 
procure  another  person. 

B.  In  General— As  Trustee,  Treasurer,  etc— On  the  same  principle 
where,  by  statute,  if  the  trustee  named  in  a  deed  of  trust  refused  to 
acty  the  parties  thereto  might  by  appropriate  procedure  secure  the 
appointment  of  the  sheriff  to  act  in  the  place  of  the  recalcitrant 
trustee,  the  sureties  on  his  general  official  bond  are  deemed  to  sign 
with  this  contingency  in  mind,  and  are  responsible  for  his  acts  as  a 
trustee  appointed  in  accordance  with  the  statute:  State  v.  Griffith, 
63  Mo.  545;  State  v.  Taylor,  6  Mo.  App.  277.  Where  no  such  statute 
exists,  however,  the  parties  to  a  deed  of  trust  cannot,  by  making 
the  sheriff  of  the  county  trustee  in  case  the  person  named  as  such 
fails  to  act,  render  his  sureties  liable  for  his  delinquencies  as 
trustee:  State  v.  Davis,  88  Mo.  585.  Where  a  sheriff  is  ex-officio 
county  treasurer,  the  sureties  on  his  official  bond  are  responsible 
for  his  failure  or  refusal  to  pay  warrants  duly  presented  for  pay- 
ment, and  for  which  funds  were  available,  or  if  funds  were  not 
available,  to  mark  the  warrants  '^ presented  for  payment":  Spurlock 
V.  State,  62  Fed.  882,  3  G.  C.  A.  151;  and  if  he  converts  warrants 
ic  presented,  it  is  undoubtedly  an  official  ast  and  a  breach  of  his 


652  American  State  Bepobts,  Vol.  91.        [Oregon, 

bond,  althongh  tbey  were  sent  to  him  indorsed   for   coUectioii   to> 

him.     This  fact  did  not  make  him  the  agent  of  the  owner  of  the 

warrants:  State  ▼.  McGuire,  i6  W.  Ta.  328^  76  Am.  St.  Bep.   822, 

33  S.  E.  313. 

b.    Tax  Collectors. 

1.  Failure  to  Collect.— The  primary  duty  of  a  tax  collector  is^ 
as  this  title  of  his  office  implies,  the  collection  of  taxes,  and  a  fail- 
ure to  perform  this  is  a  plain  breach  of  his  official  bond.    "The 
failure  to  collect  is  a  breach  of  the  bond  equally  with  a  failure  to 
pay   over   the   money    collected.    The    duty    of    collecting    ia     a» 
important  as  the  duty  of  paying  honestly.    The  one  duty  is   pre- 
cedent to  the  other":  State  v.  Lot,  69  Ala.  147.    The  statutes  in  all 
jurisdictions  make  provision  for  such  taxes  as  with  due  diligence 
cannot  be  collected,  but  if  by  reason  of  negligence  or  willful  misfeas- 
ance a  tax  collector  leaves  taxes  due  and  uncollected,  his  sureties 
become  answerable  for  the  resultant  injury.    In  People  v.  Smithy 
123  Cal.  70,  55  Pac.  675,  it  appeared  that  the  county  assessor  was  by 
law  required  to  collect  ''the  taxes  on  all  personal  property  when 
in  his  opinion  said  taxes  are  not  a  lien  upon  real  estate  sufficient 
to  secure  the  payment  of  the  taxes."    It  was  held  that  where  per- 
sonal taxes  were  assessed  to  persons  who  were  not  assessed  upon 
lands  and  improvements,  no  question  of  the  sufficiency  of  the  lien 
of  such  taxes  on  real  estate  could  arise.    There  was  in  such  ease 
no  lien  on  real  estate  at  all,  no  room  for  discrotion  as  to  its  suffi- 
ciency was  left,  the  neglect  to  collect  such  taxes  was  a  failure  to 
perform  a  ministerial  duty,  for  which  failure  the  sureties  on  th^ 
official  bond  were  answerable. 

2.  Belznre  of  Exempt  Property.— Analogous  to  the  case  of  • 
levy  by  a  sheriff  on  property  exempt  from  levy  (see  III,  a,  4,  B), 
is  that  of  a  seizure  by  a  tax  collector  for  delinquent  taxes  of  prop- 
erty by  law  exempt  from  such  seizure.  In  line  with  the  case  re- 
ferred to,  this  is  held  to  be  a  breach  of  the  official  bond  of  the  tax 
collector.  Thus,  in  Palmer  v.  Pettingii  (Idaho),  55  Pac  653,  property 
ill  the  hands  of  a  receiver,  and  therefore  in  the  custody  of  the  law, 
-was  seized  and  sold  for  taxes.  The  court  held  such  property  exempt 
from  seizure,  and  the  bondsmen  of  the  tax  collector  liable  for  his  il- 
legal act  in  making  such  seizure  and  sale.  So  the  exaction  of  illegal 
fees  under  color  of  office  is  deemed  a  breach  of  a  tax  collector's  ofil- 
cial  bond:  Kane  v.  Union  Pac.  By.  Co.,  5  Neb.  105.  See,  however, 
Clark  V.  United  States,  60  Ga.  156,  in  which  the  bond  of  a  collector 
of  internal  revenue  was  held  to  be  indemnity  to  the  government  only, 
and  not  to  cover  injuries  done  private  persons  through  illegal  seizures 
by  his  deputiea 

8.    Procasdi  of  CoUaetioiL 

A.  Qeneral  Bole.— The  most  frequent  delinquency  for  which  It  it 
sought  to  hold  the  sureties  on  an  official  bond  of  a  tax  collector  is 


Jan.  1902.]  Fbllbb  t^.  Gatbs.  653 

Ids  failure  to  pay  over  or  his  conversion  of  tbe  taxes  eoUeeted  by 
Lim.  Where  the  taxes  were  valid,  and  the  warrant  under  which 
they  were  collected  was  re^ar,  no  donbt  can  exist  but  that  the 
oflicial  bond  is  breached  by  his  conversion  of  such  funds.  See,  how- 
ever, as  instances,  Christian  v.  Ashley  Co.,  24  Ark.  142;  People 
V.  Edwards,  9  GaL  286;  Garothers  v.  Presidio  Co.,  4  Tex.  Civ.  App. 
529,  23  8.  W.  491.  Where  the  funds  are  lost  without  any  neglect  or 
other  default  on  the  part  of  the  officer,  there  is,  of  course,  a  question 
whether  he  is  liable,  but  this  has  already  been  discussed  (U,  f), 
and  the  general  principles  there  treated  have  no  peculiar  application 
to  funds  held  by  a  tax  collector  as  distinguished  from  those  heKl 
by  other  officers,  and  need  not  therefore  be  here  again  considered. 

B.    Immaterial  that  Tax  was  Irregularly  Levied  or  Ck>llected.— 
In  Foxcraft   v.  Nevins,   4   Greenl.    (Me.)     72,   was   held   that   the 
sureties  on  the  official  bond  of  a  tax  collector,  conditioned  for  the 
collection   and   payment   over   of  all  taxes  ''for  which  he   should 
have  sufficient  warrant/'  were  not  liable  for  his  conversion  of  taxes 
collected  on  a  warrant  insufficient  because  of  the  failure  of  the  as- 
sessors to  sign  the  tax  bill.    The  decision  is,  however,  dependent 
upon  the  restrictive  words  in  the  condition  of  the  bond,  and  where 
no  such  restriction  is  found,  the  cases  are  singularly  uniform  in 
holding  that  a  defective  warrant,  or  even  the  fact  that  the  taxes 
were  collected  without  any  warrant  at  all,  furnishes  no  excuse  for 
a  conversion  of  taxes  actually  collected.    The  warrant,  it  is  held, 
is  necessary  only  to  compel  payment,  and  if  taxes  are  voluntarily 
paid   or    on   an  irregular   warrant,   this   does  «ot   make   their   re- 
ceipt   a    personal    act,  or    relieve    the    sureties  of    the  collector's 
official  bond  from  responsibility  for  his  proper  application  of  the  pro- 
ceeds.   "The    defect    excuses    the    collector    from    collecting,    but 
does  not  excuse  him  from  paying  over  what  is  paid  to  him.    This 
irtill  remains  a    duty   devolved  upon   him  by  virtue   of   his   office. 
It  was  optional  for  him  to  proceed  in  the  collection  of  the  taxes, 
and  exhaust  what  authority  was  given  him  for  that  purpose,  or  de- 
cline to  do  so.    But  electing  to  proceed,  .  .  •  •  he  must  proceed  as 
collector,  and  can  do  so  in  no  other  capacity.    Whatever  money  he 
receives  upon  the  taxes,  he  receives  as  collector":  Brunswick  v.  Snow, 
73  Me.  17.    To  the  same  effect,  see  Fuller  v.  Calkins,  22  Iowa,  301; 
Commonwealth  v.  Gabbert,  5  Bush,  438;  Combs  v.  Breathitt  Co.,  20 
Ky.  Law   Rep.  529,  46  S.  W.  505;  Johnson  v.  Goodridge,  15  Me.  29; 
Frawnfelter  v.  State,  66  Md.  80,  5  Atl.  410;  Lynn  v.  Cumberland,  77 
Md.  449,  23  Atl.  1001;  Cogswell  v.  Eames,  14  Allen,  48;  State  v. 
Qamey,  57  Miss.  863;  Village  of  Glean  v.  King,  116  N.  Y.  355,  22 
N.  E.  559;  McGuire  v.  Williams,  123  N.  G.  349,  31  S.  E.  627;  Town  of 
Pawlet  V.  Kelly,  69  Yt.  398,  88  Atl.  92;  Meads  v.  United  States,  81 
Fed.    684,    26    G.    G.    A.     229;    King   v.    United    States,    99    U.    S. 
229;  United  SUtes  v.  Chsse,  Fed.  Gas.  No.  14,788. 


554  AiCEBiOAH  Statb  Bepobts^  Vol.  9L        [Or^son^ 


0.    ]>efeiis6  that  Tax  wm  TFneonstitiitloiuL— Where   it   is 
merely  the  regnlaritj  of  the  levy,  nor  of  the  process  under  ^vrliiek 
it  was  collected,  but  the  validity  or  constitutionality  of  the   tax 
itself  which  is  assailed,  the  cases  are  not  in  such  complete  hnrntomy. 
According  to  one  line  of  cases,  the  inyalidity  of  the  tax  furnishes  bo 
defense  to  an  action  on  the  collector's  bond  for  his  failure  to  pay  it 
over.    As  is  said  in  Waters  v.  State,  1  Gill   (Md.),  302:  ''The  ques- 
tion of  constitutional  authority  to  levy  the  tax  would  properly  snae 
between  the  collector  and  the  person  taxed  before  paymenti  or  after 
payment   between  the  state  and  such  person.''    But  as  between  the 
collector  and  the  state,  after  the  former  has  received  the  Itax,  he  ean- 
not,  according  to  the  view  of  these  cases,  litigate  the  legality  of  a 
tax  which  he  has  treated  as  a  legal  tax  in  collecting  it,  and  thus 
convert  into  a  private  fund    moneys  paid  to  him  as  public  taxes: 
Waters  v.  State,  1  Gill,  802;  McGuire  v.  Williams,  123  N.  a  349,  31 
S.  £.  627;  City  of  Wheeling  v.  Black,  25  W.  Va.  266.    On  the  same 
principle,  if  a   county  assessor  acts  under  a  statute  making  him 
collector  of  taxes,  his  sureties  cannot  escape  liability  on  the  ground 
that    the    statute    giving    him    this    authority    is    unconstitutional: 
Meagher  Co.  Commrs.  v.  Gardner,  18  Mont.  110,  44  Pac.  407.     At 
any  rate,  the  fact  that  funds  were  illegally  received  by  a  tax  col- 
lector does  not  affect  the  liability  of  his  sureties  for  a  misappropnar 
tion  of  funds  he  was  by  law  entitled  to  receive,  and  where  the  two 
funds  are  mingled,  such  sureties  are  liable  for  a  pro  rata  of  the 
amount  taken:  Schuster  v.  Weissman,  63  Mo.  552;  and  where  a  tax 
collector  refuses  to  repay  taxes  held  by  him  and  paid  under  proteat, 
where  the  claimant  has  been  judicially  declared  not  the  owner  of  the 
land  on  which  the  taxes  were  assessed,  he  thereby  breaches  his  boad, 
although  had  he  paid  the  money  to  the  county,  as  he  was  by  law 
reguired  to  do,  his  sureties  would  have  been  relieved  from  Liability 
thereby:  Lawrence  v.  Doolan,  68  CaL  309,  5  Pac  484^  9  Pae.  159. 

There  is,  however,  as  has  been  said,  a  conflict  among  the  author- 
ities in  this  connection,  and,  according  to  one  view,  opposed  to  that 
just  considered,  the  sureties  on  the  official  bond  of  a  tax  collector 
are  not  to  be  held  liable  for  a  tax  which  he  has  no  constitutional 
authority  to  receive.  Whatever  liability  the  tax  collector  incurs 
is,  according  to  the  doctrine  of  these  cases,  personal  to  himself,  and 
cannot  affect  the  sureties  on  his  official  bond:  See,  as  taking  this 
view,  Grcenwell  v.  Commonwealth,  78  Ky.  320;  Dawson  ▼.  Lee^  83 
Ky.  49;  Waley  v.  Commonwealth  (Ky.),  61  &  W.  35;  State  ▼.  Merry- 
man,  7  Har.  &  J.  (Md.)    79. 

D.  MlsceUaneous.—In  United  States  v.  Hermance,  15  Blatchf.  6; 
Fed.  Cas.  No.  15,355,  affirming  Fed.  Caa  No.  15,356,  it  appeared 
that  a  collector  of  internal  revenue  received  from  a  distiller  money 
intended  as  a  tax  on  brandy,  but  converted  the  money  to  his  own  nse 
without  issuing  any  stamps  to  the  distUler.    The  court  hold  tkal 


Jan.  1902.]  Fbllbb  v.  Gates.  656 

tLis  did  not  amonnt  to  a  payment  of  the  tax,  that  the  monej  never 
becaxne  piiblic  money,  and  for  its  conversion  the  official  bondsmen 
"were  not  rosponsible.  The  theory  npon  which  the  decision  proceeds 
is  that  tlie  payment  of  a  tax  on  distilled  spirits  is  in  reality  "a 
purehase  of  the  stamps  which  is  to  make  the  payment  available, 
and  as  a  porchase  woold  not  be  complete  until  the  stamp  had  been 
put  in  a  condition  by  the  collector  to  be  affixed  to  the  cask»  or  at 
least  until  it  had  been  reasonably  designated  and  set  apart  for  that 
purpose,  it  is  not  unreasonable  to  require  the*,  same  things  to  be  done 
before  the  payment  is  complete."  The  reasoning  is  not  entirely 
convincing,  and  the  result  reached  is  of  doubtful  correctness. 

In  Osenton  v.  Burnett,  19  Ky.  Law  Bep.  610,  41  S.  W.  270,  it  was 

held  that  the  sureties  of  a  bond  executed  by  a  tax  collector  for  the 

collection  of  a  tax  levied  by  the  county  to  pay  a  judgment  in  favor 

of   a  particuLir  bondholder  are  not  liable  to  other  bondholders  for 

the  aznount  received  by  the  tax  collector  in  excess  of  the  judgment, 

the   bond  being  regarded  as  intended  to  cover  the  collection  and 

payment  of  sufficient  only  to  satisfy  that  judgment.    Any  liability 

incurred  for  the  excess  was  personal  to  the  officer,  and  did  not  affect 

^us   sureties.    The  official  bond  of  a  collector  of  internal  revenue 

covers  the  misappropriation  of  money  received  by  him  to  pay  the 

expenses  of  his  office:  Broome  v.  United  States,  15  How.  143;  or 

for  the  pay  of  storekeepers:  United  States  v.  McCartney,  1  Fed.  104; 

as  well  as  money  received  in  the  collection  of  revenue. 

4.  As  Ex-offido  Treasurer.— Where  a  tax  collector  is  ex-officio 
county  treasurer,  giving  separate  bonds  for  his  acts  in  each  capacity, 
ho  is  deemed  to  hold  the  taxes  collected  as  tax  collector,  until  he 
haa  reported  their  collection  to  the  proper  officer  or  board:  Walker 
v.  People,  95  BL  App.  637.  After  he  has  settled  his  accounts  as 
tax  collector  with  the  auditor,  or  whoever  is  the  officer  named  by 
law,  his  liability  aa  tax  collector  ceases,  and  he  is  thereafter  respon- 
siblo  for  the  safety  of  the  funds  on  his  bond  as  treasurer:  Butte  Co. 
V.  Morgan,  76  CaL  1,  18  Pac.  115;  Norridgewock  v.  Hale,  80  Me.  362, 
14  Atl.  943. 

c    Treasurer. 

1.  Failure  to  Bender  True  Reports.— Where  a  custodian  of  public 
funds  is  required  by  the  law  to  make  reports  of  the  money  in  his 
band  at  certain  times,  or  of  other  matters  connected  with  his  office, 
the  failure  to  render  such  reports  is  in  itself  a  breach  of  his  official 
bond:  Monticello  v.  Lowell,  70  Me.  437;  unless  he  was  rendered 
unable  to  make  them  by  the  neglect  of  other  officers  in  supplying 
the  necessary  data:  Houghton  Co.  Supervisors  v.  Bees,  34  Mich.  481. 
The  failure  to  report  cannot,  however,  be  said  to  be  the  proximate 
cause  of  a  subsequent  embezzlement  by  the  delinquent  officer,  merely 
because  this  latter  would   probably  have  been  prevented  by   the 


556  Akebigan  State  Bepobts,  Vol.  91.        [Oregon, 


discovery  in  the  report  of  previouB  defaults:  State  ▼.  Hall,  68 
719,  10  South.  54.  Where  the  statute  requires  a  report,  the  return  of 
a  false  report  ordinarUy  renders  the  bondsmen  of  the  treasurer  li&ble: 
Board  of  Supervisors  v.  Bristol,  99  N.  T.  316,  1  N.  E.  878;  but  the 
mere  false  statement  of  a  fact  in  the  report,  which  fact  need  not  hy 
law  be  stated  at  all,  as,  for  instance,  a  statement  of  the  amount  of 
cash  on  hand,  where  the  statute  requires  only  a  statement  of 
ceipts  and  disbursements^  does  not  constitute  a  breach  of  the  tn 
urer's  official  bond:  Coe  v.  Nash,  91  Tex.  113,  41  S.  W.  473,  reverasng 
(Tex.  Civ.  App.),  40  S.  W.  233.  In  Wisconsin,  it  seems  that  in 
order  to  recover  on  the  bond  of  a  treasurer  for  a  false  report,  it 
must  appear  that  the  mistake  was  willful,  and  remains  unrectified 
after  he  has  been  requested  and  given  opportunity  to  rectify:  I<rwa 
Go.  Supervisors  v.  Vivian,  31  Wis.  217. 

2.  Befusal  to  Pay  Legal  Warrants.— It  is  the  duty  of  a  treasurer 
to  pay  out  the  money  in  his  custody  on  the  presentment  of  proper 
warrants,  quite  as  much  as  to  keep  it  safely,  while  in  his  custody. 
If,  therefore,  having  sufficient  funds  in  his  custody,  he  refuses  to  pay 
a  warrant  legally  drawn  and  presented,  and  to  which  such  funds  are 
subject,  he  thereby  breaches  the  condition  of  his  official  bond: 
Briggs  V.  Coleman,  51  Ala.  561;  Barnes  v.  Hudman,  57  Ala.  504; 
Somerville  v.  Wood,  129  Ala.  369,  30  South.  280;  People  v.  Oeltzen, 
56  m.  App.  138;  Monticello  v.  Lowell,  70  Me.  437;  Spurlock  v.  State^ 
52  Fed.  382,  3  C.  C.  A.  151.  In  order  that  such  refusal  may  amonnt 
to  a  breach,  however,  it  must  appear  that  the  warrants  thus  dis- 
honored were  entirely  regular,  and  that  the  formalities  required  by 
law  to  enable  money  to  be  drawn  from  the  treasury  were  complied 
with:  City  of  East  St.  Louis  v.  Launtz,  20  HI.  App.  644;  Annapolis 
Sav.  Inst.  V.  Bannon,  68  Md.  458,  13  Atl.  353. 

8.  Payment  of  Illegal  Warrants.— -If  a  warrant  drawn  upon  a 
treasurer  bears  upon  its  face  the  evidence  of  irregularity,  its  pay- 
ment by  that  officer  is  a  misappropriation  of  the  funds  in  his  charge* 
and  a  breach  of  his  official  bond:  Jackson  Co.  v.  Derrick,  117  Ala. 
348,  23  South.  193;  Los  Angeles  v.  Lankersheim,  100  Cal.  525,  35  Pae. 
153,  556;  Paxton  v.  State,  59  Neb.  460,  80  Am.  St.  Bep.  689,  81  N. 
W.  383.  Where,  however,  a  treasurer  has  no  check  upon  claims 
allowed,  on  a  school  fund,  for  instance,  payment  by  him  of  a 
genuine  order  or  warrant  of  the  auditor,  although  for  a  claim  which 
was  not)  properly  allowed  by  the  board  of  education  is  not  a  breach 
of  his  bond,  since  he  was  not  chargeable  with  notice  of  the  infirmity 
of  the  claim:  Los  Angeles  v.  Lankersheim,  100  Cal.  525,  35  Pac  153^ 
556.  In  Priet  v.  De  La  Montanya  (Cal.),  22  Pac.  171,  it  was 
held  that  an  action  on  the  bond  of  a  treasurer  could  not  be  main- 
tained by  a  person  who  held  a  warrant  on  the  treasury,  where,  though 
an  illegal  warrant  for  the  same  claim  had  been  paid  by  the  treasurer, 
it  appeared  that  during  the  term  of  the  latter    enough  funds  had 


Jan.  1902.]  Fbllbb  v.  Oatiss.  557 

al-ways  remained  to  psj  the  plaintiff's  warrant.  This  was  reversed 
in  Priet  ▼.  De  La  Montanya,  85  Cal.  148,  24  Pao.  612,  and  it  was 
tbere  held  that  the  payment  of  the  illegal  warrant  from  a  fund  set 
apart  bj  the  treasurer  for  the  payment  of  plaintiff's  elaim  was  itself 
a  misappropriation,  and  unaffected  by  the  fact  that  the  whole  fund 
-was  not  exhausted  until  the  treasurer's  term  had  expired.  Where 
the  bond  of  the  treasurer  runs  to  a  boards  such  as  a  eity  council  or 
board  of  school  commissioners,  and  is  conditioned  that  he  shall 
make  payments  "as  directed  by  the  board,"  if  he  makes  such  pay- 
ments as  they  direct,  the  condition  is  satisfied,  and  it  is  not  a  good 
statement  of  a  breach  of  his  official  bond  to  allege  that  payments 
'were  made  without  authority  of  law:  City  of  East  St.  Louis  v. 
Flannigen,  69  111.  App.  167;  State  v.  Hill,  88  Md.  Ill,  41  AtL  61. 
The  retention  of  illegal  fees  is,  of  course,  a  breach  of  a  treasurer's 
official  bond:  Howe  v.  State,  53  Miss.  57;  Stoner  ▼.  Keith  Co.,  48 
Neb.  279,  67  N.  W.  311. 

4.  Xmproper  Issuance  of  Tax  Beceipts,  Warranti,  etc.— An  action 
on  the  bond  of  a  county  treasurer  for  the  issuance  by  him  of  re- 
ceipts in  full  for  taxes,  without  collecting  interest  thereon,  and  as 
a  result  of  which  the  lien  of  the  county  for  such  interest  on  the 
property  of  the  taxpayer  was  lost,  is,  it  is  held  in  People  v.  Myers 
(^Colo.  App.),  66  Pac.  409,  not  maintainable,  since  the  loss  of  a  tax 
lien  is  not  the  necessary  result  of  the  issuance  of  the  tax  receipt, 
and  the  averment  that  it  was  the  result  is  no  more  than  a  statement 
ef  a  eonclusion  of  law  by  the  pleader.  Where  a  county  treasurer 
is  forbidden  by  law  to  deal  with  county  warrants,  one  who  purchases 
a  warrant  from  him  which  he  should  have  canceled,  but  which  he 
instead  reissued,  is  particeps  criminis,  and  neither  he  nor  subsequent 
purchasers  can  recover  or  the  official  bond  of  the  treasurer:  Mc- 
Connell  ▼.  Simpson,  36  Fed.  760. 

5.    Misappropriation  of  Public  Funds. 

A.  In  Oeneral.— The  primary  duty  of  a  custodian  of  public  funds 
is^  of  course,  to  deal  honestly  with  the  public  in  reference  to  them, 
and  that  his  misappropriation  of  such  funds  constitutes  a  breach  of 
his  official  bond  is  a  proposition  too  nearly  axiomatic  to  require  the 
citation  of  authorities  in  its  support.  The  duty  and  the  correlative 
liability  on  the  official  bond  for  the  breach  of  that  duty  extend  to 
all  funds  received  by  him  by  virtue  of  his  office,  and  for  which  he 
has  not  given  a  separate  bond.  Thus,  the  official  bond  of  a  county 
treasurer  covers  the  funds  in  his  hands,  whether  those  funds  belong 
to  the  county,  or  to  a  school  district,  a  township  or  the  state,  subject, 
of  course,  to  principles  already  discussed  (II,  c),  which  con- 
trol where  separate  bonds  have  been  given  for  particular  funds: 
See  Perry  v.  Woodberry,  26  Fla.  84,  7  South.  483;  Jackson  Co.  v. 
Craft,  6  Kan.  145;  Marquette  Co.  v.  Ward,  SO  Mich.  174,  15  N.  W.  70. 
So  the  general  official  bond  of  a  treasurer  covers  money  in  his  hands 


558  Amebican  State  Bepobts^  Vol.  91.         [Oregon, 

belonging  to  a  railroad,  which  had  been  raised  by  taxation,  aD<l 
voted  to  the  railroad:  Cedar  Kapids  etc.  Ky.  Co.  v.  Cowan,  77  Iowa, 
535,  42  N.  W.  436;  or  a  fund  bequeathed  to  the  poor  of  a  certaia 
county:  Prickett  v.  People,  88  IlL  115.    Such  funds,  although  held 
in  trust  for  particular  purposes,  are  funds  received  by  virtue  of  his 
office,  and  for  a  misapplication  of  them  the  sureties  on  the  bond  of 
the  treasurer  are  responsible.    In  United  States  v.  Bogers,   81  Fed. 
941,  27  C.  C.  A«   14,  on  the  other  hand,  it  was  held  that  the  sureties 
on  the  bond  of  i^  receiver  of  public  moneys  in  a  land  office,  con- 
ditioned on  his  faithful  accounting  ''for  public  moneys,"  was  not 
breached  by  his  failure  to  account  for  moneys  received  from  the  sale 
of  Indian  lands,  since  such  money  belonged  to  the  Indians,  and  not 
to  the  United  States.    Had  the  receiver  been  entitled  to  receive  these 
moneys,  the  reason  given  for  the  decision  might  be  said  to  be  doubt- 
ful.   It  appears,  however,  that  it  was  never  any  part  of  the  duties 
of  that  officer  to  sell  the  land  or  receive  the  payments  therefor,  and 
the  case  may  well  be  sustained  on  the  grounds  that  his  receipt  of 
such  money  was  extraofficial,  and,  therefore,  not  within  the  purview 
of  the  bond. 

B.  Funds  Unauthorizedly  BecelTed.— The  bond  of  a  treasurer  does 
not,  any  more  than  that  of  any  other  officer,  cover  his  defaults  ia 
respect  to  funds  not  held  by  him  in  his  official  capacity.  His  sureties 
do  not  guarantee  his  faithfulness  and  honesty,  except  in  the  perform- 
ance of  his  official  duties  as  treasurer,  nor  for  money  held  in  an 
extraofficial  or  private  capacity.  Accordingly,  if  he  is  authorized  by 
a  board  to  borrow  a  certain  amount,  and,  by  employing  false  repre- 
sentations, borrows  in  excess  of  the  amount  named,  the  sureties  on 
his  official  bond  are  not  responsible  for  his  misappropriation  of  the 
excess:  Bensselaer  County  v.  Bates,  17  N.  Y.  242.  So  it  is  held  that 
the  bond  of  a  treasurer  does  not  cover  his  duty  to  repay  funds  whieli, 
though  formerly  in  his  custody,  have  been  loaned  to  him  personally 
by  the  proper  authorities,  even  though  all  the  formalities  prescribed 
by  law  for  the  making  of  such  a  loan  have  not  been  complied  with. 
His  duty  to  repay  is  not  an  official  duty:  Wilkes-Barre  v.  Bocka- 
fellow,  171  Pa.  St.  177,  50  Am.  St.  Bep.  795.  83  Atl.  269. 

O.  Funds  Improperly  Balsed  or  Collected.— Where,  however, 
money  is  received  by  a  treasurer  as  public  funds,  and  in  his  capacity 
as  treasurer,  he  or  his  sureties  cannot,  by  the  weight  of  authority, 
attack  the  validity  of  the  means  by  which  it  was  raised,  in  order 
to  turn  his  official  trust  into  a  private  one,  or  make  his  appropriation 
of  such  money  an  extraofficial  delinquency,  and,  therefore,  not  :i 
breach  of  his  official  bond.  Thus,  where  money  is  borrowed  or  raised 
by  taxation,  and  paid  into  the  treasury,  it  is  no  defense  that  the 
board  which  raised  the  money,  in  so  doing,  exceeded  its  lawful 
authority.    As  is  said  in  Cheboygan  Co.  v.  Erratt,  110  Mich.  156, 


Jan.  1902.]  Fbllbb  v,  Oates.  659 

67  N.  W.  1117:  ''We  think  it  altogether  clear  that,  when  it  ia  shown 
thAt  moneys  have  actually  come  into  the  hands  of  the  treasurer  aa 
treasurer,  neither  he  nor  his  bondsmen  can  avoid  liability  by  show- 
ing either  that  irregularities  exist  in  the  proceedings  by  which  such 
moneys  were  collected,  or  that  there  was  no  authority  to  enter  into 
the  agi'eement  which  resulted  in  the  receipt  of  the  money  by  the 
county.    It  is  enough  to  impose  upon  the  treasurer  an  active  duty 
that  the  eounty  has  received  the  money,  and  the  obligation  on  the 
bond  exists  when  the  money  finds  its  way  into  his  hands  as  treas- 
urer'': See,  to  the  same  effect,  Hague  v.  State  (Ind.  App.),  63  N.  E. 
709;  Wilson  v.  Town  of  Monticello,  85  Ind.  10;  Benessaelaer  Co.  v. 
Bates,  17  N.  T.  242;  Wylie  v.  Gallagher,  46  Pa.  St.  205;  Boehmcr  v. 
County  of  Schuylkill,  46  Pa.  St.  452;  Simons  v.  Jackson  Co.,  63  Tex. 
428.     So  it  is  no  defense  for  failure  to  pay  over  or  account  for 
money  paid  into  the  treasury  as  taxes,  that  they  were  collected  with- 
out warrant:  Berrien  Co.  v.  Bunbury,  45  Mich.  79,  7  N.  W.  704;  or 
that  the  levy  was  irregular:  Mahaska  Co.  v.  Ingalls^  14  Iowa,  170. 

On  the  same  principle,  it  is  held  immaterial  whether  or  not  a 
treasurer  is  by  statute  authorized  to  receive  partial  payments  of 
taxes  due,  where  he  does,  In  fact,  receive  them,  and  misappropriates 
them.  Such  was  the  state  of  facts  in  Warren  Co.  v.  Ward,  21  Iowa, 
84,  and  in  answer  to  the  objection  that  the  treasurer  was  not  in  law 
bound  to  receive  partiiil  payments  of  taxes,  and  in  so  receiving  them 
ficted  personally  rather  than  officially,  it  is  said  by  the  court:  ''The 
ofticer  was,  perhaps^  not  bound  to  take  the  money  in  this  way;  but 
if  he  did,  accepting  it  ss  treasurer,  he  held  it  for  the  county,  or 
the  respective  funds,  as  fully  as  though  the  last  cent  had  been 
paid.  It  is  not  as  though  it  had  been  left  with  him  on  deposit  until 
the  whole  could  be  paid.  The  taxpayers  paid  it  to  be  applied  on 
their  taxes,  and  it  was  so  received.  .  •  •  •  It  is  true  he  could  not  be 
required  to  give  receipts  for  such  partial  payments,  but  if  the 
money  can  be  traced  into  his  hands,  we  entertain  no  doubt  aa  to 
his  official  liabiUty.^'  To  the  same  effect,  Custer  Co.  v.  Tnnley,  13  8. 
Dak.  7,  79  Am.  St.  Bep.  870,  82  N.  W.  84.  Nor  doea  the  lack  of  au- 
thority of  a  treasurer  to  negotiate  bonds  for  a  city  or  eounty  affect 
his  liability  on  his  bond  as  treasurer,  where,  although  the  bonds 
were  negotiated  by  him,  their  proceeds  were  received  in  his  capacity 
as  treasurer:  Smith  v.  Peoria  Co.  Supervisors,  59  HI.  412;  State  v. 
Hauser,  63  Ind.  155.  Compare  Stevenson  v.  Bay  City,  26  Mich.  44, 
A  rei^eiveiy  of  public  moneys  in  a  land  office  is,  it  is  held,  liable  on 
his  official  bond  for  money  received  from  pre-emptors  of  public 
lands,  regardless  of  any  irregularity  in  the  proceedings  leading  up  to 
the  passage  of  title:  Smith  v.  United  States  (Ariz.),  45  Pae.  341; 
Meads  v.  United  States,  81  Fed.  684,  26  C.  C.  A.  229;  Potter  v. 
United  States,  107  U.  S.  126,  1  Sup.  Ct.  Bep.  524. 

in  the  cases  above  considered,  and  by  the  authorities  generally,  no 
distinction  is  made  between  a  treasurer  and  his  sureties,  so  far  as  con- 


560  American  Stats  Beports,  Vol.  91.        [Oregon, 

cerns  the  right  of  either  to  question  the  legality  of  the  meanB  bj 
which  money  paid  to  and  reeeived  by  him  as  treasurer  was  raised. 
Some  few  of  the  cases  seek,  however,  to  make  such  a  distinction,  suid 
while  denying  to  the  treasurer  himself  the  right  to  question  tbat  he 
holds  the  funds  officially,  permit  his  sureties  to  show  that  the  money 
paid  into  the  treasury  was  borrowed  or  raised  withont  authority. 
Such  is  the  holding  in  Mason  v.  Commissioners  of  Boads,  ete^   104 
Ga.  35,  30  8.  E.  513,  in  which  the  general  rule  is  conceded  as  to  tha 
liability  of  the  officer  himself.    Following  Frost  ▼•  Mixsell,   38   N. 
J.  £q.  586,  however,  the  court  holds  that  a  different  rule  obtains  as 
to  the  sureties,  and  says:  ''It  is  true  that  in  the  cases  of  Wylie  ▼• 
Gallogher,  46  Pa.  St.  205,  and  Boehmer  v.  County  of  Schuylkill,  46 
Pa.  St.  452,  a  contrary  view  was  taken  by  the  court;  but  we  think 
the  better  reason  under  the  condition  of  the  bond  here  involved 
supports  the  position  that  the  sureties  are  not  liable  for  the  fsdlnre 
of  the  treasurer  to  account  for  the  money  unlawfully  borrowed.     Tke 
law  fixed  the  boundaries  of  the  treasurer's  official  conduct.     TLe 
xeception  and  disbursements  of  money  other  than  that  which 
mately  belonged  to  the  county  was  not  an  official  duty,  but 
a  transaction  outside  of  the  functions  of  the  office.    There  was  no 
duty  imposed  upon  the  treasurer  to  receive  or  disburse  a  cent  of  the 
money  unlawfully  borrowed:  and  it  therefore  seems  clear  that  while 
the  sureties  are  responsible  for  the  failure  of  the  treasurer  to  pay 
ever  all  lawful  money  belonging  to  the  county,  they  are  not   re- 
sponsible for  the  unlawfully  borrowed  money.''    The  case,  together 
with  the  one  it  follows,  Frost  v.  Mixsell,  38  N.  J.  £q.  586,  is  un- 
doubtedly contra  to  the  weight  of  authority,  and  with  the  general 
rule  (II,  a,  3)  that  so  far  as  their  liability  on  the  bond  is  concerned 
an  officer  and  his  sureties  are  bound  to  the  same  extent. 

D.    Funds  not  Actually  Beceived.— The  bond  of  a  treasurer  cov- 
ers only  such  funds  as  he  has  received,  and  not  such  as  he  dfd  not 
receive,  but  which  were  collected  by  other  officers  and  should  have 
been  paid  into  the  treasury:   Prairie  School  Tp.  v.  Haseleu,  8  N. 
Dak.  328,  55  N.  W.  938.    This  principle  was  in  Prickett  v.  People, 
88  III.  115,  applied  where  by  a  private  arrangement  between  the  tax 
collector  and  treasurer  of  a  county,  the  former  refunded  a  certain 
amount  to  the  taxpayers   out   of   revenue   collected  by   him.    This 
money  never  having  reached  the  treasury,  the  treasurer's  act  ifith 
respect  to  it  could  not,  it  was  held,  bind  his  sureties.    It  is  not  nec- 
essary that  a  treasurer   receive   coin  in  order  to  render  his  lure- 
ties  liable.    He  is  charpreable  as  with  cash  for  choses  in  action  re- 
ceived by  him:  Montmorency  Co.  v.  Wiltse,  125  Mich.  47,  83  N.  W. 
1010;  Board  of  Education  v.  Bobinson,  81  Minn.  805,  83  Am.  &u 
Kep.  374,  84  N.  W.  105;  Bush  v,  Johnson,  48  Neb.  1,  58  Am.  St. 
Bep.  673,  66  N.  W.  1023;  but  it  must  appear  that  he  received  such 
choses  in  action  as  money  in  order  to  charge  him  or  his  sureties 
as  for  money   received.    An   allegation  that  a  tax   eoUector  "had 


Jan.  1902.]  Fbllbb  v.  Gatbs.  661 

and  sought  to  pajr  to  the  treasurer''  certain  sums  of  money,  and 
in  furtherance  of  that  purpose  had  delivered  to  him  certain  worth- 
less checks  on  an  insolvent  bank,  without  alleging  that  the  treas- 
urer gave  any  receipt  as  required  by  law  where  money  is  paid  to 
bim,  does  not  show  that  he  received  such  checks  as  money,  but  is 
consistent  with  a  refusal  by  him  to  do  so:  Bingham  Co.  v.  Woodin 
<Idaho),  55  Pac  662. 

6.  Datles  Imposed  Subsequently  to  Ezecutioii  of  OfBicial  Bond. 
In  order  that  subsequently  imposed  duties  may  be  covered  by  the 
o^^cial  bond  of  a  treasurer,  they  must,  as  we  have  seen  (II,  b), 
be  germane  to  the  usual  and  existing  duties  of  the  office.  It  is 
accordingly  held  that  the  bond  of  a  state  treasurer  does  not  cover 
duties  subsequently  imposed  upon  him  as  cashier  of  the  state  bank: 
Beynolds  v.  Hall,  2  HI.  (1  Scam.)  85;  nor  does  that  of  a  treasurer 
of  a  branch  United  States  mint  cover  duties  as  a  stamp  agent  im- 
posed subsequent  to  its  execution:  United  States  v.  Cheeseman,  3 
Saw.  424,  Fed.  Cas.  No.  14,790.  In  State  v.  Thomas,  88  Temn.  491, 
12  S.  W.  1034,  it  is  held  that  the  bond  given  by  one  as  state 
treasurer  was  not  intended  to,  and  did  not,  cover  his  acts  or  de- 
faults as  ex-officio  insurance   commissioner. 

7.  Funds  Ck>Tered  by  Special  Bond.~Where  a  treasurer  is  made 
custodian  of  several  distinct  funds,  as  where  a  city  or  county  treas- 
urer is  made  school  treasurer,  the  liability  of  the  sureties  on  his 
general  official  bond  for  such  other  funds  depends  upon  principles 
already  discussed  (II,  b,  c).  The  duty  of  caring  for  a  school 
fond  is  germane  to  those  ordinarily  required  of  a  treasurer,  and 
if  subsequently  imposed  without  a  new  bond  being  provided  for 
to  cover  them,  will  be  covered  by  the  treasurer's  general  official 
bond:  Board  of  Education  v.  Quick,  99  N.  Y.  138,  1  N.  E.  533.  See, 
also,  Mahaska  Co.  v.  Ingalls,  14  Iowa,  170.  So  where  the  duties  of 
school  treasurer  were  imposed  upon  a  city  or  county  treasurer  prior 
to  the  execution  of  his  bond,  if  no  separate  bond  for  his  duties  in 
the  former  capacity  was  required,  they  are  covered  by  his  general 
bond:  Perry  v.  Woodberry,  26  Pla,  84,  7  South.  483;  but  where  such 
separate  bond  is  directed  by  law  to  be  taken,  the  sureties  on  the 
general  bond  of  the  treasurer  are  not  responsible  for  his  delinquencies 
with  respect  to  the  school  funds:  State  v.  Young,  23  Minn.  551; 
Bedwood  Co.  Commrs.  v.  Tower,  28  Minn.  45,  8  N.  W.  907;  Board 
of  Co.  Commrs.  v.  King,  29  Minn.  398,  13  N.  W.  181;  State  ▼.  Mayes, 

54  Miss.  417;  State  v.  Hall  (Miss.),  8  South.  464;  State  ▼.  Johnson, 

55  Mo.  80.  Compare  Hall  v.  State,  69  Miss.  529,  13  South.  88;  State 
V.  Bateman,  102  N.  C.  52,  11  Am.  St.  Bep.  708,  8  S.  E.  882;  Wake 
Co.  Commrs.  v.  Maguin,  86  N.  C.  285. 

8.  Deposit  of  Funds  In  Bank.— Whether  a  treasurer  is  liable  for 
money  in  his  custody  and  lost  without  his  fault  by  theft,  accident 

Am.   St.   Bep.,   Vol.   91—36 


562  Amebioan  State  Reports,  Vol.  91.        [Oregon, 

or  the  failure  of  a  bank  in  which  he  had  deposited  the  fundi,  lia» 
been  already  eonaidered  (supra,  11,  f).  The  right  of  sneh  an  of- 
ficer to  deposit  the  public  moneys  in  his  custody  in  a  bank  on 
general  deposit  depends,  to  a  great  extent,  upon  the  statutes  of  the 
various  states,  and  will  not  be  here  discussed.  See,  however,  in  thia 
general  connection,  and  with  reference  to  the  liabilities  of  hia  sure- 
ties for  such  a  deposit,  Bingham  Co.  v.  Woodin  (Idaho),  55  Fac» 
662;  People  v.  Oeltzen,  56  BL  App.  138;  Hiatt  v.  State,  110  Ind. 
472,  11  N.  E.  359;  Lowry  v.  Polk  Co.,  51  Iowa,  50,  33  Am.  Bep. 
114,  49  N.  W.  1049;  Ward  v.  School  District,  10  Neb.  293,  35  Am. 
Bep.  477,  4  N.  W.  1001;  Thomssen  v.  Hall  Co.  (Neb.),  89  N.  W.  389. 

d.    Olerical  Offlcers— Olerks  of  Court,  City  Clerks^  County  Clerks,  etc 

1.    Clerks  of  Court. 

A.  ISsnanoe  of  Writs,  etc— Of  that  class  of  public  osficials  whose 
duties  are  clerical  in  their  nature^  and  which  includes  clerks  of 
court,  registers  in  chancery,  prothonotaries^  city  clerks,  county 
clerks^  registers  of  deeds,  etc.,  one  of  the  most  important  functions^ 
Iiarticularly  in  the  case  of  clerks  of  court,  is  the  issuance  of  writs 
snd  citations.  The  failure  of  a  clerk  of  court  to  issue  a  writ  whea 
demanded  in  the  proper  case  is  accordingly  held  to  constitute  a 
breach  of  his  of&cial  bond:  Steele  v.  Thompson,  62  Ala.  323;  and 
if  by  his  neglect  to  issue  a  citation  when  demanded  the  cause  of 
action  is  lost  by  prescription,  the  sureties  on  his  official  bond  are 
responsible.  That  the  defendant  in  the  action  has  not  yet  pleaded 
the  prescription  in  bar  is  no  defense  to  the  action  on  the  official 
bond,  it  being  presumed  that  he  will:  Anderson  v.  Johett,  14  La. 
Ann.  624.  Where  the  clerk  is  not  permitted  to  issue  execution 
without  order  of  court,  a  faUure  to  issue  such  a  writ  on  his  own 
motion  cannot,  of  course,  amount  to  a  breach  of  his  bond:  Badham 
v.  Jones,  64  N.  C.  655. 

In  State  v.  Sherwood,  42  Mo.  179,  it  was  held  that  one  who 
claimed  to  have  been  elected  tax  collector  could  not  sue  the  sure- 
ties of  the  county  clerk  for  their  principal's  failure  to  cast  up 
the  votes  and  issue  the  certificate  of  election  to  him,  or  for  his 
maliciously  issuing  it  to  another  candidate.  The  theory  of  the 
case  is,  however,  not  that  if  the  plaintiff  had  shown  himself  entitled 
to  the  office  recovery  could  not  be  had  on  the  clerk's  bond,  but  that 
such  an  action  is  not  the  proper  way  of  trying  the  right  or  title 
to  an  office:  See  Hunter  v.  Chandler,  45  Mo.  457. 

B.  Issuance  of  Letters  of  Onardlanship.— Under  an  Indiana  stat- 
ute providing  for  the  appointment  of  guiMrdians  of  minors  by  the 
probate  court  in  term  time  or  by  the  clerk  in  vacation,  it  was 
held  that  where  a  clerk  in  term  time  Issued  leClers  of  guardianship 
to  one  never  appointed  guardian  by  the  court,  and  under  such  let- 
ters their  holder  secured  possession  of  and  squandered  the  minor's 
estate,  the  sureties  of  the  clerk  were  liable  on  the  bond:  State  ▼. 


Jan«  1902.]  Fblleb  v.  Gates.  563 

Christian,  13  Tnd.  App.  308,  41  N.  E.  603.  Where,  however,  the 
letters  of  guardianship  confer  no  power  on  the  guardian  until  a 
bond  is  given,  the  issaanee  by  a  clerk  of  such  letters  before  the 
irnardian  gave  bond  did  not,  it  was  held  in  Carpenter  ▼.  Sloan e,  20 
Ohio,  327,  constitute  a  breach  of  the  clerk's  bond,  tho  view  being 
that  it  was  legally  impossible  for  the  guardian  to  secure  possession 
of  the  property  by  virtue  of  any  letters  of  guardianship  issued  to 
him,  mnee  they  had  no  legal  force  until  the  bond  was  given.  On 
the  same  principle  it  was  held  in  Governor  ▼.  Wiley,  14  Ala.  172, 
that  while  the  issuance  by  a  register  of  chancery  of  an  injunction 
to  restrain  the  collection  of  a  fieri  facias,  although  done  without 
authority,  was  a  breach  of  his  bond,  if,  on  the  other  hand,  the  in- 
junction failed  to  show  on  its  face  the  authority  under  which  it 
was  issued,  it  was  nugatory,  obedience  to  it  could  not  be  coerced, 
and  it  cannot  be  said  to  have  legally  prevented  the  collection  of  the 
fieri  facias. 

O.  Issaanee  of  Marriage  Idcenses.— The  officers  of  the  class  un- 
der eonsideration  are  usually  invested  with  the  power  to  Issue  mar- 
riage licenses,  and  a  penalty  is  frequently  prescribed  for  the  im- 
proper issuance  of  such  licenses.  The  liability  of  the  sureties  on  of- 
ficial bonds  for  penalties  imposed  on  their  principals  has  already 
been  discussed  (see  supra,  II,  i;  and  in  this  particular  connection. 
State  ▼.  Baker,  47  Miss.  88;  Holt  v.  McLean,  75  N.  0.  347;  Jayner 
▼.  Boberts,  112  N.  G.  HI,  16  8.  E.  917).  The  issuance  of  a  mar- 
riage license  to  parties  not  entitled  thereto,  because  under  age, 
does  not,  however,  give  a  cause  of  action  for  damages  on  the  bond, 
as  in  legal  contemplatipn  no  one  is  thereby  injured:  Brooks  y. 
Governor,  17  Ala.  806. 

Z>.  Ministerial  Dnties,  Oenerally.— In  the  performance  of  the 
various  clerical  duties  imposed  upon  a  clerk  of  court  and  other 
officers  of  the  same  class,  such  officers  are  bound  to  use  diligence 
and  care,  and  for  neglect  to  perform  or  for  a  negligent  and  improper 
performance  of  them,  the  sureties  on  their  official  bonds  are  an- 
swerable, in  the  event  that  injury  results  therefrom.  Thus,  the 
sureties  of  a  clerk  of  court  have  been  held  responsible  for  his  neg- 
lect to  certify  and  send  up  a  record  within  the  time  required,  as 
a  result  of  which  a  writ  of  error  was  dismissed:  Collins  v.  Mc- 
Daniel,  66  Ga.  203;  for  an  erroneous  satisfaction  of  a  judgment  on 
the  docket,  although  made  by  mere  mistake:  Van  Etten  v.  Com- 
monwealth, 102  Pa.  St.  596;  for  his  failure  to  enroll  or  docket 
a  judgment:  Byan  v.  State  Bank,  10  Neb.  524,  7  N.  W.  276;  Toung 
V.  Connelly,  112  N.  C.  646,  17  S.  E.  424;  Strain  v.  Babb,  30  S.  C. 
342,  14  Am.  St.  Bep.  905,  9  S.  E.  271;  Chester  Co.  v.  Hemphill,  29 
B.  0.  584,  8  S.  E.  105  (compare  Foote  v.  Yanzandt,  34  Miss.  40, 
holding  snreties  not  liable  for  a  statuory  penalty;  see  supra,  TXT, 
i);  for  failure  to  enter:   Governor  of  State  v.  Dodd,  81  HI.  162; 


1164  American  State  Eeports,  Vol.  91.        [Oregon, 

t>r  for   an  erroneous  entry   of   the   amount   of   a  judgment:    Saylor 
V.  Commonwealth   (Pa.)   5  Atl.  227;  for  a  failure  to  place  an   ac- 
tion at  issue  on  the  issue  doeket:   Brown  t.  Lester,  21  Misa.   (13 
Smedes  &  M.)   392;  and  for  a  failure  to  make  a  transcript    when 
demanded*  Bates  v.  Foree.  4  Bush,  480;  Commonwealth  v.  Chambers, 
31  Ky.  (1  Dana)  11.    So  where  it  is  the  duty  of  a  prothonotarj  to 
search  the  records  and  give  certificates  of  judgments,  the  issuance 
of  an  erroneous  certificate  is  a  breach  of  official  duty,  and  ordinarily 
of  his  official  bond:  Zeigler  t.  Commonwealth,  12  Pa.  St.  227.     In 
Commonwealth  v.  Harmer,  6  Phila.  90,  however,  it  is  held  that  aueh 
«n  act  is  not  covered  by  the  bond  of  a  recorder  of  deeds  conditioned 
^'to  deliver  up  the  records,  etc.,  ....  to  his  successor,"  and  plainly 
intended  to  cover  only  such  injuries  as  affect  the  public  and  not 
private  injuries,  such  as  those  caused  by  a  defective  certificate  of 
search.    Failure  by  such  an  officer   to  properly  index  the   records 
of  his  office   constitutes   a   breach    of   his   official   bond:    Norton  v. 
Kumpe,  121  Ala.  446,  25  South.  841;  State  y.  Grizzard,  117  N.  C.  105, 
23  S.  E.  93;  Johnson  v.  Brice,  102  Wis.  575,  78  N.  W.  1086;  but  a 
statute  requiring  a  clerk  of  court  to  enter  the  names  of  the  justices 
present  at  the  appointment  of  a  guardian    on  the  docket  and   on 
the  guardian's  bond  furnishes  merely  a  cumulative  means  of  prov- 
ing this  fact,  and  for  failure  to  perform  this  duty  a  clerk  is  not 
liable  on  his  bond:  Fornell  ▼.  Koonce,  51  N.  C.  379.    The  issuance 
cf  a  false  certificate  of  acknowledgment  is  a  breach  of  the  bond 
of  a  clerk  of  court:  People  v.  Bartels,  138  111.  322,  27  N.  E.  1091, 
reversing  38  HI.  App.  428;  Bartels  v.  People,  152  El.  557,  38  N.  E. 
«98. 

E.  Approval  of  Bonds.— Where  a  clerk  of  court  is  by  statute 
required  to  approve  such  bonds  as  are  given  in  the  course  of  judicial 
proceedings,  or  by  officers,  such  as  executors,  guardians,  etc,  he 
is  bound  to  use  due  diligence  in  the  performance  of  this  duty.  If, 
therefore,  he  neglects  to  take  any  bond  at  all  (McNutt  ▼.  Livings- 
ton, 15  Miss.  (7  Smedes  &  M.)  641),  or  to  take  such  evidence  of 
the  sufficiency  of  the  sureties  as  is  required  by  the  statute  (Heater 
V.  Pearce,  59  Neb.  583,  81  N.  W.  615),  or  where  the  statute  prescribes 
no  particular  mode  of  determining  their  sufficiency,  if  he  fails  to 
vse  such  diligence  as  an  ordinarily  prudent  person  would  exercise  in 
like  transactions,  his  official  bond  is  liable  for  such  injury  as  may 
result.  The  fact  that  in  determining  the  sufficiency  of  sureties  the 
officer  acts  quasi  judicially,  or  that  in  the  particular  case  he  ap- 
proved the  bond  in  good  faith,  cannot  affect  his  liability  or  that 
of  his  sureties  Where  he  has  been  negligent  in  the  performance  of 
iis  duty:  Spain  v.  Clements,  63  Ga.  786;  Marshall  Field  k  Co.  v. 
Wallace,  89  Iowa,  597,  57  N.  W.  303;  McNutt  ▼.  Livingston,  IS  Miss. 
<7  Bmedee  ft  M.)  641;  Heater  v.  Pearce,  59  Neb.  583,  81  N?  W.  61o; 
^Topping  ▼.  Windley,  99  N.  C.  4,  5  S.  E.  14.    Where  the  bond  taken 


Jan.  1902.]  Feller  v.  Gates.  665 

is  giyen  to  dissolye  a  garnishment  and  proves  valneless,  the  measure 
of  damnges  is  the  :unount  which  would  have  been  realized  from  the 
garnishee  had  the  garnishment  not  been  dissolved:  Spain  v.  Clements^ 
63  Ga.  786.  In  Nebraska,  it  is  held  that  even  where  no  actual  dam- 
age  has  resulted  from  the  insufficiency  of  the  bond,  nominal  dam- 
ages are  recoverable:  Heater  v.  Pearce,  59  Neb..  583,  81  N.  W.  615» 
In  North  Carolina  it  was  held  in  an  early  ease  that  where  a  elerk 
of  court  is  by  statute  required  '  *  to  issue  ex  officio  ' '  a  notiee  te 
guardians  at  stated  periods  to  renew  their  bonds,  the  Boreties  on 
the  clerk's  bond  were  liable  for  his  failure  to  issue  such  notice,  where 
the  guardian  became  insolvent,  and  a  debt  due  from  him  was  thereby 
lost:  State  v.  Watson,  29  N.  G.  289.  This  was,  however,  held  other- 
ivise  in  State  v.  Briggs,  46  N.  C.  364,  on  the  grounds  that  the  dam- 
ages were  too  remote,  and  that  the  statute  imposing  the  duty  te 
issue  notices  on  the  clerk  did  not  intend  to  make  him  liable  on  his 
official  bond  for  failure  to  perform  this  duty.  The  docCrine  of  the 
later  ease  has  Btnee  been  declared  preferablo:  State  v.  Lowe,  64  Ni. 
C.   500. 

Where  the  approval  of  a  bond  given  by  a  guardian  or  in  judicial 
proceeds  is  a  duty  imposed  upon  the  court,  the  sureties  of  the  elerk 
ore  very  clearly  not  answerable  for  the  sufficiency  of  such  bond: 
Bend  ▼.  McCuUy,  65  Iowa,  629,  22  N*  W.  902;  Dewey  v.  Kavanaugh, 
45  Neb.  233,  63  N.  W.  396;  McAlister  v.  Scrice,  15  Tenn.  (7  Terg.) 
277,  27  Am.  Dec.  504;  and  on  the  same  principle  it  is  held  that 
where  the  statute  requires  the  clerk  to  approve  the  security  of  an 
appeal  bond,  he  is  not  thereby  made  responsible  on  his  official  bond 
for  the  defects  of  the  appeal,  bond  in  other  particulars,  as  in  the 
naming  of  the  obligees:  People  v.  Leaton,  121  111.  666,  18  N.  K. 
241;  affirming,  25  111.  App.  45.  For  the  liability  of  sureties  on 
defective  bonds  or  undertakings  on  appeal,  see  monographic  note 
to  Babcock  v.  Carter,  67  Am.  St.  Bep.  197-204. 

T.  Collection,  etc^  of  Fees.— Whore  the  duty  of  collecting  court 
fees  is  imposed  upon  a  clerk  of  court,  though  subsequently  to  the 
execution  of  his  official  bond^  it  is  sufficiently  germane  to  his  ordi*^ 
nary  duties  to  be  covered  by  that  undertaking,  particularly  where 
he  was  formerly  authorized  to  receive  them,  and  his  sureties  may  be 
held  answerable  for  his  failure  to  collect  such  fees:  Governor  of 
State  V.  Bidgway,  12  HI.  14.  Compare,  however.  People  ▼.  Tread- 
way,  17  Mich.  480.  So  where  the  statute  requires  a  report  of  and 
sceounting  for  all  fees  received  by  a  clerk,  a  failure  to  make  sneh 
report  is  a  breach  of  his  official  bond,  although  where  there  was 
no  balance  to  turn  over,  the  damages  recoverable  are  nominal  only: 
United  States  v.  Ambiose,  2  Fed.  552.  Where,  however,  fees  were 
actually  collected  and  should  have  been  paid  over,  a  failure  to  do  sa 
renders  the  official  bondsmen  of  the  officer  answerable  for  their 
amount:  Cooper  ▼.  People,  28  Colo.  87,  63  Pae.  314;  Shnling  v.  State 


966  AicxBiOAK  Stats  Hepobts,  Vol.  91.        [Oregon, 


(InO.),  62  N.  K  49;  Scott  ▼.  Hant,  02  Tex.  889,  49  &  W.  210. 
al0O,  Watson  ▼.  Sznithy  26  Pa.  St.  395.  In  MiMouri  it  ii  held  that 
where  the  report  of  a  clerk  as  to  the  fees  received  hj  him  ia  cor- 
rect, an  order  of  court  that  he  pay  them  inio  the  treasury  is  nee- 
ofisary  to  fix  the  breach:  State  ▼.  Dent,  121  Mo.  168,  25  8.  W. 
924.  Where,  hofroTer,  th^  report  itself  is  false,  no  such  order  of 
court  is  requisite:  State  ▼.  Henderson,  142  Mo.  598,  44  8.  W.  737; 
State  V.  Chick,  146  Mo.  645,  48  S.  W.  829;  Stote  ▼.  Gideon,  158  Mo. 
827,  59  S.  W.  99. 

The  collection  of  fees  from  the  treasury  by.  a  clerk  of  court  under 
a  statute  afterward  held  unconstitutional  is  a  breach  of  his  official 
bond:  Commonwealth  ▼•  Carter,  21  Ky.  Law  Bep.  1509,  55  S.  W. 
701.  On  the  other  hand,  in  an  action  on  his  bond,  he  cannot  de- 
fend his  failure  to  pay  into  the  treasury  fees  received  by  him  oa 
the  ground  that  they  exceeded  in  amount  those  authorized  by  law: 
Hewlett  V.  Nutt,  79  N.  C.  263.  Where,  however,  it  is  no  part  of 
a  clerk's  duty  to  collect  the  fees  of  other  officers  in  receiving  them, 
he  does  not  act  officially,  but  as  agent  of  the  party  paying  them, 
and  his  failure  to  pay  them  to  the  proper  officer  is  not  a  breaek 
of  his  official  bond:  State  v.  Givan,  45  Ind.  267;  Matthews  ▼.  Mont- 
gomery, 25  Miss.  (3  Gush.)  150.  Compare  State  v.  White,  152  Mo. 
416,  53  S.  W.  1064.  This  is,  of  course,  otherwise  where  under  the 
law  he  is  authorized  to  collect  the  fees  of  other  officers  and  re- 
fuses to  account  for  such  fees:  People  v.  Barnwell,  41  HL  App.  617; 
Weisenborn  v.  People,  53  HI.  App.  32,  58  lU.  App.  114. 

O.  BUsappropriatlon  of  Funds  Beceived  by.— The  general  prin- 
ciple determining  the  liability  of  the  official  bondsmen  of  a  clerk 
of  court  for  his  defaults  with  respect  to  money  held  by  him  is  un- 
doubted. As  in  the  case  of  other  officers,  the  sureties  are  respota- 
sible  only  for  such  funds  as  were  held  by  him  in  his  official  ca- 
pacity, and  while  there  is  consideriible  apparent  conflict  as  to  the 
funds  which  are  to  be  deemed  held  officially  as  clerk,  this  is  due 
not  so  much  to  any  diversity  in  the  application  of  the  general  prin- 
ciple, as  to  the  varying  authority  with  which  clerks  of  courts  are 
invested  in  the  various  jurisdictions  With  respect  to  the  receipt  of 
money. 

Where,  for  instance,  a  clerk  of  court  has  no  authority  to  receive 
money  in  payment  of  a  judgment,  his  conversion  of  such  money,  if 
paid  to  him,  is  a  breach  of  a  piivate  tru9t,  but  not  of  his  offieial 
bond:  Lewis  v.  Johnson,  I  Walk.  260.  In  those  jurisdictions,  on  the 
other  hand,  in  which  he  is  by  the  prevailing  practise  or  by  statute 
the  proper  party  to  receive  payment  of  a  judgment,  his  official 
bond  covers  the  faithful  application  of  money  received  for  that  pur- 
pose: Morgan  ▼.  Long,  29  Iowa,  434;  McDonald  v.  Atkins,  13  Neb. 
568,  14  N.  W.  632;  Appeal  of  Deckert,  5  Watts  k  S.  342.  See,  alao, 
Stote  ▼.  MeOiU,  15  Ind.  App.  289,  40  N.  E.  1016,  43  N.  £.  1016.    8o 


Jan.  1902.]  Fbllbb  v.  Gatbb.  56V 

in  Indiana  it  was  held  that  money  received  hy  a  clerk  which  waji 
paid  into  court  as  tender,  withont  any  order  of  court,  was  received 
by  him  without  authority,  and  not  being  held  by  him  in  an  official 
capacity  could  not  render  his  sureties  liable:  Carey  ▼.  State,  34 
Ind.  105.  Where,  however,  a  clerk  is  authorised  to  receive  such 
payments,  he  is  liable  on  his  official  bond  therefor:  Billings  v. 
Teeling,  40  Iowa,  607;  Howard  v.  United  States,  102  Fed.  77,  42  G. 
C  A.  169;  United  States  v.  Howard,  93  Fed.  719;  affirmed,  184  U. 
S.   676,  22  Sup.  Gt.  Bep.   543. 

A  clerk  of  court  has,  in  the  absence  of  statute  authorizing  it,  no 
authority  as  clerk  to  receive  money  belonging  to  an  estate  which 
ia  in  the  course  of  administration,  and  if  he  receives  such  money 
from  a  guardian  or  administrator  (even,  it  is  held  in  Indiana,  where 
its  payment,  to  him  is  ordered  by  the  court),  his  sureties  are  not 
responsible  for  his  delinquencies  in  respect  to  it:  Jenkins  v.  Lemonds, 
29  Ind.  294;  Scott  v.  State*  46  Ind.  203;  Bowers  v.  Fleming,  67  Ind. 
641.  But  where  such  payment  is  authorized  by  statute,  or  the  of- 
^eial  bond  of  the  clerk  is  made  to  cover  aU  money  which  may  come 
into  his  hands  ''by  virtue  or  color  of  his  office,"  money  received 
from  an  administrator  or  guardian  and  paid  to  him  in  his  capacity 
as  c]erk  is  covered  by  his  official  bond:  Henry  v.  State,  98  Ind. 
381;  Latham  v.  Fagan,  51  N.  G.  62;  Thomas  v.  Gonnelly,  104  N.  C. 
342,  10  a  E.  520;  Stote  v.  Boone,  108  N.  G.  78,  12  S.  E.  897.  So 
v;here  money  received  as  the  proceeds  of  a  judicial  sale,  whether 
made  by  fecial  commissioners  or  by  the  clerk  himself  in  the 
capacity  of  a  commissioner,  is  by  the  court  ordered  paid  into  court, 
the  clerk  of  court  holds  it  thereafter  in  his  official  capacity  as 
clerk,  and  his  bondsmen  are  responsible  for  his  conduct  in  respect 
to  it:  Waters-Gates  v.  Wilkinson,  92  Iowa,  129,  60  N.  W.  514;  Dirks 
V.  Juel,  59  Neb.  353,  80  N.  W.  1045;  Judges  v.  Deans,  9  N.  G.  93; 
Alexander  v.  Johnston,  70  N.  C.  295;  Havens  v.  Lathene,  75  N.  G. 
505;  Sharpe  v.  Gonnelly,  305  N.  G.  87,  11  8.  E.  177;  Fort  v.  Ass- 
man,  38  S.  G.  253,  16  S.  E.  887;  Waters  t.  Garrol,  9  Yerg.  102. 
Gonversely,  where  money  held  by  him  as  clerk  is  directed  by 
the  court  to  be  invested  by  him  as  receiver  or  trustee,  until  such 
investment  is  made  he  continues  to  hold  as  clerk,  and  his  official 
bond  as  such  covers  such  money:  Goleman  v.  Ormond,  60  Ala.  328; 
McPhillips  V.  McGrath,  117  Ala.  549,  23  South.  721.  See,  also.  State 
V.  Watson,  88  Ark.  96.  Money  paid  as  a  deposit  in  condemnation 
proceedings  to  a  clerk  in  vacation  (State  v.  Enslow,  41  W.  Va.  744, 
24  S.  E.  679),  or  without  an  order  of  court  where  this  is  necessary 
(People  T.  Gobb,  10  Golo.  App.  478,  61  Pac  t(23),  is  not,  it  is  held, 
received  by  the  clerk  officially,  nor  are  his  sureties  responsible  for 
itt,  disposition.  Where,  however,  such  money  has  been  received  un- 
der order  of  court,  or  in  pursuance  of  statute,  it  is  covered  by 
tk«  offieial  bond  of  the  clerk:  Wilson  t.  People,  19  Golo.  190,  41 


568  American  State  Beports,  Vol.  91.        [Oregon^ 

Am.  St.  Rep.  243,  34  Pac.  944;  Northern  Pac.  Ry.  Co.  ▼.  Owens,  86- 
Minn.  18,  ante,  p.  336,  90  N.  W.  371. 

From  the  various  illustrations  above  given,  it  is  evident  that  tbe^ 
liability  of  the  sureties  of  a  clerk  of  eourt  for  moneys  paid  him  i» 
dependent  wholly  upon  his  right  to  receive  them.  If  no  authority 
exists  for  their  payment  to  or  receipt  by  him,  his  sureties  are  in 
no  way  answerable  for  his  disposition  of  such  funds.  If,  on  the 
other  hand,  they  are  paid  to  him  as  clerk  of  court,  where  their 
receipt  is  authorized  by  a  competent  order  of  eourt  or  by  statute* 
they  are  covered  by  his  official  bond.  In  addition  to  the  cases  al- 
ready cited,  see,  as  instances  in  which  the  money  was  deemed  to- 
have  been  received  in  his  official  capacity  as  clerk,  and  Ms  bondsmen 
were  held  answerable  therefor:  Jewett  ▼.  State,  94  Ind.  549;  Sulli- 
van V.  State,  121  Ind.  342,  23  N.  E.  150;  Mahaska  Co.  v.  Seaxle,. 
44  Iowa,  492;  Cooper  v.  Williams,  75  N.  C.  94;  Allen  v.  Perkins 
rXenn.  Ch.  A  pp.),  45  S.  W.  445.  Compare,  however,  Hardin  v. 
Carrico,  60  Ky.  (3  Met.)  289,  distinguished  in  State  v.  Watson,  3S 
Ark.  96.  A  bond  of  a  clerk  of  court  does  not  cover  tavern  licenses- 
or  school  funds  received  by  him,  where  it  was  not  part  of  the 
duty  of  a  clerk  to  collect  such  licenses  or  take  charge  of  sae'n 
funds:  State  v.  Norwood,  12  Md.  177;  State  v.  Moeller,  48  Mo.  3^^. 
The  sureties  of  such  clerk  cannot,  however,  defend  against  liability 
for  the  proceeds  of  a  sale  of  land  officially  received  by  their  prin- 
cipal on  the  ground  that  the  sale  was  invalid,  because  one  who 
was  made  a  defendant  by  publication  was  dead,  where  bis  heirs  are 
ratifying  the  sale  by  seeking  to  recover  the  fund:  Ferrell  v.  Grigsby 
(Tenn.),  51  S.  W.  114. 

2.    City  Clerks;  Ooiinty  Glerks,  etc. 

A.  Misappropriation  of  Funds.— The  principles  thus  applied  to 
money  or  funds  received  by  clerks  of  eourt  have  the  same  ap- 
plication to  other  officers  of  the  same  class,  such  as  city  or  county 
clerks.  The  sureties  on  the  bonds  of  these  officials  are  liable  for 
Iheir  disposition  of  all  moneys  (as  license  fees,  etc)  coming  into 
their  hands,  which  by  virtue  of  their  office  they  are  entitled  to  re- 
ceive: Orton  V.  City  of  Lincoln,  156  HI.  499,  41  N.  E.  159,  reversing 
56  111.  App.  79;  Linch  v.  City  of  Litchfield,  IC  HL  App.  612;  Camp- 
bell V.  People,  154  111.  595,  39  N.  £.  578,  affirming  52  111.  App. 
238.  Under  a  bond  conditioned  to  pay  over  .  all  money  received 
''according  to  law  and  the  ordinances  of  the  city,''  the  sureties 
of  a  city  clerk  cannot  defend  on  the  ground  that  the  moneys  con- 
verted by  him  were  received  under  an  ordinance  void  because  by 
the  law  all  such  money  should  be  paid  to  the  city  treasurer:  Mid- 
dleton  V.  State,  120  Ind.  166,  23  N.  E,  123.  Compare  Meagher  Co.  v^ 
Gardner,  18  Mont.  110,  44  Pac.  407.  The  sureties  of  a  eounty  elerk 
are   not   responsible  for  money  paid   their  principal  after   the   ex» 


Jan.  1902.]       Pblleb  v.  Gates.  569 

piration  of  hi«  term  of  office:  People  ▼.  Toomey,  122  HI.  308,  13 
N.  E.  521,  affinning  25  HI.  App.  46. 

B.  Issnance  of  Warrants.— Where  it  is  the  duty  of  a  clerk  of  a 
city  or  county  to  issue  warrants  for  claims  duly  allowed  by  the 
proper  board,  the  issuance  of  warrants  which  have  not  been  al- 
lowed, or  for  a  sum  in  excess  of  that  allowed,  constitutes  a  breach 
of  his  official  bond.  The  fact  that  the  warrant  is  drawn  payable 
to  himself  does  not  change  his  act  from  an  official  to  an  individual 
one,  nor  does  the  negligence  of  another  officer  in  countersigning  or 
paying  such  warrant  relieye  the  sureties  of  the  clerk  from  liability: 
Campbell  v.  People,  154  111.  595,  39  N.  E.  578,  affirming  52  HI.  App. 
338;  Spindler  t.  People,  154  HI.  637,  39  N.  E.  580,  affirming  51  111. 
App.  613;  ^rmington  v.  State,  45  Ind.  10;  Allen  ▼.  State,  6  Kan. 
App.  915,  51  Pac.  572;  People  v.  Treadway,  17  Mich.  480;  Lewis 
V.  State,  65  Miss.  468,  4  South.  429.  Where,  however,  a  county 
elerk  has  no  power  to  certify  bills  allowed  by  the  county,  his  false 
certification  of  a  bill  in  his  favor  can  give  a  purchaser  no  right 
of  action  on  his  official  bond:  Ottenstein  v.  Alpaugh,  9  Neb.  237,  2 
N.  W.  219. 

8.    Acts  of  Olerk  of  Ctourt  in  Ez-offlclo  or  Appointive  Capacities. 

A.  As  License  or  Tax  Collector.— The  undertaking  of  the  sureties 
on  the  bond  of  a  elerk  of  court  covers,  it  is  held  in  Wilmington  y. 
MeNutt,  78  N.  0.  177,  the  performance  by  him  of  duties  as  li- 
cense collector  imposed  subsequently  to  the  execution  of  the  bond, 
such  duties  being  regarded  as  connected  with  and  having  relation 
to  his  existing  duties.  In  Auditor  of  Public  Accounts  v.  Dryden,  3 
Leigh  (Va.),  703,  on  the  other  hand,  it  was  held  that  the  sureties 
of  a  clerk  of  court  were  not  liable  for  his  defaults  as  ex-officio  tax 
eoUeetor,  although  no  separate  bond  was  given  by  him  in  the  latter 
capacity,  the  bond  as  clerk,  in  view  of  the  history  of  the  statutes 
of  the  state  in  this  regard,  covering  only  the  clerical  duties  of  the 
office.  In  the  case  of  clerks  of  towns  or  counties  who  are  ez-offieio 
eoUectors  of  taxes  and  licenses,  their  official  bonds  as  clerk  are 
ordinarily  held  to  cover  their  acts  and  defaults  in  their  ex-offieio 
capacity:  Orman  v.  City  of  Pueblo,  8  Colo.  292,  6  Pac.  931;  Village 
of  Allegan  v.  Chaddock,  119  Mich.  688,  78  N.  W.  892;  Van  Valken- 
burgh  V.  City  of  Paterson,  47  N.  J.  L.  146. 

B.  As  Recorder,  etc.— Where  a  separate  bond  is  given  by  a  clerk 
of  court  for  the  proper  performance  of  his  duties  as  ex-officio 
county  recorder,  his  official  bond  as  clerk  is  not  answerable  for  fees 
received  by  him  as  recorder:  People  v.  Stewart,  6  HL  App.  62.  In 
State  V.  White,  152  Mo.  416,  53  S.  W.  1064,  however,  where  the 
separate  bond  given  by  him  as  recorder  was  for  ''the  faithful  per- 
formance of  all  the  duties  enjoined  on  him  by  law  as  recorder  and  for 
the  delivery  up  of  the  records,  books,  papers,"  etc,  to  his  suc- 
cessor, while  one  of  the  duties  required  by  statute  of  clerks  who 


670  AiiBBiCAN  Stats  Bkporis^  Vol.  91.        [Oregon, 

were  ex-offieio  reeorders  was  to  report  all  f eei  received  by  tlieiB 
as  recorders,  it  was  held  that  the  bond  as  recorder  covered  only 
the  delivery  of  the  records  to  his  successor,  while  the  bonds  as  derk 
covered  the  acconnting  for  all  fees  received,  although  received  as 
recorder.  For  a  similar  holding  in  the  case  of  a  county  derk  who 
was  ez-officio  a  clerk  of  the  county  court,  giving  separate  bonds  for 
his  acts  in  each  capacity,  see  Satterfleld  v.  People,  104  HL  448. 

O.    Under  Appointment  by  Ctourt 

(1)  Hi  CtoneraL — The  most  frequent  case  in  which  there  arises  a 
question  as  to  the  liability  of  the  sureties  on  the  bond  of  a  clerk 
for  acts  done  by  him  in  an  appointive  or  ex-officio  capacity  is  that 
in  which  a  clerk  of  court  acts  under  the  appointment  of  court  as  a 
receiver  or  commissioner,  or  in  the  discharge  of  functions  of  a  simi- 
lar nature.  To  a  great  extent  the  question  depends  upon  the  statu- 
tory provisions  in  each  state  relating  to  the  duties  of  clerks  and 
the  appointment  of  officers,  such  as  receivers. 

(2)  Where  Separate  Bond  is  Beqnired.— Where  a  separate  bond 
is  required  of  one  who  acts  as  special  commissioner  or  in  a  mwiiit^y 
capacity,  a  clerk  acting  as  such  commissioner  acts  under  his  special 
bond,  and  not  under  his  general  official  bond  as  clerk  of  the  court: 
Alcorn  v.  State,  57  Miss.  273.  This  may,  of  course,  be  changed  by 
statute,  and  the  bond  of  the  officer  as  clerk  of  court  made  to  cover 
his  acts  as  commissioner,  although  he  is  required  by  law  to  give  a 
special  bond  as  commissioner:  Williams  v.  Bowman,  3  Head  (Tenn). 
678,  under  statute  changing  rule  of  Waters  v.  Carrol,  9  Yerg.  (Tenn.) 
102.  The  statute  referred  to  in  the  case  cited  from  Tenneasee, 
passed  in  1849,  was  held  changed  by  a  subsequent  statute  of  that  stats 
passed  in  1852,  under  which  it  was  held  that  the  sureties  of  a  clerk 
of  court  as  such  were  not  liable  for  his  acts  as  commissioner  of 
sales:  State  v.  Blakemore,  7  Heisk.  (Tenn.)  688;  unless,  it  seems, 
he  had  given  no  separate  bond  in  the  latter  capacity:  Tanner  t. 
Bancy,  4  Heisk.  482.  Where  such  separate  bonds  are  given,  the  ob- 
ligation of  the  sureties  on  the  official  bond  covering  his  duties  aa 
commissioner  are  responsible  only  for  moneys  coming  into  his  hands 
from  sales  made  under  the  orders  of  court;  for  other  moneys,  hew- 
ever  received,  his  bond  as  clork  is  answerable:  State  v.  Blakemore, 
7  Heisk.  (Tenn.)   638;  Bowen  v.  Evans,  1  Lea  (Tenn.),  107. 

Similarly,  where  a  clerk  of  court,  although  required  to  serve  as 
administrator  of  an  estate  if  appointed  as  such  by  the  eonrt|  gives 
a  separate  bond  to  cover  his  duties  as  administrator,  his  general 
official  bond  as  clerk  does  not,  it  is  held  in  McNeil  t.  Smith,  65 
Ga.  313,  cover  his  delinquencies  as  administrator. 

(3)  Whers  Separata  Bond  Is  not  Beq.iiirod.— Where  a  dark  of 
court  is  ex-officio  a  register  or  master  in  chancery,  his  oAeial  bond 
is,  it  is  held,  responsible  for  his  acts  as  a  eonunissioner  in  ekaaeeij 


Jan.  1902.]  Fbllbb  v.  Oates.  671 

in  making  a  sale:  State  ▼.  WatMiiy  3S  Ark.  96;  Judges  ▼.  Beans,  9 
K.  O.  (2  Hawkfl  )  93;  espeeiallj  where  by  statute  the  court  is  em- 
poirered  ''to  appoint  the  elerk  or  some  other  lit  person":  State  ▼• 
Morrison,  63  N.  G.  508;  State  v.  Blair,  76  N.  C.  78.  (Compare,  also, 
Broughton  ▼.  Haywood,  61  N.  G.  380.)  See,  also.  Fort  y.  Assman, 
S8  S.  G.  253,  36  S.  K  887.  If,  under  such  a  statute,  a  clerk  is  ap- 
pointed to  make  a  sale,  it  is  to  be  taken  that  he  is  appointed  in  his 
official  capacity,  unless  this  is  negatived  by  the  words  of  the  ap- 
pointment: State  V.  Morrison,  63  N.  C.  508. 

The  position  of  a  master  in  chancery  is  in  many  regards  incom- 
patible with  the  exercise  by  him  of  the  functions  of  receiver,  so 
much  so  that  in  England  his  appointment  as  such  is  never  per- 
mitted. In  this  country,  however,  the  incompatibility  has  not  been 
regarded  so  seriously,  and  in  view  of  the  piactise  of  the  courts 
in  appointing  masters  in  chancery  as  receivers,  it  was  held  in  an 
early  case  in  South  Carolina  (Lowndes  v.  Pinckney,  1  Bich.  £q. 
155)  that  the  official  bond  of  a  master  in  chancery  as  such  was 
answerable  for  his  defaults  as  receiver.  In  Kerr  v.  Brandon,  84 
N.  C.  128,  under  a  statute  authorizing  the  court  to  appoint  ''some 
discreet  person"  a  receiver  to  take  possession  of  the  ward's  estate 
on  the  removal  of  the  guardian,  an  appointment  of  one  who  was 
clerk  of  court,  but  without  reference  to  the  office  held  by  him,  did 
not,  it  was  held,  render  the  sureties  on  his  official  bond  as  clerk 
liable  for  his  acts  as  receiver.  This  led  to  a  change  of  the  statute, 
authorizing  the*court  to  appoint  "the  clerk  of  the  superior  court 
or  some  discreet  person,"  and  the  official  bond  of  the  elerk  as 
such  has  since  been  deemed  to  cover  the  duties  devolving  on  him 
iindcr  on  appointment  as  receiver:  Syme  v.  Bunting,  91  N.  C.  48; 
State  V.  Boone,  108  N.  G.  78,  12  S.  E.  897;  State  v.  TJpchurch,  110 
?:.  C.  62,  14  a  E.  642;  Waters  v.  Melso,  112  N.  C.  89,  16  S.  E.  918; 
<listiiiguishing  Bogers  v.  Odoms,  86  N.  C.  432.  Whether  or  not  the 
1  ond  of  a  register  or  master  in  chancery  covers  his  acts  in  the  ap- 
}>ointive  capacity  of  receiver  if  funds  are  placed  in  his  hands  to 
l.e  invested  by  him  as  receiver,  until  he  does  so  invest  them  he 
holds  the  funds  as  register,  and  his  official  bond  as  such  covers 
their  proper  disposition:  Coleman  v.  Ormond,  60  Ala.  328;  McPhil- 
lips  V.  McQrath,  117  Ala.  549,  23  South.  721. 

e.  Anditon.— Perhaps  the  most  important  of  the  duties  usually 
assigned  to  a  city  or  county  auditor  is  the  auditing  of  bills  against 
the  municipality  and  the  issuance  of  warrants  on  the  treasury  for 
such  as  are  allowed.  In  the  issuing  of  such  warrants  he,  of  course, 
TiCts  officially,  and  if  he  issues  false  or  fraudulent  ones,  the  fact 
that  they  are  drawn  payable  to  himself  does  not  make  his  act 
extraofflcial,  or  the  less  covered  by  his  official  bond.  For  such  an 
net  the  sureties  on  the  latter  are  answerable:  State  v.  Kent,  53  Ind. 
112;  Mahaska  v.  Buan,  45  Iowa,  328;  Jones  v.  Commissioners  of 


672  Ameeioan  State  Reports,  Vol.  91.        [Oregon, 

Lucas  Co.,  57  Ohio  St.  189,  63  Am.  St.  Bep.  710,  48  N.  E.  882.  The 
attestation  of  fraudulent  or  overissued  county  bonds  and  their 
issuance  by  the  county  auditor  is  also  a  breach  of  his  official  bond: 
National  Bank  of  Bedemption  v.  Butledge,  84  Fed.  400.  Where 
funds  are  received  by  him  which  the  law  gave  him  no  authority 
as  auditor  to  receive^  he  holds  them  in  his  personal  capacity,  and 
his  bondsmen  cannot  be  held  answerable  therefor:  Ban  Luis  Obisi>o 
County  ▼.  Farnum,  108  Cal.  562,  41  Pac.  445  (license  fees);  State 
V.  Bonner,  72  Mo.  387  (school  funds);  City  of  St.  Lonis  v.  Sickles. 
52  Mo.  122  (money  received  for  disbursement);  State  v.  Moore,  56 
Neb.  82,  76  N.  W.  474  (insurance  fees).  For  money,  on  the  other 
hand,  which  he  was  empowered  to  receive,  as  the  proceeds  of  eity 
bonds  negotiated  by  him  (Stevenson  v.  Bay  City,  26  Mich.  44), 
or  money  received  as  ez-offieio  clerk  of  the  board  of  county  com- 
missioners while  acting  as  its  purchasing  agent  (County  of  Snohom- 
ish ▼.  Ruft,  15  Wash.  637,  47  Pac.  35,  441),  his  official  bond  is  an- 
swerable. 

f.  Saperylson,  Tmstees,  etc.~On  the  same  principle  the  sureties 
of  a  town  supervisor,  county  or  township  trustee,  etc.,  while  re- 
sponsible for  moneys  which  their  principal  is  authorized  by  law 
to  receive  (State  v.  Wright,  50  Conn.  580),  are  not  answerable  for 
funds  which  he  receives  without  any  authority  whatever  derived 
from  his  office:  People  v.  Pennock,  60  N.  Y.  421.  If,  however,  it 
be  his  duty  as  county  trustee  to  collect  the  taxes  of  the  county,  the 
illegality  of  the  tax  furnishes  his  sureties  no  defense  for  his  re- 
fusal to  pay  over  the  amount  collected:  State  v.  Hays,  99  Tenn. 
542,  42  S.  W.  266.  See,  also.  III,  b,  3,  B,  C.  If  the  bond  of  sneh 
an  officer  is  conditioned  that  he  shall  collect  all  moneys  due  the 
county  or  township  as  the  case  may  be,  his  sureties  are  liable,  it  is 
beld,  for  his  failure  to  collect  the  amount  of  a  shortage  occurring 
during  his  predecessor's  term,  unless  they  show  that  it  could  not 
have  been  collected:  State  v.  Mock,  21  Ind.  App.  629,  52  N.  £.  998. 
Being,  however,  answerable  for  his  official  acts  only,  they  cannot 
be  made  responsible  for  his  act  in  fraudulently  securing  from  the 
auditor  and  cashing  a  warrant  for  his  salary,  when  one  warrant 
therefor  had  already  been  issued  and  negotiated:  State  ▼.  Keifer, 
120  Ind.  113,  22  N.  E.  107.  For  the  liability  of  a  township  trustee 
and  his  bondsmen  under  an  Indiana  statute  rendering  sueh  an  of- 
ficer liable  ''personally  and  on  his  official  bond''  for  the  amount 
of  any  indebtedness  he  may  contract  in  the  name  or  in  behalf  of 
the  township,  except  by  order  of  the  board  of  county  eommissioners, 
see  State  v.  Howes,  112  Ind.  323,  14  N.  E.  87;  State  ▼.  Helms,  135 
Ind.  122,  35  N.  E.  893;  State  v.  Stout,  26  Ind.  App.  446,  69  N.  E. 
1091;  Stanton  v.  Shipley,  27  Fed.  498;  State  v.  Glover,  156  U.  8. 
513,  15  Sup.  Ct.  Bep.  186. 


Jan.  1902.]  Fblleb  t^..  Gates.  573 

* 

g.    Public  Inspectors,  Bxiperintendents,  etc. 

1.  For  Injuries  ftom  Failure  to  Inspect*  etc—Where  a  bond  is 
required  of  a  public  inspector  or  superintendent,  it  is  ordinarily 
held  breached  if  throngh  hi?  failure  to  exercise  due  diligence  in 
the  performance  of  his  -  duties.  Thus,  a  superintendent  of  streets 
ie  liable  on  his  official  bond  to  one  injured  by  his  neglect  to  enforce 
the  laws  and  ordinances  relative  to  streets:  Goodsell  ▼.  Ashworth, 
96  CaL  397,  31  Pac.  261;  and  in  County  Court  etc.  ▼.  Fasset,  65 
Mo.  418,  the  sureties  on  the  bond  of  an  inspector  of  coal-oil  were 
held  responsible  for  the  death  of  the  plaintiff's  wife  caused  by 
the  explosion  of  a  lamp  filled  with  a  poor  grade  of  oil,  which  the 
refiner  had  put  into  casks  negligently  branded  "approved"  by  the 
inspector,  while  they  were  empty.  In  Kentucky,  however,  it  was 
held  in  Coleman  v.  Eaker,  63  S.  W.  484,  that  there  could  be  no  recoy> 
ery  on  the  bond  of  a  county  supervisor  of  roads  for  personal  injuries 
resulting  from  the  breaking  of  a  bridge  or  culvert  forming  part  of  a 
public  road.  In  the  view  of  the  court,  liability  for  such  injuries  was 
not  contemplated  by  the  legislature  in  requiring  the  bond. 

2.  For  Money  Beceiyed  by.— The  official  bonds  of  officers  of  this 
class,  like  those  of  any  other,  are  responsible  for  moneys  received 
by  them  as  inspection  fees,  where  their  receipt  is  authorized  by 
law.  That  the  inspection  was  not  performed  is  no  defense  for  fail- 
ure to  turn  over  fees  actually  received:  Blaco  ▼•  State,  58  Neb. 
557,  78  N.  W.  1056.  In  Illinois,  if  at  the  time  of  the  execution  of 
the  bond  the  inspector  of  grain  was  not  authorized  to  receive  any 
fees  for  inspection,  the  sureties  on  the  bond  of  such  officer  are  not 
responsible  for  his  failure  to  account  for  fees  received  under  a 
law  subsequently  enacted,  his  duties  in  this  respect  not  being  re- 
garded as  germane  to  those  imposed  upon  him  at  the  time  the  bond 
was  executed:  People  v.  Tompkins,  74  lU.  482.  A  bond  executed 
subsequent  to  the  enactment  of  the  law  providing  for  the  collection 
of  fees,  is,  however,  security  for  his  proper  disposition  of  fees  col- 
lected. 

h.    Judicial  Officers. 

1.  In  GeneraL— Ordinarily,  judicial  officers  are  not  required  to 
give  bonds  for  the  faithful  performance  of  their  duties.  These 
latter  are  in  the  main  of  a  nature  such  that  the  sanctity  of  the 
official  oath  and  the  conscience  of  the  officer  must  furnish  the  only 
guaranty  of  their  conscientious  performance.  From  justices  of  the 
peace,  however,  who,  in  addition  to  their  judicial  duties*  are  fre- 
quently  invested  with  numerous  ministerial  functions,  and  whose 
duties  in  oertain  connections  necessitate  the  receipt  of  money  from 
third  persons,  an  official  bond  is  generally  required.  And  in  some 
states  such  a  bond  is  exacted  of  judges  of  the  oourts  having  pro- 
bate jurisdiction,  and  therefore  charged'  with  the  administration  and 


574  Akbbican  State  Bspobts,  Vol.  91.        [Oregon, 

control  of  the  fundi  belonging  to  the  estates  of  ineompetentsi,  de- 
cedents, etc. 

2.    mnisterial  Acts. 

A«    Justice  of  Peace.— The  ministerial  acts  required  of  a  justice 
of  the  peace  and  the  failure  to  perform    or  an  erroneous  perform- 
ance of  which  renders  liable  the  sureties  on  his  official  bond,   are 
usually  of  the  same  nature  as  those  which  in  the  superior  coarts 
arc    made    the    duty    of    clerk    of    court    to    perform:    See    supra, 
568-572.    Thus,  the  sureties  on  the  official  bond  have  been  held  an- 
swerable for  his  failure  to  file  an  appeal  within  the  period  prescribed 
by  law:   State  ▼.   Houston,  4  Bla(^.    (Ind.)    291;   for   his   failure 
to  docket  a  judgment:  Larson  v.  Kelly,  64  Minn.  51,  66  N.  W.  130; 
Fairchild  v.  Keith,  29  Ohio  St.  156;  for  his  refusal  to  issue  exe- 
cution on  a  judgment  in  replevin:  State  v.  Garrick,  70  Md.  586,  14 
Am.  St.  Bep.  387,  7  Atl.  559.    So  the  neglect  of  a  justice  of  the 
peace   to  issue  execution   and   collect   a   judgment,   where   required 
to  do  so  by  statute,  constitutes  a  breach  of  his  bond:   Carpenter 
V.  Warner,  38  Ohio  St.  416;  Gaylor  ▼.  Hunt,  23  Ohio  St.  255.    This 
neglect,  however,  can  give  rise  to  a  cause  of  action  on  his  official 
bond  in  favor  of  the  judgment  creditor  only,  and  a  surety  of  the 
debtor   who   has   been   compelled   to   pay  the  debt   cannot    recover 
from  the  sareties  of  the  justice  of  the  peace  on  the  ground  that  if 
the  latter  had  issued  execution,  the  plaintiff's  principal,  being  sol- 
vent at  the  time,  would  have  paid  the  debt:  Dehu  v.  Heckman,  12 
Ohio  St.  181.    The  sureties  of  a  justice   of  the  peace  are  respon- 
sible for  his  abuse   of   authority  in  unlawfully  issuing   execution 
under  which  the  property  of  the  plaintiif  was  sold:  Fox  v.  Meachan, 
G  Neb.  630«    If,  in  attempting  to  take  the  undertaking  of  a  judg- 
ment debtor  to  stay  execution,  a  justice  of  the  peace  emits  to  write 
anything   above  the  surety's  name   on   the   docket,   the   judgment 
creditor  has  no  right  of  action  on  his  official  bond  for  such  omission, 
since  there  was  no  damage  as  a  legal  result  of  it.    There  being  ■• 
undertaking  to  stay  execution,  execution  might  have  been  taken  out 
by  the  judgment  creditor,  and  the. neglect  of  the  justice  cannot  be 
said  to  have  made  collection  of  the  debt  impossible:  Gaylor  ▼.  Hunt, 
23  Ohio  St.  255. 

B.  Fxobate  Jndge^  etc^A  probate  judge  whose  duty  it  is  under 
the.  law  to  keep  an  index  of  all  deeds  and  mortgages  is  responsible 
on  his  official  bond  for  the  proper  performance  of  this  duty:  Norton 
v.  Kumpe,  121  Ala.  446,  25  South.  841.  So  his  failure  to  issue  a 
tax-roll  to  the  tax  collector  when  required  to  do  so  by  statute  is 
a  failure  to  perform  a  ministerial  duty,  for  which  his  sureties  are 
answerable:  Branch  v.  Davis,  29  Fed.  888.  On  the  ground  that  the 
plaintiff  in  an  action  on  an  official  bond  must  have  a  direct  and 
proximate  interest  in  the  official  act  or  omission  complained  of  it 
was  held  in  Savage  v.  Matthews,  98  Ala.  535,  13  South.  328,  that 


Jan.  1902.]  Fbllbb  v.  Gates.  575 

tbe  sureties  of  a  probate  judge  Were  not  liable  for^liis  aet  in  eare- 
lessly  or  fraudulently  issuing  an  illegal  warrant  on  tho  eouaty 
treasurer,  to  one  who  had  bought  it,  such  warrants  not  haying  been 
intended  for  general  eireulation.  The  bondsmen  of  such  a  judge  are 
reaponsibley  however,  where  instead  of  ordering  money  in  the  hands 
of  administrator  to  be  invested,  as  required  by  law,  he  ordered  it 
paid  to  himself  and  converted  it,  although  he  had  no  authority  un- 
der the  law  to  make  the  order:  Smith  v.  Lovell,  2  Mont.  332.  In 
aeeordanee  with  principles  already  discussed  (II,  i),  the  sureties 
of  a  probate  judge  were  in  Jeffreys  v.  MalonOy  105  Ala.  489^  17 
South.  21,  held  not  liable  for  a  statutory  penalty  imposed  by  law 
on  their  principal  for  the  improper  issuance  of  a  marriage  lieense. 

8.    Judicial  Acts. 

A.  General  Bule.— It  is  quite  naturally  to  the  bonds  of  officers 
of  the  class  now  under  consideration  that  the  most  frequent  ap- 
plication is  made  of  the  principle  already  generally  considered  (II, 
e)y  that  official  bonds  only  cover  acts  which  are  not  judicial  in 
their  nature.  Accordingly,  where  the  bond  of  a  justice  of  the 
r-eaee  was  conditioned  for  the  due  performance  by  him  of  his 
*' judicial  duties,''  it  was  held  that  the  evident  intent  of  the  par- 
ties was  that  it  should  cover  his  ''official  duties,''  and  that  so 
read,  it  was  breached  ouly  by  a  failure  to  perform  or  the  improper 
performance  of  a  ministerial  duty:  Larson  v.  Kelly,  64  Minn.  51, 
C6  N.  W.  130. 

B.  What  Deemed  Judicial  Acts.— In  accordance  with  the  general 
rule  that  acts  of  a  judicial  nature,  however  wrongful,  do  not  con- 
stitute breaches  of  the  official  bond  of  an  officer,  it  is  held  that 
the  sureties  on  the  bond  of  a  justice  of  the  peace  are  not  responsi- 
ble where  their  principal,  in  trying  a  cause,  argued  with  the 
jury,  or  maliciously  refused  an  appeal,  unless  certain  persons  were 
procured  as  sureties:  Irion  v.  Lewis,  56  Ala.  190.  Likewise,  in 
making  a  commitment  for  contempt,  he  is  deemed  to  act  judicially, 
and  however  malicious  his  motive,  his  sureties  are  not  answerable 
for  his  act:  Coleman  v.  Boberts,  113  Ala.  323,  59  Am.  St.  Bep.  Ill, 
21  South.  449.  Where,  however,  before  ordering  an  arrest  in  a  civil 
aetion,  a  justice  is  by  law  required  to  take  a  bond  from  the  peti- 
tioner, if  he  fails  to  do  so,  his  omission  is  with  respect  to  a  min- 
isterial duty,  and  constitutes  a  breach  of  his  official  bond:  Place 
v.  Taylor,  22  Ohio  St.  317.  Ordinarily,  judicial  action  on  the  part 
of  a  justice  of  the  peace  is  over  when  he  has  considered  and  de- 
termined the  judgment  to  be  rendered.  Acts  thereafter  to  be  per- 
formed, such  as  the  doeketing  of  the  judgment  or  issuance  of  execu- 
tion, are  ministerial  duties  for  a  failure  to  perform  which  his  bonds- 
men are  responsible:  Larson  v.  Kelly,  64  Kinn.  51,  66  N.  W.  130. 
In  the  taxation  of  costs,  however,  a  justice  acts  judicially:  State 
V.  Jackson,  68  Ind.  58.    The  bond  of  a  justice  is  breached  where 


676  American  State  Reports,  Vol.  91.         [Oregon, 

he  certifies  the  acknowledgment  of  a  deed  by  a  married  woman 
and,  contrary  to  the  averments  of  the  certificate,  she  never  appeared 
before  him:  McLendon  v.  American  Freehold  etc  Co.,  119  Aia. 
518.  24  South.  721.  The  fact  that  the  duties  of  an  officer  are  in 
part  judicial  furnishes  no  defense  to  an  action  on  his  bond  for 
failure  to  perform  or  the  improper  performance  of  purely  minis- 
terial duties:  People  v.  Faulkner,  38  Hun,  607.  Nor  where  a  pro- 
bate judge  is  required  to  grant  a  liquor  license  where  a  certain  num- 
ber of  freeholders  sign  a  petition,  is  the  duty  rendered  judicial  by 
the  fact  that  he  must  determine  whether  the  parties  signing  are 
freeholders:  Grider  v.  Tally,  77  Ala.  422,  54  Am.  Bep.  65. 

O.  Ctorruptly  Done.— In  some  jurisdictions,  however,  the  fact 
that  an  act  is  in  its  nature  judicial  furnishes  no  exemption  from 
liability  to  the  officer  or  his  sureties  where  it  is  corruptly  done. 
If  in  these  states  a  justice  of  the  peace  corruptly  issues  sammons 
before  a  debt  is  due,  and,  acting  corruptly  throughout,  secures 
a  false  return  of  service,  renders  judgment  and  sells  the  property 
of  plaintiff,  his  official  bond  is  answerable  therefor:  State  v.  FUna. 
8  Blackf.  72,  23  Am.  Dec.  380;  Go  wing  v.  Gowgill,  12  Iowa,  495. 

D.  Approval  of  Bonds.— In  Kentucky  there  is  recognized  what 
is  said  in  Commonwealth  v.  TUton,  23  Ky.  Law  Bep.  753,  63  S.  W. 
602,  to  be  another  exception  to  the  rule  that  sureties  are  not  re- 
sponsible for  the  effects  of  their  principal's  judicial  acts.  In  that 
state  it  is  held  that  under  the  statute  a  county  judge  in  tjtiriiig  ^ 
guardian's  bond  is  bound  to  exercise  due  care  in  ascertaining  the 
solvency  of  the  sureties  upon  it.  For  a  failure  to  exercise  this  dili- 
gence the  county  judge  and  his  official  bondsmen  are  answerable: 
Colter  V.  Mclntire,  11  Bush,  565;  Burdine  v.  Pettus,  79  Ky.  240; 
Commonwealth  v.  Tilton,  23  Ky.  Law  Bep.  753,  63  S.  W.  602; 
Cosby  V.  Commonwealth,  91  Ky.  235,  15  S.  W.  514.  Compare,  also, 
Hamilton  v.  Williams,  26  Ala.  S27;  State  v.  Baskins,  1  Strob.  (8. 
C.)  35.  For  failure  to  take  any  bond  whatever,  the  county  judge 
is  liable  on  his  official  bond,  regardless  of  any  question  of  due  care: 
Commonwealth  v.  Netherland,  87  Ky.  195,  8  8.  W.  272;  Common^ 
wealth  V.  Gowdy,  12  Ky.  Law  Bep.  792,  15  S.  W.  516. 

E.  Without  Jurisdiction.— In  Doepfner  v.  State,  36  Ind.  Ill,  it 
was  held  that  where  an  order  for  arrest  of  a  constable  for  con- 
tempt was  beyond  the  jurisdiction  of  a  justice  of  the  peace,  his 
sureties  were  not  liable.  In  such  a  case,  however,  tbe  sureties  es- 
cape liability  not  because  of  any  privilege  arising  from  the  judicial 
nature  of  the  act,  and  exempting  both  themselves  and  their  prin- 
cipal, but  because  whatever  may  be  the  liability  of  their  principal, 
as  to  them  the  act  was  extraofficial,  a  personal  trespass,  and  there- 
fore not  within  the  purview  of  the  bond.  To  the  same  effect,  see 
Laupher  v.  Dewell,  56  Iowa.  153,  9  N.  W.  101.  For  the  liability 
of  the  sureties  of  a  magistrate  for  his  instituting  a  malicious  prose- 
cution, see  Kelly  v.  Moore,  51  Ala.  364;  State  T.  MeDaniel,  78  Miss. 
1,  27  South.  994. 


Jan.  1902.]  Fbllbb  v.  Qatks.  577 

4.    For  Money  Received  by. 

A.  In  General.— The  test  of  liability  of  the  soretieB  of  judicial 
cffieers  whose  duties  include  the  receipt  of  money  in  certain  cases 
^OT  the  delinquencies  of  their  principals,  with  respect  to  such  funds 
is  the  same  as  in  the  case  of  sureties  of  officers  of  any  other  class— 
<lid  they  receiye  the  money  in  their  official  capacity f  Whatever 
their  liability  for  wrongs  done  in  the  exercise  of  judicial  functions, 
in  the  receipt  and  disbursement  of  money  they  are  fiscal  officers 
merely:  People  v.  Faulkner,  38  Hun,  607. 

B.  Where  Anthorlzedly  Becelyed.— If,  therefore,  a  probate  judge 

misappropriates   moneys  belonging  to   the   state   and  in  his   hands 

by   virtue  of  his    office,    his    official    bond    is    thereby    breached: 

Kandolph  v.  Brown,  115  Ala.  677,  22  South.  524.    So  a  failure  to 

pay  over  money  deposited  in  condemnation  proceedings  renders  the 

ffiireties  of  a  county  judge  responsible  to  the  party  entitled  to  the 

Tunds:    Clelland  v.  McGumber,   15  Colo.  355,  25  Pac.  700;   Chicago 

etc.  Co.  V.  Philpot,  66  Neb.  212,  76  N.  W.  550;  Clark  ▼.  Douglass, 

5£  Neb.  571,  79  N.  W.  158.    Where  money  is  paid  into  court  under 

an  order  of  court,  which,  while  it  may  be  erroneous  or  irregular,  is 

not  void,  it  is  received  in  an  official  capacity,  and  the  sureties  of 

the    judge    are  answerable    for    its    disposition    according    to    law: 

Wheeler  v.  Barker,  51  Neb.  846,  71  N.  W.  750;  Barker  v.  Wheeler, 

60  Neb.  470,  83  Am.  St.  Bep.  541,  83  N.  W.  678. 

O.  Where  Unaathorizedly  Beceived.— On  the  other  hand,  the  sure- 
ties of  an  officer  of  the  class  under  consideration  are  not  re- 
sponsible for  his  acts  in  respect  to  a  fund  which  he  had  no  author- 
ity to  receive,  and  which  must  therefore  be  regarded  as  held  by 
l.im  in  his  capacity  as  an  individual  rather  than  as  an  officer. 
Such  are  funds  received  from  partition  sales  the  court  had  no 
authority  to  make:  State  v.  Jeter,  59  S.  C.  483,  38  S.  £.  124;  re- 
ceived by  a  probate  judge  from  a  guardian  during  the  continuance 
of  his  guardianship:  Tallman  v.  Drake,  116  Ala.  262,  22  South.  485; 
or  from  the  committee  of  a  lunatic:  American  Bonding  etc.  Co.  v. 
Blount,  23  Ky.  Law  Bep.  1632,  65  S.  W.  806.  On  the  same  prin- 
ciple, where  a  justice  of  the  peace,  while  authorized  to  take  a  bond 
in  discharging  an  attachment,  or  as  security  for  the  appearance  of 
a  prisoner,  is  not  authorized  to  receive  a  payment  or  deposit  of 
money  instead,  if  he  does  receive  such  deposit  his  sureties  are  not 
responsible  for  his  conversion  of  it:  Cressy  y.  Qierman,  7  Minn. 
398;  Pretch  ▼.  Douglass,  5  O.  C.  D.  695. 

D.  As  Agent  for  Collection. 
(1)  General  Bnleu—A  justice,  in  a  number  of  jurisdictions,  is  author- 
ized and  in  some  required  to  receive  debts  or  claims  against  a  third 
person  in  his  official  capacity  for  collection.  Where  such  statutes  pre- 
vail, if  a  justice  of  the  peace,  as  such,  has  promissory  notes  placed  in 
his  hands  for  collection,  his  acts  with  reference  to  them  are  covered 
Am,  Bt.  Rep.,  Vol.  91—37 


578  American  Statb  Beports,  Vol.  91.         [Oregoo^ 

by  hiB  ofQcial  bond,  and  for  his  eonversioB  of  them  his  bondsmes 
are  answerable:  Hays  ▼.  People,  3  HL  App.  57;  Latham  t.  Brown, 

16  Iowa,  118;  Bessinger  t.  Dickerson,  20  Iowa,  260.    Where,   how- 
ever,  he  is  not  made  a   collecting  agent  by  statutes  of   the   na- 
ture  referred  to,  if  he  receives  claims  for  collection,  he  is  deemed 
to   do   so   m  his  individual  capacity,   and  for  his  failure   to    col- 
lect or  any  other  act  or  omission  as  a  collection  agent,  his  sore- 
ties   are   not   responsible:   McGrew   y.   Governor,   19   Ala.   89.     For 
the   money  received   by  him,  where,  under   statutes   of  this   kind, 
claims  have  been  left  with  him    as  a  magistrate  for  collection,  his 
sureties  are  responsible,  although  no  process  issued  to  compel  pay- 
ment and  no  judgment  was  rendered:  Widener  v.  State,  45  Ind.  244; 
Ditmars   v.   Commonwealth,  47  Pa.   8t.   335.    Where,   on  the    other 
hand,  the  statute  authorizes  the  receipt  of  money  by  a  justice  only 
when  suit  has  been  brought  and  judgment  rendered  on  a  claim,  if 
money  is  received  on  a  claim  left  with  a  justice  for  collection,  with- 
out  suit,   it  is  received   by   him   individually   and  as  a    colleetioB 
agent,   and   is  therefore   not   covered  by  his   official  bond:    MeCor- 
mick  V.  Thompson,  10  Neb.  484,  6  N.  W.  597;  Stevens  ▼.  Breatho- 
ven,  Wright  (Ohio),  733;  Commonwealth  ▼.  Kendig,  2  Pa.  St.  448. 

(2)  In  Satisfaction  of  Judgment.— Where  the  money  is  received 
by  a  justice  in  satisfaction  of  a  judgment  rendered  by  him,  it  is  re- 
ceived officially,  and  for  its  conversion  he  is  responsible  on  his  offi- 
cial bond:  People  v.  Price,  3  HI.  App.  15;  Price  v.  Farrar,  5  HL  App» 
536;  Wright  v.  Harris,  31  Iowa,  272;  Brockett  ▼.  Martin,  11  Kan. 
378;  Peabody  v.  State,  4  Ohio  St.  387;  Walter  v.  Zeigler,  8  Kulp. 
25;  Ferry  v.  Schulter,  8  Kulp,  64.    See,  also.  Green  ▼.  Wardwell, 

17  ni.  278,  63  Am.  Dec.  366;  State  v.  Bliss,  19  Ind.  App.  662,  49 
N.  B.  1077.  Under  the  Alabama  statute  making  the  official  bondsmen 
of  an  officer  liable  for  his  acts  colore  officii,  the  sureties  of  a  notary 
acting  as  ez-officio  justice  of  the  peace  are,  it  is  held,  liable  for 
money  received  by  him  under  a  false  claim  that  he  had  rendered 
judgment  against  a  party:  Mason  v.  Crabtree,  71  Ala.  479.  Where 
a  justice  assuming  to  act  officially,  renders  judgment  on  claims  in 
his  hands,  it  is  held  that  he  thereby  abandons  any  agency  in 
respect  to  such  claims  if  he  ever  occupied  that  position,  and  his 
sureties  are  estopped  by  the  docket  of  their  principal  from  showing 
that  he  acted  in  their  collection  as  an  agent  merely:  Price  v.  Famr, 
5  ni.  App.  536. 

In  Hale  v.  Commonwealth,  8  Pa.  St.  415,  the  sureties  of  a  justice 
of  the  peace  were  held  responsible  for  his  conversion  of  money  paid 
on  a  judgment  confessed,  although  in  amount  it  exceeded  the  jurift- 
diction  of  the  justice.  In  Barnes  v.  Whitaker,  45  Wis.  204,  on  the 
other  hand,  the  doctrine  that  the  bondsmen  of  a  publie  officer  ar^ 
not  responsible  for  his  eztraofficial  acts  or  personal  trespasses  i» 
carried  to  the  extent  of  holding  that,  where  certain  judgments 
lendered  by  a  justice  of  the  peace  in  attachment  suits  were  held 
void  by  the  appellate  court,  on  the  ground  that  the  affidavits  tor 


Jan.  1902.]        Felleu  r.  Gates.  579 

the  ^warrants  of  attachment  were  so  defective  that  the  justice  never 
acquired  jurisdiction,  if  the  justice  had  received  money  as  the  pro- 
ceeds of  executions  issued  on  such  judgments  he  received  them  not 
"by  virtue  of  his  office,"  but  by  a  personal  tresspass,  and  the 
rareties  on  his  official  bond  were  not  responsible  for  his  disposition 
of   BQch  money. 

5.  Acts  in  Bz-offlcio  or  AppointiYe  Capacity.— Where  a  probate 
jud^e  is  ez-officio  county  treasurer,  where  the  statutes,  while 
referring  to  the  liability  of  the  treasurer  on  his  oflicial  bond,  make 
no  provision  for  a  separate  bond  to  be  given  to  cover  the  acts 
of  tbe  officer  in  his  capacity  as  treasurer,  his  bond  as  probate  judge 
will  be  deemed  to  cover  his  acts  in  the  ex-officio  capacity  as  treas- 
urer: Clay  Co.  V.  Simonsen,  1  Dak.  403,  46  N.  W.  502.  If,  however, 
the  statute  requires  that  his  bond  be  conditioned  for  the  faithful 
performance  of  his  duties  "as  judge  of  probate,  ex-officio  justice 
of  the  peace  and  county  treasurer,"  a  bond  conditioned  merely  for 
the  performance  of  his  duties  "as  judge  of  probate"  does  not 
eoyer  his  delinquencies  as  county  treasurer:  Territory  v.  Bitter^ 
1  Wyo.  313.  The  sureties  on  the  bond  of  a  county  judge,  as  such^ 
are  not  responsible  for  his  misappropriation  of  the  proceeds  of 
school  lands  sold  by  him  as  an  appointee  of  the  commissioner's 
court:  Henderson  Co.  v.  Richardson,  15  Tex.  Civ.  App.  699,  40  S.  W. 
28.  In  West  Virginia  a  justice  of  the  peace  is  by  statute  made 
liable  on  his  official  bond  for  the  consequences  of  any  default  of 
a  special  constable  appointed  by  him.  Under  this  statute  the  sure- 
ties on  tbe  bond  of  a  justice  have  been  held  answerable  for  the 
statutory  "damages"  incurred  by  a  special  constable  who  sold  prop- 
erty exempt  from  execution:  State  ▼.  AUen^  48  W.  Ya.  154,  86 
Am.  St.  Bep.  20,  35  S.  £.  990. 

S.  Kolaxies  Pnhlie.— The  liability  of  the  sureties  on  the  official 
bond  of  a  notary  public  Laving  been  treated  quite  recently  and  at 
length  in  the  monographic  note  to  Joost  v.  Craig,  82  Am  St.  Rep. 
380-388,  on  the  liability  of  notaries,  its  consideration  here  is  un- 
necessary. For  questions  as  to  the  acts  for  which  the  sureties  of 
such  an  officer  are  liable,  the  reader  is  referred  to  the  note  mentioned. 

J.  ConclvsioiL— In  addition  to  a  discussion  of  the  general  prin- 
ciples determining  the  acts  for  which  the  sureties  of  public  officers 
are  liable,  tbe  application  of  these  principles  to  the  more  important 
classes  of  such  officials  has  now  been  considered.  There  are,  of 
course,  others  ranging  in  importance  from  wharfingers  to  United 
States  consuls,  but  a  detailed  consideration  of  the  various  acts 
which  in  the  case  of  each  officer  is  held  to  render  liable  the  sureties 
on  his  official  bond  could  serve  no  useful  purpose,  and  will  not, 
therefore,  be  here  attempted. 


£80  Ahsbioan  State  Beports^  Vol.  91.        [Or^;aii, 


CLOSE  V.  KIDDLE. 

[40  Or.  692,  67  Pac.  982.] 

INTEREST  After  the  Breach  of  a  Contract,  is  recoverable 
enly  as  damages,     (p.   583.) 

IN  TKBE8T— Higher  Bate  After  Default.— A  stipnlatioii  la 
a  bond  and  mortgage  for  a  higher  rate  of  interest  after  matnritj, 
euch  rate  not  being  usurious,  is  for  liquidated  damages,  and  not  a 
penalty,  and  is  enforceable  in  equity,     (p.  583.) 

MORTGAGE  POBECLOSURE-— Disposal  of  Proceeds.— Direct- 
ing the  remainder  of  the  proceeds  of  a  mortgage  foreclosure,  after 
satisfying  the  sum  due  the  plaintiif,  to  be  deposited  in  court  sub- 
ject to  its  further  order,  is  not  reversible  error,     (pp.  583,  584.) 

Suit  to  foreclose  a  mortgage.    The  complaint  alleges  that 
on  May  21^  1888,  the  defendants^  Oeorge  W.  Biddle  and  his 
wife^  ezecnted  a  bond  to  the  Lombard  Inyestment  Company 
for  eleven  thousand  dollars,  due  in  five  years,  with  interest 
at  six  per  cent,  payable  semi-annually,  evidenced  by  ten  conpons 
of  three  hundred  and  thirty  dollars  each,  and  stipulating  for 
€ight  per  cent  interest  after  maturity;  that  at  the  same  time 
they  and  W.  H.  Riddle,  to  secure  the  payment  of  such  prin- 
cipal and  interest,  executed  to  the  company  a  mortgage  on 
certain  property,  which  mortgage,  with  the  bond,  was  assigned 
to  the  plaintiff;  that  W.  H.  Riddle  devised  his  interest  in  the 
realty  to  Oeorge  W.  Riddle  and  wife,  and  his  estate  was  duly 
settled  in  the  probate  court;  that  the  other  defendants  daim 
some  interest  in  the  mortgaged  premises,  but  their  rights,  if 
any,  are  subordinate  to  the  plaintifiPs;  that  no  part  of  the 
debt  has  been  paid  except  the  coupons  and  the  sum  of  fifteen 
hundred   dollars,   on  the   principal   and   interest  thereon  to 
June  1,  1897;  and  prays  for  the  recovery  of  nine  thousand 
five  hundred  dollars,  with  interest  from  that  date  at  the  rate 
of  eight  per  cent  per  annum,  and  for  a  decree  foreclosing  the 
mortgage. 

The  defendant  Walter  S.  Riddle,  alone  answering,  denies  that 
there  is  due  on  the  mortgage  any  greater  sum  than  seven  thou- 
sand eight  hundred  dollars.  And  for  a  separate  defense  he 
alleges  that  on  July  28,  1891,  the  defendants  George  W.  Riddle 
and  his  wife  executed  to  Stilly  Riddle  their  mortgage  upon 
said  premises  to  secure  the  sum  of  seven  thousand  five  hundred 
dollars,  and  they  also  conveyed  a  part  of  said  premises  to  W. 
H.  Taylor,  whereupon  Stilly  Riddle  released  the  lien  of  his 
mortgage  upon  the  land  so  conveyed,  and  thereafter  assigned 


Feb.  1902.]  Closb  v.  Riddle.  581 

his  mortgage  to  this  defendant,  who  secured  a  decree  foreclose 
ing  the  same,  in  pursuance  of  which  the  remaining  premises 
were  sold  to  him,  and,  the  sale  having  been  confirmed,  a  sher- 
iff's deed  therefor  was  executed  to  him;  that  the  title  to  the* 
premises  so  conveyed  to  Taylor  has  passed  by  mesne  convey- 
ances to  the  defendants  Samuel  Parmley  and  Clara  S.,  his- 
wife;  that  on  August  19,  1899,  this  defendant  paid  on  account 
of  the  bond  so  assigned  to  plaintiff  the  sum  of  six  hundred 
dollars;  and  that  the  stipulation  in  the  bond  and  mortgage  to 
pay  eight  per  cent  interest  on  the  debt  after  its  maturity  is 
Toid ;  and  prays  that  the  land  so  conveyed  to  Parmley  and  wife^ 
be  first  sold,  and  the  proceeds  arising  therefrom  applied  upon 
plaintiff's  demand,  and,  if  sufficient  to  satisfy  the  same,  tiiat 
the  premises  so  owned  by  this  defendant  be  freed  from  the 
lien  of  said  mortgage.  The  reply  having  put  in  issue  the  al* 
legations  of  new  matter  in  the  answer,  a  trial  was  had,  and  the 
court  found  that,  after  giving  said  defendant  credit  for  the 
sxun  of  six  hundred  dollars,  there  remained  due  on  the  bond 
the  sum  of  elev^i  thousand  two  hundred  and  seventy  dollars 
and  seventy-six  cents,  and  decreed  a  foreclosure  of  the  mort- 
gage and  a  sale  of  the  premises,  the  part  so  conveyed  to  Taylor 
to  be  sold  first,  and  that,  if  any  of  the  proceeds  thereof  remain 
after  the  payment  of  the  sum  so  found  due  plaintiff,  it  be 
deposited  in  court  to  be  paid  out  on  its  further  order,  and  the- 
defendant  Walter  S.  Biddle  appeals. 

J.  C.  Fullerton,  for  the  appellant. 

Milton  W.  Smith,  for  the  respondent. 

'••*  MOORE,  J.  1.  It  is  contended  by  appellant's  counseT 
that  the  stipulation  in  the  bond  and  mortgage  for  the  payment 
of  eight  per  cent  interest  after  the  maturity  of  the  debt  is  a 
penalty  designed  to  secure  the  payment  of  a  lesser  rate  of  in- 
terest, and,  this  being  so,  it  should  not  be  enforced  in  equity, 
and  that  the  court  erred  in  decreeing  the  recovery  of  more 
than  six  per  cent,  and  cites  in  support  of  the  principle  in- 
sisted upon  the  case  of  Mason  v.  Gallender,  2  Minn.  350,  72 
Am.  Dec  102,  in  *®®  which  it  was  held  by  the  supreme  court 
of  Minnesota  that  an  agreement  to  pay  a  greater  sum  on  de- 
fault in  the  payment  of  a  lesser  was  a  penalty,  and  not  liqui- 
dated damages,  and  could  noj;  be  recovered,  and  that  this  rule 
applies  to  a  stipulation  in  a  note  providing  for  an  increased 
rate  of  interest  after  maturity  upon  both  principal  and  in- 
terest.   While  the  decisions  upon  this  subject  are  not  uniform. 


£82  Akebioak  State  Bepobts^  Vol.  91.        [Oregoiiy 

we  think  ihe  great  preponderance  of  authority  supports  the 
rule  that,  where  a  higher  rate  of  interest  is  expremly  re- 
served to  be  paid  after  maturity,  the  rate  so  stipulated  is  re- 
coverable if  not  usurious:  2  Edwards  on  Bills  and  Notes,  sec. 
1005;  3  Bandolph  on  Commercial  Paper,  2d  ed.,  sec.   1713. 
The  editors  of  the  American  and  Englidi  Encyclopedia  of  J^w 
(volume  16,  second  edition,  page  1049),  in  discussing  this  ques- 
tion, say:  ''By  the  weight  of  authority  a  stipulation  for  a 
higher  rate  of  interest  after  maturity  is  valid  and  enforceable, 
provided  the  increased  rate  which  it  is  sought  to  recover  does 
not  exceed  the  highest  rate  allowed  by  law;  and,  in  the  ab- 
sence of  a  statute  limiting  the  rate  which  may  be  contracted 
for,  or  where  the  rate  provided  for  after  maturity  is  not  un- 
lawful, a  stipulation  for  a  higher  rate  after  maturity  will  gen- 
erally be  considered  as  a  liquidation  of  the  damages,  rather 
than  as  a  penalty  for  a  breach.'^    The  statute  of  this  state  per- 
mits the  recovery  of  ten  per  cent  interest  per  annum  by  ex- 
press agreement  of  the  parties  (Hill's  Annotated  Laws,  sec 
3587) ;  so  that  the  stipulation  in  the  bond  and  mortgage  to 
pay  eight  per  cent  interest  per  annum  after  maturity  is  not 
oisurious.     Interest  is  compensation  for  the  use  or  forbearance 
<of  money,  or  for  withholding  from  or  depriving  a  party  of 
money :  16  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  990. 

Interest  proper  would  seem  to  be  the  compensation  agreed 
to  be  paid  by  the  borrower  to  the  lender  for  the  use  of  money 
to  be  paid  at  a  future  day,  while  the  compensation  awarded 
by  law  for  the  forbearance  or  withholding  money  is  denomi- 
nated "damages,''  the  measure  of  which  is  established  at  a 
given  rate.  The  statute  prescribing  the  rate  of  compensation 
by  way  of  damages  is  as  follows :  "The  rate  of  interest  in  this 
«tate  shall  be  six  per  centum  per  annum,  and  no  more,  on  all 
arioneys  ^^  after  the  same  become  due;  on  judgments  and 
decrees  for  the  payment  of  money;  on  money  received  to  the 
use  of  another  and  retained  beyond  a  reasonable  time  without 
the  owner's  consent,  express  or  implied,  or  on  money  due  upon 
the  settlement  of  matured  accounts  from  the  day  the  balance 
is  ascertained":  Hill's  Annotated  Laws,  sec.  3587,  as  amended 
October  14,  1898;  Laws  1898,  p.  15.  It  will  be  observed  that 
the  statute  employs  the  word  "interest"  instead  of  "damages," 
but  the  term  so  selected  cannot  change  the  character  of  the 
compensation  awarded ;  for  after  *the  breach  of  a  contract  in- 
terest is  never  recoverable  except  as  damages:  Seton  v.  Hovt, 
34  Or.  266,  75  Am.  St.  Rep.  641,  55  Pac.  967;  Mason  v.  Cal- 


y^  • 


Feb.  1902.]  Closb  v.  Riddub.  683 

lender^  2  Minn.  850,  72  Am.  Dec.  102;  Jourolmon  y.  Ewing, 
80  Fed.  604;  Brainard  ▼.  Jones,  18  N.  Y.  35.  In  the  case  at 
bar,  fhe  makers  of  the  bond  having  neglected  to  pay  the  sum 
dne  thereon  at  maturity,  damages  necessarily  resulted,  which 
should  be  measured,  in  the  absence  of  any  stipulation  to  the 
contrary,  by  the  rate  specified  in  the  bond  as  compensation  for 
the  use  of  the  money  prior  to  the  breach  of  the  contract :  Hill's 
Annotated  Laws,  sec.  3591.  Such  damages,  however,  are  prop- 
erly anticipated  and  adjusted  by  the  parties,  and,  if  the  rate 
thus  agreed  to  be  paid  for  the  use  of  money  after  maturity 
does  not  exceed  the  highest  rate  prescribed  by  law,  the  agree- 
ment, by  the  great  weight  of  authority,  is  for  liquidated  dam- 
ages, and  not  in  the  nature  of  a  penalty,  and,  the  parties  hav- 
ing agreed  upon  the  payment  of  a  rate  recoverable  by  express 
contract,  no  error  was  committed  in  assessing  the  damages  so 
agreed  upon. 

2.  It  is  maintained  that  the  appellant  was  entitled  to  the 
remainder  of  the  proceeds  arising  from  a  sale  of  the  mortgaged 
premises  after  satisfying  the  sum  found  to  be  due  the  plaintiff, 
and  hence  an  error  was  committed  in  decreeing  that  such  re- 
mainder should  be  deposited  in  court  subject  to  its  further 
order.  It  will  be  remembered  that  Samuel  Pannley  and  wife 
owned  a  part  of  said  land  in  fee,  subject  to  plaintiff^s  mort- 
gage, which  was  decreed  to  be  sold  first.  If  the  sum  realized 
from  such  sale  was  more  than  sufficient  to  satisfy  plaintiff's 
••®  decree,  no  necessity  would  exist  for  a  resort  to  the  appel- 
lant's land,  and  the  remainder  of  the  proceeds,  if  any,  would 
belong  to  Parmley  and  his  wife;  but,  if  insufficient  for  that 
purpose,  and  the  sale  of  appellant's  land  became  necessary,  any 
sum  that  remained  after  paying  plaintiff  the  amount  of  his 
decree  would  belong  to  the  appellant.  A  sale  of  real  prop- 
erty under  a  decree  of  foreclosure  is  conducted  in  the  same 
manner  as  a  sale  thereof  under  an  execution  in  an  action: 
Hill's  Annotated  Laws,  sec.  417.  Upon  a  return  of  the  exe- 
cution the  sheriff  shall  pay  the  proceeds  of  the  sale  to  the  clerk, 
who  shall  then  apply  the  same,  or  so  much  thereof  as  may  be 
necessary,  to  the  satisfaction  of  the  judgment;  and  if  any  of 
the  proceeds  then  remain,  the  clerk  shall  pay  the  same  to  the 
judgment  debtor  or  his  representative:  Hill's  Annotated  Ijaws, 
sec.  296,  snibds.  3,  5.  It  is  quite  probable  that,  if  the  decree 
had  been  silent  in  respect  to  the  payment  of  such  remainder 
after  the  satisfaction  of  plaintiff's  demand,  the  clerk  would 
have  been  authorized  to  pay  the  same  to  the  party  entitled 


584  American  State  Reports^  Vol.  91.        [Oregon, 

thereto.  It  wotild  imdoTibtedly  have  been  better  practise  if  the 
decree  had  designated  the  party  to  whom  it  should  be  paid; 
but,  as  the  undertaking  on  appeal  did  not  stay  the  enforcement 
of  the  decree,  it  is  possible  that  a  sale  of  the  premises  may  have 
been  made,  and,  if  so,  and  any  remainder  exists,  the  necessity 
of  securing  the  court's  order  therefor,  as  prescribed  in  the  de- 
*cree,  if  erroneous,  is  not,  in  our  judgment,  so  prejudicial  as 
to  require  a  modification  thereof. 

There  are  other  errors  alleged,  but  we  do  not  consider  them 
of  sufficient  importance  to  require  consideration,  and  hence  the 
decree  is  affirmed. 


AOBEEMENT8  FOB  A  HIOHES  OB  AN  EXOBBITAITT  RATE  OF 

INTEBE8T    AFTBB    DSFAUIiT.* 

I.    Oaaes  Questioning  the  Validity  of  Such  Agraementik 
U.    The  PreyaiUng  Trend  of  the  DecisionB. 

1.  Where  the  Stipulated  Interest  Bans  ftom  ICatoxltj  of 

Debt. 

2.  Where  It  Belates  to  and  Buns  ftom  Date  of  Debt. 
nL    Whether  Sach  Transacttons  are  Usurious. 

IV.    Waiver  of  the  Stipulation. 

L  Cases  Questioning  the  Validity  of  Such  Agreements. 
The  decided  eases  are  not  entirely  harmonious  on  the  question 
passed  upon  in  the  principal  casa  Some  authorities  regard  a  stip- 
ulation in  a  note,  bond,  or  other  agreement,  for  a  higher  rate  of 
interest  in  case  of  default  in  payment  at  maturity,  as  an  agree- 
ment for  a  penalty,  and  therefore  not  enforceable.  Other  author* 
itiea  considered  the  stipulation  as  an  agreement  for  liquidated 
damages,  and  give  it  effect.  In  determining  whether  the  a- 
mount  stipulated  in  a  contract  to  be  paid  in  the  event  of  a 
failure  to  comply  therewith  is  to  be  treated  as  an  agreement  for 
liquidated  damages  or  as  a  penalty,  courts  are  often  guided  by  this 
general  rule:  If  the  actual  damages  resulting  from  a  failure  of 
compliance  with  a  contract  are  definitely  fixed  by  some  rule  of  law, 
and  easily  ascertainable  by  the  appropriate  rules  of  evidence,  and  the 
9um  named  is  out  of  proportion  to  the  real  damage,  the  stipulated 
amount  is  a  penalty;  but  if  the  damages  are  uncertain  and  insus- 
ceptible of  ready  ascertainment,  and  the  sum  fixed  as  damages  is 
not  unreasonable,  it  is  liquidated  damages:  See  Taylor  v.  Times 
Newspaper  Co.,  83  Minn.  523,  85  Am.  St.  Bep.  473,  80  N.  W.  760; 
Salem  v.  Anson,  40  Or.  339,  ante,  p.  485,  67  Pac.  190. 

*aBrKRKNCS  TO   MONOQJtAPUIC  NOm. 

Penaltieiand  liquidated  damages  distinguished:  1  Am.  J)€C.  S31-M^;  SOAm.  £e|». 
28*3ft. 


Feb.  1902.]  Clobb  v.  Riddle.  585 

TTnder  this  rule  of  eonstmetion,  a  stipulation  for  a  higher  rate 
ot  interest  after  default  provides  a  penalty,  since  for  the  nonpay- 
ment of  money  when  dne  the  law  allows  interest  at  the  legal  rate 
ma  damages.  There  is,  then,  no  difficulty  in  determining  the  damages 
in  such  a  case.  The  measure  thereof  is  simply  the  legal  interest: 
See  Brown  ▼.  Kaulsby,  17  Ind.  10;  Mason  v.  Callender,  2  Minn. 
350y  72  Am.  Dee.  102;  Talcott  ▼.  Marston,  8  Minn.  339;  Holbrook  y. 
Sims,  39  Minn.  122,  39  N.  W.  74,  140;  Krutz  ▼.  Bobbins,  12  Wash. 
7,  50  Am.  St.  Bep.  871,  40  Pac.  415.  In  this  last  case,  the  higher 
rate  of  interest  was  provided,  not  only  for  default  in  payment  of  the 
principal,  but  for  default  in  the  payment  of  interest  or  insurance  or 
taxes.  Besides,  the  obligation,  which  was  a  mortgage^  was  to 
draw  the  increased  rate  from  the  date  of  the  note.  In  the  first 
eited  Minnesota  ease,  the  stipulation  was  for  an  increased  rate 
after  maturity  upon  both  principal  and  interest.  While  in  the 
Indiana  ease  the  note  provided  that  ''we  agree  to  forfeit  and  pay 
twenty  per  cent  damages  for  disappointment,  waiving  valuation  and 
appraisement  laws."  It  was  held  that  the  note  did  not  fall 
under  the  class  of  covenants  or  promises  to  which  the  doctrines  of 
penalty  and  liquidated  damages  apply.  For  where  the  payment  of 
a  sum  of  money  is  the  act  to  be  done,  no  nearer  approximation  to  the 
damages  suffered  by  its  omission  can  be  arrived  at  than  the  legal 
rate  of  interest;  and  this  is  the  rule  of  damages  the  law  has  fixed 
for  delay  in  paying  money. 

''It  would  certainly  be  against  public  policy,"  said  the  court, 
''would  have  the   effect  to  abrogate  all  laws  against   usury,   and 
place  the  weak  and  embarrassed  entirely  in  the  power  of  the  money 
capital  of  the  land,  should  such  a  stipulation  as  that  contained  in  the 
note  sued  on  be  held  valid."    The  hardship  consequent  upon  giving 
effect  to  stipulations  of  this  kind  is  an  aspect  of  the  question  that 
appeals,  and  justly  so,  to  courts  with  no  inconsiderable  force.    "I 
think  in  all  cases,"  observes  Justice  Eakin  in  his  dissenting  opinion 
to  Portis  V.  Merrill,  33  Ark.  416,  420,  "agreements  for  increased  in- 
terest after  maturity,  or  for  exorbitant  interest  then  to  commence,  es- 
pecially when  there  is  no  reciprocal  obligation  on  the  part  of  the  cred- 
itor to  allow  the  debtor  the  use  of  the  money  at  the  increased  rate 
for  a  definite  time,  are  penalties  in  their  very  nature  and  essence, 
at   least  prima  facie.    They   bear   indubitable   marks   of   intention 
to  secure  prompt  payment  to  avoid  worse  consequences.    The  debtor 
never  calculates  upon  really  paying  them.    He  is  too  apt  to  be  san- 
guine  with  regard  to*  his  resources  and  chances  of  business,  hopes 
to  pay  at  maturity,  and  often  is  not  in  a  mental  condition  to  make 
eool  calculations.    He  improvidently  puts  himself  into  a  situation 
where  disappointment  as  to  his  means  is  attended  with  the  most 
shocking  annoyances.     This  is  more  apt  to  occur  where  there  is  no 
legal  restriction  upon  conventional   interest,  and  courts   of  equity, 
in  sueh  cases,  should  ratber  increase  their  vigilance  than  renounce 


686  Akebioan  ST1.TB  Bkpobtb,  Vol.  91.        [Or^gon^ 


their  powers.  I  think,  in  this  ease,  the  offer  to  pay  the  fall  amomt 
of  the  aote,  with  legal  interest  after  maturity,  was  quite  eDOogh, 
and  relief  should  be  granted."  The  note  provided  for  five  per  cent 
interest  per  month  after  maturity. 

The  only  English  ease  bearing  on  this  question  that  has  eome  under 
our  observation  is  Herbert  v.  Salisbury  etc  By.  Co.,  L.  S.  2  Eq. 
221.  It  is  there  held  that  an  agreement  entered  into  by  a  vendor 
and  vendee,  whereby  the  rate  of  interest  on  the  purchase  money  is 
to  be  four  per  eent  up  to  a  certain  date,  five  per  cent  for  the  next 
half  year,  and  eight  per  eent  for  every  subsequent  year,  is  a  good 
contract.  In  the  course  of  the  opinion,  however,  it  is  remarhed 
that  the  ''law  upon  the  subject  is  unquestionably  somewhat  refined, 
and  leads  to  very  nice  distinctions.  For  instsnce^  it  is  quite  clear 
that  if  a  mortgagor  agrees  to  pay  five  or  six  per  eent  interest,  and 
the  mortgagee  agrees  to  take  less,  say  four  per  cent,  if  it  is  paid 
punctually,  that  is  a  perfectly  good  agreement;  but  if  the  mortgage 
interest  is  at  four  per  cent,  and  there  is  an  agreement  that  if  it  is 
not  paid  punctually,  five  or  six  per  cent  interest  shall  be  paid,  that 
is  in  the  nature  of  a  penalty  which  this  court  will  relieve  against. 
I  am  of  the  opinion,  however,  that  the  stipulation  in  this  contract 
•  •  •  .  is  not  in  the  nature  of  a  penalty,  but  a  separate  and  distinct 
contract." 

IL    The  Prevailing  Trend  of  the  Decisions. 

1.  Where  the  Stipulated  Interest  Suns  from  Hatoxity  of  Bebt.^ 
While  the  above  authorities  show  a  decided  inclination  to  pronounce 
stipulations  for  an  increased  rate  of  interest  after  maturity  penal- 
ties, such  stipulations  are^  according  to  the  consensus  of  judicial 
opinion,  valid  agreements  to  which  effect  will  be  given  if  the 
higher  rate  is  lawful  and  not  in  contravention  of  the  usury  laws. 
Such  agreements  are  often  spoken  of  as  in  liquidation  of  Hsim^g^ 
and  not  strictly  penalties  for  the  nonperformance  of  the  contract. 
If  it  is  urged  that  after  default  the  law  fixes  the  rate  of  interest, 
it  may  be  said  that  no  valid  reason  appears  why  the  parties  may  not 
fix  the  rate  after  as  well  as  before,  maturity.  And  if  the  hardship 
of  the  doctrino  is  invoked,  or  if  that  rule  of  construction  is  contended 
for  that  when  there  is  no  difficulty  in  ascertaining  the  damages 
suffered  from  the  breach  of  a  contract,  then  an  agreement  by  the 
parties  to  liquidate  them  in  advance  is  in  the  nature  of  a  penalty— 
the  answer  is  that  the  cardinal  rule  of  construction  is  to  ascertain 
the  intent  of  the  parties,  and  give  it  effect  when  it  clearly  appears; 
and  that  the  province  of  courts  is  not  to  make  contracts,  nor  re- 
lieve the  parties  from  their  unwise  and  improvident  agreements, 
if  not  unconscionable  or  tainted  with  fraud,  duress,  or  the  like: 
Miller  v.  Kempner,  32  Ark.  573;  Thompson  v.  Gorner,  104  CaL  168, 
43  Am.  St.  Bep.  81,  37  Pac.  900;  Hubbard  v.  Callahan,  42  Conn.  524, 
19  Am.  Bep.  564;  WUkerson  v.  Daniels,  1  G.  Greene  (Iowa),  180; 
Sheldon  v.  Prue8sner,  52  Kan.  579,  35  Pac  201;   Brown  v.   Coiy» 


Feb.  1902.]  Closb  v.  Biddub.  587 

9  Kan.  App.  702,  59  Pae.  1097;  Capea  y.  Growell,  66  Me.  282;  Home 
Pire  Ins.  Co.  v.  Fitch,  52  Neb.  88,  71  N.  W.  940;  Crapo  ▼.  Hefner, 
53  Neb.  251,  '^3  N.  W.  702;  McLane  ▼.  Abrama,  2  Nev.  199,  204; 
Close  ▼.  Biddle  (the  prineipal  ease),  ante,  p.  580;  Wortman  v. 
ITorhies,  14  Wash.  152,  44  Pao.  129;  Haywood  ▼.  Miller,  14  Wash. 
660,  45  Pae.  307. 

''The  fact  that  the  creditor  is  content  with  a  lower  rate  before 
maturity  does  not  aifect  his  right  to  demand  under  a  special  agree- 
ment a  higher  rate,  not  exceeding  the  limit  fixed  by  law,  after 
maturity":  Pass  ▼.  Shine,  113  N.  C.  284,  18  8.  E.  251.  ''Where  a 
note  provides  for^a  lawful  rate  of  interest  from  date  to  maturity, 
smd  a  higher  and  lawful  rate  of  interest  afterward,  the  rate  of  in* 
terest  which  the  note  draws  from  its  date  to  maturity,  and  the  rate 
which  the  note  draws  after  maturity,  are  both  the  contract  rates  of 
the  parties,  and,  since  they  are  lawful,  are  enforceable":  Havemeyer 
▼.  Paul,  45  Neb.  373,  63  N.  W.  932,  overruling  Bichardson  v.  Camp- 
beU,  34  Neb.  181,  33  Am.  St.  Bep.  633,  51  N.  W.  753. 

It  is  the  daty  of  the  court,  in  computing  the  amount  due  on  the 
note,  to  aUow  interest  until  maturity  at  the  lower  rate,  and  there- 
after at  the  higher:  Omaha  Loan  etc.  Co.  y.  Hanson,  46  Neb.  870, 
65  N.  W.  1058.  And  it  is  held  that  the  holder  of  the  note  is  entitled 
to  the  higher  rate  both  before  and  after  judgment,  and  until  the 
debt  is  paid:  Linton  y.  National  Life  Ins.  Co.,  104  Fed.  584. 

Some  promissory  notes,  not  bearing  interest  from  date,  contain  a 
provision  that  if  not  punctually  paid  at  maturity,  they  shall  there- 
after draw  a  high,  usually  an  exorbitant,  rate  of  interest.  Such 
piovisions  have  been  considered  enforceable  as  agreements  to  liqui- 
date damages  for  a  breach  of  contract:  See  Portis  v.  Merril,  33 
Ark.  416;  Smith  v.  Whitaker,  23  HI.  367;  Witherow  v.  Briggs,  67  HI. 
96;  Davis  v.  Hendrie,  1  Mont.  499.  In  Bane  v.  Oridley,  67  HI.  388, 
the  note  under  consideration  stipulated  for  thirty  per  cent  per  annum 
after  maturity  "as  liquidated  damages. '^  The  court  said:  "It  is 
urged  by  counsel  that  the  rate  of  interest  which  the  note  was  to 
draw  after  maturity  was  a  penalty  to  secure  the  payment  of  a  smaller 
sum,  and  therefore  to  be  relieved  against  in  chancery,  and  not  to 
be  recovered  at  law.  ....  But  in  cases  like  the  one  at  bar,  this 
court  has  evidently  treated  the  increased  interest  as  merely  liquidated 
damages  accruing  from  day  to  day,  of  which  the  party  can,  at  any 
time,  relieve  himself  by  payment,  and  therefore  involving,  ordi- 
narily, no  special  hardship  calling  for  interference  by  the  courts." 

2.  Where  It  Relates  to  and  Buns  from  Date  of  Debt.— Though  a 
note  providing  for  a  legal  rate  of  interest  until  maturity,  and  for 
a  higher  but  still  legal  rate  after  maturity  is,  at  least  by  the  great 
weight  of  authority,  valid  and  enforceable  according  to  its  terms, 
it  has  been  held  that  a  provision  for  a  legal  rate  until  maturity,  and,  if 
the  note  should  not  then  be  paid,  a  higher  rate  from  the  date  of  the 
note,  is,  so  far  as  it  provides  for  a  higher  rate  before  maturity,  in  the 


688  Ahbbican  Statb  Reports,  Vol.  91.        [OregoD» 

patTire  of  a  penalty,  and  will  not  be  enforced:  Hallam  t.  Telaeren,  5S 
Neb.  265,  75  N.  W.  560,  citing  Holies  v.  Wyse,  2  Vera.  289;  Strode  t. 
I'arker,  2  Vera.  816;  Orr  t.  Churchill,  1  H.  Black.  227;  Seton  ▼.  81ade^ 
7  YeB.  273.  We  certainly  have  no  contest,  on  principle,  with  the  doe- 
trine  advanced  by  the  Nebraska  conrt.  Other  courts,  however,  have 
come  to  quite  a  different  conclusion.  It  has  been  decided  that  a  atipn- 
lation  to  pay  a  certain  rate  of  interest  if  paid  at  maturity,  but  if 
not  paid  then,  to  pay  a  higher  rate  from  the  date  of  the  note,  is 
not  a  penalty,  but  an  agreement  to  pay  a  higher  rate  on  a  con- 
tingency, and  is  enforceable:  Finger  v.  McOaughey,  114  CaL  64,  45 
Pac.  1004;  McKay  v.  Belknap  Sav.  Bank,  27  Golo^  50,  59  Pac  745; 
Daggett  v.  Pratt,  15  Mass.  177;  Scottish- American  Mortg.  Co.  v* 
Wilson,  24  Fed.  310. 

The  cases  are  numerous  which  hold  that  a  stipulation  in  a  note 
or  other  obligation  for  interest  from  the  date  of  such  obligation,  if 
not  paid  at  maturity,  is  valid.    Instruments  of  this  class  do  not 
provide  for   interest  if  paid  when  due,   though   the  day   of   their 
maturity  is  sometimes  fixed  at  a  very  brief  time  after  date:  Alex* 
ander  v.  Troutman,  1  Oa.  469;  Beeves  v.  Stipp,  91  HI.  609;  Haekea- 
berry  v.  Shaw,  11  Ind.  392;  Horn  v.  Nash,  1  Iowa,  204,  63  Am. 
Dec.  437,  and  note;  Bumsey  v.  Matthews,  1  Bibb   (Ky.)*  242;  Glover 
v.  Doty,  1  Bob.   (La.)   ISO;   Lalaade  v.  Breaux,  5  La.  Ann.  505; 
Bogers  v.  Sample,  33  Miss.  310,  69  Am.  Dec  849;  Satterwhite  v. 
McKie,  Harp.  (S.  C.)   397;  McNairy  v.  Bell,  1  Terg.  (Tenn.)   502, 
24  Am.  Dec.  454.    On  the  other  hand,  it  is  held  in  Waller  v.  Long, 
6  Munf.  (Va.)  71,  that  such  an  agreement  provides  for  a  penalty,  and 
the  interest  is  not  recoverable:   See,  too,  Fugua  v.   Carriel,  Minor 
(Ala.),  170,  12  Am.  Dec.  46.    In  Flanders  v.  Chamberlain,  24  Mich. 
305,  316,  when  this  question  was  under  consideration,  Justice  Chris- 
tiancy  said:  "As  this  note  shows  upon  its  face  that  it  was  to  draw 
no  interest  before  maturity,  if  then  paid,  it  is  claimed  that  this 
is  in  the  nature  of  a  penalty;   and  in  an  ordinary  case,  when  a 
note  is  given  for  a  precedent  debt,  I  am  strongly  inclined  to  think 
such  a  provision  for  interest  from   date,  at   ten  per  cent,   if  not 
paid  when  due,  ought  to  be  treated  as  a  penalty  rather  than  as 
stipulated  damages  for  nonpayment  at  the   day.    But  it  is  showa 
that  this  note  was  given  for  property  sold  on  these  specific  terms, 
such   being  the  condition  of  the  sale;   and  undoubtedly  a  vendor 
has  a  right   to   refuse  to  sell    except   upon    this  or  any    other    con- 
dition, and  such  being  the  condition  of  the  sale  in  pursuance  of  which 
the  note  was  given,  I  think  it  must  draw  interest  from  date  at  the 
rate  mentioned." 

in.    Whether  Snob  Transacttona  are  Usorioiia. 

We  have  now  to  consider  the  effect  of  usury  statutes  on  agree- 
ments for  exorbitant  interest  in  case  of  default.  This  question  is 
not  raisod  in  many  of  the  decisions.    In  some  of  the  recent  cases 


IFeh.  1902.]  Close  v.  Riddle.  589 

"tlie  rale  that  a  higher  rate  maj  be  contracted  for  after  default  is 
stated  with  the  qualification^  or  at  leaat  the  strong  implication,  that 
"the  stipulated  rate  must  be  lawful  and  not  in  excess  of  the  maximum 
r^te  allowed  by  statute:  Bee  Orapo  v.  Hefner,  53  Neb.  251,  73  N.  W. 
702;  Close  V.  Kiddle  (the  principal  case),  ante,  p.  580;  Linton  v. 
JNationol  Life  Ins.  Co.,  104  Fed.  584.  This  seems  a  most  reason- 
able limitation  on  the  rule.  Nevertheless,  there  are  authorities 
holding  that  an  agreement  in  a  note  to  pay  more  than  legal  inter- 
est after  it  is  due,  by  way  of  penalty  or  as  liquidated  damages, 
if  the  debt  is  not  ]^aid  punctually,  is  not  usurious:  Walker  v.  Abt, 
83  QL  226;  GambriU  v.  Bose,  8  Blackf.  (Ind.)  140,  44  Am.  Dee.  760; 
Oower  T.  Carter,  3  Iowa,  244,  66  Am.  Dec.  71;  Conrad  v.  Gibbon, 
29  Iowa,  120.  ''This  court  has  repeatedly  held,"  said  Justice 
Scott  in  Downey  y.  Beach,  78  BL  53,  ''that  contracts  like  this  one 
are  not  usurious,  if  made  with  a  single  purpose  to  secure  prompt 
payment  of  the  principal  sum.  Although  the  party  agrees  to  pay  a 
rate  of  interest  in  excess  of  that  allowed  by  statute,  after  maturity, 
it  is,  nevertheless,  regarded  as  in  the  natuie  of  a  penalty  to  secure 
prompt  payment.  .In  such  cases  the  penalty  is  liquidated  damages 
fixed  by  the  solemn  agreement  of  the  parties.  When  made  for  the 
sole  purpose  of  securing  prompt  payment,  and  understandingly  en- 
tered into,  such  contracts  are  valid  at  law,  and  may  be  enforced." 
In  Fisher  v.  Anderson,  25  Iowa,  28,  95  Am.  Dec  761,  it  is  adjudged 
that  a  promissory  note  is  not  usurious  which  stipulates  that  the 
principal  shall  draw  more  than  the  legal  rate  from  date,  if  the  note 
is  not  paid  when  due,  unless  it  appears  that  interest  has  been  in- 
cluded in  the  face  of  the  note,  and  a  recovery  thereon  is  sought  as  well 
as  on  the  principal. 

IV.    Waiver  of  the  Stipulation. 

The  benefit  of  a  provision  in  a  promissory  note  for  an  increased 
rate  of  interest,  if  payments  are  not  made  when  due,  may  be  lost 
by  waiver.  By  accepting  the  original  rate  the  payee  waives  his 
right  to  collect  a  greater  rate  for  the  time  past,  but  not  to  demand 
the  increased  rate  for  the  future:  Thompson  v.  Gorner,  104  Cal. 
168,  43  Am.  St.  Bep.  81,  37  Pac.  900.  And  if  the  payee  of  a  note 
which  provides  that  if  not  paid  when  due  the  maker  shall  pay  five 
per  cent  a  month  as  damages  from  its  maturity,  accepts  interest 
from  time  to  time  at  the  rate  of  ten  per  cent  per  annum  until  the 
death  of  the  maker,  he  will  be  held  to  have  waived  his  right  to  the 
damages  stipulated  for:  Bradford  v.  Hoiles,  66  111.  517.  But  if  the 
payee  in  a  note  bearing  ten  per  cent  interest  from  date  until  due 
and  fifteen  per  cimt  thereafter  if  not  then  paid,  being  pressed  not  to 
sue  soon  after  the  note  falls  due,  promises  that  he  will  not  sue  as 
long  as  he  can  help  it,  but  gives  no  definite  time,  this  Is  not  a 
waiver  of  his  right  to  exact  the  increased  rate  as  damages  for  non- 
payment at  maturity:  Funk  v.  Buck,  91  Dl.  575. 


OASES 

SUPKEME   COURT 


RHODE    ISLAND. 


CONNECTICUT  MUTUAL  LIFE  INSURANCE  COMPANY 

V.  TUCKER. 

[23   B-   I.    1,   49   Ati.   26.]  * 

IKTBBPLEADEB.-- The  Office  of  aa  Interpleading  suit  ia  not 
to  protect  a  party  against  a  double  liability,  but  against  double 
vexation  in  the  case  of  one  liability,     (p.  S92.) 

INSURANCE  CORPORATION 'Wben  Cannot  Compel  dain- 
ants  Under  Two  Policies  to  Interplead.— If  a  life  insurance  company 
issues  a  policy  upon  the  life  of  A,  payable  to  B,  but  if  B  should 
not  survive  A,  then  to  B's  children,  and  permits  B,  then  having 
children,  to  assign  to  A,  and  thereupon  issues  a  now  policy  payable 
to  the  estate  of  A,  the  corporation  cannot,  on  the  death  of  A,  main- 
tain a  bill  of  interpleader  against  the  persons  claiming  under  the 
two  policies,  because  it  may  be  liable  on  both.    (p.  592.) 

Chester  W.  Barrows,  for  the  complainant. 

Dexter  B.  Potter,  Joseph  W.  Sweeney,  Henry  M.  Boss,  Jr., 
James  A.  Williams,  and  John  S.  Murdock,  for  the  respondents. 

*  SOGERS,  J.  This  is  a  bill  of  interpleader  heard  on  biD 
and  answers  as  to  whether  the  parties  respondent  shall  be 
ordered  to  interplead. 

^  The  bill  avers  that  on  July  19,  1864,  on  the  application  of 
Olive  A.  Pinkham,  wife  of  Hervey  Pinkham,  a  policy  of  in- 
surance. No.  38,520,  was  issued  by  the  complainant  upon  the 
life  of  said  Hervey  for  two  thousand  dollars,  payable  to  said 
Olive,  if  living,  and  in  case  of  the  death  of  said  Olive  before 
the  decease  of  said  Hervey,  the  amount  of  said  insurance  to  be 
payable  after  her  death  to  her  children  for  their  use,  within 
ninety  days  after  proof  of  death  of  said  Hervey  furnished  to 

(MO) 


May,  1901.]  Connecticut  Mot.  Life  Ins.  Co.  v.  Tdckxb.     591 

paid  complainant;  that  on  August  4^  1869^  said  Oliye  assignol 
all  her  rights  title  and  interest  under  said  poUcy  to  her  bus- 
band,  the  said  Hervey,  and  of  this  assignment  said  complainant 
had  notice  August  6,  1869 ;  that  at  the  time  of  the  assignment 
from  said  Olive  to  said  Hervey  on  August  4,  1869,  there  were 
living,  issue  of  said  OUve,  a  son,  the  respondent  Frederick  Pink* 
ham,  and  a  daughter,  Julia  F.  Pinkham,  the  said  Frederick  and 
JuUa  being  the  only  children  ever  bom  to  said  Olive  and  said 
Hervey;  that  on  said  August  6,  1869,  said  Hervey  gave  the 
complainant  notice  of  said  assignment  by  said  OLive  to  him, 
and  transmitted  said  policy  to  complainant  with  the  request 
that  a  policy  be  reissued  bearing  the  same  date,  number,  and 
amount  as  the  said  surrendered  policy,  but  payable  to  the  estate 
of  said  Hervey,  and  that  the  complainant  did  on  August  9,  1869, 
in  accordance  with  said  request,  and  with  no  notice  or  knowl- 
edge of  any  other  equities  in  said  policy,  issue  a  new  policy 
in  manner  and  form  as  requested  by  said  Hervey;  that  on  July 
19,  1869,  said  Hervey  assigned  all  his  right,  title,  and  interest 
in  and  to  said  policy  No.  38,520  to  the  respondent  Darius  Pink- 
ham,  and  of  this  assignment  said  complainant  was  first  noti- 
fied January  14,  1879;  that  April  1,  1887,  said  Darius  made  a 
certain  promissory  note  to  the  respondent  Ulysses  Racine,  pur- 
porting to  give  said  Ulysses  a  lien  on  the  proceeds  of  said 
policy,  and  in  addition  thereto  said  Darius  pledged  said  policy 
to  said  Ulysses  as  security  for  the  payment  of  said  note;  that 
March  10,  1894,  said  Darius  assigned  said  policy  No.  38,520 
to  said  respondent  James  Tucker,  of  which  assignment  said 
complainant  had  notice  on  March  18,  1895 ;  that  the  said  Olive 
died  in  1887;  that  said  Hervey  died  July  2,  *  1890,  intestate, 
and  that  said  policy  became  a  claim  against  the  complainant, 
according  to  the  terms  thereof,  for  the  sum  of  nineteen  hun- 
dred and  eighteen  dollars  and  two  cents,  which  it  averred 
it  had  then  and  has  always  since  been  ready  and  willing  to 
pay  to  the  parties  legally  entitled  to  have  and  receive  the  same ; 
that  on  July  10,  1900,  said  respondent  Tucker,  and  on  August 
4,  1900,  said  respondent  Ulysses  Bacine,  respectively,  made 
claim  upon  the  complainant  for  the  payment  of  the  proceeds  of 
said  policy  to  them,  respectively,  and  that  said  respondent  Ulysses 
Bacine  began  suit  on  August  30,  1900,  against  the  said  Darius 
Pinkham  to  recover  the  balance  due  on  said  promissory  note, 
and  therein  summoned  the  complainant  as  trustee  of  the  said 
Darius  Pinkham ;  that  on  or  about  May  26,  1880,  said  Julia  F. 


592  American  State  Bbports^  Vol.  91.  [B.  L 

Pinkham,  who  had  previously  intermarried  with  one  W.  C.  G. 
Phetteplace^  died  intestate,  and  that  the  respondent  Batcliffe 
G.  E.  Hicks  has  been  duly  appointed  administrator  on  her  es- 
tate^ and  has  qualified  as  such^  and  that  the  respondent  Fred- 
erick A.  Jones  has  been  duly  appointed  administrator  on  the 
said  Hervey  Pinkham's  estate^  and  has  qualified  as  such.  The 
complainant  asks  for  leave  to  pay  said  sum  of  nineteen  hundred 
and  eighteen  dollars  and  two  cents  into  the  registry  of  the 
court,  and  that  the  several  respondents  be  required  to  inter- 
plead. The  respondents  have  severally  filed  answers,  some 
claiming  imder  said  policy  No.  88,520,  as  originally  issued, 
and  some  under  the  substituted  policy  No.  38,520;  and  the 
question  before  the  court  is  whether  this  is  a  proper  case  for 
interpleader. 

It  is  apparent  from  the  terms  of  the  policy  that  it  was  pay- 
able to  Mrs.  Olive  A.  Pinkham  only  in  case  she  surviyed  her 
husband,  Hervey  Pinkham ;  and  in  case  her  husband  survived 
her,  it  is  expressly  provided  that  the  policy  shall  be  payable  to 
her  children.  It  is  not  disputed  that  Mrs.  Pinkham  died  be- 
fore her  husband,  and  that  her  son,  the  respondent  Frederick 
Pinkham,  not  having  joined  in  any  assignment  of  his  bene- 
ficial interest  in  policy  No.  38,520,  as  originally  issued^  is  claim- 
ing here  under  that  policy.  So,  too,  we  understand  that  the 
respondent  Hicks,  administrator  of  the  estate  of  Julia  F. 
Phetteplace,  a  deceased  daughter  of  the  said  Olive  A.  and  Her- 
vey Pinkham,  is  also  claiming  under  *  said  policy  as  originally 
issued:  See  Connecticut  Mut.  life  Ins.  Co.  v.  Baldwin,  15  E. 
I.  106,  23  Atl.  105;  Connecticut  Mut.  Life  Ins.  Co.  v.  Bur- 
roughs, 34  Conn.  305,  91  Am.  Dec.  705;  Knickerbocker  life 
Ins.  Co.  V.  Weitz,  99  Mass.  157. 

On  the  other  hand,  all  the  other  parties  respondent,  and  if 
not  all,  some  of  them,  at  least,  claim  under  the  policy  as  re- 
issued. By  issuing  the  two  policies  the  complainant  has  ex- 
posed itself  to  claims  under  both,  and  must  meet  them  as  best 
it  can.  If  the  complainant  created  a  new  liability  upon  itself 
by  issuing  the  second  policy  without  obtaining  a  sufficient  dis- 
charge from  the  original  policy,  it  would  be  its  own  fault.  This 
is  not  a  case  of  a  double  demand  of  one  duiy;  but  it  is  a  case 
in  which  there  may  be  two  liabilities. 

Says  Sir  James  Wigram,  vice-chancellor,  in  Crawford  v. 
Fisher,  1  Hare,  43G,  441 :  "The  office  of  an  interpleading  suit 
is  not  to  protect  a  party  against  a  double  liability,  but  against 


Majy  1901.]    CoNNBoncuT  Mux.  Life  Ins.  Co.  v.  Tuoebb.    698 

double  vexation  in  respect  of  one  liability.  If  the  circnunstancea 
of  a  case  show  that  the  plaintiff  is  liable  to  both  claimants^ 
that  is  no  case  for  interpleader.  It  is  of  the  essence  of  an  in- 
terpleading suit  that  the  plaintiff  shall  be  liable  to  one  only 
of  the  claimants;  and  the  relief  which  the  court  affords  him 
is  against  the  vexation  of  two  proceedings  on  a  matter  which 
may  be  settled  in  a  single  suii*' 

In  National  Life  Ins.  Co.  v.  Pingrey,  141  Mass.  411,  6  N. 
E.  93,  where  the  facts  were  practically  identical  with  those 
in  the  case  at  bar,  the  supreme  judicial  court  of  Massachu- 
setts held  that  a  bill  of  interpleader  could  not  be  maintained : 
See,  also,  Greene  v.  Mumford,  4  E.  L  313;  Crawshay  v. 
Thornton,  2  Mylne  &  C.  1 ;  Jew  v.  Wood,  1  Craig  &  P.  185 ; 
Desborough  v.  Harris,  5  De  Oex,  M.  &  Q.  439;  Baker  v.  Bank 
«f  Australasia,  1  Com.  B.,  N.  S.,  515. 

In  our  opinion,  the  complainant  cannot  have  an  order  that 
the  respondents  interplead  when  one  important  question  to  be 
tried  is  whether  by  reason  of  its  own  act  it  is  under  different 
liabilities  to  more  than  one  of  these  respondents.  Upon  such 
a  question  the  complainant  ought  to  be  in  a  position  to  be 
heard;  but  on  a  bill  of  interpleader,  which  assumes  that  ^  the 
complainant  is  a  mere  stakeholder,  the  complainant  cannot  be 
heard:  Houghton  v.  Kendall,  7  Allen,  72. 

Bill  dismissed. 


THE  BIGHT  OF  INTEBPIiEADEB.* 

X.    Introductory. 

a.  Ooneral  Qrounds  and  Purposes  of  Interpleadinf. 

b.  Seal  Basis  of  tlio  Proceedings, 
c    Not  a  Proceeding  in  Bern. 

d.    Present  Scopo  of  the  Bemedy, 

1.  As  Affected  by  Statutes   (Generally. 

2.  Wlietlier  in  Disfavor. 

3.  Bills  in  the  Nature  of  Interpleader. 
H.    Essential  Prerequisites  to  the  Bight. 

a.  Time  of  FUing  BUl. 

h.  Disinterestedness  of  Complainant. 

c  Absence  of  Other  Bemedy. 

d.  Privity^Common  Somrce  of  Title. 

e.  Identity  of  Demands. 


^BEFEBENClM  TO  MONOGBAPHIC  MOTIS. 

Jnterpleftder  in  eqnitj  and  nnder  the  statutes:  86  Am.  Dea  G9fr-712. 
•abaUtotlng  one  panon  for  another  as  defendant:  1  Am.  St.  Bap.  ' 

▲m.  St.   Rep.,  Vol.   91—38 


594  American  State  Bepobts^  Vol.  91.  [R.  L 

f.  Doubt  and  Dlqnita  as  to  daims. 

1.  Oontroversy  Betwoen  the  dalinaiits. 

2.  Questton  as  to  the  Anurant  of  Claim. 

g.  Legal  and  EquitaUe  Demands. 

iL  Kecessity  and  Effect  of  Pending  Snits. 

L  Possession  of  the  Thing  in  Oontroveny. 

].  Deposit  or  Payment  into  Court, 

k.  Other  Conditions. 

m.    Persons  Entitled  to  the  Remedy. 

a.  Who  may  Interplead  in  GeneraL 

b.  Wrongdoers. 

c  Agents,  Brokers^  and  Vendors. 

d.  Attomeys. 

e.  Boceivers. 

f.  Purchasers  of  Personalty. 

g.  Tenants  and  Lessees. 

h.  Bailees^ Warehousemen  and  Deposit  Companiea* 

L  Banks. 

k.  Common  Carriers. 

L  Trustees, 

m.  Executors  and  Administrators. 

IV.    Property  and  Funds  Subject  to  Interpleading. 

a.  Money  Due  on  Building  Contracts* 

b.  Corporate  Stock  and  Dividends. 

c    Proceeds  of  Negotiable  Instruments. 

d.  Insurance  Money. 

e.  Damages  in  Eminent  Domain. 

f  •    Ftmds  that  have  been  Garnished, 
h.    Miscellaneous  Funds  and  Subjects. 

L    Introductory. 

a.  General  Grounds  and  Purposes  of  Interpleading.— A  bin  of  in> 
terpleader  lies  when  two  or  more  persons  severally  claim  the  same 
thing  under  different  titles  or  in  separate  icterests  from  another, 
who,  not  claiming  any  title  or  interest  therein  himself,  and  not  know- 
ing to  which  of  the  claimants  he  ought  in  right  to  render  the  debt 
or  duty  claimed^  or  to  deliver  the  property  in  his  custody,  is  either 
ntolested  by  an  action  or  actions  brought  against  him,  or  fears  that 
he  may  suffer  injury  from  the  conflicting  claims  of  the  parties.  Tlie 
lill  puts  the  defendants  to  contest  their  respective  claims,  so  that 
it  may  be  determined  to  whom  the  plaintiff  may  safely  render  the 
duty  in  question.  The  proceeding  presupposes  the  plaintiff  to  be  a 
ucre  stakeholder  for  one  or  the  other  of  the  defendants;  and,  in 
general,  the  case  must  be  one  in  which  he  may  deposit  the  money 
cr  property  in  court,  and  be  discharged  from  liability.  He  must 
say,  in  the  words  of  Lord  Cottenham,  ''I  have  a  fund  in  my  pos- 
session in  which  I   claim   no   interest  and   to   which  you,   the  de- 


May,  1901.]    Connecticut  Mut.  Life  Ins.  Co.  v.  Tucker.     595 

fendants,   set  up  eonfiicting   claims;   pay  xne  my  costs,   and  I  will 
bring   the  fund  into  court,  and  vou  shall  contest  it  among  your- 
nclves."    It  will  appear  fiom  the  foregoing  that  to  maintain  such  a 
suit,  it  is  generally  neeessaiy  to  allege  and  show  that  two  or  more  per- 
sons have  preferred  a  claim  against  the  plaintiff;  that  they  claim  the 
8ame  thing;  that  the  pli^ntiff  has  no  beneficial  interest  in  anything 
cl&imed;   and  that  he  cannot   determine  without   hazard   to  himself 
to  which  of  the  defendants  the  money  or  thing  belongs:  Gibson  v» 
Goldthwaite,  7  Ala.  281,  42  Am.  Dec.  592;  National  Sav.  Bank  y^ 
Cable,  73  Conn.  568,  48  Atl.  428;  Tyus  v.  Rust,  37  Ga.  574,  95  Am. 
Dec.  365;    Bym  v.   Lamson,   153   Dl.   520,   39   N.   E.   979;    National 
Park  Bank  v.  Lanahan,  60  Md.  477,  514;  Cobb  v.  Rice,  130  Mass.  231; 
Bliss  V.  French,  117  Mich.  .538,  76  N.  W.  73;  Monks  v.  Miller,  13  Mo. 
App.  363;  Sullivan  v.  Knights  of  Father  Mathew,  73  Mo.  App.  43; 
Funk  v.  Avery,  84  Mo.  App.  490;  Hartford  etc.  Ins.  Co.  v.  Cum- 
miugs,  50  Neb.  236,  69  N.  W.  782;  Orr  Water  Ditch  Co.  v.  Larcombe, 
14    Nov.  53;   Smith  v.  Kuhl,  25  N.  J.  Eq.  38;   Aymer  v.   Gault,   2 
Paige,  284;  Supervisors  of  Saratoga  v.  Seabury,  11  Abb.  N.  C.  461;; 
Bassett  v.  Leslie,  123  N.  Y.  396,  25  N.  E.  386;  First  Nat.  Bank  w 
Beebe,  62  Ohio  St.  41,  56  N.  E.  485;  Goodrich  v.  Williamson,  10  Okla.: 
588, 63  Pae.  974;  North  Pacific  Lumber  Co.  v.  Lang,  28  Or.  246,  52  Am. 
St.  liep.  780,  42  Pac.  799;  Barnes  v.  Bamberger,  196  Pa.  St.  123,  4& 
AtL   303;   Greene  v.  Mumford,  4  B.  I.  313,  317;  Sioux  Falls  Sav^ 
Bank  v.  Lien,  14  S.  Dak.  410,  85  N.  W.  924;  Bolin  v.  St.  Louis  ete. 
By.  Co.  (Tex.  Civ.  App.),  61  S.  W.  444;  Mosher  v.  Bruhn,  15  Wash. 
332,  46  Pac.  397;   Carstens  v.  Gustin,  19  Wash.  403,  53  Pac.  550; 
Hechmer  v.  Gilligan,  128  W.  Ya.  750;  Louisiana  State  Lottery  Co.  ¥» 
Clark,  16  Feil.  20;  McWhirter  v.  Halsted,  24  Fed.  828. 

"b.  Beal  Basis  of  the  Proceeding.— The  essential  incident  of  th» 
equity  which  justifies  an  interpleader  is,  that  the  complainant,  s» 
far  as  his  own  acts  ure  concerned,  is  under  but  a  single  liability- 
to  pay  or  deliver  the  fund  or  thing  in  dispute,  and  yet  is  called 
upon  to  pay  or  deliver  to  two  or  more  contesting  claimants:  Ireland 
V.  Kelly,  60  N.  J.  Eq.  308,  47  Atl.  51.  The  true  basis  of  the  remedjr 
is  the  danger,  or  apprehension  of  danger,  to  the  complainant  due  lo> 
the  conflicting  claims  of  the  defendants;  and  its  object  is  to  protect 
liim,  when  he  stands  ready  to  discharge  his  duty  when  the  same  is 
ascertained:  Newhall  v.  Kastens,  70  III.  156;  Farley  v.  Blood,  30  N. 
H.  354.  But  it  must  appear  that  the  claims  have  some  reasonable 
foundation;  and  that  there  is  a  reasonable  doubt  aa  to  whether  pay- 
ment or  delivery  may  safely  be  made.  The  meie  fact  of  adverse 
claims  is  not  suficient:  National  Bank  v.  Augusta  Cotton  Compress 
Co.,  99  Ga,  286,  25  S.  E.  686;  Southwark  Nat.  Bank  v.  Childs,  57 
K.  Y.  Supp.  789,  89  App.  Dlv.  560;  Post  v.  Emmett,  58  N.  Y.  Supp. 
129,  40  App.  Div.  477. 

But  apart  from  this,  the  object  of  an  interpleading  suit,  said  the 
▼ice-chancellor  in  Crawford  v.  Fisher,  1  Hare,  436,  441,  *'is  not  ta 


696  American  State  Eeports,  Vol.  91.  [B.  L 

protect  a  party  against  a  double  liability,  but  against  a  double 
vexation  in  respect  of  one  liability.  If  the  circumstanees  of  a  ease 
show  that  the  plaintiff  is  liable  to  both  claimants,  that  is  no  ease 
for  interpleader.  It  is  of  the  essence  of  an  interpleading  sait  that 
the  plaintiff  shall  be  liable  to  one  only  of  the  claimants;  and  the  re- 
lief which  the  court  affords  him  is  against  the  vexation  of  two  pro- 
ceedings on  a  matter  which  may  be  settled  in  a  single  suit."  To 
the  same  effect,  see  the  principal  case,  ante,  p.  590.  "The  reason 
for  the  jurisdiction  and  remedy  by  bill  of  interpleader  is  not  so 
much  the  danger  to  the  complainant  of  two  recoveries  for  the  same 
thing,  as  the  vexation  arising  from  different  daimanta  Indeed, 
theoretically,  there     cannot  be  a  danger  of  two  recoveries  for  the 

same  thing The  true  reason  for  the  remedy  is  the  risk   of 

vexation  and  expense  from  two  or  more  suits  by  different  parties 
for  the  recovery  of  the  same  thing":  Livingstone  v.  Bank  of  Mon- 
treal, 50  HI.  App.  562- 

It  is  well,  however,  to  read  in  this  connection  the  observation  of 
the  chancellor  in  Hastings  v.  Cropper,  3  Del.  Ch.  165,  176:  ''An  in- 
terpleader is  a  proceeding  in  equity  for  the  relief  of  a  party  against 
whom  there  are,  at  law,  separate  and  conflicting  claims,  whether  in 
suit  or  not,  for  the  same  debt,  duty,  or  thing,  and  where  a  recovery 
hj  one  of  the  claimants  will  not,  at  law,  protect  the  party  against 
a  recovery  for  the  same  debt  or  duty  by  the  other  claimant.  It 
i4  out  of  the  latter  circumstance  that  the  equity  to  relief  arises. 
For,  although  there  may  be  two  conflicting  claims  or  processes  pend- 
ing against  the  same  party,  yet  if  his  being  fixed,  at  law,  for  ons 
discharges  him  from  the  other,  he  needs  no  relief  in  equityi  aad 
a  bill  of  interpleader  does  not  lie." 

If  the  determination  of  the  dispute  between  the  claimants  will 
settle  the  claim  of  each,  they  should  be  compelled  to  litigate  with 
each  other,  the  complainant  having  no  interest  further  than  the 
rightful  disposition  of  the  fund  or  thing  in  controversy.  The  con- 
flicting claims  may  arise  wholly  because  of  the  acts  or  omissions  of 
the  contending  parties,  and  entirely  without  the  fault  or  participa- 
tion of  the  complainant;  yet,  unless  he  is  protected  by  the  court,  he 
may  be  subjected  to  actions  by  each  party,  and  obliged  to  defend 
several  suits,  though  all  the  while  ready  to  pay  the  money  or  de- 
liver the  property  in  disput  if  he  knows  to  whom  he  may  rightfully 
fay  or  deliver  it.  Clearly,  he  has  an  equity  under  such  cireum- 
etances  to  bring  all  the  claimants  into  court,  and,  delivering  the 
fund  or  property,  to  say:  "I  have  no  contention  with  any  of  you. 
Dismiss  me,  and  settle  your  disputes  among  yourselves." 

c  Not  a  Proceeding  in  Bem.~An  interpleader  suit  is  not  a  pro- 
ceeding in  rem,  so  that  personal  notice  can  be  dispensed  with:  Wash- 
ington Life  Ins.  Co.  v.  Gooding,  19  Tex.  Civ.  App.  490,  49  S.  W. 
123.  Thus,  if  an  insurance  company  files  a  bill  of  interpleader  in 
cne  state  alleging  that  a  fund  due  under  a  policy  is  claimed  by  aev- 


May,  1901.]     Connecticut  Mut.  Life  Ins.  Co.  v.  Tuckeb.    597 

eral  x>arties,  and  pays  the  money  into  eourt,  a  decree  awarding  th» 
fund  to  another  claimant  is  not  binding  on  a  nonresident  adminis- 
trator, who  was  not  a  party  to  the  snit  except  by  publication:  Ex- 
pressman's  Mut.  Ben.  Assn.  v.  Hurloek,  91  Md.  585,  80  Am.  8t.  Bep» 
470,  46  Atl.  957. 

d.    Present  Scope  of  the  Bemedy. 

1.  As  Affected  by  Statutes  Generally.— The  proceedings  in  inter- 
pleader are  strictly  equitable  in  character:  Funk  v.  Avery,  84  Mo» 
App.  490.  From  the  earliest  times,  however,  the  right  of  inter- 
pleader  in  certain  cases  existed  at  law.  But  the  old  system  gen- 
erally has  very  much  fallen  into  disuse  in  modern  practise  by  the 
adoption  of  a  more  comprehensive,  flexible,  and  expeditious  statu- 
tory system.  The  remedy  given  by  statute  does  not  necessarily  oust 
courts  of  equity  of  their  jurisdiction  to  proceed  by  bill  of  inter- 
pleader, but  is  often  regarded  as  merely  a  concurrent,  cumulative^ 
or  auxiliary  remedy:  See  the  monographic  note  to  Shaw  y.  Coster» 
35  Am.  Dec  709-711;  Board  of  Education  y.  Seoville>  13  Kan.  17; 
Hartford  Annuity  Ins.  Go.  v.  Cummings,  50  Neb.  236,  69  N.  W» 
782;  First  Nat.  Bank  v.  Beebe,  62  Ohio  St.  41,  56  N.  £.  485:  Brock  v. 
Southern  By.  Co.,  44  S.  G.  444,  22  S.  E.  601. 

2.  Wbefher  In  Disfavor.— In  some  of  the  earlier  decisions  it  is 
said  that  bills  of  interpleader,  on  account  of  the  delay  and  expense 
they  occasion,  are  not  encouraged,  and  that  they  will  not  be  en- 
tertained except  in  cases  where  the  complainant  can  in  no  other 
manner  protect  himself  from  unjust  litigation  in  which  he  has  no 
interest:  See  Bedell  v.  Hoffman,  2  Paige,  201;  Greene  v.  Mumford^ 
4  li.  I.  313.  So  far  as  this  language  may  convey  the  idea  that  inter- 
pleading suits  are  in  disfavor,  it  is  misleading.  Gourts  are  liberal 
in  protecting  stakeholders  against  conflicting  claims,  and  from 
vexation  and  embarrassment  attending  litigation  concerning  the- 
Bubject  matter  of  contention.  And  while  the  operation  of  strict  bills 
of  interpleader  was  somewhat  limited  and  their  usefulness  more  or 
less  impaired  under  the  old  practise  by  rigid  and,  in  some  respects^ 
artificial  rules,  in  modem  practise  the  scope  of  int«7)leading  has 
generally  been  broadened,  and  the  rules  governing  its  exercise  have 
been  made  more  flexible  and  liberal.  To  say  that  courts  are  dis- 
posed to  discourage  this  beneficent  remedy  would  be  far,  indeed, 
from  the  truth:  See  Union  Trust  Go.  v.  Stamford  Trust  Go.,  72  Conn. 
86,  43  Atl.  555;  Order  of  Golden  Gross  v.  Merrick,  163  Mass.  374,  40 
N.  E.  183;  School  Dist.  v.  Weston,  31  Mich.  85;  Hartford  etc.  Ins. 
Co.  V.  Gummings,  50  Neb.  236,  69  N.  W.  782;  Webster  v.  Hall,  60 
N.  H.  7;  McFadden  v.  Swinerton,  36  Or.  336,  59  Pac.  816,  62  Pac. 
12.  Nevertheless,  it  will  be  found  on  an  examination  of  portions 
of  this  note  that  some  courts  persist  in  adhering  to  arbitrary  and 
technical  rules  laid  down  in  the  past,  ^v^hich  is  deplorably  true  of 
every  branch  of  the  law.  In  compiling  such  decisions,  however,  we 
would  not  be  understood  as  lending  them  our  approvaL 


^98  American  Statb  Bbpobts^  Vol.  91.  [B.  L 

3.  Bi]l8  In  the  Nature  of  Interpleader.— Thoagli  biHs  of  inters 
})leader  are  strictly  limited  to  eertain  classes  of  cases,  there  ie  a 
bill  in  the  nature  of  a  bill  of  interpleader  in  which  the  same  striet- 
ness  is  not  required.  Under  such  a  bill  tbe  complainant  maj  sedc 
Aillrmatiye  relief,  so  that  the  fact  that  he  claims  some  sabstantial 
interest  or  right  in  the  subject  matter  in  controversy,  or  does  not 
adAiit  the  whole  of  the  defendants'  claims,  does  not  bar  him  of  the 
Tight  to  such  remedy:  See  Curtis  v.  Williams,  35  HI.  App.  518; 
Dorn  V.  Fox,  61  N.  Y.  264;  Groves  v.  Sentell,  1S3  U.  8.  465,  14  Snp. 
<X  Eep.  905;  Provident  etc.  Assur.  Soc.  v.  Loeb,  115  Fed.  357.  It 
would  conduce  to  the  ends  of  justice  if  the  distinctions  between  bills 
«f  interpleader  and  bills  in  the  nature  of  bills  of  interpleader  were 
^one  away  with,  and  it  is  believed  that  a  long  step  in  this  direction 
lias  been  taken  by  statute  in  most  of  the  commonwealths:  See  Union 
^rust  Co.  V.  Stamford  Trust  Co.,  72  Conn.  86,  43  Atl.  555, 

n.    Essential  Prereqnisites  to  the  Bi^t. 

u.  Time  of  Filing  BilL— A  bill  of  interpleader  should  be  filed  be- 
fore judgment,  for  after  the  determination  of  the  right  by  a  Jndg- 
meht  at  law  equity  cannot,  as  a  rule,  interfere:  Moore  v.  Hill,  59 
Oa.  760;  Union  Bank  v.  Kerr,  2  Md.  Ch.  460;  Dodds  v.  Gregory, 
'61  Miss.  351;  De  Zouche  v.  Garrison,  140  Pa.  St.  430,  21  AtL  450; 
l>anaher  v.  Prentiss,  22  Wis.  311.  Thus,  where  a  debtor  with  no- 
itiee  of  the  assignment  of  a  claim  of^  his  debtor  permits  the  assignee 
^vnd  also  an  attaching  creditor  to  obtain  judgments  against  him,  a 
ibill  to  require  them  to  interplead  their  rights  eomes  too  late:  Haael- 
tine  V.  Brickey,  16  Gratt.  (Va.)  116.  And  in  Yarborongh  v.  Thomp- 
con,  3  Smedes  &  M.  (Miss.)  291,  41  Am.  Dec.  626,  two  jndgmentt 
having  been  rendered  against  a  garnishee,  one  in  favor  of  an  at- 
taching creditor  and  the  other  in  favor  of  an  assignee  of  the  note^  the 
note  being  in  fact  the  foundation  of  both  judgments,  and  the  garnishee 
having  defended  in  both  cases,  it  was  held  that  a  bill  of  inter- 
j&leader  would  not  lie. 

It  has  been  decided,  however,  that  it  is  no  cause  of  demurrer  to 
«E  bill  that  it  is  filed  after  judj^ment,  no  defense  having  been  made 
against  the  recovery  of  the  judgment,  when  the  defense  in  whole 
«r  in  part  is  equitable  only.  Though  by  thus  delaying  his  bill  the 
complainant  subjects  himself  to  the  burden  of  bringing  the  mouey 
into  court,  he  is  not  deprived  of  his  right:  Lozier  y.  Van  Sann,  3  N. 
J.  Eq.  325. 

b.  Disinterestedness  of  Oomplainant.— One  of  the  First  Kwientlals 
•of  the  remedy  of  interpleader  is,  that  the  complainant  must  not  iiave 
aucurred  any  independent  liability  to  either  of  the  daimanta.  He 
must  stand  indifferent  between  them,  in  the  position  of  a  mere  stake* 
(holder.  Nor  may  he  claim  any  interest  in  the  subject  matter  of 
•dispute.  If  he  is  under  a  liability  to  one  of  the  defendants,  or 
claims  any  right  in  the  money  or  thing  in  controversy,  the  bill  will 


Majy  1901.]    CoNKXCTiGOT  MuT.  Life  Inb.  Co.  v.  Tuckbb.    699 

not  lie.  Hia  position  must  be  one  of  "eontinnons  impartiality''  and 
disinterestednesfl^  save  that  the  thing  in  his  possession  be  awarded  to 
the  right  party:  Kyle  y.  Mary  Lee  Coal  etc.  Co.,  112  Ala.  606,  20 
8oath.  851;  Whitbeck  y.  Whiting,  59  SL  App.  520;  Long  y.  Barker, 
S5  m.  431;  Castner  y.  Twitehe]l-Ohamplin  Co.,  91  Me.  524,  40  Atl. 
558;  Kerr  y.  Union  Bank,  18  Md.  396;  Sprague  y.  Bole,  35  Mich. 
33;  Blue  v.  Watson,  59  Miss.  619;  Knile  y.  Beddick  (N.  J.  Eq.), 
39  AtL  1062;  Cromwell  y.  American  Loan  etc  Co.,  57  Hun,  149,  11 
N.  T.  Siipp.  144;  Wenstrom  Electric  Co.  y.  Bloomer,  85  Hun,  389, 
32  N.  Y.  Supp.  903;  Braekett  y.  GraYos,  51  N.  Y.  Supp.  895,  30 
App.  Div.  162;  De  Zouche  y.  Qarrison,  140  Pa.  St.  430,  21  Atl.  450; 
French  y.  Bobechard,  50  Yt.  43;  Killian  y.  Ebbinghaus,  110  U.  S. 
568,  4  Sup.  Ct.  Rep.  232;  Bichardson  y.  Belt,  13  App.  D.  C.  197. 

This  was  the  old  mle  of  chancery  practise.  It  hss  been  Yery  con- 
siderably relaxed:  Union  Trust  Co.  y.  Stamford  Trust  Co.,  72  Conn. 
86,  43  AtL  555.  But  though  it  be  conceded  that  the  assertion  of  a 
perfect  disinterestednesa  is  an  essential  of  a  bill  of  interpleader,  yet 
*'the  interest  in  the  subject  matter  of  the  suit  sufficient  to  deny  the 
complainant  the  right  to  bring  a  strict  bill  of  interpleader  must  be 
a  substantial,  contested  right;  otherwise,  no  such  bill,  howoYor 
meritorious  the  case^  could  oyot  be  entertained":  McNamara  y. 
ProYident  etc  Assur.  Soc,  114  Fed.  910,  914.  It  is  no  objection 
that  the  complainant  has  an  interest  in  respect  to  other  property  not 
in  the  suit  but  which  might  be  litigated,  that  one  party  rather 
than  the  other  should  succeed  in  the  interpleader  proceeding,  so  as 
to  increase  his  own  prospects  of  success  in  regard  to  such  prop- 
erty. Such  interest  may  be  regarded  an  interest  in  the  question, 
but  not  in  the  particular  suit:  Oppenheim  y.  Wolf,  3  Sand.  Ch. 
(N.  Y.)  571.  And  the  mere  fact  that  a  contract  relation  exists 
between  the  plaintiff  and  defendant  in  relation  to  the  fund  in  dis- 
pute is  not  necessarily  fatal  to  the  right  of  interpleader:  Bechtel 
Y.   Sheafer,   117  Pa.  St.   555,   11   Atl.  889. 

It  is  held  that  a  trustee  who  is  entitled  to  commissions  if  the 
deed  of  trust  is  enforced  cannot  be  said  to  be  an  indifferent  stake- 
holder without  any  interest  in  the  subject  matter:  National  Park 
Bank  y.  Lanahan,  60  Md.  477.  Nor  can  the  complainant,  if  certain 
defendants  haYO  recoYered  judgments  against  him.  After  that,  ''it 
is  impossible  for  him  to  occupy  a  position  of  strict  neutrality  be- 
tween the  parties":  Home  Life  Ins.  Co.  y.  Caulk,  86  Md.  385,  38 
AtL  901.  The  complainant  .cannot  adjust  his  own  claims  against  the 
matter  in  controYersy,  and  ask  the  defendants  to  interplead  as  to 
the  remainder.  And  he  cannot  maintain  a  bill  when  he  denies  his 
liability  to  either  claimant  as  to  part  of  the  fund,  although  he  ad- 
mits  his  liability  as  to  the  balance:  Southwestern  TeL  etc  Co.  y. 
Benson,  63  Ark.  283,  88  8.  W.  341;  Williams  y.  Matthews^  47  N.  J. 
Eq.  196,  20  AtL  261. 


600  American  State  Reports^  Vol.  91.  [R.  I. 

c.  AtMience  of  Otbar  Bemedy.— Another   general   mie   of   inter- 
pleader is,  that  a  bill  ;virill  not  lie  except  when  the  eomplainant   has 
no  other  way  to  protect  himself  from  litigation  in  which    he    has 
no  interest:  Fetterhofl  v.  Sheridan,  94  Md.  445,  51  Atl.  123;  Harvej 
V.  Raynor,  66  N.  Y.  Supp.  490,  32  Misc.  Bep.  639;  Carroll  ▼.  Parks» 
60  Tenn.  (1  Baxt.)  269;  Hinckley  v.  Pfister,  83  Wis.  64,  53  K.   W. 
21;  Eillian  v.  Ebbinghaus,  110  U.  S.  568,  4  Sup.  Ct  Bep.  232.     Still, 
an  interpleader  suit  has  been  sustained  upon  other  grounds  than 
absolute    nocessity.    The    complainant    may    be     entitled  to  relief^ 
though  he  need  not  have  come  into  equity.    And  clearly  he   can- 
not be  driven  from  one  remedy  in  equity,  because  he  may  have  an- 
other  equitable  remedy   that   may  be   considered  more   convenient 
to  pursue:  See  Curtis  v.  Williams^  35  IlL  App.  518,  531;  Lozier  y» 
Van  Saun,  3  N.  J.  Eq.  325;  Langston  v.  Boylston,  2  Ves.   109. 

d.  PrlTity— Oommon  Souzce  of  Title.— It  is  often  laid  down  that 
one  of  the  essential  requisites  to  equitable  relief  by  bill  of  inter- 
pleader is,  that  the  adverse  titles  of  the  respective  claimants  must  be 
connected  or  dependent,  or  one  derived  from  the  other  or  from  a 
common  source.  There  must  be  privity  of  some  sort  between  all 
the  parties,  such  as  privity  of  estate,  title,  or  contract;  and  the 
claims  should  be  of  the  same  nature  or  class:  Kyle  y.  Mary  Lee  Coal 
etc.  Co.,  112  Ala.  606,  20  South.  851;  Third  Nat  Bank  v.  Skillings 
Lumber  Co.,  132  Mass.  410;  Goodrich  v.  Williamson,  10  Okla.  588» 
63  Pac.  974;  North  Pacific  Lumber  Co.  v.  Lang,  28  Or.  246,  52  Am. 
St.  Bep.  780,  42  Pac.  799;  Wells,  Fargo  &  Co.  v.  Miner,  25  Fed.  533. 

''While  the  early  authorities  were  exacting  upon  this  subject,, 
many  of  the  later  cases  have  been  less  rigid,  and  some  have  ignored 
it  altogether.  The  doctrine  seems  to  have  been  abrogated  in  Eng- 
land, partly  by  statute,  and  partly  by  judicial  decisions.  Mr.  Pom- 
eroy,  referring  to  the  rule,  says  that  'it  is  a  manifest  imperfectioa 
of  the  equity  jurisdiction  that  it  should  be  so  limited.  A  person 
may  be  and  is  exposed  to  danger,  vexation,  and  loss  from  conflicting 
independent  claims  to  the  same  thing,  as  well  as  from  claims  that 
are  dependent,  and  there  is  certainly  nothing  in  the  nature  of  tUe 
remedy  which  need  prevent  it  from  being  extended  to  both  classes 
of  demands':  Pomeroy's  Equity  Jurisprudence,  sec  1324,  note.  Our 
statutory  interpleader  does  not  recognize  the  doctrine.  A  somewhat 
similar  statute  in  England  led  the  courts  of  that  country  to  declare 
that  they  no  longer  felt  bound,  even  in  an  equity  action,  by  the  nar- 
row principle  previously  laid  down:  Attenborough  y.  London  etc 
Dock  Co.,  L.  B.  3  C.  P.  D.  450.  It  is  not  necessary,  however,  for 
us  to  decide  whether  the  rule  still  exists,  or  to  what  extent  it  exists 
in  this  state;  because,  according  to  the  most  exacting  authorities, 
where  the  adverse  titles  of  the  claimants  are  both  derived  from  a 
common  source,  it  is  sufficient  to  authorize  an  interpleader":  Craae 
V.  McDonald,  118  N.  Y.  648,  23  N.  E.  99L 


May,  1901.]  Ck>NNacTicDT  Mut,  Life  Ins.  Co.  v.  Tugkxb.    601 

Since  the  adverse  elaims  maj  arise  from  saeh  an  endless  variety 
•f  eanses^  it  is  difficult  to  define  any  limitation  which  must  deprive 
the  holder  of  the  fund  or  property  of  his  right  to  be  protected. 
And  this  strict  rule  seems  so  artificial  that  we  do  not  hesitate  to 
indorse  the  dictum  of  the  New  York  court,  and  the  opinion  of  the 
well-known  writer  of  equity  jurisprudence  there  quoted.  In  Cali« 
f  omiay  an  action  of  interpleader  can  be  maintained,  and  the  appli* 
eant  or  plaintiff  discharged  from  liability  to  all  or  any  of  the  con- 
flicting claimants^  although  their  titles  or  claims  have  not  a  common 
origpLn,  or  are  not  identical,  but  are  adverse  and  independent  ot  one- 
another:  See  Fox  v.  Sutton,  127  GaL  S15,  59  Pac.  939. 

In  Boyle  v.  Manion  (Miss.),  21  South.  530,  it  is  held  that  an 
ix&terpleader  will  lie  by  one  sued  on  an  open  account  for  timber 
cut  trom  the  plaintiff's  land,  when  the  proceeds  of  the  timber  are 
also  claimed  by  third  persons  who  set  up  paramount  title  to  the 
land.  The  contention  was  made  that  interpleader  would  not  lie 
because  the  claimants  claimed  by  paramount  title,  and  not  by  any 
privity  with  the  debtor.    But  the  court  was  of  a  contrary  opinion. 

e.  Identity  of  Demands. — A  still  further  general  condition  to  the 
right  of  interpleader  is,  that  the  same  debt,  duty,  or  thing  must  be 
claimed  by  the  contestants;  that  is,  the  subject  matter  of  their 
claims  must  be  identical:  Hayes  v.  Johnson,  4  Ala.  267;  Wallace  v. 
Sortor,  52  Mich.  159,  17  N.  W.  794;  Freda  v.  Montauk  Co.,  55  N.  T. 
Sapp.  748,  26  Misc.  Bep.  199;  Carroll  v.  Demarest,  58  N.  Y.  Supp. 
1028,  42  App.  Div.  155;  Goodrich  v.  Williamson,  10  Okla.  588,  63  Pac. 
974;  Lincoln  v.  Butland  etc.  B.  B.  Co.,  24  Yt.  639;  Wells,  Fargo  k 
Go.  V.  Miner,  25  Fed.  533.  The  purchaser  of  land  who  pays  part  of 
the  price  in  cash,  and  g^ves  his  note  for  the  balance  cannot,  when  the 
mortgage  note  and  the  purchase  money  note  are  transferred  to  differ- 
ent persons,  maintain  a  bill  of  interpleader  against  them:  Wilkinson  v. 
Searcy,  74  Ala.  243.  And  when  the  subject  of  the  action,  as  appears 
from  the  complaint,  differs  from  the  subject  of  the  action  as  dis- 
elosed  by  the  answer  and  cross-complaint  of  the  third  party  brought 
in  to  interplead,  the  case  is  not  a  proper  one  for  interpleader:  John- 
aon  V.  Oliver,  51  Ohio   St.  6,  36  N.  E.  458. 

But  this  rule  is  not  inflexible.  The  statutes  of  California  authorize 
an  action  of  interpleader,  although  the  conflicting  claims  are  not 
identical:  See  Fox  v.  Sutton,  127  Cal.  515,  59  Pac  939.  But  apart 
from  special  statutory  provisions,  the  general  rule  holds  true  "only 
where  each  party  claims  that  a  single,  undivided  sum  in  the  hands 
of  a  custodian  or  stakeholder  is  wholly  payable  to  him.  In  such  a 
case  the  variance'  in  amount  would  show  that  one  party 's  claim  was 
not  in  conflict  with  the  other.  But,  in  cases  where  claims  are  for 
unliquidated  damages,  each  defendant  might  allege  a  different  value 
and  claim  a  different  amount,  and  yet  interpleader  would  be  the 
proper  remedy:  Pomeroy's  Equity  Jurisprudence^  sec  1323;  note  1* 


602  Ambbican  Statb  Bbpobts^  Vol.  91.  [R.  L 

So  in  eases  where,  a  fond  being  in  eomplainant's  hands,  the  iHiola 
is  claimed  by  one  defendant^  and  parts  by  others,  or  where   the 
aggregate  of  all  the  claims  exceeds  the  full  amount  of  the  tumdz 
School  Diet.  ▼.  Weston,  31  Mich.  85.    Additional  illustrations  msky  be 
found  in  many  interpleader  suits  in  this  court,  under  the  mechanics' 
lien  actfi^  when  the  contract  is  filed,   and   noticing  creditors    and 
holders  of  equitable  assignments  are  brought  in  because  their  claims 
upon  the  contract  price  conflict.    In  these  cases  the  claims   often 
vary  widely  in  amount,  and  sometimes  involve  little  other  dispute 
than  a  settlement  of  the  order  of  their  priority;  yet,  if  the  situation 
be  such  that  the  contract  price  is  not  enough  to  pay  all,  and  the  owner 
may  be  compelled  to  determine  the  order  of  priority  of  payment,  it 
is  common  practise  in  this  state  to  settle  the  rights  of  all  the  claim- 
ants under  an  interpleader  bill.    In  the  following  cases,  there  were 
claims  for  different  amounts  made  in  interpleader  cases  which  were 
entertained  in  this  court:  Trenton  Schools  ▼.  Heath,  15  N.  J.  £q.  22; 
Wakeman  v.  Kingsland,  46  N.  J.  Eq.  113,  18  Atl.  680;  Lanigan  r. 
:>radley  &  Currier  Co.,  50  N.  J.  Eq.  202,  24  AtL  505;  Board  ▼.  Dapar- 
quet,  50  N.  J.  Eq.  234,  24  Atl.  922. 

''In  this  ease  under  consideration,  each  of  the  defendants  con- 
tracted [the  contracts  were  made  by  the  complainant  with  the  de- 
fendants for  the  filling  in  of  League  Island]  separately  to  work  on 
the  same  employment,  and  each  contract  specified  a  mode  of  estimat- 
ing their  compensation,  which  required  an  ascertainment  of  the 
number  of  cubic  yards  of  material  which  each  deposited  in  place. 
Each  knew  that  the  other  was  to  be  paid.  Each  then  contributed 
to  the  creation  of  a  confusion  in  the  deposit  which  prevented  aa 
exact  ascertainment  of  the  number  of  cubic  yards  which  he  had  pnt 
in  place The  result  was  certain  and  obvious  from  the  be- 
ginning. In  the  case  in  hand,  each  party  in  default  now  seeks  to 
compel  the  complainant,  who  contributed  nothing  to  create  the  con- 
fusion, to  pay  for  such  a  quantity  of  cubic  yards  of  material  in  place 
that  the  total  for  which  payment  is  claimed  by  the  two  exceeds  the 
admitted  aggregate  amount  deposited.  The  complainant  is  thus, 
without  fault  on  his  part,  subjected  to  the  risk  of  these  conflictiiig 
claims,''  and  is  entitled  to  a  bill  of  interpleader:  Packard  v«  Steven^ 
58  N.  J.  Eq.  489,  46  Atl.  250. 

f  •    Doubt  and  Dispnta  as  to  Olaliiis. 

1.  Ck>ntroYer87  Between  the  Claimants.— The  complainant  must 
show,  as  a  prerequisite  to  maintaining  an  interpleading  suit,  that 
there  is  a  bona  fide  dispute  or  controversy  between  the  defendants 
ss  to  their  right  to  the  fund  or  thing  in  his  possession,  and  that  he 
in  in  doubt  as  to  which  of  them  is  the  rightful  claimant,  so  that  he 
cannot  safely  pay  or  deliver  to  either.  And  the  doubt  must  be  a 
reasonable  one;  any  doubt  is  not  sufficient.  Otherwise  an  inter- 
pleader will  not  lie:  Partlow  v.  Moore,  184  HL  119,  56  N.  £.  817; 


May  1901.]    CoNRScnouT  Mdt.  Litk  Ins.  Co.  v.  Tucker.    603 


▼«  Berrien,  42  N.  J.  Eq.  1,  10  AtL  875;  Knile  v.  Beddiek 
<N.  J.  Eq.),  39  AtL  1062;  Wilson  v.  I>ancan,  11  Abb.  Ft.  3;  Bell  v. 
Hunt,  3  Barb.  Cb.  391;  Morgan  ▼.  Fillmore^  Sbeld.  (N.  T.)  62; 
Perkins  y.  Montgomery,  70  N.  Y.  Supp.  136;  Naasan  Bank  v.  Tandes, 
44  Hnn,  55;  Koppinger  y.  O'Donnell,  16  B.  L  417,  16  Atl.  714.  A 
eonfliet  in  tbe  deeisions  of  the  courts  on  the  adYerse  elaims  is  a 
GonelusiYO  answer  to  the  contention  that  a  bill  will  not  lie:  Crane  y. 
McDonald,  118  N.  Y.  648,  23  N.  E.  991.  Bat  tbe  action  cannot  be 
maintained  when  it  appears  from  the  complaint  that  one  claimant 
is  clearly  entitled  to  the  subject  matter  of  tbe  controversy  to  the 
exclusion  of  the  other:  Bassett  y.  Leslie^  123  N.  Y.  396,  25  N.  £.  386. 

2.    Qnestioii  as  to  tbe  Amount  of  01aim.^Bat  the  amount  which 
is  subject  to  interpleader  must  not  be  in  dispute.    Its  determination 
cannot  be  made  the  subject  of  the  suit.    The  amount  of  the  fund 
must  be  ascertained   with    sufficient   certainty  to   enable  it   to   be 
brought  into  court,  unless  the  parties  can  agree  to  fix  the  amount: 
Glasner  y.  Weisberg,  43  Mo.  App.  214;  Willetts  y.  Finlay,  11  How. 
"Pt,  468.    A  difference  between  the  debt  claimed  and  the  sum  plain- 
tiff is  willing  to  pay  presents  an  insuperable  objection  to  the  prosecu- 
tion of  the  action;  for,  as  to  so  much,  it  does  not  admit  title  or 
light  of  payment  in  either  claimant:  Baltimore  etc.  B.  B.  Go.  y. 
Arthur,  90  N.  Y.  234;  Appeal  of  Bridesburg  Mfg.  Co.,  106  Pa.  St.  275. 
Bat  while  one  is  not  entitled  to  an  order  of  interpleader,  unless  he 
concedes  a  liability  to  some  one,  and  for  the  fuU  amount  claimed 
(McHenry  y.  Hazard,  45  Barb.  657;  Bernstein  y.  Hamilton,  49  N.  Y. 
Supp.  932,  26  App.  Div.  206;  Hely  y.  Lee,  108  Tenn.  715,  69  S.  W. 
273),  still,  where  there  is  no  denial  of  the  claim  of  either  defendant 
in  the  suit  for  interpleader,  the  fact  that  in  a  previous  action  pend- 
ing, brought  by  one  of  the  defendants  against  the  plaintiff  upon 
the  same  claim,  his  claim  was  denied  in  the  answer  of  the  plaintiff, 
does  not  bring  the  case  within  the  rule  that  an  interpleader  cannot  be 
maintained  which  denies  the  claim  of  a  defendant:  Orient  Ins.  Co.  v. 
Beed,  81  Cal.  145,  22  Pac.  484. 

g.  Legal  and  Equitable  DemandB.^A  bill  of  interpleader  is  equally 
proper,  though  the  claim  of  one  defendant  is  actionable  at  law,  and 
the  other  in  equity:  Gibson  v.  Goldthwaite,  7  Ala.  281,  42  Am.  Dec. 
592;  Newhall  v.  Kastens,  70  BL  156;  Bichards  y.  Salter,  6  Johns.  Ch. 
445.  And  a  statute  allowing  a  defendant  in  an  action  at  law  to 
compel  claimants  of  the  fund  in  suit  to  interplead  does  not  exclude 
equitable  claims:  Dixon  v.  National  Life  Ins.  Co.,  368  Mass.  48,  46 
Atl.  430.  Such  a  statute  is  broad  enough  to  cover  an  equitable  in- 
terest arising  from  the  assignment  of  a  certificate  of  membership 
in  a  mutual  benefit  society:  Brierly  v.  Equitable  Aid  Union,  170 
Mass.  218,  64  Am.  St.  Bep.  297,  48  Atl.  1090. 

b.    Necesiitf  and  Effect  of  Pending  8iiit8.^A  bill  of  interpleader 
may  be  filed,  though  the  party  holding  the  thing  or  fund  has  not 


604  Ambbican  Statb  Bbpobts^  Vol.  91.  [B.  L 

been  aetuaHy  aned,  or  has  been  sned  by  only  one  of  the  eonfliettB^ 
elaimantB:  Qibson  v.  Goldthwaite,  7  Ala.  281,  42  Am.  Dec.  6$^;  New- 
hall  T.  Kastensy  70  HI,  lt^6;  Bichards  ▼.  Salter,  6  Johna.  Ch.  445. 
And  the  fact  that  another  suit  ia  pending*  in  which  the  complainant 
if>  defendant,  and  in  which  the  right  to  the  fund  may  be  determined, 
is  not  fatal  to  proceedings  in  interpleader:  School  Dist.  ▼.  Weston, 
81  Mich.  85. 

L  Possession  of  Ae  Thing  in  OontroYcrsy.— Since  the  purpose  of 
a  bill  of  interpleader  is  to  ascertain  to  whom  the  complaii^Lnt  ahall 
pay  or  deliver  the  money  or  thing  in  dispute,  it  can  usually  be  main- 
tained only  by  one  in  possession  or  contiol  of  the  fund  or  property: 
Steed  Y.  Savage,  115  6a.  97,  41  S.  £.  272.  After  paying  a  large  part 
of  the  fund  to  adverse  claimants,  it  is  too  late  to  compel  them  to 
interplead:  Hechmer  v.  Gilligan,  28  W.  Ya.  750.  Yet,  under  special 
circumstances,  relief  will  not  be  denied,  as  where  one  of  the  defend- 
ants has  induced  the  plaintiff  under  a  claim  of  right  to  give  up 
the  money  in  question,  end  the  other  defendants  are  proaecnting 
suits  against  him  for  the  same  money:  Nash  v.  Smith,  6  Conn.  421. 

J.    Deposit  or  Payment  Into   Conrt.^'When   a   complainant    baa 
money  or  property  in  his  possession,  nnd  seeks  to  compel  persona 
felting  up  conflicting  claims  thereto  to  interplead  and  have  their 
claims  determined,  he  should  bring  the  fund  or  thing  into  eourt^  or 
offer  to  do  so  in  his  bill:  Starling  v.  Brown,  7  Bush,  164;  Gardiner 
Sav.  Inst.  V.  Emerson,  91  Me.  535,  40  AtL  551;  Home  Life  Ins.  Go. 
V.  Caulk,  86  Md.  385,  38  Atl.  901;  Barroll  v.  Foreman,  86  Md.  673, 
39  Atl.  273;  Blue  v.  Watson,  59  Miss.  619.    The  plaintiff  will  be 
discharged  only  to  the  extent  of  the  sum  paid  in:  Bellingham  Bay 
Boom  Go.  V.  Brisbois  (Wash.),  46  Pac  238.    While  the  general  rule 
is,  that  the  plaintiff  in  his  bill  of  interpleader  must  state  his  willing- 
ness and  readiness  to  bring  the  subject  matter  of  the  dispute  into 
court,   there  may  be   circumstances  which  will   excuse  him   so  far 
a&  actually  bringing  it  in:  Sioux  Falls  Sav.  Bank  v.  Lien,  14  8.  Dak. 
410,  85  N.  W.  924.    And  the  actual  payment  or  deposit  into  court  is 
not  a  condition  precedent  to  bringing  the  suit:  Fox  v.  Sutton,  127 
Cal.  515,  59  Pac  939;  Look  v.  McCahill,  106  Mich.  108,  63  N.  W. 
808;  Barnes  v.  Bamberger,  196  Pa.  St.  123,  46  Atl.  303. 

k.  Other  Conditions.— An  interpleading  suit  cannot  be  maintained 
unless  the  respective  claims  are  such  as  to  antagonize  and  negative 
each  other:  Moore  v.  Bamheisel,  45  Mich.  500,  8  N.  W.  531.  And 
the  very  nature  of  an  interpleader  seems  to  presuppose  that  the 
rights  are  matured  and  fixed,  or  at  least  so  far  settled  as  not  to 
depend  upon  the  happening  of  a  future  event  which  is  certain  to 
occur,  but  on  the  order  in  which  it  may  occur  the  rights  of  the  parties 
must  depend:  Travelers'  Ins.  Co.  v.  Healey,  86  Hun,  524,  83  N.  Y. 
Supp.  911.  If  the  claim  of  a  third  party  is  frivolous  a  bill  of  inter- 
pleader will  not  lie:  Pnstet  v.  Flannelly,  60  How.  Pr.  67.    And  the 


May,  1901.]    Coknkcticut  Mut.  Life  In8.  Co.  v.  Tucker.    605 

complainant  must  not  collude  with  or  receive  an  indemnity  from 
eitiier  claimant:  Marvin  v.  Ellwood,  11  Paige,  365*  Moreover,  he 
eannot  have  an  order  of  interpleader  when  one  important  question 
to  be  tried  is  whether,  by  reason  of  his  own  act,  he  is  under  a  liability 
to  each  of  them:  National  Life  Ins.  Co.  v.  Pingrey,  141  Mass.  411, 
6  ^.  £•  93.  While  the  irresponsibility  of  the  party  proposed  to  be 
interpleaded  to  respond  in  costs,  in  the  event  that  he  fails  m  estab- 
lishing; his  claim,  is  not  controlling,  yet  it  is  a  circumstance  which 
may  be  considered  in  connection  with  the  other  facts:  Williams  v. 
Aetnft  Life  Ins.  Co.,  8  N.  Y.  St.  Bep.  567;  Barritt  v.  Press  Pub.  Co., 
25  App.  Div.  141,  40  N.  Y.  Supp.  20L 

m.    Persons  Entitled  to  the  Bemedy. 

a.     Who  May  Interplead  in  GeneraL^Only  the  debtor  or  custodian 
of  tbe  fund  can  maintain  a  bill  of  interpleader;  a  creditor  or  claim- 
ant  cannot.    This  rule  rests  upon  the  fundamental  proposition  that 
tbe  claimant  is  a  mere  holder  of  the  stake  which  is  contested  for  by 
the  other  parties:  Hathaway  v.  Foy,  40  Mo.  540;  Boyer  v.  Hamilton, 
21  Mo.  App.  520;  Arn  v.  Am,  81  Mo.  App.  133.    Though  the  strict 
rule  is  that  one  claimant  cannot  require  another  claimant:  and  the 
stakeholder  to  interplead,  it  is  held  in  Webster  v.  Hall,  60  N.  H.  7, 
that    a   bill    may   be   brought    by   two   claimants   against    another 
claimant  and  the  county,  to  settle  the  rights  of  the  claimants  to 
their  share  of  a  fine  for  a  violation  of  the  liquor  law.    It  apx>ears 
that   the   claimants   jointly   instituted   and   carried   on   prosecutions 
under  an  agreement  to  share  the  fines  in  certain  proportions,  and 
that  as  a  result  of  the  prosecutions  some  ten  fines  were  paid  to  the 
country.    The  court  justified  the  interpleader  as  "being  a  reasonably 
necessary   process   for   conveniently   and   economically   ascertaining 
the  plaintiffs'  rights,  and  furnishing  their  remedy." 

1>.  Wrongdoers. — One  seeking  the  advantages  of  a  bill  of  inter- 
pleader must  show  that  he  stands  not  only  indifferent  between  the 
claimants,  that  he  is  without  interest  in  the  controversy  to  be  waged 
between  them,  but  that  he  is  in  the  position  of  a  mere  inno- 
cent stakeholder  or  depositary,  and  that  no  act  on  his  part  has 
caused  the  embarrassment  of  conflicting  claims  and  the  peril  of 
double  vexation.  When  he  stands  to  either  of  the  parties  in  the 
relation  of  a  wrongdoer,  or  it  appears  that  by  his  own  act  or  con- 
duct double  claims  have  been  caused,  he  is  not  innocent,  he  is  not 
without  interest,  and  the  court  will  not  intervene  to  relieve  him  from 
the  embarrassment  in  which  he  has  voluntarily  involved  himself; 
Conley  v.  Alabama  Gold  Life  Ins.  Co.,  67  Ala.  472;  Kyle  v.  Mary  Leo 
Coal  etc.  Co.,  112  Ala.  606,  20  South.  851;  Tyus  v.  Bust,  87  Ga,  574. 
95  Am.  Dec.  365;  Quinn  v.  Green,  36  N.  C.  (1  Ired.  Eq.)  229,  36 
Am.  Dec.  46;  North  Pacific  Lumber  Co.  v.  Lang,  28  Or.  246,  52  Am. 
St.  Bep.  780,  42  Pac  799.  Wrongdoers,  in  obtaining  possession  of 
funds,  cannot  interplead  the  claimants:  United  States  v.  Yietor,  16 


606  Ahbbican  Statb  Bbports^  Vol.  91.  [B.  I. 

Abb.  Pr.  153.  And  one  who  violates  an  injnnction,  and  tberebv* 
places  bixnself  in  a  situation  where  he  may  have  to  defend  different 
actions  concerning  the  same  demand,  is  not  in  a  position  to  ask  the 
interposition  of  the  court  to  award  an  issue  to  be  tried  by  the 
claimants:  Morgan  v.  Fillmore,  18  Abb.  Pr.  217,  1  Sheld.  62. 

c.  Agents,  Brokers,  and  Vendors.— Generally  speaking,  a  bill  o^ 
interpleader  cannot  be  maintained  by  a  bailee  or  agent  to  settle 
the  conflicting  claims  of  the  bailor  or  principal,  and  a  stranger 
who  claims  the  property  or  fund  by  a  distinct  and  independent  title; 
Marvin  v.  EUwood,  11  Paige,  365,  376.  It  has  been  said,  however,, 
that  an  agent  may  file  a  bill.  But  where  this  is  allowed,  it  is  under 
peculiar  circumstances  when  the  agent  might  be  liable,  if  he  paid 
the  debt,  to  the  principal;  as  where  the  principal  had  created  &  lies 
in  favor  of  another  on  funds  in  the  hands  of  his  agent,  the  agent  may 
compel  the  principal  and  the  other  claimant  to  interplead:  Heehmer  t. 
Gilligan,  28  W.  Ya.  750,  citing  Smith  v.  Hammond,  9  Con.  Eng.  Ch. 
144.  An  agent  of  a  corporation  can  make  defendants  interplead,  who 
both  derive  title  from  the  corporation  and  claim  under  it  as  assigneeB: 
Gibson  v.  Goldthwaite,  7  Ala.  281 ,  42  Am.  Dec.  592.  ''The authorities 
dted,"  say  the  court,  "merely  show  that  a  private  agent  cannot 
question  the  title  of  his  principal  to  money  or  property  which  he 
has  received  from  or  for  him  by  bill  of  interpleader,  where  a  third 
person  sets  up  a  claim  to  it.  Here  the  complainant  does  not  deny 
the  right  of  the  corporation,  his  principal,  but  merely  states  that 
two  of  the  defendants  claim  as  its  assignees  the  money  which  he 
holds  to  its  credit.  The  defendants  do  not  set  up  a  title  independent 
and  paramount  to  the  principal,  but  merely  derivative.  They  pro- 
fessedly deduce  their  title  from  a  common  source,  and  are  in  such  a 
predicament  that  they  may  with  propriety  be  required  to  inter- 
plead and  adjust  their  conflicting  claims." 

It  has  been  held  that  a  bill  of  interpleader  by  a  vendor  requiring 
two  real  estate  agents  to  interplead  as  to  which  of  them  is  entitled 
to  commissions  for  effecting  the  sale  of  a  piece  of  land,  each  claiming' 
to  have  made  the  sale,  will  not  lie:  Sachsel  v.  Farrar,  35  HI.  App. 
277;  Taylor  v.  Satterthwaite,  22  N.  Y.  Supp.  187,  2  Misc.  Bep.  441, 
Chief  Justice  Daly  dissenting;  McCreery  v.  Inge,  63  N.  Y.  Supp.  15S, 
49  App.  Biv.  133.  We  have  no  doubt,  however,  that  he  would  be 
entitled  to  such  remedy  in  a  proper  case,  and  a  bill  is  entertained 
in  favor  of  a  vendor  against  two  rival  brokers  in  Shipman  v.  Scott, 
14  Daly,  233. 

d.  Attorneys.— Practically  the  same  principles  are  involved  when 
an  attorney  brings  a  bill  of  interpleader  as  when  an  agent  does. 
The  relation  in  which  he  stands  to  his  client  will  not  pennit  him  to 
file  a  bill  upon  every  claim  made  te  a  fund  which  he  has  collected  for 
his  client:  Marvin  v.  Ellwood,  11  Paige,  365.    Yet,  when  he  has  col- 


May  1901.]    CoNNEcncuT  Mut.  Life  Ins.  Co.  v.  Tucker.    607 

I««cted  money  for  his  elient,  which  is  claimed  by  two  creditors  of 
IkiB  client,  and  hia  client  disclaims  any  interest  therein,  he  may 
eompel  the  creditors  to  interplead:  Bammis  v.  L'Engle,  19  ila.  800. 
And  in  McFkdden  ▼.  Swinerton,  36  Or.  336,  59  Pac  816,  62  Pae.  12, 
an  attorney  having  the  proceeds  of  a  claim  received  for  collection 
^%vsLs  permitted  to  interplead  his  client  and  adverse  claimants  of  the 
£iiii«l.  And  his  claim  for  fees  against  the  fund  was  held  not  to  bn 
such  an  interest  therein  as  barred  his  right. 

e.  Beceivers. — A  receiver  who  has  a  fnnd  in  his  possession  real- 
ized from  the  sale  of  land,  to  which  there  are  two  claimants,  each  of 
VI  hom  has  instituted  a  separate  action  against  him,  respecting  the 
fund,  and  obtained  an  injunction  to  prevent  him  from  paying  it 
over,  may  bring  an  action  in  the  nature  of  a  bill  of  interpleader 
against  the  rival  claimants,  compelling  them  to  interplead  and  ad- 
just their  rights  between  themselves:  Winfield  v.  Bacon,  24  Barb. 
154. 

f.  Porchasen  of  Personalty.— A  purchaser  of  goods  may  maintain 
an  action  interpleading  the  vendor  and  another  person  who  each 
elaim  the  purchase  price,  when  he  cannot,  without  peril,  determine 
to  whom  he  should  make  payment:  Darden  v.  Bums,  6  Ala.  362; 
Baltimore  etc.  B.  B.  Go.  v.  Arthur,  10  Abb.  N.  G.  147.  But  the  de- 
fendants in  an  action  for  the  purchase  price  of  personal  property 
Lave  no  right  to  interplead  persons  who  claim  to  have  title  to  tho 
property  adverse  to  the  plaintiff  under  the  statutes  of  Wisconsin, 
providing  that  a  defendant,  against  whom  an  action  is  pending  upon 
a  contract,  may  apply  for  an  order  substituting  in  his  place  a  person, 
sot  a  party  to  the  action,  who  makes  against  him  a  demand  for  the 
same  debt:  Baxter  v.  Day,  78  Wis.  27,  9  Am.  St.  Bep.  761,  40  N.  W. 
675. 

g.  Tenants  and  Lessees.— When  a  tenant  discovers  that  there  are 
adverse  claims  to  the  rents  he  should  file  his  bill  of  interpleader, 
making  all  the  adverse  claimants  parties,  and  offering  to  pay  the 
rents  into  court  to  abide  the  ultimate  decision  as  to  the  party 
entitled  to  them:  McDevitt  v.  Sullivan,  8  Gal.  592,  597;  Hall  v. 
Craig,  125  Ind.  523,  25  N.  E.  538;  McGoy  v.  Bateman,  8  Nev.  126. 
However,  the  rule  that  a  tenant  cannot  dispute  his  landlord's  title 
must  be  kept  in  mind;  but  there  may  be  cases  in  which  a  tenant, 
demanding  an  interpleader,  docs  not  dispute  his  landlord's  title, 
but  affirms  it  and  puts  himself  upon  the  uncertainty  of  the  person 
to  whom  the  rent  is  to  be  paid:  Ketcham  v.  Brazil  Block  Goal  Go., 
88  Ind.  515.  The  principle  that  a  tenant  cannot  question  his  land- 
lord's title  has  no  application  where  the  rival  claimants  to  the  rents 
elaim  under  the  landlord  as  his  representatives:  Glaser  v.  Priest, 
29  Mo.  App.  1.  But  a  lessee  who  has  voluntarily  taken  an  independ- 
ent lease  from  each  of  two  adverse  claimants  to  the  title  of  the 
same  real  estate,  cannot  compel  his  lessors  to  interplead  and  litigate 


608  American  State  Beports,  Vol.  91.  [R-  L 

their  conflicting  titles  and  the  Talidity  of  their  leases  before  either 
of  them  can  receive  his  rent,  and  thereby  exonerate  himself  froB 
liability  for  the  rent  due  on  both  leases:  Standley  t.  Boberts,  59 
Fed.  836. 

b.    Bailees—Warehonsemen    and    Deposit    CompanieB. — The     gen- 
eral rale  is  laid  down  that  a  bailee  cannot  protect  himself  against 
bis  bailor  and  a  third  person  who  asserts  an  adverse  title   to  the 
bailor:  First  Nat.  Bank  v.  Bininger,  26  N.  J.  £q.  345;  Bartlett  v. 
Imperial  Majesty  etc.,  23  Fed.  257.  This  is  no  hard-and-fast  role,  bow- 
ever.    A  suit  in  the  nature  of  an  interpleader  is  considered  a  propo* 
remedy  in  such  cases:  Ball  v.  Liney,  48  N.  Y.  6,  13,  8  Am.  Bep.  511; 
Banfleld  v.  Haeger,  45  N.  Y.  B\xp&r.  Gt.  (13  Jones  &  &)  428,  7  Abb. 
N.  C.  318.    And  whenever  the  third  person  claims  the  thing  under 
a  title  derived  from  the  bailor  by  assignment,  sale,  or  mortgage^ 
subsequent  to  the  bailment,  the  bailee  may  compel  tho  perties  to 
interplead,   for  there   is  no  denial   of   the   original   title   or   right: 
Bechtel  v.  Sheafer,  117  Pa.  St.  555,  11  AtL  889.    The  hardship  of 
denying  the  remedy  of  interpleader  to  a  bailee  as  against  the  bailor 
and  a  third  person  setting  up  an  adverse  claim  is  obvious.     Tbe  role 
seems  to  prevail  no  longer  in  England:  See  Attenborough  v.  Loiidoa 
etc.  Dock  Co.,  L.  B.  3  C.  P.  D.  373.    And  under  the  modem  liberality 
of  procedure  we  apprehend  the  remedy  would  be  available  in  many 
instances  in  this   country.    But  of   course  the  essential  eonditions 
must  exist.    The  bailee  must  stand  indifferent:  Lawson  ▼.  Terminal 
Warehouse  Co.,  70   Hun,   281,  24  N.  Y.  Supp.  281;   Do  Zonehe  ▼. 
Garrison,  140  Pa.  St.  430,  21  Atl.  450.    And  he  cannot  seek  relief  in  re- 
spect to  a  state  of  affairs  which  has  been  brought  about  by  his  own 
misconduct:  Hatfield  v.  McWhorter,  40  Ga.  269. 

Where  a  warehouseman,  as  agent,  sells  the  property  of  bis  bailor 
to  a  purchaser,  who  leaves  it  in  the  warehouse,  he  is  not  entitled  to 
a  bill  of  interpleader  to  prevent  suits  brought  against  him  by  the 
original  bailor,  who  denies  the  agency  and  the  purchaser,  both  of 
whom  claim  title  to  the  property:  Tyus  v.  Bust,  37  Ga.  574,  95  Am. 
Dec  365.  A  safety  deposit  company  may  protect  itself  by  bring- 
ing an  action  of  interpleader:  Mercantile  Deposit  Co.  ▼.  Dimon, 
72  Hun,  638,  25  N.  Y.  Supp.  388;  Mercantile  Deposit  Co.  ▼.  Huntings 
ton,  89  Hun,  465,  35  N.  Y.  Supp.  390. 

L  Banks.— Where  money  has  been  deposited  with  a  bank,  and 
the  elements  of  a  case  for  interpleader  are  present,  the  bank 
may  protect  itself  by  interpleading  the  adversary  claimants:  James 
V.  Sams,  90  Ga.  404,  17  S.  E.  962;  People's  Sav.  Bank  v.  Look,  95 
Mich.  7,  54  N.  W.  629;  Wayne  County  Sav.  Bank  v.  Airey,  95  Mick 
520,  55  N.  W.  355;  German  Exchange  Bank  v.  Commissioners  of 
Excise,  6  Abb.  N.  C.  394;  Flanery  v.  Emigrant  etc  Sav.  Bank,  23  Abb. 
N.  C.  40,  7  N.  Y.  Supp.  2;  Pratt  v.  Myers,  28  Abb.  N.  C.  4(10,  18  N.  Y. 
Supp.  466;  Fletcher  v.  Troy  Sav.  Bank,  14  How.  Pr.  883;  Schweiger 


Ifajy  1901.]  CoNNBCTicuT  Mux.  Life  Inb.  Co.  «.  Tugkbb.    609 

-v.  Oermftn  Sav.  Bank,  67  N.  Y.  Snpp.  356,  27  Misc.  Eep.  123; 
DickeBchied  v.  Bank,  28  W.  Va.  340;  Fobs  v.  First  Nat.  Bank,  3  Fed, 
185.  la  City  Bank  of  New  York  v.  Skelton,  2  Blatchf.  14,  Fed, 
Caa.  No.  2739,  Justice  Betts  remarks  that  it  is  insisted  that  the  gen- 
eral rule  as  to  the  right  to  interplead  "does  not  apply  to  bailees  or 
to  bankers,  but  that  they  are  bound  by  the  general  principles  of  law 
to  restore  to  the  bailor  the  deposit  made  with  them.  But  the  cases 
^hich  seemingly  support  that  objection  are  counterbalanced  by  a 
weightier  array  of  authorities,  both  English  and  American,  to  the 
contrary.  The  rule  has  been  directly  sanctioned  in  the  cases  of 
funds  deposited  in  a  bank,  and  with  a  stakeholder;  and  it  has  been 
4)ppUed  in  behalf  of  a  eaptain  of  a  vessel,  against  whom  there  were 
adverse  claims  upon  bills  of  lading.  Each  of  these  cases  is  strong 
in  analogy  to  the  present  one,  and  I  should  feel  no  dif&culty  in  de- 
claring, upon  the  general  principles  of  equity  jurisprudence,  that 
a  bank  may  be  entitled  to  relief  by  bill  of  interpleader  against 
separate  and  adversary  parties  who  claim  title  to  moneys  therein 
deposited. '^  It  will  be  noticed  that  some  of  the  above  cases  involve 
savings  banks,  and  there  is  no  doubt  that  such  banks  may  interplead 
rival  claimants  for  the  same  fund  or  creuit.  It  is  held,  however, 
that  a  bank  is  not  entitled  to  an  interpleader  when  it  denies  that 
the  full  amount  demanded  by  one  claimant  is  due:  Bu  Bois  v.  Union 
Dime  Sav.  Inst.,  89  Hun,  382,  35  N.  Y.  Supp.  397.  The  rival 
claimants  in  this  case  demanded  different  amounts. 

k*  Comnioii  Oaxriers.— When  goods  in  the  custody  of  a  common 
carrier  are  the  subject  of  conflicting  claims,  and  the  carrier  knows 
not  to  whom  he  may  with  safety  make  delivery,  he  may  invoke  the 
remedy  of  interpleader  and  compel  the  rival  claimants  to  determine 
between  themselves  as  to  which  is  entitled  to  the  property:  Shellea- 
berg  ▼.  Fremont  etc  B.  B.  Co.,  45  Neb.  487,  50  Am.  St.  Bep.  561, 
63  N.  W.  859;  Schuyler  v.  Hargous,  28  How.  Pr.  245.  Against  this 
it  may  be  argued  that  a  carrier  cannot  bo  allowed  to  dispute  the 
shipper's  title:  See  McGaw  v.  Adams,  14  How.  Pr.  461.  But  we  do 
not  regard  this  as  a  serious  objection  under  the  reformed  procedure. 
''If  there  ever  was  a  case  for  interpleader  clearly  made  out,''  says 
Chief  Justice  Mclver  in  Brock  v.  Southern  By.  Co.,  44  S.  C.  444, 
22  S.  £.  601,  ''it  seems  to  us  this  is  one.  The  undisputed  facts  are 
that  the  defendant  [railway]  company  is  in  possession,  rightfully 
sequired,  of  certain  property  to  which  it  makes  no  claim  whatever 
[except  a  lien  for  freight],  and,  on  the  contrary,  avers  its  readiness 
to  deliver  the  property  to  the  rightful  owner,  as  to  which  the  defend- 
ant company  is  in  honest  doubt,  owing  to  the  antagonistic  claims 
of  its  eodefendant  and  the  plaintiffs,  which  it  has  no  means  of  deter* 
mining;  and  that  defendant  is  not  acting  in  collusion  with  either  of 
said  claimants." 

i.    Trustees.— A  trustee  may  maintain  a  suit  to  compel  rival  elaim* 
juntg  to  interplead  their  rights  to  surplus  income  in  hia  limads,  aad 
▲m.  St   Rep.,  Vol.   91—39 


GIO  American  State  Reports,  Vol.  91.  [R.  L 

also  their  rights  to  the  principal,  though  the  result  of  the  suit  maj 
be  a  decree  directing  the  trustee  to  retain  and  administer  the  prop- 
erty: Union  Trust  Co.  v.  Stamford  Trust  Co.,  72  Conn.  86,  43  AtL 
555.  And  where  there  are  two  claimants  of  a  trust  created  for  the 
benefit  of  a  religious  society,  they  may  be  required  to  interplead 
in  order  to  ascertain  the  true  beneficiary:  First  Presbyterian  8oc 
V.  First  Presbyterian  Soc,  25  Ohio  St.  128.  But  trustees  cannot  main- 
tain a  bill  in  the  nature  of  a  bill  of  interpleader  to  settle  a  question 
in  which  they  have  a  direct  personal  interest:  Sohier  v.  BarT,  127 
Mass.  221.  And  a  trustee  under  a  deed  of  trust,  having  in  his  hands 
a  surplus  after  foreclosure,  cannot  invoke  the  remedy  of  inter- 
pleader in  respect  to  a  rival  claim  brought  into  existence  by  his  own 
voluntary  act,  as  where  he  procures  an  administrator  to  be  appointed 
to  the  end  that  there  may  be  contested  claims:  Swain  ▼.  Bartlett, 
82  Mo.  App.  642. 

m.  Executors  and  Administrator8.~When  a  judgment  creditor 
of  a  legatee  or  distributee  under  a  will  brings  a  creditor's  bill,  mak- 
ing the  debtor  and  the  administrator  with  the  will  annexed  partieSr 
the  administrator  may  interpose  a  bill  of  interpleader,  praying  that 
a  claimant  other  than  the  plaintiff  be  brought  in  and  compelled  to 
litigate  with  the  plaintiff  as  to  their  respective  rights:  First  Nat. 
Bank  v.  Beebe,  62  Ohio  St.  41,  56  N.  F.  485.  So,  if  a  legatee  is  not  de- 
scribed in  a  will  with  exact  accuracy,  the  description  being  applieable 
to  different  persons,  each  of  whom  claims  the  legacy,  the  exeentor 
may  bring  a  bill  of  interpleader  to  determine  to  whom  the  legacy 
belongs:  Morse  y.  Stems,  131  Mass.  389.  An  administrator  who  has 
been  ordered  by  the  probate  court  to  pay  over  to  the  distributees 
of  the  estate  cannot  maintain  a  bill  of  interpleader,  nnder  ordinary 
circumstances,  against  those  claiming  the  benefit  of  the  order:  Free- 
lund  V.  Wilson,  18  Mo.  380.  And  it  is  held  that  an  executor  has  sach 
an  interest  in  the  testator's  property  as  precludes  him  from  call- 
ing upon  legatees  to  interplead  with  a  person  who  has  sued  the 
executor  for  the  property  bequeathed  to  the  legatees,  and  who  claims 
it  under  title  paramount  to  the  testator's:  Adams  ▼.  Dixon,  19  Ga. 
515,  65  Am.  Bee.  608.  When  an  executor  is  sued  by  a  devisee  for  a 
sum  to  which  she  is  entitled  under  the  will,  and  is  also  sued  by  a  cred- 
itor of  tho  devisee  upon  a  debt  alleged  to  be  due  from  her  to  him,  an 
interpleader  will  not  be  awarded  when  it  is  not  shown  clearly  how 
and  upon  what  account  the  creditor  can  recover  from  the  executor: 
Davis  V.  Davis,  96  Ga.  136,  21  S.  E.  1002. 

A  bill  in  the  nature  of  a  bill  of  interpleader,  brought  by  an  exec- 
utor to  obtain  instructions  from  the  court  as  to  the  execution  of  his 
trust,  cannot  be  employed  to  try  the  rights  of  creditors  of  the  de- 
ceased after  their  claims  are  barred  by  the  statute  of  limitations: 
Bradford  v.  Forbes,  91  Mass.  365.  And  it  is  not  a  proper  case  for 
interpleader  where  the  next  of  kin  of  an  intestate,  and  a  person 
claiming  to   hold  as  assignee,  claim  the  proceeds  of  an  insoranco 


May,  1901.]  Connscticut  Mut.  Life  Ins.  Co.  v.  Tucker.    611 

policy  on  tbe  life  of  the  decedenfc,  which  are  in  the  ha  ads  of  th» 
sdmiiiistrator:  Stevens  t.  Warren,  101  Ifasa.  564.  By  consent  of  the- 
parties,  however,  the  court  took  jurisdiction  in  this  case,  treating^ 
the  bill  as  one  by  a  trustee  for  instructions.  Where  an  executor 
held  two  trunks  claimed  by  two  persons  as  gifts  from  the  testa trix,, 
and  also  by  a  residuary  legatee,  it  was  held  that  the  executor  could 
not  file  a  bill  of  interpleader,  for  an  action  at  law  by  one  of  the 
alleged  donees  would  conclude  both  the  legatee  and  the  executor: 
Fitts  V.  Shaw,  22  B.  I.  17,  46  Atl.  42. 

IV.    Property  and  Funds  Subject  to  Interpleading. 

a.  Money  Dne  on  Building  Contracts.— The  owner  of  a  building; 
may  compel  the  contractor  and  another  person,  who  both  claim  the 
amount  due  under  the  building  contract  to  interplead:  Lapcnta  v» 
Lettieri,  72  Conn.  377,  77  Am.  St.  Eep.  315,  44  Atl.  730;  or,  if  he 
also  seeks  afiSrmative  relief,  he  may  maintain  a  bill  against  then» 
in  the  nature  of  a  bill  of  interpleader:  lUingworth  v.  Bowe,  '52  N. 
J.  Eq.  360,  28  Atl.  456.  Of  course,  he  must  bring  himself  within 
the  recognized  principles  upon  which  such  bills  are  founded,  other- 
wise  he  cannot  invoke  their  aid:  Hellman  v.  Schneider,  75  111.  422. 
A  bill  has  been  denied  the  owner  against  persons  claiming  lions  for 
work  done  and  materials  furnished  to  the  contractor,  to  settle  their 
claims  to  the  amount  due  the  contractor,  and  to  release  the  building 
from  liability,  since  the  holders  of  mechanics'  liens  arc  not  con- 
cerned with  the  state  of  account  between  the  owner  and  contractor, 
their  remedy  being  by  sale  of  the  building:  Ammendale  Normal  Inst. 
V.  Anderson,  71  Md.  128,  17  Atl.  1030.  See,  too,  Drydock  Methodist 
etc  Church  v.  Carr,  2  Barb.  60. 

b.  Corporate  Stock  and  Dividends.— A  corporation  which  issues 
a  certificate  of  stock  may  bring  an  action  to  compel  two  claimants 
to  interplead  between  themselves  for  the  purpose  of  determining 
their  conflicting  rights,  when  it  is  substantially  a  mere  stakeholder: 
American  Press  Assn.  v.  Brantingham,  68  N.  Y.  Supp.  285,  57  App^ 
Div.  397.  See,  also,  Cady  v.  Potter,  55  Barb.  463.  So,  where  persons 
hold  stock  in  escrow,  to  be  delivered  in  accordance  with  the  terms 
of  an  option,  and  no  collusion  appears,  they  may  require  the  parties 
interested  to  interplead  and  litigate  their  conflicting  claims  thereto 
among  themselves,  it  appearing  that  the  complainants  have  no  in- 
terest in  the  stock  further  than  to  deliver  it  to  the  person  en- 
titled to  it:  Walker  ▼.  Bamberger,  17  Utah,  239,  54  Pac.  108.  A 
coiporation  may  interplead  two  opposing  claimants  to  dividends  due 
on  shares  of  Its  stock:  Salisbury  Mills  v.  Townsend,  109  Mass.  115. 

c.  Proceeds  of  Negotiable  Instruments.— In  case  the  money  due 
on  a  negotiable  instrument  is  claimed  by  two  or  more  persons,  and 
the  party  liable  thereon  cannot  safely  make  payment  to  either,  he 
ii  entitled  to  bring  a  bill  of  interpleader  against  them  that  their 


612  American  State  Reports^  Vol.  91.  [R.  L 

conflicting  claims  may  be  adjusted  between  thems^yes:  Herndon 
V.  Higgs,  15  Ark.  389;  MeClintock  v.  Helberg,  168  HL  884,  48  N.  E. 
145;  Rohrer  v.  Turrill,  4  Minn.  407;  Van  Buskirk  ▼.  Boy,  8  How. 
Pr.  425;  Howe  Mach.  Co.  ▼.  Gilford,  66  Barb.  597.  Thus,  where  the 
holder^  of  a  bill  of  exchange  is  declared  a  bankrupt,  and  it  is  doubt- 
ful whether  the  bill  was  in  the  jurisdiction  so  as  to  pass  to  the 
Assignee  in  bankruptcy,  except  as  to  bona  flde  holders  without  no- 
tice, the  drawer,  who  is  liable  to  pay  the  bill  to  the  rightful  holder 
and  owner,  may  file  a  bill  of  interpleader  against  the  different  claim- 
ants: Bell  V.  Hunt,  3  Barb.  Ch.  391.  An  interest  in  the  money  col- 
lected on  a  note  is  fatal  to  the  complainant's  right  to  maintain  inter- 
pleader proceedings:  Wing  v.  Spaulding,  64  Yt.  83,  23  AtL  615. 

d.  Insurance  Money.— The  remedy  of  interpleader  is  often  resorted 
to  by  insurance  companies  when  beset  by  rival  claims  for  the  pro- 
ceeds of  contracts  of  insurance.  There  can  be  no  doubt  that  sach 
remedy  is  proper  in  cases  of  this  kind,  proYided  the  essential  cob- 
iiitions  of  an  interpleader  suit  are  present:  See  Morrill  v.  Manhattan 
Life  Ins.  Co.,  183  111.  260,  55  N.  E.  656;  Brierly  v.  Equitable  Aid 
Union,  170  Mass.  218,  64  Am.  St.  Rep.  297,  48  N.  E.  1090;  Heuener 
V.  Mutual  Life  Ins.  Co.,  47  Mo.  App.  336;  McCormick  ▼.  Supreme 
Council,  39  N.  Y.  Supp.  1010,  6  App.  Div.  175;  Sexton  ▼.  Home  Fire 
Ins.  Co.,  54  N.  Y.  Supp.  862,  35  App.  Div.  170;  Merchant  ▼.  North- 
western Life  Ins.  Co.,  68  N.  Y.  Supp.  406,  57  App.  Div.  375.  There 
must,  as  in  other  instances  where  interpleading  is  sustainable,  be 
a  reasonable  foundation  for  the  apprehension  that  payment  cannct 
be  made  to  either  claimant  without  hazard.  The  mere  fact  that  a 
third  person  makes  a  claim  is  not  sufficient,  if  no  circumstance  ie 
shown  to  indicate  that  it  has  the  slightest  foundation:  Lennon  ▼. 
Metropolitan  Life  Ins.  Co.,  45  N.  Y.  Supp.  1033,  20  Misc.  Kep. 
403;  Hinsdale  v.  Bankers'  Life  Ins.  Co.,  76  N.  Y.  Supp.  448,  72  App. 
Div.   180. 

Moreover,  the  company  must  be  a  mere  stakeholder,  standing  in- 
differently  between  the  claimants.  Where,  at  the  request  of  the  aa- 
sured,  it  cancels  his  policies,  and  issues  them  anew,  changing  the 
names  of  the  beneficiaries,  it  does  not  stand  indifferent  between  them  * 
the  two  sets  of  policies  represent  different  debts  and  duties,  and  in 
the  defeat  of  one  of  them  the  company  has  such  an  interest  as  pre- 
cludes it  from  maintaining  a  suit  of  interpleader:  Conley  v.  Alabama 
Oold  Life  Ins.  Co.,  67  Ala.  472.  So,  if  a  company  allows  the  in- 
sured to  surrender  his  policy  without  the  consent  of  the  beneficiary, 
»nd  issues  a  new  policy  payable  to  a  different  beneficiary,  it  cannot 
interplead  the  two  beneficiaries  on  the  death  of  the  assured  to  de- 
termine its  liability:  National  Life  Ins.  Co.  ▼.  Pingrey,  141  Mass. 
411,  6  N.  £.  93.  See,  also,  the  principal  case,  ante,  p.  590.  But  a 
fraternal  society  which  issues,  in  place  of  a  benefit  eertifieate  that 
he  surrenders,  a  certificate,  promising  to  pay  a  certain  sum  on  hia 


IVIay,  1901.]    Connecticut  Mut.  Life  Ins.  Co.  «.  Tucker.    613 

deatli  to  a  different  person  than  the  one  first  named,  mar  main- 
tain a  bill  against  both  beneficiaries  and  the  administrator  of  the 
deceased  member's  estate  to  have  it  determined  to  whom  the  fund 
shall  be  paid:  Order  of  the  Golden  Cross  v.  Merrick,  163  Mass.  374, 
40  K.  E.  183.  "It  has  not  issued/'  said  Justice  Holmes,  'Hwo 
independent  life  policies  to  two  sets  of  defendants,  as  seemed  pos- 
sible in  National  Life  Ins.  Co.  ▼.  I'ingrey,''  141  Mass.  411,  414,  6 
K.  S.  93.  In  Emerick  v.  New  York  Life  Ins.  Co.,  49  Md.  352,  it  is 
decided  that  where  the  insurer  substitutes  one  policy  for  another, 
-whereby  the  beneficiaries  are  changed,  it  may  interplead  the  con^ 
flictmg  claimants,  when  it  appears  that  the  second  policy  was  is- 
sued upon  the  representations  of  the  assured  and  that  the  company 
^"as  milled  by  them.  A  fire  insurance  company  may  interplead  two 
rival  elainiantSy  although  one  of  them  did  not  bring  his  action  within 
'twelve  months  after  the  loss,  which  fact  constitutes  a  good  defense 
to  the  company:  Grell  v.  Globe  etc.  Ins.  Co.,  67  N.  Y.  Supp.  253,  55 
App.  Div.  612. 

e.  Damages  in  Eminent  Domain.— Money  assessed  as  damages  for 
tbe  taking  of  property  for  a  public  use  may  be  a  proper  subject  o£ 
interpleader:  See  Kansas  City  etc.  By.  Co.  v.  View,  156  Mo.  608^ 
57  S.  W.  555;  Barnes  v.  Mayor,  27  Hun,  236.  If  the  money  for 
land  taken  under  the  power  of  eminent  domain  has  been  paid  into 
tbe  eonnty  treasury,  the  treasurer  may  interplead  persons  daiming^ 
it,  and  his  costs  will  come  out  of  the  fund:  Keller  v.  Bading,  64  HI. 
App.  198. 

f.  Fundi  that  hATS  been  Oamished.— A  bill  of  interpleader  is  a 
proper  remedy  for  a  garnishee  against  whom  conflicting  claims  are 
made  in  respect  to  the  fund  in  his  hands  m  which  he  disclaims  any 
title  or  interest:  See  Webster  v.  McDaniel,  2  Del.  Ch.  297;  Hastings 
V.  Cropper,  3  Del.  Ch.  165;  Moore  v.  Bamheisel,  45  Mich.  500,  8  N. 
W.  531;  Warren  v.  Bobbins,  23  Miss.  309;  Groschke  v.  Bardheimer^ 
15  Mo.  App.  353;  Fitch  ▼.  Brower,  42  N.  J.  Eq.  300,  11  Atl.  330;  Foy 
V.  East  Dallas  Bank  (Tex.  Civ.  App.),  28  S.  W.  137.  Compare  Blair 
V.  HUgedlek,  45  Minn.  23,  47  N.  W.  310.  It  is  held,  however,  that 
he  cannot  maintain  the  bill  if,  by  mistake,  he  has  incurred  liability 
by  answering  the  process,  admitting  indebtedness  to  the  judgment 
debtor:  Mitchell  v.  Northwestern  Mfg.  etc.  Co.,  26  HI.  App.  295. 
Where  the  maker  of  a  note  payable  to  a  married  woman  is  sued  by 
the  husband  and  wife,  and  is  also  garnished  by  creditors  of  the 
husband,  he  may  require  them  to  interplead:  Fahie  v.  Lindsay,  8  Or. 
474. 

h.  Miscellaneous  Funds  and  Subjects.— A  person  who  cannot  safely 
pay  a  judgment  may  file  a  bill  of  interpleader  or  a  bill  in  that  na- 
ture: Fowler  y.  Williams,  20  Ark.  641;  Fowler  v.  Lee,  10  Gill  Sb  J. 
(Md.)  358,  32  Am.  Dec  172.  So  may  one  taxed  in  two  different 
towns  or  counties  for  the  same  property:  Mohawk  etc.  B.  B.  Cow 


61^  Ambbican  State  Bhupobts^  Vol.  91.  [B.  I. 

V.  Clute,  4  Paige,  884;  Thomson  ▼.  Ebbets,  1  Hopk.  Ch.  (N.  Y.)  272; 
Dorn  V.  Fox,  61  N.  Y.  264.  Compare  Maey  ▼.  Nantucket,  121  Mass- 
251,  where  it  was  held  that  a  bill  against  the  eoUeetors  was  de- 
murrable for  reasons  of  policy  in  favor  of  the  prompt  eoUection 
of  taxes.  And  a  bill  will  lie  to  determine  which  of  two  towns  haa 
the  right  to  assess  taxes  on  certain  property,  the  boundary  line  b»> 
ing  in  dispute,  if  no  objection  is  taken  by  either  defendant:  Forest 
Biver  Lbad  Co.  v.  Salem,  163  Mass.  193,  42  N.  K  802.  Obviously, 
if  property  is  taxable  in  both  towns,  the  collectors  cannot  be  in- 
terpleaded: Greene  ▼.  Mumford,  4  B.  L  313. 

An  auctioneer  may  interplead  adverse  claimants  of  deposit  money- 
received  by  him:  Bleeker  v.  Graham,  2  Edw.  Ch.  647.  And  the 
surety  on  a  bond  may  be  entitled  to  the  remedy  of  interpleader: 
Bacon  v.  American  Surety  Co.,  65  N.  Y.  Supp.  738,  53  App.  Div.  150. 
A  city  may  bring  an  interpleader  suit  to  determine  the  rights  of 
two  persons  claiming  to  hold  a  municipal  office  to  the  salary:  Mayor 
«tc  New  York  y.  Flagg,  6  Abb.  Pr.  296;  but  not  if  the  right  to  the 
•office  will  be  involved:  Buffalo  v.  Mackay,  15  Hun,  204.  A  defend- 
41  ut  sued  by  several  claimants  for  thu  proceeds  of  a  lottery  drawing 
collected  by  him  is  entitled  to  a  rule  on  them  to  interplead:  Boselle 
▼.  Farmers'  Bank,  119  Mo.  84,  24  S.  W.  744.  A  court  of  admiralty 
may  grant  relief  by  bill  of  interpleader:  Copp  v.  De  Castro  etc  Co., 
«  Ben.  321^  Fed.  Cas.  No.  3215. 


KOLB  V.  UNION  RAILBOAD  COMPANY. 

[23  B.  I.  72,  49  AtL  392.] 

IMFEACHINa  BY  EVIDENOE  of  gpecinc  Acts  of  IQscoiidaet 

and  of  General  Beputatlon.— Specific  acts  of  misconduct  committed 
i>y  a  witness  who  is  a  party  to  a  suit  may  be  shown  where  the  sict 
tea  some  relation  to,  or  some  bearing  upon,  an  issue  involved  in  the 
^ase,  and  his  general  reputation  as  to  the  particular  trait  of  chsLr- 
acter  involved  may  also  be  shown,     (p.  616.) 

WITNESS— Impeaching  by  Showing  Want  of  Ohastlty.—In  An 
action  by  an  administratrix  of  a  decedent  as  his  widow  and  also 
for  the  benefit  of  his  minor  children  to  recoYor  for  his  death  eauaed 
by  the  defendant's  negligence,  it  is  error  to  require  her  to  answer 
whether  she  had  borne  an  illegitimate  child  since  his  death.  Sneh 
^'vidence  is  not  admissible  for  the  purpose  of  impeaching  her,  and 
tor  any  other  purpose  it  is  immaterial,     (p.  617.) 

WITNESS— Gross-examination  for  tbe  Pnrpoae  of  Degxadlng. — 
The  court  ought  not,  on  cross-examination  of  a  witness,  permit  hia 
past  life  to  be  ransacked  and  his  misdeeds  brought  before  the  jury 
for  the  purpose  of  disgracing  or  degrading  him  in  their  eym.    (p.  619.) 


June,  1901.]         Kolb  v.  Union  R.  R.  Co.  615 

Jolm  W.  Hogan  and  George  R.  Macleod,  for  the  plaintifL 
David  S.  Baker,  for  the  defendant. 


TILLINGHAST,  J.  One  of  the  grounds  relied  on  by 
the  plaintiff  in  her  petition  for  a  new  trial  in  this  case  is  that 
the  justice  presiding  at  the  jury  trial  thereof  erred  in  the  ad- 
mission of  certain  testimony.  The  action  was  brought  by  the 
plaintiff^  who  is  the  widow  of  Gottlieb  Kolb,  for  the  benefit 
of  herself  and  her  three  minor  children  by  said  Gottlieb  living 
at  the  time  of  his  decease,  and  all  of  whom  were  living  when 
this  action  was  begon^  which  was  nearly  two  years  after  his 
decease. 

The  declaration  alleges  that  the  action  was  brought  for  the 
benefit  of  the  plaintiff  administratrix,  as  widow  of  the  deceased, 
and  also  for  the  benefit  of  John  Kolb,  George  Kolb,  and  Julia 
Kolb,  all  surviving  minor  children  of  said  Gottlieb  Kolb,  de- 
ceased, living  at  the  time  of  his  decease  and  now  still  surviving. 
'^^  At  the  trial  of  the  case  the  plaintiff  was  called  as  a  witness, 
for  the  purpose,  amongst  other  things,  of  proving  her  mar- 
riage, her  qualification  as  administratrix,  and  who,  as  bene- 
ficiaries in  this  action,  under  the  statute,  were  entitled  to  the 
damages,  if  any,  which  should  be  recovered  for  the  death  of 
her  husband. 

Upon  her  examination  in  chief  she  was  asked  about  the 
members  of  her  family  at  the  date  of  her  husband's  death, 
January  3,  1894,  and  also  at  the  date  of  the  commencement 
of  this  action,  December  30,  1895,  which  was  nearly  two  years 
after  his  decease.  The  questions  asked,  in  so  far  as  they  are 
pertinent  to  the  present  inquiry,  were  these : 

''Q.  At  the  time  of  your  husband's  death  and  at  the  time 
you  began  this  suit,  how  many  children  had  you  by  Gottlieb 
Kolb?    A.    Three  children. 

"Q.    That  are  living?    A.    Tes,  sir. 
**Q.    How  many  children  did  you  have  by  Gottlieb  Kolb? 
A.    ITiree." 

Then  follows  testimony  giving  the  names  of  these  children 
as  set  forth  in  the  declaration,  and  the  age  of  each.  '^Q.  Did 
you  ever  have  any  other  children  by  Gottlieb  Kolb?  A.  No, 
fdr."  In  cross-examination  counsel  for  defendant  was  per- 
mitted, against  the  objection  of  the  plaintiff  and  after  some 
discussion  as  to  the  evident  purpose  of  the  inquiry,  to  ask  the 
following  question:  "(i.    You  have  more  than  three,  haven't 


616  American  State  Eeforts^  Vol.  91.  [R.  I. 

you?^'  The  court  ruled  that  it  would  be  proper  for  the  de- 
fendant to  show  what  children  the  deceased  left,  and,  as  affect- 
ing the  plaintiffs  character  for  truth  and  veracity,  to  show 
that  there  had  been  improper  conduct  on  her  part  since  her 
husband's  death. 

The  ground  of  objection  on  the  part  of  plaintiff  was  that 
the  evidence  was  immaterial  and  irrelevant,  and  was  specially 
obnoxious  to  the  objection  that  it  was  an  attempt  to  impeach 
the  plaintiff's  character  for  chastity  without  first  showing  a 
conviction  of  the  offense  involved  in  her  misconduct.  Xot- 
withstanding  the  plaintiff's  objection,  however,  she  was  com- 
pelled to  admit  that  she  gave  birth  to  an  illegitimate  child 
October  20,  1895,  more  than  twenty-one  months  after  her  hus- 
band's death.  The  admission  of  this  evidence  was  duly  ex- 
cepted to  by  the  plaintiff,  and  the  question  presented,  therefore,. 
'^^  is  whether  the  court  erred  in  admitting  ii  We  think  thi» 
question  must  be  answered  in  the  aflBrmative.  Whether  or  not 
the  plaintiff  had  given  birth  to  a  bastard  child  was  entirely  ir- 
relevant to  any  issue  involved  in  the  case  on  triaL  Nor  do  we 
understand  it  to  be  seriously  contended  by  defendant  that  it 
was.  But  it  is  vigorously  contended  that  it  was  competent 
for  the  defendant  to  prove  the  unchastity  of  the  plaintiff,  for 
the  purpose  of  affecting  her  credibility  as  a  witness  in  the  case. 

The  broad  claim  advanced  by  counsel  for  defendant,  in  sup- 
port of  the  ruling  complained  of,  is  that  a  witness  may  be 
interrogated  upon  cross-examination  in  regard  to  any  vicious 
or  criminal  act  of  his  life,  and  may  be  compelled  to  answer 
unless  he  claimB  his  constitutional  privilege.  We  think  this 
position  is  clearly  untenable;  and  that,  while  it  finds  support 
in  some  of  the  cases  relied  on  by  the  defendant,  the  contrary 
view  is  overwhelmingly  sustained  by  the  authorities. 

We  agree  that  specific  acts  of  misconduct  committed  by  a 
party  to  the  suit  may  be  shown  in  that  class  of  cases  where 
the  act  has  some  relation  to,  or  some  bearing  upon,  the  issue 
involved  in  the  case,  and  also  that  the  general  reputation  of 
the  party  as  to  the  particular  trait  of  character  involved  may 
also  be  shown.  Thus,  in  Mitchell  v.  Work,  13  R.  I.  645.  which 
was  an  action  to  recover  damages  laid  at  five  thousand  dollar-^ 
for  an  indecent  assault,  it  was  held  that  testimony  showing  the 
plaintiff  to  have  been  unchaste  in  her  relations  with  men,  and 
also  testimony  that  her  reputation  for  chastity  was  bad,  was 
properly  admitted*    The  plaintiff  in  that  case  was  suing  for 


June,  1901.]         Kolb  v.  Union  R.  R.  Co.  617 

something  more  than  compensation  for  bodily  injuriea.  In- 
deed, the  gravamen  of  the  assault  consisted,  according  to  her 
testimony,  in  the  insult,  the  personal  indignity,  and  in  the  men- 
tal suffering  and  sense  of  shame  and  wrong  consequent  npon 
it.  It  was  therefore  clearly  pertinent  for  the  defendant  to 
show  that  she  was  a  vulgar,  licentious,  and  unchaste  woman, 
and  hence  that  the  damages  to  which  she  would  be  entitled, 
if  any,  would  be  much  less  than  if  she  had  been  upright  and 
chaste  in  her  character.  But  no  such  question  is  presented  in 
the  case  at  bar.  Here  the  plaintiff  is  suing  for  damages  sus- 
tained ^^  by  the  death  of  her  husband  through  the  alleged  neg- 
ligence of  the  defendant.  And  the  fact  that  she  has  given  birth 
to  an  illegitimate  child  since  the  death  of  her  husband  in  no 
way  whatever  affects  the  question  of  damages  involved  in 
the  case;  nor,  indeed,  does  it  affect  any  other  question  involved 
therein.  Nor  can  said  fact  be  properly  shown  for  the  purpose 
of  affecting  the  plaintiff^s  credibility  for  truth  and  veracity. 
The  credit  of  a  witness  can  be  directly  impeached  only  by 
showing  that  his  general  reputation  for  truth  and  veracity  is 
bad.  'Certainly  it  is  a  fixed  and  established  rule  of  evidence,'' 
as  said  by  the  court  in  Holbrook  v.  Dow,  12  Gray,  358,  ^'that 
it  is  not  competent,  for  the  purpose  of  creating  a  distrust  of 
his  integrity  and  of  thus  disparaging  his  testimony,  to  prove 
particular  acts  of  alleged  misbehavior  and  dishonesty  in  rela- 
tion to  matters  foreign  to  all  the  questions  which  are  involved 
in  the  trial.  This  point,'  says  Mr.  Greenleaf ,  %as  heretofore 
been  much  the  subject  of  discussion,  but  it  must  now  be  con- 
sidered as  settled  and  at  rest.' '' 

In  the  latest  edition  of  Greenleaf  on  Evidence,  volume  1, 
section  461a,  the  rule  as  laid  down  by  the  present  editor,  relat- 
ing to  the  impeachment  of  a  witness,  is  stated  as  follows :  'The 
fundamental  trait  desirable  in  a  witness  is  the  disposition  to  tell 
truth  and  hence  the  trait  of  character  that  should  naturally 
be  shown,  in  impeaching  him,  is  his  bad  character  for  veracity. 
But  there  has  always  been  more  or  less  support  for  the  use  of 
bad  general  character — ^i.  e.,  the  man  as  a  whole,  not  specifically 
the  trait  of  veracity — as  necessarily  involving  an  impairment 
of  veracity.  This  was  the  original  English  doctrine,  but  it 
was  replaced  in  the  early  1800's  by  the  first-mentioned  princi- 
ple, with  the  exception  that  the  witness  was  allowed  to  base 
his  statement  as  to  the  other's  veracity  upon  his  knowledge  of 
the  other's  general  character.    In  this  country,  the  better  doc- 


618  American  State  Bepoetb^  Vol.  91.  [B.  L 


trine  that  the  trait  of  veracity  only  could  be  considered 
early  introduced;  and  this  la  tiie  rule  in  the  great  majority  of 
jurisdictions/' 

In  volume  29  of  American  and  English  Encyclopedia  of  lisw, 
pages  804-806,  Ihe  rule  as  to  the   admissibility  of  particular 
acts  of  misconduct,  and  ^^  also  as  to  particular  traits  of  char- 
acter, is  well  stated  in  the  following  language:  ''Whether  the 
inquiry  into  the  character  of  the  witness  be  confined   to    his 
reputation  for  truth  and  veracity,  or  extend  to  his  general  moral 
character,  the  rule  is  uniform  that  evidence  of  specific  crimes 
or  of  particular  acts  of  misconduct  on  his  part  is  not  admis- 
sible for  the  purpose  of  impeaching  his  credit.    The  impeach- 
ing evidence  must  be  confined  to  the  general  reputation  of  the 
witness.    It  is  also  a  general  rule  that  peculiar  traits  of  char- 
acter, aside  from  that  of  habitual  lying,  shall  not  be  made  the 
subject  of  inquiry  for  the  purpose  of  impeaching  a  witness. 
Thus,  a  witness  may  not  be  impeached  by  evidence  that  he  is 
in  the  habit  of  associating  with  lewd  and  unchaste  women; 
neither  is  it  permissible,  as  a  rule,  to  impeach  a  female  witness 
by  attacking  her  reputation  for  chastity  even  where  it  is  pro- 
posed to  prove  that  she  is  a  common  prostitute.''    The  anther 
adds,  however,  that  ''in  a  few  cases  the  wholesome  restraints 
of  this  rule  have  been  disregarded."    The  cases  dted  whidi 
are  to  this  effect  are  from  Missouri,  Gteorgia,  and  Kentucky. 

The  general  doctrine  above  announced  is  sustained  by  Whar- 
ton on  the  Law  of  Evidence,  third  edition,  section  541,  Bapalje 
on  the  Law  of  Witnesses,  section  197;  Thompson  on  Trials^  sec- 
tions 524,  525,  and  is  also  in  accord  with  the  great  majority 
of  decisions  throughout  the  country. 

As  specially  pertinent  to  the  particular  question  here  in- 
volved, we  cite  the  cases  of  Commonwealth  ▼.  GhurchiU,  11 
Met.  538,  45  Am.  Dec.  229;  State  v.  Smith,  7  Vt  141;  Spears 
V.  Forrest,  15  Vt.  437;  Gilchrist  v.  McKee,  4  Watts,  380.,  28 
Am.  Dec.  721;  Stete  v.  Carson,  66  Me.  116;  Budsdill  v.  Slinger-  . 
land,  18  Minn.  380;  Atwood  v.  Impson,  20  N.  J.  Bq,  157; 
Bucklin  v.  State,  20  Ohio,  18 ;  Muetze  v.  Tuteur,  77  Wis.  243, 
20  Am.  St.  Sep.  115,  46  N.  W.  123 ;  Dunick  v.  Downs,  82  DL 
570;  Moore  v.  Moore,  73  Tex.  382,  11  S.  W.  396. 

That  a  trial  court  may  properly  exercise  a  large  discretion 
in  permitting  matters  which  are  not  strictly  relevant  to  the 
issue  involved  in  the  trial  to  he  brought  out  in  flie  cross-exami- 
nation of  witnesses,  there  can  be  no  doubt.    It  is  throvj^ 


June,  1901.]  Eolb  v.  Union  R.  B.  Co.  619 

examination  that  the  whole  truth  is   generally  brought   out, 
and  that  the  motiyes  of  the  witness  in  testifying  ^''  are  made 
apparent.    The  power  of  cross-examination  has  been  justly 
said  to  be  one  of  the  principal,  as  it  certainly  is  one  of  the 
most  efficacious,  tests  which  the  law  has  devised  for  the  dis- 
covery of  truth :  1  Greenleaf  on  Evidence,  15th  ed.,  sec.  446.    If 
the  witness  is  biased  or  prejudiced  in  favor  of  the  party  calling 
him,  that  may  be  made  to  appear  in  cross-examination.    If  he 
has  previously  made  statements  contrary  to  those  made  upon 
the  witness-stand,  this  fact  may  be  brought  out  in  the  same 
way.     His  relation  to  tiie  case,  if  any,  his  interest  in  the  result , 
his  relationship  to  the  parties  or  to  either  of  them,   how  he 
came  to  be  a  witness,  his  intelligence,  means  of  knowledge, 
his  business,  place  of  residence,  the  accuracy  of  his  memory, 
and  many  other  things  which  need  not  be  enumerated  may  be 
thus  brought  out  for  the  purpose  of  enabling  the  jury  to  rightly 
estimate  and  weigh  his  testimony.    But  that  the  past  life  of  a 
witness  may  be  ransacked  and  his  misdeeds  paraded  before  the 
jury  for  the  purpose  of  disgracing  and  degrading  him  in  their 
eyes  is  so  obnoxious  to  our  sense  of  what  is  justly  due  to  a  per- 
son on  the  witness-stand,  that  we  cannot  consent  thereto.    If 
unrestricted  liberty  were  allowed  in  this  respect,  no  witness, 
however  modest  or  however  venerable,  could  be  sworn  without 
being  required,  if  it  should  please  the  opposing  counsel,  to  sub- 
mit to  an  investigation  into  his  or  her  past  history,  however 
offensive  and  humiliating  this  might  be,  and  notwithstanding 
the  fact  that  the  particular  acts  of  misconduct  which  might 
thus  be  brought  out  were  long  ago  atoned  for  and  generally 
forgotten.    Such  inquisitions  the  great  majority  of  the  courts 
refuse  to  permit^  and,  we  think,  rightly  so  refuse. 

The  previous  rulings  of  this  court,  so  far  as  we  are  aware, 
have  always  been  in  harmony  with  the  position  which  we  have 
thus  taken. 

An  examination  of  the  numerous  cases  cited  in  the  well-pre- 
pared briefs  of  the  respective  counsel  in  this  case  conclusively 
shows  that  the  authorities  are  hopelessly  divided  on  the  ques- 
tion at  issue,  and  hence  it  would  serve  no  useful  purpose  to 
fuifher  discuss  their  relative  merits.  We  therefore  cont^t  our- 
gelvea  by  adopting  that  view  which  most  strongly  '^  commends 
itself  to  our  judgment,  and  which,  as  already  said,  is  supported 
by  the  great  preponderance  of  authority. 
Afl  the  admission  of  the  irrelevant  and  improper  testimony 


620  American  State  Bspobts^  Vol.  91.  £R  L 

referred  to  was  of  such  a  character  as  to  be  very  likely  to 
prejudice  the  jury  againfit  the  plaintiff — ^indeed,  in  view  of 
the  record  in  the  case^  it  is  not  too  much  to  say  that  it  prob- 
ably had  this  effect — and  as  it  is  not  clear  from,  the  eyidence 
that  the  defendant  was  entitled  to  a  verdict  in  any  events  a 
new  trial  must  be  granted:  Graham  v.  Coupe^  9  B.  I.  478; 
King  V.  Colvin,  11  B.  I.  682 ;  Tourgee  v.  Eose,  19  B.  I.  432, 
27  Atl.  9.  We  express  no  opinion  as  to  the  merits  of  the  peti- 
tion in  so  far  as  it  is  based  on  the  ground  that  the  verdict  is 
against  the  evidence. 

Petition  for  new  trial  granted^  and  case  remitted  to  the  com- 
mon pleas  division. 


ImpeaeMnff  Witnessea  by  proof  of  their  moral  eharaetar  is  eoBflid- 
ered  at  length  in  the  note  to  Lodge  v.  State^  82  Am.  8t.  Bap.  2&-9L 
Want  of  chastity  in  a  witness  cannot  be  inquired  into  for  tho  poipcse 
of  impeachment,  except  in  cases  of  rape  and  the  like.  There  is 
authority,  however,  to  the  contrary:  Bee  the  monographic  note  to 
State  V.  Sibley,  63  Am.  St.  Bep.  479-482. 


PEPIN  V.  SOCIETE  ST.  JEAN  BAPTISTS. 

[23  B.  L  81,  49  Aa  387.] 

ABBITBATIOK— Agreements  for,  When  Void.— An  agreement 
to  submit  to  arbitration  a  controversy  which  has  not  yet  arisen  is 
void.     (p.  624.) 

BENEFIOIAL  A8SO0IATIOKS— By-laws  BeqniriBg  Gbdms 
for  Benefits  to  be  Submitted  to  Arbitration  of  a  Committee  of  tke 
Association.— A  by-law  of  a  beneficial  association  requiring  every  con- 
testation between  it  and  its  members  to  be  referred  to,  and  decided 
by,  a  committee  of  five  persons,  two  to  be  appointed  by  it,  two  by  the 
member,  and  a  fifth  by  the  other  four,  and  that  the  decision  of  each 
committee  is  final,  cannot  prevent  the  member  from  maintaining 
an  action  for  benefits  which  he  claims  to  be  due  him,  without  first  sub- 
mitting his  claim  to  such  committee,     (p.  628.) 

Arthur  M.  Allen,  for  the  plaintiff. 

Archambanlt  &  Gaulin,  for  the  defendant. 

^^  SnNESS,  C.  J.  The  plaintiff  sues  in  assnmpait  to  re- 
cover for  benefits  which  he  alleges  are  due  to  hiia  under  the 
by-laws  of  the  society,  to  which  he  also  alleges  that  he  has  in  all 
things  conformed,  that  he  has  exhausted  all  the  remedies  within 


June,  1901.]    Pepin  v.  Societe  St.  Jean  Baptists.  621 

the  society,  and  that  the  society  has  refused  to  pay  the  same. 
The  defendant  pleads  specially  that  a  by-law  of  the  society  re- 
qnireB  every  contestation  between  a  society  and  a  member  to 
be  referred  to  and  be  decided  by  a  committee  of  five  persons, 
two  appointed  by  the  society,  two  by  the  member,  and  the  fifth 
bj  the  other  four,  and  thi^  the  decision  of  the  committee  is 
final ;  that  the  defendant  was  always  ready  and  willing  to  submit 
said  claim  of  the  plaintiff  to  such  committee,  but  the  plain- 
tiff failed  to  accept  said  offer,  and  refused  to  submit  his  said 
daim  to  the  arbitration  of  such  committee.  The  plaintiff  de- 
mnrB  to  the  plea. 

The  question  raised  is  whether  the  by-law  set  up  in  the  plea 
is  a  bar  to  the  present  action. 

By-laws  of  a  society  are  intended  for  the  internal  govern- 
ment ^^  of  its  affairs.  When  they  are  confined  within  this 
scope,  courts  have  no  jurisdiction  or  control  over  their  admin- 
istration. For  example,  courts  cannot  undertake  to  correct 
matters  which  only  relate  to  discipline  or  procedure  in  such 
bodies.  By-laws  are,  however,  in  the  nature  of  a  mntual  con- 
tract, and  to  that  extent  the  action  of  a  society  under  them 
may  be  reviewed  by  a  court  to  preserve  personal  rights  which 
inv(^ve  something  more  than  the  mere  formal  action  of  the 
society — such  as  insurance,  rights  of  property,  or  an  illegal  exer- 
cise of  power. 

The  by-law  in  this  case  raises  the  question  whether  the  pro- 
vision to  submit  to  an  arbitration  whidi  shall  be  final  is  binding 
on  the  plaintiff  as  a  member  of  the  society.  It  is  a  question 
involving  a  pecuniary  interest  which  is  termed  by  most  cases  a 
property  right. 

Upon  this  question  there  have  been  two  lines  of  decision. 
On  one  side  are  those  cases  which  hold  that  a  person  who  be- 
comes a  member  of  a  society  thereby  agrees  to  its  by-laws  so  as 
to  be  bound  by  them  to  the  extent  of  having  assented  to  a  tri- 
bunal whose  decision  is  to  be  final  and  hence  not  reviewable 
by  a  civil  court ;  that  such  an  agreement  is  not  contrary  to  pub- 
lic policy,  because  by  it  such  person  has  waived  nothing  which 
he  had  not  the  right  and  power  to  waive;  and  that  such  tribunal 
is  constituted  for  the  express  purpose  of  settling  the  difference 
b^ween  members  and  the  society  without  recourse  to  legal  pro- 
ceedings. Of  this  dass  of  cases  the  following  are  examples: 
Hembean  v.  Oreat  Gamp  Knights  of  Maccabees,  101  Mich.  161, 
45  Am.  St.  Bep.  400,  59  N.  W.  417 ;  Ganfield  v.  Great  Camp 


622  American  State  Bbpobts,  Vol.  91.  [B.  L 

Knights  of  Maccabees,  87  Mich.  626,  24  Am.  St.  Bep.  186^  49 
N.  W.  876 ;  Osceola  Tribe  v.  Schmidt,  57  Mi  98. 

On  the  other  side,  it  is  held  that  where  there  is  a  contract 
to  pay  money,  either  by  way  of  benefits  or  insurance,  it  is  in 
the  nature  of  a  property  right,  which,  like  all  other  contracts^ 
is  within  the  jurisdiction  of  courts  of  law.    We  think  that  the 
stronger  reason  is  with  this  class  of  cases.    By  this  we  do  not 
mean  that  a  member  is  free  to  come  to  the  courts  regardless  of 
the  by-laws  of  his  society,  but  only  that  he  is  not  in  all  respects 
absolutely  bound  by  them.    Where,  as  we  have  said,  the  by-laws 
relate  simply  to  matters  of  internal  ®*  administration^   or  of 
discipline,  courts  will  not  undertake  to  review  them.     Courts 
are  not  established  for  such  a  purpose.    Also,  where  the  by-laws 
amount  to  a  condition  precedent  to  a  right  of  action,  such  as  a 
proper  opportunity  to  hear  and  examine  a  claim  for  the  pur- 
pose of  ascertaining  the  liability  or  the  amount  due,  they  must 
be  followed  before  a  court  will  hear  a  party  who  has  failed  thus 
to  conform  to  his  reasonable  contract.    This  is  a  principle  appli- 
cable to  all  contracts.    A  familiar  illustration  is  foimd,  in  con- 
tracts of  insurance,  in  provisions  relating  to  notice,  adjustment 
of  loss,  and  the  like.    Also  in  statutory  provisions  requiring 
those  who  have  claims  against  a  city  or  town  to  present  them 
for  a  certain  time,  in  order  to  allow  opportunity  for  investiga- 
tion.   But  where  a  person  who  has  a  right  of  action  is  deprived 
of  his  remedy,  either  by  nonaction  or  wrong  action  on  the  part 
of  the  society,  or  where  by-laws  impose  conditions  which  would 
not  be  allowed  to  stand,  under  recognized  rules  of  law,  in  other 
cases  of  contracts,  such  by-laws  are  invalid,  upon  the  ground 
that  they  operate  to  deprive  a  person  of  his  remedy  of  recourse 
to  the  law,  which  is  a  common  constitutional  right. 

Among  the  conditions  thus  imposed,  the  one  upon  which  this 
case  arises  has  often  been  considered  by  couii^s,  and  that  is  in 
regard  to  a  by-law  which  makes  a  finding  by  a  committee  or 
by  arbitrators,  not  simply  a  condition  precedent  to  recovery,  but 
a  final  and  conclusive  adjudication  between  the  parties,  and  so 
a  bar  to  an  action. 

The  by-law  in  question  involves  two  conditions :  One  to  sub- 
mit future  disputes  to  arbitration,  and  another  to  make  the  de- 
cision final.  Both  conditions  are  objectionable  as  a  bar  to  a 
suit.  The  general  rule  as  to  arbitrations,  outside  of  covenants 
in  a  deed,  is  that  a  party  may  at  any  time,  before  award  made, 
revoke  the  authority  of  the  arbitrators :  Sherman  v.  Cobb,  15  R. 


June,  1901.]    Pjvin  v.  Sooiete  St.  Jean  Baptiste.         623 

I.  570, 10  Atl.  591.    It  would  be  idle  id  compel  a  party  to  enter 
into  an  aibitration  which  he  can  forthwith  revoke,  and  which, 
in  order  to  preserve  his  rights,  he  must  revoke  before  an  award 
is  nuide :  Beed  ▼.  Washington  Ins.  Co.,  138  Mass.  572.    Hence 
the  agreement  to  submit  such  disputes  as  may  arise  in  the  future 
have  no  binding  force,  *^  except  in  cases  where  it  amounts  only 
to  a  condition  precedent  to  recovery.    The  finality  of  such  an 
agreement  is  objectionable  for  several  reasons.    The  reason 
generally  given  is  that  it  ousts  courts  of  jurisdiction,  and  so  de- 
prives a  party  of  his  rights  under  the  law.    While  he  may  waive 
those  rights  in  a  given  case,  when  he  knows  the  circumstances 
and  the  effect  of  his  act,  it  is  held  to  be  contrary  to  public  policy 
for  one  to  bar  himself  in  advance  from  a  resort  to  the  courts 
for  some  future  controversy  of  which  he  can  have  no  knowledge 
at  the  time  of  the  original  agreement.    At  first  sight  this  may 
seem  to  interfere  with  the  obligation  of  a  contract,  but  it  is  not 
8o.     All  the  elements  of  the  contract  affecting  liability  remain, 
the  agreement  to  arbitrate  relating  only  to  remedy.    It  is  to  be 
presumed  that  a  just  decision  will  be  reached  in  either  case,  and 
hence  neither  party  suffers  injury.    A  resort  to  the  courts  may 
be  very  necessary  to  a  claimant  because  he  cannot  compel  the 
attendance  of  witnesses  before  a  voluntary  tribunal;  or  the 
matter  may  be  of  so  great  interest  to  the  members  as  to  preclude 
impartial  arbitrators.    The  society,  on  the  other  hand,  may  at 
any  time,  if  it  does  not  wish  to  arbitrate,  compel  a  claimant  to 
resort  to  the  courts  by  refusing  to  arbitrate  or  to  pay;  hence  the 
obligation  is  not  mutual,  except  in  theory. 

The  right  of  a  party  to  resort  to  a  court,  notwithstanding  an 
agreement  to  arbitrate,  is  sustained  by  the  following  cases: 
Bauer  v.  Samson,  102  Ind.  262,  1  K  E.  571 ;  Kinney  v.  Balti- 
more, 35  W.  Va.  385, 14  S.  E.  8 ;  Supreme  Council  v.  Forsinger, 
125  Ind.  52,  21  Am.  St.  Eep.  196,  25  N.  E.  129 ;  Daniher  v. 
Grand  Lodge,  10  Utah,  110,  37  Pac.  245 ;  Wood  v.  Humphrey, 
114  Mass.  185 ;  Austin  v.  Searing,  16  N".  T.  112,  69  Am.  Dec. 
'   665. 

Cases  involving  similar  questions  have  arisen  from  provi- 
sions in  policies  of  insurance.  In  Nute  v.  Hamilton  Mut.  Ins. 
Co.,  6  Oray,  174,  a  by-law  required  that  an  action  at  law  should 
be  brought  in  a  particular  county,  and  the  poUcy  was  subject  to 
the  by-laws.  Shaw,  C.  J.,  said  that  the  remedy  does  not  de- 
pend on  contract,  but  on  law;  and  a  plea  that  the  suit  was  not 
brought  in  the  county  named  in  the  by-law  was  held  not  to  be 


624  Ambbicam  Statb  Bbports^  Vol.  91.  [B.  L 

a  def  eiifie  to  the  actioB.  Iiistirance  Co.  t.  Morse,  20  WalL  445, 
raised  the  question  whether  a  statate,  requiring  ^  ewerj  foreign 
company  doing  business  in  the  state  to  enter  into  an  agreement 
that  the  company  would  not  remoTe  a  suit  for  trial  in  the  fed- 
eral courts,  was  valid.  It  was  held  that  such  a  statute  was  un- 
constitutional and  the  agreement  void.  If  by-laws,  contractB, 
and  statutes  abridging  a  right  of  resort  to  courts  of  law  are  in- 
valid when  they  are  agreed  to  in  express  tenns,  for  a  stronger 
reason  should  they  be  held  to  be  invdiid  when  they  are  agreed  to 
only  by  implication  and  relate  to  controversies  which  have  not 
arisen  and  cannot  be  foreseen. 

We  therefore  decide  that  the  plaintifTs  demurrer  to  the  de- 
fendant's plea  is  sustained. 


A  Memhcr  of  a  BenefU  SooMy  cannot  bind  himself  by  eontmet. 
in  advance^  to  abide  by  the  deeisions  of  the  tribunals  of  the  organiza- 
tion and  renounce  his  right  to  appeal  to  the  courts  for  the  redress 
of  wrongs  committed  by  such  tribunals:  Mjers  v.  Jenkina,  63  Ohio 
8t.  101,  81  Am,  St.  Bep.  613,  57  N.  K  1089.  A  provision  in  the  by- 
laws that  the  decision  of  the  officers  of  the  association  on  a  mem- 
ber's  claim  for  benefits  shall  be  final  and  conclusive  is  ineffeetnal: 
Supreme  Council  v.  Forsinger,  125  Ind.  52,  21  Am.  St.  Bep.  196,  25 
N.  K  129.  See^  further,  on  this  subject  the  monographie  notee  te 
Robinson  v.  Templar  Lodge,  59  Am.  St.  Bep.  198-209;  Keams  v. 
Howley,  68  Am.  St  Bep.  856-871. 


PAULTON  V.  KEITH. 

[23  B.  L  164,  49  Aa  635.] 

EVIDSNOE.— The  Declarations  of  One  Assamlnff  to  Ad  as 

an  Agent  are  not  admissible  to  prove  his  agency,     (p^  625.) 

PBINOIPAL  AND  AQENT— Manager  and  Proprietor  of 
Theater. — A  manager  of  a  theater  who  stands  against  the  doer  ef 
a  stage  and  refuses  to  allow  an  officer  to  enter  for  the  fmrpose  of 
serving  a  writ  upon  an  actor  is  not  acting  within  the  lixnits  of  the 
apparent  scope  and  implied  authority  of  his  employment,     (p.  628.; 

AN  OFFICEB  In  the  Service  of  Civil  Process  has  tbe  Biglit 
to  Break  Doors  and  command  sufficient  force  to  enter  a  theater  or 
other  building  not  occupied  as  a  dwelling,     (p.  628.) 

Action  of  trespass  on  the  case.    Verdict  for  the  defendant 

and  the  plaintiff  petitioned  for  a  new  triaL 

James  A.  Williams^  for  the  plaintiffs. 
Edwards  &  Angell,  for  the  defendant. 


July,  1901.]  Paulton  t;.  Keith.  625 

*"  STINESS,aJ.  The  plaintiffs  brought  this  suit  against 
the  defendant^  the  proprietor  of  a  theater  in  Providence,  to  re- 
coTer  damages  upon  tiie  charge  that  the  defendant's  manager 
prevented  an  officer  from  serving  a  writ  in  their  bdialf  upon 
an  actor  engaged  in  said  theater. 

The  evidence  showed  that  the  officer,  with  another  officer  and 
the  plaintiffs'  attorney,  entered  the  outside  door  of  the  rear  part 
of  the  theater,  where  they  were  met  by  the  manager,  with  two 
other  men,  who  stood  against  the  door  to  the  stage  and  refused 
to  allow  the  officers  to  enter  it.  The  employment  of  the  mana- 
ger by  this  defendant  was  admitted,  but  ^^  no  authority  from 
him  to  refuse  admission  to  the  officer  was  shown,  other  than  the 
officer's  testimony  that  the  manager  said  that  he  was  acting  un- 
der the  direction  of  the  defendant.  This  testimony  was  ob- 
jected to;  but  after  the  plaintiffs'  case  was  in,  the  court  di- 
rc'cted  a  verdict  for  the  defendant,  and  the  plaintiffs  ask  for  a 
new  trial  on  the  ground  of  error  in  such  direction. 

It  is  a  general  rule  that  the  declarations  of  a  person  assum- 
ing to  act  as  the  agent  of  another  are  not  admissible  to  prove 
his  agency.  He  may  be  called  as  a  witness  to  state  what  orders 
he  has  received,  and  upon  that  point  he  would  be  subject  to 
cross-examination,  from  which  a  limitation  of  his  authority 
might  appear.  But  to  allow  his  statement  to  others  upon  a  vital 
point  as  to  which  he  cannot  be  cross-examined  is,  obviously,  hear- 
say testimony,  and  contrary  to  the  well-settled  rules  of  evidence. 
The  plaintiffs  do  not  controvert  this  rule,  but  they  claim  to 
be  within  this  qualification  of  it ;  that  when  the  agent  is  acting 
within  the  scope  of  his  authority  and  during  the  continuance 
of  the  agency,  his  declarations  may  be  given,  as  to  matters  then 
occurring,  as  a  part  of  the  res  gestae. 

The  question  presented  in  this  case,  therefore,  is  whether  the 
manager,  in  refusing  entrance  to  the  officer,  was  acting  within 
the  apparent  scope  and  implied  authority  of  his  employment. 

The  plaintiffs  argue  that  the  defendant  is  liable  by  analog}; 
to  cases  such  as  these:  If  the  manager  had  assaulted  a  patron 
of  the  theater  and  wrongfully  ejected  him;  if  a  conductor  of 
a  street-car  or  steam  train  should  assault  a  passenger  and  put 
him  off  without  right  to  do  so;  if  a  motorman  should  run  his 
car  at  an  unlawful  speed  and  injure  a  passenger  or  a  traveler 
upon  the  street — ^the  master  would  be  liable.  Doubtless  this 
is  so,  but  upon  very  different  principles  from  any  which  are 
applicable  to  this  case.    In  the  cases  supposed,  a  proprietor  of  a 

St.  Rep.,  Vol   91-40 


026  American  State  Beports,  Vol.  91.  [B.  L 

theater  and  a  company  running  cars  are  held  to  guarantee  Bome 
protection  to  their  patrons,  and  to  assume  a  liability  if  employfa^ 
either  willfully  or  negligently,  injure  them;  and  a  motormaiit 
engaged  in  his  proper  duties  of  running  ^•^  a  car,  carries  with 
him,  like  the  driver  of  a  horse,  the  master^s  responsibility  that 
it  shall  not  be  driven  wrongfully  upon  another.  As  to  a  mas- 
ter's responsibility  to  others  for  a  willful  act  by  his  servant,  there 
has  been  some  conflict  in  decisions.  In  many  cases  it  has  been 
held  that  a  master  is  responsible  for  the  torts  of  his  servant, 
done  with  a  view  to  the  furtherance  of  the  master's  business, 
whether  the  same  be  done  negligently,  wantonly,  or  even  will- 
fully, but  within  the  scope  of  his  employment  (14  Am.  &  Eng. 
Ency.  of  Law,  Ist  ed.,  817,  note  3) ;  but  we  need  not  examine 
those  cases,  because  the  controlling  question  before  hb  is  that 
of  the  agent's  authority. 

In  Staples  v.  Schmid,  18  R.  I.  224,  26  Atl.  193,  this  subject 
was  carefully  considered,  and  one  of  the  principles  recognized 
in  determining  liability  was  that  it  cannot  be  inferred  as  matter 
of  law  that  a  master  has  authorized  his  servant  to  do  an  act 
which  he  could  not  lawfully  do  himself  in  the  circumstances 
supposed  by  the  servant  to  exist.  In  that  case  the  proprietor 
of  a  store  was  held  to  be  liable  to  a  customer  whose  arrest  the 
defendant's  salesman  and  custodian  had  caused  on  a  wrongful 
suspicion  of  stealing  goods  from  the  store.  The  court  said  that 
the  master  would  have  no  right  to  arrest  and  search  an  innocent 
person,  but  that  he  had  the  right  to  detain  a  thief  and  to  recap- 
ture his  property  from  him.  Hence  the  act  of  the  servant  might 
be  lawful  or  imlawful,  according  to  the  facts.  As  the  master's 
substitute  he  had  to  make  a  decision  of  his  duty,  which,  as  to 
third  persons,  was  the  master's  act,  for  which  he  was  answerable 
either  for  excess  of  force  or  mistake  in  regard  to  the  occasion 
for  it.  In  the  present  case  it  could  not  be  lawful  for  the  de- 
fendant to  obstruct  an  officer  in  the  discharge  of  his  duty,  in 
any  event,  if  the  refusal  of  admission  amounted  to  obstruction, 
and  so  it  could  not  be  lawful  for  his  servant  to  do  so. 

The  cases  relied  on  by  the  plaintiffs,  so  far  as  they  support 
them,  are  based  upon  lawful  authority  to  a  servant  to  do  the 
act  from  which  the  injury  arose  and  upon  an  excess  of  force 
or  bad  judgment  in  doing  it.  This  is  clearly  right.  If  one  em- 
ploys  another  to  do  a  certain  thing  as  his  servant,  retaining 
*•''  the  right  of  control,  oversight,  and  discretion  in  the  per- 
formance of  the  act — the  servant  acting  in  place  of  the  master 


July,  1901.]  Paulton  v.  Keith.  627 

and  not  independently — ^the  master  is  responsible  for  the  waj 
in  which  the  thing  is  done.  But  it  is  a  very  different  thing  to 
hold  a  master  responsible  for  an  act  which  he  has  never  author- 
ized a  servant  to  do,  simply  because  the  latter  is  his  servant,  and 
on  the  strength  of  it  to  allow  the  statements  of  the  servant  to 
be  put  in  to  bind  the  principal. 

The  plaintiffs!*  claim  goes  to  this  extent,  but  the  cases  cited 
do  not.  In  Rounds  v.  Delaware  E.  E.  Co.,  64  N.  Y.  129,  21  Am. 
Eep.  597,  the  action  was  for  kicking  a  boy  off  a  baggage-car  by 
a  brakeman.  It  was  conceded  that  the  removal  of  the  plaintiff, 
who  was  a  trespasser,  was  within  the  scope  of  the  brakeman's 
authority,  and  hence  the  company  was  held  to  be  liable  for  the 
injury  caused  by  exercising  that  authority  improperly  by  kick- 
ing the  boy  off  against  a  wood-pile,  from  which  he  fell  back  un- 
der the  cars. 

Hoffman  v.  Nejw  York  Cent.  R.  R.  Co.,  87  N.  Y.  26,  41  Am. 
Rep.  337,  was  to  the  same  effect^  the  court  saying:  '^The  aa» 
thority  to  remove  the  plaintiff  from  the  car  was  vested  in  the 
defendant's  servants.  The  wrong  consisted  in  the  time  and 
mode  of  exercising  it.  For  this  the  defendant  is  responsible,. 
unlesB  the  brakeman  used  his  authority  as  a  mere  cover  for  ac- 
complishing an  independent  and  wrongful  purpose  of  his  own.** 
In  Adams  v.  Hannibal  etc.  R.  R.  Co.,  74  Mo.  553,  41  Am. 
Rep.  333,  the  question  was  whether  the  statements  of  the  fire- 
man and  engineer  of  a  railway  train  were  admissible  in  evi- 
dence in  an  action  against  a  railroad  company  for  negligence,, 
and  the  court  held  that  they  were  not. 

Hynes  v.  Jimgren,  8  Kan,  391,  was  a  suit  for  false  imprison- 
ment in  which  the  plaintiff  in  the  original  case,  together  with 
the  constable  serving  the  writ,  carried  the  defendant  in  the  origi- 
nal writ  to  the  county  jail,  and  kept  him  there  for  a  part  of  a 
day  before  taking  him  before  the  justice  as  required  by  the  pre- 
cept. In  that  case  the  principal  was  an  active  participant  in 
the  wrong. 

In  Cantrell  v.  Colwell,  40  Tenn.  (3  Head)  471,  Mrs.  Cant- 
reU  requested  a  relative  to  turn  Colwell's  mare  out  of  her 
^•8  inclosure.  In  doing  so  he  threw  a  rock  at  the  mare  and 
broke  its  leg.  The  court  held  that  a  request  to  turn  out  the 
mare  could  not  be  tortured  to  imply  a  request  to  injure  or  de- 
stroy it. 

In  the  case  at  bar,  there  being  no  inference  of  authority  as 
a  matter  of  law  from  the  defendant  to  his  servant  to  do  the  act 


628  American  Statb  Bbpobts^  Vol.  91.  [B.  L 

here  complained  of,  and  no  evidence  of  express  authority,  the 
statements  of  the  servant  were  inadmissible,  and,  there  being 
no  other  evidence  of  authority,  the  direction  of  a  verdict  for 
the  defendant  was  right. 

The  verdict  was  also  rightly  directed  upon  another  ground. 

The  building  in  which  the  affair  took  place  was  not  a  dwelling- 
house,  and  the  officer  had  entered  the  outer  door.  If  he  had  a 
valid  precept,  he  had  the  right  to  break  doors  and  command 
sufficient  force  to  enter,  having  requested  admittance,  which  had 
been  refused:  Clark  v.  Wilson,  14  E.  I.  11.  The  cause  of  the 
plaintiffs'  injury,  if  any,  was  not  the  refusal  of  fhe  defendant's 
servant  to  allow  the  officer  to  enter,  but  the  failure  of  the  of* 
ficer  to  serve  his  process  as  he  might  and  should  have  done. 

To  this  may  be  added  the  fact  that  the  plainti£b  offered  no 
proof  of  the  judgment  set  out  in  their  declaration,  nor  any  evi- 
dence to  show  that  they  had  suffered  any  pecuniary  loss  in  the 
case.  On  the  contrary,  the  defendant  put  in  a  discharge  in 
bankruptcy  of  Seabrooke,  the  defendant  in  the  original  writ, 
subsequent  to  the  plaintiffs'  judgment,  to  show  that  the  plaintiffs 
had  no  right  of  action  against  him,  and  consequently  had  suf- 
fered no  damage. 

The  petition  for  a  new  trial  is  denied,  and  case  remitted  with 
direction  to  enter  judgment  for  the  defendant. 


The  Relation  of  Principal  and  Agent  cannot  be  established  by  the 
declarations  of  the  aUeged  agent:  LawaU  v.  Groman,  180  Pa.  St 
C32,  37  AtL  98,  57  Am.  St.  Bep.  662,  and  cases  cited  in  the  cross- 
reference  note  thereto.  The  liability  of  a  principal  for  the  unau- 
thorized acts  of  his  agent  is  considered  in  the  monographic  note  to 
Franklin  Fire  Ins.  Go.  y.  Bradford,  88  Am.  St.  Sep.  779-799. 

An  Offloer  is  not  Justified  in  Breaking  open  an  outer  door  or  window 
of  a  dwelling  to  serve  or  execute  civil  process:  See  State  v.  Beekmer, 
132  Ind.  371,  32  Am.  St.  Bep.  257,  31  N.  £.  950;  note  to  Kaitk  ▼. 
Johnson,  25  Am.  Dee.  171,  172. 


Julji  1901.]  Gorman  v.  Budlomg.  629 


GORMAN  V.  BUDLONG. 

[23  R.  I.  169,  49  Atl.  704.] 

OHILD  NOT  TET  BORN— Action  for  Injuries  to.— For  injuriei 
reeelTod  by  a  child  while  in  its  mother's  womb  it  cannot  maintain 
a  eiyil  action.  Therefore,  under  a  statute  declaring  that  whenever 
the  death  of  a  person  is  caused  by  the  neglect  or  default  of  another, 
and  the  neglect  or  default  is  such  that  if  death  had  not  ensued  it 
would  have  entitled  the  party  injured  to  maintain  an  action  to  re- 
cover damages,  then  the  wrongdoer  shall  be  liable  to  action  not- 
withstanding such  death,  the  proceeds  of  the  action  to  go  to  certain 
kindred  specified  in  the  statute,  an  action  cannot  be  maintained  by 
the  next  of  kin  of  an  infant  for  negligently  causing  its  death  while 
in  its  mother's  womb.     (p.  636.)  ' 

Action  of  trespass  on  the  jcase  for  negligence.  To  the  plain* 
tifPs  declaration  the  defendant  interposed  a  demurrer^  which 
was  sustained* 

Leonard  W.  Horton,  for  the  plaintiff. 

Frederick  A.  Jones,  for  the  defendant. 

*••  B0GER8,  J.  The  case  is  before  ns  upon  demnrrer  to 
the  plaintiff's  declaration.  It  is  an  action  of  trespass  on  the  case 
for  n^Ugence  brought  by  the  plaintiff  as  father  and  next  of 
kin  of  Patrick  Gorman,  Junior,  and  the  facts  as  alleged  are 
that  the  plaintiff  was  a  tenant  from  week  to  week  of  a  tene- 
ment of  the  defendant;  that  the  plaster  of  the  ceiling  of  the 
kitchen  in  said  tenement  became  loose  and  liable  to  fall;  that 
on  or  about  November  15,  1900,  and  again  on  or  about  Decem- 
ber 1,  1900,  the  plaintiff  notified  the  defendant,  his  agents  and 
senrants,  of  the  defective  and  dangerous  condition  of  said  ceil- 
ing; that  in  consideration  that  said  plaintiff  and  the  members 
of  his  family  would  continue  in  said  tenement  as  his  tenants, 
and  in  consideration  that  said  plaintiff  would  and  did  continue 
to  pay,  or  become  liable  to  pay,  the  weekly  rent  for  the  same, 
as  he  had  previously  been  accustomed  to  do,  said  defendant,  his 
agents  and  servants,  promised  to  have  said  tenement  repaired, 
and  said  ceiling  replastered,  so  as  to  make  the  same  safe  for 
said  plaintiff  and  the  members  of  his  family  to  live  in,  and  not 
subject  him,  them  or  any  of  them,  to  great  danger  of  serious  in- 
jury; whereupon  it  became  and  was  the  duty  of  said  defend- 
ant to  make,  or  cause  to  be  made,  the  repairs  necessary  to  make 
said  tenement  safe  for  said  plaintiff  and  the  members  of  his 


630  Ambrican  State  Ebpobts,  Vol.  91.  [E,  L 

family  to  liye  in^  and  not  subject  him,  them  or  any  of  than  to 
great  danger  of  seriona  injury,  and  to  put  ^^^  said  t^iement  in 
a  tenantable  condition,  yet  said  defendant,  in  violation  of  his 
said  duty,  wholly  neglected  to  make  said  necessary  repairs,  and 
that  thereafterward,  on,  to  wit,  January  22,  1901,  in  conse- 
quence of  said  defendant's  neglecting  to  make  said  necessary 
repairs,  said  ceiling  fell  upon  Eliza  Gorman,  the  plaintiflPs  wife, 
while  she  was  engaged  in  her  household  duties  and  in  the  exer- 
else  of  due  and  reasonable  care  and  caution  on  her  part,  seyerelj 
injuring  and  bruising  her,  and  that  from  and  on  account  of  the 
injuries  and  shock  occasioned  by  said  ceiling  falling  upon  her, 
the  said  Eliza  Gorman  was  caused  to  give  birth  to  a  child  pre- 
maturely, which  said  child  afterward,  on,  to  •wit,  January  25, 
1901,  on  account  of  said  premature  birth,  died;  that  on  account 
of  said  premature  birth  of  said  child  and  the  weakness  and  ill- 
ness resulting  therefrom  said  plaintiff  was  obliged  to  and  did 
pay,  lay  out  and  expend  large  sums  of  money,  to  wit,  the  sum 

of dollars,  for  medical  attendance  and  nursing  and  medi- 

<inea  in  the  proper  care  and  treatment  of  said  child;  that  on  ac- 
count of  said  death  of  said  child  occasioned  as  aforesaid,  said 
^plaintiff  was  obliged  to  and  did  pay,  lay  out  and  expend  large 

«um8  of  money,  to  wit,  the  sum  of dollars,  in  the  burial 

•of  said  child  and  oth^  necessary  funeral  expenses;  to  the  plain- 
tifl's  damage  five  thousand  dollars,  etc. 

The  action  was  brought  to  recover  for  the  death  of  the  duld 
under  General  Laws  of  Rhode  Island,  caption  233,  section  14, 
which  is  as  follows,  viz. : 

"Sec.  14.  Whenever  the  death  of  a  person  shall  be  caused 
by  the  wrongful  act,  neglect,  or  default  of  another,  and  the 
act,  neglect,  or  default  is  such  as  would,  if  death  had  not  en- 
sued, have  entitled  the  party  injured  to  maintain  an  action  and 
recover  damages  in  respect  thereof,  then,  and  in  every  such  case, 
the  person  who,  or  the  corporation  which,  would  have  been  liable 
if  death  had  not  ensued,  shall  be  liable  to  an  action  for  damages, 
notwithstanding  the  death  of  the  person  injured,  and  althou^ 
the  death  shall  have  been  caused  under  such  circumstances  as 
amount  in  law  to  a  felony.  Every  such  action  shall  be  brought 
by  and  in  the  name  of  the  executor  or  administrator  of  such  de- 
<»eased  person,  whether  appointed  ^''^  or  qualified  within  or  with- 
out the  state,  and  the  amount  recovered  in  every  such  action 
shall  one-half  thereof  go  to  the  husband  or  widow,  and  one-half 
thereof  to  the  children  of  the  deceased,  and  if  there  be  no  chil- 


Julji  1901.]  QORMAN   V.   BUDLONG.  631 

dren,  the  whole  shall  go  to  the  husband  or  widow,  and  if  there 
be  no  husband  or  widow,  to  the  next  of  kin,  in  the  proportion 
provided  by  law  in  relation  to  the  distribution  of  personal  prop- 
erty left  by  persons  dying  intestate;  provided,  that  every  such 
action  shall  be  commenced  within  two  years  after  the  death  of 
€uch  person.  If  there  is  no  executor  or  administrator,  or  if, 
there  being  one,  no  action  is  brought  in  his  name  within  six 
months  after  the  death,  one  action  may  be  brought  in  the  names 
of  all  the  beneficiaries,  either  by  all,  or  by  part,  stating  that 
they  sue  for  the  benefit  of  all,  and  stating  their  respective  re- 
lations to  the  deceased;  provided,  that  if  all  do  not  bring  such 
suit,  only  those  bringhig  it  shall  be  responsible  for  costs;  but 
judgment  shall  be  for  the  benefit  of  all,  and  shall  be  entered  as 
several  judgments  for  each  in  his  proportion  as  aforesaid,  and 
executions  thereon  shall  issue  in  favor  of  each  respectively ;  pro- 
vided, further,  that  if  such  action  shall  be  brought  by  the  bene- 
ficiaries, no  action  shall  thereafter  be  brought  by  the  executor 
or  administrator.  There  shall  be  but  one  bill  of  costs  in  favor 
of  the  plaintifiEs,  which  shall  inure  equally  for  the  benefit  of 
those  bringing  the  suit,  and  of  them  only.** 

The  defendant  demurred  to  the  declaration,  which  consists 
of  one  count  only,  on  the  following  grounds,  viz. :  1.  That  the 
plaintiff^s  intestate  could  not  have  maintained  an  action  for 
damages  against  the  defendant,  had  he  survived,  and  therefore 
the  plaintiff  in  this  case  has  no  right  of  action  against  said  de- 
fendant; 2.  That  said  action  is  improperly  brought  under  chap- 
t<^r  233,  section  14,  of  the  Oeneral  Laws;  3.  That  said  plain- 
tiff's intestate,  not  being  recognized  by  the  law  as  a  person  ca- 
pable of  having  a  standing  in  court,  cannot  be  represented  by  the 
plaintiff  in  this  case;  4.  That  said  plaintiff,  who  sues  in  his 
representative  capacity  as  next  of  kin  of  Patrick  Gorman,  Junior, 
seeks  to  recover  for  money  expended  in  his  individual  capacity. 

*^^  Inasmuch,  as  to  enable  the  plaintiff  to  recover,  the  act, 
neglect  or  default  must  have  been  such  as  would,  if  death  had 
not  ensued,  have  entitled  the  party  injured  to  maintain  an  ac- 
tion and  recover  damages  in  respect  thereof,  the  question  at  once 
presenting  itself  is.  Can  one  maintain  an  action  for  injuries  re- 
ceived by  him  while  in  his  mother's  womb? 

The  plaintiff  has  prepared  an  ingenious  brief,  and  lays  great 
stress  upon  the  acts  an  unborn  child  can  do,  citing  many  authori- 
ties, and  seeking  by  analogy  to  reach  the  conclusion  to  which  he 
would  have  the  court  arrive.    Unquestionably^  an  unborn  child 


632  American  State  Reports,  Vol.  91.  [B.  !• 

has  many  rights  and  privileges,  but  it  matters  not  what  rights 
and  privileges  it  has  if  it  had  not  the  right,  had  it  lived,  to 
maintain  an  action  for  the  injury  alleged  to  have  been  suffered 
in  this  case. 

In  Walker  v.  Great  Northern  Ry.  Co.,  L.  R.  28  Ir.  69,  de- 
cided in  1891,  the  plaintiff,  an  infant  of  a  few  months  of  age, 
brought  an  action  for  personal  injuries  against  the  defendant 
for  injuries  sustained  by  her  while  en  ventre  sa  mere,  whereby 
she  was  permanently  crippled  and  deformed.    The  child's  mother 
was  a  passenger  on  the  defendant's  railroad  and  suffered  injuries 
during  her  pregnancy,  and  brought  action  and  recovered  dam- 
ages for  her  own  injury.    The  infant  plaintiff  also  brought  suit, 
which  is  the  one  referred  to.    The  case  was  learnedly  argued 
and  considered,  and  the  judges  delivered  their  opinions  seriatim,, 
and  were  unanimous  that  the  action  could  not  be  maintained. 
The  question,  however,  whether  such  an  action  could  be  main- 
tained under  any  circumstances  by  an  infant  who  was  in  its 
mother's  womb  at  the  time  of  the  alleged  injury  was  discussed 
elaborately  and  with  great  learning  both  by  court  and  counsel. 
O'Brien,  C.  J.,  after  discussing  the  question,  expressly  declined 
to  commit  himself,  leaving  it,  as  far  as  he  was  concerned,  '*an 
open  question."    The  other  judges  treated  the  matter  in  a 
broader  and  more  comprehensive  manner.    Johnson,  J.,  dis- 
cussed the  matter  with  great  affluence  of  learning,  and  said,  on 
page  84,  inter  alia :  ''As  matter  of  fact,  when  the  act  of  negli- 
gence occurred  the  plaintiff  was  not  in  esse,  was  not  a  person, 
or  a  passenger,  or  a  human  being.    Her  age  and  her  ^^  exist- 
ence are  reckoned  from  her  birth,  and  no  precedent  has  been 
f oimd  for  this  action.    Lord  Coke  says :  'Although  filius  in  utero 
matris  est  pars  viscerum  matris,  yet  the  law  in  many  cases  hath 
consideration  of  him  in  respect  of  the  apparent  expectation 
of  his  birth' :  Earl  of  Bedford's  Case,  7  Rep.  8b.    This  imputed 
existence  in  esse  to  an  unborn  child  is  a  fiction  of  the  civil  law, 
which  regards  an  unborn  child  as  bom  for  some  (not  for  all) 
purposes  connected  with  the  acquisition  and  preservation  of  real 
or  personal  property Thus  it  would  appear  that  accord- 
ing to  this  fiction  an  unborn  child  may  in  the  civil  law  at  the 
same  moment  be  regarded  as  in  esse  and  not  in  esse;  for  its 
own  benefit  in  esse,  to  its  prejudice  not  in  esse,  and  unless  for 
the  benefit  of  itself  not  in  esse.    As  the  civil  law  prevailed  in 
the  ecclesiastical  and  admiralty  courts,  and  also  entered  largely 
into  the  jurisprudence  administered  in  the  court  of  chancery^ 


July,  1901.]  GoBMAN  i;.  BuDLONa.  633 

xnost  of  the  authority  by  which  an  unborn  child  is  for  its  own 
benefit  regarded  as  bom  is  to  be  found  in  the  decisions  of  those 
courts/'    After  referring  to  a  number  of  authorities^  he  pro- 
ceeds as  follows  (page  87) :  "These  authorities  appear  to  me  to 
show  that  the  doctrine  which  regards  an  unborn  child  as  born 
for  its  own  benefit  (which  is  the  utmost  limit  of  the  doctrine), 
is  a  fiction  adopted  from  the  civil  law  by  the  courts  of  equity, 
for  some,  but  not  for  all,  purposes,  and  far  more  seldom  recog- 
nized in  the  courts  of  law.    The  present  is,  and  always  was,  a 
common-law  action  for  personal  injuries  caused  by  the  negli- 
gence or  breach  of  duty  of  the  defendants,  and  it  lies  on  the 
plaintiff  to  show  what  was  this  duty  of  the  defendants  toward 
the  plaintiff,  and  how  it  arose.    Negligence  and  duty  are  respec- 
tively relative,  not  absolute,  terms.    It  is  not  contended  that  the 
duty  arose  out  of  contract;  the  contract  was  between  the  de- 
fendants and  Mrs.  Walker,  and  so  far  as  contract  is  concerned, 
it  was  to  Mrs.  Walker  the  defendants  were  liable  for  breach  of 
it.     If  it  did  not  spring  out  of  contract,  it  must,  I  apprehend, 
have  arisen  (if  at  all)  from  the  relative  situation  and  circum- 
stances of  the  defendants  and  plaintiff  at  the  time  of  the  occur- 
rence of  the  act  of  negligence.    But  at  that  time  the  ^''^  plain- 
tiff had  no  actual  existence,  was  not  a  human  being,  and  was 
not  a  passenger — ^in  fact,  as  Lord  Coke  says,  the  plaintiff  was 
then  pars  viscerum  matris,  and  we  have  not  been  referred  to  any 
authority  or  principle  to  show  that  a  legal  duty  has  ever  been 
held  to  arise  toward  that  which  is  not  in  esse  in  fact,  and  has 
only  a  fictitious  existence  in  law,  so  as  to  render  a  negligent  act 
a  breach  of  that  duty.''    As  to  analogies  drawn  from  the  crimi- 
nal law,  the  learned  judge  says  (page  88) :  '^Then  it  is  con- 
tended that  this  action  lies  in  analogy  to  the  criminal  law,  that 
if  a  child  bom  alive  afterward  dies  of  injuries  received  while  in 
utero,  this  is  murder  in  the  person  who  inflicted  them  (1  Eussell 
on  Crimes,  5th  ed.,  c.  2,  p.  646,  note  e)  ;  but  I  think  that  there  is 
no  true  analogy  between  crime  and  tort  in  this  case.    Crimes  are 
offenses  against  the  public;  they  are  those  acts  or  attempts  which 
tend  to  the  prejudice  of  the  whole  community,  and,  as  a  general 
rule,  the  criminal  intent  and  the  act  charged  to  be  criminal  must 
concur  to  constitute  a  crime.    Tort,  on  the  other  hand,  is  a  pri- 
vate wrong  sustained  by  some  person  or  body  of  persons.    The 
sanction  of  the  one  is  punishment;  the  resiQt  of  the  other  is 
compensation.  ....  In  early  times,  the  criminal  law  as  to  the 
infant  in  utero,  just  bom  alive,  was  far  more  stringent  and 


634  American  Statb  Bbports^  Vol.  91.  [IL  I. 

severe^  as  stated  by  Bracton,  than  it  is  at  present  •  •  •  •  This 
may  be  accounted  for  on  principles  of  public  policy,  by  the  stem 
severity  of  the  criminal  law  in  the  supreme  exigencies  of  public 
safety^  where  the  offense  is  prosecuted  by  the  crown  on  behalf 
of  the  entire  community,  for  the  security  of  society,  the  preser- 
vation of  infant  life,  and  the  queen's  peace,  in  order  that  (as 
Lord  Coke  says,  3  Inst.  50)  ^so  horrible  a  crime  should  not  go 
unpimished/  *' 

In  Dietrich  v.  Inhabitants  of  Northampton,  138  Mass.  14,  52 
Am.  Rep.  242,  decided  in  1884,  the  mother  of  the  deceased 
slipped  upon  a  defect  in  a  highway  of  the  defendant  town,  fell, 
and  had  had  a  verdict  for  her  damages.    At  the  time,  she  was 
between  four  and  five  months  advanced  in  pregnancy,  the  fall 
brought  on  a  miscarriage,  and  the  child,  although  not  directly 
injured,  unless  by  a  communication  of  the  shock  to  the  mother, 
was  too  little  advanced  in  foetal  life  to  survive  its  premature 
birth.    There  ^"^^  was  testimony,  however,  based  upon  observ- 
ing motion  in  its  limbs,  that  it  did  live  for  ten  or  fifteen  minutes. 
Administration  was  taken  out,  and  the  administrator  brought 
action  upon  the  Public  Statutes  of  Massachusetts,  chapter  52, 
section  17,  for  the  further  benefit' of  the  mother  in  part  or  in 
whole,  as  next  of  kin.    The  court,  ppeaking  through  Holmes,  J., 
in  delivering  the  opinion,  says:  ^^The  court  below  ruled  that  the 
action  could  not  be  maintained ;  and  we  are  of  the  opinion  that 
the  ruling  was  correct  •  •  •  •  Some  ancient  books  seem  to  have 
allowed  the  mother  an.  appeal  for  the  loss  of  her  child  by  a  tree- 
pass  upon  her  person.  •  .  .  .  But  no  case,  so  far  as  we  know, 
has  ever  decided  that,  if  the  infant  survived,  it  could  niAiTii:a^n 
an  action  for  injuries  received  by  it  while  in  its  mother's  womb. 
Yet  that  is  the  test  of  the  principle  relied  on  by  the  plaintiff, 
who  can  hardly  avoid  contending  that  a  pretty  large  field  of 
litigation  has  been  left  unexplored  until  the  present  moment/' 
After  considering  various  cases  and  arguments,  the  learned  judge 
concludes  as  follows:  ^'Taking  all  the  foregoing  considerations 
into  account,  and  further,  that  as  the  unborn  child  was  a  part 
of  the  mother  at  the  time  of  the  injury,  any  damage  to  it  which 
was  not  too  remote  to  be  recovered  for  at  all  was  recoverable 
by  her,  we  think  it  clear  that  the  statute  sued  upon  does  not  em* 
brace  the  plaintiS^s  intestate  within  its  meaning,  and  have  not 
found  it  necessary  to  consider  the  question  of  remoteness  or  the 
effect  of  those  cases  whidi  declare  that  the  statute  liability  of 
towns  for  defects  in  highways  is  more  narrowly  restricted  than 
the  common-law  liability  for  negligence.'' 


July,  1901.]  Gk>BMAN  V.  [.Budlong.  636 

In  Allaire  v,  St.  Luke's  Hospital,  184  111.  369,  75  Am.  St. 
Bep.  176,  56  N.  E.  638,  decided  in  1900,  the  plaintiff,  an  infant 
of  tender  age,  brought  suit  by  his  next  friend  against  the  de- 
fendant for  injuries  sustained  while  in  the  womb  of  his  moth^, 
alleged  to  have  been  caused  by  the  negligence  of  the  defendant 
in  an  elevator  accident  on  February  2, 1896,  whexeby  the  mother 
was  much  injured,  and  thereby  the  plaintiff  was  also  greatly 
injured,  so  that  when  said  plaintiff  was  bom  on  February  6, 
1896,  he  was  permanently  crippled  and  deformed.  The  mother 
settled  *''•  with  the  defendant  for  a  valuable  consideration,  and 
in  the  suit  brought  by  the  plaintiff,  the  defendant  filed  a  general 
demurrer  which  was  sustained  by  the  trial  court.  Upon  an  ap- 
peal to  the  appellate  court  of  the  first  district  the  judgment  of 
the  lower  court  was  affirmed  (reported  in  76  111.  App.  441),  and 
from  that  judgment  of  affirmance  appeal  was  taken  to  the  su- 
preme court  of  the  state.  The  opinion  of  the  appellate  court, 
which  was  adopted  by  the  supreme  court,  concluded  as  follows : 
"The  doctrine  of  the  civil  law  and  the  ecclesiastical  and  ad- 
miralty courts,  therefore,  that  an  unborn  child  may  be  regarded 
as  in  esse  for  some  purposes,  when  for  its  benefit,  is  a  mere  legal 
fiction,  which,  so  far  as  we  have  been  able  to  discover,  has  not 
been  indulged  in  by  the  courts  of  common  law  to  the  extent  of 
allowing  an  action  by  an  infant  for  injuries  occasioned  before 
its  birth.  If  the  action  can  be  maintained,  it  necessarily  fol- 
lows that  an  infant  may  maintain  an  action  against  its  own 
mother  for  injuries  occasioned  by  the  negligence  of  the  mother 
while  pregnant  with  it.  We  are  of  the  opinion  that  the  action 
will  not  lie.*' 

The  counsel  for  the  plaintiff  has  called  our  attention  to  Gfen- 
eral  Laws  of  Rhode  Island,  caption  203,  section  23,  which  pro- 
vides that  a  child  of  a  testator  bom  after  his  father's  death,  for 
whom  no  provision  was  made  by  his  father  by  will  or  otherwise, 
shall  take  the  same  share  of  his  father's  estate  that  ho  would 
have  been  entitled  to  if  his  father  had  died  intestate;  and  also 
to  chapter  210,  section  21,  by  which  it  is  provided  that  in  pro- 
ceedings in  the  probate  court,  the  interests  of  a  person  unborn 
may  be  represented  by  a  guardian  ad  litem  or  next  friend  to  be 
appointed  by  the  court.  These  statute  provisions,  however,  fur- 
nish no  analogies  for  guidance  in  the  case  at  bar,  in  our  opinion, 
for  a  statute  only  governs  the  cases  to  which  it  was  designed  to 
apply,  and  if  chapter  233,  section  14,  under  which  this  action 


636  American  State  Beports,  Vol.  91.  [E.  L 

was  brought,  was  intended  to  apply  to  injuries  to  unborn  in- 
fants, such  intention  should  have  been  expressed  in  its  provisions. 

The  statute  in  question  is  drawn  from  an  English  statute. 
Lord  Campbell's  act,  9  and  10  Victoria,  chapter  93,  eeetion  1, 
and  the  English  common  law  is  the  foundation  of  our  system 
of  jurisprudence,  ^'^'^  and  for  those  feeling  there  is  a  hardship 
in  the  principle  of  law  as  hereinbefore  laid  down,  as  an  oc- 
casional dissenting  judge  has  expressed  himself  as  feeling,  we 
borrow  these  words  of  Mr.  Associate  Justice  O'Brien,  in  Walker 
V.  Great  Northern  Ry.  Co.,  L.  E.  28  Ir.  69,  viz. :  ''We  have  to 
see  whether  the  right  claimed  exists  in  the  English  legal  system, 
or  flows  out  of  any  admitted  principles  in  that  system.  The  law 
is  in  some  respects  a  stream  that  gathers  accretions  with  time 
from  new  relations  and  conditions.  But  it  is  also  a  landmark 
that  forbids  advance  on  defined  rights  and  engagements;  and 
if  these  are  to  be  altered,  if  new  rights  and  engagements  are  to 
be  created,  that  is  the  province  of  l^islation  and  not  of  de- 
cision.'^ 

In  our  opinion,  one  cannot  maintain  an  action  for  injuries 
received  by  him  while  in  his  mother's  womb,  and  consequentlv 
his  next  of  kin  under  the  statute  after  his  death  cannot  main- 
tain an  action  therefor,  and  so  the  demurrer  must  be  sustained 
on  this  ground. 

As  sustaining  the  demurrer  on  this  ground  is  conclusive 
against  maintaining  the  action,  it  is  unnecessary  to  consider  what 
damages  could  have  been  obtained  were  the  suit  maintainable 

Demurrer  sustained  and  case  remitted  to  the  common  pleas 
division,  with  directions  to  enter  judgment  for  the  defendank 
for  costs. 


An  Unborn  Child  is  not  a  *' person''  within  tbe  meaning  of  a 
statute  giving  a  cause  of  action  for  neg^ligent  death  to  the  ad- 
ministrator: Dietrich  y.  Northampton,  138  Mass.  14,  52  Am.  Bei<. 
242.  Nor  may  a  child  maintain  an  action  for  injuries  received  bo- 
fore  its  birth:  Allaire  v.  St.  Luke's  Hospital,  184  HI.  859,  75  Ad. 
St.  Rep.  176,  56  N.  B.  638. 


Dec.  '01.]   McCaff&ey  v.  Mosbbebg  &  Granvillb  Mfq.  Co.  637 


McCaffrey  v.  mossberg  &  granville  manufac- 
turing COMPANY. 

[23  B.  I.  381,  50  AtL  651.] 

KEOLiaEKOE  In  Manafactnring  or  Selling  an  Article— Third 
Person,  When  may  not  Becover  for.— Where  a  cause  of  injury  is 
not  in  its  nature  imminentlj  dangerous,  where  it  does  not  depend  on 
fraud,  concealment,  or  implied  invitation,  and  where  the  plaintiit 
18  not  in  privity  of  contract  with  the  defendant,  an  action  for  negli- 
gence cannot  be  maintained,     (p.  642.) 

MAKUTAOTUBEB  OF  MACHINIS— When  not  Answerable  to 
a  Tliird  Person  for  Defects  in.— Negligence  in  the  manufacture  of  a 
niAchine  whereby  an  employg  of  the  purchaser  is  injured  will  not 
sustain  a  recovery  in  favor  of  the  latter  against  the  manufacturer 
'When  tho  machine  is  not  of  an  imminently  dangerous  character,  as 
where  it  is  a  machine  for  use  by  a  manufacturing  jeweler,  and, 
through  a  defect  in  the  materials  from  which  it  was  made,  a  hook 
broke  and  caused  a  weight  to  fall  upon  and  injure  an  employ 6.  (p. 
642.) 

Action  of  trespass  on  the  case  in  which  a  demurrer  to  the 
plaintiff's  compliant  was  interposed. 

Page,  Page  &  dishing,  for  the  plaintiff. 

Comfitock  &  Gardner,  for  the  defendant. 


STINES8,  C.  J.  This  is  an  action  of  trespass  on  the 
case  for  negligence.  The  declaration  alleges,  in  flubetance,  that 
the  plaintiff  was  in  the  employ  of  George  W.  Dover,  a  mann- 
factnring  jeweler,  and  while  engaged  in  operating  a  drop  press, 
in  which  was  a  heavy  weight  held  by  a  hook,  the  hook  broke  and 
the  weight  fell  upon  his  hand  and  injured  it;  that  the  machine 
was  manufactured  by  the  defendant  and  sold  to  Dover;  that  it 
was  the  duty  of  the  defendant  to  use  due  care  in  the  manufac- 
ture thereof,  but  that  the  machine  was  negligently  built  and  de- 
fective, in  this — ^that  the  hook  was  made  of  iron  or  steel  of  poor 
quality,  of  insufficient  size;  that  the  hook  had  been  improperly 
welded,  with  cracks  or  crevices  through  the  hook;  that  the  de- 
fendant knew,  or  had  reason  to  know,  and,  but  for  want  of  rea- 
sonable care,  would  have  known,  that  the  machine,  when  it  was 
sold,  was  a  dangerous  appliance,  liable  to  endanger  the  life  and 
Umb  of  an  operator  using  due  care  by  the  breaking  of  said  hook 
and  the  falling  of  the  weight. 

The  defendant  demurs  to  the  declaration.  The  case  raises 
the  question  whether  the  maker  of  a  machine  which  he  sells  to 
another  is  liable  to  a  third  person  for  injuries  arising  from  neg- 


638  Ambrican  State  Beports^  Vol.  91.  [IL  I. 

ligence  in  its  construction.    This  question  has  frequently  been 
before  other  courts,  but  it  has  not  been  raised  before  in  this  state. 

Cases  which  involve  the  liability  of  a  defendant  to  those 
with  whom  he  does  not  stand  in  privity  of  contract  may  be 
grouped  into  three  classes:  1.  Where  the  thing  causing  the 
injury  is  of  a  noxious  or  dangerous  kind ;  2.  Where  the  defend- 
ant has  been  guilty  of  fraud  or  deceit  in  passing  oflE  the  thing ; 
3.  Where  the  defendant  has  been  negligent  in  **®  some  respect 
with  reference  to  the  sale  or  construction  of  a  thing  not  im- 
minently dangerous. 

The  principle  that  governs  the  first  class  of  cases  is  that  one 
who  deals  with  an  imminently  dangerous  article  owes  a  public 
duty  to  all  to  whom  it  may  come,  and  whose  lives  may  be  en- 
dangered thereby,  to  exercise  caution  adequate  to  the  peril  in- 
volved. This  principle  has  been  applied  in  many  cases  of  the 
sale  of  poisonous  drugs  under  a  false  label. 

Such  was  the  leading  case  in  this    country   of    Thomas    ▼. 
Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455,  in  which,  as  one 
ground  of  inference  of  public  duty,  the  court  said :  '^Every  man 
who,  by  his  culpable  negligence,  causes  the  death  of  another, 
although  without  intent  to  kill,  is  guilty  of  manslaughter/' 
Hence  it  argued  that  the  duty  of  exercising  caution  did  not 
arise  out  of  the  contract  of  sale,  so  as  to  be  confined  to  the  im- 
mediate vendee;  but  that  the  wrong  done  was  the  putting  out 
of  the  poison,  as  an  article  of   merchandise,  to   be  sold  and 
afterward  used,  under  another  name;,  by  some  person  then  un- 
known.   The  same  opinion  has  been  expressed  in  Wellington 
T.  Downer,  104  Mass.  64,  in  which  dangerous  naphtha  was 
sold ;  in  Norton  v.  Sewall,  106  Mass.  143,  8  Am.  Eep.  398,  in 
whidi  laudanum  was  sold  for  rhubarb;  in  Davis  ▼.  Guamieri, 
45  Ohio  St.  470,  4  Am.  St.  Rep.  548,  15  N.  E.  350,  Elkins  v. 
McKean,  79  Pa.  St.  493,  and  in  George  ▼.  Skivington,  h.  R. 
6  Ex.  1,  relating  to  inherently  dangerous  articles;  and  Dev- 
lin V.  Smith,  89  N".  Y.  470,  42  Am.  Rep.  311,  where  the  defect 
in  a  scaffold  was  held  to  be  imminently  dangerous.    The  prin- 
ciple of  these  cases  may  be  supported  on  two  grounds:  That 
of  an  illegal  act,  when,  as  in  most  states,  there  are  statutory 
provisions  which  impose  a  public  duty  upon  those  who  deal  with 
poisons  and  dangerous  substances,  like  gunpowder,  naphtha, 
etc.;  and  that  of  the  duty  which  the  law  imposes  upon  every 
one  to  avoid  acts  which,  in  their  nature,  are  dangerous  to  the 
lives  of  others.     Of  this  class  familiar  examples  are  those  who 
allow  vicious  animals  to  run  at  large,  and  who  throw  deadly 


I>ec. '01.]   HcCaffrst  V.  MossBBRQ  &  Gbanvillb  Mfg.  Co.  639 

missfles  into  a  gathering  of  people.  The  putting  forth  of  a 
dangerous  article  or  substance,  which  is  quite  as  sure  to  injure 
somebody,  is  not  essentially  different. 

A  similar  principle  governs  the  second  class  of  cases,  in  •** 
which  the  degree  of  danger  in  the  thing  itself  may  be  less,  but 
'wliere  the  seller  actually  knows  of  the  danger  in  the  article 
and  puts  it  forth  by  some  fraud  or  deceit.     In  such  cases  the 
breach  of  duty  grows  out  of  the  fraud  or  deceit  in  the  sale, 
and  it  extends  to  persons  injured  thereby,  who  may  reasonably 
be    deemed  to  be  within  the  contemplation  of  the  parties  to 
the  transaction.     Thus,  in  Levy  v.  Landridge,  4  Mees.  &  W. 
336,  the  allegations  were  that  a  father  bought  a  gun  of  the 
defendant,  for  the  use  of  himself  and  sons,  upon  the  special 
warranty  that  it  was  made  by  a  certain  manufacturer,  and  that 
it   was  a  good,  safe,  and  secure  gun,  whereas  it  was  unsafe, 
ill-made,  and  dangerous;  that  the  defendant  was  guilty  of 
willful  deceit,  negligence,  and  improper  conduct  in  the  sale, 
and  that  the  gun  burst  in  the  hands  of  a  son.     The  judgment 
was  that,  as  there  was  fraud  and  damage,  the  result  of  that 
fraud  not  from  an  act  remote  and  consequential,  but  one  con- 
templated by  the  defendant  at  the  time  as  one  of  its  results, 
the  party  guilty  of  the  fraud  was  responsible  to  the  party  in- 
jured. 

In  Lewis  v.  Terry,  111  Cal.  39,  52  Am.  St.  Rep.  146,  43 
Pac.  398,  the  defendant  sold  a  folding-bed  to  the  plaintiff's 
landlord,  knowing  it  to  be  dangerous,  because  of  concetaled 
defects,  and  he  was  held  to  be  liable  to  the  plaintiff,  who  had 
hired  the  furnished  room,  for  an  injury  caused  by  such  defect. 
The  court  said:  "The  fact  insisted  upon  by  respondent  that 
a  bed  is  not  ordinarily  a  dangerous  instrumentality,  is  of  no 
moment  in  this  case;  if  mere  nonfeasance  or  perhaps  mis- 
feasance was  the  extent  of  the  wrong  charged  against  defend- 
ants, that  consideration  would  be  important  (Thomas  v.  Win- 
chester, 6  N.  Y.  397,  67  Am.  Dec.  455) ;  but  the  fact  that 
gnch  articles  are,  in  general,  not  dangerous,  would  seem  to 
enhance  the  wrong  of  representing  one  to  be  safe  for  use  when 
known  to  be  really  unsafe,  for  the  danger  is  thus  rendered 
more  insidious.'^ 

In  Davies  v.  Pelham  etc.  Elevating  Co.,  66  Hun,  673,  20 
N.  T.  Supp.  623,  76  Hun,  289,  27  N.  Y.  Supp.  709,  re- 
marks were  made  to  the  effect  that  the  action  could  be  main- 
tained against  the  builder  of  a  derrick  for  a  painter  by  the 
administratrix  of  an  employ^  killed  by  a  defect  therein  upon 


64:0  Ambbican  State  Bepobts^  Vol.  91.  [B.  L 

the  ground  of  simple  ^*®*  negligence;  but  the  case  turned  upon 
the  fact  that  the  defectiYe  rope  had  been  selected  by  the  de- 
ceased himself,  and  not  upon  the  question  about  which  the  court 
expressed  its  opinion. 

Bright  T.  Bamett  Becord  Co.,  88  Wis.  299,  60  K  W.  418, 
a  case  for  the  death  of  an  employ^  caused  by  a  defective  stag- 
ing built  by  the  defendant  for  the  employer,  was  sustained 
upon  the  ground  of  an  implied  invitation:  See,  also.  Heaven 
V.  Pender,  L.  R.  11  Q.  B.  D.  603;  Necker  v.  Harvey,  49 
Mich.  517, 14  N.  W.  503. 

The  case  of  Schubert  v.  Clark,  49  Minn.  331,  32  Am.  St 
Bep.  659,  51  K  W.  1103,  chiefly  relied  on  by  the  plaintiff,  really 
belongs  to  this  class  of  cases  in  which  an  element  of  fraud 
appears.    The  defendant  corporation  made  and  sold  ladders. 
The  allegations  were  that  the  plaintift  was  injured  by  tiie 
breaking  of  a  ladder  sold  by  the  defendant  to  the  plaintiffs 
employer;  that  it  was  made  of  poor,  cross-grained,  and  decayed 
lumber,  and  that  this  defect  had  been  so  concealed  by  oil,  paint, 
and  varnish  that  a  person  could  not  discover  that  it  was  made 
of  defective  materiaL    If  this  was  so,  the  defendant's  servanb^ 
must  have  known  of  the  defect,  because  it  was  patent  and 
they  concealed  it.    A  corporation  can  act  only  tiirough  its 
agents  and  servants.    Hence  their  knowledge  is  imputed  to 
the  corporation.    It  was  clearly  a  deceit  so  to  cover  up  the 
defect  in  the  ladder.    One  part  of  the  opinion  treats  it  as  a 
deceit,  although  the  opinion  goes  to  the  extent  of  saying  that 
the  defendant  was  responsible  for  negligence. 

Bishop  V.  Weber,  139  Mass.  411,  52  Am.  Bep.  716,  1  N.  E. 
154,  is  also  relied  on  by  the  plaintiff.  In  that  case  a  caterer 
who  furnished  food  at  a  ball  was  sued  for  providing  unwhole- 
some food.  But  in  that  case  the  declaration  averred  that  the 
defendant  agreed  to  furnish  good  and  wholesome  food  to  all 
who  might  wish  it,  and  to  be  paid  therefor  the  sum  of  one 
dollar  and  twenty-five  cents  by  each  and  every  person  who  par- 
took thereof;  and  that  the  plaintiff  had  such  ticket,  etc.,  so 
paid  for.  The  declaration  did  not  aver  knowledge  or  fraud 
on  the  part  of  the  defendant.  The  court  said  that  it  would 
be  hard  to  establish  an  implied  contract  with  each  individual; 
but  we  are  unable  to  see  why  this  should  be  so.  It  seems  to  be 
a  most  natural  conclusion  under  ^^^  the  circumstances,  or, 
at  least,  that,  as  in  the  case  of  a  staging  for  workmen,  there 
was  an  implied  invitation  by  the  defendant  to  partake  of  the 
food,  such  as  to  raise  an  implication  of  duty.    The  ground 


Dec.  '01.]    McCaffrey  t*.  Mossberg  &  Granville  Mp'g.  Co.  641 

upon  which  fhe  court  finstained  the  declaration  was  this :  '^The 
furnishing  of  provisions  which  endanger  human  life  or  health 
stands  dearly  npon  the  same  ground  as  the  administering  of 
improper  medicines^  from  which  a  liability  springs  irrespective 
of  any  question  of  privity  of  contract  between  the  parties.*' 
The  court  cites  as  authorities,  Norton  v.  Sewall^  106  Mass.  143, 
8  Am.  Eep.  298,  which  related  to  a  deadly  poison;  Longmeid 
V.  Holliday,  6  Ex.  761,  where  an  unsafe  lamp  had  been  sold 
to  the  husband  of  the  injured  plaintiff,  but  the  court  gave  a 
nonsuit  because  neither  Imowledge  nor  fraud  was  shown,  and 
the  lamp  was  not  in  its  nature  dangerous ;  Pippin  v.  Sheppard, 
11  Price,  400,  which  was  a  case  of  unskillful  treatment  by  a 
surgeon.  We  fail  to  see  how  the  declaration  could  have  been 
sustained  on  the  authoritv  of  either  of  these  cases. 

The  third  class  of  cases  relating  to  the  sale  of  a  thing  not 
in  its  nature  dangerous  rests  on  the  principle  that  as  to  such 
things  there  is  no  general  or  public  duty,  but  only  a  duty 
whicK  arises  from  contract,  out  of  which  no  duty  arises  to 
strangers  to  the  contract. 

The  leading  case  of  this  class  is  Winterbottom  v.  Wright, 
10  Mees.  &  W.  107.  The  plaintiff  was  a  mail  coachman,  who 
was  injured  by  a  latent  defect  in  a  mail-coach  which  the  de- 
fendant, under  a  contract  with  the  postmaster  general,  was  to 
keep  in  good  repair.  It  was  held  that  the  plaintiff  could  not 
recover.  The  grounds  of  the  decision  were  that  the  case  was 
not  like  Levy  v.  Landridge,  4  Mees.  &  W.  336,  '^for  there  the 
gun  was  bought  for  i^e  use  of  the  son,  the  plaintiff  in  that  ac- 
tion^ who  could  not  make  the  bargain  himself,  but  was  really 
and  substantially  the  party  contracting.  Here  the  action  is 
brought  simply  because  the  defendant  was  a  contractor  with 
a  third  person;  and  it  is  contended  that  thereupon  he  became 
liable  to  everybody  who  might  use  the  carriage.'*  Also,  that 
the  case  was  not  like  those  which  amounted  to  a  public  nui- 
sance, and  hence  raised  a  public  duty;  that,  consequently,  **''' 
there  being  neither  privity  of  contract  nor  public  duty,  the 
action  could  not  be  maintained. 

The  case  was  followed  in  Collis  v.  Selden,  L.  R.  3  C.  P. 
495,  where  the  defendant  negligently  and  improperly  hung  a 
chandelier  in  a  public  house,  which  fell  upon  the  plaintiff.  The 
opinions  in  the  case  stated  that,  there  being  no  public  nui- 
sance, no  privity  of  contract,  no  fraud  or  concealment,  no  in- 
iritation,  and  no  actual  knowledge,  the  action  would  not  lie. 

Am..  St  R«p.»  Vol.   »1-41 


642  American  State  Reports,  Vol.  91.  [J3L  I. 


In  both  cases  it  was  said  that  there  would  be  no  end  of 
if  the  action  could  be  sustained. 

It  is  needless  to  examine  critically  the  numerous  cases  on 
this  question,  because  they  rest  upon  the  application  of  the 
principles  stated  above.  See  Curtin  v.  Somerset,  140  Pa- 
st 70,  23  Am.  St.  Rep.  220,  21  Atl.  244,  where  a  hotel  was 
improperly  constructed;  Loop  v.  Litchfield,  42  N.  Y.  351,  1 
Am.  Eep.  643,  which  involved  the  bursting  of  a  balance-wheel ; 
Losee  ▼.  Clute,  61  N.  T.  494,  10  Am.  Eep.  638,  the  explosion 
of  a  steam  boiler;  Heizer  v.  Kingsland  Mfg.  Co.,  110  Mo.  605, 
33  Am.  St  Bep.  482,  19  S.  W.  630,  the  explosion  of  a  cylinder 
of  a  steam  threshing-machine;  Bragdon  v.  Perkins  etc.  Co^ 
87  Fed.  109,  an  unsafe  side-saddle;  Caledonian  etc.  By.  Go.  t» 
MulhoUand,  L.  B.  App.  Cas.  (1898)  216;  Savings  Bank  T. 
Ward,  100  U.  S.  195,  an  attorney's  certificate  of  title.  In  all 
of  these  cases  the  right  of  the  plaintiff  to  recover  was  denied. 

We  think  that  the  result  of  the  cases  on  this  subject  clearly 
establishes  the  weight  of  authority  in  favor  of  the  rule  that 
where  the  cause  of  the  injury  is  not  in  its  nature  imminently 
dangerous,  where  it  does  not  depend  upon  fraud,  concealment, 
or  implied  invitation ,  and  where  the  plaintiff  is  not  in  privity 
of  contract  with  the  defendant,  an  action  for  n^ligence  can- 
not be  maintained. 

The  reason  for  the  rule  is  well  stated  in  Thomas  v.  Win- 
chester, 6  N.  Y.  397,  57  Am.  Dec.  455,  as  follows:  'If  A  build 
a  wagon  and  sell  it  to  B,  who  sells  it  to  C,  and  C  hires  it  to  D, 
who,  in  consequence  of  the  gross  negligence  of  A  in  building  the 
wagon,  is  overturned  and  injured,  D  cannot  recover  damages 
against  A  as  the  builder.  A's  obligation  to  build  the  wagon 
faithfully  arises  solely  out  of  his  contract  with  B.  The  public 
have  no&ing  to  do  with  it.  Misfortune  to  third  perscHis  not 
parties  ^^^  to  the  contract  would  not  be  a  natural  and  neces- 
sary consequence  of  the  builder^s  n^ligence;  and  sudi  negii* 
gence  is  not  an  act  imminently  dangerous  to  humim  life.** 

The  declaration  in  this  case  simply  charges  negUgence,  wiifa-^ 
out  any  of  the  other  necessary  elements,  and  h^ioe  the  de- 
murrer to  the  declaration  must  be  sustained. 


Datnages.—ln  Boston  Woven  Hose  etc.  Co.  v.  Kendall,  178 
232,  86  Am.  St.  Kep.  478,  59  N.  E.  657,  it  is  held  that  if  a  first-«l 
boilermaker  makes  a  boiler  for  a  manufacturer  to  be  need  for  certain 
purpoees,  and  delivers  it  with  a  patent  defect,  he  is  liable  to  the 
manufacturer  for  damages  paid  by  the  latter  to  his  employes  for 
injuries  resulUng  from  the  defect,  although  the  manufacturer 


Jan.  1902.]    O'Roubkb  v.  Hancock  Mut.  Life  Ins.  Co.      643 

negligent  in  nsing  the  machine  witbont  inspection.  And  in  Schubert 
▼.  J.  R.  Clark  Co.,  49  Minn.  331,  32  Am.  St.  Bep.  559,  51  N.  W.  1103, 
it  is  held  that  if  a  painter  using  a  stepladder  is  injured  hy  its 
breaking  because  made  of  defective  timber,  he  may  recover  damages 
of  the  manufacturer,  when  he  knew,  or  should  have  known,  its  condi- 
tion. 


(yEOUEKE  T.  HANCOCK  MUTUAL  LIFE  INS.  CO. 

[23  B.  I.  457,  50  AtL  834.] 

IKStTBANOE,  UFE— Agent  Procuring  Insurance  Who  Deemed 
to  be  the  Agent  of.— An  agent,  in  simply  procuring  insurance, 
i.<i  deemed  to  be  the  agent  of  the  applicant,  and  not  of  the  insurer, 
and  the  applicant  is  answerable  for  bis  mistakes  and  false  answers. 
Testimony  of  what  was  said  to  and  by  the  solicitor  is,  therefore,  im- 
materiaL     (pi  645.) 

IN9XJBANCE,  LIFE— Warranty— Burden  of  Proof.— Answers 
in  an  application  for  life  insurance  respecting  the  previous  illness 
cf  the  insured  and  his  consulting  physicians,  and  the  like,  are  war- 
ranties which  must  be  proved  by  the  plaintiff,  but  which,  for  con- 
venience of  trial,  may  stand  on  presumption  of  prima  facie  evidence 
until  contradicted,     (p.  645.) 

INSUBAKOE,  LIFE— Answers  of  Applicant  Known  by  the 
Insurer  to  be  False. — Where  an  insurance  corporation  is  in  actual 
possession  of  knowledge  of  a  fact,  and  by  turning  to  its  own  records 
can  assure  itself  better  than  by  the  imperfect  memory  of  the  ap- 
plicant, it  is  a  perversion  of  the  purpose  of  warranty  to  allow  it  to 
avoid  its  contract     (pp.  645,  646.) 

INSUBANOE,  UFE— Insurer,  Whether  Bound  to  Have  Present 
Knowledge  of  Its  Files.— Where  the  answers  of  an  applicant  for  life 
insurance  stated  that  the  insuring  corporation  had  never  refused  an 
insurance  on  his  lifey  a  recovery  cannot  be  defeated  on  the  ground 
that  such  answer  was  false,  if  the  corporation,  by  an  examination  of 
its  files,  must  have  seen  that  a  previous  application  on  behalf  of 
the  same  person  had  been  by  it  rejected,     (p.  646.) 

INSUBANOE,  UFE.— An  Infant  is  Not  Bound  by  His  War- 
ranties in  a  Contract  of  Insurance.  Hence  a  policy  insuring  his  life 
cannot  be  defeated,  where  he  has  died  before  his  majority,  by  prov- 
ing that  the  answers  made  to  questions  propounded  in  the  applica- 
tion were  false,     (p.  648.) 

INFANTS— The  Plea  of  Infancy  is  not  always  a  Privilege 
Personal  to  an  Infant. — Its  chief  application  is  for  his  protection  in 
cases  where  the  adult  seeks  to  avoid  his  contract  on  that  ground 
when  it  has  not  been  disaffirmed  by  the  infant.  It  cannot  be  relied 
upon  for  the  purpose  of  showing  that  an  infant  is  bound  by  a  war- 
ranty in  a  contract  of  insurance,  he  having  died  before  disaffirming 
it.     (pp.  648,  649.) 

INSX7BANCE,  UFE— Estoppel  Against  Beneficiary.— Where  a 
policy  issues  insuring  the  life  of  a  minor,  containing  warranties 
which  are  not  binding  on  him  because  of  his  infancy,  the  beneficiary 


644  American  State  Ebports,  Vol.  91.  [B.  L 

is  not,  upon  the  minor's  death,  estopped  from  recovering  on  the 
policy,  if  she  did  not  procure  the  insurance  with  knowledge  of  the 
false  statement,     (p.  649.) 

Assumpsit  on  a  policy  of  life  insurance.  Verdict  for  the 
plaintiff,  and  the  defendant  petitioned  for  a  new  triaL 

Irving  Champlin,  for  the  plaintiff. 

Doran  &  Flanagan,  for  the  defendant. 

*«»  STINESS,  C.  J.  This  is  an  action  on  a  policy  of  life 
insurance,  in  which  the  plaintiff  is  the  beneficiary,  upon  the 
life  of  her  son,  a  boy  fifteen  years  old  when  the  policy  w&s 
issued.  The  defense  is  that  the  application  contained  false 
answers  to  questions  which  are  made  warranties  by  the  terms 
of  the  policy.  To  the  question,  ''Has  this  company  ever  refused 
to  issue  a  policy  on  this  life?*'  the  answer  was  ''No." 

The  plaintiff  admits  in  her  testimony  that  she  knew  that 
^""^  the  boy  had  been  previously  rejected  by  this  company,  and 
says  that  she  and  her  husband  stated  the  fact  to  the  agent 
who  took  the  application  and  wrote  in  the  answers,  but  that 
she  did  not  know  what  he  wrote. 

A  question  and  answer  of  the  same  import  is  repeated  on 
the  back  of  the  application  in  the  statement  to  the  medical 
examiner. 

Another  question :  "When  did  you  last  consult  a  doctor,  and 
for  what?''  was  answered:  "Two  years  ago;  bronchitis,  not  pre- 
disposed.'^ 

Another  question,  asking  if  the  boy  had  ever  had  any  serious 
illness  from  either  one  of  fifteen  diseases  named,  including 
rheumatism,  was  answered  "No.*' 

A  previous  application  had  an  answer  that  the  boy  had  con- 
sulted a  doctor  for  rheumatism  in  January,  1893. 

The  case  was  tried  to  a  jury,  and  a  verdict  was  rendered  in 
favor  of  the  plaintiff  for  tiie  sum  of  two  hundred  and  forty- 
three  dollars  and  forty  cents,  the  amount  claimed;  and  &e 
defendant  petitions  for  a  new  trial  upon  the  grounds  that  the 
verdict  was  against  the  evidence  and  that  there  were  errors 
of  law  in  rulings  at  the  trial. 

The  first,  third,  fifth,  and  sixth  exceptions  were  to  the  ad- 
mission of  testimony  by  the  plaintiff  that  at  the  time  of  this 
application  the  defendant's  agent  was  told  that  the  applicant 
had  been  previously  rejected  by  this  company,  and  as  to  the 
powers  of  the  agent    Taken  by  themselves,  the  rulings  were 


Jan.  1902.J   O'Roubkb  v.  Hamcogk  Mut.  Life  Ins.  Co.      645 

erroneous.  In  Beed  ▼.  Equitable  Ins.  Co.,  17  R.  I.  785,  24 
Atl.  833,  this  court  adhered  to  the  rule,  recognized  in  this  state 
Bince  Wilson  ▼.  Conway  etc.  Ins.  Co.  (1866),  4  R.  I.  Ill,  that 
an  agent  in  simply  procuring  insurance  is  the  agent  of  the 
applicant,  and  not  of  the  company,  in  drawing  the  application, 
and  that  the  applicant  is  responsible  for  his  mistakes  and  false 
answers:  See,  also,  Bryan  v.  National  etc.  Assn.,  21  B.  I.  149, 
42  Atl.  613.  Testimony  of  what  was  stated  to  or  by  the  solici- 
tor was  therefore  immaterial.  The  effect  of  these  rulings  will 
be  considered  later. 

The  second  exception  related  only  to  the  form  of  a  ques- 
tion claimed  to  be  leading,  which  is  not  important. 

The  fourth  exception  was  to  the  refusal  of  the  trial  judge 
^^^  to  direct  a  verdict  for  the  defendant,  because  of  failure  to 
proTe  the  warranties  embraced  in  the  questions  and  answers 
stated  above. 

It  was  held  in  Sweeney  v.  Metropolitan  Ins.  Co.,  19  B.  I. 
171,  61  Am.  St.  Bep.  761,  36  Atl.  9,  that  such  answers  are 
warranties  which  must  be  proved  by  the  plaintiff,  but  which,  for 
convenience  of  trial,  may  stand  on  presumption  or  prima  facie 
evidence  until  contradicted,  like  the  signature  and  consideration 
of  a  promissory  note.  There  was,  however,  testimony  that  the 
answers  were  true  except  as  to  rheumatism  and  the  previous 
rejection,  which  will  be  considered  under  the  seventh  and  eighth 
exceptions. 

^e  seventh  exception  relates  to  an  alleged  statement  by 
the  solicitor  that  the  former  rejection  was  an  immaterial  mat- 
ter, which  statement,  if  made,  would  bind  the  company.  It 
does  not  appear  from  the  charge  that  the  judge  so  ruled;  but 
inasmuch  as  the  jury  were  allowed  to  consider  the  fact  whether 
the  agent  made  the  statement,  the  exception  is  applicable.  The 
solicitor,  in  making  the  application,  being,  as  we  have  said,  the 
agent  of  the  insured,  would  not  bind  the  company  by  his  state- 
ments. But  another  question  is  presented  which  renders  this 
question  of  fact,  of  what  the  agent  said,  quite  unimportant. 
The  previous  application  was  in  the  hands  of  the  company. 
The  rejection  of  it  was  by  the  defendant  itself.  The  purpose 
of  warranties  in  a  policy  is  not  to  set  a  trap  for  applicants,  but 
to  inform  the  company  about  important  facts  upon  which  the 
contract  is  based.  When,  therefore,  a  company  is  in  actual 
possession  of  knowledge  of  a  fact,  and  by  turning  to  its  own 
record  can  assure  itself  better  than  by  the  imperfect  memory 
of  an  applicant,  it  is  a  perversion  of  the  purpose  of  a  war- 


646  Amebic  AN  State  Sbpobts^  Vol.  91,  [B.  L 

ranty  to  allow  it  to  avoid  a  contract.  It  is  evident  injustice 
for  one  party  to  allow  another  to  enter  into  a  contract  which 
the  former  knows  or  is  bound  to  know  is  invalid.  As  stated 
in  Reed  v.  Equitable  Ins.  Co.,  17  E.  I.  785,  24  AtL  833,  it  is 
taking  advantage  of  one's  wrong :  See^  also,  Greene  v.  Equitable 
Ins.  Co.,  11  E.  I.  434. 

The  defendant  argues  that  it  is  unreasonable  to  hold  that 
a  company  is  bound  to  have  present  knowledge  of  all  that  ap- 
pears on  its  previous  files.  To  this  suggestion  at  the  trial  *®^ 
the  judge  asked  the  very  pertinent  question:  **Any  more  so 
than  it  was  to  ascertain  tiiat  fact  just  after  the  boy  died? 
They  have  taken  the  money.  Now,  just  as  soon  as  the  boy 
died  and  the  beneficiary  asks  to  be  paid,  then  their  records  are 
looked  up;  then  they  saved  the  record**'  The  company  had 
exactly  the  same  information  in  its  possession  at  the  time  the 
<;ontract  was  made  that  it  has  now.  If  it  is  available  at  one 
time  it  ought  to  be  imputable  at  the  other.  But  it  is  said 
that  the  company  cannot  be  supposed  to  know  that  it  is  the 
same  person,  even  though  the  name  may  be  the  same.  While 
this  might  be  so  in  some  cases,  we  do  not  see  that  there  would 
be  any  uncertainty  in  this  case,  because  the  applications  iden^ 
tify  the  same  applicant  by  date  of  birth,  age,  town,  occupation, 
and  parents'  names.  There  was  ample  opportunity  for  ex« 
amination,  as  the  application  was  dated  July  22,  1896,  the 
medical  examination  was  August  22, 1896,  it  is  stamped,  cbubt* 
less  by  the  company,  September  2,  1896,  and  the  policy  was  not 
issued  until  September  9,  1896. 

In  Jerrett  v.  John  Hancock  Ins.  Co.,  18  B.  I.  754,  30  AtL 
793,  there  had  been  a  previous  rejection,  but  the  policy  was 
held  to  be  void,  because  neither  application  stated  the  fact, 
called  for  by  a  question,  that  a  sister  of  the  assured  had  died 
of  consumption.  This  was  a  fact  that  the  company  could  not 
be  held  to  know,  and  hence  the  case  was  essentially  difl!erent 
from  the  case  at  bar. 

The  answer  about  rheumatism  stands  in  a  somewhat  different 
relation. 

The  first  application  was  dated  March  3,  1893,  and  it  stated 
that  the  boy  had  consulted  a  physician  for  about  four  attacks 
of  rheumatism  in  January.  The  company  had  no  possible 
knowledge  from  this  that  he  had  rheumatism,  and  may  have 
relied  upon  the  denial  of  it  in  the  present  application  as  show- 
ing that  his  trouble,  which  he  thought  to  be,  turned  out  not 
to  be,  rheumatism.    The  evidence  of  the  plaintiff  was  that  he 


Jan.  1902.]    O'Roubkb  v.  Hancock  Mut.  bto.  Ins.  Co.      647 

liad  rheumatisixL  This  might  have  been  after  the  first  appli- 
cation, and  80  outside  of  any  implied  notice.  Up  to  this  point 
*we  find  no  gronnd  for  a  new  trial,  because  the  statements  to 
the  solicitor  did  not  prejudice  the  defendant  by  ***  reason  of 
the  knowledge  of  the  facts  imputed  to  it  in  its  previous  re- 
jection of  the  applicant. 

The  answer  about  rheumatism  is  included  in  the  general 
ground  of  defense  raised  by  the  eighth  exception,  which  is  to 
the  refusal  of  the  court  to  charge  as  follows:  "If  the  boy  did 
sign  an  application  containing  a  material  imtrue  statement, 
the  beneficiary  is  boxmd  and  the  policy  is  void.^' 

The  defendant  had  notice  from  the  application  itself  that 
it  was  dealing  with  a  minor  and  taking  his  warranties.  The 
question,  therefore,  is  whether  an  infant  is  bound  by  his  war- 
ranties in  a  contract  of  insurance.  In  considering  it  we  have 
not  the  advantage  of  weighing  the  reasons  given  in  previous 
decisions,  for  we  have  been  unable  to  find  a  case  like  this  re- 
ported. Certain  principles,  however,  are  well  settled  in  regard 
to  infancy. 

It  is  an  elementary  rule  that  infants  are  incapable  of  mak- 
ing contracts,  except  for  necessaries.  Such  contracts  are  void- 
able, but  not  void.  The  infant  may  avoid  his  contract,  but 
an  adult  contracting  with  him  cannot.  A  contract  may  thus 
be  binding  on  an  adult  when  it  is  not  binding  on  an  infant: 
Dearden  t.  Adams,  19  R.  I.  217,  36  Atl.  3;  Shurtlefl  v.  Mil- 
lard, 12  B.  I.  272,  34  Am.  Rep.  640. 

As  an  infant  is  not  liable  on  his  contract,  he  is  not  liable 
for  warranties  or  representations  upon  which  the  contract  is 
based.  Thus,  in  West  v.  Moore,  14  Vt.  447,  39  Am.  Dec.  235, 
it  was  held  that  infancy  was  a  bar  to  an  action  founded  upon  a 
false  and  fraudulent  warranty  upon  the  sale  of  a  horse :  Pres- 
cott  V.  Norris,  32  N.  H.  101.  In  New  Hampshire  Ins.  Co.  v. 
Noyes,  32  N.  H.  345,  the  contract  was  for  fire  insurance  on  the 
property  of  an  infant.  It  was  held  that  it  was  not  a  contract 
for  necessaries,  and  that  the  infant  was  not  liable  on  his 
premium  note.  In  Doran  v.  Smith,  49  Yt.  353,  it  was  held 
that  infancy  was  a  bar  to  an  action  on  the  case  for  false  and 
fraudulent  representations  by  a  vendor  or  pledgor  as  to  his 
ownership  of  property  sold  or  pledged.  In  Gilson  v.  Spear,  38 
Yt.  311,  88  Am.  Dec  659,  the  court  said  that  an  infant  is 
liable  in  an  action  ex  delicto  for  an  actual  and  willful  fraud 
only  in  cases  in  which  the  form  of  action  does  not  suppose 
that  a  contract  has  existed;  ^^^  but  that,  when  the  gravamen 


648  American  State  Bbpobts^  Vol.  91.  [^B.  L 

of  the  fraud  consists  in  a  transaction  which  really  originated 
in  contract,  the  plea  of  infancy  is  a  good  defense:  See  notes 
to  this  case  in  EwelFs  Leading  Cases,  206 ;  Freeman  v.  Boland, 
14  R.  I.  39,  61  Am.  Rep.  340.    The  principle  of  these  cases  is 
that  infancy  is  a  har  for  misrepresentation  based  npon  a  con- 
tract.   It  is  to  be  noted  that  the  cases  cited  were  bronght  by 
the  adult  against  the  infant.    But  if  the  plaintiff  cannot  sue 
the  infant  upon  his  warranties,  upon  what  principle  can  he  set 
up  the  same  warranties  in  defense?    In  either  case  he  is  seek- 
ing to  enforce  the  contract  as  made  by  the  infant.    In  Derocher 
T.  Continental  Mills,  58  Me.  217,  4  Am.  Rep.  286,  where  a 
minor  who  had  agreed  to  work  for  the  defendant  for  six  months, 
at  least,  and  to  give  no  less  than  two  weeks'  notice  before  leav- 
ing, left  within  six  months  and  without  giving  such  notice,  the 
question  was  whether  the  defendant  could  deduct  the  damages 
occasioned  thereby  from  what  he  would  otherwise  be  entitled 
to  recover  for  his  labor.    The  court  held  that  no  deduction 
could  be  made,  saying:  ''To  compel  the  minor  thus  to  make 
good  the  loss  occasioned  by  the  nonperformance  of  his  con- 
tract is  virtually  to  enforce  the  contract;  and  thus  to  enforce 
the  contract  is  in  effect  to  abrogate  the  rule  of  law  that  a  minor 
is  not  bound  by  his  contract.*' 

This  language  was  quoted  in  Shurtleff  v.  Millard,  12  R.  I» 
272,  34  Am.  Rep.  640,  apparently  with  approval,  although 
the  decision  of  the  court  in  that  case  proceeded  upon  the  theoiy 
that,  as  there  was  no  binding  contract,  the  plaintiff  could  re> 
cover  reasonable  compensation,  which  might  include  a  deduc- 
tion for  injury  done. 

We  think  the  reasoning  of  Derocher  v.  Continental  Mills, 
57  Me.  217,  4  Am.  Rep.  286,  is  sound,  and  that  the  terms  of 
a  minor's  contract  can  no  more  be  set  up  defensively  than 
offensively. 

The  defendant  argues  that  the  answer  of  infancy  is  a  priv- 
ilege personal  to  him,  and  that  it  cannot  be  taken  advantage 
of  by  anyone  else.  Undoubtedly,  this  is  a  general  rule,  but 
its  chief  application  is  for  the  protection  of  the  infant  in  cases 
where  an  adult  ***  seeks  to  avoid  his  contract  upon  that 
ground,  when  the  contract  has  not  been  disaffirmed  by  the  in- 
fant. 

To  apply  the  rule  in  this  case  would  amount  to  holding  the 
contract  good  during  the  minority  of  the  infant,  because,  the 
policy  being  on  his  life,  no  suit  could  be  brought  upon  it  until 
after  his  death.     He  could  only  disaffirm  it  by  refusing  to  pay 


*Jan.  1902.]    O'Roubkb  v.  Hancock  Mut.  Lifs  Ins.  Ca      649 

premmms  and  thus  forfeiting  the  policy.  If  it  were  an  en- 
dowment policy  maturing  before  his  majority,  it  follows,  from 
'what  we  have  said,  that  he  could  sue  upon  it  without  being 
bound  by  his  warranties.  If,  after  majority,  he  should  con* 
tinne  to  pay  premiums,  he  might  be  regarded  as  having  aflBrmed 
the  contract,  as  in  Morrill  v.  Aden,  19  Vt.  505. 

Our  conclusion  is  that  during  the  minority  of  the  applicant 
his  warranties  cannot  be  set  up  in  defense  to  a  suit  upon  the 
policy.    But,  even  if  this  is  so,  the  defendant  argues  that  the 
beneficiary  cannot  recover  because,  the  policy  being  conditional 
upon  the  truth  of  the  statements,  she  is  estopped  by  false 
statements  on  the  face  of  the  contract.     Undoubtedly  this  would 
be  the  rule  in  the  case  of  a  valid  contract,  because  she  could 
recover  only  on  the  terms  of  the  contract.    This  contract  pur- 
jiorte  to  have  been  made  with  the  minor.    The  beneficiary  has 
made  no  statements  of  her  own.    If  the  warranties  are  not 
binding  upon  the  minor,  then  in  legal  effect  they  are  not  a  part 
of  the  contract,  and  the  beneficiary  is  not  estopped  by  thenu 
This  does  not  mean  that  a  beneficiary  may  not  be  estopped  by 
fraudulent  conduct  of  her  own.    For  example,  if  she  had  pro- 
cured the  insurance  on  this  application  with  knowledge  of  the 
false  statements.    But  we  do  not  find  that  fact  in  this  case. 

A  copy  of  the  medical  examination  is  on  the  back  of  the 
policy^  and  it  is  claimed  that  notice  is  imputed  to  her  of  its 
contents.  Even  so,  it  shows  only  a  denial  of  any  serious  ill- 
ness from  rheumatism ;  and  while  it  appears  from  the  testimony 
that  '%e  has  had  rheumatism,^'  it  does  not  appear  that  it  was 
serious  so  as  to  charge  the  plaintiff  with  knowledge  of  a  false 
warranty.  There  was  a  conflict  of  testimony  as  to  her  knowl- 
edge of  the  statements,  and  it  does  not  clearly  *^^  appear  from 
the  record  that  much  stress  was  laid  upon  the  fact. 

We  must  assume,  however,  that  the  question  was  before  the 
jury,  otherwise  the  testimony  would  have  no  relevancy;  and, 
from  the  verdict  for  the  plaintiff,  that  she  did  not  know  the 
contents  of  the  application.  It  therefore  appears  that  she  is 
not  estopped  by  the  terms  of  the  contract,  nor  by  any  conduct 
of  her  own  which  precludes  her  from  recovery. 

We  think  that  the  defendant  is  not  entitled  to  a  new  trial, 
either  upon  the  ground  of  erroneous  rulings  or  verdict  against 
the  evidence. 


The  Agents  of  Insurance  Companies^  authorized  to  procure  applica- 
tiona  for  insurance,  and  forward  them  to  the  company  for  acceptance,. 


650  Amsbican  Statb  Bepobts^  Vol.  91.  [B.  L 

are  regarded  as  the  agents  of  the  insurer,  and  not  of  the  insured.  If^ 
therefore,  they  make  out  applications  incorrectly,  when  the  applicant 
has  stated  the  facts  correctly,  the  errors  are  chargeable  to  the  insur- 
ance company:  See  the  monographic  note  to  Clark  ▼.  Union  etc  Ins. 
Co.,  77  Am.  Dec.  724;  Triple  Link  etc.  Assn.  v.  Williams,  121  Ala.  138^ 
77  Am.  St.  Bep.  34,  26  South.  19;  German  Ins.  Co.  ▼.  Hayden,  21 
Colo.  127,  52  Am.  St.  Bep.  206,  40  Pac.  453:  Continental  Ins.  Co.  ▼. 
Chew,  11  Ind.  App.  330.  54  Am.  St.  Bep.  .'^06,  38  N.  E.  417;  Sterna^ 
man  ▼.  Metropolitan  Life  Ins.  Co.,  170  N.  Y.  13,  88  Am.  St.  Bep.  62S, 
62  N.  £.  763.  Compare  the  note  to  Continental  Ins.  Co.  ▼.  Yong^  3 
Am.  St.  Bep.  636. 

Ansicers  in  an  Application  for  Life  Insurance  as  to  freedom  from 
specific  diseases  are  considered  warranties:  Mutual  Life  Ina.  Go.  ▼• 
Simpson,  88  Tex.  333,  53  Am.  St.  Bep.  757,  31  S.  W.  501;  note  to 
Continental  Ins.  Co.  ▼•  Yung,  3  Am.  St.  Bep.  634-637. 


STATB  ▼.  TERLINE. 

[23  B.  I.  530,  51  Atl.  204.] 

FEBJUBY— Indictment  for— Words,  How  to  1)6  Bet  Ont^ 

Neither  at  the  common  law  nor  under  the  statutes  generally  preyail- 
ing  in  the  United  States  is  it  necessary  to  set  out  the  precise  words 
of  the  testimony  alleged  to  have  been  false,     (p.  652.) 

FEBJUBY  in  a  Foreign  Language— Indictment  for. — Though 
the  testimony  was  given  in  a  foreign  language,  it  is  not  necessary,  in 
an  indictment  for  perjury,  to  show  that  fact  or  to  state  in  soeh 
language  the  testimony  alleged  to  have  been  falsew  It  is  suffieleBt  to 
set  out  in  English  the  substance  of  the  testimony,     (p.  654.) 

FEBJUBY— Variance  in  Indictment  for— Wlien  Imniaterlal.— 
A  mistake  in  an  indictment  for  perjury  respecting  the  testimony  of 
the  accused,  in  so  far  as  it  related  to  a  place  or  locality,  is  not  de- 
scriptive of  the  identitv  of  the  offense,  and  is  hence  not  a  legal 
esFcntial  thereof,    (p.  657.) 

EVIDENOE— Foreign  Langaage— Testimony  of  What  litter- 
preter  Said  at  the  Former  TriaL— On  the  trial  of  an  indictment  for  per- 
jury claimed  to  have  been  committed  by  testimony  given  at  a  prior 
trial  in  a  foreign  language,  and  then  interpreted  to  the  court  and 
jury,  it  is  error  to  permit  a  witness  to  testify  to  the  translation  of 
the  testimony  as  made  at  such  former  trial  by  the  interpreter.  What 
he  there  said  must  be  regarded  as  hearsay  only.  The  only  ezeeption 
to  this  rule  arises  where  the  interpreter  acted  as  agent  of  the  wit- 
ness in  translating  his  testimony,     (pp^  657,  658.) 

Indictment  for  perjury.    Accused  was  oonvicted  and  peti- 
tioned for  a  new  trial. 

Charles  F.  Steams,  assistant  attorney  general^  for  ihe  state* 

Franklin  P.  Owen,  for  the  defendant. 


Jan.  1902.]  Stat»  v.  Tbblins.  661 


TILLINGHAST,  J.  This  is  an  indictment  against  the 
def  endanty  charging  him  with  having  committed  the  crime  of 
perjury  while  testifying  as  a  witness  in  the  district  court  of  the 
sixth  judicial  district,  on  the  fifteenth  day  of  September,  1899, 
in  the  trial  of  a  complaint  and  warrant  wherein  Reuben  R. 
Baker  was  complainant  and  Francesco  Di  Nardo  was  defendant. 
Upon  the  trial  of  said  indictment  the  defendant  was  convicted ; 
and  he  now  petitions  for  a  new  trial  on  the  grounds  that  the 
verdict  was  against  the  law  and  the  evidence,  and  that  the  trial 
court  erred  in  certain  of  its  rulings. 

The  defendant  is  an  Italian  and  unable  to  speak  English, 
and  he  gave  his  testimony  in  the  Italian  language  in  said  dis- 
trict court,  Mr.  Frank  Raia  acting  as  interpreter. 

We  will  first  consider  the  defendant's  objection  to  the  suffi- 
ciency of  the  indictment,  which  appears  in  the  following  re- 
quest to  charge:  '^The  defendant  requests  the  court  to  charge 
the  jury  that  as  it  appears  from  the  evidence  that  the  defend- 
ant gave  his  testimony  in  the  sixth  district  court  in  the  case 
against  Francesco  Di  Nardo  in  the  Italian  language,  and  the 
jury  find  that  the  testimony  was  so  given,  then,  inasmuch  as 
the  indictment  charges  that  the  testimony  was  given  in  the 
Snglish  language,  there  is  a  variance  between  the  evidence  and 
the  indictment,  and  tiie  defendant  must  be  found  not  guilty/' 
The  court  refused  so  to  charge,  and  the  defendant  excepted. 

The  question  raised  by  the  exception  is  whether  the  lan- 
guage actuaUy  used  by  the  defendant  must  be  set  out  in  the 
indictment  or  whether  it  is  sufficient  to  set  out  the  substance 
thereof  in  the  English  language,  as  was  done  in  this  case. 

Counsel  for  defendant  contends  that  the  indictment  should 
***  have  set  out  in  the  Italian  language  what  it  was  claimed 
that  the  defendant  said;  that  if  this  had  been  done  it  would 
have  been  easy  to  show  how  the  interpreter  made  the  error  in 
his  interpretation,  to  which  reference  will  be  made  hereafter; 
that  such  is  the  rule  in  civil  cases,  in  slander  and  libel,  and 
that  the  rules  of  pleading  in  criminal  cases  are  much  stricter 
than  in  civil.  He  also  claims  that  xmder  the  statute  relating 
to  perjury  the  charge  should  have  been  in  the  Italian  language, 
as  otherwise  it  is  not  substantially  set  forth  in  the  indictment. 
General  Laws  of  Rhode  Island,  caption  1^85,  section  5,  reads 
as  follows :  'In  every  indictment  for  perjury,  or  subornation  of 
perjury,  or  incitement  to  perjury,  it  shall  be  sufficient  to  set 
forth  title  substance  of  the  offense  charged  upon  the  defendant, 
and  by  what  court  or  before  whom  the  oath  or  affirmation  was 


ess  Ambbican  Statb  Bbports^  Vol.  91.  [B.  L 

laken^  averring  sucli  court  or  person  to  have  had  competent 
authority  to  adminigter  the  8Bme,  together  with  the  proper 
averment  or  averments  to  falsify  the  matter  wherein  the  per- 
jnry  is  assigned,  without  setting  forth  any  part  of  any  record 
or  proceeding,  either  in  law  or  equity,  other  than  as  aforesaid, 
and  without  setting  forth  the  commission  or  authority  of  the 
court,  or  person  or  persons  before  whom  the  perjury  was  com- 
mitted,  or  was  agreed,  or  promised,  or  procured,  or  incited  to 
be  committed,** 

This  section  is  substantially  the  same  as  the  English  stat- 
ute, 23  George  II,  chapter  11,  passed  in  1750.  Before  the 
passage  of  that  statute  indictments  were  very  prolix^  reciting 
the  organization  of  the  court  before  which  the  perjury  was 
alleged  to  have  been  committed,  and  also  the  whole  of  the 
proceedings.  And  said  statute  was  intended  to  relieve  the 
public  prosecutor  from  the  difficulties  attending  that  mode  of 
proceeding:  2  Chitty*s  Criminal  Law,  307.  And  under  the 
English  decisions  since  the  statute  it  is  only  necessary  to  state 
the  substance  of  the  offense,  the  name  of  the  court,  a  simple 
averment  of  the  court's  authority  to  administer  the  oath,  and 
proper  averments  of  the  falsity  of  defendant's  testimony: 
People  V.  Phelps,  5  Wend.  9.  Indeed,  even  under  the  common 
law,  we  do  not  find  that  it  was  necessary  to  set  out  the  ^^^  pre- 
cise  words  of  the  testimony  alleged  to  have  been  false:  16  Ency. 
of  PL  &  Pr.  333 ;  2  Bishop's  Criminal  Procedure,  sec.  843. 

In  most,  if  not  all,  of  the  United  States,  similar  statutes 
have  been  enacted,  and  it  has  been  uniformly  held  thereunder 
that  in  indictments  for  perjury  it  is  not  necessary  to  set  out 
the  exact  language  used  by  tiie,  defendant  on  the  occasion  when 
he  is  charged  with  having  committed  said  crime,  but  only  the 
substance  thereof,  except,  perhaps,  in  those  cases  where  his 
testimony  was  reduced  to  writing  and  signed  by  him :  McClain 
on  Criminal  Law,  sec.  877 ;  State  v.  Umdenstock,  43  Ter.  554. 
All  that  is  necessary  is  that  the  indictment  shall  set  forth  the 
substance  of  the  offense  charged  in  a  plain,  intelligible,  and 
explicit  manner,  with  such  fullness  that  the  court  can  see  that 
it  is  charged,  and  that  it  gives  to  the  defendant  such  informa* 
tion  as  is  necessary  to  enable  him  to  make  his  defense,  and 
also  to  protect  him  in  case  of  a  subsequent  prosecution  for  the 
same  offense.  In  short,  an  indictment  for  perjury  is  good  if 
it  shows  that  in  a  judicial  proceeding  before  a  court  having 
jurisdiction,  or  before  a  person  having  authority  to  administer 
the  oath,  the  person  accused  willfully  made  oath  to  a  state- 


Jan.  1902.]  Btata  v.  Teblinx.  653 

xnent  of  a  material  fact  and  that  sndb  statement  was  knowingly 
false:  Commonwealth  y.  Carel^  105  Mass.  582.  See,  also. 
United  States  v.  Walsh,  22  Fed.  644;  2  Bishop's  Criminal  Pro- 
cedure, 1st  ed.,  sec.  859;  State  v.  Stillman,  47  Tenn.  (7  Cold.) 
341;  Woods  y.  State,  82  Tenn.  (14  Lea)  460;  State  y.  Neal, 
42  Mo.  119;  State  y.  Spencer,  45  La.  Ann.  1,  12  South.  135; 
People  y.  Ostrander,  64  Hnn,  340, 19  N.  Y.  Snpp.  324,  328. 

As  to  the  contention  of  defendant's  counsel  that  the  indict- 
ment should  haye  set  out  in  the  Italian  language  the  words 
used,  we  are  clearly  of  the  opinion  that  it  is  not  well  founded. 
If  it  is  only  necessary  to  set  out  the  substance  of  what  the 
defendant  awore  to  in  the  proceeding  in  which  he  is  charged 
"with  haying  committed  perjury,  it  logically  follows  that  it  is 
immaterial  in  what  language  or  dialect  the  witness  spoke. 
The  real  question  is.  What  did  the  defendant  in  effect  swear 
to?  What  fact  did  he  eyidently  intend  to  conyey  by  the  lan- 
^age  used? 

In  Begina  y.  Thomas,  2  Car.  &  K.  806,  a  similar  question 
^^^^  was  raised  and  passed  upon.  There  the  indictment  charged 
that  the  defendant,  before  a  magistrate,  on  the  inyestigation 
of  a  charge  of  riot  against  certain  other  persons,  falsely,  will- 
fully, etc.,  swore  *'in  substance  and  to  the  effect  following,  that 
is  to  say.''  (In  the  indictment  was  here  eet  out  in  totidem 
yerbis  and  in  the  first  person,  a  deposition  of  defendant  in  the 
English  language,  with  proper  innuendoes.) 

It  was  proyed  that  the  defendant  was  examined  before  the 
magistrate  in  the  Welsh  language  through  an  interpreter,  and 
that  his  examination  was  translated  into  English  and  taken  ^ 
down  in  writing  by  the  witness  and  signed  by  the  defendant, 
this  written  deposition  being  that  which  was  set  out  in  the 
indictment  and  which  was  produced  on  the  trial. 

The  defendant  contended  that  the  evidence  given  by  the  de- 
fendant before  the  magistrate  ought  to  have  been  set  out  in 
the  indictment  in  the  Welsh  language  with  a  translation  in 
the  English  language,  and  not  an  English  translation  only; 
that  it  might  have  been  sufficient  to  have  stated  the  substance 
of  the  Welsh  words,  but  that  the  indictment,  setting  out  the 
deposition  in  the  first  person,  professed  to  give  the  very  words, 
and  must  therefore  do  so  correctly.  In  support  of  tiiis  con- 
trition the  defendant  cited  the  case  of  Zenobio  v.  Axtell,  6 
Term   Eep.  162. 

Vaughan  Williams,  J.,  said :  "That  was  a  case  of  libel,  where 
proof  of  the  precise  language  is  necessary.    In  perjury  it  is 


654  Amsbican  Stats  Bbpobts,  Vol.  91.  [R.  L 

only  neoeBsary  to  prove  the  'substance  and  effect'  The^incHct- 
ment  charges  that  the  defendant  deposed  and  swore  in  snb> 
stance  and  to  the  effect  there  stated.  It  was  not  necessary  in 
this  indictment  to  have  set  forth  the  deposition  in  totidem  ver* 
bis.  Still  the  substance  and  effect  of  what  the  defendant  swore 
in  the  Welsh  language  may  be  proved;  and  if  that  is  in  sub- 
stance and  to  the  effect  the  same  as  is  stated  in  this  indict- 
ment, that  will  be  sufBcienf 

Mr.  Bishop,  in  his  work  on  Criminal  Procedure,  volume  1, 
section  564,  565,  states  the  rule  to  be  as  follows:  ''If  the  law 
requires  the  tenor  of  a  written  instrument  to  be  set  out,  and 
the  instrument  is  in  a  foreign  language,  the  course  is  to  give, 
in  the  first  place,  an  exact  copy  of  the  original;  then  to  ••* 
follow  it  with  an  English  translation.  Thus:  'Of  the  tenor 
following  (here  insert  the  copy  of  the  original,  in  the  original 
language).  And  which  being  translated  into  the  English  lan- 
guage, is  as  follows.'  The  original,  without  the  translation, 
is  not  sufficient;  neither  is  the  translation  without  the  originaL 
And,  plainly,  if  the  words  as  translated  do  not  sustain  the 
charge  in  the  indictment  it  must  fail,  though  the  words  in 
the  original  should  be  sufficient. 

"It  is  to  be  borne  in  mind  that  the  doctrine  of  the  last  sec- 
tion refers  merely  to  those  cases  in  which  the  law  requires  the 
tenor  of  the  words  or  instrument  to  be  set  out  Where  only 
the  substance  is  necessary,  no  principle  occurs  to  the  writer 
requiring  any  of  the  foreign  forms  of  the  expression  to  be 
given.  The  tenor  of  a  discourse  in  a  foreign  language  could 
not  be  given  in  English,  because  this  requires  the  exact  words, 
and  these  are  foreign  ones.  But  the  substance  does  not  require 
the  exact  words;  and,  plainly,  the  substance  of  a  discourse  in 
German  or  French  may  be  stated  in  English.'' 

We  think  the  law  as  thus  stated  is  supported  both  by  reason 
and  authority.  No  useful  purpose  covlA  be  subserved  by  in- 
corporating in  an  indictment  of  this  sort  the  particular  words 
used  by  a  defendant  who  speaks  a  language  foreign  to  our 
own.  And  such  a  practise,  if  required,  would  tend  to  confuse 
rather  than  to  aid  those  whose  duty  it  is  to  try  and  determine 
the  case.  By  having  the  services  of  an  interpreter  who  is  skilled 
in  the  particular  language  used  by  the  defendant  when  he  is 
alleged  to  have  sworn  falsely,  his  rights  are  fully  protected, 
and,  the  indictment  being  in  English,  the  case  is  tried  in  an 
orderly  and  intelligible  manner. 

We  are  therefore  of  the  opinion  that  it  was  not  necessary 


Jan.  1902.]  Stats  v,  Tebunb.  655 

that  the  indictment  shonld  contain  the  Italian  language  nsed 
by  the  defendant  as  aforesaid,  but  that  it  was  sufficient  that 
the  substance  thereof  was  stated  in  English. 

The  defendant  also  claims  that  there  was  a  Tariance  be- 
tween the  indictment  and  the  proof  in  this:  That  the  indict- 
ment charges,  amongst  other  things,  that  defendant  testified 
that  he  and  Di  Nardo  were  at  the  comer  of  Spruce  and  Sutton 
'"^  streets,  while  the  proof  was  that  he  stood  at  the  corner  of 
S]»rQce  and  Acorn  streets. 

The  indictment  charges  that  the  defendant  falsely,  know- 
ingly, etc.,  testified  in  substance  as  follows,  to  wit:  'That  on 
said  afternoon  of  the  aforesaid  fourth  day  of  September,  the 
said  Francesco  Di  Nardo  did  not  enter  the  said  house  on  the 
said  comer  of  Spruce  and  Sutton  streets,  but  that  the  said 
Francesco  Di  Nardo  remained  on  the  street  outside  of  the 
aforesaid  house  in  company  with  him,  the  said  Michele  Ter- 
line,  whereas  in  truth  and  in  fact,  as  the  said  Michele  Terline 
well  knew,  he,  the  said  Francesco  Di  Nardo,  did  enter  on  the 
said  afternoon  of  the  said  fourth  day  of  September  the  said  house 
on  said  comer  of  Spruce  and  Sutton  streets,  and  did  not  remain 
on  the  street  outside  of  said  house  in  company  with  him,  the 
said  Michele  Terline/' 

The  testimony  relied  on  by  defendant's  counsel  to  show  the 
variance  referred  to  is  that  of  Frank  Baia,  the  interpreter,  and 
was  as  follows : 

^'Q.  (By  Mr.  Steams,  Assistant  Attorney  General.)  On 
that  day,  at  that  trial,  what  did  the  defendant  Michele  Terline 
have  to  say  in  regard  to  his  whereabouts  on  the  4th  of  Septem- 
ber, 1899  ?  A.  Well,  he  said  he  had  company  on  that  day  at 
his  house,  and  in  the  afternoon  they  went  out,  I  think  he  said 
to  the  comer  of  Acorn  and  Spruce  streets,  and  they  saw  a  large 
crowd  there  and  they  watched  the  crowd.  Mr.  Oreenough  asked 
liini  if  he  was  at  this  house  with  Francesco  Di  Nardo,  and  he 
said  'No,'  that  Francesco  Di  Nardo  did  not  leave  him  that  day. 
Mr.  Oreenough  asked  me  to  ask  him  again  and  to  be  sure,  and  I 
adced  him  again,  and  I  said,  'Are  you  positive  that  Francesco  Di 
Nardo  never  left  youP  He  said,  T5e  did  not  leave  me.'  Then 
Judge  Sweetland  asked  him  or  wanted  me  to  ask  him  again  to 
be  sure.  He  said,  'Be  sure  to  ask  him  again.'  I  said,  'Are  you 
positive?'  The  word  'positive'  in  English  and  Italian  is  almost 
the  same — ^'positif .'  So  I  asked  him  again,  'Are  you  positive 
that  he  never  went  into  that  house,'  and  he  said,  'Di  Nardo  never 
left  me.' 


656  American  State  Bbpobts^  Vol.  91.  [B.  L 

'^(Cross-examination  by  Mr.  Owen.)  Q.  What  time  was  ii 
**''  that  Michele  Terline  left  the  house  that  day?  A.  In  the 
afternoon. 

"Q.    Do  yon  remember  the  hour  ?    A.    I  do  not 

''Q.  Where  did  he  say  he  went?  A.  I  think  he  said  hs 
went  to  the  comer  of  Acorn  and  Sprace  streets. 

^'Q.  Who  did  he  say  was  with  him?  A.  Francesco  Di 
Nardo  and  the  two  other  Di  Nardos,  father  and  son. 

'^Q.  When  they  got  to  the  comer  of  Acorn  and  Spruce  streeb 
what  did  they  say  they  did?    A.    Watched  the  crowd. 

^'Q.  And  then  what  did  they  say  they  did?  A.  I  do  not 
recollect  just  what  he  did  say  then.  I  recollect  his  saying  they 
were  going  to  take  a  car. 

'^Q.  Did  he  not  say  they  went  to  the  comer  of  Acom  and 
Atwella  avenue  or  some  street  there  to  take  a  car?  A.  They 
said  that  afterward. 

"Q.  Now,  did  Michele  Terline  testify  in  the  district  court 
that  day  that  he  went  near  the  comer  of  Spruce  and  Sutton 
streets?  A.  Yes,  sir;  he  said  they  came  out  together  on  the 
comer  of  Acom,  near  Spruce. 

'^Q.  Did  he  say  they  went  near  the  corner  of  Sprace  and 
Sutton  streets?    A.    I  do  not  remember. 

^^Q.    Do  you  want  to  eay  tiiey  did  ?    A.    No. 

^^Q.  Now,  as  a  matter  of  fact,  isn't  it  a  fact  that  he  did  not 
say  tiiat  he  went  near  the  comer  of  Sutton  and  Spruce  streeis? 
A.  I  do  not  remember  that ;  I  remember  he  said  he  went  on  the 
comer  of  Acorn  and  Spruce,  near  Durante's  barroom  and 
watched  the  crowd ;  that  is,  in  the  lower  court,  when  he  testified 
for  Francesco  Di  Nardo/' 

In  view  of  this  testimony,  the  defendant's  counsel  requiested 
the  court  to  charge  as  follows :  "If  the  jury  find  that  the  defend- 
ant testified  that  he  stood  at  tiie  comer  of  Spmce  and  Acom 
streets,  then,  as  the  indictment  charges  that  he  testified  that  he 
stood  at  the  comer  of  Spmce  and  Sutton  streets,  there  is  a  vari- 
ance, and  the  defendant  must  be  found  not  guilty."  This  re- 
quest was  refused,  and  the  defendant's  exception  to  the  refusal 
was  noted. 

There  was  no  error  in  this  refusal.  The  variance  relied  on 
is  not  of  such  a  character  as  to  be  vital  to  the  issue  involved. 
That  the  proof  in  a  case  of  this  sort  must  substantially  support 
the  indictment,  and  that  any  substantial  variance  in  this  respect 
will  be  fatal,  is  doubtless  the  law.  But  substantial  *""*  conform- 
ity is  enough:  2  Wharton's  Criminal  Law,  8th  ed.,  sec.  1313;  S 


Jan.  1902.]  State  v.  Tsblinb.  657 

Chitty's  Criminal  Law,  312b;  Harris  v.  People,  64  N.  Y.  153^ 
154  ;  3  Greenleaf  on  Evidence,  16th  ed.,  sees.  193,  194. 

If  the  allegation  as  to  the  name  of  said  streets,  or  either  of 
them,  was  descriptive  of  the  identity  of  that  which  was  legally 
essential  to  the  charge  against  the  defendant,  it  could  not  be 
rejected,  and  would  have  to  be  proved  strictly  as  laid;  the  well- 
settled  rule  of  evidence  being  that  no  allegation  which  is  de- 
scriptive of  the  identity  of  that  which  is  legally  essential  to  the 
charge  can  ever  be  rejected:  State  v.  Pitzpatrick,  4  B.  I.  269; 
Starkie  on  Evidence,  9th  ed.,  ♦631.    '^Thus,  in  an  indictment  for 
stealing  a  black  horse  the  animal  is  necessarily  mentioned,  but 
the  color  need  not  be  stated ;  yet  if  it  is  stated  it  is  made  descrip- 
tive of  the  particular  animal  stolen,  and  a  variance  in  the  proof 
of  the  color  is  fatal.     So  in  an  indictment  for  stealing  a  bank 
note ;  though  it  would  be  suflScient  to  describe  it  generally  as  a 
bank  note  of  such  denomination  or  value,  yet,  if  the  name  of  the 
officer  who  signed  it  be  also  stated,  it  must  be  strictly  proved. 
So  also  in  an  indictm<ent  for  murder,  malicious  shooting,  or 
other  offense  to  the  person,  or  for  an  offense  against  the  habita- 
tion or  goods,  the  name  of  the  person  who  was  the  subject  of  the 
crime,  and  of  the  owner  of  the  house  or  goods  are  material  to  be 
proved  as  alleged.    But  where  the  time,  place,  person,  or  other 
circumstances  are  not  descriptive  of  the  fact  or  degree  of  the 
crime,  nor  material  to  the  jurisdiction,  a  discrepancy  between  the 
allegation  and  the  proof  is  not  a  variance^^ :  1  Oreenleaf  on  Evi- 
dence, 16th  ed.,  829,  830,  and  cases  cited. 

The  allegation  in  this  indictment  as  to  the  names  of  the 
streets  is  not  descriptive  of  the  identity  of  the  offense  charged, 
and  hence  is  not  legally  essential  thereto.  The  vital  question  in 
the  case  was  not  whether  the  defendant  and  Di  JN'ardo,  in  whose 
favor  the  defendant  testified  in  the  district  court,  stood  in  the 
particular  place  set  out  in  the  indictment,  but  whether  the  de- 
fendant swore  falsely  when  he  testified  that  Di  Nardo  remained 
in  his  company  and  did  not  go  inside  of  the  house  where  he,  Di 
Nardo,  was  charged  with  having  committed  the  offense  for  which 
he  was  tried  in  the  district  court. 

^^^  The  remaining  exception  taken  by  the  defendant's  coun- 
sel was  based  upon  the  ruling  of  the  trial  court  in  permitting 
several  witnesses  who  did  not  understand  the  Italian  language 
to  testify  as  to  what  the  defendant  said  in  the  district  court,  as 
there  translated  by  the  interpreter.  We  are  of  the  opinion  that 
this  exception  is  well  founded,  and  must  be  sustained. 
While  it  is  true  that  tbe  interpretation  of  the  words  of  a  wit- 
Am.  St  Rep.,  Vol.  91—42 


658  American  Statb  Bbpobts^  Vol.  91.  [R.  L 

ness  testifying  in  a  foreign  language  by  one  who  is  sworn  in  court 
and  translates  the  testimony  to  the  tribunal  is  not  obnoxious  to 
the  hearsay  rule^  because  both  the  original  witness  and  the  inter- 
preter are  under  oath  and  subject  to  cross-examination,  yet  where 
a  witness  is  offered  to  testify  to  the  statements  of  another  person 
spoken  in  a  language  not  understood  by  him^  but  translated  for 
him  by  an  interpreter,  such  witness  is  not  qualified,  because  he 
does  not  speak  from  personal  knowledge:  1  Qreenleaf  on  ETi- 
dence,  16th  ed.,  sec.  162p.    All  which  he  can  know  as  to  the 
testimony  which  is  in  fact  given  in  such  a  case  is  from  the  inter- 
pretation thereof  which  is  given  by  another  person.     In  PeojJe 
V.  Ah  Yute,  56  Cal.  119,  it  was  held  that  the  testimony  of  tiie 
reporter  based  npon  his  notes  was  incompetent  to  prove  the  tes- 
timony of  a  witness  given  in  a  foreign  language  at  a  former  trial 
and  tfiJcen  down  by  the  reporter  from  the  interpreter.    The  court 
said:  ^'These  statements  were  not  spoken  by  the  defendant  in 
English.    They  were  spoken  in  a  foreign  language  and  translated 
into  the  English  language  for  the  use  of  the  court,  the  jury,  and 
the  reporter.    In  taking  them  down  in  shorthand  the  reporter 
received  them  from  the  lips  of  the  interpreter  and  not  from  the 
defendant.    It  is,  therefore,  evident  that  the  reporter  did  not 
understand  the  language  in  which  the  defendant  spoke,  and  that 
he  did  not  pretend  to  testify  from  his  own  knowledge  or  recollec- 
tion of  what  the  witness  said,  but  from  the  shorthand  notes  of 
what  the  interpreter  had  said.    The  interpreter  or  some  other 
witness  who  heard  and  understood  the  language  in  which  the 
statements  of  the  defendant  were  made  should  have  been  called 
to  prove  them.    **^  The  court  therefore  erred  in  overruling  the 
objection  of  the  defendant*':  See,  also.  People  v.  Lee  Fa^  54 
Cal.  527. 

The  only  exception  which  we  find  to  the  rule  as  thns  stated 
is  that  in  those  cases  where  the  interpreter  acts  as  the  agent  of 
the  witness  in  translating  his  testimony  it  is  held  that  what  the 
interpreter  said  is  admissible  on  the  ground  that  the  language  of 
the  interpreter  in  such  a  case  is  to  be  taken  prima  facie,  at  any 
rate,  as  the  language  of  the  witness  who  employs  him  and  speaks 
through  him:  See  Caroerlin  v.  Palmer  Co.,  10  Allen,  541,  542; 
Commonwealth  v.  Vose,  157  Mass.  393,  32  N.  B.  355;  Schearer 
V.  Harber,  36  Ind.  536 ;  Miller  v.  Lathrop,  60  Minn.  91,  62  N. 
W.  274;  1  Qreenleaf  on  Evidence,  16th  ed.,  sec.  162p. 

In  the  case  at  bar  it  appears  that  Baia  was  the  official  interpret 
ter  in  the  district  court,  and  that  he  was  not  the  defendant'? 
agent.    His  interpretation  of  the  defendant's  testimony,  there- 


7eb.  1902.J  McDonald  v.  B&owm.  659 

fore,  was  improperly  admitted  from  those  witnesses  who  were 
present  in  the  district  court  and  did  not  und.erstand  the  Italian 
language.  And  while  we  cannot  say  that  the  evidence  which  was 
offered  outside  of  this  testimony  was  not  sufficient  to  have  war- 
ranted the  jury  in  finding  the  defendant  guilty,  yet,  as  this  was 
improperly  admitted  and  might  have  influenced  the  jury,  it  is 
sufficient  ground  for  the  granting  of  a  new  trial. 

From  the  conclusion  to  which  we  have  thus  arrived  it  becomes 
unnecessary  to  consider  the  alleged  slight  mistake  made  by  Baia 
in  his  interpretation  of  the  testimony. 

Petition  for  new  trial  granted,  and  case  remanded  to  the  com- 
mon pleas  division  for  further  proceedings. 


IndictmenU  far  Perfwry  are  discussed  in  the  monographie  note  to 
State  V.  Shnpe,  85  Am.  Dee.  494-499.  The  indictment  may  recite 
the  false  testimony,  but  where  a  great  mass  of  evidence  is  thrown 
in  without  pointing  out  in  what  answers  to  questions  the  alleged  perjury 
18  contained,  the  indictment  is  bad  for  uncertainty:  State  v.  BowelT, 
72  Yt.  28,  82  Am.  St.  Bep.  918,  47  Atl.  111.  It  is  held  that  when 
an  indictment  is  based  upon  a  written  instrument  set  out  therein  in 
><aec  verba,  and  the  instrument  offered  in  evidence  bears  a  different 
date,  the  variance  is  material:  Dill  v.  People,  19  Colo.  469,  41  Am.  St. 
Bep.  254,  36  Pae.  229. 

The  A&mi99iMity  of  Evidence  Qiven  at  a  former  trial  is  considered 
in  the  monographie  note  to  Ballroad  Co.  v.  Osbom,  ante,  pp.  192-208. 


McDonald  v.  bbown. 

[28  B.  I.  546,  51  A\X.  213.] 

A  LIBEL  Must  be  Deemed  a  Willful  and  Sfallcioiis  Act,  and 
injurious  to  the  property  of  another  within  the  meaning  of  the 
statutes  of  the  United  States,  declaring  what  causes  of  action  are 
released  by  a  discharge  in  bankruptcy,     (p.  662.) 

LIBEL.— Liability  for  Libel  Is  not  Beleased  by  Discharge  in 
Bankraptcy,  because  statutes  of  the  United  States  exempt  from  the 
effect  of  such  release  all  judgments  in  actions  for  willful  and 
malicious  injury  to  the  person  or  property  of  another,     (p.  663.) 

JX7DOMBKT— Merger— Limitations  Upon  the  Effect  of.— A 
judgment  upon  a  cause  of  action  which  is  exempt  from  the  operation 
of  a  discharge  in  bankruptcy  is  not,  by  operation  of  the  law  of  mer- 
ger, brought  within  the  effect  of  the  discharge,     (p.  665.) 

Scire  facias  against  bail,  to  which  defendant  pleaded  in  bar  a 
discharge  in  bankruptcy.  A  demurrer  was  interposed  to  this 
plea. 


660  American  Statb  Bepobts^  Vol.  91.  [B.  L 

John  J.  Dockery,  for  the  plaintiflE. 
Dexter  B.  Potter,  for  the  defendant. 

»^  TILLINGHAST,  J.  This  is  a  scire  facias  against  bail 
The  writ  sets  out  that  by  the  consideration  of  the  common  pleas 
division  of  this  court,  on  the  twenty-fifth  day  of  December,  1900, 
the  plaintiff  recovered  judgment  against  Torrey  E.  Wardner  for 
the  sum  of  two  hundred  and  fifty  dollars  and  costs;  and  that,  al- 
though execution  has  been  issued  on  said  judgment,  it  still  re- 
mains unsatisfied,  and  the  officer  to  whom  the  execution  was  di- 
rected has  returned  thereon  that  he  could  not  find  either  the  body 
or  the  estate  of  the  said  Torrey  E.  Wardner  whereon  to  levy  the 
same.  Wherefore,  he  brings  this  action  against  the  defendant, 
who  became  bail  for  the  said  Torrey  B.  Wardner  on  the  original 
writ  in  the  action  aforesaid. 

•*''  To  this  action  the  defendant  files  a  plea  in  which  he  sets 
out  that  the  plaintiff  ought  not  to  have  his  execution  against 
him,  because  he  says  that  the  said  Torrey  E.  Wardner,  after  the 
recovery  of  the  judgment  aforesaid  and  before  the  issuing  of  the 
writ  in  this  case,  to  wit,  on  the  nineteenth  day  of  January,  1901, 
being  bankrupt  and  insolvent,  did  file  his  petition  for  relief  as  a 
bankrupt  in  the  district  court  of  the  United  States  for  the  dis- 
trict of  Massachusetts,  and  was,  on  said  nineteenth  day  of  Janu- 
ary, adjudged  to  be  bankrupt  and  insolvent,  and  that  he  after- 
ward entered  into  a  composition  with  his  creditors,  which  was 
duly  accepted  by  a  majority  of  those  whose  claims  have  been  al- 
lowed, which  composition,  on  the  eleventh  day  of  June,  1901,  was 
duly  confirmed  by  said  United  States  district  court.  The  plea 
also  sets  out  that  on  said  eleventh  day  of  June  said  Torrey  E. 
Wardner  filed  his  petition  for  discharge  from  all  provable  debts 
existing  at  the  time  when  his  petition  for  relief  was  filed,  of 
which  said  provable  debts  the  judgment  mentioned  in  said  writ 
was  one,  and  that  a  decree  was  thereupon  duly  entered  in  said 
United  States  district  court  discharging  the  said  Torrey  E. 
Wardner  from  all  of  his  debts  outstanding  at  the  time  of  the 
filing  of  his  petition  for  relief.  Wherefore,  the  defendant  in 
this  case  prays  judgment  if  the  plaintiff  ought  to  have  his  exe- 
cution against  him,  etc. 

To  this  plea  the  plaintiff  demurs,  on  the  grounds  (1)  that 
the  discharge  in  bankruptcy  of  the  said  Torrey  E.  Wardner  does 
not  release  the  defendant;  and  (2)  that  the  debt  upon  which  the 
present  action  is  based  is  not  one  dischargeable  in  bankruptcy, 
because  said  debt  is  founded  upon  a  judgment  obtained  in  an 


Feb.  1902.]  McDonald  v.  Brown.  661 

action  of  trespass  on  the  case  for  libel,  and  was  obtained  before 
the  said  Wardner  filed  his  petition  in  bankruptcy. 

Chapter  3,  section  17  of  the  United  States  bankruptcy  law  of 
1898  provides  that  "a,  discharge  in  bankruptcy  shall  release  a 
bankrupt  from  all  of  his  provable  debts  except  such  as  (1)  are 
due  as  a  tax  levied  by  the  United  States,  the  state,  county,  dis- 
trict, or  mimicipality  in  which  he  resides;  (2)  are  judgments  in 
actions  for  frauds,  or  obtaining  property  by  false  **®  pre- 
tenses or  false  representations,  or  for  willful  and  malicious  in- 
juries to  the  person  or  property  of  another;  (3)  have  not  been 
duly  scheduled  in  time  for  proof  and  allowance,  with  the  name 
of  the  creditor,  if  known  to  the  bankrupt,  unless  such  creditor 
had  notice  or  actual  knowledge  of  the  proceedings  in  bank- 
ruptcy; or  (4)  were  created  by  his  fraud,  embezzlement,  misap- 
propriation or  defalcation  while  acting  as  an  officer,  or  in  any 
fiduciary  capacity.'' 

The  only  question  raised  by  the  pleadings  is  whether  the  dis- 
charge in  bankruptcy  of  said  Torrey  E.  Wardner  released  him 
from  the  judgment  debt  above  mentioned.  The  answer  to  this 
question,  of  course,  depends  entirely  upon  the  construction 
which  shall  be  put  upon  the  language  used  in  clause  2  of  said 
section  17,  viz.:  "Or  for  willful  and  malicious  injuries  to  the 
person  or  property  of  another." 

If  a  judgment  in  an  action  for  libel  is  a  judgment  based  on 
willful  and  malicious  injury  to  the  person  of  another,  then  it 
is  within  the  exception,  and  is  not  released  by  the  discharge  of 
the  bankrupt. 

A  libel  is  both  a  public  wrong  and  a  private  wrong.  The- 
remedy  for  the  public  wrong  is  by  indictment  or  other  criminal 
proceedings,  while  the  remedy  for  the  private  wrong  is  by  a 
civil  action  at  Common  law,  which  is  classed  and  known  as  a  tort 
action. 

One  of  the  essential  elements  of  every  libel  is  malice.  And 
no  declaration  which  should  fail  to  charge  that  the  publication 
complained  of  was  malicious  would  state  a  cause  of  action. 
Whether  there  was  actual  malice — that  is,  an  evil  intent  or  mo- 
tive arising  from  spite  or  ill-will — ^in  connection  with  the  pub- 
lication, or  only  the  malice  which  exists  by  implication  of  law 
from  the  publication  of  the  libelous  matter,  is  immaterial  in  sa 
far  as  the  right  of  action  is  concerned.  In  short,  if  the  act  was 
done  without  legal  excuse,  it  was  in  law  a  malicious  act. 

That  the  act  of  publishing  a  libel  is  a  willful  act,  in  the  sense,, 
at  least,  that  it  is  an  act  of  volition  on  the  part  of  the  publisher^ 


662  American  State  Bepobts^  Vol.  91.  [B.  I. 

needs  no  argument.  Every  act  is  prima  fade  an  act  of  Tolition, 
and  must  be  regarded  as  such  until  the  contrary  *^  is  shown. 
And  such  an  act  is  more  than  a  mere  voluntary  one^  for  it  is 
coupled  with  a  means  of  knowledge  of  the  character  of  the  act 
about  to  be  performed  and  an  intention  to  do  it.  Moreover,  as 
said  by  the  court  in  Anderson  v.  How,  116  N.  Y.  342,  22  N.  E. 
697 :  "Willfulness  is  implied  in  maliciousness.'' 

A  libel,  then,  being  a  willful  and  malicious  act,  the  only  re* 
maining  question  is  whether  it  can  be  properly  said  to  be  an 
injury  against  the  person  of  another  so  as  to  come  within  the 
meaning  of  the  language  in  said  section  17  of  the  bankrupt  acL 
If  the  language  "willful  and  malicious  injuries  to  the  person 
of  another''  means  only  physical  injuries  to  his  body,  the  case 
before  us  does  not  fall  within  that  class.  But  if,  on  the  other 
hand,  said  language  is  to  be  taken  in  its  broad  and  general  sense, 
and  as  commonly  understood,  it  does  include  an  injury  caused 
by  libel. 

Wrongs  are  divisible  into  two  classes — ^private  wrongs  and 
public  wrongs.  The  former  are  an  infringement  of  the  private 
or  civil  rights  belonging  to  individuals,  considered  as  individ- 
uals, and  are  therefore  generally  termed  civil  injuries;  while  the 
latter  are  a  breach  and  violation  of  public  rights  and  duties, 
and  are  termed  crimes  and  misdemeanors. 

In  Cooley  on  Torts  (98)  the  learned  author  says:  "A  wrong 
is  an  invasion  of  right,  to  the  damage  of  the  party  who  suffers 
it.  It  consists  in  the  injury  done,  and  not  commonly  in  the 
purpose  or  mental  or  physical  capacity  of  the  person  or  agent 
doing  it.  It  may  or  may  not  have  been  done  with  bad  motive; 
the  question  of  motive  is  usually  a  question  of  aggravation  only. 
Therefore,  the  law  in  giving  redress  has  in  view  the  case  of  a 
party  injured  and  the  extent  of  his  injury,  and  inakes  what  he 
suffers  the  measure  of  compensation." 

^'In  its  most  usual  sense,"  according  to  Mr.  Blackstone  (3 
Blaekstone's  Commentaries,  158),  'Vrong  signifies  an  injury 
committed  to  the  person  or  property  of  another  or  to  his  relative 
rights  unconnected  with  contract;  and  these  wrongs  are  commit- 
ted with  or  without  force." 

In  view  of  these  definitions,  we  think  it  is  clear  that  a  ••• 
libel  is  a  wrong  and  injury  committed  against  the  person  of  an- 
other. As  a  part  of  the  right  of  personal  security,  the  preser- 
vation of  every  person's  good  name  from  the  vile  arts  of  detrac- 
tion is  justly  included,  and  for  a  violation  of  this  right  ample 
remedies  are  provided. 


JFeh.  1902.]  McDonald  v.  Bbowv.  668 

.  The  law^  whicli  is  supposed  to  be  good  common  sense  crystal- 
lizei,  looks  upon  and  treats  a  person's  character  as  an  insepara* 
He  part  of  the  person  himself.  If  that  is  injured^  he  is  neces- 
sarily injured ;  if  that  is  wronged,  he  is  wronged.  Indeed,  it  is 
'frequently  said,  and  with  much  truth,  that  '^character  makes 
the  man/*  And  in  this  connection  we  may  say  that  it  is  diflB- 
<5ult  to  conceive  of  a  greater  injury  which  could  he  done  to  a 
person  than  to  wrongfully  aad  maliciously  tarnish  or  blacken 
and  destroy  his  good  character  in  the  community  where  he  lives. 
Wounded  feelings,  mental  anguish,  loss  of  social  position  and 
standing,  personal  mortification  and  dishonor,  are  clearly  in- 
juries that  pertain  to  the  person.  In  so  far  as  we  are  aware, 
injuries  to  the  character  are  always  classed  in  the  law  with  in- 
juries to  the  person. 

Under  the  Code  of  Civil  Procedure  of  the  state  of  New  York, 
libel  and  slander  are  included  in  injuries  to  the  person:  See 
Colwell  v.  Tinker,  66  App.  Div.  20,  72  N.  Y.  Supp.  606. 

The  policy  of  the  bankrupt  law  is  not  to  relieve  an  insolvent 
debtor  from  liabilities  arising  out  of  his  fraud  or  other  wrong- 
doing, but  to  relieve  him  from  his  debts  and  obligations  which 
were  honestly  contracted  and  incurred,  but  which,  because  of 
misfortune  of  some  sort,  he  has  become  unable  to  meet.  To 
hold  otherwise,  as  it  seems  to  us,  would  be  to  make  the  law  an 
instrument  of  wrong  and  oppression.  Where,  therefore,  as  in 
the  case  before  us,  a  judgment  has  been  obtained  on  a  right 
growing  out  of  willful  and  malicious  injury  to  the  person  of  the 
plaintifiF,  the  discharge  of  the  debtor  in  bankruptcy  does  not,  in 
our  opinion,  have  the  effect  to  relieve  him  from  such  judgment. 

While  no  case  has  been  cited  by  counsel,  nor  have  we  been  able 
to  find  any,  in  which  the  particular  question  here  raised  was  in- 
volved, we  have  found  several  which  are  closely  analogous  ^^^ 
and  which  strongly  confirm  us  in  the  view  which  we  have  taken 
of  the  statute  aforesaid.    We  will  refer  to  a  few  of  them. 

Disler  v.  McCauley,  35  Misc.  Rep.  411,  71  N.  Y.  Supp.  949, 
decided  in  July,  1901,  was  a  case  for  breach  of  promise  of  mar- 
riage in  which  seduction  and  the  birth  of  a  child  were  proved. 
The  defendant,  after  judgment  against  him,  went  into  bank- 
ruptcy and  obtained  his  discharge.  He  then  filed  a  motion  for 
the  canceling  and  discharge  of  the  judgment. 

Dickey,  J.,  in  denying  the  motion,  said :  *'While  in  form  and 
in  name  this  action  was  one  for  breach  of  promise  to  marry,  the 
complainant  properly  included  an  allegation  of  seduction  under 
promise  of  marriage.    Proof  was  given  of  the  seduction  and 


664  American  State  Kbports,  Vol.  91.  [R.  I. 

birth  of  a  child,  and  damages  were  given  in  the  sum  of  three 
thousand  dollars.  It  may  fairly  be  assumed  that  at  least  a 
part  of  these  damages  included  in  the  judgment  herein  grew 
out  of,  and  were  given  because  of,  the  injury  to  the  perFon  cov- 
ered by  the  seduction  part  of  the  complaint.  This  being  so, 
can  it  be  said  that  the  judgment  and  no  part  of  it  is  one  for 
willful  injury  to  the  person?  •  .  ,  .  To  my  mind.  Congress 
never  intended  to  discharge  bankrupts  from  liability  for  dam- 
ages such  as  are  included  in  this  judgment.  The  purpose  of 
the  bankrupt  act  was  to  relieve  failing  honest  debtors  from  their 
money  obligations,  and  not  to  free  tortious  debtors  from  lia- 
bility for  their  wrongs The  spirit  of  the  bankruptcy 

law  is  to  govern.  This  bankruptcy  proceeding  was  evidently 
taken  to  discharge  this  very  judgment,  because  the  bankrupt 
owed  practically  nothing  besides.  There  would  be  little  use 
in  bringing  actions  of  this  character  if  the  judgment  obtained 
might  be  speedily  discharged  by  going  through  the  form  of  bank- 
ruptcy proceedings.    This  should  not  be  encouraged.'* 

In  the  case  of  In  re  Preche,  109  Fed.  620,  decided  in  June, 
1901,  it  was  held  that  a  judgment  recovered  in  a  court  of  New 
Jersey  for  seduction  of  the  plaintiff's  minor  daughter,  which 
must  be  based  on  loss  of  services,  but  also  includes  damages  for 
personal  injuries  to  the  plaintiflE  through  being  subjected  to 
mental  anguish,  disgrace,  etc.,  is  one  for  a  '^willful  *"^*  and  ma- 
licious injury  to  the  person  or  property  of  another''  within  the 
meaning  of  the  bankruptcy  act  of  1898,  and  is  not  released  by 
a  discharge  of  the  defendant  in  bankruptcy.  Eirkpatrick,  J., 
in  delivering  the  opinion  of  the  court,  said :  'TJntil  the  daughter 
attains  the  age  of  twenty-one  years,  this  right  to  her  services  is 
a  property  right  which  the  father  is  entitled  to  enjoy  without 
molestation;  and  any  unlawful  act  which  hinders  him  from 
availing  himself  of  the  benefits  of  this  right  or  making  such 
disposition  of  it  as  he  sees  fit  is  an  interference  for  which  he  is 
entitled  to  recover  damages,  as  for  an  injury  to  his  property. 
But,  as  was  said  by  Jackson,  J.,  in  Barbour  v.  Stephenson, 
32  Fed.  66,  *the  plaintiff  goes  through  the  form  of  showing 
that  he  was  entitled  to  the  daughter's  services  in  order  to  reach 
the  higher  plane  of  wrong  and  injury  for  which  he  was  en- 
titled to  compensation.'  Therefore,  upon  the  foundation  of 
loss  of  services,  there  has  been  built  up  a  right  of  the  parent 
to  recover  in  such  actions  damages  for  the  personal  injuries 
inflicted  upon  him  by  the  act  of  seduction,  and  to  receive  com- 
pensation for  being  thereby  subjected    to    mental    anguish. 


Feb,  1902.]  McDonald  v.  Brown.  665 

anxiety,  permanent  sorrow,  dishonor  and  disgrace.  The  jury 
is  entitled  to  consider  all  these  injuries  in  assessing  the  plain- 
tiff's damages.  In  this  respect  the  injury  is  to  the  person 
of  the  plaintiflp,  and  the  damages  recovered  are  analogous  to 

those  in  an  action  of  slander  or  libel The  act  was  im- 

lawful,  wrongful,  and  tortious,  and,  being  willfully  done,  it 

was   in  law  malicious 'Malice,'  in  law,  simply  means 

a  depraved  inclination  on  the  part  of  a  person  to  disregard 
the  rights  of  others,  which  intent  is  manifested  by  his  injuri- 
ous  acts I  am  of  the  opinion  that  the  discharge  of 

the  bankrupt  does  not  release  him  from  the  judgment  ob- 
tained by  Charles  T.  Combs,  for  the  nonpayment  of  which 
Freche  is  in  custody,  because  the  same  is  a  judgment  for  will- 
ful and  maUeious  injuries  to  the  person  or  property  of  an- 
other and  as  such  excepted  by  subsection  2  of  section  17  of 
the  bankruptcy  act."  To  the  same  effect  is  In  re  Meples,  105 
Fed.  919.  See,  also.  In  re  Hirschman,  104  Fed.  69,  4  Am. 
Bankr.  Rep.  715. 

S88  That  the  cause  of  action  in  the  case  is  not  so  far  merged 
in  the  judgment  as  to  prevent  its  being  shown,  where  the  de- 
fendant claims  that  he  is  discharged  therefrom  in  bankruptcy, 
see  Young  v.  Grau,  14  B.  I.  340. 

Most  of  the  cases  relied  on  by  defendant's  counsel  in  sup- 
port of  the  demurrer  are  cases  under  the  bankruptcy  law  of 
1867,  which  was  materially  different  from  the  present  law  in 
regard  to  the  matter  here  involved,  and  hence  they  are  not 
controlling. 

Demurrer  sustained,  and  case  remanded  for  further  pro- 
ceedings. 


Afi  Action  for  a  Lihel  or  Slander  is  an  action  for  a  personal  injury^ 
the  effect  of  the  wrong  on  the  estate  of  the  injured  person  being 
merely  incidental:  Noonan  v.  Orton,  34  Wis.  259,  17  Am.  Bep.  441. 
In  this  ease  it  is  held  that  a  right  of  action  for  malicious  abuse  of 
process  does  not  pass  to  the  assignee  in  bankruptcy.  A  transfer  of 
property  pending  an  action  of  slander,  with  an  intent  to  defeat  any 
judgment  that  may  be  recovered  therein/ is  fraudulent:  Chalmers  v» 
Sheehy,  182  Oal.  459,  84  Am.  St.  Bep.  62,  04  Pac  709. 


GASES 


SUPREME   COURT 


SOUTH  DAKOTA- 


STATE  V.  CADDY. 

[16  a  Dak.  167,  87  N.  W.  927.] 

FOBBCEB  JEOPABDT.—An  Acquittal  of  an  Aannlt  with  a 

deadly  weapon,  with  an  intent  to  rob,  is  not  a  bar  to  a  prosectftion  for 
robbery,  the  two  offenses  being  a  part  of  one  transaction,  (pp.  670 
671.) 

WITNESS.— If  tbo  Impeadunent  of  a  prosecnting  witness  is 
attempted  by  showing  contradictory  statements  oat  of  court,  tho 
state  may  show  that  prior  to  snch  statements  he  made  others  eott- 
sistent  with  his  testimony  at  the  trial,     (pp^  672-674.) 

Frawlqr  &  Laffey^  for  the  plaintiff  in  error. 

John  L.  Pyle,  attorney  general,  S.  C.  Polly,  state's  attorney^ 
and  W.  O.  Bice,  for  the  state. 

*«''  CORSON",  J.  At  the  February  term,  1900,  of  the  cir- 
cuit  court  of  Lawrence  county,  the  defendant  was  indicted 
for  the  crime  of  robbery.  The  indictment  charges  that  the 
plaintiff  in  error  and  one  Thomas  Carberry,  on  the  29th  of 
October,  1899,  did  unlawfully,  wrongfully,  and  feloniously 
take  and  carry  away  from  the  person  of  Michael  B.  Bussell 
the  sum  of  five  dollars,  and  that  said  taking  was  accomplished 
by  means  of  force  and  putting  the  said  Bussell  in  fear  of  an 
immediate  and  unlawful  injury  to  his  person.  To  this  in* 
dictment  the  defendant  entered  the  plea  of  not  guilty,  and  also 
pleaded  that  he  had  been  acquitted  upon  the  trial  of  an  indict- 
ment charging  *••  him  with  an  assault  with  intent  to  com- 
mit a  felony,  other  than  an  assault  with  intait  to  kill,  and 
adding  thereto  the  usual  allegations  that  the  parties  named 

(ees) 


Oct.  1901.]  State  v.  Caddy.  667 

in   tlie  two  indictments  were  tlie  same,  and  tliat  the  transac- 
tion   upon  which  the  second  indictment  was  based  was  the 
same  identical  transaction  as  the  one  upon  which  the  former 
indictment  was  based^  and  that  the  proof  to  sustain  the  indict- 
ment to  which  the  plea  was  interposed  would  be  identically 
the   same  as  that  giren  in  support  of  the  former  indictment. 
To    this  plea  of  former  acquittal  the  state  interposed  a  de- 
mnrrer,  except  to  the  portion  of  the  plea  alleging  that  the 
evidence  would  be  the  same^  which  allegation  was  denied.    The 
court  sustained  the  demurrer,  and  the  plaintrfiE  in  error  was 
thereupon  tried  upon  the  indictment  for  robbery  and  con- 
victed, and  has  brought  the  case  to  this  court  by  writ  of  error. 
The  principal  question  presented  to  this  court  for  review  is 
as  «to  the  rulings  of  the  court  in  sustaining  the  demurrer  to 
the  plea  of  former  acquittal.    The  indictment  under  which 
the  plaintiff  in  error  was  tried  and  conyicted  was  based  upon 
section  6481  of  the  Compiled  Laws,  which  reads  as  follows: 
''Bobbery  is  a  wrongful  taking  of  personal  property  in  the 
possession  of  another,  from  his  person  or  immediate  presence, 
and  against  his  will,  accomplished  by  means  of  force  or  fear." 
The  indictment  under  which  he  was  tried  and  acquitted  was 
based  upon  section  6491  of  the  Compiled  Laws,  which  reads 
as  follows:  "Every  person  who  shoots  or  attempts  to  shoot 
at  another  with  any  kind  of  firearm,  airgon,  or  other  means 
whatever,  or  commits  any  assault  or  battery    upon    another 
by  means  of  any  deadly  weapon,  or  by  such  other  means  or 
force  as  was  likely  to  produce  death,  with  intent  to  commit  a 
felony  other  than  assault  with  intent  to  kill,  or  in  resisting 
the  execution  of  any  legal  process,  is  punishable  by  imprison- 
ment in  the  state  prison  not  exceeding  ten  years/'    It  is  con- 
tended on  the  part  of  the  plaintiff  in  error  that,  having  been 
acquitted  *^  of  the  offense^  charged  in  the  former  indictment, 
he  could  not,  under  the  constitution  of  this  state,  again  be 
tried  upon  the  second  indictment,  and  that  the  court  there- 
fore erred  in  sustaining  the  demurrer  of  the  state  to  his  plea 
in  bar.     Section  9,  article  6,  of  the  constitution  of  this  state 
reads  as  follows :  'TTo  person  shall  be  compelled,  in  any  crimi- 
nal case,  to  give  evidence  against  himself  or  to  be  twice  put 
in  jeopardy  for  the  same  offense.*'    A  similar  provision  is 
found  in  all,  or  nearly  all,  of  the  constitutions  of  the  several 
states,  and  tiie  decisions  construing  the  same  are  very  numer- 
ous and  somewhat  conflicting,  and  we  shall  not  attempt  to 
review  them  in  this  opinion.    The  rule  applicable  to  this  class 


668  American  State  Eeports^  Vol.  91.     [S.  Dakota, 

of  cases,  in  our  opinion,  is  clearly  stated  by  Gray,  J.,  speak- 
ing for  the  supreme  court  of  Massachusetts,  in  Morey  v.  Com- 
monwealth, 108  Mass.  433.  He  says:  *'A  conviction  or  ac- 
quittal upon  one  indictment  is  no  bar  to  a  subsequent  convic- 
tion and  sentence  upon  another,  unless  the  evidence  required 
to  support  a  conviction  upon  one  of  them  would  have  been 
suflBcient  to  warrant  a  conviction  upon  the  other.  The  test 
is  not  whether  the  defendant  has  already  been  tried  for  the 
same  act,  but  whether  he  has  been  put  in  jeopardy  for  the  same 
offense.  A  single  act  may  be  an  offense  against  two  statutes, 
and,  if  each  statute  requires  proof  of  an  additional  fact  which 
the  other  does  not,  an  acquittal  or  conviction  under  either 
statute  does  not  exempt  the  defendant  from  prosecution  and 
punishment  under  the  other.*'  In  People  v.  Bentley,  77  Cal. 
7,  11  Am.  St.  Eep.  225,  18  Pac.  799,  the  defendant  was  tried 
and  convicted  of  an  assault  with  a  deadly  weapon  under  an 
information  charging  him  with  an  assault  with  intent  to  com- 
mit murder.  He  was  afterward  indicted  for  an  attempt  to 
commit  robbery,  and  upon  that  indictment  he  sought  to  prove 
that  he  had  been  convicted  of  the  former  offense,  as  a  bar  to 
the  action,  but  the  trial  court  excluded  this  evidence.  It 
seemed  to  have  been  assumed  in  the  opinion  of  the  appellate 
*''®  court  that  the  parties  were  the  same,  and  that  the  acts 
constituting  the  two  offenses  were  substantially  the  same,  and 
were  sustained  by  substantially  the  same  evidence,  but  the 
ruling  of  the  court  below  was  sustained  by  the  supreme  court. 
In  the  opinion  the  court  says :  "The  evidence  offered  tended  to 
show  that  he  had  been  convicted  of  an  assault  with  a  deadly 
weapon  under  an  information  charging  an  assault  with  intent 
to  commit  murder.  It  is  plain  that  the  defendant  had  not 
formerly  been  convicted  of  an  offense  for  which  he  could  have 
been  or  was  tried  and  convicted  on  the  information  charging- 
the  offense  of  which  he  here  stands  convicted.  *It  is  believed 
that  no  well-considered  case  can  be  found  where  a  puttinsr 
in  jeopardy  for  one  act,  or  a  conviction  for  one  act,  was  held 
to  bar  a  prosecution  for  another  separate  and  distinct  one, 
merely  because  they  were  so  closely  connected  in  point  of 
time  that  it  is  impossible  to  separate  the  evidence  relating 
to  them' :  Teat  v.  State,  63  Miss.  456,  24  Am.  EqE>.  708.  Ac- 
cording to  the  testimony  in  this  case,  the  first  thing  done  by 
the  defendant  and  his  confederate  was  an  attempt  to  in- 
timidate and  rob.  The  next  was  an  attack  with  a  deadly 
weapon.    It  cannot  be  law  that  a  man  having  assaulted   an- 


Oct.  1901.]  Statb  v.  Caddy.  669 

other  with  a  deadly  weapon,  and  having  also  attempted  before 
that  to  rob  can  escape   punishment   for  the   attempt  to   rob 
because  of  a  conviction  for  assault  with  a  deadly  weapon.    If 
the   offenses  do  not  possess  the  same  elements^  although  both 
relate  to  the  same  transaction,  it  would  seem  that  both  may 
be  punished.    This  view  of  the  law  seems  to  have  been  taken 
by   the  supreme  court  of  this  state  in  the  case  of  People  v. 
Majors,  65  CaL  138,  52  Am.  Rep.  295^  3  Pac.  597,  where  many 
authorities  bearing  upon  the  matter  in  hand  are  cited  and  dis- 
cussed.   The  offense  of  which  the  defendant  was  first  con- 
victed was  an  effort  to  injure  the  person   of   the   prosecutor 
Tvith  a  deadly  weapon.    That  of  which  he  was  last  convicted 
was  an  attempt  ^'^^  to  take  away  the  goods  of  the  prosecutor 
from  his  person  by  intimidation  or  violence.    The  essential 
elements  of  the  two  offenses  are  not  the  same.'*    In  State  v. 
Elder,  65  Ind.  282,  32  Am.  Rep.  69,  the  supreme  court  of  that 
state,  in  discussing  the  question  we  are  now  considering,  says : 
*'The  English  rule  is  that,  when  the  facts  necessary  to  convict 
upon  the  second  prosecution  would  necessarily  have  convicted 
on  the  first,  a  final  judgment  on  the  first  prosecution  will  be 
a  bar  to  the  second;  but  if  the  facts  which  will  convict  on 
the  second  prosecution  would  not  necessarily  have  convicted 
on  the  first,  then  the  first  will  not  be  a  bar  to  the  second, 
although  the  offenses  charged  may  have  been  committed  by 
ihe  same  state  of  facts;  and  we  believe  this  rule  is  valid  in 
all  the  states  of  the  Union."    The  court  in  its  opinion  further 
says :  'fBut  when  the  same  facts  constitute  two  or  more  offenses, 
wherein  the  lesser  offense  is  not  necessarily  involved  in  the 
greater,  and  when  the  facts  necessary  to  convict  on  the  second 
prosecution  would  not  necessarily  have  convicted  on  the  first, 
then  the  first  prosecution  will  not  be  a  bar  to  the  second,  al- 
though the  offenses  were  both  committed  at  the  same  time 
and  by  the  same  acf     This  is  cited  with  approval  by  the 
supreme  court  of  California  in  the  case  of  People  v.  Majors, 
65  Cal.  138,  52  Am.  Eep.  295,  3  Pac.  597.     In  the  case  of 
Commonwealth  v.  Eoby,  12  Pick.  496,  Shaw,  C.  J.,  says:  "It 
must  therefore  appear  to  depend  upon  the  facts  so  combined 
and  charged  as  to  constitute  the  same  legal  offense  or  crime. 
It  is  obvious,  therefore,  that  there  may  be  a  great  similarity 
in  the  facts  where  there  is  a  substantial  legal  difference  in  the 
nature  of  the  crimes;  and,  on  the  contrary,  there  may  be  con- 
siderable diversity  of  circumstances  where  the  legal  character 
of  the  offense  is  the  same — as  where  most  of  the  facts  are  iden-* 


670  American  State  Eeports,  Vol.  91.     [S.  Dakota, 

tical,  but  by  adding,  withdrawing,  or  changing  some  one  fact 
the  nature  of  the  crime  is  changed;  as  where  one  burglary  is 
charged  as  a  burglarious  breaking  and    stealing    of    certain 
goods,  *^  and  another  is  a  burglarious  breaking  with  intent 
to  steal.    These  are  distinct  offenses:  Eex  ▼.  Vandercomb,  2 
Leach,  708.     So,  on  the  other  hand,  where  there  is  a  diversity 
of  circumstances,  such  as  time  and  place,  where  the  time  and 
place  are  not  necessary  ingredients  in  the  crime,  still  the  of- 
fenses are  to  be  regarded  as  the  same.    In    considering    the 
identity  of  the  offense,  it  must  appear  by  the  plea  that  the  of- 
fense charged  in  both  cases  was  the  same  in  law  and  in  fact. 
The  plea  will  be  vicious  if  the  offenses  charged  in  the   two 
indictments  be  perfectly   distinct  in  point   of  law,   however 
nearly  they  may  be  connected  in  fact.*'    Further  along  in  the 
opinion  the  learned  judge  says:  'TJnless  the  first  of  the  two 
indictments  was  such  as  the  prisoner  might  have  been  con- 
victed upon  by  proof  of  the  facts  contained  in  the  second^  an 
acquittal  or  conviction  on  the  first  can  be  no  bar  to  the  sec- 
ond.*'   As  bearing  upon  this  subject,  see  State  v.  Stewart,  11 
Or.  62,  238,  4  Pac.  128 ;  State  v.  Gapen,  17  Ind.  App.  624,  45 
N.  E.  678 ;  Hilands  v.  Commonwealth,  111  Pa.  St.  1,  5G  Am. 
Rep.  235,  6  Atl.  267;  State  v.  Magone,  33  Or.  670,  56  Pac. 
648 ;  State  v.  Reiflf,  14  Wash.  664,  46  Pac.  318 ;  State  v.  Gns- 
tin,  152  Mo.  108,  63  S.  W.  421;  Taylor  v.  State,  41  Tex.  Cr. 
Hep.  664,  66  S.  W.  961;  Ford  v.  State  (Tex.),  56  S.  W.  918; 
Wallace  v.  State,  41  Fla.  647,  26  South.  713 ;  Burks  v.  State, 
24  Tex.  App.  326,  6  S.  W.  300 ;  Teat  v.  State,  63  Miss.  439, 
24  Am.  Eep.  708;  Comp.  Laws,  sees.  7308-7311. 

It  will  be  observed  in  the  case  at  bar  that  the  two  indict- 
ments are  based  upon  two  distinct  and  independent  statutes, 
and  that  the  offenses  charged  are  of  an  essentially  different 
character.  In  the  indictment  upon  which  the  plaintiff  in  error 
was  convicted  he  is  charged  with  the  crime  of  robbery,  in 
taking  from  the  person  of  Michael  B.  Bussell,  in  his  immediate 
presence  and  against  his  will,  by  means  of  force  and  fear,  a 
certain  sum  of  money.  No  assault  is  charged  in  the  indict* 
ment,  nor  was  it  essential  to  prove  an  assault  with  a  deadly 
weapon  in  order  to  secure  the  conviction  of  the  accused.  In 
the  ^'^  former  indictment,  upon  the  trial  of  which  he  was 
acquitted,  he  is  charged  with  assault  and  battery  committed 
upon  the  person  of  Michael  B.  Bussell  by  means  of  a  deadly 
weapon,  with  intent  to  rob  him.  It  is  quite  certain  under  that 
indictment  the  plaintiff  in  error  could  not  have  been  convicted 


Oct  1901.]  Statb  v.  Caddy.  671 

of  the  crime  of  robI>ery.  It  is  strenuoudy  contended  on  the 
part  of  the  plaintiff  in  error  that  the  offense  of  an  assault  with 
intent  to  rob  is  necessarily  included  in  the  indictment  for 
robbery,  and  that  had  he  been  properly  tried  under  that  in- 
dictment he  might  have  been  acquitted  of  the  crime  of  robbery, 
but  convicted  of  an  assault  with  intent  to  rob,  under  the  pro- 
visions of  section  7429  of  the  Compiled  Laws,  which  reads  as 
follows:  '"The  jury  may  find  the  defendant  guilty  of  any  of- 
fense, the  commission  of  which  is  necessarily  included  in  that 
with  which  he  is  charged  in  the  indictment,  or  with  an  at- 
tempt to  commit  the  attempt  [offense]."  But  we  are  of  the 
opinion  that  this  view  cannot  be  sustained,  for,  as  before 
stated,  no  assault  is  charged  in  the  indictment,  and  none  seems 
10  be  necessary  to  constitute  the  offense.  But  in  the  indictment 
for  an  assault  with  intent  to  commit  felony,  it  is  essential 
that  the  assault  not  only  be  alleged,  but  it  must  be  alleged 
as  having  been  committed  by  the  use  of  a  deadly  weapon,  or 
by  means  likely  to  produce  death,  or  the  assault  must  have 
been  made  while  resisting  the  execution  of  legal  process.  It 
will  be  seen  that  the  offenses  charged  in  the  two  indictments 
we  are  considering  not  only  arose  under  different  statutes,  but 
that  each  statute  requires  proof  of  an  additional  fact  which 
the  other  does  not.  Under  the  former  indictment  proof  of  an 
assault  with  a  dangerous  weapon,  or  by  means  likely  to  pro- 
duce death,  or  that  the  assault  was  made  while  resisting  the 
execution  of  legal  process,  was  essential  and  necessary  in  order 
to  convict  the  defendant,  but  it  was  not  necessary  to  prove 
that  he  actually  committed  the  offense  of  robbery,  while  in 
the  indictment  under  *''*  which  he  was  convicted  it  was  es- 
sential to  allege  and  necessary  to  prove  that  he  actually  com- 
mitted the  offense  of  robbery  by  taking  something  of  value 
from  the  person  or  in  the  presence  of  the  party  against  his 
will,  accomplished  by  means  of  force  or  fear.  In  other  words, 
as  said  by  the  court  in  People  v.  Bently,  77  Cal.  7,  11  Am. 
St.  Bep.  225,  18  Pac.  799,  one  statute  provides ,  punishment 
for  an  assault  upon  the  person,  and  the  other  for  taking  per- 
sonal property  wrongfully  from  the  person  or  from  his  imme- 
diate presence.  It  is  scarcely  necessary  to  state  that  for  the 
purpose  of  this  plea  it  is  immaterial  whether  the  plaintiff  in 
error  was  acquitted  or  convicted  under  the  former  indictment, 
as  the  same  rule  applies  to  either  case  Comp.  Law,  sec. 
7310.  After  a  careful  examination  of  this  question,  we  are 
of  the  opinion  that  the  court  was  clearly  right  in  sustaining 


672  American  State  Seports^  Vol.  91.     [S.  Dakota, 

the  demurrer  of  the  state  to  the  plea  of  the  plaintiff  in  error 
interposed  in  this  case. 

The  record  presents  another  important  question  for  our  de- 
cision.    On  the  trial   Michael    E.   BusseU,  the    prosecuting 
witness,  was  asked  on  cross-examination  if  he  had  not  stated 
after  the  alleged  robbery,  to  certain    persons   named    in  the 
question,  that  he  could  not  identify  the  persons  who  committed 
the  robbery;  and  he  partially  admitted  that  he  had  done  8o, 
stating  his  reasons  therefor.     The  accused  thereupon  introduced 
witnesses  who  testified  that  said  Bussell  had  made  contradictory 
statements  out  of  court,  as  to  which  he  had  been  interrogated. 
The  state,  in  rebuttal,  over  the  objection  of  counsel  for  de- 
fendant, proved  by  said  Bussell  and  other  persons  that  prior 
to  the  declarations  made  by  him  called  out  by  his  cross-ex- 
amination, he  had  stated  that  he  did  recognize  the  persons 
charged  with  the  robbery  as  the  parties  who  committed  the 
same.    The  evidence  tended  to  prove  that  these  declarations 
of  the  witness  made  in  corroboration  of  the  testimony  given 
by  him  on  the  trial  were  made  on  the  morning  or  the  fore- 
noon of  the  ^alleged  robbery,  and  prior  to  '^'^^  the  statements 
called  out  on  the  cross-examination.    The  plaintiff  in  error 
contends  that  the  admission  of  the  evidence  of  the  prosecuting 
witness  on  his  re-examination  by  the  state,  and  the  evidence 
given  by  the  witnesses  called  by  the  state  to  prove  the  mak- 
ing of  such  statements,  constitute  error  for  which  he  is  en- 
titled to  a  new  trial.    It  is  undoubtedly  true  that  this  evi- 
dence could  not  have  properly  been  admitted   had   it   been 
offered  by  the  state  in  making  out  its  case  in  chief,  but  an  ex- 
ception seems  to  have  been  recognized  and  such  evidence  ad- 
mitted when  it  is  offered  in  rebuttal  of  evidence  called  out 
on  cross-examination,  tending  to  prove  that    a    witness    has 
made  statements  out  of  court  contradicting  those  made  by  him 
on  the  trial.     The  authorities  are  not  in  harmony  upon  this 
question,  the  courts  of  some  states  holding  that  such  evidence 
is  admissible,  while  in  others  the  contrary  doctrine  prevails. 
The  courts  of  Tennessee,   Indiana,   Maryland,   Massachusetts, 
Pennsylvania,  and  the  supreme  court  of  the  United  States  hold 
such  evidence  admissible:  Glass  v.  Bennett,  89  Tenn.  481,  14 
S.  W.  1085 ;  Commonwealth  v.  Wilson,  1  Gray,  337 ;  Common- 
wealth V.  Jenkins,  10  Gray,  485;  Thompson  v.  State,  38  Ind. 
39 ;  Coffin  v.  Anderson,  4  Blackf .  398 ;  Cooke  v.  Curtis,  6  Har. 
&  J.  93;  Parker  v.  Gonsalus,  1  Serg.  &  R.  636;  Henderson 
V.  Jones,  10  Serg.  &  R.  322,  13  Am.   Dec    676;    Conrad   v. 


Oct.  1901.]  Statb  v.  Caddy.  673 

GriflEy,  11  How.  480.  In  discussing  this  question  the  supreme 
court  of  Tennessee,  in  Glass  v.  Bennett,  89  Tenn.  481,  14  S. 
W.  1085,  lays  down  the  rule  as  follows :  "The  rule  is  that  when 
it  is  attempted  to  be  established  that  the  statement  of  a  wit- 
ness on  oath  is  a  recent  fabrication,  or  when  it  is  sought  to 
destroy  the  credit  of  the  witness  by  proof  of  contradictory  repre- 
sentations, evidence  of  his  having  given  the  same  account  of  the 
matter  at  a  time  when  no  motive  existed  to  misrepresent  the 
facts  ought  to  be  received,  because  it  naturally  tends  to  inspire 
confidence  in  the  sworn  ^'^^  statement*^:  Hayes  v.  Cheatham, 
6  Liea,  10.  In  Conrad  v.  GriflEy,  11  How.  480,  the  supreme  court 
of  the  United  States,  aftei"  reviewing  the  authorities,  uses 
the  following  language:  "In  this  court  it  has  been  held  that 
such  evidence  is  not  admissible  if  the  statements  were  made 
subsequent  to  the  contradictions  proved  on  the  other  side: 
Ellicott  V.  Pearl,  10  Pet.  412,  438.  So  far  as  regard?  prin- 
ciple, onie  proper  test  of  the  admissibility  of  such  statements 
is  that  they  must  be  made  at  least  under  circumstances  when 
no  moral  influence  existed  to  color  or  misrepresent  them: 
1  Greenleaf  on  Evidence,  sec.  469;  2  Fothier  on  the  Law  of 
Obligations  or  Contracts,  289;  1  Starkie  on  Evidence,  148; 
1  Phillips  on  Evidence,  308.  But  when  they  are  made  sub- 
sequent to  other  statements  of  a  different  character  as  here,  it 
is  possible,  if  not  probable,  that  the  inducement  to  make  them 
is  for  the  very  purpose  of  counteracting  those  first  uttered: 
Ellicott  V.  Pearl,  10  Pet.  440.  This  impairs  their  force  and 
credibility,  when,  if  made  before  the  others^  they  might  tend 
to  sustain  the  subsequent  evidence  corresponding  with  them: 
Bobb  Y.  Hackley,  23  Wend.  62 ;  2  Phillips  on  Evidence,  446 ; 
1  Oreenleaf  on  Evidence,  sec.  469.'^  The  same  qualification 
is  made  by  the  supreme  court  of  Maryland,  and  we  think  it 
a  proper  qualification  in  this  class  of  cases.  It  seems  to  us 
proper  that,  when  it  is  sought  to  impeach  the  testimony  of 
A  witness  by  showing  that  he  has  made  contradictory  state- 
ments out  of  court,  the  party  calling  such  witness  should  have 
the  right  to  show  that  very  recently  after  the  transaction, 
And  before  such  contradictory  statements  were  made,  he  made 
statements  as  to  the  transaction  consistent  with  the  evidence 
given  by  him  on  the  trial.  The  evidence  introduced  in  this 
<!ase  on  the  part  of  the  state  comes  clearly  within  this  rule, 
and  we  are  of  the  opinion  that  the  court  committed  no  error 
in  admitting  it. 

The  judgment  of  the  court  below  is  affirmed. 

Am.  St.  Rep.,  Vol.  M-43 


674  American  State  Reports^  Vol.  91.     [S.  Dakota, 

A  Conviction  of  an  assault  and  battery,  under  an  inform&tioA 
charging  an  assault  with  intent  to  murder,  is  not  a  bar  to  a  proseen- 
tion  for  an  attempt  to  commit  robbery,  although  both  offenses  rei&t9 
to  the  same  transaction:  People  v.  Bentlej,  77  CaL  7,  11  Am.  St.  Bep. 
225,  18  Pac.  799.  Compare  Wilcox  v.  State,  6  Lea,  571,  40  Am.  Rep. 
53;  and  see  State  v.  Williams,  152  Mo.  115,  75  Am.  St.  Rep.  441,  53 
S.  W.  424;  State  v.  Watson,  20  R.  I.  354,  78  Am.  St.  Eep.  871,  SQ 
Atl.  193;  Stewart  v.  State,  35  Tex.  Cr.  Rep.  174,  60  Am.  St.  Beiw 
35,  32  S.  W.  766;  Stote  v.  Fourcade,  45  La.  Ann.  717,  40  Am.  St.  Kep. 
249,  30  South.  187;  State  v.  Rosenbaum,  23  Ind.  App.  236,  77  Am. 
Rep.  432,  55  N.  E.  110. 


CHAMBERLAIN  v.  WOOD. 

[15  S.  Dak.  216,  88  N.  W.  109.] 

CONSTITUTIONAL  LAW.-The  Bight  of  Suffrage  is  not  • 
natural  or  civil  right,  but  a  privilege  conferred  upon  the  person  hy 
the  constitution  and  the  laws  of  the  state,     (p.  677.) 

CONSTITUTIONAIi  LAW.— Presumptively  a  Stotnte  Is  Validr 

unless  clearly  in  conflict  with  the  constitution,     (p.  677.) 

CONSTITUTIONAL  LAW.— The  Legislature,  just  as  com- 
pletely as  a  constitutional  convention,  represents  the  will  of  the 
people  in  all  matters  left  open  by  the  constitution,     (p.  678.) 

CONSTITUTIONAL  LAW— Restricting  Bi^t  to  Vote.— The 

legislature  may,  by  requiring  the  names  of  all  candidates  for  oifiee 
to  be  printed  upon  the  official  ballot,  deny  the  right  of  voters  to  write 
on  their  ballots  the  names  of  candidates  not  printed  there,     (p.  681.> 

S.  H.  Cranmer,  for  the  appellant. 

No  brief  filed  or  appearance  made  for  the  respondent. 

**•  COESON,  J.  This  is  an  appeal  from  an  order  guff- 
taining  a  demurrer  to  plaintiff's  complaint.  The  appeal  ha» 
been  dismissed  as  to  the  defendants  George  D.  Wood  and  P. 
C.  Hedger,  leaving  the  defendant  E.  H.  Alley  the  only  re- 
spondent. The  action  was  brought  by  the  plaintiff  to  recover 
of  the  defendants  damages  for  unlawfully  depriving  him  of 
the  office  of  county  commissioner  of  Brown  county.  It  is 
alleged  in  the  complaint  that  in  1895-96  the  defendants  Wood 
and  Alley  were  members  of  the  board  of  county  commission- 
ers of  Brown  county,  and  that  the  defendant  Hedger  was  act- 
ing county  auditor  of  said  county;  that  the  defendant  consti- 
tuted the  board  of  canvassers  of  said  county;  that  in  Novem- 
ber. 1895,  an  election  was  held  in  the  various  vojking  precincts 
within  the  first  commissioner  district  in  said  county  for  the 


Nov.  1901.J   '         Chamberlain  «.  Wood.  675 

purpose  of  electing  a  cotmty  commissioner  for  said  district 
for  the  term  commencing  January,  1896;  that  no  certificate 
of  any  person  as  a  candidate  for  the  office  of  county  commis- 
sioner of  said  county  was  filed  in  the  oflBce  of  the  county 
auditor  of  said  county  twenty  days  prior  to  the  election;  that 
at  said  election  the  qualified  electors  of  said  first  commis- 
sioner district  of  said  county  cast  their  ballots  for  this  plaintiff 
and  others  for  the  said  office  of  county  commissioner  by  writ- 
ing upon  the  official  ballot  used  at  said  election  the  follow- 
ing words  and  characters,  to  wit,  "For  county  commissioner  for 
first  commissioner  district,'*  followed  by  the  name  of  the  can- 
didate or  the  person  for  whom  such  elector  **®  desired  to 
vote,  and  by  making  a  cross  at  the  left  of  the  name  of  such 
person  so  written  upon  said  ballots.  The  complaint  then  pro- 
ceeds to  allege  that  the  said  board  refused  to  canvass  the  said 
vote  so  cast  for  commissioner  for  the  first  district,  and  that 
by  reason  thereof  the  plaintiff  was  deprived  of  the  office  to 
which  he  claimed  to  have  been  elected,  and  that  he  suffered 
damages  thereby  to  the  amount  of  five  hundred  and  sixty-four 
dollars,  and  demanded  judgment  against  said  defendants  for 
the  said  amount.  To  this  complaint  the  defendants  interposed 
a  demurrer  on  the  ground  that  the  said  complaint  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  de- 
murrer was  sustained  by  the  trial  court,  and  hence  this  appeal. 
It  will  be  observed  that  the  complaint  distinctly  states  that 
no  certificate  of  nomination  of  the  plaintiff  for  the  office  of 
county  commissioner  was  filed  in  the  office  of  the  county  au- 
ditor within  the  time  prescribed  by  law,  and  that  the  method 
of  voting  for  said  plaintiff  as  county  commissioner  was  by 
writing  his  name  upon  the  official  ballots  used  at  said  election^ 
and  by  making  a  cross  at  the  left  of  his  name  upon  the  said 
ballots.  While  the  trial  court  has  not  stated  the  ground  upon 
which  the  demurrer  was  sustained,  it  seems  to  be  assumed  by 
the  appellant,  and  we  may  presume  that  it  was  made  upon 
the  ground  that  as  no  certificate  of  the  nomination  of  the 
appellant  was  filed  in  the  office  of  the  county  auditor  twenty 
days  before  the  election,  and,  as  his  name  was  not  printed  on 
the  official  ballot,  he  was  not  legally  a  candidate,  and  that  the 
votes  cast  for  him  by  writing  the  description  of  the  office,  his 
name  thereunder,  and  a  cross  at  the  left  thereof,  was  not  a 
compliance  with  the  statute,  and  he  was  not,  therefore,  legally 
elected  to  the  office.  It  is  contended  on  the  part  of  the  appel- 
lant that,  notwithstanding  no  certificate  of  election  was  filed 


C7G  American  State  Reports,  Vol.  91:    [S.  Dakota, 

as  required  by  law^  the  voters  of  that  district  had  the  l^al 
right  to  write  the  designation  of  the  oflSce  and  the  plaintifT^ 
name  thereunder  ^'*®  upon  the  official  ballot,   and  that    he, 
having  received  a  majority  of  the  votes  so  cast  at  said  elec- 
tion, was  legally  entitled  to  the  office,  and  that  by  reason  of 
the  failure  of  tiie  defendants  to  properly  canvass  the  votes  eo 
cast  for  the  plaintiff,  he  is  entitled  to  recover  the  damages 
he   sustained   thereby.    An   important   question   is   therefore 
presented  for  the  determination  of  this  court — namely.  Can  a 
person  be  voted  for  and  elected  to  an  office  under  the  laws  of 
this  state,  who  has  not  filed  a  certificate  of  his  nomination 
in  the  proper  office  within  the  time  prescribed  by  law,   and 
whose  name  is  not  printed  as  a  candidate   upon   the   official 
ballots?    Under  what  is  known  as  the  *' Australian  ballot  law/* 
enacted  by  the  legislature  of  this  state,  and  in  force  at   the 
time  of  the  election  set  out  in  the  complaint,  it  is  provided 
that  an  official  ballot  shall  be  printed  at  the  expense  of  the 
county,  upon  which  the  names  of  all  candidates  for  office,  who 
have  properly  filed  certificates  of  nomination,  shall  be  printed, 
and  the  elector  is  authorized  to  indicate  his  choice  for  snch 
candidate  as  he  may  desire  to  vote  for  by  making  a  cross  at 
the  head  of  the  party  ticket  or  at  the  left  of   the  name    of 
the  candidate  for  whom  he  desires  to  vote.    No  provision  is 
made  in  the  law,  as  it  stood  in  1895,  for  writing  tiie  name  of 
any  person  upon  tiie  ballot.    This  court  has  held  in  a  numbep 
of  cases,  beginning  with  Yallier  v.  Brakke,  7  S.  Dak.  343,  64 
N.  W.  180,  that  the  writing  of  a  name  upon  the  official  baUot 
invalidated  the  same.    In  Parmley  v.  Healey,  7  S.  Dak.  401, 
64  N.  W.  186,  this  court,  speaking  by  Mr.  Justice  Fuller,  says : 
^'And,  moreover,  the  vrriting  of  a  name  upon  a  ticket  identi- 
fies the  voter,  and  invalidates  the  entire  ballot,  and  subjects 
the  one  who  places  it  there  to  a  criminal  prosecution.^    The 
appellant  contends,  however,  that  under   the   constitution    of 
this  state  an  elector  has  the  right  at  any  election  to  vote  for 
any  person  for  an  office  he  may  desire,  and  that  the  act  of 
the  legislature,  if  it  is  to  be  so  construed  as  to  deprive  *^^  the 
elector  of  the  right  to  write  the  name   of  the  candidate  for 
whom  he  desires  to  vote  upon  the  official  ballot,  is  xmcon- 
stitutional.    The  right  of  suffrage  is  not  a   natural   or   civil 
right,  but  a  privilege  conferred  upon  the  person  by  the  con- 
stitution and  the  laws  of  the  state.    Judge  Cooley,  in  his  work 
on  Constitutional  Limitations,  says :  "Participation  in  the  elec- 
tive  franchise   is  a  privilege,  rather   than  a  right,  and  it  is 


Not.  1901.]  CHAifBEBLAiN  V.  Wood.  677 

granted  or  denied  upon  grounds  of  general  policy":  Cooley's 
Constitntional  Lunitations,  6th  ed.,  762.  In  People  ▼.  Barber, 
48  Hun,  198,  the  supreme  court  of  New  York  says :  "The  elec- 
tive suflErage  is  not  a  natural  right  of  the  citizen.  It  is  a 
franchise  dependent  upon  the  law  by  which  it  must  be  conferred 

to  permit  its  exercise It  is    a  political    right,  to    be 

given  or  withheld  at  the  pleasure  of  the  law-making  power  of 
the  sovereignty'':  10  Am.  ft  Eng.  Ency.  of  Law,  2d  ed.,  568. 
The  question,  therefore,  as  to  what  right  an  elector  has  in 
this  state,  must  be  determined  by  an  examination  of  its  con- 
stitution and  laws.  It  is  scarcely  necessary  to  repeat  what 
has  been  frequently  said  by  this  court,  that,  presumptively, 
the  law  enacted  by  the  legislature  is  valid,  and  it  must  be  so 
held  unless  it  is  clearly  in  conflict  with  or  repugnant  to  some 
express  provision  of  the  constitution,  or  the  legislature  has 
been  expressly  inhibited  by  the  constitution  from  enacting  the 
samfi.  Mr.  Cooley,  in  his  work  above  stated,  in  speaking  of 
this  question,  says:  "The  rule  upon  this  subject  appears  to  be 
that,  except  where  the  constitution  has  imposed  limits  upon 
the  legislative  power,  it  must  be  considered  as  practically  ab- 
solute, whether  it  operate  according  to  natural  justice  or  not 

in  any  particular  case The  judiciary  can  only  arrest 

the  execution  of  the  statute  when  it  conflicts  with  the  consti- 
tution  Any  legislative  act  which   does  not  encroach 

upon  the  powers  apportioned  to  the  other  departments  of  the 
government  being  prima  facie  valid  must  be  enforced,  unless 
restrictions  upon  the  legislative  authority  *^  can  be  pointed 
out  in  the  constitution,  and  the  case  shown  to  come  within 
them'':  Cooky's  Constitutional  Limitations,  201,  202. 

With  these  preliminary  observations,  we  will  examine  the 
provisions  of  the  constitution  of  this  state  that  bear  upon  the 
question  of  the  right  of  suffrage.  Section  19,  article  6,  of  the 
constitution  provides:  ^^lections  shall  be  free  and  equal,  and 
no  power,  civil  or  military,  shall  at  any  time  interfere  to  pre- 
vent the  free  exercise  of  the  right  of  suffrage."  Under  these 
provisions  the  elector  cannot  legally  be  physically  restrained 
in  the  exercise  of  his  right  by  either  civil  or  military  authority ; 
nor  can  there  be  inequality,  and  every  voter  shall  have  the 
same  right  as  every  other  voter.  Certainly,  under  the  laws  we 
are  considering,  all  electors  are  vested  with  the  same  rights — 
namely,  the  rights  of  appearing  at  an  election  and  voting  in 
the  manner  prescribed  by  law.  Section  1,  article  7,  provides 
what  shall  constitute  the  qualifications  of  an  elector^  and  one 


678  American  State  Eepobts,  Vol.  91.     [S.  Dakota, 

possessing  these  qualifications^  it  is  declared,  ''shall  he  deemed 
a  qualified  elector  at  such  election.*'  It  will  he  noticed  that 
in  neither  of  these  sections  is  it  provided  when,  how,  where, 
or  under  what  conditions  the  elector  shall  exercise  the  right 
of  suffrage.  The  framers  of  the  constitution  seem  to  have 
designedly  left  the  right  of  suffrage  at  this  point  to  be  regu- 
lated and  governed  by  such  laws  as  the  legislature  might  deem 
proper  to  enact.  The  constitutional  convention  and  tiie  legis- 
lature are  equally  the  representatives  of  the  people,  and  the 
written  constitution  marks  only  the  degree  of  restraint  which, 
to  promote  stable  government,  the  people  impose  upon  them- 
selves; but  whatever  the  people  have  not,  by  their  constitution, 
restrained  themselves  from  doing,  they,  through  their  repre- 
sentatives in  the  legislature,  may  do.  The  legislature,  just  as 
completely  as  a  constitutional  convention,  represents  the  will 
of  the  people  in  all  matters  left  open  by  the  constitution :  -Com- 
monwealth V.  Eecder,  171  Pa.  St.  505,  33  Atl.  67.  *«»  Unless, 
therefore,  the  legislature  is  inhibited  from  enacting  the  law 
we  are  considering,  it  is  as  much  the  will  of  the  people  as 
though  expressed  in  the  constitution.  Let  us  ask,  therefore, 
what  provision  is  there  in  the  constitution  inhibiting  the  law- 
making power  from  providing  when,  how,  and  under  what 
regulations  and  conditions  the  elector  may  exercise  the  right 
of  suffrage*  The  constitution  has  not,  as  we  have  seen,  pre- 
scribed any  conditions  or  rules  governing  the  exercise  of  the 
right;  nor  has  it  inhibited  the  legislature  from  prescribing 
such  rules,  regulations,  and  conditions  as  it  might  deem  proper 
and  for  the  public  interests.  The  law-making  power  has  taken 
the  elector  at  the  point  where  the  constitution  has  left  him, 
and  has  provided  when,  in  what  manner,  and  under  what  re- 
strictions he  may  exercise  the  right  of  suffrage,  and  in  bo  doing 
has  provided :  1.  That  he  must  exercise  that  right  by  using  an 
oflScial  ballot;  2.  That  he  must  designate  in  the  manner  speci- 
fied his  choice  of  candidates  whose  names  are  upon  the  official 
ballot,  and  whose  names  can  only  be  placed  there  by  a  compli- 
ance with  the  law;  3.  It  has,  in  effect,  denied  to  the  elector 
the  right  to  write  the  name  of  a  candidate  for  whom  he  desires 
to  vote  upon  the  official  ballot,  or  otherwise  deface  the  same, 
by  declaring  that  "no  elector  shall  place  any  mark  upon  his 
ballot  by  which  it  may  afterward  be  identified  as  the  one  voted 
by  him.''  The  law,  in  form,  applies  equally  to  all  electors 
without  discrimination,  and  one  elector,  therefore,  possesses  aU 
of  the  rights,  and  no  more,  of  every  other  elector.    The  legia^ 


Kov.  1901.]  Chamberlain  v.  Wood.  670 

lature,  therefore,  having  in  effect  limited  the  right  of  the  elector 
to  voting  for  candidates  whose  names  are  printed  on  the  offi- 
cial ballots,  he  can  only  exercise  the  right  in  the  manner  pre- 
scribed. But  the  elector  is  not  thereby  necessarily  deprived  of 
the  right  of  suffrage,  as  he  has  the  same  right  as  any  other 
elector  to  secure  the  printing  of  the  name  of  his  candidate  *** 
upon  the  official  ballot  in  the  manner  prescribed  by  law — 
namely,  by  nomination  of  some  political  party,  or  by  securing 
the  signatures  of  twenty  electors,  in  the  case  of  a  county  office, 
to  a  certificate.  This  may  occasion  the  elector  some  inconveni- 
ence and  labor,  but  these  constitute  no  objection  to  the  law. 
In  fgict,  the  law  requires  many  acts  to  be  done  by  the  elector 
not  required  under  former  laws,  but  these  requirements  have 
been  generally  held  to  be  constitutional.  We  see  no  reason  why 
the  law  as  laid  down  by  the  courts  in  regard  to  those  require- 
ments should  not  be  applicable  to  this  case. 

The  supreme  court  of  Pennsylvania,  in  Commonwealth  v. 
Eeeder,  171  Pa.  St.  605,  33  Atl.  67,  has  recently  decided  an 
important  constitutional  question  very  much  in  point  in  the 
case  at  bar.  A  law  was  enacted  by  the  legislature  of  that  state 
for  the  election  of  seven  judges  of  the  superior  court,  which 
provided  that  no  elector  should  be  permitted  to  vote  for  any 
number  exceeding  six  of  the  judges  to  be  so  elected.  It  was 
contended  by  certain  electors  that  this  act  was  unconstitutional, 
in  that  it  deprived  the  electors  of  the  right  given  them  by  the 
constitution  to  vote  for  the  entire  seven  judges.  But  the  court 
held  against  this  contention,  and  that  the  law  was  constitu- 
tional. The  court  in  a  very  able  opinion  discussed  the  consti- 
tutional question  at  length,  and  in  the  course  of  the  opinion, 
in  speaking  of  the  will  of  the  people  as  expressed  in  the  act 
of  the  legislature,  says :  ''We  peruse  the  expression  of  their  will 
in  the  statute,  then  examine  the  constitution,  and  ascertain  if 
this  instrument  says  'Thou  shalt  not,*  and,  if  we  find  no  in- 
hibition, then  the  statute  is  the  law  simply  because  it  is  the 
wiU  of  the  people,  and  not  because  it  is  wise  or  unwise.*'  In 
speaking  of  one  possessed  of  all  the  qualifications  of  an  elec- 
tor, the  court  says:  "Then  he  is  an  elector,  and  entitled  to  vote 
as  the  law  may  prescribe.  Being  an  elector,  and  therefore  en- 
titled to  vote  at  all  elections,  the  constitution  of  1874,  as  well 
as  those  which  preceded,  goes  a  step  *^  further,  and  in  sec- 
tion 5,  article  1,  declares:  'All  elections  shall  be  free  and 
equal';  that  is,  the  voter  shall  not  be  physically  restrained  in 
the  exercise  of  his  right  by  either  civil  or  military  authority. 


680  Amebioak  State  Beports^  Vol.  91.     [S.  Dakota^ 


Nop  shall  there  be  inequality.    Every  voter  shall  have  the 
right  as  every  other  voter/*    And  the  court  further  on  in  the 
opinion  says:  ''Can  they   [constitutional  provisions],  by  any 
reasonable  interpretation,  include  an  absolute  right  to  vote  for 
every  candidate  of  the  group  of  candidates  for  the  same  ofiBce? 
.  .  •  .  The  question  now  is  as  to  the  interpretation  to  be  put 
upon  the  language  specifying  the  qualifications  of  the  voter 
who  has  by  law  a  right  to  vote  at  the  election  for  the  candi- 
dates for  this  office.    No  sound  reason  has  been  urged  in  the 
argument  why  we  should  enlarge  the  scope  of  the  words  'shall 
be  entitled  to  vote  at  all  elections'  by  practically  adding,  'also 
for  every  candidate  of  a  group  of  candidates  for  the  same  ofiBce/ 
The  constitution  does  not  so  say  and  has  never  been  interpreted 
to  60  mean.''    It  will  be  seen  that  the  court  in  this  case  goes 
much  further  than  we  are  required  to  go  in  the  case  at  bar. 
There  the  elector  was  limited  by  the  law  to  voting  for  six  can- 
didates out  of  the  seven,  and  it  was  conceded  that,  if  limited 
to  six,  he  might  be  limited  to  a  less  number ;  and  the  court  sus- 
tained the  act  of  the  legislature,  for  the  reason  that  it  was  not 
inhibited  by  the  constitution  from  enacting  the  same.    In  the 
case  at  bar,  as  we  have  seen,  no  elector  is  deprived  of  his  right 
to  vote  for  the  candidate  of  his  choice,  but,  in  order  to  exer- 
cise the  right,  he  must  see  that  the  name  of  his  candidate  is 
upon  the  official  ballot.    We  do  not  feel  called  upon  to  giYC 
the  constitution  of  this  state  a  forced  or  strained  construction 
in  order  to  defeat  a  law  so  beneficial  to  the  people  of  this  state, 
and  80  well '  calculated  to  prevent  fraud,  brib^,  and  corrup- 
tion at  our  elections.    To  construe  the  constitution  as  giving 
the  right  to  the  elector  to  write  upon  the  official  ballot  the 
name  of  any  candidate,  and  to  deny  to  the  legislature  **•  the 
right  to  prescribe  upon  what  conditions  the  elector  may  exer- 
cise the  rig^t  of  suffrage,  would  in  eflfect,  destroy  the  more 
important  features  of  our  election  law  in  securing  the  purity 
of  elections  and  preventing  the  fraud,  bribery,  and  corruption 
at  elections  existing  under   the   former   system;    for,  if  the 
elector  may  write  the  name  of  a  candidate  upon  the  official 
ballot,  this  necessarily    would    constitute    a    "distinguishing 
mark"  and  eliminate  from  our  system  the  secrecy  intended, 
and  thereby  enable  bribery  at  elections  to  be  carried  on  with 
safety.    A  candidate  desiring  to  purchase  a  number   of  votes 
could  easily  arrange  with  the  voters,  as  proof  that  they  had 
complied  with  the  contract  on  their  part,  to  write  on  the  oflfi- 
cial  ballot  the  name  of  John  Jones,  or  any  other  person  agreed 


Kov.  190 L]  Chahbbblain  «•  Wood.  GSl 

upon  for  the  purpose^  for  some  minor  ofiBce.  An  examination 
of  the  ballots  wonld  at  once  show  whether  or  not  the  voters 
had  carried  ont  their  contract.  Again^  one  of  the  most  im- 
portant features  of  the  election  law  is  the  one  requiring  the 
names  of  all  candidates  to  be  certified  as  required  by  law,  and 
printed  upon  the  ofiScial  ballot^  thus  enabling  the  public  to 
investigate  the  moral  character  and  qualifications  of  the  can- 
didate for  the  office  to  which  he  aspires,  and  enable  the  voters 
to  use  such  efforts  as  may  be  necessary  to  defeat  a  dishonest 
or  incompetent  candidate.  Upon  a  careful  consideration  of 
the  question,  we  are  clearly  of  the  opinion  that  the  constitu- 
tion has  not  inhibited  the  legislature  from  requiring  the  names 
of  all  candidates  for  office  in  this  state  to  be  printed  upon  the 
official  ballot,  and,  in  effect,  denying  to  electors  the  right  of 
writing  upon  the  official  ballot  the  name  of  any  candidate. 

The  right  claimed  is,  for  all  practical  purposes,  a  mere  the- 
oretical or  abstract  right.  This  is  apparent  from  the  fact  that, 
though  the  election  law  of  this  state  has  been  in  effect  for 
more  than  ten  years,  this  is  the  first  case,  so  far  as  the  records 
of  this  ^^  court  disclose,  in  which  the  right  has  been  claimed ; 
and  in  this  case  it  appears  from  the  record  that  the  plaintiff 
had  obtained  the  proper  certificate,  but  through  some  inadver- 
tence it  was  filed  witii  the  auditor  one  day  too  late,  hence  his 
name  was  omitted  as  a  candidate  from  the  official  ballot.  We 
have  not  overlooked  the  cases  of  Sanner  v.  Patton,  155  111. 
653,  40  N.  B.  290,  People  v.  Shaw,  133  N.  Y.  493,  31  N.  E. 
512,  Bowers  v.  Smith  (Mo.),  17  S.  W.  761,  and  State  v.  Dillon, 
32  Fla.  545,  14  South.  383,  cited  by  counsel  for  appellant  in 
support  of  his  contention.  But  in  neither  of  these  cases,  ex- 
cept the  one  cited  from  Florida,  was  the  constitutional  ques- 
tion we  have  been  considering  involved,  and  the  only  question 
before  the  court  in  each  of  those  cases  was  whether  or  not  the 
law  under  consideration  authorized  the  writing  of  the  name 
of  the  candidate  upon  the  official  ballot.  The  comments  of 
the  judges,  therefore,  upon  the  constitutionality  of  the  law,  were 
dicta,  simply,  and  not  binding  upon  the  court  in  which  the  de- 
cisions were  rendered,  and  are  entitled  to  very  little  weight  in 
this  court.  In  the  Florida  case  the  supreme  court  of  Florida 
seems  to  have  held  that  part  of  the  law  we  are  considering  un- 
constitutional, but  the  decision  of  that  question  does  not  appear 
to  have  been  required  in  that  case. 

We  do  not  deem  it  necessary  to  consider  on  this  appeal  the 
question  as  to  the  liability  of  the  defendants  to  respond  in  dam- 


682  Akebioak  Statb  Bepobts^  Vol.  91.    [S.  Dakota, 

ages,  assuming  that  the  plaintiff  had  been  legally  elected,  and 
therefore  express  no  opinion  npon  that  question.  It  is  clear, 
however,  that  had  the  proof  entitled  him  to  recover,  he  must,  in 
any  event,  show  tiiat  he  was  legally  elected.  Having  failed  to 
do  this,  the  complaint  fails  to  state  any  cause  of  action,  and  the 
demurrer  was  properly  sustained,  and  the  order  sustaining  the 
same  must  be  affirmed. 

The  decision  of  this  court  in  the  mandamus  proceedings  be- 
tween ^"®  the  same  parties,  reported  in  Chamberlain  v.  Eedger, 
12  S.Dak.  136,  80  K  W.  178,  does  not  in  any  manner  affect 
the  case  at  bar. 

The  order  of  the  circuit  court  appealed  from  is  affirmed. 

Fuller,  P.  J.,  dissented. 

THE  RiaHT  OF  ELECTORS  TO  VOTE  FOB  A  CANDIDATE 
WHOSE  NAME  IS  NOT  PRINTED  ON  THE  OPFIGIAI. 
BAIXOT.* 

I.    Dissent  of  Justice  FoUer  from  the  Principal  Case. 

a.  General  Criticism  of  Majority  Opinion. 

b.  Views  of  Text-writers. 

n.    Review  of  Commonwealtli  ▼.  Reeder. 

in.    Competency  of  Legislature  to  Regulate  Elections. 

a.  The  General  Rule. 

b.  Regulating  the  Printing  of  BaUots. 

c    Denying  the  Right  to  Vote  for  Candidate  of  OholoeL 

L    Dissent  of  Justice  Fuller  ftom  the  Principal  Case. 

a.  General  Criticism  of  Majority  Opinion.— Predding  Jnstiee 
Fuller  did  not  agree  with  the  conclusion  reached  in  the  majority 
opinion  of  the  principal  case,  and  delivered  an  able  dissenting  opinion, 
in  which  he  said:  "In  Chamberlain  v.  Hedger,  12  S.  Dak.  135,  90  N. 
W.  178,  all  the  probative  facts  alleged  in  this  complaint  were  before 
the  court,  and  it  was  squarely  held  to  be  the  legal  duty  of  respond- 
ents not  only  to  canvass  all  votes  returned  for  appellant  at  this 
election,  but  to  issue  a  eertificate  in  accordance  with  the  result  aaeer> 
tained.  If  the  power  lies  within  the  legislature  of  a  state  to  deprive 
qualified  electors  of  the  right  to  freely  express  their  ehoice  as  to 
whom  thoy  will  delegate  governmental  authority,  then  the  sovereignty 
of  the  nation  no  longer  resides  in  the  people  of  the  nation,  and  this 
court  idly  trifled  with  a  serious  matter  when  it  said,  concerning  the 
identical  facts  now  before  us,  that:  'If  the  canvass  had  been  made^ 
and  the  certificate  of  election  issued,  plaintiff  would  have  been 
elothed  with  a  prima  facie  right  to  the  ofiice;  and  this  waa  &  sob- 

*RSFEBKMCB8  TO  MONOGRAPHIC  MOTl-A 

What  distlngnithlng  marks  invalidate  bailota:  ttf  Am  St.  Rep.  2iO>afft. 
What  irregularltlM  avoid  electious:  bO  Am.  8t.  Rep.  46-92. 


Not.  1901.]  Chamberlain  t;.  Wood.  683 

Btantial  right,  of  which  he  should  not  have  been  deprived  by  tha 
failure  of  defendants  to  perform  their  official  duties.'  In  Parmly  t. 
Healy,  7  S.  Dak.  401,  64  N.  W.  186,  no  constitutional  question  bein^ 
even  mooted,  we  could  do  no  less  than  say,  in  effect,  that  the  statute 
prohibited  the  writing  of  a  name  on  a  ticket,  and  provided  punishment 
for  the  dismantled  freeman  who  placed  it  there. 

''The  constitution  guaranties  to  every  qualified  elector  'the  free 
exercise  of  the  right  of  suffrage,'  and,  while  the  legislature  cannot 
limit  him  to  names  printed  on  the  official  ballot,  this  court,  by  falla- 
cious reasoning,  has  now  taken  away  this  right  to  vote  for  the  per- 
son of  his  choice.    Quoting  from  our  constitution  the  provision  that 
'elections  shall  be  free  and  equal,  and  no  power,  civil  or  military, 
shall  at  any  time  interfere  to  prevent  the  free  exercise  of  the  right 
of  suffrage,'  the  writer  of  the  majority  opinion  proceeds  to  elucidate 
by  saying  that  'there  can  be  no  inequality,  and  every  voter  shall 
have  the  same  right  as  every  other  voter,  namely,  the  right  of  ap- 
pearing at  an  election  and  voting  in  the  manner  prescribed  by  law. ' 
Until  all  men  are  viewed  in  exactly  the  same  light,  and  the  prefer- 
ence of  one  becomes  the  preference  of  all,  it  will  be  neither  plausible 
nor  reasonable  to  say  that  the  right  of  suffrage  can  be  freely,  equally, 
and  independently  exercised  under  a  statute  which  merely  gives  to 
qualified   electors  an  option  to  vote  for  persons  whose  names  'are 
printed  on  the  official  ballot,  or  not  to  vote  at  all;  and  such  is  not, 
and  under  our  system  of  government  can  never  be,  the  law.    It  is 
manifestly  absurd  to  hold  that  the  elector,  who  is  thus  deprived  of 
Ids  privilege  of  choosing  a  public  servant,  stands  on  equal  footing 
with  those  who  find  upon  the  official  ballot  the  name  of  every  can- 
didate for  whom  they  choose  to  vote.    It  is  the  constitutional  pre- 
rogative of  every  qualified  elector,  who  has  complied  with  all  pre- 
liminary statutory  regulations  as  to  registration,  etc.,  to  vote  for 
whomsoever  he  may  choose;  and  statutes  which  deprive  him  of  such 
right  have  been,  so  far  as  my  research  extends,  invariably  held  for 
naught,  in  every  jurisdiction  with  the  exception  of  this." 

b.  Views  of  Text-writers.— Continuing,  Justice  Fuller  reviewed 
the  decisions  in  other  jurisdictions,  which  we  here  omit,  for  the 
reason  that  they  will  be  fully  considered  elsewhere  in  this  note,  and 
then  cited  the  views  of  text-writers  in  support  of  his  contention: 
' '  At  page  587,  10  American  and  English  Encyclopedia  of  Law,  second 
edition,  the  author  of  the  article  on  'Elections,'  in  discussing  the 
ilifferent  provisions  of  the  Australian  ballot  system  as  adopted  in 
many  of  the  states,  aays:  'Thus  they  are  not  unconstitutional,  be- 
cause they  provide  for  legal  nominations,  and  require  them  to  be 
made  in  a  certain  way  in  order  to  entitle  a  candidate  to  have  his 
name  printed  on  the  official  ballot,  provided  the  voter  is  allowed  by 
writing  on  the  ballot  to  vote  for  others  than  those  nominated,  if  he 
sees  fit.  But,  as  the  constitutions  guarantee  to  voters  the  right  to 
vote  for  whom  they  please,  a  law  restricting  the  right  to  vote  to 


684  Aherioan  'State  Bbpobts^  Vol.  91.     [S.  Dakott, 

those  eandldates  whose  names  appear  on  the  official  ballot  is  to  that 
extent  unconetitntionaL'  That  eminent  anthcn*,  Jndge  MeCrarj, 
who,  as  a  member  of  the  House  of  Bepresentatives,  was  for  masf 
years  chairman  of  the  committee  of  elections,  thos  announees  the 
universal  doctrine:  'The  statutes  of  most  of  the  states  expreaslr 
permit  the  voter  to  cast  his  ballot  for  the  person  of  his  choice  for 
office,  whether  the  name  of  the  person  he  desires  to  vote  for  appears 
vpon  the  printed  ballot  or  not.  Statutes  which  deny  the  voter  this 
privilege  are  in  conflict  with  the  eonstitutional  provision  guarantee- 
ing the  right  of  suffrage  to  every  citizen  possessing  the  requisite 
qualifications,  and  are  void.  Legislatures  may  provide  for  the  print- 
ing of  an  official  ballot,  and  prohibit  the  use  of  any  other,  but  they 
cannot  restrict  the  elector  in  his  choice  of  candidates,  nor  prohibit 
him  from  voting  for  any  other  than  those  whose  names  appear  on 
the  official  ballot':  McCrary  on  Elections,  see.  700.  I  am  confident 
that  the  proposition  will  be  taken  for  granted  that  the  limitation  of 
the  voter  to  names  printed  on  the  official  ballot  deprives  him  of  that 
secrecy  and  independence  secured  by  the  statute  as  originally 
adopted,  and  that  the  present  amendatory  system  is  unconstitntioBal 
in  so  far  as  it  deprives  him  of  the  right  to  vote  for  the  candidate  of 
his  choice.'' 

XL    Bevlew  of  Oommonwealth  t.  Boeder. 

Since  in  the  principal  case  so  much  reliance  is  placed  on  Common- 
wealth V.  Reeder,  171  Pa.  St.  505,  33  Atl.  67,  it  is  deemed  proper  to 
give  that  decision  some  consideration.  The  supreme  court  of  Penn- 
sylvania there  decided,  under  the  usual  eonstitutional  provisions, 
that  "all  elections  shall  be  free  and  equal,"  and  qualified  electors 
"be  entitled  to  vote  at  all  elections,"  that  a  statute  providing  for  the 
,  election  of  seven  superior  judges  at  one  time,  but  declaring  that 
no  elector  should  vote  for  more  than  six,  was  constitutional.  Thi^ 
decision,  on  its  face,  is  not  directly  in  point  with  the  doctrine  ad- 
vanced by  the  South  Dakota  court  in  the  principal  case.  ICoreover, 
the  statutes  of  Pennsylvania,  contrary  to  the  South  Dakota  election 
law,  preserve  the  right  of  electors  to  vote  for  any  candidate  whose 
name  is  not  on  the  official  ballot.  But,  aside  from  these  considera- 
tions, it  should  be  observed  that  the  holding  in  the  Boeder  case  is 
itself  an  exceedingly  doubtful  proposition  of  law.  The  deeision  was 
dissented  from  by  Justice  Williams  when  made,  and  it  is  directly 
opposed  to  McArdle  v.  Mayor  etc.  of  Jersey  City,  66  N.  J.  L.  59C, 
S8  Am.  St.  Bep.  496,  49  Atl.  1013;  State  v.  Constantino,  42  Ohio  St. 
437,  51  Am.  Kep.  833;  In  re  Opinion  of  Judges  (R.  I.),  41  AtL  1009. 
Our  research  has  disclosed  no  authority  in  support  of  the  Pennsyl- 
vania case;  on  the  contrary,  its  soundness  is  challenged  by  the 
decisions  of  three  other  commonwealths.  Nor  do  we  think  it  defea- 
sible on  principle.  It  seems  to  us,  therefore,  that  the  principal  ease, 
so  far  as  it  is  based  on  Commonwealth  v.  Boeder,  is  built  upon  the 
sand. 


Nov.  1901.]  Chahbbblain  v.  Wood.  685 

m.    Oompetancy  of  LBglslatiire  to  Sogolato  Elactioiia. 

a.  The  Ooneral  Bnle.— We  come  now,  to  the  fundamental  inquiry 
•agigeeted  by  the  question  under  dieeuseion— namely,  the  nature  of 
the  right  of  suffrage.  There  has  been  some  controversy  amon|r 
pnblieists  as  to  whether  this  is  a  natural  or  a  political  right,  the 
prevailing  opinion  being  that  it  is  a  political  right  or  privilege: 
QoTigar  V.  Timberlake,  148  Ind.  38,  62  Am.  St.  Bep.  487, 
46  N.  E.  339;  State  v.  McElroy,  44  La.  Ann.  796,  32  Am. 
St.  Bep.  355,  11  South.  133;  Anderson  v.  Baker,  23  Md.  5ol; 
People  V.  Barber,  48  Hun,  198;  Spencer  v.  Board  of  Begistratiou, 
1  McAr.  169,  29  Am.  Bep.  582.  However  this  may  be,  and  what- 
ever may  be  its  significance,  it  seems  clear  that  the  right  to 
▼ote  is  not  an  absolute  right— that  is,  it  is  not  a  right  to  be 
exercised  without  restriction  or  limitation.  The  power  of  the  legisla- 
ture to  regulate  elections  is  undoubted,  provided  the  elective  fran- 
chise is  regulated  and  not  denied.  The  legislature  has  no  power  ex- 
pressly to  deny  or  take  away  the  right,  or  unreasonably  to  abridge 
er  impede  its  enjoyment  by  laws  professing  to  be  merely  remedial. 
Its  power  is  limited  to  laws  regulating  the  enjoyment  of  the  right, 
by  facilitating  its  lawful  exercise  and  by  preventing  its  abusOi  All 
reasonable  latitude  should  be  given  the  legislature  in  the  exercise 
of  this  powec  of  regulation,  but  statutes  must  be  reasonable,  uniform, 
and  JmpartiaL  They  must  be  calculated  to  facilitate  and  secure, 
rather  than  to  subvert  or  impede,  the  right  to  vote:  Whittam  v. 
Zahorik,  91  Iowa,  23,  51  Am.  St.  Bep.  317,  69  N.  W.  57;  Taylor  v. 
Bleakley,  55  Kan.  1,  49  Am.  St.  Bep.  233,  89  Pae.  1045;  Blair  v. 
Bidgely,  41  Mo.  63,  97  Am.  Dee.  248;  Daggett  y.  Hudsou,  43  Ohio 
St.  548,  54  Am.  Bep.  832,  8  N.  £.  538.  It  may  be  well  to  observe 
here  that  statutes  tending  to  limit  the  citizen  in  exeroising  the  right 
of  suffrage  should  be  construed  liberally  in  his  favor:  Salcido  v. 
Boberts  (CaL),  67  Pac.  1077;  Bowers  v.  Smith,  111  Mo.  45,  38  Am. 
St.  Bep.  4»1,  20  S.  W.  101. 

t,  Begolatlng  the  Printing  of  Ballots.— The  regulation  we  are 
here  concerned  with  touches  the  printing  of  the  ballots.  Statutes 
now  very  generally  provide  that  only  those  political  parties  casting 
a  eertain  percentage  of  the  vote  at  the  last  election,  or  filing  certi£- 
eates  of  nominations  made  by  them,  shall  be  entitled  to  oiBcial  bal- 
lots, or  to  a  place  on  the  official  ballot.  Such  provisions^  while  they 
may  inconvenience  some  voters,  are  considered  a  regulation  of  the 
right  of  suffrage,  and  not  a  denial  of  it.  The  use  of  official  ballots 
renders  it  necessary  that  some  limitation  should  be  placed  on  the 
number  of  ballots,  or  the  number  of  names  on  a  ballot,  if  but  one 
is  used.  Otherwise,  the  ballot  might  assume  prodigious  dimensions, 
cr  the  polls  might  be  "littered  with  ballots  'thick  as  autumnal 
leaves  that  strew  the  brooks  in  Vallombrosa'  ";  for  "three  persons 
may  elaim  to  be  a  political  party,  just  as  the  throe  taUors  of  Tooley 


686  Amerioan  State  Eeports^  Vol.  91.     [S.  Dakota, 

street  assumed  to  be  'the  people  of  England'  ":  Banaom  ▼.  Black, 
54  N.  J.  L.  446,  24  Atl.  489,  1021;  Ladd  v.  Holmes;,  40  Or.  167,  ante, 
p.  457,  66  Pac.  714;  De  Walt  v.  Bartley,  146  Pa.  St.  529,  28  Am.  St. 
Kep.  814,  24  Atl.  529.  But  there  must  be  no  discrimination  against 
classes  of  voters:  Eaton  y.  Brown,  96  GaL  371,  31  Am.  St.  Rep.  225, 
31  Pac.  250. 

c.    Denying  the  Bight  to  Vote  for  Candidate  of  Choice. — These 
statutes,  so  far  aa  we  have  examined  them,  preserve  the  right  of 
electors  to  vote  for  the  candidate  of  their  choice,  notwithstanding 
his  name  is  not  printed  on  the  official  ballots.    This  maj  be  done  bj 
using   pasters^    or   by   writing  the  name   of   the   candidate   on   the 
ballot.    Most  of  the  statutes  provide  for  blanks  on  the  official  ballot, 
so  that  the  voter  may  write  therein  the  name  of  any  person  for 
whom  he  may  desire  to  vote  for  any  office:   Patterson  v.   Hanley, 
136  Cal.  265,  68  Pac.  821,  975;  Coughlin  v.  McElroy,  72  Conn.  99,  77 
Am.  St.  Rep.  301,  43  Atl.  854;  Fletcher  v.  Wall,  172  111.  426,  50  N.  E. 
230;  Voorhees  v.  Arnold,  108  Iowa,  77,  78  N.  W.  795;  People  v.  Fox^ 
114  Mich.  652,  72  N.  W.  611;  Price  v.  Lush,  10  Mont.  61,  24  Pac  749; 
Bowers  v.  Smith,  111  Mo.  45,  33  Am.  St.  Rep.  491,  20  S.  W.  101; 
State  V.  Hostetter,  137  Mo.  636,  $9  Am.  St.  Rep.  515,  39  S.  W.  270; 
People  V.  President  etc.  of  Wappinger's  Falls,  144  N.  Y.  616,  39  X. 
E.  641;  Howser  v.  Pepper,  8  N.  Dak.  484,  79  N.  W.  1018;  Morris  v. 
Board  of  Canvassers,  49  W.  Va.  251,  38  S.  E.  500. 

''In  general,  it  may  be  said  that  the  so-called  Australian  ballot 
acts,  in  the  various  forms  in  which  they  have  been  enacted,  in  many 
of  the  states  in  this  country,  have  been  sustained  by  the  courts, 
provided  the  acts  permit  the  voter  to  vote  for  such  persona  as  he 
pleases,  by  leaving  blank  spaces  on  the  official  ballot  in  which  he  may 
write  or  insert  in  any  other  proper  manner  the  names  of  such  persons, 
and  by  giving  him  the  means  and  a  reasonable  opportunity  to  write 
in  or  insert  such  names":  Cole  v.  Tucker,  164  Mass.  486,  41  N.  £. 
681.  In  construing  the  New  York  statute,  Mr.  Justice  Gray  says: 
"But  that  it  was  in  nowise  intended  to  prevent  the  voter  to  vote 
for  any  candidate  whom  he  chose  is  evident  from  the  further  pro- 
visions of  the  law  that  'the  voter  may  write  or  paste  upon  his  ballot 
the  name  of  any  person  for  whom  he  desires  to  vote  for  any  office.' 
Indeed,  to  hold  otherwise  would  be  to  disfranchise,  cr  to  dis- 
qualify, the  citizen,  as  a  voter  or  a  candidate,  and,  in  my  opinion, 
to  affect  the  law  quite  unnecessarily  with  the  taint  of  unconstitu- 
tionality in  such  respects":  People  v.  Shaw,  133  N.  Y.  493,  31  X. 
E.  512. 

When  this  question  was  before  the  supreme  court  of  Florida  in 
State  V.  Dillon,  32  Fla.  545,  14  South.  383,  Mr.  Justice  Mabry  very 
aptly  observed:  '*The  distinguishing  theory  of  the  ballot  system  it 
that  every  voter  shall  be  permitted  to  vote  for  whom  he  pleases, 
and  that  no  one  else  shall  be  in  a  position  to  know  for  whom  he  has 


Nov.  1901.]  Chamberlain  v.  Wood.  6S7 

Toted^  unless  the  Toter  shall,  of  his  own  free  will,  inform  him. 
There  is  no  doubt  in  our  minds  about  the  right  of  the  legislature 
to  prescribe  an  oiBcial  ballot,  and  to  prohibit  the  use  of  anj  other; 
and  the  provisions  of  the  act  in  reference  to  printing  the  names  of 
candidates  regularly  nominated  hj  a  convention,  mass-meeting, 
or  priniary  election,  or  who  run  as  independents,  are  valid.  But 
the  legislature  cannot,  in  our  judgment,  restrict  an  elector  to  voting 
for  some  one  of  the  candidates  whose  names  have  been  printed 
upon  the  official  ballot.  He  must  be  left  free  to  vote  for 
whom  he  pleases,  and  the  constitution  has  guaranteed  this  right. 
If  the  legislature  can  restrict  the  voter  to  some  candidate  whose 
name  is  printed  on  the  official  ballot,  then  it  may  prescribe  such 
regulations  for  getting  the  names  on  the  ballot  as  will  completely  de- 
stroy the  liberty  of  choice We  think  the  voter,  although  con- 
fined to  the  use  of  the  official  ballot,  could  put  upon  it  the  name  of 
any  person  in  lieu  of  the  name  of  the  candidate  printed  thereon, 
and  such  a  ballot  would  be  legal." 

Again,  quoting  from  Banner  v.  Patton,  155  111.  553,  40  N.  E.  290: 
"It  is  also  said  that  ample  provision  has  been  made  whereby  candi- 
dates may  be  nominated,  and  thus  be  entitled  to  have  their  names 
placed  on  the  ticket,  and  that  it  is  the  intention  of  the  act  that 
no  vote  should  be  cast  for  a  person  who  was  not  nominated.  If  such 
was  the  intention,  why  did  not  the  legislature  say  so,  and  why  did 
it  say  directly  the  contrary f  What,  it  may  be  asked,  is  there  so 
sacred  in  the  nomination  of  a  candidate  for  office  by  a  political  caucus 
that  a  voter  should  be  compelled  to  vote  for  a  nominee  of  the 
4?aucus  or  else  be  deprived  of  the  elective  franchise The  legis- 
lature does  not  possess  the  power  to  take  away  from  a  resident 
citizen  the  right  of  suffrage  unless  he  has  been  convicted  of  an 
infamous  crime.  Nor  can  the  legislature  do  indirectly  what  they 
cannot  do  directly;  and  yet,  if  the  construction  contended  for  by  ap- 
pellee be  the  correct  one,  the  voter  is  deprived  of  the  constitutional 
right  of  suffrage.  He  is  deprived  of  the  right  of  exercising  his  own 
choice,  and  when  this  right  is  taken  away  there  is  nothing  left 
worthy   of   the   name   of   the   right    of   suffrage— the   boasted    free 

ballot  becomes  a  delusion In  the  supreme  court  of  Missouri, 

in  Bowers  v.  Smith,  17  S.  W.  761,  it  is,  among  other  things,  said: 
'By  our  constitution  general  elections  are  to  be  held  at  certain  fixed 
times,  and  the  right  of  suffrage  is  secured  to  every  citizen  possess- 
ing the  requisite  qualification.  The  new  law  cannot  impinge  upon 
the  right  of  voters  to  select  their  public  servants  at  such  elections, 
or  be  so  interpreted  as  to  limit  the  range  of  choice  for  constitutional 
officers  to  persons  nominated  in  the  modes  prescribed  by  it.  Nomi- 
nations under  it  entitle  the  nominees  to  places  upon  the  official  ballot 
printed  at  public  expense,  but  the  Missouri  voter  is  still  at  liberty 
to  write  on  his  ballot  other  names  than  those  which  may  be  printed 
there.'  '* 


C88  American  State  Ebpobts,  Vol.  91.     [S.  Dakota, 

The  foregoing  copious  extracts  from  the  decisions  in  Tarioiifl  juris- 
dictions leave  little  to  be  said  on  the  question  of  the  right  of  electors 
to  vote  for  a  candidate  whose  name  is  not  printed  on  the  official 
ballot.  On  principle  nothing  can  be  clearer  than  this  rigbty  and 
nothing  can  be  more  subversive  of  a  free  ballot  than  its 
denial.  We  have  not  discovered  a  single  authority,  save  the 
principal  case  and  perhaps  Commonwealth  v.  Beeder,  171  Pa. 
St.  505,  33  Atl.  67,  that  intimates  the  competency  of  the 
legislature  to  deny  this  right.  And  as  before  pointed  ont, 
the  court  in  the  latter  case  misconceived  the  law.  We  should 
admire  the  courage  of  the  South  Dakota  court  in  announcing  its  coa- 
elusion  in  the  face  of  the  decisions  of  the  other  states^  if  it  were 
defensible  on  principle.  But  regarding  it,  as  we  do,  to  be  destruetiTe 
of  one  of  the  greatest  institutions  yet  realized  in  the  evolution  of 
society,  we  have  no  hesitancy  in  denouncing  it  as  a  dangerous  pree- 
edent. 


TOBIN  T.  McKINNEY. 

[14  S.  Dak.  52,  84  K.  W.  228.] 

APPEAL.— The  Supreme  Court  may  Afflrm  «  JMfmsBl 
on  a  directed  verdict  if  it  finds  either  of  the  grounds  stated  in  ths 
motion  therefor  well  taken,  though  it  may  not  be  the  ground  vpom 
which  the  verdict  actually  was  directed,     (p.  690.) 

A  Bank  is  not  Liable  to  Depositon^  except  after  demand  of 

payment,     (p.  690.) 

OEBTIFIOATE  OF  DEPOSIT.— The  Statute  of  TJmttitifflii 

does  not  begin  to  run  on  a  eertificate  of  deposit  until  payment  has 
been  demanded,     (p.  691.) 

PABTKEB'S  LTABHiTTY  After  Dlssoliitlon  of  FIzm.— One 

who  makes  two  deposits  with  a  banking  firm  of  forty  and  thirty-five 
dollars  each  in  one  year  is  a  "person,"  within  the  rule  that  a  pait- 
ner's  liability  continues  after  the  dissolution  of  the  firm  ''in  finvor 
of  persons  who  have  had  dealings  with,  and  given  credit  to,  the  part- 
nership during  its  existence,  until  they  have  had  peraonal  notiee 
of  its  dissolution.     (pp«.  690,  693.) 

N.  J.  Cramer,  for  the  appellant. 

Keith  &  Warren,  for  the  respondent 

«*  CORSON  J.  From  the  year  1880  to  the  let  of  January, 
1885,  Charles  E.  McKinney,  the  defendant,  was  a  partner  in 
the  firm  of  McKinney  &  Scougal,  engaged  in  the  bnsineBB  of 
banking  in  the  cities  of  Sioux  Palls  and  Yankton.  At  the  laat- 
mentioncd  date  the  partnership  was  disaolyedy  and  the  bnslDetf 


Nov.  1900.J  ToBiK  V.  McKiNWKY.  6b8 

was  contiimed  in  Yankton  by  Scongal,  one  of  the  said  partners, 
at  the  same  place,  using  the  same  kind  of  bank  checks^  bills, 
drafts^  certificates  of  deposit,  and  letter-heads,  excepting  the 
omission  of  the  name  of  C.  E.  McKinney  on  one  comer  of  the 
letter-headfi,  and  retaining  the  same  signs  on  the  bank  and 
building  that  the  firm  of  McKinney  &  Scongal  had  used. 
*•  There  was  evidence  tending  to  prove  that  the  plaintiff,  Cath- 
erine Tobin,  in  June,  1884,  deposited  forty  dollars  in  the  bank 
at  Yankton,  and  in  September  deposited  thirty-five  dollars  more, 
which  sums  were  withdrawn  therefrom  in  the  fall  of  1884  and 
spring  of  1885.  Certificates  of  deposit  with  the  name  "Mc- 
Kinney &  Scougal,  Bankers,''  printed  at  the  top,  and  the  firm 
name  of  McKinney  &  Scougal  signed  at  the  bottom,  were  given 
to  the  plaintiff  for  said  deposits.  On  the  sixteenth  day  of  July, 
1889,  she  deposited  in  said  bank  five  hundred  dollars,  for  whidi 
a  certificate  was  issued,  as  follows: 

''No.  2599. 
''McKinney  &  Scougal,  Bankers. 

"Yankton,  Dakota,  July  16,  1889. 

"Certificate  of  deposit,  not  subject  to  check.  $500.  Cath« 
erine  Tobin  has  deposited  in  this  bank  five  hundred  dollars, 
payable  to  the  order  of  herself  in  current  funds  on  return  of  this 
certificate  properly  indorsed.  With  interest  at  six  per  cent 
per  annum  if  left  six  months. 

"McKINNBY  &  SCOUGAL.'* 

Upon  this  certificate  interest  was  paid  semi-annually  from 
1890  to  1892,  inclusive.  The  plaintiff  had  resided  in  Yankton 
from  1877  to  the  time  of  the  trial.  Scougal  was  a  resident  of 
Yankton,  and  the  defendant  McKinney  was  a  resident  of  Sioux 
Falls.  It  was  claimed  that  no  personal  notice  of  the  dissolution 
of  the  firm  was  given  to  the  plaintiff,  and  that  she  had  no  actual 
notice  or  knowledge  of  the  dissolution  of  the  firm  until  after 
the  death  of  Scougal,  in  January,  1893.  Notice  of  such  dis- 
solution was  published  in  January,  1885,  in  a  newspaper  in 
Yankton  and  in  one  in  Sioux  Falls.  The  plaintiff  brought 
this  action  in  July,  1898,  to  recover  of  the  defendant  the  amount 
of  said  certificate  of  deposit.  The  case  was  tried  to  a  jury,  and 
<m  motion  of  the  defendant  a  verdict  was  directed  in  his  favor. 
From  the  judgment  the  plaintiff  appeals  to  this  court. 

The  motion  for  a  direction  of  a  verdict  was  made  upon  the 
following  grounds,  among  others :  That  the  plaintiff  has  failed 
to  show  that  she  was  a  customer  of  the  bank,  or  had  had  busi- 
transactions  ^'^  with  it  to  the  extent  of  giving  credit  to 

Am.  St.  R«p.,  Vol  H-44 


690  Amsbioan  Statb  Sepobts,  Vol.  91.    [S.  Dakota^ 

the  bank  prior  to  1885,  or  that  she  continued  such  buainess  upon 
the  faith  that  this  defendant  remained  a  partner  of  said  Scougal 
subsequent  to  that  time;  that  the  claim  in  question  is  barred  by 
the  statute  of  limitations^  the  certificate  having  been  issued  in 
July,  1889.  The  court  directed  a  verdict  upon  the  latter 
ground,  but,  as  there  are  other  grounds  stated  in  the  motion, 
this  court  is  not  precluded  from  aflBrming  the  judgment  if  it 
finds  either  of  the  grounds  stated  well  taken,  though  it  may  not 
be  the  ground  upon  which  the  verdict  was  actually  directed. 

The  case,  as  we  view  it,  presents  two  questions:  1.  Was  the 
action  barred  by  the  statute  of  limitations?    2.  Did  the  plain- 
tiff have  such  dealings  with  the  partnership  during  its  existence 
as  to  entitle  her  to  personal  notice  of  its  dissolution,  and  in  the 
absence  of  such  notice  enable  her  to  maintain  this  action?    The 
first  question  is  substantially  disposed  of  by  the  decision  in 
Cornwall  v.  McKinney,  12  S.  Dak.  118,  80  N.  W.  171.     In  that 
case  this  court  held,  in  effect,  that  an  action  upon  a  certificate 
of  deposit  issued  by  a  bank  in  the  usual  form  cannot  be  main* 
tained  \mtil  payment  of  the  same  has  been  demanded,  adopting 
the  view  of  Mr.  Daniel,  in  his  work  on  Negotiable  Instruments. 
Upon  the  subject  of  the  statute  of  limitations  Mr.  Daniel  says: 
"The  better  opinion  seems  to  us  to  be  that  the  statute  of  limita- 
tions only  begins  to  run  when  there  is  an  actual  demand  of  pay- 
ment in  due  form,  and  that  such  demand  must  precede  a  suif' : 
Daniel  on  Negotiable  Instruments,  sec.  1707a.    There  is  a  con- 
flict in  the  authorities,  but  the  rule  as  stated  by  Mr.  Daniel  is 
fully  sustained  by  the  courts  of  New  York,  Pennsylvania,  Ver- 
mont, and  Maryland  (Munger  v.  Albany  City  Nat.  Bank,  85  N. 
Y.  587;  Howell  v.  Adams,  68  N.  Y.  314;  McGough  v.  Jamison, 
107  Pa.  St.  386 ;  Bellows  Palls  Bank  v.  Rutland  Co.  Bank,  40 
Vt.  377 ;  Fells  Point  Sav.  Inst.  v.  Weedon,  18  Md.  320,  81  Am, 
Dec.  603),  and  is,  in  our  opinion,  the  better  rule.    In  Howell 
V.  Adams,  68  N.  Y.  314,  the  court  of  appeals  of  ^  New  York 
uses  the  following  language:  "The  defendant  insists  that  the 
cause  of  action  on  the  certificate  issued  in  1863  was  barred  by 
the  statute  of  limitations.    The  action  was  commenced  in  1871, 
and  it  is  claimed  that  the  right  of  action  accrued  immediately 
upon  the  issuing  of  the  certificate  without  previous  demand. 
This  question  has  been  settled  by  authority :  Downes  v.  Phoenix 
Bank,  6  Hill,  297 ;  Payne  v.  Gardiner,  29  N.  Y.  146.     We  think 
it  is  in  accordance  with  the  general  understanding  of  the  com- 
mercial community  that  a  bank  is  not  liable  to  depositors  ex- 
cept after  a  demand  of  payment.    The  fact  that  a  certificate  is 
given  upon  a  deposit  being  made,  payable  on  the  return  of  the 


Not.  1900.]  Tobin  v.  McKinney.  691 

certificate,  instead  of  leaving  the  deposit  subject  generally  to 
check  or  draft,  does  not  change  the  reason  of  the  rule  that  the 
banker  must  be  first  called  upon  for  payment  before  an  action 
can  be  maintained/*  As  no  right  of  action  accrued  upon  this 
certificate  of  deposit  before  a  demand,  and  the  statute  of  limi- 
tations not  commencing  to  run  until  demand  is  made,  this  ac- 
tion was  not  barred,  as  no  demand  was  made  until  a  short  time 
*  prior  to  the  commencement  of  the  action. 

The  second  question  involved  in  this  case  is  one  of  more  difiS- 
culty.  TIpon  this  subject  our  code  provides  as  follows:  "The 
liability  of  a  general  partner  for  the  act?  of  his  copartners  con- 
tinues, even  after  a  dissolution  of  the  partnership,  in  favor  of 
persons  who  have  had  dealings  with,  and  given  credit  to,  the 
partnership,  during  its  existence,  until  they  have  had  personal 
notice  of  the  dissolution;  and  in  favor  of  other  persons,  until 
such  dissolution  has  been  advertised  in  a  newspaper  published 
in  every  county  where  the  partnership,  at  the  time  of  its  dis- 
solution, had  a  place  of  business;  to  the  extent,  in  either  case, 
to  which  such  persons  part  with  value,  in  good  faith,  and  in 
the  belief  that  such  partner  is  still  a  member  of  the  firm**: 
Comp.  Laws,  sec.  4069.  The  first  question  arising  under  this 
section  is.  What  construction  is  to  be  placed  upon  the  clause, 
"in  favor  of  *®  persons  who  have  had  dealings  with,  and  given 
credit  to,  the  partnership,  during  its  existence,  until  they  have 
had  personal  notice  of  its  dissolution**?  It  is  contended  on  the 
part  of  the  appellant  that  the  plaintiff  in  this  action,  by  making 
the  two  deposits  of  forty  dollars  and  thirty-five  dollars  in  1884, 
brought  herself  within  the  provisions  of  the  section,  and  is  en- 
titled to  recover  in  this  action  unless  she  had  actual  notice  of  the 
dissolution  of  the  partnership.  The  respondent,  on  the  other 
hand,  contends  that  these  two  deposits  do  not  constitute  evidence 
that  she  was  in  the  habit  of  dealing  with  the  partnership,  and 
that  by  reason  of  these  acts  she  cannot  be  said  to  be  a  person  who 
has  'Tiad  dealings  with,  and  given  credit  to,  the  partnership,** 
within  the  meaning  of  the  section  above  quoted.  Section  4059 
of  our  code  is  a  verbatim  copy  of  section  1315  of  the  GivH  Code 
prepared  by  the  commissioners  for  the  state  of  New  York.  In 
a  note  to  that  section  the  commissioners  refer  to  Vernon  v.  Man- 
hattan Co.,  22  Wend.  183,  and  Clapp  v.  Eogers,  12  N.  Y.  283, 
as  decisions  upon  which  the  section  is  based.  In  Clapp  v. 
Bogers,  12  N.  Y.  283,  it  appears  that  the  firm  of  Rogers  &  Co., 
on  the  13th  of  November,  1847,  purchased  a  small  bill  of  goods 
of  the  plaintiff,  amounting  to  eleven  dollars  and  three  cents. 


692  Akerioan  Statb  Bepobts^  Vol.  91.     £S.  Dakoh, 

which  were  paid  for  in  the  spring  of  1848 ;  that  {he  firm  pur- 
chased another  small  bill  of  goods  in  the  spring  of   1848» 
amounting  to  twenty  dollars  and  forty  cents,  and  pcdd  for  the 
same  in  December,  1848 ;  that  on  the  1st  of  January,  1849,  the 
copartnership  was  dissolved;  that  between  the  25th  of  January, 
1849,  and  April,  1850,  the  plaintiff  sold  and  delivered  to  said 
firm  goods  to  the  value  of  eleven  hundred  and  seTenty-five 
dollars  and  forty-two  cents.    The  action  was  brought  to  re- 
cover of  the  withdrawing  partner  the  amount  of   the   last^ 
mentioned  bill  on  the  groimd  that  the  plaintiff  had  no  actual 
notice  of  the  withdrawal  of  said  defendant  from  the  firm.    The 
court  held  that  the  plaintiff  was  entitled  to  recover.     It  will 
be  noticed  that  the  transactions  in  that  case  between  Bogers  & 
Co.    and  Clapp  were  very  similar  to  the  transactions  in  the 
^^  case  at  bar.    In  that  case  the  court  said:  ''What  shall  con- 
stitute a  dealing  with  a  firm  which  wiU  make  it  requisite  to  give 
a  personal  notice  of  the  withdrawal  of  a  partner  has  not  often 
been  the  subject  of  discussion.    The  question  was  considered  in 
Yemon  v.  Manhattan  Co.,  22  Wend.  183,  but  that  case  does 
not,  in  its  particular  facts,  bear  very  strikingly  upon  the  present 
question.    We  are  disposed,  however,  to  adopt  the  rule  laid 
down  in  that  case  by  the  chancellor.    He  said  that  the  word 
'dealing,'  when  used  in  reference  to  this  question,  was  a  general 
term  'to  convey  the  idea  that  the  person  who  is  entitled  to  actual 
notice  of  the  dissolution  must  be  one  who  has  had  business  re- 
lations with  the  firm  by  which  a  credit  is  raised  upon  the  faith 
of  the  copartnership';  and  he  refers  to  Bell's  Commentaries, 
where  it  is  said  that  'a  credit  already  raised  upon  the  faith  of 
the  partnership  is  presumed  to  be  continued  on  the  same  footing 
unless  special  notice  of  a  change  shaU  be  given' :  2  Bell's  Com- 
mentaries, 640 But,  as  before  remarked,  I  am  of  opinion 

that  a  credit  was  given  in  this  case,  though  it  was  not  for  any 
definite  time;  and  this  brings  it  within  the  rule  stated  by  the 

chancellor The  rule  requiring  notice  proceeds  upon  a 

general  presumption  that  one  giving  credit  to  a  mercantile  firm 
does  so  upon  the  responsibility  of  the  individual  partners;  and 
we  cannot  annex  to  it  a  distinction  based  upon  the  amount  of 
the  credit  without  destroying  that  certainty  whidi  is  essential 
to  its  utility."  It  would  seem,  therefore,  that  the  commis- 
sioners, in  recommending  this  section,  intended  to  lay  down  a 
general  rule  embracing  all  persons  who  have  had  dealings  with, 
or  given  credit  to,  the  partnership,  without  regard  to  the  amount 
of  the  credit.    And  we  must  presume  that  the  codifiers  of  our 


3Tov.  1900.]  ToBiH  V.  McKiNNBT.  698 

own  code,  and  the  legislature  that  adopted  it,  had  the  same  role 
in  view.  If,  as  claimed  by  the  appellant,  she  did  make  the  de- 
posits mentioned,  receiving  therefor  certificates  of  deposit  signed 
in  the  firm  name,  we  must  presume  that  credit  *^  was  given 
upon  the  responsibility  of  the  individual  members  of  the  firm, 
and  that  she  had  a  right  to  assume  that  the  firm  continued  as 
it  then  existed  at  the  time  she  deposited  the  five  hundred  dollars  ; 
and  if  she,  in  good  faith,  believed,  when  she  made  that  deposit, 
that  the  defendant  was  still  a  member  of  said  firm,  and  she  had 
no  personal  notice  to  the  contrary,  her  previous  transactions 
with  the  firm  would  entitle  her  to  recover  if  in  fact  those  de- 
posits were  actually  made  as  claimed  by  appellant.  Upon  this 
question  there  is  a  conflict  in  the  evidence,  and  the  case  should 
have  been  submitted  to  the  jury. 

It  is  contended  on  the  piurt  of  the  respondent  that  to  entitle 
the  appellant  to  recover  she  must  have  been  in  the  habit  of  deal- 
ing with  the  firm.  It  is  true  this  language  is  used  in  Story  oa 
Partnership  (section  161),  and  by  Mr.  Justice  Brewer  in  de* 
livering  the  opinion  of  the  supreme  court  of  Kansas  in  Merritt 
V.  Williams,  17  Elan.  287;  but  it  will  be  noticed  that  this  is 
not  the  language  of  our  statute,  and  we  eannot  so  construe  it 
as  to  embrace  such  language  without  interpolating  into  the 
statute  other  words,  which  in  this  case  we  are  not  authorized  to 
do.  We  are  inclined  to  say,  in  the  language  of  the  court  in 
Clapp  V.  Sogers,  12  N.  Y.  283,  that  this  case  does  not  afford  a 
very  striking  exemplification  of  the  rule,  for  the  dealing  wa9 
so  limited  in  amount  that  there  is  no  great  reason  to  believe 
that  the  plaintiff  would  have  taken  the  trouble  to  ascertain  who 
the  partners  were.  We  cannot,  however,  say  positively  that  she 
did  not.  It  would  be  dangerous  for  this  court  to  attempt  to 
graft  upon  this  section  exceptions  or  limitations  that  have  not 
been  provided  by  the  legislature.  These  vienvs  lead  to  the  con* 
elusion  that  the  learned  circuit  court  erred  in  directing  a  ver- 
dict, and  the  judgment  of  that  court  is  reversed,  and  the  case 
remanded  for  a  new  triaL 


The  Principal  Cote,  on  rehearing,  was  affirmed  in  15  8.  Dak.  2o7, 
88  N.  W.  572,  poet,  p.  694.  See  the  eross-reference  note  thereto  for 
further  authorities  on  this  question* 


694  Ahebican  Statb  Bepobts,  Vol.  91.    [S.  Dakob, 


TOBIN  V.  McKINNEY. 

[15  S.  Dak.  257,  88  N.  W.  572.] 

A  OEBTZnOATE  OF  DEPOSIT,  payable  to  the  order  of  the 
depositor  on  its  return  properly  indorsed,  does  not  mature  antU  as 
returned,  and  a  suit  thereon  cannot  be  maintained  without  demand. 
<pp.  694,  695.) 

OEBTZFIOATB  OF  DEPOSIT.— The  Statote  of  Ziiiiiltatias 
does  not  begin  to  run  against  a  certificate  of  deposit  until  a  demand 
for  payment,     (pp.  694,  695.) 

N.  J.  Cramer,  for  fhe  appellant 

Xeith  &  Warren,  for  the  respondents. 

^^  FULLEE,  P.  J.    The  facts  essential  to  a  proper  under- 
standing of  all  that  is  urged  on  this  rehearing  are  fully  stated 
in  Tobin  v.  McKinney,  14  S.  Pak.  62,  ante,  p.  688,84  N.  W.  22S, 
and  the  only  question  of  law  to  be  determined  is  whether  the  stat- 
ute of  limitations  began  to  run  on  a  certain  certificate  of  deposit 
t>efore  payment  was  demanded.    Like  any  other  contract,  the 
<diaracter  of  a  certificate  of  deposit  depends  upon  the  intuition 
<of  the  parties,  as  disclosed  by  the  terms  of  such  instrument; 
«.nd  section  4465  of  the  Compiled  Laws,  providing  that  ''a  ne- 
gotiable instrument  which  does  not  specify  the  terms  of  pay- 
ment is  payable  immediately/'  is,  by  a  general  provision,  made 
^subordinate  to  the  intention  of  the  parties,  when  ascertained  in 
the  manner  prescribed  by  the  chapter  on  the  interpretation  of 
contracts^' :  Comp.  Laws,  sec  4571.    Now^  this  transaction  be* 
ing  a  deposit  of  money  for  safekeeping,  neither  party  contem"^ 
plated  the  execution  of  a  contract  bearing  inceptively  the  stamp 
of  dishonor,  upon  which  a  cause  of  action  aocru^  instanta- 
neously, without  first  calling  upon  the  banker  for  payment,  and 
the  terms  of  the  instrument  will  bear  no  such  constructioiL 
While  its  negotiability  is  not  destroyed  by  the  provision,  "pay- 
able to  the  order  of  herself,  in  current  funds^  on  return  of  thid 
certificate  properly  indorsed,*'  the  date  of  maturity  is  thereby 
expressly  made  to  depend  on  an  act  to  be  performed  by  the 
holder  in  reference  thereto,  and  nothing  was  payable  thereon 
until  the  happening  of  such  contingency.    If  no  time  is  to 
elapse  ^^^  between  the  issuance  of  a  certificate  of  deposit  and 
its  actual  and  apparent  maturity,  section  4570  of  the  Compiled 
Laws,  providing  that  "a  transferee  of  a  certificate  of  deposit, 
after  its  apparent  maturity  or  actual  dishonor  within  his  knowl- 
edge, acquires  a  title  equal  to  that  of  a  transferee  before  such 


Marohi  1902.]       McCarbibb  v.  Hollistsb.  695 

eyenV  is  wholly  inoperatiYe  and  xneaninglesB  withaL  Accord* 
ing  to  the  usual  practice  of  commercial  communitiea^  this  cer- 
tificate was  made  payaUe  on  its  return  to  a  place  specified^ 
which^  in  itself^  is  equivalent  to  an  agreement  between  the  par- 
ties that  the  banker  must  be  first  called  upon  for  payment  be- 
fore an  action  can  be  maintained.  Had  the  deposit  been  made 
subject  to  check,  appellant's  right  to  demand  the  money  at  any 
time  would  have  been  no  greater  than  it  is  at  present,  and  the 
difference  in  such  transactions  in  no  way  encroaches  upon  the 
doctrine  that  a  depositor  must  demand  payment  before  the  in- 
stitution of  a  suit  to  recover  his  money.  The  rule  arises  from 
the  reason  that  it  would  be  grossly  imjust  to  give  a  depositor  for 
an  indefinite  period  the  right  to  sue  the  next  moment,  without 
the  slightest  intimation  that  he  desired  to  recall  his  money;  and 
there  is  nothing  in  our  statute  to  justify  the  inference  that  with- 
out a  demand  a  suit  is  maintainable  on  a  certificate  of  deposit 
in  the  usual  form.  Adhering  to  our  former  opinion,  the  judg- 
ment appealed  from  is  reversed,  and  the  case  remanded  for  a 
new  trial. 


The  Statute  of  Limitaiione,  according  to  some  decisions,  does  not 
l>egin  to  run  agidnst  a  certificate  of  deposit  until  a  demand  is  made 
for  payment;  according  to  others,  it  runs  from  the  date  of  the  cer- 
tificate: See  Merenes  v.  First  Nat.  Bank,  112  Iowa,  11,  84  Am.  St. 
Bep.  318,  83  N.  W.  711;  monographic  note  to  Hillsinger  y.  Georgia 
K.  B.  Bank,  75  Am.  St.  Bep.  48-51. 


McCABBIER  v.  HOLLISTBR. 

[15  S.  Dak.  366,  89  N.  W.  862.] 

INDEPEEIDENT  OONTBAOTOB— Kegllgence  of.— If  an  in- 
dependent contractor  leaves  an  excayation  nnguarded  in  a  public 
street,  the  property  owner  is  liable  to  one  injured  by  falling  into  it. 
(p.  698.) 

Davis^  Lyon  &  Gates,  for  the  appellant 

A.  B.  Kittredge,  for  the  respondent 

•^  HANEY,  P.  J.  This  action  was  brought  to  recover  for 
ID jnries  caused  by  falling  into  an  open  ditch  on  or  near  premises 
in  the  city  of  Sionx  Falls  owned  by  the  defendant  and  occupied 
by  a  tenant.    For  the  purpose  of  connecting  her  tenement  with 


696  Aherioak  State  Bepobts^  Vol.  91.    [S.  Dakota, 

the  city  sewer,  defendant  employed  skillful  and  careful  contrac- 
tors, under  an  agreement  whereby  they  were  to  dig  the  ditch, 
lay  the  pipe,  make  connections,  furnish  all  materials^  and  do 
everything  necessary  to  complete  the  work  for  thirty-one  dol- 
lars.   The  work  was  begun  Friday,  August  4,  1899,  and  com- 
pleted on  the  following  Monday.    The  ditch  extended  from 
near  the  center  of  the  street,  under  the  sidewalk,  and  across  de- 
fendant's lot  to  the  house.    There  was  no  fence  where  the  ditch 
entered  the  lot.    The  walk  was  on  a  level  with  the  lawn,  and  twa 
feet  from  the  line  of  the  lot.    The  accident  occurred  between  9 
and  10  o'clock  Sunday  evening.    The  pipe  had  then  been  laid^ 
and  the  ditch  filled  from  the  center  of  the  street  to  the  walk,, 
but  was  open  from  the  walk  to  the  house.    There  were  no  light 
or  guards  to  give  warning  of  the  danger.    In  passing  along  the 
walk,  plaintiff  fell  into  the  ditch,  and  was  injured.    The  jury 
having  returned  a  verdict  for  two  thousand  dollars,  defendant 
appealed  from  the  judgment  entered  thereon. 

The  jury  having  found  under  proper  instructions  that  ordi- 
nary care  was  not  exercised  to  protect  persons  passing  on  the 
walk  at  the  time  of  the  accident,  and  that  the  plaintiff  was  not 
guilty  of  contributory  negligence,  the  only  question  demanding 
attention  is  whether  the  contractors,  who,  without  defendanf » 
knowledge,  left  the  excavation  unguarded,  are  alone  liable  for 
plaintiflE's  injuries.  ®®®  It  is  disclosed  by  the  evidence  that  the 
work  was  done  by  independent  contractors.  Bespondent  con- 
cedes the  general  rule  to  be  that  property  owners  are  not  respon* 
sible  for  injuries  caused  by  the  negligence  of  competent,  inde- 
pendent contractors,  but  contends  that  there  are  certain  well- 
established  exceptione  to  the  general  rule,  and  that  this  case  falls 
within  such  exceptions.  Actions  in  which  the  liability  of  prop- 
erty owners  for  the  negligence  of  independent  contractors  has 
been  involved  are  so  numerous  that  an  exhaustive  review  of  them 
would  extend  this  opinion  beyond  all  reasonable  limits:  16  Am» 
&  Eng.  Ency.  of  Law,  2d  ed.,  187-210;  note  to  Covington  etc. 
Bridge  Co.  v.  Steinbrock,  76  Am.  St.  Rep.  375.  The  issues  pre- 
sented by  this  appeal  have  received  thoughtful  consideration. 
While  the  legal  principles  involved  in  this  class  of  litigation 
are  stated  by  the  authorities  with  measurable  clearness  and  pre- 
cision, their  proper  application  to  the  facts  of  any  particular 
case  is  often  extremely  difficult  For  the  purposes  of  this  ap- 
peal the  general  rule,  with  its  qualifications,  may  be  stated  thus : 
While  the  master  is  liable  for  the  negligence  of  the  servant,  yei 
when  the  person  employed  is  engaged  under  an  entire  contract 


:Bf areh,  1902.]       McCabbixb  v.  Holustbk.  697 

:for  a  grosB  snm  in  an  independent  operation,  and  is  not  subject 
'to  the  direction  and  control  of  his  employer,  the  relation  is  not 
xegarded  as  thafc  of  master  and  servant,  but  as  that  of  contractor 
and  oontractee;  and  in  such  case  the  general  rule  is  that  the 
Tiegligence  of  the  contracting  party  cannot  be  charged  upon  him 
icT  whom  the  work  is  to  be  done;  and  this  rule  is  applicable 
even  where  the  owner  of  the  land  is  the  person  who  hires  the 
contractor,  and  for  whose  benefit  the  work  is  done.  If,  however, 
the  performance  of  the  work  will  necessarily  bring  wrongful 
consequences  to  pass  unless  gaarded  against,  the  law  may  hold 
the  employer  answerable  for  negligence  in  the  performance  of 
the  work:  Boomer  v.  Wilbur,  176  Mass.  ««»  482,  57  N.  E.  1004. 
If  the  work  contracted  for  is  of  such  a  character  that  it  is  in* 
trinsically  dangerous,  or  will  probably  result  in  injury  to  third 
])ersonfi,  one  contracting  to  have  it  done  is  liable  for  such  in- 
juries, though  the  injury  may  be  avoided  if  the  contractor  take 
proper  precautions,  there  being  a  distinction  between  such  a 
case  and  one  in  which  the  work  contracted  for  is  such  that,  if 
properly  done,  no  injurious  consequences  can  arise.  As  was 
stated  by  Gockbum,  C.  J.,  in  Bower  v.  Peate,  1  Q.  B.  D.  321 : 
^There  is  an  obvious  difference  between  committing  work  to  a 
contractor  to  be  executed,  from  which,  if  properly  done,  no  in- 
jurious consequences  can  arise,  and  handing  over  to  him  work 
to  be  done  from  which  mischievous  consequences  will  arise  un- 
less preventive  measures  are  adopted.  While  it  may  be  just  to 
hold  the  party  authorizing  the  work  in  the  former  case  exempt 
from  liability  from  injury  resulting  from  negligence  which  he 
had  no  reason  to  anticipate,  there  is,  on  the  other  hand,  good 
ground  for  holding  him  liable  for  injury  caused  by  an  act  cer- 
tain to  be  attended  with  injurious  consequences  if  such  con- 
sequences are  not  in  fact  prevented,  no  matter  through  whose 
default  the  omission  to  take  the  necessary  measures  for  such 
prevention  may  arise":  16  Am.  &  Eng.  Ency.  of  Law,  2d 
ed.,  201.  The  contract  in  the  case  at  bar  contemplated  an 
excavation  in  one  of  the  principal  streets  of  the  city  of  Sioux 
Falls.  The  work  contracted  for  could  not  be  done  without 
creating  a  condition  in  the  public  thoroughfare  from  which  mis- 
chievous consequences  might  reasonably  be  expected  to  arise  un» 
less  preventive  measures  were  adopted.  An  excavation  for  the 
purpose  of  constructing  a  sewer  may  not  be  unlawful,  but  it  is 
certainly  intrinsically  dangerous,  and,  unless  properly  guarded, 
liable  to  cause  personal  injuries.  The  nature  of  the  work  de- 
mands more  than  its  proper  performance.    ^^  Digging  the 


698  AiCBBiCAK  Statb  Bepobxs^  Vol.  91.    [8.  Dakota^ 

ditch  and  laying  the  pipe  are  not  enon^  lights,  barrien,  or 
otiier  safeguards  are  required  during  the  progress  of  the  voik 
to  protect  persons  from  such  acddents  as  the  one  Tesnltiiig'  in 
plaintiffs  injury.  Where  the  work  contemplated  by  the  ocm- 
tract  is  of  such  a  nature  fhat  the  public  safety  requires  some- 
thing more  to  be  done  than  the  mere  construction  of  tiie  im- 
provement^  we  think  the  owner  of  the  property  owes  a  duty  to 
the  public  to  see  that  proper  safeguards  are  taken,  and  thal^ 
where  such  precautions  are  not  taken,  he  should  not  escape  li- 
ability for  resulting  injuries. 
The  judgment  of  the  circuit  court  is  affirmed. 


If  an  Independent  Conlractor,  in  the  proeecntion  of  his  worl:^ 
leaves  an  excavation  in  the  pnblic  Btreete  unguarded,  his  employer 
is  liable  for  injuries  resulting  to  third  persons:  See  the  monographie 
note  to  Covington  etc.  Bridge  Co.  v.  Steinbrock,  76  Am.  St.  Bep.  406. 


MACH  V.  BLANCHAED. 

[15  S.  Dak.  432,  90  N.  W.  1042.] 

OOLLATEBAli  ATTACK.— A  Judgment  by  Default^  erroneous 
in  granting  relief  not  demanded,  is  not  void  and  open  to  eoQatetal 
attack,     (pp.  701,  702.) 

BEVEBSAL  OF  JUDGMENT.— A  Mortgage  is  KflUlfled  hj 

the  reversal  of  a  judgment  on  which  the  mortgagor's  title  rested, 
(pp.  702,  705.) 

Action  b;  Annie  Mach  against  William  Blanchard  for  fts 
cancellation  of  a  mortgage.  From  a  judgment  for  the  plaintifl 
the  defendant  appeals. 

B.  B.  Tripp,  for  the  appellant. 

« 

French  &  Orvis,  for  the  respondent. 

***  HANEY,  P.  J.  This  appeal  is  from  an  order  snstaining 
a  demurrer  to  the  answer  on  the  ground  that  it  fails  to  stats  s 
defense.  Defendant  having  elected  to  stand  on  his  ansver, 
judgment  was  rendered  in  favor  of  the  plaintiff,  from  whidi 
the  defendant  appealed. 

4^^  The  following  facts  are  admitted  by  tiie  demurrer:  In 
September,  1882,  Joseph  Farszyk,  who  owned  a  quarter  section 
of  land  in  Yankton  county,  executed  and  deUrered  a  wamntj 


March,  1902.]  Maoh  v.  Blanchabd.  699 

deed  purporting  to  convey  the  same  to  Annie  Mach,  pLuntifE 
in  this  action.  The  deed^  having  been  duly  acknowledged^  was  re- 
corded October  3,  1882.  In  November,  1896,  Parszyk  com- 
laenced  an  action  to  have  the  deed  canceled,  alleging  in  his  com- 
plaint that  when  it  was  executed  he  was  of  unsound  mind,  and 
wholly  incapable  by  reason  of  his  mental  derangement  of  per- 
forming any  act  of  business;  that  he  had  subsequently  been  re- 
stored to  mental  capacity;  that  prior  to  the  commencement  of 
the  action  he  offered  to  restore  everything  of  value  received  at 
the  time  of  the  conveyance;  that  such  offer  was  rejected,  and 
that  the  defendant  therein  refused  to  reconvey  the  land.  He 
demanded  judgment  ''that  the  warranty  deed  from  plaintiff  to 
defendant  be  delivered  up  for  cancellation,  and  that  the  said 
deed  be  duly  canceled  of  record  by  the  register  of  deeds  of  said 
county,  and  for  such  other  and  further  relief  as  may  be  just  and 
equitable,  besides  the  costs  of  this  action.'^  The  summons  was 
personally  served  upon  Annie  Mach  in  Yankton  county.  On 
January  23,  1897,  she  having  made  default,  a  judgment  was 
entered,  wherein  it  was  ordered,  adjudged,  and  decreed  that  the 
deed  from  Farszyk  to  her  ''be,  and  the  same  is  hereby,  canceled, 
and  the  title  to  the  said  described  property  be,  and  it  is  hereby, 
confirmed  in  the  plaintiff,  Joseph  Parszyk,  and  the  register  of 
deeds  of  Yankton  county.  South  Dakota,  is  hereby  authorized 
and  directed  to  cancel  said  deed  of  record;  and  it  is  further  or- 
dered that  the  defendant,  Annie  Mach,  and  all  persons  claiming 
by,  through  or  under  her,  be  and  she  and  they  are  hereby,  for- 
ever barred  and  enjoined  from  asserting  any  right,  title,  or  in- 
terest of  whatsoever  kind  to  said  property.'*  On  January  29, 
1897,  after  this  judgment  had  been  duly  recorded  ^^'^  in  the 
office  of  the  register  of  deeds,  Parszyk  borrowed  eight  hundred 
dollars  of  the  defendant  Blanchard,  giving  as  security  a  mort* 
gage  on  the  land  in  controversy,  which  was  recorded  on  the  same 
day.  On  the  following  day  Annie  Mach,  by  her  atfomeys, 
served  upon  the  attorneys  for  Parszyk  a  notice  of  motion  to  va- 
cate the  default  judgment  and  for  leave  to  serve  and  iBle  an  an- 
swer. This  motion  coming  on  for  hearing  on  March  23,  1897, 
it  was  ordered  that  the  default  be  opened,  and  that  the  defend- 
ant be  allowed  to  serve  and  file  an  answer.  An  appeal  having 
been  taken  to  this  court,  the  order  opening  the  default  was  af- 
firmed: Parszyk  v.  Mach,  10  S.  Dak.  555,  74  N.  W.  1027.  On 
December  1,  1898,  a  judgment  was  entered  on  motion  of  the 
plaintiff  Parszyk,  dismissing  the  action  without  prejudice  and 
awarding  the  defendant  her  costs  and  disbursements.    In  the 


700  AifSRiOAK  Statb  Bepobts^  Vol.  9L    [S.  Dakota, 

meantime  the  land  had  been  sold  under  and  by  virtne  of  the 
power  of  sale  contained  in  the  mortgage^  and  a  certificate  of  sate 
issued  to  the  mortgagee^  the  defendant  in  this  action.  After 
the  former  action  was  dismissed^  the  present  action  was  com- 
menced, for  the  purpose  of  having  defendants  mortgage  de- 
clared to  be  void  and  of  no  legal  effect. 

If  Parszyk  was  a  person  entirely  without  understanding  when 
the  deed  to  plaintiff  was  executed,  title  to  the  land  in  contro- 
Tersy  was  not  conveyed  from  the  former  to  the  latter:  Comp. 
Laws,  sec.  2519.  If  he  was  then  a  person  of  unsound  mind, 
but  not  entirely  without  understanding,  his  incapacity  not  hav- 
ing been  judicially  determined,  the  title  passed,  subject  to  re- 
scission: Comp.  Laws,  sec.  2520.  If  Parszyk  belonged  to  the 
first-mentioned  class  of  persons,  the  title  was  in  fact  in  him 
when  the  mortgage  was  executed,  independently  of  the  default 
judgment.  While  record  evidence  of  a  transfer  may,  under 
certain  circumstances,  be  conclusive,  the  recording  of  an  in- 
strument or  judgment  affecting  real  property  in  the  oflSce  of  the 
^^^  register  of  deeds  does  not  of  itself  transfer  the  title.  In 
this  state  ihere  may  be  a  valid  transfer  as  between  the  parties 
thereto  and  those  having  notice  thereof,  by  means  of  an  unre- 
corded instrument :  Comp.  Laws,  sec.  3297.  Although  purchas- 
ers of  the  plaintiff  for  value  and  without  notice  might  have  been 
protected  by  the  record  evidence  of  the  transfer  from  Parszyk 
to  her,  as  between  the  parties  to  the  warranty  deed  there  was  no 
transfer  in  fact,  if  Parszyk  was  a  person  entirely  without  un- 
derstanding when  that  instrument  was  executed.  However,  no 
issue  is  raised  by  the  answer  as  to  Parszyk's  mental  condition  in 
fact,  the  defendant  basing  his  rights  alone  upon  the  existence 
of  the  default  judgment  when  his  mortgage  was  executed.  A? 
his  counsel  has  argued  the  case  upon  the  theory  that  the  judg- 
ment operated  to  transfer  the  title  from  the  plaintiff  to  Parszyk^ 
it  will  be  assumed  that  the  deed  from  Parszyk  to  the  plaintifT 
conveyed  the  title,  subject  to  the  former's  right  of  rescissioii. 
We  will  also  assume  that  the  judgment  revested  title  in  Parszyk, 
and  proceed  to  consider  what,  if  any,  effect  its  vacation  had 
upon  the  mortgage  executed  after  it  was  entered  and  before  the 
default  was  opened  by  order  of  the  circuit  court  The  judgment 
was  either  regular,  erroneous,  or  void.  If  it  was  void,  it  was 
ineffectual  for  any  purpose,  and  defendant  could  derive  no  title 
through  it.  If  it  was  merely  erroneous,  or  if  it  was  in  all  re- 
spects regular,  assuming  that  title  can  be  transferred  by  the 
mere  entry  of  a  judgment,  defendant's  rights  under  the  mort^ 


March,  1902.]  Mach  v.  Blanghabd,  701 

gage  are  imassailable,  xmless  affected  by  the  subsequent  proceed- 
ings in  the  action  wherein  the  judgment  waa  rendered.  Was 
the  judgment  void?  The  court  had  jurisdiction  of  the  parties. 
It  had  authority  to  hear  and  determine  actions  for  the  rescission 
of  contracts  and  conveyances  made  by  persons  of  unsound  mind; 
and  the  complaint  stated  facts  sufiScient  to  constitute  a  cause  of 
action :  Parszyk  v.  Mach,  10  S.  Dak.  655,  74  N.  W.  1027. 

^**  It  is  contended,  however,  that  the  judgment  was  void,  for 
the  reason  that  it  granted  relief  not  demanded  in  the  complaint. 
In  the  decision  on  the  appeal  from  the  order  opening  the  de- 
fault, this  court  said  ^^that,  while  the  complaint  states  a  cause' 
of  action,  no  substantial  relief  was  demanded;  and  there  being 
no  answer,  nothing  in  excess  of  the  prayer  could  be  granted.    In 
order  to  sustain  a  judgment  by  default  under  section  5097,  su- 
pra^  although  the  pleader  has  stated  facts  that  are  actionable, 
the  relief  granted  must  not  exceed  what  was  demanded:  Simon- 
son  T.  Blake,  20  How.  Pr.  484;  Bullwinker  v.  Byker,  12  Abb. 
Pr.  311.    That  the  decree  in  this  instance  grants  relief  not  de- 
manded is  80  clear  that  further  comment  would  be  wholly  gratui- 
tous.^'    It  was  further  decided — ^the  only  question  necessarily 
involved  in  the  appeal — ^that  the  circuit  court  did  not  abuse  ite 
discretion  in  opening  the  default :  Parszyk  v.  Mach,  10  S.  Dak. 
555,  74  N.  W.  1027.    This  court  having  evidently  assumed  that 
it  was  dealing  with  a  direct  attack,  its  decision  cannot  be  con- 
strued as  authority  for  holding  that  the  judgment  was  void.    In 
New  York,  Iowa,  California,  and  Wisconsin,  under  statutes  re- 
lating to  demands  for  relief  and  relief  in  default  cases  substan- 
tially, if  not  identically,  the  same  as  those  in  this  state,  the 
courts  of  last  resort  have  held  that,  where  the  defendant  has  not 
answered  and  the  judgment  grants  relief  not  demanded  in  the 
complaint,  the  judgment  is  not  on  that  account  void,  but  only 
erroneous,  and  it  cannot  be  assailed  in  a  collateral  proceeding: 
Harrison  v.  Union  Trust  Co.,  144  N.  T.  326,  39  N.  E.  363; 
Ketchum  v.  White,  72  Iowa,  193,  33  N.  W.  627 ;  Bond  v.  Pach- 
eco,  30  Cal.  530 ;  Chase  v.  Christiansen,  41  Cal.  253 ;  Jones  v. 
Jones,  78  Wis.  446,  47  N.  W.  728.    The  same  conclusion  was, 
in  effect,  reached  by  this  court  in  McArthur  v.  Southard,  10  S. 
Dak.  566,  74  N.  W.  1031.    And  this  court  has  held  in  a  crim- 
inal action  that,  where  the  court  below  has  jurisdiction  of  the 
person  and  ^^  of  the  offense,  the  imposition  of  a  sentence  in 
excess  of  what  the  law  permits  does  not  render  the  judgment 
'  void :  In  re  Taylor,  7  S.  Dak.  382,  58  Am.  St  Eep.  843,  64  N. 
W.  253.    Our  conclusion  is  that  the  judgment  in  Paraasyk  v. 


702  Ahsricak  State  Eepobts^  Vol.  91.     [S.  Dakota, 

Mach,  10  S.  Dak.  565,  74  K  W.  1027,  was  erroneous,  but  not 
void,  and  that  it  cannot  be  assailed  in  this  action.  This  view 
is  supported  by  abundant  authority  and  is  consonant  with  sound 
reason. 

The  judgment  being  erroneous,  but  not  void,  and  having  been 
entered  when  defendants  mortgage  was  executed,  the  conse- 
quences of  its  subsquent  vacation  or  reversal  in  the  due  course 
of  litigation  remain  to  be  considered.  Though  it  was  not  va* 
cated  by  the  order  opening  the  default,  the  dismissal  of  the  ac- 
tion operated  to  set  it  aside.  The  default  was  opened  within 
the  time  allowed  by  law,  and  such  further  proceedings  were  had 
that  the  judgment  ceased  to  exist.  The  action  terminated  in 
favor  of  the  defendant.  There  was,  in  effect,  a  reversal  of  the 
judgment  in  due  course  of  legal  procedure,  subsequent  to  the 
execution  of  defendant's  mortgage,  and  the  question  arises. 
What  was  the  effect  of  such  reversal  upon  the  rights  of  the 
mortgagee?  It  certainly  will  be  conceded  that  whatever  rights 
to  the  mortgaged  property  were  conferred  on  the  mortgagor  bv 
the  judgment  were,  as  to  him  at  least,  restored  by  its  reversal 
Nearly  all  the  authorities  hold  that,  where  the  plaintiff  pur- 
chases the  property  of  the  defendant,  at  a  sale  under  a  judg- 
ment or  decree,  his  title  will  be  defeated  by  subsequent  reversaL 
It  is  also  a  rule  nowhere  disputed  that  third  persons,  purchas- 
ing at  a  sale  made  under  the  authority  of  a  judgment  or  decree, 
not  suspended  by  any  stay  of  proceedings,  thereby  acquire  rights 
which  no  subsequent  reversal  of  such  judgment  or  decree  can  in 
any  respect  impair:  Freeman  on  Judgments,  sees.  482,  484. 
The  latter  rule  rests  on  grounds  of  public  policy.  It  is  intended 
to  encourage  bidding  at  ***  judicial  sales,  and  thus  protect  de- 
fendants from  having  their  property  sacrificed  at  nominal 
prices.  Had  Parszyk  obtained  a  money  judgment,  and  defend- 
ant purchased  plaintiflPs  property  at  a  sale  under  an  execution 
issued  thereon  prior  to  the  opening  of  the  default,  the  subse- 
quent dismissal  of  the  action  would  not  have  affected  his  rights. 
In  that  case  defendant's  purchase  would  have  been  made  wliile 
the  action  was  pending,  and  liable  to  be  vacated  or  reversed  in 
the  usual  course  of  procedure.  He  would  be  protected,  not  be- 
cause he  was  without  notice  of  the  pendency  of  the  action,  or 
notice  that  proceedings  had  been  or  would  be  taken  to  reverse 
the  judgment,  but  because  rights  acquired  by  judicial  sales  are 
protected  in  the  interests  of  those  whose  property  is  thus  con- 
veyed by  operation  of  law.  Defendant's  position  as  mortgagee 
cannot  be  regarded  as  more  favorable  than  that  of  a  purchaser. 


Blarch,  1902.]  Magh  v.  BIiANchabd.  703 

There  was  in  fhis  case  no  judicial  sale.  ''An  action  is  deeme8 
to  be  pending  from  the  time  of  its  commencement  until  its  final 
determination  upon  appeal^  or  until  the  time  for  appeal  has 
passed,  unless  the  judgment  be  sooner  satisfied'^ :  Comp.  Laws, 
sec.  5343.  This  is  a  general  provision  of  the  law  of  civil  pro- 
cedure. Its  language  is  plain.  Had  the  legislature  intended 
that  civil  actions  should  be  deemed  to  be  pending  during  the 
period  mentioned  for  certain  purposes  only,  it  would  have  so 
expressed  itself.  Defendant  was  bound  to  know  the  law.  He 
^was  bound  to  know  that  the  judgment  upon  which  his  mort- 
^gor's  title  depended  was  liable  to  be  vacated  or  reversed  in  the 
authorized  course  of  civil  procedure.  One  who  purchases  a 
judgment  takes  it  at  the  peril  of  having  it  vacated  or  reversed. 
Why  should  the  defendant  in  this  action  stand  in  any  better 
position  than  the  assignee  of  a  money  judgment?  The  reason 
for  the  rule  which  protects  purchasers  at  judicial  sales  cannot 
be  invoked.  'T^en  the  reason  for  a  rule  ceases,  so  should  the 
mle  itself^:  Comp.  Laws,  sec.  4697.  Assuming  ***  that  the 
judgment  was  self-executing  and  operated  as  a  conveyance — ^a 
proposition  not  free  from  doubt  in  this  state — ^it  certainly  did  not 
vest  an  indefeasible  title  in  Parszyk.  His  rights  rested  upon  a 
pending  action,  and  we  can  discover  no  reason  for  holding  that 
the  defendant  acquired  any  rights  superior  to  those  of  his  mort- 
gagor. It  is  no  greater  hardship  for  defendant  to  lose  his  se- 
curity than  it  wotdd  be  for  the  plaintiff  to  lose  her  land.  Her 
failure  to  defend  before  the  opening  of  the  default  has  been  ad- 
judged excusable.  Defendant  may  have  been  ill-advised  as  to 
the  law,  but  that  was  not  the  fault  of  the  plaintiff.  It  may  be 
proper  to  add  that  defendant  did  not  act  upon  the  advice  of  his 
present  counsel,  and  that  persons  of  ordinary  prudence  do  not 
usually  make  real  estate  loans  under  the  circumstances  disclosed 
in  this  case. 

As  heretofore  suggested,  decisions  involving  judicial  sales  are 
not  applicable  to  this  appeal.  Therefore,  many  authorities 
cited  by  appellant's  counsel  require  no  consideration.  It  was 
held  in  Nebraska  that  where  a  district  court  enters  a  decree 
quieting  title  to  real  estate  in  a  party  to  the  action,  and  such 
party  sells  and  conveys  it  to  an  innocent  third  person  for  a  valu- 
able consideration,  and  afterward  the  decree,  not  having  been 
superseded  by  bond,  is  reversed  in  the  appellate  court,  sudi  pur* 
chaser  will  not  be  affected  by  the  reversal :  Parker  v.  Courtnay, 
28  Neb.  606,  26  Am.  St.  Rep.  360,  44  N.  W.  863.  The  opposite 
conclusion  was  reached  by  the  supreme  court  of  Minnesota  in  an 


704  AuERiOAN  State  Bspobts^  Vol.  91.    [S.  Dakota, 

^opinion  wherein  the  reason  of  fbe  rale  which  protects  pnrdiasen 
at  sales  made  under  executions  of  judgments  is  stated  with  ac- 
curacy and  clearness,  and  wherein  it  is  shown  that  such  mle  has 
no  application  to  persons  who  purchase  from  the  plaintiff  in  ats 
tiong  to  quiet  title:  Lord  t.  Hawkins,  39  Minn.  73,  38  N.  W. 
689.    The  Nebraska  decision  will  be  found  to  rest  largely  upon 
an  early  Ohio  case  strikingly  analogous  to  the  one  at  bar.    It 
was  there  held  ^"^  that  the  decree  in  an  action  to  obtain  a  ocm- 
vcyance  of  certain  land  operated  as  a  conyeyanoe,  subject,  as 
between  the  parties,  to  a  revesting  of  the  title  by  a  reyeisal,  and 
that,  the  plaintiff  having  conveyed  before  citation  of  error  wad 
served,  a  reversal  did  not  devest  the  purchaser's  title.     Conoeni- 
ing  the  second  proposition  the  court  said:  ^^But  the  most  diiS- 
cult  and  important  point  in  Uiis  case  is  as  to  the  effect  the  re- 
versal is  to  have  upon  the  rights  of  third  persons,  legitimately 
and  innocently  acquired.    After  the  time  limited  in  the  decree 
itself  had  transpired,  and  the  decree  became  an  absolute  title, 
the  party  thus  invested  with  title  and  in  possession  of  the  land 
sold  and  conveyed  it  to  a  third  person,  who  stands  before  (he 
court  as  an  innocent  purchaser  for  a  valuable  consideration  wiilH 
out  notice.    Can  his  rights  be  devested  by  a  reversal  of  the  de- 
cree upon  which  his  title  was  originally  founded?    We  are  of 
opinion  that  ihey  cannot  be  so  devested.    When  James  Boyd 
conveyed  to  Abraham  Boyd,  he  had  a  complete  title,  which  it 
was  competent  for  him  to  transmit  by  conveyance  in  the  usual 
mode.    In  making  this  conveyance  he  devested  himself  of  title, 
and  invested  it  in  Abraham  Boyd,  the  defendant,  who  reposed 
himself  upon  the  solemn  and  final  decree  of  a  court  of  competent 
jurisdiction,  then  in  full  force  and  of  unquestionable  validity. 
By  this  act  of  conveyance,  made  in  good  faith,  James  Boyd  put 
an  end  to  his  power  over  the  land.    He  could  not  resume  his 
interest  in  it  without  the  consent  of  his  grantee,  and  no  decree 
subsequently  made  in  the  suit,  or  in  any  new  suit  growing  out 
of  it,  against  James  Boyd,  could  affect  an  interest  which  he  had 
not  in  the  subject.    This  consequence,  upon  the  premises  here 
assumed,  seems  to  be  conceded  by  the  counsel  for  the  plaintiff. 
But  he  argues  that  the  conveyance  cannot  be  treated  as  one  made 
in  good  faith,  because,  as  he  insists,  it  was  made  pendente  lite. 
If  this  position  be  correct,  the  result  contended  for  necessarily 
follows;  for  a  ***  conveyance  of  a  subject  in  litigation,  made 
pending  the  litigation,  is  universally  treated  as  made  in  bad 
faith,  and  as  universally  held  not  to  change  the  rights  of  any  of 
the  parties*' :  Taylor  v.  Boyd,  3  Ohio,  338,  17  Am.  Dec  603. 


March,  1902.]  Mach  v.  Blanohard.  705 

The  court  then  discussed  the  oontentioii  that  a  writ  of  error  is 
but  a  continuance  of  the  original  suit,  and  reached  the  conclu- 
sion that  it  is  itself  a  new  and  original  proceeding,  which  can 
only  aflfect  parties  or  strangers  from  the  service  of  the  citation. 
If  the  action  wherein  the  decree  was  rendered  had  been  "deemed 
io  be  pending'^  when  the  property  was  conveyed  to  the  purchaser, 
the  court  could  not,  in  harmony  with  its  own  reasoning,  have 
decided  in  his  favor.  As  has  been  shown,  the  Parszyk-Mach  ac- 
tion was  pending  when  the  defendant's  mortgage  was  executed. 
Bead  in  connection  with  our  statutes  defining  the  pendency  of 
actions  and  our  appellate  procedure  in  civil  actions,  the  Ohio 
decision  sustains  the  view  heretofore  taken  of  the  rights  of  both 
Parszyk  and  the  defendant.  The  following  cases  are  to  the 
same  effect — the  purchaser  being  protected  because  the  judgment 
was  reversed  on  writ  of  error  or  bill  of  review,  and  therefore  the 
action  was  not  pending:  Macklin  v.  AUenberg,  100  Mo.  337, 
13  S.  W.  360;  McCormick  v.  McClure,  6  Blackf.  466,  39  Am. 
Dec.  441 ;  Rector  v.  Fitzgerald,  8  C.  C.  A.  277,  59  Fed.  808 ; 
Ludlow  V.  Kidd,  3  Ohio,  541. 

We  think  the  learned  circuit  court  did  not  err  in  sustaining 
the  demurrer  to  defendant's  answer^  and  its  judgment  is  af« 
firmed. 

Corson,  J.,  dissents. 


A  Judgment  hy  Default  for  relief  not  prayed  for  is  held  void  in 
BnsseU  v.  Shnrtleff,  23  Colo.  414,  89  Am.  St.  Bop.  216,  65  Pac.  27. 

The  Elfect  of.  the  Reversal  of  a  Judgment  is,  in  general,  to  leave  the 
parties  where  they  stood  before  its  rendition:  Ward  ▼.  Marshall,  96 
Cal.  155,  31  Am.  St.  Rep.  198,  30  Pac.  1113.  The  reversal  of  a 
judgment  quieting  title,  however,  does  not  afFeet  a  bona  fide  pur- 
chaser: Parker  v.  Courtnay,  28  Neb.  605,  26  Am.  St.  Bep.  360,  44 
N.  W.  863.  See,  also,  Weicker  v.  Staples,  83  Tenn.  49,  17  Am.  St 
Rep.  869,  12  S.  W.  340;  Quan  Wo  Chung  Co.  v.  Laumeister,  83  Cal. 
384,  17  Am.  St.  Bep.  261,  23  Pac.  320;  Adams  v.  Odom,  74  Tex.  206, 
15  Am.  St.  Bep.  827,  12  S.  W.  34;  Gould  v.  Stemburg,  128  111.  510. 
15  Am.  St.  Bep.  138,  21  N.  E.  628;  Withers  ▼.  Jacks,  79  Gal.  297,  12 
Am.  St.  Bep.  143.  21  Pac.  824;  Bridges  v.  McAllister,  106  Ky.  791, 
90  Am.  St.  Bep.  267,  51  S.  W.  603. 
Am.  St  Rep.,  Vol.   W-45 


OASES 

or  THS 

SUPEEME   COIJBT 


TENNESSEE. 


GRAY  V.  TELEGEAPH  COMPANY. 

[108  Tenn.  39,  64  &  W.  1063.] 

TBLEO&APH  00MPANIE8— Beeorery  for  Mental  AngoUh — 
Ck>iiJUct  of  Laws.— The  sender  of  a  telegraph  message  from  one  state 
to  a  i)oint  in  another  state  may  recover  in  the  latter  state  for  mental 
angniih  suffered  throngh  negligent  delay  in  the  ddivery  of  the  mes- 
sage, when  such  recovery  is  anthorixed  by  the  statutes  of  that  states 
although  in  the  state  from  which  the  message  was  sent  no  recovery 
can  be  had  for  mental  angpush.     (p.  712.) 

TEIiBOBAPH  00MPANXB8— Interstate  Oommeroe— XMlay  in 
Delivery  of  Messages.— A  statute  enforcing  the  prompt  delivery  of 
telegraph  messages  and  making  iho  company  guilty  of  a  misde- 
meanor and  liable  in  damages  for  a  failure  to  deliver  messages 
promptly,  is  not  an  nnlawfuf.  interference  with  interstate  eommeree 
when  applied  to  messages  sent  from  one  state  for  delivery  in  the 
Ktate  enacting  such  statute,     (p.  713.) 

TELBO&APH  OOMPAMIES— Delay  in  Delivery— Pecsoa  In- 
jured.— The  sender  of  a  telegraph  message  is  a  person  aggrieved 
by  negligent  delay  in  its  transmission  and  delivery,     (p.  714.) 

Givens  &  Hensley  and  Burkett,  Miller  &  Manflfidd^  for  the 
plaintiff. 

P.  V.  Brown  and  B.  G.  McKenzie,  for  the  defendant 

*•  McALISTER,  J.  Kite  K  Gray,  a  married  woman,  brings 
this  suit  by  C.  H.  Gray,  her  husband,  as  next  friend,  against 
the  defendant  company,  to  recover  damages  for  failing  prcHnptly 
to  transmit  and  deliver  a  telegram  sent  by  her  from  Taylors, 
Mississippi,  to  her  husband,  C.  H.  Gray,  at  Dayton,  Tennessee, 
informing  him  of  the  serious  illness  of  their  daughter,  and 
questing  him  to  come  to  Taylors. 


Oct.  1901.]  Gbay  i^.  Telegbjlph  Co.  707 

The  trial  below  resulted  in  a  yerdict  and  judgment  in  favor 
of  the  plaintiff  for  nominal  damages.  Plaintiff  appealed^  and 
has  assigned  errors.  The  facts  are  practically  undisputed.  It 
appears  that  in  July,  1900,  C.  H.  Gray  was  at  Dayton,  Ten- 
nessee, where  for  some  months  he  had  been  engaged  in  business^ 
and  at  that  time  his  wife,  Kate  N.  Gray,  with  her  daughter, 
Louise,  were  in  the  state  of  Mississippi,  where  the  family  resided. 
It  further  appears  that  C.  H.  Gray  still  retained  his  residence 
in  Mississippi.  On  July  15,  1900,  Mrs.  Gray  addressed  to  her 
husband  the  following  telegram,  to  wit :  ^^Louise  is  sick.  Come 
on  first  train.  Stop  at  Taylors.''  This  message  was  promptly 
transmitted  to  Dayton,  but  was  held  at  the  latter  place  from  the 
afternoon  ^^  of  July  15th  until  the  morning  of  the  16th,  when 
it  was  deliyered  to  the  sendee.  The  daughter  died  at  10  P.  M. 
on  July  15th,  and  was  buried,  on  advice  of  physicians^  at  5  P. 
M.,  July  16th.  It  is  allied  that  in  consequence  of  the  negli- 
gence of  the  company  in  delivering  the  message,  the  plaintiff's 
husband,  C.  H.  Gray,  was  unable  to  be  with  plaintiff  at  the  fu- 
neral, to  comfort  and  minister  to  her. 

On  the  morning  of  July  16th,  after  receipt  of  his  wife's  mes- 
sage, C.  H.  Gray  telegraphed  as  follows:  'HTnless  Louise  is  dan- 
gerous, cannot  come  until  first  of  month."  Shortly  after  this 
message  was  sent,  plaintiff  received  another  telegram,  sent  at  the^ 
request  of  his  wife,  stating:  '^Louise  died  at  10  P.  M.  yesterday^ 
Come  on  first  train  to  Taylors."  C.  H.  Gray,  the  husband,  then 
left  Dayton  on  the  afternoon  of  July  16th,  and  reached  Taylors 
on  tbe  morning  of  July  17th,  but  the  daughter  had  been  buried 
at  5  P.  M.  on  July  16th.  It  appears  that  if  the  telegram  from 
Mrs.  Gray,  which  was  received  at  the  ofBoe  of  the  company  in 
Dayton  at  5 :50  P.  M.  on  July  15th  had  been  promptly  delivered^ 
the  husband,  C.  H.  Gray,  could  have  taken  a  train  which  would 
leave  a  half  hour  later,  and  have  reached  Taylors  prior  to  his 
daughter's  interment.  He  testifies  that  he  would  have  taken 
said  train.  It  further  appears  that  the  husband,  C.  H.  Gray, 
after  the  receipt  of  the  last  telegram  announcing  his  daughter's 
^^  death,  took  the  first  train  that  made  connection  for  Taylors. 

As  already  observed,  Uiis  is  the  suit  of  the  wife,  and  the  grav- 
amen of  the  action  is  the  loss  to  her  of  the  presence  and  conso- 
lation of  her  husband  at  the  daughter's  funeraL 

Among  other  pleas  filed  hy  the  defendant  company  was  the  fol- 
lowing, to  wit :  "That  the  telegram,  about  the  delivery  of  which 
complaint  is  made,  was  filed  at  one  of  its  [the  company's]  ofiices 


ffOS  American  Statb  Bepobts,  Vol.  91.  [T 

in  the  state  of  Mississippi^  and  the  contract  for  the  transmission 
and  delivery  of  said  telegram  was  made  and  entered  into  by  the 
parties  to  the  contract  in  the  state  of  Mississippi,  and  in  refer- 
ence to  the  laws  of  said  state,  and  defendant  avers  that,  accord- 
ing to  the  laws  of  Mississippi,  under  which  the  contract  ^was 
made,  the  plaintiff  has  no  right  of  action  to  recover  the  damages 
sued  for.^'    Plaintiff's  counsel  demurred  to  this  plea,  because 
immaterial  and  insufficient  in  law,  but  the  demurrer  was  over- 
ruled.    Plaintiff  then  filed  the  following  replication  to    said 
plea,  to  wit:  ^^She  admits  the  delivery  of  the  telegram  to  de- 
fendant at  one  of  its  offices  in  the  state  of  Mississippi,  and  that 
the  contract  for  the  transmission  and  delivery  of  said  tdegraxn 
.  was  made  in  the  state  of  Mississippi,  and,  according  to  its  laws, 
she  would  have  no  right  of  action  to  recover  the  damages  su€?d 
for,  but  she  denies  that  the  contract  for  the  transmission  and 
"delivery  ***  of  said  telegram  was  entered  into  in  reference  to, 
and  to  be  governed  by  the  laws  of,  said  state,  further  than  the 
confines  of  the  state  of  Tennessee,  and  in  which  latter  state  the 
default  sued  for  is  shown  to  have  occurred.'*    Defendant  moved 
to  strike  out  this  replication,  but  the  motion  was  overruled.     At 
at  subsequent  term,  plaintiff,  reserving  her  exceptions,  by  leave 
of  the  court,  filed  an  additional  replication  to  the  fourth  plea, 
viz. :  ^^That  her  cause  of  action  herein  arises  under  the  staintes 
and  laws  of  Tennessee,  and  not  under  the  laws  of  Mississippi, 
and  that  in  the  making  of  the  original  contract  for  the 
mission  and  delivery  of  said  telegram,  she  did  not  waive  or 
nounce  any  rights  afforded  her  by  the  laws  of  Tennessee,  and 
for  this  reason  she  should  not  be  prejudiced  by  the  Jaws   of 
Mississippi."     Issue  was  joined  on  this  replication. 

The  court  charged  the  jury,  among  other  things,  as  follows: 
*^If  the  proof  shows  the  message  not  delivered  in  a  reasonable 
time,  and  that  plaintiflFs  husband  on  that  account  failed  to  go 
to  the  plaintiff,  and  that  he  would  have  gone  if  the  message  had 
been  promptly  delivered,  and  that  plaintiff  was,  in  consequence 
thereof,  deprived  of  his  sympathy  and  consolation  during  the 
daughter's  illness  or  at  the  funeral,  you  should  find  for  the 
plaintiff,  and  award  her  nominal  damages — ^that  is,  a  small  suni 
of  a  few  cents,  so  as  to  carry  the  costs  against  the  defendant. 
But  the  contract,  ^*  undertaking  or  agreement,  having  been  en- 
tered into  in  the  state  of  Mississippi  for  the  tranamission  and 
delivery  of  the  message,  which,  as  alleged  in  the  plaintiff's  dec- 
laration, was  partly  performed  in  that  state,  the  liability  of  the 
defendant  for  failure  to  promptly  deliver  it,  or  for  negligence 


Oct  1901.]  Geay  v.  Telegraph  Ca  70» 

for  delay  in  its  delivery  to  the  sendee  in  Tennessee,  is  governed 
by  the  laws  of  Mississippi,  and  under  the  laws  of  that  state  nc> 
recovery  can  be  had  for  mental  anguish  merely,  and  that  being 
the  only  injury  complained  of  in  this  suit,  you  should  award  no 
damages  for  mental  anguish/' 

Counsel  for  plaintiff  then  submitted  four  supplemental  in- 
structions, which  he  asked  to  be  given  in  charge  to  the  jury, 
which  requests  were  declined  by  the  court.  The  substance  of  _ 
«aid  request  was  that  if  defendant  company  breached  its  statu- 
tory  duty  as  defined  by  the  laws  of  Tennessee,  after  the  message 
was  received  at  Dayton,  Tennessee,  by  failing  to  promptly  de- 
liver it,  that  plaintiff  could  recover  such  damages  as  were  the 
direct  and  proximate  result  of  the  company's  breach  of  duty. 

The  errors  assigned  are:  1.  The  court  was  in  error  in  refus- 
ing to  strike  out  the  fourth  plea  filed  by  defendant;  2.  It  was  er- 
ror to  charge  the  jury  that  plaintiff  was  only  entitled  to  nominal 
damages;  3.  Because  the  laws  of  Mississippi  did  not  govern 
and  control  defendant's  liability  in  this  case  under  the  facts; 
4.  Because  ^  the  statement  of  the  judge  that  the  jury  should 
find  "SL  small  sum  of  a  few  cents,"  was  an  infringement  of  the 
province  of  the  jury  and  equivalent  to  directing  a  verdict;  5. 
The  court  should  have  given  in  charge  the  four  requests  submit- 
ted by  plaintiflPs  counsel,  to  the  effect  that  the  statutes  of  Ten- 
nessee, and  not  the  laws  of  Mississippi,  determined  the  defend- 
ant's liability,  and  that  if  default  occurred  in  delivery  of  the 
message  after  it  reached  Dayton,  plaintiff  should  recover  such 
damages  as  were  the  legitimate,  proximate,  and  direct  result  of 
defendant's  default. 

The  argument  in  support  of  the  instructions  given  by  the  cir- 
cuit judge  to  the  jury  proceeds  upon  the  assumption  that  the 
plaintiff's  right  of  action  is  ex  contractu,  and  based  upon  an 
agreement  entered  into  and  partly  performed  in  the  state  of 
Mississippi.  The  corollary  is  then  propounded  that  such  a  con- 
tract must  be  governed  by  the  laws  of  Mississippi  in  existence  at 
that  time,  and  since  the  laws  of  that  state  exonerate  the  tele- 
graph company  from  liability  for  mental  anguish,  occasioned  by 
the  failure  to  promptly  transmit  and  deliver  electrical  messages,, 
there  can  be  no  recovery  in  this  case.  |t  is  conceded  in  argu- 
ment that  such  is  the  law  of  Mississippi,  although  the  rule  is 
otherwise  in  the  state  of  Tennessee:  Wadsworth  v.  Western. 
Union  Tel.  Co., '86  Tenn.  695,  6  Am.  St.  Bep.  864,  8  S.  W.  574.. 

Counsel  cites  numerous  authorities  to  show  that  ^^  in  a  casn- 
like  this,  the  Mississippi  law  must  control.    In  Scudder  v^ 


710  Ambbican  Statb  Bbpoets,  Vol.  91.  [Temi. 

Union  Nat  Bank,  91 17.  S.  412,  413,  it  was  said  by  the  United 
States  supreme  court  that  '^matters  bearing  upon  the  execution, 
the  interpretation,  and  the  validity  of  a  contract  are  determined 
by  the  law  of  the  place  where  the  contract  is  made.  Matters 
connected  with  its  performance  are  regulated  by  the  law  pre- 
vailing at  the  place  of  performance.  Matters  respecting  the 
remedy,  such  as  the  bringing  of  suits,  admissibility  of  eyidence, 
statutes  of  limitations,  depend  upon  the  law  of  tiie  place  where 
the  suit  is  brought^' :  Hubble  y.  Morristown  Land  etc  Co.,  95 
Tenn.  585,  32  S.  W.  965. 

In  the  case  of  Liverpool  etc.  Steamship  Co.  v.  Phoenix  Ins. 
Co.,  129  U.  S.  397,  9  Sup.  Ct  Eep.  469,  Mr.  Justice  Gray,  after 
a  thorough  review  of  the  principal  cases,  English  and  American, 
on  this  subject,  said  that,  according  to  the  great  preponderance, 
if  not  the  uniform  concurrence,  of  authority,  the  general  rule  is 
that  the  nature,  the  obligation,  and  the  interpretation  of  a  con- 
tract are  to  be  governed  by  the  law  of  the  place  where  it  is  made, 
tmless  the  parties  at  the  time  of  making  it  have  some  other  law 
in  view.  Accordingly,  it  was  held  in  that  case  that  a  contract 
•of  affreightment  executed  in  New  York,  between  citizens  or 
iresidents  of  that  state,  for  the  shipment  of  goods  to  Liverpool, 
ia  an  American,  and  not  an  English  contract,  and  so  fu:  as 
•concerns  ^''^  the  obligation  to  carry  the  goods  in  safety,  is  to  be 
governed  by  American  law:  2  Parsons  on  Contracts,  Eng.  ed, 
578;  Southern  Ry.  Co.  v.  Harrison,  119  Ala.  539,  72  Am.  St 
Bep.  936,  24  South,  552. 

In  Hazel  v.  Chicago  etc.  Ey.  Co.,  82  Iowa,  477,  48  N.  W.  926, 
it  appeared  that  goods  were  dipped  from  Dakota  to  Iowa  under 
a  contract  limiting  liability,  which  contract  was  void  under  the 
laws  of  Iowa,  but  valid  where  made.  The  goods  were  lost  in 
Iowa,  but  recovery  was  denied  because  of  the  limitation  of  lia- 
bility contained  in  the  contract  of  shipment.  The  supreme 
court  said,  viz. :  ''It  is  a  fundamental  rule,  and  one  of  almost 
universal  application,  that  in  case  of  a  conflict  of  laws  concern- 
ing a  private  contract,  the  law  of  the  place  where  the  contract  is 
made,  and  not  where  the  action  is  brought,  is  to  be  considered  in 
expounding  and  enforcing  the  contract,  unless  it  be  shown  by  the 
contract,  or  fairly  inferable  therefrom,  that  the  parties  intended 
that  the  law  of  another  state  or  country  should  control  their 
rights.  In  this  case,'^  said  the  court,  ''the  parties  contracted 
under  the  laws  of  Dakota,  and  the  fact  that  such  a  contract  is 
void  in  this  state  [Iowa]  shows  that  it  was  intended  that  our 
laws  should  not  have  any  application  to  their  contract 


Oct  1901.]  Obay  v.  Telegbjlph  Co.  711 

In  Heed  v.  Western  Union  TeL  Co.,  136  Mo.  674,  58  Am.  St 
Bep.  616,  37  S.  W.  904,  it  appeared  that  a  suit  was  brought  in 
Missouri  by  the  addressee  of  a  telegram  sent  from  Iowa.  The 
court  said,  viz.:  *®  ''Both  parties  to  this  agreement  for  the 
transmission  of  the  message  resided  in  Iowa.  The  tariff  was 
paid  and  the  defendant  entered  upon  tiie  performance  of  the 
contract  in  that  state.  The  statute  and  laws  of  Iowa  were 
therefore  pertinent  and  admissible,  and  determined  the  effect 
of  the  contract^':  See  McDaniel  v.  Chicago  eta  By.  Co.,  24 
Iowa,  416. 

In  Hubble  v.  Morristown  Land  etc.  Co.,  95  Tenn.  589,  32 
S.  W.  965,  we  held  that  ''the  validity  of  the  contract,  the  obli- 
gation of  the  parties,  its  character  and  extent,  are  to  be  settled 
by  the  law  of  the  place  where  the  contract  was  made,  or  to  be 
performed.  ....  If  the  contract  is  made  in  one  place,  and  it 
is  agreed  to  be  performed  in  another  place,  the  law  of  the  place 
of  performance,  instead  of  the  lex  loci  contractus^  will  govern 
the  contract'^  In  that  case  it  was  held  that  a  note  secured  by 
mortgage  on  Tennessee  land  for  a  loan  negotiated  in  Connecti- 
cut, executed  in  North  Carolina,  but  delivered  and  made  payable 
in  New  Jersey,  was,  in  the  absence  of  any  different  understand- 
ing between  the  parties,  governed  by  the  laws  of  New  Jersey  in 
respect  to  usury. 

In  Coghlan  v.  South  Carolina  E.  R.  Co.,  142  U.  S.  101,  12 
Sup.  Ct  Bep.  150,  it  was  held  that  contracts  made  in  one  place, 
to  be  executed  in  another,  are,  as  a  general  rule,  to  be  governed 
by  the  law  of  the  place  of  performance.  It  was  accordingly 
held  that  bonds  of  a  railroad  company  in  South  Carolina,  ^^ 
which  are  redeemable,  and  are  to  be  wholly  performed  in  Eng- 
land, bear  interest  after  maturity,  according  to  the  law  of  Eng- 
land: Sec,  also.  Hall  v.  Cordell,  142  U.  S.  116,  12  Sup.  Ct 
Bep.  154. 

These  authorities  are  very  instructive  upon  the  proposition 
submitted  by  counsel,  and  probably  controlling  in  this  case,  if 
the  remedy  of  plaintiff  was  alone  upon  the  contract  But  we 
have  in  this  state  a  statute  which  has  been  construed  by  this 
court  to  provide  an  additional  remedy.  It  declares  that  "all 
other  messages,  including  those  received  from  other  telegraph 
companies,  shall  be  transmitted  in  the  order  of  their  delivery, 
correctly  and  without  unreasonable  delay,  and  shall  be  kept 
strictly  confidential^*:  Shannon^s  Code,  sec.  1837. 

"Any  oflScer  or  agent  of  a  telegraph  company  who  willfully 
violates  either  of  the  provisioBs  of  the  precediug  section  is 


712  American  State  Beports,  Vol.  91.  [Temu 

guilty  of  a  misdemeanor,  and  the  telegraph  or  telephone  com- 
pany is  liable  in  damages  to  the  party  injured'*:  Shannon's 
Code,  sec.  1838. 

Construing  this  statute  in  Western  Union  Tel.  Co.  v.  Mellon^ 
96  Tenn.  72,  33  S?  W.  725,  we  held  that  under  our  statute,  al- 
lowing a  right  of  action  to  the  party  aggrieved,  it  was  not  neces- 
sary that  any  contractual  relation  should  exist,  but  the  com- 
pany is  liable  for  a  breach  of  its  statutory  duty  independent  of 
any  contract.    The  breach  of  the  statute,  in  failing  to  deliver 
the  message,  entitled  the  party  aggrieved  to  at  least  nominal 
damages,  *®  to  which  may  be  added  compensatory  or  exemplarv 
damages,  in  the  discretion  of  the  jury.    In  that  case  we  quoted 
with  approval  Mr.  Thompson  on  the  Law  of  Electricity,  section 
427,  in  which  it  is  said,  viz.:  "The  true  view  which  seems  to 
snstaift  the  right  of  action  in  the  receiver  of  the  message,  or  in 
the  person  addressed,  when  it  is  not  delivered,  is  one  which  ele- 
vates the  question  above  the  plane  of  mere  privity  of  contract, 
and  places  it  where  it  belongs,  upon  the  public  duty  which  the 
telegraph  company  owes  to  any  person  beneficially  interested  in 
the  message,  whether  the  sendee  or  his  principal,  where  he  is 
agent,  or  flie  receiver,  or  his  principal,  where  he  is  agent."    We 
are  of  opinion,  therefore,  that  plaintiff  is  an  aggrieved  party 
within  the  meaning  of  the  act,  and  as  such  is  entitled  to  main- 
tain an  action  against  the  defendant  company  for  the  breach  of 
a  public  duty.    It  is  wholly  immaterial  that  this  message  was 
sent  from  another  state,  and  that  plaintiff  is  seeking  to  recover 
for  the  failure  to  deliver  such  a  message.    In  Western  Union 
Tel.  Co.  V.  James,  162  U.  S.  651,  16  Sup.  Ct.  Rep.  934,  it  ap- 
peared that  the  state  of  Georgia  had  passed  a  statute  prescribing 
a  penalty  of  one  hundred  dollars  against  telegraph  companies 
failing  to  transmit  and  deliver  dispatches  with  due  diligence. 
A  cotton  merchant  in  Georgia  brought  suit  against  the  Western 
Union  Telegraph  Company  to  recover  the  statutory  penalty  for 
failing  to  deliver  with  due  diligence  a  **  message  sent  to  his  ac'- 
dress  by  a  cotton  merchant  residing  in  the  state  of  Alabama, 
which  default  resulted  in  damage  to  the  plaintiff.     Said  the 
court,  viz.:  *'The  only  question,  therefore,  before  the  court  is 
whether  the  statute  of  the  state  of  Georgia,  providing  for  the 
recovery  of  such  penalty,  is  a  valid  exercise  of  the  power  of  the 
state  in  relation  to  messages  by  telegraph  from  points  outside, 
and  directed  to  some  point  within,  the  state  of  Georgia/'    The 
court  held  that  such  a  statute  is  not  an  unconstitutional  interfer- 
ence with  interstate  commerce,  as  applied  to  interstate  messages^ 


Oct.  1901.]  Gray  v.  Telegraph  Co.  713 

in  the  absence  of  any  legislation  by  Congress  on  the  subject. 
Said  the  court:  "The  statute  in  question  is  of  a  nature  that  is 
in  aid  of  the  performance  of  a  duty  of  the  company  that  would 
exixst  in  the  absence  of  any  such  statute^  and  is  in  no  wise  ob- 
structive of  its  duty  as  a  telegraph  company.  It  imposes  a  pen- 
alty for  the  enforcement  of  this  general  duty  of  the  company. 
....  Can  it  be  said  that  the  imposition  of  a  penalty  for  the 
Tiolation  of  a  duty  which  the  company  owed  by  the  general  law 
of  the  land  is  a  regulation  of^  or  an  obstruction  of,  interstate 
commerce  within  the  meaning  of  that  clause  of  the  federal  con- 

stitution?    We  think  not We  see  no  reason  to  fear  any 

weakening  of  the  protection  of  the  constitutional  provision  as  to 
conunerce  among  the  several  states  by  holding  that  in  regard  to 
such  a  message  as  '^  the  one  in  question,  although  it  comes 
from  a  place  without  the  state,  it  is  yet  under  the  jurisdiction  of 
the  state  where  it  is  to  be  delivered  (after  its  arrival  therein  at 
the  place  of  delivery) ,  at  least  so  far  as  legislation  of  the  state 
tends  to  enforce  the  performance  of  the  duty  owed  by  the  com- 
pany under  the  general  law.*' 

It  wUl  be  observed  that  the  Tennessee  statute  provides  no  pen- 
alty for  its  infraction,  but  the  violation  thereof  is  declared  a 
misdemeanor,  and  a  right  of  action  is  expressly  given  the  ag- 
grieved party  for  all  damages  sustained.  Plaintiff,  as  the  party 
aggrieved,  is  entitled  to  sue  in  this  state  for  breach  of  the  statute. 

It  is  insisted,  however,  that  whatever  action  plaintiff  might 
have  brought  by  virtue  of  the  code  provision,  she  has  not  started 
such  suit,  but  is  suing  upon  the  contract  made  with  the  com- 
pany in  Mississippi.  In  Western  Union  Tel.  Co.  v.  Mellon,  96 
Tenn.  72,  33  S.  W.  725,  we  held  that  such  an  injury  might  be 
redressed  upon  a  statement  of  the  facts  of  the  case.  If  the 
statute  prescribed  a  specific  penalty  for  its  violation,  and  the 
suit  was  brought  to  recover  that  penalty,  it  would  be  necessary 
to  declare  on  the  statute. 

The  declaration  herein,  in  setting  out  the  facts,  recites  the 
contract,  but  the  statement  of  the  cause  of  action  is  not  dis- 
tinctively ez  contractu,  and  is  sufficient  for  relief  under  the 
statute. 

•*  It  is  insisted,  however,  that  the  mental  suffering  claimed 
to  have  been  sustained  by  the  wife  on  account  of  the  absence 
of  her  husband  from  the  funeral  was  not  the  proximate  conse- 
quence of  the  failure  to  deliver  the  telegram,  since  the  telegram 
sent  by  the  wife  only  conveyed  intelligence  of  the  daughter's  ill- 
ness.   Again,  it  is  insisted  that  the  proof  shows  that  the  hus- 


714  Ambbican  Statb  Bbpobts,  Vol.  91.  [Tesm. 

band  would  not  have  departed  for  Taylors  had  he  reoeiTed  Ute 
message  on  Sunday^  since  the  telegram  to  his  wife  on  the  follow- 
ing day  advised  his  wife  that  unless  his  daughter  was  danger- 
ously sick,  he  could  not  go  until  the  first  of  the  montlL 

We  do  not  pass  upon  these  questions  upon  this  record,  but  for 
the  errors  in  the  charge  of  the  court  on  the  subject  of  the  con- 
tract,  and  his  refusal  to  charge  as  requested,  the  judgment  is 
reversed  and  the  cause  remanded. 


OOHFIIOT  OF  LAWS  AS  TO  MEASUBE  OF  DAICAOBS.* 
L    Scope  of  Kota. 
XL    Breach  of  Contract. 

a.    As  Between  Law  of  Flace  of  Making  and  Law  of  Slaea 
of  Performance. 

1.  Contracts  in  OeneraL 

A.  (General  Bole. 

B.  Effect  of  Lex  Lod  Bel  Sitae. 

C.  Where  Place  of  Making  is  also  Place  of  Pact 

Performance* 

2.  Negotiable  Instruments. 

A.  General  Bole. 

B.  Where  Secured  by  Property  Sttnatod  In  Pte> 

eign  State. 
Ii.    Effect  of  Lsx  Port 
1.    In  OeneraL 
8.    Breach  of  Contract. 

A.  Cases  in  Which  Ponnn  Is  PilNtml   tnm 

Place  of  Making  and  of  Pecf  onnaaoa. 

B.  Cases  Whsre  Porom  is  the  Same  as  the  PlMs 

of  Making  or  of  PetfennanGe. 

(1)  Cases  Bejeeting  Ln  Fori* 

(2)  Cases  Applying  Lsx  Fori. 

0.  (Bond  Given  in  One  Court  Sued  on  In  AaottsE. 
ZIL    Torts. 

a.    Where  Based  upon  Belation  of  Contract  Inter  Partes. 
j'b.    Conflict  Between  Law  of  Place  of  Injury  and  of  ForaL 


•BSRBEirca  TO  MOMOaKAnUO  MO 

When  tTMisitory  oaoies  of  aotion  may  not  be  fkroteeotad  la  a  forticii  nsto 
ooantry:  60  Am.  St.  Bap.  86»-l«5. 
Snlorooment  of  contract  outiida  of  Jorlfldictioa  whore  made:  M  Am 

774-778 

Action  In  one  lUte  to  enforce  canee  of  action  created  by  the  ftatatce  gf 
X4  Am.  St.  Rep    160-855.  _       __ 

Actlonp,  when  local  and  when  trantltoir:  23  Am.  PL  Bcp.  9M7. 

Conflict  of  laws  ae  to  usury:  46  Am.  St.  Rep.  'iOI,  '<^i-      .        ^^  .^  _ 

Sniorcement  In  other  itatee  of  the  pemnal  UabUity  d  clookholdctB:  87  AaL  9L 
Bep.  liS-iTft. 

AnertlBf  againet  a  married  woman  a  liability  to  which  die  !■  sableet  la  the 
where  It  wac  created,  bat  not  in  the  state  where  ihe  la  lood:  48  Am.  St.  t^.  44 


Oct.  1901.]  Gray  v.  Tblkgraph  Co.  "tlh 

l»   In  Detorsiining  Whether  Aefekm  is  HaintainaUe. 

A.  General  Bnle. 

B.  Where  Subsequent  Suits  for  Same  Tort  Al- 

lowed by  Lex  Lod  Delicti. 
0.    Exemplary  Damages. 

D.    Where  Lex  Lod  DeUcti  is  a  Penal  Statute. 
8.    In  Fixing  Measure  of  Damages. 

A.  Weight  of  Authority-Lex  Loci  Delicti  Oot- 

ems. 

B.  Oontrary  Doctrine. 

XT.    Zntesest  as  Damages. 

a.    In  General— Distinction  Between  Conventional  and  Mora- 

tory  Interest. 
bb    OonlUct  as  Between  Law  of  Place  of  Making  and  of 
Place  of  Performance  of  Contract. 

1.  General  Bule. 

2.  Promissory  Notes. 
8.    Bills  of  Bxchange* 

e.    Effect  of  Lex  Loci  Bei  Sitae. 
d.    Effect  of  Lex  Fori. 

1.  In  CtaieraL 

8.    Foreign  Judgments. 

A.  Weight  of  Authority— Law  of  Place  Where 

Judgment  is  Bendered  Controls. 

B.  Contrary  Doctrine. 

C.  Whether  Interest  Is  Allowable  on. 

D.  Where  Judgment  Specifies  Bate  of  Interest 

E.  Effect  of  Federal  Constitution. 

8.    Domestic  Jtidgment  on  Foreign  Cause  of  Action. 
4    Contracts  in  GeneraL 

A.  Weight  of  Authority— Lex  Fori  does  not  Con- 

troL 

B.  Contrary  Doctrine. 
8.    Vegotiable  Instruments. 

A.  Promissory  Notes. 

(1)  Weight  of  Authority. 

(2)  Contrary  Doctrine. 

(3)  Where  Payable   Generally. 

B.  Corporate  and  Municipal  Bonds^  etc 
O.    Bills  of  Exchange. 

6.  Torts. 

7.  Bevlew  of  Cases  as  to. 
•ii    PresuBptlony  etc 

L    Foreign  Law  not  a  Subject  of  Judicial  Notice. 

2.  Consequences  of  Failure  to  Prove  Foreign  Law. 

A.  View  that  no  Interest  Is  Allowable. 

B.  View  that  Common  Law  Preralls* 


716  American  Statb  Bepobts,  Vol.  91.  [Tens. 

O.    View  that  Domestie  Law  Ooyems. 
f .    Statutory  Proyisiong, 

L  Scope  of  Kote. 
In  the  following  note  no  attempt  will  be  made  to  treat  of  the 
conflict  of  laws  in  relation  to  the  validity  or  effect  of  aneh  eote 
tractual  provisions  as  may  affect  the  measure  of  damages.  Such  are 
provisions  for  interest,  which  involve  questions  of  nsury,  stipula- 
tions limiting  liability  on  a  contract  in  case  of  breach,  or  for  at* 
tornoys'  fees  in  the  event  of  suit,  etc.  The  validity  and  effect 
of  these  and  similar  provisions  is  dependent  upon  the  same  prin- 
ciples as  govern  the  validity  and  effect  of  contracts  generally  where 
a  conflict  of  laws  arises.  The  object  of  this  note  is  rather  to  de- 
termine by  the  law  of  what  place  the  rule  for  computing  damages 
is  flzed  where  suit  is  brought  in  one  jurisdiction  on  an  oblig&tioa 
incurred  under,  or  in  some  way  affected  by,  the  law  of  another  juria- 
diction,  than  to  eonsider4he  validity  or  effect  of  contraetaal  piro- 
visions,  although  they  may,  in  some  cases,  affect  the  amount  of  re- 
covery. 

XL    Breach  of  Contract. 

a.    As  Between  Law  of  Place  of  Making  and  Law  of  Place  of  P«« 

formance. 

1.    Contracts  Jn  OeneraL 

A.  (General  Rule. — Whore  a  contract  is  entered  into  in  one  plaee 
to  be  performed  in  another,  as  between  these  two  jurisdictions^  the 
rule  and  the  measure  of  damages,  in  the  event  of  the  contract  be- 
ing breached,  is  flxed  by  the  law  of  the  latter  jurisdiction.  This 
principle,  if  not  the  necessary  result  of,  is  at  least  derived  by  analogy 
from,  the  principle  that  the  validity,  interpretation  and  effeet  of 
a  contract  is  to  be  governed  by  the  law  which  the  parties  thereto 
had  in  view  in  executing  it,  and  which  when  the  place  of  perform* 
a  nee  differs  from  the  place  of  execution,  is  presumed,  in  the  ab- 
sence of  express  stipulation  otherwise,  to  be  the  law  of  the  place 
of  performance  (lex  loci  solutionis).  The  consequences  which  are  to 
flow  from  a  breach  of  a  contract  are  a  very  important  element  ia 
determining  the  '' effect '^  of  a  contract,  and  it  is  accordingly  held 
that  the  law  which  the  parties  are  presumed  to  have  fixed  upon  as 
determining  the  effect  of  a  contract  while  it  remains  in  force  shaU 
likewise  determine  the  consequences  which  follow  its  breach. 

Thus,  in  Sandham  v.  Grounds,  94  Fed.  83,  36  C.  0.  A.  103,  an  ac- 
tion was  brought  against  the  administratrix  of  the  estate  of  a  de- 
cedent for  the  breach  of  a  contract,  entered  into  between  the  plain- 
tiff and  the  defendant's  intestate  that  the  latter  would  adopt  plain- 
tiff (who  was  his  niece),  bring  her  to  America  from  Ireland,  an4 
leave  her  one-half  his  property  on  his  death.  The  ccmtraet  of 
adoption  was  to  be  performed  in  the  state  of  Penneylvaaia.  Plain- 
tiff was  not  adopted  by  the  decedent,  and  he  dying  intestate^  sbe 


Oct.  1901.]  Gray  v.  Tblkobaph  Co.  717 

did  not  receive  the  property  he  had  eontracted  to  leave  to  her.  The 
court  held  that  the  damages  recoverable  were  to  be  determinecl  by 
the  laws  of  the  state  of  Pennsylvania  where  the  contract  was  to 
be  performed  and  the  assets  of  decedent's  estate  wore  distributable. 
So  where  a  contract  was  made  in  Pennsylvania  to  carry  plaintiff  and 
hia  baggage  over  a  road  lying  entirely  in  New  Jersey,  the  law  of 
the  latter  state  was  held  to  control  the  mode  of  fulfilling  the  con- 
tract and  the  measure  of  recovery  for  its  breach,  being  the  lex  loci 
solutionis:  Brown  v.  Camden  etc.  B.  B.  Co.,  83  Pa.  St.  31G. 

B.  Effect  of  Lex  Loci  Bei  Sitae.— In  Tillotson  v.  Prichard,  60  Vt. 
04,  6  Am.  St.  Bep.  95,  14  Atl.  302,  an  action  was  brought  in  Vermont 
for  a  breach  of  a  covenant  of  warranty  in  a  deed  of  land  situated 
in  Minnesota,  where  the  domicile  of  the  grantor  was  in  Yermons 
nnd  that  of  the  grantee  in  New  Hampshire.  Taf t,  J.,  speaking  for 
the  court  says:  "The  contract  being  one  which  could  only  be  per- 
formed in  Minnesota,  the  parties  evidently  had  in  view  the  law 
of  that  state  in  reference  to  its  execution.  We  think  its  construc- 
tion and  force,  including  the  rule  as  to  damages,  must  be  governed 
by  the  law  of  that  state:  2  Kent's  Commentaries,  459.  'The  law 
of  the  place  where  performance  is  to  occur  governs,  in  respect  to 
the  validity  and  performance  of  contracts  made  in  one  state,  but 

to  be  performed  in  another':  Borer  on  Interstate  Law,  50 The 

plaintiff  claims  damages  under  the  rule  in  this  state,  viz.,  the  value 
of  the  premises  at  the  time  of  the  eviction.  The  referee  makes  no 
finding  of  what  the  law  of  Minnesota  is.  It  should  have  been  found 
aa  a  fact."  In  Looney  v.  Beeves,  5  Kan.  App.  279,  48  Pac.  606, 
an  exactly  opposite  conclusion  is  reached.  The  action  in  that  case 
was  for  the  breach  of  a  covenant  of  warranty  in  a  deed  executed 
in  Kansas,  the  land  conveyed  being  situate  in  Missouri,  and  the 
claim  that  the  law  of  the  latter  state  should  control  was  thus  briefly 
dismissed  by  the  court.  ''In  answer  to  the  first  question  raised  by 
the  plaintiff  in  error,  we  need  only  to  state  that  the  deed  contain- 
ing the  covenant  of  warranty  was  executed  in  this  state,  and  the 
covenantee  is  here  seeking  to  recover  for  a  breach  of  such  covenant. 
The  damages  in  such  caso  must  be  computed  according  to  the  law 
of  this  state."  For  the  law  controlling  the  measure  of  damages 
where  a  promissory  note  made  or  payable  in  one  state  is  secured 
by  a  mortgage  on  land  in  another  jurisdiction,  see  Guignon  v.  Union 
Trust  Co.,  156  III.  135,  47  Am.  St.  Bep.  186,  40  N.  E.  556;  post,  II, 
a,  2,B. 

O.  Wliore  Place  of  Making  Is  also  Place  of  Part  Performance.— 
If  a  contract  is  to  be  partly  performed  in  the  same  jurisdiction  as 
that  in  which  it  is  entered  into,  the  law  of  that  jurisdiction  fixes 
the  measure  of  damages,  and  it  is  immaterial  that  it  is  also  to  be 
IMurtially  performed  elsewhere.  Thus,  in  Beed  v.  Western  Union  Tel. 
Co.,  135  Mo.  661,  58  Am.  St.  Bep.  609,  37  S.  W.  904,  a  telegraph 
messago  was  sent  from  a  point  in  Iowa  to  a  point  in  Missouri,  and 


718  American  Statb  Bepobts^  Vol.  91.  [TenxL 

an  EeiioA  having  been  bronght  in  the  latter  state  for  its  negligeat 
and  erroneous  transmission,  it  was  urged  that  the  law  of  Iowa  was 
wronglv  admitted  in  evidence,  but  the  court  held  that  the  eontract 
having  been  there  made  and  to  be  partially  performed,  the  eirenm- 
stance  that  it  was  also  to  be  partly  performed  in  Missouri  did  DOt 
take  it  out  of  the  operation  of  the  Iowa  statute  relating  to  damages 
recoverable  for  negligence  in  its  performance.  This  ease  la  among 
those  cited  in  the  principal  case  (Gray  v.  Telegraph  Co.,  108  Tena. 
39,  ante,  p.  706,  64  S.  W.  1063)  as  probably  controlling  if  the  remedy 
of  plaintiff  was  alone  upon  the  contract.  The  principal  case  goes 
off  on  the  ground  that  by  a  statute  of  Tennessee,  the  plaee  ie 
which  the  message  was  sent,  the  defendant  telegraph  compaBy  was 
rendered  liable  for  failure  to  deliver  a  message  in  that  state,  wher- 
ever the  contract  for  its  transmission  was  entered  into,  and  even, 
it  seems,  though  no  contractual  relation  existed.  The  language  of 
the  court  leaves  little  ground  for  doubt,  however,  that  had  the 
liability  of  the  defendant  rested  on  its  breach  of  contract  with 
plaintiff,  the  law  of  Mississippi,  where  the  contract  was  executed 
and  partially  performed,  would  controL 

On  the  same  principle  it  was  held  in  Dyke  v.  Erie  By.  Co.,  45  N. 
Y.  113,  6  Am.  Rep.  43,  that  where  a  railroad  ticket  was  bought 
at  one  point  within  the  state  of  New  York  for  transportation  to 
another  point  within  the  same  state,  the  fact  that  the  contract  was 
breached  and  the  purchaser  injured  by  the  defendant's  negligence, 
while  on  a  portion  of  the  latter 's  road  which  was  situated  in  Penn- 
sylvania, did  not  render  the  law  of  New  York  the  less  eontroUing 
in  respect  to  the  measure  of  damages  recoverable.  '^The  duty  and 
obligation  of  the  defendant  in  the  performance  of  the  contraets  com- 
menced and  ended  within  the  state  of  New  York.  Although  the 
route  and  line  of  the  defendant's  road  between  the  placea  at  which 
the  plaintiffs  took  their  passage  and  their  destination  passed  though 
portions  of  the  states  of  Pennsylvania  and  New  Jersey,  by  the  con- 
sent of  those  states  respectively,  the  parties  cannot  be  presumed  te 
have  contracted  in  view  of  the  laws  of  those  states.  The  contracts 
were  single  and  the  performance  one  continuous  act." 

2.    Negotiable  Xmrtmments. 

A.  Ckneral  Rule.— The  same  principles  as  are  above  laid  down 
with  respect  to  contraets  generally  control  where  the  contract  in- 
volved takes  the  form  of  a  promissory  note^  bill  of  exchange,  or 
other  negotiable  instrument.  As  between  the  place  where  the  in- 
strument is  executed  (lex  loci  contractus),  and  that  in  which  pay- 
ment is  to  be  made  (lex  loci  solutionis),  the  law  of  the  latter  juris- 
diction is  the  one  by  which  the  measure  of  damages  is  to  be  as- 
certained. The  place  where  the  note  or  bill  is  payable  does  not, 
however,  necessarily  fix  the  place  at  which  the  contract  of  every 
party  thereon  is  to  be  performed.  Thus,  a  bill  of  exchange  draws 
on  a  party  in  Washington,  D.  C,  by  a  party  in  Alabama  is  pajabte 


Oct  1901.]  Obat  v.  Tei^xgraph  Co.  719 

In  WMhingtoiu  Th«  liability  of  the  drawer  is,  however,  determin- 
able not  by  the  law  of  the  place  where  the  drawee,  if  he  aecepts, 
it  bonnd  to  pay,  but  by  the  plaeo  where  the  drawer  himself  is 
iHmnd  to  perform  his  contract.  ^'The  contract  of  a  drawer  of  a  bill 
of  exchange  is  not  a  contract  to  pay  the  sum  of  money  named  in 
ity  at  the  plaee  upon  which  it  is  drawn;  it  is  only  a  contract  that 
the  bifl  shall  be  accepted  and  then  paid  by  the  drawee;  and  fur- 
ther, for  the  payment  of  the  snm  of  money,  and  sneh  other  sum 
as  will  indemnify  the  holder,  if  it  is  not  accepted  or  not  paid, 
and  ia  protested  and  notice  duly  given.  [Citing  Story  on  Bills, 
sees.  107,  114,  118.]  And  this  indemnity  is  governed  by  the  law 
of  the  place  where  the  bill  is  drawn,  and  not  that  of  the  place  where 
it  is  made  payable  [Story  on  Bills,  see!  176,  note  2,  sec.  177] '': 
Crawford  v.  Branch  Bank  at  Mobile,  6  Ala.  12,  46  Am.  Dec.  33. 

In  the  case  from  which  this  quotation  is  made,  it  was  held  that 
the  drawer  of  a  bill  in  Alabama  on  a  party  in  the  District  of  Colum- 
bia was  responsible  on  the  protest  of  the  bill  to  the  ten  per  cent 
damages  fixed  by  the  statutes  of  Alabama  where  a  bill  drawn  on 
parties  outside  the  state  was  protested.  Statutes  of  this  nature  are 
by  no  means  uncommon,  smd  in  their  application  the  courts  uni- 
formly hold  that  the  law  of  the  place  where  the  bill  is  drawn  is, 
so  far  aa  concerns  the  liability  of  the  drawer,  the  lex  loci  solutionis, 
snd  furnishes  the  measure  of  the  damages  recovexable  from  hin*.. 
If,  by  the  law  of  that  place,  the  drawer  of  a  bill  of  exchange  on 
persons  outside  the  state,  which  bill  is  protested,  becomes  liable 
for  statutory  damages,  he  is  so  responsible,  regardless  of  where  the 
bill  is  made  payable:  Crawford  ▼.  Branch  Bank  at  Mobile,  6  Ala. 
12.  41  Am.  Dec.  33;  Crawford  ▼.  Branch  Bank  at  Decatur,  6  Ala. 
574;  Cullum  v.  Casey,  9  Port.  (Ala.)  131,  33  Am.  Dec.  304;  Price 
V.  Page,  24  Mo.  6S;  Page  ▼.  Page,  24  Mo.  595;  Shipman  v.  Miller, 
2  Boot  (Conn.),  405;  Bank  of  New  Orleans  ▼.  Stagg^  1  Handy 
(Ohio),  382;  Allen  ▼.  Union  Bank,  5  Whart.  (Pa.)  420;  Hazlehurst 
▼.  Kean,  4  Yeates,  19;  Bank  of  United  States  t.  United  States,  2 
How.  711.  Compare,  also,  Kuenzi  v.  Elvers,  14  La.  Ann.  391,  74 
Am.  Dec  434.  So  it  was  held  in  Pomeroy  v.  Slacum,  1  Cranch  C  C. 
578,  Fed.  Cas.  No.  11,262,  and  on  writ  of  error  to  supreme  court  of 
United  States  in  Slacum  v.  Pomery,  6  Cranch,  221,  that  the  law 
of  Virginia,  rendering  the  drawer  or  indorser  of  a  bill  of  ex- 
change which  is  protested  liable  for  fifteen  per  centum  damages 
thereon,  determined  the  liability  of  one  who  indorsed  in  that  state 
s  bill  of  exchange  drawn  in  the  island  of  Barbadoes  upon  a  firm  in 
liiverpool,  England. 

B.  Where  Secured  by  Property  Situated  in  Poreign  State.— If  a 
note  made  and  payable  in  one  state  is  secured  by  a  mortgage  on 
lands  situated  in  another  jurisdiction,  the  measure  of  damages  al- 
lowed OB  the  foreclosure  of  the  mortgage  is  to  be  determined  by 
the  law  of  the  place  in  which  the  note  is  payable^  rather  than  oy 


720  American  State  Beports,  Vol.  91.  [Tens. 

that  of  the  jurisdiction  in  which  the  land  mortgaj^  ma  0eciiritT 
therefor  is  situated.  Thus,  in  Ouignon  t.  Union  Trust  Co,  156  IIL 
135,  47  Am.  St.  Bep.  186,  40  N.  E.  556,  affirming  53  HI.  App.  SBl, 
where  notes  made  and  payable  in  Missouri  were  secured  hj  Imadi 
in  Illinois,  it  was  held  that  In  a  suit  to  foreclose,  the  damages  re- 
coverable included  four  per  cent  damages  as  allowed  on  a  protested 
note  by  the  statutes  of  Missouri.  The  notes  being  payable  in  ftbe 
latter  state  were  held  governed  by  its  laws  as  to  the  damages  re- 
coverable for  its  breach. 

b.    Effect  of  Lex  Fori 

1.  In  General.— The  cases  so  far  considered  have  been  diaenssed 
without  any  reference  to  the  effect  of  the  law  of  the  place  in  which 
suit  is  brought  in  determining  by  what  law  the  measure  of  daia- 
ages  is  to  be  fixed.  The  "conflict"  of  laws  has  up  to  this  point, 
been  treated  only  so  far  as  it  exists  between  the  law  of  the  place 
in  which  the  contract  is  entered  into  (lex  loci  contractus),  tbat  of 
the  place  where  the  contract  is  to  be  performed  (lex  loci  solutionis), 
and  in  cases  where  real  property  situated  outside  one  or  the  other 
of  these  jurisdictions  is  involved,  the  law  of  the  place  where  the 
property  is  situated  (lex  loci  rei  sitae).  Very  frequently,  however, 
the  conflict  involves  still  a  fourth  factor— the  law  of  the  fonun  ia 
which  the  action  is  brought  (lex  fori). 

In  theory,  the  function  of  the  lex  fori  is  quite  sharply    defined 
and  very  well  settled.    It  controls  the  remedy.    By  whatever  law  the 
substantive   rights   of  litigants   may  be   determinable,   no   eonrt  is 
called  upon  by  comity  to  forsake  its  methods  of  administering  re- 
lief and  adopt  those  of  one  or  many  foreign  states.    ''Each  nation 
is  at  liberty  to  adopt  such  forms  and  such  a  course  of  proceeding 
as  best  comport  with  its  convenience  and  interests,  and  the  interests 
of  its  own  subjects,  for  whom  its  laws  are  particularly  designed. 
The  different  kinds  of  remedies  and  the  modes  of  proceeding  best 
rdapted  to  enforce  rights  and  guard  against  wrongs  in  any  natioo, 
must  materially  depend  upon  the  structure  of  its  own  jurisprudence. 
....  All  that  any  nation  can,  therefore,  be  justly  required  to  do, 
is  to  open  its  own  tribunals  to  foreigners    in  the  same  manner  and 
to  the  same  extent  as  they  are  open  to  its  own  subjects  and  to  give 
them  the  same  redress  as  to  rights  and  wrongs  which  it  deems  fit 
to  acknowledge  in  its  own  municipal  code  for  natives  and  resideiits'*: 
Story  on  Conflict  of  Laws,  8th  ed.,  sec.  557.    Is,  then,  the  measure 
of  damages  recoverable  for  the  breach  of  a  contract  or  the  inflietion 
of  a  wrong,  a  matter  of  remedy  merely,  or  is  it  an  element  of  the 
substantive    rights  of  the    litigantst    If    the    former,    the    lex   fori 
is  properly  applicable.    If  the  latter,  the  lex  fori  can  no  more  properly 
determine  the  mensure  of  recovery  than  it  can  determine  the  validity 
of  the  contract  or  other  cause  of  action  for  which  remedy  is  sought 

2.  Breach  of  Contract.— The  cases  which  involve  the  effect  of 
the  lex  fori  in  determining  the  measure  of  damages  reeoverable  for 


ct.  1901.]  Gkay  v.  Telegeaph  Co.  T21 

XE  breach  of  contract  do  not,  in  the  majority  of  instances,  contain 
Skuj  discussion  of  the  question.  In  many  the  question  discussed  by 
"irlie  courts  is  whether  the  lex  loci  contractus  or  the  lex  loci  solu- 
'Tionis  controls^  and  the  opinion  of  the  court  as  to  the  applicability, 
OT,  rather,  inapplicability  of  the  lex  fori  is  derivable  only  from 
Xhe  fact  that  the  latter  is  not  considered  at  all.  In  others,  the 
miction  is  brought  in  the  place  where  the  contract  was  made  or  was 
'to  be  performed,  and  if  the  law  of  the  forum  is  held  to  control,  the 
lan^age  of  the  opinion  alone  indicates  whether  it  is  applied  because 
it  is  the  law  of  the  forum,  or  because  it  is  the  law  of  the  place 
'where  the  contract  was  made  or  to  be  performed. 

A.  Cases  in  Which  Fomm  is  Different  from  Place  of  Making  and 
of  Performance. — The  cases  in  which  the  question  of  the  effect  of 
"the  lex  fori  upon  the  measure  of  damages  is  flatly  presented  are 
"those  in  which  the  action  is  brought  in  a  place  different  from  that 
mn  which  the  contract  was  made  or  to  be  performed.  Whatever  in- 
fluence the  law  of  the  forum  exercises  in  such  a  case  it  exercises  be- 
<^ause  it  is  the  law  ot  the  forum,  and  not  because  it  is  at  the  same 
time  the  lex  loci  contractus,  the  lex  loci  solutionis  or  the  lex  loci 
rei  sitae.  Such  a  case  is  Boe  v.  Jerome,  18  Conn.  138.  There  a 
tfill  of  exchange  was  drawn,  accepted,  transferred  and  made  payable 
in  the  state  of  New  York.  The  acceptance  had  been  obtained  by 
fraud  and  without  consideration,  but  the  holder  took  it  bona  fide 
and  without  knowledge  of  the  fraud,  and  the  question  arose  whether 
recovery  should  be  had  according  to  the  law  of  New  York,  by  which 
the  holder  could  recover  only  what  he  had  actually  paid  for  the 
bill,  or  according  to  the  law  of  the  forum,  Connecticut,  by  which 
the  face  value  of  the  bill  was  recoverable.  The  opinion  of  Williams, 
C.  J.,  which  was  concurred  in  by  the  majority  of  the  court,  first 
disposed  of  the  view  that  the  general  commercial  law,  as  laid  down 
by  the  supreme  court  of  the  United  States,  controlled,  bl  the  state- 
ment that  comity  requires  that  the  decisions  of  each  state  shall  be 
taken  to  settle  the  common  law  in  that  state.  The  opinion  then  con- 
tinues: ''But  it  is  said  that  this  is  not  a  question  to  be  regulated 
by  the  laws  of  New  York  any  more  than  the  damages  in  an  action 
of  trover,  in  which  case,  though  the  property  was  converted  in  the 
state  of  New  York,  we  should  not  go  there  for  the  rule  of  damages. 
But  it  seems  to  the  court  that  the  damages  in  this  case  are  part  of 
the  law  of  the  contract  itself.  Were  the  question  what  interest  the 
plaintiff  should  recover,  or  what  was  the  rule  of  damages  on  a  pro- 
tested bill,  we  should  look  to  the  state  where  the  contract  was 
made  and  to  be  performed  (citing  The  Philadelphia  Loan  Co.  v. 
Towner,  13  Conn.  249,  257).  And  we  do  not  see  why  that  principle 
should  not  be  applied  to  this  case. 

"The  plaintiff,  residing  in  New  York,  purchased  of  a  man  in  N^w 
York  this  bill;  and  by  the  laws  of  that  state,  under  certain  cireum- 
Am.   St   Rap.,  Vol.   91—46 


722  American  Statb  Eeports,  Vol.  91.  [Teniu 

stances,  he  shall  recover  no  more  than  he  has  paid  for  it.     We  df> 
not  see  why  that  is  not  as  much  a  part  of  the  law  of  the  contract 
as  the  rate  of  interest  in  the  other  case.    In  each  ease  the  law  of 
the  state  has  said  how  the  violation  of  the  contract  shall  be  pun* 
] shed— in  other  words,  what  shall  be  a  compensation  to  the   p^rtjr 
aggrieved;  and  the  party  who  buys  a  note  or  bill  is  supposed  to  h» 
as  cognizant  of  the  law  in  the  one  case  as  the  other.     Had  the  rule 
been  settled  by  statute  in  the  one  case  as  in  the  other,  it   would 
seem  to  us  that  there  could  be  no  possible  difference  in  the  cases. 
nor  can  we  see  how  the  fact  that  one  is  settled  by  the  courts  can 
change  its  effect  or  operation.    In  both  cases  it  seems  to  us  a  part 
of  the  law  of  the  contract;  and  if  upon  that  contract  the  plaintiS 
could  in  his  own  state  recover  only  what  he  paid,  we  do  not  think, 
he  ought  to  recover  more  by  coming  into  this  state  for  his  remedy."' 
A    very    similar  state  of  facts    as    that    upon  which    the    opinion 
quoted  is  based  existed  in  Brush  v.  Scribner,  11  Conn.  388^  29  Anu 
Dec.  303,  but  in  that  case,  while  it  was  conceded  that  the  law  of 
New  York  properly  governed  the  measure  of  damages  recoverable^ 
the  supreme  court  of  Connecticut  refused  to  apply  it  on  the  ^ound 
that  the  question  not  having  been  raised  in  the  court  below,  or  the 
claim  made  there  that  the  law  of  New  York  controlled,  the  jadg- 
ment  would  not  be  reversed   on  that  ground.     In  Allen  v.  Uniou 
Ba^k  of  Louisiana,  5  Whart.  (Pa.)  420,  an  action  was  brought  in  Penn- 
sylvania against  the  drawers  of  a  bill  of  exchange  drawn  in   ^ew 
Orleans  upon  a  firm  in  New  York.     The  law  of  Louisiana  giving  ten 
per  cent  damages  against  the  drawers  and  indorsers  of  a  protested 
bill  of  exchange  was  held  to  be  the  law  applicable,  rather  than  the 
law  of  the  forum. 

B.    Oases  where  Forum  is  the  Same  as  Place  of  Making  or  of  Per- 
formance. 

(1)     Oases  Bejectlng  Lex  Fori.— In  another  class  of  cases  the  lez 
fori  is  denied  any  effect  in  determining  the  measure  of  damages  re- 
coverable, although  the  place  of  the  forum  is  coincident  with   the 
lex  loci  contractus  or  the  lex  loci  solutionis.    Theoretically,  and  bo- 
far  as  the  result  of  these  cases  is  concerned,  they  are  even  stronger 
authority  for  the  view  that  the  lex  fori;  does  not  control  than  are 
those  just  considered  in  which  the  law  of  the  forum  is  involved  in 
the  ease  only  because  of  the  locus  of  the  action.    As  a  matter   of 
fact,  however,  their  value  as  authority  for  this  doctrine  is  greatly 
weakened  by  the  fact  that  but  little  or  no  attention  is  paid  in  the^ 
opinions  to  the  effect  of  the  lex  fori  as  such,  the  discussion  usually 
concerning  the  conflict  between  the  lex  loci  contractus  and  the  lex 
loci  solutionis,  or  between  one  of  these  and  the  lex  loci  rei  sitae. 
Such,   for   instance,   are   the   cases  in   which   an   action   is  brought 
£  gainst  the  drawer    of    a   protested   bill  of  exchange    in    the    place 
where  the  bill  itself  is  payable,  and  the  damages  recoverable  are- 
held  to  be  those  assessed  by  the  law  of  the  place  where  the  bill 


Oct  1901.]  Gray  v.  Telegraph  Co.  723 

'wrsLS  drawn,  it  being  the  place  where  the  contract  of  the  drawer  Is 
♦o  bo  performed:  Price  v.  Page,  24  Mo.  65;  Page  v.  Page,  24  Mo. 
f595;  HazlehurBt  ▼.  Eean,  4  Yeates,  19.  Similarly,  in  Guignon  v. 
TTnion  Trust  Co.,  156  111.  135,  47  Am.  St.  Bep.  186.  40  N.  E.  656, 
affirming  53  111.  App.  581,  the  law  of  Missouri  was  held  to  govern 
the  damages  allowed  on  the  protest  of  a  note  made  and  payable  in 
^hat  state,  although  the  suit  was  brought  in  the  courts  of  Illinois 
to  foreclose  lands  situated  within  the  limits  of  Illinois.  So  in 
rrillotson  V.  Prichard,  60  Vt.  94,  6  Am.  St.  Bep.  95,  14  Atl.  302,  where 
the  place  of  execution  of  the  deed  and  the  forum  were  both  in 
"Vermont,  it  was,  nevertheless,  held  that  the  law  of  Minnesota  de* 
termined  the  measure  of  damages  in  an  action  for  the  breach  of  a 
«^ovenant  of  warranty  in  a  deed  to  land  situated  in  that  state,  Min* 
nesota  being  regarded  by  the  court  as  the  place  of  performance. 
See,  also,  as  an  instance  of  the  application  of  the  law  of  another 
state,  where  the  law  of  the  forum  was  also  that  of  the  place  where 
the  contract  was  to  be  partially  performed:  Beed  v.  Western  Union 
Tel.  Co.        135  Mo.  661,  58  Am.  St.  Bep.  609,  37  S.  W.  904. 

(2)  Oases  Applying  Lex  FbrL— The  result  of  the  cases  in  which 
the  courts  have  applied  the  law  of  the  forum  in  determining  the 
rule  or  measure  of  damages  for  a  breach  of  contract,  however  para- 
doxical it  may  seem,  is  to  quite  conclusively  indicate  that  the  lex 
fori,  as  such,  is  not,  in  the  view  of  those  courts,  the  law  properly 
applicable.  In  all  of  these  cases  the  place  where  the  action  was 
brought  was  the  same  as  that  in  which  the  contract  was  made  or 
was  to  be  performed,  and  the  law  of  that  place  was  applied  rather 
because  it  was  the  lex  loci  contractus  or  tho  lex  loci  solutionis  than 
because  it  was  the  law  of  the  forum.  In  most  cases  the  circum- 
stance that  it  was  the  law  of  the  foxnm  is  not  adverted  fo  at  all» 
and  the  undoubted  implication  is  that  meiely  as  the  lex  fori  it  exerts 
no  influence  whatever  in  determining  the  measure  of'  damages  for 
the  breach  of  the  contractual  obligation.  Such,  for  instance,  are 
the  cases  in  which  damages  on  a  protested  bill  of  exchange  were 
allowed  against  the  drawer  or  indorser  of  the  bill,  in  accordance 
with  the  law  of  ihe  place  of  drawing  or  indorsing,  that  place  be* 
ing  the  same  as  that  of  the  forum:  Crawford  v.  Branch  Bank  at 
Mobile,  6  Ala.  12,  41  Am.  Dee.  33;  Crawford  v.  Branch  Bank  at 
Decatur,  6  Ala.  574;  Bank  of  New  Orleans  v.  Stagg,  1  Handy  (Ohio), 
382;  Bank  of  United  States  v.  United  States,  2  How.  711;  Slacum 
V.  Pomeroy,  6  Cranch,  221;  Pomeroy  v.  Slacum,  JL  Cranch  C.  C.  678» 
Fed.  Cas-No.  11,262.  In  Sandham  v.  Grounds,  94  Fed.  83,  36  C.  C.  A. 
103,  the  law  of  the  forum  (Pennsylvania)  was  also  the  place  of 
performance.  In  the  principal  case  (Gray  v.  Western  Union  Tel.  Co., 
108  Tenn.  39,  ante,  p.  706,  64  S.  W.  1063)  not  only  the  measure  of 
damages,  but  the  entire  cause  of  action  upon  which  recovery  was 
bad,  was  supplied  by  a  local  statute,  the  breach  of  which  had  taken 


724  American  State  Reports,  Vol.  91.  [TeniL 

place  in  Tennessee,  and  the  plain  inference  from  the  lan^age  of 
the  court  is  that  if  the  cause  of  action  had  arisen  in  another  atat^ 
the  law  of  that  state,  and  not  of  the  forum,  would  have  fixed  tlie 
elements  of  damage  in  an  action  in  Tennessee.    In  Loomey  y.  Beeres^ 

5  Kan.  App.  279,  48  Pac.  606,  the  action  was  one  for  breach  of  a 
covenant  of  warranty  in  a  deed  executed  in  Kansas  and  conveying 
land  situate  in  Missouri.  If  the  decision  in  the  case  is  correct. 
which  is  perhaps   doubtful    (see   Tillotson   ▼•   Prichard,    60    Vt.    94^ 

6  Am.  St.  Bep.  95,  14  AtL  302),  the  opinion  in  holding  that  the 
law  of  Kansas  controls  the  measure  of  damages  rests  quite  aa  mneh 
upon  the  fact  that  the  deed  was  there  executed  as  upon  the  fact 
that  action  was  there  brought.  And  so  in  all  of  the  eases  in  which 
the  lex  fori  is  applied,  it  was  applied,  not  because  it  was  the  lex 
fori,  but  because  it  was  either  the  place  of  contract  or  of  perform- 
ance, or  both:  See,  in  addition  to  the  cases  already  cited,  Meyer  t. 
Estes,  164  Mass.  467,  41  N.  E.  683;  Dyke  v.  Erie  By.  Co.,  45  N.  T. 
113,  6  Am.  Bep.  43;  Mills  v.  Dow,  133  U.  S.  423,  10  Sup.  Ct.  Bep. 
413.  The  law  of  the  forum,  as  such,  does  not,  it  is  plainly  iiiferable 
from  these  cases,  control  the  measure  ef  damages  for  breach  of  eoa- 
tract,  where  the  cause  of  action  arose  in  a  place  other  than  that  of 
the  forum« 

C.    Bond  Given  in  One  Oourt  Sued  on  In  Another.— Where  a  boad 
is  given  in  a  federal  court  in  some  legal  proceeding  therein,    aad 
is  sued  on  in  a  state  court,  a  question  arises  as  to  the  measure  of 
damages  recoverable.    In  the  federal  courts,  for  instance^  eoansel 
fees  are  not  recoverable  as  damages  upon  an  injunction  bond,  while 
in  the  majority  of  the  states  they  are  regarded  as  properly  an  de- 
ment  of   damages.    The    question  presented  is  really  not   so    nraeh 
one  of  conflict  of  laws,  as  whether  or  not  the  state  courts  will,  in 
such   a   case,   adopt  the  rule  of   decision   obtaining   in   the  federal 
courts  when  an  injunction  bond  given  in  these  courts  is  saed  on  ia 
a  state  forum.    The  uniform  holding  is  that  they  will  not.    The  rea- 
«on  is  thus  well  expressed  in  Mulvane  v.  Tullock,  58  Kan.  622,  50 
Pac.  897:  "The  bond  executed  is  in  the  ordinary  form,  is  in  the 
nature  of  a  contract,  and  the  liability  of  the  obligors  depends,  not 
on  the  federal  constitution  or  a  congressional  act,  but  on  the  proper 
interpretation  of  the  bond  itself.    In  the  absence  of  a  statute  fixing 
the   measure   of   damages   or  limiting   the  recovery,   we   think   the 
bond  should  be  viewed  in  the  light  of  an  independent  contract,  and 
is  to  be  interpreted  by  the  general  principles  of  the  common  law. 
It  is  not  a  mere  incident  of  the  injunction  proceeding,  nor  can  this, 
which  is  an  ordinary  action  at  law,  be  regarded  as  auxiliary  to  the 
proceeding  in   the  federal    court.    Being   an   independent   contract^ 
actionable  in  any  state  court  where  service  upon  the  sureties  can 
be  obtained,  the  interpretation  of  the  forum  applies.     As  the  actios 
on  the  bond  could  be  brought   in  a  state  court—and,   indeed,   the 
|)re8ent  action  could  have  been  brought  in  no  other— it  cannot  be 


Oct.  1901.]  Gray  v.  Telegraph  Co.  725 

BStid  tbat  the  sureties  contracted  with  reference  to  the  view  of  law 

'tAken  by  the  federal  conrts.    They  knew  that  the  obligation  was 

enforceable  in   the   courts  of  the  state  of  which   the  plaintiff   an<1 

<3efendants  were  all  residents,  and  that  the  highest  court   of  that 

state  had  consistently  held  that  counsel  fees  were  recoverable  upon 

a.n  injunction  bond.    That  the  bond  was  given  in  a  federal  courts 

'vrhere  a  different  rule  of  interpretation  obtains,  has  not  been  deemed 

to    affect   the   state  court   in    determining   the   liability   upon    such 

Ijond    when    suit    was  brought  thereon."    To    the    same    effect    are 

Jklitchell  V.  Hawley,  79  Cal.  301,  21  Pac.  833;  Aiken  v.  Leathers,  40 

IL^a.  Ann.  23,  3  South.  357;  Hannibal  etc.  B.  Co.  v.  Shepley,  1  Mo. 

App.  254;  Wash  v.  Lackland,  8  Mo.  App.  122;  Corcoran  v.  Judson, 

34   N.  Y.   106.    See,   generally,  with  respect  to  attorney's  fees  as 

an  element  of  damages,  note  to  Winkler  v.  Boeder,  8  Am.  St.  Bep. 

158-161. 

nL    Torts. 

a.    Where  Based  upon  Belation  of  Oontract  Inter  Partes.— In  an 
aetion  ex  delicto,  if  there  be  any  conflict  of  laws  as  to  the  meas* 
nre  of  damages,  it  mast  ordinarily  arise  between  the  law  of  the 
place  where  the  tort  was  committed  (lex  loci  delicti)  and  that  of 
the  place  where  the  action  is  brought.    There  is,  however,  one  clasa 
of  actions  sounding  in  tort  which  is  based  upon  a  contractual  rela- 
tion, and  in  these  cases  the  conflict  may  be  further  complicated  by 
the  injection  into  it  of  the  law  of  the  place  of  contract.    In  Dyke  v» 
Krie  By.  Co.,  45  IlL  113,  6  Am.  Bep.  43,  a  passenger  on  the  line  of  a 
New  York  railroad  corporation  traveling,  from  one  point  in  the  stat» 
of  New  York  to  another  was  injured  by  the  negligence  of  the  com- 
pany's servants  while  on  a  part  of  its  road  which  was  in  Pennsyl- 
vania.   The  court  held  that  the  law  of  New  York  must  control  aa 
to  the  amount  of  damages  recoverable,  employing  the  following  lan- 
guage: ^'Whether  the  actions  are  regarded  as  actions  of  assumpsit 
upon  the  contracts,  or  as  actions  upon  the  case  for  negligence,  the 
rights  and  liabilities  of  the  parties  must  be  judged  by  the  same 
standard.    The  form  of  action  concerns  the  remedy,  but  does  not 
•  affect  the  legal  obligations  of  the  parties.    In  either  form  of  action, 
the  liability  of  the  defendant  and  the  rights  of  the  plaintiffs  are 
based  upon  the  contracts.    The  defendant  owed  no  duty  to  the  plain- 
tiffs, except  in  virtue  of  the  contracts,  and  the  obligations  for  the 
violation  and  breach  of  which  an  action  may  be  brought  are  only 
coextensive  with  the  contracts  made.    It  follows  that  the  law  of 
Pennsylvania  cannot  enlarge  or  restrict  the  liability  of  parties  to  a 
contract,  which    for  its  validity,  effect  and  construction  is  subject 
to  the  laws  of  New  York.''    This  case  is  followed  in  Lyons  v.  Erie 
By.  Co.,  57  N.  Y.  489. 

A  line  of  cases  based  upon  a  very  similar  theory  are  those  of 
Indiana,  holding  that  where  a  contract  is  made  in  a  state  other  than 
Indiana,  for  the  transmission  and  delivery  of  a  telegram  to  a  poini 


726  American  State  Beports,  Vol.  91.  [TeniL 


in  Indiana,  no  recoverj  can  be  had  in  the  latter  state  for  tl&e 
tory  penalty  imposed  by  its  laws  (Ind.  Stats.  1881,  see.  4176)  for  tkm 
failure  of  a  telegraph  company  to  transmit  a  message  as  required. 
The  doctrine  of  these  cases  is  that  the  right  to  recover  the  statutory 
penalty  rests  upon  the  ground  that  there  is  a  valid  contract.  ''If 
there  must  be  a  contract,  then  it  follows  that  the  breach  of  duty 
occurs  where  the  contract  is  made."  If,  therefore,  the  contract  of 
transmission  is  made  outside  the  state,  although  it  may  be  for  de- 
livery at  a  point  in  Indiana,  and  although  the  default  may  be  com- 
mitted in  failing  to  deliver  the  message  after  transmissioUp  the  courts 
of  Indiana  refuse  to  enforce  against  the  telegraph  company  the 
statutory  penalty  referred  to,  and  leave  the  party  injured  to  mich 
remedies  as  are  given  him  by  the  lex  loci  contractus:  Western 
tJnion  Tel.  Co.  v.  Keed,  96  Ind.  195;  Rogers  v.  Western  Union  TeL 
Oo.,  122  Ind.  395,  17  Am.  St.  Rep.  373,  24  N.  E.  157;  Camahan  v. 
Western  Union  Tel.  Co.,  89  Ind.  526^  46  Am.  Rep.  175. 

The  statute  of  Tennessee,  upon  which  recovery  is  had  in  the  prin- 
cipal case  (Gray  v.  W^estem  Union  Tel.  Co.,  108  Tenn.  39,  ante,  p. 
706,  64  S.  W.  1063),  differs  from  that  in  the  Indiana  cases  in  provid- 
ing for  the  recovery  of  damages  sustained,  rather  than  for  a  penalty, 
and  recovery  was,  therefore,  allowed  in  the  principal  case  for  faflnre 
to  deliver  a  message  in  Tennessee,  and  under  the  statute  of  that 
state,  although  the  contract  for  transmission  was  made  and  partially 
performed  in  Mississippi:  See,  also,  Telegraph  Co*  v.  Mellon,  96 
TeniL  66,  33  S.  W.  725.  Where  special  damages,  rather  than  a  pen- 
alty, are  allowed  by  statute,  an  action  for  such  damages  is  based  on 
the  statute  rather  than  on  a  contract,  and  it  is  accordingly  held 
that  under  such  a  statute  no  contractual  relation  need  exist:  See 
Western  Union  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  £.  897; 
Telegraph  Co.  v.  Mellon,  96  Tenn.  66,  33  S.  W.  725.  The  right  of 
action  being  independent  of  the  contract,  the  loens  of  the  contract 
is  immaterial  and  cannot  affect  the  question  of  measure  of 
recoverable  in  an  action  based  upon  the  statute. 

b.    Oonfllct  Between  Law  of  Place  of  Injiny  and  of  Foi 
1.    In  Determining  Whether  Action  Is  Maintainable. 

A.  General  Rule.— Ordinarily,  the  only  conflict  of  laws  as  te 
measure  of  damages  which  is  met  with  in  actions  ex  delicto  is  that 
which  arises  between  the  law  of  the  place  where  the  tort  was  com- 
mitted and  the  law  of  the  forum.  Which  of  these,  then,  detenniase 
the  elements  and  the  measure  of  damages t 

The  class  of  cases  wheie  this  conflict  is  most  frequent  is  that  ia 
which  recovery  is  sought  in  one  state  for  a  death  by  wrongful  act 
in  another.  Such  an  action  is  unknown  to  the  common  law,  and, 
where  allowed,  is  based  upon  statutory  enactment.  It  is,  how- 
ever, held  in  many,  if  not  in  most,  jurisdictions,  that  not  only  must 
the  law  of  the  place  of  injury  give  a  cause  of  action  for  such  aa 
injury,  but  it  must  also  appear  that  the  statutes  of  the  lex  fori 


Oct.  1901.]  Gbat  v.  Tbiboraph  Co.  727 

permit  of  sueh  an  aetion,  and  are  not  materially  different  from  the 
foreign  statute  under  the  provisions  of  which  recovery  is  sought.  In 
-determining  whether  or  not  these  statutes  are  materially  different, 
the  courts  look  to  the  measure  of  damages  allowed  by  each.  Thus,  it 
is  held  that  the  fact  that  by  the  laws  of  one  state  a  higher  degree 
of  negligence  must  be  shown  to  entitle  the  plaintiff  to  punitive  dam- 
ajres  than  by  the  laws  of  the  other,  is  not  such  a  substantial  differ- 
ence as  to  prevent -an  action  in  the  one  jurisdiction  under  the  statutes 
of  the  other  for  a  death  by  negligence  occurring  in  the  latter  state: 
Bruce  v.  Cincinnati  B.  B.  Co.»  83  Ky.  174.  Nor  does  the  fact  that 
the  lex  fori  limits  recovery  for  death  to  a  certain  sum,  while  the  lex 
loci  delicti  allows  compensatory  damages  to  any  extent  to  be  fixed 
by  a  jury  present  such  a  material  difference  as  to  bar  an  action  in 
the  lex  fori:  Hanna  v.  Grand  Trunk  By.  Co.,  41  HI.  App.  116.  See, 
also*  Hyde  v.  Wabash  etc.  By.  Co.,  61  Iowa,  441,  47  Am.  Bep.  820,  16 
N.  W.  351.  Apart  from  the  fact  that  the  cases  above  cited  expressly 
hold  that  the  measure  of  damages  recoverable  in  such  case  is  deter- 
mined by  the  law  of  the  place  of  injury,  and  not  by  the  law  of  the 
forum,  the  mere  fact  that  the  measure  of  damages  is  looked  to  to 
ascertain  whether  the  statutes  are  so  substantially  different  as  to 
prevent  recovery  in  the  forum  is  itself  an  indication  that  the  lex 
loci  delicti  must  govern  as  to  the  measure  of  damages  recoverable, 
wherever  action  is  brought.  Were  the  view  of  these  courts  otherwise, 
and  did  the  lex  fori  determine  the  amount  of  recovery,  it  is  obvious 
that  the  law  of  the  place  of  injury  as  to  the  measure  of  damages 
would  not  be  a  material  consideration:  Wooden  v.  Western  New  York 
«tCs^  B.  B.  Co.,  126  N.  Y.  10,  22  Am.  St.  Bep.  803,  26  N.  E.  1050. 

B.  Where  Snbsequent  Suits  for  Same  Tort  Allowed  by  Lex  Lod 
I>elictL— In  Mexican  Nat.  By.  Co.  v.  Jackson  (Tex.  Civ.  App.),  32  S. 
W.  230,  suit  was  brought  in  Texas  for  an  injury  by  negligence,  the 
locus  delicti  being  in  Mexico.  By  the  laws  of  Texas,  the  rule  of 
damages  was  compensation  for  all  past  and  prospective  damages 
from  the  injury.  By  the  law  of  Mexico,  the  plaintiff  can  recover 
only  damages  which  have  actually  accrued  at  the  time  of  suit,  and 
future  damages  are  left  to  be  recovered  as  they  may  accrue.  This 
the  court  of  civil  appeals  held  did  not  constitute  such  a  substantial 
difference  as  to  bar  recovery  iu  Texas.  The  view  of  the  court  is- 
well  expressed  by  Chief  Justice  James:  ''There  is  no  fundamental 
<Ufference  as  to  the  measure  of  damages.  The  actual  damage  the 
injured  party  has  sustained  and  will  afterward  sustain  is  sought  to 
be  arrived  at  and  redressed  in  both  jurisdictions.  The  end  sought  in 
both  countries  is  compensation.  The  allowance  of  a  new  suit  for 
injuries  thatdevttlop  later  demonstrates  the  purpose  of  the  Mexican 
law  to  secure  to  the  injured  party  the  right  to  complete  actual  dam- 
ages. The  case  is  not  like  those  in  which  it  appears  that  the  foreign 
law  limits  the  amount  of  damages  recoverable  to  a  certain  sum,  where 
it  is  held  that  the  domestic  court  will  not  render  judgment  in  excess 


728  American  State  Keports,  Vol.  91.  [Tenn. 

of  that  sum.     The  limit  and  standard  in  both  countries  is  compensa- 
tion,  and  the  power  to  reduce  the  allowance  in  favor  of  the  defendant 
and  the  right  of  a  new  suit  in  favor  of  plaintiff  for  unconsidered 
damages,  are  all  merely  the  means  of  attaining  and  enforcing  actual 
damages.  .  .  •  .  Our  opinion  on  this  branch  of  the  case  is  that  the 
difference  in  the  mode  of  arriving  at  and  aclministering  the  damages 
is  a  matter  that  affects  the  remedy  only,  and    therefore    offers  bo 
obstacle  to  the  exercise  of  jurisdiction  by  onr  courts:  Citing  Story  on 
Conflict  of  Laws,  sec.  307d.    It  was  proper  to  proceed  according  to 
our  law  and  practise,  as  the  court  did  in  this  instance,  in  ascertaining 
the  entire  damages  and  awarding  execution."    This  view  did  not 
meet  the  approval  of  the  supreme  court,  and  the  judgment  of  the 
court  of  appeals  was  reversed  on  a  writ  of  error,  the  higher  court 
holding  that  the  statutes  were  too  dissimilar  to  allow  of  recovery 
in  Texas  courts  under  the  law  of  Mexico:  Mexico  National  By.  Co.  t« 
Jackson,  89  Tex.  107,  59  Am.  St.  Rep.  28,  33  S.  W.  857.     The  view 
of  the  lower  court  is,  however,  quoted  with  approval  and  followed  in 
Evey  V.  Mexican  Cent.  By.  Co.,  81  Fed.  294,  26  C.  C.  A.  407. 

O.  Exemplary  Damages.— The  fact  that,  according  to  the  law  of 
the  place  of  injury,  exemplary  damages  are  allowable  for  such  sum 
as  the  court  may  consider  reasonable  in  view  of  the  social  position 
of  the  plaintiff,  while  such  damages  are  not  allowed  by  the  lex  fori, 
does  not,  it  is  held  in  Evey  v.  Mexican  Cent.  By.  Co.,  81  Fed.  294. 
26  C.  C.  A.  407,  prevent  recovery  where  no  such  exemplary  damagei; 
are  prayed  for.  The  court  in  that  case  adopts  the  view  of  counsel 
that  'Hhe  fact  that  the  defendant  is  sued  in  a  forum  where  extra- 
ordinary damages  cannot  be  recovered  is  a  matter  for  which  he  ought 
to  thank  Heaven,  take  courage,  and  say  no  more  about  it."  The 
same  view  is  taken  in  Higgins  v.  Central  New  England  B.  Co..  155 
Mass.  176,  31  Am.  St.  Bep.  544,  29  N.  £.  534.  Compare,  however^ 
Mexican  Nat.  By.  Co.  v.  Jackson,  89  Tex.  107,  59  Am.  St.  Bep.  2^, 
33  S.  W.  857,  reversing  32  S.  W.  230. 

D.  Where  Lex  Loci  Delicti  Is  a  Penal  Statute.— There  is  no  prin- 
ciple better  settled  than  that  the  courts  of  one  state  will  not  enforce 
the  penal  statutes  of  another.  If,  therefore,  the  statutes  of  the  state 
in  which  occurred  the  injury  or  death  which  is  the  subject  matter 
of  the  action  fix  a  penal  sum  as  recoverable  for  such  death  or  injur.^, 
the  courts  of  another  state  will  not  entertain  an  action  for  the 
statutory  penalty:  Dale  v.  Atchison  etc.  By,  Co.,  57  Kan.  601,  47 
Pac.  521;  Matheson  v.  Kansas  City  etc.  By.,  61  Kan.  667,  60  Pac.  747: 
Adams  v.  Fitchbiirg  B.  B.  Co.,  67  Vt.  76,  48  Am.  St.  Bep.  800,  30  Atl. 
•5K7.  And  this  rule  applies  to  a  federal  court  (Lyman  v.  Boston  eio. 
B.  Co.,  70  Fed.  409),  especially  when  sitting  in  a  state  other  than 
thnt  in  which  the  injury  occurred:  Marshall  v.  Wabash  By.  Cc.^ 
46  Fed.  269. 

The  question  here  is  not  merely  one  as  to  whether  the  courts  wEerc 
the  action  is  brought  will  give  damages  to  the  extent  of  the  penal 


Oct.  1901.]  Ghat  v.  Teleghaph  Co.  729 

■uiu  fixed  by  the  law  of  the  loeus  delicti.    The  fact  that  the  statute 
prescribes  a  penalty   does  not  merely  make  that  penalty  unenforce* 
able  in  a  foreign  jurisdiction,  but  gives  to  the  whole  statute  the  char- 
acter of  a  ponal  enactment,  and  the  courts  of  another  state  will  not 
recognize  it  even  as  the  foundation  of  an  action  for  compensatory 
damages:  Dale  v.  Atchison  etc.  By.  Co.,  57  Kan.  601,  47  Pac.  521. 
See,  also,  Bettys  v.  Milwaukee  etc.  B.  Co.,  37  Wis.  323.    The  mere 
fact  that  the  statute  of  the  place  where  the  injury  was  inflicted  ^xes 
a  maximum  limit  of  recovery  does  not»  however,  make  it  penal:  Hig- 
^ns  V.  Central  etc  B.  Co.,  155  Mass.  176,  31  Am.  St.  Bep.  544,  2i^ 
1^«  E.  534;  but  if  the  amount  recoverable  is  made  dependent  on  the  cul- 
pability of  the  defendant,  rather  than  on  the  damage  sustained  by  the 
plaintiff,  and  allows  a  minimum  sum  (five  hundred  dollars),  in  any 
eases  where  recovery  can  be  had  at  all,  it  is  held  to  be  penal,  and  will 
uot  be  enforced  beyond  the  limits  of  the  jurisdiction  in  which  it  was 
enacted:  Adams  v.  Fitchburg  By.  Co.,  67  Vt.  76,  48  Am.  St.  Bep.  80(i, 
30  AiL  687.'    In  Jones  v.  Fidelity  Loan  etc.  Co.,  7  8.  Dak.  122,  6:^ 
N.  W.  553,  it  is  held  that  a  demand  made  in  another  state  on  a  mort- 
gagee for  a  discharge  of  a  mortgage  does  not  subject  him  in  case  of 
Lis  refusal  to  a  penalty  imposed  by  the  laws  of  South  Dakota  for  a  re- 
f  osal  to  give  a  certificate  of  discharge  of  mortgage.    In  the  view  of 
the  court,  to  hold  otherwise  would  be  to  give  the  penal  laws  of  South 
Dakota  extraterritorial  force,  and  make  them  bidding  upon  residents 
of  Iowa  while  within  that  state.    The  statute  was,  therefore,  declared 
inapplicable,  although  in  addition  to  being  the  forum,  South  Dakota 
was  the  place  where  the  mortgage  was  executed,  and  the  land  mort- 
gaged was  situated. 

2.    In  Fixing  Measure  of  Damages. 

A.  Weight  of  Authority— Lex  Loci  Delicti  OoYerh8.~TJpon  the 
question  whether  the  measure  of  damages  for  a  tort  committed  in 
one  state  and  sued  on  in  another  is  determinable  by  the  law  of  the 
forunif  or  by  the  law  of  the  place  where  the  tort  was  committed,  the 
?iuthorities  are  not  entirely  harmonious.  The  great  weight  of  author- 
ity, however,  supports  the  doctrine  that  the  lex  loci  delicti  controls. 
The  measure  of  damages  is  regarded  as  pertaining  to  the  substantive^ 
rather  than  to  the  merely  remedial,  rights  of  the  injured  person.  As 
is  said  in  Louisville  etc.  Co.  v.  Whitlow,  19  Ky.  Law  Bep.  1931,  4H 
S.  W.  711,  with  reference  to  an  action  brought  in  Kentucky  to  recover 
damages  for  the  death  of  plaintiff's  intestate  in  Tennessee:  ''The  law 
of  Tennessee  must  govern  in  fixing  the  liability  and  the  quantum 
of  recovery.  It  would  be  strange  to  apply  the  law  of  Tennessee  in 
determining  the  question  of  liability,  and  take  the  law  of  the  forum 
to  fix  the  measure  of  recovery."  In  the  case  from  which  this  lan- 
guage is  taken,  the  question  was  as  to  the  effect  of  contributory  negli- 
gence on  the  part  of  the  decedent.  By  the  lex  loci  delicti  (Tennessee), 
contributory  negligence  went  in  mitigation  of  damages  only,  while 
by  the  lex  fori  (Kentucky),  it  was  a  bar  to  recovery.    As  has  been 


730  American  State  Bbpobts,  Vol.  91.  [Tenn. 


seen,  the  law  of  Tennesgee  was  applied.    Compare  Johiuion  ^ 

road  Co.,  91  Iowa,  248,  59  N.  W.  66,  in  which  the  Iowa  eoort 

to  apply  to  a  cause  of  action  arising  in  Illinois,  the  rule  of  eo^ 

parative  negligence  of  the  Illinois  courts.    This  case  is  disapproved 

in  the  Kentucky  ease  above  cited:  Louisville  etc  By.  Co.  ▼•  Whitlow, 

19  Ky.  Law  Bep.  1931,  43  S.  W.  711. 

Similarly,  it  has  been  held  that  the  law  of  the  place  of  injury 
rathep  than  of  the  forum  determines  whether  the  maximum  recovery 
is  limited  to  a  specified  sum  or  not:  Hanna  v.  Grand  Trunk  By.  Co^ 
41  111.  App.  116;  Northern  Pac  By.  Co.  v.  Babcock,  154  U.  8.  190, 
14  Sup.  Ct.  Bep.  978.  See,  also,  St.  Louis  etc.  By.  Co.  v.  Brown,  67 
Ark.  295,  54  S.  W.  865.  So  the  question  whether  mental  ang^nish 
forms  a  proper  element  of  damages  depends  upon  the  law  of  the 
place  where  the  cause  of  action  arose:  Bailroad  Co.  ▼.  Graham,  98 
Ky.  688,  84  S.  W.  229;  as  does  also  the  right  to  recover  exemplary  or 
vindictive  damages:  Illinois  Cent.  By.  Co.  v.  Crudup,  63  Miss.  291; 
Pullman  Palace  Car  Co.  v.  Lawrence,  74  Miss.  782,  22  South.  53.  Sec;, 
also,  Bruce  v.  Cincinnati  B.  Co.,  83  Ky.  174. 

In  Kief  er  v.  Grand  Trunk  By.  Co.,  12  App.  Div.  28, 42  N.  Y.  Suppu  171, 
afiirmed  in  153  N.  Y.  688,  48  N.  £.  1105,  it  was  held  that  where  a 
death  occurred  in  Canada,  damages  for  which  were  sought  to  be 
recovered  in  the  courts  of  New  York,  the  provisions  of  the  statute 
of  the  latter  state,  which  authorized  interest  on  the  amount  of  the 
judgment  from  the  time  of  death  to  the  time  of  the  rendition  of  the 
ju.1gment,  was  inapplicable.  The  court  regarded  the  provision  for 
interest  as  not  merely  remedial,  but  as  creating  a  new  right  and  lia- 
bility, and,  therefore,  part  of  the  substantive  law  of  the  state 
(citing  O'BeiUy  v.  Stage  Co.,  87  Hun,  406,  34  N.  Y.  Supp.  338,  ap- 
proved in  Isola  v.  Weber,  147  N.  Y.  329,  41  N.  £.  704).  This  being 
so,  it  was  held  that  the  rights. of  the  plaintiff  must  be  determined 
by  the  laws  of  Canada,  where  her  cause  of  action  arose,  and  tbe 
provision  of  the  New  York  statute  allowing  interest  from  the  time 
of  death,  not  being  a  mere  matter  of  remedy,  could  not  be  applied 
to  increase  the  measure  of  recovery  allowed  here  by  the  lex  loci 
delicti:  See,  however.  Wooden  v.  Western  etc  B.  Co.,  126  N.  Y.  10. 
22  Am.  St.  Bep.  803,  26  N.  £.  1050,  in  following  section,  as  to  the 
law  in  New  York. 

B.  Oontrary  Doctrine.— As  hss  been  suggested,  some  of  the  caeee 
take  a  view  quite  different  from  that  of  the  authorities  just  con- 
sidered, and  regard  the  lex  fori  as  determinative  of  the  elements 
ond  measure  of  damages.  Thus,  in  Higgins  v.  Central  New  England 
B.  Co.,  155  Mass.  176,  31  Am.  St.  Bep.  544,  29  N.  E.  534,  it  is  held 
that,  while  an  action  may  be  brought  in  Massachusetts  for  a  death 
by  wrongful  act  which  occurred  in  Connecticut,  and  which  gives 
rise  to  a  cause  of  action  by  a  statute  of  the  latter  state,  such  statote 
not  being  materially  different  from  that  of  Massachusetts,  the  rule* 
of  the  fonun  must  govern  in  fixing  the  foments  of  damage  recover- 


Oct  1901.]  Qbay  v.  Telegraph  Co.  731 

^l>le,  and  hence  exemplary  damages  and  the  expenses  of  salt,  though 
^eeoverable  by  the  law  of  Connectient,  cannot  be  recovered  where 
veeovery  is  sought  under  that  law  in  the  courts  of  Massachusetts. 

So,  in  Wooden  v.  Western  New  York  etc.  B.  B.  Co.,  126  N.  Y.  10, 
22  Am.  St.  Bep.  803,  26  N.  E.  1050,  it  is  said  in  reference  to  an 
action  on  a  Pennsylvania  statute,  where  the  law  of  Now  York  lim- 
ited damages  for  death  to  five  thousand  dollars,  while  the  law  of 
X^cnnsylvania  imposed  no  restriction:  ''That  restriction  pertains 
"to  the  remedy  rather  tban  to  the  right:  Demick  v.  Central  B.  B.  of 
o^ew  Jersey,  103  IT.  8.  11.  It  is  a  limitation  upon  the  discretion  of 
the  jury  in  fixing  tho  amount  of  damages,  but  not  upon  the  right  of 
action,  or  its  inherent  elements  or  character.  The  restriction  in- 
dicates our  public  policy  as  to  the  extent  of  the  remedy,  and  the 
plaintiff  who  chooses  to  avail  herself  of  our  remedial  procedure  must 
submit  to  our  remedial  limitations,  and  be  content  with  a  judgment 
beyond  which  our  courts  cannot  go.  They  cannot  exceed  it  in  a  case 
arising  here^  and  no  principle  of  comity  requires  them  to  enlarge 
the  remedy  which  the  plaintiff  voluntarily  seeks."  After  stating 
that  there  may  possibly  be  a  different  rule  where  the  defendant  is 
not  a  domestic  corporation,  the  court  concludes:  ''The  difference 
between  the  two  statutes,  therefore,  does  not  strictly  affect  the  rule 
of  damages,  but  rather  the  extent  of  damages,  and  that  extent,  as 
limited  or  unlimited,  does  not  enter  into  any  definition  of  the  right 
enforced,  or  the  cause  of  action  permitted  to  be  prosecuted.  And 
80  the  causes  of  action  in  the  two  forums  are  not  thereby  made  dis- 
idmilar."  Compare  with  this,  however,  Kiefer  v.  Grand  Trunk  By. 
Co.,  12  App.  Div.  28,  42  N.  Y.  Supp.  171;  affirmed  in  153  N.  Y.  688, 
48  N.  E.  1105. 

It  seems,  also,  to  be* tacitly  assumed  in  Boe  v.  Jeron^,  18  Conn.  138, 
159,  that  in  an  action  of  trover  the  rule  of  damages  should  be 
determined  by  the  law  of  the  forum,  rather  than  by  the  law  of  tho 
place  of  conversion.  The  ease  reaches,  however,  a  diametrically  op- 
posite result  as  to  the  rule,  in  actions  for  breach  of  contract  at 
least,  and  the  force  of  the  dictum  as  authority  is  too  small  to  be 
considerable.  The  cases  which  take  the  view  that  the  rule  or  meas- 
ure of  damages  pertains  to  the  remed/,  and,  in  an  action  of  tort,  is 
governed  by  the  lex  fori  rather  than  the  lex  loci  delicti,  are  opposed 
to  the  great  weight  of  authority,  and  to  what  seems  the  better 
reason. 

IV.    Interest  as  Damages.  ' 

a.  In  O-eneral-^Dlstinction  Between  Oonyentional  and  Moratory 
Interest. — Interest,  as  an  element  of  damages,  is  of  two  kinds.  The 
first  is  such  interest  as  tho  parties  to  a  contract  which  is  the  sub- 
ject matter  of  an  action  have  agreed  upon  as  a  part  of  their  eon- 
tract.  This  is  ordinarily  known  as  conventional  interest,  and  the 
principles  which  govern  any  confiict  of  laws  as  to  this  kind  of 
interest  are  the  same  as  those  which  control  in  the  ease  of  any  other 


732  American  State  Keports,  Vol.  91.  [Tenn 

provision  of  the  contract.     The  other  instance  in  which  interest   is 
an  important  element  of  damage   is  where,  in  fixing  the  amonnt  of 
recovery  for  a  breach   of  contract  of  tort,  the  law  imposes  an  addi- 
tional sum  in  the  way  of  interest  as  damages  for  the  detention  of 
the  money  found  to  be  due.    This  is  known  as  moratory  interest 
(Wharton  on  Conflict  of  Laws,  sec.  513— interest  ex  mora)  or  interest 
by  way  of  damages,  and  depends  not  upon  any  contractual  obligation 
to  pay  interest,  but  upon  the  theory  that  the  party  breaching  tiie 
contract  or  committing  the  tort  became  bound  at  the  time  of   the 
breach  to  make  reparation,  and  for  this  delay  in  making  such  repara- 
tion, the  injured  party  is  entitled  to  such  interest  as  will  recompense 
him  therefor.    Briefly  put,  moratory  interest  is  allowed,  not  as  an 
element  of  the  damage  which  accrued  at  the  time  and  because  of  the 
breach,  but  as  a  damage  resulting  from  the  failure  of  the  party  at 
fnvtlt  to  make  prompt  reparation. 

Conventional  interest,  while  it  forms  an  element  in  computing  the 
amount  of  recovery,  does  so  in  the  same  way  that  a  provision  of  the 
contract  limiting  liability,  or  any  other  contractual  provision  as  to 
the  amount  involved  in  the  contract,  does.  In  the  sense  in  which 
that  phrase  is  here  used,  conventional  interest  does  not  affect  the 
"measure  of  damages,"  and  will  not,  therefore,  be  here  consicl- 
ered*  The  principles  which  govern  in  determining  a  conflict  of  laws 
as  to  morfttory  interest,  or  interest  which,  strictly  speaking,  is  al- 
lowed by  way  of  damages,  will,  however,  be  considered. 

h.    Conflict  as  Between  Law  of  Place  of  Making  and  of  Place  or 

Performance  of  Contract. 

1.  Oenerid  Bnle. — Leaving  out  of  consideration  for  the  time  the 
effect  of  the  lex  fori,  as  such,  in  determining  the  rate  of  interest 
which  is  to  be  allowed  by  way  of  damages,  as  i)etween  the  law  of  the 
place  where  the  contract  is  made  (lex  loci  contractus),  and  that 
of  the  place  where  it  is  to  be  performed  (lex  loci  solutionis),  the 
latter  is  quite  uniformly  held  to  control.  It  is  there  that  the  con- 
tract was  to  be  performed,  or  the  money  paid;  it  is  there  that  the 
breach  occurred,  the  liability  of  the  parties  attached,  and  the 
amount  recoverable  became  d^^»  It  is,  therefore,  by  the  law  of  that 
place  that  the  damages  for  the  detention  of  this  sum  should  be 
measured.  The  value  of  money  at  that  place  forms  the  true  standard 
of  recompense  for  the  delay,  and  that  value  is  the  rate  of  interest 
which  custom,  or,  as  is  more  frequently  the  case,  statutory  enactment 
has   established. 

Most  of  the  eases  in  which  this  rule  is  laid  down  are  cases  in 
which  the  forum  ia  the  same,  either  as  the  place  of  contract,  or  the 
place  of  performance.  Where  the  lex  loci  solutionis  is  held  to  con- 
trol, although  the  place  where  the  action  is  brought  coincides  with 
the  place  where  the  contract  was  executed,  the  case  is,  of  course, 
a  strong  authority  for  the  rule  laid  down.  In  many  cases,  however, 
the  lex  fori  and  lex  loci  solutionis  coincide,  and  it  is  not  always 


Oct.  1901.]  Gray  v.  Telegeaph  Co.  733 

easj*  or  even  possible  to  detemune  whether  the  decision  that  that 
law  controlled  as  against  the  lex  loci  contractus  was  influenced  by 
the  fact  that  it  was  the  law  of  the  fomm,  or  that  it  was  the  law 
of  the  place  of  performance.  The  following,  however,  appear  to 
apply  the  law  of  the  place  of  performance,  as  such,  in  preference 
to  the  lex  loci  contractus,  where  the  two  are  different,  to  determine 
the  proper  rate  of  interest  allowable  by  way  of  damages  for  the 
breach  of  contract  or  the  detention  of  money  generally:  See  Clarke  v. 
Taylor,  69  Ark.  612,  65  S.  W.  110;  Bent  v.  Laave,  3  La.  Ann-  88; 
Ballister  v.  Hamilton,  3  La.  Ann.  401;  Jones  v.  Belcher,  Quinoey 
(Mass.),  9;  Isaacs  v.  Mc Andrew,  1  Mont.  437;  Sutro  Tunnel  Co.  v. 
Segregated  Belcher  Mln.  Co.,  19  Nev.  121,  7  Pac.  271;  Cartwright  v. 
Green,  47  Barb.  9;  Fanning  v.  Consequa,  17  Johns.  511,  8  Am.  Dec. 
442  (reversing  3  Johns.' Ch.  587);  Stewart  v.  Ellice,  2  Paige,  604; 
Irvine  v.  Barrett,  2  Grant  Cas.  (Pa.)  73;  Stepp  v.  National  Life 
etc.  Assn.,  37  S.  C.  417,  16  S.  E.  134.  Compare,  also,  Pomeroy  v. 
Ainsworth,  22  Barb.  118;  Thornton  v.  Dean,  19  S.  C.  583,  45  Am. 
Bep.   796. 

2.  Promissory  Kotes.— The  rule  above  laid  down  as  applicable 
to  contracts  generally  is  of  frequent  application  in  cases  where  the 
cuuse  of  action  arises  out  of  the  nonpaymei^t  of  negotiable  instru- 
ments. Where  a  promissory  note  is  not  paid  at  maturity,  the  breach 
occurs  at  the  place  where  the  note  was  payable,  and  interest  by  way 
of  damages  for  the  detention  of  the  debt  is  allowed  from  that  time, 
and  ati  the  rate  prescribed  by  the  law  of  that  place:  Peacock  v. 
Banks,  Minor  (Ala.),  387;  Hunt  v.  Hall,  37  Ala.  702;  Vinson  v.  Piatt, 
21  Ga.  135;  Chumasero  v.  Gilbert,  26  111.  39;  Lapice  v.  Smith,  13  La. 
91,  33  Am.  Dec  555  (compare  Hawley  v.  Sloo,  12  La.  Ann.  815); 
Howard  v.  Brauner,  23  La.  Ann.  369;  Healey  v.  Gorman,  15  N.  J.  L. 
328;  Happins  v.  Miller,  17  N.  J.  L.  185;  Thompson  v.  Ketcham,  4 
Johns.  285;  Wood  v.  Kelso,  27  Pa.  St.  241. 

3.  Bills  of  Exchange.— The  principle  is  equally  applicable  to  bills 
of  exchange,  and,  in  an  action  against  the  acceptor,  on  such  an  instru- 
ment, interest  is  allowed  as  damages  after  maturity,  at  the  rate 
obtaining  in  the  jurisdiction,  where  the  bill  is  payable:  Dickinson  v. 
Branch  Bank  at  Mobile,  12  Ala.  54;  Faden  v.  Sharp,  4  Johns.  183; 
Freerson  v  Galbraith,  80  Tenn.  (12  Lea)  129;  Bank  of  Illinois  v. 
Brady,  3  McLean,  268,  Fed.  Cas.  No.  888;  Cooper  v.  Waldegrove,  2 
Beav.  282.  The  same  is  true  of  a  **  virtual  acceptance"  or  contract 
to  accept:  Boyce  v.  Edwards,  4  Pet.  111. 

With  respect  to  the  drawers  and  indorscrs  of  a  bill  of  exchange, 
the  cases,  while  agreed  that  the  place  of  performance  of  the  con- 
tract of  those  parties  furnishes  the  law  by  which  interest  ex  mora 
is  to  be  computed,  are  divided  as  to  whether  this  place  is  that 
where  the  bill  is  drawn  or  endorsed,  or  where  it  is  payable.  The 
view  that  the  law  of  the  place  of  drawing  or  indorsement  controls 
IB  supported  by  the  weight  of  authority  and  by  what  appears  to  be 


734  American  Statb  Bbports,  Vol.  91.  [Tenn. 

the  better  reason.  '^The  drawer  of  the  bill  does  not  contract  to 
pay  the  money  in  the  foreign  place  on  which  the  bill  is  drawn; 
neither  does  the  indorser.  They  respectively  contract  only  to 
guarantee  its  acceptance  and  payment  at  that  place  by  the  drawer; 
and,  in  default  of  such  payment  by  the  latter,  they  agree,  upon  due 
protest  and  notice,  to  reimburse  the  holder  of  the  bill  in  principal 
and  damages,  at  the  place  where  they  severally  entered  into  the 
contract.  The  acceptor,  on  his  part,  it  is  true,  contracts  to  pay  the 
bill  at  the  place  of  acceptance,  or  the  place  fixed  for  the  payment 
thereof;  but  the  contract  of  the  latter  is  separate  and  distinct  from 
the  contract  of  the  drawer  or  indorser.  The  drawer  and  indorser, 
in  legal  contemplation,  contract  in  the  place  where  the  bill  is 
drawn  or  indorsed,  a  conditional  obligation,  that  if  the  bill  is  dis- 
honored and  due  notice  thereof  given  them,  they  will  respectively 
pay  the  amount  of  the  bill  at  the  place  of  their  contract.  The  con- 
tract of  each  of  the  parties — the  drawer,  indorser  and  acceptor — is* 
in  eJGfect,  a  several  contract  made  in  the  place  where  the  bill  is 
drawn,  indorsed  or  accepted;  and  the  rights,  as  well  as  the  liabil- 
ities, of  each  party  are  to  be  regulated  and  governed  by  the  law 
of  the  place  of  his  contract":  Green  v.  Bond,  37  Tenn.  (5  Sneed) 
328.  To  the  same  effect  are  Price  v.  Page,  24  Mo.  65;  Page  v.  Pa^, 
24  Mo.  595;  Bouldin  v.  Page,  24  Mo.  594;  Winthrop  v.  Pepoon,  1 
Bay  (S.  C),  468;  Bailey  v.  Heald,  17  Tex.  102  (overruling  Able  ▼. 
McMurray,  10  Tex.  350) ;  Ex  parte  Heidelback,  2  Low.  Dec  526,  Fed. 
Cas.  No.  6322;  Gibbs  v.  Fremont,  20  £ng.  L.  &  Eq.  555,  9  Ex.  25,  22 
L.  J.  Ex.  302,  17  Jur.  820,  1  Week.  Bep.  482.  See,  however,  for  cases 
taking  the  view  that  the  place  at  which  the  bill  is  payable  furnishes 
the  basis  of  computing  moratory  interest  against  the  drawer  or 
indorser:  Mullen  v.  Morris,  2  Pa.  St.  85;  Cooper  v.  Sandford,  12  Tenn. 
(4  Yerg.)  452,  26  Am.  Dec.  239.  See,  supra,  11,  a,  2,  A,  as  to  what 
law  determines  the  damages  (other  than  interest)  imposed  upon  the 
drawer  or  indorser  of  a  protested  bill  of  exchange. 

c  Effect  of  Lex  Iioci  Bei  Sitae.— The  influence  of  the  lex  loci  rei 
sitae  or  law  of  the  place*  where  the  property  is  situated  has  already 
been  discussed  with  reference  to  the  conflict  of  laws  as  to  the 
measure  of  damages  generally:  See  p.  717.  So  far  as  the  computa- 
tion of  interest  by  way  of  damages  is  concerned,  it  is  determined 
by  the  law  of  the  place  where  a  debt  is  payable,  irrespective  of 
the  location  of  the  property  which  is  mortgaged  as  security  for  its 
payment:  Lefler  v.  Dermott,  18  Ind.  246;  Kavanaugh  v.  Day,  10  R. 
I.  393,  14  Am.  Rep.  691;  Cocke  v.  Hatcher  (Tenn.),  4  S.  W.  170.  See, 
also.  Little  v.  Riley,  43  N.  H.  109;  Taylor  v.  Simpkins,  38  Misc.  Rep. 
246,  77  N.  Y.  Suppc  591.  In  Quince  v.  Callender,  1  Desaus.  (S.  C.) 
160,  it  is  held  that  where  a  marriage  bond  was  made  in  North  Car- 
olina, but  the  lands  on  which  the  settlement  was  made  lay  in  South 
Carolina,  the  interest  allowable  was  at  the  legal  rate  in  the  latter  state. 


Oct  1901.]  Geay  v.  Telegeaph  Co.  735 

d.    Effect  of  Lex  ForL 

1.  In  OeneraL— The  sharpest  conflict,  however,  as  to  the  law  reg- 
ulating the  amount  of  interest  allowable  as  damages,  is  with  respect 
to  the  effect  of  the  lex  fori.  According  to  one  line  of  cases,  rep- 
resenting the  undoubted  weight  of  authority,  the  law  of  the  place 
where  the  liability  accrued  is  the  law  which  determines  whether  and 
at  what  rate  interest  by  way  or  damages  is  recoverable,  the  lex  fori  not 
being  regarded  as  in  any  way  affecting  this  question.  In  some 
jurisdictions,  on  the  other  hand,  moratory  interest  is  held  dependent 
upon  the  law  of  the  forum,  regardless  of  the  law  of  the  place  where 
the  liability  accrued. 

2.    Foreign   Judgments. 

A.  Weight  of  Authority— Law  of  Place  Where  Judgment  is 
Bendered  Ck>ntrols. — A  connection  in  which  this  question  is  very 
frequently  presented,  and  with  reference  to  which  the  conflict  of 
authority  is  quite  decided,  arises  where  action  is  brought  in  one 
state  or  country  on  a  judgment  recovered  in  the  courts  of  another. 
By  the  weight  of  authority,  the  questions  whether  interest  is  re- 
coverable at  all  on  the  amount  of  the  judgment,  and,  if  so,  at  what 
rate,  is  to  be  determined  by  the  law  of  the  place  where  the  judgment 
is  rendered.  The  theory  upon  which  these  cases  proceed  is  that 
interest,  when  allowed  as  damages,  is  allowed  as  a  recompense  for 
the  delay  of  the  judgment  debtor  in  satisfying  his  obligation.  The 
<iamage  occasioned  by  this  delay  is  dependent  upon  the  value  of 
money  at  the  place  where  performance  was  due— i.  e.,  at  the  place 
where  judgment  was  rendered— and  it  is,  therefore,  by  the  law  of 
that  place  that  the  interest  allowable  is  determined:  Crawford  v. 
Simon  ton,  7  Port.  110;  Murray  v.  Cone,  8  Port.  250;  Hudson  v.  Daily, 
13  Ala.  722;  Clark  v.  Pratt,  20  Ala.  470;  Harrison  v.  Harrison,  20 
Ala.  629,  56  Am.  Dec  227;  Thompson  v.  Monrow,  2  Cal.  99,  56  Am. 
Dec.  318;  Cavender  v.  Guild,  4  Cal.  230;  Stewart  v.  Spaulding,  72 
Cal.  264,  13  Pac.  661;  Brown  v.  Todd,  16  Ky.  Law  Bep.  697,  29  S. 
W.  621;  Gordoia  V.  Phelps,  30  Ky.  (7  J.  J.  Marsh.)  619;  WetheriU  v. 
^tillman,  65  Pa.  St.  105;  Schell  v.  Stetson,  12  Phila.  187;  Ingram 
▼.  Drinkaw,  14  Tex.  351;  Bushby  v.  Camac,  4  Wash.  C.  C.  296,  Fed. 
Cas.  No.  2226;  Evans  v.  White,  Hemp.  296,  Fed.  Cas.  No.  4572a; 
Knapp  V.  Knapp,  59  Fed.  641.  In  Clarke  v.  Day,  2  Leigh  (Va.), 
172,  a  writ  of  inquiry  to  ascertain  the  interest  due  on  a  Kentucky 
judgment  was  awarded.  This  proceeding  would,  of  course,  have  been 
unnecessary  had  the  law  of  the  forum  been  held  to  controL  In  a 
number  of  cases,  also,  the  lex  fori  was  applied,  but  because  the 
law  of  the  place  where  the  judgment  was  rendered  was  not  proved, 
these  cases  recognizing  that  where  such  law  is  proved,  it  controls 
as  to  the  interest  recoverable  on  a  foreign  judgment:  Crafts  v.  Clark, 
38  Iowa,  237;  David  v.  Porter,  51  Iowa,  254,  1  N.  W.  529;  Reynolds 
V.  Powers,  96  Ky.  481,  29  S.  W.  299  (under  Kentucky  statute 
by  which  foreign  judgments  presumed  to  draw  interest  at  Kentucky 


736  Ahebican  State  Reports^  Vol.  91.  [Tenn. 

rate:  Kv.  Stats,  e.  60,  sec.  7);  Crone  ▼.  Dawson,  19  Mo.  App.  214; 
Xelson  V.  Felder,  7  Bich.  Eq.  (S.  C.)  395.  So,  in  some  eaaea^  it  im 
held  that  interest  is  recoverable  on  a  foreign  judgment,  althoagh  it 
is  not  shown  that  judgments  bear  interest  by  the  law  of  the  state 
where  it  was  rendered.  Where  such  foreign  law  is  proved,  however, 
it  would,  without  doubt,  be  held  to  control:  Prince  ▼.  Lamb,  1  UL 
(Breese)  378;  Warren  v.  McCarthy,  25  HI.  95.  See,  also,  Bmekmam 
V.  Taussig,  7  Colo.  561,  5  Pac.  152. 

B.  Oontnrj  I>octrine.~Oppo8ed  to  the  view  taken  by  these  t%wrm 
is  a  line  of  authorities  which  regard  the  allowance  of  interest  ok 
a  foreign  judgment  as  a  matter  of  remedy  merely,  and,  therefore, 
controlled  entirely  by  the  law  of  the  forum.  According  to  the  eonrts 
adopting  this  view,  ' '  in  suits  upon  judgments,  interest  is  reeoverableb 
not  as  a  sum  due  by  contract  of  the  parties,  but  as  damages,  and 
follows  the  rule  in  force  in  the  jurisdiction  where  the  suit  is 
brought."  It  is  true,  of  course,  that  interest  on  a  judgment  is  not  de- 
termined by  the  contract  of  the  parties,  but  it  is  not  apparent  why, 
from  the  mere  fact  that  it  is  allowed  as  damages  ("from  eonsid- 
orations  of  justice,  as  damages  for  the  detention  of  money  due": 
Olson  V.  Yeazie,  9  Wash.  481,  43  Am.  St.  Bep.  855,  37  Pac  677), 
it  necessarily  follows  that  the  rate  is  to  be  determined  by  the  lex 
fori.  If  these  damages  are  to  be  compensatory,  the  interest  given 
as  compensation  should  it  seems,  be  determined  by  the  rate  of  the 
plMce  where  the  liability  accrued  and  the  money  was  detained.  The 
view  that  the  lex  fori  controls  the  rate  of  interest  allowable  is. 
however,  followed  by  a  number  of  courts,  and  where  followed  is 
quite  strongly  asserted  as  the  preferable  doctrine:  Barringer  v.  King, 
5  Gray,  9;  Hopkins  v.  ^epard,  129  Mass.  600;  Qark  v.  Child,  136 
Mass.  344j  Shickle  v.  Walts,  94  Mo.  410,  7  S.  W.  274;  Mahnrin  ▼. 
Bickford,  6  N.  H.  567;  Wells,  Fargo  &  Co.  v.  Davis,  105  N.  T.  670, 
12  N.  E.  42  (compare  Taylor  v.  Simpkins,  77  N.  Y.  Supp.  591,  38 
Misc.  Bep.  246);  Cocke  v.  Hatcher  (Tenn.),  4  S.  W.  170;  Bitehie 
V.  Carpenter,  2  Wash.  512,  26  Am.  St.  Bep.  877,  28  Pac  380;  Olson 
V.  Yeazie,  9  Wash.  481,  43  Am.  St.  Bep.  855,  87  Pac  677.  Bee,  also, 
Adams  v.  Way,  33  Conn.  419. 

0.  Whether  Interest  is  Allowable  on.— In  Atkinson  v.  Braybrook, 
4  Camp,  3S0,  1  Stark.  219,  Lord  Ellenborough  held  that  the  plaintiff 
in  an  action  of  debt  on  a  judgment  recovered  in  Jamaica  was  not 
entitled  to  interest,  apparently  laying  it  down  as  a  general  prope- 
sition  that  interest  was  not  recoverable  on  a  foreign  judgment.  The 
case  has  never  been  followed  as  law  in  this  country:  See  Mahuria  v. 
Bickford,  6  N.  H.  567,  571;  and  is  not  the  law  in  England.  In  Me- 
Clure  V.  Dunkin,  1  East,  436,  an  allowance  of  interest  on  a  jud^ 
ment  recovered  in  Ireland  was  upheld,  but  it  does  not  dearly  ap- 
pear from  the  report  whether  it  was  computed  at  the  En^ish  or  the 
Irish  rate,  and  in  Baun  v.  Dalzell,  3  Car.  &  P.  376,  14  Eng.  Com.  L. 
618,  Loid  Tentcrdcn  instructed  the  jury  that  in  an  action  of  debt 


Oct  1901.]  Ghay  v.  Telegraph  Co.  737 

OB  an  Irish  judgment,  in  ease  they  found  for  the  plaintiff,  to  allow 
■uch  interest  as  they  may  think  reasonable. 

D.  Where  Judgment  Specifies  Bate  of  Interest.— The  fact  that  tho 
foreign  judgment  itself  provides  for  interest  at  a  certain  rate  until 
paid  does  not  seem  to  have  much  effect  in  determining  whether  in- 
terest is  allowable.  In  those  states  where  interest  as  damages  on 
a  foreign  judgment  is  allowed  at  the  rate  obtaining  at  t\e  place 
'Where  the  judgment  is  rendered,  if  the  judgment  itself  provides 
for  a  certain  rate,  it  will  be  allowed:  Hudson  v.  Daily,  13  Ala.  722; 
Stewart  V.  Spaulding,  72  Cal.  264,  13  Pac.  661;  David  v.  Porter,  51 
Iowa,  254,  1  N.  W.  528.  Compare,  also,  Bruckman  v.  Taussig,  7 
Colo.  561,  5  Pac.  152.  In  those  jurisdictions,  on  the  other  hand,  iu 
which  the  lex  fori  is  held  to  govern,  it  is  regarded  as  immaterial 
that  another  rate  is  specified  in  the  judgment.  Thus,  in  Clark  v. 
Child,  136  Mass.  844,  where  a  California  judgment  was  made  the 
basis  of  an  action  in  the  courts  of  Massachusetts^  it  is  said  by 
Morton,  C.  J.:  "If,  by  the  general  laws  of  California,  it  was  pro- 
vided that  upon  all  judgments  of  its  courts  interest  should  run 
at  the  rate  of  seven  per  cent,  this  provision  would  not  operate  in 
another  state  in  a  suit  upon  a  judgment.  The  fact  that  the  pro- 
vision is  embodied  in  the  record  of  the  judgment  cannot  give  it 
greater  force.  It  is  not  an  essential  part  of  the  judgment  which 
other  states  are  bound  to  respect  and  enforce,  but  affects  the  remedy 
upon  it,  which  is  governed  by  the  lex  fori.  One  state  cannot  thus 
control  the  remedy  and  determine  the  rule  of  damages  which  shall 
govern  sister  states  in  which  a  remedy  is  sought  upon  such  judg- 
nient. ' '  To  the  same  effect  are  Wells,  Fargo  &  Co.  v.  Davis,  105  N.  T« 
670,  19  N.  E.  42;  Arnott  v.  Bedfern,  2  Car.  &  P.  88,  12  £ng.  Com. 
L.  466. 

E.  Effect  of  Federal  Ocnstitation.— In  Schell  v.  Stetson,  12  Phila. 
187,  it  was  held  that  if  a  judgment  bears  interest  in  the  state  in 
which  it  is  rendered,  it  must  be  held  to  bear  the  same  interest  when 
brought  before  the  courts  of  another  state,  on  the  ground,  it  seems, 
that  this  is  required  by  the  provision  of  the  federal  constitution 
that  each  state  shall  give  full  faith  and  credit  to  the  public  acts, 
records  and  judicial  proceedings  of  every  other  state.  In  Nelson  v. 
i<^elder,  7  Bich.  Eq.  395,  on  the  other  hand,  this  constitutional  pro- 
vision is  said  to  relate  merely  to  the  mode  of  authentication  and 
proof.    The  latter  seems  the  preferable  view. 

8.  Domestic  Judgment  on  Foreign  Oanse  of  Action.— Where  a  judg- 
ment was  rendered  in  the  same  state  as  that  in  which  action  is  later 
brought  upon  it,  the  rate  of  interest  fixed  by  the  law  of  the  forum 
18  properly  allowable,  regardless  of  the  law  which  controlled  the 
cause  of  action  on  which  the  judgment  was  rendered.  The  cause  of 
action  previously  existing  became  merged  in  the  judgment,  and  in 
a  subsequent  action  on  the  latter  what  interest  is  recovered  as  dam- 
ages is  recovered  for  delay  in  payment  of  the  judgment:  Gordon  v. 
Am.   St.    Rep.,    Vol.    91—47 


'TBS  American  State  Bbpobts^  Vol,  91.  [Tcmu 

^Phelps,  30  Ky.  (7  J.  J.  Marah.)  619;  Wilaon  r.  Marsh,  13  N.  J.  Eq.  2»; 

NeU  V.  First  Nat.  Bank,  50  Ohio  St.  193,  33  N.  E.  720;  Coeke  ▼. 
Catcher,  4  S.  W.  (Tenn.)  170;  Scotland  County  ▼.  Hffl,  152  IT.  & 

107,  10  Snp.  Ct.  Bep.  26;  Evans  ▼.  White,  Hemp.  296,  Fed  Cmw  No. 
-4672a;  Bodily  v.  Bellamy.  2  Burr.  1094,  1  W.  Black.  267. 

4.    Ckmtnusts  in  OeneraL 

A.  Weight  of  Avthoxity^Iiex  Fori  Does  not  ControL— The  eon- 
/flict  as  to  the  effect  of  the  lex  fori  in  fixing  the  amount  of  interest 

recoverable  as  damages  is  by  no  means  confined  to  eases  irhere  for- 
*eign  judgments  are  involved.    It  exists  with  reference  to  eontraets 

generally,  and  the  eases  are  divided  as  to  whether,  in  an  aetion 
-on  a  contract  or  for  the  recovery  of  money  unlawfully  detained,  the 

4aw  of  the  place  where  the  liability  accrued  or  the  law  of  the  forum 
''fixes  the  amount  of  interest  ex  mora.    Here,  as  in  the  eases  already 
considered,  the  weight  of  authority  is  in  favor  of  the  view  tliat 
^he  law  of  the  place  where  the  cause  of  action  arises  fumisbes  the 
iproper  basis  of  computation,  and  that  the  law  of  the  forum  is  ia- 
tipplicablo:  Insurance  Co.  of  North  America  v.  Fwcheimer,  M  Ala. 
541,  5  South.  870;  Clarke  v.  Taylor.  69  Ark.  612,  65  &  W.  110;  Mor- 
ris V.  Wibaux,  159  HI.  627,  43  N.  E.  837;  afiirming  47  HL  App.  630; 
Cocke  V.  Conigmacher,  8  Ky.   (1  A.  K.   Marsh.)   254;  Leseame   v. 
Cook,  16  La.  58;  Granger's  Life  Ins.  Co.  v.  Brown,  57  Misa.  308, 
w)4  Am.  Dec.  446;  Smith  v.  Smith,  2  Johns.  235.  8  Am.  Dee.  410; 
Cartwright  v.  Green,  47  Barb.  9;  Archer  v.  Dunn,  2  Watts  &  8.  3S7; 
IStepp  V.  National  Life  etc.  Assn.,  37  S.  C.  417,  16  S.  E.  134;  Bnrtoa 
v.*  Anderson,  1  Tex.  93;  Bandall  v.  Meredith  (Tex.),  11  a  W.  170; 
Porter  v.  Munger,  22  Yt.  391;  Lanusse  v.  Barker,  3  Wheat.   101; 
^affray  v.  Dennis,  2  Wash.  C.  C.  253,  Fed.  Cas.  No.  7171;  Anonymous, 
1  Eq.Abr.  288;  Bodily  v.  Bellamy,  2  Burr.  1094,  1  W.  Black.  267. 
In  the  cases  above  cited  the  law  applied  was  in  no  instance  tiie 
'law  of  the  forum,  but  in  a  number  of  cases  that  law  in  applied 
merely  in  the  absence  of  proof  of  the  law  of  the  place  where  the 
liability  accrued.    Had  this  been  proved  it  would  have  controlled, 
•and  the  cases  are  authority  for  the  proposition  that  where  proved, 
the  law  of  the  place  where  a  caude  of  action  arises  will  determine 
the  rate  of  interest  allowed  by  way  of  damages,  rather  than   the 
Jaw  of  tho  forum:  See,  for  instance,  Thomas  v.  Beckeman,  40  Ky. 
*(1  B.  Mon.)   29;  Cooper  v.  Keany,  4  Minn.  528;  Hall  v.  Woodson. 
13  Mo.  462;  Mason  v.  Mason,  12  La.  589;  Moseley  v.  Burrow,  52  Tex. 
:396. 

B.  Contrary  Doctrine.— The  cases  opposing  this  view  and  uphold- 
dug  the  doctrine  that  in  an  action  for  the  breach  of  a  oontraet  or 
the  detention  of  money  in  general,  moratory  interest  is  to  be  al- 
lowed in  accordance  with  the  lex  fori  are  few  in  number,  and  op- 
posed to  the  great  weight  of  authority:  See,  however.  Beckwith  v. 
Talbot,  2  Colo.  639;  Temple  v.  Belding,  1  Boot  (Conn.),  314;  Yea 


Oct  1901.]  Gray  v.  Telegraph  Co.  739 

> 

Hexnert  ▼.  Porter,  11  Met.  210;  Eaton  v.  Helliit,  7  Gray,  566  (eom- 
pare  "Winthrop  ▼.  Garleton,  12  Mass.  4) ;  Gooddard  ▼.  Foster,  17  WalL 

123;  Law  v.  East  India  Co.,  4  Ves.  825.    See,  also  Sherman  ▼•  Ga«- 
«ett,  9  lU.  521. 

5.    Negotiable  Instrmiienta. 
▲.    Pronlasory  Notes. 

(1)  Weight  of  Authority.— The  eonsideratlons  which  apply  to 
<€ontraets  generally  are  equally  applicable  when  the  subject  matter 
<»f  the  action  is  a  negotiable  instmment.  Here,  again,  the  great 
weight  of  aathority  supports  the  view  that  the  law  of  the  place 
Inhere  the  liability  accrued— that  is,  where  the  instrument  was  made 
OT  was  made  payable— rather  than  the  law  of  the  forum,  controls 
in  determining  whether  and  at  what  rate  interest  as  damages  is 
recoverable.  For  cases  in  which  this  is  the  holding  with  reference 
to  actions  on  promissory  notes,  see  Peacock  v.  Banks^  Minor  (Ala.), 
387;  Hnnt  t.  Hall,  37  Ala.  702;  Vinson  y.  Piatt,  21  Ga.  135; 
Ofanmaaero  ▼.  Gilbert,  26  HI.  39;  Brockenridge  v.  Baxton,  6  Ind. 
^01;  Lefler  v.  Dormott,  18  Ind.  246;  Lapice  y.  Smith,  13  La.  91, 
33  Am.  Dec.  555;  Kermott  y.  Ayer,  11  Mich.  181;  Wood  y.  Kelso,  27 
Pa.  St.  241;  Eayanaugh  y.  Day,  10  R.  L  393,  14  Am.  Bep.  691:  Peck 
y.  Mayo,  14  Yt.  33,  39  Am.  Dec  205;  Courtois  y.  Carpenter,  1  Wash. 
C  C.  876,  Fed.  Oas.  No.  3286.  This  yiew  is  also  taken  in  a  number 
<t  eases  in  which  the  law  of  the  forum  was  applied,  but  because  of 
the  absence  of  proof  of  the. foreign  law.  Had  this  been  preyed  it 
^would  have  been  adopted:  See^  for  instance^  Bipka  y.  Pope,  5  La. 
Ann.  61,  52  Am.  Dec.  579;  Desnoyer  y.  McDonald,  4  Minn.  515; 
Lteavenworth  y.  Brockway,  2  Hill,  201.  See,  also,  Whitlock  y.  Castro, 
22  Tex.  108.  In  Healy  v.  Gorman,  15  N.  J.  L.  328,  the  law  of  New 
Jersey  was  held  to  control  in  the  allowance  of  interest  on  a  note 
made  in  New  York  payable  in  New  Jersey.  New  Jersey  was  here 
both  the  place  of  performance  and  of  the  forum;  but  the  subsequent 
case  of  Hoppins  y.  Miller,  17  N.  J.  L.  185,  makes  it  elear  that  where 
the  lex  forum  is  opposed  to  the  law  of  the  place  where  the  liability 
jiccrues^  the  latter  law  will  control. 

(2)  Contrary  Doctrine.— In  Ayer  y.  Tilden,  15  Gray,  178,  77  Am. 
Dec.  355,  on  the  other  hand,  it  is  held  that  interest  allowed  by  way 
«f  damages  on  a  promissory  note  is  determined  by  the  lex  fori.  ''The 
interest  is  not  a  sum  due  by  the  contract,  for  by  the  contract  no 
interest  was  payable,  and  is  not,  therefore,  affected  by  the  law  of 
the  place  of  contract.  It  is  given  as  damages  for  the  breach  of  the 
contract,  and  must  follow  the  rule  in  force  within  the  jurisdiction 
where  the  judgment  is  recovered":  See,  also,  Burrows  y.  Stryker, 
47  Iowa,  477;  Preston  y.  Walker,  26  Iowa,  205,  96  Am.  Dec.  140. 

(3)  Wliera  Payable,  Generally.- In  Kopelke  y.  Kopelke,  112  Ind. 
485,  18  N.  E.  695,  it  is  held  that  where  a  note  is  made  in  a  state 
filler  than  that  of  the  forum  and  no  place  of  payment  is  speeilledy 


740  American  State  Reports,  Vol.  91.  [Tens. 

it  is  payable  evexywhere,  and  the  lex  fori,  and  not  the  lex  lod 
contractus  governs  the  amount  of  interest  allowable  as  damages. 
Ordinarily,  however,  it  is  held  that  the  place  of  payment  where 
none  is  specified  is,  in  the  case  of  a  note,  the  residence  of  the  maker, 
ond,  in  the  case  of  a  bill  of  exchange,  that  of  the  drawee:  8e» 
Daniel  on  Negotiable  Instruments,  5th  ed.,  sees.  90,  1451;  Uawlej 
▼.  81oo,  12  La.  Ann.  815;  Hoppins  v.  Miller,  17  N.  J.  L.  185;  Smith 
V.  Smith,  2  Johns.  235,  8  Am.  Dec.  410;  Clark  v.  Searight^  135  Pa. 
St.  173,  19  Atl.  941,  20  Am.  St.  Bep.  868. 

B.  Oorporate  and  Municipal  Bonds,  etc.— So  in  the  ease  of  eor- 
porate  or  municipal  bonds,  interest  coupons^  etc,  tke  law  of  the 
place  where  they  are  made  payable  is  ordinarily  held  to  fix  the 
rate  of  interest  allowed  as  damages  after  their  maturity,  the  law 
of  the  forum  as  to  this  being  regarded  as  immaterial:  See  Qnj  ▼. 
State,  72  Ind.  567;  Arrington  v.  Gee,  27  N.  C.  590;  Appeal  ef 
Columbus  etc.  B.  Co.,  109  Fed.  177,  48  C.  0.  A.  27S;  Ck>ghlaB  ▼. 
South  Carolina  B.  Co.,  142  U.  S.  101,  12  Sup.  Ct.  Bep.  150;  Scot- 
land County  V.  Hill,  132  U.  S.  107,  10  Sup.  Ct.  Bep.  26;  Town  of 
Pana  v.  Bowler,  107  U.  S.  529,  2  Sup.  Ct.  Bep.  704.  In  Huey  r. 
Macon  County,  35  Fed.  481,  the  law  of  the  forum  was  applied,  but 
only  because  the  law  of  the  place  where  the  instruments  there  saed 
on  were  payable  was  not  proved.  In  Baltzer  v.  Kansas  Pac  By. 
Co.,  3  Mo.  App.  574,  which  was  an  action  on  certain  interest  coupons 
detached  from  bonds,  it  is  said  that  interest  is  to  be  computed 
according  to  the  law  of  the  state  where  the  liability  accrued,  "un- 
less the  rate  be  less  there  than  in  the  state  in  which  judgment  is 
rendered.''  The  ease  is  not  reported  in  full;  no  reason  is  given 
for  the  qualification  quoted,  nor  is  any  apparent. 

O.  Bills  of  Ezcliange.--The  principles  above  applied  to  other 
forms  of  negotiable  instruments  are  equally  pertinent  to  bills  of 
exchange.  The  weight  of  authority,  if  not  the  uniform  holding^ 
where  these  are  involved,  likewise  supports  the  doctrine  that  the 
place  of  the  accrual  of  the  liability,  and  not  the  place  of  the  forum, 
furnishes  the  law  by  which  the  amount  of  interest  allowed  as  dam- 
ages is  to  be  determined:  Dickinson  v.  Branch  Bank  at  Mobile,  12 
Ala.  54;  Price  v.  Page,  24  Mo.  65;  Page  v.  Page,  24  Mo.  595;  Bouldia 
V.  Page,  24  Mo.  594;  Foden  v.  Sharp,  4  Johns.  183;  Mullen  v. 
Morris,  2  Pa.  St.  85;  Clark  v.  Searight,  135  Pa.  St.  173,  20  Am.  St.  Bep. 
868,  19  AtL  941;  Winthrop  v.  Pepoon,  1  Bay,  468;  Cooper  v.  Sand- 
ford,  12  Tenn.  (4  Yerg.)  452,  26  Am.  Dec.  239;  Green  v.  Bond,  37 
Tenn.  (5  Sneed)  328;  Able  v.  McMurray,  10  Tex.  350;  Bank  of  Il- 
linois V.  Brady,  3  McLean,  268,  Fed.  Cas-  No.  888;  Ex  parte  Heidel- 
back,  2  Low.  Dec.  626,  Fed.  Cas.  No.  6322;  Gibbs  v.  Fremont,  20 
F.ng.  L.  &  Bq.  555,  9  Ex.  25,  17  Jur.  820,  1  Week.  Bep.  482,  22  L. 
J,  Ex.  302;  Allen  v.  Kemble,  6  Moore  P.  C.  314. 

fi.    Torts.— Whether  and  to  what  extent  interest  is  allowable  by 
way  of  damages  for  a  tort  is  to  be  determined,  it  has  been  held,  by 


Oct.  1901.]  Gray  v.  Telegraph  Co.  741 

the  law  of  the  place  where  the  injury  occurred  and  the  damag^e 
accrued:  Ekins  v.  East  India  Co.,  1  P.  Wms.  895,  See,  also,  Bis- 
-eboffsheim  v.  Baltzer,  21  Fed.  531.  In  Missouri »  on  the  other  hand, 
it  is  held  that  in  an  action  for  eonversion  of  goods,  where  the  con- 
version took  place  in  a  foreign  state  and  the  action  is  brought 
in  HisBonri,  the  rate  is  determined  by  the  law  of  the  latter  state: 
Oaraon  ▼.  Smith,  133  Mo.  606,  34  S.  W.  855.  Compare,  also,  New 
York  etc.  B.  B.  Co.  t.  EstiU,  147  U.  S.  591,  13  Sup.  Ct.  Bep.  444. 

7.  Beriew  of  Oases  as  to.— The  result  of  the  authorities  above 
^considered  shows  that  by  the  weight  of  authority  the  law  of  the 
place  where  the  liability  has  accrued,  rather  than  that  of  the  forum, 
•determines  whether  interest  is  allowable  as  an  element  of  damage, 
and,  if  so,  at  what  rate  it  is  to  be  computed.  Of  the  states  which  take 
jLn  opposing  view,  in  but  few  are  the  eases  entirely  consistent,  and 
the  weight  of  reason  is  certainly  with  the  doctrine  that  the  place 
where  the  cause  of  action  arises  furnishes  the  law  applicable.  The 
4]nestion  at  what  rate  interest  is  computable  is  perhaps  confused  by 
regarding  it  as  a  question  of  conflict  of  laws  at  all.  Once  it  is  de- 
termined that  interest  is  to  be  allowed,  it  is  allowable  only  on  the 
theory  of  compensating  the  injured  party,  and  the  question  is  not, 
strictly  speaking,  what  law  governs,  but  is  rather  what  rate  of 
interest  will  be  compensatory.  This  is  obviously  the  rate  of  inter- 
<ost  at  the  place  where  payment  should  have  been  made.  If  fixed 
by  custom  or  usage  only,  evidence  of  the  custom  or  usage  is  ad- 
missible: Crawford  v.  Slmonton,  7  Port.  (Ala.)  110.  Whether  de-. 
termined  by  custom  or  by  statute,  however,  the  rate  of  interest 
^t  the  place  of  accrual  of  liability  is  the  proper  criterion  for  esti- 
mating the  amount  of  damage  done  by  failure  to  pay.  The  matter 
is  not  in  any  true  sense  one  of  remedy  merely,  and  the  lex  fori  is,  it 
would  seem,  entirely  inapplicable. 

e.    Presamption,  etc 

!•  Foreign  Law  not  a  Subject  of  Jndidal  Notice.— In  Bchell  ▼. 
Stetson,  12  Thila.  187,  it  is  held  that  the  courts  of  one  state  wiU 
take  judicial  notice  of  the  interest  rate  allowed  by  the  laws  of 
another  state,  where  an  action  is  brought  in  the  one  state  upon  a 
judgment  rendered  in  the  other.  The  ease  is,  however,  opposed  to 
the  otherwise  uniform  holding  of  the  authorities.  The  interest  rate 
of  one  state  is  in  another  state  a  fact  which  must  be  proved,  and 
will  not  be  judicially  noticed. 

2,    Oonseqnences  of  FaUnre  to  Prove  Foreign  Law. 

A.  View  that  No  Interest  is  Allowable.— Accordingly,  it  is  held 
in  a  number  of  states  that  a  foreign  interest  rate  must  be  found 
by  A  jury,  and  no  interest  can  be  allowed,  in  a  case  where  interest 
is  properly  governed  by  the  foreign  law,  unless  that  interest  rate 
be  proved  as  a  fact:  See  for  cases  where  this  is  held  in  an  action 
^n  a  foreign  judgment,  Crawford  v.  Slmonton,  7  Fort.  lIOj  Murray 


748  Ambbican  Statb  Bbpobts,  Vol.  91.  [Ti 


T.  Coii«,  8  Port.  290;  Olarke  ▼.  Pratt,  20  Ala.  470;  HarriMm  ▼.  Har> 
rison,  20  Ala.  629,  66  Am.  Dee.  227;  Oavender  t.  Guild,  4  OaL  250; 
Ingram  ▼.  Driakard,  14  Tex.  250.  Where  the  foreign  judgment  itoelf 
•peeifiee  the  rate  of  intereit  it  shall  draw,  that  rate  will  be  allowed: 
Bee  supra,  IV,  d,  2,  D.  See,  also,  post,  IV,  f,  for  statutory  pro^ 
yisions  in  this  coneetion.  So  where  the  subject  matter  of  an  ae- 
tion  is  a  promissory  note  or  bill  of  ezehange,  it  is  held  in  these 
states  that  the  interest  rate,  if  determined  hy  the  law  of  another 
state,  is  a  question  for  the  jury:  See  Gamer  ▼.  Tiifany,  Minor  (Ala.), 
167;  Peacoek  v.  Banks,  Minor  (Ala.),  887;  Evans  t.  Clark,  1  Port. 
(Ala.)  388;  Evans  y.  Irvin,  1  Port.  390;  Hanrick  v.  Andrews,  9  Port. 
P;  Dunn  ▼.  Clement,  2  Ala.  392;  Dickinson  v.  Branch  Bank  at  ICobiUg. 
12  Ala.  51;  Insurance  Co.  of  North  America  v.  Poreheimer,  86  Ala.  541, 
5  South.  876;  Morgan  v.  Froth,  24  Ky.  (IJ.  J.  Marsh.)  94;  Ingrahan  ▼• 
Arnold,  24  Ky.  (1  J.  J.  Marsh.)  406;  Johnson  v.  Williams,  24  Ky.  (1  J. 
J.  Marsh.)  489;  Pawling  ▼.  Sartain,  27  Ky.  (4  J.  J.  Marsh.)  288;  Swett 
▼.  Dodge,  18  Miss.  (4  Smedes  &  M.)  667;  Cooke  v.  Crawford,  1  lec 
9,  46  Am.  Dec  93;  Bamsey  ▼•  MoCanley,  2  Tex.  189;  Cook  ▼.  Graw- 
ford,  4  Tex.  420;  Hill  v.  George^  5  Tex.  87;  Wheeler  v.  Pope,  5  Tex. 
262;  Able  v.  McMurray,  10  Tex.  350.  See,  also,  Kermott  y.  Ayer, 
11  Mich.  181. 

In  a  number  of  cases  the  eourts  taking  this  view  haye  neTerthe- 
less  applied  the  law  of  the  forum  on  the  ground  that  the  place  of 
making  or  of  performance  was  not  shown  to  have  been  outside  the 
jurisdiction  of  the  fonun.  Thus,  in  Smith  ▼.  Bobinson,  11  Ala.  270^ 
it  was  held  that  an  allegation  that  a  note  was  payable  at  ''Macim" 
did  not  show  that  it  was  not  payable  in  Alabama.  So  in  Biehard- 
son  ▼•  Williams,  2  Port.  239,  a  statement  that  a  bond  was  executed 
im  Virginia  was  held  not  equivalent  to  an  allegation  that  it  wa» 
executed  in  the  state  of  Virginia,  and  in  Whitlock  ▼.  Castro,  221 
Tex.  108,  it  was  held  that  the  court  could  not  judicially  know 
New  York  and  New  Orleans  to  be  outside  of  Texas.  In  Pawling 
V.  Sartain,  27  Ky.  (4  J.  J.  Mar^.)  288,  on  the  other  hand,  the  coart 
took  judicial  notice  of  the  fact  that  Nerw  York  was  not  in  Kentucky,, 
and  in  Dunn  r.  Clement,  2  Ala.  892,  the  court  took  judicial  notice  of 
the  somewhat  obvious  fact  that  Kemper  eonnty,  Miswisslppi,  was  not 
within  the  state  of  Alabama, 

B.  View  that  Common  Law  PrerallB.— In  some  few  jurisdlctionr 
it  is  hold  that  in  the  absence  of  express  proof  of  the  rate  of  inter* 
est  allowed  in  another  state,  the  common  law  will  be  presumed  to> 
exist  there.  Accordingly,  where  an  action  is  prosecuted  in  one  state 
on  a  judgment  rendered  in  another,  in  the  absence  of  proof  as  t» 
the  law  in  the  latter  jurisdiction,  it  is  held  that  no  interest  will 
be  allowed  on  the  ground  that  at  common  law  a  judgment  does  not 
bear  interest:  Thompson  v.  Monrow,  2  Cal.  P9,  56  Am.  Dec  318; 
Cavender  v.  Guild,  4  Cal.  250.  This  presumption  does  not,  it  hsa 
been  held,  hold  where  the  state  where  the  judgment  was  rendered 


OcL  1901.]  Oray  v.  Tblboeavh  Go.  743> 


not  ''one  of  those  states  which,  prior  to  becoming  members  of 
the  Union^  were  subject  to  the  laws  of  England '':  Crane  ▼•  Dawson^ 
19  Ho.  App.  214.  As  to  whether  a  judgment  bears  interest  at  com- 
mon  law,  see  Freeman  on  Judgments,  sec  441. 

O.  Tlew  that  Domestic  Law  Ooyemfl.— Still  a  third  yUw  is  that; 
in  the  absence  of  any  proof  as  to  the  law  of  a  foreign  state  witlh 
respeet  to  interest,  the  law  of  the  forum  wiU  be  applied,  some  of 
the  eaees  which  adopt  this  Tiew  placing  it  npon  the  ground  of  ». 
preeomption,  in  the  absence  of  proof  to  the  contrary,  that  the  for^ 
eign  law  is  in  this  respect  the  same  as  that  of  the  forum.  Whatever 
the  basis  of  the  doctrine,  it  is  one  which  is  adopted  in  a  number  of 
jurisdictions:  Chumasero  ▼•  Gilbert,  24  111.  293;  Chumasero  ▼.  Gil* 
bert,  24  HL  651;  Chumasero  ▼.  Gilbert,  26  IlL  39;  Hall  ▼.  Kimball,.. 
58  BL  S3;  Browning  v.  Kenrit,  61  Ind.  425;  Crafts  v.  Clark,  38- 
Iowa,  837;  David  v.  Porter,  51  Iowa,  254,  1  N.  W.  528;  Mason  v. 
Mason,  12  La.  589;  Patterson  v.  Garrison,  16  La.  557;  Bipka  v.  Pope,. 
5  La.  Ann.  61,  52  Am.  Dee.  579;  Hawlej  v.  Sloo,  12  La.  Ann.  815;. 
Knenri  v.  Elvers,  14  La.  Ann.  891,  74  Am.  Dec.  434;  Wood  ▼.  Cor),. 
4  Met.  208;  Deenoyer  v.  McDonald,  4  Minn.  515;  Cooper  v.  Beaney,. 
4  Minn.  588;  Hall  v.  Woodson,  18  Mo.  462;  Crone  ▼.  Dawson,  1^ 
Mo.  App.  214;  Fitzgerald  v.  Fitzgerald  etc  Co.,  41  Neb.  874,  5S> 
N.  W.  588;  Longee  v.  Washburn,  16  N.  H.  134;  Leavenworth  T» 
Bcoekway^,  2  HUl,  201;  Pauska  v.  Daus,  81  Tex.  67;  Moseby  v.  Bur- 
row, 52  Tex.  396;  Huey  v.  Macon  Co.,  85  Fed.  481.  See,  also,  Tillot- 
■on  V.  Prichard,  60  Yt.  94,  6  Am.  St.  Bep.  95,  14  AtL  802. 

f*  8tatator7  ProvlBioBS.— In  Kentucky,  the  former  role  of  that, 
fltate  that  Interest  on  an  obligation  accruing  in  another  state  ceolcl: 
be  allowed  only  on  proof  of  the  foreign  rate,  has  been  ehangecl' 
by  statute  making  the  law  of  Kentucky,  in  the  absence  of  proof 
of  the  foreign  law,  applicable  to  determine  the  rate  of  interest 
allowable  on -foreign  judgments:  Beynolds  v.  Powers,  96  Ky.  481,. 
29  S.  W.  299;  and  other  obligations,  liability  on  which  accrued  out- 
side the  state:  Thomas  v.  Beciunan,  40  Ky.  (IB.  Mon.)  29. 

In  Alabama,  under  a  statute  providing  that  the  Secretary  of  State) 
shall  compile  and  publish  a  table  of  the  rates  of  interest  in  otheor 
states,  and  making  such  table  prima  facie  evidence  of  the  facts  it: 
purports  to  give,  it  is  held  that  the  rate  of  interest  in  a  f oreigm 
state  is  nevertheless  a  question  for  the  jury,  and  not  a  proper  sub- 
ject uf  judicial  notice.  The  statute  makes  it  merely  prima  facie- 
evidence,  which  is,  therefore,  rebuttable,  and  it  is  held  error  to 
render  judgment  by  default  for  interest  at  the  rate  of  a  foreign 
state  as  shown  in  the  tables:  Clarke  v.  Pratt,  20  Ala.  470;  Harrison 
V.  Harrison,  20  Ala.  629,  56  Am.  Dec.  227;  Insurance  Co.  of  North 
America  v.  Forcheimer,  86  Ala.  541,  5  South.  876. 


744  American  State  Bepobts^  Vol.  91.  £TenB. 


LOWEBY  V.  GATE. 

[108  Tonn.  54^  64  8.  W.  1068.] 

OONTBACTS  OF  INFANTS— LlabUity  for  Tortioui  Bzeacb  tf 

Contract.— While  an  infant  is  liable  for  his  independent  tort,  be 
is  not  liable  for  the  tortious  consequences  of  his  breaehea  of  eoa- 
tract,  though  the  action  may  be  in  form  as  for  a  tort,  ao  Ictng  as 
the  subject  of  the  suit  is  based  on  the  contract,     (p.  746.) 

CONTRACTS  OF  INFANTS— LiablUty  for  Tort.— If  an  in- 
fant's tort  is  subsequent  to,  or  independent  of,  his  contract  and  not 
a  mere  broach  thereof,  but  a  distinct,  willful,  and  positive  wrong 
in  itself,  then,  notwithstanding  the  contract,  the  ii^ant  is  liable^ 
(p.  746.) 

CONTRACTS  OF  INFANTS— LlablUty  for  NegUgent  Bx«adi 

of. — If  an  infant  contracts  to  thresh  grain,  and  in  performing  tue 
work  negligently  uses  an  engine  without  a  spark-arrester,  placed 
80  near  that  it  sets  fire  to  and  burns  the  grain  and  the  shed  con- 
taining it,  he  is  not  liable  for  the  loss,  without  proof  that  his  act 
was  a  willful  and  intentional  wrong,  done  independently  of,  and 
outside  of,  the  contract,     (p.  748.) 

N.  Q.  Allen,  Traynor  &  Smith,  B.  B.  C.  Witt,  J.  C.  BaiMey 
and  J.  S.  Shamblin,  for  the  plaintiff. 

Burkett  &  Mansiield,  Mayfield,  Son  &  Aiken,  R.  M.  Cope- 
land,  and  J.  L.  Smith,  for  the  defendant. 

^  McALISTEE,  J.    The  plaintiff  below  recovered  a  verdict 

and  judgment  for  the  sum  of  three  hundred  and  ten  dollars 
against  the  defendant  Lowry,  for  the  value  of  wheat  and  other 
property  alleged  to  have  been  destroyed  through  his  negligence. 

It  appears  from  the  proof  that  the  defendant  Lowery  was 
the  owner  of  an  engine  and  thresher,  and  entered  into  a  con- 
tract with  plaintiffs  to  thresh  their  wheat  for  every  twentieth 
bushel.  The  contract  was  made  by  J.  G.  Gate,  for  himself  and 
other  parties  in  interest,  with  tiie  defendant  Lowery.  The 
wheat  was  stored  in  a  large  shed  on  Gate's  farm,  the  portion  of 
each  of  the  parties  being  packed  in  separate  tiers.  The  defend- 
ant Lowery,  with  his  employ6s,  arrived  with  the  thresher  early 
in  the  morning  and  began  threshing  the  wheat.  They  contin- 
ued threshing  until  about  1  o'clock  in  the  afternoon,  when  the 
wheat  caught  fire  from  the  sparks  emitted  from  the  engine,  and 
both  the  wheat  and  oats  stored  in  the  shed,  together  with  the 
shed,  were  totally  destroyed. 

•^  There  is  proof  tending  to  show  the  value  of  the  wheat  was 
seven  hundred  and  thirty  dollars,  the  oats  seventy-five  dollars, 
and  the  shed  one  hu.iidred  and  twenty-five  dollars.  Separate 
suits  were  brought  by  the  parties  in  interest  against  the  defend- 


Nov.  1901.]  LowEBY  V.  Catb.  746 

ant  before  a  justice  of  the  peace  of  Polk  county.  In  the  circuit 
court,  by  consent  of  parties,  these  causes  were  heard  together, 
and  verdict  rendered  in  favor  of  the  plaintiffs  for  sums  aggre- 
gating three  hundred  and  ten  dollars. 

There  is  proof  tending  to  show  that  the  defendant  proceeded 
to  thresh  the  wheat  without  any  spark-arrester  on  his  engine, 
and  that  on  the  day  preceding,  defendant  had  set  fire  to  the 
wheat  of  one  Howard,  while  threshing  it.    There  is  also  proof 
tending  to  show  that  the  engine  and  thresher  were  set  in  such 
position  and  at  such  an  angle  that  the  wind  blew  the  sparks  di- 
rectly toward  the  shed.    It  is  also  shown  that  the  wind  was  not 
blowing  very  hard  in  the  morning,  but  during  the  day  its  veloc- 
ity greatly  increased,  and  plaintiff,  seeing  there  was  danger  of 
the  wheat  catching  fire,  warned  defendants  engineer,  but  the 
engineer  said  there  was  no  danger;  that  he  would  turn  on  an 
exhaust  valve  and  stop  the  sparks.    Plaintiff  admits  he  saw 
there  was  no  spark-arrester  on  the  engine,  but  says  he  thought 
that  was  all  right.    Plaintiff  states  that  when  he  called  his  men 
to  set  the  engine  square,  the  work  had  commenced,  and  defend- 
ant said  the  angle  set  was  all  right.     It  was  *''  seventy-four 
feet  from  the  point  the  fire  caught  to  the  engine.    It  would  have 
been  twenty  feet  farther  if  a  square  set  had  been  made.     Plain- 
tiff states,  on  cross-examination,  he  did  not  stop  them  from 
making  the  angle  set,  nor  did  he  stop  them  from  running  when 
he  saw  the  danger,  for  the  reason  the  engineer  told  him  there 
was  no  danger,  and  that  he  could  stop  the  sparks  by  turning  on 
the  exhaust  valve. 

There  is  no  proof  indicating  any  willfulness  on  the  part  of 
defendant  or  his  employes  in  setting  fire  to  the  shed,  but  the 
case  presented  by  plaintiff  is  one  of  negligence  in  the  operation 
of  the  engine  and  thresher. 

At  the  time  the  contract  was  made  and  the  wheat  destroyed 
Lowery  was  a  minor  eighteen  years  of  age.  Plaintiff  Gates  tes- 
tified that  he  said  to  defendant,  when  he  commenced  the  work, 
that  be  seemed  rather  young  to  be  running  a  thresher.  De- 
fendant replied  that  he  did  not  know  much  about  it,  but  had 
men  with  him  as  employes  who  did  understand  it.  On  the  trial 
below  the  defendant  pleaded  his  infancy  in  bar  of  the  action. 
Plaintiff's  counsel  demurred  to  the  plea  on  the  ground  that  the 
action  was  founded  upon  tort,  and  not  upon  contract,  and  an 
infant  is  liable  in  law  for  his  torts.  The  court  sustained  the 
demurrer  and  the  plea  was  stricken  from  the  file.  Counsel  for 
defendant  also  submitted  a  supplemental  request,  asking  ^^ 


?46  American  Statb  Rbpobts,  Vol.  91.  [T 

the  court  to  charge  that  if  the  loss  resulted  from  a  itef^ifsent 
performance  of  the  contract,  and  there  was  no  willful  or  inten- 
tional wrong,  defendant  would  not  be  liable.  This  request  w«* 
refused.  The  action  of  the  court  on  the  plea  and  reposal  to 
charge,  as  requested,  is  made  the  basis  of  the  third  assienment 
of  error,  and  raises  the  determinative  question  in  the  case. 

We  are  of  opinion  the  court  was  in  error  in  sust^iining  the  de- 
murrer. The  principle  is  well  settled  that  an  infant  is  liable 
in  an  action  ex  delicto  for  all  injuries  to  prrpons  or  property 
committed  by  him :  Dial  v.  Wood,  9  Baxt.  296 :  Hossley  v.  SUte^ 
2  Yerg.  481 ;  Weigand  ▼.  Malatesta,  6  Col  1.  307. 

^'But  while  an  infant  is  liable  for  his  torts,  he  is  not  liable 
for  the  tortious  consequences  of  his  breaches  of  contract,  and 
though  the  action  may  be  in  form  as  for  a  tort,  yet  if  the  sub- 
ject of  it  be  based  on  contract,  the  suit  will  be  sti  Tid'*d  with  all 
the  incidents  of  an  action  ex  contractu:  16  Am.  ft  Eng.  Ency. 
of  Law,  2d  ed.,  309.  Again,  the  mere  fact  thnt  the  canse  of  ae- 
tion  grows  out  of,  or  is  connected  with,  contract,  will  not  m 
every  case  shield  the  infant  from  liability.  If  the  tort  i?»  ra' -se- 
quent to,  or  independent  of,  the  contract,  nn«l  no^  a  mere  breach 
of  it,  but  is  a  distinct,  willful  and  positive  wroi^*^  in  its-  K,  then, 
notwithstanding  the  contract  the  infant  is  lis'  le.  T''i<  Tinci* 
pie  is  illustrated  in  the  use  of  hired  hors  s.  If  an  in^a^'t  hires 
■•  a  horae  to  be  moderatolv  driven  or  riH^  i\,  an  ^  ♦h'*  infant, 
from  lack' of  experience,  rid"j<  or  drives  t'  o  bore  •  -^nodr^rately, 
er  injures  him  by  unskillful  management,  it  is  a  mnre  breadi 
of  contract,  and  the  plea  of  infancy  is  a  complete  d(*fpn8e  to  an 
action  therefor.  But  if  the  infant  willfiUlv  and  intentionally 
injures  the  animal,  or  uses  him  for  a  different  pnrpo'^e  for  which 
he  was  hired,  or  drives  him  elsewhere  or  hevond  the  niaee  con- 
templated in  the  contract,  it  is  a  conversion  of  the  animal  which 
terminates  the  contract  and  renders  the  infant  lia»>In  in  trover 
for  its  value*' :  16  Am.  &  Eng.  Ency.  of  T.aw.  2 1  ed..  309. 

"The  defense  of  infancy  cannot  be  ploaded  in  aetions  for 
wrongs  independent  of  contract,  but  it  niav  be  pU-adeif  in  all 
cases,  where  the  cause  of  action  is  substantially  founded  on  a 
contract,  thousrh  the  declaration  might  be  framed  in  form  of 
tort,  instead  of  a  contract.  So  that  the  plaintiff  cannot  indi- 
rectly make  the  defendant  liable  on  a  contract  made  during  in- 
fancy by  merely  changing  the  form  of  the  declaration'' :  1  Keen* 
er's  Selections  on  Contracts,  513. 

Mr.  Cooley,  in  his  work  on  Torts,  page  103,  says :  **Howe?er> 
there  is  an  exception  to  the  rule.    The  distinction  is  this:  If 


Hot.  1901.]  Lowbby  v.  Gate.  747 

tbe  WTOBg  growB  out  of  contract  rdatioss,  and  the  real  injnrf 
eoBflifitB  in  the  nonperformance  of  a  contract  into  which  the 
party  -wronged  baa  entered  with  an  infant,  ^  the  law  will  not 
permit  the  adult  to  enforce  the  contract  indirectly  by  coimting 
on  the  infant's  n^lect  to  perform  it,  or  omission  of  duty  under 
it,  as  a  tort  The  reason  is  obvious.  To  permit  this  to  be  don& 
would  deprive  the  infant  of  that  shield  of  protection  which,  iik 
matters  of  contract,  the  law  has  wisely  placed  before  him.  If 
snit  should  be  brought  against  an  infant  for  the  immoderate  use 
of^  and  want  of  care  of,  a  horse,  which  has  been  bailed  to  him, 
infancy  is  a  good  defense,  the  gravamen  being  a  breach  of  con- 
tract of  bailment.  So  in&ncy  is  a  defense  to  an  aoti^m  by  a 
ship  owner  against  his  supercargo  for  a  breach  of  his  instnus 
tions  regarding  the  sale  of  the  cargo,  whereby  the  same  was^ 
lost  or  destroyed.^' 

Parsons  mi  Contracts,  on  page  316,  says:  ''An  infant  is  prtK 
tected  against  his  contracts,  but  not  against  his  frauds  or  other 
torts.  If  such  tort  or  fraud  consist  in  the  breach  of  his  con* 
tract,  then  he  is  not  liable  therefor  in  an  action  sounding  in* 
tort,  because  this  would  make  him  liable  for  his  contract  merely 
by  a  change  in  the  form  of  action,  which  the  law  does  not 
permit.*' 

In  the  case  of  Fitts  t.  Hall,  9  N.  H.  441,  the  court  says  that 
no  liability  growing  out  of  a  contract  can  be  asserted  against  an* 
infant.  ^^  The  test  of  an  action  against  an  infant  is  whetheir- 
•  liability  can  be  made  out  without  taking  notice  of  the  con- 
tract 

Now,  applying  the  test  laid  down  in  tbe  cases  dted,  it  will  be- 
observed  that  the  tort,  which  is  the  foundation  of  the  present 
actkdiy  was  committed  in  the  performance  of  a  contract,  and  is- 
not  a  willful  or  intentional  wrong,  done  independent  of,  and 
outside  of,  the  contract 

The  claim  of  plaintiff  is  that  defendant  was  guilty  of  negli-^ 
gence  in  failing  to  have  reasonably  safe  and  suitable  machinery, 
in  that  it  had  no  spark-arrester,  and  that  the  defendant  and  hls- 
employte  were  negligent  in  the  locating  of  the  engine  and 
thresher  at  an  angle  and  in  such  proximity  to  the  wheat  shed. 
The  gravamen  of  the  action  is  l^at  this  negligence  constituted 
a  breach  of  the  contract  and  furnished  ground  of  liability. 

Plaintiffs  are  bound  in  making  out  this  case  to  show  the  con- 
tract, and  the  ground  of  liability  is  the  negligent  performance 
of  that  contract,  whereby  injury  has  resulted.    There  is  no  claink 


748  American  State  Sepobts,  Vol.  91.  [Tenn. 

of  willful  injury.  PlaintifE  must  have  known  at  the  time  tiiis 
contract  was  made  that  defendant  was  an  infant  under  tweni^- 
one  years^  since  he  admits  he  told  defendant  he  (defendant) 
seemed  to  be  rather  young  to  run  a  thresher.  He  cannot  now 
complain  that  his  contract  was  in  law  a  voidable  one^  and 
that  it  imposed  no  liability  •*  upon  the  defendant  for  its 
negligent  performance. 

For  the  error  in  sustaining  the  demurrer  to  the  plea,  and  in 
refusing  the  supplemental  request,  the  judgment  is  rev^^ed 
and  the  cause  remanded. 


The  Torts  of  Infants  connected  with  contracts  are  considered  in 
the  monographic  note  to  Craig  v.  Van  Bobber,  18  Am.  St.  Bep.  720- 
724.  The  general  rule  ie^  that  an  infant  is  liable  for  his  torta  not- 
withstanding they  may  have  arisen  out  of,  or  in  some  way  mar 
liave  been  connected  with,  a  contract:  Churchill  v.  White,  58  Neb. 
22,  76  Am.  8t.  Bep.  64,  78  N.  H.  369.  But  see  SlaytML  ▼•  Bany, 
175  Mass.  513.  78  Am.  St.  Bep.  510,  56  N.  E.  574. 


COTTEELL  v.  GRIFFITHS. 

[108  Tonn.  191,  65  S.  W.  397.] 

PABTITIOK— SCarried  Women.— A  partition  deed  or  decree 
between  tenants  in  common  who  are  married  women,  including  their 
husbands  as  decretal  parties  or  joint  grantees,  carries  no  other  or 
greater  interest  to  the  husbands  than  if  the  decree  or  deed  had  been 
made  to  their  wives  alone.  Each  wife  thereafter  holds  her  share 
in  severalty,  but  no  new  title  or  additional  estate  is  therein  eoa- 
f erred  or  created  in  favor  of  the  husband,     (p.  750.) 

Oreen  &  Shields  and  De  Armond  &  Ford,  for  the  plaintiff. 

Webb,  McClung  &  Baker  and  J.  C.  Ford,  for  fhe  defendant 

*•*  SNODGRASS,  C.  J.  The  qnestion  involved  in  thia 
case  is,  What  is  the  legal  effect  of  a  partition  deed  executed 
by  two  tenants  in  common  to  a  third  tenant,  a  married 
woman,  where  the  deed  includes  the  husband  as  joint  grants, 
though  no  agreement  upon  any  consideration  was  made  for 
such  conveyance,  or,  in  fact,  made  at  all,  but  deed  was  exe- 
cuted under  the  following  circumstances  and  upon  the  facts 
so  showing,  found  by  the  court  of  chancery  appeals?  Jesse 
Wells,  the  father  of  Mrs.  Ford,  Mrs.  Cottrell  and  Mrs.  Griffiths, 
was  the  owner  of  the  land  in  controversy.  He  died,  and  it 
descended  to  these  married  ladies,  as  tenants  in  common.    Mn. 


Nov.  1901.]  COTTBELL    V.   GRIFFITHS.  74^ 

'6ri£BtliB  and  Mrs.  Ford  conveyed  to  Mrs.  Cottrell  her  share  of 
the  land^  and^  later^  undertook  to  have  the  remainder  of  the 
land  partitioned  between  them.  A  surveyor  and  notary  were 
employed  to  partition  and  draw  deeds,  to  be  executed  by  the 
jMirties,  each  to  the  other,  for  the  shares  so  surveyed  and  par- 
titioned. This  was  done,  but  in  drawing  the  deeds  without 
direction  from  the  parties,  and  not  in  accord  with  their  inten- 
tion, the  notarv  named  the  husbands  of  the  two  married  women 
as  conveyees.  The  parties  were  all  *•*  dissatisfied  with  this 
form  of  conveyance,  the  husbands  setting  up  no  claim  of 
light  or  agreement  upon  any  consideration,  or  without  con- 
sideration, to  have  it  done.  The  draughtsman  was  con- 
sulted, and  he  said  the  deeds  conveyed  no  interests  to- 
the  husbands  as  matter  of  law,  but  that  he  would  insert 
a  clause  removing  any  supposed  difficulty  on  this  point,  and 
thereon  he  interlined  a  clause  showing  that  the  deeds  were 
in  division  of  the  lands  of  Jesse  Wells,  deceased  (as  already 
stated,  the  father  of  the  married  women  attempting  the  par- 
tition). This  was  not  altogether  satisfactory,  but  they  agreed 
to  keep  the  deeds  from  record  until  they  could  take  advice 
and  look  further  into  the  matter.  The  husbands  and  wives 
concurred  in  this,  and  so  the  matter  ended.  The  deeds  were 
taken  and  kept  by  each  without  registration,  or  further  action, 
until  four  days  after  the  death  of  Mrs.  Griffiths,  which  occurred 
on  the  IGth  of  February,  1901.  The  deeds  were  dated  and  put 
in  possession  of  the  parties  on  the  4th  of  October,  1892. 

There  were  no  children  bom  to  Mr.  and  Mrs.  Griffiths,  and 
besice  no  estate  by  curtesy,  if  the  partition  vested  no  title, 
either  as  tenant  by  the  entirety  or  tenant  in  common  with  his 
wife,  in  him.  It  was  denied  by  the  sisters  of  Mrs.  Griffiths 
that  any  estate  did  so  vest,  and  they  insisted  on  their  right  to 
present  possession  of  the  land  as  heirs  of  their  deceased  sister. 
This,  claim  *®*  was  not  admitted,  and  tl\preupon,  on  the  14th 
of  March,  1901,  they  filed  the  bill  in  this  cause,  in  connectioD 
with  their  husbands,  to  assert  their  right,  recover  the  land  of 
Griffiths,  and  have  his  claim  declared  a  cloud  on  their  title 
thereto. 

The  answer  denied  their  right  and  insisted  that  the  deeds 
were  delivered,  or  made  without  question,  and  all  parties  had 
held  and  claimed  under  them  since  their  date  to  the  filing  of 
the  biU. 

The  main  contention  in  the  proof  was  as  to  the  delivery  of 
the  deeds.    The  court  of  chancery  appeals  found  upon  the 


750  American  State  Bbpobts,  Vol.  91,  [T 

iact8  hereinbefore  stated,  and  others  not  necessary  to  more 
fully  recite,  that  there  was  no  complete,  nnqualified  delivery 
which  made  the  deeds  take  effect  in  favor  of  the  husbandE, 
as  it  was  neither  so  intended  nor  understood  by  fliein,  aiid 
ihat  they,  therefore  took  no  interest.  The  court,  therefore, 
•did  not  pass  upon  the  legal  effect  of  the  deeds,  had  they  beeiu 
in  fact,  unqualifiedly  delivered,  and  without  other  intent  of 
operation  than  that  which  appeared  on  their  face. 

The  assignment  of  errors  raises  the  question  that,  np(»i  tine 
facts  found,  such  delivery  must  be  legally  presumed,  and 
defendant  held  to  be  the  owner,  as  survivor  of  his  wife,  tbe 
joint  grantee,  or,  at  lea^t,  to  a  one^half  interest  as  tenant  in 
•common. 

This  question  need  not  be  discussed  at  length.  While  we 
are  satisfied  with  the  conclusion  of  the  *•*  court  of  chancery 
appeals,  that  what  occurred  did  not  bind  the  conveyee.  Mis. 
'GriflBths,  to  a  release  of  her  interest,  in  whole  or  in  part,  to 
lier  husband,  yet  we  hold  that  such  would  not  have  been  the 
effect  of  the  deed  had  it  been  to  the  satisfaction  of  the  partieB 
and  unqualifiedly  delivered. 

We  think  the  proposition  of  law  is  soundly  settled  in 
reasoned  cases  that  partition  by  decree  or  deed  between 
ants  in  common,  when  they  are  married  women,  and  the 
or  deed  includes  husbands  with  their  wives  as  decretal 
or  joint  conveyees,  carries  no  other   or  more  interest  to   ifae 
husband  than  if  such  decree  or  partition  deed  had  been  made 
to  the  wife  alone.     Such  decree  or  deed  only  adjusts  Qie  rights 
of  the  interested  parties  to  the  possession.    It  makes  no  new 
title  or  change  in  degree  of  title.    Each  does  not  take  the  allot- 
ment by  purchase,  but  is  as  much  seised  of  it  by  descent  from 
the  common  ancestor  as  of  the  undivided  share  before  partition. 
The  deed  of  partition  destroys  the  unity  of  possessicsi,   and 
henceforth  each  holds  her  share  in  severalty,  but  sudi  deed 
confers  no  new  title  or  additional  estate  in  the  land,  or,  we 
may  add,  less  estate  than  that  descended.    The  title  being  aln 
ready  in  her,  the  deed  merely  designated  her  share  by  mebes 
■and  bounds,  and  allotted  it  to  be  held  in  severalty :  *••  Whit- 
sett  V.  Wamack,  169  Mo.  14,  81  Am.  St.  Bep.  839,  59  8.  W 
'961,  and  authorities  cited. 

This  being  the  law,  it  makes  no  difference  whether  deed  oi 
partition  waa  made  to  Mr.  and  Mrs.  Griffiths,  or  to  her  alone, 
•or  made  to  both,  or  was  in  fact  delivered,  aa  the  result  would 
liave  been  the  same  so  far  as  the  rights  of  both  or  eiifaer 


.   1901.]  BiLLINQTON   V,   JONES.  751 

<5onccrned.    The  hneband  could,  tmder  such  deed,  take  no  more 
dxitercst  than  he  could  under  one  made  to  his  wife  alone. 

It  follows  that,  in  any  event,  the  decree  of  the  court  of 
-oliancery  appeals,  holding  that  complainants  were  entitled  to 
^lie  relief  sought,  is  correct,  and  it  is  affirmed  with  costs. 

A  Deed  In  ParHUon  passes  no  title,  but  simply  designates  th« 
-^liare  of  eaeh  eotenant.  Tliis  principle  is  applied  in  Harrison  ▼. 
"Bay,  108  N.  C.  215,  23  Am.  St.  Bep.  57,  12  8.  E.  993,  where  one  of 
-^lie  grantees  is  a  married  person,  and  the  deed  is  made  to  him  aad 
ft&is  wife. 


BILLINQTON  v.  JONES. 

[108  Tenn.  284^  66  8.  W.  1127.] 

WILLS— Oanc^llatioiL— A  written  declaration  signed  by  tlie 
'testator  that  'Hhis  will  is  nnll  and  yoid,"  following  his  signature 
to  an  instroment,  otherwise  perfect  as  Ids  will,  together  with  his 
declaration  that  he  had  "defaced"  and  '* killed '^  snch  will,  is  sufil- 
•eient  to  cancel  and  revoke  it,  although  the  testator  kept  it  in  his 
ponession  in  a  locked  drawer,  and  in  such  condition,  antU  his  death. 
<p.  754.) 

Walker  ft  McLane  and  Marshall  ft  Armstrong,  for  fhe  plain- 
tiff. 

Smithson,  Armstrong  ft  Neil,  for  the  defendant. 

*•*  WILKES,  J.  This  is  an  issue  of  devisavit  vel  non  oyer 
the  will  of  Benben  Billington.  The  cause  was  heard  before 
the  trial  judge  in  the  court  below,  and  the  issue  was  found 
against  the  wiU,  and  the  executor  has  appealed  and  assigned 
errors.  There  is  no  controversy  but  that  the  instrument  was 
duly  executed  in  proper  form  by  Reuben  Billington,  but  the 
contention  is  that  it  was  revoked  and  rendered  null  and  void 
by  an  indorsement  upon  it. 

It  was  executed  in  1881,  and  was  left  in  the  ***  care  of 
^S'ames  Wallace,  one  of  the  subscribing  witnesses,  where  it  re- 
mained some  four  or  five  years.  Mr.  Billington  then  went 
to  the  witness  and  called  for  the  will,  remarking  that  he 
wanted  to  make  some  changes  in  it.  He  took  it  home  with 
him  and  kept  it  for  some  time  in  its  original  condition.  His 
wife  was  not  satisfied  with  it,  because  it  did  not,  as  she  thought, 
make  an  equal  distribution  of  his  property  among  his  children^ 


752  American  State  Reports^  Vol.  91.  [Teniu. 

and  importuned  him  to  change  or  destroy  iL  After  an  attack 
of  illness^  he  desired  to  go  to  California  to  see  one  of  his  diil* 
dren^  and  as  a  means  of  restoring  his  health.  His  wife  made 
a  condition  of  her  going  with  him  that  he  ahonld  destroy  tiie- 
wiU. 

He  thereupon,  in  answer  to  her  importunities,  took  the  will 
and  wrote  upon  it  below  the  signature,  in  pencil,  the  following 
words:  "This  will  is  null  and  void.  B.  Billington.^  After 
thus  writing  on  it,  he  said  to  his  wife:  ''Now,  I  haye  defaced 
it,  and  it  is  killed/'  The  act  of  writing  was  witnessed  by 
his  wife  and  daughter,  but  they  did  not,  at  the  time,  know  what 
was  written.  He  placed  the  paper  away  in  a  lock  drawer,  and 
it  was  not  seen  again  for  more  than  twelve  years,  perhaps  aa 
many  as  fifteen,  and  not  until  after  his  death,  when  it  wa» 
found  in  the  drawer  with  other  papers,  some  of  which  were 
valuable,  and  others  not.  The  proof  shows  that  he  was  a  man 
of  ^^'^  sound  mind  and  fully  at  himself  up  to  his  last  sickness 
and  death.  He  appears  to  have  referred,  to  his  will  only  one 
time  during  these  years,  and  that  was  in  the  presence  of  his  son,, 
the  executor,  to  the  effect  that  it  seemed  he  would  never  have 
any  peace  about  the  will.  The  trial  judge  was  of  opinion^ 
from  the  proof,  that  the  testator,  after  executing  his  will,  be- 
came dissatisfied  with  it,  and  wrote  upon  it  with  the  purpose 
of  revoking  it,  and  that  the  writing  and  signature  made  un- 
der the  circumstances  showed  an  intention  to  cancel,  and  waa 
sufficient  to  revoke  and  cancel  the  will.  It  is  assigned  as  error 
that  this  writing  and  signature  did  not  amount  to  a  revocation. 
but  that  the  will  could  only  be  revoked  by  destroying,  or  by 
executing  some  instrument  of  dignity  equal  to  the  will  itself, 
and  that  this  writing  was  not  of  that  dignity.  The  fact  that 
the  testator  kept  the  paper  for  a  number  of  years  among  his 
valuable  papers  is  urged  as  an  indication  that  he  intended  it 
to  continue  to  be  his  will,  and  to  take  effect  as  such,  while,  on 
the  other  hand,  the  fact  that  the  indorsement  made  in  pencil 
was  allowed  to  remain  on  the  will,  and  that  it  was  never  re- 
ferred to  in  the  course  of  fifteen  years  but  once,  and  then  in 
an  indefinite  manner,  is  cited  to  show  that  it  was  considered 
that  the  will  was  canceled,  and  ijo  longer  effective. 

This  extraneous  testimony  appears  to  be  quite  *•*  equally 
balanced,  and  to  throw  but  little,  if  any,  light  upon  the  real 
question,  whether  the  wiU  was  intended  to  be  revoked  and  can- 
celed or  not;  so  that  we  must  consider  the  legal  effect  of  the 
revoking  clause,  and  the  acts  and  statements  of  the  maker  of 


Dec.  1901.]         BlLLINOTON  «.  JON£&  76S 

the  instrument  made  at  the  time  of  the  indorsement  na  tbe 
determinative  feature  of  the  case. 

TJnder  the  English  statute  of  frauds,  29  Charles  XI,  chapter 
3,  it  was  provided,  in  substance,  that  "there  should  be  no 
revocation  of  a  written  will,  duly  executed,  except  by  burning,, 
canceling,  tearing,  or  obliterating.*'  This  statute  is  not  iii' 
force  in  Tennessee,  and  the  question  in  TenneBsee,  except  in 
cases  of  revocation  by  means  of  a  nuncupative  will,  under  our 
statute  (Shannon's  Code,  sec.  3900),  is  controlled  by  the  rules- 
of  flie  civil  and  ecclesiastical  laws,  so  far  as  they  have  become 
a  part  of  the  common  law.  The  important  question  in  air 
such  cases  is  the  intention  of  the  testator.  If  the  testator  does 
some  act  entirely  different  from  those  mentioned  in  the  stat- 
nte,  but  with  the  full  intention  to  revoke,  it  will  be  a  revoca- 
tion: Pritchard  on  Wills,  sec.  266. 

And  so  if  he  attempt  to  destroy  the  will  with  the  purpopc- 
of  revoking  the  will,  but  does  not  succeed,  the  act  done  is  ef- 
fectual to  make  the  revocation;  as,  for  instance,  if  the  testator 
attempts  to  bum  his  will,  and  believes  he  has  done  ^^  so,  but 
by  fraud  of  another  a  different  paper  is  burned,  it  will  be  a 
revocation  if  the  testator  really  intended  it  to  be  so,  and  hon- 
estly believed  the  will  destroyed:  Smiley  v.  Gambill,  2  Head^ 
164. 

The  question  of  the  intention  to  revoke,  and  of  the  acts  done 
to  effect  it,  are  for  the  jury,  while  the  effect  of  the  act  done 
is  a  matter  for  the  court.  The  facts  being  foimd,  the  court 
will  decide  whether  or  not  they  amount  1;o  a  revocation :  Ford 
V.  Ford,  7  Humph.  10-1 ;  Smiley  v.  Gambill,  2  Head,  168.  The 
intention  to  revoke,  and  some  act  done  to  carry  that  intention 
into  execution,  must  concur:  Schouler  on  Wills,  3d  ed.,  sees* 
387,  388.  A  mere  expression  of  an  intention  to  revoke,  with- 
out some  act  to  carry  it  into  effect,  is  not  suflBcient:  Allen  v^ 
Huff,  1  Yerg.  409. 

A  written  will  of  either  personalty  or  realty  cannot  be  re- 
voked by  mere  parol:  AUen  v.  Huff,  1  Yerg.  404;  Marr  v» 
Marr,  2  Head,  307,  308 ;  Eodgers  v.  Rodgers,  6  Heisk.  496,  498 ;: 
Allen  V.  Jeter,  6  Lea,  674. 

If  a  maker  of  a  will  erase  his  signature,  and  afterward  re-sign 
it  without  an  intention  to  cancel,  it  will  not  amount  to  a  revo« 
cation  or  cancellation,  but  if  there  is  a  burning,  canceling, 
tearing,  or  otherwise  destroying  of  the  instrument,  it  will  be 
sufficient:  Frear  v.  WilUams,  7  Baxt.  650,  553.  ^^  And  if 
alterations  and  obliterations  are  made,  with  a  view  of  after- 

Am.   St.  Rep.,  Vol.  91-48 


754  American  State  Eeports,  Vol.  91.  [Tenn. 

ward  making  a  different  disposition  of  the  property,  they  will 
not  amount  to  a  revocation  or  cancellation  if  the  subeeqnent 
disposition  is  not  effectually  carried  out:  Stover  v.  Kendall, 
1  Cold.  660,  661. 

It  was  held  in  Connecticut  that  the  words,  '^this  will  is  in- 
valid,'' indorsed  upon  the  back  of  an  instrument,  otherwise 
perfect  as  a  will,  was  a  sufficient  cancellation  or  revocation, 
there  being  no  statute  in  that  state  upon  the  subject:  Witter 
V.  Mott,  2  Conn.  67;  Card  v.  Guinan,  5  Conn.  164,  167;  Prit- 
chard  on  Wills,  sec.  271;  Graham  v.  Burch,  28  Am.  St  Bep. 
344,  361,  notes. 

In  the  case  at  bar  it  is  evident  that  the  revoking  clause 
was  written  by  the  testator  and  signed  by  him;  that  he  after- 
ward became  dissatisfied  with  its  contents,  and  intended  to 
cancel  and  revoke  it,  and  so  stated  to  his  wife,  in  the  ipreaence 
of  his  daughter,  and  that  from  that  time  forward  he  did  not 
consider  that  it  had  any  force  or  efficiency.  The  only  drcom- 
stance  militating  against  this  view  is  that  he  placed  the  paper 
in  a  lock  drawer,  and  kept'it  for  sixteen  years  without  destroy- 
ing it,  but  this  is  counterbalanced  by  the  proof  that  he  did 
not  treat  it  as  being  in  effect,  or  refer  to  it  as  being  still  his 
will,  nor  did  he  erase  the  revoking  clause,  though  it  was  in 
pencil  and  might  easily  have  ^^  been  obliterated,  if  he  de- 
sired. Under  all  these  circumstances  we  must  hold  that  the 
will  was  revoked  and  canceled,  and  was  not  in  effect  at  flie 
death  of  B.  Billington,  and  the  judgment  of  the  court  bdow 
is  affirmed  with  costs. 


Revocation  of  TTilZ.— Tbe  supreme  court  of  Geor^a  lifts  recently 
held  that  an  unattested  indoreement  on  a  will  in  the  testator's  haad- 
writin^y  that  ''This  will  is  made  void  by  one  of  more  recent  date,'* 
or  "This,  my  will  and  testament,  is  of  no  avail,  and  is  nnll  and 
roid/'  does  not 'Work  a  revocation  of  the  instnunent:  Howard  ▼• 
ETunter,  116  Ga.  357,  41  8.  E.  638,  90  Am.  St.  Rep.  121,  and  note. 
See,  on  this  question,  the  monographic  note  to  Graham  v.  Bnreh,  28 
Km.  St.  Bep.  850,  851. 


Peb.  1901.]  Railroad  v.  Klyman.  766 


EAILEOAD  V.  KLYMAIT. 

[108  Tenn.  304,  67  S.  W.  472.] 

SAILBOABS— Bight  of  Passenger  to  Stopover.— A  regular, 
'fnll  rate,  noncoupon  railroad  ticket,  in  the  absence  of  agreement, 
-entitles  the  holder  to  a  continuous  passage  only,  and  if  a  change 
of  trainp  must  bo  made,  the  journey  must  be  continued  on  the 
next  available  train.  Under  such  ticket  the  holder  may  begin  the 
journey  when  he  elocts,  but,  having  started,  he  is  not  entitled  to  sub- 
divide the  journey  at  will,  or  go  otherwise  than  continnonsly  from 
the  initial  point  to  the  point  of  destination,     (p.  757.) 

SAHJtOADS— Bights  Under  Passenger  Ticket.— In  the  ab- 
fienee  of  agreement,  rule  or  regulation,  the  obligation  created  by 
-the  sale  of  a  regular,  full  rate,  noncoupon  railroad  ticket  is  for 
one  continuous  passage,  and  if  the  passenger  voluntarily  leaves  the 
train  at  an  intermediate  station,  while  the  carrier  is  engaged  in 
the  performance  of  the  contract,  he  thereby  releases  it  from  fur- 
ther performance,  and  has  no  right  to  demand  such  performance  on 
another  train  or  at  another  time.     (p.  758.) 

BAILBOABS— Wrong  Beason  for  Bejection  of  Passenger 
'Ticket. — If  a  railroad  passenger  ticket  is  invalid  for  any  reason, 
the  faet  that  the  train  conductor  assigns  a  wrong  reason  for  its 
rejection  does  not  prevent  the  setting  up  of  the  invalidity  of  the 
ticket  as  a  defense  to  an  action  to  recover  for  a  refusal  to  honor 
it     (p.  760.) 

Washington^  Allen  &  Bains   and  J.  A.  Byan^  for  the  plain- 
tiff. 

Smith  &  Maddin,  for  the  defendant. 

«»  CALDWELL,  J.  The  line  of  the  Hendewion  diyimon 
4>f  the  Louisville  and  Nashville  Bailroad  Company,  running 
north  and  south,  crosses  the  line  of  its  Memphis  division,  which 
runs  east  and  west,  at  Guthrie,  Kentucky.  Eussellville,  Ken- 
tucky, is  on  the  former  line  east  of  the  intersection,  and  Naah- 
▼ille,  Tennessee,  is  on  the  latter  line  south  of  the  intersection. 
Passengers  going  from  one  of  these  points  to  the  other  must 
change  cars,  and  have  some  delay  at  Guthrie,  the  place  of  in- 
tersection. August  10,  1898,  the  plaintiff,  Solomon  Klyman, 
took  passage  at  Bussellville  for  Nashville,  and  while  awaiting 
the  Nashville  bound  train  at  Guthrie,  he  received  a  message 
•calling  him  in  the  opposite  direction  to  Madisonville,  Ken- 
tucky, whence  he  went  to  Louisville,  Kentucky,  and  thence  to 
Bussellville,  and  on  to  Guthrie  again  by  the  same  route  as  be- 
fore. After  this,  on  August  29th,  of  same  year,  he  boarded  tha 
train  at  Guthrie  and  resumed  his  journey  to  Nashville.  The 
<!onductDT  challenged  his  ticket,  and,  upon  his  refusal  to  paj 


756  American  State  Reports,  Vol.  91.  fT 

fare,  stopped  the  train  and  was  in  the  act  of  forcihlj  eject- 
ing him,  when  a  fellow-passenger  paid  his  fare  for  him  and 
he  was  carried  safely  to  his  destination.  A  few  moments  after 
his  fare  *^  waa  paid,  he  exhibited  a  large  amount  of  monej, 
and  repaid  the  gentleman  who  had  kindly  advanced  the  fare 
for  him.  This  suit  was  brought  to  recover  damages  for  the 
attempted  ejection;  verdict  and  judgment  were  rendered  for 
one  hundred  and  fifty  dollars  in  the  plaintiff's  favor,  and  the 
defendant  appealed  in  error. 

The  rejected  ticket  was  issued  nineteen  days  before  pres- 
entation. It  was  a  first-lass,  regular,  full  rate  ticket,  calling 
for  Nashville  as  the  point  of  destination.  It  was  lost  befcoe 
the  trial,  and  the  witnesses,  while  agreeing  as  to  the  facts  just 
stated,  were  not  in  harmony  as  to  the  place  of  issuance. 

The  plaintiff  testified  that  he  bought  a  ticket  from  Bnssell- 
ville  to  Guthrie,  and  used  it,  and  that  while  waiting  at  Guth- 
rie, and  before  called  to  Madisonville,  he  bought  the  ticket  now 
in  question  from  Guthrie  to  Nashville,  and  kept  it  in  his 
pocket  until  presented  nineteen  days  later,  but  the  defendant's 
witnesses  testifiorl  that  it  was  issued  at  RussellviUe,  and  used 
and  punched  to  Guthrie  on  the  day  of  issuance. 

The  plaintiff  contended  below,  and  contends  here,  that  the 
ticket,  being  first-class,  regular,  and  full  rate,  was  good  for 
passage  when  presented,  whether  issued  at  the  one  place  or 
the  other;  while  the  defendant  denied  there,  and  denies  here, 
that  it  was  then  good  if  issued  at  Eussellville  and  not  •^^  pre- 
sented on  next  train  to  Nashville,  after  being  used  to  Gutiirie» 

The  trial  judge  took  the  plaintiff's  view  a^d  charged  the 
jury  as  follows:  "That  if  the  plaintiff  purchased  a  ticket  at 
Guthrie  for  Nashville,  and  paid  full  fare  for  it,  or  if  he  pur- 
chased it  at  BussellviUe  for  Na^ville,  via  Guthrie,  as  tiie  road 
ran,  at  the  full  fare,  that  he  was  entitled  to  transportation 
from  BussellviUe,  or  from  Guthrie,  to  Nashville  upon  the 
same,  no  matter  when  presented,  and  if  the  defendant  company^ 
through  its  conductor,  refused  to  accept  the  same  for  passage 
from  Guthrie  to  Nashville,  when  offered  and  presented  by 
plaintiff,  and  the  conductor  thereupon  proceeded  to  eject,  or 
attempted  to  eject,  the  plaintiff  from  the  train,  such  action  on 
his  part  was  contrary  to  law,  and  that  defendant  would  be 
liable  for  such.*' 

This  instruction,  when  applied,  as  it  must  be,  to  the  facts 
and  contentions  heretofore  recited,  is  erroneous  in  its  alterna- 
tive supposition.    The  ticket  was  not  good  for  tranqportatioD 


Veb.  1901.]  Railroad  v.  Klymam.  767 

to  Nashyille  when  presented,  if  issued  in  ordinary  form  at  Bns- 
Mllville  and  used  to  Guthrie  nineteen  days  previously. 

Such  a  ticket,  if  issned,  was  good  only  for  a  continnons  pas- 
tsage  from  Bussellville  to  Nashville  by  snch  connection  as  was 
made  by  the  company's  trains  at  Gnthrie,  and  the  plaintiff, 
having  elected,  if  he  did,  to  begin  his  jonmey  on  the  *®®  day 
of  issfiance,  was  legally  bound  to  finish  it  by  the  first  suitable 
train  from  Guthrie  after  hia  arrival  there.  The  contract  inr 
^cated  by  such  a  ticket  waa,  in  the  abeence  of  an  agreement 
to  the  contrary,  an  entirety;  and  when  performance  was  once 
conunoiced,  both  pass^ager  and  carrier  w»e  legally  obliged  to 
•continue  it  until  completed. 

The  contract  operated  on  both  alike.  It  gave  the  passenger 
no  more  power  to  break  his  journey  into  parts  against  the 
^company's  will  than  it  gave  the  company  to  do  the  same  thing 
against  his  will.  It  gave  neither  the  right  of  severance  and 
piecemeal  performance,  without  the  consent  of  the  other;  and 
no  consent  is  shown  or  claimed. 

The  purchase  of  a  full  rate,  through  ticket  from  Bussellville 
to  Nashville,  if  made  by  the  plaintiff,  entitled  him,  under  the 
authority  of  Railroad  Co.  v.  Turner,  100  Tenn.  214,  47  S.  W. 
223,  to  elect  when  he  would  begin  his  journey,  but  it  did  not 
entitle  him,  under  that  or  any  other  authority,  of  which  we 
are  aware,  to  subdivide  his  journey  at  will,  or  when  started, 
to  go  otherwise  than  continuously  from  initial  point  to  ulti- 
mate destination. 

The  law  implies  the  right  of  an  dection  between  times  for 
•embarkation  from  the  very  eale  of  such  a  ticket,  and  it  like- 
wise, for  a  similar  reason,  implies  the  duty  of  continuous 
passage  *®®  from  the  very  fact  of  its  commencement.  As  the 
sale  of  such  a  ticket,  nothing  else  being  said,  affords  an  infer- 
ence that  the  purchaser  may  start  when  he  pleases,  so  his  start- 
ing, without  an  agreement  to  the  contrary,  affords  an  infer- 
•ence  that  he  will  go  direcUy  to  the  end  of  his  journey. 

The  company  must  receive  him  upon  its  regular  train  when- 
ever he  sees  fit  to  start,  and,  having  started,  he  must  make  a 
<!ontinuous  passage,  no  agreement  to  the  contrary  having  been 
made  in  either  instance.  These  rights  and  duties  lie  at  the 
foundation  of  the  contract,  and  are  reciprocal. 

Only  a  few  of  the  many  authorities  upon  the  subject  will  be 
•cited. 

"The  performance  of  the  contract  for  carriage  evidenced 
t)y  the  ticket,  it  has  been  held,  must  be  demanded  by  its  holder 


768  American  Statb  Bbpobts,  Vol.  91.  [T 

as  an  entirety  when  there  ia  no  express  agreement  upon  flia 
subject  on  the  ticket  or  with  the  agent  of  the  oompany,  wifli 
competent  anthority  to  make  it.  If,  therefore^  by  its  ternii» 
the  ticket  ia  for  passage  from  one  point  to  another,  when  the 
journey  has  been  once  commenced,  it  must  be  continued  with- 
out intermission  until  the  destination  named  in  the  ticket  haa 
been  reached,  and  the  passenger  cannot  claim  the  right  to  slop 
at  any  intermediate  place  and  continue  his  trip  upon  a  sabee* 
quent  train  of  the  same  company,  with  the  same  ticket,  unlesa 
the  **^  carrier  has  failed  to  carry  him  with  that  reasonable 
dispatch  which  he  had  the  right  to  demand'':  Hutchinson  os 
Carriers,  2d  ed.,  sec.  575,  p.  658. 

'^As  a  general  rule,  one  who  purchases  a  through  ticket  i» 
bound  to  pursue  the  usual  and  direct  route  over  the  company's 
road,  and  is  not  entitled  to  go  by  way  of  a  longer  and  mrae 
circuitous  line  owned  by  the  same  company,  nor  ia  he  entitled 
to  stop  over  on  the  way  unless  given  that  privil^e^:  4  Ellioti 
on  Railroads,  sec.  1595,  p.  2885. 

'^A  passenger,  having  used  a  through  ticket  to  an  intenne* 
diate  station,  has  no  right  on  such  ticket  to  resume  hia  jour- 
ney" :  Bay  on  Passenger  Carriers,  520. 

These  authors  are  supported  by  the  adjudged  cases  which 
they  cite,  and  others. 

In  Wyman  v.  Northern  Pac.  R.  R  Co.,  34  Minn.  210,  2^ 
N.  W.  349,  22  Am.  &  Eng.  B.  B.  Ca&  403,  404,  the  court  said: 
''The  general  rule,  in  the  absence  of  any  statute  changing  it» 
is  that  the  contract  of  conveyance  between  a  carrier  and  a  paa- 
senger  is  an  entirety.  Neither  party  can  require  the  other  to 
perform  it  in  parts.  Where  a  passenger  has  selected  his  train 
and  entered  it,  and  commenced  his  journey,  he  has  no  right  to* 
leave  it  at  an  intermediate  point  without  the  carrier's  con- 
sent, ^^^  and  afterward  demand  the  contract  be  completed 
on  another  train." 

One  of  the  headnotes  to  the  case  of  Hatten  v.  Bailroad  Co., 
39  Ohio  St.  315,  as  reported  in  13  Am.  &  Eng.  B.  B.  Caa.  53, 
is  as  follows :  ''In  the  absence  of  any  agreement,  rule,  or  rego* 
lation  to  the  contrary,  the  obligation  created  by  the  sale  of  the 
ticket  was  for  one  continuous  passage,  and  if  the  passenger 
voluntarily  left  the  train  at  an  intermediate  station,  while  the- 
carrier  was  engaged  in  the  performance  of  the  contract,  he 
thereby  released  it  from  further  performance,  and  had  no  right 
to  demand  such  performance  on  another  train  or  at  another 
time." 


lb.  1901.]  Railroad  v.  Eltman.  759 

The  Tvle,  with  the  reason  for  it,  is  stated  in  another  case  in 

words,  viz.: 
^^The  contract  between  the  parties  is,  that  upon  the  payment 
fare,  the  company  undertakes  to  carry  the  passenger  to  the 
point  named,  and  he  is  famished  with  the  ticket  as  evidence 
"tliat  he  has  paid  the  required  fare,  and  is  entitled  to  be  car- 
xded  to  the  place  named. 

''When  the  pass^iger  has  once  elected  the  train  on  which 
Ixe  is  to  be  transported,  and  entered  upon  his  journey,  he  has 
no  right,  imless  the  contract  has  been  modified  by  competent 
authority,  to  leave  the  train  at  a  way  station,  and  then  take 
another  train  on  which  to  complete  his  journey,  but  is  bound 
l>y  the  contract  to  proceed  *"  directly  to  the  place  to  which 
the  contract  entitled  him  to  be  taken. 

''Having  once  made  his  election  of  the  train  and  entered  upon 
the  journey,  he  cannot  leave  that  train,  while  it  is  [operated] 
in  a  reasonable  manner  within  the  undertaking  of  the  carrier, 
and  enter  another  train,  without  violating  the  contract  he  has 
entered  into  with  the  company'':  McClure  v.  Philadelphia  etc. 
B.  B.  Co.,  34  Md.  532,  6  Am.  Rep.  345. 

Adjudications  to  the  same  effect  could  be  multiplied  at  great 
length,  but  that  is  not  necessary.  Many  of  the  other  cases  are 
collected  in  a  footnote  to  Walker  v.  Wabash  etc.  By.  Co.,  15 
Mo.  App.  333, 16  Am.  &  Eng.  B.  B.  Cas.  386. 

It  is  due  to  say  that  we  are  not  dealing,  in  this  case,  with 
a  coupon  ticket,  in  respect  of  which,  as  a  whole,  the  rule  is 
different,  allowing,  as  it  does,  as  many  breaches  in  the  jour- 
ney, or  as  many  stopovers,  as  there  are  coupons. 

Of  such  a  ticket  each  coupon  is  said  to  stand  aa  a  separate 
ticket  between  its  own  initial  and  ultimate  points,  and  pas- 
sage upon  any  particular  coupon,  when  begun,  is  required  to 
continue  to  its  end,  unless  otherwise  agreed.  The  authorities 
upon  the  use  of  the  coupon  ticket  illustrate  and  reinforce  the 
doctrine  herein  applied  to  the  case  in  hand. 

Hutchinson  on  Carriers,  section  577,  says:  "A  well-recog- 
nized distinction  exists,  however,  **'  between  the  ordinary 
ticket  of  the  carrier,  which  binds  it  to  carry  from  point  to 
point  upon  its  own  road,  and  tickets  which  entitle  the  holder 
not  only  to  passage  over  the  line  of  the  company  issuing  them, 
but  also  over  other  connecting  lines  over  which  it  is  necessary 
for  him  to  pass  in  order  to  reach  his  destination,  and  which 
are  issued  in  what  is  called  the  coupon  form,  and  are  denomi- 
nated coupon  tickets. 


5'60  American  State  Bkpobts^  Vol.  91.  [Tenn. 

''When  the  carriage  contemplated  is  confined  to  the  line 
"which  issnes  the  ticket,  it  is  a  contract  solely  with  that  line 
i»  carry  the  holder  according  to  its  terms,  and  when  the 
transportation  is  once  begun,  both  parties  are  held  to  a  oon- 
tintiotis  performance  until  it  is  completed,  nnlras  otherwifie 
agreed.'* 

Another  learned  author  employs  this  language,  namely:  ''As 
"we  shall  see,  a  through  ticket  over  several  lines  does  not  re- 
•quire  the  passenger  to  make  a  continuous  trip  over  all  sndi 
lines  without  stopping,  but  it  does  usually  require  him,  after 
"he  has  commenced  his  journey  on  any  one  of  them,  to  com- 
plete it  as  far  as  he  is  going  upon  that  particular  line.  So 
an  ordinary  ticket  over  one  line  is  for  a  continuous  trip,  and 
if  the  passenger  voluntarily  leaves  the  train  upon  which  he 
%as  commenced  it,  at  an  intermediate  point,  he  cannot  resume 
it  by  virtue  of  such  ticket,  contrary  to  the  rules  of  the  com- 
-pany,  on  another  train,  or  at  another  time'* :  4  Elliott  on  Rail- 
Toads,  «^  sec.  1696,  p.  2491.  See,  also,  4  Elliott  on  Rail- 
Toads,  sec.  1596,  and  Auerbach  v.  New  York  Ceni  etc.  R.  R., 
«9  N.  Y.  281,  42  Am.  Rep.  290. 

But  the  plaintiff  contends,  further,  that  the  railway  com- 
pany was  in  no  aspect  of  the  case  entitled  to  the  benefit  of 
"the  continuous  passage  doctrine,  because  the  conducter,  upon 
declining  the  ticket,  said  that  he  did  so  upon  the  ground  that 
it  was  out  of  date,  and  thereby  estopped  the  defendant  from 
justifying  its  rejection  on  any  other  ground;  and  to  sustain 
this  contention,  Railway  Co.  v.  McCarthy,  96  TJ.  S.  267,  268, 
is  cited.  In  that  case  the  carrier,  after  proving  that  it  was 
nnable  to  keep  its  contract  to  forward  cattle  on  Sunday,  for 
^ant  of  cars,  was  not  allowed  to  change  the  groxmds  for  the 
"breach  and  say  the  law  forbade  the  shipment  on  the  SabbatL 
The  court,  in  the  opinion,  said :  **Where  a  party  gives  a  reason 
"for  his  conduct  and  decision  touching  anything  involved  in  a 
controversy,  he  cannot,  after  litigation  has  begun,  change  his 
:ground  and  put  his  conduct  upon  another  and  different  con- 
rsideration.  He  is  not  permitted  thus  to  mend  his  hold.  He 
is  estopped  from  doing  it  by  a  settled  principle  of  law*':  Rail- 
•way  Co.  V.  McCarthy,  96  TJ.  S.  267,  268. 

That  principle,  however,  was  held  in  Ault  v.  Dustin,  100 
Tenn.  366,  45  S.  W.  981,  not  to  preclude  a  person,  who  had 
first  insisted  that  his  contract  had  been  canceled,  from  defend- 
ing a  suit  upon  the  ^^*  ground  that  the  other  party  had 
breached  the  contract. 


Hay,  1902  ]  Goodwin  v.  Rat.  701 

A  fortiori  does  it  not  stand  in  the  way  of  the  interposition  of 
the  continuous  passage  doctrine  in  the  present  case.  On  the 
defendant's  theory  of  the  facts,  the  ticket  had  become  invalid 
for  any  and  every  purpose,  and,  that  being  true,  no  particular 
legal  importance  should  be  attached  to  the  reason  assigned  by 
the  conductor  for  its  rejection.  If  the  ticket  was  invalid,  it 
can  make  no  difference  that  a  wrong  reason,  as  plaintiff  con- 
tends, was  assigned  for  its  invalidity.  Whatever  the  reason 
given,  the  fact  of  invalidity  and  the  plaintiffs  lack  of  right 
to  proceed  remain  the  same. 

In  reality,  however,  the  reason  actually  assigned  embraces 
the  present  insistence  of  the  defendant.  If,  in  fact,  the  ticket 
was  purchased  at  Bussellville,  for  Nashville,  and  used  to  Quth- 
rie  on  the  10th  of  August,  it  was  out  of  date  when  offered  for 
passage  from  Outhrie  to  ITashville  on  the  29th  of  the  same 
month,  and  that  was  a  good  and  sufficient  legal  reason  for 
rejecting  it. 

Beverse  and  remand. 


Railuxpif  Ticket^VfiihoMt  any  express  rule  or  regulation  on  the 
|iart  of  a  railway  company,  the  contract  of  a  passenger  for  trans- 
portation from  one  point  to  another,  where  there  is  no  usage  or 
«tipnlAtion  to  the  contrary,  is  an  entire  contract,  and  entitles  him 
merely  to  one  continuous  passage,  and  not  to  a  succession  of  jour- 
neys at  his  own  convenience  from  one  intermediate  station  to  an« 
other  until  his  final  destination  is  reached:  See  the  monographie 
note  to  Cheney  v.  Bailroad  Co.,  43  Am.  Dec.  193.  The  holder  of  a 
coupon  ticket,  however,  may  be  entitled  to  stopover  privileges: 
Spencer  ▼•  Lovejoy,  96  Ga.  657,  51  Am.  St.  Bep.  152,  23  &  £.  836. 


GOODWIlf  V.  BAT. 

[108  Tenn.  614,  69  S.  W.  730.] 

BAIIASEKTS.— The  Statute  of  Limltatloiui  does  not  begin  to 
run  in  favor  of  a  bailee  and  against  a  bailor  nntil  the  latter  has 
made  demand,  when  the  bailment  is  gratuitous,  and  the  bailee  holds 
flpeeific  property  for  the  benefit  of  the  bailor  without  permisiion 
or  authority  to  use  it.     (pp.  762,  763.) 

J.  M.  Troutt,  for  the  plaintiff. 

C  G.  Bond,  for  the  defendant 


762  American  Statb  Bbpobts^  Vol.  91.  [Team. 

•**  WILKES,  J.  This  is  an  action  begun  before  a  justice 
of  the  peace  upon  a  writing  in  the  following  words  and  fig- 
ures: 

615  "Phoebe  Goodwin,  colored,  has  one  hundred  and  twenty 
dollars  in  the  safe  for  her  benefit.  February  20,  1888.  Thi» 
is  all  she  has  at  this  time.  J.  0.  RAY.'* 

Phoebe  Goodwin  died  in  1901,  and  James  Goodwin  is  her 
administrator.  After  his  qualification  as  such  administrator 
he  made  demand  of  the  defendant  Bay  for  the  money,  and  it 
being  refused,  suit  was  brought.  Defendant  claimed  to  have 
paid  the  amount  to  Phoebe  Goodwin  in  her  lifetime,  but  there 
is  no  eyideace  except  his  own  testimony  to  that  e£Fect,  and 
this  was  by  the  court  ezdnded. 

In  the  circuit  court  the  cause  was  tried  before  a  jury.  The 
trial  judge,  among  other  things,  charged:  ''I  charge  now  that 
this  paper  created  as  between  Bay  and  Phoebe  Goodwin  a  bail- 
ment, and  the  defendant  would  have  the  money  in  his  posses 
sion  as  a  gratuitous  bailee,  and  the  said  Phoebe  Goodwin  had 
the  right  at  any  time  after  thus  depositing  her  money  to  go 
and  demand  it  from  the  defendant,  and  the  atatute  of  limi- 
tations would  commence  running  from  the  time  she  had  the 
right  to  demand  the  money,  and  not  from  the  date  of  any  de> 
mand  made  by  her  or  by  the  plaintifF,  and  no  demand  was 
necessary  to  put  the  statute  of  Umitations  in  force,^  etc. 

This  is  assigned  as  error.  The  learned  judge  was  no  doubt 
guided  in  his  action  by  the  statute  (Shannon's  Code,  sec* 
4477),  which  is  in  these  words:  ''When  a  right  erists,  but  a 
demand  is  necessary  ^^^  to  entitle  the  party  to  an  action,  the 
limitation  commences  from  the  time  the  plaintiffs  right  to 
make  the  demand  was  completed,  and  not  from  the  date  of 
the  demand.^' 

Whatever  may  be  the  proper  construction  of  this  statute,, 
and  when  the  '^right  to  make  the  demand  may  be  completed'' 
in  the  sense  of  the  statute,  we  need  not  decide,  as  we  are  of 
opinion  the  statute  does  not  apply  to  a  case  like  this. 

This  is  a  special  deposit  of  specific  money  made  for  the 
benefit  of  the  depositor  and  as  her  property.  No  permission 
or  authority  is  expressly  or  impliedly  given  to  the  bailee  to 
use  it.  He  is,  when  the  money  is  received,  a  gratuitous  bailee, 
holding  the  specific  property  in  his  safe  for  the  benefit  of  the 
bailor.  He  does  not  ui  any  sense  become  debtor  of  the  bailor. 
If  the  money  is  lost  without  negligence  on  his  part,  there  is 
no  liability  on  him  to  replace  it,  but  unless  it  is  so  lost  his  obli- 


May,  1902.]  Bailboad  v.  Bentz.  7Ca 

gation  is  to  return  it  on  demand.  Until  demand  made,  no- 
right  of  action  accrues:  Moore  v.  Fitzpatrick,  7  Baxt.  350. 
Until  such  demand  and  refusal^  the  statute  of  limitations  does* 
not  begin  to  run. 

It  is  true  there  are  many  cases  of  bailment  in  which  the* 
statute  does  run  and  where  no  demand  is  necessary  either  to- 
anthorize  «uit  or  to  put  the  statute  in  operation,  as,  for  instance^ 
when  the  bailment  is  for  a  definite  time,  or  when  the  bailee 
oonyerts  the  property,  and  this  becomes  known  to  the  depositor,, 
or  when  an  adverse  claim  is  set  up  by  ^^"^  the  bailee  and  made 
known  to  the  depositor,  and  other  cases.  In  such  cases  the* 
bailee  puts  himself  in  the  attitude  of  converting  the  property 
and  becoming  debtor  to  the  depositor,  and  the  right  of  action 
accrues  without  demand.  But  in  the  present  case  the  relation 
of  creditor  and  debtor  does  not  exiat  before  demand  made,, 
and  the  statute  does  not  apply,  because  of  the  nature  of  the 
transaction  and  the  relative  right  and  obligation  of  the  parties^ 

The  judgment  of  the  court  below  is  reversed  and  cause  re* 
xnanded  for  a  new  triaL    The  appellee  will  pay  costs  of  appeal.. 


The  iBtafuie  of  lAmiiationa  does  not  begin  to  run  in  favor  of  a 
Iwiloe  until  he  denies  the  b&Ument  and  converts  the  property  to  hi» 
own  use:  Belsenstein  v.  Marquardt,  75  Iowa,  294,  9  Am.  St,  £ep^ 
477,  89  K.  W.  60e. 


BAILBOAD  V.  BENTZ. 

[108  Tenn.  670,  69  &  W.  317.] 

JUDGMENTS  OF  NATIONAIi  00X7BTS  as  Bes  Judicata  hk 
Skate  Oonrts. — If  a  judgment  in  favor  of  plaintiff  in  a  national  eonrt 
in  reversed  on  appeal,  and  the  cause  remanded  for  a  new  trials 
whereupon  plaintiff  takes  a  voluntary  nonsuit  and  brings  a  new 
aetion  in  the  state  court,  the  judgment  of  the  national  court  is- 
not  conclusive,  either  as  res  judicata,  or  as  a  declaration  of  tho' 
law  of  the  case,  in  the  prosecution  of  the  latter  action,     (p.  767.) 

SiASTEB  AND  SERVANT  —Fellow-servants.— The  negligence 
of  a  railroad  telegraph  operator  in  transmitting  running  orders  t(v 
men  in  charge  of  a  train  is  not  one  of  the  risks  assumed  by  the- 
latter,  as  they  are  not  fellow-servants  with  such  operator,  (pp.  767, 
768.) 

DAMAOES  for  Loss  of  Advice,  Cktnnsel,  Ck>mf ozt  and  Enjoy- 
ment resulting  from  a  husband's  death,  caused  by  the  negligent  act 
of  another,  cannot  be  recovered  by  his  widow,     (p.  768.) 

Haya  ft  Biggs,  for  the  plaintifF. 
C.  0.  Bond,  for  the  defendant. 


764  American  State  Bbports^  Vol.  91.  [Tcmu 

•''^  BEAED,  J.  '  Edward  Bentz   waa   engineer  on    freight 
train  No.  84,  which  left  Jackson  at  2 :40  o'clock  on  the  morn- 
ing of  the  10th  of  Jtme,  1897,  destined  for  Monnds,  Illinois. 
The  train  approached  Milan  about  4:20  A.  M.    There  the  en- 
gineer blew  for  the  semaphore  signal,  which  was  set   at    red, 
4ind  failed  to  receive  the  white  signal  in  reply.    Advancing  his 
train  still  nearer,  he  blew  again,  when,  according  to  the  cri- 
'dence  of  plaintiff  below,  the  red  signal  turned  to  white.    This, 
xmder  the  rules  of  the  railroad,  indicated  that  there  were  no 
orders  and  that  the  track  was  clear  for  him  to  go  ahead.     Upon 
receiving  his  signal,  he  moved  his  train  north,  and,  while  ran- 
ning  at  a  moderate  speed  around  a  curve  of  the  railroad,  abont 
5:20  A.  M.,  at  a  point  north  of  Idlewild,  he  had  a  head-end 
collision  with  train  No.  81,  moving  south.    When  this  collision 
was  •'^  clearly  inevitable,  Bentz  jumped,  to  save  his  life,  and 
in  doing  so   received  mortal  injuries,  from  which  death  en- 
dued.    This  suit  was  brought  by  his  widow  to  recover  damages 
for  his  death,  which  is  attributed,  in  the  declaration,  to  the 
negligence  of  the  railroad  company.    The  act  of  ne^Ugenoe 
complained  of  is  that,  at  4:37  A.  M.,  after  train  No.  84  had 
passed  Milan,  the  train  dispatcher  of  plaintiff    in    error    at 
Jackson,  whose  duty  it  was  to  regulate  the  movement  of  its 
trains,  inquired  of  its  local  operator  at  Milan  as  to  whe&er 
Bentz's  train  had  passed  that  point,  and  the  operator  replied 
that  it  had  not,  and,  acting  on  this  information,  the  train  dis- 
patcher gave  an  order  to  the  south-bound  train.  No.  81,  then 
at  Martin  awaiting  orders,  to  meet  north-bound  train.  No.  84, 
At  Idlewild,  and  at  the  same  time  gave  the  same  order  to  the 
Milan  operator,  to  be  delivered  to  train  No.  84  when  it  reached 
that  point.    Train  No.  81  received  this  order,  and  was  on  its 
way  to  Idlewild  when  the  collision  occurred,  but  train  No.  84 
•did  not,  as  the  order  reached  Milan  a  few  minutes  after  No. 
S4,  in  answer  to  the  white  light  displayed  on  the  semaphore, 
had  passed  that  point.    This  semaphore  was  under  the  control 
of  this  operator,  and  its  movements  were  regulated  by  a  rope 
which  passed  from  it  into  the  office  occupied  by  him.    There 
was  a  verdict  and  judgment  for  the  plaintiff  below,  and  the 
case  has  been  brought  to  this  court  by  the  defendant  company. 
A  number  of  errors  are  assigned  upon  the  action  *^  of  the 
trial  court.    The  first  of  these  is  that,  upon  motion  of  the 
plaintiff  below,  the  court  struck  out  a  plea  in  which  the  de* 
fendant  averred  that,  prior  to  the  bringing  of  the  present  suit, 
the  plaintiff,  Mrs.  Bentz,  had  brought  her  action  against  the 


May,  1902.]  Railroad  v.  Bentz.  76& 

defendant  in  the  circuit  coitrt  of  Madison  county,  in  this  state, 
seeking  to  recover  damages  for  the  same  cause  of  action  that 
this  suit  was  instituted  for;  that  thereafter  the  defendant, 
Tmder  the  act  of  Congress  in  such  case  made  and  provided, 
had  that  cause  removed  to  the  United  States  circuit  court  for 
the  eastern  division  of  the  western  district  of  Tennessee;  that,. 
in  said  court,  upon  an  issue  involving  the  question  of  liability 
of  the  defendant  for  the  same  act  of  negligence  herein  alleged 
and  the  injury  consequent  therefrom,  there  was  a  trial  and  ver* 
diet  in  favor  of  the  plaintiff;  that,  on  a  writ  of  error  prose- 
cuted from  the  judgment  thereon  to  the  United  States  circuit 
court  of  appeals,  sitting  at  Cincinnati,  Ohio,  that  court  ad^ 
judged  that  the  jury,  on  the  facts  of  the  case,  *T)ecause  the 
injury  occurred  through  the  negligence  of  a  fellow-servant  [the 
telegraph  operator  at  Milan]  of  the  plaintiff's  husband/'  should' 
have  been  directed  to  bring  in  a  verdict  for  the  defendant,  and 
thereupon  reversed  the  judgment  of  the  lower  court  and  re- 
manded the  case  for  a  new  trial;  that  a  mandate  issued  to 
the  circuit  court  for  a  new  trial  in  accordance  with  this  ad- 
judication, and  that,  in  the  midst  of  the  trial  so  ordered,  and 
before  its  conclusion,  the  plaintiff,  •''^  over  the  objection  of 
the  defendant,  was  permitted  to  take  a  nonsuit,  and  thereafter 
instituted  the  present  action.  Upon  this  state  of  facts,  it  was 
averred  the  matters  involved  had  been  conclusively  adjudicated 
against  the  plaintiff. 

Was  the  court  in  error  in  striking  out  this  plea?  While, 
in  the  plea,  this  action  of  the  United  States  circuit  court  of 
appeals  is  alleged  to  be  res  adjudicata  of  the  question  of  the 
railroad's  liability  to  the  defendant  in  error  for  the  loss  result- 
ing from  the  negligence  of  the  telegraph  operator  and  manager 
of  the  semaphore,  yet,  in  the  argument  of  counsel  in  support 
of  the  assignment  of  error,  the  claim  is  somewhat  abated,  and 
it  is  now  insisted  that  its  legal  effect  is  that,  upon  the  reopen- 
ing of  the  facts  between  the  same  parties  in  the  state  courts, 
it  is  the  law  of  the  case  that,  while  not  a  bar  to  the  action, 
it  is  conclusive  upon  the  parties,  so  far  as  the  question  of 
liability  rests  upon  the  alleged  negligence  of  the  operator. 

Many  authorities  are  relied  upon  for  this  contention,  but, 
so  far  as  our  examination  has  extended,  they  do  not  support 
it.  Among  them  are  some  like  Supreme  Lodge  Knights  of 
Pythias  v.  Lloyd,  107  Fed.  70,  and  Collins  v.  Insurance  Co.,  91 
Tenn.  432,  19  S.  W.  625,  where  the  court  has  held  that  the 
principles  announced  upon  the  first  appeal  constitute  the  law 


766  American  State  Ebpobts,  Vol.  91.  [Teniu 

of  the  case  upon  a  second  appeal.  However  sound  this  role 
is  when  applied  to  a  suit  that  has  once  had  the  law  declared 
in  it  by  an  appellate  court  and  ^'^  is  remanded,  and,  after  a 
second  trial  in  the  court  below,  once  more  reaches  the  court 
of  appeals,  we  do  not  see  upon  what  grounds  it  is  to  be  made 
io  apply,  after  a  voluntary  dismissal  by  the  plaintiff,  to  a  new 
€uit  instituted  in  an  independent  forum.  Nor  do  we  think 
that  Jacobs  v.  Marks,  182  TJ.  S.  583,  21  Sup.  Ct  Rep.  865, 
Hancock  Nat.  Bank  v.  Pamum,  176  TJ.  S.  640,  20  Sup.  Ct 
Rep.  506 ,  Pittsburgh  etc.  R.  R.  Co.  v.  Long  Island  etc.  Trust 
€o.,  172  TJ.  S.  493,  19  Sup.  Ct.  Rep.  238,  and  Crescent  City 
livestock  Co.  v.  Butchers'  Union  etc.  Co.,  120  TJ.  S.  141,  7 
Sup.  Ct.  Rep.  472,  furnish  any  aid  to  this  contention.  It  is 
unnecessary  here  to  enter  upon  an  analysis  of  these  cases.  It 
is  sufficient  to  say  that  they  are  clearly  distinguishable  from  the 
one  at  bar. 

On  the  other  hand,  Bucher  v.  Cheshire  R.  R,  Co.,  125  TJ. 
S.  555,  8  Sup.  Ct  Rep.  974,  and  Gardner  v.  Michigan  Cent 
R.  R.  Co.,  150  TJ.  S.  349,  14  Sup.  Ct.  Rep.  140,  if  not  in 
•express  holding,  at  least  by  clear  intimation,  are  contra  to  the 
view  pressed  by  plaintiff  in  error.  In  the  first,  the  plaintiS 
Lad  sued  in  the  state  court  and  recovered  a  judgment,  which, 
on  appeal  to  the  supreme  court,  was  reversed  and  the  case 
remanded  for  a  new  trial.  The  plaintiff  then  took  nonsuit, 
and  brought  a  new  suit  for  the  same  cause  of  action  and  against 
the  same  defendant  in  a  United  States  court.  The  action  was 
one  for  personal  injuries,  received  while  the  plaintiff  was  trav- 
•eling  on  Sunday,  in  violation  of  a  Massachusetts  statute.  It 
was  insisted  that  the  holding  of  the  supreme  court  of  that 
state,  that  the  plaintiff  was  not,  at  the  time  of  his  injury, 
traveling  from  *''*  necessity  or  charity  on  the  Lord's  day,  but 
on  secular  business,  was  an  estoppel  on  him  in  the  United 
States  court,  notwithstanding  the  subsequent  nonsuit  But 
this  insistence  was  not  sustained,  and,  in  regard  to  it.  Judge 
Miller,  delivering  the  opinion  of  the  court,  said:  'It  is  not 
«  matter  of  estoppel  which  bound  the  parties  in  the  court 
below,  because  there  was  no  judgment  entered  in  the  case  in 
vrhich  the  ruling  of  the  state  court  was  made,  and  we  do  not 
place  the  correctness  of  the  determination  of  the  circuit  court, 
in  refusing  to  permit  this  question  to  go  to  the  jury,  upon 
the  ground  that  it  was  a  point  decided  between  the  parties^ 
and,  therefore,  res  adjudicata  as  between  them  in  the  present 
action,  but  upon  the  ground  that  the  supreme   court   of  tiie 


May,  1902.]  Railroad  v.  Bentz.  767 

«tate,  in  its  decisioB^  had  given  such  a  oonstmction  to  the 
meaning  of  the  words  ^charity'  and  ^necessit/  in  the  statute 
as  to  clearly  show  that  the  evidence  offered  upon  the  subject 
was  not  sufficient  to  prove  that  the  plaintiff  was  traveling  for 
either  of  these  purposes/' 

This  paragraph^  from  the  opinion  of  Miller,  J.,  is  em- 
bodied in  that  of  Fuller,  C.  J.,  in  Qardner  v.  Michigan 
Cent.  E.  B.  Co.,  160  TJ.  S.  349,  14  Sup.  Ct.  Hep.  140.  The 
opening  statement  of  the  chief  justice  in  this  last  opinion 
is  sufficient  to  our  present  purpose.  "Counsel  for  plain- 
tiff in  error  does  not  contend  that  the  judgment  of  the 
supreme  court  of  Michigan  operated  as  a  bar  to  this  ac- 
tion,  but  he  insists  that  that  judgment  precluded  Hhe. 
plaintiff  from  successfully  maintaining  ^'^  a  new  action 
against  the  defendant  upon  evidence  tending  to  prove  only  the 
same  state  of  facts  which  the  evidence  before  the  supreme 
court  of  the  state  tended  to  prove.'  This,'*  continued  the 
court,  "assumes  a  final  adjudication  on  matter  of  law,  binding 
between  the  parties,  and  treating  the  judgment  reversing  and 
remanding  the  cause  as  final,  applies  it  as  an  estoppel,  notwith- 
standing the  fact  that  a  nonsuit  was  subsequently  taken.  We 
cannot  concur  in  this  view.** 

We  think,  on  principle  and  authority,  a  nonsuit  decides  noth- 
ing, but  leaves  the  parties,  as  they  began  their  litigation,  at 
arm's  length.  'TJnder  no  circumstances,"  says  Mr.  Freeman 
m  volume  1,  section  266  of  his  work  on  Judgments,  "will  a 
judgment  on  nonsuit  be  deemed  final."  Leaving  the  contro- 
versy indeterminate  between  the  parties,  it  not  only  cannot 
support  the  plea  of  res  adjudicata,  but  the  reasoning  and 
opinion  of  the  court,  in  reversing,  cannot  have  the  effect  of 
binding  in  subsequent  litigation  as  the  *^aw  of  the  case": 
Fish  V.  Parker,  14  La.  Ann.  491. 

It  was  with  this  view  that  this  court,  speaking  through  Mc- 
Alister,  J.,  in  Hooper  v.  Eailroad  Co.,  106  Tenn.  28,  60  S. 
W.  607,  quoted  approvingly  from  Gassman  v.  Jarvis,  100  Fed. 
146,  as  follows:  "When  a  cause  of  action,  removed  into  a  court 
of  the  United  States,  is  dismissed  therefrom  without  a  trial 
or  determination  of  the  merits,  the  right  of  action  still  remains 
in  full  force  and  vigor,  unaffected  thereby,  ®''®  and  the  party 
having  such  right  of  action  may  bring  suit  thereon  in  any 
court  of  competent  jurisdiction,  the  same  as  though  no  previ- 
ous suit  had  been  brought." 

This  being  the  effect  of  the  nonsuit  in  the  United  States 
circuit  court,  it  left  the  trial  court  in  the  present  action  free 


768  American  State  Beports,  Vol.  91.  [T 

to  apply  the  rule,  well  established  in  this  state,  that  the  negli* 
gence  of  a  railroad  telegraph  operator  ie  not  cme  of  tiie  riaks- 
the  trainmen  assmne,  as  they  are  in  no  legal  sense  fdlow-«ep- 
Tants:  Railroad  Co.  v.  De  Annond,  86  Tenn.  73,  6  Am.  St 
Eep.  816,  6  S.  W.  600;  Bailroad  Co.  v.  Jackson,  106  Temu 
438,  61  S.  W.  771.  It  followB,  tiierefore,  that  ttis  assignment 
of  error  mtist  be  orerruled. 

An  assignment  is  made  upon  the  following  paragraph  of 
tiie  trial  judge's  charge:  '^on  also  look  to  the  loss  of  the  aid 
— ^I  don't  mean  pecuniary  aid,  but  the  aid  of  advice  and  coun- 
sel that  the  plaintiff,  Mrs.  Bentz,  has  aostained  by  Tirtae  of 
hie  death,  and  also  look  to  the  loss  of  comfort  and  enjoyment 
that  she  has  lost  as  a  result  of  his  death — ^look  to  the  comfort 
and  enjo3rment  of  his  society.  Now,  these  are  the  elements 
of  damages  to  be  considered  by  the  jury  in  determining  what 
amount  of  damages  to  allow  her,  if  you  find  in  favor  of  the 
plaintiff." 

We  think  this  error  is  well  assigned.  In  Bailroad  Co.  v. 
Wyrick,  99  Tenn.  609,  42  S.  W.  434,  it  was  said  that  under 
chapter  186  of  the  acts  of  1883,  which  provided  for  a  recovery 
of  '^damages  resulting  to  the  parties  for  whose  use  and  benefit 
the  right  of  action  survives  ^'^  from  the  death  consequoit 
upon  the  injuries  received,"  the  widow  coidd  only  recover  her 
pecuniary  loss  on  the  death  of  her  husband,  and  that  case  was 
reversed  because  the  trial  judge  had  said  to  the  jury  upon  the 
measure  of  damages  ^'that  they  could  look  to  the  mental  and 
physical  suffering  of  the  surviving  widow."  The  court  there 
quoted  approvingly  from  the  opinion  of  Sharswood,  J.,  in  Pemi* 
sylvania  R.  R.  Co.  v.  Butler,  67  Pa.  St.  335,  in  which  it  is  said 
that  solatium  for  distress  of  mind  is  not  a  proper  element  in 
fixing  the  amount  of  the  survivor's  personal  loss.  In  the  pres- 
ent case,  the  learned  trial  judge,  evidently  by  an  inadvertence, 
excluded  from  the  jury  all  consideration  of  the  widow's  pecu* 
niary  loss,  and  told  them  "to  look  to  the  loss  of  comfort  and  en- 
joyment" sustained  by  her,  from  the  negligent  fatal  injury  (if 
such  it  was)  to  her  husband.  It  is  insisted,  however,  that 
though  this  be  error,  yet  there  should  be  no  reversal  of  this  case, 
as  upon  the  facts  disclosed  it  is  evident  that  tiie  amount  of  dam* 
ages  allowed  by  the  jury  fall  short  of  the  value  of  the  life  of  the 
deceased.  This  may  be  true,  yet  we  find  this  affirmative  error 
in  the  record.  It  is  impossible  for  this  court  to  say  how  much, 
if  anything,  was  allowed  for  the  loss  of  the  enjoyment  of  her 
husband's  society.    There  is  no  basis  for  speculation,  even  if 


May,  1902.]       Inburancb  Co.  v.  Dunscomb.  769 

we  were  inclined  to  so  indulge  ourselves.  In  addition^  the 
matter  of  estimating  damages^  upon  a  legal  basis,  was  for  the 
jury,  and  we  do  not  feel  at  liberty  to  usurp  their  function. 

•®^  Other  assignments  of  error  were  made,  and  these  have 
been  disposed  of  orally. 

The  result  is  that  for  the  error  indicated,  the  judgment  is  re- 
Yersed  and  the  cause  remanded  for  a  new  trial. 


Ab  to  Whether  the  Decisions  of  the  Federal  Courts  are  res  judicata 
and  binding  on  state  eoorts,  flee  People  ▼.  Budd,  117  N.  Y.  1,  15  Am. 
St.  Bep.  460,  22  N.  E.  670,  682;  Commonwealth  ▼.  Douglas,  100 
Ky.  116,  66  Am.  St.  Bep.  828,  24  S.  W.  233.  They  are  binding 
when  exactly  the  same  question  of  a  federal  nature  is  involved: 
State  ▼.  Ardoin,  61  La.  Ann.  169,  72  Am.  St.  Bep.  464,  24  South.  802; 
Pox  V.  State,  89  Md.  381,  73  Am.  St.  Bep.  193,  43  Atl.  775.  But 
in  questions  of  local  law,  the  decisions  of  the  courts  of  the  state 
will  be  followed  by  its  courts  in  preference  to  those  of  the  United 
States:  Stalker  v.  McDonald,  6  Hill,  93«  40  Am.  Dec.  389. 


INSURANCE  CO.  v.  DUNSCOMB. 

[108  Tenn.  724,  69  S.  W.  345.] 

INStTBAKOE,  LIFE.— A  Creditor  has  an  Insurable  Interest 
in  the  life  of  his  debtor  to  the  extent  of  the  indebtedness,     (p.  772.) 

INSUBANCE,  IJFE— Insurable  Interest— Statute  of  Limita- 
tions.— If  a  creditor  takes  insurance  on  the  life  of  his  debtor,  either 
as  payment  or  as  collateral  security,  the  fact  that  the  debt  is  barred 
by  limitation  at  the  time  the  insurance  is  taken,  or  becomes  barred 
cr  affected  with  a  presumption  of  payment  before  the  policy  be- 
comes payable,  does  not  prevent  the  creditor  from  recovering  the 
insurance,  either  as  against  the  insurer  or  the  personal  representa- 
tives of  the  insured,     (pp.  772,  774.) 

INSUBANCE,  LIFE— Insurable  Interest— Statute  of  Limita- 
tions.— The  fact  that  the  debtor  may  be  armed  with  a  legal  defense, 
such  as  the  statute  of  limitations,  against  the  creditor,  does  not 
destroy  the  insurable  inteiest  of  the  latter  in  the  life  of  the  former, 
either  as  absolute  payment  or  as  collateral  security,  nor  defeat  his 
right  to  recover  on  insurance  on  the  debtor's  life  in  his  favor,  (p. 
773.) 

THE  PSESUMFTION  Of  Payment  of  a  Debt»  arising  after 
sixteen  years  from  its  maturity,  may  be  rebutted  by  any  satisfactory 
evidence  that  the  debt  is  still  due.  The  condition  of  the  debtor  as 
to  solvency,  and  the  possession  by  the  creditor  of  the  evidence  of  the 
debt  and  valuable  collateral  security  may  repel  the  presumption  of 
payment,     (pp.  774,  775.) 

PLEA  OF  PAYMEKT  Admits  the  Debt  and  places  the  bur- 
den of  proving  payment  on  the  defendant,     (p.  776.) 
Am.  BL  Rap.,  Vol.   »l-^9 


770  American  Statb  Bbpobts^  Vol.  91.  [Tenn. 

nraUBAKOE,  LIFE— BelmlraxBament  for  Premiimis  FBid.^ 
An  wudgaee  of  a  life  insuranee  poliey  who  pays  premiums  taerem 
is  entitled  to  reimbursement  therefor  out  of  the  proeeed«  of  thm  pol- 
icy, with  interest,     (p.   776.) 

00BP0SATI0N8— BiiOit  to  BecoTor  Anota  of  Bztliiet  Oor- 

poratfon. — Personal  representatives  of  the  deceaeed  stoekholden  of 
an  extinct  eorporation  are  entitled  to  recover  the  proceeds  of  a 
life  insurance  policy  held  by  the  corporation  as  collateral  security, 
to  the  extent  of  the  debt,  for  pro  rata  distribution  according  to  the 
interests  of  their  several  intestates  after  the  payment  of  the  debts 
of  the  corporation,     (pp.  776,  777.) 

F.  Fentress^  for  the  plaintiff, 

H.  Gary  and  B.  P.  Cary^  for  the  defendant 


WILKES,  J.  The  De  Soto  Bank  of  HempUfl  was,  m 
March  16,  1881,  an  incorporated  bank  nnder  ^*  the  laws  of 
the  state  of  Tennessee.  Its  charter  expired  by  limitatkm  on 
March  20,  1883,  bnt  nnder  our  statute  it  continued  to  esdst  for 
five  years,  or  until  March  20,  1888,  for  the  purpose  of  settlixig 
its  business,  disposing  of  its  property  and  dividing  its  caj^tal 
stock,  and  on  the  20th  of  Mardi,  1668,  it  became  extinct 

On  March  5, 1870,  Ben  IL  Pullen  applied  to  complainant  for 
insurance  on  his  life,  and,  in  accordance  with  the  aiqslication, 
complainant,  on  March  8,  1870,  issued  its  policy  No.  101,367 
for  $5,000,  payable  ^  the  order  of  the  De  Soto  Bank  of  Mem- 
phis, Tennessee,  to  the  amount  of  tiia  insured's  indebtedness  to 
said  bank,  the  balance,  if  any,  to  his  legal  representatiTes.'' 

On  February  28,  1881,  the  De  Soto  Bank  was  the  holder  of 
the  following  notes  made  by  Ben  IL  Pullen : 

One  dated  March  7,  1874,  for $241.83 

One  dated  March  8,  1875,  for 163.39 

One  dated  March  8,  1876,  for 150.74 

One  dated  March  8,  1877,  for 148.04 

One  dated  March  8,  1878,  for 148.04 

One  dated  March  8,  1879,  for 139.67 

Making  a  total,  exclusive  of  interest,  of $982.71 

On  said  date  (February  28,  1881)  the  De  Soto  Bank,  in  writ- 
ing surrendered  said  policy  No.  101,367  to  complainant,  and  in 
this  surrender  Pullen  joined.  The  consideration  for  the  sui^ 
tender  was  the  issuance  of  paid-up  policy  No.  161,122,  for 
$1,627,  '*''  payable  to  the  De  Soto  Bank  of  Memphis,  Ten- 
nessee, to  the  amount  of  the  insured's  indebtedness  to  said 
bank,  balance,  if  any,  payable  to  the  insured's  legal  representik 
tives.'* 


May,  1902.]       Insurance  Co.  v.  Dunscomb.  771 

Pullen  died  July  16,  1900.  At  the  time  of  Hie  legal  death 
of  the  bank,  its  stock  was  owned  by  four  individuals,  as  follows : 
JTames  Elder,  $60,000;  W.  H.  Wood,  $60,000;  John  B.  Leach, 
^70,000;  S.  H.  Dunscomb,  $66,000.  The  wills  and  letteiB  of 
-administration  show  that  all  these  parties  died  prior  to  1900. 

Their  legal  representatives,  on  December  19,  1900,  filed  a 
bill  in  the  Shelby  chancery  court,  seeking  to  enforce  the  collec- 
"tion  from  complainant  therein  of  said  paid-up  policy  No.  161,- 
122.  On  January  3,  1901,  complainant  filed  this  bill,  as  one  of 
interpleader,  and  enjoined  the  prosecution  of  the  fii«t  suit.  Tn 
"this  bill  the  rival  claimants  of  tiie  fund  made  answer,  and  the 
<diaiiodlor,  up<m  the  hearing,  decreed  in  favor  of  the  bank's 
«tockholders,  or  their  representatives.  The  heirs  of  Ben  K. 
Pullen,  and  the  administrator^  bring  the  case  here  by  appeal, 
•and  assign  errors.  The  first  and  second  assignments  of  error 
are  based  upon  the  assimiption  tiiat  the  chancellor  held  the  notes 
•executed  by  Pullen  were  not  barred  by  the  statute  of  limitations, 
or  that  ftey  could  not  be  presumed  to  be  paid  from  the  lapse  of 
lama  The  decree  of  the  chancellor  does  not  recite  or  show  that 
it  is  based  upon  any  theory  of  tius  kind,  but  is  based  upon  a 
different  ^^^  idea,  but  which,  to  some  extent,  involves  the  ques« 
tions  in  these  assignments. 

The  questions  really  adjudged  by  the  chancellor  are  that  the 
Wl  was  properly  filed  as  a  bill  of  interpleader,  and  that  the 
representatives  of  the  stockholders  of  tiie  expired  bank  were 
•^titled  to  the  proceeds  of  the  insurance  policy.  As  to  the  first 
•of  these  propositions,  there  is,  and  can  be,  no  serious  contro- 
versy, and  the  last  proposition  is  raised  by  the  third  and  fourth 
assignments  of  error.  Incidentally,  however,  we  must  notice 
the  matters  presented  on  the  first  two  assignments.  It  ia  proper 
to  note  in  the  outset  that  this  is  not  a  suit  on  ihe  notes  of  Pullen 
to  enforce  their  collection.  The  defense  of  the  statute  of  limi- 
tations and  presumption  as  to  payment,  as  to  th»n,  is  not,  there- 
fore, raised,  and  cannot  be  in  this  suit  as  a  defense  to  them, 
and  the  notes  are  only  important  so  far  as  they  bear  upon  the 
<)uestic(n  of  the  right  of  the  bank  or  its  representatives  to  the 
proceeds  of  the  policy.  It  will  be  conceded  at  once  that  the  in- 
surance company  could  not  interpose  any  defense  of  the  statute 
of  limitations  or  presumption  of  payment  to  a  suit  upon  its 
policy.  The  right  of  action  against  it  on  the  policy  did  not 
accrue  until  the  death  of  Pullen  in  1900.  The  policy  is  pay- 
able to  the  bank  direct,  to  the  extent  of  PuUen's  indebtedness 
to  it,  and  Uie  bank  had,  therefore,  an  insurable  interest  in  Pul- 


IV 


72  American  State  Bepobts,  Vol.  91.  [Temu 


lea's  life  when  the  policy  was  taken  out,  and  afterward,  in  any 
event,  while  the  debts  were  subsisting.  The  ''^  record  leaTea- 
the  matter  in  some  doubt  as  to  the  terms  upon  which  the  bank 
held  this  policy — ^that  is,  whether  an  absolute  payment  of  Pnt 
len's  indebtedness,  or  as  a  collateral  security  for  the  same;. 

On  March  30,  1900,  J.  S.  Dunscomb  wrote  to  Ben  K.  Pullen, 
saying:  ''I  find  amongst  my  father's  papers  a  memorandum  of 
a  policy  he  has  on  your  life.  I  would  like  to  know  the  full  hiar 
tory  of  if  On  April  27th,  Pullen  answered  that  he  had  gimen 
the  De  Soto  Bank  a  policy  on  his  life  as  a  sort  of  indemnity 
against  loss  in  case  of  his  death;  and  he  further  states  that  in 
the  course  of  time  his  inability  to  pay  premiums  had  doubtless 
caused  it  to  lapse. 

!N'ow,  in  either  event  the  bank  could,  other  things  beings  cmt 
of  the  way,  recover  upon  the  policy  as  it  had  an  insurable  in- 
terest to  the  extent  of  its  debt  in  Pullen's  life. 

In  the  case  of  Sawls  v.  American  etc.  Co.,  27  N.  T.  282,  84 
Am.  Dec.  280,  Bawls  had  procured  a  policy  for  $5,000  on  the 
life  of  Fish,  payable  to  Bawls  himself.  Among  other  defenses,. 
the  company  plead  that  Bawls  had  no  insurable  interest  in  the 
life  of  Fish,  and  that  any  debt  due  from  Fish  to  Bawls  had  long 
since  been  barred  by  the  statute.  It  was  shown  that  Bawls  had 
a  valid  debt  when  the  policy  was  issued,  and  the  court  held: 
^'Begarding  the  policy  in  this  case  as  substantially  a  contract 
of  indemnity  against  the  loss  of  the  plaintiff's  debt,  and  fliat, 
as  an  interest  was  required  to  support  its  inception,  ^•^  a  con- 
tinuance of  that  interest  is  essential  to  its  perpetuity,  there  was 
no  pretense  that  the  debt,  or  any  part  of  it,  had  been  paid.  All 
that  the  case  showed  was  that  the  statute  of  limitations  had  ap- 
parently run  against  the  demand  of  the  plaintiff  at  the  death  of 
Fish.  But  suppose  the  statute  had  attached,  the  intereet  of  the 
plaintiff  as  a  creditor  in  the  continuation  of  the  life  of  his 
debtor  had  not  ceased  entirely.  The  debt  was  not  extinguished 
^  as  in  a  case  of  pa3rment.  It  might  be  renewed  by  a  new  prom- 
ise— and  indeed  without  such  promise — and  be  enforced  by  ac- 
tion, unless  the  defense  of  the  statute  was  directly  interposed. 
It  is  not  a  legal  presumption  that  when  the  statute  of  Umita- 
tions  has  once  run,  the  debtor  will  refuse  to  revive  the  debt  by  a 
new  promise,  or  interpose  the  defense  of  the  statute  in  an  ac- 
tion to  recover  it.*' 

A  leading  case  upon  the  question  is  Dalby  v.  Insurance  Co., 
16  Com.  B.  366,  80  Eng.  C.  L.  Bep.  364,  where  it  is  held  that 
"where  a  policy  effected  by  a  creditor  on  the  life  of  his  debtor 


JKay,  1902.]       Insubancb  Co.  v.  Dunscomb.  773 

is  Yalid  at  the  time  it  is  entered  into^  the  circumstance  of  the 
intereBt  of  the  assured  in  such  life  ceasing  before  the  death 
•does  not  invalidate  if  This  case  is  cited  approvingly  in 
Olmsted  v.  Keyes,  85  K  T.  598. 

In  Curtiss  v.  Aetna  Life  Ins.  Co.^  90  Cal.  249,  25  Am.  St. 
Sq>.  114^  27  Pac.  211,  it  was  contended  that  the  claim  of  the 
^creditor  was  barred  by  the  statute  of  limitations  at  the  time 
Aft  the  death  of  the  debtor,  and  that,  therefore,  the  creditor  had 
no  insurable  interest  and  could  not  recover.  The  '^^  court  held: 
^A  debt,  even  though  not  legally  collectible  by  reason  of  the  bar 
-of  the  statute,  gives  an  insurable  interest." 

''The  fact  that  the  debtor  may  be  armed  with  a  legal  defense 
4igainst  the  creditor  does  not  destroy  the  insurable  interest  of 
the  latter  in  the  life  of  the  former.  The  debtor  may  be  an  in- 
fant, and  yet  the  fact  that  the  plea  of  infancy  might  be  inter- 
posed would  not  make  the  life  policy  in  favor  of  his  creditors 
Yoid.  If  the  debt  be  barred  by  the  statute  of  limitations,  it 
-nevertheless  constibites  an  inisurable  interest" :  Manhattan  life 
Ina.  Co.  V.  Hennessey,  99  Fed.  64,  39  C.  C.  A.  632. 

The  same  rule  is  stated  with  equal  clearness  in  1  May  on  In- 
fiurance,  third  edition,  section  108.  But  if  we  treat  the  pob'cy 
4IS  only  a  collateral  security,  and  not  the  absolute  property  of  the 
bank,  what  are  the  rights  of  the  parties?  "Whenever  collateral 
security  is  given  for  a  debt,  the  collateral  will  continue  as  a  sc- 
-curity  until  the  debt  is  satisfied,  unless  both  parties  to  the  origi- 
nal contract  agree  to  its  surrender,  or  the  pledgee,  in  some  other 
^ay,  discharges  or  releases  it*' :  Colbrooke  on  Collateral  Securi- 
ties, 2d  ed.,  191,  and  note,  citing  Williams  v.  National  Bank, 
72  Md.  441,  20  Atl.  191.  '    . 

"The  statute  of  limitations  defeating  simply  the  remedies 
«pon  a  debt  does  not  operate  in  law  as  a  discharge  of  the  debt 
itself,  which  remains,  so  that,  where  negotiable  instruments  have 
1)een  deposited  as  collateral  security  for  the  payment  of  a  loan 
•or  "^^^  debt,  the  pledgee  is  entitled  to  retain  possession  of  the 
same  as  against  the  pledgor,  notwithstanding  the  statute  of  limi- 
tations might  be  pleaded  to  an  action  on  the  original  debt  '* : 
Oolbrooke  on  Collateral  Securities,  2d  ed.,  citing  Chotean  v. 
Allen,  70  Mo.  290. 

''Since  statutes  of  limitation,  except  in  special  cases,  bar  the 
remedy  merely,  and  do  not  destroy  the  right,  it  is  a  generally 
accepted  principle  that,  where  the  security  for  a  debt  is  a  lien 
•en  property,  real  or  personal,  the  fact  that  the  right  of  action 
<m  the  principal  obligation  is  barred  does  not  impair  the  remedy 


774  Ambeicam  Statb  Bspoaxg,  Vol.  91.  [T( 

ttt  law  or  in  equity  io  enforee  &b  lien,  to  which  a  dilEeicnfc 
limitation  may  be  aj^licable.  By  analogy  to  the  mle  fbat^ 
where  a  plaintiff  has  two  remedies  for  the  same  right,  the  bar 
of  one  does  not  affect  his  right  to  ezerdse  the  other,  a  creditor 
may  enforce  a  lien  npon  the  seenrity,  althongh  the  Tirtnal  effect 
may  be  that  he  will  enforce  payment  of  a  barred  obl]gation*r 
19  Anu  ft  Eng,  Ency.  of  Law,  Sd  eA,  177. 

''The  holder  of  a  note  with  whom  eollaterals  have  been  de» 
posited  has,  while  the  statute  is  nmning,  two  remedies— -one- 
against  the  maker,  by  suit;  the  other  against  the  collaterals. 
If  he  loses  the  first  by  lapse  of  time,  he  still  has  the  second.  He- 
may  not  sue  the  maker,  but  he  may  exhaust  the  secnrit  les  he 
holds  in  pledge,  for  the  statute  operates  not  upon  hie  debt,  but 
upon  his  right  of  action'* :  Hartranff s  Bstate,  153  Pa.  St  530,. 
34  Am.  St.  Bep.  717,  26  Atl.  104. 

Suppose  that  PuUen,  before  his  deatti,  had  sought  ***  to  re* 
cover  Uiis  policy  from  the  bank,  on  the  ground  that  the  debt  for 
which  it  v.as  deposited  or  pledged  was  barred  by  the  statute  of 
limitations.  Gould  he  have  maintained  such  suit?  We  think 
not :  19  Am.  ft  Eng.  Ency.  of  Law,  2d  ed.,  178 ;  Hudson  t.  Wil* 
kinson,  61  Tex.  607. 

It  is  a  familiar  doctrine  that,  tbougfa  a  debt  may  be  barred 
by  the  lapse  of  six  years,  so  that  no  personal  judgment  may  be 
taken  on  it,  a  mortgage  executed  to  secure  such  debt  could  still  be> 
enforced,  and  the  same  reasoning  and  rules  apply  as  against  any 
presumption  of  paym^it  by  the  lapse  of  time.  This  ssaignmeiit 
is  based  on  the  idea  that  the  notes  not  sued  on  should  have  been- 
presumed  by  the  chancellor  to  have  been  paid.  Payment  of  a 
debt  may  be  presumed  after  a  lapse  of  sixteen  years  from  its 
maturity.  But  this  is  a  rebuttable  presumption,  and  may  be- 
overcome  ^^y  any  evidenoe  tending  to  satisfy  the  eoort  tiiat  the 
debt  is  still  due.  The  condition  of  the  debtor  as  to  solvency,  or 
other  circumstances,  may  lepA  the  presumption*':  Stanley  v. 
McKinzer,  7  Lea,  457.  See,  also,  Husky  v.  Maples,  2  Cold.  25^ 
88  Am.  Dec.  688;  Yamell  v.  Mogre,  8  Cold.  178;  Lyon  v. 
Guild,  6  Heisk.  176;  Carter  v.  Wolfe,  1  Heisk.  700:  Fisher  v. 
Phillips,  4  Baxt.  243 ;  Andenon  v.  Settle,  5  Sneed,  202. 

In  Stanley  v.  McKinxer,  7  Lea,  457,  and  Anderson  v.  Settle,. 
6  Sneed,  202,  the  debts  were  over  twenty  years  old. 

The  notes  held  by  the  De  Soto  Bank  were  made  in  Mardi, 
1874,  1876,  1876,  1877,  1878,  and  1879.  ^»*  They  were  not 
paid  in  1881,  for,  on  the  28th  of  February  of  that  year,  Beb 
TSL  Pullen  signed  the  surrender  of  the  original  policy.  No.  101.» 


Kay,  1902.]       Insubakcb  Co«  v*  Dunsoomb.  775 

367,  and  had  the  insurance  company  issue  paid-up  policy  No. 
161,122^  payable  to  the  De  Soto  Bank,  to  the  amount  of  its  iD^ 
debtedness,  thus  recognUing  a  debt  at  that  date. 

The  production  of  any  direct  or  positive  eyidence  as  to  the 
actual  fact  of  payment  or  nonpayment  of  this  indebtedness 
has  been  rendered  impossible  by  the  long  lapse  of  time  and  the 
death  of  ev^  stockholder  in  the  bank,  and  especially  Mr. 
Dunacomb,  Sr.,  and  Mr.  Elder  who  had  the  assets  of  the  bank 
in  charge.  Five  witnesses,  however,  testify  to  the  fact  that  Pul* 
leu  was  a  man  of  slender  means.  These  gentlemen  all  show 
that  he  was  hardly  at  any  time  able  to  meet  more  than  the  ordi- 
nary demands  of  life,  and,  from  the  statement  which  they  make 
it  is  practically  impossible  to  believe  that  he  was  ever,  at  any 
time^  in  a  condition  to  enable  him  to  pay  his  debts.  It  is  shown 
that  his  ^salary,  for  a  good  portion  of  ihe  time,  came  from  the 
city  government,  in  whose  employ  he  was,  and  this,  of  course, 
vas  exempt.  Mr.  Speer,  who  is  an  abstracter  in  the  abstract 
oflSce  of  the  Title  Guarantee  and  Trust  Company,  states  that  the 
records  show  no  conveyance,  at  any  time,  of  any  real  estate  to 
Mr.  PuUen.  Pullen  himself  says,  in  his  letter  of  April  27, 
1900,  that,  "in  the  course  of  time,  my  inability  to  pay  the  pre- 
miums caused  it  [the  policy]  to  lapse.'' 

^85  From  this  evidence,  it  is  hardly  conceivable  that  the 
notes  were  ever  paid;  but,  independent  of  this  evidence,  the 
mind  can  hardly  avoid  the  irresistible  conclusion  that  they  are 
fltill  unpaid,  when  it  is  remembered  that  the  notes  and  policy 
Bemained  in  the  hands  of  tiie  stockholders  jf  the  bank  from  their 
execution  up  to  the  present  time.  Men  do  not  pay  their  debts 
and  Leave  the  evidence  of  them  in  the  hands  of  their  creditors, 
lifor  do  they  overlook  policies  of  life  insurance,  worth  hundreds 
or  thirasands  of  dollars,  when  they  become  entitled  to  them. 

Another  matter  appears  in  the  pleading  of  the  Pullen  heirs 
which  tends  to  do  away  with  the  contention  as  to  the  presump- 
tion of  payment,  and  to  settle,  beyond  dispute,  the  existence  of 
the  debt.  This  matter  is  the  plea  of  payment.  A  plea  of  pay- 
ment admits  the  debt,  and  the  onus  of  proof  of  payment  is  on 
the  defendants:  Bass  v.  Shurer,  2  Heisk.  216. 

It  appears  very  evident  from  the  record  that  the  notes  held 
by  the  bank  were  for  the  annual  premiums  due  and  accruing  on 
the  policy.  It  has  been  held  that  premiums  paid  on  a  life  in- 
surance policy  by  an  assignee  of  the  same  are  an  equitable  lien 
cm  the  policy,  even  as  against  the  interest  of  a  minor  whose  as- 
signment was  void  because  of  his  minority,  and  the  creditor 


776  Ambbican  State  Bepobts^  Vol.  91.         {Teoiu 

who  paid  the  premimns  is  entitled  to  collect  the  same  and  in- 
terest: Scobey  v.  Waters,  10  Lea,  657-663.  And,  even  when 
an  assignment  of  a  life  policy  is  void  for  the  want  of  an  insnr- 
able  "^^^  interest  in  the  assignee,  or  for  other  reasons,  the  as- 
signee is,  nevertheless,  entitled  to  reimbursement  from  the  pro- 
ceeds of  the  policy  for  money  paid  by  him  for  the  pranimns^ 
with  interest:  19  Anu  &  Eng.  Ency.  of  Law,  2d  ed.,  97. 

The  third  and  fourth  assignments  raise  the  question  of  &e 
right  of  the  representatives  of  the  defunct  bank's  deceased  stock- 
holders to  sue  for  and  recover  this  fund.  The  bank  became 
extinct,  as  a  corporation,  March  20,  1888.  Its  debts  were  all 
paid.  Its  assets  belonged  to  the  stockholders.  All  of  tfaem 
were  dead.  The  right  of  action  on  the  policy  accrued  in  1900. 
The  insurance  company  did  not  contest  its  liability,  and  the 
amount  of  the  policy  has  been  paid  into  court. 

The  question  is  now.  To  whom  does  this  amount  belong? 
In  State  v.  Bank  of  Tennessee,  6  Baxt.  107-113,  it  was  hdd 
that  where  Watson,  trustee  and  recdver  of  the  bank,  had  failed 
to  sue  for  assets  of  the  bank  during  the  receivership,  then  cred- 
itors of  the  bank  might  collect  assets  not  previously  collected, 
and  this  after  the  expiration  of  the  date  limited  by  the  statnie 
to  wind  up  the  corporation,  or  any  extension  of  such  limit  un- 
der the  law. 

In  O'Conner  v.  City  of  Memphis,  6  Lea,  732,  it  is  said:  «It 
is  now  well  settled,  both  in  England  and  in  this  country^  that 
equity  will,  upon  a  dissolution  of  a  corporation  by  the  expira- 
tion of  "^"^  its  charter  or  otherwise,  impound  its  property,  real 
and  personal,  and  appropriate  it,  first,  to  the  pajrment  of  its 
debts,  and  then  for  the  benefit  of  the  stockholders,  and  the  law 
is  now  independent  of  the  statute  that  upon  the  dvil  death  of 
a  corporation  its  real  estate  does  not  revert  to  the  original 
owner;  the  debts  due  to  and  from  it  are  not  extinguished,  and 
its  personal  property  does  not  vest  in  the  state.^ 

Section  6187  of  Shannon's  compilation  provides  as  foUowa: 
''A  corporation  is  not  dissolved  by  nonuse  or  assignment  to 
others  in  whole  or  in  part  of  its  powers,  franchises,  and  privi- 
leges, unless  all  the  corporate  property  has  been  appropriated 
to  the  payment  of  the  debts,  and  any  creditor,  for  himself  and 
any  other  creditors,  whether  he  has  recovered  judgment  or  not, 
or  any  stockholder,  for  himself  and  other  stockholders,  may 
file  a  bill  under  the  provisions  of  this  chapter  to  attach  the  cor- 
|K>rate  property  and  have  such  property  applied  to  the  payment 


May,  1902.]        Insurance  Co.  v.  Dunscomb.  777 

of  the  debts  of  the  corporation^  and  any  surplus  divided  among 
the  stockholders.*' 

This  section  recognizes  the  rights  of  stockholders  to  realize 
the  assets  that  formerly  belonged  to  the  corporation,  even  thongh 
the  corporation  cannot  sue.  And  this  is  the  rule  generally  rec- 
ognized:  9  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  608.  And  the  as- 
sets  must  be  prorated  and  paid  out  in  proportion  as  the  sub- 
scriptions of  stock  have  been  paid:  Cook  on  Stock  and  Stock- 
holders, sec.  641. 

^^®  We  are  of  opinion,  for  the  reasons  stated,  that  the  repre- 
sentatives of  the  deceased  stockholders  are  entitled  to  receive 
the  net  proceeds  of  this  policy  in  f uU  after  the  payment  of  all 
costs  which  are  directed  to  be  paid  out  of  the  fund,  and  in- 
asmuch as  their  demands,  with  interest,  exceed  face  amount  of 
the  policy,  it  will  be  paid  pro  rata  to  them  in  accordance  with 
the  interests  of  their  several  intestates. 


A  Creditor  map  Insure  the  Life  of  his  debtor:  Wbe^and  y.  Atwood, 
192  Pa.  St.  237,  73  Am.  St.  Bep.  SOS,  43  Atl.  946;  Ulrieh  v.  Beinoebl, 
143  Pa.  St.  238,  24  Am.  St.  Bep.  534,  22  Atl.  862;  although  the  debt 
18  barred  by  the  statute  of  limitations:  Curtiss  v.  Aetna  Life  Ins. 
Co.,  90  Gal.  245,  25  Am.  St.  Bep.  114,  27  Pac.  211;  Bawls  T.  American 
etc  Ins.  Co.,  27  N.  Y.  282,  84  Am.  Dec.  280. 

The  Alignment  of  Life  Insurance  policies  is  considered  at  length 
in  the  note  to  Chamberlain  v.  Butler,  87  Am.  St.  Bep.  484-519. 


OASES 


SUPREME  COURT 

OF 

UTAH. 

NICHOLS  ▼.   OREGON  SHOBT  LINE  BAILBOAD   CO. 

[84  Utah,  63,  66  Pac  768.] 

BAJLS0AD8— OMtEMt  to  Fanlali  Can.— It  is  within  th» 
power  of  a  railroad  eompa&y  to  contract  to  fnmish  to  a  ahqiper 
cara  belonging  to  another  company,     (p.  779.) 

EATTiROADg— Agent's  Ctontraet  to  Fvrnldi  Oaa.^A  eontract 
by  a  railroad  station  agent  on  behalf  of  his  company  to  f  nmiah  a  ship- 
per certain  cars  belonging  to  another  companr  is  within  the  apparent 
scope  of  his  authority  and  binding  on  his  principaL     (p.  780.) 

XAIIAOAD6— Agmt's  CkMitraet  to  Fnrnttli  Oars— Bordeii  oT 
Proof  as  to  Authority.— A  contract  by  a  railway  station  agent  oa 
behalf  of  his  company  to  furnish  a  shipper  cars  belonging  to  another 
company  is  presumptively  within  the  scope  of  his  authority,  and  the- 
burden  of  proof  is  upon  the  railway  company  to  rebut  such  preeamp- 
tion  and  show  his  want  of  authority,     (p.  782.) 

BAILBOADS— Breach  of  Contract  to  Funldi  Oax&— If  a  rail- 
way station  agent  contraete  on  behalf  of  his  principal  to  furnish  a. 
shipper  with  a  specific  kind  of  care  belonging  to  anoth<»'  company, 
the  company,  on  whose  behalf  the  contract  is  made  is  not  relieved  of 
the  duty  to  furnish  cars  at  the  required  time  by  inability  to  obtain 
the  kind  contracted  for.  In  such  case  the  company  must,  with  the 
consent  of  the  shipper,  furnish  him  with  some  kind  ox  ears  without 
unreasonable  delay,  or  notify  him  of  its  inability  to  do  so,  and,  for  a 
failure  and  neglect  to  perform  such  duty,  it  is  liable  for  the  damages 
caused  thereby,     (p.  782.) 

BAILBOABS— Contract  to  Pnmish  Oars— Dlscrlniination.->If 
a  railroad  company  contracts  to  furnish  a  shipper  with  cars  at  a 
certain  time,  its  action  in  filling  subsequent  orders  for  cars  bi^ore 
such  shipper  is  supplied  is  an  unlawful  discrimination  for  which  it 
must  respond  in  damages,     (ppc  782,  783.) 

P.  L.  Williams  and  G.  H.  Smith,  for  the  appellant. 
H.  S.  Tanner  tod  J.  M.  Cannon,  for  the  respondent 

(778) 


KoT.  1901.]    Nichols  v.  Obeqqn  Short  Linb  R.  R.  Co.      779* 

*^  BABTGH,  J.    Thie  appellant  iiLsists  that  neither  its. 
statiQa  agent  nor  the  company  itself  had  any  power  to  enter  into 
a  contract  to  furnish  cars  of  another  company,  and  that  there- 
fore the  company  was  not  liable  under  the  contract  in  evidence. 
This  position  can  be  of  no  avail  to  the  company  under  the  evi- 
dence in  this  case.    Admitting  that  it  could  not  furnish  cars 
of  another  company  without  such  company's  consent,  there  is 
nothing  to  show  that  it  could  not  enter^  or  had  not  entered, 
into  some  arrangement  with  other  railroad  companies  to  fur- 
niflLh  their  cars  to  shippers.    On  the  contrary,  the  proof  indicates- 
that  it  was  a  usual  ihing  for  the  appellant  to  furnish  such  car8> 
and  we  know  of  no  rule  of  law  whidi  prevents  such  an  arrangs* 
mient  between  common  carriers.    An  arrangement  whereby  one 
or  each  one  of  several  common  carriers  is  permitted  to  ship- 
freight  over  the  lines  of  the  other,  and  for  that  ^  purpose  to 
procure  cars  of  such  other,  is  entirely  in  consonance  with  palK 
lie  convenience  and  benefit,  and  hence  is  not  in  contravention 
of  public  policy.    Nor  has  it  been  shown  in  this  case  to  be  f (Mr- 
hidden  by  any  law  or  the  charter  of  the  company.    From  the 
proof  it  would  seem  that  the  power  to  make  such  arrangements 
is  necessary  to  carry  out  the  objects  and  purposes  of  the  corpora^ 
tion.    In  2  Redfield  on  Railroads,  section  180,  page  134  et  seq., 
it  is  said:  ''The  American  cases  upon  this  subject,  with  rare 
exceptions,  recognize  the  right  of  a  railway  company  to  enter 
into  special  contracts  to  carry  goods  beyond  the.  line  of  their 
own  road.    And  where  different  roads  are  united  in  one  con- 
tinuous route,  such  an  undertaking  in  regard  to  merchandise- 
rooeived  and  booked  for  any  point  upon  the  line  of  the  con- 
nected companies  is  almost  matter  of  course.    It  is,  we  think,, 
the  more  general  understanding  upon  the  subject  among  busi- 
ness men  and  railways,  their  agents  and  servants.    And  this 
is  80  although  the  connection  among  such  roads  is  only  tem- 
porary, and  merely  incidental  for  the  convenience  of  transact- 
ing business,  one  road  acting  sometimes  as  agent  for  other 
roads  by  their  procurement  or  adoption.'^    And  again,  in  sec- 
tion 181,  page  141,  it  is  said :  ''It  has  g^ierally  been  considered, 
both  in  this  country  and  in  the  English  courts,  that  receiving 
goods  destined  beyond  the  terminus  of  the  particular  railway, 
and  accepting  the  freight  through,  and  giving  a  ticket  or  check 
through,  does  import  an  undertaking  to  carry  through,  and  that 
this  contract  is  binding  upon  the  company.''    In  Pittsburg  etc^ 
By.  Co.  V.  Morton,  61  Ind.  .539,  577 — a  case  cited  in  behalf 
of  the  appellant — ^it  was  said:  "Doubtless  a  common  carrier 


780  American  State  Bbports^  Vol.  91.  [tJtali, 

may  so  hold  himself  out  to  the  public  as  to  make  himself  liaUe 
for  not  receiving  and  carrying  goods  beyond  his  own  line;  or 
by  a  special  contract,  he  may  make  himsdf  liable  for  not  rfr- 
•ceiving  and  carrying  goods  beyond  his  own  line;  or,  if  a  person 
not  a  common  carrier  in  fact,  and  not  holding  himself  out  to  the 
public  as  a  common  carrier,  undertakes  by  contract  to  carrr 
goods  to  a  given  point,  he  will  be  held  liable  for  a  breach  of  his 
^®  contract  as  a  common  carrier."  If,  then,  the  appellant  had 
the  power,  as  we  think  it  had,  to  enter  into  special  contracts  or 
tnake  arrangements  with  other  railway  corporations  for  the 
transportation  of  freight  over  their  lines,  we  may  justly  assume 
from  the  course  of  dealing  by  the  company  and  its  agents,  as 
shown  by  the  evidence  in  this  case,  that  some  arrangement 
existed  between  it  and  the  other  corporations  over  whose  lines 
the  sheep  were  to  be  transported^  including  the  Chicago  and 
Northwestern  Bailway  Company.  Such  being  the  case,  the 
"question  is.  Had  James  Strachan,  the  company's  agent,  author- 
ity to  enter  into  the  contract  in  dispute?  We  think  he  had. 
The  evidence  shows  that  he  was  the  agent  in  charge  of  the  station 
at  Soda  Springs,  and  as  such  represented  the  corporation,  and 
transacted  its  business  there.  The  company  held  him  out  to 
ihe  public  as  its  agent  to  transact  such  business,  within  the 
objects  of  its  creation,  as  might  arise  at  that  station.  As  to 
that  station,  and  within  the  range  of  the  corporate  business  to 
be  there  transacted,  he  must  be  regarded  as  the  company's  gai- 
eral  agent,  with  the  right  to  exercise  such  powers  as  necessarily, 
properly,  and  legitimately  belong  to  the  character  in  which  his 
princij^  held  him  out.  As  to  the  business  over  whidi  tiiis 
controversy  arose,  it  is  clear  from  the  proof  that  the  company 
impressed  upon  the  agent  the  character  of  one  authorized  to  act 
and  speak  for  it.  The  business  was  such  as  was  within  tiie 
powers  of  the  corporation  to  transact,  was  transacted  in  the 
usual  way,  and  therefore  it  cannot  be  asserted,  as  against  third 
persons  who  have  acted  in  good  faith,  that  such  a  contract  is 
not  within  the  scope  of  the  agent's  power,  or  that  the  principal 
did  not  intend  to  confer  such  power.  Where,  under  sudi  cir- 
cumstances as  are  shown  herein,  a  station  agent  contracts  to  ship 
livestock,  the  shipper  has  a  right  to  assume  that  such  agent  acts 
within  the  scope  of  his  authority.  Authority  to  speak  and  act 
in  such  a  case  follows  as  a  necessary  attribute  of  the  character 
impressed  upon  the  agent  by  the  principal.  In  5  American  and 
English  Encyclopedia  of  Law,  s^ond  edition,  ^  351,  the  law 
is  stated  thus:  ''Where  a  railroad  company  places  an  agent  in 


Nov.  1901.]    Nichols  v.  Ob£Oon  Short  Link  R.  R.  Co.      781 

charge  of  its  business  at  a  station,  and  empowers  him  to  con- 
tract  for  the  shipment  of  freight^  it  holds  him  out  to  the  public 
as  having  the  authority  to  contract  with  reference  to  all  the 
necessary  and  ordinary  details  of  the  business,  and  within  the 
range  of  such  business  he  becomes  a  general  agent.    Every  pre- 
sumption is,  therefore,  in  favor  of  the  authority  of  a  station 
agent  to  enter  for  his  company  into  contracts  for  transportation,. 
when  such  contracts  are  not  of  an  imusual  or  extraordinary 
character/'    In  Wood  v.  Chicago  etc.  Ry.  Co.,  68  Iowa,  491,  6& 
Am.  Rep.  861,  27  N.  W.  473,  in  reference  to  the  authority  of  a 
station  agent  it  was  said:  "He  was  the  only  representative  of 
the  company  at  that  station.    He  was  placed  there  for  the  pur- 
pose of  transacting  its  business  at  that  place.    He  was  author- 
ized to  contract  in  its  name  for  the  transportation  of  property 
of  the  kind  in  question,  and  had  the  authority  to  receive  it  for 
shipment.     Shippers  had  the  right  to  assume,  in  the  absence  of 
information  to  the  contrary,  that  he  had  authority  from  his 
principal  to  contract  for  the  doing  of  whatever  was  reasonably 
necessary  to  be  done  in  the  shipment  of  such  property.    By  plac- 
ing him  in  charge  of  its  business  at  that  station,  and  empower- 
ing him  to  contract  for  the  shipment  of  such  property,  it  held 
him  out  as  possessing  the  authority  to  contract  with  reference  to 
all  the  necessary  and  ordinary  details  of  the  business.     Within 
the  range  of  that  business,  he  was  a  general  agent.''    So,  in 
Harrison  v.  Missouri  Pac.  Ry.  Co.,  74  Mo.  364,  41  Am.  Rep. 
318,  it  was  said:  "It  may,  we  think,  be  safely  aflBrmed  that  a 
station  agent  clothed  with  the  power,  and  whose  duty  it  is,  to 
receive  and  forward  freight,  who  makes  a  contract  within  the 
scope  of  his  apparent  authority,  thereby  binds  the  company  he 
represents,  although  in  making  such  contract  he  may  have  ex- 
ceeded his  authority;  and  when  such  company  seeks  to  absolve 
itself  from  liability  arising  under  such  contract  on  the  ground 
that  the  agent,  although  apparentiy  authorized  to  make  it,  in 
fact  had  no  such  authority,  it  ®^  must  show  that  the  party  with 
whom  the  contract  was  made  had  knowledge  of  the  fact  that 
the  agent  was  acting  beyond  his  authority" :  Mechem  on  Agency^ 
sec.  278 ;  Pruitt  v.  Hannibal  etc.  R.  R.  Co.,  62  Mo.  527 ;  Lake 
Erie  etc.  R.  R.  Co.  v.  Rosenberg,  31  111.  App.  47;  McCarty  v. 
Gulf  etc.  Ry.  Co.,  79  Tex.  33, 16  S.  W.  164 ;  Baker  v.  Kansas  City 
R.  R.  Co.  91  Mo.  152,  3  S.  W.  486;  Deming  v.  Grand  Trunk  Ry. 
Co.,  48  N.  H.  466,  2  Am.  Rep.  267 ;  Chicago  etc.  R.  R.  Co.  v.  Wol- 
cott,  141  Ind.  267,  50  Am.  St.  Rep.  320,  39  N.  E.  451 ;  Harrell 
v.  Wilmington  etc.  Ry.  Co.,  lOG  N.  C.  258,  11  S.  E.  286. 


782  Ambbican  Statb  Bbports,  Vol.  91.  [TJUh^ 

Nor  was  it  mcnmbent  upon  the  plaintiff  to  all^e  an<l  prove 
that  the  station  agent  had  authority  to  make  the  contract  for 
•cars.  In  a  case  where  a  common  carrier  is  sned  for  a  breadi 
of  such  a  contract  which^  as  in  this  instance^  is  not  flhown  to  be 
•of  an  unusual  or  extraordinary  character,  the  presumption  is 
that  the  agent  had  authority  to  make  it,  and  the  burden  of  proof 
is  upon  such  carrier  to  show  that  he  had  not  such  antiioiity: 
<}ulf  etc.  Ry.  Co.  ▼.  Wright,  1  Tex.  Cir.  App.  402,  21  S.  W,  80; 
Pruitt  V.  Hannibal  etc.  E.  R.  Co.,  62  Mo.  627. 

The  mere  fact  that  the  agent  agreed  to  furnish  a  specific  kind 
of  cars  owned  by  another  railway  company  did  not,  under  the 
•circumstances  shown  in  evidence,  render  the  contract  void,  nor 
relieve  the  appellant  company  from  its  duty  to  furnish  other 
<;ars  if  the  specific  cars  could  not  be  obtained;  for  it  is  shown 
that  it  was  not  unusual  for  the  agent  to  enter  into  contracts  like 
the  one  in  question.    It  appears  tibat  on  the  same  day  of  the 
making  of  this  agreement  he  made  another  of  exactly  the  same 
kind  with  another  person.    The  agent  himself,  testifying  for 
the  defendant,  stated  that,  if  a  person  ordered  a  certain  kind  of 
car,  "it  simply  showed  a  preference  for  that  car^;  that  it  was 
generally  understood  that,  if  a  shipper  could  not  get  the  kind  of 
car  he  wanted,  he  would  take  what  he  could  get;  and  that  wii> 
ness  so  understood  the  order  of  the  plaintiff.    It  also  appears 
in  evidence  that  the  plaintiff  was  willing  to  take  any  kind  of 
cars  he  could  get.    The  ^^  order,  after  entry,  was  transmitted 
to  superior  officers  of  the  corporation,  withoul^  so  far  as  appears, 
any  objection  thereto  being  made  by  them.    Under  tiiese  cir- 
cumstances, the  company  had  no  right  to  permit  an  nnreascm- 
able  delay  in  furnishing  cars.    If,  for  any  cause,  it  was  iinri>le 
to  furnish  them  at  the  time  it  agreed  to  do  so,  then  it  became 
its  duty  to  inform  the  shipper  of  such  fact  within  reasonable 
time,  if  practicable;  and  if,  in  the  absence  of  sndi  notice,  the 
shipper  believed  that  the  cars  would  be  in  readiness  at  flie  time 
named,  and,  relying  upon  the  conduct  of  the  carrier,  presented 
his  livestock  at  the  time  and  place  named,  only  to  find  no  cars, 
there  would  seem  to  be  no  good  reason  why  the  company  should 
not  be  held  liable  for  damages,  if  injury  was  caused  by  n^eet 
of  such  duty :  Ayres  v.  Chicago  etc.  Ry.  Co.,  71  Wis.  372,  5  Am. 
St.  Rep.  226,  37  N.  W.  432. 

Nor  had  the  appellant  any  right  to  furnish  cars  to  other  per- 
sons which,  in  accordance  with  the  order  of  the  time  in  whidi 
the  notice  for  cars  was  given,  ought  to  have  been  fumidied  to 
the  plaintiff,  and  thus  discriminate  against  him  in  favor  of  othsr 


Dec.  1901.]  Jenkins  v.  Jenbsn.  783 


at  the  same  rtatdoiL  The  rights  of  all  shippers  of  live- 
stock applying  for  cars  under  the  same  circumstances  are  neces- 
sarily equal.  The  respondent  was  entitled  to  the  same  consid- 
eration respecting  his  order  as  any  other  shipper,  and  such  dis- 
crimination as  is  disclosed  by  the  eyidence  herein  cannot  be  up- 
held. The  law  in  such  cases  permits  no  unreasonable  prefer- 
ence or  advantage  to  or  in  favor  of  any  person :  Ayres  v.  Chicago 
etc.  Ry.  Co.,  71  Wis.  372,  6  Am.  Si  Eep.  226,  37  K  W.  432; 
Mclhiffee  v.  Portland  etc.  E.  B.  Co.,  62  N.  H.  430, 13  Am.  Bep, 
72 ;  Ballentine  t.  North  Missouri  B.  B.  Co.,  40  Mo.  491,  93 
Am.  Dec.  315. 

From  the  foregoing  considerations,  we  are  of  the  opinion  that 
the  court  did  not  err  in  refusing  to  instruct  the  jury,  as  re- 
quested by  the  defendant,  to  the  effect  that  the  agent  had  no 
authority  to  make  the  contract  in  question,  and  that  the  same 
was,  therefore,  invalid. 

•■  We  find  no  reversible  error  in  the  record.  The  judgment 
is  affirmed,  with  costs* 

Miner,  C.  J,,  and  Baskin,  J.,  concur. 


A  Carrier  is  liable  for  loss  lustained  by  a  shipper,  bj  reason  of 
its  failure  to  furnieh  him  with  means  of  transportation  for  his 
produee  to  points  beyond  its  own  line,  when  he  has  no  other  means 
of  shipment,  and  the  earrier  holds  itself  out  as  furnishing,  and  does 
fumish,  for  others,  transportation  to  such  points:  Chicago  etc.  B.  B. 
Co.  V.  Wolcott,  141  Ind.  267,  50  Am.  St.  Bep.  320,  89  N.  E.  451. 
And  carriers  owe  the  same  duty  relatively  to  idl  shippers  at  stations 
of  the  same  business  importance  as  to  supplying  ears.  No  station, 
mneh  less  any  shipper,  has  the  right  to  command  the  entire  resources 
of  the  earrier  to  the  exclusion  of  other  stations  and  shippers:  Ayres 
T.  Chicago  ete.  By.  Co.,  71  Wis.  372,  6  Am.  St.  Bep.  226,  87  N.  W.  48S. 


JENKINS  V.  JENSEN. 

[24  Utah,   108,   66   Pac.   773.] 

LXBOTATION  OF  AOTIOKS— Administrator  and  Minor  Heir.— 

If  an  administrator  neglects  to  bring  an  action  to  recover  property 
of  the  estate  until  it  is  barred  under  the  statute  of  limitations,  the 
heir  is  also  barred,  though  he  is  a  minor  at  the  time  the  action  acomas 
to  the  administrator,     (p.  791.) 

IJMZTATION  OF  ACTIONS— Trustee  and  Minor  Cestui  Qua 
^nist. — Whenever  the  right  of  action  in  a  trustee  is  barred  by  the 
statute  of  limitations,  the  right  of  a  minor  cestui  que  trust  r^resented 
by  him  is  aiao  barred,    (p.  791.) 


784  American  State  Eeports,.  Vol.  91.  [Utalv 

LIMITATION     OF     ACTIONS    Against    TnuL— The     nd» 

that  the  statute  of  limitations  does  not  bar  a  trust  estate  holds  onlj' 
between  the  trustee  and  cestui  que  trust,  and  not  as  between  saeh 
parties  on  one  sic^e^  and  strang^ers  on  the  other,     (p.  793.) 

UMITATION     OF     ACTIONS     Against     Admlnlstrmtar— 

Bemedy  of  Minor  Heir.— If,  through  the  neglect  of  an  administrator 
to  sue,  he  and  the  minor  heir  are  barred  by  the  statute  of  limitation^ 
the  heir  may  recover  against  him  or  his  bondsmen,     (pp.  792,  793.) 

CONTBACTS— Constmetion.— if  the  language  used  by  parties 
to  a  contract  is  indefinite  and  ambiguous,  and  hence  of  dovbtfid 
construction,  the  practical  construction  of  the  parties  themaelTss 
is  entitled  to  great,  if  not  controlling,  influence,     (p.  795.) 

UBOTATION  OF  ACTIONS— Subsequent  Disabfllty.— If  the 

statute  of  limitations  once  commences,  it  does  not  cease  to  run  on 
account  of  any  subsequent  liability,  unless  such  disability  eomes 
within  the  exception  of  the  statute,     (p.  795.) 

LIMITATION    OF    ACTION    Against    Posttuunoos    Htfr.— 

If  the  right  of  an  administrator  to  sue  is  barred  by  Umitation, 
the  right  of  a  posthumous  heir  represented  by  him,  and  bom  after 
his  appointment  is  also  barred,  and  his  infancy  does  not  stop  the 

running  of  the  statute,     (p.  795.) 

CONTBACTS  OF  INFANTS— Bepadiation.— A  minor  cannot 
repudiate  a  contract  made  for  his  benefit  without  returning  the 
property  in  his  possession  obtained  by  and  through  it.     (pc  796.) 

On  July  16,  1875,  Thamas  Jenkinfi  purchased  and  thereafter 
he  occupied  lots  1,  2,  3  and  16,  block  22,  ten-acre  plat  A,  here* 
after  known  as  the  forty-acre  tract.  Said  Jenkins  wes  a  Mor- 
mon, having  a  legal  wife,  Ann  Jenkins,  by  whom  he  had  eight 
children.  He  also  had  a  plural  wife,  Mary  R  Jenkins,  by  whom 
he  had  eleven  children.  J.  A.  Jenkins,  the  father  of  flie  plain- 
tiff, was  his  eldest  son  by  his  lawful  wife.  On  March  2,  1876^ 
Thomas  Jenkins,  desiring  to  provide  for  the  support  of  his 
wives  and  their  families  in  case  of  his  death,  conveyed  the  forty- 
acre  tract,  embracing  lot  16,  to  Mary  B.  Jenkins,  and  one  hun- 
dred and  twenty-nine  acres,  owned  in  another  tract,  by  him  to 
Ann  Jenkins.  It  was  then  orally  agreed  that  Thomas  Jenkins 
was  to  manage  and  occupy  the  said  land  during  his  lifetime,  the 
grantees  to  take  possession  at  his  death.  On  April  5,  1877,  the 
parties  agreed  to  exchange  the  respective  tracts  of  land.  Ann 
conveyed  her  tract  to  Mary  E.,  who,  at  the  request  of  Ann,  con- 
veyed her  tract  to  Ann's  son,  J.  A.  Jenkins,  who  took  without 
consideration,  but  subject  to  the  former  agreement  of  the  par- 
ties as  to  the  life  tenancy  of  T.  R.  Jenkins,  and  a  further  agree- 
ment that  after  the  death  of  his  father  he  was  to  support  his 
mother  during  her  life  and  his  sisters  during  their  minority,  or 
tmtil  they  should  marry,  and  also  support  one  Mary  Bundy. 

J.  A.  Jenkins  always  lived  at  home  with  his  father,  and  on 
September  25,  1879,  died  intestate  without  issue,  though  mar- 


Dec.  1901.]  Jenkins  v.  Jensen.  785 

ried,  and  on  December  8,  1879,  his  widow  gave  birth  to  his  son, 
J.  A.  Jenkins,  Jr.,  the  plaintiff  in  this  action.    J.  A.  Jenkins, 
deceased,  never  took  possession  of  the  forty-acre  tract  which  al- 
'ways  remained  in  the  possession  of  T.  Jenkins  dnd  his  successors 
up  to  the  time  of  this  trial.     On  November  3, 1879,  J.  S.  Barnes 
^ras  appointed,  and  has  continued  to  act  as  administrator  of  the 
estate  of  J.  A.  Jenkins,  and  on  September  27,  1880,  began  suit 
against  T.  Jenkins  for  the  possession  of  the  forty-acre  tract 
and  damages,  together  with  rents  and  profits  thereof.    T.  Jen- 
kins answered,  setting  up  the  facts  heretofore  mentioned,  but 
it  does  not  appear  that  this  suit  or  others  begun  about  the  same 
time  between  the  parties  were  ever  prosecuted  to  judgment.    On 
October  13,  1880,  Minnie  E.  Jenkins  was  appointed  guardian 
for  her  son,  J.  A.  Jenkins,  Jr.,  and  has  ever  since  continued  to 
act  as  such.    On  November  26, 1880,  the  parties  entered  into  an 
agreement  substantially  as  follows:  "1.  That  the  title  to  the 
said  forty-acre  tract,  herein  described  as  lots  1,  2,  3,  and  13,  and 
the  water  belonging  to  the  same,  is  and  shall  remain  in  the  es- 
tate of  said  John  A.  Jenkins,  deceased,  and  shall  descend  to  his 
heirs,  with  the  following  limitations,  restrictions,  and  conditions, 
to  wit :  That  in  consideration  of  the  sum  of  three  hundred  dollars 
per  annum,  to  be  paid  by  Thomas  Jenkins  quarterly,  he  shall 
have  the  use  of  said  tract  during  his  lifetime,  or  until  the  com- 
ing of  age  or  marriage  sooner,  of  said  John  A.  Jenkins,  Jr., 
when  said  possession  shall  cease.     That  said  sum  of  three  hun- 
dred dollars  shall  be  equally  divided  between  Ann  Jenkins,  Mary 
Bundy,  John  A.  Jenkins,  Jr.,  Anna  Jenkins,  and  Alice  Jenkins, 
and  the  survivor  of  them;  provided,  that  the  shares  of  Alice  and 
Anna  Jenkins  shall  cease  and  pass  to  the  other  beneficiaries  upon 
their  arrival  at  the  age  of  twenty-five  years,  or  marriage  sooner. 
That  upon  the  arrival  of  said  John  A.  Jenkins,  Jr.,  at  the  age 
of  twenty-one  years,  the  title  to  said  tract  of  land  shall  vest  in 
him  and  his  heirs  forever.     Should  said  John  A.  Jenkins,  Jr., 
die  during  minority,  leaving  no  issue,  full  title  to  said  land 
shall  pass  to  said  Minnie  E.  Jenkins  and  the  heirs  of  her  body 
forever,  subject  to  the  use  thereof  by  Thomas  Jenkins  for  the 
time  and  on  the  terms  and  conditions  aforesaid.     That  should 
said  Minnie  E.  Jenkins  die  without  lineal  descendants,  said  land 
shall  revert  to  said-  Thomas  and  Ann  Jenkins  and  their  heirs. 
That  should  Ann  Jenkins  be  living  when  John  A.  Jenkins  be- 
comes of  age,  she  shall  receive  during  her  lifetime  one-half  the 
net  proceeds  of  said  land.     2.  The  estate  of  John  A.  Jenkins 
waives  all  claims  to  articles  and  items  named  and  described  in 

Am.   St   Rep.,  Vol.   91—50 


786  American  State  Reports,  Vol.  91.  [Utah, 

said  action  No.  4544,  and  agrees  to  accept  and  receive  in  lieu 
thereof  the  sum  of  two  hundred  dollars,  to  be  paid  by  said 
Thomas  Jenkins.  The  estate  also  waived  all  claims  for  rents 
and  damages  arising  in  case  No.  4543  in  the  district  court. 
Thomas  Jenkins  waives  all  claims  and  demands  set  up  in  action 
No.  4557,  and  accepts  in  lieu  thereof  a  credit  of  five  hundred 
dollars  on  his  note  for  fifteen  hundred  dollars  held  by  said  estate, 
and  the  surrender  to  him  of  a  note  of  John  S.  Hintz  held  by 
said  estate.  That  all  of  said  suits  shall  be  dismissed  on  approval 
by  the  probate  court  of  this  agreement,  the  performance  of  the 
conditions  herein  specified,  and  the  entering  into  agreement 
for  the  performance  of  the  further  conditions.*'  This  agree- 
ment was  signed  by  T.  Jenkins,  Ann  Jenkins,  Minnie  TL  Jen- 
kins, J.  S.  Barnes,  administrator,  and  the  sisters  of  J.  A.  Jen- 
kins, decea^d. 

This  agreement  was  confirmed  by  the  probate  court  in  Janu- 
ary, 1881,  and  the  parties  were  ordered  to  enter  into  an  agree- 
ment for  the  performance  of  the  further  conditions.  This  they 
failed  to  do,  nor  did  they  perform  the  conditions  of  the  original 
agreement. 

Finally,  on  September  1,  1881,  Minnie  R.  Jenkins,  in  per- 
son and  as  guardian  of  the  plaintiff,  and  John  S.  Barnes,  as  ad- 
ministrator of  the  estate  of  John  A.  Jenkins,  deceased,  as  par- 
ties of  the  first  part,  for  a  valuable  consideration,  made  and  de- 
livered to  Ann  Jenkins  and  Thomas  Jenkins,  as  second  parties, 
an  agreement  or  deed  reciting,  in  substance,  the  facts  herdnbe- 
fore  stated,  and  also  the  fact  that  Ann  Jenkins  claimed  the 
forty-acre  tract ;  that  litigation  and  disputes  existed ;  that  John 
A.  Jenkins  held  title  to  the  forty-acre  tract  as  trustee  until  cer- 
tain conditions  were  performed;  that  the  agreement  made  by 
parties  in  November,  1880,  with  a  view  to  settling  the  difficul- 
ties, and  whereby  the  income  of  the  land,  amounting  to  three 
hundred  dollars  per  year,  was  to  be  equally  divided  between 
John  A.  Jenkins,  Jr.,  Anna  and  Alice  Jenkins,  Ann  Jenkins^ 
and  Mary  Bundy,  was  not  approved  by  the  probate  court  as  a 
condition  precedent  to  the  ratification  of  the  same;  that  the  par- 
ties disagreed  as  to  its  meaning  and  terms;  and  that  the  same 
was  never  wholly  adopted  by  the  parties  thereto.  Thereafter  it 
was  stipulated  and  agreed  therein  that:  ''This  said  agreement 
is  upon  the  condition  that  whatever  rights  Anna,  Alice,  Ann 
Jenkins,  and  Mary  Bundy  have  in  the  agreement  of  November 
26,  1880,  are  hereby  made  a  charge  upon  the  one-half  of  said 
forty-acre  tract  hereby  in  this  agreemei^t  conveyed;  that  no  lia- 


Dec.  1901.]  Jenkins  v.  Jensen.  787 

bility  shall  exist,  arise,  or  remain  on  said  agreement  against  the 
parties  of  the  first  part,  or  the  estate  of  John  A.  Jenkins,  de- 
ceased, or  either  of  them,  or  upon  the  twenty  acres  conveyed  to 
them,  for  any  part  of  said  three  hundred  dollars,  or  any  support 
for  said  Anna,  Alice,  and  Ann  Jenkins  or  Mary  Bundy ;  that  in 
consideration  of  the  premises,  and  of  the  advice  and  approval  of 
counsel  on  both  sides,  and  for  the  purpose  of  settling  litigation, 
it  is  hereby  agreed  to  cancel  and  make  void  said  agreement  of 
1880,  and  to  settle  said  controversy  by  dividing  said  land,  giv- 
ing one-half  to  Ann  Jenkins,  and  the  other  half  to  John  A.  Jen- 
kins and  his  mother,  Minnie  R.  Jenkins,  they  to  take  in  the  same 
proportion  as  they  would  inherit  from  the  said  husband  and 
father  under  the  law,  and,  for  a  further  consideration  to  induce 
said  settlement,  the  said  second  parties  agree  to  give  to  the  estate 
of  John  A.  Jenkins  five  hundred  dollars.  Therefore,  in  con- 
sideration of  the  premises,  and  of  the  full  and  complete  relin- 
quishment of  the  said  parties  of  the  second  part  of  the  whole 
of  said  lots  2  and  3,  and  for  the  sum  of  five  hundred  dollars  to 
the  said  estate  of  deceased,  John  A.  Jenkins,  in  hand  paid,  and 
for  the  full  relinquishment  of  the  water  rights  belonging  thereto, 
and  for  other  good  and  valuable  consideration,  have  granted,  bar- 
gained, and  sold,  and  by  these  presents  do  grant,  bargain  and 
sell,  and  convey,  unto  the  said  Aim  Jenkins,  on  condition  of  all 
charge  under  said  agreement  or  otherwise  for  the  support  of  said 
Alice,  Anna,  and  Ann  Jenkins  and  Mary  Bundy,  as  heretofore 
stated,  and  for  their  share  of  the  three  hundred  dollars  being 
released  from  the  land  conveyed  to  parties  of  the  first  part;  and 
the  parties  of  the  second  part,  by  accepting  this  deed  or  agree- 
ment, do  covenant  that  they  will  protect  and  save  harmless  the 
said  parties  of  the  first  park  against  any  claim  of  Alice,  Anna, 
and  Ann  Jenkins  and  Mary  Bundy  upon  said  twenty  acres  con- 
veyed to  the  parties  of  the  first  part,  or  the  income  thereof,  and 
do  charge  said  claim  of  the  persons  last  named  upon  the  twenty 
acres  hereby  conveyed  (said  lots  1  and  16)  with  and  including 
all  the  estate,  right,  title,  and  interest  and  claim  of  the  said 
minor  John  A.  Jenkins,  and  the  said  Minnie  E.  Jenkins,  or  the 
said  administrator,  of,  in,  and  to  said  lots  so  granted,  or  in- 
tended to  be,  with  the  appurtenances  thereto  belonging.  To 
have  and  to  hold  the  said  granted  and  conveyed  premises  unto 
the  said  Auti  Jenkins  and  her  heirs  and  assigns  forever;  and 
the  said  parties  of  the  first  part  hereby  covenant  to  warrant  and 
defend  the  title  of  said  parties  of  the  second  part  against  any 
claim,  right,  or  interest  of  John  A.  Jenkins,  Jr.,  his  heirs   or 


788  American  State  Bbpobts^  Vol.  91.  [TTtah, 

assigns^  to  the  said  twenty  acres  hereby  conveyed  [which  em- 
braced lots  1  and  16]/'  This  latter  agreement  was  mAde  to 
settle  the  existing  disputes  and  difScKlties  between  the  parties, 
and  its  provisions  have  been  duly  performed  by  all  of  them  until 
the  commencement  of  this  action.  In  1882,  Thomas  and  Ann 
Jenkins  having  always  held,  and  while  still  in  possession  of  lots 
1  and  16,  conveyed  tiie  same  to  one  Boberts,  who,  after  holding 
possession  until  1896,  conveyed  them  to  Mary  E.  Jensen,  who 
is  now  in  possession,  and  who  in  1900  mortgaged  the  premises 
to  the  defendant  Quayle.     Other  facts  appear  from  the  opinion. 

Pierce,  Critchlow  &  Banette,  for  the  appellant 

Bennett,  Howatt,  Sutherland  &  Van  Cott  and  0.  L.  Nye,  for 
the  respondents. 

"®  MINEE,  C.  J.  The  appellant  contends  that  the  title  to 
lots  1  and  16  became  absolutely  vested  in  him  by  virtue  of  the 
agreement  of  November  26,  1880,  and  that  he  was  entitled  to 
the  possession  thereof  on  December  8, 1900 — ^that  being  the  date 
he  arrived  at  the  age  of  twenty-one  years — and  that  neither  the 
administrator  nor  guardian  obtained  any  authority  to  enter  into 
the  second  agreement.  The  respondents  claim :  1.  That  appel* 
lant's  cause  of  action  was  barred  by  the  statute  of  limitations  of 
this  state  long  before  the  institution  of  this  action;  2,  That 
plaintiff  is  barred  by  reason  of  the  compromise  made  in  1881, 
by  ^^  which  Thomas  and  Ann  Jenkins  gave  up  claim  to  lots  2 
and  3,  and  the  administrator  and  guardian  thereafter  gave  up 
all  claim  to  lots  1  and  16 ;  3.  The  compromise  of  1881  was  af- 
firmed by  the  appellant  and  his  representatives  by  retaining  pos- 
session of  lots  2  and  3,  and  asserting  title  thereto,  without  any 
offer  to  return  the  same;  4.  Plaintiff  is  estopped  from  claiming 
the  property. 

A  careful  examination  of  the  statement  of  facts  heretofore 
presented,  and  the  findings  of  the  trial  court  thereon,  will  show 
that  John  A.  Jenkins,  deceased,  never  entered  into  possession 
of  the  forty-acre  tract  after  obtaining  the  deed  from  Mary  B. 
Jenkins,  nor  did  he  ever  claim  to  own  the  property,  but,  on 
the  contrary,  asserted  that  it  was  not  his  property;  that  he  held 
it  for  his  mother  and  sisters.  The  administrator  never  had  pos- 
session of  the  forty-acre  tract,  including  lots  1  and  16.  The 
agreement  of  1881  tends  to  show  that  the  administrator  and  the 
guardian  (the  mother  of  the  plaintiff),  in  conveying  away  lots 
1  and  16,  knew  that  the  same  were  being  held  and  claimed  ad- 


Dec.  1901.]  Jenkins  v.  Jensen.  789^ 

versely  to  them  by  other  claimants.    These  lots  are.  not  men- 
tioned  as  belonging  to  the  estate  in  the  inventory  of  the  property 
by  the  administrator  in  his  petition  for  sale  and  distribution  of 
the  same  as  required  by  the  Compiled  Laws  of  Utah  of  1876 
(page  310,  section  145).    The  testimony  and  findings  show  that 
Thomas  Jenkins  and  his  successors  and  grantees  have  had  the* 
exclusive  possession  of  said  land  since  1875,  and  since  1881  have 
had  the  exclusive,  continuous,  adverse,  notorious,  and  peaceable 
possession  of  said  tract,  up  to  the  time  this  action  was  com- 
menced, and  during  that  time  have  paid  all  the  taxes  thereon,, 
cultivated  the  same  each  year,  and  inclosed  the  same  with  a 
fence.    Under  the  statutes  of  Utah  in  force  in  and  since  1881, 
the  administrator  had  the  exclusive  right  to  the  possession  of 
real  property  belonging  to  the  estate  until  the  final  order  of  the 
court,  and  had  the  right  to  bring  suit  to  recover  any  real  prop* 
erty  belonging  to  the  estate  held  adversely  by  others.    By  the 
Laws  of  1884  possession  **■  of  the  heir  is  made  subject  to  the- 
possession  of  the  administrator  for  the  purpose  of  administra* 
tion :  Comp.  Laws  1876,  p.  301,  sec.  107 ;  Comp.  Laws,  p.  319,. 
sec.  183;  Comp.  Laws,  p.  320,  sec.  184;  Laws   1884,  p.  404, 
sec.  10 ;  Laws  1884,  p.  429,  sec.  2 ;  2  Comp.  Laws  1888,  p.  486. 
sec.  10;  Comp.  Laws,  p.  489,  sees.  1-3;  Rev.  Stats.  1898,  sees. 
3912-3914 ;  Comp.  Laws  1876,  p.  402,  sec.  6 ;  Laws  1884,  p.  192^ 
sec.  226;  Bev.  State.  1898,  sec.  2902;  Comp.  Laws   1888,  see.. 
3171. 

The  principal  question  for  consideration,  therefore,  is  whether 
the  statute  of  limitations  could  have  run  against  the  plaintiff 
when  he  became  of  age,  on  December  8,  1900.  In  the  consid- 
eration of  this  question,  it  must  be  remembered  that  this  is  not 
an  action  between  the  administrator  and  guardian,  on  the  one 
side,  and  one  claiming  as  heir,  on  the  other,  but  is  an  action  be- 
tween one  claiming  as  heir  to  an  estate  on  the  one  hand,  and 
strangers  to  the  estate  on  the  other.  By  the  provisions  of  sec- 
tion 107,  page  301,  of  the  Compiled  Laws  of  1876  the  adminis- 
trator has  the  right  to  the  possession  of  all  real  estate  until  the 
estate  be  settled,  or  is  otherwise  dispossessed  by  order  of  the 
court.  By  section  183,  page  319,  of  the  Compiled  Laws  of  1876^ 
the  administrator  is  required  to  take  possession  of  all  real  estate 
of  the  deceased.  For  the  purpose  of  bringing  suits  to  quiet  title- 
the  possession  of  the  administrator  is  deemed  the  possession  of 
the  heir.  Possession  of  the  heir  is  made  subject  to  the  posses- 
sion of  the  administrator  for  the  purpose  of  administration: 
Laws  1884,  p.  404,  sec.  10 ;  Laws  1884,  p.  429,  sec.  1.    Section 


790  American  State  Bbpobts^  Vol.  91.  [Ut^I^ 

179^  page  319  of  the  Compiled  Laws  of  1876  reads  as  foUowB: 
^'No  actiofi  for  the  recovery  of  any  estate  sold  by  an  ezecntor 
or  administrator  under  the  provisions  of  this  act  shall  be  main* 
tained  by  any  heir  or  other  person  claiming  under  the  deceased 
testator  or  intestate,  unless  it  be  commenced  within  two  years 
next  after  the  sale.'*  Section  180 :  ''The  preceding  section  shall 
not  apply  to  minors  or  others  under  any  legal  disability  to  sue 
at  the  time  when  the  right  of  action  shall  first  accrue;  but  all 
such  persons  may  ***  commence  such  action  at  any  time  within 
two  years  after  the  removal  of  the  disability/*  Section  13,  page 
365  of  the  Compiled  Laws  of  1876  provides  as  follows:  "If  a 
person  entitled  to  commence  any  action  for  the  recovery  of  real 
property,  or  for  the  recovery  of  the  possession  thereof,  or  to 
make  any  entry  or  defense  founded  on  the  title  to  real  property, 
or  to  rents  or  services  out  of  the  same,  be  at  the  time  sudi  title 
shall  first  descend  or  accrue,  either,  first,  within  age  of  majority, 

or  second,  insane The  time  during  which  such  disability 

shall  continue  shall  not  be  deemed  any  portion  of  the  time  in 
this  act  limited  for  the  commencement  of  such  actions,  or  the 
making  of  such  entry  or  defense,  but  such  action  may  be  com- 
menced or  entry  or  defense  made  within  the  period  of  two  years 
sifter  such  disability  shall  cease,  or  after  the  death  of  the  person 
entitled,  who  shall  die  imder  such  disability,  but  such  action 
shall  not  be  commenced  or  entry  or  defense  made  after  that 
period/* 

In  the  case  of  McLeran  v.  Benton,  73  Cal.  329,  2  Am.  St 
Sep.  814,  14  Pac.  879,  a  similar  question,  under  a  like  statute 
in  California,  was  determined.  The  question  was  raised  whether 
the  plaintiffs,  infants,  were  barred  on  account  of  the  executor 
being  barred;  and  the  court  held  that  the  statute  of  limitations 
had  run  against  the  infants,  notwithstanding  their  infancy,  be- 
cause the  executor  representing  them  was  barred.  The  couil 
said :  "If  the  entry  of  the  defendants  was  wrongful,  the  devisees 
of  Harmon  could  not  maintain  an  action,  for  ihat  right  existed 
exclusively  in  the  executors,  who,  in  all  suits  for  the  benefit  of 
the  estate,  represented  both  the  creditors  and  the  heirs:  Cun- 
ningham V.  Ashley,  45  Cal.  493 ;  Halleck  v.  Mixer,  16  Cal.  679. 
It  would  seem  to  follow,  therefore,  that  when  the  executor  is 
barred  of  his  action  the  heir  is  barred,  although  the  heir  or 
devisee  be  laboring  under  a  disability :  Wilmerding  v.  Buss,  33 
Conn.  68.  The  general  rule  is  that  when  a  trustee  is  barred  by 
the  statute  of  limitations  the  ce<"'ii  que  trust  is  likewise  barred, 
even  though  an  ^»*  infant  (Hill  on  Trustees,  267,  403,  504), 


Dec.  1901.]  JxNKiNs  V.  Jemsen.  791 

and  that  the  heir  or  devisee  is  dependent  npon  the  diligence  of 
the  executor  for  the  maintenance  of  his  rights  with  respect  to 
the  real  property,  but  is  not  without  a  remedy  by  an  action  for 
damages  against  his  executor  and  his  sureties,  or  by  a  proper 
proceeding  to  compel  him  to  bring  suit:  Tyler  v.  Houghton,  25 
Cal.  29.    This  subject  has  been  very  carefully  considered,  and 
the  decisions  and  statutes  of  this  state  elaborately  reviewed,  by 
the  circuit  court  and  the  supreme  court  of  the  United  States, 
and  the  conclusion  reached  that,  where  the  administrator  in  this 
state  neglects  to  bring  an  action  to  recover  property  of  the  estate 
until  it  is  barred  under  the  statute  of  limitations  applicable  to 
the  subject,  the  heir  is  also  barred,  even  though  the  heir  be  a 
minor  at  the  time  the  action  accrues  to  the  administrator: 
Meeks  v.  Vassault,  3  Saw.  206,  Fed.  Cas.  No.  9393;  Meeks  v.  01- 
pherts,  100  IT.  S.  564."    In  the  case  of  Meeks  v.  Olpherts,  100 
TT.  S.  564,  suit  was  brought  to  recover  decedent's  property  sold 
by  the  executor,  on  the  ground  that  the  sale  was  void ,  and  the 
question  of  the  statute  of  limitations  was  raised,  as  affecting  the 
right  of  the  infant  to  sue  under  a  statute  like  that  of  Utah.    In 
its  opinion  the  court  calls  attention  to  the  fact  that  the  admin- 
istrator had  the  right  to  the  possession  of  all  the  property,  and 
was  the  only  person  and  the  proper  party  to  bring  the  action  to 
recover  the  real  estate,  and  that,  as  more  than  three  years  had 
elapsed  without  suit  being  brought  by  the  administrator,  the 
cestui  que  trust,  although  a  minor,  was  barred,  because  the  right 
to  commence  the  suit  was  in  the  administrator,  and  if  he  did  not 
sue  within  the  required  time  all  persons  under  him  were  barred. 
The  court  said:  "The  right  of  action  on  the  title  which  the 
plaintiff  now  asserts  was  in  the  administrator,  and  the  statute, 
therefore,  ran  against  him  and  against  all  whose  rights  he  rep- 
resented.   Tn  all  suits  for  the  benefit  of  the  estate  he  represents 
both  the  creditors  and  the  heirs,'  said  the  supreme  court  in  Beck- 
ett V.  Selover,  7  Cal.  215,  68  Am.  Dec.  237.    Whatever  "« 
doubt  may  have  existed  at  one  time  on  the  subject,  there  re- 
mains none  at  the  present  day,  that  whenever  the  right  of  ac- 
tion in  the  trustees  is  barred  by  the  statute  of  limitations  the 
right  of  the  cestui  que  trust  thus  represented  is  also  barred.    This 
doctrine  is  clearly  stated  in  Hill  on  Trustees,  267,  403,  504,  and 
the  authorities  there  cited  fully  sustain  the  text,  both  English 
and  American.'*    In  a  note  to  Moore  v.  Armstrong,  36  Am. 
Dec.  68,  where  many  authorities  are  cited  to  support  the  text,  it 
is  said :  ''There  is  also  a  diversity  of  opinion  on  the  question  as 
to  how  far  the  rights  of  an  infant  are  affected  when  his  property 


792  American  Statb  Beports,  Vol.  91.  [Utah, 

is  in  the  hands  of  a  trustee,  executor,  or  guardian;  and  the  tend- 
ency of  the  decisions  is  to  support  the  position  that  when  the 
right  of  action  vests  in  an  executor,  guardian,  or  trustee,  who  is 
under  no  legal  disability,  the  statute  will  commence  to  run  de- 
spite the  disability  of  the  minor,  and,  if  the  claim  is  lost  by  tiie 
neglect  of  the  representative  to  sue,  the  minor  is  barred.** 

From  the  above  authorities  it  is  apparent  that  where  the  ex- 
ecutor, administrator,  or  trustee  has  a  right  to  sue,  and  omits 
that  duty,  the  beneficiary  is  then  barred,  and  his  remedy  i« 
against  the  administrator  or  his  bondsmen.  In  Patchett  v.  Pa- 
cific Coast  Ey,  Co.,  100  Cal.  505,  35  Pac.  73,  the  court  laid  down 
the  same  rule  announced  in  Moore  v.  Armstrong,  36  Am.  Dec. 
68.  In  the  opinion  in  that  case  it  is  said :  ^^The  rule  that  the 
statute  of  limitations  does  not  bar  a  trust  estate  holds  only  be- 
tween cestui  que  trust  and  trustee,  not  as  between  cestui  que 
trust  and  trustee  on  one  side,  and  strangers  on  the  other;  for 
that  would  make  the  statute  of  no  force  at  all,  because  there  is 
hardly  any  estate  of  consequence  without  such  trust,  and  so  the 
act  would  never  take  place.  Therefore,  where  tiie  cestui  que 
trust  and  his  trustee  are  both  out  of  possession  for  the  time  lim- 
ited, the  party  in  possession  has  a  good  bar  against  them  both. 
....  Where  the  trustee  is  harred,  so  is  the  cestui*' :  13  Am.  & 
Eng.  Ency.  of  Law,  740.  In  Dennis  v.  Bint,  122  CaL  40,  68 
Am.  St.  Rep.  17,  64  Pac.  378,  the  question  **•  wns  presented 
whether  the  heirs  were  barred  because  the  administrator  was 
barred,  and  the  court  said:  ''The  result  of  the  cases  involving 
or  illustrating  the  effect  of  these  sections,  in  their  original  form, 
is  that,  if  the  administrator  failed  to  sue  to  recover  the  land  or 
set  aside  the  sale  within  three  years  next  following  the  sale — ^the 
administration  so  long  continuing — ^then  the  heirs  as  well  as  him- 
self were  barred,  even  though  the  heirs  were  minors ;  this  on  the 
ground  that  under  our  system  the  administrator  represents  the 
heirs;  he,  the  trustee;  they,  the  cestuis.**  In  this  decision  the 
administrator  is  held  to  be  the  trustee,  and  the  heirs  the  cestnis; 
and  this  under  statutes  like  those  of  Utah. 

In  27  American  and  English  Encyclopedia  of  Law,  first  edi- 
tion, 98,  100,  the  general  rule  is  laid  down  that  the  statute  of 
limitations  runs  as  between  the  administrator  and  the  heirs,  on 
the  one  side,  and  strangers,  on  the  other,  although  ordinarily  the 
statute  does  not  run  between  the  trustee  or  administrator,  on  the 
one  side,  and  the  beneficiary,  on  the  other.  In  the  present  rase, 
!  the  administrator  had  the  exclusive  right  of  possession,  with  a 

[.  right  to  sue,  which,  for  the  purposes  of  administration,  gave 


Dec  1901.]  Jbnkiks  v.  Jensen.  793 

him  the  legal  title  until  devested  by  distribution  or  by  order  of 
the  court.    The  estate  in  question  is  still  in  the  hands  of  the 
administrator^  and  he  has  never  taken  possession  of  the  property 
in  dispute^  but  the  same  has  remained  in  the  peaceable  possession 
of  Thomas  Jenkins  and  his  grantees  since  1875,  without  inter- 
ference on  the  part  of  the  administrator  since  the  agreement  of 
1881.    John  A.  Jenkins  never  took  possession  of  the  lots  in 
question  under  his  deed,  and  claimed  no  ownership  therein,  ex- 
cept as  trustee  for  his  mother  and  sisters.    Ann  Jenkins  and 
Thomas  Jenkins  continued  in  possession  of  the  forty-acre  tract 
on  September  1,  1881,  when  the  last  agreement  was  made  be- 
tween the  parties^  and  previous  to  that  date,  from  1875,  contin- 
ued in  possession  of  said  lots  1  and  16  under  claim  of  title 
founded  on  said  agreement  of  September  1,1881,  exclusive  of  any 
other  right  whatever,  and  so  continued  until  they  conveyed  them 
in  1882  ^'^  to  the  grantors  of  the  defendants  herein,  who  have 
held  possession  thereof  since  1896,  being  a  continuous,  undis- 
puted, peaceable  possession  in  them  and  their  grantees  for  more 
than  eighteen  years  previous  to  the  time  of  the  commencement 
of  this  suit,  during  all  of  which  time  the  administrator  has  not 
only  failed  to  take  proceedings  to  recover  possession,  but  has 
personally  and  officially  assented  to  the  ownership  and  posses^ 
sion  thereof  by  the  defendants  and  their  grantors  since  the  time 
of  his  appointment,  in  1879,  knowing  at  that  time  and  since  that 
Thomas  and  Ann  Jenkins  and  their  grantees  were  in  possession 
claiming  title  to  the  land.    Irrespective  of  other  considerations 
presented  in  the  record,  we  are  of  the  opinion  that,  under  the 
facts  disclosed,  the  right  of  possession  being  in  the  administra- 
tor, the  rule  that  the  statute  of  limitations  does  not  bar  a  trust 
estate  holds  only  between  the  cestui   que  trust   and  trustee, 
and  not  as  between  the  cestui  que  trust  and  trustee,  on  the  one 
side,  and  strangers,  on  the  other.     The  defendants  in  this  ac- 
tion were  stranecrs  to  the  estate,  and  they  and  their  predecessors 
in  interest  and  grantors  having  held  lots  1  and  16  adversely, 
under  a  claim  of  title,  and  xmdcr  the  requirements  of  the  stat- 
ute, for  more  than  seven  years,  their  title  must  be  held  quieted 
and  freed  from  the  assumed  ownership  and  claim  of  the  plain- 
tiff: Utah  Comp.  I^ws  1876,  pp.  363,  364,  sees.  4-6 ;  Utah  Comp. 
Laws  1876,  p.  365,  sec.  13;  Laws  1884,  pp.  184-186,  socs.  179, 
180,  182,  183,  188;  2  Comp.  Laws  1888,  sees.  3133-3134,  3140. 
Under  the  circumstances  disclosed,  if  an  administrator  or  trustee 
allows  the  statute  of  limitations  to  run  so  as  to  bar  his  ritjhts 
as  such,  he  lays  himself  liable  to  the  heir  or  anyone  else  in- 


794  Ambbican  Statb  Bbpobts^  Vol.  91.  [TTtali, 

jured  by  his  ffdlure  to  perform  his  duty:  Meeks  r.  Olphertii 
100  U.  S.  564;  McLeran  v.  Benton,  73  Cal.  329,  343,  2  Am.  St 
Rep.  814, 14  Pac.  879. 

The  appellant  claimfi  that  the  legal  title  to  the  lots  in  qnes- 
tion  was  vested  in  him  by  virtue  of  the  agreement  of  1880.     The 
court  found,  and  the  facts  show,  that  the  agreement  was  **• 
made  to  settle  the  disputes  existing  between  the  parties,  but 
that  the  ill-feeling  and  animosities  continued  to  exist  unabated 
until  the  agreement  of  1881  was  made,  when  the  disputes  ceased, 
and  the  agreement  was  accepted  by  the  parties  until  this  suit 
was  brought.    By  the  agreement  of  1880  the  parties  were  to 
enter  into  an  agreement  for  the  due  performance  of  the  further 
conditions  named  therein,  but  no  agreement  for  due  perform- 
ance of  such  further  conditions  named  was  ever  entered  into, 
and  the  disputes  still  continued  imtil  the  agreement  of  1881  was 
made.    It  was  therein  stated  that  owing  to  the  nonapproval  of 
the  probate  court,  and  the  misunderstanding  of  the  parties  as 
to  the  meaning  of  the  paper  made  in  1880,  it  was  never  wholly 
adopted  by  the  parties  thereto.    The  agreement  of  1880  was 
made  to  settle  the  controversy  existing  between  the  administra- 
tor on  the  one  side,  and  Thomas  and  Ann  Jenkins  on  the  other, 
and  not  between  the  minor  and  administrator  as.  to  any  contro- 
versy between  them,  and  it  should  be  construed  so  as  to  cany 
out  the  objects  of  tiie  parties.    If  the  legal  title  to  the  lots  9i 
that  time  was  in  the  estate  of  John  A.  Jenkins,  deceased,  it  de- 
scended to  the  heirs,  subject  to  the  right  of  administration  and 
the  payment  of  the  debts  of  the  deceased.    It  would  be  a  fraud 
on  the  creditors  and  upon  the  rights  of  the  mo&er  to  agree  to 
convey  the  title  to  the  minor  irrespective  of  their  rights.    Not* 
withstanding  such  agreement  of  1880,  creditors  would  still  have 
the  right  to  have  the  property  sold  to  pay  the  debts.    The  ad- 
ministrator reported  to  Ihe  court  that  the  sgreement  of  1880 
was  not  wholly  adopted;    The  disputes  kept  up  until  the  1881 
agreement  was  made..   Ann  and  Thomas  Jenkins  still  remained 
in  possession  of  the  premises  until  after  the  agreement  of  1881, 
60  that  it  is  probable  that  the  intention  of  the  parties  in  execut- 
ing the  agreement  of  1880  was  to  settle  the  rights  of  the  par- 
ties as  to  the  ownership,  and  not  to  change  the  character  of  the 
ownership  from  that  of  heir  to  that  of  grantee.    They  all  agreed 
that  the  legal  title  was  in  the  name  of  John  A.  Jenkins  at  the 
time  of  ^^^  his  death.    If  this  was  so,  then  Thomas  and  Ann 
Jenkins  had  no  title  they  could  convey  to  the  plaintiff.    In  his 
inventory  to  the  court  in  1887  the  administrator  left  out  lots  1 


1901.]  JsMKuia  «.  Jmkbev.  795 

«nd  16,  and  did  not  claim  them  as  belonging  to  the  estate^  and 
in  his  petition  for  the  distribntion  of  the  real  estate  these  lots 
were  left  out  of  the  schedule.    In  the  guardianship  papers  of 
the  plaintiff  the  guardian,  who  is  the  mother  of  the  plaintiff, 
claimed  she  was  entitled  to  one-third  of  the  income  of  the  farm 
in  accordance  with  the  agreement  in  1881,  which  claim  was  in- 
consistent with  the  agreement  of  1880.     Since  1881  the  admin- 
istrator and  guardian  have  acted  under  the  agreement  of  1881, 
and  have  practically  ignored  that  of  1880.     In  cases  where  the 
language  used  by  the  parties  to  a  contract  is  indefinite  and  am- 
biguous, and  hence  of  doubtful  construction,  the  practical  con- 
stmction  of  the  parties  themselves  is  entitled  to  great,  if  not 
controlling,  influence:  Chicago  v.  Sheldon,  9  Wall.  64.    It  will 
be  remembered  that  Barnes  was  appointed  administrator  in 
1879.    At  this  time  Thomas  and  Ann  Jenkins  were  holding 
possession  of  the  land  adversely,  and  the  statute  of  limitations 
commenced  to  run.     When  the  agreement  of  1880  was  made, 
these  parties  were  in  possession.     The  actual  change  in  the  situ- 
ation did  not  occur  until  1881.    The  statute  was  therefore  run- 
ning before  the  agreement  of  1880,  and  continued  to  run  after 
that  agreement  was  executed,  so  that  the  disability  of  the  plain- 
tiff, even  if  he  could  take  title  by  the  agreement  of  1880,  did  not 
stop  the  running  of  the  statute.    The  law  is  well  settled  that, 
when  the  statute  of  limitations  once  commences  to  run,  it  does 
not  cease  to  run  on  account  of  any  subsequent  disability,  unless 
such  disability  comes  within  the  exception  of  the  statute:  13 
Am.  &  Eng.  Ency.  of  Law,  1st  ed.,  731,  732.    The  administra- 
tor or  trustee  having  the  right  to  commence  suit  for  the  recovery 
of  the  property  within  the  time  limited  by  the  statute,  and  hav- 
ing omitted  to  do  so,  he  ^•^  is  barred  from  commencing  such 
action  against  the  respondents,  who  are  strangers  to  the  estate ; 
and  his  beneficiary  is  also  barred,  and  his  only  remedy,  if  any, 
would  be  against  the  administrator  and  his  sureties.    Whether 
such  liability  now  exists  we  do  not  decide. 

The  respondents  also  claim  that  the  appellant  is  barred  by 
reason  of  the  compromise  as  evidenced  by  the  agreement  of  188], 
by  which  Thomas  and  Ann  Jenkins  gave  up  all  claim  to  lots  2 
and  3,  and  the  administrator  and  guardian  gave  up  to  them  all 
claim  to  lots  1  and  16,  and  that  by  retaining  possession  of  lots 
2  and  3  under  such  agreement  and  compromise,  and  asserting 
title  thereto,  he  must  be  held  as  confirming  the  compromise; 
that  he  cannot  repudiate  a  contract  made  for  his  benefit,  without 
returning  the  property  in  his  possession  obtained  by  and  through 


796  Ambeican  State  Bbpobts^  Vol.  91.  [Utah, 

it.    Inasmuch  as  this  case  has  been  detennined  upon   other 
grotindsy  we  forbear  further  discussion  upon  Una  subject. 
The  decree  of  the  district  court  is  affirmed^  with  costs. 

Baskin  and  Bartch,  JJ.^  concur. 


When  the  Btatute  of  lAnUtaHone  has  ran  against  a  troBtee,  th* 
cestui  que  trust  is  also  barred:  Bryan  v.  Weems,  29  Ala.  423,  65  Am. 
Dee.  407;  monographic  note  to  Miles  v.  Thorn e^  99  Am.  Dee.  398: 
Trammel  ft  Ck>.  v.  Mount,  68  Tex.  210,  2  Am.  St.  Bep.  479,  4  S.  W.  377. 
And  when  an  executor's  or  administrator's  right  to  recoyer  property 
of  the  estate  is  barred  by  the  statute,  the  heir  or  devisee  is  also 
barred,  though  an  infant  when  the  action  accrued  to  the  representatiYe: 
MeLeran  ▼.  Benton,  73  Gal.  329,  2  Am.  St.  Bep.  814»  14  Pae.  879. 


OPBNSHAW  V.  HALFIN. 

[24  Utah,  426,  68  Pae.  138.] 

OONSTirunONAIi  LAW— Failure  to  Belaasa  Mortfa^B.— 
A  statutory  provision  that  if  a  mortgagee  fails  to  release  a  mortgage 
after  the  satisfaction  thereof,  the  mortgagor  may,  by  action,  eompel 
suc^  release  and  recover  costs,  including  a  reasonable  attorney's  fee 
from  such  mortgagee,  is  special  legislation,  and  violates  a  eonstitii- 
tional  provision  that  no  special  law  shall  be  enacted  when  a  general 
law  can  be  made  applicable,     (pp.  797,  798.) 

Bawlins,  Thurman^  Hurd  &  Wedgwood,  for  the  appellant. 

Fierce,  Critchlow  &  Barrette^  for  the  respondent 

^^^  BASKDTy  J.  This  is  an  action  to  enforce  the  cancella- 
tion by  defendant  of  a  mortgage  which  he  held  upon  certain 
real  estate  of  the  plaintiff.  The  complaint  alleges  that  the 
plaintiff  at  various  times  before  the  institution  of  the  actios 
tendered  to  the  defendant  the  amount  due  on  the  note  which 
the  mortgage  was  given  to  secure,  and  requested  the  defendant 
to  release  said  mortgage,  and  that  the  defendant  refused,  and 
still  continues  to  refuse,  to  accept  said  tender  amd  cancel  the  mort- 
gage. The  answer  denied  the  tender  alleged  in  the  complaint, 
and  alleged  that  "said  plaintiff  ought  not  to  recover  any  attor- 
ney's fees,  because  that  part  of  section  2006  of  the  Revised  Stat- 
utes of  1898  providing  for  an  attorney's  fee  is  unconstitutional 
and  void,  because  it  denies  to  the  defendant  the  equal  protec- 
tion of  the  law,  in  that  it  gives  the  plaintiff  an  attorney's  fee  if 
he  obtains  judgment,  but  it  does  not  make  the  same  provision 


March,  1902.]  Openshaw  v.  Halfin.  797 

for  the  defendant  if  he  secures  judgment  against  the  plaintiff^ 
and  that  the  defendant  has  always  been  ready  and  willing  to  ac- 
cept the  amount  due  on  said  note  and  mortgage,  and  release  said 
mortgage,  and  offered  to  do  so  before  filing  his  answer.    Where- 
fore he  prays  that  plaintiff  take  nothing/'    The  trial  court 
found  that  the  alleged'  tender  and  requests  for  the  release  were 
made,  and  that  the  defendant  refused  to  cancel  or  discharge  the 
mortgage.    It  further  appears  from  the  findings  of  the  trial 
court  that  after  the  institution  of  the  suit  the  defendant  accepted 
the  amount  tendered  by  the  plaintiff,  and  on  the  day  of  the  trial 
canceled  the  mortgage;  that  the  amount  tendered  was  paid  and 
received  with  the  express  and  distinct  understanding  that  the 
action  should  be  continued  for  the  purpose  of  determining  the 
amoimt  of  costs    and  the    damages    and    attorney's  '**®  fees 
claimed  by  the  plaintiff.    On  the  trial  the  court  held  that  the 
plaintiff  was  not  entitled  to  anything  on  account  of  attorney's 
fees,  and  in  the  decree  entered  did  not  embrace  any  such  fees. 
The  appellant  assigns  as  error  the  action  of  the  court  in  refusing 
a  recovery  for  a  reasonable  attorney's  fee.    The  parties  stipu- 
lated that,  if  it  should  be  held  that  the  plaintiff  was  entitled  to 
recover  attorney's  fees,  seventy-five  dollars  would  be  a  reasonable 
gum  for  that  purpose.    No  other  question  is  raised  in  the  case. 
Section  2006  of  the  Bevised  Statutes  of  1898  reads  as  follows : 
*T[f  the  mortgagee  fail  to  discharge  or  release  any  mortgage 
after  the  same  has  been  fully  satisfied,  he  shall  be  liable  to  the 
mortgagor  for  double  the  damages  resulting  from  such  failure. 
Or  the  mortgagor  may  bring  an  action  against  the  mortgagee  to 
compel  the  discharge  or  release  of  the  mortgage,  after  the  same 
has  been  satisfied.     And  the  judgment  of  the  court  must  be,  that 
the  mortgagee  discharge  or  release  the  mortgage  and  pay  the 
mortgagor  the  costs  of  suit,  including  a  reasonable  attorney's 
fee,  and  all  damages  resulting  from  such  failure."    The  ques- 
tion here  involved  is  the  same  as  that  decided  by  us  in  the  case 
of  Brubaker  v.  Bennett,  19  Utah,  401,  57  Pac.  170,  and  that  case 
is  decisive  of  this.     The  principle  involved  is  fully  supported 
in  Gulf  etc.  Ry.  Co.  v.  Ellis,  165  XI.  S.  150,  17  Sup.  Ct.  Rep. 
255 ;  Wilder  y.  Chicago  etc.  Ry.  Co.,  70  Mich.  383,  38  N".  W. 
289;  Grand  Rapids  etc.  Chair  Co.  v.  Runnels,  77  Mich.  104, 
43  N.  W.  1006 ;  Coal  Co.  v.  Rosser,  63  Ohio  St.  12,  23,  53  Am. 
St.  Rep.  622 ,  41  N.  E.  263.    In  the  latter  case,  the  principle 
is  aptly  stated  as  follows :  "Upon  what  principle  can  a  rule  of 
law  rest  which  permits  one  party  or  class  of  people  to  invoke 
the  action  of  our  tribunals  of  justice  at  will,  while  the  other 


798  American  State  Bbpobts^  Vol.  91.  [Uu' . 

party  or  another  class  of  citizens  does  so  at  the  peril  of  beir- 

mulct  in  an  attomey^s  fee  if  an  honesty  but  unsuccessful,  de- 
fense should  be  imposed?  A  statute  that  imposes  this  restric- 
tion upon  one  citizen  or  class  of  citizens,  only,  denies  to  him  or 
'***  them  the  equal  protection  of  the  law.  It  is  true  that  no 
provision  of  the  constitution  of  1851  declares  in  express  an-l 
direct  terms  that  this  may  not  be  done,  but  nevertheless  it  vio- 
lates the  fundamental  principles  upon  which  our  government 
rests,  as  they  are  enunciated  and  declared  by  that  instrument 
in  the  bill  of  rights.  The  first  section  of  the  constitution  de- 
clares that  the  right  to  acquire,  possess,  and  protect  property  is 
inalienable;  and  the  next  section  declares,  among  other  thing?, 
that  'government  is  instituted  for  the  equal  protection  and  ben- 
efit' of  every  person.*'  In  the  declaration  of  rights  in  our  con- 
stitution (article  1,  section  2)  it  is  declared  that  "all  political 
power  is  inherent  in  the  people;  and  all  free  governments  are 
founded  on  their  authority  for  their  equal  protection  and  ben- 
efit.'* Article  6,  section  26,  subdivision  18,  provides  that  '*in 
all  cases  where  a  general  law  can  be  applicable,  no  special  law 
shall  be  enacted." 
The  decree  is  affirmed,  with  costs. 

Miner^  C.  J.^  and  Bartch,  J.,  concur. 


The  C<m8tiiutionaUty  of  Statutes  allowing  attomeya'  fees  to 
elaeses  of  litigants  is  considered  in  the  monograplde  note  to  IMl  v. 
Marvin,  79  Am.  St.  Bep.  178-186. 


DOWNEY  V.  GEMINI  MINING  COMPANY. 

[24  Utah,  431,  68  Pae.  414.] 

MASTEB  AND  SEBVANT—Oondition  of  FremlMa.— An  in- 

ftmction  that  it  is  the  duty  of  the  master  to  keep  the  premises  about 
which  the  servant  is  employed  in  as  reasonably  safe  condition  as  they 
would  have  been  kept  by  a  person  of  ordinary  prudence  nnder  the 
same  circumstances,  considering  the  nature  of  the  work  to  be  aeeom- 
plished,  presents  a  correct  proposition  of  law,  without  Hmifiwg  the 
jury  to  a  consideration  of  the  condition  of  the  premises  at  the  very 
place  where  the  accident  happened  to  the  servant  and  the  injury  wis 
received,  especially  when  the  inquiry  has  not  been  to  any  other  part 
of  the  premises,     (p.  801.) 

TBIAIk — InBtmctions  need  not  be  given  when  there  is  bo 
evidence  upon  which  to  base  them.     (p.  801.) 


March,  1902.]    Downsy  v.  Gemini  Min.  Co.  799 

1CA8TEB  AMD  SEKVAMT— Condition  of  Premi868.— An  in- 
atmetioii  that  it  is  the  duty  of  the  master  to  keep  the  premises 
About  which  the  serrant  is  employed  in  as  reasonably  safe  condition 
as  they  wonld  be  k^t  by  a  person  of  ordinary  pmdenee  under  the 
aame  circumstances,  considering  the  nature  of  the  work  to  be  per- 
formed, states  a  correct  proposition  of  law,  without  the  addition  of 
the  words  "skilled  in  the  business '^  after  the  words  "person  of  ordi- 
nary prudence."     (p.  802.) 

MASTEB  AND  SEBVANT.—Ordlnary  Care  as  between  mas- 
ter and  servant  simply  implies  and  includes  the  exercise  of  such 
reasonable  diligence,  care,  skill,  watchfulness,  and  forethought  as, 
under  all  of  the  circumstances  of  the  particular  service,  a  careful, 
prudent  man  or  officer  of  a  corporation  would  exercise  under  the 
same  or  similar  circumstances.  By  the  term  "similar  circumstances'' 
i^  mef»nt  to  include  all  the  circumstances  of  time,  place  and  attendant 
conditions,     (pk  803.) 

MASTEB  AND  SEBVANT.— If  a  Master  Creates  a  Dangerous 
Place  on  his  premises  unknown  to  the  servant,  and  fails  to  warn  him 
thereof,  the  servant,  who  is  injured  by  venturing  into  such  dangerous 
place  while  in  the  exercise  of  ordinary  care,  is  not  guilty  of  con- 
tributory negligence,     (p.  804.) 

KEOUOEKCB— Contrlbntory.—It  is  not  contributory  negli- 
ftence  not  to  look  out  for  danger  when  there  is  no  reason  to  apprehend 
any.     (p.  804.) 

EVIDENCE— Presumption  of  Ordinary  Care.— It  is  presumed 
that  all  men  will,  under  ordinary  circumstances,  act  with  due  care, 
but  this  presumption  is  not  indulged  if  circumstances  arise  such 
as  should  convince  a  reasonable  man  that  such  care  was  not  being  ex- 
ercised,    (p.  804.) 

MASTEB  AND  SEBVANT— Negligence— Bisk  Assumed.— If 
the  danger  causing  the  accident  is  a  peril  incident  to  the  employment, 
and  the  injury  is  not  caused  by  a  want  of  ordinary  care  on  the 
part  of  the  master,  then  it  is  a  risk  assumed  by  the  servant,  and 
he  cannot  recover,  but  if  the  contrary  state  of  facts  is  true,  he  is 
IS  entitled  to  recover  if  he  is  injured  without  fault  on  his  part, 
(p.  805.) 

NEQLiaENCE,  Failore  to  Define.— In  an  action  to  recover 
for  personal  injury  to  a  servant,  a  failure  to  specifically  define 
negligence  in  an  instruction  is  not  error  when  the  instructions  as 
a  whole  must  have  eonveyed  to  the  jury  the  meaning  of  the  term, 
(p.  805.) 

NEOLiaENCE  is  FiUnre  to  Obsenre,  for  the  protection  of 
another's  interests  and  safety,  such  care,  precaution,  and  vigilance  as 
the  circumstances  justly  demand,  and  the  want  of  which  causes  him 
injury,     (p.  805.) 

MASTEB  AND  SEBVANT.— Presunption  of  Negligence  on  the 
part  of  the  master  does  not  arise  from  the  mere  happening  of  an  accl* 
dent  to  his  servant.  Negligence  is  not  presumed,  but  is  an  aflrm- 
ative  fact,  which  must  be  proved  by  a  preponderance  of  the  evidence. 
(p.  806.) 

MASTEB  AND  SEBVANT— Duty  as  to  Condition  of  Prem- 
ises.—A  servant  in  his  employment  has  a  right  to  assume  that 
the  master  will  conduct  his  business  as  respects  the  servant's  safety 
with  ordinary  prudence  end  care,  and  that  if  he  makes  the  place 
where  he  is  employed  or  is  required  to  pass  to  his  work  dangerous 
and  unsafe,  which  was  before  reasonably  safe,  and  the  servant  has 
BO  knowledge  or  duty  to  know  of  the  changed  conditions^  that  the 


800  Amebican  State  Bepobts^  Yol.  91.  [Utali, 

master  will  warn  him  of  such  danger  in  time  to  prervent  his  injur;. 
Failing  in  this,  the  master  mnst  respond  in  damages  to  the  aerraBt 
injured  while  exercising  due  care.     (pp.  806,  807.) 

MASTER  AND  SEBVANT— F^llow-aerrants.— An  ordinarj 
day  laborer  in  a  mine  and  the  foreman  thereof  are  not  f eUow-Berrasta. 
(p.  807.) 

Eawlins,  Thurman,  Hurd  &  Wedgwood,  Brown  &  Hender- 
son, and  Bennett,  Sutherland^  Van  Cott  &  Allison^  for  the  ap- 
pellant. 

Powers,  Stranp  &  Lippman,  for  the  respondent 

****  MINER,  C.  J.    The  plaintiff  was  an  experienced  miner 
in  the  employ  of  the  defendant  company  in  Jnly,  1900,  and 
gave  testimony  tending  to  show  that  at  the  time  in  question  he 
was  working  on  the  fifteen  hundred  and  fifty-foot  leveL     The 
only  way  for  him  to  reach  and  return  from  the  place  of  his  em- 
ployment was  by  climbing  and  descending  a  seven-foot  ladder, 
the  foot  of  which  rested  upon  planks  placed  upon  timbers,  and 
the  top  thereof  resting  against  the  side  of  the  wall.    At  the  time 
of  the  injury  complained  of  the  plaintiff  ascended  this  ladder 
as  usual  at  1  o^cloek  F.  M.    At  this  time  the  planks  or  platform 
at  the  foot  of  the  ladder  were  all  in  place  and  nailed  down,  as 
had  been  the  case  for  about  one  month.    After  plaintiff  had 
ascended  the  ladder  to  his  work  in  the  stope  above,  the  foreman 
of  the  mine,  without  plaintiff's  knowledge,  took  up  the  plank 
flooring  at  the  foot  of  the  ladder,  and  left  a  hole  in  the  platform. 
Beneath  this  hole  and  platform  was  a  chute  forty  feet  in  depth. 
No  warning  was  given  to  the  plaintiff  of  this  change  in  the  plat- 
form or  floor  under  the  ladder,  and  no  lights  or  guards  irere 
placed  there  to  warn  the  workmen  of  the  change  and  danger  in 
descending  the  ladder.    '**'^  On  his  return  from  work  plaintiff 
was  required  to  descend  this  ladder,  and  was  in  ignorance  of  the 
changed  condition  of  the  platform  below.    He  quit  work  as 
usual  and  descended  the  ladder  with  his  tools  in  his  arms,  exer- 
cising, so  far  as  appears,  due  care.    The  place  where  the  ladder 
stood  was  dark.    As  he  stepped  from  the  last  rung  of  the  ladder 
to  a  point  below,  where  he  had  been  accustomed  to  step  to  the 
platform,  he  dropped  into  and  through  the  chute  mentioned, 
which  was  partially  covered  by  the  platform,  about  forty  feet, 
and  received  serious  and  permanent  injuries,  for  which  he  seek3 
to  recover  damages.     The  jury  found  for  the  plaintiff,  and  the 
defendant  appealed. 

Pull  instructions  were  given  to  the  jury  upon  the  issues  in- 
volved, among  others  being  the  following,  to  which  defendant 


search,  1902.]    Downey  v.  Gemini  Min.  Co.  801 


:cepted :  'TToii  are  instructed  that  it  was  the  duty  of  the  de- 
fendant company  to  keep  the  premises  about  which  the  plain- 
i;i:ff  was  employed  in  a  reasonably  safe  condition;  that  is  tq  say^ 
iix  each  a  condition  as  the  premises  would  have  been  kept  by  a 
person  of  ordinary  prudence  under  the  same  circumstances,  con- 
sidering the  nature  of  the  work  to  be  accomplished/*  It  is  in- 
eisted  that  this  instruction  does  not  limit  the  jury  to  a  consid- 
eration of  the  condition  of  the  means  of  ingress  and  egress  to 
tbe  place  of  employment  in  the  mine,  as  charged  in  the  com- 
plaint. The  proceedings  show  that  the  only  inquiry  concerning 
tlie  defective  condition  of  the  mine  was  with  reference  to  its 
condition  down  and  at  the  foot  of  the  ladder  and  the  platform 
through  a  hole  in  which  plaintiff  fell.  The  condition  of  the 
platform  and  ladder  were  sufficiently  and  specifically  referred 
to  by  the  court  in  the  statement  of  the  case  and  charge  to  the 
jury,  and  the  inquiry  was  directed  to  that  condition  and  to  no 
other  part  of  the  mine  except  where  the  injury  is  alleged  to 
have  occurred.  The  law  was  properly  presented  in  this  and 
other  instructions  given  in  connection  therewith  on  that  sub- 
ject. 

It  is  also  insisted  that  the  court  erred  in  refusing  to  give 
^^^  the  following  request:  "Defendant  is  not  obliged  to  make 
every  place  where  plaintiff  might  elect  to  go  reasonably  safe, 
nor  was  it  obliged  to  anticipate  that  he  would  leave  his  place 
of  work  by  any  other  than  the  usual  way,  or  that  he  intended 
to  put  his  tools  in  any  particular  place,  and  therefore,  if  you 
find  that  plaintiff,  upon  reaching  the  foot  of  the  ladder,  started 
to  go  in  any  other  or  different  direction  from  that  usually 
traveled  by  workmen  leaving  that  portion  of  the  stope  from 
which  plaintiff  was  returning  at  the  time  of  the  accident,  then, 
in  that  case,  he  must  be  held  to  have  assumed  the  risk  and  all 
dangers  incident  to  such  acts,  and  cannot  recover  in  this  ac- 
tion, and  your  verdict  must,  therefore,  be  for  the  defendant."' 
If  any  evidence  was  given  in  the  case  upon  which  this  request 
could  be  predicated,  it  would  have  been  proper,  provided  the 
court  did  not  otherwise  cover  the  question  in  its  charge  to  the 
jury.  This  is  so  because  each  party  ia  entitled  to  have  in- 
structions given  based  upon  his  theory  of  the  case,  if  there  is 
any  evidence  to  support  it :  Buckley  v.  Silverbcrg,  113  Cal.  673, 
45  Pac.  804;  Last  Chance  Milling  Co.  v.  Ames,  23  Colo.  167, 
47  Pac.  382.  But  counsel  have  failed  to  point  out  any  evi- 
dence upon  which  this  request  to  charge  could  be  based,  and  wo 
are  unable  to  discover  any  such  testimony  in  the  record.    The 

Am.  St  Rep.,  Vol.  »1— 51 


802  American  State  Eeports,  Vol.  91.  [Utah, 

plaintiff  descended  the  ladder  with  his  face  to  it,  and  when  he 
stepped  off  from  the  last  rung  he  fell  into  the  hole  left  in 
the  platform  by  the  foreman.  It  does  not  appear  that  he 
started  to  go  anywhere  else  than  down  the  ladder.  He  took 
but  one  step  from  the  ladder,  and  that  step  let  him  into  the 
hole  left  by  the  foreman  in  removing  part  of  the  platform.  We 
find  no  merit  in  this  exception. 

It  is  also  claimed  that  the  language  used  in  the  instmction 
given  to  the  effect  that  it  was  the  duty  of  the  defendant  to 
keep  the  premises  about  which  the  plaintiff  was  employed  in 
a  reasonably  safe  condition — that  is  to  say,  in  such  a  condition 
as  the  premises  would  have  been  kept  by  a  person  of  ordinary 
prudence  under  the  same  circumstances,  ^^'^  considering  the 
nature  of  the  work  to  be  performed — was  erroneous.    Defend- 
ant insists  that  the  words  "skilled  in  the  business"  should  have 
been  used  after  the  words  ''person»  of  ordinary  prudence,* 
and  that  the  jury  should  have  been  told  to  view  the  matter  from 
a  standpoint  of  an  Ordinarily  prudent  person,  skilled  in  the 
business.     In  connection  with  this  instruction   the   jury    were 
also  told  that  "the  defendant  was  under  no  obligation  to  keep 
the  plaintiff  absolutely  safe  and  free  from  danger,  nor  to  in- 
sure the  plaintiff  against  accident.    Its  duty,  to  express  it 
tersely,  was  to  use  ordinary  care  to  secure  the  plaintiff's  safety. 
Ordinary  care,  you  are  instructed,  is  the  care  that  is  ordinarily 
exercised  by  persons  of  average  prudence  under  the  same  or 
similar  circumstances.    Just  what  that  degree  of  care  is,  or 
would  be,  is  for  the  jury   to  determine.    Having   determined 
what,  under  the  circumstances,  woidd  have  been  ordinary  care, 
it  is  for  you  to  say  whether  such  care  was  exercised  by  the 
defendant  about  the  premises  in  question.*'    This  instruction 
referred  to  is  to  be  taken  in  connection  with  the  former.    The 
care  to  be  exercised  was  such  as  is  ordinarily  exercised  by 
mine  owners  and  persons  of  ordinary  prudence  under  the  same 
circumstances.     If  the  defendant  exercised  such  care  as  an  or- 
dinarily prudent  person  or  mine  owner  would  have  done  under 
the  same  or  similar  circumstances,  then  it  exercised  ordinary 
care.     The  place  of  the  injury  was  at  the  foot  of  the  ladder 
constructed  for  the  miners  to  ascend  and  descend  to  and  from 
their  labor.    The  subject  discussed  was  that  of  the  defective 
condition  of  the  platform,  and  of  an  injury  occurring  to  plain- 
tiff at  that  place  in  the  mine,  and  the  question  was  what  an 
ordinarily  prudent  man  or  mine  owner  would  have  done  under 
the  same  or  similar  circumstances.    The  jury  coiild  make  no 


March,  1902.]      Downey  v.  Gemini  Min.  Co.  80$ 

mistake  in  applying  the  instructions  to  the  facts  in  evidence, 
and  the  care  required  of  the  defendant  under  such  circum- 
stances at  the  time  and  place  named.    The  business  of  an  or- 
dinary miner  performing  services  like  those  performed  by  the 
plaintiff  *^®  does  not  require  the  exercise  of  that  high  degree- 
of  care,  skill,  and  workmanship  as  might  be  demanded  in  cer- 
tain kinds  of  dangerous  employments,  where  a  high  degree  of 
care  and  skill  is  to  be  exercised  to  prevent  injury;  and  while, 
in  the  former  case,  ordinary  care  is  required  to  be  exercised 
on  the  part  of  the  employ6,  no  greater  degree  of  care  is  to  be 
required  of  the  master  in  this  case  than  that  he  should  have 
kept  the  premises,  ladder,  and  platform,  about  which  the  plain- 
tiff was  employed,  in  a  reasonably  safe  condition — in  such  a 
condition  as  the  premises  would  ordinarily  be  kept  by  miners 
of  ordinary  prudence,  under  the  same  circumstances,  consid- 
ering the  nature  of  the  work  to  be  performed.     Ordinary  care 
simply  implies  and  includes  the  exercise   of    such   reasonable 
diligence,  care,  skill,  watchfulness,  and  forethought  as,  under 
all  the  circumstances  of  the  particular  service,  a  careful,  pru- 
dent man  or  officer  of  a  corporation  would  exercise  under  the 
same  or  similar  circumstances.    And  by  the  term  ''same  cir- 
cumstances'' is  meant  to  include  aU  the  circumstances  of  time, 
place,  and  attendant  conditions.    As   said   in    Jungnitsch    r. 
Michigan  Iron  Co.,  105  Mich.  271,  63  N.  W.  296:  "The  re- 
duction of  danger  to  a  minimum  requires  the  exercise  of  the 
highest  degree  of  care  attainable,  and  the  law  imposes  no  such 
duty  upon  the  employer,  but  only  the  exercise  of  that  reason* 
able  care  which  the  ordinarily  prudent  and  careful  man  exer- 
cises in  like  or  similar  work*' :  Wabash  R.  R.  Co.  v.  McDaniels, 
107  U.  S.  454,  2  Sup.  Ct.  Rep.  932;  16  Am.  &  Eng.  Ency.  of 
Law,  Ist  ed.,  403.    Like  instructions  to  that  given  in  this  case 
have  stood  the  judicial  test  for  years,  and  we  do  not  consider 
it  advisable,  in  such  a  case  as  this,  to  modify  the  rule  on  that 
subject. 

Exception  is  also  taken  to  the  refusal  of  the  court  to  give 
defendant's  request  No.  12,  on  the  subject  of  the  exefcise  of 
reasonable  care  on  the  part  of  the  plaintiff,  and  that  he  should 
not  have  walked  blindly  into  danger  and  seek  to  hold  defend- 
ant liable  therefor,  and  also  in  failing  to  **®  give  defend- 
ant's eighteenth  request,  as  follows:  "If  you  believe  from  the 
evidence  that  the  ladder  on  which  Downey  went  down  just 
previous  to  his  injury  was  loose  and  had  been  loose  to  his  knowl- 
edge for  some  time  prior  thereto,  then  it  was  plaintiff's  duty 


804  American  State  Bbpobts,  Vol.  91.  [Utah, 

at  the  time  in  question  to  use  more  care  in  descending  the  lad- 
der in  question  than  if  the  same  were  permanently  fastened.* 
We  find  no  evidence  to  justify  the  giving  of  the  twelfth  re- 
quest.   The  testimony  t^ids  to  show  that  the  master  created 
the  danger  and  failed  to  give  warning  of  its  existence  to  tiie 
plaintiff.     Plaintiff  was  allowed,  virithout  warning,  and  while 
in  the  exercise  of  due  care^  to  descend  from  the  ladder  and  to 
fall  into  a  hole  negligently  left  by  the  master.     The  master 
had  knowledge.    The  servant  had  no  knowledge  of  the  exist- 
ence of  the  hole  in  the  platform.    Darkness  prevented  him 
from  seeing  that  a  pitfall  had  been  dug  beneath  the  ladder  since 
he  had  last  used  it.     Under  such  circumstances  the  servant  ought 
not  to  be  held  negligent  and  the  master  blameless.     It  may  be 
said  that  it  is  not  contributory  negligence  not  to  look  oat  for 
danger  when  there  is  no  reason  to  apprehend  any.     This  is  a 
sound  rule  of  law.    That  all  men  will^  under  ordinary  circum- 
stances, act  with  due  care  may  be  considered  a  presumption 
of  law.    But  no  one  is  authorized  to  rdy  upon  this  presump- 
tion if  circumstances  arise  which  would  convince  a  reasonable 
man,  under  the  circumstances,  that  such  care  was  not  being 
exercised:  Beach  on  Contributory  Negligence,  3d  ed.,  sec  3& 
The  court  gave  full  instructions  on  this  subject  of  the  assumed 
risk  and  care  for  the  servant's  own  safety,  which  fully  covered 
the  above  request.    The  question  raised  by  the  eighteenth  re- 
quest, as  to  whether  the  ladder  was  permanently  fastened,  and 
whether  the  plaintiff  should  have  used  more  care  if  it  were  not 
so  fastened,  was  not  material  or  important,  as  no  injury  is 
claimed  or  traced  to  the  fact  that  the  ladder  was  movable.    The 
charge  of  the  court  sufficiently  covered  the  issue  as  follows: 
"The  defendant  has  pleaded  that  the  plaintiff  assumed  *•• 
the  risk  of  being  injured  by  the  accident  in  question.    Upon 
this  point  I  charge  you  that  if  you  believe  from  the  evidence 
that  the  peril  of  falling  into  the  chute  or  excavation  referred 
to  in  the  evidence  was  a  peril  incident  to  the  employment,  and 
was  not  produced  by  a  want  of  ordinary  care  on  the  part  of 
the  defendant,  then  it  is  a  risk  assumed  by  the  plaintiff,  and 
he  cannot  recover.    But  if  you  believe  from  the  evidence  that 
the  danger  of  suffering  such  an  accident  was  not  incident  to 
his  employment,  and  could  have  been  guarded  against  by  the 
exercise  of  ordinary  care  on  the  part  of  the  defendant,  then 
plaintiff  did  not  assume  the  risk  of  such  an  accident,  and  if  he 
was  injured  virithout  fault  on  bis  part  he  is  entitled  to  recover." 
It  is  alleged  that  the  court  erred  in  neglecting  to  define  the 


March,  1902.]     Downbt  v.  Gemini  Min.  Co.  805 

word  ''negligence/*  or  to  give  the  defendant's  request  on  that 
6TibJ€c;t.    It  is  true  that  the  court,  if  requested,  should  give 
instructions  upon  any  point  of  law  relevant  to  the  issues  in- 
volved in  the  case  before  it.     In  doing  so  the  court  may  not 
necessarily  adopt  the  instructions  requested  in  the  language 
of  counsel,  but  may  cover  the  question  in  his  own  charge  to  the 
jury.      The  technical  definition  of  negligence  was  not  given, 
yet  the  court,  in  its  general  instructions,  stated  what  the  issues 
were,  and  that  the  action  was  brought  to  recover  damages  for 
negligently,  and  in  the  absence  of  reasonable  care,  leaving  un- 
covered the  chute  or  excavation  at  the  foot  of  the  ladder.    The 
negligence  referred  to  was  the  leaving  of  a  hole  in  the  wooden 
platform  under  the  ladder,  and  in  failing  to  warn  the  plaintiff 
of  its  existence.    The  question  of  negligence  and  contributory 
negligence,  and  the  duty  of  each    party,  under    the    circum- 
stances, was  fully  discussed  and  explained  as  bearing  upon  the 
plaintiff's  right  of  recovery  or  nonrecovery.    The  court  recited 
the  charge  as  contained   in  the  complaint,  and   charged    the 
jury,  among  other  things,  that  "negligence  on  the  part  of  the 
defendant  is  not  presumed.     It  is  an  affirmative  fact,  which 
plaintiff  must  prove  by  a  preponderance  ***  of  the  evidence, 
and  the  negligent  act  or  acts  proved,  if  any,  must  be  such  par- 
ticular acts  as  are  alleged  in  the  plaintiff's  complaint.     The 
burden  of  proof  is  on  the  plaintiff,  and  if  you  find  that  the  evi- 
dence bearing  on  the  question  of  negligence  on  the  part  of 
the  defendant  is  evenly  balanced,  or  that  it  preponderates  in 
favor  of  the  defendant,  then,  in  that  case,  the  plaintiff  cannot 
recover,  and  your  verdict  must  be  for  the  defendant — ^no  cause 
of  action."    The  jury  were  also  told  that  the  defendant  was 
tinder  no  obligation  to  keep  the  plaintiff  absolutely  safe  and 
free  from  danger,  nor  to  insure  the  plaintiff  against  accident; 
that  its  duty  was  to  use  ordinary  care  to  secure  his  safety ;  that 
ordinary  care  is  that  care  ordinarily  exercised  by  persons  of 
average  prudence  under  the  same  or  similar  circumstances;  the 
degree  of  care  that  is  to  be  used  is  for  the  jury  to  determine. 
Negligence  has  been  defined  to  be  the  failure  to  observe,  for  the 
protection  of  another's  interests  and  safety,  such  care,  pre- 
caution,  and  vigilance  as  the  circumstances   justly  demand, 
and  the  want  of  which  causes  him  injury.     While    it    would 
have  been  more  in  accordance  with  the  established  rules  of 
procedure  to  have  given  a  request  defining  the  technical  mean- 
ing of  the  word  "negligence,"  yet  the  instructions  as  a  whole 


798  American  State  Bbports^  Vol.  91.  [UU:* . 

party  or  another  class  of  citizens  does  so  at  the  peril  of  beir:: 
mulct  in  an  attorney's  fee  if  an  honest,  but  unsuccessful,  dt- 
fenfie  should  be  imposed?  A  statute  that  imposes  this  restric- 
tion upon  one  citizen  or  class  of  citizens,  only,  denies  to  him  or 
***  them  the  equal  protection  of  the  law.  It  is  true  that  no 
provision  of  the  constitution  of  1851  declares  in  express  and 
direct  terms  that  this  mav  not  be  done,  but  nevertheless  it  tIo- 
lates  the  fundamental  principles  upon  which  our  government 
rests,  as  they  are  enunciated  and  declared  by  that  instrument 
in  the  bill  of  rights.  The  first  section  of  the  constitution,  de- 
clares that  the  right  to  acquire,  possess,  and  protect  property  is 
inalienable;  and  the  next  section  declares,  among  other  thing?, 
that  'government  is  instituted  for  the  equal  protection  and  ben- 
efit* of  every  person."  In  the  declaration  of  rights  in  our  con- 
stitution (article  1,  section  2)  it  is  declared  that  *'all  political 
power  is  inherent  in  the  people;  and  all  free  governments  are 
founded  on  their  authority  for  their  equal  protection  and  ben- 
efit.'* Article  6,  section  26,  subdivision  18,  provides  that  **in 
all  cases  where  a  general  law  can  be  applicablet,  no  special  law 
shall  be  enacted.*' 
The  decree  is  aflSrmed,  with  costs. 

Miner,  C.  J.,  and  Bartch,  J.,  concur. 


The  C(m8titutionaUty  of  8tatutc$  allowing  attomeyt'  fees  to  ecrtaia 
elasses  of  litigants  is  considered  in  the  monographle  note  to  Dell  t. 
Ifarvin,  79  Am.  St.  Bep.  178-186. 


DOWNEY  V.  GEMINI  MINING  COMPANY. 

[24  Utah,  431,  68  Pae.  414.] 

MA8TEB  AND  8EBVANT— Condition  of  Premises.— An  ia- 

stmction  that  it  is  the  duty  of  the  master  to  keep  the  premises  about 
which  the  servant  is  employed  in  as  reasonably  safe  condition  as  they 
would  have  been  kept  by  a  person  of  ordinary  prudence  under  the 
same  circumstances,  considering  the  nature  of  the  work  to  be  aceom- 
plishedy  presents  a  correct  proposition  of  law,  without  limiting  tbe 
jury  to  a  consideration  of  the  condition  of  the  premises  at  the  Terr 
place  where  the  accident  happened  to  the  servant  and  the  injury  wts 
received,  especially  when  the  inquiry  has  not  been  to  any  other  part 
of  the  premise&     (p.  801.) 

TBIAIfc— Instructions  need  not  be  given  when   there  is  mo 
evidence  upon  which  to  base  theuL     (p.  801.) 


March,  1902.]    Downey  v.  Gemini  Min.  Co,  799 

liASTEB  AKD  SEBVANT— Condition  of  Premises.— An  in- 
atmction  that  it  is  the  duty  of  the  master  to  keep  the  premises 
about  which  the  servant  is  employed  in  as  reasonably  safe  condition 
as  they  would  be  k^t  by  a  person  of  ordinary  prudence  under  the 
same  circumstances,  considering  the  nature  of  the  work  to  be  per- 
formed, states  a  correct  proposition  of  law,  without  the  addition  of 
the  words  ''skilled  in  the  business"  after  the  words  "person  of  ordi- 
nary prudence."     (p.  802.) 

MASTEB  AND  SEBVANT.—Ordinary  Care  as  between  mas- 
ter and  servant  simply  implies  and  includes  the  exercise  of  such 
reasonable  diligence,  care,  skill,  watchfulness,  and  forethought  as, 
under  all  of  the  circumstances  of  the  particular  service,  a  careful, 
prudent  man  or  officer  of  a  corporation  would  exercise  under  the 
Bfime  or  similar  circumstances.  By  the  term  "similar  circumstances" 
i.^  me^nt  to  include  all  the  circumstances  of  time,  place  and  attendant 
conditiona     (p.  803.) 

MASTEB  AND  SEBVANT.— If  a  Master  Creates  a  Dangerous 
Place  on  his  premises  unknown  to  the  servant,  and  fails  to  warn  him 
thereof,  the  servant,  who  is  injured  by  venturing  into  such  dangerous 
place  while  in  the  exercise  of  ordinary  care,  is  not  guilty  of  con- 
tributory negligence,     (p.  804.) 

NEOUOENCE— Contribntory.— It  is  not  contributory  negli- 
{^ence  not  to  look  out  for  danger  when  there  is  no  reason  to  apprehend 
any.     (p.  804.) 

EVIDENCE— Presumption  of  Ordinary  Care.— It  is  presumed 
that  all  men  will,  under  ordinary  circumstances,  act  with  due  care, 
but  this  presumption  is  not  indulged  if  circumstances  arise  such 
SB  should  convince  a  reasonable  man  that  such  care  was  not  being  ex- 
ercised,    (p.  804.) 

MASTEB  AND  SEBVANT— NegUgence— Bisk  Assumed.— If 
the  danger  causing  the  accident  is  a  peril  incident  to  the  employment, 
and  the  injury  is  not  caused  by  a  want  of  ordinary  care  on  the 
part  of  the  master,  then  it  is  a  risk  assumed  by  the  servant,  and 
he  cannot  recover,  but  if  the  contrary  state  of  facts  is  true,  he  is 
IS  entitled  to  recover  if  he  is  injured  without  fault  on  his  part, 
(p.  805.) 

NEGLIGENCE,  Failure  to  Define.— In  an  action  to  recover 
for  personal  injury  to  a  servant,  a  failure  to  specifically  define 
negligence  in  an  instruction  is  not  error  when  the  instructions  as 
a  whole  must  have  conveyed  to  the  jury  the  meaning  of  the  term, 
(p.  805.) 

NEGLIGENCE  is  Failure  to  Observe,  for  the  protection  of 
another's  interests  and  safety,  such  care,  precaution,  and  vigilance  as 
the  circumstances  justly  demand,  and  the  want  of  which  causes  him 
injury,     (p.  805.) 

MASTEB  AND  SEBVANT.— Presmnptlon  of  Negligence  on  the 
part  of  the  master  does  not  arise  from  the  mere  happening  of  an  accl* 
dent  to  his  servant.  Negligence  is  not  presumed,  but  is  an  affirm- 
ative fact,  which  must  be  proved  by  a  preponderance  of  the  evidence. 
(p.  806.) 

MASTEB  AND  SEBVANT— Dnty  as  to  Condition  of  Prem- 
ises.—A  servant  in  his  employment  has  a  right  to  assume  that 
the  master  will  conduct  his  business  as  respects  the  servant's  safety 
with  ordinary  prudence  and  care,  and  that  if  he  makes  the  place 
where  he  is  employed  or  is  required  to  pass  to  his  work  dangerous 
and  unsafe,  which  was  before  reasonably  safe,  and  the  servant  has 
no  knowledge  or  duty  to  know  of  the  changed  conditions^  that  the 


800  American  State  Sbpobts>  Vol.  91.  [Utalv 

master  will  warn  him  of  sneh  danger  in  time  to  prevent  his  iajiiry. 
Failing  in  this,  the  master  must  respond  in  damages  to  the  servaat 
injured  while  exercising  due  care.     (pp.  806,  807.) 

MASTER  AND  SEBVANT— P^ow-servants.— An  ordlnaiy 
day  laborer  in  a  mine  and  the  foreman  thereof  are  not  f eUow-serranta 
(p.  807.) 

Eawlins,  Thurman,  Hurd  &  Wedgwood,  Brown  &  Hendff- 
son,  and  Bennett,  Sutherland,  Van  Cott  &  Allison,  for  the  ap- 
pellant. 

Powers,  Straup  &  Lippman,  for  the  respondent 

^^  MINER,  C.  J.    The  plaintiff  was  an  experienced  miner 
in  the  employ  of  the  defendant  company  in  July,  1900,  and 
gave  testimony  tending  to  show  that  at  the  time  in  question  he 
was  working  on  the  fifteen  hundred  and  fifty-foot  leveL    The 
only  way  for  him  to  reach  and  return  from  the  place  of  his  em- 
plojrment  was  by  climbing  and  descending  a  seven-foot  ladder, 
the  foot  of  which  rested  upon  planks  placed  upon  timbers,  and 
the  top  thereof  resting  against  the  side  of  the  wall.    At  the  time 
of  the  injury  complained  of  the  plaintiff  ascended  tiiis  ladder 
as  usual  at  1  o^clock  P.  M.    At  this  time  the  planks  or  platfonn 
at  the  foot  of  the  ladder  were  all  in  place  and  nailed  down,  as 
had  been  the  case  for  about  one  month.    After  plaintiff  had 
ascended  the  ladder  to  his  work  in  the  stope  above,  the  foreman 
of  the  mine,  without  plaintiff's  knowledge,  took  up  the  plank 
flooring  at  the  foot  of  the  ladder,  and  left  a  hole  in  the  platform. 
Beneath  this  hole  and  platform  was  a  chute  forty  feet  in  dq)th. 
No  warning  was  given  to  the  plaintiff  of  this  change  in  the  plat- 
form or  floor  under  the  ladder,  and  no  lights  or  guards  were 
placed  there  to  warn  the  workmen  of  the  change  and  danger  in 
descending  the  ladder.    ^^^  On  his  return  from  work  plaintiff 
was  required  to  descend  this  ladder,  and  was  in  ignorance  of  tbe 
changed  condition  of  the  platform  below.    He  quit  work  as 
usual  and  descended  the  ladder  with  his  tools  in  his  arms,  exer- 
cising, so  far  as  appears,  due  care.    The  place  where  the  ladder 
stood  was  dark.    As  he  stepped  from  the  last  rung  of  the  ladder 
to  a  point  below,  where  he  had  been  accustomed  to  step  to  the 
platform,  he  dropped  into  and  through  the  chute  mentioned, 
which  was  partially  covered  by  the  platform,  about  forty  feet, 
and  received  serious  and  permanent  injuries,  for  which  he  seeks 
to  recover  damages.     The  jury  found  for  the  plaintiff^  and  the 
defendant  appealed. 

Full  instructions  were  given  to  the  jury  upon  the  issues  in- 
Tolved,  among  others  being  the  following,  to  which  defendant 


March,  1902.]    Downey  v.  Gemini  Min.  Co.  801 

excepted :  'TTou  are  instructed  that  it  was  the  duty  of  the  de- 
fendant company  to  keep  the  premises  about  which  the  plain- 
tiff was  employed  in  a  reasonably  safe  condition;  that  is  tq  say, 
in  such  a  condition  as  the  premises  would  have  been  kept  by  a 
person  of  ordinary  prudence  under  the  same  circumstances,  con- 
sidering the  nature  of  the  work  to  be  accomplished/^    It  is  in- 
sisted that  this  instruction  does  not  limit  the  jury  to  a  consid- 
eration of  the  condition  of  the  means  of  ingress  and  egress  to 
tlie  place  of  employment  in  the  mine,  as  charged  in  the  com- 
plaint.    The  proceedings  show  that  the  only  inquiry  concerning 
tlie  defective  condition  of  the  mine  was  with  reference  to  its 
condition  down  and  at  the  foot  of  the  ladder  and  the  platform 
through  a  hole  in  which  plaintiff  fell.     The  condition  of  the 
platform  and  ladder  were  sufficiently  and  specifically  referred 
to  by  the  court  in  the  statement  of  the  case  and  charge  to  the 
jury,  and  the  inquiry  was  directed  to  that  condition  and  to  no 
other  part  of  the  mine  except  where  the  injury  is  alleged  to 
have  occurred.    The  law  was  properly  presented  in  this  and 
other  instructions  given  in  connection  therewith  on  that  sub- 
ject. 

It  is  also  insisted  that  the  court  erred  in  refusing  to  give 
**•  the  following  request:  "Defendant  is  not  obliged  to  make 
every  place  where  plaintiff  might  elect  to  go  reasonably  safe, 
nor  was  it  obliged  to  anticipate  that  he  would  leave  his  place 
of  work  by  any  other  than  the  usual  way,  or  that  he  intended 
to  put  his  tools  in  any  particular  place,  and  therefore,  if  you 
find  that  plaintiff,  upon  reaching  the  foot  of  the  ladder,  started 
to  go  in  any  other  or  different  direction  from  that  usuaDy 
traveled  by  workmen  leaving  that  portion  of  the  stope  from 
which  plaintiff  was  returning  at  the  time  of  the  accident,  then, 
in  that  case,  he  must  be  held  to  have  assumed  the  risk  and  all 
dangers  incident  to  such  acts,  and  cannot  recover  in  this  ac- 
tion, and  your  verdict  must,  therefore,  be  for  the  defendant.'* 
If  any  evidence  was  given  in  the  case  upon  which  this  request 
could  be  predicated,  it  would  have  been  proper,  provided  the 
court  did  not  otherwise  cover  the  question  in  its  charge  to  the 
jury.  This  is  so  because  each  party  is  entitled  to  have  in- 
structions given  based  upon  his  theory  of  the  case,  if  there  is 
any  evidence  to  support  it :  Buckley  v.  Silverberg,  113  Cal.  673, 

46  Pac.  804;  Last  Chance  Milling  Co.  v.  Ames,  23  Colo.  167, 

47  Pac.  382.  But  counsel  have  failed  to  point  out  any  evi- 
dence upon  which  this  request  to  charge  could  be  based,  and  wo 
are  unable  to  discover  any  such  testimony  in  the  record.    The 

Am.  St.  Rep.,  Vol.  W— 51 


802  Ambricax  State  Reports,  Vol.  91.  [Utah, 

plaintiff  descended  the  ladder  with  his  face  to  it,  and  when  he 
stepped  off  from  the  last  rung  he  fell  into  the  hole  left  in 
the  platform  by  the  foreman.  It  does  not  appear  that  he 
started  to  go  anywhere  else  than  down  the  ladder.  He  took 
but  one  step  from  the  ladder,  and  that  step  let  him  into  the 
hole  left  by  the  foreman  in  removing  part  of  the  platform.  We 
find  no  merit  in  this  exception. 

It  is  also  claimed  that  the  language  used  in  the  instruction 
given  to  the  effect  that  it  was  the  duty  of  the  defendant  to 
keep  the  premises  about  which  the  plaintiff  was  employed  in 
a  reasonably  safe  condition — that  is  to  say,  in  such  a  condition 
as  the  premises  would  have  been  kept  by  a  person  of  ordinary 
prudence  under  the  same  circumstances,  ^^  considering  the 
nature  of  the  work  to  be  performed — was  erroneous.    Defend- 
ant insists  that  the  words  "skilled  in  the  business'*  should  have 
been  used  after  the  words  "persons  of  ordinary  prudence,* 
and  that  the  jury  should  have  been  told  to  view  the  matter  from 
a  standpoint  of  an  Ordinarily  prudent  person,  skilled  in  the 
business.     In  connection  with  this  instruction   the   jury    were 
also  told  that  "the  defendant  was  under  no  obligation  to  keep 
the  plaintiff  absolutely  safe  and  free  from  danger,  nor  to  in- 
sure the  plaintiff  against  accident.    Its  duty,  to  express  it 
tersely,  was  to  use  ordinary  care  to  secure  the  plaintiff's  safety. 
Ordinary  care,  you  are  instructed,  is  the  care  that  is  ordinarily 
exercised  by  persons  of  average  prudence  under  the  same  or 
similar  circumstances.    Just  what  that  degree  of  care  is,  or 
would  bo,  is  for  the  jury   to  determine.     Having   determined 
what,  nnder  the  circumstances,  would  have  been  ordinary  care, 
it  is  for  you  to  say  whether  »uch  care  was  exercised  by  the 
defendant  about  the  premises  in  question."    This  instruction 
referred  to  is  to  be  taken  in  connection  with  l^e  former.     The 
care  to  be  exercised  was  such  as  is  ordinarily  exercised  by 
mine  owners  and  persons  of  ordinary  prudence  under  the  same 
circumstances.    If  the  defendant  exercised  such  care  as  an  or- 
dinarily prudent  person  or  mine  owner  would  have  done  under 
the  same  or  similar  circumstances,  then  it  exercised  ordinary 
care.    The  place  of  the  injury  was  at  the  foot  of  the  ladder 
constructed  for  the  miners  to  ascend  and  descend  to  and  from 
their  labor.    The  subject  discussed  was  that  of  the  defective 
condition  of  the  platform,  and  of  an  injury  occurring  to  plain* 
tiff  at  that  place  in  the  mine,  and  the  question  was  what  an 
ordinarily  prudent  man  or  mine  owner  would  have  done  xmdcr 
the  same  or  similar  circumstances.    The  jury  could  make  no 


March,  1902.]      Downey  v.  Gemini  Min.  Co.  803 

mistake  in  applying  the  instructions  to  the  facts  in  evidence, 
and  the  care  required  of  the  defendant  under  such  circum- 
stances at  the  time  and  place  named.    The  business  of  an  or- 
dinary miner  performing  services  like  those  performed  by  the 
plaintiff  *^®  does  not  require  the  exercise  of  that  high  degree 
of  care,  skill,  and  workmanship  as  might  be  demanded  in  cer- 
tain kinds  of  dangerous  employments,  where  a  high  degree  of 
care  and  skill  is  to  be  exercised  to  prevent  injury;  and  while,. 
in  the  former  case,  ordinary  care  is  required  to  be  exercised 
on  the  part  of  the  employ^,  no  greater  degree  of  care  is  to  be 
required  of  the  master  in  this  case  than  tliat  he  should  have 
kept  the  premises,  ladder,  and  platform,  about  which  the  plain- 
tiflE  was  employed,  in  a  reasonably  safe  condition — in  such  a 
condition  as  the  premises  would  ordinarily  be  kept  by  miners 
of  ordinary  prudence,  under  the  same  circumstances,  consid- 
ering the  nature  of  the  work  to  be  performed.     Ordinary  care 
simply  implies  and  includes  the  exercise   of   such   reasonable 
diligence,  care,  skill,  watchfulness,  and  forethought  as,  under 
all  the  circumstances  of  the  particular  service,  a  careful,  pru- 
dent man  or  oflBcer  of  a  corporation  would  exercise  under  the 
same  or  similar  circumstances.    And  by  the  term  ''same  cir- 
cumstances'' is  meant  to  include  aU  the  circumstances  of  time, 
place,  and  attendant  conditions.    As   said   in   Jungnitsch    r. 
Michigan  Iron  Co.,  105  Mich.  271,  63  K  W.  296:  "The  re- 
duction of  danger  to  a  minimum  requires  the  exercise  of  the 
highest  degree  of  care  attainable,  and  the  law  imposes  no  such 
duty  upon  the  employer,  but  only  the  exercise  of  that  reason- 
able care  which  the  ordinarily  prudent  and  careful  man  exer- 
cises in  like  or  similar  work** :  Wabash  R.  R.  Co.  v.  McDaniels, 
107  TJ.  S.  454,  2  Sup.  Ct.  Rep.  932 ;  16  Am.  &  Eng.  Ency.  of 
Law,  Ist  ed.,  403.    Like  instructions  to  that  given  in  this  case 
have  stood  the  judicial  test  for  years,  and  we  do  not  consider 
it  advisable,  in  such  a  case  as  this,  to  modify  the  rule  on  that 
subject. 

Exception  is  also  taken  to  the  refusal  of  the  court  to  give 
defendant's  request  No.  12,  on  the  subject  of  the  exefcise  of 
reasonable  care  on  the  part  of  the  plaintiff,  and  that  he  should 
not  have  walked  blindly  into  danger  and  seek  to  hold  defend- 
ant liable  therefor,  and  also  in  failing  to  ^^*  give  defend- 
ant's eighteenth  request,  as  follows:  "If  you  believe  from  the 
evidence  that  the  ladder  on  which  Downey  went  down  just 
prerious  to  his  injury  was  loose  and  had  been  loose  to  his  knowl- 
edge for  some  time  prior  thereto,  then  it  was  plaintiff's  duty 


804  Ambbican  State  Bbpobts^  Vol.  91.  [Utah, 

at  the  time  in  question  to  use  more  care  in  descending  the  lad- 
der in  question  than  if  the  same  were  permanently  faatened.** 
We  find  no  evidence  to  justify  the  giving  of  the  twelfth  re- 
quest.   The  testimony  tends  to  show  that  the  master  created 
the  danger  and  failed  to  give  warning  of  its  existence  to  the 
plaintiff.    Plaintiff  was  allowed,  without  warning,  and  while 
in  the  exercise  of  due  care,  to  descend  from  the  ladder  and  to 
fall  into  a  hole  negligently  left  by  the  master.     The  master 
had  knowledge.    The  aervant  had  no  knowledge  of  the  exist- 
ence of  the  hole  in  the  platform.    Darkness  prevented  him 
from  seeing  that  a  pitfall  had  been  dug  beneath  the  ladder  since 
he  had  last  used  it.     Under  such  circumstances  the  servant  ought 
not  to  be  held  negligent  and  the  master  blameless.    It  may  be 
eaid  that  it  is  not  contributory  negligence  not  to  look  oat  for 
danger  when  there  is  no  reason  to  apprehend  any.     This  is  a 
sound  rule  of  law.    That  all  men  wiU,  under  ordinary  circum- 
stances, act  with  due  care  may  be  considered  a  presumption 
of  law.    But  no  one  is  authorized  to  rely  upon  this  presump- 
tion if  circumstances  arise  which  woidd  convince  a  reasonable 
man,  under  the  circumstances,  that  euch  care  was  not  being 
exercised:  Beach  on  Contributory  Negligence,  dd  ed.,  sea  38. 
*rhe  court  gave  full  instructions  on  this  subject  of  the  assumed 
risk  and  care  for  the  servant^s  own  safety,  which  fully  covered 
the  above  request.    The  question  raised  by  the  eighteenth  re- 
quest, as  to  whether  the  ladder  was  permanently  fastened,  and 
whether  the  plaintiff  should  have  used  more  care  if  it  were  not 
so  fastened,  was  not  material  or  important,  as  no  injury  is 
claimed  or  traced  to  the  fact  that  the  ladder  was  movable.    The 
charge  of  the  court  sufficiently  covered  the  issue  as  follows: 
"The  defendant  has  pleaded  that  the  plaintiff  assumed  *•• 
the  risk  of  being  injured  by  the  accident  in  question.    Upon 
this  point  I  charge  you  that  if  you  believe  from  the  evidence 
that  the  peril  of  falling  into  the  chute  or  excavation  referred 
to  in  the  evidence  was  a  peril  incident  to  the  employment,  and 
was  not  produced  by  a  want  of  ordinary  care  on  the  part  of 
the  defendant,  then  it  is  a  risk  assumed  by  the  plaintiff,  and 
he  cannot  recover.    But  if  you  believe  from  the  evidence  that 
the  danger  of  suffering  such  an  accident  was  not  incident  to 
his  employment,  and  could  have  been  guarded  against  by  the 
exercise  of  ordinary  care  on  the  part  of  the  defendant,  then 
plaintiff  did  not  assume  the  risk  of  such  an  accident,  and  if  he 
was  injured  without  fault  on  his  part  he  is  entitled  to  recover.'' 
It  is  alleged  that  the  court  erred  in  neglecting  to  define  the 


March,  1902.]     Downby  v.  Gemini  Min.  Co.  805 

irord  "negligence/*  or  to  give  the  defendant's  request  on  that 
snbjeqt.    It  is  true  that  the  court,  if  requested,  should  give 
instructions  upon  any  point  of  law  relevant  to  the  issues  in- 
volved in  the  case  before  it.    In  doing  so  the  court  may  not 
necessarily  adopt  the  instructions  requested  in  the  language 
of  counsel,  but  may  cover  the  question  in  his  own  charge  to  the 
jury.     The  technical  definition  of  negligence  was  not  given, 
jet  the  court,  in  its  general  instructions,  stated  what  the  issues 
were,  and  that  the  action  was  brought  to  recover  damages  for 
negligently,  and  in  the  absence  of  reasonable  care,  leaving  un- 
covered the  chute  or  excavation  at  the  foot  of  the  ladder.    The 
negligence  referred  to  was  the  leaving  of  a  hole  in  the  wooden 
platform  under  the  ladder,  and  in  failing  to  warn  the  plaintiff 
of  its  existence.    The  question  of  negligence  and  contributory 
negligence,  and  the  duty  of  each    party,  under   the    circum- 
stances, was  fully  discussed  and  explained  as  bearing  upon  the 
plaintiff's  right  of  recovery  or  nonrecovery.    The  court  recited 
the  charge  as  contained   in  the  complaint,  and   charged    the 
jury,  among  other  things,  that  "negligence  on  the  part  of  the 
defendant  is  not  presumed.    It  is  an  affirmative  fact,  which 
plaintiff  must  prove  by  a  preponderance  ***  of  the  evidence, 
and  the  negligent  act  or  acts  proved,  if  any,  must  be  such  par- 
ticular acts  as  are  alleged  in  the  plaintiff's  complaint.    The 
burden  of  proof  is  on  the  plaintiff,  and  if  you  find  that  the  evi- 
dence bearing  on  the  question  of  negligence  on  the  part  of 
the  defendant  is  evenly  balanced,  or  that  it  preponderates  in 
favor  of  the  defendant,  then,  in  that  case,  the  plaintiff  cannot 
recover,  and  your  verdict  must  be  for  the  defendant — ^no  cause 
of  action."    The  jury  were  also  told  that  the  defendant  was 
tinder  no  obligation  to  keep  the  plaintiff  absolutely  safe  and 
free  from  danger,  nor  to  insure  the  plaintiff  against  accident; 
that  its  duty  was  to  use  ordinary  care  to  secure  his  safety ;  that 
ordinary  care  is  that  care  ordinarily  exercised  by  persons  of 
average  prudence  under  the  same  or  similar  circumstances;  the 
degree  of  care  that  is  to  be  used  is  for  the  jury  to  determine. 
Negligence  has  been  defined  to  be  the  failure  to  observe,  for  the 
protection  of  another's  interests  and  safety,  such  care,  pre- 
caution,  and  vigilance  as  the  circumstances  justly   demand, 
and  the  want  of  which  causes  him  injury.     While    it    would 
have  been  more  in  accordance  with  the  established  rules  of 
procedure  to  have  given  a  request  defining  the  technical  mean- 
ing of  the  word  "negligence,"  yet  the  instructions  as  a  whole 


S06  American  Statb  Sbpobts^  Vol.  91.  [TJtali» 


leave  no  serious  question  but  that  the  meaning  of  the  word 
conveyed  to  and  understood  by  the  jury. 

Error  is  also  alleged  because  of  the  refusal  of  the*  oomt 
to  instruct  the  jury  as  follows:  *'If  you  find,  as  a  fact,  that 
an  accident  happened  in  the  mine  of  the  defendant,  and  as  a 
result  thereof  the  plaintiff  was  injured,  this,  in  itedi,  is  no 
proof,  and  raises  no  presumption  of  negligence  on  the  part 
of  the  defendant/*  The  court  instructed  the  jury  that  negli- 
gence on  the  part  of  the  defendant  is  not  presumed;  that  it  was 
an  affirmative  fact  that  the  plaintifE  must  prove  by  a  prepon- 
•derance  of  the  evidence;  that  the  negligent  act  or  acts  proven, 
if  any,  must  be  such  particular  acts  as  are  alleged  in  **^  the 
•complaint ;  and  that  the  burden  of  proof  is  on  the  plaintiff.  This 
instruction  is  a  sufficient  answer  to  the  objection. 

Error  is  assigned  to  the  refusal  of  the  court  to  give  the  fol- 
lowing instruction:  'TVhere  a  mining  company  in  the  prosecu- 
tion of  its  work  in  the  extraction  of  ores  and  putting  in  tim- 
bers and  floors  thereon  for  the  purpose  of  catching  the  ore  as 
it  is  broken  down  and  distributing  it  into  various  chutes,  and 
the  said  floors  and  timbers  are  being  from  time  to  time  changed 
in  order  to  keep  up  with  the  work  and  receive  and  sort  the 
Tfnaterial  broken  down  in  the  further  progress  of  such  work, 
in  such  case  said  floors  and  timbers  and  passageways  are  to 
^be  deemed  the  work  itself,  and  not  the  place  of  woric,  or  the 
means  of  ingress  or  egress,  within  the  rule  requiring  the  master 
to  keep  them  reasonably  safe/'  If  such  a  request  embraced 
the  law  upon  this  subject  in  cases  like  the  one  before  us,  the 
defendant  would  be  relieved  from  any  responsibility  of  using 
reasonable  prudence  and  care  in  the  prosecution  of  its  work, 
and  each  employ^  might  be  .remediless  for  injuries  received  on 
account  of  the  negligence  of  the  master.  Under  it  the  mast» 
eould,  in  the  dark  tunnels  and  excavations  of  the  mine,  where 
employes  were  required  to  pass  in  and  out  to  their  labor,  re- 
move the  usual  known  means  of  ingress  and  egress  or  dig  pit- 
falls in  the  department  or  place  where  the  servants  are  em- 
ployed or  required  to  pass  to  and  from  their  labor,  of  which 
the  employes  would  have  no  information  or  warning,  and  yet 
remain  wholly  irresponsible  for  injuries  to  them  through  such 
negligence,  which  might,  or  could,  have  been  avoided  by  the 
use  of  care  or  the  timely  warning  of  the  danger.  Such  a  doc- 
trine might  be  exceedingly  beneficial  to  the  master  in  avoiding 
liability,  but  could  hardly  be  considered  as  humane  to  the  ser- 
vant.   The  servant  in  his  employment  has  the  right  to  sap- 


March,  1902.]     Downbt  v.  Gbmini  Min.  Ca  807 

pose  that  the  master  will  conduct  his  business  as  respects  the 
servant's  safety  with  ordinary  prudence  and  care^  and  that  if 
he  makes  the  place  where  the  servant  is  employed,  or  is  **• 
required  to  pass  to  his  work,  dangerous  and  unsafe,  which  was 
before  reasonably  safe,  and  is  himself  aware  that  the  servant 
has  no  knowledge  of  the  changed  conditions,  and  it  is  not  the 
duty  of  the  servant  to  know  of  such  changed  conditions,  then 
fhe  master  should  warn  the  servant  of  such  danger  in  time  to 
preTent  the  injury.  In  the  present  case  it  appears  from  the 
testimony  of  the  plaintiff  that  the  master  made  the  platform 
where  the  servant  was  required  to  pass  dangerous  and  unsafe, 
and  gave  no  warning  of  its  condition,  and  thereby  the  servant, 
although  using  due  care,  as  the  jury  found,  was  injured.  We 
are  of  the  opinion  that  the  request  was  properly  refused. 

The  court  correctly  charged  the  jury  that  under  the  facts 
the  question  of  fellow-servant  was  not  in  the  case,  and  that 
whatever  was  done  by  the  foreman  in  the  mine  in  leaving  the 
hole  in  the  platform  was  chargeable  to  the  defendant 

Upon  the  whole  record,  we  find  no  reversible  error.  The 
judgment  of  the  district  court  is  affirmed,  with  costs. 

Baskin  and  Bartch,  JJ.,  concur. 


TJiS  Duty  of  Mine  Oumer$  to  prevent  injury  to  their  employes  is 
exhanstlvely  discussed  in  the  recent  monographic  note  to  Wellston 
Coal  Ck>.  v.  Smith,  S7  Am.  St.  Bep.  657-59§.  A  mine  boss  or  fore- 
man is  a  vice-principal,  and  not  a  fellow-servant  of  other  employee: 
See  the  monographic  note  to  Mast  v.  Eem,  75  Am.  St.  Bep.  626-628. 

Jt  i8  the  Duty  of  a  Master  to  use  reasonable  diligence  ia  seeing 
that  the  place  where  his  servant  is  at  work  is  safe  for  that  purpose, 
and  the  latter  has  a  right  to  assume  that  such  duty  is  discharged: 
Western  Stone  Co.  v.  Muscial,  196  Bl.  882,  89  Am.  St.  Bep.  825,  63 
N.  E.  664;  Illinois  Steel  Co.  v.  McFadden,  196  Dl.  844,  68  N.  E.  671, 
89  Am.  St.  Bep.  319,  and  cases  cited  in  the^  cross-reference  not<^ 
thereto.  And  in  no  case  is  the  necessity  of  this  rule  more  apparent 
than  when  applied  to  the  relation  existing  between  mine  owners  and 
and  their  employes:  See  the  monographic  note  to  WeUstom  Ceal  Co. 
V.  Smith,  87  Am.  St.  Bep.  559. 


808 


American  State  Bbports^  Vol.  91.  [Utah, 


STATE  y.  KING. 

[24  Utah,  482,   68  Pac.   418.] 

OONSTITUTIONAL  LAW—Orlminal  Trials-^AdmissnilUty  of 
Former  Testimony  of  Witness  Since  Deceased  or  Absent.— A  statute 
providing  that  if  the  testimony  of  a  witness  is  taken  down  by 
question  and  answer  on  a  preliminary  examination  before  a  eommit- 
ting  magistrate,  in  the  presence  of  the  defendant,  who  has,  either  in 
person  or  by  counsel,  cross-examined,  or  has  had  an  opportunity  to 
cross-examine,  the  witness,  such  testimony,  or  the  deposition  of  such 
witness,  may  be  read  upon  the  trial  upon  it  being  satisfactorily  shows 
to  the  court  that  he  is  dead  or  insane,  or  cannot,  with  due  diligence, 
be  found  within  the  state,  is  not  in  conflict  with  a  constitutional 
guaranty,  that  the  accused  shall  have  the  right  "to  be  confronted 
by  witnesses  against  him."     (pp.  809,  810.)  ^ 

OBIMINAL  LAW—AdmlssiblUty  of  Testimony  of  Witaeas 
Since  Dead  or  Absent. — If  it  is  shown  that  the  accused  has  cross- 
examined  a  witness,  or  has  had  an  opportunity  of  so  doing  upon  the 
preliminary  examination,  the  testimony  of  such  witness  may  be  read 
at  the  trial,  upon  its  being  shown  to  the  satisfaction  of  the  court, 
that  such  witness  is  dead,  insane,  or  cannot  with  due  diligence  be 
found  fTithin  the  state.  The  admission  of  the  testimony  under  such 
circumstances  is  not  a  matter  of  right  but  rests  In  the  sound  discre- 
tion of  the  trial  court,     (p.  812.) 

HTJBDXUft— Indictment— Evidence  of  Felony.— Under  an  in- 
dictment for  murder  in  the  first  degree  simply  charging  the  offense 
as  willful,  deliberate,  and  premeditated,  any  evidence  is  admissible 
which  tends  to  show  the  facts  of  the  killing,  and  also  that  the  homi- 
cide was  committed  in  the  perpetration  of  a  robbery,  which  by  statute 
is  made  murder  in  the  first  degree.  The  indictment  need  not  speciii- 
(>a11y  allege  that  the  homicide  was  committed  in  the  perpetration 
of  a  robbery  to  admit  proof  of  that  fact.     (pp.  813,  814.) 

APPELLATE  FBACTISE.— General  ExceptlonB  or  eizceptions 
to  a  whole  paragraph  in  the  charge  of  the  court  to  the  jury  are  insuffi- 
cient to  raise  any  question  on  appeal,     (pp.  814,  815.) 

MX7RDEB— Conspiracy  to  Bob.— If  two  persons  are  associated 
together  for  the  purpose  of  robbing  a  person,  who  is  killed  by  one  of 
them,  either  or  both  are  chargeable  with  the  murder,  whether  he  or 
his  companion  fired  the  fatal  shot.     (p.  815.) 

W.  F.  Wanless,  for  the  appellants. 

M.  A.  Breeden,  attorney  general,  and  W.  B.  White,  deputy 
attorney  general,  for  the  state. 


MINER,  C.  J.  The  information  in  this  case  charges, 
in  the  nsual  form,  that  on  the  eleventh  day  of  Sep: ember,  1900, 
in  Salt  Lake  county,  the  defendants  willfuUv,  unlaw '*ullv, 
feloniously,  deliberately,  premeditatedly,  and  of  their  malice 
aforethought,  did  kill  and  murder  Godfrey  Prowse.  Tho  testi- 
mony shows  that  the  defendants  and  a  third  man   unknown 


March,  1902.]  Btatb  «•  Eino.  809 

entered  the  gambling-house  of  the  deceased  in  the  night-time, 
with  their  faces  masked,  and  with  reTolvers  in  their  hands,  and 
there  shot  and  killed  the  deceased.  Their  evident  pnrpose  was 
robhery.  Defendant  Lynch  was  shot  and  wounded  by  Prowse. 
About  thirteen  shots  in  all  were  fired  by  all  parties^  most  of 
them  by  the  three  masked  men.  All  three  masked  men  di- 
rected their  shots  at  Prowse.  Both  defendants  were  identified, 
and  rerolvers  were  fonnd  in  the  alley  near  where  the  shooting 
was  done. 

Paul  Johnson,  an  eyewitness  to  the   shooting,  was   called, 
sworn,  and  examined  by  the  prosecution,  and  was  cross-exam- 
ined by  the  defendants  on  the  preliminary  hearing  before  the 
xnagistrate.    He  was  not  present  at  the  trial,  and  the  prose- 
cation,  nnder  objection,  was  permitted  to  read  his  testimony 
taken  on  such  preliminary  examination  to  the  jury.    This  is 
alleged  as  error.    Section  4513  of  the  Revised  Statutes  of  1898, 
so  far  as  material,  reads  as  follows :  ''In  criminal  prosecutions 
the  defendant  shall  be  entitled:  4.  To  be  confronted  by  the 
witnesses  against  him,  except  that  where  the  charge  has  been 
preliminarily  examined  before   a   committing   magistrate  *** 
and  the  testimony  taken  down  by  question  and  answer,  in  the 
presence  of  the  defendant,  who  has,  either  in  person  or  by 
connsel,  cross-examined,  or  has  had  an  opportunity  to  cross- 
examine,  the  witness,  or  where  the  testimony  of  a  witness  on 
the  part  of  the  state,  who  is  unable  to  give  security  for  his 
appearance,  has  been  taken  conditionally  in  like  manner  in  the 
presence  of  the  defendant,  who  has,  either  in  person    or   by 
counsel,  cross-examined,  or  has  had  an  opportunity  to  cross- 
examine,  the  witness,  the  deposition  of  such  witness  may  be 
read,  upon  it  being  satisfactorily  shown  to  the  court  that  he 
is  dead  or  insane,  or  cannot,  with  due  diligence,  be  found  within 
the  state.''    The  appellants  contend  that  this  statute  is  uncon- 
stitutional, within  the  meaning  of  section  12,  article  1  of  the 
constitution,  which  provides  that  the  accused  shall  have  the 
right  "to  be  confronted  by  witnesses  against  him,"  and  that 
no  sufficient  foundation  was  laid  for  the  introduction  of  the 
testimony  of  the  witness  Johnson.    It  appears  from  the  record 
that  witness  Johnson  was  sworn  and  examined  upon  the  pre- 
liminary hearing  before  the  magistrate,  and  that  the  accused 
and  his  counsel  had  an   opportunity,   and   did   cross-examine 
him.    Mr.  Barrett,  a  person  with  whom  Johnson  was  rooming 
at  the  time,  and  who  was  intimately  acquainted  with  him,  testi- 
fied that  he  did  not  think  Johnson  was  in  the  city;  that  he 


810  Ambbican  State  Bbpobts,  Vol.  9L  [Utah, 

last  saw  him  three  weeks  prior  to  the  time  of  the  trial,  at  wliidi 
time  he  was  rooming  with  the  witness;  that  when  he  left  he 
said  he  was  going  to  Oregon  that  day;  that  he  left  the  dtj 
about  three  weeks  prior,  and  witness  had  not  seen  him  since. 
A  police  officer  testified  that  he  knew  Johnson,  and  served  a 
subpoena  on  him  on  the  twelfth  day  of  October,  to  appear  at 
the  trial  set  for  October  22d.    This  subpoena  was  duly  returned. 
Johnson  said  to  the  policeman^  when  subpoenaed,  that  he  was 
going  away,  but  would  return.    The  witness  stated  that  he  had 
not  seen  him  since.    Mr.  Sheets^  a  police  officer,  testified  that 
he  saw  Johnson  on  the  12th  of  October,  but  had  not  seeii 
him  since;  that  at  that  time  Johnson  said  he  was  going  away 
to  *®®  the  state  of  Oregon,  and  said  he  would  write  a  letter 
back  so  his  address  would  be  known;  that  no  letter  had  been 
received  from  him.    Witness  further  stated  that  Johnson  was 
not  in  the  city.    Johnson's  name  was  called  in  court,  but  he 
did  not  answer.    When    the    case    was    continued  from    the 
twenty-second  to  the  twenty-ninth   day   of   October,  an  order 
was  made  by  the  court  requiring  all  witnesses  to  be  present  in 
court  on  the   29th.    Johnson   was   not  present  in   court  at 
this  time.    A  subpoena  was  duly  issued  for  him,  and  there- 
after, on  the  same  day,  was  duly  returned,  showing  that,  after 
due  diligence,  search,  and  inquiry  by  different  police  officers^ 
the  witness  could  not  be  found,  and  his  whereabouts  were  un- 
known.   Every  effort  possible  was  made  to  find  the  witness, 
without  avail.    As  a  general  rule,  under  constitutions  like  that 
of  Utah,  the  accused  is  entitled  to  be  confronted   with   the 
witnesses  against  him.    As  held  in  State  v.  Mannion,  19  Utah, 
605,  612,  75  Am.  St.  Rep.  753,  57  Pac.  642,  644 :  'TJnder  the 
constitution  and  statutes  of  the  state  the  accused  had  a  right 
to  be  present  at  the  trial,  to  be  confronted  by  the  witnesses 
against  him,  and  to  meet  his  accusers  face  to  faoe.    He  also 
had  the  right  to  appear  and  defend  against  the  accusation  pre- 
ferred against  him  in  person  and  by  counsel    He  had  the 
right  not  only  to  examine  the  witnesses,  but  to  see  into  the 
face  of  each  witness  while  testifying  against  him,  and  to  hear 
the  testimony  given  upon  the  stand.    He  had  the  right  to  see 
and  be  seen,  hear  and  be  heard,  under  such  reasonable  regula- 
tions as  the  law  established.    By  our  constitution  it  is  clearly 
made  manifest  that  no  man  shall  be  tried  and  condemned  in 
secret,  and  unheard.''    The  chief  purpose  in  requiring  that  the 
accused  shall  be  confronted  with  the  witnesses  against  him  is 
held  to  be  to  secure  to  the  defendant  an  opportunity  for  cnw- 


Maroli,  1902.]  Statb  v.  Kino.  811 


amination;  so^  that  if  the  opportunity  for  croBd-examination 
lias  been  secured^  the  test  of  confrontation  is  accomplished.    If 
tlie  confrontation  can  be  had  it  should  be  had.    By  taking  the 
testimony  of  the  witness  Johnson  in  the  presence  of  the  *®^ 
accused  upon  the  examination  at  a  time  when  he  had  the  privi- 
lege of  cross-examination,  this  constitutional  privilege  is  satis- 
fied, provided  the  witness  cannot,  with  due  diligence,  be  found 
'within  the  state.    The    constitutional    requirement    of    con- 
frontation is  not  violated  by  dispensing  with  the  actual  pres- 
ence of  the  witness  at  the  trial  after  he  has  already  been  sub- 
jected to  cross-examination  by  the  accused,  and  the  other  re- 
quirements of  the  statutes   have    been   complied  with.    In  1 
Greenleaf  on  Evidence,  sixteenth  edition,  section  163g,  page  284, 
it   is  said:  ^'The  death  of  the  witness  has  always,  and  as  of 
course,  been  considered  as  sufiScient  to  allow  the   use   of  his 
former  testimony.    The  absence  of  the  witness  from  the  juris- 
diction, out  of  reach  of  the  court's  process,  ought  also  to  be 
sufficient,  and  is  so  treated  by  the  great  majority   of   courts. 
Mere  absence,  however,  may  not  be  sufficient,  and  it  is  usually 
said  that  a  residence  or  an  absence  for  a  prolonged  or  uncer- 
tain time  is  necessary.    A  few  courts  do  not  recognize  at  all 
this  cause  for  nonproduction ;  a  few  others  deny  it  for  crimi- 
nal cases.    Neither  position  is  sound.    Inability  to  find  the 
witness  is  an  equally  sufficient  reason  for  nonproduction,  by 
the  better  opinion,  though  there  are  contrary  precedents.    The 
sufficiency  of  the  search  is  usually  and  properly  left  to  the  trial 
court^s  discretion.    Absence  through  the  opponent's  procure- 
ment should,  of  course,  be  a  sufficient  reason  for  nonproduc- 
tion.   Illness,  by  causing  inability  to  attend,  has  the  same 
effect.    The  phrase  usually  employed  as  a  test  is,  'so  ill  as  to 
be  unable  to  travel.*    The  application  of  the  principle  should 
be  left  to  the  trial  court's  discretion.**    Numerous  citations 
of  authority  will  be  foimd   in  the  notes   to  this  section.    In 
Finn  v.  Commonwealth,  6  Band.  701,  Mendum  v.  Common- 
wealth, 6  Rand.  704,  and  Brogy  v.  Commonwealth,  10  Gratt. 
722,  witnesses  who  had  testified  on  a  former  trial  were  not 
dead,  but  were  out  of  the  state,  and  the  testimony  was  held 
to  be  admissible,  the  same  as  if  the  witnesses  were  dead.    In 
People  V.  Oiler,  66  Cal.  101,  4  Pac.  1066,  the  testimony  of  a 
witness  taken  on  a  preliminary  examination  was  admitted  on 
the  trial  under  a  *®®  provision  of  the  statute  applicable  to 
a  deceased  witness,  and  the  statute  was  held  constitutional. 
The  same  rule  is  held  in  Summons  v.  State,  5  Ohio  St.  325 ; 


812  Amebican  State  Bbpobts^  Vol.  91.  {TJttib, 

Howard  t.  Patrick,  38  Mich.  795;  Mattox  t.  United  States, 
166  IT.  S.  237,  16  Sup.  Ct.  Rep.  337;  Cooky's  ConBtitutioMd 
limitations,  687.    The  principal  object  of  the  provision  in  the 
constitution  was  to  prevent  depositions  or  ex  parte  affidavits 
from  being  used  against  the  accused  in  the  place  of  a  personal 
examination  and  cross-examination  of  the  witness,  wherein  the 
accused  would  have  an  opportunity  to  cross-examine,  and  there- 
by test  the  recollection  and  truthfulness  of  the  witness,  and 
also  to  compel  him  to  stand  face  to  face  with  the  jury,  counsel, 
and  accused,  that  they  might  look  at  him  and  judge  of  his 
truthfulness  and  candor  and  of  his  testimony  by  his  manner 
of  testifying.    As  said  in  Mattox  v.  United  States,  156  XT. 
S.  243,  16  Sup.  Ct.  Rep.  339 :  'There  is  doubtless  reason  for 
saying  that  the  accused  should  never  lose  the  benefit  of  any  of 
these  safeguards,  even  by  the  death  of  the  witness,  and  that, 
if  notes  of  his  testimony  are  permitted  to  be  read,  he  is  de- 
prived of  the  advantage  of  that  personal  presence  of  the  wit- 
ness before  the  jury  which  the  law  has  designed  for  his  pro- 
tection.   But  general  rules  of  law  of  this  kind,  however  benefi- 
cent in  their  operation  and  valuable  to  the  accused,  must  oc- 
casionally give  way  to  considerations  of  public  policy  and  the 

necessities  of  the  case The  law  in  its  wisdom  declares 

that  the  rights  of  the  public  shall  not  be  wholly  sacrificed  in 
order  that  an  incidental  benefit  may  be  preserved  to  the  ac- 
cused.*' Under  our  statute  it  was  necessary  for  the  prosecution 
to  show  that  the  accused  had  cross-examined  the  witness,  or 
had  an  opportunity  of  so  doing  upon  the  examination,  and 
then  the  testimony  of  such  witness  may  be  read,  upon  its  being 
shown,  to  the  satisfaction  of  the  court,  that  said  witness  was 
dead,  insane,  or  could  not,  with  due  diligence,  be  found  within 
the  state.  The  testimony  tends  to  show  that  the  witness  could 
not  be  found,  and  the  trial  court  had  a  right  to  exercise  hi? 
discretion  in  the  admission  of  the  testimony,  provided  ^^ 
he  did  not  abuse  such  discretion.  .  The  reasons  given  for  the 
absence  of  the  witness  were  reasonable,  and  were  satisfactory 
to  the  trial  court.  We  are  not  prepared  to  say  that  the  dis- 
cretion of  the  court  was  improperly  exercised  in  the  admis- 
sion of  the  testimony  of  Johnson  upon  the  preliminary  show- 
ing made.  We  hold  that  the  statute  referred  to  is  valid,  and 
within  the  provisions  of  the  constitution. 

2.  It  is  also  contended  that  the  information  does  not  all^ 
that  the  offense  was  committed  in  an  attempt  to  perpetrate  any 
arson,  rape,  burglary,  or  robbery,  but  simply  alleges  that  the 


/ 


March,  1902.J  Stats  v.  Enva.  813 

accused  did  willfully,  deliberatdy,  maliciously,  and  with  pre- 
meditated malice,  kiU  and  murder  the  deceased,  without  set- 
tiiig  out  therein  that  the  offense  was  committed  in  the  per- 
petration of  robbery,  etc.,  and  that  evidence  was  admitted  show- 
ing that  the  offense  was  committed  while  perpetrating  or  at- 
tempting to  perpetrate  a  robbery,  and  that  the  charge  of  the 
court  upon  this  subject  was  erroneous.     Section  4161  of  the 
Revised  Statutes  of  1898    reads  as  follows:  "Every  murder 
perpetrated  by  poison,  lying  in  wait,  or  any  other  kind  of  will- 
ful,  deliberate,  malicious  and  premeditated  killing;  or  com- 
mitted in  the  perpetration  of,  or  attempt  to  perpetrate,  any 
arson,  rape,  burglary,  or  robbery;  or  perpetrated  from  a  pre- 
meditated  design   unlawfully   and   maliciously   to   effect   the 
death  of  any  human  being  other  than  him  who  is  killed;  or 
perpetrated  by  any  act  greatly  dangerous  to  the  lives  of  others 
and  evidencing  a  depraved  mind,  regardless  of  human  life — is 
murder  in  the  first  degree.    Any  other  homicide  committed 
under  such  circumstances  as  would  have  constituted  murder 
at  common  law,  is  murder  in  the  second  degree/'    Under  this 
statute  every  murder  perpetrated  by  poison,  lying  in  wait,  or 
any  other  kind  of  willful,  deliberate,  malicious,  premeditated 
killing  is  murder  in  the  first  degree.    If  the  murder  charged 
was  committed  in  the  attempt  to  commit  a  robbery,  etc.,  it  is 
also  murder  in  the  first  degree,  but  in  such  a  case  no  intent 
to  kill,  and  no  deliberation  and  premeditation,  was  necessary; 
the  implied  ^•^  malice  involved  in  the  felonious  intent  to 
rob  being  sufficient  to  establish  the  malicious  intent.     The  at- 
tempt to  perpetrate  the  crime  of  robbery,  or  any  other  felony 
named  in  the  statute,  during  which  a  homicide  is  committed, 
takes  the  place  of,  and  amounts  to  the  legal  equivalent  of,  such 
deliberation,  premeditation,  and  design,  which  were  otherwise 
necessary  attributes  of  murder  in  the  first  degree.    This,  at 
least,  has  been  the  holding  of  many  courts,  notably  the  case 
of  Commonwealth  v.  Flanagan,  7  Watts  &  S.  415,  and  Titus 
V.  State,  49  N.  J.  L.  36,  7  Atl.  621.    At  common  law  it  was 
not  necessary  to  charge  in  the  indictment  that  the  murder  was 
committed  in  the  perpetration  of  another  crime  in  order  to 
introduce  proof  showing  that  a  felony  was  attempted  in  com- 
mitting it.    It  was  suflBcient  to  charge  murder  in  the  common 
form,  and  then,  upon  proof  that  it  was  committed  in  the  per- 
petration of  a  felony,  malice,  deliberation,  and  premeditation 
were  implied:  2  Bishop's  Criminal  Law,  sec.  694;    1    Hale's 
Fleas  of  the  Crown,  465.     So  that  the  indictment  in  the  form 


814  American  State  Ebpobts,  Vol.  91.  [Utah, 

used  was  sufficient  under  the  statute  to  charge  murder  in  the 
first  degree,  and  it  is  immaterial   whether   the   murder   was 
charged  to  have  been  committed  in  the  perpetration  of  robbery, 
etc.,  or  not.    Tinder  such  an  information  evidence  was  ad- 
missible which  tended  to  show  the  facts  of  the  killing,  and  also 
that  the  crime  was  committed  in  perpetrating  a  robbery.     We 
are  also  of  the  opinion  that  the  instructions  given  to  the  jury 
upon  this  subject  were  proper.    The  charge   contained   in   the 
information  was  for  murder  in  the  first  degree.    In  1  McCSIain 
on  Criminal  Law,  section  356,  the  rule  is  stated  as  follows: 
"The  statutes  defining  murder    in  the    first    degree,  perhaps 
without  exception,  include  cases  where  the  homicide    results 
during  the  perpetration  or  attempt  to  perpetrate  certain  fel- 
onies named,  those  usually  included  being  arson,  rape,  robbery, 
mayhem,  and  burglary.     As  has  been  shown,  a  homicide  re- 
sulting from  the  commission  or  attempt  to  commit  a  felony  is 
with  malice  aforethought,  and  is  therefore  murder.     And  the 
effect  of  the  statutory  provision  as  to  the  first   degree   is   to 
make  criminal  in  that  '••^  degree  the  murder  resulting  from 
committing  or  attempting  to  commit  the  particular  felonies 
specified.    No  intent  to  kill,  and  no    deliberation    and   pre- 
meditation, are  necessary,  the  implied  malice  involved  in  the 
felonious  intent  being  sufficient.     The  intent  to  commit  one  of 
the  named  felonies  in  itself  constitutes  deliberation  and  pre- 
meditation, and  therefore,  under  an  indictment  for  the  first 
degree,  charging  the  offense  as   willful,    deliberate,   and   pre- 
meditated, evidence  is  admissible  that  the  homicide  was  com- 
mitted in  the  perpetration  of  robbery,  one  of  such  felonies;  or 
where  a  common-law  form  of  indictment  is  sufficient  for  the 
first  degree,  proof  of  the  first  degree  by  the  conmiission  of  a 
named  felony  may  be  made  under  such  an  indictment.    The 
indictment  may,  however,  allege  fully  the  commission  of  the 
felony,  and  the  murder  may  then  be  charged  as  having  been 
committed  while  in  the  perpetration  of  such  felony*':  State  v. 
Johnson,  72  Iowa,  393,  34  N.  W.  177 ;  State  v.  Meyers,  99  Mo. 
107,  12  S.  W.  616;  Cox  v.  People,  80  K  Y.  600;  People  v. 
Willett,  102  N.  Y.  251,  6  N.  E.  301 ;  People  v.  Olsen,  80  Cal. 
122,  22  Pac.  125;  Commonwealth  v.  Flanagan,  7  Watts  & 
S.  415;  Titus  v.  State,  49  K  J.  L.  37,  7  Atl.  621;  2  Bishop's 
Criminal  Law,  sec.  694. 

3.  General  exceptions  were  taken  to  the  instructions  of  the 
court.  As  frequently  held  by  this  court,  exceptions  to  a  whole 
paragraph  in  the  charge  of  the  court  to  the  jury  are  insufficient 


BCarch,  1902.]  State  v.  Eikg.  815 


raise  any  question:  Wilson  t.  Mining  Co.,  16  TJtah^  392, 
S2  Pac.  626;  Lowe  r.  Salt  Lake  City,  13  Utah,  91,  67  Am.  St. 
Rep.  708,  44  Pac.  1050;  Nebeker  t.  Harvey,  21  Utah,  363,  60 
X*ac.  1029.  However,  we  have  examined  the  charge  of  the 
oonrt,  and  find  that  it  sufficiently  covers  the  legal  questions 
x'aised  in  the  case.  It  also  embodies  such  parts  of  the  instruc- 
tions requested  by  the  defendants  as  were  proper  to  submit  to 
"the  jury. 

4.  If  it  is  claimed  by  the  defendants  that  the  testimony 
shows  that  a  third  person  was  present  taking  part  in  the  alleged 
attempt  to  rob,  and  also  participated  in  the  shooting  of  Prowse, 
"^^^  and  that  such  person  is  not  named  or  made  a  defendant 
in  this  indictment,  and  that  the  defendants  are  improperly 
lidd  responsible  for  his  acts,  when  they  could  only  be  held 
responsible  for  the  commission  of  such  crimes  as  come  within 
the  intent  of  the  conspirators,  and  it  is  claimed  that  the  court 
improperly  instructed  the  jury  upon  the  liability  of  these  de- 
fendants for  the  acts  of  the  third  party.  The  parties  were  all 
associated  together  for  the  purpose  of  robbery,  and  in  attempt- 
ing to  carry  out  their  intent  to  rob  they,  or  some  of  them, 
shot  and  killed  Prowse.  They  were  unlawfully  associated  to- 
gether in  a  common  design  and  illegal  conspiracy  to  commit 
a  felony,  and,  therefore,  the  killing  of  the  deceased,  by  whom- 
soever of  the  parties  present  it  was  done,  was  the  act  of  each 
and  all  of  the  conspirators,  and  the  defendants  are  chargeable 
therewith,  whether  they  or  the  absent  party  fired  the  fatal  shot. 
This  doctrine  was  clearly  held  in  State  v.  Morgan,  22  Utah, 
162,  170,  61  Pac.  527,  529.  In  that  case  the  court  said:  "The 
testimony  clearly  shows  that  the  defendant,  to  prevent  his  ar- 
rest and  capture  for  a  felony,  deliberately  shot  and  killed 
Brown ;  but,  even  if  the  killing  was  not  directly  traced  to  the 
defendant,  still  the  record  shows  that  in  connection  with  their 
criminal  acts  these  two  men  were  acting  in  concert  to  rob  and 
resist  arrest  even  to  the  killing  of  other  persons,  and,  being  so 
associated  and  confederated  together  in  their  felonious  pur- 
poses of  robbery  and  resistance  to  the  civil  power  of  the  state, 
the  killing  of  the  deceased,  by  whomsoever  it  was  done,  was  the 
act  of  each  and  both  of  the  conspirators,  and  thereby  the  de- 
fendant is  chargeable  therewith,  whether  he  or  his  companion 
fired  the  fatal  shot:  People  v.  Coughlin,  13  Utah,  58,  44  Pac. 
94 ;  People  v.  Pool,  27  Cal.  573 ;  3  Greenleaf  on  Evidence,  sec. 
94;  State  v.  Mowry,  37  Kan.  369,  15  Pac.  282/'  We  not 
only  find  the  instructions  upon  this   subject   proper,  but   are 


816  American  State  Bbports^  Vol.  9L  [Utih. 

clearly  of  the  opinion  that  the  requests  ofterei  bj  the  defend- 
ants  were  properly  refused,  and  tiiat  the  court  committed  no 
error  upon  the  subject  to  which  an  exception  was  taken. 

***  Other  exceptions  were  taken  to  the  proceedings,  but, 
npon  careful  examination  of  the  questions  raised,  we  find  them 
without  merit.  Upon  the  whole  record  we  find  no  rerersiUe 
error. 

The  judgment  and  sentence  of  the  district  court  is  affirmed, 
and  the  case  remanded  to  said  court,  with  instructions  to  exe- 
cute the  judgment  and  sentence  in  accordance  with  law. 

Baskin  and  Bartch^  JJ.,  concur. 


Evidence  at  a  Fanner  Trial  and  its  admissibility  are  eenaidered  in 
the  monographic  note  to  Bailroad  Co.  ▼.  Oabom,  ante,  pp.  192-20S. 
The  testimony  of  a  witness,  who  has  since  died,  taken  at  and  re- 
duced to  writing  at  the  preliminary  examination  in  a  criminal  ease, 
cannot  be  used  against  the  accused  upon  the  trial:  Cline  ▼.  State,  36 
Tex.  Gr.  Bep.  820,  36  S.  W.  1099,  37  S.  W.  722,  61  Am.  St.  Bep.  850, 
and  see  the  monographic  note  thereto  on  the  admissibility  of  tka  evi- 
deaee  of  absent  witnesses  in  criminal  trials. 


OASES 


SUPREME   COURT 


WASHINGTON. 


DITMAE  V.  DITMAS. 

[27   Wash.   13,   67   Pae.   353.] 

BIVOBOE— Snpport  of  Ohildren.— A  Divorced  Wlfe^  having 
the  enstodj  of  the  children,  may  sue  her  former  husband  for  expensed 
iaenrred  in  their  support  and  also  for  their  fnture  support,  (pp. 
818,  819.) 

ATTOBNET'S  FEES.— In  an  Action  "bj  a  DlYorced  Wife 
against  her  former  husband  for  the  support  of  their  children,  she 
eaimot  recover  attorney's  fees.     (p.  819.) 

K.  T.  Caton  and  Mount  &  Merritt,  for  fhe  appellant 
Martin  &  Orant^  for  the  respondent. 

*»  FTTLLEETON,  J.  The  appellant  and  respondent  were 
formerly  husband  and  wife,  having  been  lawfully  married  ** 
in  the  state  of  Oregon  in  August,  1879.  There  were  bom  to 
them  five  children,  who  were,  on  the  third  day  of  May,  1896, 
of  the  respective  ages  of  fifteen,  thirteen,  thirteen,  ten  and 
seven  years.  On  the  date  last  named  a  divorce  was  granted 
the  respondent  from  the  appellant,  in  the  decree  for  which 
she  was  awarded  the  care  and  custody  of  the  children,  the 
court  finding  that  the  appellant  was  *T)y  conduct  and  charac- 
ter^ an  unfit  person  to  have  their  care  or  control.  The  prop* 
erty  of  the  parties,  which  was  not  of  any  considerable  value, 
was  divided  between  them,  the  wife  receiving  the  major  portion. 
This  action  was  instituted  in  July,  1899,  by  the  respondent, 
to  recover  from  the  appellant  the  amount  expended  by  her  in 
the  care  and  maintenance  of  the  children  subsequent  to  the 
divorce,  and  to  compel  him  to  make  suitable  provision  for  their 

▲m.  St  R«p.,  Vol.  91-52        (817) 


818  American  State  Reports,  Vol.  91*  [Waalu 

future  support.  The  trial  court  found  that  the  respondent 
had  expended  in  the  care  and  education  of  the  children  the 
6um  of  four  hundred  and  ninety-five  dollars  over  and  aboTe 
the  value  of  their  labor;  that  the  three  older  children  were 
able  to  care  for  themselves;  that  the  others  were  not  so,  and 
that  the  sum  of  twelve  dttUais  and  fifty  cents  per  month  was 
necessary  for  their  future  maintenance  and  education  above 
such  support  as  the  respondent  was  able  to  furnish.  It  was 
also  found  that  the  respondent  was  without  property  more  than 
sufficient  to  meet  her  outstanding  obligations;  that  the  appel- 
lant had  ample  means  to  support  the  children,  and  had  re- 
fused, when  requested  so  to  do,  to  contribute  anything  what- 
soever to  their  support  On  these  findings  a  decree  was  en- 
tered awarding  to  the  respondent  one-half  of  the  sum  the  court 
found  she  had  theretofore  expended  in  the  maintenance  and 
education  of  the  children,  and  directing  him  to  pay  toward 
the  future  support  and  education  of  tiie  younger  children  the 
sum  of  twelve  dollars  and  fifty  cents  per  month  until  ^^  the 
further  order  of  the  court;  further  decreeing  that  tiie  appellant 
pay  into  court  the  sum  of  one  hundred  dollars  for  the  use  of  re- 
spondent as  attorney's  fees. 

The  learned  counsel  for  the  appellant  make  no  question  on 
the  facts  found  by  the  court,  but  plant  themselves  upon  the 
broad  pioposition  that  a  divorced  wife  cannot  TTHLintAJTi  an 
action  against  her  former  husband  for  expenses  incurred  by  her 
in  the  support  of  their  minor  children,  where  in  the  decree 
for  divorce  the  custody  of  such  children  has  been  awarded  to 
her,  or  for  their  future  support  so  long  as  she  maintains  their 
custody  and  control.  Many  cases  are  cited  which  seemingly 
support  their  contention,  and  it  may  be,  as  counsel  contend, 
that  the  weight  of  authority  is  with  them.  The  contrary  view, 
however,  is  not  without  support  in  authority  from  other  juris- 
dictions, and  we  have  held  that  sudi  an  action  could  be  main- 
tained: Gibson  v.  Gibson,  18  Wash.  489,  51  Pac.  1041.  It  is 
true  that  in  that  case  the  question  of  the  right  to  recover  for 
moneys  expended  for  past  support  was  not  directly  involved, 
yet  the  court  reviewed  certain  of  the  authorities  cited  main- 
taining the  position  that  such  expenditures  were  not  recover- 
able, and  said  it  did  not  think  they  were  rightly  decided;  say- 
ing further  that  those  decisions  lost  sight  of  the  fact  that  the 
right  to  the  services  of  the  children  had  been  forfeited  by 
the  father,  and  that  it  '^violates  our  sense  of  justice  to  allow  a 
father  to  plead  his  own  wrong  as  an  excuse  for  relieving  him- 


1901.]  DmcAR  V.  DiTMAB.  819 

from  an  obligation.    Presumably  fhe  Cfuetody  of  fhe  child 
is   taken  from  him  because  he  is  not  worthy  of  its  care  and 
<mstody^  and  this  doctrine  in  effect  releases  from  an  obligation 
the  tmworthy  parent  and  imposes  an  additional  burden  upon 
the   worthy  one/'    This  argranent  applies  with  all  its  force 
i;o  the  case  before  us.    *^  Here,  the  wife  was  granted  a  divorce 
from  the  husband  because  of  his  extreme  cruelty.    He  was  also 
found  to  be  unfit  in  conduct  and  character  to  hare  the  control 
of   their  children.    Clearly,  the  wife  has  every  right,  moral 
And  equitable,  to  be  reimbursed  to  the  amount  of  a.  just  pro- 
portion of  the  expense  she  has  been  put  to  in  the  performance 
of  a  duty  which  equally  belonged  to  both;  and  the  technical 
legal  reason  on  which  the  contrary  doctrine  is  based  ought  not 
to  be  permitted  to  outweigh  the  evident  justice  of  her  claim. 
On  principle  we  believe  the  doctrine  of  the  case  from  this  court 
to  be  right,  and,  though  strongly  urged  so  to  do,  we  must  d&- 
-eihxe  to  dther  overrule  or  modify  it. 

The  court  erred,  however,  in  allowing  the  attorney  fee: 
TVumble  v.  Trumble,  26  Wash.  133,  66  Pac.  124.  Foi  this 
-error  the  cause  will  be  remanded  to  the  lower  court,  with  in- 
fitructions  to  modify  the  decree  by  striking  out  the  clause  re- 
quiring it  to  be  paid.  In  all  other  respects  the  decree  wiU  stand 
affirmed. 

Beavis,  C.  J.,  and  Dunbar  ^d  AndeiB,  JJ.^  concur. 
Mount,  J.,  not  sitting. 


A  Divorced  Husband  may  be  liable  to  his  former  wife  for  the 
•opport  of  their  children  while  they  live  with  her:  ZiUey  v.  Dun- 
widdie,  98  Wis.  428,  67  Am.  St.  Bep.  820,  74  N.  W.  126;  Pretzinger 
T.  Pretsinger,  45  Ohio  8t.  452,  4  Am.  St.  Bep.  542,  15  N.  E.  471. 
Compare  Fulton  ▼.  Fulton,  52  Ohio  St.  229,  49  Am.  St.  Bep.  720,  89 
N.  E.  729;  Foas  ▼.  Hartwell,  168  Mass.  66,  60  Am.  St.  Bep.  866, 
46  N.  E.  411;  and  tee  the  discussion  of  this  question  in  the  mono- 
^raphie  note  to  Hall  v.  Qreen,  47  Am.  St  Bep.  814-817. 


620  Amebican  State  Bbpokts,  Vol.  91.  [Wadu 


CHAPPELL  T.  PUGET  SOUND  REDUCTION  COMPANY. 

[27   Wash.   63,  67   Pao.   891.] 

OONVEBSZON  OF  STAITDIKO  TIMBEB— Damagw.— If  m%. 

under  the  mistaken  idea  that  standing  timber  is  his,  converts  it  into- 
ebrdwood,  the  measure  of  damages  is  the  yalne  of  the  timber  standing, 
(pp.  822,  824.) 

WITNESSES.— A  Party  is  Boimd  by  tlie  Testimony  of  lus  ow» 
witness,  when  his  is  the  only  evidence  on  the  point  introdneod.. 
(p.  824.) 

Whitney  &  Headlee,  for  the  appellant 

F.  H.  Brownell  and  Cooley  &  Horan,  for  the  reapondent* 

•*  MOUNT,  J.  This  action  was  brought  for  the  value  of 
one  thousand  cords  of  wood,  alleged  to  have  been  wrongftilly 
taken  from  plaintiflPs  land  by  one  Thomas  Diffley,  and  by  Drff- 
ley  shipped  to  Everett  and  sold  to  the  defendant.  PlaintUf 
claime  the  value  of  the  wood  at  Everett,  which  is  two  dollars  and 
thirty-two  and  one-half  cents  per  cord,  while  defendant  main* 
tains,  as  the  lower  court  held,  that  plaintiff  was  entitled  to  the 
value  of  the  timber  standing  on  the  premises,  which  is  ten  cents 
per  cord.  The  undisputed  facts  in  the  case  are  as  follows :  On 
June  24,  1897,  Stephen  Parr  and  wife  were  the  owners  and  in 
possession  of  one  hundred  and  sixty  acres  of  timber  land  in 
Snohomish  county.  On  that  date  they  sold,  and,  by  a  contract 
in  writing,  in  consideration  of  six  hundred  dollars,  conveyed, 
all  the  timber  upon  the  tract  of  land  to  a  copartnership  com- 
posed of  L.  H.  Cyphers  and  Ulmer  Stinson,  under  the  name  of 
Cyphers  &  Stinson.  In  this  contract  of  sale  it  was  agreed  that 
the  timber  should  be  removed  from  the  land  within  two  years 
after  the  date  of  the  contract.  A  right  of  way  over  the  •■^  said 
premises  for  logging  roads,  however,  was  granted  for  a  term 
of  five  years.  Four  days  after  the  date  of  this  contract^  on 
June  28,  1897,  Parr  and  wife,  in  consideration  of  one  hundred 
dollars,  sold  the  land  to  one  Frank  Campbell,  an  unde  of  plain- 
tiff, subject  to  the  sale  of  timber  and  right  of  way  above  named 
On  the  thirteenth  day  of  October,  1897,  Thomas  DiflBey  pur- 
chased the  timber  upon  th^  tract  of  land  mentioned  from  Cy- 
phers &  Stinson  for  a  consideration  of  six  hundred  dollars,  and 
the  contract  above  mentioned  was  assigned  to  him.  At  the 
time  Diffley  purchased  the  timber  from  Cyphers  &  Stinson,  he- 


\ 


.  lyoi.]     Chappkll  v.  Pdgkt  JSookd  REDueriois  Co.      821 

ippoBed  Parr  was  still  the  owner  of  the  land,  and  at  that  time 
to  see  Farr,  and  told  him  he  had  purchased  the  timber, 
that  the  time  for  removing  the  same  would  expire  in  some- 
duLng  over  a  year,  and  thereupon  Parr  said  to  Diffley:  ''Tom, 
^oxi  can  have  all  the  time  you  want  to.    Ill  never  bother  you.'* 
Z>i.ffley  thereupon  took  possession  of  the  premises,  and  continu- 
^OTXfily  thereafter  until  this  action  was  brought  was  in  possession 
^Ltxereof,  cutting  and  removing  cordwood  therefrom.    On  March 
1L7^  1898,  Frank  Campbell  sold  the  land  to  plaintiff  in  consid- 
^efration  of  two  hundred  dollars,  subject  to  the  sale  of  timber 
^^txid  right  of  way  for  logging  roads  above  mentioned.    At  the 
^Ime  plaintiff  purchased  the  land,  DifiSey  was  in  possession  of 
^t,  engaged  in  removing  timber  therefrom.    Plaintiff  knew  this, 
^tnd  said  nothing  to  Diffley,  although  he  was  upon  the  land  as 
-often  as  once  a  month  from  the  time  he  purchased  it.    In  April 
-or  May,  1900,  plaintiff  served  a  written  notice  on  Diffley  ''to 
-^nit  cutting  wood  there,  and  not  take  any  more  off.*'    Diffley 
^t  this  time  told  plaintiff  that  "he  didn't  Ihink  he  would  quit." 
In  about  ten  days  thereafter  plaintiff  went  to  Diffley  again,  and 
(using  his  language)  said:  "And  I  asked  him  if  he  was  still 
.  :going  to  keep  on  cutting,  or  whether  he  was  going  to  quit,  or 
whether  he  was  going  to  pay  any  attention  to  the  notice  ®*  that 
I  gave  him  to  etop,  and  he  said  that  he  was  going  to  keep  right 
on.    He  said  that  he  had  bought  that  timber,  and  he  would  like 
to  see  the  man  to  stop  him  from  cutting  it  off."    About  the 
middle  of  June,  1900,  plaintiff  notified  defendant  by  telephone, 
-that  the  wood  they  were  buying  from  Diffley  belonged  to  the 
plaintiff,  and  not  to  pay  DifBey  any  more  money  therefor.    In 
August  following,  plaintiff  brought  this  action  to  recover  the 
-value  of  all  wood  cut  after  the  twenty-fourth  day  of  June,  1899, 
'which  was  alleged  at  one  thousand  cords,  at  a  value  of  two  thou- 
-sand  six  hundred  dollars.     On  the  trial  the  jury  found  that 
three  hundred  and  twenty-eight  cords  had  been  taken  between 
J^une  24, 1899,  and  August  23, 1900,  the  time  of  the  commence- 
ment of  this  action,  and  that  the  etumpage  value  thereof  was 
thirty-two  dollars  and  eighty  cents.    From  a  judgment  for  this 
:amount,  plaintiff  appeals. 

There  is  no  contention  in  this  case  that  there  were  any  special 
'damages  to  the  land,  or  any  willful  or  malicious  trespass.  The 
complaint  alleges  a  wrongful  entry  upon  the  premises,  and  tiiQ 
-conversion  of  one  thousand  cords  of  wood,  of  the  value  of  two 
thousand  six  hundred  dollars.  The  undisputed  facts  do  not 
«how  any  willful  or  malicious  trespass.    It  is  true  the  time  ex* 


&22  Ambbican  Statb  Bjebpobts,  Vol.  91.  £Wa8h* 

pressed  in  the  contract  for  removing  the  timber  expired  on  June 
24,  1899,  and  that  in  April  or  May,  1900,  Diffley  iras  notified 
bj  plaintiff  not  to  remove  any  more  timber;  but  these  facts  do 
not  make  Di£Sey  a  willful  or  malidooB  trespasser  in  taking  the 
timber,  because  he  had  purchased  it,  and  supposed  in  good  faith 
that  he  was  still  the  owner  of  it  If  the  action  had  been  brought 
under  the  statute  which  provides  for  treble  damages  in  case  of 
willful  or  malicious  trespass,  the  bona  fides  of  Diffley  would 
have  been  a  question  for  the  jury,  under  sections  5656  and  5657 
of  Ballinger^B  Ck>d&  But  since  &e  action  is  one  merdy  for 
damages  in  taking  and  converting  the  wood  alleged  in  the  com- 
plaint, the  question  of  mala  fides  is  not  for  the  jury.  It  ^  was 
only  for  the  jury  to  determine  in  this  case  whether  the  taking- 
was  wrongful,  and,  if  so,  to  determine  single  damages  at  the 
time  and  place  of  conversion:  McLeod  v.  Ellis,  2  Wash.  117, 
36  Pac.  76. 

The  great  weight  of  authority  in  the  United  States  in  regard 
to  the  measure  of  damages  in  cases  of  this  character  is  as  ex- 
pressed in  BoUes  Woodenware  Co.  v.  United  States,  106  U.  & 
432,  1  Sup.  Ct.  Bep.  398,  where  it  is  held  that  where  the  de- 
fendant was  an  unintentional  or  mistaken  trespasser,  or  his 
innocent  vendee,  the  measure  of  damages  is  the  value  at  the 
time  of  conversion,  less  what  the  labor  and  expenses  of  his  ven- 
dor have  added  to  its  value.  In  Ayres  v.  Hubbard,  57  Mich. 
322,  58  Am.  Bep.  361,  23  N.  W.  829,  the  court,  in  a  case  similar 
to  the  one  at  bar,  says :  'The  general  rule  of  damages  is  the 
value  of  the  property  lost  under  such  circumstances  at  the  time 
and  place  of  conversion,**  and  "complete  indemnity  for  the  ac- 
tual loss  sustained  in  this  case  by  the  plaintiff  is  what  he  was- 
entitled  to  recov«/* 

In  Gushing  v.  Longfellow,  26  Me.  306,  it  was  hdd  that  the- 
plaintiffs  have  no  right  to  select  any  other  plaoe  than  that  where 
the  injury  was  originally  done,  to  enhance  the  value  of  the 
article  taken.  The  value  of  the  property  severed  from  the  fre^ 
hold  is  that  which  it  has  immediately  after  being  severed.  In 
Carroll  v.  More,  30  Wis.  574,  it  was  held  QaJ;  where  no  drcum- 
stances  of  fraud,  malice,  or  wanton  injury  are  done  by  the  tres- 
pass, the  value  of  the  logs  cut,  or,  as  it  is  sometimes  called ,  the 
value  of  the  stumpage,  would  seem  to  be  the  measure  of  just 
compensation.  This  rule  in  Wisconsin  has  since  been  modified 
by  statute.  In  Coxe  v.  England,  66  Pa.  Si  212,  tiie  court  said :; 
'•This  was  an  action  of  trespass  for  cutting  standing  timber. 
Its  value  was,  therefore,  to  be  ascertained  by  the  •*  price  of 


1>ec.  1901.]     Chappsix  v.  Puget  Sound  Reduction  Co.     823 

each  timber  in  the  vicinity,  and  not  by  the  net  value  of  the  logs 
cut  from  it,  in  a  distant  market.  The  evidence  shows  that  the 
timber  had  a  price  where  it  stood,  the  value  of  stumpage,  as  it 
is  termed,  being  proved  by  numerous  witnesses/' 

To  the  same  effect  see  Tilden  v.  Johnson,  52  Vt.  628,  36  Am. 
Bep.  769;  Ward  v.  Carson  Eiver  Wood  Co.,  13  Nev.  44;  Gar- 
dere  v.  Blanton,  35  La.  Ann.  811 ;  Railway  Co.  v.  Hutchins,  32 
Ohio  St  571,  30  Am.  Eep.  629;  Railway  Co.  v.  Hutchins,  37 
Ohio  St  282,  296;  White  v.  Yawkey,  108  Ala.  270,  64  Am. 
St  Rep.  159,  19  South.  360;  Bailey  v.  Chicago  etc.  Ry.  Co., 
3  S.  Dak.  531,  54  N.  W.  596. 

In  the  case  of  Beede  v.  Lamprey,  64  N*.  H.  510,  10  Am.  St. 
Bep.  426,  15  Atl.  133,  the  court,  after  reviewing  very  many 
cases,  says:  "The  weight  of  autiiority,  however,  in  this  country 
is  in  favor  of  the  rule  which  gives  compensation  for  the  loss — 
that  is,  the  value  of  the  property  at  the  time  and  place  of  con- 
Version  with  interest  after,  allowing  nothing  for  value  subse- 
quentiy  added  by  the  defendant,  when  the  conversion  does  not 
proceed  from  willful  trespass,  but  from  the  wrongdoer'ft  mistake 
or  from  his  honest  belief  of  ownership  in  the  property,  and  there 
are  no  circumstances  showing  a  special  and  peculiar  value  to 
the  owner,  or  a  contemplated  special  use  of  the  property  by 
him/' 

In  the  case  of  King  v.  Merriman,  38  Minn.  47,  35  N*.  W.  570, 
which  is  very  much  the  same  as  the  case  under  consideration, 
the  court  lays  down  the  rule  for  the  measure  of  damages  sub- 
stantially aa  follows:  "Where  defendant  is  an  unintentional 
or  mistaken  trespasser,  or  where  he  honestly  and  reasonably  be- 
lieved that  his  conduct  was  rightful,  the  value  of  the  property 
at  the  time  it  was  taken — ^that  is,  the  value  of  the  timber  stand- 
ing'*: See,  also,  Sedgwick  on  Damages,  8th  ed.,  sees.  933,  934„ 
503;  3  Sutherland  on  Damages,  2d  ed.,  sees.  1019,  1020. 

••  This  rule,  it  seems  to  us,  is  particularly  applicable  to  the 
case  in  hand.  In  this  case  the  land  has  not  been  injured. 
There  is  no  claim  that  the  timber  had  any  special  value  for  anv 
other  purpose  than  cordwood.  It  appears  by  some  of  the  wit- 
nesses that  the  timber  fit  for  shingles  and  lumber  had  been  re- 
moved, and  what  was  left  was  "poor  stuff,*'  and  that  its  re- 
moval would  benefit  the  land.  Diffley  had  purchased  the  tim- 
ber; had  been  permitted  for  a  year  after  the  time  specified  in 
his  agreement  to  continue  to  remove  the  timber  with  full  knowl- 
edge of  the  owner  of  the  land.  He  supposed  he  owned  the  tim- 
ber.   He  certainly  had  a  right  to  suppose  he  owned  it,  under 


S24  Ambbican  State  Bepobts,  Vol.  91.  [Wash. 

the  circumstances.  Standing  timber  fit  for  cordwood  in  that 
vicinity  was,  and  had  been,  selling  at  ten  cents  per  cord.  When 
it  was  manufactured  into  cordwood  and  shipped  by  wagon  and 
rail  to  Everett,  it  was  worth  two  dollars  and  thirty-two  and  one- 
half  cents  per  cord;  that  is  to  say,  the  labor  of  one  who  had 
paid  for  the  timber  standing,  and  who  supposed  he  owned  it, 
had  made  the  value  more  than  twenty  times  its  value  standing. 
By  what  rule  of  right  can  it  be  held  that  one  who  stands  by  and 
sees  his  property  thus  enhanced  in  value  by  the  labor  of  an- 
other shall  reap  all  the  benefit  of  this  added  labor,  and  contri- 
bute nothing  himself  except  his  negligence?  If  tiiere  was  any 
question  between  plaintiff  and  DiflBey  as  to  who  was  the  owner 
of  the  timber,  it  seems  that  the  plaintiff  should  have  taken  some 
steps  to  have  determined  that  question,  and  in  default  thereof 
he  must  be  relegated  to  his  right  of  recovery  for  actual  damages. 
A  premium  so  great  as  the  one  sought  here  ought  not  to  await 
plaintiff  as  the  reward  for  his  negligence  in  not  taking  some 
active  steps  to  determine  that  question,  and  then  the  burden  of 
paying  it  be  visited,  probably,  upon  an  innocent  purchaser,  who 
has  already  paid  the  market  price  for  the  wood. 

In  the  trial  of  the  cause  in  chief  plaintiff  called  Thomas 
^^  DifiSey  as  a  witness  to  prove  his  case.  Diffley  testified  tliat 
after  June  24,  1899,  he  did  not  take  to  exceed  four  hundred 
cords  of  wood  from  the  premises.  There  was  no  other  evidence 
of  the  actual  amount  taken.  The  court,  upon  this  evidence,  in- 
structed the  jury  that,  if  they  found  in  favor  of  the  plaintiff, 
they  could  not  find  for  a  greater  amount  than  four  hundred 
cords.  The  plaintiff  was  bound  by  his  own  evidence  in  this 
respect,  and  it  was  not  error  for  the  court  to  so  instruct  the  jury. 

Finding  no  error  in  the  record,  the  cause  wiU  be  affirmed. 

Beavis^  C.  J.,  and  Dunbar,  Fullerton,  Hadley,  White  and 
Anders,  JJ.,  concur. 

<kmver9i(m.^The  Measwre  of  Damage$  in  trover  when  the  value  of 
the  property  is  enhanced  by  the  wrongdoer  is  considered  in  the  mono* 
^apbic  notes  to  Baker  v.  Wheeler,  24  Am.  Dec  70-80;  Gaakina  v. 
Davis,  44  Am.  St.  Bep.  444-448.  When,  through  an  inadvertent 
trespass^  timber  is  cut,  the  measure  of  damages  is  usnaUy  considered 
to  be  the  value  of  the  timber  immediately  after  being  severed  from 
the  land,  with  interest  and  compensation  for  any  injury  to  the  land: 
V^ite  V.  Yawkey,  108  Ala.  270,  64  Am.  St.  Eep.  159,  19  South.  360; 
Oaskins  v.  Davis,  115  N.  G.  85,  44  Am.  St.  Bep.  439,  20  S.  E.  188; 
Beede  v.  Lamprey,  64  N.  H.  510,  10  Aul  St.  Rep.  426,  15  Atl.  133. 
Oompare  Wing  v.  Milliken,  91  Me.  387,  64  Am.  St.  Bep.  238,  40  AtL 
188;  Powers  v.  Tilley,  87  Me.  34,  47  Am.  St.  Bep.  304,  82  AtL  714L 


Jan.  1902.]        Wbndbl  v.  Spokahb  Countt.  825 


WENDEL  y.  SPOKANE  COTTNTT. 

[27  Wash.  121,  67  Pac  576.] 

FDBZJO  IiAKDS— Injury  to  Homestead.— An  entryman  nnder 
"tlie  federal  homestead  laws  may  brin|;  an  action  for  injury  to  his 
land,    although  he  has  not  yet  made  final  proof,     (p.  826.) 

MUinOIPAL  OOBPOBATIOKS— mtra  Vires.— A  municipal 
•corporation  is  not  liable  for  an  act  wholly  beyond  the  scope  of  its 
pcrwers,  but  it  is  answerable  for  a  wrongful  act  done  in  the  execu- 
tion of  its  authority,     (p.  826.). 

OOT7KTY  BOAD— Injury  from  Cfonstnictioii  of.— If,  in  the 
construction  of  a  county  road,  the  water  of  a  lake  is  drained  onto 
lo-wer  lands,  the  county  is  liable  for  the  injury  occasioned,  irrespective 
of  negligence,     (pp.  826,  828.) 

Shine  &  Winfree,  for  the  appellante. 

^iles  Poindexter  and  James  Z.  Moore^  for  the  respondent. 

^^^  DUNBAB,  J.    This  is  an  action  for  damages  caused  by 
draining  the  waters  of  a  lake  in  Spokane  county  onto  the  lands 
of  the  plaintiffs,  done  by  order  of  the  board  of  county  com- 
missioners in  constructing  a  road  across  said  lake.    The  com- 
plaint  alleges,  in  substance,  that  plaintiff  Frank  Wendel  had 
entered  the  lands  as  a  homestead  under  the  homestead  laws  of 
the  United  States,  and  that  he  and  his  wife  have  ever  since 
lived  on  said  lands  and  cultivated  them  under  the  said  home- 
stead laws,  but  have  not  yet  made  final  proof ;  that  the  board 
of  county  commissioners  of  Spokane  county  ordered  a  county 
road  to  be  surveyed,  laid  out,  established,  and  built,  a  portion 
of  the  road  running  through  TumbuU  Lake;  that  they  took  a 
portion  of  the  bed  of  said  lake  for  the  purpose  of  buildinor  the 
road,  disregarded  the  surveyor's  recommendation  that  a  bridge 
be  built  over  said  lake,  and  ordered  a  canal  or  ditch  to  be  cut 
out  of  said  lake  between  the  said  roadbed  and  the  plaintiffs' 
land ;  that  the  ditch  was  for  the  purpose  of  draining  a  portion 
of  the  said  lake  so  that  the  road  might  be  built  thereon ;  that 
the  said  canal  or  ditch  was  constructed  and  finished  by  defend- 
ant, and  was  cut  through  a  natural  ridge  of  land  which  had 
theretofore  protected  plaintiffs'  land  from  the  overflow  of  said 
lake;  that  it  was  cut  in  order  to  give  an  outlet  for  the  water 
on  said  roadbed  for  the  purpose  of  avoiding  the  necessity  of 
maintaining  a  bridge;  that  the  road  was  laid  out,  established, 
built,  and  constructed  by  Spokane  county,  and  ^^  is  now  be- 
ing used  by  said  counl^  as  a  county  road^  and  that  the  said 


886  Ambbican  Statb  BBPO&i!e^  Vol.  91.  [Wadk 

waters  of  said  roadbed  have  been  since  said  date,  and  are  nor 
beings  drained  through  said  ditch ;  alleging  the  damages  ariamf 
from  the  emptying  of  the  waters  upon  plaintiffs'  land*  A  de> 
murrer  was  interposed  to  this  complaint  on  the  ground  that  it 
did  not  state  facts  sniScient  to  constitute  a  cause  of  action^ 
which  demurrer  was  sustained,  and,  the  plaintiffs  electing  t» 
stand  upon  their  complaint^  judgment  was  entered  dismissiiig 
the  action,  from  whidi  judgment  this  appeal  is  taken* 

It  is  claimed  by  the  respondent  that  there  was  not  snfficieat 
allegation  of  ownership  in  the  land  to  maintain  this  actioiL.  We 
think,  however,  that  the  allegations  set  forth  in  the  oomplaint 
above  noted  were  sufficient :  Yakima  County  y.  Tullar,  3  Wash. 
Ter.  393,  17  Pac.  885;  Pierce  v.  Fraoe,  2  Wash.  81,  26  Pac 
192,  807. 

The  main  contention,  however,  is  that  iiie  act  oimiplaiiied 
of  was  beyond  the  legal  power  of  the  county,  and  therefore  nUia 
vires ;  or,  reduced  to  logical  statement,  that  the  county  had  no 
light  to  commit  the  act  which  caused  the  damage,  and  is  there- 
fore not  reqK)n6ible.  A  great  many  of  the  cases  cited  by  re- 
spondent are  to  the  effect  that  the  county  cannot  do  an  un- 
lawful act,  and  that,  if  such  act  it  done  by  an  officer  of  a  mmii- 
eipal  corporation,  the  corporation  is  not  liable  in  any  event. 
These  cases  are  not  in  point  in  this  state,  where  the  oppoeito 
doctrine  has  been  uniformly  held :  Eirtley  v.  Spokane  County, 
20  Wash.  Ill,  54  Pac.  936;  Einseidler  v.  Whitman  County,  29 
Wash.  388,  60  Pac.  1122 ;  Commercial  Electric  etc  Co.  v.  Ta- 
coma,  20  Wash.  288,  72  Am.  St  Bep.  103,  66  Pac  219. 

In  discussing  the  liability  of  municipal  corporations  for  aet» 
committed  by  their  officers  which  are  defended  on  ***  the 
ground  of  the  same  being  ultra  vires,  we  must  not  lose  sight 
of  the  distinction  which  exists  between  acts  which  are  absolutely 
ultra  vires  by  reason  of  the  corporation  having  no  authority  to 
act  on  the  subject  matter — ^it  being  wholly  beyond  the  scope  of 
its  powers — ^and  those  acts  which,  in  a  s^ise,  are  termed  ultra 
vires,  where  the  body  has  jurisdiction  of  the  subject  matter,, 
but,  in  the  execution  of  its  authority,  trespasses  upon  the  rights 
of  others.  In  the  first  instance,  it  is  conceded  by  all  authority 
that  the  corporation  is  not  liable,  and  in  the  second,  by  almost 
imiversal  modem  authority,  that  it  is;  that  the  wrongful  act 
may  be  the  foundation  of  an  action  for  damages  against  the 
corporation,  and  that  such  action  will  lie  against  the  corpora- 
tion either  when  the  act  is  done  by  its  officers  under  its  author- 
ity or  has  been  ratified  by  it.    Keeping  these  distinctions  in 


-  1902.]'      Wbndkl  v.  Spokane  County.  827 


it  is  not  difficult  to  determine  that  the  action  will  lie  ii> 
if  tiie  allegations  of  the  complaint  are  true;  for  the- 
of  the  county  in  this  respect  was  not  in  reference  to  & 
which  was  entirely  without  its  authority  and  scope.     On 
C5ontrary,  it  was  acting  upon  a  subject  especially  relegated 
management  and  control  by  the  laws  of  the  state. 
Xtespondent  says  that  this  damage,  if  any  was  caused,  was 
Tised  over  seven  miles  from  the  roadbed.    It  makes  no  differ- 
whether  the  damages  were  sustained  seven  miles  or  seven 
from  the  roadbed.    It  might  be  a  little  more  difficult  to 
that  the  action  of  the  county  at  that  distance  was  the- 
px'o^imate  cause  of  the  injury,  but  tiiat  is  a  question  which  wilt 
euhmitted  to  the  discretion  of  the  jury.    The  contention  of 
respondent  that  the  county  cannot  be  held  responsible  for 
ixi^*^^  occurring  off  of  or  beyond  the  roadbed  resulting  fron» 
building  of  the  road  cannot  be  sustained  by  either  reason 
or  authority.    It  might  as  well  be  said  that  if  the  roadbed 
8  covered  with  boulders,  they  could  be  rolled  off  by  order  of 
county  onto  adjoining  lands,  or  that  the  county  could  sluice 
mud  or  water  from  the  roadbed  onto  adjoining  lands,  or  even 
lands  at  a  distance,  and  shift  the  liability  to  the  individuals 
^vrho  did  the  work.    Such  a  claim  is  aptly  criticised  by  the  su- 
preme  court  of  the  United  States  in  Salt  Lake  City  v.  Hollister, 
1.18  IT.  S.  256,  6  Sup.  Ct.  Kep.  1055,  in  the  following  language: 
**It  is  said  that  the  acts  done  are  not  the  acts  of  the  city,  but 
of  ita  officers  or  agents  who  undertook  to  do  them  in  its  name. 
This  would  be  a  pleasant  farce  to  be  enacted  by  irresponsihle 
jiartieB,  who  give  no  bond,  who  have  no  property  to  respond  to- 
dvil  or  criminal  snits,  who  make  no  profit  out  of  it,  while  the 
city  grows  rich  in  the  performance.*' 

The  circumstances  in  the  case  cited  were  different  from  those 
in  this  case,  but  the  principle  involved  in  relation  to  the  liability 
of  the  corporation  is  exactly  the  same. 

It  is  insisted  that  there  is  no  allegation  of  carelessness  or 
negligence  in  the  complaint.  No  such  allegation  is  necessary. 
If  the  allegations  of  the  complaint  are  true,  it  is  the  taking  of 
private  property  for  public  use  without  compensation,  and  falls 
within  the  prohibition  of  the  constitution  (article  1,  section 
16)  so  often  construed  by  this  court.  And  it  makes  no  differ- 
ence whether  it  was  done  negligently  or  carefully.  The  taking 
is  what  the  constitution  prohibits:  Brown  v.  Seattle,  5  Wash. 
35,  31  Pac.  313,  32  Pac.  214;  State  v.  Superior  Court  of  King- 
County,  26  Wash.  278,  66  Pac.  385. 


«28  American  State  Beports^  Vol.  91.  [WsdL 

In  any  view  of  the  case  the  county  has  ratified  the  action, 
whoever  may  have  heen  originally  responsible  for  it:  Com- 
mercial Electric  etc.  Co.  v.  Tacoma,  20  Wash.  288,  72  Am.  St 
Tlep.  103,  55  Pac.  219. 

^®  As  sustaining  the  view  that  the  action  of  the  oonnty  in 
draining  the  lake  for  the  purpose  of  building  the  road  is  not 
ultra  vires  to  such  an  extent  that  the  county  can  escape  respon* 
€ibility  for  damages  resulting  from  such  work,  see  Ashley  t. 
Port  Huron,  35  Mich.  296,  24  Am.  Rep.  552;  Pmnpelly  v. 
Green  Bay  Co.,  13  Wall.  166 ;  Arimond  v.  Green  Bay  etc  Canal 
€o.,  31  Wis.  316 ;  Eaton  v.  Boston  etc.  R.  R.  Co.,  61  N.  H.  504, 
12  Am.  Bep.  147 ;  Tyler  v.  Tehama  County,  109  CaL  618,  42 
Pac.  240;  McClure  y.  Red  Wing,  28  Minn.  186,  9  N.  W.  767; 
Hendershott  v.  Ottumwa,  46  Iowa,  668,  26  Am.  Bep.  188. 

Some  other  minor  objections  to  the  complaint  are  raised, 
which,  we  think,  are  not  meritorious.  The  complaint  stating 
a  cause  of  action  against  the  county,  the  judgment  will  be  re- 
versed, with  instructions  to  the  lower  court  to  overrule  the  de- 
murrer. 

Reavis,  C.  J.,  and  Anders,  Mounts  White,  FuUerton  and 
Hadley,  JJ.,  concur. 


The  Liability  of  Municipal  Corporations  for  tlie  acts  of  their  of- 
'ficers  and  agents  is  considered  in  the  monographic  note  to  Ooddard 
V.  Harpswelly  30  Am.  St.  Bep.  376,  413.  A  municipal  corporation  is 
not  liable  for  the  acts  of  its  servants  and  agents  which  it  has 
no  power  to  authorize:  Gross  v.  Portsmouth,  68  N.  H.  266,  73  Ant 
€t.  Bep.  586,  33  Atl.  256;  monographic  note  to  Hilsdorf  v.  St.  Ijonia, 
300  Am.  Dec.  358.  In  general,  however,  a  municipality,  like  an  in- 
dividual, is  answerable  for  neglect  or  omisnona  resulting  in  injury 
or  damages:  Potter  v.  New  Whatcom,  20  Wash.  589,  72  Am.  St. 
Bep.  135,  56  Pac.  394.  But  see  Priehard  v.  Board  of  Commra.,  126 
N.  0.  908.  78  Am.  St.  Bep.  679,  86  S.  £.  858.  If  a  city  or  township 
•causes  water  to  flow  or  settle  upon  private  property,  it  is  answeraUe 
therefor:  City  of  Brunswick  v.  Tucker,  103  Ga.  233,  68  Am.  St. 
"Bep.  92,  29  S.  E.  701;  Mayor  v.  Sikes,  94  Ga.  30.  47  Am.  St.  Bep. 
132,  20  S.  E.  267;  Patoka  Township  v.  Hopkins,  181  Ind.  142,  31  Am. 
«t.  Bep.  417.  30  N.  E.  896;  Kelly  v.  Pittsburgh  etc  B.  &.  Co.,  28 
Ind.  App.  457,  91  Am.  St.  Bep.  134,  63  N.  E.  233. 

Public  Land*.— When  public  lands  have  been  thrown  open  to  privats 
acquisition,  one  who  complies  with  all  the  requisites  to  entitle  him 
to  a  patent  for  any  particular  tract  is  regarded  as  the  equitable 
owner  thereof:  See  the  monographic  note  to  Schneider  v.  Hutehinsos, 
76  Am.  St.  Bep.  480.  Consult,  also,  Phillips  v.  Carter,  135  CaL  60i, 
87  Am.  St.  Bep.  152,  67  Pac.  1081;  State  v.  Bridges,  22  Wash.  6^ 
70  Am.  St.  Bep.  914,  60  Pac  60;  Wittenbrock  ▼.  Whcadon,  128 
Cal.  150,  79  Am.  St.  Bep.  32,  60  Pac  664. 


Jan.  1902.]    Callihan  v*  Washington  Water  Power  Co.    82^ 


CATiUHAlT  T.  WASHINGTON  WATER  POWER  CO. 

[27  Waslu  154,  67  Pae.  697.] 

APPEAIi— Fraud  at  TxiaL— The  supreme  court,  although  att 
tlie  testimony  has  been  brought  up,  is  not  so  good  a  judge  of  whether 
frand  -was  perpetrated  at  the  trial  as  the  court  below,  and  its  judg- 
ment "Will  not  be  interfered  with,  an  abuse  of  its  discretion  not  ap^ 
pearin^r.     (pp.  830,  831.) 

15  VIDEKOE.— All  Facts  are  Admissible  in  eridence  which  af» 
ford  reasonable  inferences,  or  throw  any  light  upon  the  matter  con- 
tested,     (p.  832.) 

SVIDENOE.— The  Trip  Beport  of  a  Street-car  Oonductor,  show- 
ing the  number  of  passengers  on  a  certain  trip  and  that  they  paid 
cash  fares,  is  admissible  in  evidence  against  one  who  claims  to  have* 
teen  a  passenger,  under  a  transfer  slip,  on  that  trip  and  negligently^ 
injured,     (p.  840.) 

Graves  &  Graves,  for  the  appellants. 
Stephens  &  Bunn,  for  the  respondent. 


DUNBAR,  J.    Action  for  damages  hy  the  appellants^. 
Lillian  I.  Callihan  and  C.  C.  Callihan,  for  personal  injuries 
^**  alleged  to  have   heen   sustained  hy   Lillian   I.   Callihan 
through  respondent's  negligence  in  operating  one  of  its  street* 
cars  in  the  city  of  Spokane.    A  jury  returned  a  verdict  for  the 
respondent.    Appellants'  motion  for  a  new  trial  was  denied,. 
and  from  the  judgment  entered  thereupon  this  appeal  was  taken^ 
The  complaint  alleges,  in  substance,  that  Lillian  I.  Callihan 
was  a  passenger  on  one  of  the  street-cars  of  respondent  in  the- 
city  of  Spokane,  on  the  evening  of  April  28,  1900,  and  that, 
while  attempting  to  alight  from  said  car  at  the  comer  of  Fifth 
and  Hatch  streets,  the  car  was  negligently  started  in  an  abrupt 
manner,  throwing  said  plaintiff  to  the  ground,  by  reason  of 
which  fall  she  sustained  the  injuries  complained  of.    The  sub* 
stantial  defense  of  the  respondent  is  that  the  appellant^  Lillian 
I.  Callihan,  was  not  a  passenger  on  its  car  at  the  time  of  the 
alleged  accident,  and  that,  if  she  received  any  injuries  at  that 
time,  it  was  not  through  any  fault  or  agency  of  the  company, 
but  by  reason  of  her  own  mishap  or  misfortune.    There  is  un- 
disputed testimony  of  the  fact  that  the  car  stopped  at  Fifth  and 
Hatch  streets  to  let  off  a  passenger  by  the  name  of  Chandler. 
It  then  proceeded  several  blocks  to  the  end  of  the  line,  and,, 
upon  returning  to  Fifth  and  Hatch  streets,  the  motorman. 
Spear,  saw  Mrs.  Callihan  lying  in  the  road  by  the  side  of  the 
car  line.     He  and  the  passengers  alighted  from  the  car,  ex- 


^30  American  State  Bbpobts^  Vol.  91.  [Widt 

-amined  the  woman^  and  thought  that  she  was  either  dead  or 
•dying.  They  then  got  on  the  car,  traveling  two  blocks,  when 
Spear,  the  conductor  in  charge,  stopped  the  car,  went  into  a 
^octor^s  office  near  by,  and  telephoned  what  he  had  seen  to  the 
police  station.  On  his  return  to  the  car  from  the  doctors  offiee 
he  met  a  Mr.  Koontz,  told  him  what  had  occurred,  and  asked 
him  to  go  down  and  see  to  the  woman.  *'®  Mr.  Koontz  im- 
mediately repaired  to  where  the  woman  was  lying,  found  her 
attempting  to  get  up  from  the  ground,  and  assisted  her  to  arise, 
when  the  east4)ound  car  came  along  and  stopped,  the  motor- 
man  got  off,  and  he  and  Mr.  Koontz  got  her  into  a  seat  on  the 
<!ar.  Mr.  Callihan,  the  husband  of  the  woman,  came  to  the  door 
•of  his  house  with  a  lamp,  when  he  heard  Ihe  car  comings  went 
-down  to  see  what  had  occurred — ^his  wife  not  coming  in — and, 
with  the  assistance  of  Mr.  Koontz,  carried  her  to  the  house  and 
got  her  into  bed.  A  doctor  was  summoned  and  the  patient  was 
given  necessary  attention. 

Error  is  alleged  on  the  part  of  the  court  (1)  in  striking  the 
interrogatories  propounded  by  appellants  to  respondent;  (2) 
in  receiving,  over  appellants'  objection,  certain  testimony;  (3) 
in  receiving  in  evidence,  over  appellants*  objection,  conductor 
Spear's  trip  report  as  to  fares  taken,  etc. ;  and  (4)  in  denying 
appellants'  motion  for  a  new  trial.  It  is  earnestly  urged  by 
the  appellants  that  the  court  erred  in  denying  the  motion  for 
«  new  trial;  that  the  record  in  this  case  shows  corruption  on 
the  part  of  the  jury,  and  undue  influence  brought  to  bear  on 
the  jury,  and  fraud  in  the  preparation  and  conduct  of  the  de- 
fense. This  was  a  bitterly  contested  case,  the  record  showing 
that  there  was  a  great  deal  of  partisan  feeling  exhibited  in  the 
trial  of  the  cause  on  both  sides;  and  much  is  said  in  the  brief 
of  the  appellants  in  support  of  their  contention  that  the  motion 
for  a  new  trial  should  have  been  granted.  But  from  an  ex- 
amination of  the  voluminous  record  in  this  case,  which  com- 
prises about  one  thousand  pages,  we  are  unable  to  conclude 
that  this  court  would  be  justified  in  setting  aside  the  verdict  of 
the  jury  on  the  grounds  urged.  It  is  insisted  by  the  appellants 
that  this  court  would  be  as  good  a  judge  of  whether  fraud  had 
been  ^'^'^  perpetrated  as  the  court  below,  the  testimony  having 
all  been  brought  here;  but  this  it  not  exactly  true.  There  is 
a  certain  atmosphere  surrounding  the  trial  of  every  cause,  that 
the  trial  court  is  familiar  with,  which  enables  him  to  better 
construe  the  actions  of  witnesses  and  jurors  than  this  court 
could;  and,  it  not  appearing  that  the  court  abused  its  discretion 


Fan.  1902.]    Callihan  v.  WASiiixaTON  Water  Power  Co,    831 

in  refusing  the  motion^  its  judgment  will  not  be  interfered  with 
here, 

Neither  do  we  think  that  the  court  erred  in  striking  the  in- 
terrogatories propounded  by  the  appellants  to  respondent^  or 
that  it  erred«in  recming  the  testimony  objected  to  on  pages 
429  to  433  of  the  statement  of  facts. 

Tliere  is,  however,  an  assignment  of  error  that  has  challenged 
the  attention  of  this  court,  and  has  led  to  an  extensive  investi- 
gation of  the  law  involved;  that  is,  that  the  court  erred  in 
receiving  in  evidence,  over  the  appellants*  objection,  the  con- 
ductor's trip  report  as  to  fares  taken,  etc.    According  to  Mra. 
Callihan^s  testimony  the  car  from  which  she  claims  to  have 
been  thrown  must  have  been  the  east-bound  car,  leaving  the  end 
of  the  line — Natatorium  Park — ^at  8:65  o'clock,  and  Howard 
and  Biverside  at  9:15  o'clock,  in  charge  of  Spear,  conductor. 
She  says  her  fare  was  paid  with  a  transfer  slip  from  a  north 
aide  line.    Spear,  being  called  by  the  respondent,  testified,  as 
a  matter  of  independent  recollection,  that  he  had  five  passengetB 
to  the  corner  of  Howard  and  Riverside;  that  three  alighted 
there,  and  that  their  places  were,  within  the  next  few  blocks, 
taken  by  three  others,  thus  making  a  total  of  eight  for  the  trip ; 
that  all  paid  cash  fares ;  and  that  no  transfers  were  taken.    By 
his  identification  of  the  five  who  were  passengers  from  Howard 
and  Riverside  on  he  excludes  Mrs.  Callihan  from  the  number. 
He  then  further  testified  that  at  the  end  of  the  line  he  ^"^  made 
a  written  report,  showing  the  number  of  passengers  carried, 
and  the  fares  paid — whether  cash  or  transfer — and  that  this 
report  was,  in  regular  course  and  as  was  his  custom,  turned  in 
to  the  company.    This  report  was  then  oflFered  in  evidence,  and, 
on  objection,  was  rejected.     The  court  afterward  reconsidered 
his  ruling  and  admitted  it.     The  instrument  purports  to  show 
the  number  of  passengers  carried  by  Spear  on  his  respective 
trips  on  April  26th  and  the  medium  in  which  their  fares  were 
paid,  and  that  on  the  trip  in  question  he  had  eight  passengers, 
all  of  whom  paid  cash  fares.     This  is  appellants^  stat^nent, 
and  seems  to  be  warranted  by  the  record.     It  is  conceded  that 
the  conductor  in  this  instance  would  have  a  right  to  have  ex- 
amined the  report  for  the  purpose  of  refreshing  his  memory, 
but  it  is  alleged  that,  having  testified  independently  of  the 
memorandum,  the  introduction  of  the  memorandum  was  equiva- 
lent to  the  admission  of  declarations  previously  made,  which 
would  be  self-serving  in  their  nature.    It  is  difficult  to  discover 
any  sound  reason  for  allowing  the  witness  to  refresh  his  memory 


832  American  State  Eefobts,  Vol.  91.  [Wmdt 

from  a  memorandum  or  writing,  then  testify  to  a  fact  furnished 
by  the  writing,  but  which  he  could  not  have  testified  to 
the  aid  of  the  writing,  and  then  exclude  ihe  writing  which 
the  basis  of  the  tesfcimony.    It  would  seem  that,  after  all,  Hbe 
writing  furnished  the  primary  evidence  in  audi  a  case.     It  ift^ 
not  gainsaid  that  the  conductor  could  have  testified  from  the 
report,  and  that  the  report  could  have  been  used  in  the  presenoe 
of  the  jury  for  the  very  purpose  of  enabling  the  conductor  ti^ 
testify  to  the  state  of  facts  which  the  report  itself  showed  wbei^ 
introduced.    It  is  difficult  to  see  how  the  introduction  of  the 
report  could  work  a  self-serving  purpose  greater  than  could  be 
worked  by  it  on  its  introduction  for  the  purpose  of  refreshings 
the  ^^^  memory  of  the  witness.    The  object  of  a  legal  investh^ 
gation  is  the  elicitation  of  the  truth,  and,  to  effectuate  such  oIk 
ject,  all  facts  are  admissible  in  evidence  which  afford  reason- 
able inferences,  or  which  tiirow  any  light  upon  the  subject  mat^ 
ter  contested.    No  competent  means  of  ascertaining  the  truth 
should  be  neglected — ^much  less  inhibited;  and  none  are  to  be 
decreed  incompetent  unless  such  means  have  been  shown  by 
reason  and  experience  to  prevent  or  obscure  the  truth,  instead 
of  discovering  it.    What  are  the  alleged  objections  to  this  testi- 
mony?   That  it  is  incompetent,  irrelevant,  immaterial,  hear* 
say,  and  self-serving.    The  objections  given  to  it  at  the  trial 
were  more  restricted,  but  we  will  discuss  them  in  their  fullest 
scope.     Its  incompetency  depends  upon  whether  it  is  self-serv- 
ing or  not.    That  it  is  relevant  and  material  is  beyond  ques* 
tion,  and  it  is  equally  plain  that  it  is  not  hearsay;  for  it  is  in 
reality  the  testimony  of  the  witness  himself,  and  not  that  of  an- 
other person.     Could  it,  under  the  circumstances  of  this  case, 
be  self-serving?    It  may  be  stated  that  the  general  rule  is  that 
the  previous  declarations  of  a  witness  out  of  court,  and  not 
sworn  to,  are  not  admissible  to  sustain  his  evidence  given  in: 
court.    The  reason  for  this  rule  is  that  such  declarations  are 
or  might  be  self-serving,  and,  as  has  frequently  been  said,  make- 
a  witness'  credibility  depend  more  upon  the  number  of  times 
he  had  repeated  the  same  story,  than  upon  tiie  truth  of  the  storv 
itself.    Under  such  a  system  the  honest,  candid  litigant  would 
be  at  the  mercy  of  a  designing  opponent  who  had  industriously 
circulated  a  fabrication  which  he  conceived  it  would  be  to  his 
interest  to  swear  to  in  court.    But  when  the  reason  for  the  rule 
ceases,  the  rule  itself  cannot  apply,  and  the  testimony  will  be 
admitted  under  the  general  rule  above  quoted,  or  under  what 
might  be  termed  an  exception  *^  to  the  rule.    The  testimony 


Kan.  1902.]    Callihan  v.  Washington  Watbb  Power  Co.   €S8 

objected  to  here  was  not  a  statement  of  a  witness  made  preTious 
to  trials  but  after  tiie  issues  had  been  made  up^  and  oould  not 
liave  been  made  for  the  ulterior  purpose  of  strengthening  testi- 
moaay  which  he  intended  thereafter  to  offer;  but  it  was  the  re- 
port of  a  piiTate  officer,  which  it  was  hia  duty,  under  the  rules 
of  the  oorparation  which  employed  him,  to  make — ^rules  which 
ware  in  existence  before  the  aceident  occurred,  and  had  been 
TCignlarly  complied  with.    The  rules  themselyes  had  no  refer- 
ence to  the  subject  of  this  controversy.    The  compliance  with 
the  rules  had  no  such  reference,  and  the  compliance  with  the 
rules  in  this  particiQar  instance  could  have  had  no  such  refer- 
ence, for  the  report  was  made  before  there  was  any  knowledge 
on  the  part  of  the  witness  that  any  accident  had  occurred ;  and^ 
even  if  he  had  known  of  the  accident,  he  could  not  possibly  have 
surmised  that  the  particular  question  in  relation  to  transfers 
would  be  in  issue  m  any  cause  which  might  arise.    These  cir- 
cumstaxices  clearly  take  the  case  out  of  the  general  rule,  and 
render  the  testimony  absolutely  unobjectionable,  so  far  as  the 
charge  of  being  self-serving  is  concerned;  and,  relieved  of  this 
objection,  it  seems  to  us  that  it  is  the  very  best  testimony  that 
could  have  been  offered^  tending  to  elicit  the  truth  in  regard 
to  that  particular  point.    That  it  is  pertinent  and  convincing 
testiinony  is  testified  to  by  the  earnest  argument  made  by 
counsel  for  appellants  to  show  that,  if  error,  its  admission  is 
not  error  without  prejudice.    Indeed,  so  pertinent  and  convinc- 
iog  is  this  character  of  testimony  in  this  particular  case,  that, 
if  it  had  not  been  offered,  the  defendant  might  have  felt  that 
it  was  in  danger  of  being  subjected  to  a  telling  criticism  be- 
fore the  jury  for  omitting  to  produce  for  its  consideration  con- 
vincing evidence  resting  pecubarly  within  its  own  *®*  knowl- 
edge, the  omission  of  which  would  raise  the  presumption,  or  at 
least  a  strong  suspicion,  that  such  evidence,  if  adduced,  would 
operate  to  its  prejudice.    Many  cases  ai^D  cited  by  appellants 
in  support  of  the  inadmissibility  of  this  testimony,  but,  with 
few  exceptions,  they  go  only  to  the  general  proposition  an- 
nounced above — ^that  the  previous  declarations  of  a  witness  are 
inadmissible. 

Insurance  Co.  v.  Guardiola,  129  U.  S.  642,  9  Sup.  Ct.  Bep. 
425,  holds  that  letters  of  a  shipping  agent  to  his  principal  are 
incompetent  evidence,  either  in  themselves,  or  in  corroboration 
of  the  agenfs  testimony  of  the  quality  of  the  goods  shipped, 
against  third  persons.    It  is  evident  that  testimony  of  this  kind 

St.  R«p..  Vol.  »i— 53 


834  American  State  Eeports,  Vol,  91.  [Wash. 

would  fall  tinder  the  objection  of  being  self-serving,  because  it 
consisted  of  statements  by  the  agents  to  their  principals,  all  in 
the  same  interest,  and  all  with  reference  to  a  transaction  which 
they  knew  they  were  having  with  the  purchasing  parties.  The 
same  principle  ie  involved  in  cases  cited  from  this  state.  Thai 
is  a  different  proposition  entirely  from  the  case  at  bar,  where 
the  report  was  made  without  reference  to,  and  before  there  could 
have  been  any  thought  that  such  testimony  would  ever  be  called 
for  in  a  court  of  law. 

The  case  of  Nashville  etc.  By.  Co.  y.  Parker,  123  Ala.  683, 
27  South.  323,  is  more  nearly  in  point.  There  it  was  decided 
that  records  made  by  a  witness  were  not  admissible  when  the 
facts  were  proved  by  the  witness  himself  from  direct  personal 
knowledge,  and  the  records  were  not  offered  for  the  purpose  of 
refreshing  his  memory.  The  case  was  an  action  against  a  car- 
rier for  injuries  to  a  horse,  and  the  witness  attempted  to  testify 
that  the  seal  on  the  car  was  not  broken.  Many  cases  of  this 
class  do  hold  that,  where  the  witness  testifies  independently  as 
to  a  state  of  facts,  the  memorandum  cannot  be  introduced  in 
support  *^  of  such  testimony — a  rule  which  we  think,  as  be- 
fore indicated,  is  illogical,  and  which  is  severely  criticised  by 
many  of  the  best  courts  in  the  Union.  Without  especially  re- 
viewing the  other  cases  cited  by  appellants,  as  a  rule,  they 
simply  assert  the  general  doctrine  announced  above. 

This  is  the  rule  announced  in  appellants'  citation  from 
Thompson  on  Trials,  section  571  et  seq.  But,  under  the  head 
of  "Recognized  Exceptions  to  the  Rule,'*  section  574,  Mr. 
Thompson  says:  "There  are  certain  recognized  exceptions  to 
the  foregoing  rule,  as  to  which  all  the  authorities  agree.  Thus, 
where  the  witness  is  charged  with  testifying  under  the  influence 
of  some  motive  prompting  him  to  make  a  false  statement^  it  may 
be  shown  that  he  made  similar  statements  at  a  time  when  the 
imputed  motive  did  not  exist,  or  when  motives  of  interest  would 
have  induced  him  to  make  a  different  statement  from  that  whiA 
he  actually  made.'* 

The  suggestion  would  naturally  be  made  in  this  case  that  the 
conductor,  who  was  an  employ6  of  the  company,  would  be 
prompted  to  testify — at  least,  as  far  as  he  could  conscientiously 
— ^in  favor  of  his  employers.  The  introduction  of  this  testi- 
monv  would  show  that  he  made  the  similar  statement  at  a  time 
when  the  imputed  motive  did  not  exist,  for  there  was  no  motive 
to  have  made  an  erroneous  report ;  at  least,  no  motive  connected 
with  this  cause.    Another  exception  to  the  rule  is  that,  if  a  wit- 


•  1902.]    Gallihan  i7,  Washington  Watee  Power  Co,    835 


be  impeached  by  proof  of  his  having  prenously  made  state- 
xnents  that  were  in  contradiction  of  evidence  tending  to  show 
"that  the  witness'  account  of  the  transaction  was  a  fabrication  of 
A  recent  date,  it  may  be  shown  that  he  gave  a  similar  acconnt, 
before  its  effect  and  operation  could  be  foreseen.  It  must  ap- 
pear from  the  testimony  in  this  case  that  the  account  given  in 
"the  report  would  *^  tend  to  show  that  the  account  given  by 
the  witness  at  the  trial  was  not  a  fabrication  of  a  recent  date. 

The  case  of  Eobb  v.  Hackley,  cited  by  appellants  from  23 
'Wend.  60,  while  holding  that  proof  of  declarations  made  by  a 
"witness  out  of  court  in  corroboration  of  testimony  given  by  him 
on  the  trial  of  a  case  is,  as  a  general  rule,  inadmissible,  notes 
"the  very  exceptions  which  we  have  just  discussed,  and  cites  Phil- 
lips on  Evidence,  Cowen's  edition,  308,  where  that  author  says 
that,  in  one  point  of  view,  a  former  statement  by  the  witness 
appears  to  be  admissible  in  confirmation  of  his  evidence — ^that 
is^  where  the  counsel  on  the  other  side  impute  a  design  to  mia- 
represent  from  some  motive  of  interest  or  relationship;  that 
there,  indeed,  in  order  to  repel  such  an  imputation,  it  might 
be  proper  to  show  that  the  witness  made  a  similar  statement  at 
a  time  when  the  supposed  motive  did  not  exist,  or  when  motives 
of  interest  would  have  prompted  him  to  make  a  different  state- 
ment of  the  facts.  The  court  adds:  **It  is  agreed  also  by  Mr. 
Starkie,  that  such  evidence  may,  under  special  circumstances, 
be  admitted;  as,  for  instance,  in  contradiction  of  evidence 
lending  to  show  that  the  account  was  a  fabrication  pf  late  date, 
and  where  consequently  it  becomes  material  to  show  that  the 
game  account  has  been  given  before  its  ultimate  effect  and  oper- 
ation, arising  *from  a  change  of  circumstances,  could  have  been 
foreseen*';  quoting  Evans  in  his  notes  to  Pothier,  where,  after 
speaking  of  the  admission  of  declarations  of  the  witness  on  for- 
mer occasions  to  confirm  his  statements  in  court,  it  is  said: 
'''In  ordinary  cases  the  evidence  would  be  at  least  superfluous, 
for  the  assertions  of  a  witness  are  to  be  regarded  in  general  as 
true,  until  there  is  some  particular  reason  for  impeaching  them 
as  false;  which  reason  may  be  repelled  by  circumstances  show- 
ing that  the  motive  upon  *®^  which  it  is  supposed  to  have  been 
founded  could  not  have  had  existence  at  the  time  when  the  pre- 
vious relation  was  made,  and  which,  therefore,  repel  the  suppo- 
sition of  the  fact  related  being  an  afterthought  or  fabrication. 
He  adds,  if  a  witness  speaks  to  facts  negativing  the  existence  of 
s  contract,  and  insinuations  are  thrown  out,  that  he  has  a  near 
connection  with  the  party  on  whose  behalf  he  appears — ^that  a 


836  Amjbrican  Statb  Beports,  Vol.  91.  [Wade 

change  of  market,  or  any  other  alteration  of  ciTcum8t«noe8«  has 
excited  an  inducen^ent  to  recede  from  a  deliberate  eogagiOBBent; 
the  proof  by  unauapicioufl  testimoay  that  a  aimilar  account  vms 
giv&a.  when  the  contract  alleged  had  every  prospect  of  advantage,, 
removes  the  imputatian  resulting  from  the  opposite  drcnm- 
fitanee,  and  the  te0tiLnK)ny  is  placed  upon  the  same  level  which 
it  would  have  had  if  the  motive  for  receding  from  a  previous 
intention  had  never  had  existence.'^ 

In  the  case  there  under  consideration  the  testimony  was  hdi 
to  be  inadmissible^  but  ibe  testimony  songht  to  be  admitted  was 
a  letter  which  the  witness  had  written  to  the  plaintiffs,  and  the 
court  said:  ^^Independent  of  his  own  statement,  there  was  no 
evidence  that  the  letter  was  written  when  the  transaction  was 
recent,  or  that  it  had  ever  been  in  the  hands  of  the  plaintiffs.  It 
may  have  been  prepared  with  direct  reference  to  this  litigation. 
The  case  is  not  so  strong  as  it  would  have  been  on  proof  by  a 
third  person  that  the  witness  had  made  similar  declarations  im- 
mediately after  the  business  was  transacted.*' 

So  that,  of  course,  if  the  testimony  might  have  been  prepared 
with  direct  reference  to  the  litigation,  it  would  fall  under  the 
objection  of  being  selfnserving  testimony,  and  was  properly  over- 
ruled. 

In  Gates  v.  People,  14  111.  433,  the  supreme  court  of  IHinois 
held  that  tiie  former  declarations  of  a  witness  whose  credibility 
was  attacked  could  be  given  in  evidence  to  corroborate  his  testi- 
mony. The  particular  case  was  **^  this:  The  prisoner  called 
witnesses  to  show  that  the  character  of  Devol  for  truth  and  ver- 
acity was  bad,  and  he  proved  that  an  indictment  was  then  pend- 
ing against  Devol  for  being  accessary  after  the  fact  to  the  mur- 
der of  Liley.  The  court  thereupon  allowed  the  prosecution  to 
prove  by  the  sheriff  that  Devol,  on  coming  out  of  the  jail,  and 
before  seeing  John  Gates,  gave  the  same  account  of  the  inter- 
view with  the  prisoner.  This  testimony  was  (Ejected  to  as  inad- 
missible. The  court  said :  **There  seems  to  be  a  conflict  of  au- 
thority upon  the  question  whether  the  former  declarations  of  a 
witness  whose  credibility  is  attacked  may  be  given  in  evidence 
to  corroborate  his  testimony.  It  will  not  be  necessary  in  this 
ease  to  determine  which  is  the  better  general  rule.  The  authori- 
ties all  agree  that  the  former  statements  of  the  witness  may  in 
some  instances  be  introduced  for  the  purpose  of  sustaining  his 
testimony;  as  where  he  is  charged  with  testifying  under  the  in- 
fluence of  some  motive  prompting  him  to  make  a  false  state- 
ment, it  may  be  shown  that  he  made  similar  statem^its  at  a 


-  1902.]    Callihaw  v.  Washikgton  Water  Power  Co.    837 


when,  the  imputed  motive  did  not  exifit^  or  wh€n  motiveg  of 
interest  would  have  induced  him  to  make  a  different  statement 
♦of  facts.  So  in  contradiction  of  evidence  tending  to  show  that 
the  ^tness'  account  of  the  transaction  was  a  fabrication  of  a 
'recent  date,  it  may  be  shown  that  he  gave  a  similar  account  be- 
fore its  effect  and  operation  could  be  f  oreseen.*' 

In  Insurance  Co.  v.  Weide,  9  Wall.  677,  the  very  objection  is 
Tnade  that  the  testimony  was  inadmissible  because  there  was  in- 
-dependent  testimony  admitted.  The  court  says:  ^^As  to  the 
second  question,  the  admissibility  of  the  evidence  received  by 
iihe  court.  There  can  be  no  doubt  bnt  the  day-books  and  ledger, 
Ihe  entries  in  which  were  testified  to  be  correct  by  the  persons 
who  made  them,  were  properly  admitted.  They  would  not  have 
been  evidaiee  per  se,  ^®*  bat  with  the  testimony  accompanying 
iihein  all  objections  were  removed.^' 

In  Insurance  Co.  v.  Weide,  14  Wall.  375,  the  court  said: 
^rHow  far  papers,  not  evidence  per  se,  but  proved  to  have  been 
'true  statements  of  fact,  at  the  time  they  were  made,  are  admissi- 
ble in  connection  with  the  testimony  of  a  witness  who  made 
them,  has  been  a  frequent  subject  of  inquiry,  and  it  has  many 
times  been  decided  that  they  are  to  be  received — ^and  why  should 
they  not  be?  Quantities  and  values  are  retained  in  the  memory 
Tvith  great  diflSculty.  If,  at  the  time  when  an  entry  of  aggre- 
gate quantities  or  values  was  made,  the  witness  knew  it  was  cor- 
rect,  it  is  hard  to  see  why  it  is  not  at  least  as  reliable  as  is  the 
memory  of  the  witness.^' 

In  Curtis  v.  Bradley,  65  Conn.  99,  48  Am.  St.  Rep.  177,  31 
Atl.  591,  it  was  held  that  the  written  statement  of  relevant  facts 
is  admissible  in  evidence  on  the  testimony  of  the  witness  that 
lie  knew  when  it  was  made  that  the  facts  were  correctlv  stated 
therein,  but  that  he  caimot  now  remember  them.  In  criticising 
the  practise  of  allowing  the  memorandum  to  be  testified  from« 
but  not  to  be  admitted,  the  court  in  that  case  said :  '^ All  courts 
concur  in  holding  that  the  witness  may  read  the  statement  of 
«nch  paper  to  the  jnry,  and  that  the  jury  may  draw  the  conclu- 
sion that  the  statement  so  read  to  them  is  a  true  statement  of 
the  facts,  but  some  courts  hold  that  the  paper  is  not  evidence. 
It  seema  to  us  to  be  pressing  the  use  of  a  legal  fiction  too  far  for 
41  court  to  permit  Hm  statement  made  by  such  paper  to  be  read 
4u»  evidence,  while  holding  that  the  law  forbids  the  admission  as 
•evidence  of  the  paper  which  is  the  original  and  only  proof  of  the 
statement  admitted.  In  other  words,  it  would  seem  as  if ,  in 
iidmitting  the  paper  to  be  so  read,  the  court,  of  necessity,  ad- 


838  American  Statb  Bbpobts,  Vol.  91.  [Wade 

mitted  the  paper  as  evidence^  and  therefore,  by  ihe  concmTcoi 
authority  of  all  courts^  the  paper  is  itself  *^  admissible.  .  .  •  • 
The  paper  is  read  by  the  witness,  and  the  knowledge  the  witness 
once  had  of  the  facts  stated  by  the  paper  is  imputed  to  him  as 
still  existing,  and  the  statement  of  the  paper  is  received  as  the 
testimony  of  the  witness,  and  the  paper  itself,  the  only  witnesa 
capable  of  making  the  statement,  is  excluded.     The  use  of  such 
fiction  in  the  administration  of  justice  can  rarely,  if  eTer,  be 
justified.    It  is  certainly  uncalled  for  in  this  instance.     The 
principles  of  law  invoked  to  justify  the  fiction  are  amply  snflB- 
cient  to  support^  indeed  to  demand,  the  admission  of  the  doco* 
ment  as  evidence.    As  regards  its  admissibility  as  evidence, 
there  is  no  substantial  diflference  between  this  paper  and  any 
other  tangible  object  capable  of  making  a  truthful  and  relevant 
statement.*' 

The  same  might  well  be  said  of  the  report  the  admissibility 
of  which  is  questioned  by  the  appellants  in  this  case.  It  is  a 
circumstance  throwing  light  on  the  mind  of  the  jury  on  the 
question  of  whether  or  not  any  passenger  traveling  on  the  car 
on  that  trip  had  paid  passage  by  transfer  slip. 

In  Dunlap  v.  Hopkins,  95  Fed.  231,  37  C.  C.  A.  52,  it  waa 
held  that  a  letter  written  by  a  witness  to  a  third  person,  contain- 
ing a  statement  of  a  transaction  to  which  the  witness  testified 
as  having  taken  place  on  the  day  on  which  the  letter  was  writtei^ 
and  dated — ^the  correctness  of  the  date  having  been  testified  t> 
by  the  witness — ^was  admissible  in  evidence  as  a  memorandum 
corroborating  the  testimony  of  the  witness  as  to  the  date  of  the 
transaction.  This  case  goes  further  than  it  is  necessary  to  go 
to  sustain  the  admission  of  the  testimony  in  the  case  at  Iwr. 

In  Glaspie  v.  Keator,  56  Fed.  203,  6  C.  C.  A.  474,  where  a 
book  showing  scale  of  timber  was  admitted,  the  court  said:  ''We 
are  of  the  opinion  that  under  such  circumstances  either  of  the 
timber  estimators  might  properly  refer  to  the  *^  book  for  the 
purpose  of  refreshing  his  memory  as  to  the  opinion  then  formed, 
and  to  enable  him  to  testify  thereto,  and  that,  in  connection  with 
his  testimony,  the  book  itself  was  properly  admissible.    But,, 
even  if  we  are  wrong  in  this  view,  yet  it  appears  to  us  that  the 
admission  of  the  book  was  in  no  wise  prejudicial  to  the  plaintiff 
in  error.     The  witness  who  identified  it  had  already  given  evi- 
dence as  to  its  contents,  and  what  it  showed,  which  was  not  ob- 
jected to.    It  had  appeared  in  the  course  of  his  examination 
before  the  book  was  offered  that  it  contained  an  entry  showing 
that  the  total  timber  on  Keator*s  land  was  three  million  sir 


S'&v^.  1.902.]    Caluham  v.  Washinoton  Wateb  Power  Co.    839 

lixtn€lred  and  ninety-two  thonsand  feet,  and  the  book,  when  of- 
»  simply  confirmed  that  statement^  and  had  no  tendency  to 
any  further  f acf 

Owens  ▼.  State,  67  Md.  307,  10  Atl.  210,  the  very  que^ 
nnder  discussion  here — ^namely,  that  the  report  coxdd  not  be 
iixtroduced  because  the  conductor  had  testified  independently  of 
xfe       is  discussed,  the  court  saying:  "It  has  been  urged  in  argu- 
xnent  that  tiie  entry  or  memorandum  can  only  be  used  where 
^he  witness  has  no  present  independent  recollection  of  the  trans- 
ctcrfcion  referred  to.    But  its  admissibility  depends  upon  no  such 
distinction.    If  the  witness  swears  that  he  made  the  entry  or 
.emorandum  in  accordance  with  the  truth  of  the  matter,  as  he 
it  to  exist  at  the  time  of  the  ocurrence,  whether  he  retains 
ct  present  recollection  of  the  facts  or  not,  the  entry  or  memoran- 
dum is  admissible;  for  though  he  may  have  a  present  recollec- 
t.ion  (of  doubtful  or  varying  degree  of  certainty,  it  may  be), 
independently  of  the  memorandum,  the  paper  is  admissible  as 
means  of  verification  or  confirmation  of  what  he  states  from 
memory.    This  is  the  clear  logical  deduction  from  the  cases 
cited." 

In  State  v.  Brady,  100  Iowa,  191,  62  Am.  St  Eep.  560,  69 
N.  W.  290,  it  was  held  that  the  daily  record  of  the  sale  of  tickets, 
kept  in  the  office  of  a  railroad  station  agent,  as  required  by  a 
rule  of  the  company,  and  containing  a  record  of  all  tickets  sold, 
and  the  **•  names  of  the  stations  to  which  sold,  when  properly 
authenticated,  is  admissible  as  evidence  of  the  facts  therein 
stated ;  and  the  court  in  that  case  quotes  approvingly  the  criti- 
cism made  in  Curtis  v.  Bradley,  65  Conn.  99,  48  Am.  St.  Rep. 
177,  31  Atl.  591,  in  relation  to  the  practise  by  some  of  the  courts 
of  allowing  the  statement  to  be  testified  from,  and  then  exclud- 
ing it  from  evidence. 

In  Donovan  v.  Boston  etc.  R.  R.  Co.,  158  Mass.  450,  33  N.  E. 
583,  in  an  action  against  a  railroad  company  for  injuries  at  a 
crossing,  plaintiffs  evidence  was  that  he  was  injured  near  S. 
station  at  5 :02  P.  M.  by  an  incoming  train,  his  view  of  which 
was  obstructed  by  another  train  which  was  delivering  passengers 
at  the  station.  To  show  that  no  train  was  delivering  passengers 
there  at  that  time,  defendant  put  in  evidence,  under  objection, 
the  entries  on  the  telegraphic  train  report  sheet  kept  in  its  train 
dispatcher's  office  at  B.,  together  with  the  testimony  of  the  train 
dispatcher,  that  the  entries  of  the  time  all  trains  pass  the  sev- 
eral stations  en  route  were  made  from  dispatches  received  by 


840  American  State  Beports,  Vol.  91.  fWaat 

him  from  the  station  operatoT&    Held,  that  defendant's  e?i- 
denee  was  competent. 

In  Bourda  v.  Jones,  110  Wis.  52,  85  K  W.  671,  it  was  hd* 
that  certain  inventories  which  had  been  made  by  Uie  witneeB 
were  properly  received  in  evidence,  when  the  witness  testified 
that  he  knew  the  same  were  correctly  made. 

In  Diament  v.  CoUoty,  66  N".  J.  L.  295,  49  Atl.  445,  808,  it 
was  held  that  where  slips  containing  reports  of  work  done,  cost 
of  same,  and  amonnt  and  kind  of  material  nsed,  are  part  of  a 
method  of  carrying  on  business,  they  are  competent  evidence  in 
offering  books  and  accounts  of  business.  As  sustaining  the  doc- 
trine of  this  testimony,  see  St.  Paul  etc.  Ins.  Co.  v.  Gotthelf,  35 
Neb.  351,  53  N".  W.  137. 

*''®  An  attempt  is  made  by  the  appellants  in  their  reply  brief 
to  distinguish  the  cases  cited  by  respondent,  and  to  show  that 
they  are  not  consistent  with  each  other ;  that  sometimes  the  tes- 
timony is  admitted  on  one  theory,  and  sometimes  on  another. 
But  whether  the  report  in  this  case  is  admitted  as  a  part  of  re- 
spondent's book  of  accounts  as  corroborative  of  Spear's  testi- 
mony, or  as  a  memorandum  made  in  the  r^ular  course  of  busi- 
ness, it  is  admitted  as  a  circumstance,  and  a  strong  and  reason- 
able circumstance,  which  the  jury  had  a  right  to  consider,  tend- 
ing to  show  that  on  the  night  of  the  accident  no  passenger  trav- 
eled on  the  alleged  trip  and  car  on  a  transfer  slip.  This  was  a 
pertinent  issue  in  the  case,  and,  under  the  circumstances^  as  it 
was  not  possible  that  such  testimony  could  be  self -^serving,  it  was 
testimony  which  the  defendant  was  entitled  to,  and  was  there- 
fore properly  admitted. 

The  whole  cause  having  been  submitted  to  the  jury,  and  no 
error  having  been  committed  by  the  court,  the  jud^mcoit  will  ba 
afiirmedi 

FuUerton,  Anders,  Hadlej,  Mount  and  Whiter  JJ.,  conear. 


Bvidence,^The  record  of  a  railroad  tioket  oftee,  diowia^  tlw 
daily  sales  of  ticketiy  is  admissible  in  evidence,  if  the  witaesi  wW 
identifies  it  knows  that  it  was  correct  when  made:  State  t.  Brad/* 
100  Iowa,  191,  62  Am.  St.  Bep.  560,  69  N.  W.  290. 


Jaik.  '02]    Cedae  Canyon  Con.  Min.  Co.  v.  Ya&wood.       841 


CEDAE  CANYON  CONSOLIDATED  MINING  COMPANY 

V.  YAEWOOD. 

[27  Wash.  271,  67  Pac  749.] 

MINES— Extralateral  Bights.— The  holder  of  a  mining  locatioft 
^rithin  whieh  a  vein  apexes  owns  the  whole  of  the  vein,  and  may 
follow  its  dips  and  angles  when  it  dips  under  and  leads  without  the 
Ade  lines  of  his  claim  as  marked  on  the  surface,     (p.  846.) 

COTEKAKOY  IN  MINES.— If  a  Cotenant  In  a  lOntng  CImSm 
purchases  an  interest  in  an  adjoining  claim  for  the  benefit  and  pro- 
xe«tion  of  the  common  property,  it  inures  to  the  benefit  of  the  other 
tenants,     (p.  847.) 

COTENANOT  IN  MINES— Validity  of  the  Locatfon.— A  min- 
ing location  good  as  between  the  owners  and  the  government,  unless 
jk  third  person  can  show  a  superior  title,  is  property  to  which  a  co- 
tenancy can  attach,     (pp.  847,  849.) 

MtNING-  CItAIMS.— The  Fact  that  Mineral  Is  not  DiseoTored 
•on  a  mining  claim  until  after  posting  the  notice  of  location  and 
marking  the  boundaries  is  immaterial,  in  the  absence  of  interven- 
ing rights;  if  the  discovery  is  the  result  of  subsequent  work,  the 
^lossessnry  rights  are  complete  from  the  date  of  such  discovery,  (p. 
S48.) 

A  COTENANT  IN  A  MINE  Cannot  Question  the  Common 
Title  in  a  contest  between  him  and  his  co-owners,     (p.  849.) 

COTENANOT  IN  MINES— Purchase  and  Oontribntion.— If  a 
eotenant  in  a  mining  claim  purchases  an  interest  in  an  adjacent  claim 
for  the  protection  of  the  common  property,  his  co-owners  do  not  lose 
their  right  to  participate  therein  by  failing  to  contribute  to  the 
cost,  wlien  no  demand  has  been  made  on  them  and  they  Have  been 
ready,  since  having  notice,  to  pay  their  share  of  the  price,  (pp.  849, 
€31.)  

IN  A  SUIT  TO  QXTTBT  TITLE  the  Decree  Shonld  be  Confined 
to  the  property  and  interests  in  issue,     (pu  851.) 

McBride  &  Folsom,  for  the  plaintiff. 

Herritt  J.  Ctordon  and  Happy  &  Hindman,  for  the  defend- 
ants. 

*«  HADLEY,  J.  The  plaintiff,  the  Cedar  Canyon  Confioli- 
dated  Mining  Company,  a  corporation,  is  the  owner  of  a  lode 
mining  claim  known  as  the  ^'Elephant''  claim,  situated  in 
Springdale  mining  district,  in  Stevens  county,  Washington.  To 
the  south  and  east  of  the  Elephant,  and  adjoining  it,  is  the 
Legal  Tender  mining  claim,  which  was  located  by  the  defendant 
W.  J.  Yarwood.  This  location  was  made  subsequently  to  the 
location  of  the  Elephant  claim.  At  the  time  of  the  commence- 
ment of  this  action  the  said  defendant  W.  J.  Yarwood  and  his 
codefendants  Eli  Yarwood,  Ed.  Yarwood  and  David  Yarwood, 
were,  and  for  some  time  prior  thereto  had  been,  the  owners  of 


842  American  State  Bbpobts^  Voi*.  91.  [Wash, 

an  Tindivided  half  interest  in  the  Legal  Tender  claim,  and  the 
Deer  Trail  Consolidated  Mining  Company,  a  corporation,  waa 
the  owner  of  the  remaining  undivided  half  interest  therein.    For 
a  considerable  time  prior  to  the  commencement  of  this  action  the 
Yarwoods  and  the  last-named  corporation  were  in  joint  poasea* 
don  of  the  Legal  *^  Tender  claim.    Prior  to  the  joint  owner- 
ship and  possession  above  mentioned  the  Yarwoods  and   the 
Deer  Trail  No.  2  Mining  Company,  a  corporation,  jointly  owned 
and  were  in  possession  of  the  said  claim,  and  while  such  joint 
ownerdiip  existed  the  last-named  corporation  became  the  grantor 
of  the  Deer  Trail  Consolidated  Mining  Company,  and  the  latter 
succeeded  to  the  ownership  of  said  nndivided  half.     During  the 
period  covered  by  the  said  respective  joint  ownership  the  own^s 
were  jointly  engaged  in  mining  ores  from  said  claim,  and  shared 
the  profits  and  divided  the  expenses  connected  therewith.     The 
defendant  W.  J.  Yarwood  was  the  superintendent  of  such  min- 
ing operations  at  the  mines.    These  operations  resulted  in  a 
profit  approximating  sixty  thousand  dollars.    While  the  Deer 
Trail  No.  2  Mining  Company  was  the  owner  of  said  undivided 
half  interest  in  the  Legal  Tender,  and  while  it  was  jointly  en- 
gaged with  the  Yarwoods  in  mining  ore  within  the  limits  of  the 
Legal  Tender  claim,  that  company,  through  its  president  and 
general  manager,  Charles  Theis,  purchased  from  divers  parties 
an  undivided  four-sevenths  interest  in  the  Elephant  claim.    In 
October,  1899,  and  while  the  Deer  Trail  No.  2  company  was 
jointly  engaged  with  the  Yarwoods  in  mining  the  Legal  Tender 
claim,  it  entered  into  an  agreement  in  writing  with  Hogan, 
Cole  &  Wolf,  who  were  then  the  owners  of  the  remaining  three- 
sevenths  of  the  Elephant  claim,  by  the  terms  of  which  the  plain- 
tiff corporation  was  to  be  organized,  and  in  the  agreement  it  was 
provided  that  Hogan,  Cole  &  Wolf  should  convey  to  plaintiff 
corporation,  when  organized,  their  said  three-sevenths  interest, 
and  the  Deer  Trail  No.  2  company  was  to  cause  the  remaining 
four-sevenths  of  the  Elephant  to  be  conveyed  to  the  plaintiff 
corporation.     In  consideration  of  said  respective  conveyances, 
the  said  Deer  Trail  No.  2  company  was  to  have  and  receive  four- 
sevenths  *''*  of  the  entire  capital  stock  of  the  plaintiff  com- 
pany, and  the  said  Hogan,  Cole  &  Wolf  were  to  have  and  receive 
the  remaining  three-sevenths  of  said  capital  stock.     It  was  fur- 
ther   provided  in  the  agreement  that  the  Deer  Trail  No.  2  com- 
pany should  have  the  right  to  name  a  majority  of  the  trustee? 
of  the  plaintiff  corporation,  and  all  of  the  oflBcers  thereof,  except 
the  secretary.     In  pursuance  of  said  written  agreement,  the 


*02]    Cbdab  Canyon  Con,  Min.  Co.  v.  Yarwood.        84* 


corporation  wbls  organized  in  the  latter  part  of  Octo* 
ber^  1899^  and,  as  such  corporation^  took  and  received  title  t4> 
"the  Elephant  claim  from  said  Deer  Trail  No.  2  Mining  Com* 
pany  and  from  Hogan,  Cole  &  Wolt,  and  thereafter  caused  the 
stock  of  the  plaintiff  company  to  be  issued  in  accordance  with 
the  said  agreement  as  above  outlined.    The  action  was  brought 
in  the  enperior  court  of  Stevens  county^  but  by  stipulation  was 
removed  to  Spokane  county,  and  was  tried  by  the  superior  court 
of  Spokane  county.     The  said  Yarwoods,  together  with  one  C.  C^ 
May,  and  the  said  Deer  Trail  Consolidated  Mining  Company,  were 
made  defendants  in  the  action.*    The  plaintiff,  by  its  complaint,, 
seeks  to  recover  damages  to  the  extent  of  one  hundred  thousand 
dollars  for  ores  extracted  within  the  limits  of  the  Legal  Tender 
claim,  upon  the  theory  that  the  vein  from  which  said  ores  were 
extracted  apexes  within  the  limits  of  the  Elephant  claim.    Tho^ 
complaint  also  asks  for  an  injunction  to  prevent  further  minings 
operations  on  the  part  of  the  defendants  within  the  limits  of  the- 
Legal  Tender  claim.    The  defendant  the  Deer  Trail  Consoli- 
dated Mining  Company  did  not  answer  the  complaint.    The^ 
defendants  Yarwood  answered  the  complaint,  and  denied  that 
the  vein  from  which  they  and  their  cotenants  extracted  ores- 
within  the  limits  of  the  Legal  Tender  claim  had  or  has  its  apex 
within  the  limits  of  the  Elephant  claim,  and  they  also  set  up 
an  equitable  defense  to  the  action,  and  by  way  of  cross-com- 
plaint that  *'^*  a  cotenancy  existed  between  them  and  the  Deer 
Trail  No.  2  Mining  Company  and  the  Deer  Trail  Consolidated- 
Mining  Company  during  the  time  said  ore  was  being  extracted,, 
which  cotenancy  included  both  the  joint  ownership  of  said  Legal 
Tender  claim  and  the  joint  operation  of  the  mine  therein  while- 
said  ores  were  being  extracted.    They  also  charged  plaintiff  with 
full  knowledge  of  the  existence  of  such  cotenancy,  and  with  full 
knowledge,  at  the  time  it  purchased  the  interest  in  the  Elephant 
claim  from  the  cotenant  of  the  Yarwoods,  that  such  interest, 
had  been  purchased  by  their  cotenant  at  a  time  when  the  co- 
tenancy existed.    They  therefore  claim  that  plaintiff  is  estopped 
to  maintain  the  action,  and  ask  that  their  title  to  the  undivided 
half  interest  in  the  Legal  Tender  may  be  quieted,  and  they  be- 
permitted  to  share  in  the  four-sevenths  interest  in  the  Elephant,, 
which  was  purchased  by  their  cotenant,  and  that  their  title  to- 
one-half  thereof,  or  a  two-sevenths  interest,  be  quieted.     To  said 
crofis-complaint  of  the  Yarwoods,  the  plaintiff  company,  and  tha 
codefendant  Deer  Trail  Consolidated  Mining  Company  made- 
answer.    It  being  the  view  of  the  trial  court  that  the  pleadings 


844  American  State  Bepobts,  Vol.  91.  [Wash. 

raised  both  legal  and  equitable  issfues,  when  the  case  came  <m 
for  trial  the  court  proceeded  to  hear  evidence  upon  the  eqmteble 
issues,  and,  without  making  any  findings  or  decision  thereon^ 
but  reserving  such  decision  as  to  the  equitable  issues,  farther 
proceeded  to  impanel  a  jury  to  try  tiie  question  of  treepaes, 
which  involved  the  identity  of  the  vein  from  which  the  ores 
were  extracted  within  the  limits  of  the  Legal  Tender  claim  bj 
the  defendants  Yarwood  and  their  cotenant«.     The  jury  trial 
resulted  in  a  verdict  for  the  plaintiff.    The  Tarwooda  moTcd 
for  a  new  trial,  and  pending  the  hearing  thereon  the  court  made 
its  findings  and  conclusions  upon  the  equitable  issues.     After 
the  findings  and  conclusions  were  *^  made,  the  Tarwooda 
moved  the  court  to  set  aside  the  verdict  upon  the  further  ground 
that  upon  the  findings  and  conclusions  of  the  court  as  to  ihe 
equitable  issues  the  plaintiff  was  estopped  to  prosecute  this  ac- 
tion, and  that  no  effect  could  be  given  to  the  verdict.    This  mo- 
tion was  also  overruled.     The  plaintiff  and  the  defendant,  the 
Deer  Trail  Consolidated  Mining  Company,  also  each  moved  for 
a  rehearing  and  new  trial  upon  the  equitable  issues,  which  mo- 
tions were  each  overruled.     The  court  then  proceeded  to  judg- 
ment and  decree.     The  judgment  recites  the  verdict  of  the  jury, 
wherein  they  found  that  plaintiff  was  entitled  to  recover  one 
dollar  damages,  and  that  it  is  entitled  to  the  possession  of  the 
vein  or  lode  outside  of  the  side  line  of  the  Elephant  claim  and 
between  the  end  lines  extended  through  the  Legal  Tender  claim 
to  its  southeast  line.    It  is  adjudged  that  the  plaintiff  is  the 
owner  of  the  lode  or  vein  of  the  Elephant  claim,  said  vein  having 
its  apex  within  the  side  lines  of  the  Elephant  claim,  as  deter- 
mined by  the  verdict  of  the  jury.    It  is  further  found  that  said 
vein  passes  out  of  the  Elephant  surface  ground  on  its  dip  into 
and  underneath  the  surface  of  the  Legal  Taider  claim,  and  it 
is  adjudged  that  plaintiff  is  entitled  to  recover  from  the  defend- 
ants five-sevenths  of  all  that  portion  of  the  vein  which  lies 
underneath  the  surface  of  the  Legal  Tender,  and  to  the  easterly 
of  a  plane  drawn  downward  vertically  through  the  westerly  end 
line  of  the  Elephant  claim  extended  southerly  in  its  own  direc- 
tion, and  within  planes  drawn  downward  vertically  through  the 
easterly  end  line  of  the  Legal  Tender  claim  and  the  side  lines 
of  the  same.    The  location  of  that  portion  of  the  vdn  of  which 
plaintiff  is  adjudged  to  be  entitled  to  recover  from  defendants 
an  undivided  five-sevenths  is  more  particularly  shown  by  the  fol- 
lowing diagram,  which  is  a  copy  of  the  diagram  attached  to  the 


Jan.  *02]    Cedar  Canyon  Con.  Min.  Co.  v.  Yabwood.       845 


and  *^''  marked  "Exhibit  A.''    The  location  of  said 

n  of  the  vein  is  indicated  on  the  diagram  by  the  planes 

downward  verticaUy  through  the  dotted  lines  "A — B/^ 


^enof. 


It  is  further  adjudged  that  the  defendants  Yarwood  are  en- 
titled to  the  remaining  two-sevenths  of  that  portion  of  the  Ele- 
phant vein  or  lode  lying  underneath  the  Legal  Tender  surface 
and  within  the  planes  above  described,  but  are  not  entitled  to 
any  other  portion  of  the  Elephant  claim  or  lode.  It  is  decreed 
that  the  title  of  the  plaintiff  be  quieted  to  all  of  the  Elephant 
elaim  and  the  lode  apexing  therein,  excepting  the  part  above  de- 
scribed as  belonging  to  the  Yarwoods,  and  the  defendants  are 
perpetually  enjoined  from  interfering  with  the  possession  of 
plaintiff. 

^^^  From  the  decree  of  the  court  there  are  two  appeals.  The 
plaintiff  appeals  from  that  portion  of  the  decree  which  deter- 
mines that  the  defendants  Yarwood  are  entitled  to  two-sevenths 
of  the  Elephant  vein  which  lies  within  the  limits  of  the  Legal 
Tender  claim,  it  being  the  contention  of  plaintiff  that  the  Yar- 
^oods  are  not  entitled  to  any  portion  thereof.  The  defendants 
Yarwood  have  appealed  because  of  the  refusal  of  the  court  to 
:find  and  decree  that  their  title  shall  be  quieted  to  a  half  interest 
in  the  Legal  Tender  claim,  and  also  to  one-haJf  of  four-sevenths 
of  the  Elephant  daim,  purchased  by  their  cotenant.  The  plain- 
tiff's appeal  is  prosecuted  wholly  on  the  judgment-roll  and  the 
facts  as  found  by  both  the  court  and  jury.    No  exceptions  to 


S46  American  Statb  Beports^  Vol.  91.  [Wadi. 

the  findings  are  nrged  by  the  plaintiff^  but  it  is  insisted  tlut 
they  do  not  support  that  part  of  the  judgment  which  decrees 
that  the  Yanvoods  are  entitled  to  two-sevenths  of  the  Elephant 
lode  lying  beneath  the  surface  of  the  Legal  Tender  claim.     By 
the  issues  submitted  to  the  jury  they  were  called  upon  to  de- 
termine by  their  verdict  whether  the  vein  upon  which  defend- 
ants had  been  operating  within  the  limits  of  the  Legal  Tender 
has  its  apex  within  the  limits  of  the  Elephant.    The  verdict  de- 
termined that  the  apex  is  within  the  Elephant  claim.     It  is  well 
settled  that  the  holder  of  a  valid  mining  location  within  which 
a  vein  or  lode  apexes  is  the  owner  of  the  whole  of  the  vein,  and 
he  has  the  right  to  follow  its  dips  and  angles  for  the  purpose 
of  mining  when  it  dips  under  and  leads  without  the  side  lines 
of  his  claim  as  marked  and  located  upon  the  surface.    As  a  legal 
proposition,  it  is  unnecessary  to  further  discuss  this  question, 
since  it  is  not  controverted  by  the  parties  here.    If,  then,  the 
plaintiff  is  the  owner  of  the  claim  where  the  Elephant  lode 
apexes,  it  is  also  the  owner  of  that  portion  of  the  vein  which  lies 
within  the  limits  of  the  Legal  Tender,  *^  and  is  entitled  t^  the 
possession  thereof,  unless  there  be  some  equitable  reason  in  fa- 
vor of  the  Yarwoods  why  plaintiff  is  not  entitled  to  the  whole 
of  it  as  against  them.    From  the  statement  heretofore  made  it 
will  be  remembered  that  the  Yarwoods,  together  with  their  co- 
tenants,  had  for  some  years  been  mining  from  this  vein  within  the 
limits  of  the  Legal  Tender  claim.    While  the  Elephant  location 
was  older  than  that  of  the  Legal  Tender  in  point  of  time  vet  it 
appears  that  much  more  work  had  been  done  in  the  way  of  de- 
veloping and  mining  within  the  limits  of  the  latter  than  within 
the  former  claim.    We  think  the  Yarwoods  and  their  cotenants 
began  and  continued  in  good  faith  to  operate  upon  the  vein  in 
question,  believing  it  to  belong  to  the  Legal  Tender  claim.  Later 
-developments  upon  the  Elephant  claim,  however,  satisfied  its 
owners  that  the  vein  upon  which  the  Yarwoods  and  their  coten- 
ants were  operating  was  the  same  vein  that  apexed  within  the 
Elephant,  and  thereupon  such  claim  was  asserted.    The  coten- 
ancy had  been  operating  for  some  years  with  profitable  resnltB, 
and  when  this  adverse  claim  to  the  ore  they  were  mining  was  as- 
serted they  feared  an  interference  by  way  of  a  suit  demanding 
an  accounting  or  otherwise.    Based  upon  this  fear  of  interfei^ 
ence,  Charles  Theis,  as  president  of  the  Deer  Trail  company^  a 
ootenant  and  mining  partner  of  the  Yarwoods,  purchased  for  his 
^company  the  four-sevenths  interest  in  the  Elephant^  as  hereto- 


Jan-  *€2]    Cedab  Canyon  Con.  Min.  Co.  v.  Yaewood.        847 


stated.    Concerning  this  purchase  Mr.  Theis  testified  as 
f  ollo^ws : 

**Q.    You  bought  it  in  order  to  secure  them  against  the  prob- 
abilities of  a   lawsuit?    A.    Yes,  sir.    It  had  no  ore  of  any 

k:ixicl  in  sight — of  any  kind  that  I  could  find At  the  time 

"the  purchase  was  made  it  was  made  solely  for  the  purpose  of 
preventing  this  litigation Q.  And  it  was  for  the  pur- 
pose of  protecting  ^^  your  Legal  Tender  interest  that  you 

m.ade  that  investment  in  the  Elephant?    A.    Yes,  sir 

<J-      Well,  you  made  the  investment  with  the  expectation  of 

tnxning  it  over  to  your  company  ?    A.    Yes,  sir.    Q.    And  for 

±h.e  purpose  of  protecting  the  company  in  its  Legal  Tender  in- 

•vestmejit?    A.    Yes,  sir.    Q.    That  was  the  purpose,  too,  for 

•w-liich  you  acquired  the  additional  interest?    A.    Yes,  sir.     Q. 

Tlie  same  purpose?    Had  the  same  thing  in  view  that  you  had 

in  view  when  you  acquired  the  May  interest?    A.    Yes,  sir. 

•Q.     Namely,  to  protect  the  Legal  Tender  property?    A.    To 

protect  our  interest  in  the  Legal  Tender  property/' 

It  seems  clear,  therefore,  that  the  purchase  was  not  made 
primarily  as  an  independent  investment  in  the  Elephant,  but 
for  the  sole  purpose  of  protecting  the  operations  of  the  Deer 
Trail   company  and   th-eYarwoods   within  the   Legal   Tender 
•claim  from  being  interrupted  by  the  owners  of  the  Elephant.* 
The  Yarwoods  contend  that  the  relation  of  cotenancy  which  ex- 
isted between  them  and  the  Deer  Trail  N"o.  2  Mining  Company 
nvas  such  that  any  interest  in  the  Elephant  claim  purchased  by 
said  company  inures  to  the  joint  benefit  of  the  Yarwoods  and 
their  cotenants  in  the  Legal  Tender.     Such  is  the  general  rule 
in  relation  to  purchases  made  by  a  tenant  in  common  when  made 
for  the  benefit  and  protection  of  the  common  property:  Frank- 
lin Min.  Co.  V.  O'Brien,  22  Colo.  129,  55  Am.  St.  Eep.  118,  43 
Pac.  1016 ;  MiUs  v.  Hart,  24  Colo.  505,  65  Am.  St.  Eep.  241,  52 
Pac.  680 ;  Turner  v.  Sawyer,  150  TJ.  S.  678,  14  Sup.  Ct.  Rep. 
192;  Cecil  v.  Clark,  44  W.  Va.  659,  30  S.  E.  216;  Montague  v. 
Selb,  106  111.  49 ;  Bracken  v.  Cooper,  80  111.  221 ;  Boyd  v.  Boyd, 
176   111.   40,  68   Am.  St.  Eep.  169,  61    N.  E.    782.     Plaintiff 
contends  that  in  legal  contemplation  no  cotenancy  existed  here, 
because  there  was  no  valid  mineral  claim  to  which  a  cotenancy 
could  attach ;  that  the  *®*  vein  upon  which  the  Yarwoods  and 
their  cotenants  were  working  belonged  to  the  Elephant,  and 
they  were  therefore  simply  joint  trespassers.     It  is  urged  that 
the  purchase  of  the  interest  in  the  Elephant  was  that  of  a  dis- 
tinct and  independent  property,  which  bore  no  relation  to  any 


848  American  State  Reports,  Vol..  91.  [Waslu 

common  property  to  whidi  the  so-called  cotenants  had  any  law- 
ful claim.    It  is  asserted  that  no  discovery  of  mineral  was 
within  the  L^^  Tend^  at  the  time  the  location  thereof 
Blade.    It  appears  from  the  eTidence,  iiowever^  that  valuable 
mineral  was  at  some  time  discov^ed  within  the  Legal  Tender^ 
and  the  location  being  properly  marked  and  location  notices 
lag  posted  and  recorded,  the  claim  became,  as  between  the 
woods  and  their  co-owners,  a  valid  locatioa.    As  between  tfaeat* 
selves  and  the  government,  tiiey  had  title  to  the  pcoperty,  smd 
were  entitled  to  hold  it  nntil  some  one  ether  than  the  govern- 
meat  could  show  a  better  or  paramount  title.    In  the  abeence 
of  intervening  righto,  the  fad;  that  mineral  is  not  discovered 
on  a  claim  until  after  the  notice  of  locaticm  is  posted  and  the 
boundary  marked  is  immaterial,  and,  where  the  discovery  is  the 
result  of  work  subsequently  done  by  the  locator,  his  possessory 
rights  under  his  location  are  complete  from  the  date  of  snch 
discovery:  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673;. 
Erwin  v.  Perego,  93  Fed.  608 ,  35  C.  C.  A.  482 ;  Jupiter  Min. 
Co.  V.  Bodie  Consol.  Min.  Co.,  11  Fed.  666 ;  1  lindley  on  Mines, 
sec.  335,  and  cases  cited.    It  follows  that  the  Tarwoods  and 
their  oo-owners  had  perfected  a  valid  mining  location,  whid^ 
was  good  as  between  themselves  and  the  government,  unless  a 
'third  person  could  show  a  superior  title.     It  was  for  the  pur- 
pose of  controlling  such  superior  title  in  the  interest  of  Qieir 
common  property  that  the  purchase  of  the  interest  in  the  Ele- 
phant was  made.    The  common  title  was  assailed.    It  was  be» 
lieved  that  another  had  a  better  titie,  *®^  and  one  of  the  hold- 
ers of  the  common  title  purchased  an  outstanding  interest  in 
such  superior  title.    Under  such  circumstances  we  believe  there- 
was  a  tangible  substance  to  which  a  cotenancy  would  attach, 
and  that  the  parties  sustained  to  each  other  the  relation  of  co- 
tenants.     A  cotenant  will  not  be  permitted  to  question  the  com- 
mon title  upon  a  contest  between  him  and  his  cotenants :  Bom- 
heimer  v.  Baldwin,  42  Cal.  27 ;  Olney  v.  Sawyer,  54  CaL  376 ; 
Freeman  on  Cotenancy,  2d  ed.,  sec.  152.    When  the  Deer  Trail 
Mining  Company  No.  2  purchased  an  interest  in  the  Elephant 
claim,  it  was  not  in  a  position  to  question  the  common  title  of 
the  Legal  Tender,  and,  since  the  plaintiff  company  is  the  suc- 
cessor as  grantee  of  the  interest  so  purchased,  it  is  not  in  posi- 
tion to  assail  the  common  title  as  a  basis  for  establishing  its  own 
right  of  recovery.     It  must  recover  upon  the  strength  of  its  own 
titie,  and  we  therefore  think  it  is  estopped  to  claim  that  there- 
was  no  valid  location  made  on  the  Legal  Tender  claim. 


'02]    Cedab  Canyon  Con.  Min.  Co.  v.  Yabwood.        849 

Plaintiff  urges  that  it  is  not  bonnd  by  the  knowledge  which 
of  its  incorporators  may  have  had  as  to  the  rights  of  the 
^X'arwoods  in  the  Elephant.  The  trial  court,  however,  made  the 
:following  record:  "That  the  Cedar  Canyon  Consolidated  Min- 
ing Company  in  this  action  had  notice  of  the  cotenancy  existing 
between  the  Yarwoods  and  the  Deer  Trail  No.  2  Mining  Com- 
pany, and  succeeded  to  the  interests  of  the  Deer  Trail  No.  2 
AdEining  Company  in  and  to  the  Elephant  claim  with  ftdl  knowl- 
edge of  said  cotenancy  and  of  the  rights  of  the  Yarwoods  there- 
Txnder/'  Plaintiff  did  not  except  to  the  above,  and  it  must  be 
lield  that  it  had  full  notice  of  the  rights  of  the  Yarwoods. 

It  is  further  urged  by  plaintiff  that,  even  if  a  cotenancy  did 
exist,  the  Yarwoods  have  lost  their  right  to  participate  in  the 
purchase  by  failure  to  offer  to  contribute  ^®*  their  proportion 
of  the  purchase  price  within  a  reasonable  time.  The  four-sev- 
enths interest  in  the  Elephant  was  acquired  at  different  times, 
and  from  different  people,  but  was  all  acquired  while  the  pur- 
chasing company  and  the  Yarwoods  were  jointly  working  the 
deposits  within  the  Legal  Tender  claim.  When  Mr.  Theis,  the 
president  of  the  purchasing  company,  advised  W.  J.  Yarwood 
of  the  purchase  of  the  first  one-fourth  interest,  Yarwood  said  to 
him  that  at  the  price  paid  he  ^Vould  like  to  be  in  on  it.'*  Pend- 
ing this  time  and  the  time  the  other  purchases  were  made,  Yar* 
wood  was  working  at  the  mine  and  the  parties  continued  to  share 
the  profits  of  their  joint  enterprise.  After  the  other  purchases 
had  been  made,  and  when  Yarwood  was  in  the  oflBce  of  Theis 
in  Spokane,  he  was  informed  of  the  other  purchases,  this  being 
the  first  time  the  Yarwoods  had  known  of  the  other  purchases. 
Yarwood  then  claimed  that  the  Yarwoods  were  entitled  to  a 
share  in  the  interest  purchased.  Not  until  that  time  had  the 
Yarwoods  learned  that  it  was  the  intention  of  the  purchas- 
ing cotenant  to  assert  an  exclusive  right  to  the  interest  pur- 
chased. There  was  some  testimony  to  the  effect  that  there  were 
joint  funds  on  hand,  which  it  was  supposed  would  be  applied  to 
the  purchase  of  the  first  one-fourth  interest,  of  which  pur- 
chase the  Yarwoods  had  learned;  but,  however  that  may  have 
been,  no  request  or  demand  was  ever  made  by  the  cotenant  of 
the  Yarwoods  that  they  should  contribute  to  the  purchase  price, 
and  they  had  never  refused  to  contribute. 

*^ut  before  a  cotenant  will  be  considered  to  have  forfeited 
hifl  right  to  participation  by  his  delay,  it  must  appear  that  he 
had  notice  not  only  of  the  purchaae  of  the  outstanding  title 

Am.  St   Rep.,  Vol.   91—54 


850  Ahbricak  State  Bepobts^  Vol.  91.  [WaA. 

by  his  cotenanty  but  also  of  the  ezdusiye  claim  set  up  hj  the 
latter.  He  may  reasonably  presume  that  the  pttrchase  was  made 
in  support  of  the  common  title,  ***  and  may  act  upon  that 
presumption,  considering  the  outlay  simply  as  a  joint  cbarge 
to  be  settled  and  accounted  for  as  any  other  necessary  expense 
incurred  in  protecting  the  joint  estate.  The  burden  is  upon 
the  purchasing  tenant  to  show  that  his  cotenant  had  notice  of 
the  purchase  and  of  the  exclusive  claim  set  up  by  him**:  17 
Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  679,  680. 

''We  concede  the  correctness  of  the  doctrine  announced  in 
Mandeville  y.  Solomon,  39  Cal.  133,  and  the  cases  cited  therein, 
that  where  one  tenant  in  common  purchases  an  outstanding 
title  for  the  benefit  of  his  cotenants,  the  latter  must,  within  a 
reasonable  time,  contribute  or  offer  to  contribute,  thdr  propor- 
tion of  the  purchase  money.  But  that  principle  applies  to 
cases  only  where  the  purchasing  cotenant  wishes  to  be  paid, 
and  conducts  himself  accordingly^' :  Boskowitz  y.  Dayis,  12  Ner. 
446,  468. 

''A  tenant  in  common  holds  a  several  interest  in  the  lands, 
which  is  so  far  identical  with  his  cotenants'  interest  that,  in  all 
matters  affecting  the  estate,  he  will  be  regarded  as  acting  for 
them  as  well  as  himself.    He  cannot,  therefore,  purchase  an 
outstanding  adverse  title  and  set  it  up  against  his  cotenants, 
if  they  are  willing  to  reimburse  him  pro  rata  for  the  money 
by  him  so  expended.    He  will  be  regarded  as  holding  the  title 
he  thus  acquires  in  trust  for  his  cotenants  until  the  presump- 
tion is  repelled  by  their  refusal  to  contribute  in  payment  of  his 
outlays" :  Weare  v.  Van  Meter,  42  Iowa,  128,  20  Am.  Bep.  616, 
617.  " 

Upon  this  subject  of  willingness  and  readiness  to  contribute 
the  court  found  as  follows:  ^^That  the  defendants  Yarwood 
have  at  all  times  since  receiving  knowledge  of  the  purchase  by 
the  Deer  Trail  No.  2  Mining  Company  of  said  four-sevenths 
interest  in  the  Elephant  claim  been  willing,  and  now  are  will- 
ing and  ready,  to  contribute  their  proportion — namely,  one-half 
of  the  expense  and  cost  of  the  purchase  price  of  said  four- 
sevenths  interest — ^but  that  the  said  Deer  Trail  No.  2  ICiiiiig 
Company  have  heretofore  and  now  refuse  to  permit  ^^^  said  de- 
fendants Yarwood  to  participate  in  the  benefits  arising  from 
the  purchase  of  said  four-sevenths  interest.*' 

In  view  of  the  above  finding,  and  of  the  evidence  as  discmsed 
above,  we  think  the  Yarwoods  did  not  waive  their  right  to  ayail 
themselves  of  the  benefit  of  the  Elephant  purchase.    Upon  pay- 


*02]    CiSDAB  Canton  Con.  Min.  Co.  v.  Yaewood.        861 


of  one-half  of  the  purchase  price  and  legal  interest  there- 
^ther  by  an  accounting  between  themselves  and  their  co- 
i^enants  or  otherwise,  they  are  entitled  to  one-half  of  the  in- 
purchased — ^that  is  to  say,  one-half  of  four-sevenths,  or 
-sevenths,  of  the  entire  Elephant  lode,  whether  lying  with- 
tlie  limits  of  the  Legal  Tender  or  of  the  Elephant — ^and, 
xipon  such  payment  being  made,  their  title  thereto   shall   be 
-qxdieted.    It  must  be  taken  as  settled  by  the  verdict  of  the  jury 
i;li£tt   the  particular  vein  of  ore  upon  which  the  cotenants  had 
operating  within  the  limits  of  the  Legal  Tender  is  a  part 
tiie  Elephant  lode.    That  vein  of  ore  is  the  one  real  subject 
of  "Controversy  in  this  action,  the  purpose  of  the  action  under 
fbe  various  issues  being  to  establish  the  respective  rights  of  the 
parties  therein. 

The  defendants  Yarwood  ask  that  their  title  may  be  quieted 
^fco  a  one-half  interest  in  the  Legal  Tender  claim,  but,  as  we 
eonedve  the  issues,  this  action  in  no  way   assails   the   Legal 
"Tender  claim,  except  in  so  far  as  the  Elephant  lode,  which  lies 
ilierein,  is  concerned.    If  other  ore  deposits  have  been  discov- 
ered to  exist  within  the  limits  of  the  Legal  Tender,  the  right 
of  the  Legal  Tender  holders  therein  is  not  here  in  issue.    There 
is,  therefore,  no  occasion  for  any   decree  upon  that   subject. 
The  decree  should,  therefore,  be  confined  to  the  quieting  of  the 
title  and  to  the  establishment  of  the  respective  rights  of  pos- 
^eaaion  in  and  to  the  entire  Elephant  lode,  the  respective  inter- 
ests being  five-sevenths  to  the  plaintiff  company  and  two-seventha 
to  the  defendants  Yarwood. 

■■•  The  cause  is  remanded,  with  instructions  to  the  trial 
eourt  to  modify  the  decree  in  accordance  with  tihds  opinion. 

Beavis,  C.  J.,  and  FuUerton,  White,  Dunbar,  Mount  and  An- 
ders^ JJ.,  concur. 


OOTEKAJITS  IK  MINE8. 

L    Wbat  Oonstltates  Cotenancy  in  Mines, 
a.    In  QeneraL 

Ik    Bight  to  Slnre  in  Fioceeda 
c    Separate  Ownership  of  Surface  and  MlieraL 
d.    Iiocation  in  Names  of  SeveraL 

1.  General  Bole. 

2.  Implied  Agency  to  Locate  for  Absentees. 
••    PBD^^acting  Agreements. 

f •    Partnarahip  in  Operation  of  Mine. 

g.    Whether  Joint  Tenancy  or  Tenancy  in  Oommon. 


862  American  State  Rbpobts,  Vol.  91.  [WasK 

XL    Bestraints  Imposed  by  Relation  Between. 

a.    In  General— Fiduciary  Nature  of  Stiatioii. 
Ik    One  Cannot  Assail  Ck>mmon  Title, 
e.    Relocation  by  Cotenant. 

1.  Where  He  has  Agreed  to  Perform  All  Aaammmm^ 

Work, 

2.  Ulider  Express  Tmst  to  Hold  Title  for  AIL 
8.    General  Bole. 

i.    Acanisition  of  Outstanding  Title  by  One  OotanaaL 

1.  General  Bule. 

2.  Purchase  of  Other  Ootenaat's  Itatenst. 
8.    Purchase  of  Senior  Iiocation. 

4.    Between  Whom  Bule  as  to  Acqaisltioii  «f  Ot^ 
standing  Title  by  One  Ootenant  Applies. 

A.  Where  No  Cotenancy  Exists  at  Time  of  7i^ 

chase* 

B.  Where   Title  was  Derived  tnm   DittmmA 

Grantors  or  at  Biiferent  Times. 
O.    Where  Purchaser  Holds  AdYendy  to  Bis  0^ 
tenants. 

6.  Necessity  of  Offer  to  Contribute  Share  of  Oo8t» 

0.  Bight  of  Bona  Fide  Purchaser  Arom  Tenant  Hioli> 

ing  Outstanding  Title  in  Trust  for  Ootonanti. 

7.  Patent  Procured  by  One  Cotenant. 

A.  General  Bule. 

B.  Under  Agreement    Between    Ootenaals    la 

Hold  Surface  in  Severalty. 
O.    Necessity  of  Cotenants  "Adveniiig" 
cation  by  One  for  Patent. 

HL    rowwasion  of  Common  Property. 

a.    General  Bule— Each  Entitled  to  Posneoirfon  of 
^    By  One  Cotenant. 

1.  General  Bule—Znures  to  Benefit  of  AIL 

2.  Where  Adverse  to  Others. 

A.  General  Bule. 

B.  What  is  Proof  of  Ouster  and  Adveoa  BBid> 

ing. 

X7.    Operation  of  Common  Property  by  One  Ootaoaati 

a.  m  General. 

b.  Waste. 

1.  Liability  of  Cotenant  for. 

2.  What  ConstituteB. 
0.    Bight  of  Other  Cotenants  to  Bnjoia. 

L    General  Bule. 

2.    Under  Montana  Statute. 

8.  Use  of  Common  Workings  for  OpecaeiOB  of  Ad|i» 

cent  Mines  not  Held  In  CommoiL 


*02]    Cedar  Canyon  Con.  Min.  Co.  v.  Yabwood.       868 

I    Accounts  Between, 

a.    Bight  to  Ck>mpel  Account  ttom  Cotenant  in  Poasession 
of  tlLe  Common  Property, 

1.  In  GeneraL 

2.  At  Common  Law* 

5.  Under  Statute  of  4  and  5  Anne  and  Similar  XiOg • 

iBlation. 

A.  m  GeneraL 

B.  Por  Becelpt  of  Benta^  etc 

C.  Por  Profita  Beanlting  from  Operation. 

4.  Where  Other  Cotenanta  have  been  Tayninii^^, 

6.  Under  PennsyWania  Statute. 
Ik    Basia  of. 

1.  Where  Benta  or  Boyaltiea  are  Beceiyed. 

2.  Where  Profits  Besult  from  Operation. 

A.  When  Value  of  Mineral  in  Place  is  Proper 

Basis. 

B.  When  Actual  Profits  are  Proper  Baaia. 
e.    Itema  in. 

1.  Operating  Expenses,  etc. 

2.  Services  of  Operating  Cotenant. 

5.  When  Interest  ia  Allowable, 
4.  Improvementa. 

d.  Liens. 

e.  Joinder  of  Parties  and  Actions  in  Suit  for  Accountings 

'VL    ZJability  of  Other  Cotenanta  for  Acta  of  One» 

a.  No  Agency  Implied. 

b.  Conveyance  by  Metes  and  Bounds, 
c    Conveyance  of  Cotenant'a  Interest. 
d.    Leases  and  Licenses^ 

6b    Admissions  by,  Fraud  of  and  Service  of  Proceai  on  Ona 
Cotenant. 

"Vn.    Abandonment  and  Forfeiture. 

^XIL    Aetlona  Between. 

a.  Assumpsit. 

b.  Por  Ouster  by  Ono# 

Partition. 

a.  Voluntary. 

b.  By  Legal  Proceedingai 

1.  In  QeneraL 

2.  What  BSining  Xntereata  ace  PaxtfUaii 

3.  Who  may  CompeL 

4.  Partible  Nature  of  Mines. 

A.  By  Actual  Partition. 

B.  By  Sale. 

5.  Improvementa. 
Aetlona  Between  Cotenanta  and  Third  Peraenf, 


8M  Ambbican  State  Bbpobts,  Vol.  91.  [Wtik. 

I.    VThAt  Oonstitvtas  Ootenaocj  in  Minak 

ft.    In  Oenenl. — In  th«  maimer  and  essentials  of  its  ^reatloB,  ft. 
eotonancj  in  mines  is  not  difPerent  from  ft  eotenaney  in  anj  other 
form  of  real  property.    A  conveyance  to  two  or  more  persons^  whiek 
in  other  eases  would  make  them  tenants  in  common  or  joint  tenanta 
of  the  property  eonreyed,  has  the  same  effect  when  the  subject  of 
the  conveyance  is  a  mine  or  mining  claim.    Thus,  a  grant  to  several 
persons  in  certain  proportions  of  the  oil  in  a  piece  of  land  for  ft. 
period  of  ninety-nine  years  makes  the  grantees  tenants  in  eonunon: 
Bronson  r.  Lane,  91  IHu  St.  153;  and  on  the  death  of  one  tenant  in 
eomniott  of  a  msne  his  heinr  take  Ids  ]daee  in  the  cotenancy  and  b»> 
come  tenants  in  common  with  the  owners  of  the  remaining  interests: 
Holbrooke  v.  Harrington  (Cal.),  86  Pac  365;  Oillett  v.  Galfney,  S- 
Colo.  351. 

b.  Slglit  to  Share  in  Proceeds.— A  mere  right  to  share  in  ih» 
proceeds  of  a  mine  does  not,  however,  make  the  person  so  entitled 
a  cotenant  in  the  mine  itself;  it  may  create  a  cotenancy  in  thm- 
products  of  the  mine  when  taken  out:  Hudepohl  v.  Liberty  Hill 
Con.  Min.  etc.  Co.,  80  Cal.  553,  22  Pac.  339.  In  Beagan  v.  McKib- 
ben^  11  8.  Dak.  270,  76  N.  Vf,  943,  one  of  the  owner*  of  a  min»> 
conveyed  his  interest  to  a  party,  the  latter  agreeing  to  take  personal 
charge  of  the  mining  property  and  to  pay  the  grantor  one-half  of 
the  proceeds  arising  from  working  the  mines  and  one-half  of  the 
amount  received  on  a  sale  of  the  property.  The  grantor,  it  waa  held,. 
retained  no  interest,  legal  or  equitable,  in  the  property,  and  waft 
not  a  tenant  in  cemnon  with  his  grantee  or  with  the  other  ownen  nf 
the  mine. 

a  Separate  Ownerflhip  of  Surf aee  and  BUnoraL^-Not  infreqaently 
the  surface  of  a  piece  of  land  is  owned  by  one  person,  whilft  the  min- 
eral l3ring  under  its  surface  is  the  property  of  another.  In  snch  m 
case,  however,  the  parties  are  not  tenants  in  common,  but  the  own- 
ers of  separate  and  distinct  interests  in  one  piece  of  land.  Eft«k 
may  have  a  fee  or  less  estate  in  hii  rapeettve  part,  bnt  ilM  righftn 
of  each  are  several  and  inhere  in  different  portions  of  the  prep 
erty.  The  relation  between  the  parties  holding  such  interests  is  well 
expressed  in  Virginia  Coal  etc.  Co.  ▼.  Kelly,  93  Va.  832,  24  S.  & 
1020,  a  case  in  which  the  plaintiff  held  title  to  the  minerals  and 
timber  and  the  defendant  owned  the  surface  of  the  same  tract  oT 
land.  ''They  became, '^  says  Biely,  J^  delivering  the  opinion  of  the 
fourth  ''the  owners  of  estates  in  fee  in  distinct  and  separate  part*- 
of  the  land;  as  much  so  as  if  they  had  acquired  title  to  separate 
portions  of  a  certain  parcel  of  land.  'The  division  was  as  complete 
as  if  it  had  been  made  by  lines  oh  the  surface.'    Their  respective 

estates  were  the  subjects  of  independent  taxation They  were 

not  the  owners  of  undivided  interests  in  the  same  subject,  .  •  •  •  bnt 
were  the  owners  of  distinct  subjects  of  entirely  different  natures.. 
They  did  not  own  interests  or  shares  in  the  same  freehold,  but  owne^ 


Jan.  '02]     Cedab  Canton  Con.  Min.  Co.  v.  Yaewood.        855 

•epwrate  fre^oldi  whieh  were  separately  the  sabjects  of  posseBsioii^ 
enjoyment  and  enemnbraaee.  Title  to  the  freehold  of  the  one,  either 
ZD  the  Biirfaee  or  in  the  minwalSy  could  not  be  acquired  by  adverse 

poBseeeion  of  the  other The  Yiif  inia  Goal  and  Iron  Company 

alone  owned  the  minerals  and  timber;  Kelly  alone  owned  the  sur- 
face. There  was  no  community  of  interest  between  them.  Henee, 
it  has  been  held  that  the  owner  of  the  surface  of  a  parcel  of  land 
ajid  the  owner  of  the  minerals  under  the  same  are  not  joint  tenants^ 
nor  tenants  in  common."  To  the  same  effect  are  Smith  v.  Oool^, 
e5  Cal.  46,  2  Pac.  880;  Ames  ▼.  Ames,  160  HI.  599,  48  N.  £.  592; 
Adams  ▼.  Briggs  Iron  Co.,  7  Cush.  361;  Neill  ▼.  Lacy,  110  Pa.  St. 
2M,  1  AtL  325;  PoweU  ▼.  Lsntzy»  173  Pa.  St.  543,  34  AtL  450,  af- 
firming 16  Pa.  Ck>.  Ct.  Bep.  417.  See,  generally,  in  this  connection 
the  monographic  note  to  LiJlibridge  v.  Lackawanna  Coal  Co.,  24  Am. 
St.  Bep.  554^  557. 

d.    Location  In  Names  of  SeveraL 

1.  General  Bule. — A  cotenancy  in  mines  may,  as  has  been  said, 
"be  created  in  the  same  way  as  a  cotenancy  in  other  real  property. 
Most  frequently,  however,  such  cotenancies  are  created  by  the  partic- 
iXjation  of  several  persons  in  the  "location"  of  a  mining  claim,  a 
method  of  acquiring  property  peculiar  to  the  species  of  property  now 
onder  consideration.  Where  several  thus  join  in  the  location  of  a 
claim,  they  are  tenants  in  common  of  the  mining  rights  and  prop- 
erty thus  acquired:  Chase  ▼.  Savage  Min.  Co.,  2  Nev.  9. 

2.  Implied  Agency  to  Locate  for  Absentees.— It  is  not  necessary 
in  order  that  a  cotenancy  arise  by  virtue  of  a  location  by  several 
parties  that  all  be  present  in  person.  A  mining  claim  may  be  lo- 
cated by  an  agent:  Qore  v.  HcBiayer,  18  CaL  587;  Thompson  v. 
Bpray,  72  CaL  528,  14  Pac.  182;  and  where  there  is  a  local  custom 
to  that  effect,  it  is  not  even  necessary  that  the  person  in  whose  name 
tlie  location  is  made  have  knowledge  of  its  being  made:  Morton  v.  So- 
lambo  etc.  Co.,  26  CaL  534.'  Indeed,  it  seems  that  even  in  the  ab- 
sence of  such  a  custom,  assent  of  an  absentee  in  whose  name  a  lo- 
cation is  made  will  be  implied:  Bush  v.  French,  1  Ariz.  99,  150,  25 
Pac.  816;  Gore  v.  McBrayer,  18  CaL  582.  Compare  Thompson  v. 
epray,  72  CaL  528,  14  Pac.  182.  Once,  however,  an  authority  is 
established,  whether  presumed  or  shown  by  subsequent  ratcfication, 
m  location  made  in  favor  of  several  persons,  though  some  be  absent, 
constitutes  the  parties  tenants  in  common,  and  no  subsequent  change 
of  the  names  by  the  locator  or  any  other  persons  without  their 
assent  can  affect  the  cotenancy  thus  establiiAied:  Morton  v.  Solambo 
Con.  Min.  Co.,  26  CaL  627;  Thompson  v.  Spray,  72  Cal.  528,  14  Pac 
182. 

e.  Prospecting  Agreements. — A  contract  between  several  persons 
that  all  mines  which  may  be  bought  or  located  by  any  one  of  their 
number  shall  be  shared  by  all  is  an  a^eement  to  hold  such  mines 
when  acquired  as  tenants  in  common:  Miller  v.  Butterfield,  79  CaL 


856  American  State  Bepobts,  Vol.  91.  [Wash. 

62,  21  Pac.  S43.    Such  a  eontraet  is  not  within  the  statute  of  fraods 
requiring  an  instrument  in  writing  to  create  an  interest    in   land: 
Moritz  ▼.  Lavelle^  77  CaL  10,  11  Am.  St,  Eep.  229,   18    Pac  803; 
Murley  ▼.   Ennis,   2  Colo.   300;   Hirbour  ▼.  Beeding,   8    Mont.    15; 
Eberle  ▼.  Carmiehael,  8  N.  Mez.  169,  42  Pac.  95.    If  one  of  the  parties 
to  such  an  agreement  while  it  remains  in  force  locates  a  mine  in  his 
own  name,  he  will  be  deemed  to  hold  the  legal  title  in  trust  for 
bis  associates,  and  a  court  of  equity  will,  in  proper  cases,   enfores 
the  trust  and  compel  a  conveyance  of  the  respective   interests  to 
which  the  several  parties  are  entitled:  Moritz  v.  liavelle^    77   OaL 
10,  11  Am.  St.  Bep.  229,  18  Pac.   803;   Murley  v.   Ennis,    2    Colou 
300;   Hirbour  v.  Beeding,  3  Mont.  15;  Welland  v.  Huber,   8   Nev. 
203;   Eberle  v.  Carmiehael,  8  N.  Mex.  169,  42  Pac  95.     Bee,  also, 
Delmonico  v.  Boudebush,  2  McOrary,  18,  5  Fed.  165.    For    certain 
purposes  the  relation  of  tenants  in  common  is  deemed  to  exist  evea 
before  the  conveyances  are  actually  made.    Thus,  in  Eberle  ▼•  Oar- 
michael,  8  N.  Mez.  1C9,  42  Pac.  95,  the  names  of  three  persons  elaim- 
ing  to  hold  three  claims  in  common  did  not  appear  on  the  location 
notice  of  each  mine.    It  was  held,  nevertheless,  that  while  the  legal 
title  to  each  claim  was  in  the  person  named  on  the  notice  as  the 
locator   of   that   claim,   the   others  had   such  an  interest   "as    con- 
stituted, under  the  mining  laws,  a  holding  in  common,  to  the  ex* 
tent,  at  least,  of  making  work  done  [on  one]  for  development  of  tks 
three  satisfy  the  law,  if  sufficient  in  quantity  and  value.'' 

In  order,  however,  that  a  location  by  one  in  his  own  name  AsII« 
under  the  provisions  of  such  a  contract,  inure  to  the  benefit  of  bis 
associates  and  constitute  them  tenants  in  common  with  li^wi^  they 
must  have  performed  their  portion  of  the  contract.  If,  for  instance^ 
they  have  agreed  to  furnish  him  supplies  in  consideration  of  his 
making  locations  for  the  joint  benefit  of  all,  and  they  have  failed 
to  do  80,  a  location  subsequently  made  in  the  name  of  the  loeater 
will  not  give  them  any  interest,  legal  or  equitable,  in  the  proper^ 
Murley  v.  Ennis,  2  Colo.  300;  and  the  same  rule  will  apply  where 
one  of  the  parties  to  a  contract  for  joint  prospecting  abandons  the 
enterprise:  McLaughlin  y.  Thompson,  2  Colo.  App.  135,  29  Pac  816; 
or  a  partnership  for  this  purpose  has  for  any  reason  been  dissolved 
prior  to  the  perfection  of  locations  made  under  it:  Page  t.  Summery 
70  CaL  121, 12  Pac  120.  The  agreement  must,  moreover,  be  saffieiently 
definite  to  enable  a  court  of  equity  to  enforce  it.  A  eontraet  by  ois 
person  to  give  another  ''an  interest"  in  a  paying  mine  if  the  latter 
procured  it  for  the  promisor  is  too  vague  and  indefinite  to  permit  of 
its  enforcement.  ''An  interest,"  says  Garoutte,  J.,  "is  a  most 
indefinite  term,  for  any  fraction  of  a  unit  would  satisfy  it,  and,  con- 
sequently, the  amount  of  estate  to  be  conveyed  is  unknown  to  the 
court;  and,  being  unknown  to  the  court,  no  decree  could  possibly  be 
made  carrying  title  to  if :  Berry  y.  Woodburn,  107  Cal.  504,  40  Pac 
802. 


.  '02]     Cedab  Canyon  Con.  Min.  Co,  v.  Tabwood.        857 

In  Miller  v.  Butterfield,  79  Gal.  62,  21  Pae.  543,  the  agfreement  was 
"between  three  parties,  and  bound  them  to  ''share  equally  in  any 
xixine  we  may  buy  or  find  from  this  date,'^  one  of  the  contractors 
-Agreeing  to  offset  his  time  against  his  board  with  the  other  two.  The 
^court  held  that  as  to  mines  discovered  and  located  by  that  one,  pend- 
uig  the  agreement,  all  were  to  be  tenants  in  common,  but  that  as  to 
tines  bought,  a  condition  necessarily  implied  was  that  each  must 
iontribute  his  proportion  of  the  purchase  money  before  becoming  so 
Ltitled;  and,  in  the  absence  of  such  contribution,  they  could  require 
ai-O  conveyance  of  any  share  in  such  mines  from  the  person  buying. 

f  .    Partnership  in  Operation  of  Mine.— A  discussion  of  mining  part- 
laerships  is  not  covered  by  the  scope  of  this  note,  and  will  not  ba 
liere  undertaken.    A  mine  may,  of  course,  be  made  partnership  prop- 
erty, nothing  in  its  nature  rendering  this  either  impossible  or  im- 
practicable: Sawyer,  J.,  in  Duryea  v.  Burt,  28  Cal.  569.    Far  more 
jprequently  however,  a  partnership  relation,  if  it  exists  botween  co- 
ov^ners  of  a  mine,  relates  to  the  operation  of  the  property  rather  than 
to  its  ownership.    Such  is  the  "mining  partnership, "  as  the  phrass 
is  most  frequently  and  properly  used.    This  relation  of  mining  part- 
ners in  the  working  of  a^  mine  is  not  only  consistent  with,  but  most 
frequently  accompanies,  a  relation  of  tenants  in  common  between 
them  as  to  the  mine  itself.    In  the  operation  of  the  common  property 
they  may  be  members  of  a  "mining  partnership, '^  clothed  with  the 
somewhat  peculiar  rights  and  liabilities  attaching  to  such  partners, 
^vhile  in  the  absence  of  some  facts  (such  as  a  purchase  of  the  mine 
"with  partnership  funds,  etc.),  showing  that  the  mine  itself  is  made  a 
part  of  the  stock  of  the  partnership,  as  to  it  they  remain  tenants  in 
common,  with  the  powers  and  duties  incident  to  that  relation:  Hughes 
V.  Devlin,  23  Cal.  501;  Dougherty  v.  Creary,  30  Cal.  291,  89  Am.  Dec. 
116;  Manville  v.  Parks,  7  Colo.  128,  2  Pac.  212;  Patrick  v.  Weston,  22 
Colo.  45,  43  Pac.  446   (distinguishing  Duryea  v.  Burt,  28  Cal.  569); 
Mallett  V.  Uncle  Sam  Gold  etc.  Min.  Co.,  1  Nev.  188,  90  Am.  Dec. 
484;  Grubbs'  Appeal,  66  Pa.  St.  117;  Hartney  v.  Gosling  (Wyo.),  68 
Pac.  1118.    See,  also,  Meagher  ▼.  Beed,  14  Colo.  335,  24  Pac.  681. 
Whether  in  any  case  the  partnership  relation  extends  only  to  the 
operation  of  the  mine,  or  covers  its  ownership  as  well,  is  a  question 
dependent  upon  the  facts  of  that  particular  case:   Sawyer,  J.,  in 
Duryea  v.  Burt,  28  CaL  569.    For  an  analogous  principle  in  the  owner- 
ship  of  vessels  where  part  owners  of  ships,  while  partners  in  the 
employment  of  the  common  property,  remain  tenants  in  common  of 
the  vessel  itself,  see  the  monographic  note  to  Smith-Green  Co.  v.  Bird, 
90  Am.  St.  Bep.  352. 

g.  Whether  Joint  Tenancy  or  Tenancy  in  Common.— The  cotenancy 
created  by  the  location  of  a  mining  claim  is,  as  we  have  seen,  a 
tc-naney  in  common:  Supra,  I,  d,  1.  Ordinarily,  in  fact,  the  rela- 
tion between  co-owners  of  mines  is  that  of  tenants  in  common,  rather 
than  of  joint  tenants.  This  is  due,  however,  not  to  any  principle 
peculiar  to  the  law  of  mines,  but  is  governed  by  the  principles  of 


858  American  State  Bbports,  Vol.  91. 

cotenaney  geneTmlly,  &nd  is,  therefore,  rrot  a  matter  wliieli  need. 
here  considered.  See,  however,  in  this  eonnection,  Freeman  on  Co- 
tenancy and  Partition,  sec.  86,  and  GiUett  ▼.  Gaffney,  3  Colo.  351  ^ 
Boston  FrankUnite  C^  v.  Condit,  19  N.  J.  £q.  394. 

n.    Bestraints  Imposed  by  Belation  Between. 

a.  In  General— Fidnciaiy  Nature  of  Relation.— ''All  the  rest 
imposed  upon  cotenants, "  it  is  said  in  Freeman  on  Cotenaaey 
Partition,  section  151,  "in  regard  to  their  dealing  between  one 
other  in  reference  to  the  common  property,  are  founded  mainly,  if 
exclusively,  upon  the  theory  that  so  far  as  the  common  subject 
ownership  is  concerned,  they  are  each  bound  to  defend  the  interest 
the  other;  or  if  not  to  defend,  at  least  not  to  make  any  direct 
indirect  assault  upon  such  interest.^'  With  reference  to  this  relation 
of  mutual  trust  and  confidence  supposed  by  the  law  t4>  exist  between 
persons  standing  in  the  relation  of  cotenants,  cotenancies  in  ming>> 
are  in  no  wise  different  from  the  same  relation  in  other  property. 

The  mere  relation  of  tenants  in  common  is  not,  howeiver,  of  meh  m 
fiduciary  nature  as  to  require  of  one  cotenant  purchasing  the  i 
of  another  that  he  disclose  all  facts  in  his  knowledge  eoneeming 
productive  capacity  of  neighboring  property:  N^Il  v.  Shamburg,  158 
Pa.  St.  263,  27  Atl.  992.  Compare  Foster  v.  Weaver,  118  Pa.  St.  42; 
4  Am.  St.  Eep.  573,  12  AtL  313.  Nor  is  one  bound  to  disclose  to  hia- 
cotenants  the  fact  that  upon  the  sale  of  the  property  he  is  to  reeeiTe- 
a  higher  sum  for  his  interest  than  the  others,  and  the  concealment  of 
such  fact  does  not  entitle  his  co-owners  to  maintain  an  action  for  mmy 
portion  of  the  additional  sum  received  by  him:  Harris  ▼•  Uoyd,  U 
Mont.  390,  28  Am.  St.  Bep.  475,  28  Pac  736.  Where  two  persons  were* 
part  owners  in  a  contract  for  the  purchase  of  a  mine,  and  one  employ» 
it  without  the  consent  of  the  other  to  purchase  the  mine  for  a  thir^ 
person,  receiving  from  the  latter  an  interest  in  the  mine,  the  defranded 
part  owner  is  held  entitled  to  share  in  the  interest  so  received  by 
his  co-owner,  in  the  proportion  held  by  him  in  the  original  contrmetr 
Delmonlco  v.  Bondebush,  2  McCrary,  18,  5  Fed.  165. 

b.  One  Cannot  Assail  Common  Title.— One  of  the  well-established 
applications  of  this  general  principle  is  to  be  found  in  the  mle  that 
a  cotenant  will  not  be  permitted  to  question  the  validity  of  the 
common  title.  As  between  themselves^  each  is  estopped  to  deny  the 
validity  of  the  original  location,  or  to  assail  the  common  source  of 
title.  Having  entered  under  it,  one  cannot,  as  against  his  cotenant^, 
be  heard  to  assert  its  invalidity:  Sever  v.  Gregovich,  16  Nev.  325f 
Cedar  Canyon  Con.  Min.  Co.  v.  Yarwood  (principal  case).  27  Wash. 
271,  ante,  p.  841,  67  Pac.  749;  Union  Con.  S.  Min.  Co,  v.  lay  lor,  lOO 
U.  S.  37,  5  Mor.  Min.  Eep.  323. 

ۥ    Belocatlon  by  One  Ootenant 

1«  Where  He  has  Agreed  to  Perform  All  Assessment  Work.— Where 
one  of  several  cotenants  of  a  mining  claim  nndertakee  to  do  the 


*02]     Ckdab  Canyon  Con.  Min.  Co.  v.  Yabwood.        859" 

mad  work  required  l^  law  io  hold  the  claim,  and  fails  to  do  it,  the 
zigkt  of  a  stranger  to  locate  is  not  affected  by  the  contract  of  the 
«o«eiiABts  among  themselvesi  ''Title  to  the  public  mineral  land  i» 
required  and  held  by  diseotrery,  location  and  representation  in  the- 
msuiner  provided  by  law.  Bepresentation  from  year  to  year  keeps- 
alive  the  grant.  If  representation  fails,  the  grant  fails,  and  the 
^ound  is  open  to  relocation  and  purchase.  The  terms  of  the  law  are 
absolute.  There  are  no  exceptions.  If  the  representative  work  for 
tbo  T'ear  is  not  performed,  the  ground  located  becomes  again  a  part 

mf  the  public  domain Any  co-owner  or  cotenant  may  represent 

tke  claim  and  compel  those  interested  with  him  to  bear  their  propor- 
tion of  the  expenses;  but  the  claim  must  be  represented  and  the- 
aC''®^°i*i^^  0^  &  cotenant  to  bear  his  proportionate  share  of  the  ez- 
penoes  is  not  a  representation,  and  does  not  relieve  him  from  the- 
consequences  of  a  failure  to  represent":  Saunders  v.  Mackey,  5  Mont. 
523,  6  Pac  361.    To  the  same  effect,  see  Boherty  v.  Morris,  11  Colo» 
12,  le  Pac  911;  Boyston  v.  Miller,  76  Fed.  50.    In  Doherty  v.  Morris,. 
11  Colo.  12,  16  Pac.  911,  it  was  held  that  the  tenant  in  common  who 
bad  lost  his  interest  in  a  claim  by  reason  of  the  breach  of  a  contract 
by  hie  cotenant  to  do  the  necessary  assessment  work,  eould  not,  by" 
action  in  support  of  an  "adverse  claim,"  establish  an  equitable  title- 
in  the  relocation.    In  such  an  action  it  was,  moreover,   held  im- 
material that  the  forfeiture  had  taken  place  by  reason  of  a  conspiracy 
between  the  cotenant  of  the  adverse  claimant  and  the  stranger  mak- 
iag  the  location.    It  is  to  be  noted  in  this  connection,  however,  that 
tbo  rait  was  an  adverse  claim,  and,  the  claim  having  been  forfeited, 
tke  element  of  collusion  was  immaterial.    The  court  intimates,  how- 
ever, that  the  defrauded  cotenant  might,  perhaps,  have  an  equitable- 
title  in  the  new  location,  but  this  could  not  be  taken  advantage  of 
ia  an  action  to  declare  such  new  location  invalid,  though  it  might  be- 
protected  in  an  independent,  appropriate  proceeding. 

Where  the  relocation  is  not  by  a  stranger,  but  by  the  cotenant 
through  whose  default  the  claim  has  been  lost,  to  allow  him  to  gain 
title  thereby  as  against  his  cotenants  would  be  to  enable  him  to  take- 
advantage  of  his  own  wrong.  This  the  conrts  have  very  properly 
refused  to  permit,  and,  while  a  relocation  by  him  is,  it  seems,  valid 
(Saunders  v.  Mackey,  5  Mont.  523,  6  Pac.  361),  he  holds  the  title  so 
acquired  in  trust  for  his  cotenants  in  the  proportion  of  the  share» 
formerly  held  by  them:  Boyston  v.  Miller,  76  Fed.  50.  In  his  work 
on  the  Law  of  Mines,  Mr.  Lindley  seems  to  regard  Saunders  v- 
Haekey,  5  Mont.  523,  6  Pac.  361,  as  opposed  to  the  general  rule  that 
the  acquisition  of  an  outstanding  title  to  the  joint  estate  by  one 
tenant  in  common  inures  to  the  benefit  of  all :  1  Lindley  on  Mines,  sec. 
406.  What  the  case  does  decide  is,  that  a  relocation  of  a  claim  by 
a  tenant  in  common,  whose  default  in  the  performance  of  a  contract 
between  himself  and  cotenants  that  he  do  the  necessary  assessment 
work  has  thrown  the  claim  open  to  relocation,  is  a  valid  relocation. 
The  court,  however,  recognized  the  rule  as  to  the  acquisition  of 


860  American  State  Beports,  Vol.  91.  [Wash. 

an  outstanding  title  hj  a  eotenant,  by  stating  that  if  the  rdationi 
between  the  parties  were  each  as  to  make  the  reloeator  a  trustee  im 
the  location  of  the  elainiy  a  proper  action  would  so  declare  hia^ 
and  protect  his  cotenants'  interest  therein. 

2.  Under  Szpress  Trust  to  Hold  Title  for  AIL— Where  eereral 
tenants  in  common  of  a  mining  claim  find  themselves  unable  to  do 
the  assessment  work,  and  agree  that  one  shall  relocate  for  all,  the 
«otenant  so  locating  holds  the  title  acquired  by  relocation  in  trust  for 
all:  Hunt  ▼.  Patchin,  13  Saw.  804,  35  Fed.  816.  In  the  ease  cited, 
the  person  relocating  was,  in  addition  to  being  a  cotenant,  intrusted 
with  the  management  of  the  property.  As  such,  the  court  held,  he 
stood  in  a  confidential  relation  to  his  associates.  ''By  conferring  with 
them,  and  arranging  to  forfeit  and  relocate  for  the  benefit  of  all, 
he  misled  them,  and  violated  the  confidence  reposed  in  him,  if  he 
relocated  clandestinely  for  the  benefit  of  himself  alone.  By  his 
act  and  this  breach  of  faith,  he  threw  his  associates  oif  their  guard, 
and  prevented  them  from  taking  other  means  to  protect  their  in- 
terests." 

In  Hallack  v.  Traber,  23  Colo.  14,  46  Pac.  110,  the  circnmstaaees 
were  somewhat  similar.  The  several  tenants  in  common  there  deeded 
their  interests  to  one  of  their  number  to  enable  him  to  obtain  a 
patent  in  his  own  name  for  the  benefit  of  all  the  owners.  While  so 
acting,  he  filed  an  amended  or  additional  location  certificate,  taking 
in  additional  territory,  and  afterward  obtained  a  patent  to  the  claim 
as  described  in  the  additional  or  amended  certificate.  The  court  held 
that  the  title  to  the  additional  territory  so  acquired  was  burdened 
with  a  trust  in  favor  of  his  cotenants.  ''He  took  advantage  of  the 
title  held  in  common  by  himself  and  his  cotenants^  and  the  common 
expenditure  made  by  all  for  the  purpose  of  securing  additional  ter- 
ritory." Had  his  position  been  one  of  tenant  in  common  alone,  the 
court  points  out,  his  relocation  would,  undoubtedly,  have  inured  to  the 
benefit  of  all.  To  permit  him  to  hold  it  for  himself  alone,  because  by 
reason  of  his  trusteeship  he  had  been  enabled  to  file  an  additional 
location  certificate  for  the  entire  property,  would  be  to  allow  him 
to  reap  an  advantage  from  the  trust  property  and  from  his  positioB 
as  trustee. 

S.  General  Bule.— In  the  cases  considered  above^  the  relations  ef 
trust  and  confidence  between  cotenants  have  been  strengthened  bv 
extrinsic  circumstances.  The  r^ation  is,  however,  sufBcient  in  itself 
to  charge  with  a  trust  for  all  of  the  co-owners  any  relocation  of  the 
common  property  by  one  of  their  number.  Until  the  claim  is  appro- 
priated by  a  stranger,  forfeiture  for  failure  to  do  the  annual  work  is 
not  complete.  Until  such  appropriation  the  parties  remain  tenants  ia 
common,  and  a  location  by  one  of  them  in  his  own  name  is  the 
simple  case  of  one  tenant  in  common  acquiring  an  independent  title 
to  the  common  property.  Such  title,  by  a  well-established  rule,  inures 
to  the  benefit  of  all:  McCarthy  v.  Speed,  11  8.  Dak.  862,  77  N.  W, 


Jan.  *02]     Cedar  Canyon  Con.  Min.  Co.  v.  Yabwood.        861 

590,  12  S.  Dak.  7,  80  N.  W.  135.  See,  also,  Coleman  ▼.  Clementfl,  2$ 
C&l.  245;  Strang  y.  Byan,  46  Cal.  33;  Sever  y.  Gregovich,  16  Nev. 
325.  8ee^  also,  in  this  general  eonnection,  Hulst  ▼.  Doerstler,  11  S» 
X>a.k.  14y  75  N.  W.  270.  Where  the  relocation  or  renewal  is  by  a. 
strange  to  the  first  location,  the  fact  that  he  associates  with  him 
in  tbe  relocation  a  number  of  those  who  were  eotenants  in  the  for- 
feited location  does  not,  however,  make  the  relocation  inure  to  the 
benefit  of  those  eotenants  in  the  first  location  who  were  omitted  in 
the  second:  Strang  v.  Byan,  46  GaL  83. 

In  certain  California  cases,  it  appeared  that  after  tho  filing  of  a. 
notice  of  location  in  the  names  of  certain  persons,  the  names  of  some 
of  them  were  struck  out,  and  those  of  others  entered:  See  Morton  ▼». 
Solambo  etc.  Min.  Co.,  26  Cal.  527;  Thompson  v.  Spray,  72  CaL  528,. 
14   Pac.   182.    This   change,  it  was   held,   did   not,   and   could  not, 
affect  the  rights  of  those  originally  named  as  locators.    These  cases^ 
have  been  at  times  cited  as  applying  the  principle  that  a  relocation 
by  one  cotenant  inures  to  the  benefit  of  all,  but  are,  in  fact,  applica- 
tions of  a  quitel  different  principle,  involve  no  question  of  relocation- 
or  of  the  confidential  relation  of  eotenants,  and  are  merely  applications 
of  the  rule  that  a  locator  has  a  vested  right  which,  until  it  is  for- 
feited or  abandoned,  cannot  be  disposed  of  or  otherwise  affected  by" 
m  eotenant  or  any  other  person. 

d.    Acauisltlon  of  Outstanding  Title  by  One  Cotenant. 
1.    Qeneral  Bnle. — The  acquisition  by  one  tenant  in  common  of~ 
title  to  the  common  property  by  relocation  after  failure  by  all  to 
do  the  annual  assessment  work,  is  a  method  of  acquisition  peculiar 
to  mining  property,  and  has,  therefore,  been  separately  considered.. 
The  principle  that  tenants  in  common  of  mining  property  hold  i^ 
distinct  title  acquired  by  them  in  trust  for  their  eotenants  is  by 
no  means  restricted  to  titles  acquired  by  relocation.    It  extends  to- 
outstanding  and  distinct  titles  to  the  joint  estate,  however  acquired. 
''The  principle  arises  from  the  privity  subsisting  between  parties 
having  a  common  possession  of  the  same  land,  and  a  common  interest 
in  the  safety  of  the  possession  of  each,  and  it  only  inculcates  that 
good  faith   which    seems   appropriate   to    their    relative    position.'^ 
Whatever  the  nature  of  the  outstanding  title,  therefore,  the  rule  ap- 
plicable to  other  species  of  property  is  applicable  in  its  generality  to 
mining  property  held  in  common,  and  the  purchase  by  one  cotenant 
of  any  distinct,  outstanding  title  inures  to  the  benefit  of  all  his  co- 
tenants  who    may   desire   to   share   therein:    Franklin   Min.    Co.    v. 
O'Brien,  22  Colo.  129,  55  Am.  St  Bep.  118,  43  Pac  1016;  Mills  v. 
Hart,  24  Colo.  505,  65  Am.  St.  Bep.  244,  52  Pac.  680;  Harris  v.  Lloyd, 
11  Mont.  390,  28  Am.  St.  Bep.  475,  28  Pac.  736;  Brundy  v.  Mayfield, 
15  Mont.  201,  38  Pac.  1067;  McCarthy  v.  Speed,  11  S.  Dak.  362,  77 
N.  W.  590,  12  S.  Dak.  7,  80  N.  W.  175;  CecU  v.  Clark,  44  W.  Va. 
659,  30  8.  E.  216;  Bissell  v.  Foss,  114  TJ.  S.  252,  5  Sup.  Ct.  Bep.  851;, 
Turner  v.  Sawyer,  150  U.  S.  578,  14  Sup.  Ct.  Bep.  192. 


^C2  American  Statb  Ebports,  Vol.  91.  [WaaK 


2.  Purchase  of  Other  Ck>tenant'8  Interest.— This  principle 

not,  however,  affect  the  right  of  one  eotenant  to  purchase  the 
of  another  without  consulting  the  remaining  associates.  8ueh  a 
•chase  is  not  the  acquisition  of  an  outstanding  title  or  encombi 
to  the  prejudice  of  the  other  tenants  in  common.  The  title 
is  in  no  sense  antagonistic  or  hostile  to  the  title  of  the  n 
cotenants,  nor  does  its  purchase  violate  any  relation  of  trust  or 
lid  ence,  although  consummated  after  an  understanding  between  omB 
eotenant  and  the  purchaser  that  the  latter  should  negotiate  for  thm 
terms  on  which  the  shares  of  a  third  eotenant  might  be  secured: 
eell  V.  Foss,  114  U.  S.  252,  5  Sup.  Ct.  Bep.  851,  affirming  first  X; 
Bank  ▼.  Bissel,  2  McCrary,  73,  4  Fed.  694. 

3.  Purchase  of  Senior  Location.— A  senior  conflicting  location  is 
not,  strictly  speaking,  an  outstanding  title  to  a  junior  location,  la 
which  two  persona  are  tenants  in  common.    Each  of  the  claims  is  in 
law  a  different  thing  from  each  of  the  others.    The  purchase  of  aueh 
-senior  location  by  one  eotenant  is,  however,  quite  properly  placed 
upon  the  same  footing  as  the  purchase  of  a  lien  or  outstanding  title 
in  the  common  location.    By  any  other  rule,  it  is  well  said  by  the 
supreme  court  of  Colorado,  the  right  of  the  eotenant  not  permitted 
to  share  in  the  senior  location  would  be  as  effectually  extingniafaed 
as  if  the  patent  to  the  junior  location  itself  were  obtained    with 
hostile  intent  by  the  tenant,  and  successfully  asserted  against  his 
eotenant.    ' '  The  reason  for  the  application  of  the  rule  in  the  one  case 
is  as  forcible  as  in  the  other,  and  to  draw  any  such  distinction  as  is 
here  claimed  with  respect  to  cotenancy  in  mining  claims  would  be 
to  sacrifice  substance  for  shadow,  and  enable  gross  wrongs  to  be 
perpetrated,  contrary  to  the  principle  which  gives  Ufe  to  the  rule": 
I'ranklin  Min.  Co.  v.  O'Brien,  22  Colo.  129,  55  Am.  St  Bep.   118, 
43  Pac  1016. 

4.    Between  Whom  Bnle  as  to  Ac<iiil8ttlon  of  OiitBtUMUiig  XtOa  hw 

One  Cotenant  Applies. 

A.    Where  no  Cotenancy  Exists  at  Time  of  Purchase.— In  the  ap> 
plication  of  the  doctrine  that  an  outstanding  title  purchased  by  one 
eotenant  inures  to  the  benefit  of  all,  the  courts  have  had  regard  to 
the  reason  and  spirit  of  the  rule,  rather  than  its  restricted  application 
to  those  who  are  cotenants  at  the  exact  time  of  the  purchase.    The 
parties  must,  of  course,  be  in  a  position  such  that  the  relation  of 
•confidence   between   cotenants   would   be  violated   by  allowing  the 
purchaser  to  retain  title  in  himself.    Thus  the  principle  is  not  ap- 
plicable where  a  cotenancy  has  ceased  to  exist  as  by  an  orsl  parti- 
tion:  Four  Hundred  and  Twenty  Min.  Co.  v.  Bullion  HOn.   Co.,  3 
Saw.  634,  Fed.  Cas.  No.  4889;  or  where  the  parties  are  not  properly 
cotenants  at  all,  as  where  one  owns  the  surface  and  another  the 
mineral:  Powell  v.  Lantzy,  173  Pa.  St.  543,  34  Atl.  450,  affirming  16 
Pa.  Co.  Ct.  Bep.  417  j  Virginia  Coal  etc.  Co.  v.  Kelly,  93  Va.  SS2,  M 
^  £.  1020.     (See,  also,  supra,  p.  854.)     But  the  principle  eanaot  be 


'02]     Cedab  Canyon  Con.  Min.  Co.  v.  Yabwood.        863 

rsvded  by  a  person  severing  his  relations  as  cotenant  on  one  day,  and 
^cjuiring  an  outstanding  or  perfected  title  on  the  next:  QiUett  ▼. 
£1  ffney,    3   Colo.   851    (townsite   entry).    So   where   an   interest   is 
<2<qiiired  in  accordance  with  a  prior  parol  agreement,  the  relation  of 
ol^enancy  is  to  be  determined  with  reference  to  the  date  of  the 
.^Tecment,  rather  than  that  of  the  aetnal  conveyances,  and  the  effect  * 
^^    the  purchase  of  the  superior  title  by  one  of  the  number  will 
>^  determined  in  accordance  thnewith:  Franklin  Min.  Co.  v.  O'Briesi, 
Colo.  129,  55  Am.  St.  Bep.  118,  43  Pac.  1016. 
X.    Where  Title  was  Derlyed  from  Different  Grantors  or  at  Dif« 
^rent  Times. — Whether  the  doctrine  that  one  tenant  in  common  can- 
i-oty  by  purchasing  an  outstanding  or  adverse  title,  enforce  it  against 
lis  cotenants,  iff  applicable  to  cases  where  the  cotenants  hold  by 
ties    derived    from    different    grantors    or    at    different    times    by 
separate  conveyances,  is  a  question  on  which  the  authorities  are  in 
conflict:  See  Franklin  Min.  Co.  v.  O'Brien,  22  Colo.  129,  55  Am.  St. 
IRep.  118,  43  Pac.  1016,  and  note  to  Tenable  v.  Beauchamp,  28  Am. 
3>ec.  84;  Freeman  on  Cotenancy  and  Partition,  sec.  151.    Whatever 
^he  true  rule  on  principle,  or  the  weight  of  authority  generally,  the 
xesult  of  the  cases  applying  the  rule  to  cotenants  of  mines  is  that, 
bowever  the  interests  of  the  cotenants  were  acquired,  whether  by 
one  instrument  from  the  same  grantor,  or  by  several  instruments, 
ut  various  times,  and  from  different  grantors,  one  cotenant  cannot 
employ  against  his  associates  a  superior,  adverse,  outstanding  title 
purchased  by  him  without  permitting  such  of  them  as  elect  to  do  so 
to  share  it  with  him:  See  Franklin  Min.  Co.  v.  O'Brien,  22  Colo.  129, 
55  Am.  St.  Eep.  118,  43  Pac.  1019;  Cecil  v.  Clark,  44  W.  Va.  659,  30 
8.  E.  216;  Turner  v.  Sawyer,  150  U.  S.  578,  14  Sup.  Ct.  Bep.  192. 

C.  Where  Purchaser  Holds  Adversely  to  His  Cotenants.— The  rule 
under  consideration  is,  of  course,  founded  on  the  relation  of  mutual 
trust  and  confidence,  which  the  law  assumes  to  exist  between  co- 
tenants.  This  reason  is,  however,  certainly  absent  where  the  tenants 
in  common  hold  adversely  to  each  other.  Accordingly,  it  is  said  by 
Brannon,  P.,  in  Cecil  v.  Clark,  44  W-  Va.  659,  30  S.  E.  216:  •'!  can- 
not see  why  tenants  in  common,  deriving  in  separate  ways,  or  where 
cne  has  ousted  another  and  brought  home  to  him  notice  of  adverse' 
elaim,  or  made  actual  entry  under  a  deed  claiming  the  whole,  and 
thus  become  the  enemy  of  the  cotenant,  and  negatived  all  relation  of 
trust  and  confidence,  may  not  buy  in  an  outstanding  lien  or  title  and 
take  its  benefit.  The  strength  of  this  position  will  likely  ultimately 
enforce  it.  But  the  general  rule  is  that  one  tenant  in  common,  joint 
tenant  or  coparcener  cannot  do  so  has  so  long  been  stated  in  a 
general  way,  that  I  cannot  say  that  this  exception  is  tenable.'' 

In  Tabor  v.  Sullivan,  12  Colo.  136,  20  Pac.  437,  the  exception  stated 
in  the  abo^^e  extract  as  correct  on  principle,  but  doubtful  on  author- 
ity, is  applied.  The  cotenancy,  if  any,  existing  in  that  ease,  arose 
against  the  will  of  the  person  procuring  the  outstanding  title.  He 
liad  purchased  what  appeared  to  be  a  clear  title  to  an  entire  claim. 


864  American  State  Eepobts,  Vol.  91.  [Waslu 

and  had  never  recognized  those  as  eotenants  who  elaimed  to  be 
aueh  hj  virtue  of  a  prior  unrecorded'  deed  Bis;ned  hy  a  part  only  of 
several  co-owners.  Under  these  cireumstanceSy  the  court  bald  thmt. 
there  had  been  no  abuse  of  a  confidence  expressed  or  presomad, 
the  rule  forbidding  a  eotenant  from  acquiring  an  outstanding  title 
Ids  own  exclusive  benefit  did  not  apply. 

6.    Necessity  of  Offer  to  Oontribute  Sbaie  of  Ckwt— Wkera 
tenant  in  common  of  a  mine  purchases  an  outstanding  title,  ba  im- 
not,  upon  the  one  hand,  bound  to  share  it  with  his  eotenants^  nnlea^ 
they  share  with  the  expenses  incurred  by  him  in  its  aequisitiom;  noTy. 
on  the  other  hand,  are  the  eotenants  bound  to  participate  in  tbe 
benefits  of  the  purchase.    "The  right  of  a  eotenant  to  share  in  tbe 
benefit  of  a  purchase  of  an  outstanding  claim  is  alwi^  dependent  on 
his  having,  within  a  reasonable  time,  elected  to  bear  his  proportion 
of  the  expense  necessarily  incurred  in  the  acquisition  of  the  claim": 
Freeman  on  Cotenancy  and  Partition,  sec.  156.    To  affect  him  by 
delay,  it  must,  however,  appear  not  only  that  he  knew  of  the  par- 
chase,  but  also  of  the  adverse  claim  under  it:  Cecil  v.  Clark,  44  W.  Ywu 
659,  30  8.  E.  216;  nor  will  his  right  of  participation  be  barred  where 
it  appears  that  no  demand  has  ever  been  made  upon  him  to  contribttte 
his  share,  and  that,  at  all  times,  after  learning  of  the  purchase^  he 
has  been  ready  and  willing  to  contribute  his  proportion  of  the  pur- 
chase price:   Cedar  Canyon  Con.  Min.   Co.  ▼•  Yarwood     (principal 
case),  27  Wash.  271,  ante,  p.  841,  67  Pac  749. 

6.  Bights  of  Bona  Fide  Purchaser  ftom  Tenant  Holding  Ootstaiidr 
Ing  Title  in  Trust  for  Cotenants.— An  outstanding  title  purchased 
by  one  eotenant  is  burdened  with  an  equity  to  the  extent  that 
the  purchaser  holds  it  in  trust  for  those  of  his  eotenants  who,  withiA 
a  reasonable  time,  may  elect  to  participate  in  its  benefits.  A  snbes- 
quent  purchaser  of  such  title,  who  takes  it  with  notice  of  the  faet% 
takes  it  subject,  therefore,  to  the  trust  which  was  fastened  on  it  in 
favor  of  the  eotenants  of  his  grantor:  Mills  v.  Hart,  24  Colo.  505,  6» 
Am.  St.  Bep.  244,  52  Pac  680.  And  a  corporation  formed  by  persons 
having  knowledge  of  the  facts  is  held  chargeable  with  notice  of  the 
trust  attaching  to  the  title,  where  such  persons  are  the  direetora 
and  only  stockholders  of  the  corporation,  and  it  takes  as  grantee  from 
them:  Franklin  Min.  Co.  v.  O'Brien,  22  Colo.  129,  55  Am.  8t.  Bep.  118,^ 
43  Pae.  1016. 

7.    Patent  Procured  by  One  Ootenant. 

A*  General  Bnle.— In  procuring  a  patent  for  a  mining  claim  hel<^ 
in  common  by  several  persons,  it  Is  a  frequent  practise  for  them  to  ap- 
point one  of  their  number  to  take  the  necessary  proceedings*  and  to 
receive  the  patent  in  his  own  name.  Whether  or  not  any  sneh 
arrangements  exist,  one  of  several  eotenants  in  a  mining  claim,  taking 
a  patent  for  the  entire  claim  in  his  own  name,  holds  it  in  trust  for 
all  the  eotenants  in  the  proportion  of  their  respective  sharea.  The 
procurement  of  a  patent  from  the  government  for  mineral  land  i» 


XFan.  '02.]     Cedab  Canyon  Con.  Min.  Co.  v.  Yabwood.        866 

soty  as  it  is  pointed  out  in  Mills  y.  Hart,  24  Colo.  505,  65  Am.  St.  Bop. 
S44y  52  Pae.  680,  "the  purchase  of  an  outstanding,  adverse  title  by  a 
cotenant  as  that  expression  is  ordinarily  used;  but,  rather,  the  per- 
^eetion  of  the  common  title."  Th%  same  considerations  of  trust  and 
confidence  control,  however  (perhaps  with  greater  force),  as  in  the 
purchase  of  an  adverse  title  by  a  eotenant,  and  the  rule  is  undoubted 
'that  a  patent  obtained  in  the  name  of  one  eotenant  inures  to  the 
l>enefit  of  all:  Costa  v.  Si]va,  127  CaL  351,  59  Pac.  695;  Hallach  v. 
ITaber,  23  Colo.  14,  46  Pac.  110;  Mills  v.  Hart,  24  Colo.  505,  65  Am.  St. 
Hep.  244,  52  Pae.  680;  Bnindy  v.  Mayfield,  15  Mont.  201,  38  Pac  1067; 
Mullins  V.  Butte  Hardware  Co.,  25  Mont.  525,  87  Am.  St.  Bep.  430,  65 
Pac  1004;  Hunt  v.  Patchin,  13  Saw.  304,  35  Fed.  816;  Turner  v. 
Sawyer,  150  tJ.  8.  578,  14  Sup.  Ct.  Bep.  192.  See,  also,  in  this  connec- 
tion, Gillett  V.  Qaffney,  3  Colo.  351,  where  the  owner  of  an  undivided 
one-half  interest  in  land  subject  to  entry  as  a  townsite  perfected  his 
title  to  his  one-half  interest  only,  and  was  held  to  be  not  bound  to 
share  it  with  his   eotenant. 

The  rule  is  not,  it  seems,  applicable  where  the  eotenant  procuring 
the  patent  held  no  relation  of  trust  or  confidence  with  his  associates, 
but  without  recognizing  their  title,  claimed  the  entire  property  ad- 
versely to  them:  Tabor  v.  Sullivan,  12  Colo.  136,  20  Pac.  437.  See, 
also,  supra,  II)  d,  4,  c 

B.  Under  Agreement  Between  Ck>tenants  to  Hold  Surface  in 
Severalty.— In  Mullins  v.  Butte  Hardware  Co.,  25  Mont.  525,  87  Am. 
St.  Bep.  430,  65  Pac  1004,  several  parties  having  settled  upon  certain 
lots  of  land,  combined  and  appointed  one  of  their  number  to  procure 
a  patent.  Each  party  was  to  be  entitled  in  severalty  to  the  surface 
occupied  by  him,  while  all  were  to  be  tenants  in  common  of  the 
minerals.  Each  continued,  in  the  meantime,  to  occupy  and  pay  taxes 
on  his  portion  of  the  surface,  and,  the  patent  having  been  secured,  the 
patentee  conveyed  to  each  an  undivided  interest  in  the  claim,  with- 
out distinguishing  the  rights  to  the  surface  and  in  the  mineral. 
Through  several  mesne  conveyances,  the  plaintiff,  Mullins,  received 
title  to  one  of  the  undivided  interests  so  conveyed.  The  original 
eotenant,  from  whom  plaintiff  received  his  title,  subsequently  con- 
veyed another  undivided  interest  by  a  deed  purporting  to  convey 
a  separate  surface  right  also.  Through  this  latter  deed  the  defend- 
ant claimed  title.  In  a  suit  for  partition  of  the  claim,  brought  by 
plaintiff,  it  was  held  that  the  original  patentee  took  the  title,  bur- 
dened with  a  trust  to  convey  undivided  interests  in  the  mineral,  and 
the  separate  portions  of  the  surface  occupied  by  each  to  the  original 
settlera  These  were,  however,  mere  equities,  and  affected  such  subse- 
quent purchasers  only  as  took  with  notice,  actual  or  constructive.  The 
plaintiff  did  not  have  actual  notice  of  the  rights  of  the  original 
locators  to  the  several  portions  of  the  surface  occupied  by  them, 
and  their  occupancy  thereof,  being  quite  consistent  with  a  tenancy  in 
common  of  the  surface,  as  well  of  the  mineral,  did  not  charge  him 
Am.  8t  Bep.,  Vol.   91-55 


866  American  Statb  Beports,  Vol.  91.  [Widt 

with  notice  of  their  claim  to  separate  surface  rights.  The  reeord 
title  showing  merely  a  tenancy  in  common  of  the  claim  without  wbj 
right  to  separate  portions  of  the  surface,  the  plaintiif  took  without 
notice  of  an j 'claim  to  such  rights,  and  was  entitled  to  a  p^rtitioa 
of  the  daim,  surface  and  mineral,  as  between  tenants  In  eomnioB. 
The  case  is  an  interesting  one,  and  is  well  considered. 

C.  Necessity  of  Ootenants  ''Advendng"  Application  by  One  for 
Patent. — In  prescribing  the  procedure  by  which  the  locators  of  a 
mining  claim  may  perfect  their  title  and  procure  a  patent  from  the 
federal  government,  provision  is  made  for  the  filing  of  any  "  adverse 
claim":  TJ.  8.  Bev.  Stats.  2325,  2326.  The  land  department  of  the 
United  States  holds  that  where  one  cotenant  applies  for  a  patent, 
his  cotenants  must  protect  their  rights  under  the  procedure  provided 
for  an  adverse  claimant:  Monitor  Lode,  18  Land  Dec  358;  Lmey  B. 
Hussey  Lode,  6  Land  Dec  93.  This  means  simply  that  any  claiKS 
which  a  cotenant  desires  to  urge  in  the  land  department  against  the 
issuance  of  the  patent  to  the  applicant  must  be  urged  in  the  mode 
provided. 

The  rights  of  a  cotenant  need  not,  howevw,  be  urged  in  the  form 
of  an  adverse  claim  in  the  proceedings  for  a  patent.  The  deeiaioB 
of  the  land  office  may  result  in  the  issuance  of  the  patent  to  one 
of  several  cotenants^  but  the  rights  of  his  associates  may  be  asserted 
in  the  ordinary  courts.  If  proper,  a  trust  in  their  favor  win  be 
fastened  upon  the  legal  title  held  by  the  patentee,  and  it  is,  nn- 
doubtedly,  the  general  rule  that  co-owners  need  not  ''adverse" 
the  application  of  one  of  their  number  for  a  patent  in  order  to  protect 
their  vested  rights  in  the  property:  Mills  v.  Hart,  24  Colo.  505,  65 
Am.  St.  Rep.  244,  52  Pac.  680;  Brundy  v.  Mayfield,  15  Mont.  203, 
38  Pac  1067;  Hunt  v.  Patchin,  13  Saw.  804,  85  Fed.  816;  Turner  v. 
Sawyer,  150  U.  S.  678,  14  Sup.  Gt.  Bep.  192.  See,  in  this  general  eon- 
nection,  Mattingly  v.  Lewisohn,  8  Mont.  259,  19  Pac.  310. 

In  Tabor  v.  Sullivan,  12  Colo.  36,  20  Pac  437,  Elliot,  J.,  in  a  sep- 
arate opinion,  states  that  this  rule  is  inapplicable  to  a  case  where 
the  applicant  for  a  patent  holds  in  avowed  hostility  to  his  co- 
tenants.  "If  the  applicant  had  previously  known  or  recognized  them 
as  co-owners,  and  especially  if  there  was  an  understanding  with  the 
applicant,  that  he  should  secure  the  patent  for  the  benefit  of  all,  a 
rourt  of  equity  would,  undoubtedly,  protect  the  interests  of  the  co- 
owners  against  an  assertion  of  exclusive  ownership  by  the  patentee; 
but  if  these,  and  other  like  circumstances,  calculated  to  inspire  trust 
und  confidence  are  altogether  wanting,  I  see  no  reason  why  those 
claiming  to  be  co-owners  should  passively  sufFer  the  patent  to  issue 
without  asserting  their  rights."  This  qualification  is  indorsed  by 
Mr.  Lindley  (Lindley  on  Mines,  728),  but  does  not  seem  to  have  been 
generally  adopted  by  the  courts  either  in  the  statement  or  the 
Application  of  the  rule:  Seo  cases  cited  in  preceding  paragraph. 


JTan.  '02^     Cedak  Canyon  Con.  Min.  Co.  v.  Yaewood.        867 

m.    Possession  of  Common  Property. 

^  a.     General  Bule— Each  Entitled  to  Possession  of  Whole.— The  one 
•distinctive  feature  of  every  cotenancy  is  the  right  of  each  tenant, 

in  common  with  his  cotenants,  to  the  possession  of  the  premises  held 

in  common.    In  mines,  as  in  other  property,  each  cotenant  is  entitled, 

<oqnal1y  with  every  other,  to  enter  and  take  possession,  and  no  one 

tiixB  any  right  to  exclude  an  associate:  McCord  v.  Oakland  Quicksilver 

Min.    Co.,  64  Cal.  134,  49  Am.  Bepi.  686,  27  Pac.  863;  Morganstern 

V.  Thrift,  66  Cal.  577,  6  Pac.  689;  Schreiber  v.  National  Transit  Co., 

21  Pa.  Co.  Ct.  Bep.  657. 

b.    By   One   Cotenant. 

1.     General  Bnle— Inures  to  Benefit  of  AIL— An  immediate  and 

necessary  corollary  to  this  rule  is  the  principle  that  the  possession  of 

one  tenant  in  common  is  the  possession  of  all.    His  sole  occupancy  of 

the  common  property  is  entirely  consistent  with  the  existence  of  the 

cotenancy  and  a  full  recognition  of  the  rights  of  his  cotenants  to 

enter  and  share  the  possession  with  him  at  any  timow    In  the  absence, 

therefore,  of  facts  showing  that  he  holds  possession  of  the  premises 

in  opposition  to  such  rights  in  his  cotenants^  his  occupancy  will  be 

presumed  to  be  that  of  a  tenant  in  common,  recognizing  the  cotenancy: 

Partridge  v.  McKinney,  10  Cal.  181;  Waring  v.  Crow,  11  Cal.  366  j 

Coleman  v.  Clements,  23   Cal.  245;   Hurley  ▼.  Ennis,  2  Colo.  300; 

Southmayd  v.  Southmayd,  4  Mont.  100,  5  Pac.  318;  Mallett  ▼.  Uncle 

8am  Qold  etc.  Min.  Co.,  1  Nev.  188,  90  Am.  Dec.  484;  Abemathie  v. 

Consolidated  Va.  Min.  Co.,  16  Nev.  260;  Union  Consolidated  8.  Min. 

Co.  V.  Taylor,  100  U.  S.  37,  5  Mor.  Min.  Rep.  323. 

2.    Where  Adverse  to  Others. 

A*    General  Bnle.— This  presumption  is  a  rebuttable  one,  and  the 
operation  of  the  rule  that  the  possession  of  one  cotenant  is  the 
possession  of  all,  ceases  from  the  moment  that  such  possessioii  be- 
eomes  adverse  to  the  co-owners  of  the  possessor.    Once  it  appears 
that  the  party  occupying  the  premises  holds  not  in  recognition  of, 
but   in   hostility    to,    the    rights    of    his    cotenants^    his    possession 
ceases  to  amount  to  constructive  possession  by  them,  becomes  adverse, 
and  if  maintained  for  the  period  provided  for  by  the  statute  of 
limitations,  will  vest  in  the  possessor  a  sole  title  by  adverse  posses- 
sion to  the  premises:  Coleman  v.  Clements,  23  Cal.  245;  Partridge  ▼• 
McKinney,  10  Cal.  181;  HuflP  v.  McDonald,  22  Ga.  131,  68  Am.  Dec. 
487;  Pour  Hundred  and  Twenty  Min.  Co.  v.  Bullion  Min.  Co.,  9  Nev. 
"240,  1  Mor.  Min.  Eep.  114;  Abemathie  v  Consolidated  Va.  Min,  Co., 
16  Nev.  260;  Susquehanna  By.  Co.  v.  Quick,  61  Pa.  St.  328;  Four 
Hundred  and  Twenty  Min.  Co.  v.  Bullion  Min.  Co.,  3  Saw.  634^  Fed. 
Cas.  No.  4989. 

B.  What  is  Proof  of  Ouster  and  Adverse  Holding.— To  constitute 
an  ouster  of  one  tenant  in  common  by  another,  the  facts  relied  upon 
to  show  that  the  holding  was  adverse,  must  appear  affirmativ^y: 
Union  Consolidated  8.  Min.  Co.  v.  Taylor,  100  U.  S.  37,  5  Mor.  Min. 
Bep.  323;  and  the  hostility  of  the  possession  must  have  been  nnequi- 
voeaUy  mmaifasted:   Aberaathie  v.  Consolidated  Ya.  lOn.  Co.,   16 


868  American  State  Reports,  Vol.  91.  [WadL 

Nev.  260.    What  eonstitutes  an  ouster  in  any  partienlar  ease  must  be 
judged  of  by  the  faeta  of  that  case:  Susquehanna  ete.  Coal  Co.  t. 
Quick,  61  Pa.  St  328.    Here  ''failure  to  recognize  his  eotenant"^ 
does  not,  it  is  hold,  chow  an  ouster  by  one  tenant  in  common:  Colemaa 
▼.  Clements,  23  CaL  246.    The  adverse  occupant  need  not  give  his  co- 
tenant  actual  notice  that  he  is  holding  in  hostility  to  him,  nor  need 
there  be  an  actual  ejection  of  the  cotenant  from  the  premiseft.    Where 
one  claims  the  whole^  and  his  possession  is  openly  and  notoriously 
adverse  to  his  associates^  this  is  sufficient  to  establish   an  ouster: 
Abernathie   v.   Consolidated   Va.  Min.   Co.,   16  Nev.  260.     Compare 
Huff  V.  McDonald,  22  Ga.  131,  68  Am.  Dec  487;    Threats  of  bodily 
injury  to  a  cotenant  if  he  enters  may  bo  sufficient  to  shoir  an  ouster: 
Paul  V.  Cragnaa,  25  Nev.  295,  59  Pac  857,  60  Pac  98a.     The  mere 
reception  of  a  deed  for  the  whole  claim  from  a  cotenant,  or  SBetiur 
person,  where  it  is  not  followed  by  an  entry,  is  not  sufficient  to  prere 
an  ouster  and  adverse  possession:  Cecil  v.  Clark,  44  W.  Va-  65§,  3<^ 
S,  E.  216;  but  where  one  enters,  claiming  the  whole  estate,  the  entry 
is   adverse   to   tho  other   tenants:    Abernathie   v.   Consolidated  Ts^ 
Min.  Co.,  16  Nev.  260.     The  receipt  of  money  for  ore,  claiming  it  all 
and  refusing  to  permit  the  cotenants  of  tho  person  claiming  it  to  per- 
ticipate  in  the  profits,  is  an   ouster   of  such   cotenants:    Irvine  v.. 
Cfaulin,  10  Serg.  &  E.  (Pa.)  219.  In  Susquehanna  etc.  Coal  Co.  ▼.  Quia, 
61  Pa.  St.  328,  it  is  said  that  ''open,  notorious  and  uninterrupted 
possession  of  the  whole,  by  a  tenant  in  common  for  twenty-one  year\ 
claiming  the  whole  land  aa  his  own,  and  taking  the  whole  profits  ex- 
clusively to  himself,  is  evidence  from  which  a  jury  may  draw  the  con- 
clusion of  an  ouster  and  an  adverse  possession.    The  distinctioa  is 
that  it  does  not  afford  a  legal  presumption,  which  would  entitle 
the  court  to  withdraw  the  question  from  the  jury,  and  instruct  thsm 

that  they  must  infer  an  ouster The  question  of  fket  most  he 

determined  by  the  jury,  for  it  may  appear  from  all  the  ciremnstaness 
that  the  possession  is  not  adverse,  notwithstanding  the  loB^-eontiBssA 
reception  of  the  profits":  See,  also,  in  this  general  connection,  Heb» 
rard  v.  Jefferson  Gold  etc.  Min.  Co.,  83  Cal.  290. 

IV.  Operation  of  Ck>minon  Property  by  One  Ootenant. 
a.  In  QeneraL^So  long  as  the  questions  arising  betwees  ee- 
tenants  of  mines  affect  the  right  to  the  possession  merely,  they  irt 
easy  of  solution.  They  seldom,  however,  concern  merely  tho  right  to 
possession.  Mining  property  is,  as  a  rule,  valuable  only  for  the  min- 
eral contained  in  it,  and  this  can  be  availed  of  only  by  the  eztraetioa 
of  ore,  and  possession  is,  therefore,  desirable  usually  only  so  f ar  ss 
it  enables  the  possessor  to  work  the  mine.  The  question  inimediatelj 
arises  as  to  the  right  of  one  tenant  in  possession  to  emoUfy  tbe 
common  property  by  the  removal  of  ore. 

b.    Waste. 
1.    Liability  of  Cotenant  for.— At  the  early  common  law  one  tsesst 
in  common  had  no  right  of  action  against  his  cotenant  for  wests  of 


^EiL  ^02]     Cedar  Canyon  Con.  Min.  Co.  v.  Yarwood.        869 

-the  joint  estate  by  the  latter:  Williamson  ▼.  Jones,  48  W.  Ya.  562, 
-64  Am.  St.  Bep.  891,  27  S.  E.  411;  Cecil  v.  Cflark,  47  W.  Va. 
402,  81  Am.  St.  Bep.  802,  35  S.  £.  11.  This  was,  however,  early 
changed,  the  statute  of  Westminster  n  giving  the  injured  eotenant 
«n  aetion  for  waste  by  his  eo-owner,  and  in  many  of  the  states  of 
-thiB  country  the  right  of  action  in  such  ease  is  provided  for  by  statute. 
It  seems,  moreover,  that  where  the  common  law  provides  no  remedy, 
^«  eernt  of  equity  will  interfere  when  it  appears  that  waste  has  been 
committed  or  threatened  by  one  eotenant:  McCord  v.  Oakland  Quick- 
4911ver  Min.  Co.,  64  CaL  134,  49  Am.  Bep.  686,  27  Pac  863. 

2.    What  Ck>nstitatef.— What,  then,  constitutes  waste  by  a  tenant 
"^n   common  of  a  minef    According  to   one  line  of  authorities,   of 
-which  McCord  v.  Oakland  Quicksilver  Min.  Co.,  64  Oal.  134,  49  Anu 
Bep.  686,  27  Pac.  863,  is  the  leading  case,  there  can  be  no  use  of  min- 
'ing  property  which  is  not  to  some  extent  a  destruction  of  the  property 
itself.    To  hold  that  sueh  a  use  of  it  by  one  eotenant  is  a  ''waste'' 
of  the  property,  is,  according  to  the  view  of  these  cases,  to  lose 
•sight  of  the  nature  of  the  property,  and  to  condemn  all  mining  prop- 
erty held  in  common  to  idleness,  unless  all  join  in  its  operation,  or 
the  eotenant  seeking  to  employ  it  is  willing  to  do  so  under  a  liability 
to  be  sued  for  waste  by  his  cotenants,  and,  under  the  statutes  of  some 
etates   (as  of  California),  to  be  mulcted  in  treble  damages.    The 
reasoning  is  cogent,  and  by  the  better  rule  one  tenant  in  common 
-of  a  mine  does  not  commit  waste,  within  the  meaning  of  the  statutes, 
where  he  mines  the  common  property  without  unnecessary  damage 
-to  the  mine  or  its  works  and  with  care  and  skill:  McCord  v.  Oakland 
Quicksilver  Min.  Co.,  64  Cal.   134,  49  Am.  Bep.  686,  27  Pac.  863; 
Bussell  V.  Merchants'  Bank,  47  Minn.  286,  28  Am.  St.  Bep.  368,  50 
N.  W.  228;  Anaconda  Copper  Min.  Co.  v.  Butte  etc.  Min.  Co.,  17 
Mont.  519,  43  Pac.  924;  Yervalen  v.  Older,  8  N.  J.  Eq.  88.    See,  also. 
Job  V.  Patton,  44  L.  J.  Ch.  262,  32  L.  T.  110,  L.  B.  20  £q.  84. 
The  authorities  are  not,  however,  uniform  in  so  holding,  and  it  is  held 
•by  some  that  any  removal  of  the  substance  of  the  property  is  waste. 
Boring  for  oil  or  the  removal  of  coal  is,  according  to  these  cases, 
.«  destruction  of  the  freehold,  and  renders  the  person  so  operating 
-on  the  land  liable  te  a  statutory  action  for  waste.    Under  this  view 
it  is  difficult  to  see  what  ^'use,"  as  distinguished  from  ''waste," 
•can  be  made  of  a  mine  by  a  tenant  in  common,  and  the  cases  uphold* 
ing  it  seem  opposed  both  to  principle,  and  to  the  weight  of  authority: 
:8ee,  however,  as  adopting  this  doctrine,  Cecil  ▼.  Clark,  47  W.  Ya. 
-402,  35  S.  E.  11;  Williamson  ▼.  Jones,  48  W.  Ya.  562,  64  Am.  St.  Bep. 
.891,  27  8.  E.  411.    See,  also,  Murray  v.  Haverty,  70  HL  318,  dis- 
tinguished in  McCord  v.  Oakland  Quicksilver  Min.  Co.,  64  CaL  134,  40 
Am.  Bep.  696,  27  Pac  868. 

c.    Bight  of  Other  Ck>tenant8  to  Enjoin. 
1.    C^eneral  Bnle.— By  the  better  rule,  therefore,  and  that  supported 
t>y  the  apparent  weight  of  authority,  so  long  as  there  is  no  exelnsioa 


870  American  State  Reports^  Vol.  91.  [Wi 

of  his  cotenants  by  the  tenant  in  possession  and  operating  the 
he  cannot  be  enjoined  from  operating  it,  or  held  liable  as  for 
His  associates  are  free  at  any  time  to  enter  and  participate  is 
mine  with  him,  and  their  failure  to  do  so  should  not  proTent 
from  employing  the  property,  or  render  him  liable  as  for  wastes  If 
he  does  employ  it:  MeCord  v.  Oakland  Quieksilyer  Kin.  Co.,  64  CaL 
134,  49  Am.  Bep.  686,  27  Pac.  863,  distinguishing  Doogall  ▼.  Foster,  4 
Qrant  N.  C.  319.    Compare  Goodenbough  ▼.  Farquhar,  19  Grant,  614. 

2.  Under  Montana  Statnte.— In  Montana,  this  rule  was  ehugei 
by  a  provision  of  the  Code  of  Civil  Procedure  of  1895,  which,  until 
itii  amendment  in  1899,  provided  that  ''if  any  person  shall  aaraat 
and  exercise  exclusive  ownership  over  or  take  away,  destroy,  lesMS 
in  value,  or  otherwise  injure  or  abuse  any  property  held  in  joint 
tenancy  or  tenancy  in  common,  the  party  aggrieved  shall  have  Uf 
action  for  the  injury  in  the  same  manner  as  he  would  have  if  neh 
joint  tenancy  or  tenaney  in  common  did  not  exist."  Under  tliit 
it  was  held  that  one  tenant  in  common  could  enjoin  his  cotenaot  from 
operating  the  mine.  This  was  not  on  the  ground  that  such  operttios 
was  waste,  but  on  the  ground  that  the  removal  of  ore  was  wftiiiB 
the  express  inhibition  of  the  statute:  See  Anaconda  Copper  Ifin.  Co. 
y.  Butte  etc.  Min.  Co.,  17  Mont.  619,  43  Pac.  924;  Bed  MountaJo  Con- 
solidated Min.  Co.  V.  Esler,  18  Mont.  174, 44  Pac  23;  Connole  v.  Boston 
etc.  Min.  Co.,  20  Mont.  523,  92  Pac  263;  Harrigan  v.  Lynch,  21  Mont 
36,  52  Pac.  642.  Compare  Murray  v.  Haverty,  70  Dl.  318,  an  distin* 
giUshed  in  McCord  v.  Oakland  QuicksUver  Min.  Co.,  64  CaL  134, 49  Am. 
Bep.  686,  27  Pac  683.  That  the  operations  increased  the  value  of  tli* 
claim  was  immaterial:  Harrigan  v.  Lynch,  21  Mont.  86,  52  Pac  641 
Nor  was  the  removal  of  ore  alone  prohibited.  One  eotenant  eonld, 
it  was  held,  prevent  another  from  erecting  a  tramway  over  the 
conunon  property:  Connole  v.  Boston  etc  Min.  Co.,  20  Hont  5^ 
62  Pac  263;  although  the  statute  did  not  permit  one  owner  to  pre- 
vent his  eotenant  from  performing  the  annual  labor  necenaaiy  t» 
hold  the  claim:  Harrigan  v.  Lynch,  21  Mont.  86,  52  Pac  642;  Botte 
ft  Boston  Con.  Min.  Co.  v.  Montana  Ore  Purchasing  Co.,  24  Mont 
125,  60  Pac  1039.  The  policy  of  this  law  proved  disastronn,  pre- 
venting, as  it  did,  the  operation  of  any  mine  except  with  the  eon- 
sent  of  all  cotenants.  Accordingly,  it  was  amended  in  1899  to  per- 
mit one  eotenant  to  mine  the  common  property,  if  he  denired,  in  a 
miner-like  manner,  the  statute  protecting  the  rights  of  his  anaodatef 
by  rendering  the  operator  alone  liable  for  expenses,  incapable  of 
fastening  a  lien  on  his  eotenant 's  interest,  while  it  gave  to  the» 
tho  right  to  «lemand  an  account  or  to  take  their  share  of  the  ore 
mined.  For  a  considerfition  of  the  statute  as  amended,  see  Butte  a 
Boston  Min.  Co.  v.  Mdutana  Ore  Purchasing  Co.,  24  Mont  125,  ^ 
Pac  1039.  On  a  rehearing  of  this  case  (25  Mont.  41,  63  Pm.  825)^ 
the  amendment  was  held  unconstitutional  and  void  as  to  cotfiaMBae^ 
created  prior  to  its  passage 


Jan.  *02]    Cedab  Canton  Con.  Min.  Co.  t;.  Tabwood.       871 

9;.      XJae  of  Ctommon  Workings  to  Operate  Adjacent  Bfines  not  Held 
in  OonmunL— In  People  v.  District  Court,  27  Colo.  465,  62  Pac.  206,  it 
is  beld  that  a  tenant  in  common  of  a  mine  cannot  employ  a  tunnel,  ruik 
"by  flkll  'tie  cotenantfl  for  the  purpose  of  working  the  common  property,. 
for   Ixis  individual  benefit  by  using  it  as  a  means  of  working  adjoin- 
ing^  property  in  which  his  cotenants  have  no  interest.    It  appearing 
tliat   Ixe  had    excluded    the    latter    from    the    tunnel,    an    injunction 
'WAS    Ixeld  proper  to  compel  him  to  admit  his  co-owners  to  the  pos- 
session, and  use  of  the  tunnel,  and  to  prohibit  him  from  employing 
it   £or   his  individual  benefit.    Under  similar  circumstances  in  Clegg 
V.    Clegg,  3  Giff.  322,  31  L.  J.  Ch.  153,  where  it  appeared  that  the 
onvner  of  the  surface  was  renting  to  the  owners  of  neighboring  coal 
lands    a  tunnel  built  by  himself  and  others  to  work  minerals  held 
in  common,  he  was  held  liable  to  account  to  his  cotenants  for  such 
Tents.    While  an  injunction  was  prayed  for,  none  seems  to  have  been 


V.    Accounts  Between. 

a.     Bight  to  Oompel  Account  from  Ootenant  in  Possession  of  tbe  Com- 
mon Property. 

1.  In  QeneraL— So  far,  our  consideration  of  the  right  of  one  co- 
tenant    to    work    the    mine    himself    has    been    without     reference 
to    any  liability  on   his  part  to   account   to   the  nonoperating  co- 
tenants  for  the  profits  received.    No  tenant  in  common  may,  as  we 
"have  seen,  exclude  his  cotenants  from  their  right  to  participate  in 
the  employment  of  the  mine^  and  if  they  are  so  excluded,  they  may 
retrain  possession  in  an  appropriate  proceeding.    On  the  other  hand, 
by  the  better  rule  the  inaction  of  his  associates  cannot  deprive  one 
eotenant  of  his  right  to  employ  the  mine  profitably,  and  in  the  ab- 
sence of  a  statute  to  the  contrary,  he  may  enter  and  mine  alone  if 
the  others  do  not  see  fit  to  join  him.    There  remains  to  be  considered, 
however,  the  accountability  of  a  eotenant  so  operating  to  his  co-own- 
ers not  participating  with  him  in  the  working  of  the  mine,  for  such 
profits  as  he  may  realize  therefrom.    With  reference  to  cotenanciea 
generally,  this  is  quite  fully  considered  in  the  monographic  note  to 
Ward  V.  Ward,  52  Am.  St.  Bep.  924,  on  the  liability  of  one  eotenant 
to  another  for  rents  and  profits  received  from,  and  for  expenditures 
made  upon,  their  common  property. 

2.  At  Common  Law.— The  common  law  did  not  recognize  any 
right  in  a  tenant  in  common  out  of  possession  to  compel  his  eotenant 
in  possession  to  account  to  him  for  any  rents  or  profits  of  the  com- 
mon estate  received  by  the  possessor  as  eotenant  merely.  Each  had 
the  equal  right  to  possession,  and  if  one  failed  to  take  advantage  of 
this  right  while  the  other  did,  the  former  could  not,  in  the  absence 
of  an  agreement  that  the  possessor  act  as  his  bailiff  in  the  receipts 
of  rents  and  profits,  require  him  to  account:  Edsall  v.  Merrill,  37  ^. 
J.  Eq.  114;  Graham  v.  Pierce,  19  Gratt.  28,  100  Am.  Dec.  (558;  mono- 
graphic notes  to  Ward  v.  Ward,  52  Am.  St.  Eep.  924,  and  Early  v. 
Priend|  78  Am.  Dec.  665;  Freeman  on  Cotenancy  and  Partition,  see. 


872  American  State  Beportb,  Vol.  91,  [WasL. 

269.  Where,  faowerer,  the  tenant  in  possession  has  been  eomtitiited 
the  bailiff  of  his  cotenant,  he  is  even  at  the  common  law  boniid  to 
account  to  his  principal  for  all  sums  reeeiyed  by  him  as  baililfy 
this  includes  his  cotenant's  share  of  the  proceeds  of  the  mine: 
y.  Loudon,  25  Conn.  137. 

3.    Under  Statute  of  4  and  5  Anne  and  Similar  Iiegtwlatloii, 

A.  In  OeneraL— This  rule  of  the  common  law  as  to  the  aeeonnta- 
bilitj  of  one  eotenant  to  another  was  changed  in  England  by  the 
Statute  of  4  and  5  Anne,  chapter  16,  by  which  it  was  provided  that 
one  eotenant  might  have  an  action  of  account  against  ''the  other 
as  bailiff,  for  receiving  more  than  comes  to  his  just  share  or  propor- 
tion." In  some  of  the  jurisdictions  in  this  country  statutes  veiy 
similar  to  the  English  statute  have  been  enacted,  while  in  others 
it  has  been  regarded  as  a  part  of  the  common  law,  although  not  in 
all:  See  the  monographic  note  to  Ward  y.  Ward,  52  Am.  St.  Bep. 
924,  925,  and  McCord  v.  Oakland  Quicksilver  Min.  Co.,  64  CaL  134, 
49  Am.  Bep.  686,  27  Pac.  863. 

B.  For  Beceipt  of  Bents,  etc.— Even  where  the  statute  or  others 
of  similar  effect  are  in  force,  the  courts  are  by  no  means  agreed  in 
the  construction  of  it.    Where  the  amount  received  by  the  tenant 
in  possession  is  received  by  him  from  third  persons  as  a  rent  or 
royalty  for  the  use  of  the  premises^  the  statute  undoubtedly  con- 
trols, and  he  is  liable  to  account  to  his  cotenants  for  all  over  his 
share  of  such  rents:  See  monographic  note  to  Ward  v.  Ward,  52  Am. 
St.  Bep.  924,  925,  and  cases  cited  post,  Y,  b,  1.    It  must  appear,  how- 
ever, that  such  moneys  were  received  by  him  as  eotenant.    If  re- 
ceived by  him  as  a  member  of  another  company  claiming  rights  in 
the  mining  ground,  he  cannot  be  held  liable  as  a  eotenant:  Clark  r. 
Jones^  49  Cal.  618;  and  it  must  be  alleged  and  shown  that  the  eo- 
tenant from  whom  an  accounting  is  sought  has  received  more  of  the 
rents  than  is  his  just  share:   Enterprise   Oil  etc  Co.  v.  National 
Transit  Co,,  172  Pa.  St.  421,  51  Am.  St.  Bep.  746,  35  Atl.  687. 

0.  For  Profits  Besulting  from  Operation.— Where  the  profits  n- 
ceived  by  the  tenant  in  possession  of  mining  property  were  received, 
not  as  rents  or  royalties^  but  as  fructus  industriales,  as  the  result 
of  his  own  labor  and  industry  in  operating  the  mine,  the  courts  are 
in  sharp  conflict  as  to  the  applicability  of  the  Statute  of  Anne  aad 
others  of  similar  tenor.  According  to  one  line  of  cases,  the  statute 
applies  only  to  cases  where  he  has  "received"  more  than  comes  to 
his  just  share,  and  not  to  cases  where,  instead  of  "reeeiNong,"  he 
takes.  These  authorities,  therefore,  restrict  the  operation  of  the 
statute  to  cases  where  the  tenant  in  possession  has  received  frooi 
third  persons  more  than  his  share  of  the  rents  of  the  common  prop- 
erty, and  do  not  apply  it  to  cases  where,  by  the  employment  of  his 
own  capital  and  industry,  he  has  profitably  operated  the  mine,  with- 
out excluding  his  cotenants  therefrom.  Under  such  circomstaneei^ 
according  to  this  doctrine,  he  has  received  no  more  than  his  "jsst 
share  or  proportion."    Where   the   risk  is  assumed  and  the 


'02]     Cedab  Canton  Con.  Min.  Co.  t;.  Yarwood.        873 

i,  capital  and  labor  necesBary  are  f nmislied  solely  bj  one  tonaac 
1&1&  common,  to  permit  the  cotenante  who  have  aseamed  no  reiponsibil* 
^^dttfl  nor  famished  any  aid  to  share  in  the  profits  of  his  enterprise, 
-^Mrithout  any  liability  to  contribute  to  possible  lossesy  is  regarded  by 
"Cilia  line  of  cases,  it  seems  rightly,  as  neither  politic  nor  just:  See 
3tf cCord  ▼.  Oakland  Quicksilver  Min.  Co.,  64  GaL  134,  49  Am.  Bep. 
(,  27  Pac  863;  Edsall  v.  Merrill,  37  N.  J.  £q.  114;  Coleman's  Ap- 
il,  62  Pa.  St.  252,  and  cases  cited  in  the  monographic  notes  to  Ward 
-^.  Ward,  52  Am.  St.  Bep.  924,  926,  and  Early  v.  Friend,  78  Am.  Dee. 
^65,  666. 

There  is^  however,  a  very  decided  conflict  among  the  authorities^ 
id  with  reference  to  cotenants  in  mines,  many  eases,  if  not  the 
'eight  of  authority,  support  the  proposition  that  one  tenant  in  com- 
Lon  who  is  in  possession  is  bound  to  account  to  his  cotenants  for  any 
^profits  derived  from  his  operations,  although  he  has  not  excluded 
%is  cotenants  or  otherwise  prevented  them  from  participating  in  the 
'^rorklng  of  the  mine.    According  to  these  cases,  the  Statute  of  Anne 
^nd  similar  statutes  in  rendering  one  tenant  liable  to  account  to  his 
cotenants  "for  receiving  more  than  comes  to  his  just  share  or  propor- 
tion" intended  to  make  him  accountable  for  receiving  more  than 
fais  just  share  of  the  rents  and  profits,  whether  paid  by  a  stranger  or 
4lerived  from  his   own   occupation   and   enjoyment   of   the   property. 
This  is  the  view  taken  in  Early  v.  Friend,  16   Gratt.   21,  78   Am. 
Dec.   649,  in  which,  after  noting  the  conflict  between  the  English 
'Court  of  queen's  bench  in  Eason  v.  Henderson,  12  Ad.  &  E.,  N.  S., 
986,  and  the  court  of  exchequer  chamber  in  Henderson  v.  Eason,  17 
Ad,   ft  E.,  N.  S.,  701,  as  to  the  proper  construction  of  the  Statute 
of  Anne  (see,  also,  Edsall  v.  Merrill,  37  N.  J.  Eq.  114),  Moncure,  J., 
speaking  for  the  court,  says:  ''With  all  deference  to  the  court  of  ex- 
chequer chamber,  I  think  the  construction  they  put  upon  the  word 
'receiving'  is  too  technical  and  narrow,  at  least  for  our  country; 
and  if  it  be  a  just  one  in  England,  it  is  because  of  circumstances  ex- 
isting there  which  do  not  exist  here.    I  do  not  see  the  force  of  the 
distinction  drawn  by  that  court  between  the  words  'receive'  and 
^take'  in  this  connection.    I  think  the  word  'receiving'  in  the  stat* 
Qte  literally  means  a  receiving  of  profits,  as  well  by  use  and  occu- 
pation as  by  renting  out  the  property.    At  all  events,  there  is,  m 
irabstance,  no  difference  between  them,  and  the  former  is  as  much 
within  the  reason  and  meaning  of  the  law  as  the  latter.    If  a  tenant 
in  common  rent  out  the  property,  and  receive  more  than  his  just 
share  of  the  rent,  he  is  accountable  for  the  excess  to  his  cotenants. 
Why  should  he  not  be  alike  accountable  when,  instead  of  renting  out 
ihe  property,  he  solely  occupies  and  uses  it  and  thus  receives  more 
than  his  just  share  of  the  profits!  •  •  •  •  I  think  the  same  principle 
precisely  applies  to  the  two  cases." 

There  may,  perhaps,  be  greater  equity  in  such  a  construction  of 
the  statute  in  applying  it  to  cotenants  of  mines  than  in  cases  ot 
cotenancy  of  other  property,  due  to  the  fact  that  employment  of 


874  American  Statb  Bbports^  Vol.  91.  [Wadu 

mlniog  property,  unlike  that  of  most  other  species  of  resl  property, 
tends  to  exhaust  its  ehief  source  of  value:  Bee  MeCord  ▼.  Oaklaad 
Quicksilver  Min.  Co.,  64  Cal.  134,  147,  148,  49  Am.  Bop.  686,  27  Pa^ 
863.  At  any  rate,  this  view  is  quite  well  supported  by  authority,  a»A 
under  the  Statute  of  Anne  and  others  of  similar  import,  the  teaaat 
operating  a  mine  to  his  profit,  receives  ''more  than  comes  to  his  just 
share  or  proportion,"  and  is  liable  to  account  to  the  nonoperatixig  eo» 
tenants  for  their  proportions  of  such  profits:  See  Paul  t.  Cragnmz,  25 
Nev.  295,  69  Pac  857,  60  Pac.  983;  Abbey  v.  Wheeler,  170  N.  T.  122^ 
62  N.  E.  1074;  Id.,  30  N.  Y.  Supp.  874,  10  Misc.  Bep.  61;  Cosgriff  t. 
Dewey,  21  App.  Div.  129,  47  N.  Y.  Supp.  256;  McCabe  v.  McCabe,  1* 
Hun,  153;  Early  v.  Friend,  16  Gratt  21,  78  Am.  Dee.  648;  Kahm 
V.  Central  Smelting  Co.,  102  U.  S.  641;  Job  v.  Patton,  44  L.  J.  Cfc. 
^*62,  L.  B.  20  Eq.  84,  32  L.  T.  110;  and  as  to  cotenaneies  generally^ 
see  the  monographic  notes  to  Ward  v.  Ward,  52  Am.  St.  Bep.  92^  92%. 
and  to  Early  v.  Friend,  78  Am.  Dec  666,  666. 

The  liability  of  a  tenant  in  common  under  the  Statute  of  Ajib» 
and  those  similar  to  it  is  only  for  what  he  receives  beyond  his  just 
share  or  proportion.  This  does  not  mean,  however,  that  such  a  ten- 
ant may  continue  to  mine  only  until  he  has  exhausted  his  proportiom 
of  the  entire  ore  bed,  nor  that  he  cannot  be  called  to  an  aeeount 
until  his  operations  extend  beyond  a  .portion  to  which  he  mi^ht  be 
entitled  if  the  mine  were  partitioned.  The  extent  or  richneos  of  the 
remaining  ore  body  is  seldom  or  never  capable  of  exact  definition, 
and  under  those  cases  which  hold  a  cotenant  liable  where  he  opemtea 
alone,  his  "just  share  and  proportion '^  of  any  profits  realised  by  him 
is  regarded  as  being  merely  such  proportion  of  the  proceeds^  ma  they 
accrue,  as  his  share  in  the  mine  bears  to  the  shares  held  by  all  th^ 
cotenants:  Bamum  v.  Loudon,  26  Conn.  137.  Compare  Hall  v.  Fisher,. 
20  Barb.  443;  Coleman's  Appeal,  62  Pa.  St.  262,  affirming  Colemaa 
v.  Coleman,  1  Pears.  470;  Cecil  y.  Clark,  47  W.  Ya.  402,  81 
St  Bep.  802,  35  S.  E.  11. 

4.    Where  Other  Cotenants  have  been  Bzdndad.— Where  the 
ant  in  sole  possession  of  the  premises  and  operating  the  mine  aloae 
has  excluded  his  cotenants,  he  is  undoubtedly  liable  to  aeeooBt  to 
them  for  any  profits  he  may  have  realized,  and,  it  seems,  for  tho 
use  and  occupation   of  the  premises,   even  where  he  has   made  bo 
profit  whatever:  Edsall  v.  Merrill,  37  N.  J.  Eq.  114;  Paul  t.  Cragnaz^ 
25  Nev.  295,  59  Pac.  857,  60  Pac.  983.    This  is  a  common-law  liabil- 
ity, although  the  construction  given  the  Statute  of  Anne  in  Early 
v.  Friend,  16  Oratt.  21,  78  Am.  Dec.  649,  seems  to  cover  but  little^ 
if  any,  more  ground.     "This  rule,  at  least,  may  be  laid  down,  that 
whenever  the  nature  of  the  property  is  si^ch  as  not  to  admit  of  its 
use  and  occupation  by  several,  or  wherever  the  property,  though 
capable  of  use  and  occupation  by  several,  is  yet  so  used  and  oc- 
cupied by  one  as  in  effect  to  exclude  the  others,  he  receives  moro 
than  comes  to  his  just  share  or  proportion,  in  the  meaning  of  th» 
statute,  and  is  accountable  to  the  others. '^    See,  as  to  the  liability 


Jaa.  '02]     Cedab  Canyon  Con.  Min.  Co.  v.  Yabwood.        87£^ 

of  it  tenant  in  common  generally  to  aeeonnt  for  rents  and  profits- 
during  the  ezclnrion  oC  hia  eotenant,  the  monographic  note  to  Ward 
▼.  ^Ward,  62  Am.  St.  Eep.  924,  928. 

fi.  Under  PennsylTanla  Statute.-— In  Pennsylvania,  by  a  statute- 
passed  in  1830  (Act  of  Assembly,  April  25,  1850,  sec  24,  Pamphlet 
I^'wSy  673),  an  aceonnt  may  be  had  between  cotenants  of  mines  when- 
ever any  of  the  tenants  removes  any  of  the  ore.  Under  this  act 
BO  qaestions  arise,  as  nnder  the  Statute  of  Anne,  as  to  what  eon- 
Btitiites  a  ''receipt'^  of  more  than  his  "just  share  or  proportion"" 
l>y  one  cotenant  which  entitles  his  co-owners  to  an  accounting.  Any 
tenant  in  common  taking  ore  from  the  common  property  can  be  made- 
to  account:  See  Coleman's  Appeal,  62  Pa.  St.  252;  Coleman  v.  Cole-r 
maoy  1  Pears.  470;  Fulmer's  Appeal,  128  Pa.  St.  24^  15  Am.  St.  Bep. 
M2,  18  Atl.  493;  McGowan  v.  Bailey,  179  Pa.  St.  470,  36  AtL  325^ 
Mereur  v.  State  Line  ete.  By.  Co.,  171  Pa.  St.  12,  82  AtL  1126. 

b.    Basis  of. 

1.     Where  Bents  or  Boyalties  are  Beceiyed.— Where  the  amount 
for  frhich  one  tenant  in  common  is  liable  to  account  to  his  cotenants^ 
is  a  rental  of  the  premises  received  from  a  stranger,  there  is  ordi- 
narily but  little  dificulty  in  determining  what  constitutes  his  just 
ahare  or  proportion:  Early  v.  Friend,  16  Gratt.  21,  78  Am.  Dec  649,. 
Sooy  also,  Cecil  v.  Clark,  49  W.  Ya.  459,  39  S.  £.  202.    In  Mereur  v.. 
8tsite  Line  etc  By.  Co.,  171  Pa.  St.  12,  32  Atl.  1126,  it  was  held,. 
however,  in  a  proceeding  under  the  statute  of  Pennsylvania  of  1850* 
(see  preceding  paragraph),  that  where  one  of  three  tenants  in  com- 
mon of  coal  sells  his  interest  in  the  coal  at  a  certain  royalty  to  a 
company  which  proceeds    to  operate  the  land,  the  royalty  fixed  by 
the  agreement  to  sell  will  not  bind  other  tenants  in  common  who- 
are  not  parties  to  the  agreement.    As  to  them  the  royalty  that  should 
be  paid  is  a  question  to  be  settled,  either  by  agreement  or  by  a 
court  of   equity  under  the   statute   mentioned.    Where   one   of  the^ 
cotenants  of  an  oil  lease  did  not  join  in  an  assignment  of  the  lease 
by  the  others  to  an  operator,  who  was  to  deliver  a  part  of  the  pro* 
duet  to  them,  the  nonjoining  tenant  in  common,  it  was  held,  could^ 
not  in  one  breath  afBlrm  and  repudiate  the  assignment.    If  he  chose 
to  affirm  it,  he  must  take  his  share  with  the  others  upon  a  dis- 
tribution of  the  royalty  after  the  deduction  of  all  proper  charges 
and  expenses;  while  if,  on  the  other  hand,  he  did  not  affirm  it,  he- 
could  claim  no  share  in  the  royalty,  and  must  look  to  the  assignee- 
as  a  cotenant:  Enterprise  Oil  etc.  Co.  v.  National  Transit  Co.,  172 
Pa  St.  421,  51  Am.  St.  Bep.  746,  33  Atl.  687. 

2.    Where  Profits  Besnlt  ftom  Operation. 
A.    When  Valne  of  Mineral  in  Place  is  Proper  Basis.— Where  the 
profits  made  by  the  occupying  tenant  in  common  have  been  made* 
as  a  result  of  his  own  operations,  the  basis  of  account  is  not  so- 
easy  to  determine.    By  the  statute  of  Pennsylvania  of  1850   (sect- 


^76  American  State  Bbpobxs^  Vol.  91.  [Wash. 


-•upra,  y,  a,  5),  the  sum  which  is  to  be  allowed  one  tenant  in 
moa  whose  eotenants  have  removed  part  of  the  mineral  held  in  eon- 
anon  is  such  as  "may  be  justlj  and  equitably  due."    In  the  con- 
struction of  this  statute  the  courts  have  unif onnly  held  that  there  Im 
not  ''justly  and  equitably  due"  to  one  tenant  any  share  of  the  profits 
•earned  by  his  cotenant  at  his  own  risk  and  expense.    ''For  the  thinj^ 
taken  is  mineral  in  place,  as  it  lies  in  a  state  of  nature.    It  is  this 
i>i  which  the  tenant  out  of  possenion  is  deprived,  and  it  la  this  for 
which  he  ought  to  be  compensated":  Fulmer's  Appeal,  128  Pa.  St.  24, 
15  Am.  St.  Bep.  662,  IS  Atl.  493.    Accordingly,  while  each  ease  most 
■rest  upon  its  own  f act%  and  no  uniform  rule  applicable  to  all  cir- 
cumstances can  be  laid  down  (Fulmer's  Appeal,  128  Pa.  St.  24^  Id 
Am.  St.  Bop.  662,  18  AtL  493.    Seey  also,  Glowaer  v.  Joplin  Min.  Co^ 
4  Dill.  469,  note,  Fed.  Gas.  No.  2908a),  the  basis  of  aecoont  in  sneh 
•cases  is  the  value  of  the  mineral  in  place:  Fulmer's  Appeal,  128  Pa. 
St.  24^  15  Am.  St.  Bep.  662^  18  Atl.  493;  McGowaa  v.  BaUey,  179 
Pa.  St.  470,  36  Atl.  325;  Goleman's  Appeal,  62  Pa.  St.  252.     This 
value  is  "the  same  as  the  value  of  the  'ore  leave' — that  is,  what  the 
xight  to  dig  and  take  the  ore  is  worth,"  and  where  the  usual  roy- 
alty  paid  for  such   privilege  is   ascertainable,   it   is   obviously  the 
proper  basis  of  account:  Fulmer's  Appeal,  128  Pa.  St.  2^  15  Am. 
BU   Bep.   662,   18   AtL  493;   Schroiber  v.   National   Transit   Co.,  21 
Pa.  Co.  Ct.  Bep.  657.    Where^  however,  the  amount  of  royalty  ordi- 
narily paid  under  the  same  or  similar  circumstances  cannot  be  as- 
•certained,   or  where   the  mining  is  attended  with  no  risk,  and  rs- 
-qniree  no  skill,  the  value  of  the  mineral  in  place  can  perhaps  beet 
be  obtained  by  deducting  from  its  value  at  the  pit's  mouth  the  cost 
-of  its  severance  and  handling,  and  such  is  the  method  adopted  ia 
these  cases:  McGowan  v.  Bailey,  179  Pa.  St.  470,  36  AtL  325;  Cole- 
man's Appeal,  62  Pa.  St  252,  distinguished  in  Fulmer's  Appeal,  128 
Pa.  St.  24,  15  Am.  St.  Bep.  662,  18  Atl.  493.    This  basis  of  aeeonat, 
the  value  of  the  mineral  in  place,  has  also  been  adopted  in  some 
jurisdictions  other  than  Pennsylvania,  where  the  operations  of  the 
tenant  in  possession  were  conducted  under  peculiar  circumstances,  as 
where  he  had  worked        the  mine,  believing  in  good  faith  that  he 
bad  acquired  the  interest  of  his  cotenant:  Keys  v.  Pittsburgh  etc.  Coal 
"Co.,  58  Ohio  St.  246,  65  Am.  St.  Bep.  754,  60  N.  E.  911;  or  where 
the  nonoperating  cotenant  had  for  years  paid  no  attention  to  the 
land  and  the  party  called  upon  to  account  had  developed,  if  not 
Hliscovered,  the  mineral  on  the  land,  and  at  the  time  of  the  re^ 
poarance   of  the  absent  cotenant   each   claimed   to   own   the   whole 
-of  the  land:  Clowser  v.  Joplin  Min.  Co.,  4  DilL  469,  notey  Fed.  Caa 
2^0,  2908a. 

B.  'When  Actual  Profits  are  Proper  Basis.— The  method  of  ac- 
<ounting  just  considered  is  undoubtedly  the  most  equitable.  What- 
ever injury  is  done  to  the  nonoperating  tenant's  share  in  the  min- 
ing property  is  fully  compensated  by  allowing  him  his  share  of 
the  value  of  the  ore  taken,  situated  as  it  was  at  the  time  of  tfce 


Jan.  '02]     Cedar  Canyon  Con.  Min.  Co.  v.  Tabwood.        877 

taking.  To  allow  more  is  to  award  a  person  who  has  taken  no  riaki. 
performed  no  labor,  and  expended  no  money,  a  share  in  the  profit* 
of  one  who,  at  his  own  risk  and  expense,  and  bj  his  own  diligence,. 
hmm  siieceeded  in  making  a  profit  hy  taking  his  share  of  the  com- 
mon property  in  the  only  possible  way.  'Where,  however,  the  Statute- 
of  Anne  or  statutory  proyisions  of  similar  import  are  in  force,  and 
are  construed  to  cover  the  ease  in  which  one  tenant  in  common  by 
biB  own  unaided  operations  has  made  a  profit  from  the  common 
property  (see  supra,  Y,  %  3,  c),  the  profits  actually  made  are  re^ 
garded  as  the  proper  basis  for  an  accounting  under  the  statute  be- 
tween  cotenants  of  mines.  ''A  tenant  of  such  property  necessarily 
ns^a  a  part  of  the  subject  itself,  and  may  by  such  uses  render  the* 
residue  of  the  subject  of  little  or  no  value.  It  may  be  discovered 
by  explorations  and  operations  that  the  property  is  of  great  value,. 
or  the  contrary.  To  rent  it  for  a  certain  sum  is  to  make  a  bargain 
of  speculation  and  hazard,  which  is  always  objectionable  in  such 
eases,  as  it  is  alm.ost  sure  to  operate  unequally  on  the  parties":  New- 
man T.  Newman,  27  Gratt.  71^ 

Aeeordingly,  unless  the  property  is  of  such  a  character  that  its 
annual  rental  value  may  be  accurately  ascertained  (as  in  the  case- 
of  salt  wells:  See  Early  v.  Friend,  16  Gratt.  21,  78  Am.  Dec.  649),. 
the  best  mode  of  settling  such  an  account  is,  according  to  the  authori- 
ties, to  ascertain  the  actual  profits  earned  by  the  operating  tenant,. 
and  to  distribute  them  among  the  several  cotenants  according  to 
their  respective  shares:  Buffner  v.  Lewis,  7  Leigh  (Va.),  720,  80 
Am.  Dec.  513;  Newman  v.  Newman,  27  Gratt.  714;  Graham  v. 
Fierce,  19  Gratt.  28,  100  Am.  Dec  658;  Job  v.  Fatten,  44  L.  J.  Ch. 
262,  L.  B.  20  £q.  84,  32  L.  T.  110.  This,  it  is  held  in  the  case  last 
cited,  is,  in  the  case  of  a  coal  mine,  the  value  of  the  coal  at  the 
pit's  mouth,  less  the  cost  of  getting  and  raising. 

e.    Items  in. 

1.  Operating  Expenses,  etc — The  nonoperating  tenant  in  common 
seeking  to  compel  his  cotenant  to  account  is  entitled  to  such  profits 
only  as  remain  after  deducting  all  proper  charges  and  expenditures* 
The  cotenant  called  upon  to  account  is  entitled  to  deduct  all  proper 
operating  expenses:  Faul  v.  Cragnaz,  25  Nev.  295,  59  Pac.  857,  60" 
Pac.  983;  Job  v.  Fatten,  44  L.  J.  Ch.  262,  L.  R.  20  Eq.  84,  32  L.  T. 
110;  and  to  a  reimbursement  of  all  above  his  share  of  the  expenditures^ 
necessarily  incurred  in  protecting  the  common  possession,  and  in 
buying  in  an  outstanding  title,  paramount  to  that  of  the  cotenants 
or  such  as  a  prudent  man  would  deem  it  proper  to  purchase  to 
avoid  expensive  and  dangerous  litigation:  McCord  v.  Oakland  Quick- 
silver Hin.  Co.,  64  Cal.  134,  49  Am.  Bep.  686,  27  Fac.  863.  In  Foster  v. 
Weaver,  118  Fa.  St.  42,  4  Am.  St.  Bep.  573,  12  Atl.  313,  it  appeared 
that  a  tenant  in  common  of  an  oil  lease,  whose  interest  had  been  fraud- 
ulently secured  at  an  undervalue  by  his  cotenant,  but  who,  on  dis- 
covery of  the  fraud,  demanded  a  reconveyance  of  his  interest,  was 


478  American  State  Bbports,  Vol.  91.  [Wash. 

•entitled  to  bis  share  of  the  product  of  the  lease  during  his  feasds- 
lent  exclusion,  without  any  reimbursement  of  hia  eotenant  for  the 
^expense  of  mining  or  producing  it,  the  court  not  regarding  it  as  "the 
))olic7  of  the  law  to  make  the  way  of  the  transgressor  easy  and  se- 

•cure." 

2.  Services  of  Operating  Cotenant.—In  the  computation  of  ex- 
penses the  operating  tenant  is   entitled  to  reimbursement  for  the 
fair  value  of  his  expenses.    In  the  language  of  Van  Fleet,  Y.  G, 
in  Edsall  v.  Merril,  37  N.  J.  Eq.  114:  "Where  two  of  the  tenants 
in  common  have  provided  all  the  capital  of  the  venture,  done  all  the 
work  and  furnished  all  the  skill,  it  would  be  neither  aeeurate  nor 
just  in  ascertaining  what  sum  represented  the  profits,  in  order  that 
«  just  division  of  them  might  be  made  among  all  the  tenants,  to 
leave  out  of  the  computation  the  value  of  the  labor  and  serricea 
of  those  who   incurred    all   the   risk.  .  •  •  •  The   tenant   who   keeps 
-aloof  and  free  from  risk  until  the  hazards  have  all  been  mn  and 
the  dangers  are  all  past  and  then  comes  forward  seeking  to  shsra 
in  the  profits  of  a  venture  he  had  not  the  courage  to  join,  and  ts 
the  success  of  which  he  has  contributed  nothing,  certainly  is  not 
an  a  position  to  demand  that  the  court,  in  ascertaining  what  ths 
profits  are,  shall  be  cautious  almost  to  niggardliness  toward  thosi 
Tvhose  capacity  and  enterprise  have  made  the  venture  a  success." 
To  the  same  effect,  see  Newman  v.  Newman,  27  Gratt.   714;  and 
compare  Buffner  v.  Lewis,  7  Leigh    (Ya.),  720,   30  Am.   Dec  511 
One  tenant  cannot,  however,  be  allowed  compensation  for  his  tisu 
and  trouble  in  selling  the  ore  when  it  was  s  gainst  the  interest  of  tha 
other  owners  that  any  be  sold:  Coleman  v.  Coleman,  2  Pears.  (Pa.) 
511;  nor,  although  he  may  be  entitled  to  an  allowance  for  his  servicei 
in  the  settlement  of  an  account,  caui  he  maintain  assumpsit  for  sack 
services  against  his  eotenant  where  there  has  been  no  contract  of 
employment  between  them:  Thompson  v.  Newton  (Pa.).  7  AtL  6^ 
aihrming  2  Pa.  Co.  Ct.  Bep.  362;  Murtland  v.  Callihan,  2  Pa.  Super.  Ct 

4^40. 

3.  When  Interest  Is  Allowable. — Where  there  has  been  any  eon* 
siderable  employment  of  capital  by  the  tenant  in  possession  of,  aiui 
operating  a  mine,  this  is,  likewise,  a  proper  element  in  the  eomputt* 
tion  of  the  net  profits  for  which  he  is  accountable,  and  ho  is  eatitlad 
to  interest  upon  the  sum  invested:  Newman  v.  Newman,  27  Gritt 
741.  So  it  was  held  in  CecU  v.  Qark,  49  W.  Ya.  459,  39  a  E.  2C2, 
that  where  the  tenant  in  possession  of  the  mine  purchases  "froat 
lands"  in  his  own  name,  and  not  as  common  property,  if  such  lasdf 
were  necessary  to  secure  a  right  of  way  for  the  removal  of  tba 
product  of  the  mine,  the  expenditure  thus  made  should  be  treated  ii 
an  expense  incurred  in  providing  neceesary  conveniences  in  getting 
out  such  products,  and  legal  interest  on  the  amount  of  the  investment 
was  allowed.  Where  both  cotenants  delay  an  accounting,  interest  oi 
the  sum  found  due  is  properly  allowable  only  after  the  balance  ii 
struck:  Qrubb's  Appeal,  66  Pa.  St.  117.    See^  also,  as  to  the  allot- 


Fan.  '02]     Cedar  Canyon  Con.  Min.  Co.  v.  Yabwood.        879 

^Ace  ot  interest  on  the  share  of  the  tenant  out  of  possession  in  the 
rents  and  profits^  Huff  v.  McDonald,  22  Ga.  131,  68  Am.  Dec.  487; 
Barly  v.  Friend,  16  Gratt.  21,  78  Am.  Dec.  649. 

4.     Improvements. — The  question  when  the  value  of  improvements 
'will   be   allowed  one  cotenant  in  accounting  between     himself    and 
asaociates  is  considered  in  the  monographic  note  to  Ward  v.  Ward, 
52    Am.   St.  Bep.  924,  935-941.    One  cotenant  of  a  mine  cannot,  of 
course,  bind  another  for  improvements  made  by  himself  and  without 
autbority  from  such  other:  Bico  Beduction  etc.  Co.  v.  Musgrave,  14 
<?olo.  79,  23  Pae.  458;  nor  does  an  action  for  contribution  for  such  im- 
provements lie  against  a  cotenant  in  the  absence  of  an  agreement 
that   be   contribute:  Neuman  v.  Dreifurst,  9  Colo.  228,  11  Pac  98. 
"Where,  however,  a  court  of  equity  in  the  settlements  of  accounts 
between  such  cotenants  or  in  the  partition  of  the  common  property 
iixidB  that  improvements  have  been  made  upon  such  property  by  one 
of  the  parties,  it  may  adjust  the  rights  of  the  parties,  and,  where 
equitable  and  proper,  will  allow  the  one  making  the  improvements 
contribution  from  the  others  for  the  amount  thus  expended:  Newman 
V.  Dreifurst,  9  Colo.  228,  11  Pac.  98  j  Buffner  v.  Lewis,  7  Leigh  (Va.), 
720,  30  Am.  Dec.  513;  Williamson  v.  Jones,  43  W.  Ya.  562,  64  Am.  St. 
Bep.  891,  27  B.  E.  411.    The  mere  fact  that  the  operations  have  in- 
creased the  value  of  the  premises  instead  of  diminishing  them  cannot, 
however,  relieve  the  operating  cotenant  from  his  liability  to  account; 
Oosgriff  V.  Dewey,  21  App.  Div.  129,  47  N.  Y.  Supp.  255.    Compare 
Harringan  v.  Lynch,  21  Mont.  36,  52  Pac.  642.     See,  as  to  the  liability 
of  a  cotenant  to  contribute  his  proportion  of  the  cost  of  the  assess- 
ment work,  Holbrooke  v.  Harrington    (Cal.),  36  Pae.  365;  and  for 
the  remedies  of  his  co-owners  where  he  fails  to  so  contribute,  see  the 
monographic  note  to  McKay  v.  McDougall,  87  Am.  St.  Bep.  403;  11,  e. 
d.    Liens. — A  cotenant,  as  such,  has  no  Hen  upon  the  common  prop- 
erty or  the  profits  derived  from  it,  for  the  amount  of  his  expenditures, 
or  for  the  balance  found  due  him  on  the  settlement  of  the  co-owner- 
ship accounts:  Sawyer,  J.,  in  Duryea  v.  Burt,  28  Cal.  569;  Brunswick 
V.  Winter,  3  N.  Mex.  386,  6  Pac.  706.    Compare,  also,  First  Nat.  Bank 
V.  6.  V.  B.  Min.  Co.,  89  Fed.  449.    Nor  does  a  contract  by  which  the 
management  of  the  mine  is  given  to  one  part  owner,  he  to  reimburse 
himself  from  the  proceeds,  create  a  lien  for  such  allowances  on  the 
property,  and  where  there  is  no  guaranty  of  the  sufficiency  of  the 
proceeds,  and  the  personal  liability  of  the  co-owners  is  expressly  ex- 
cluded, the  only  remedy  of  the  operating  cotenants  is  to  reimburse 
himself  by  working  the  mine:  Frowenfeld  v.  Hastings,  134  Cal.  128, 
6€  Pac.  178.    One  cotenant  cannot,  without  authority  from  his  co- 
cvner,  charge  the  interest  of  the  latter  with  a  miner's  or  mechanic's 
lien  for  improvements  on  the  common  property:  Bico  Beduction  etc 
Co.  V.  Musgrave,  14  Colo.  79,  23  Pac.  458. 

e.  Joinder  of  Parties  and  Actions  in  Suit  for  Accounting.— By  the 
statute  of  Pennsylvania  of  1850,  providing  for  an  account  between 
cotenants  of  mines  whenever  there  has  been  a  removal  of  ore  by 
less  than  the  whole  number  of  cotenants,  all  the  cotenants  are  to  h% 


880  Ameuican  State  Reports,  Vol.  91.  [WTaslu 

made  parties.  It  was  held,  liowever,  in  Winton  Coal  Co.  t.  Paneoctft 
Coal  Co.,  170  Pa.  St.  437,  33  AtL  110,  that  this  does  not  applj  to> 
an  action  in  assumpsit  bj  one  cotenant  against  another  who  haa 
mined  and  sold  coal  from  the  common  property,  and  that  in  aocb  air 
action  the  other  cotenants  need  not  be  made  parties.  The  right  or 
each  cotenant  to  an  account  of  his  share  is  a  several  one,  and  one 
cannot,  therefore,  sue  in  one  proceeding  for  an  accounting  to  him- 
self in  his  personal  capacity  as  a  cotenant,  and  as  an  administrator 
of  the  estate  of  a  deceased  cotenant:  Hall  v.  Fisher,  20  Barb.  443. 

Nor  is  a  mortgagee  of  an  undivided  interest,  who  has  f  oreeloaed,  bat 
not  taken  possession,  a  proper  party  plaintiff  in  a  suit  for  an  aeeonnt- 
ing  between  cotenants:  Barnum  v.  Loudon,  25  Conn.  137.  Where  one 
tenant  withdraws  from  a  mining  partnership,  he  may  maintain  an 
action  for  his  share  of  the  proceeds  from  the  manager,  who  continuea 
in  the  employment  of  the  other  cotenants,  without  making  the  latter 
parties  to  the  action:  Slater  v.  Hass,  15  Colo.  574,  22  Am.  St.  Bep.  440, 
25  Pac  1089. 

An  action  of  account  is  not  the  same  as  an  action  for  waste:  Cecil 
v.  Clark,  47  W.  Ya.  402,  81  Am.  St.  Bep.  802,  85  S.  £.  11.  Nor  will 
an  account  be  decreed  between  cotenants  in  an  action  bronght  te 
recover  damages  for  waste  by  one  of  their  number:  McCord  ▼•  Oak- 
land Quicksilver  Min.  Co.,  64  Cal.  134,  49  Am.  Bep.  686,  27  Pac  863. 
An  action  for  an  account  does  not  sound  in  tort:  See  Abbey  ▼. 
Wheeler,  10  Misc.  Bep.  61,  30  N.  Y.  Supp.  874;  and  cannot  bo 
joined  with  an  action  for  damages  for  tortiously  proeoring  the 
issuance  of  an  injunction  whereby  the  plaintiffs  were  prevented  from 
mining:  Hall  v.  Fisher,  20  Barb.  443. 

YL    Liability  of  Other  Cotenants  for  Acts  of  One. 

a.    No  Agency  Implied.— The  mere  relation  of  cotenancy  between 
part  owners  of  a  mine  gives  rise  to  no  power  on  the  part  of  one 
to  render  his  cotenants  liable  to  himself,  or  to  third  persona  by  any 
expenditures  he  may  make,  or  contracts  he  may  enter  into.     He  can- 
not compel  his  associates  to  co-operate  with  him  in  the  employment  of 
the  common  property,  nor  can  he^  by  a  voluntary  expenditore,  with- 
out authority  from  them,  constitute  himself  their  debtor  or  by  con* 
tracts  with  third  persons  render  them  liable  to  the  latter:  Bico  Bedne- 
tion  etc.  Min.  Co.  v.  Musgrave,  14  Colo.  79,  23  Pac.  458;  Paul  v. 
Cragnaz,  25  Nov.  295,  59  Pac.  857, 60  Pac  983;  Chase  v.  Savage  ICin. 
Co.,  2  Nev.  9;  Brunswick  v.  Winter,  3  N.  Mez.  386,  5  Pac  706;  Butler 
Sav.  Bank  v.  Osborne,  159  Pa.  St.  10,  39  Am.  St.  Bep.  665,  28  Atl.  163; 
Mercur  v.  State  Line  etc.  B.  Co.,  171  Pa.  St.  12,  32  AtL  1126;  Heeter 
V.  Lyon,  5  Pa.  Super.  Ct.  Bep.  260.    Compare  Post  v.  Fleming,  10  N. 
Mez.  476,  62  Pac.  1087 ,  under  local  statutory  provision.    Where,  how- 
ever, the  act  is  of  a  nature  such  that  it  is  manifestly  done  for  tbe 
benefit  of  all,  as  where  a  notice  of  adverse  claim  is  filed  by  one  of 
several  cotenants  on  behalf  of  all,  it  will  be  presumed  that  the  act 
was  authorized  by  them,  or,  at  least,  ratified:  Nesbitt  v.  Delamar's 
Nevada  Gold  Min.  Co.,  24  Nev.  273,  77  Am.  St  Bep.  807,  6B  Plfl.  M^ 


Jan.  '02]     Cedar  Canyon  Con.  Min.  Co.  v.  Yabwood.        881 

53  Pae.  178.    See,  also,  at  to  prenunption  of  assent  by  absontees  to 
location  of  elaim  in  their  name,  snpi^a,  I,  d,  2. 

b.  Conveyance  by  Metes  and  Bounds.— There  has  been  considerable 
discussion  and  no  little  conflict  among  the  authorities  as  to  the  effect 
of  a  conveyance  by  one  cotenant  of  the  whole  or  a  portion  of  the 
common  property  by  metes  and  bounds.  This  question  will  be 
found  considered  in  Freeman  on  Cotenancy  and  Partition,  sections  199« 
207.  Buch  a  conveyance  is,  it  seems,  by  the  weight  of  authority,  valid 
as  against  the  grantor,  and  operates  to  convey  his  interest  in  the 
portion  described,  but  cannot,  in  any  way,  prejudice  the  rights  of  his 
cotenants.  The  grantee  takes  whatever  interest  the  grantor  had  in 
the  portion  conveyed,  and  no  more.  He  cannot  affect  the  right  of 
partition  in  the  cotenants  of  his  grantor,  nor  on  such  partition  has 
he  any  right  to  have  the  portion  mentioned  in  the  conveyance  allotted 
to  himself:  Hartford  etc.  Co.  v.  Miller,  41  Conn.  112;  Paul  ▼.  Crag« 
naz,  25  Nev.  295,  59  Pac.  857,  60  Pac.  983;  Boston  Franklinite  Co.  v. 
Condit,  19  N.  J.  Eq.  394;  Harland  v.  Central  Phosphate  Co.  (Tenn.),  62 
S.  W.  614;  Tipping  v.  Bobbins,  71  Wis.  507,  37  N.  W.  427.  The  same 
mles  are  applicable  where  a  cotenant  in  mining  property  in  granting 
his  interest  seeks  to  sever  surface  and  subsurface  rights  by  reserving 
in  terms  all  the  mineral  in  the  land.  The  same  reasons  which  apply 
where  the  conveyance  is  by  metes  and  bounds,  control  where  the 
attempt  to  parcel  out  to  different  persons  the  interest  of  the  con- 
veying cotenant  to  the  surface  and  to  the  minerals:  Adams  v.  Briggs 
Iron  Co.,  7  Cush.  361;  Boston  Franklinite  Co.  v.  Condit,  19  N.  J.  Eq. 
394. 

e.  Oonyeyance  of  Ootenant's  Interest. — One  cotenant,  as  such,  has 
no  implied  authority  to  dispose  of  his  cotenant 's  interest  in  the  com- 
mon property,  and  any  attempt  on  his  part  to  dispose  of  such  interest 
will  be  void  as  to  his  cotenant:  Waring  v.  Crow,  11  Cal.  366;  Murley 
▼.  Ennis,  2  Colo.  300;  Chase  v.  Savage  Min.  Co.,  2  Nev.  9;  Milton  v. 
Hague,  39  N,  C.  415.  Even  if  he  is  possessed  of  express  authority 
to  convey  the  interest  of  his  co-owner,  unless  his  power  is  mentioned 
in  the  conveyance  which  he  makes,  it  will  be  deemed  to  convey  only 
his  own  interest:  Gillet  v.  Gaffney,  3  Colo.  351  (townsite  location). 
"Where  one  tenant  in  common  does  attempt  to  dispose  of  his  cotenant 's 
interest  without  authority  to  do  so,  the  cotenant  has  two  courses  open 
to  him.  He  may  treat  the  attempted  sale  of  his  interest  as  a  nullity, 
and  if  the  grantee  refuses  to  admit  him  to  possession  of  the  premises, 
may  bring  ejectment  and  recover  such  possession,  or  he  may,  at  his 
election,  ailirm  what  has  been  done,  and  treat  the  money  received 
for  his  interest  as  money  received  to  his  use.  In  the  latter  case 
assumpsit  will  lie  even  in  the  absence  of  an  express  promise:  Murley 
T.  Ennis,  2  Colo.  300.  Compare,  however^  Milton  v.  Hague,  89  N.  C. 
415. 

d.  Leases  and  Licenses.— As  to  the  effect  of  a  lease  or  license 
given  by  one  tenant  in  common  to  a  stranger,  purporting  to  authorize 
Am.  8t  Repw.  Vol.  »1— 56 


882  Ambbican  State  Bbports^  Vol.  91.  [Waeh. 


the  lessee  or  licensee  to  ebnduet  mining  operations  npon  the 
held  in  eo.*umon:  According  to  one  yiew,  sneh  a  license  stands  npoa 
the  same  footing  as  a  conTeyance  hy  one  tenant  in  common  of  a 
portion  of  the  joint  estate  by  metes  and  bounds  (see  sapra,  YI,  b), 
and  confers  no  right  on  the  grantee  (as  against  the  eotenants  of  his 
grantor,  at  least),  to  mine  npon  the  premises  held  in  common:  Tipping 
v^.  Bobbins,  64  Wis.  546,  25  N.  W.  713;  Tipping  v.  Bobbins,  71  Wisl 
507,  37  N.  W.  427.  See,  also,  Swint  v.  MeCalmont  Oil  Co.,  184  Pa. 
St.  202,  63  Am.  St.  Bep.  791,  88  AtL  1021. 

According  to  another,  and  what  on  principle  seems  the  preferable 
view,  a  tenant  in  common  may  by  a  lease  or  license  confer  upon  a 
stranger  such  rights  aa  he  himself  has  and  no  more.  Accordingly,  in 
those  jurisdictions  in  which  mining  by  one  cotenant  alone  is  regarded 
as  waste  or  for  any  other  reason  not  permissible  (see  supra,  IV,  b, 
c),  the  licensee  of  such  a  tenant  takes  no  greater  rights  than  his 
grantor:  Murray  v.  Haverty,  70  111.  318.  Se^  also,  Goodenough  t« 
Parquhar,  19  Grant,  614. 

Where,  however,  the  right  of  one  tenant  in  common  to  conduct 
mining  operations  on  the  common  property  is  recognized,  each  tenant 
may,  according  to  the  view  last  mentioned,  confer  by  license  upon  a 
stranger  such  right  as  he  himself  possesses,  and  the  license  of  any 
one  of  them  without  the  concurrence  of  his  eotenants  is  sufficient  to 
authorize  the  licensee  to  enter  upon  the  common  property  and  mine: 
Ord  V.  Chester,  18  CaL  77;  Paul  v.  Cragnaz,  25  Nev.  295,  59  Pac  S57, 
.  60  Pac.  983;  Williams  v.  Morrison,  28  Fed.  872.  Such  a  lease  is  not, 
properly  speaking,  a  lease  of  the  whole  estate,  nor  of  the  whole  of  a 
distinct  portion  by  metes  and  bounds;  but  is  a  lease  of  an  undivided 
interest:  Paul  v.  Cragnaz,  25  Nev.  295,  59  Pac  857,  60  Pac.  983;  and 
while  the  lessee  is  liable  to  the  same  extent  as  his  grantor  would  have 
been  if  he  misuse  the  property  or  is  guilty  of  a  conversion  (Omaha  etc 
Smelting  etc.  Co.  ▼.  Tabor,  13  Colo.  41,  16  Am.  St.  Bep.  185,  21  Pac 
925),  he  is  not  a  trespasser  on  the  premises,  and  neither  his  grantor 
nor  the  eotenants  of  the  latter  can  hold  him  liable  as  such:  Ord  v. 
Chester,  18  CaL  77.  Where  the  lessee  is  excluded  from  possession  by 
the  eotenants  of  his  grantor,  he  is  not  con£ned  to  an  action  against 
them  for  an  accounting,  but  may  sue  them  for  damages^  based  upon 
the  loss  of  profits  he  would  have  made  but  for  the  ouster  by  them: 
Paul  V.  Cragnaz,  25  Nev.  295,  59  Pac.  857,  60  Pac  983.  Where  there 
has  been  no  such  exclusion,  the  lessor  may,  undoubtedly,  recover  from 
the  lessee  for  a  breach  of  the  contract  of  lease^  without  reference  to 
the  validity  of  such  lease  as  against  the  co-owners  of  the  grantor: 
Colorado  Iron  etc  Co.  v.  Pryor,  25  Colo.  540,  57  Pac  51.  Where  the 
privilege  granted  is  not  contained  in  a  lease,  but  is  a  more  license 
(see  as  to  what  determines  this,  Paul  v.  Cragnaz,  25  Nev.  295,  69  Pac 
657,  60  Pac.  983),  it  is  terminable  on  notice:  Williams  y.  MorriaoB, 
28  Fed.  872. 

a»    Adminions  by,  Fraud  of,  and  Service  of  Process  on.  One  Co- 
tenant. — The  admissions  or  representations  of  one  tenant  in  eommoa 


Jan.  '02]    Cedab  Canyon  Con.  Min.  Co.  v.  Yaewood.        883 

do  not  tind  his  eotenant:  Dexter  Lime  Bock  Go.  v.  Dexter,  6  R.  7. 
353.  See^  also,  Freem&n^on  Cotenancy  and  Partition,  sec.  169.  In 
Grabb  ▼•  Gmbb,  74  Pa.  St.  25,  it  appeared  that  in  a  deed  from  A  to 
B,  A  had  recited  that  he  held  as  a  eotenant  with  0.  In  a  suit  for 
partition,  bj  the  heirs  of  C  against  B,  it  was  held  that  the  recital 
was  evidence  of  their  title.  This  is  not,  however,  a  case  in  which  the 
admission  of  one  eotenant  was  held  to  bind  another,  but  in  which  ai) 
admission  by  one  from  whom  the  defendant  derived  title.  Service  of 
process  on  one  tenant  in  common  is  not  binding;  on  his  cotenants  who 
were  not  served  and  did  not  appear,  and  a  judicial  sale  of  their  in- 
terests under  a  judgment  recovered  in  such  action  is  void,  the  pur- 
chaser taking  no  title  as  against  them:  Wiseman  v.  McNulty,  25  CaL 
230.  Nor  is  the  relation  of  cotenancy  such  that  one  tenant  in  com- 
mon of  a  mine  is  affected  by  the  fraud  of  his  eotenant.  In  Fisher  v. 
Seymour  (Colo.),  49  Pae.  SO,  it  appeared  that  a  patent  was  obtained 
by  one  for  several  cotenants  by  one  of  their  number,  who  was  also  an 
agent  for  a  third  person  owning  a  conflicting  location,  and  who,  in 
thus  applying  for  a  patent,  was  acting  in  fraud  of  his  principal.  It 
-was  held  that  his  interest  in  the  title  acquired  by  the  proceedings  for 
a  patent  was  held  by  him  in  trust  for  his  principal,  but  that  the 
agent's  fraud  could  not  affect  the  title  or  interests  of  his  cotenants. 

vn.    Abandonment  and  Forfeiture. 
The  subject  of  the  abandonment  and  forfeiture  of  mining  claims^ 
Inelnding  the  abandonment  and  forfeiture  of  the  interests  of  eo- 
tenants  in  soeh  claims,  will  be  found  treated  at  length  in  the  mono- 
graphic note  to  McKay  v.  McDougall,  87  Am.  St.  Bep.  403-416. 

VLLL    Actions  BetweeiL 

a.  Assumpsit.— When,   under   the   statute   of   Anne    (see   supra^ 
V,   a,  3,  A),  an    action    of    assumpsit    may    be    employed    rather 

-  than  the  old  action  of  account  render,  is  a  question  upon  which 
the  authorities  are  not  in  harmony:  See  Freeman  on  Coten- 
ancy and  Partition,  280-286;  some  regarding  an  express  promise 
to  pay  rent  or  to  account  as  essential  to  the  maintenance  of  an  action 
of  assumpsit:  Enterprise  Oil  etc  Co.  v.  National  Transit  Co.,  172  Pa. 
8t.  421,  61  Am.  St.  Bep.  746,  33  AtL  687;  Irvine  v.  Hanlin,  10  Serg. 
it  B.  219;  while  others,  giving  to  the  statute  a  more  liberal  construc- 
iioii,  allow  indebitatus  assumpsit  in  cases  where  one  eotenant  has 
taken  more  than  his  share  of  the  products  of  a  mine,  and  convertetl 
them  into  money:  Winton  v.  Pancoast  Coal  Co.,  170  Pa.  St.  437,  33 
AtL  110.  See,  also,  Murley  v.  Ennis,  2  Colo.  300.  So,  where  the 
taking  by  one  tenant  amounts  to  waste  and  there  has  been  a  sale  by 
him  of  the  ore  taken,  his  eotenant  may  waive  the  tort  and  sue  for  his 
share  as  for  money  had  and  received:  Cecil  ▼•  Clark,  49  W.  Va.  459^ 
39  a  £.  202« 

b.  For  Onstsr  by  One. — Where  one  eotenant  has  ousted  another, 
the  appropriate  remedy  is  ejectment  (see  the  monographic  note  to 


884  American  State  Reports^  Vol.  91.  [Wash. 

MarshaU  ▼.  Palmer,  50  Am.  St.  Bep.  839-843),  and  not  bj  a  bin  u 
equity.    And  a  statute  seeking  to  substitute  the  equitable  proeedort 
for  the  legal,  in  actions  between  cotenants,  to  recover  possession,  is, 
where  legal  rights  onlj  are  involved,  held  to  conflict  with  a  consdtn- 
tional  provision  declaring  inviolate  the  right  of  trial  by  jury,  and  ap- 
plicable, therefore,  only  to  cases  in  which  the  rights  of  the  cob- 
plainants  are  equitable:  North  Pennsylvania  Goal  Co.  ▼.  Snowden,  42 
Pa.  St.  488,  82  Am.  Dec.  530,  and  note  thereto,  p.  536;  Frisbee's 
Appeal,  88  Pa.  St.  144;  PhiUip's  Appeal,  68  Pa.  St.  130.    In  an  actios 
of  ejectment  between  eotenants^  only  the  person  claiming  adversely 
to  the  plaintiff  in  the  interest  on  which  plaintiff's  right  to  possessics 
is  based  need  be  made   defendants.    Other  eotenants   who   are  is 
possession,  but  claim  no  right  to  the  interest  sued  for,  are  not  necei- 
sary  parties:  Waring  ▼.  Crow,  11  OaL  366;  Coleman  y.  dements,  23 
CaL  245.    A  tenant  in  common  may  also  recover  damages  for  ai 
ouster  or  exclusion  by  his  cotenant,  and  where  the  plaintiff  in  claiming 
under  a  lease  from  one  tenant  in  common  was  excluded  for  the 
entire  period  by  the  cotenant  of  the  grantor,  the  measure  of  damages 
are  the  profits  he  would  have  made  during  the  term,  had  he  beea 
let  into  possession:  Paul  v.  Cragnaz,  25  Nev.  295,  59  Pac  857,  60  Pac 
983.    An  action  lies,  it  is  said,  between  eotenants  for  a  misuse,  though 
not  amounting  to  a  destruction  of  the  common  property  by  one  of 
their  number:  Omaha  etc.  Smelting  etc.  Co.  v.  Tabor,  13  Colo.  41,  16 
Am.  St.  Bep.  185,  21  Pac.  925.    Compare,  however,  Hall  v.  Fisher,  20 
Barb.  443,  and  Freeman  on  Cotenancy  and  Partition,  sees.  299-302L 

DL    PartitloiL 

a.  Voliintary.— Cotenants  of  mining  property  may,  undoubtedly, 
effect  a  voluntary  partition  of  the  property  held  in  common.  "The 
right  of  partition  by  the  parties  is  an  incident  of  ownership,  and, 
like  the  right  of  am  owner  in  severalty  to  a  lien,  is  only  limited  bf 
such  restraints  as  the  law  has  put  upon  it  in  regard  to  persoasl 
capacity  and  mode  of  conveyance":  Byers  v.  Byers,  183  Pa.  St.  509, 
<j3  Am.  St.  Bep.  765,  38  Atl.  1027.  Such  a  partition  may  be  oral,  and 
when  executed  by  the  occupation  by  the  former  eotenants  of  the  parts 
allotted  in  severalty  to  each  is,  undoubtedly,  valid:  Byers  v.  Byen^ 
183  Pa.  St.  509,  63  Am.  St.  Bep.  765,  38  AtL  1027;  Four  Hundred  and 
Twenty  Min.  Co.  v.  Bullion  Min.  Co.,  3  Saw.  634,  Fed.  Cas.  No.  4989. 
In  the  Pennsylvania  case  above  cited,  it  is  said  that  while  the  law 
has  been  rested  on  the  ground  of  part  performance,  taking  the  trani- 
action  out  of  the  bar  to  the  statute  of  frauds,  "another  and  equallj 
weighty  reason  might  be  added  from  the  nature  of  tenancy  in  commos- 
As  each  tenant  has  not  only  title,  but  joint  and  several  possession,  of 
the  whole  and  of  every  part,  the  change  to  a  title  in  severalty  in  aaj 
specified  part  is  not  such  a  transfer  of  title  to  land  as  is  within  the 
mischief  contemplated  by  the  statute  of  frauds":  Byers  ▼.  Byen^  1B3 
Pa.  St.  509,  63  Am.  St.  Bep.  765,  38  Atl.  1027. 


Jan.  '02.]    CEDA.B  Canyon  Con.  Min.  Co.  v.  Yarwooo.        885 

The  effect  of  such  a  partition  depends  entirely  npon  the  agreement 
of  the  parties,  and  it  may  be  effected  by  horizontal  divisions  of  tho 
land,  as  well  as  by  vertical  divisions.  The  presumption  is,  however^ 
that  the  partition  was  not  confined  to  the  surface,  but  included  the 
vrbole  estate,  mineral  and  surface:  Byers  v.  Byers,  183  Pa.  St.  509, 
63  Am.  St.  Rep.  765,  38  Atl.  1027.  Where,  however,  the  parties  were 
not  cotenants,  but  have  mere  equitable  rights  in  the  title  of  another 
person  (as  where  one  located  and  patented  a  mining  claim  under  an 
agreement  making  him  a  trustee  of  such  title  for  the  benefit  of  the 
occupants  of  the  claim),  an  agreement  for  the  partition  of  the  sur- 
face in  a  certain  way  between  them  cannot  affect  the  rights  of 
innocent  purchasers  of  an  undivided  interest  in  the  claim:  MuUins 
V.  Butte  Hardware  Co.,  25  Mont.  ^25,  87  Am.  St.  Bep.  430,  65  Pac. 
1004.  In  Lenfers  v.  Henke,  73  111.  405,  24  Am.  Bep.  263,  it  was  held 
that  where  a  widow  seised  of  a  one-third  interest  in  mineral  land 
makes  an  agreement  with  the  heir  seised  of  the  other  two-thirds  that 
each  shall  receive  one-half  of  the  rents  or  profits  of  the  mines,  the 
.•  agreement  will  be  regarded  as  a  valid  assignment  of  dower  in  the 
remaining  two-thirds. 

b.    By  Legal  Proceedings. 

1.  In  CkneraL—Partition  by  agreement  of  the  parties  is,  when 
compared  with  the  cases  in  which  the  courts  are  called  upon  to  apply 
the  remedy,  of  infrequent  occurrence,  and  presents  but  few  questions 
of  difficulty.  Where,  however,  the  courts  are  appealed  to,  the  diffi- 
culties ordinarily  surrounding  the  application  of  this  mode  of  relief 
are,  when  the  subject  sought  to  be  partitioned  is  mining  property, 
greatly  increased  by  the  peculiar  nature  of  the  property  itself. 

2.  What  Mining  Interests  are  Partible.— An  interest  in  minin^^ 
property,  such  that  cotenants  of  it  may  have  partition,  mupt  be  more 
than  B,  mere  license  to  dig  in  the  land  of  another.  Such  an  interest 
is  not  only  uncertain  in  its  extent,  but  *  *  its  division  would  create  new 
rights,  and  would  prejudice  the  owner  of  the  soil'':  Hughes  v.  Devlin^ 
23  Cal.  501;  Smith  v.  Cooley,  63  Cal.  46,  2  Pac.  880;  Canfield  v.  Ford, 
Its  How.  Pr.  473,  28  Barb.  336.  Where,  however,  there  is  a  distinct 
right  of  property  in  the  mine  or  minerals,  the  interest,  so  far  as  the 
quantum  of  the  estate  is  concerned,  is  sufficient  to  sustain  a  suit  for 
its  partition:  Canfield  v.  Ford,  16  How.  Pr.  473,  28  Barb.  336. 

Accordingly,  it  is  held  that  the  interest  of  the  locator  of  a  mining 
claim  on  unpatented  land  is  such,  that  where  owned  by  several  in  com- 
mon, it  may  be  the  subject  of  a  suit  for  partition,  although  the  title 
to  the  fee  remains  in  the  government.  ''Although  the  ultimate  title 
in  fee  in  our  public  mineral  lands  is  vested  in  the  United  States,  yet, 
as  between  individuals,  all  transactions  and  all  rights,  interests  and 
efitatcs  in  the  mines  are  treated  as  being  an  estate  in  fee,  and  as  a 
distinct  and  vested  right  of  property  in  the  claimant  or  claimants 
thereof  founded  upon  their  possession  or  appropriation  of  the  land 
containing  the  mine.  They  are  treated,  as  between  themselves,  and 
all  persons  but  the  United  States,  as  the  owners  of  the  land  and  the 


886  Ahbbican  Statb  Bbpobts^  Vol.  9L  [WadL 

tnines  therein;  and,  ai  sneh,  where  the  land  or  the  mine  is  elaliBad 
bj  feveral,  as  joint  tenants,  tenants  in  eommon,  or  as  eopartneEra,  or 
«Ten  as  partners,  saeh  several  interests  or  estates  are  in  the  nmtura 
«f  an  estate  of  inheritance,  and  liable  to  be  partitioned  between  the 
several  claimants,  the  same  as  other  real  property'':  Hughes  t.  De^liB, 
23  Gal.  501.  See,  to  the  same  effect,  Aspen  Min.  etc  Co.  t.  Backer, 
28  Fed.  220,  in  effect  overruling  Strettell  ▼•  Ballon,  3  McCrarj,  46,  9 
Fed.  256. 

3.    Who  may  OompeL— In  order  that  there  be  a  partition  between 
them,  the  parties  must  be  eotenants  of  the  mine.    The  owner  of  the 
soil  cannot,  therefore,  sue  the  owner  of  the  mineral  for  a  partition: 
tSmith  Y.  Coolej,  65  Cal.  46,  2  Pac.  880;  nor  where  a  convejanee  bj 
one  tenant  in  common  of  land  of 'the  right  to  dig  ore  is  deemed  void 
as  against  his  eotenants  (see  supra,  YI,  b,  d)  can  the  grantee  of  saeh  a 
'right  maintain  an  action  for  the  partition  of  the  premises  against  the 
-eotenants  of  his  grantor:  Boston  Franklinite  Co.  ▼.  Condit,  19  N.  J. 
Eq.  394.    Ordinarily,  a  tenant  in  common,  in  order  to  maintain  aa 
SLCtion  for  partition,  must  be  in  possession  of  the  premises,  proceedings ' 
for  partition  not  having  been  designed  as  an  alternative  remedy 
with  the  action  of  ejectment:  Freeman  on  Cotenancy  and  Partition, 
447.    This  may,  however,  be  changed  by  statute,  and  a  statute  mak- 
ing the  right  of  possession  sufficient  to  sustain  partition  proeeedixigs 
in  equity  is  not  in  conflict  with  a  constitutional  provision  prohibitiag 
the  abolition  of  jury  trial  in  actions  at  law,  where  such  statute  was 
existent  at  the  time  of  the  adoption  of  the  constitution:  Cecil  v. 
dark,  44  W.  Va.  659,  30  8.  £.  216. 

4.    Partible  Nature  of  Mines. 

A.  By  Actual  Partltlon.~The  right  of  eotenants  in  property  to  s 
partition  *of  the  same  is  ordinarily  regarded  as  a  matter  of  absolute 
right,  unaffected  by  the  difficulty  and  hardship  of  making  t&e  parti- 
tion in  the  particular  case.  "Partition  in  some  form,  unless  waived 
t)y  an  agreement  between  the  eotenants,  is  something  to  which  each 
lias  an  absolute  and  unconditional  right.  In  invoking  the  aid  of  a 
«ourt  of  competent  jurisdiction  to  enforce  this  right,  he  need  not 
xhow  any  special  cause  for  the  partition.  That  he  is  a  eotenant  and 
no  longer  wishes  to  remain  so,  is  sufficient  to  entitle  him  to  relief. 
If  the  situation  and  character  of  the  property  are  such  that  the  conrt 
will  not  order  it  to  be  divided,  then  it  must  be  sold.  For  partitios, 
either  by  division  of  the  property  or  by  its  sale  and  a  division  of  th« 
proceeds,  is  a  matter  of  absolute  right,  against  which  no  considerations 
of  hardship  inconvenience,  or  loss  on  the  part  of  the  other  eotenaatf 
can  prevail":  Freeman  on  Cotenancy  and  Partition,  433.  See,  aliOi 
Dall  V.  Confidence  Silver  Min.  Co.,  3  Nev.  531,  93  Am.  Dee.  419. 

This  right  may,  of  course,  be  waived  by  agreement  among  all  the 
eotenants:  Coleman's  Appeal,  62  Pa.  St.  252;  Coleman  ▼.  Colemss, 
19  Pa.  8t.  100,  57  Am.  Dec.  641.    Where,  however,  it  is  not  waived, 


Jan.  '02.]    Cedab  Canyoiv  Con.  Min.  Co.  v.  Yabwood.        887 

tbe  difficulties  in  the  waj  of  partition  of  mining  property  hj  actnal 
<liTi8ion  of  the  premises,  with  justice  to  all  the  cotenants,  are  such  that 
partition  in  this  manner  is  practically  impossible,  and  the  cases  are 
full  of  expressions  recognizinip  this  fact.  '' Mining  property,  from 
its  very  nature,  is  not,  as  a  rule,  susceptiblo  of  partition.  The  ores 
are  unevenly  distributed,  while  the  values  are  purely  conjectural 
until  tested  by  extended  development  and  careful  tests,  which  can 
only  be  obtained  as  the  result  of  a  vast  expenditure  of  money  and 
time":  Brown  v.  Challis,  23  Colo.  145,  46  Pac.  679.  To  the  same  effect, 
see  Lenfers  v.  Henke,  73  111.  405,  24  Am.  Bep.  263;  Adams  v.  Briggs 
Iron  Co.,  7  Gush.  361;  Kemble  v.  Kemble,  44  N.  J.  Eq.  454,  11  Atl. 
733;  Paul  v.  Cragnaz,  25  Nev.  295,  59  Pac  857,  60  Pac.  983;  Coleman 
V.  Coleman,  19  Pa.  St  100,  57  Am.  Dec  641;  Conant  v.  Smith,  1  Atk. 
(Yt.)  67,  13  Am.  Dec.  669.  Partition  of  mines  is,  therefore,  refused 
Yirhere,  by  statute,  it  is  not  to  be  made  where  it  cannot  be  done  without 
great  prejudice  to  the  owners:  Kemble  v.  Kemble,  44  N.  J.  Eq.  454, 
'il  Atl.  733.  Whether  partition  of  a  mine  can  be  equitably  made  is, 
of  course,  in  any  case,  a  question  of  fact,  not  to  be  helped  by  judicial 
notice  of  any  fact  not  proved:  Mitchell  v.  Cline,  84  Cal.  409,  24  Pac. 
164.  In  the  partition  of  mineral  lands,  a  court  may  award  surface 
rights  of  one  cotenant,  and  to  another  jthe  underlying  minerals:  Ames 
V.  Ames,  160  111.  599,  43  N.  E.  592. 

B.  By  Sale. — At  common  law,  no  amount  of  difficulty  or  necessary 
injustice  in  making  partition  could  confer  jurisdiction  on  a  court  to 
order  a  sale  of  the  premises,  and  a  ratable  distribution  of  the  prem- 
iseSi  This  rule  of  the  common  law  is,  however,  quite  universally 
changed  by  statute,  and  a  sale  may  now  be  ordered,  where  partition 
of  the  property  itself  would  result  in  hardship  or  injustice:  Freeman 
on  Cotenancy  and  Partition,  536,  537.  From  the  nature  of  mining 
property,  this  remedy  must  be  the  ordinary  mode  of  relief  in  parti- 
tion proceedings:  Brown  v.  Challis,  23  Colo.  145,  46  Pac.  679;  Aspen 
Hin.  etc  Co.  v.  Rucker,  28  Fed.  220;  Bickards  v.  Bickards,  38  L.  J.  Ch., 
N.  S.,  176.  Where  an  action  for  partition  is  begun  under  statutes  per- 
mitting the  court  to  sell  the  property,  if  actual  partition  cannot  justly 
be  made,  an  act  passed  during  the  pendency  of  such  proceedings,  and 
purporting  to  take  away  the  power  of  sale  in  such  cases  is,  as  to 
pending  actions,  in  violation  of  a  constitutional  provision  prohibiting 
retrospective  legislation:  Brown  v.  Challis,  23  Colo.  145,  46  Pac  679. 
According  to  the  opinion  of  the  court  in  this  case,  actual  partition  of 
mining  property  is  ordinarily  so  impracticable  "that  it  is  known  in 
advance  of  bringing  suit  for  partition  that  the  only  feasible  relief 
that  can  be  awarded  is  a  decree  for  the  sale  of  the  property.  Take  away 
this  relief,  and  no  cause  of  action  can  be  maintained.''  The  pro- 
visions of  the  statute  must  be  followed,  and  it  must,  therefore,  appear, 
in  order  to  warrant  a  sale,  that  partition  of  the  premises  would  result 
in  great  prejudice:  Dall  v.  Confidence  Silver  Min.  Co.,  3  Nev.  531,  93 
Am.  Dec  419;  but  this  may  be  admitted  by  the  pleadings:  Hughes  v. 


888  Ahbrican  Statb  Bbpobts^  Vol.  91.  [Waslu 

Devlin,  23  Cal.  501.    And  wee  in  this  connection,  Lorenz  ▼.  Jaeobi^  59 
Cal.  262;  McGillivray  v.  Evans,  27  Cal.  92. 

In  Gonant  v.  Smith,  1  Atk.  (Yt.)  67,  15  Am.  Dec  669,  the  eoort 
went  80  far  as  to  refuse  both  a  partition  and  a  sale,  saying: 
'*The  situation  and  quality  of  the  property  is  such  as  to  justify  the 
court  in  declining  to  order  a  partition  or  sale.  The  exact  extent  of 
the  ore  bed  is  probably  not  yet  known;  and  much  less  is  the  compara- 
tive depth  and  richness  of  its  several  parts.  It  would,  therefore,  be 
very  hazardous  to  attempt  a  final  division  of  the  land  itself,  and  to 
order  a  division  in  point  of  time,  by  directing  the  parties  to  improve 
the  whole  succession  according  te  their  interests  would  operate  t<> 
destroy  all  benefit  to  the  owners  of  a  small  share.  And  then  to  direct 
a  sale  of  the  defendant's  share  without  their  consent,  though  author- 
ized by  the  statute,  is  against  common  right,  and  ought  to  be  avoided, 
if  equal  or  better  justice  can  be  obtained  in  another  way.  The  eourt 
of  chancery  has  power  to  preserve  the  rights  of  the  parties  and  avoid 
all  these  evils.  They  can  regulate  the  enjoyment  of  this  property 
between  the  owners  by  restricting  them  to  the  proportion  of  their 
respective  interests,  by  compelling  accounts  between  them,  and  by 
appointing  a  common  receiver  for  all  parties.  It  is  further  to  be 
recoUeeted  that  the  orders  of  the  court  are  not  necessarily  per- 
emptory and  final;  but  may  be  altered  from  time  to  time  and  suited 
to  the  varying  state  of  the  subject  and  condition  of  the  parties.  To 
that  jurisdiction  we  must,  therefore,  refer  the  petitioners,  and  refuse 
their  present  application. '^ 

&•  Xmprovemeiits.— Where  one  eotenanty  at  his  own  expense,  has 
made  improvements  on  the  common  property,  a  eourt  will,  in  parti- 
tion proceedings,  adjust  the  equities  of  the  parties  in  this  regard: 
Newman  v.  Dreifurst,  9  Colo.  228,  11  Pac.  98.  For  a  consideration  of 
the  cases  in  which  such  adjustment  is  made  by  setting  off  the  im- 
proved portion  to  the  cotenant  making  the  improvements,  or  by 
decreeing  compensation  to  him  therefor  on  a  sale  of  the  premises,  see 
monographic  note  to  Ward  v.  Ward,  52  Am.  St.  Bep.  924,  938.  The 
mere  fact  that  a  tenant  operating  the  mine  alone  has  not  extended 
his  operations  beyond  the  proportion  of  surface  which  his  share 
bears  to  the  whole  does  not  excuse  him  from  accounting,  since  there 
is  no  certainty  that  the  other  parts  are  equally  rich,  and  the  court 
could  not,  therefore,  in  justice  to  the  other  tenants,  allot  him  the 
portion  mined  by  him.  Where,  however,  he  has  once  accounted  to  his 
cotenants  for  their  share  of  the  ore  removed,  they  cannot,  on  partition 
of  the  premises,  compel  him  to  take  the  exhausted  portion  of  the 
land:  Cecil  v.  Clark,  47  W.  Va.  402,  81  Am.  St.  Eep.  802,  35  S.  ^.  11. 
A  cotenant  is  not,  on  partition  of  the  common  premises,  entitled  to  an 
allowance  for  improvements  made  on  an  adjoining  claim  owned  by 
himself  alone.  Whatever  benefits  in  increased  value  accrued  to  the 
common  property  were  purely  incidental:  Dall  v.  Confidence  Silver 
Min.  Co.,  3  Nev.  531,  93  Am.  Dec.  419. 


March,  1902.]       Hathaway  v.  McDonald.  889 

Z.    ActloBB  Between  Ootenants  and  Tlilrd  Persons. 

Tenants  in  common  of  mines  should  join  in  an  action  against 
third  persons  for  an  injury  to  or  a  nuisance  affecting  the  common  prop- 
erty: Parke  v.  Kilham,  8  Gal.  77,  68  Am.  Dec.  310.  At  common  law, 
tenants  in  common  could  not  join  in  an  action  of  ejectment  against 
a  third  person,  the  interest  of  each  being  separate  and  distinct: 
Freeman  on  Cotenancy  and  Partition,  431.  This  rule  is,  however, 
quite  generally  changed  by  statute,  and  they  may  in  most  states 
join  if  they  see  fit  to  do  so:  See  Goller  v.  Fett,  30  Cal.  481;  Weese  v. 
Barker,  7  Colo.  178,  2  Pac.  919.  One  tenant  in  common  alone  may, 
of  course,  bring  an  action  of  ejectment  against  a  stranger:  Morenhaut 
V.  Wilson,  52  Cal.  263,  1  Mor.  Min.  Bep.  53;  Brown  ▼.  Warren,  16 
Nev.  228;  and  where  the  complainant  clearly  shows  his  intention  to 
regain  possession  of  the  entire  premises  (see  Bullion  Min.  Co.  t. 
Croesus  Min.  Co.,  2  Nev.  168,  180,  90  Am.  Dec  526),  is,  by  the  weight 
of  authority,  entitled  to  recover  exclusive  possession  as  against  all 
but  bis  cotenants:  Melton  v.  Lombard,  51  Cal.  258;  Weise  v.  Barker, 
7  Colo.  178,  2  Pac.  919;  Bullion  Min.  Co.  v.  Croesus  Min.  Co.,  2  Nev* 
16S^  180,  90  Am.  Dec  526,  and  the  monographic  note  to  Marshall  v. 
Palmer,  50  Am.  St.  Bep.  839-846.  As  to  mesne  profits^  one  tenant 
can  probably  recover  only  the  proportion  corresponding  to  his  interest: 
Bruwn  v.  Warren,  16  Nev.  228;  but  where  all  join  in  a  lease  reserving 
a  common  rent,  all  may  join  in  one  action  on  the  lease  or  in  one  diS' 
trees  for  rent;  and  until  notice  from  one  that  his  share  must  be  paid 
to  himself,  any  of  them  may  receive  and  give  a  valid  receipt  for  the 
entire  rent:  Swint  v.  MeCalmont  Oil  Co.,  184  Pa.  St.  202,  63  Am.  SU 
Bep.  791,  38  Atl.  1021. 


HATHAWAY  v.  McDONALD. 

[27  Wash.  659,  68  Pac  376.] 

APPEAL.— Appellants  may  Waive  Exceptions  to  the  Findings, 
and  bring  their  case  to  the  supreme  court  on  errors  arising  upon  the 
pleadings,     (p.  890.) 

PUBE  FOOD  LAW— Title  of.— It  is  not  necessary  to  set  forth 
in  the  title  of  a  pure  food  statute  the  nature  and  character  of  the 
penalties  provided,     (p.  893.) 

PUBE  FOOD  LAW— Oonstmction  of.— If  one  section  of  a  stat- 
ute provides  that  the  dairy  commissioner  may  seize  any  article  whose 
sale  is  prohibited  by  the  act,  and  another  section  prohibits  the 
manufacture  or  sale  of  process  butter  unless  plainly  marked,  the 
commissioner  may  seize  such  butter  when  kept  in  violation  of  law. 
(pp.  893,  894.) 

PX7EE  FOOD  LAW— Interstate  Commerce.— A  statute  prohibit- 
ing the  manufacture  and  sale  of  process  butter,  unless  marke<l 
*'Benovated  Butter,''  does  not,  in  its  application  to  foreign  products, 
contravene  the  commerce  clause  of  the  federal  constitution,  (pp. 
894,    897.) 


890  American  Statb  Bspobts,  Vol.  91.         [Wsdi. 

Horace  Kimball^  proaecutiog  attorn^,  and  Miles  Foindeztei; 
for  the  appellants. 

W.  J.  Thayer,  for  the  respondenta. 

•^  DTJNBAB,  J.  Eespondents  sued  in  replevin  to  recover 
a  quantity  of  process  or  renovated  butter  which  had  been  seized 
by  the  appellant,  E.  A.  McDonald,  in  his  capacity  as  state  dairy 
commissioner.  Appellants  demurred  to  the  complaint,  whidi 
demurrer  was  overruled.  Appellants  thai  answered,  respond- 
ents demurred  to  the  answer,  which  demurrer  was  snatained, 
and  thereupon,  after  the  taking  of  evidence,  and  a  trial  by  the 
court,  a  jury  being  waived,  final  judgment  was  rendered 
against  the  appellants  for  said  process  butter,  for  one  hundred 
and  eighty-one  dollars  and  seventy-five  cents,  with  interest,  as 
damages,  and  for  costs  and  disbursements.  Appellants  have 
appealed  from  said  final  judgment,  and  assign  as  error  the 
order  overruling  the  demurrer  to  the  complaint,  and  also  flic 
order  sustaining  the  demurrer  to  the  answer. 

The  respondents  move  to  dismiss  the  appellants'  appeal  here- 
in on  the  ground  that  judgment  was  rendered  in  favor  of  re- 
spondents upon  findings  of  fact  and  conclusions  of  law  made 
by  the  court,  and  that  no  exceptions  were  ever  taken  by  the 
appellants,  or  any  of  them,  to  said  findings  and  condusions. 
But  the  errors  assigned  by  appellants  arise  upon  the  plead* 
ings,  and,  it  is  alleged,  consist  in  overruling  the  demurrer  to 
the  complaint,  and  in  sustaining  the  demurrer  to  the  answer. 
The  appellants  have  a  right  to  assign  any  error  which  they  see 
fit,  for  the  consideration  of  this  court;  and  if  they  desire  to 
waive  any  exceptions  to  the  findings  of  fact,  and  to  bring  their 
case  here  ^^^  upon  errors  arising  upon  the  pleadings,  they 
certainly  have  a  right  to  do  so.    The  motion  will  be  overruled. 

Chapter  43  of  the  Laws  of  Washington  of  1899  (page  56), 
in  an  act  entitled  ''An  act  regulating  the  manufacture  of  dairy 
products,  to  prevent  deception  or  fraud  in  the  sale  of  the  same 
or  imitation  thereof,  providing  for  the  appointment  of  a  dairy 
commissioner  and  defining  his  duties,''  etc.,  among  other  things, 
provides,  in  section  28,  as  follows:  'Tossession  by  any  person 
or  firm  of  an  article  or  substance  the  sale  of  which  is  prohib- 
ited by  this  act  shall  be  considered  prima  facie  evidence  that 
the  same  is  kept  by  such  person  or  firm  in  violation  of  the 
provisions  of  this  act,  and  the  commissioner  shall  be  author- 
ized to  seize  upon  and  take  possession  of  such  articles  or  sub- 
stances, and  upon  the  order  of  any  court  which  has  jurisdie- 


March,  1902.]       Hathaway  v.  McDonald.  891 

Hon  thereof,  he  shall  sell  fhe  same  for  any  purpose  other  than 
to  be  used  for  food,  the  proceeds  to  be  paid  to  the  state  treas- 
urer and  placed  to  the  credit  of  the  general  f  und.^' 

Section  30  ia  as  follows:  ^^No  person^  firm  or  corporation 
shall  manufacture,  sell  or  offer  for  sale,  or  have  in  his  poesea- 
sion  with  intent  to  sell,  butter  known  as  process  butter,  unless 
the  package  in  which  the  butter  is  sold  has  marked  on  the 
side  of  it  the  words  Renovated  Butter'  in  capital  letters  one 
inch  high  and  one-half  inch  wide  with  ink  which  is  not  easily 
removed;  provided,  that  it  shall  be  unlawful  for  any  retailer 
to  sell  said  butter  and  unless  a  card  is  displayed  on  the  pack- 
age from  which  he  is  selling  butter  with  the  following  words 
printed  thereon^  so  that  it  may  be  easily  read  by  the  purchaser 
^Benovated  Butter/  or  if  it  is  sold  in  packages  on  which  a 
wrapper  is  used,  the  words  'Eenovated  Butter'  shall  be  plainly 
printed  on  each  and  every  wrapper;  provided,  further,  that  all 
process  butter  shipped  from  other  states  shall  be  subject  to  the 
same  regulations  as  provided  in  this  section.  Whoever  violates 
the  provisions  •^  of  this  section  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  shall  be  fined  for  each  and 
every  offense  not  less  than  twenty-five  dollars  ($25)  nor  more 
than  one  hundred  dollars  ($100),  or  by  imprisonment  for  not 
less  than  one  month  or  more  than  six  months,  or  by  both  such 
fine  and  imprisonment/' 

The  complaint  alleges,  among  other  things,  that  the  plain- 
tiffs were  copartners  doing  business  under  the  firm  name  of 
Hathaway  &  Co.,  were  residents  of  the  state  of  Iowa,  and  were 
engaged  in  said  state  in  the  manufacture  of  butter,  and  the 
gelling  and  shipping  thereof  into  various  states  of  the  Union 
from  said  state  of  Iowa;  that  on  the  first  day  of  October^  1900, 
they  were  the  owners  and  in  possession  of  about  three  hundred 
pounds  of  butter  at  their  place  of  business  ui  the  state  of  Iowa, 
which  said  butter  was  shipped  in  original  packages  to  the  city 
of  Spokane,  Washington,  consigned  to  one  Brown,  a  resiclent 
of  the  city  of  Spokane;  that  said  McDonald  is  dairy  commis- 
sioner of  the  state  of  Washington,  and  the  said  dairy  commis- 
sioner, assuming  to  act  under  the  provisions  of  chapter  43  of 
the  Session  Laws  of  the  state  of  Washington  for  the  year 
1899,  took  possession  of  all  said  butter,  without  notice  to,  or 
the  knowledge  and  consent  of,  said  plaintiffs,  and  delivered 
said  butter  to  said  defendant  Edgar  H.  Stanton  to  keep  and 
hold  the  same  for  said  dairy  commissioner,  and  that  said 
Stanton  now  holds  said  butter,  and  that  plaintiffs  demanded 


892  American  Statb  Bbpobts,  Vol.  91.  [Waslu 

possession  of  same  from  each  of  the  defendants^  and  they  Imye 
failed  and  refused  the  possession  thereof  to  plaintiffs;  that  on 
October  15th  said  dairy  commissioner  instituted  an  alleged 
proceeding  in  said  courts  and  obtained  from  one  of  the  judges 
thereof  a  pretended  order  authorizing  the  sale  of  said  butter 
by  said  dairy  commissioner  on  November  9,  1900;  that  said 
order  was  made  without  due  process  of  •••  law,  witiiout  notice 
to  plaintiffs,  without  giving  them  an  opportunity  to  be  heard, 
and  in  violation  of  the  rights  granted  them  by  the  constitution 
of  the  United  States;  that  all  of  said  butter  is  now  in  the 
original  packages,  and  is  pure,  xmadulterated  butter,  and  was 
shipped  to  Spokane  by  plaintiffs  by  virtue  of  their  rights  under 
the  interstate  commerce  law  of  the  United  States  of  America; 
alleging  that  said  chapter  43,  as  applied  to  butter,  and  to  plain- 
tiffs^ right  to  ship  same,  was  unconstitutional  and  void;  alleg- 
ing the  value  of  the  butter,  and  the  damages  sustained;  and 
praying  judgment  for  the  return  of  the  same,  or  for  one  thou- 
sand dollars,  the  value  thereof.  The  answer  alleged  that  the 
order  of  the  court  referred  to  in  the  complaint  was  duly  made 
on  the  fifteenth  day  of  October,  1900,  and  directed  the  sale  of 
said  butter  by  the  said  E.  A.  McDonald,  as  said  dairy  commis- 
sioner, on  the  ninth  day  of  November,  1900,  to  the  highest 
bidder,  and  directed  the  said  dairy  commissioner  to  imme- 
diately deposit  in  the  United  States  postoffice  in  the  city  of 
Spokane  a  copy  of  the  said  order,  and  the  petition  upon  which 
the  same  was  based,  duly  certified,  etc.,  directed  to  the  said 
Hathaway  &  Co.,  at  their  postofBce  address  in  Sioux  City,  Iowa ; 
that  the  order  was  made  upon  a  written  petition  of  said  E.  A. 
McDonald,  and  that,  in  accordance  with  the  directions  of  said 
order,  said  McDonald,  on  the  fifteenth  day  of  October,  1900, 
notified  said  E.  J.  Hathaway  &  Co.,  by  mail,  in  the  manner 
directed  as  aforesaid;  alleges  that  tiie  so-called  butter  seised 
by  said  defendant  was  not  pure,  unadulterated  butter,  but  was 
what  is  and  then  was  known  as  "process*'  butter,  also  known 
as  ''renovated*'  butter,  and  consisted  of  old,  rancid,  and  putrid 
cow  butter,  which  had  been  treated  by  a  certain  process,  with 
heat  and  chemicals,  by  which  the  rancid  taste  and  smell  were 
removed  therefrom,  and  •**  the  same  was  artificially  colored 
so  as  to  exactly  resemble  pure  and  fresh  creamery  butter,  so 
closely  as  to  escape  detection,  except  upon  an  expert  chemical 
analysis  of  the  same;  that  at  the  time  of  the  seizure  aforesaid 
the  said  Hathaway  &  Co.  were  offering  the  said  process  butter 
for  sale,  and  intended  to  sell  the  same  to   one  R  Brown,  at 


March,  1902.]       Hathaway  v.  McDonald.  893 

wholesale^  in  the  packages  in  which  the  same  was  then  con- 
tained^ and  the  same  was  then  in  the  ootinty  of  Spokane,  state 
of  Washington,  and  neither  the  said  packages,  nor  any  of  them, 
had  marked  npon  their  side,  nor  at  all,  the  words  ^'Benovated 
Butter/'  in  capital  letters  one  inch  high  and  one-half  inch 
inde,  with  ink  which  is  not  easily  removed,  nor  in  any  letters, 
nor  at  all;  nor  was  there  upon  tiie  said  bntter,  nor  any  of  it, 
at  any  place,  nor  npon  any  wrapper  on  or  about  the  same,  the 
words  'Renovated  Butter,''  marked  or  printed  in  any  manner 
whatever;  nor  was  there  on  or  about  the  said  packages,  nor 
the  said  butter,  nor  any  of  the  same,  any  card  or  cards  with 
the  words  'TEtenovated  Butter"  printed  or  written  thereon; 
alleges  the  wrongfiQ  detention  of  the  butter;  and  asks  for  a 
judgment  in  defendant's  favor.  A  demurrer  was  introduced 
to  this  anawer  on  the  ground  that  the  affirmative  allegations 
did  not  constitute  any  defense  to  the  complaint.  This  de- 
murrer was  sustained.  The  court  sustained  the  demurrer  on 
the  ground  that  the  butter  was  pure  and  unadulterated,  but 
that  it  was  what  is  known  as  ^'process,"  and  that  the  plaintiffs 
had  a  right  to  ship  the  same  into  tbe  state  of  Washington 
under  the  interstate  commerce  law  of  the  United  States  of 
America,  and  under  the  provisions  of  the  constitution  of  the 
United  States,  and  particularly  under  section  8  of  article  1 
thereof,  because  said  butter  was  an  article  of  commerce. 

There  are  two  propositions  to  be  discussed  in  this  case:  1. 
Does  the  etatute  quoted  purport  to  authorize  the  ^^*  seizure 
of  process  butter?  And  2.  If  it  does  so  authorize  the  seizure, 
is  tile  statute  constitutional? 

The  first  contention  of  the  respondents  is  that  the  title  to 
the  act  does  not  cover  provisions  for  the  confiscation  of  prop- 
erty. But  we  think  an  announcement  that  an  act  is  an  act 
regalating  the  manufacture  of  dairy  products,  to  prevent  de- 
ception or  fraud  in  the  sale  of  the  same,  or  imitation  thereof, 
or  providing  for  the  appointment  of  a  dairy  commissioner, 
and  defining  his  duties,  and  providing  penalties  for  violation 
of  this  law,  is  entirely  sufficient  to  justify  the  provisions  of 
sections  28  and  30  of  the  Laws  of  1899,  page  66.  It  is  not 
feasible,  nor  is  it  required  by  any  judicial  construction,  to  set 
forth  in  the  title  of  the  act  the  nature  and  character  of  penal- 
ties provided  for.  It  is  also  contended  that  there  is  nothing 
in  the  act  which  assumes  to  provide  for  the  seizure  of  process 
butter,  but  that  all  that  is  intended  is  to  fine  the  violator  of 
the  law,  in  relation  to  selling  process  butter  without  marking 


694  American  State  Bbportb^  Vol.  91.  [Wash. 

it  as  the  law  directs^  in  a  sum  of  not  less  than   twenty-iiTe 
dollars  nor  more  than  one  hundred  dollars,  or  by  imprisonment 
for  not  less  than  one  month  nor  more  than  six  months,  or  by 
both  such  fine  and  imprisonment.    But   the   statute^  to    our 
minds,  is  so  plain  that  it  is  difficult  to  base  an  argument  in 
support  of  the  fact  that  sections  28  and  30,  construed  together, 
provide  for  the  seizure  of  renovated  butter,  for  section  28  pro- 
vides that  possession  by  any  person  or  firm  of  an  article,  the 
sale  of  which  is  prohibited  by  this  act,  shall  be  considered  prima 
facie  evidence  that  the  same  is  kept  by  such  person  or  fins 
in  violation  of  the  provisions  of  this  act,  and   that   the   com- 
missioner shall  be  authorized  to  seize  upon  and  take  possession 
of  such  article,  etc.;  and  section  30,  which  is  a  part  of  the 
act  as  much  as  28,  provides  the   prohibition   of   the   sale   of 
renovated  butter,  excepting  xmder  certain  circumstances.    But 
certain  ®^®  it  is  that  renovated  butter,  such  as  is  described  in 
the  answer,  or  renovated  butter  that  has  not  the  words  **Eeno- 
vated  Butter'*  printed  thereon,  is  prohibited  by  section  30.    The 
only  reasonable  construction  that  can  be  placed  upon  the  two 
sections  is  just  what  tha  section  says — ^that  the  possession  of 
an  article  the  sale  of  which  is  prohibited  subjects  the  same  to 
seizure. 

The  second  position  of  the  respondents  is  that,  butter  being 
a  recognized  article  of  commerce,  no  state  has  the  right  to 
interfere  with^  or  even  to  r^:ulate  in  any  manner,  the  trans- 
portation or  sale  of  it,  until  such  time  as  the  articles  have  been 
sold  or  delivered  to  a  citizen  of  this  state,  and  become  a  part 
of  the  mass  of  property  of  the  state,  and  that,  inasmuch  as 
this  butter  was  sent  to  this  state  in  xmbroken  packages,  it  falls 
within  the  provisions  of  section  8,  article  1,  of  the  oonstitutiaD, 
providing,  in  substance,  that  Congress  shall  regulate  commerce 
among  the  different  states.  This  statute  is  not  intended  to, 
and  does  not,  conflict  with  section  8  of  article  1  of  the  consti- 
tution, which  provides  that  Congress  shall  have  power,  among 
other  things,  to  regulate  conmierce  with  foreign  states  and  ^ 
make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers*';  but  it  falls  within  the 
powers  reserved  by  the  states,  and  not  delegated  to  the  United 
States  by  the  constitution,  viz.,  the  police  power,  which  is  an 
inherent  power  in  every  state  by  reason  of  its  sovereignty,  and 
the  power  which  it  is  universally  conceded  extends  to  the  pro- 
tection  of  the  lives  and  health  of  the  citizens,  and  to  the  preser- 
vation of  good  order  and  the  public  morals.    The  state  cannot 


March,  1902.]       Hathaway  «•  McDonald.  895 

be  dereBied,  nor  can  it  derest  itself,  of  this  power,  because  it 
18  inalienable  and  necessary  for  the  very  existence  of  the  state. 
There  is  no  attempt  by  this  law  to  interfere  with  the  commerce 
hetween  the  states^  nor  to  discriminate,  as  in  many  of  the 
cited  by  respondents,  between  the  rights  of  the  citizens 
of  different  states  to  sell  commodities  of  commerce  by  placing 
burdens  npon  one  class  which  another  class  was  relieved   of. 
Not  is  there  any  attempt  here  to  prohibit  the  sale  of  process 
butter.     The  only  attempt  is  to  prohibit  the  dealers  in  such 
butter,  whether  tiiey  be  residents  of  this  or  a  sister  state,  from 
perpetrating  a  fraud  in  the  sale  of  such  commodity ;  and  such 
prohibition  is  not  only  the  right,  but  the  duty,  of  the  state, 
to  be  exercised  under  its  conceded  power  to  make  laws  for  the 
protection  of  the  property  and  welfare  of  its  citizens,  and  for 
the  promotion  of  good  order  and  public  morals.    The   case 
most  strongly  relied  upon  by  respondents  in  support  of  their 
contention  is  Leisy  v.  Hardin,  135  U.  S.  100,  10  Sup.  Ct.  Eep. 
G81.     This  was  an  action  of  repleyin  of  sundry  kegs  and  cases 
of  beer,  begun  in  the  inferior  court  of  the  state  of  Iowa  against 
a  constable  of  Lee  county,  Iowa,  who  had  seized  them  under 
a  search-warrant  issued  by  a  justice  of  the  peace  pursuant  to 
the  statutes  of  Iowa,  which  prohibit  the  sale  or  keeping  for 
sale,  or  the  manufacture  for  sale,  of  any  intoxicating  liquor, 
including  malt  liquor,  for  any  purpose  whatever,  except   for 
medicinal,  pharmaceutical,  chemical,  or  sacramental  purposes; 
and  ij;  was  held  by  the  supreme  court  of  the  United  States  that 
the  law,  as  applied  to  a  sale  by  the  importer,  and  in  the  orig- 
inal packages  or  k^,  unbroken  and  unopened,  of  such  liquors 
manufactured  in  and  brought  from  another  state,  was  unconsti- 
tntional  and  void,  as  repugnant  to  the  clause  of  the  constitu- 
tion granting  to  Congress  the  power   to   regulate   commerce 
with  foreign  nations  and  among  the  several  states.    But  it 
will  be  noted  that  in  this  case  there  is  no  question  of  fraud, 
such  as  there  is  in  the  case  at  bar,  ^^  and  in  many  of  the 
cases  cited  by  respondents  this  distinction  is  kept  in  view. 
The  supreme  court  in  the  case  just  cited  held  that  beer  was  a 
umyersally  recognized  article  of  commerce,  and  that,  the  Con- 
gress of  the  United  States  having  a  right  to  regulate  such  arti- 
cles, the  state  could  not  constitutionally  pass  a  law  which  in 
any  way  infringed  the  right  of  Congress;  and  it  was  urged 
that  it  was  evidenfly  the  intention  of  Congress  that  it  should 
be  the  exclusive  regulator  of  such  commodities.    A  strong  dis- 
senting opinion  was  filed  by  three  of  the  judges  in  this  case. 


896  American  Statb  Sbpobts,  Vol.  91.  [Wash. 

and,  as  showing  the  opinion  of  Congress  on  Uie  qufistion  of 
its  own  intention^  it  may  be  noted  that  since  that  time  Con- 
gress has  amended  the  law  in  that  respect  so  that,  if  tbe  qnes- 
tion  shonld  come  np  now  under  the  statate  of  Iowa  as  it  then 
existed^  the  ruling  would  of  necessity  be  different.    But  the 
identical  qnestion  here  discussed  was  passed  npon  by  the  sa- 
preme  court  of  the  United  States  in  a  later  case,  viz.,  Plnmlej 
V.  Massachusetts,  156  U.  S.  461,  15  Sup.  Ct.  Eep.  154,  where 
it  was  held  that  the  statute  of  Massachusetts  of  March  10, 
1891  (Mass.  Stats.  1891,  c.  58,  p.  165),  to  prevent  deception 
in  the  manufacture  and  sale  of  imitation  butter  or  oleomar- 
garine, artifically  colored  so  as  to  cause  it  to  look  like  yellow 
bntter,  and  brought  into  Massachusetts,  is  not  in  conflict  with 
the  clause  of  the  constitution  of  the  United   States   investing 
Congress  with  power  to  regulate  commerce  among  tiie  several 
states;  and  the  court,  in  passing  upon  that  question^  used  the 
following  language:  ''It  will  be  observed  that  the  statate  of 
Massachusetts  which  is  alleged  to  be  repugnant  to  the  commerce 
clause  of  the  constitution  does  not  prohibit  the  manufacture 
or  sale  of  all  oleomargarine,  but  only  sudi  as  is  colored  in 
imitation  of  yellow  butter  produced  from  pure  unadnlterated 
milk  or  cream  of  such  milk.    If  free  from  coloration  •••  or 
ingredient  that  'causes  it  to  look  like  butter,'  the  right  to  seC 
it  'in  a  separate  and  distinct  form,  and  in  such  manner  is 
will  advise  the  consumer  of  its  real  character,'  is  neither  re- 
stricted nor  prohibited.    It  appears  in  this  case  that  oleomarga- 
rine, in  its  natural  condition,  is  of  'a  light  yellowish  color/ 
and  that  the  article  sold  by  the  accused  was  artifically  cobred 
'in  imitation  of  yellow  butter/    Now,  the  real  object  of  color- 
ing oleomargarine  so  as  to  make  it  look  like  genuine  butter 
is  that  it  may  appear  to  be  what  it  is  not,  and  thus  induce 
unwary  purchasers,  who  do  not   closely   scrutinize   the   label 
upon  the  package  in  which  it  is  contained,  to  buy  it  as  and  for 
butter  produced  from  unadulterated  milk  or  cream  from  such 
milk.    The  suggestion  that  oleomargarine  is  artificially  colored 
so  as  to  render  it  more  palatable  and  attractive  can  only  mean 
that  customers  are  deluded,  by  such  coloration,  into  believing 
that  they  are  getting  genuine  butter.    If  anyone  thinks  that 
oleomargarine,  not  artificially  colored  so  as  to  cause  it  to  look 
like  butter,  is  as  palatable  or  as  wholesome  for  purposes  of  food 
as  pure  butter,  he  is,  as  already  observed,  at  liberty  under  the 
statute  of  Massachusetts  to  manufacture  it  in  that  state  or  to 
sell  it  there  in  such  manner  as  to  inform  the  customer  of 
its  real  character.    He  is  only  forbidden  to  piactice,  in  sacb 


March,  1902.]       Hathaway  v.  McDonald.  897 

matters,  a  fraud  upon  the  general  public.  The  statute  seeks 
to  suppress  false  pretenses  and  to  promote  fair  dealing  in 
Uie  sale  of  an  article  of  food*  It  compels  the  sale  of  oleomarga- 
rine for  what  it  really  is,  by  preventing  its  sale  for  what  it 
ia  not.  Can  it  be  that  the  constitution  of  the  United  Statea 
secures  to  anyone  the  privilege  of  manufacturing  and  selling  an 
article  of  food  in  such  manner  as  to  induce  the  mass  of  people 
to  believe  that  they  are  buying  something  which,  in  fact,  is 
wholly  different  from  that  which  is  offered  for  saleP  Does  the 
freedom  of  commerce  among  the  states  demand  a  recognition 
of  the  right  to  practice  a  deception  upon  the  public  in  the 
sale  of  any  articles,  even  those  that  may  have  become  the 
subject  of  trade  in  different  parts  of  the  country  ?*' 

•^^  The  language  used  by  the  learned  court  in  this  case 
might  appropriately  be  applied  to  the  case  at  bar^  for  process 
butter,  under  our  statute,  is  not  prohibited,  but  the  intention 
of  the  statute  is  to  prohibit  fraudulently  selling  process  but* 
ter  for  fresh  creamery  butter.  These  laws  are  what  is  known 
in  common  parlance  as  "pure  food  laws/'  They  are  in  tho 
interest  of  health,  cleanliness,  and  good  morals,  and  universally 
upheld  when  not  substantially  infringing  upon  the  powers  of 
Congress;  and  no  case,  we  think,  has  gone  so  far  as  to  hold 
that  the  police  power  of  the  state  cannot  be  exercised  for  the 
prevention  of  fraud  in  matters  of  this  kind  without  being  sub* 
jected  to  the  charge  of  impinging  upon  constitutional  rights. 

We  are  not  certain  that  there  was  enough  in  the  complaint 
to  subject  it  to  the  demurrer  interposed,  but  the  answer  stated 
a  cause  for  defense  under  the  statute,  and  the  demurrer  was 
wrongly  sustained.  The  judgment  will  be  reversed,  with  in- 
structions to  overrule  the  demurrer  to  the  answer. 

Beavis,  C.  J.,  and  White,  Hadley,  Anders,  and  Mount,  JJ.^ 
concur* 


Pwre  Food  Latr.— A  statute  prohibiting  the  manufacture  and  sale 
of  any  substance  ''made  in  imitation  of  yellow  butter,''  and  not 
made  ''wholly  of  cream  or  milk,"  is  constitutional,  though  intended 
to  prohibit  the  sale  of  such  products  imported  from  other  states  and 
sold  in  the  original  packages:  State  v.  Bogers,  95  Me.  94,  49  Atl. 
564,  85  Am.  St.  Rep.  395,  and  note.  See,  in  this  connection,  State  v. 
Zophy,  14  S.  Dak.  119,  86  Am.  St.  Bep.  741,  84  N.  W.  891;  People  v. 
Biesecker,  169  N.  Y.  53,  88  Am.  St.  Bep.  534,  61  N.  E.  990. 

The  Titles  of  Statutes,  with  respect  to  their  sufficiency  under  the  con- 
gtitutional  requirements,  are  considered  in  the  monographic  notes  ta 
Bobel  V.  People,  64  Am.  St.  Bep.  70-107 ;  Crookston  v.  County  Commrs., 
79  Am.  St.  Bep.  456-486;  Lewis  v.  Dunn,  86  Am.  St.  Bep.  267-279. 
Am.  St.  R«p..  Vol  91-57 


OASES 


SUPBEME  COTJBT 


OF 

WISCONSIN. 


DIANA  SHOOTING  CLUB  v.   LAMORETIX. 

[114  Wi&  44,  89  N.  W.  880.] 

OOKttTlTUTlONAI.  LAW— TiUe  of  Statute.— The  tiUe  ef 
AH  act  should  be  liberallj  eonetmed,  and  not  be  condemned  ae  ins&f- 
fieient  to  constitutionally  suggest  those  things  found  in  tiie  body  of 
the  act,  unlessy  giving  thereto  the  largest  scope  which  reason  will 
permit,  something  is  found  therein  whi^  is  neither  within  its  litsnl 
meaning  nor  its  spirit,  nor  germane  thereto,     (p.  900.) 

OONSTITX7TIONAL    LAW— Title    of    Statate.— ETeiy    sob- 

ject  which  the  court  can  see  would  or  might  facilitate  the  aeeooh 
plishment  of  the  primary  purpose  named  in  the  title  of  an  act  ii 
germane  thereto,  and  may  be  considered  as  constitutionally  soggested 
by  the  expression  of  such  primary  purpose,     (p.  900.) 

C0NSTITX7TI0NAL  LAW— Title  of  Act— The  eonstits- 
tion  requires  tho  subject  of  an  act  to  be  expressed  in  its  title^  hot 
leaves  the  mode  of  expressing  it  wholly  to  the  discretion  of  the  legis- 
lature,    (p.  901.) 

CONSTITUTIONAL  LAW— Titte  of  Act— Primary  Pnrposes. 

The  statement  of  the  primary  object  in  the  title  of  an  act  as  being 
the  creation  of  a  corporation  for  manufacturing  purposes  samsti, 
as  germane  thereto,  and  as  part  of  the  expressed  purpose^  antnoritf 
to  acquire  and  maintain  a  dam  to  create  power  for  the  use  of  the 
corporation,  to  acquire  lands  affected  by  the  backwater  of  such  dam, 
and  authority  in  the  owners  of  such  lands  to  sell  them  to  the  tot- 
poration.     (p.  904.) 

PTTBLIO  LANDS.— An  artificial  lake  maintained  on  lands  th« 
title  of  which  is  in  the  state  does  not  stamp  on  such  lands  the 
same  character  and  trusts  as  if  they  were  covered  by  a  natnnl 
lake,  unless  the  artificial  lake  is  continued  for  a  time  suifieieat  to 
make  it  a  natural  lake  by  prescription,     (pp.  905,  906.) 

PUBLIO  LAND— Swamp  Lands.- Decisions  by  the  land  de- 
partment of  the  general  government,  as  to  whether  lands  were  up- 
lands or  swamp  lands  within  the  meaning  of  a  national  ewamp  land 
act  at  the  time  it  took  effect,  are  conclusive  in  all  courts  and  si 
to  all  parties,  except  a  claimant  by  paramount  title,     (p.  .906.) 

PUBLIO  LANDS— Swamp  Lands— Title  to,  when  Vests  in 
State.— A  national  swamp  land  act  vests  in  the  state,  as  of  the  date 
it  takes  effect,  the  title  to  all  lands  determined  by  the  general  liid 

(8«) 


Jkpril,  1902.]    Diana  Shooting  Club  v.  Lamorbux.         899 

department  of  the  United  States  to  be  affected  thereby.  Such  lands 
-are  thereafter  segregated  from  the  remainder  of  the  pnblie  domain 
«nd  vested  in  the  state,  whether  or  not  they  were  at  the  time  of 
tho  passage  of  such  act  artificially  covered  by  navigable  water,  by 
trespassers  upon  the  public  lands,     (p.  907.) 

WATEB8  AND  WATEB00UBSE8— Statute  of  Idioitatioiis.— 

Although  an  artificial  condition  of  water  may,  by  prescriptive  right, 
tecome  a  natural  condition  as  regards  public  rights,  yet  this  is 
not  so  in  the  absence  of  elements  necessary  to  change  the  title  to 
the  lands  by  operation  of  the  statute  of  limitations,     (p.  907.) 

TBESPASS.— Any  Wrongful  Intmsion  upon  the  right  of  an- 
•other  is  both  an  injury  and  a  damage,  and  is  a  proper  subject  for 
legal  redress,     (p.  908.) 

TBBSPASS— Hunting.— Any  wrongful  intrusion  upon  the 
right  to  use  land  for  fishing  and  hunting  is  actionable^  no  matter 
as  to  the  amount  of  damages  caused  by  such  invasion,     (p.  908.) 

TBESPA8S.— State  License  to  Hunt  confers  no  right  upon  the 
holder  to  go  upon  private  lands  without  the  permission  of  the  owner. 
<p.  908.) 

Action  to  recover  damages  for  trespassing  npon  an  exdusive 
right  to  hunt  and  fish  on  certain  lands^  the  title  to  which  was 
pnt  in  issne,  the  defendant  claiming  that  the  landa  were  for- 
merly the  bed  of  a  lake,  and  that  the  state  had  never  parted 
with  the  title  thereto.  Judgment  dismissing  the  complaint  . 
with  costs.    Plaintiff  appealed. 

J.  E.  Malone  and  J.  B.  Doe,  for  the  appellants 

Lamoreuz  &  Hnsting  and  E.  Merton,  for  the  respondent. 

*''  MASSHALL,  J.  The  first  question  which  naturally  en- 
^ges  our  attention  in  considering  the  assignments  of  error 
upon  this  appeal  is.  Did  the  court  err  in  holding  that  chapter 
454,  P.  &  L.  Laws  of  1867,  is  unconstitutional?  Appellant 
Spends  entirely  upon  the  validity  of  that  act  to  make  out  a 
paper  title  to  that  which  respondent  is  charged  with  having 
violated.  The  trial  court  decided  that  the  act  is  invalid  be- 
cause it  violates  section  18^  article  4,  of  the  constitution,  which 
provides:  '*No  private  or  local  bill  which  may  be  passed  by 
the  legislature  shall  embrace  more  than  one  subject^  and  that 
shsJl  be  expressed  in  the  title.'' 

To  sustain  that  decision,  much  reliance  is  placed  on  Durkee 
V.  Janesville,  26  Wis.  697,  where  it  was  held  that  a  local  act 
^*®  violates  the  constitutional  limitation  mentioned  unless  its 
title  refers  to  the  locality  to  which  the  act  applies.  The  in- 
firmity in  that  position  is  in  the  fact  that  the  act  in  question  is 
not  a  local,  but  is  a  private,  act.  There  have  been  so  many 
'decisions  on  the  subject  of  the  scope  of  the  constitutional  pro- 
vision in  question   that  no  new  light  can  be  easily,  if  at  all. 


SOO  American  State  Seports^  Vol.  91.     [Wificonfiuv 

ahed  thereon.     Some  rules  have  been  deduced  from  the  various 
decisions    which  furnish  pretty  safe  guides  to  go  hj,  and  t(^ 

those  we  will  refer. 

It  has  been  repeatedly  held  that  the  title  of  an  act  should* 
be  liberally  construed;  that  it  should  not  be  condemned  as^ 
insuflBcient  to  constitutionally  suggest  those  things  found  in 
the  body  of  the  act  unless^  giving  thereto  the  largest  scope  which 
reason  will  permit,  something  is  found  therein  which  is  neither 
within  its  literal  meaning  nor  its  spirit,  nor  germane  thereto. 
Courts  cannot  sit  in  judgment  upon  the  work  of  the  legisla- 
ture and  decide  one  of  its  acts  unconstitutional,  merely  because 
the  title  thereof  is  not  as  comprehensive  as  it  might  have 
been  made.     Within  all  reasonable  boundaries,  legislative  dis- 
cretion in  that  field  cannot  be  rightfully  interfered  with.    This 
court    has    said:    "Titles    of    acts   should    be   liberally   con-- 
strued,  and  acts  will  be  upheld  if  they  substantially  comply 
with  this  section,  though  their  titles  do  not  express  tiieir  sub- 
jects as  fully  and  unequivocally  as  possible*':  Mills  v.  Charie^ 
ton,  29  Wis.  400,  9  Am.  Rep.  578. 

Any  number  of  provisions,  all   relating  to  a  single   object, 
including  all  the  necessary  or  reasonable  details  thereof,  may 
be  covered  by  a  title  in  such  general  terms  as  to  fairly  indi- 
cate such  subject,  the  unity  of  the  subject  being  taken  as  in- 
cluding within  its  scope  all  the  details  provided  to  effect  the 
single  legislative    purpose:    Milwaukee    Co.  v.  Isenring,  10^ 
Wis.  9,  22,  85  N.  W.  131.    The  court  of  appeals  of  New  York, 
speaking  on  the  same  subject,  held  that  neither  that  court  nor 
any  other  has  said  anything  justifying  the  position  that  the 
various  methods  adopted  in  a  bill  to  carry  out  its  general  design 
^  must  be  enacted  by  several  bills  in  order  to  comply  with 
the  constitutional  limitation;  that  courts  cannot  legislate,  nor 
dictate  legislation,  nor  have  any  concern  with  questions  of  mere 
propriety  or  wisdom:  Matter  of  Mayer,  60  N.  Y.  504,  508. 
Every  subject  which  the  court  can  see  wotdd  or  might  facili- 
tate the  accomplishment  of  the  primary  purpose  named  in  the 
title  of  an  act  is  germane  thereto,  and  may  be  considered  ta 
constitutionally  suggested  by  the  expression  of  such  primary 
purpose:  People  v.  Briggs,  50  N".  Y.  553,  664.     ^*The  consti- 
tution does  not  require  the  title  of  a  private  or  local  bill  to 
disclose  or  shadow  forth  the  character  of  the  proposed  legis- 
lation, its  full  scope  and  purpose,  and  to  make  known  the  se?- 
eral  interests  which  may  be  directly  or  indirectly  affected  by 
it  so  as  to  attract  attention  and  give  notice  of  all  tiiat  is  to- 


^pril,  1902.]    Diana  Shooting  Club  v.  Lamoreux.  901 

%e  accomplished  by  the  proposed  act.**  *^The  constitution 
xeqiiires  the  subject  of  the  act  to  be  expressed  in  the  title^  but 
leaTes  the  mode  of  expressing  it  wholly  to  the  discretion  of 
^he  legialatTire'' :  People  ▼.  Banks,  67  N.  Y.  668,  672.  The 
•finpxeme  court  of  South  Carolina  is  in  line  with  the  foregoing. 
It  said,  in  Connor  ▼.  Green  Pond  etc.  By.  Co.,  23  S.  G.  427, 
4:35:  ^'When  a  question  under  this  clause  of  the  constitution 
is  presented  for  adjudication,  we  are  bound  to  take  a  liberal 
^and  enlarged  view,  and  if  practicable  bring  the  legislation 
"wbich  is  assailed  as  unconstitutional  within  the  limits  pre- 
-«cribed  by  the  supreme  law  of  the  land/' 

Everything  which  facilitates  the  subject  or  object  of  an  act 
is  coYered  by  the  expression  of  the  subject"  The  supreme 
•<jourt  of  the  TJnited  States,  in  harmony  with  the  decisions 
cited,  holds  that  "all  the  provisions  of  an  act  which  are  appro- 
priate to  carry  out  the  expressed  object  thereof  are  sufficiently 
indicated  by  the  expression  of  such  object,  and  are  in  a  consti- 
"tntional  sense  included  therein*':  Mahomet  v.  Quackenbush, 
117  TT.  S.  608,  611,  6  Sup.  Ct.  Bep.  868. 

••  The  foregoing  sufficiently  shows  the  extent  to  which  courts 
liave  gone  in  resolving  all  reasonable  doubts  in  favor  of  legis- 
lative power  to  the  end  that  it   may   be   in   fact   what   the 
f  ramers  of  the  constitution  intended  it  should  be,  independent 
:and  unimpeachable,  within  the  broadest   limits  which   reason 
can  ascribe  to  constitutional  limitations,  having  regard  to  the 
letter  as  well  as  the  spirit  thereof,  the  persons  concerned  in 
legislating  being  left,  within  such  limitations,  responsible  for 
iiheir  conduct  solely  to  the  people.    It  is  not  improbable  that 
the  constitutional  purpose  in  respect  to  the  subject  under  dis- 
-cussion  has  in  a  measure  failed  because  of  the  conservatism  of 
that  branch  of  our   governmental   system  which   is  clothed 
with  the  duty  of  defining  the  limits  set  by  the  constitution 
for  legislative  power.    If  so,  in  that  we  have  a  demonstration 
that  the  lights  of  the  people  stand  in  no  danger  of  judicial  en- 
croachments upon   legislative   and   executive   power.    If  the 
people  desire  to  have  the  hands  of  such  branches  of  the  gov- 
ernment tied  more  closely  than  the  courts  have  been  able  to 
discover  has  been  accomplished  by  the  constitution  as  framed, 
the  way  is  open  to  do  so  by  further  and  more  definite  consti- 
tutional limitations.    The  court  performs  its  full  duty  when 
it  resolves  all  reasonable  doubts  against  constitutional  limita- 
tions upon  legislative  power,  and  unhesitatingly  and  vigor- 
4>usly  enforces  the  restraints  which  are  found  to  have  been 


902  Ambbican  Statb  Bbpobts^  Vol.  91.     [Wisconsiiv 

embodied  by  ihe  people  in  fheir  organic  act  of  government.  lb 
that  fhe  conrt  maintains  such  limitation  in  letter  and  spirit 
80  far  as  jndidal  roles  wiU  permit^  and  it  must  be  assumed 
that  sach  rules  were  well  understood  when  the  constitution 
was  framed  and  courts  were  created^  charged  with  the  o£Sce  of 
construing  it. 

Probably  as  comprehensiye  a  rule  as  can   be   found   stated 
in  the  books^  for  testing  the  sufSciency  of  a  title  to  a  priyate 
or  local  legislative  act^  is  the  one  deduced  from  the  authorities^ 
by  the  New  York  court  of  appeals  and  approved  in  Milwaukee 
Co.  V.  Isenring,  109  Wis.  9,  86  N.  W.  131.  When  one,  read- 
ing a  bill  ^^  with  the  f  uU  scope  of  the  title  thereof  in  mind,, 
comes  upon  provisions  which  he  could  not  reasonably  have 
anticipated  because  of  their  being  in  no  way  suggested  by  the 
title  in  any  reasonable  view  of  it,  tiiey  are  not  constitutionally 
covered  thereby.    But  in  applying  that  rule,  this  other  rule, 
which  has  been  universally  adopted,  must  be  kept  in  mind:  The 
statement  of  a  subject  includes,  by  reasonable  inference,  all 
those  things  which  will  or  may  facilitate  the  accomplishment 
thereof:  People  v.  Sutphin,  166  N".  Y.  163,  69  N.  E.  770;  Hope 
V.  Oainesville,  72  Ga.  246.    The  extent  to  which  the  courts 
have  gone  in  applying  those  principles  is  indicated  by  the  fol* 
lowing.    An  act  entitled  ''An  act  to  incorporate  a  railway  com- 
pany," specifying  the  name  thereof,  has  been  repeatedly  held 
to  include  all  provisions  which  may  be  reasonably  considered 
to  have  been  designed  to  aid  in  forming  the  corporation  and 
accomplishing  the  object  thereof,  including  a  grant  of  power 
to  a  municipal  corporation  to  take  stock  in  the  company,  to 
issue  municipal  bonds  in  payment  thereof,  and  all  necessary 
provisions  in  regard  to  the  details  of  taxation  to  raise  money 
to  pay  the  principal  and  interest  on  such  bonds :  Hope  v.  Oaines* 
ville,  72  Ga.  246;  Mahomet  v.  Quackenbush,  117  U.  S.  608, 
6  Sup.  Ct.  Eep.  858 ;  Schuyler  Co.  v.  People,  26  111.  181,  183. 
An  act  aititled  ''An  act  to  incorporate  the  Fireman's  Benevo- 
lent Association  and  for  other  purposes/'  was  held  to  constitu- 
tionally suggest  a  provision  requiring  the  agents  of  all  foreign 
insurance  companies  doing  business  at  the  home  of   the   cor* 
poration  to  pay  two  per  cent  of  all  premiums  received  by  them 
to  the  association  treasury  for  its  use:  Fireman's  Ben.  Assn. 
V.  Lounsbury,  21  111.  611,  74  Am.  Dec.   115.    An  act  en- 
titled "An  act  to  amend  the  charter  of  Covington  and  Cin- 
cinnati Bridge  Company,"  was  held  to  suggest  the  subject  of 
corporate  power  on  the  part  of  the  bridge  company  to  sell  a 


Jkprily  1902.]    Diana  Shooting  Club  v.  Lamobbdx.         90S 

jMurt  of  its  corporate  stock  to  the  city  of  Covington,  and  the 
subject  of  mnnidpel  power  on  the  part  of  snch  city  to  take  the 
stock,  issue  its  corporate  bonds  in  payment  ^^  thereof,  and 
lef?7  and  collect  taxes  from  time  to  time  to  meet  the  principal 
of  and  interest  on  such  bonds:  Phillips  v.  Covington  etc.  Bridge 
Co.,  2  Met  (Ky.)  219.  An  act  entitled  ''An  act  to  incorpo- 
Tate  the  Northwestern  TTniversit/'  was  held  to  include,  as  ger* 
mane  to  fhe  primary  subject  so  expressed,  a  prohibition  of  the 
sale  of  spiritnons  Uqnors  within  four  miles  of  the  location  of 
fhe  college:  O'Leary  v.  Cook  Co.,  28  111.  534.  An  act  entitled 
''An  act  for  the  more  uniform  mode  of  doing  township  busi- 
ness'' was  said  to  include  the  subject  of  organizing  new  towns : 
Clinton  v.  Draper,  14  Ind.  295.  An  act  entitled  ''An  act  to* 
regulate  proceedings  in  the  county  court"  was  said  to  suggest 
provisions  regarding  proceedings  in  fhe  appellate  court  in  the 
hearing  and  disposition  of  cases  appealed  from  the  county 
court:  Murphey  v.  Menard,  11  Tex.  673. 

Many  more  illustrations  might  be  added  to  those  we  have 
given.  Some  mentioned  seem  to  be  rather  extreme  applica- 
tions of  the  very  liberal  rule  that  eveiything  found  in  the 
body  of  a  legislative  act  should  be  deemed  included  in  the 
title  expressing  a  single  subject,  which  may  be  reasonably 
considered  as  liable  to  facilitate  the  primary  object  of  the  en- 
actment so  expressed.  It  is  not  necessary  for  the  purpose  of 
this  case  to  go  so  far  as  many  of  the  courts  have  gone.  We 
should  hesitate  long  before  doing  so,  as  it  would  leave  the  con- 
stitutional limitation  under  consideration  without  valuable 
force.  The  spirit  of  the  constitutional  restraint  can  be  made 
effective  and  still  leave  the  legislature  sufficiently  free  in  the 
exercise  of  its  discretionary  power  that  it  will  not  be  embar- 
rassed in  any  legitimate  effort  to  perform  its  duties.  It  is 
reasonable  to  hold  that  the  statement  of  a  subject,  by  reason- 
able inference,  states  the  details  thereof,  and  that  such  details 
may  be  as  broad  as  the  purpose  suggested  by  the  subject  in 
any  reasonable  view  thereof,  and  are  in  a  constitutional  sense 
suggested  thereby,  so  that  no  one  need  reasonably  be  aston- 
ished at  coming  upon  any  one  of  them  in  reading  an  act  in 
•*  which  they  are  included,  the  reader  having  in  mind  the  full 
scope  of  the  primary  object  of  the  enactment  as  expressed  in 
its  title.  That  rule  carries  out  the  constitutional  requirement 
that  the  subject  of  an  act  shall  be  single  and  be  stated  in  the 
title,  leaving  the  legislature  to  exercise  a  broad  discretionary 
power  as  to  the  mode  of  expressing  it. 


SOi  Ambrican  State  Bepobts,  Vol.  91.     [Wisconfiin, 

The  subject  of  the  act  before  ti8  is  the  incorporation   of  a 
manufacturing  company.    That   finbject   suggests   at   once   a 
manufacturing  business  as  the  object  of  creating  the  corpora- 
tion.   It  also  implies^  necessarily,  a  requirement  for  motiine 
power  and  means  of  creating  it,  as  by  water,  and,  as  necessary 
thereto,  the  maintenance  of  a  dam;  and  to  that  end  the  right 
to  acquire  and  maintain  a  dam.    That  suggests  the  necessity 
of  acquiring  the  title  to  lands  affected  by  the  backwater  of  tiie 
dam,  and  power  of  the  owner  of  such  lands  to  sell  the  same 
to  the  corporation  and  to  preserve  existing  conditions  necessary 
to  the  exercise  of  such  power.    All  of  those  matters  are  in- 
isluded  in  the  act  in  question.    That  learned  trial  court  supposed 
that  the  power  granted  to  the  corporation  to  maintain  a  dam, 
and  to  acquire  from  the  state  title  to  the  lands  coyered  by  the 
backwater  of  the  dam,  and  authority  to  the  state  to  sell  the 
land  to  the  corporation  and  to  retain  the  title  thereto  till  that 
power  could  be  exercised,  were,  in  whole  or  in  part,  not  ger- 
mane to  the  mere  creation  of  the  corporation,  hence  tiiat  the 
act  covered  more  than  one  subject  and  violated  the  oonstitntion. 
Hence  the  act  was  condemned  as  invalid.    Enough  has  been 
said  to  clearly  show,  in  the  light  of  the  settled  construction 
of  the  constitutional  provision  in  question,  that  such  decision 
cannot  be  sustained. 

What  has  been  said  entirely  relieves  appellant's  case  from 
the  supposed  infirmity  of  there  being  no  valid  law  creating 
tiie  state's  grantee  of  the  lands  in  question  and  giving  the  state 
authority  to  convey  the  lands  to  such  grantee  if,  under  any  dr- 
eumstances,  it  could  so  deal  therewith.  Chapter  454  of  the 
P.  &  L.  Laws  of  1867,  creating  the  Mechanics'  Union  Manu> 
facturing  '^  Company,  is  a  constitutional  enactment.  It  gave 
to  the  appropriate  executive  and  administrative  officers  of  the 
«tate  authority  to  convey  to  such  corporation  whatever  propri- 
etary title  the  fitate  had  to  the  lands  referred  to  tiierein.  We 
do  not  deem  it  necessary  to  consider  the  history  of  the 
of  the  act  through  the  legislature.  The  wisdom  of  the 
tire  and  those  things  in  respect  thereto  indicating  that  the 
legislature  did  not  properly  guard  the  interests  of  the  state, 
which,  by  the  industry  of  counsel,  were  brought  to  the  atten- 
tion of  tibe  trial  court,  do  not  concern  the  merits  of  the  case^ 
since  they  involve  no  constitutional  question. 

The  next  question  to  be  considered  is,  What  was  the  nature 
of  the  state's  title  to  the  lands  covered  by  the  waters  of  Hon- 
con  lake,  so  called,  at  the  time  of  the  attempted  conveyanet 


April,  1902.]    Diana  Shooting  Club  v.  Lamobeux.  905 

fheieof  pursuant  to  the  act  of  1867?  The  learned  trial  court 
•rapposed  it  was  the  same  as  that  to  any  land  covered  by  the 
waters  of  a  natural  navigable  lake^  and  that  the  numerous  de- 
cisions of  this  court  to  the  effect  that  the  state  has  no  propri- 
etary right  in  such  lands,  no  right  which  it  can  sell  as  state 
property^  rule  the  case.  True,  the  navigable  waters  of  the  state 
and  the  lands  upon  which  they  rest,  as  the  same  existed  when 
ihe  state  was  admitted  into  the  Union,  speaking  only  of  natural 
iKKLies  of  water,  became,  at  the  instant  of  such  admission,  vested 
in  the  state  for  those  public  purposes  incident  to  navigable 
waters  at  common  law,  and  the  state  is  powerless  to  change  its 
Telation  thereto  so  far  as  the  preservation  of  such  relation  is 
necessary  to  the  trust,  and  it  has  not  been  changed  at  all  as 
Tegards  the  beds  of  navigable  lakes:  Ne-pee-nauk  Club  v.  Wil- 
son, 96  Wis.  290,  71  N.  W.  661;  Priewe  v.  Wisconsin  State 
«tc.  Co.,  93  Wis.  634,  67  N.  W.  918;  Willow  Eiver  Club  v. 
Wade,  100  Wis.  86,  103,  76  N.  W.  273 ;  IlUnois  S.  Co.  v.  Bilot, 
109  Wis.  418,  426,  83  Am.  St.  Rep.  905,  84  N.  W.  855,  86  K 
W.  402.  True,  also,  if  an  artificial  lake  is  created,  or  arti- 
ficial level  of  a  natural  lake  is  caused  by  the  erection  of  a  dam, 
and  such  condition  is  allowed  to  exist  adversely  ^  for  the 
full  statutory  period  necessary  to  change  the  ownership  of  the 
land  affected  thereby,  the  former  owner  thereof  cannot  there- 
after object  to  a  continuance  of  such  condition.  By  operation 
of  the  statute  of  limitations  the  artificial  condition  is  thus 
stamped  with  the  character  of  a  natural  condition,  and  the  title 
to  the  lands  covered  by  the  waters  of  the  lake  is  deemed  to 
have  passed  from  private  ownership  to  the  same  trust  as  that 
of  lands  covered  by  the  waters  of  natural  navigable  lakes. 
Th€  state,  and  private  owners,  as  well,  of  lands  affected  by  the 
artificial  condition,  may  enforce  the  maintenance  of  that  con- 
dition. No  one  can  enforce  its  discontinuance :  Smith  v.  You- 
mans,  96  Wis.  103,  66  Am.  St  Eep.  30,  70  N.  W.  1116;  Men- 
dota  Club  V.  Anderson,  101  Wis.  479,  78  N.  W.  186 ;  Pewaukee 
V.  Savoy,  103  Wis.  271,  276,  74  Am.  St.  Eep.  860,  79  N.  W. 
436.  But  we  are  unable  to  see  how  those  principles  can  be 
applied  to  the  facts  of  this  case.  Counsel  suggest,  as  the  turn- 
ing point  in  that  r^ard,  the  following:  "Were  the  premises 
in  question  submerged  lands  in  the  year  1867,  at  the  date  of 
the  alleged  patent  to  the  Mechanics'  Union  Manufacturing  Com- 
pany, and  had  they  been  such  submerged  lands  for  upward  of 
twenty  years  within  the  meaning  of  the  decisions  of  this  court. 


906  American  Statb  Bbports^  Vol.  91.     [Wisconsic^ 

fo  that  the  title  to  the  same  became  Tested   in  the   state   in 
trust  r 

In  presenting  that  proposition  for  consideration  connsel  seem 
to  assume  that  if  the  lands^  for  a  period  of  twenty  years  prior 
to  the  making  of  the  patent   in   1867,  were   artificially   snb- 
merged,  the  waters  covering  the  same  being  navigable  during 
snch  period,  it  must  be  answered  in  their  favor,  entirely  over- 
looking the  fact  that  the  submerged  condition  must  have  ex* 
isted  nnder  such  circumstances  as  to  change  the  title  thereto 
from  a  proprietary  to  a  mere  trust  character  by  the  operation 
of  the  statute  of  limitations  before  it  was  intenrupted,  else  no 
lake  was  created  by  prescription;  that  the  mere  fact   of  fhe- 
existence  of  the  artificial  lake  for  twenty  years  does  not  solve- 
the  controversy.    It  stands  admitted  that  the  territory  ■•  in 
question  was  covered  by  the  United  States  land  surveys  long* 
prior  to  the  creation  of  the  lake  by  the  building  of  the  dam 
across  Rock  river.    The  government  plats  (which  we  may  prop- 
erly refer  to,  even  though  not  in  evidence)  show  such  to  be  ft& 
fact.    While  the  dam  was  built  and  the  lands  were  covered  by 
water  in  1846,  the  title  remained  in  the  United  States  till  the 
passage  of  the  swamp  land  act  of  1850,  and  was  of  couisfr 
not  affected  by  any  statute  of  limitations.    The   statute   be* 
gan  to  operate  against  the  state  at  the  earliest  date  it  acquired 
its  title.    Twenty  years  did  not  elapse  thereafter  tiU  the  patent 
was  made  conveying  such  title  under  the  act  of  1867,  and  ilie 
restoration  of  the  lands  to  their  former  condition  was  accom* 
plished  by  the  destruction    of   the  dam.    The   conclusion   is^ 
irresistible,  under  those  circumstances,  that  the  lake  created  by 
the  dam  did  not,  prior  to  its  discontinuanoe,  become  a  natural 
lake  by  prescription.    In  1850  the  land  was  part  of  the  sur- 
veyed public  domain  of  the  United  States,  unaffected  by  the 
artificial  condition  created  by  the  dam  previously  built.    If  tiie 
lands  were  swamp  lands,  the  title  thereto,  by  the  swamp  land 
act,  passed  to  the  state  as  state  property.    While  the  decision 
of  the   land   department   of  the   general   government   as  to 
whether  lands  were  or  were  not  covered  by  navigable  water? 
at  any  particular  time  does  not  foreclose  that  question*  as  to 
whether  lands  were  uplands  or  swamp  lands  within  the  mean- 
ing of  the  swamp  land  act  at  the  time  it  took  effect,  the  de* 
dsion  of  such  department  is  conclusive  in  all  courts  and  as 
to  all  parties  except  a  claimant  by  paramount  title:  Qoinbr 
V.  Conlan,  104  U.  S.  420.    The  United  States  land  department 
regularly  approved  the  lands  in  question  as  swamp  lands  within 


April,  1902.]     Diana  Shootikg  Club  i;.  Lamoreux.  907 

the  meaning  of  the  act  of  1850^  and  the  title  of  the  state- 
thereby  became  perfect  as  of  the  date  such  act  took  effect.  That 
title  was  just  as  perfect  when  the  patent  was  made  under  the 
state  act  of  1867,  to  the  corporation  under*  which  plaintifT 
claims,  as  it  was  on  the  day  it  became  Tested  in  the  state.  The 
statute  of  limitations  had  ^'^  not  then  run  against  the  state.  It 
was  interrupted  before  the  title  to  the  land  became  affected 
thereby.  Therefore,  the  corporation,  grantee  of  the  state,  ob- 
tained a  perfect  title  to  the  lands  described  in  its  patent. 

Counsel  for  respondent  call  attention  to  the  ruling  of  the 
land  department  th^t  the  conditions  existing  when  the  swamp 
land  act  took  effect  must  be  looked  to  to  determine  whether 
the  title  to  the  land  in  question  passed  to  the  state  thereunder,. 
and  contend,  as  we  understand  them,  that  the  same  rule  shoxdd 
goyem  in  determining  whether  the  state,  when  it  was  admitted 
into  the  Union,  took  the  title  to  the  land  as  territory  under 
navigable  waters.  It  is  sufficient  to  say  on  that  subject  that 
the  rule  to  which  counsel  refer,  citing  an  opinion  by  the  com- 
missioner of  the  general  land  office  (In  re  State  of  California,, 
14  Land  Dec.  Dep.  Int.  255),  applies  only  to  natural  bodies 
of  water,  not  to  artificial  lakes  created  by  trespassing  upon  the 
pafalic  domain.  The  lands  in  question,  as  stated,  were  part  of 
ibe  public  domain  of  the  United  States  when  they  were  surveyed 
by  its  authority.  The  artificial  condition  thereafter  adversely 
ereated  was  properly  treated  by  the  general  land  department 
as  ineffectual  to  diange  that  condition,  turning  the  land  into- 
the  subject  of  a  trust  for  a  state  to  be  formed.  After  the  pas* 
sage  of  the  swamp  land  act  it  devolved  upon  the  general  land 
department  to  decide  what  part  of  the  public  domain  was  af- 
fected thereby,  transferring  the  title  thereto  to  the  states. 
The  territory  in  question  was  in  due  form  approved  as  being  so* 
affected,  and  respondent  is  in  no  position  to  impeach  that  de* 
cision. 

What  has  been  said  removes  all  the  substantial  support  for 
the  judgment  appealed  from,  upon  which  the  trial  court  rested' 
it.  There  is  a  finding  that  appellant  was  never  in  the  exclu- 
sive possession  of  the  land.  Inasmuch  as  its  right  does  not 
rest  on  evidence  of  mere  possession,  but  is  based  on  a  good  ^^ 
paper  title  to  the  exclusive  use  of  the  land  for  all  purposes 
except  cutting  grass  and  pasturing  stock,  a  violation  thereof 
by  respondent  was  unquestionably  actionable:  Stephenson  v- 
Wilson,  37  Wis.  482. 

Bespondenfs  counsel   insist   that   appellant,  at  best,  was  ft 


^08  American  Statb  Bepobts^  Vol.  91.     [Wisconshiy 

mere  licensee,  hence  conld  not  maintain  this  action.     In  the 
^rst  place,  appellant's  right  was  not  that  of  a  mere   licensee. 
It  possessed  a  grant  for  a  term  of  yean,  created  by  a  written 
•oonyeyanoe,  of  the  ezclnsiye  right  to  the  premisee   for   KMBe 
purposes,  as  before  indicated.    That  created  the   rdation    of 
landlord  and  tenant  between  appellant  and  the  holder  of  the 
legal  title:  1  Wood  on  Landlord  and  Tenant,  2d  ed.,  sec.  2S^, 
In  the  second  place,  it  makes  no  difference  what  the  exact  iia« 
ture  of  appellant's  interest  in  the  premises  was,  since  the  eri- 
dence  is  conclnsiye  that  it  waa  wrongfully  riolated  by  respond- 
ent.   From  such  violation  a  cause  of  action  accrued  to  appel- 
lant to  recover  such  damages  as  were  proximately  caused  thoie- 
hj.    In  contemplation  of  law,  every  violation  by  one  person  of 
a  legal  right  of   another,  impairing   to   any   extent,  howe?er 
slight,  the  enjoyment  of  that  right,  is  an  actionable  wrong: 
Sutherland  on  Damages,  sec.  9.    The  constitution  guarantees 
a  remedy  in  aU  such  cases :  Const.,  art.  1,  sec.  9.    The  amount 
of  the  damages  suffered  or  recoverable,  whether  substantial  or 
merely  nominal,  is  no  test  of  the  right  to  a  judicial  remedy  fa> 
Tedress  a  wrong.     Counsel  for  respondent  seem  to  think  that 
no  recovery  can  be  had  in  this  case  unless  appellant  makes  out 
a  case  satisfying  all  the  eFsentials  of  a  common-law  action  of 
quare    clausum    fregit.    While  it  seems  that  such  essentials 
were  satisfied  by  the  evidence  in  this  case,  that  was  not  neces- 
sary.   It  was  sufficient  to  show  that  respondent  committed  a 
hostile  intrusion  upon  appellant's  legal  right  to  the  premises 
in  question:  Williams  v.  Esling,  4  Pa.  St.  486,  45  Ajcn.  Dee. 
710.    It  was  very  early  held  that  a  mere  wrongful  intrufion 
by  one  person  upon  a  legal  right  of  another,  regardless  of  the 
■amount  of  the  ^®  resulting  damages,  in  contemplation  of  bv 
is  both  an  injury  and  a  damage  and  is  a  subject  for  legal  re- 
dress :  Weller  v.  Baker,  2  Wils.  422 ;  Hobson  v.  Todd,  4  Tom 
Eep.  71. 

It  is  suggested  that  the  court  ought  to  hold  that  a  penon 
may  go  upon  the  land  of  another  to  hunt  or  fish  without  per- 
mission of  the  latter,  and  without  incurring  any  legal  liahilitF 
ior  so  doing,  so  long  as  such  person  does  not  cause  any  bA- 
•stantial  damage  to  such  other's  property  rights.  What  prin- 
ciple of  law  such  a  doctrine  could  be  grounded  upon  we  aie 
unable  even  to  suspect.  Every  person  has  a  constitutional  ri|^ 
to  the  exclusive  enjoyment  of  his  own  property  for  any  purpose 
which  does  not  invade  the  rights  of  another  person.  The  mm 
fact  that  fish  and  game,  in  their  natural  condition,  belong  to 


April,  1902.]     Diana  Shooting  Club  v.  Lamobbux.         909 

the  state  for  the  enjoyment  of  the  whole  people,  and  that  the- 
state  may  regulate  the  manner  of  such  enjoyment  by  compelling 
those  who  desire  to  participate  therein  to  take  out  licenses, 
does  not  militate  in  tiie  elightest  degree  against  the  property 
rights  of  others.  No  person  has  a  right  to  go  upon  the  land 
of  another  against  the  latter's  will,  or  to  so  intrude  upon  the 
right  of  such  other  to  the  exclusive  use  of  lands  for  any  pur- 
pose, merely  because  he  possesses  a  state  license  to  hunt.  Such 
a  license  does  not  affect  the  relations  of  the  licensee  with  such 
other  in  the  slightest  degree.  A  violation  of  the  latter's  rights^ 
by  such  person,  which  would  be  an  actionable  wrong  if  he  were 
not  armed  with  a  state  license  to  hunt,  would  be  such  a  wrong 
if  he  were  so  armed.  It  is  a  mistaken  notion  that  such  a  li» 
cense  gives  the  holder  thereof  any  right  whatever  to  trespass 
upon  the  property  of  others. 

The  evidence  in  this  case  does  not  show  that  appellant  suffered 
any  substantial  damage  by  the  wrongful  conduct  of  respondent 
Appellant  did  not  own  the  grass  that  was  tramped  down.  Tlie 
damage  caused  by  the  wrongful  conduct  was  merely  nominaL 
Appellant  should  have  been  allowed  upon  •^  the  evidence  to 
take  judgment  for  nominal  damages  and  costs. 

By  the  Court  The  judgment  of  the  circuit  court  is 
reversed,  and  the  cause  remanded,  with  directions  to  render 
judgment  in  favor  of  the  plaintiff  in  accordance  with  this 
opinion. 


The  TUles  of  Statutes  in  respeet  to  their  compliance  with  eonstitu- 
iional  requirements  are  considered  in  the  monographic  notes  to  Bobel 
V.  People,  64  Am.  St.  Bep.  70-107;  Crookston  v.  County  Commrs.^ 
79  Am.  St.  Bep.  456-486;  Lewis  v.  Dunne,  86  Am.  St.  Bep.  267-279. 

Piiblic  Lands.— 'THie  decisions  of  the  land  department  as  to  matters* 
within  its  jurisdiction  ordinarily  are  final  and  conclusiye:  See  Bates- 
V.  Halstead,  130  Cal.  62,  80  Am.  St.  Bep.  70,  62  Pac.  305;  Gage  v. 
Gnnther,  136  Cal.  338,  68  Pac.  710,  89  Am.  St.  Bep.  141,  and  case* 
eited  in  the  cross-reference  note  thereto.  Its  decision  that  land  is 
agricultural,  and  not  mineral,  determines  the  character  of  the  lami: 
German  Ins.  Co.  v.  Hayden,  21  Colo.  127,  52  Am.  St.  Bep.  206,  40 
Pac.  453. 

The  SicampLand  Act  of  Congress  in  1850  vested  title  in  the  re- 
spective states  from  its  date,  and  it  included  in  its  operation  sub- 
merged lands:  Sterling  v.  Jackson,  69  Mich.  488,  13  Am.  St.  Bep» 
405,  37  N.  W.  845.  This  position,  though  fortified  by  many  de- 
eisions,  is  no  longer  defensible:  Small  v.  Lutz,  41  Or.  570,  67  Pac. 
421,  69  Pac.  820;  Michigan  L.  ft  L.  Co.  v.  Bust,  168  U.  S.  589,  la 
Sup.  Ct.  Bep.  208;  Brown  v.  Hitchcock,  173  U.  8.  473,  19  Sup.  Ct.  Bep. 
465. 

Huntinp  and  Fishinp,— The  owner  of  property  has  the  exclusive 
right  of  hunting  and  fishing  thereon,  whether  it  is  upland  or  covered 
with  water.  And  anyone  entering  thereon  for  sporting  purposes  be- 
comes a  trespasser  and  may  be  punished  accordingly:  See  Sterling 


■910  American  Statb  Reports,  Vol.  91.     [Wisconsiii, 

V.  Jackson,  69  Mich.  488,  87  N.  W.  845,  13  Am.  St.  Bepw  405,  ■»*. 
•note;  Griffith  v.  Holman,  23  Wash.  347,  83  Am.  Bt.  Bep.  821,  eS 
Pac.  239;  Albright  v.  Cortright,  64  N.  J.  L.  330,  81  Anu  St-  Bep. 
■504,  45  Atl.  634.  One  who  has,  under  a  lease,  an  exclusive  right  of 
hunting  upon  a  game  preserve,  may  sue  to  enjoin  hunters  from  trev- 
passing  thereon:  Kellogg  v.  King,  114  Gal.  378,  55  Am.  St.  Bep. 
74,  46  Pac.  166. 


EOSSMILLEB  ▼.  STATE. 

[114  Wis.  169,  89  N.  W.  839.] 

OONSTIT  U  TIONAIi   lAW— Statutory   OonstnictloiL— An    «x- 

position  of  the  meaning  of  a  statute  in  the  statute  itself  cannot 
he  departed  from  hj  the  courts,  and  if  the  legislative  intent  in  the 
statute  is  plain,  such  intent  must  be  deemed  the  sole  purpose  of 
the  act,  however  unreasonable  or  absurd  the  statute  may  be.     Qk 

1>13.)  

OONSTlTUTlONAIi  LAW.— Ice  Formed  Naturally  upon  the 
public  waters  of  the  state  is  not  state  property,  in  a  proprietary 
-sense,  so  as  to  enable  the  state,  under  authority  of  a  statute,  to 
deal  with  it  by  sale  made  by  the  state^  or  otherwise,     (pp.  914,  915.) 

OOKSTITXmOKAL    LAW— Bights    In    Public  Waters.— The 

right  of  every  person  within  the  state  to  enjoy  its  public  waters 
for  every  legitimate  purpose,  including  the  cutting  and  appropria* 
tion  of  ice,  which  does  not  wrongfully  interfere  with'  the  right  of 
any  other  person  to  like  enjoyment,  subject  only  to  such  mere  poliee 
regulations  as  the  legislature  may,  in  its  wisdom,  prescribe  to  pre- 
serve the  common  heritage  of  all,  is  a  constitutional  right  of  all 
persons  within  the  state,     (p.  915.) 

NAYIGABLE  WATEBS^Blght  to  Ice.— The  state  has  no 
greater  right  to  sell  the  ice  that  forms  upon  its  navigable  waters 
than  to  sell  the  water  thereof  in  its  liquid  state,  or  the  fish  that 
inhabit  the  water,  or  the  wild  fowl  that  resort  thereto.  It  can  do 
neither,     (p.  916.) 

NAVIGABLE  WATEBS— Bight  to  Take  lea.- Whenever  the 

title  to  beds  of  navigable  waters  is  in  the  state  for  publie  purpose^ 
all  of  the  incidents  of  public  waters  at  common  law  exist,  ineludiag 
4he  public  right  of  taking  ice  therefrom  to  the  same  extent  as  the 
Hght  of  taking  fish.     (p.  919.) 

NAVIGABLE  WATEBS  of  the  State  have  substantiany  the 
incidents  of  tidal  waters  at  common  law.  The  rights  of  the  pub- 
lic therein  are  the  same,  and  the  state  cannot  interfere  therewith 
except  by  police  regulation,     (p.  ^9.) 

NAVIGABLE   WATEBS— Bights  to   Ice.— The   steto  has  as 

-such  interest  in  the  natural  ice  on  its  navigable  waters  that  it  esa 
treat  it  as  a  subject  for  bargain  or  sale,  or  grant  it  away  to  private 
owners  under  the  guise  of  the  police  power,  or  otherwise.  It  is  a 
mere  trustee  of  the  title  thereto  with  no  power  thereover  except 
that  of  mere  regulation  to  preserve  the  common  right  of  all.    (pi 

«20.)  

OONSTITXJTIONAL  LAW— Bights  in  Ice.— The  stete  caa  as 
more  appropriate  to  itself  the  ice  formed  upon  its  navigable  wat«rf 
than  one  person  can  rightfully  appropriate  the  property  of  another 
without  his  consent  and  pass  the  title  by  bargain  and  sale  or  oikth 


April,  1902.]  Rossmiller  v.  State.    .  911 

-wifie.  The  whole  benefieial  use  in  (wich  ice  is  vested  in  all  of  the 
people  within  the  state  as  a  elass,  and  any  law  invading  such  use 
is  an  invasion  of  the  right  to  liberty  and  property,  without  due  pro- 
cess of  law.     (p.  921.) 

Error  to  review  a  judgment  convicting  plaintifi  of  a  violation 
of  the  statute  mentioned  in  the  opinion. 

Kearney,  Thompson  &  Myers  and  J.  L.  O'Connor,  for  the 
plaintiff  in  error. 

E.  R.  Hicks,  attorney  general,  and  E.  N.  Warner,  for  tiie 
•defendant  in  error. 

^"^  MARSHALL,  J.  Is  chapter  470  of  the  Laws  of  1901 
Talid?  That  is  the  only  question  involved  in  this  case.  An 
AflBrmative  answer  would  require  an  affirmance  of  the  judgment, 
And  a  negative  answer  a  reversal  thereof,  and  a  direction  to 
the  trial  court  to  discharge  the  plaintiff  in  error. 

There  is  no  room  for  controversy,  either  as  to  the  intent  of 
the  law-making  power  in  the  enactment  here  called  in  question, 
-or  but  that  both  the  legislative  and  executive  idea,  in  placing 
the  same  on  the  statute  book,  was  that  it  dealt  with  a  subject 
of  vast  importance  to  the  state.  There  are  some,  striking  fea- 
tures in  the  act  indicating  that  with  all  the  certainty  of  a 
mathematical  demonstration.  The  severe  penalties  and  for- 
feitures ^'^^  provided  for,  of  themselves,  clearly  evidence  the 
magnitude  of  the  state  interest  which  those  concerned  in  the 
legislation  supposed  they  were  conserving.  The  act  allows  no 
•one  to  cut  ice  on  the  meandered  lakes  of  the  state  for  ship- 
ment beyond  its  borders,  regardless  of  the  extent  of  his  opera- 
tions, without  first  giving  a  bond  to  the  state  in  the  sum  of  ten 
thousand  dollars.  A  person  who  makes  a  false  statement  of  the 
extent  of  his  operations  to  the  Secretary  of  State,  whether  will- 
fully or  otherwise,  is  made  guilty  of  the  crime  of  perjury  and 
€ubjected  to  punishment  therefor  under  the  criminal  laws  of 
the  state  which  were  designed  to  deal  with  that  serious  offense. 
Any  citizen  of  the  state  is  armed  with  authority  to  set  judicial 
machinery  in  motion  in  any  of  its  circuit  courts,  to  collect  any 
indebtedness  that  may  accrue  to  it  for  ice  taken  from  its  mean- 
dered lakes  by  any  licensee.  A  person  concerned  in  cutting 
any  such  ice  and  shipping  the  same  out  of  the  state,  contrary 
to  such  act,  regardless  of  his  part  in  the  operations,  even 
though  it  be  that  of  a  mere  employ^,  and  regardless  of  whether 
he  acts  with  or  without  knowledge  that  no  license  has  been 
obtained  to  authorize  such  operations,  and  of  the  extent  of  his 


912  American  State  Reports,  Vol.  91.     [Wisconsin^ 

work^  is  made  guilty  of  a  misdemeanor  in  addition  to  aU  oUier 
offenses  he  may  be  guilty  of  under  the  act,  and  ia  made  subject 
to  punishment  for  sueh  independent  offense  by  a  fine  of  not 
less  than  one  hundred  dollars  nor  more  than  one  thousand  dol* 
lars;  or  imprisonment,  presumably  in  the  county  jail,  of  not 
less  than  thirty  days;  or  such  imprisonment,  presumably  in  the 
state  prison,  for  the  full  term  of  one  year,  and  at  hard  labor, 
we  must  assume,  and,  as  in  other  cases  of  impr^somnatit  in  tbe 
state  prison,  with  a  reasonable  period  of  solitary  confinement. 
If  any  person  fails  to  make  a  report  to  the  Secretary  of  State 
of  the  ext^it  of  his  operations,  regardless  of  the  cause  of  suck 
failure,  or  to  pay  the  purchase  price  for  the  ice  taken  by  him, 
regardless  of  the  amount  in  default,  he  is  made  liable  upon  his 
bond,  filed  with  the  Secretary  of  State,  in  the  sum  of  five  thou- 
sand dollars. 

1T7  Those  drastic  provisions  cannot  be  made  to  harmonize 
at  all  with  reason  and  common  sense,  except  upon  the  theory 
that  it  was  supposed  a  source  of  great  wealth  for  the  state 
to  draw  from  to  meet  its  legitimate  expenses  existed  in  the 
ice  i^iihich  annually  forms  upon  its  navigable  waters;  that 
such  source  had  remained  undiscovered  and  unenjoyed  by  the 
rightful  owner  so  long,  and  the  importance  of  laying  hold 
thereof  for  its  legitimate  use  was  so  great,  and  the  right  of  the 
matter  was  so  plain  in  fact,  yet  so  misunderstood  by  those  who 
had  for  years  enjoyed  the  opportunity  apparently  open  to  all  as 
of  right,  that  it  was  the  duty  of  the  legislature,  not  only  to  pro- 
claim the  property  right  of  the  state,  but  to  take  thereto  its  own 
vrith  such  an  indication  of  the  strength  of  its  position,  and  the 
heinous  character  of  any  interference  with  its  title,  as  not  to  ad* 
mit  of  any  reasonable  excuse  therefor,  and  so  as  to  leaye  no  rea- 
sonable ground  to  expect  that  any  person  would  venture  to  so 
interfere.  In  that  view,  it  seems,  the  law  in  question  was  con- 
ceived and  brought  forth,  giving  to  that  which  has  been  sup- 
posed, since  the  organization  of  the  state,  to  be  the  common  her- 
itage of  all,  such  an  indelible  stamp  of  absolute  state  ownership 
that  no  right-minded  person  would  dare  violate  it.  In  that 
aspect  the  law  calls  for  the  most  careful  consideration — ^more 
than  the  ordinary  care,  we  should  say,  devoted  to  constitutional 
questions.  There  must  be  some  added  care,  constituting  a  fit- 
ting recognition  of  the  unusual  importance  which  the  law-mak- 
ing power  seems  to  have  ascribed  to  the  act. 

We  are  not  troubled,  as  is  sometimes  the  case,  to  determine 
just  what  is  the  legislative  idea  embodied  in  the  acL    Both  the 


April,  1902.]  Bossmillsr  v.  Statb*  91S 

legislative  and  executive  branches  of  the  law-making  povrer^  er 
indostria,  made  that  so  plain  in  the  act  itself  that  it  would  be 
a  reflection  on  their  efforts  in  that  regard  to  go  outside  thereof 
to  find  reasons  to  support  the  law  by  viewing  it  from  a  different 
standpoint  than  its  makers  intended.    ^'^^  Courts  look  to  the- 
langxiage  of  a  law  to  discover  the  intent  thereof.    When  that 
discovery  is  made^  such  language  is  taken  as  expressing  only  such 
intent;  even  though  a  different  meaning  might  be  gathered  there- 
from.   VattePs  rule  for  judicial  construction,  so  often  quoted 
by  courts,  applies  to  this  law :  "It  is  not  allowable  to  interpret 
what  has  no  need  of  interpretation.    When  the  meaning  of  a 
law  is  evident,  to  go  elsewhere  in  search  of  conjecture  in  order 
to  restrict  or  extend  the  act  would  be  an  attempt  to  elude  it — ^a 
method  which,  if  once  admitted,  would  be  exceedingly  danger- 
ous, for  there  would  be  no  law,  however  definite  and  precise  in 
its  language,  which  might  not  by  interpretation  be  rendered  use- 
less*' :  Gilbert  v.  Dutruit,  91  Wis.  661,  65  N.  W.  611 ;  State  v^ 
Kyan,  99  Wis.  123,  74  N.  W.  644.    Of  course,  the  error  in  judi. 
cial  administration  that  rule  is  designed  to  guard  against,  which 
would  make  a  good  law  bad  or  useless  by  interpretation,  would 
make  a  void  enactment  good  by  the  same  means.    There  is  a 
further  feature  of  Vattel's  rule,  expressed  thus :  "Where  the 
meaning  is  evident,  and  leada  to  no  absurd  conclusion,  there  can 
be  no  reason  for  refusing  to  admit  the  meaning  which  the  words 
naturally  represent.^'    It  is  fundamental  that  if,  giving  to  the- 
words  of  an  act  their  literal  or  natural  meaning,  the  conclusion 
reached  would  be  unreasonable  or  absurd,  some  other  meaning^ 
within  the  reasonable  scope  of  the  words  may  be  adopted  to 
avoid  that  result,  if  it  appears  that  such  other  meaning  may 
probably  have  been  the  one  intended:  Harington  v.  Smith,  28- 
Wis.  43 ;  Mason  v.  Ashland,  98  Wis.  640,  545,  74  N".  W.  357 ; 
Wisconsin  Industrial  School  for  Girls  v.  Clark  Co.,  103  Wis. 
661,  79  N".  W.  422.    However,  where  the  apparently  absurd 
meaning  is  unquestionably  the  real  one,  the  law  must  stand  with 
such  meaning  or  fall  altogether.    So  it  will  be  seen  that  the  pri- 
mary purpose  of  the  law  must  be  kept  in  view  in  determining 
whether  it  is  valid  or  not.    It  is  the  legislative  will  that  must 
stand  the  test  in  determining  whether  the  act  is  good  or  bad.. 
^'^  Looking  to  the  language  of  the  law  here,  that  will  seems  un- 
mistakable.   If  the  consequences,  looking  at  the  law  from  that 
standpoint,  appear  fatal,  we  are  precluded  from  searching  for  a 
different  purpose,  because  the  legislature  has  declared  its  intent 

Am.   St   Rep.,  Vol.  91—58 


914  Amebican  Statb  Beports,  Vol.  91.     [WiBoonsiii, 

in  section  9.    The  only  legitimate  office  of  the  section  is  to  give 
to  the  act  a  clear  legislative  construction,  binding  on  the  conrta. 
That  is,  strictly  within  the  power  of  the  legislature  to  do. 
That  is,  the  legislature  may  embody  in  an  act  an  exposition 
thereof,  setting  forth  the  meaning  of  the  language  used,  and 
thereby  preclude  courts  from  considering  the  subject  further, 
perhaps,  than  to  determine  whether  such  meaning  can  reasonably 
lye  ascribed  to  their  language :  Jones  v.  Surprise,  64  N.  H,  243, 
-245,  9  Atl.  384;  State  v.  Schlenker,  112  Iowa,  642,  84  -\m.  St. 
Bep,  360,  84  N.  W.  698.     That  must  be  the  law,  since  the  only 
•office  of  judicial  construction  of  a  law,  as  before  indicated,  is  to 
enable  the  court  to  see  the  language  thereof  in  the  same  light  the 
legislature  did.    When  it  speaks  plainly  on  that  snbject  in  th? 
law  its€flf,  all  judicial  rules  for  construction  are  set  aside  or  ren- 
dered ^useless.    If  we  were  able  to  pass  the  apparently  plain 
meaning  of  the  act,  aided  by  the  equally  plain  legislative  dedaia- 
tion  in  that  regard,  we  would  yet  have  to  pass  the  explicit  expo- 
sition of  the  law  made  by  the  executive  when  he  gave  it  his  ap- 
proval, which  we  may  properly  look  to  in  cases  of  doubt,  before 
reaching  a  field  where  any  other  purpose  could  be  assigned  to  the 
enactment  than  to  deal  with  ice  formed  on  the  meandered  lakes 
of  the  state  as  its  property — ^to  seU  privil^es  to  enjoy  such  prop- 
certy,  for  pul>lic  revenue  only. 

What  has  been  said  leads  up  to  this  as  the  vital  question:  Is 
ice,  formed  naturally  upon  the  public  waters  of  the  state,  state 
property  in  a  proprietary  sense — ^property  which  it  can  deal  with 
as  a  private  person  deals  with  his  property  rights  ?  It  must  be 
assumed  without  discussion  that  no  property  right  was  acquired 
by  the  state  by  the  mere  legislative  declaration  that  ice  formed 
upon  meandered  lakes  within  the  boundaries  *®®  of  the  state  be- 
longs to  the  state  as  property.  The  legislature  has  no  such  ar- 
bitrary power,  under  our  constitutional  system,  as  that  of  chang- 
rng  the  nature  of  the  ownership  of  property  by  its  mere  fiat.  It 
-can  no  more  accomplish  that  result  in  that  way  than  it  can 
change  the  laws  of  nature  by  a  legislative  declaration.  Ice 
formed  on  public  water  is  the  absolute  property  of  the  state,  in- 
•dependent  of  any  legislative  assertion  in  that  regard,  or  not  at 
:alL  We  would  not  for  a  moment  indulge  in  the  idea  that  any 
Tjranch  of  the  law-making  power,  responsible  for  placing  upon 
the  statute  books  the  enactment  in  question,  thought  otherwise. 
The  declaration  as  to  state  ownership  was  a  mere  proclamation 
that  henceforth  the  state  proposed  to  sell  its  ice,  or  give  it  away, 
According  as  the  same  was  desired  for  domestic  consumption  or 


April,  1902.]  RoBSMiLLBB  V.  Statb.  915 

shipment  outside  the  state,  it  being  supposed,  as  indicated  by 
the  executiye  approval  of  the  enactment,  that  the  fact  of  state 
-ownership  was  not  open  to  question.  Of  course,  if  in  that  there 
was  a  misconception  of  the  law,  the  law  remains  unchanged  not- 
withstanding. "An  enactment  of  the  legislature  based  on  an 
-evident  misconception  of  what  the  law  is  will  not  have  the  ef- 
fect, per  se,  of  changing  the  law  so  as  to  make  it  accord  with  the 
misconception" :  Byrd  v.  State,  67  Miss.  243,  247,  34  Am.  Eep. 
440. 

What  is  the  real  nature  of  the  state's  interest  in  ice  formed 
•upon  its  public  waters,  if  it  were  not  for  the  attitude  of  the  law- 
making power  as  indicated,  we  must  confess,  in  the  light  of  the 
repeated  decisions  of  this  an^  other  courts,  would  not  seem  to  be 
open  to  serious  question.    As  matters  stand,  we  feel  constrained 
to  say    it  appears  that  the  indications,  from  the  origin  of  the 
state's  interest  in  public  waters  and  the  purposes  to  be  served 
thereby,  and  the  judicial  declarations  in  regard  thereto  in  this 
and  other  courts,  are  on  one  side  of  the  controversy,  and  the 
legislation  is  upon  the  other.    Unless  that  appearance  can  be 
changed,  since  the  proposition  involved  is  purdy  of  a  judicial 
character,  there  can  be  no  question  ^®*  as  to  which  view  must 
prevail.     It  has  been  universally  supposed,  we  venture  to  say, 
that  the  right  of  every  person  within  the  state  to  enjoy  its  public 
waters  for  every  legitimate  purpose,  including  the  cutting  and 
appropriation  of  ice,  which  does  not  wrongfully  interfere  with 
the  right  of  any  other  person  to  like  enjoyment,  subject  only  to 
such  mere  police  regulations  as  the  legislature  may  in  its  wisdom 
prescribe  to  preserve  the  common  heritage  of  all,  is  a  constitu- 
tional right  of  all  persons  within  the  state.     While  the  language 
used  in  speaking  of  the  subject  is  sometimes  restrictive,  looking 
at  the  same  only  in  the  literal  sense  thereof,  in  that  it  points 
only  to  the  people  of  the  state,  obviously  the  rule  includes  all 
people  lawfully  within  the  state,  whether  of  the  state,  in  the 
sense  of  being  residents  thereof,  or  otherwise.    It  has  not  been 
supposed  that  the  state  could  deal  with  public  waters,  or  with 
any  other  thing  held  upon  a  like  trust  to  that  of  such  waters,  as 
the  proprietor  thereof — that  any  such  thing  could  be  treated  in 
any  respect  as  the  absolute  property  of  the  state,  and  used  for 
purposes  of  revenue.     Obviously,  there  can  be  no  difference  be- 
tween public  water  in  a  liquid  condition  and  in  the  form  of  ice, 
or  between  water  and  the  land  covered  thereby,  or  the  fish  or 
fowls  which  inhabit  the  same,  or  any  of  the  animals  ferae  nat- 
urae, in  respect  to  sovereign  authority  over  the  same.    If  one 


^16  American  Statb  Bepobtb,  Vol.  91.     [WkoonsiOy. 

may  be  dealt  with  as  the  absolute  property  of  the  state,  the  other* 
may  be.    It  follows  that,  if  the  legislation  in  question  be  yalid, 
the  right  to  take  water  from  navigable  lakes  for  shipment,  though 
it  in  no  way  aflfect  the  character  thereof  for  other  public  pur* 
poses,  and  the  right  to  iish  and  hunt,  may  be  ftubjects  of  sale  hj 
the  state  for  the  mere  purpose  of  adding  to  the  public  revenues; 
those  things  which  have  been  supposed  to  be  public  and  for  the 
individual  enjoyment  of  all  without  restraint,  other  than  by 
sonable  police  regulations  to  preserve  their  character  in  that 
gard,  things  above  sovereign  authority  to  barter  in  as  in  ancient 
systems  entirely  foreign  to  ours,  will  ***  ceaae  to  hare  that 
character  in  fact,  and  our  notions  in  regard  thereto  will  have  to 
be  readjusted  to  the  newly  established  condition — ^that  whidi  re* 
gards  the  state,  not  as  a  mere  trustee  for  the  whole  people,  of 
the  subjects  we  have  mentioned,  but  as  the  absolute  owner 
thereof,  with  power  to  deal  therewith  as  a  private  person  might 
if  he  were  such  owner. 

After  the  most  painstaking  investigation  which  we  can  give  to 
the  act  under  consideration,  to  the  end  that  it  may  be  sustained,, 
if  possible,  we  confess  our  inability  to  discover  anything  in  rea- 
son or  authority  to  support  the  idea  of  state  ownership  of  ice 
formed  on  public  waters.     The  learned  attorney  general,  after 
exhausting,  we  must  assume,  the  resources  of  his  office  to  that 
end,  has  not  been  able  to  aid  us.    His  printed  brief  and  oral 
argument  as  well  are  implied  confessions  thereof,  and  without 
any  reflection,  we  will  say  in  passing,  upon  either  his  industry 
or  ability  in  the  discharge  of  official  duty.    The  attorney  general 
makes  suggestions  in  regard  to  how  the  law  might  be  held  valid, 
by  assuming  that  its  purpose  is  other  than  merely  to  traffic  in 
ice;  but,  as  we  view  the  law,  we  are  not  warranted  in  depaxtmg 
from  that  purpose.    We  will  say,  however,  that  if  we  could  see 
any  legislative  intent  to  exercise  police  power  to  prevent  injury 
to  common  rights  by  depleting  navigable  waters,  as  the  eonrt 
found  in  Sanborn  v.  People's  Ice  Co.,  82  Minn.  43,  83  Am.  St 
Rep.  401,  84  N.  W.  641,  cited  to  our  attention  with  confidence 
by  counsel  for  the  state,  we  should  hesitate  before  announcing 
that  the  taking  of  ice  from  a  large  body  of  navigable  water  could 
be  reasonably  legislated  against  as  interfering  with  common 
rights  by  reducing  the  level  of  the  lake.    It  was  held  in  that 
case,  in  accordance  with  elementary  principles,  that  the  taking 
of  ice  from  public  waters,  by  anyone  who  can  lawfully  gain 
access  thereto,  is  a  constitutional  privilege— one  common  to  all 
persons;  and,  impliedly,  that  legislative  power  in  repaid  thereto 


April,  1&02.]  BoaaMiLLEB  v.  Statb.  917 

extends  only  to  such  reasonable  regulations  as  will  prevent  the 
•enjoyment  by  one  person  from  invading  *®*  the  common  right 
of  enjoyment.    There  la  no  suggestion  in  the  opinion  of  the 
'Court  that  ice  formed  on  pnblic  waters  is  a  subject  of  state  own- 
ership—-property  which  it  can  sell  to  replenish  its  treasury.    The 
•actioii  wsB  grounded  on  the  right  of  a  riparian  proprietor  to  pre- 
sent injury  to  his  riparian  rights  by  a  lowering  of  the  level  of 
the  water.    Two  members  of  the  courts  in  a  vigorous  dissenting 
x>pinion  which  indicates  much  study  of  the  subject,  gave  as  their 
view  of  the  law  that  the  right  to  take  ice  from  public  waters  for 
the  consumption  of  the  takers,  or  for  sale  as  an  article  of  com- 
merce, is  common  to  all,  and  is  so  superior  to  riparian  rights 
that  the  owner  of  the  latter  cannot  interfere  with  the  enjoyment 
-of  the  former  on  the  ground  that  it  reduces  the  level  of  the  water. 
This  reason  is  advanced  in  Sanborn  v.  People's  Ice  Co.^  82 
Ifinn.  43,  83  Am.  St.  Bep.  401,  84  N.  W.  641,  for  the  conclusion 
there  reached,  which  we  are  nrged  by  counsel  for  defendant  in 
error  to  adopt:  While  ice  formed  on  public  waters  is  common 
property,  it  is  not  such  property  for  purely  commercial  purposes ; 
no  one  has  an  absolute  right  to  appropriate  therefrom  more  than 
lie  needs  for  his  domestic  use.    If  that  were  so,  it  woidd  not  fol- 
low that  the  surplus  ice  belongs  to  the  state  and  may  be  appro- 
priated for  revenue  purposes.    But  the  doctrine  itself  seems  to 
l)e  out  of  harmony  with  all  well-recognized  principles  of  public 
waters.     As  suggested  in  the  dissenting  opinion,  if  the  privilege 
io  take  ice  only  entitles  each  person  to  sufficient  of  the  common 
stock  for  his  domestic  needs,  then  the  common  privileges  of  fish* 
ing  and  hunting  must  be  likewise  limited.    We  are  not  aware  of 
^my  such  limitation.    The  right  to  take  game  for  sale,  or  to  take 
water  or  ice  from  the  public  stock  for  that  purpose,  has  never 
been  questioned  under  our  system,  so  far  as  we  are  aware.    To 
establish  the  contrary  would  be  a  most  serious  impairment  of 
common  rights  in  navigable  watere.    Those  rights  cannot  be  too 
•carefully  guarded.    That  they  extend  to  the  taking  of  ice  for 
sale,  as  well  as  for  the  domestic  ^^^  use  of  the  appropriator^  has 
been  repeatedly  held  where  public  rights  in  such  waters  are  no 
more  extensive  or  clearly  defined  and  maintained  than  in  this 
state.     In  People^s  Ice  Co.  v.  Davenport,  149  Mass.  322, 14  Am. 
St.  Bep.  425,  21  N.  E.  385,  the  oonrt  said :  ''It  is  too  well  settled 
to  be  disputed  that  the  property  in  the  great  ponds  is  in  the 
commonwealth,  that  the  public  have  the  right  to  use  them  for 
fishing,  fowling,  boating,  skating,  cutting  ice  for  use  or  sak^  and 
other  lawful  purposes.'^ 


918  American  State  Bbpobts^  Vol.  91.     [Wisoonnn^ 

The  supreme  court  of  lowa^  in  Brown  y.  Cnnnin^iam,  82* 
Iowa,  512,  516,  48  N.  W.  1042,  used  this  vigorous  language  in 
condemning  the  idea  of  government  ownership,  strictly  so  called^ 
in  public  water:  'rrhe  government  has  no  more  property  in  the 
water  than  a  riparian  owner  or  the  public.  The  b^efieent- 
Creator  opened  the  fountains  which  filled  the  stream  for  the  ben-- 
efit  of  his  creatures,  and  has  bestowed  no  power  upon  man  ar 
governments  created  by  man  to  defeat  his  beneficence.  OT 
course,  the  use  of  the  water  may  be  regulated  by  the  state,  but  ther 
state  may  not  forbid  its  use  to  the  people.'' 

In  the  state  of  Maine  it  is  held  that  the  limit  of  state  author^ 
ity  to  interfere  with  the  taking  of  ice  from  public  waters  is  tiie^ 
making  of  regulations  which  will  preserve  the  common  right  to 
do  so:  Barrows  v.  McDermott,  73  Me.  441;  Woodman  v.  Pit- 
man, 79  Me.  456, 1  Am.  St.  Rep.  342,  10  AtL  321.    In  Brastow 
V.  Bockport  Ice  Co.,  77  Me.  100,  it  was  held  that  the  right  to^ 
take  ice  from  a  navigable  lake  is  the  common  right  of  all,  and  is- 
govemed  by  the  same  rule  as  the  public  right  to  boat  and  fish» 
In  Woodman  v.  Pitman,  79  Me.  456,  1  Am.  St  Bep.  342,  10- 
Atl.  321,  it  was  held  that  the  right  to  take  ice  from  navigable 
waters  is  as  absolute  as  the  right  to  walk  upon  the  ice.     In  Bow-- 
ell  V.  Doyle,  131  Mass.  474,  the  court  said :  ^Tlie  right  of  fishing,, 
as  well  as  the  right  of  taking  ice  in  a  great  pond,  ia  a  public 
right,  which  every  inhabitant  who  can  obtain  access  to  the  pond 
without  trespass  may  exercise,  so  long  as  he  does  not  interfere 
with  the  reasonable  exercise  ^^  by  others  of  these  and  like- 
rights  in  the  pond,  and  complies  with  any  rules  established  by 
the  legislature  or  under  its  authority.^ 

It  must  be  understood,  in  considering  the  above,  that  the  refer*- 
ence  to  legislative  regulations  refers  merely  to  such  as  the  law* 
making  power  may  adopt  for  the  purpose  of  preserving  the  com- 
mon rights,  not  to  such  as  may  be  enacted  to  abridge  or  destroy 
those  rights  by  treating  the  ice  as  state  property  instead  of,  if 
property  at  all  in  its  natural  state,  that  of  the  whole  people.    In. 
Wood  V.  Fowler,  26  Kan.  682,  40  Anu  Sep.  330,  the  court  said, 
in  effect,  that  the  right  to  take  ice,  as  the  right  to  take  fish  in 
public  waters,  is  in  the  whole  people,  and  that  the  first  taker 
becomes,  by  his  act  of  actual  appropriation,  the  owner.    The 
same  was  held  in  Concord  Mfg.  Co.  v.  Bobertson,  66  N.  H.  1,  25- 
Atl.  118,  and  is  laid  down  by  text-writers  as  elementary:  Gould 
on  Waters,  sec.  191. 

Prom  the  foregoing  it  will  be  seen  that  wherever  the  title  tee- 
the beds  of  navigable  waters  is  in  the  state  for  public  purposes^ 


April,  1902.3  Robsmillbb  v.  Statb.  919 

all  the  incidents  of  public  waters  at  common  law  exists  and  that 
they  inclnde  the  public  right  of  taking  ice  to  the  same  extent  a& 
the  right  of  taking  fish. 

Up  to  this  point  we  have  not  referred  to  authority  in  our  owni 
state^  becanse  we  have  none  that  applies,  except  in  principle. 
We  have  abundance  of  judicial  authority  that  applies  when  it  is^ 
understood,  as  the  fact  is,  as  clearly  indicated  by  what  has  been^ 
said,  that  the  right  to  take  ice  from  navigable  lakes  is  of  the 
same  nature  as  any  of  the  incidental  rights  of  the  people  in  such 
waters.     We  have  demonstrated  that,  as  it  seems,  if  it  can  be 
done  by  reference  to  authority.    We  have  by  no  means  exhausted 
the  decisions  of  the  courts  on  the  subject,  but  it  seems  useless  to 
add  more,  since  there  are  no  contrary  decisions.    We  are  safe  in 
saying  that  no  court  has  more  definitely  declared  that  the  inter* 
est  of  the  state  in  its  navigable  waters  and  the  lands  under  them^ 
and  all  the  incidents  thereof,  are  purely  of  a  trust  character,  the 
beneficiaries,  *®*  on  a  plane  of  perfect  equality,  being  the  whole 
people  of  the  state,  than  this  court  has  done  in  recent  years.    In 
doing  that,  it  is  believed^  the  people  have  been  rescued  from  all 
dangers  of  losing  any  of  those  common  rights  by  the  invasion 
thereof  b j  claims  of  private  owners,  if  such  dangers  ever  existed^ 
That  judicial  service  would  be  of  little  value  if  mere  state  owner- 
ship for  the  preservation  of  the  common  rights  were  so  perverted 
as  to  support  a  claim  of  state  ownership  in  hostility  to  such 
rights,  a  principle  which,  in  the  possibilities  of  its  development^ 
might  lead  to  a  serious  impairment,  if  not  utter  ruin^  of  a  most 
important  trust.     Such  a  consummation  would  be  a  very  demor- 
alizing example  of  how  the  subject  of  a  trust  may  be  converted 
to  the  private  benefit  of  the  trustee. 

This  court  has  repeatedly  said  that  the  navigable  waters  of 
the  state  have  substantially  the  incidents  of  tidal  waters  at  com- 
mon law ;  that  the  title  to  the  beds  of  such  waters  was  reserved 
for  the  state  by  the  ordinance  of  1787,  and  vested  in  it  at  the 
instant  it  was  admitted  into  the  Union,  to  preserve  the  public 
character  of  such  waters  with  all  such  incidents;  and  that  the 
state  never  has  and  never  can  constitutionally  impair  the  trust : 
McLennan  v.  Prentice,  85  Wis.  427,  444,  65  N.  W.  764 ;  Willow 
Kiver  Club  v.  Wade,  100  Wis.  86,  113,  76  N.  W.  273;  Priewe  v. 
Wisconsin  etc.  Co.,  93  Wis.  634,  550,  67  N.  W.  918 ;  Priewe  v. 
Wisconsin  etc.  Co.,  103  Wis.  637,74  Am.  St.  Rep.  904,  79  N.  W. 
780;  Pewaukee  v.  Savoy,  103  Wis.  271,  274,  74  Am.  St.  Eep. 
850,  79  N.  W.  436 ;  Mendota  Club  v.  Anderson,  101  Wis.  479„ 
78  N,  W.  186 ;  Illinois  S.  Co.  v.  Bilot,  109  Wis.  418,  83  Am.  St. 


920  American  Statb  Bbpobts^  Vol.  91.     [Wisconsin, 

Bep.  905,  84  N.  W.  855,  85  N.  W.  402 ;  Attomqr  General  ▼. 
Smith,  109  Wis.  533,  85  N.  W.  512.  In  McLennan  y.  Prentice^ 
•quoting  from  the  opinion  of  Mr.  Justice  Field  in  Illinois  Cen- 
tral By.  Co.  V.  Illinois,  146  XT.  S.  387, 13  Sup.  Ct  Bep.  110,  the 
«ourt  said :  ''The  right  which  the  state  holds  in  these  lakes  is  in 
virtue  of  its  sovereignty  and  in  trust  for  public  purposes  of  navi- 
gation *®^  and  fishing.  The  state  has  no  proprietary  interest 
in  them,  and  cannot  abrogate  its  trust  in  relation  to  them.'' 

In  Priewe  v.  Wisconsin  etc.  Co.,  93  Wis.  534,  67  N.  W.  918, 
and  again  in  the  same  case  in  103  Wis.  537,  74  Am.  St.  Bep. 
904,  79  N.  W.  780,  it  was  held,  in  diect,  that  the  state  has  no 
such  interest  in  the  beds  of  navigable  lakes  that  it  can  treat  the 
same  as  a  subject  f<^  bargain  and  sale,  or  grant  the  same  away 
to  private  owners  under  the  guise  of  police  power  or  otherwise; 
that  it  is  a  mere  trustee  of  the  title  thereto,  under  a  trust  created 
before  the  state  was  formed,  to  which  it  was  appointed  as  trustee 
by  its  admission  into  the  Union;  that  it  has  no  active  duty  to 
perform  in  respect  to  the  matter,  or  power  over  the  same,  except 
that  of  mere  regulation  to  preserve  the  common  right  of  all; 
that  its  power  over  the  res  is  limited  by  the  original  purpose  of 
the  trust;  that  it  is,  in  effect,  a  mere  trustee  of  an  express  trusty 
a  trustee  with  duties  definitely  defined.    Those  principles  are 
too  firmly  established  to  admit,  at  this  late  day,  of  being  seriooBly 
questioned.    It  seems  clear  that  if  the  state  cannot  sell  the  bed 
of  a  navigable  lake,  it  cannot  sell  the  waters  thereof,  or  the  fish 
therein,  or  the  fowls  that  resort  to  its  surface,  or  the  ice  that 
forms  thereon.    The  rules  that  limit  its  right  as  to  one  of  those 
matters  limit  its  power  as  to  all. 

The  foregoing  seems  not  only  to  leave  no  reasonable,  but  no 
possible,  doubt  as  to  the  conclusion  which  ought  to  be  reached  in 
this  case.  It  stamps  the  act  in  question,  indelibly,  as  the  result 
of  a  misconception  of  the  state's  interest  in  navigable  lakes,  and 
as  being  baseless  and  imconstitutional.  The  title  to  the  beds  of 
such  lakes  is  in  the  state,  but  not  for  its  own  use  as  an  entity. 
The  mere  naked  legal  title  rests  in  the  state,  but  the  whole  bene- 
ficial use  thereof,  including  the  use  of  the  ice  formed  thereon,  is 
nested  in  the  people  of  the  state  as  a  class.  The  class  opens  to 
let  out  all  who  pass  b^'ond,  and  to  let  in  all  who  come  within,  its 
borders.  Presence  within  the  state  is  all  that  is  necessary  to 
participate  in  the  *®®  common  right.  Any  law  to  the  contrary 
violates  the  fourteenth  amendment  to  the  federal  constitution, 
guaranteeing  all  persons  within  the  jurisdiction  of  the  state  the 
equal  protection  of  the  laws.    The  state  can  no  more  appropriate 


April,  1902.]  BoesiOLLSB  v.  Statb.  921 

4o  itself  the  ice  formed  upon  its  navigable  lakes^  or  other  nayi- 
^ble  waters,  than  one  person  can  rightly  appropriate  the  prop- 
erty of  his  neighbor  against  the  tatter's  will^  and  pass  that  title 
by  bargain  and  sale,  or  otherwise,  to  the  third  person.  Since  the 
-whole  beneficial  nse  of  navigable  lakes  is  unchangeably  vested  in 
the  people,  everyone  within  the  state  having  the  right  to  enjoy 
the  same  so  long  as  he  does  not  invade  the  like  right  of  another, 
nvithont  any  interference  by  claim  of  paramount  right  to  the  sub. 
Jeet  thereof,  any  law  invading  that  individual  possession  is^  in 
-effect,  an  invasion  of  the  right  to  liberty  and  property  without 
due  process  of  law,  contrary  to  said  fourteenth  amendment.  Any 
«xich  invasion  for  the  purpose  of  adding  to  the  public  revenues, 
'exacting  from  a  person,  for  the  benefit  of  the  state^  compensa- 
tion for  the  enjoyment  of  a  right  which  belongs  to  him  and 
which  he  has  a  right  to  enjoy  without  paying  therefor,  violates 
section  13,  article  1,  of  the  state  constitution,  prohibiting  the 
taking  of  private  property  for  public  use  without  just  compensa- 
tion. 

It  is  a  matter  of  keen  regret  that  we  are  compelled  to  place  the 
stamp  of  judicial  condemnation  upon  the  work  of  co-ordinate 
branches  of  the  government.  That  is  true  in  any  case,  but  it  is 
especially  true  here,  since  it  turns  to  naught  a  strongly  fortified 
supposed  new  discovery  of  a  rich  source  for  adding  to  the  reve- 
nues of  the  state.  It  is  the  duty  of  the  judiciary  to  protect,  at  all 
points,  the  constitutional  rights  of  the  people  from  legislative  in- 
terference. That  duty  must  be  performed  without  hesitation, 
with  firmness  and  with  completeness  whenever  the  necessity 
therefor  arises,  or  the  blessings  of  constitutional  hberty,  as  we 
understand  the  same  to  exist,  will  soon  fade  away.  The  wisdom 
of  the  fathers  in  securing  to  the  whole  people  the  right  to  enjoy 
the  navigable  ^®®  waters  of  the  state,  with  all  their  common-law 
incidents,  beyond  the  possibility  of  any  rightful  prejudicial  gov- 
ernmental interference  therewith,  and  the  consistent  and  vigor- 
ous defense  of  such  right  by  the  judiciary,  will  be  more  and  more 
appreciated  as  time  goes  on.  The  right  is  deemed  to  be  so 
strongly  intrenched  that  all  assaults  upon  it  must  f  aiL 

By  the  Court  The  judgment  is  reversed,  and  the  cause  re- 
manded to  the  trial  court,  with  directions  to  discharge  the  plain- 
tiff in  error. 


The  Prlvitefje  of  Gathering  Tee  from  public  waters,  either  for  sale 
'Or  use,  is  generally  considered  a  common  right,  and  the  ice  belongs 
to  the  first  appropriator:  People  ^s  Ice  Co.  v.  Davenport,  149 


922  American  Statb  Bbpobtb^  Vol.  91.     [Wisconsn^ 

822,  14  Am.  St.  Bep.  425,  21  N.  E.  385;  Gehlen  v.  Knorr,  101  lo' 
700,  63  Anu  St  Bep.  416,  70  N.  W.  757.  It  has  been  held,  h* 
ever,  that  the  taking^  of  ice  from  a  body  of  public  water  for 
in  a  distant  market  may  be  enjoined  at  the  miit  of  a  riparian  pro— 
prietor,  when  the  taking  may  destroy  or  impair  the  source  of  snp- 
ply:  Sanborn  v.  People's  Ice  Co.,  82  Minn.  43,  83  Am.  St.  Rep* 
401,  84  N.  W.  641.  And  the  legislature  may  regulate  the  possession 
and  cultivation  of  ice  upon  navigable  streams:  Woodman  ▼•  E^t- 
man,  79  Me.  456,  1  Am.  St.  Bep.  342,  10  AtL  321. 

Public  Waters,— The  title  to  the  beds  of  lakes,  ponds,  and  navi^&- 
ble  rivers,  up  to  the  line  of  ordinary  high-water  mark,  became  vevted 
in  the  state  at  the  instant  of  its  admission  into  the  Union,  in  tms^ 
for  the  benefit  of  its  people,  so  as  to  preserve  to  them  forever  tli^ 
enjoyment  of  the  waters  to  the  same  extent  that  the  public 
entitled  to  enjoy  tidal  waters  at  the  common  law:  Illinois  Steel 
y.  Biloty  109  Wis.  418,  83  Am.  St.  Bep.  905,  85  N.  W.  402. 


HERMAN  v.  SCHLBSINGBB. 

[114  Wis.  382,  90  N.  W.  460.] 

ATTOBNET  AND  OLXENT^Ctonfldential  Ctonmnoiieatioos. — 
The  successor  of  a  person  acting  in  a  representative  capacity,  meh 
as  an  assignee,  cannot  waive  the  privilege  of  his  predecessor  as  to 
secrecy  in  regard  to  privileged  communications  made  by  the  latter 
to  his  attorney  while  he  was  in  office,     (p.  924.) 

ATTOBNET  AND  OUENT— Privileged  OwmmnilotKwu.— A 

client,  by  procuring  his  attorney  to  sign,  as  a  subscribing  witness^ 
an  instrument  evidencing  an  agreement  or  transaction  between  saeh 
client  and  a  third  person,  in  the  making  of  which  and  redaction 
whereof  to  writing  such  attorney  served  such  client  in  his  pro- 
fessional capacity,  does  not  waive  his  privilege  of  seereey  in  reepeet 
to  confidential  communications  made  during  the  preparation  of  the* 
instrument  or  agreement,     (p.  924.) 

ATTOBNET  AND  CLIENT— Oonfldentlal  Cosmnmicatioiis — 
If  an  attorney's  services  in  a  transaction  are  rendered  to  seveiml 
persons,  confidential  communications  to  him  in  regard  thereto,  in 
which  all  such  persons  are  interested,  cannot  be  disclosed,  unless 
all  join  in  consenting  thereto,     (p.  926.) 

ATTOBNET  AND  CLIENT— Privflaged  Oommmdeatloitf — 
Third  Persons.— If  a  person  employs  an  attorney  in  his  professional 
capacity  in  a  transaction  between  such  person  and  another,  the 
attorney  is  not  privileged  from  disclosing  the  communications  which 
pass  between  him  and  the  third  person  in  regard  to  such  employment. 
The  privilege  of  secrecy,  as  to  transactious  between  attorney  and 
client  is  limited  to  communications  made  by  the  latter  to  the  former 
and  to  the  former's  advice  thereon,  in  the  course  of  his  profeesionai 
employment,     (pp.  926,  927.) 

ATTOBNET  AND  CLIENT— Confidential  Communications.— 
The  privilege  of  confidential  communications  between  attorney  sn<) 
client  does  not  extend  to  the  question  whether,  in  the  preparation 
of  a  cause  for  trial,  the  client  was  interrogated  as  to  his  knowled|;e 
respecting   the   matters   involved,   and   the   questions  and   answers 


Mjiy,  1902.]  Herman  v.  Schlesingeb.  92$ 

thereto   reduced  to  writing,   thus   enabling  the   attorney   to  knoir 
irlftat  his  client  might  be  expected  to  testify  to.     (p.  929.) 

BVIDEHCE.— Depositions  may  be  read  in  evidence  only  on 
condition  that  they  shall  have  been  filed  with  the  clerk  of  the  conrt^ 
and  the  opposing  party  notified  thereof  before  the  commencement 
of  the  trial,     (p.  929.) 

EVIDENOE.— Error  in  BeceiTing  or  Bejecting  Evidence  in  a» 
eqnity  ease  is  not  deemed  prejudicial,  in  the  absence  of  reasonable 
ground  to  believe  that  if  the  improper  evidence  had  not  been  con- 
.aidered,  and  the  proper  rejected  had  been  admitted  and  given  due* 
weight,  the  result  might  probably  have  been  different,     (p.  930.) 

ACCOBD  AND  SATISFACTION— Consideration.— A  convey- 
enee  by  the  debtor  of  his  absolute  title  to  property  held  by  the^ 
ereditor  as  collateral  security  only,  and  a  waiver  by  the  debtor  of 
his  right  to  the  benefit  of  the  bankrupt  laws>  is  a  sufficient  con- 
sideration to  support  a  settlement  of  the  indebtedness  upon  payment 
of  part  of  it.    (p.  933.) 

Action  to  set  aside  a  release  of  indebtedness  on  the  ground  of 
fraud.    Judgment  for  defendant^  and  plaintifE  appealed. 

M.  M.  Biley^  M.  Wittig,  and  J.  B.  Doe,  for  the  appellant. 

Bjan,  Ogden  &  Bottum,  for  the  respondent. 

•®^  MABSHALL,  J.  Fifty-three  assignments  of  error  are- 
presented  for  consideration.  The  appeal  does  not  seem  to  call 
for  a  discussion  of  them  in  detail.  None  of  them  has  beenr 
OTcrlookecL  Such  will  receive  special  attention  in  this  opinioni 
as  are  deemed  of  sufScient  importance  to  merit  it. 

1.  Assignments  of  error  1  to  6^  inclusive^  relate  to  rulings^ 
upon  the  trial  sustaining  claims  of  privilege  made  by  Mr.  James- 
G.  Flanders,  from  testifying  to  matters  in  respect  to  ***  which 
he  was  interrogated,  upon  the  ground  that  whatever  knowledge 
he  had  on  the  subjects  was  acquired  in  his  professional  employ- 
ment by  the  parties  to  the  transactions.  The  exceptions  to  such, 
rulings  present  for  consideration  several  propositions : 

(a)  Can  the  successor  of  a  person  acting  in  a  representative- 
capacity,  such  as  an  assignee,  waive  the  privilege  of  his  predeces-^ 
sor  as  to  secrecy  in  regard  to  communications  made  by  the  latter 
to  his  attorney  while  he  was  in  ofBce?  The  attorney  for  an  as- 
signee,  administrator,  or  other  person  similarly  situated,  is  his^ 
private  employ6.  At  law  the  attorney  must  look  to  such  person* 
for  his  pay,  and  the  latter  must  rely  for  reimbursement  for  his 
outlay  in  that  regard  upon  the  allowance  of  his  account  by  the* 
court  having  judicial  charge  of  the  matter.  The  attorney  does 
not,  as  counsel  for  appellant  seem  to  think,  stand  for  the  bene- 
ficiaries of  the  trust.  He  stands  for  the  trustee.  He  is  the  lat- 
ter^s  personal  representative.    The  trust  estate  is  not  directly 


924  American  Statb  Bbports^  Yol.  91.     [WifloonsiB, 

chargeable  with  the  attorney's  claim  for  compeiiBation.  The 
professional  relation  existing  between  him  and  the  tmstBe 
18  substantially  the  aame  as  it  would  be  if  the  rqyreaeDta- 
tive  character  of  the  latter  were  absent:  Miller  t.  Tr&cv,  86 
Wis.  330,  333,  66  N.  W.  866;  Thomas  ▼.  Moore,  62  'Ohio 
St.  200,  39  N.  K  803;  Piatt  v.  Piatt,  105  N.  Y.  488,  601, 
12  N.  E.  22.  Upon  the  triutee  going  out  of  ofiSce  and  b^ng  sne- 
ceeded  by  another,  there  is  no  devolution  of  the  liability  of  the 
former  upon  the  latter  for  the  expenses  of  the  former's  attorney. 
The  outgoing  trustee  mxist  account  to  his  successor,  or  as  the  cooit 
may  direct.  His  attorney  and  his  successor  do  not,  by  reason  of 
the  succession,  enter  into  the  relation  of  attorney  and  client  as 
to  past  transactions  or  any  other.  It  follows,  as  a  matter  of 
•course,  that  the  new  trustee  has  no  better  right  than  a  stranger 
to  represent  his  predecessor  as  to  waiving  the  latter's  right  to 
^^^  have  his  former  professional  employ^  remain  silent  as  to 
matters  communicated  to  him  under  the  veil  of  privilege. 

(b)  Does  a  person,  by  procuring  his  attorney  to  sign,  9b  a 
subscribing  witness,  an  instrument  evidencing  an  agreement  or 
transaction  between  such  person  and  a  third  party,  in  the  mak- 
ing of  which  and  reduction  thereof  to  writing  such  attorney 
^served  such  person  in  his  professional  capacity,  waive  the  oom- 
mon-law  privilege  declared  by  section  4076  of  the  Statutes  of 
1898,  in  respect  to  the  transaction?  Counsel  point  with  much 
•confidence  to  several  authorities  to  support  the  affirmative  of 
that  proposition,  but  we  are  unable  to  discover  any  good 
ground  for  such  confidence.  Doheny  v.  Lacy,  168  N.  Y.  218, 
61  N.  E.  255,  is  one  of  oounsers  supposed  supports.  There 
the  ruling  that  the  privilege  of  secrecy  was  waived  was  not 
put  on  the  ground,  merely,  that  the  attorney  signed  the  instm* 
ment  as  a  subscribing  witness,  but  on  the  ground  that  ths 
•communications  between  attorney  and  client  were  not  of  a  ocm- 
fidential  character,  aa  shown  by  the  drcumstanoe  that  tb^ 
were  made  openly  in  the  presence  of  third  persona.  No  in- 
timation appears  in  the  opinion  of  the  court  that  a  mere  wit* 
nessing  of  an  instrument,  of  itself,  will  raise  the  veil  of  secrefSjr 
(between  attorney  and  client  in  respect  to  l^al  advice  of  attor- 
ney to  client  or  conmiunications  by  the  latter  to  the  former 
to  secure  such  advice.  It  is  suggested  that  if  an  attorney  acta 
as  such  in  the  preparation  of  an  instrument  for  botii  parties 
thereto,  no  other  person  having  knowledge  of  the  transaction, 
each  of  the  parties  is  entitled  to  enforce  the  privilege  of  se- 
•crecy  as  to  disclosures  for  the  benefit   of   third   persona,  but 


May,  1902.]  Hsbman  v.  Schlesinqss.  92& 

Bot  as  relates  to  matters  between  ihemselYeB.  Further,  that 
the  mere  ealling  of  an  attorney  to  witness  the  execution  of 
an  instrmnent  does  not  close  his  motitfa  as  to  what  he  sees  and 
h€an  in  rqjard  to  the  matter  to  which  he  thereby  becomes^ 
in  a  sense,  a  party:  Cotreney  t.  Tannahill,  1  Hill,  33,  40,  37* 
Am.  Dec.  287.  That  is  upon  the  ground  that  the  relation  of 
uttanorf  and  *^  client  is  not  involved  in  such  a  transaction » 
Ccnmsel  cite  1  Greenleaf  on  Evidence,  section  244.  That  is  onl^r 
to  the  effect  that  if  an  attorney,  employed  to  prepare  an  in* 
stmment,  when  his  labor  in  that  regard  is  concluded,  assumea 
the  character  of  a  subscribing  witness  to  the  paper  at  the  re* 
quest  of  his  client,  such  circumstance  will  waive  the  privilege 
of  secrecy  as  to  what  a  subscribing  witness  may  be  called  ta 
prove  as  such,  but  not  as  to  confidential  communications  made 
during  the  preparation  .of  the  instrument*  The  text  is  sup- 
ported by  In  re  Will  of  Coleman,  111  N".  Y.  220,  226,  19  N. 
E.  71,  where  it  was  held  that  if  a  testator  procures  the  attor- 
ney who  prepares  his  will  to  witness  the  execution  thereof,  he 
impliedly  waives  the  privilege  of  secrecy  between  attorney  and 
client  as  to  those  matters  which  such  a  witness  is  expected  to* 
testify  to  after  the  death  of  the  testator  in  order  that  the  will 
may  be  effective.  But  it  was  said  that  the  veil  of  secrecy  is 
not  thereby  lifted  so  as  to  permit  the  attorney  to  disdose  com* 
munications  made  to  him  in  the  course  of  the  preparation  of 
the  will  in  order  to  enable  him  to  reduce  the  wishes  of  the 
testator  to  writing.  That  is  elementary.  Aufliority  to  the 
same  effect  may  be  found  in  the  reported  decisions  of  this  court : 
McMaster  v.  Scriven,  86  Wis.  162,  168,  39  Am.  St.  Eep.  828,. 
55  N.  W.  149. 

The  extent  to  which  the  authority  goes  is  clearly  indicated 
by  the  following  language  used  by  Mr.  Justice  Pinney  in  the 
last  case  cited,  speaking  of  the  circumstance  of  the  attorney 
acting  as  a  subscribing  witness  to  the  will  prepared  by  himr 
"This  must  be  held  to  be  a  waiver  of  objection  to  his  compe- 
tency, so  as  to  leave  the  witness  free  to  perform  the  duties  of 
the  position.'*  The  privilege  of  secrecy  between  attx)mey  and 
client  is  grounded  in  the  idea  that  communications  made  by 
the  latter  to  the  former  are  of  a  confidential  nature,  and  must 
necessarily  be  such  in  order  to  enable  the  attorney  to  properly 
serve  his  client.  The  rule  does  not  extend  further  than  the 
reason  thereof.  Keeping  that  in  ^^  mind  it  is  easy  to  see 
that  none  of  the  authorities  cited  by  counsel  is  in  their  favor 
nnder  the  facts  of  this  case.    The  attorney  whose  testimony  waa 


^26  American  State  Bepobts^  Vol.  91.     pEVisconsiii, 


•desired  here  was  not  merely  called  in  to  act  as  a 
witness  to  the  instrument.    The  testimony  had  no  relatioii  to 
ihe  mere  execution  of  the  paper.    It  did  not  relate  to  matten 
which  occurred  publicly,  nor  was  the  disclosure  sought  as  be- 
tween two  persons  for  both  of  whom  the  attorney  acted  in  the 
preparation  of  the  paper:  Britton  v.  Lorenz,  45  N.  Y.  51 ;  Hurl- 
burt  V.  Hurlburt,  128  N.  Y.  420,  26  Am.  St  Bep.  482,  28  N. 
E.  651,     Here  was  the  ordinary  case  of  an  attorney  employed 
as  a  confidential  adyiser  in  the  preparation  of  an  instrument 
to  which  he  became  a  subscribing  witness,  and  aabaeqnentij, 
in  an  action  between  other  parties,  he  was  called  as  a  witness 
and  requested  to  make  disclosures  in  respect  to  the  matter.     He 
testified  freely  to  the  circumstance  of  his  witnessing  the  exe- 
4;uuon  of  the  paper,  but  insisted  upon  his  client's  privil^e  of 
secrecy  as  to  matters  which  came  to^his  knowledge  from  his 
client  in  the  preparation  of  the  paper.     From  what  has  been 
said  it  seems  clear  that  the  court  properly  sustained  the  claim 
of  privilege. 

(c)  If  an  attorney  acts  in  his  professional  capacity  for  two 
persons,  does  the  circumstance  that  one  of  them  waives  the 
privilege  of  secrecy  affect  such  privil^e  as  to  the  other?  It 
seems  that  Mr.  Flanders  performed  services  for  the  defendant 
and  his  wife.  He  was  asked,  as  a  witness,  to  disclose  matters 
in  respect  thereto  which  came  to  him  under  the  vdl  of  secrecy 
as  between  attorney  and  client  The  privil^e  was  waived  aa 
to  defendant,  lut  the  attorney,  deeming  himself  in  duty  bound 
to  assert  that  of  Mrs.  Schlesinger,  acted  accordingly,  and  he 
was  sustained  bv  the  court.  What  has  been  said  indicates  that 
the  ruling  was  right.  When  an  attome/s  services  in  a  trans* 
action  are  rendered  to  several  persons,  confidential  communica* 
tions  to  him  in  regard  thereto,  in  which  all  such  persons  are 
interested,  cannot  be  ^®*  properly  disclosed  unless  all  join  in 
consenting  thereto.  The  rule  in  that  regard  has  been  carried 
so  far  as  to  preclude  an  attorney  from  divulging  matters  con- 
fidentially communicated  to  him  by  a  firm  without  ibe  indi- 
vidual consent  of  every  member  thereof:  People  y.  Barker,  56 
111.  299.  The  reason  for  that  is  obvious.  The  privily  of 
secrecy  is  purely  a  personal  right.  When  it  affects  several  per- 
sons there  is  no  way  by  which  all  can  be  protected  in  resped 
thereto  other  than  by  holding  that  all  must  join  in  lifting  the 
veil  of  silence,  or  it  must  remain  a  secure  cover  for  those  tiiingi 
which  it  would  obscure  if  they  related  to  a  single  person  only. 

(d)  If  a  person  employs  an  attorney  to  act  in  his  profee- 


Mftjy  1902.]  Herman  v.  Schlesinobb.  927 

-«ioiiaI  capacity  in  a  transaction  between  snch  person  and  an- 
K>tlier,  is  such  attorney  privileged  from  disclosing  the  commtmi* 
•cations  which  pass  between  him  and  snch  other  in  regard  to 
•such  employment?    Oonnsel  for  appellant  do  not  discuss  this 
branch  of  the  case  exactly  as  it  appears  in  the  record.     One 
vroiild  suppose,  from  what  is  said  in  regard  thereto  in  counsel's 
"brief,  that  the  attorney  acted  in  the  matter,  in  respect  to  which 
lie  was  interrogated,  as  a  mere  agent.    He  testified  to  the  con- 
inrarj  most  distinctly,  over  and  over  again,  saying  that  he  was 
Tiot  an  agent  at  the  time  of  and  in  the  transaction  in  question^ 
in  any  sense  whateyer,  but  that  he  acted  in  the  performance 
of  his  duty  as  a  legal  adviser  to  his  clients.     On  that  testimony, 
in  part,  the  trial  court  acted  in  deciding  the  question  of  com- 
petency; so  whether  the  ruling  of  the  court  was  right  is  in- 
volved in  a  decision  of  the  proposition  we  have  stated.    The 
privilege  of  secrecy,  as  to  transactions  between  attorney  and 
•client,  is  limited  by  the  statute  to  communications  made  by 
the  latter  to  the  former,  and  to  the  former's  advice  thereon,  in 
the  course  of  his  professional  employment.    We  are  unable  to 
see  how  communications  between  an  attorney  and  a  person 
not  his  client,  while  conducting  a  business  matter  with  such 
^*®"  person  for  his  client,  whether  he  is  acting  professionally  at 
the  time  or  not,  can  be  classed  with  those  named  in  the  statute.  ' 
A.  communication  made  by  a  person  to  his  attorney  to  be  and 
in  fact  communicated  by  him  to  another,  is  not  privileged,  be- 
cause, in  the  very  nature  of  things,  it  is  not  confidential  in 
character.    The  very  purpose  thereof  is  to  have  the  communica- 
tion repeated  to  one  who  is  under  no  obligation  not  to  divulge 
it:  Henderson  v.  Terry,  62  Tex.  281.    That  being  the  case, 
manifestly  a  reply  to  such  a  communication  must  be  governed 
by  the  same  rule,  and  so  must  also  other  communications  be- 
tween the  attorney  and  the  third  person  in  case  of  negotiations 
l)etween  the  two. 

It  was  claimed  on  the  trial  that  the  statutory  privilege  of 
secrecy  includes  all  communications  made  to  the  attorney  by 
reason  of  his  professional  emplo3rment,  whether  by  his  dioit 
or  by  third  persons  while  he  is  in  pursuit  of  his  client's  busi- 
ness, and  also  to  all  knowledge  obtained  by  him,  whether  from 
his  client  or  otherwise,  while  in  pursuit  of  the  latter's  business; 
and  the  court  so  ruled,  excluding  evidence  of  negotiations  con- 
ducted for  the  defwidant  and  his  wife  with  third  persons  in 
respect  to  a  matter  material  to  the  issues  of  the  case.  Mani« 
festly,  the  language  of  the  statute  does  not  justify  such  ruling* 


923  American  State  Beports,  Vol.  91.     [Wisconsiiip 

Communicationfi  made  to  an  attorney  by  a  peisan  while  the  at* 
tomey  is  dealing  with  such  person  as  agents  merely^  or  agent 
and  attorney,  or  attorney  and  counselor,  of  another,  are  in  no 
sense  communications  nmde  by  the  latter  to  sudi  attorney,  of 
a  confidential  character  or  otherwise.    Neither  the   letter  nor 
the  spirit  of  the  statute,  nor  any  decision  made  under  it  or  any 
aimilar  statute  or  the  common  law,  of  which  the  statute  is  merely 
dedaiatory,  goes  to  that  extent,  so  far  as  we  are  advised.    Jn 
Koeber  ▼.  Somers,  108  Wis.  497,  84   N.  W.  991,   this   court, 
speaking  by  Mr.  Justice  Dodge,  held  that  the  privil^;e  of  se- 
crecy as  between  attorney  and  client,  recognized  by  the  statute, 
extends  only  to  those  communicationa  made  by  tiie  ^^^  latter 
to  the  former  which  are  of  a  confidential  character  and  made 
for  purpose  of  enabling  tiie  attorney  to  serve  his  client,  and 
the  legal  advice  given  to  the  client  in  response  to  such  communis 
cations ;  that  when  the  attorney  goes  forth  to  perform  a  service 
for  his  client,  with  a  third  person,  communications  between 
such  third  person  and  the  attorney  are  not  within  the  privilq^ 
of  secrecy.    However,  we  are  unable  to  perceive  that  the  er- 
roneous ruling  of  the  court  was  prejudicial  to  appellant.    The 
transactions  which  the  attorney  was  requested  to  disclose,  and 
substantially  all  the  details  thereof,  were,  either  directly  or  by 
reasonable  inference,  established  on  the  trial. 

2.  Assignments  of  error  13  and  14  relate  to  a  ruling  excus- 
ing respondent  from  answering  on  cross-examination  as  to 
whether,  in  the  preparation  of  the  case  for  trial,  he  was  not 
eatamined  by  his  attorneys,  and  his  testimony  to  be  given  upon 
the  stand  reduced  to  questions  and  answers^  upon  the  ground 
that  he  was  privileged  from  answering  under  the  rule  allow- 
ing secrecy  as  between  attorney  and  client.  The  circuit  court 
seems  to  have  supposed  that  such  privilege  extended  to  every* 
thing  that  occurred  between  respondent  and  his  attorney  re> 
specting  the  subject  of  the  business  of  the  professional  em- 
ployment That  is  wrong.  On  the  other  hand,  counsel  for 
appellant  seem  to  have  the  idea  that,  while  respondent  was 
privileged  to  have  his  attorney  not  make  disclosures  respecting 
certain  confidential  oommunications  between  them,  without  his 
permission,  the  way  was  open  to  compel  him,  as  a  witness,  to 
make  such  disclosures.  That  is  wrong.  Professional  services 
of  attorneys  are  essential  to  the  orderly  and  efficient  adminis- 
tration of  justice,  and,  as  a  rule,  to  the  safe  conduct  of  legsl 
business  of  any  kind.  Secrecy  as  to  communications  between 
attorney  and  client,  to  a  certain  extent,  is  required  in  order  to* 


Maji  1902.]  Hkbman  v.  Schlksingbb*  92d 

properly  effectuate  the  purpose  of  the  relation  between  the  two. 
The  foundation  principle  of  the  rule  in  that  regard  suggests, 
on  a  moment's  reflection^  that  ^^  what  the  attorney  ought  not 
to  disclose  without  his  dienf  s  permission,  the  latter  ought  not 
to  be  compeUed  to  disclose.  The  law  is  in  harmony  therewith. 
It  makes  the  client  complete  master  of  the  situation^  if  his  at- 
tomey  properly  performs  his  duty:  Hemenway  v.  Smith,  28 
Vt.  701 ;  Barker  v.  Kuhn,  38  Iowa,  392 ;  Duttenhof er  y.  State, 
34  Ohio  St  91,  32  Am.  Bep.  362;  1  Wharton  on  Evidence,  sec. 
583;  Stephen's  Digest  Evidence,  art  115.  However,  the  rule 
extends  only  to  the  communications  mentioned  in  section  4076 
of  the  Statutes  of  1898,  not  to  a  mere  statement  as  to  whether, 
in  the  preparation  of  a  cause  for  trial,  a  party  was  interrogated 
as  to  his  knowledge  respecting  the  matters  involved,  and  the 
questions  and  answers  thereto  reduced  to  writing,  enabling  the 
attorney  to  know  what  his  client  might  be  expected  to  testify 
ta  The  evidence  rejected  should  have  been  allowed.  It  had 
some  bearing  on  the  credibility  of  respondent's  evidence.  It 
was  not  admissible  for  any  other  purpose.  But  we  are  satisfied 
that  the  mere  fact,  if  it  be  a  fact,  that  respondent  was  carefully 
interrogated  by  his  counsol  before  going  upon  the  stand,  the 
questions  propounded  and  the  witness'  answers  being  reduced  to 
writing,  would  not  have  affected  the  result  of  the  trial,  if  proof 
thereof  had  been  permitted.  The  cause  turned  on  facts  of  the 
existence  of  which  the  court  was  evidently  satisfied  quite  inde- 
pendently of  any  testimony  by  respondent. 

3.  Errors  20  to  23,  inclusive,  relate  to  refusals  by  the  court 
to  permit  the  use  in  evidence  of  a  deposition  taken  and  filed 
during  the  progress  of  the  trial.  That  ruling  was  in  strict 
accord  with  the  statute,  which  allows  the  reading  of  a  deposi- 
tion in  evidence  only  upon  condition  that  it  shall  have  been 
filed  with  the  clerk  of  the  court  and  the  other  party  notified 
thereof  before  the  commencement  of  the  trial :  Stats.  1898,  sec. 
4090. 

4.  A  considerable  number  of  assignments  of  error  relate  to 
the  admission  of  evidence  over  objections  by  coimsel  for  ap- 
pellant, and  to  the  rejection  of  evidence  offered  by  them  *®* 
upon  objections  made  by  respondent,  and  others  to  refusals 
by  the  court  to  compel  the  production  of  books  and  papers 
for  use  upon  the  trial,  or  for  inspection  by  appellant's  counsel 
in  aid  of  the  presentation  of  appellant's  case  or  of  discredit- 
ing that  of  respondent.     Much  time  might  be  spent  in  dis-^ 

Am.   St.  Rep.,   Vol.   91—59 


930  Ambbican  State  Beports^  Vol.  91. 

ciissiiig  snch  assignments  of  error  in  detail,  but  it  seems  neither 
necessary  nor  advisable  to  do  so.     Errors  in  the  reception  or 
rejection  of  evidence  in  an  equity  case  are  not  deemed  prejudi- 
cial in  the  absence  of  reasonable  ground  to  believe  that  if  the 
improper  evidence  had  not  been  considered,  and  the  proper 
evidence  rejected  had  been  admitted  and  given  due  weight,  the 
result  might  probably  have  been  different :  Kirkland  v.  Telling, 
49  Wis.  634,  6  N.  W.  361.     Under  that  rule  it  is  considered  that 
the  errors  alleged,  to  which  this  paragraph  is  devoted,  r^;ard- 
less  of  whether  they  are  well  assigned  or  not,  were  not  preju- 
dicial to  the  rights  of  appellant.    If  all  the  evidence  admitted 
over  objection  had  been  rejected,  and  all  the  evidence  offered 
by  appellant's  counsel  which  was  rejected  had  been  received 
and  had  shown  all  that  counsel  for  appellant  suggest  would  or 
might  have  been  shown  thereby,  the  findings  of  the  court  on 
matters  of  fact,  in  all  reasonable  probability,  would  not  have 
been  different  than  those  we  find  in  the  record.     Still  the  situa- 
tion would  have  remained  unaffected — ^which   the   trial   court 
undoubtedly  believed  was  the  real  truth  of  the  matter — that 
all  the  property  claimed  by  appellant  to  have  belonged  to  re- 
spondent and  claimed  by  him  to  have  been  the  property  of  his 
wife,  in  the  latter  part  of  1894 — consisting   of   the    capital 
stock  of  a  corporation  located  in  Mexico  called  the   Concheno 
Company — ^long  prior  to  the  settlement  challenged  and  when 
it  was  perfectly  proper  for  respondent   or  his   wife,  whoever 
was  the  owner  thereof,  to  sell  it,  was  conveyed,  one-half  to  Cor- 
rigan,  Ives  &  Co.,  and  the  other  half  to  Henry  Stem,  the  father 
of  respondent's  wife,  in  payment  of  indebtedness  owing  to  them 
by  respondent;  that    subsequently    Stern    exchanged  ^^^  his 
stock  with  Corrigan,  McKinney  &  Co.,  for  property  which  he 
subsequently,  and  long  before  the  settlement  in  question,  gave 
to  his  daughter  subject  to  a  claim  thereon  for  twenty-three 
thousand  dollars,  and  that  the  same  became  the  original  aasets 
of  the  Dunn  Iron  Mining  Company,  the  stock  of  which  was 
the  property  of  Mrs.   Schlesinger  by  the  same  right  as  she 
took  title  to  such  assets  from  her  father;  that  later  the  Dunn 
Iron  Mining  Company,  without  any  change  in  the  ownership 
of  the  stock,  and  without  the  use  of  any  capital  other  than 
that  originally  invested  therein  and    the    increase    thereof, 
acquired  other  mining  interests,  the  property,  in  the  whole, 
constituting  that  regarded  by  appellant's  counsel  as  the   prop- 
erty of  respondent  at  the  time  of  the  settlement  complained 
of,  with  Plankinton,  aesignee.    In  that  view,  clearly,  there  was 


Maj,  1902.]  Herman  v.  Schlesinger.  931 

no  admissioiL  or  rejection  of  evidence  which,  hy  any  reason- 
able stretch,  of  the  imagination,  can  be  said  to  have  probably 
prejudiced   appellant.     If  Stem  acquired,  legitimately,  owner- 
ship of  one-half  of  the  stock  of  the  Concheno  mine — and  the 
trial  court  in  effect  so  found — ^it  is  immaterial,  so  far  as  relates 
to  ultimate  facts,  whether  the  stock  of  the  initial  corporation 
formed  in  Milwaukee,  called  the  Standard  Metal  Company,  the 
records  of  which  appellant's  counsel  sought  to  have  produced 
in  evidence  and  failed,  of  which  complaint  is  made,  or  the  stock 
of  the  Concheno  mine,  into  which  the  properiy  of  the  Standard 
Metal   Company  was  merged,  was  property  of  respondent  or 
that  of  his  wife.     In  that  view,  also,  it  was  entirely  immate- 
rial to  the  issues  of  this  case  what  the  value  of  the  property 
was  poGsessed  by  respondent's  wife  at  the  time  of  the  settlement. 
So,  failure  of  opportunity  to  make  proof  thereof  to  the  satis- 
faction of  appellant,  by  reason  of  the  adverse  rulings  of  the 
court  of  which  complaint  is  made,  was  nonprejudicial, 

6.  The  other  assignments  of  error  touching  matters  within 
the  issues  made  by  the  pleadings,  meriting  attention,  relate  to 
whether  the  findings  of  fact  are  supported  by  the  evidence. 
*•*  That  question  turns,  mainly,  on  whether  tiie  property  de* 
rived  from  the  transfer  by  Stem  to  his   daughter,  as   before 
stated,  belonged  to  her  or  to  respondent  at  the  time  of  the  settle- 
ment in  question.    If  it  belonged  to  the  latter,  then  he  po*. 
sessed,  at  the  time  of  such  settlement,  a  fortune  out  of  which 
he  might  have  paid  a  large  proportion,  if  not  all,  of  the  indebt* 
^dnees  to  Plankinton,  assignee,  and  he  perpetrated   a   fraud 
upon  such  assignee,  and  thereby  wrongfully  secured  the  set- 
tlement complained  of.    If  the  transfer  by  Stem  to  Mrs.  Schles- 
inger was  a  legitimate  transaction,  then  the  evidence  does  not 
show  that  the  representations,  by  means  of  which  the  settlement 
with  the  assignee  was  secured,  were  untrue.     The  trial  court, 
as  before  indicated,  found  in  favor  of  respondent  on  that  sub- 
ject    It  would  not  follow  that  such  decision  is  wrong  if  we 
were  to  determine  that  the  stock  of  the  Standard  Metal  Com- 
pany, through  which  it  is  claimed  respondent  commenced  to 
do  business  after  his  failure  in  1893,  was  his  property,  and 
that  the  stock  of  the  Concheno  mine  belonged  to  him  when  the 
same  was  turned  out  in  payment  of  his  indebtedness  to  Cor- 
rigan,  Ives  &  Co.  and  to  Stem.    The  precise  manner  in  which 
^e  trial  court  reached  the  conclusions  on  matters  of  fact  does 
not  appear.    We  should  hesitate  on  the  record  before  us  to  dis- 
tvb  the  judgment  if  the  turning  question  weie  whether  the 


932  American  State  Heports,  Vol.  91. 

fitock  of  the  Standard  Metal  Company,  and  that  of  the  Con* 
cheno  mine,  belonged  to  respondent.    Viewing  the  decision  as- 
resting  solely  on  whether  the  property  given  by  Stem  to  Mrs. 
Schlesinger  was  his  to  bestow  in  that  way,  the  creditors  of  re* 
spondent  having  at  the  time  of  such  bestowal  no  right  thereto,. 
there  is  far  too  much  evidoice  in  the  record  to  sustain  it  to- 
warrant  us  in  coming  to  the  conclusion  that  it  is  against  the 
clear  preponderance  of  the  evidence.    It  would  take  much  time 
to  go  through  the  record  in  detail  in  an  attempt  to  thorongUj 
discuss  the  evidence  and  thereby  justify  the  trial  court's  find- 
ings.   It  is  not  customary  to  do  that  in  a  case  like  this,  •••' 
where  a  conclusion  is  reached  that  the  judgment  must  be  af- 
firmed.    Such  a  discussion  really  serves  no  purpose  except  to 
satisfy  counsel  for  the  losing  party  that  the  evidence  has  been 
carefully  considered  in  all  its  bearings.     The  preservation  of 
such  discussions  in  the  printed  records  is  not  helpful,  and  it 
is  believed  that,  as  a  rule,  the  better  course  is  to  omit  them* 
Ordinarily,  counsel  for  the  losing  party,  who  have  sufficient 
confidence  in  their  case  to  take  the  chances  of  an  appeal  to  this 
court  on  mere  questions  of  fact,  are  no  better  satisfied  that  they 
are  wrong,  and  not  the  trial   court,  or,  at   best,  satisfied  that 
from  the  standpoint  of  the  reviewing  court,  having  only  the 
record  before  it,  it  cannot  be  said  that  the  findings  of  the  trial 
court  are  against  the  clear  preponderance  of  the  evidence,  after 
reading  a  laborious  discussion  upon  appeal  in  justification  of 
the  conclusion  there  reached,  than  they  were  before.    The  ap- 
pearance of  a  decision,  particularly  as  to  mere  matters  of  fact, 
depends  largely  upon  the  standpoint  from  which  the  view  is 
taken.     From  that  of  partnership   occupied   by  the  interested 
attorney,  it  looks  far  different  than  from  that  of  a  court    He 
who  looks  from  the  former  position  is  bent  on  securing  a  favor^ 
able  result  for  his    client.    In    that    situation   the    faculties 
brought  into  use  in  searching  for  truth  for  the  sake  of  truth 
are  not  necessarily  active.    He  who  views  a  decision  from  the 
nonpartisan,  nonprejudiced  standpoint  of  the  court  is  moved 
only  by  a  desire  to  discover  the  right,  regardless  of  effects  and 
consequences  which  cannot  be  avoided  and  the  right  prevaiL 
From  the  latter  position  we  have  carefully  examined  tiie  evi- 
dence in  this  case.     Counsel  must  take  that  assurance  in  lieu 
of  an  extended  discussion  of  the  evidence.    The  result  of  our 
labor  is  that  we  are  unable  to  find  justification  for  disturbing 
the  findings  of  the  court. 

6.  The  question  is  presented,  somewhat  outside  the  cause  of 


Sfay,  1902.]  Herman  v.  ScHLESiNesB.  988 

mctiaxi  set  forth  in  the  complaiiit,  of  whether  the  settletnefnt 
•eomplamed  of  is  void  for  want  of  consideration.    Counsel  "^^ 
for  pe8i>oiident  make  no  objection  to  the  proposition  being  con- 
sidered^ and  we  will  not  roggest  any  that  might  have  been  ptrt 
forward  if  such  exist.    It  is  elementary  that  the  mere  accept- 
4ince,  by  a  single  creditor,  of  a  part  of  an  nndispnted  claim  in 
-eefctlement  of  the  whole  does  not  preclude  a  subsequent,  legiti- 
mate demand  for  tiie  balance  thereof:  Continental  Nat.  Bank 
▼.  McGeoch,  92  Wis.  286,  810,  66  N.  W.  606 ;  Otto  v.  Klauber, 
-23  Wis.  471 ;  Lathrop  v.  Knapp,  27  Wis.  214,  225 ;  Davenport 
▼.  PiMt   Congregational  Soc,  33  Wis.  387,  391;  Lerdall  r. 
<JhartCT  Oak  life  Ins.  Co.,  61  Wis.  426,  429,  8  W.  W.  280.    It 
is  also  elementary  that  where  a  creditor  obtains  some  advan- 
tage, or  promise  thetreof,  that  may  possibly  be  realized  in  ad- 
dition to  the  part  payment  by  tiie  debtor,  for  a  release  of  the 
latter's  indebtedness,  there  is  a  good  accord  and  satisfaction* 
eSectnally  extinguishing  the  same,  regardless  of  how  small  the 
amount  actually  paid  upon  it  may  be:  Continental  N"at.  Bank 
V.  McQeooh,  92  Wis.  286,  310,  66  N.  W.  606.    Applying  that 
to  this  case,  the  settlement  in  controversy  cannot  be  impeached 
for  want  of  consideration.    The  contract  of  settlement  was  ob- 
viously drawn  with  care,  having  in  mind  the  legal  essentials 
thereof  in  order  to  preclude  any  subsequent  claim  against  re- 
spondent for  any  further  sum  upon  the  indebtedness.    Absolute 
title  to  property  held  by  the  assignee  as  security  only  was  con- 
veyed to  him,  and  the  right  of  respondent  to  the  benefit  of  the 
federal  bankruptcy  laws  was  waived   in   the   former's    favor. 
There  was  some  advantage  involved  in  these  concessions.    Ab- 
solute ownership  of  the  collateral  in  place  of  a  holding  thereof 
as  security  was  of  itaelf  an  advantage.    Admit  that  it  was  of 
slight,  almost  trifling,  character,  yet  it  must  be  held  to  have 
been  sufficient  to  make  a  good  accord  and  satisfaction.    Inde- 
pendently of  authority,  it  would  seem  that  the  giving  up  of  the 
"Valuable  right  of  respondent  to  the  boaefit  of  the  federal  bank- 
ruptcy laws  was  a  substantial  consideiration,  and  sufficient  to 
support  the  settlement.    Counsel   for   respondent   dte   us   to 
Hinckley  v.  ^^  Arey,  27  Me.  362,  where  it  was  so  decided. 
The  rigorous  rule  of  the  common  law,  permitting  a  person  to 
receive  part  of  an  nndisputed,  presently  dtte  indebtedness,  pre- 
tending to  accept  the  same  in  satisfaction  of  the  whole  indebt- 
edness, the  debtor  parting  with  the  amount  paid  with  that  un- 
^enstanding,  and  then  change  front  and  sue  for  the  balance  of 
such  indebtedness  on  the  ground  that  the  release  tiiereof  was 


934  American  State  Bbpobts^  Vol.  91.    I^Wisconsiiv 

void  for  want  of  consideration,  is  so  little  favored  by  conrisy 
that  it  is  commonly  held  not  to  apply  where  anything,  wbetfaer 
of  advantage  to  the  creditor  or  disadvantage  to  the  debtor,  can 
be  reasonably  said  to  stand  for  that  part  of  the  indebtedoew 
not  measured  by  an  equivalent  in  money  actually  paid  to  &e 
creditor.    The  common-law  rule  has  heea  abolished  by  statute 
in  Alabama,  Georgia,  Maine,  North  Carolina,  Tennesaee  and 
Virginia,  and  perhaps  some  other  states.    In  Connecticut  it 
has  not  been  recognized  by  the  courts:  Ford  v.  Hubinger,  64 
Conn.  129,  29  AtL  129.    In  the  other  states  where  no  statute 
exists  to  the  contrary,  it  is  believed  the  rule  is  adhered  ta  in 
form,  but  there  is  apparently  a  progressive  disposition  to  dis- 
regard it  in  spirit.    It  is  said  that  there  is  sufficient  considera- 
tion moving  with  the  part  payment  to  release  an  indebtedness 
to  take  the  transaction  out  of  the   common-law  role,  if   the 
debtor  does  anything  which  he  is  not  bound  by  law  to  do^  or 
omits  to  do  anjrthing  which  he  has  a  right  to  do,  to  the  ad- 
vantage in  any  appreciable  degree,  of  the  creditor,  or  the  di»» 
advantage  of  himself;  that  the  consideration,  in  addition  ta 
money  paid,  ''may  consist  of  anything  which  might  be  a  burden 
to  the  one  party  or  benefit  to  the  oiiier^':  Wateon  y.  Elliott, 
67  N.  H.  511;  Jaffray  v.  Davis,  124  N.  T.  164,  26  K  E.  351; 
Maddux  v.  Bevan^  39  Md.  485. 

Nothing  further^  it  seems,  need  be  said  in  disposing  of 

se. 

By  the  Court,    l^e  judgment  appealed  from  is  aflSrmed. 


Privileged  CommunicatUyM  between  attorney  and  elient  are  eon- 
sidered  at  length  in  the  monographic  note  to  O'Brien  ▼•  Spalding, 
66  Am.  St.  Bep.  213-243.  See,  also,  National  Bank  ▼.  Delano,  17T 
Haes.  362,  83  Am.  St.  Bep.  281,  58  N.  E.  1079;  lOller  y.  Palmer^ 
25  Ind.  App.  357,  81  Am  St.  Bep.  107,  58  N.  £•  213. 


STATE  V.  KUBUTZBBEG. 

[114  Wis.  580,  90  N.  W.  1098.] 

OOKSTlTUTlOKAIi  ZtAW— Labor  TTnions— Blglit  to  Dia- 
charge  Employe. — A  statute  prohibiting,  under  a  penalty,  an  em* 
ployer  from  discharging  ' '  an  employ^  because  he  is  a  member  of  any 
labor  organization,"  is  void,  as  an  nnwarranted  and  nnlawfnl  in- 
fringement of  the  constitutional  right  of  ''liberty"  in  mnirSBg  pn* 
▼ate  contracts,     (pp.  946,  947.) 


Jane,  1902.]  State  v.  Ebeutzbebg.  935 

I>ischarge  upon  habeas  corpus  from  an  arrest  and  imprison- 
ment for  haying  discharged  an  employe  because  he  was  a  mem- 
ber of  a  labor  organization.  The  statute  under  which  the  ar- 
rest was  made  is  sufficiently  stated  in  the  opinion.  The  state 
appealed. 

W.  H.  Bennett,  district  attorney,  P.  B.  McQovem,  assistant 
diatrict  attorney,  and  C.  E.  Buell^  first  assistant  attorney  gen- 
eral, for  the  plaintifF  in  error. 

ITath,  Pereles  &  Sons  and  0.  D.  Gofl^  for  the  defendant  in 


*"**  DODGE,  J.    In  this  case  we  are  confronted  with  that 
gravest  of  sociological  questions:  How  far,  consistently  with 
freedom,  may  the  rights  and  liberties  of  the  individual  member 
of  society  be  subordinated  to  the  will  of  the  government?    That 
question  has  been  at  war  from  the  very  first  existence  of  any 
form  of  government.    For  many  centuries,  while  debated  as 
an  ethical  and  philosophical  question,  it  was'  resolved  '^^  in 
each  instance  by  force  or  by  ihe  ability  to  exert  force.    A  little 
more  than  a  century  ago  the  attempt  was  made  by  the  American 
I>eople  to  define  the  limits  by  written  contract,  and  to  withdraw 
Uieir  decision  and  vindication  from  ihe  arena  of  physical  strife 
and  transfer  it  to  the  peaceful  forum  of  the  judiciary.    In  line 
with  that  attempt,  the  people  of  what  is  now  the  commonwealth 
of  Wisconsin,  some  sixty  years  ago,  formulated  their  constitu- 
tion.   Their  purpose,  unquestionably,  was  to  create  a  govern- 
ment endowed  with  the  essential  attributes  of  sovereignty.    The 
very  preamble  declares  that  it  is  adopted  in  order  to  secure 
the  blessings  of  liberty  and  form  a  more  perfect  government. 
Tn  the  organization  of  that  government  it  was  provided  that 
the  legislative  power  shall  be  vested  in  a  senate  and  assembly : 
Const.,  art  4,  sec.  1.    By  a  long  lino  of  decisions  and  consen- 
sus therein  by  the  people  of  the  various  states,  it  has  become 
settled  that  thereby  all  powers  of  a  legislative  character  ordi- 
narily enjoyed  by  sovereign  governments  became  vested  in  the 
state  legislature,  except  so  far  as  restrained  expressly  or  by 
substantially  necessary  implication  elsewhere  in  the  constitu- 
tion :  Cooley's  Constitutional  Limitations,  201,  206 ;  1  Tiedeman 
on  Control  of  Persons  and  Property,  9.    The  very  first  section  of 
that  constitution,  however,  declares  the  purpose  of  the  govern- 
ment about  to  be  created  by  it  in  these  words :  "All  men  are  bom 
equally  free  and  independent,  and  have  certain  inherent  rights 


936  Ambbican  State  Bepobts^  Vol.  91. 

among  iheae  are  life,  liberty  and  the  pnrsnit  of  happineBs:  to 
cnre  these  righte^  goyemments  are  instituted  among  men,  de- 
riving their  just  powers  from  the  consent  of  the  governed.'^ 

At  this  late  day  it  cannot  be  doubted  that  this  declaration 
of  the  purpose  to  be  accomplished  is  to  be  construed  as  a  limita- 
tion upon  the  powers  given.  By  the  preamble,  preservaiioii  of 
liberty  is  given  precedence  over  the  establishment  of  govern- 
ment. It  would  be  inconceivable  that  the  people  of  Wisconsin, 
in  establishing  a  government  to  secure  the  rights  *"  of  life, 
liberty,  and  the  pursuit  of  liappineBi)  «bould  by  general  grant 
of  legislative  power  have  intended  to  confer  upon  that  govem- 
ment  authori^  to  wholly  subvert  those  primary  rights;  and 
in  this  view  it  has  been  held  by  this  court  that  legislative  acta 
conflicting  with  that  declared  purpose  are  forbidden  by  the 
constitution,  and  must  be  denied  efficacy  by  the  courts :  Durkee 
T.  Janesville,  28  Wis.  464,  471,  9  Am.  Eep.  500 ;  State  ▼.  Cur- 
rens.  111  Wis.  431,  435,  87  N.  W.  561.  We  say  by  the  courts, 
for  elsewhere  in  the  constitution  the  judicial  power  is  vested  in 
tiiem;  and  that  the  judicial  power,  and  thei^ore  the  judicial 
duty,  includes  repudiation  of  an  attempted  act  of  legislation 
prohibited  by  the  constitution,  was  declared  by  the  supreme 
court  of  the  United  States,  at  the  pen  of  Chief  Justice  Marshall, 
in  Marbury  v.  Madison,  1  Cranch,  137,  and  had,  before  the  adop- 
tion of  our  constitution,  become  settled  by  a  long  line  of  au- 
thority: 1  Kent's  Commentaries,  449;  Coole/s  Constitutional 
Limitations,  c.  7;  Baily  v.  Gentry,  1  Mo.  116;  Bloodgood  v.  Mo- 
hawk etc.  R.  R.  Co.,  18  Wend.  9,  31  Am.  Dec.  313 ;  Dartmouth 
College  Case,  4  Wheat.  518,  625. 

A  question  which  immediately  arises  in  the  consideration  of 
any  act  of  the  legislature  restraining  individuals  is  the  exact 
meaning  of  the  words  '^fe,  liberty  and  the  pursuit  of  happi- 
ness,'' which  are  to  be  secured  by  the  government,  and  must  not 
be  destroyed  by  it.  That  these  words  are  not  to  be  taken  in  their 
absolute  sense  is,  of  course,  obvious.  Individuals  may,  notwith- 
standing this  prohibition,  be  deprived  of  Hfe  or  liberty  as  pun- 
ishment for  crime,  and  they  may  be  deprived  of  some  measure 
•of  property  or  of  happiness  in  deference  to,  and  protection  of, 
the  welfare  of  the  whole  community.  Indeed,  most  of  the  legis- 
lative acts  which  fill  our  statute  books  detract  in  some  measure 
from  the  absolute  freedom  of  the  individual  to  act  wholly  at 
the  dictate  of  his  will,  and  yet  are  of  either  decided  or  fully  rec- 
ognized constitutionahty.  On  the  other  hand,  these  words  in 
the  constitution  are  not  to  receive  an  unduly  limited  constmo* 


June,  1902.]  Stats  v.  Ereutzbsbq.  987 

tion.      It  has  become  settled,  ••*  for  example,  tiiat  'liberty*' 
does  not  mean  merely  immtinity  from  imprisonment,  and  that 
'''property*'  is  not  confined  to  tangible  (Ajects  which  can  be 
passed  from  hand  to  hand;  that  within  the  former  word  is  in- 
<!litded  the  opportunity  to  do  those  things  which  ure  ordinarily 
•done  by  free  men,  and  the  right  of  each  individual  to  regulate 
Ins  own  affidrs,  so  far  as  con«istent  with  rights  of  others;  and 
within  the  latter,  those  rights  of  possession,  disposal,  manage- 
ment, and  of  contracting  with  reference  thereto,  which  render 
property  useful,  valuable,  and  a  eouroe  of  happiness^  right  to  pur« 
suit  of  whidi  is  preserved:  2  Story  on  Constitution,  5th  ed.,  sec. 
1950  ;  Cooley  on  Torts,  278;  2  Tiedeman  Control  of  Persons  and 
Property  939 ;  Butdiers'  Union  etc.  Co,  v.  Crescent  City  etc.  Co., 
,111  TJ.  S.  746,  757,  4  Sup.  Ct  Rep.  652;  Allgeyer  v.  Louisiana, 
'  165  TJ.  S.  578,  689,  17  Sup.  Ct.  Rep.  427 ;  Niagara  Fire  Ins. 
Co.  V.  Cornell,  110  Fed.  816,  822;  State  v.  Julow,  129  Mo.  168, 
50  Am.  St  Rep.  443,  81  S.  W.  781 ;  Ritchie  v.  People,  155  111.  98, 
46  Am.  St  Rep.  315,  40  N.  E.  454;  Gillespie  v.  People,  188  HL 
176,  80  Am.  St  Rep.  176,  58  N.  E.  1007;  Commonwealth  ▼. 
Perry,  155  Mass.  117,  31  Am.  St  Rep.  533,  28  N.  E.  1126 ;  In 
re  Jacobs,  98  N.  Y.  98 ,  50  Am.  Rep.  636 ;  People  v.  Coler,  1^6 
N.  T.  1,  82  Am-  St  Rep.  603,  59  N.  E.  716 ;  Janesville  v.  Car- 
penter, 77  Wis.  288,  301,  46  N.  W.  128. 

In  Allgeyer  v.  Louisiana,  165  U.  S.  578,  589, 17  Sup.  Ct.  Rep. 
427,  the  court  said  by  Mr.  Justice  Peckham :  **The  liberty  men- 
tioned in  that  [fourteenth]  amendment  means  not  only  the 
right  of  the  citizen  to  be  free  from  the  mere  physical  restraint 
of  his  person,  as  by  incarceration,  but  the  term  is  deemed  to  em. 
brace  the  right  of  the  citizen  to  be  free  in  the  enjoyment  of  all 
his  faculties;  to  be  free  to  use  them  in  all  lawful  ways;  to  live 
and  work  where  he  will;  to  earn  his  livelihood  by  any  lawful 
calling ;  to  pursue  any  livelihood  or  avocation;  and  for  that  pur- 
pose to  enter  into  all  contracts  which  may  be  proper,  necessary, 
and  essential  to  his  carrying  out  to  a  successful  conclusion  tiie 
purposes  above  mentioned.^' 

In  Carew  v.  Rutherford,  106  Mass.  1,  14,  8  Am.  Rep.  287,  it 
is  pointed  out  that  the  very  existence  of  the  ordinary  labor  union 
Tests  upon  *^  the  inherent  liberty  of  individuals  to  contract 
or  refuse  to  do  so,  otherwise  such  organizations  would  be  crim- 
inal at  common  law.  In  that  caae,  too,  are  collected  actual  in- 
stances of  governmental  restriction  of  liberty  deemed  legitimate 
before  our  constitutions,  but  now  clearly  prohibited  thereby. 
Some  of  these  are  acts  making  it  criminal  to  take  exceaaive 


938  American  Statb  Bbpobts,  Vol.  91.     [Wiscoiuiiv 

irages;  requiring  handicraftsmen^  meet  to  labor^  to  work  bj  the 
day  for  their  neighbors  in  certain  work ;  fixing  the  price  of  labor; 
and  the  like.     ^ 

In  Allen  y.  Flood,  [1898]  App.  Cas.  1,  the  complaint  was 
that  certain  union  iron-workers  confederated  and  threatened  to 
quit  unless  certain  nonmembers  were  discharged.  In  the  coujBe 
of  the  opinion  of  Herschell,  J.,  it  was  said:  ^A  man's  right  not 
to  work  or  not  to  pursue  a  particular  trade  or  calling,  or  to  de» 
termine  when  or  where  or  with  whom  he  will  work,  is  in  law  a 
right  of  precisely  ibe  same  nature,  and  entitled  to  just  the 
protection,  as  a  man^s  right  to  trade  or  work'^;  and  in  the 
case,  by  Lord  Watson :  '^It  is,  in  my  opinion,  the  abeolute  right 
of  every  workman  to  exercise  his  own  option  with  regard  to  the 
persons  in  whose  society  he  will  agree  or  continue  to  work.^ 

In  Doremus  v.  Hennessy,  176  IlL  608,  "68  Am.  St  Eqp.  203,' 
52  N.  E.  924,  where  the  employer  refused  to  abide  by  the  prices 
prescribed  by  a  laundry  union,  and  the  members  of  the  union 
refueed  to  work  for  her,  the  court  sustained  them  in  so  doing; 
and  said:  '^Every  man  has  a  right,  under  the  law,  as  between 
himself  and  others,  to  full  freedom  in  disposing  of  his  own  labor 
or  capital  according  to  his  own  will." 

In  the  somewhat  famous  case  of  Arthur  t.  Oakes,  11  C.  C.  A. 
209,  63  Fed.  310,  wherein  the  drcuit  court,  during  the  labor 
troubles  of  1894,  enjoined  certain  employes  from  ^so  quitting 
.  ...  as  to  cripple  tiie  property  or  prevent  or  hinder  "Hie  opera* 
tion  of  said  railroad,''  the  court  of  appeals,  speaking  by  Harlan, 
J.,  held  that  was  erroneous,  as  invading  the  natural  rights  of 
men.  He  said :  ''It  would  be  an  invasion  ^^^^  of  one^a  natoial 
liberty  to  compel  him  to  work  for,  or  to  remain  in  the  personal 
service  of,  another.  ....  The  rule,  we  think,  is  withont  ex* 
ception  that  equity  will  not  compel  the  actual,  affirmative  per* 
formance  by  an  employ^  of  merely  personal  services,  any  mare 
than  it  will  oompel  an  employer  to  retain  in  his  personal  sernce 
one  who,  no  matter  for  what  cause,  is  not  acceptable  to  him  for 
service  of  that  character.''  It  was  there  further  hdd  that  it  was 
error  to  enjoin  the  employ6s  from  ''striking,"  for  the  reason  that 
included  in  the  meaning  of  the  word  "strike^'  was  the  mere  con- 
currence of  a  number  of  individuals,  in  the  exercise  of  tiieir  in- 
herent right,  to  quit  their  employment,  which  no  court  ou^t  to 
interfere  with  unless  they  were  bound  by  contract. 

Judge  Cooley  (Cooley  on  Torts,  278)  says:  "It  is  a  part  of 
every  man's  civil  rights  that  he  be  left  at  liberty  to  refuse  busi* 
ness  relations  with  any  person  whomsoev^,  whether  the  refusal 


Jane,  1902.]  Stats  v»  Ebkutzbebcu  98^ 


npon  reasoB,  or  la  the  result  of  whim,  caprioe,  prejudice^ 
oar  malice.'' 

Mr.  Tiedeman  (2  Control  of  PersoM  and  Property,  sec.  204) 
says :  ^^very  man  has  a  natural  right  to  hire  his  servicee  to  any-^ 
one  he  pleases,  or  refrain  from  such  hiring;  and  so,  likewise,  it 
ifi  the  right  of  everyone  to  determine  whose  services  he  will  hire» 
.  •  .  •  Qovemments,  therefore,  cannot  exert  any  restraint  uponi 
the  actions  of  the  parties/' 

But  however  well  established  that  the  words  'fliberty"  and 
''pursuit  of  happiness''  include  the  right  of  private  contract,  so* 
that  a  deprivation  of  the  latter  is  a  deprivation  of  each  of  the 
former,  yet  the  far  more  difficult  question  renjains  whether  an3r 
given  statute  conetitutes  a  forbidden  deprivation.    As  we  have- 
already  said,  the  constitutional  restriction  in  this  respect  is  not 
absolute.    The  very  existence  of  government  renders  imperative 
a  power  to  restrain  the  individual  to  some  extent.    This  is  called 
the  ''police  power,"  of  which  definition  has  been  attempted  by 
jurists  and  text-writers  with  so  little  success  as  to  well-nigh  dis- 
courage  further  attempts.    It  may  ^'''  be  described,  though  not 
defined,  as  the  power  of  the  government  to  r^ulate  conduct  and 
property  of  some  for  safety  and  property  of  all.    But  in  what 
d^pree?    In  a  despotism,  ahsolutely  in  the  discretion  of  the  des- 
pot.   In  a  less  than  despotism,  not  absolutely,  but  with  some- 
limitations.    To  ascertain  and  declare  those  limitations  scien-^ 
tifically  is,  and  for  long  to  come  will  be,  the  despair  and  strug- 
gle of  courts.    The  present  period  witnesses  unexampled  popular 
consideration,  and,  apparently,  belief  in  the  widest  scope  of  guv- 
enmiental  activity  and  interference  with  tiie  individuaL    'rhat 
tendency  has  affected,  and  of  course  will  further  affect,  the  legis^ 
lative  representatives  of  the  people,  who  will  undoubtedly  deem 
it  their  duty  to  attempt  to  give  it  effect  in  the  laws  they  make. 
With  this  tendency  as  a  policy  of  government,  courts  have  noth- 
ing to  do.    If  the  popular  belief  in  a  despotic  or  a  socialistic 
form  of  government  such  as  demands  complete  surrender  of  in- 
dividual liberty,  is  strong  enough  and  general  enough  to  lead 
the  people  to  delegate  it  to  the  legislature,  authority  to  enforce 
such  surrender  will  exist,  and  courts  must  give  full  effect  to  the 
laws  enacted  under  it.    That  authority  has  not  yet  been  given,, 
however;  and  until  the  people,  in  the  prescribed  manner,  shall 
amend  the  constitution,  the  theory  of  government  now  written 
therein  must  control,  and  courts  must  enforce  its  limitations- 
against  legislative  attempts  to  exceed  them.    While  the  judiciary 
18  not  the  guardian  of  civil  rights  or  liberty  in  tlie  abstract,  it  is- 


^40  Amebioan  State  Bbpobts^  Vol.  91.     [Wiscoaiflm* 

ihe  gaardian  of  so  much  thereof  as  by  oonstiiutioiud  restrioti<ms 
the  gOYemmeBt  is  forbidden  to  disturb. 

By  the  constitution  is  granted  the  police  power — ^&e  power 
to  restrain  the  individual  of  some  measure  of  his  liberty  ^ 
Action  and  of  his  property;  but  thi«  goes  no  further  than  to  au- 
thorize the  enactment  of  laws  neoeesary  to  reasonable  jMrotecti^ 
of  the  safety  and  welfare  of  the  general  community,  and  not 
priving  the  individual  of  liberty  in  the  constitutional  sense,    fij 
the  same  instrHment,  Ifterty  is  guaranteed  ^'^  to  tiie  indhld- 
ual ;  but  that  means  only  dvil  liberty — ^that  measure  of  freedom 
which  may  be  enjoyed  in  a  dviliaed  community  oonsietenity 
with  peaceful  enjoyment  of  like  freedom  in  others.    Afaeohrte 
freedom  in  one  is  necessarily  subversive  of  liberty  for  those  with 
whom  he  comes  in  contact,  unless  such  others  be  strong  enough 
to  resist  and  curtail  his  wilL    The  liberty  of  one  man  begins 
where  another's  terminates.     Sudi  definitions  as  the  foregoing 
however^  do  not  greatly  advance  us  toward  any  a  priori  location 
of  a  line  of  demarcation.    They  amount  to  litOe  more  fliaa  s 
declaration  that  police  power  extends  to  such  meaaure  of  le- 
straint  as  is  consistent  with  liberty;  and  liberty,  tiiat  measoie of 
freedom  consistent  with  the  police  power.    This  impoesibilify  of 
exact  demarcation  characterizes  all  discussion  of  the  aabject, 
yet  the  careful  expressions  of  these  alternative  conceptions  of 
properly  limited  government^  on  the  one  hand,  and  due  freedom 
from  restraint,  on  the  other,  are  useful  when  we  approach  a 
concrete  case.    Therefore,  quotations  of  some  sudi  ejqpressions 
may  be  helpful. 

The  conception  of  civil  liberty  has  been  variously  phraecd 
thus :  ''Every  man  may  claim  the  fullest  liberty  to  exensiaa  his 
faculties^  compatible  with  the  possession  of  like  liberty  by  enay 
other'' :  Spencer's  Social  Statics,  94.  ''That  man  is  free  [under 
the  law]  who  is  protected  from  injury":  2  Webster^s  Works 
(Boston,  1854),  393.  "Liberty  consists  in  doing  what  we  ought 
ix>  will,  and  in  not  being  constrained  to  do  what  we  ought  not  to 
will'*:  Montesquieu.  "Even  liberty  itself,  tihe  greatest  of  all 
rights,  is  not  unrestricted  license  to  act  according  to  one's  own 
will.    It  is  only  freedom  from  restraint  under  conditions 


tial  to  the  equal  enjoyment  of  the  same  rights  by  othera" :  Field, 
J.,  in  Crowley  v.  Christeneen,  137  II.  S.  86,  89, 11  Sup.  Ct  Bq». 
13.  "That  government  can  scarcely  be  deemed  to  be  free  when 
the  rights  of  property  are  left  solely  dependent  upon  tiie  will  of 
a  legislative  body,  without  any  restraint" :  Story,  J.,  in  WUkiB* 
«on  V.  Leland,  2  Pet  627. 


Juii«,  1902.]  State  v.  Ereutzbebg.  941 


The  conception  of  fhe  function  of  government  to  re* 
liberty  nnder  the  police  power  has  called  forth  the  follow* 
ing  attempts  at  expression  and  definition :  ^^The  police  power  of 
the  state  •  •  •  •  is  ooeztensiye  with  self -protection^  and  is  not 
in&ptly  termed  the  %w  of  overruling  necessity/    It  may  be- 
aadd  to  be  that  inherent  and  plenary  power  in  the  state  which  en» 
ables  it  to  prohibit  all  things  hurtful  to  the  comfort,  safety,  and 
welfare  of  societ/':  Lake  View  v.  Bose  Hill  C.  Co.,  70  111,  191,. 
2uS  Am.  Bep.  71.    It  is  said  to  be  limited  only  by  the  legislative 
di£cretion,  ^'provided  its  acts  do  not  go  beyond  tiie  great  princi* 
X^le  of  securing  the  public  safet/^ :  State  v.  Noyes,  47  Me.  189. 
*T!f  ....  a  statute  purporting  to  have  been  enacted  to  protect 
tlie  public  health  [etc.]  has  no  real  or  fiubstantial  relation  to 
thosd  objects,  or  is  a  palpable  invasion  of  rights  secured  by  the 
fundamental  law,  it  is  the  duty  of  the  courts  to  so  adjudge'^: 
Harlan,  J.,  in  Mugler  v.  Kansas,  123  U.  S.  623,  661,  8  Sup.  Ct. 
Rep.  273.    It  is  said  that  laws  conflicting  with  express  consti- 
tutional prohibitions  ''can  be  only  such  as  are  so  clearly  neces- 
sary to  the  safety,  comfort,  or  well-being  of  society,  or  so  impera- 
tively required  by  the  public  necessity,  as  to  lead  to  the  rational 
and  satisfactory  conclusion  that  the  framers  of  the  constitution 
could  not  ....  have  intended  to  prohibit  their  exercise  in  the 
particular  case'*:   Christiancy,  J.,  in   People  v.   Jackson  etc. 
Plank  Soad  Co.,  9  Mich.  285.    ''It  must  appear,  fii«t,  that  the 
interests  of  the  public  generally,  as  distinguished  from  a  par- 
ticular class,  require  such  interference;  and,  second,  that  the 
means  are  reasonably  necessary  for  the  accomplishment  of  the 
purpose,  and  not  unduly  oppressive  on  individuals'' :  Lawton  v. 
Steele,  152  U.  S.  133,   14  Sup.  Ct.  Eep.  499.    ''The  legislature 
may  not,  tmder  the  guise  of  protecting  the  public  interests,  arbi- 
trarily interfere  with  private  business,  or  impose  unusual  and 
tmnecessary  restrictions  upon  lawful  occupations":  Id.   "Can- 
not change  innocence  into  guilt,  or  punish  innocence  as  a 
crime":  Chase,  J.,  in  Calder  v.  BuU,  3  Dall.  386.    "Any  law 
which  goes  beyond  **^  that  principle  ["Sic  utere  tuo  ut  alienum 
non  Iffidas"] — ^which  undertakes  to  abolish  rights,  the  exercise 
of  which  does  not  involve  an  infringement  of  the  rights  of  oth- 
ers, or  to  limit  the  exercise  of  rights  beyond  what  is  necessary  to 
provide  for  the  public  welfare  and  the  general  security — cannot 
be  included  in  the  police  power  of  the  government" :  Tiedeman 
Control  of  Persons  and  Property  6.    "The  general  right  of  every 
person  to  pursue  any  calling,  and  to  do  so  in  his  own  way,  pro- 
vided that  he  does  not  encroach  upon  the  rights  of  others,  cannot 


^42  Amebic  AN  State  Bepobts,  Vol.  91,     [Wisconaui, 

be  taken  away  from  him  by  legislatiye  enactment**:  Bnhstrat  ▼. 
People,  185  lU.  133,  76  Am.  St.  Rep.  30,  57  N.  E.  41.  "Of 
course,  for  reasons  of  public  policy,  matters  of  immorality  and 
-crime  cannot  be  the  subject  of  contract.  Bnt  it  is  not  for  the 
legislature  alone  to  declare  public  policy.  If  this  were  so,  then 
«ny  contract  can  be  denounced  as  against  public  policy,  and  the 
-evils  our  fathers  sought  to  be  rid  of  are  with  us  again" :  Niagara 
Fire  Ins.  Co.  v.  Cornell  (C.  €.)>  110  Fed.  816,  822.  'The  poUce 
power  of  the  state  extends  to  ail  regulations  affecting  the  liTes, 
limbs,  health,  comfort,  good  order,  morals,  peace,  and  safety  of 
societ/^ :  Cassoday,  J.,  in  State  ▼.  Heinemann,  80  Wis.  253,  256^ 
«7  Am.  St.  Rep.  34,  49  N.  W.  818. 

Free  will  in  making  private  contracts,  and  even  in  greater 
degree  in  refusing  to  make  them,  is  one  of  the  most  important 
and  sacred  of  the  individual  rights  intended  to  be  protected. 
That  the  present  act  curtails  it  directly,  seriously,  and  prejudi- 
cially, cannot  be  doubted.  The  success  in  life  of  the  employer 
depends  on  the  eflSciency,  fidelity,  and  loyalty  of  his  employes. 
Without  enlarging  upon  or  debating  the  relative  advantages  or 
disadvantages  of  the  labor  union,  either  to  its  members  or  to  the 
eommunity  at  large,  it  is  axiomatic  that  an  employer  cannot 
have  undivided  fidelity,  loyalty,  and  devotion  to  his  interests 
from  an  employ^  who  has  given  to  an  association  right  to  contr(rf 
his  conduct.  He  may  by  its  decisions  be  required  to  limit  the 
amount  of  his  daily  product.  He  may  be  restrained  from  teach- 
ing his  art  to  others.  He  *^*  may  be  forbidden  to  work  in 
association  with  other  men  whose  service  the  employer  desireft. 
He  may  not  be  at  liberty  to  work  with  such  machines  or  upon 
such  materials  or  products  as  the  employer  deems  essential  to 
his  success.  In  all  these  respects  he  may  be  disabled  from  the 
full  degree  of  usefulness  attributable  to  the  same  abilities  in  an- 
other who  had  not  yielded  up  to  an  association  any  right  to  re- 
strain his  freedom  of  will  and  exertion  in  his  employe's  behalf 
according  to  the  latter^s  wishes.  Such  considerations  an  em- 
ployer  has  a  right  to  deem  valid  reasons  for  preferring  not  to 
Jeopardize  his  success  by  employing  members  of  organizations. 
A  man  who  has  by  agreement  or  otherwise  shackeled  any  of  his 
faculties — even  his  freedom  of  will — may  well  be  considered  less 
useful  or  less  desirable  by  some  employers  than  if  free  and  nn- 
trammeled.  Whether  the  workman  can  find  in  his  membership 
in  such  organizations  advantages  and  compensations  to  oBsti 
his  lessened  desirability  in  the  industrial  market  is  a  qnestioii 
leach  must  decide  for  himself.    His  right  to  freedom  in  so  doing 


^ane,  1902.]  State  v.  Ereutzberq.  943 

is  of  the  same  grade  and  eacredneas  as  that  of  the  employer  to 
consent  or  refuse  to  employ  him  according  to  the  decision  he 
makes.     We  must  not  forget  that  our  government  is  founded  on 
the  idea  of  equality  of  all  individuals  before  the  law.     Such  re- 
straints as  may  be  placed  on  one  may  be  placed  on  another.    If 
the  liberty  of  the  employer  to  contract  or  refuse  to  contract  may 
be  denied,  so  may  that  of  the  employ^.    In  answering  the  ques- 
tion now  before  us,  we  may  not  forget  the  possibility  of  being 
called  on  to  answer  whether  the  legislature  may  make  a  criminal 
of  the  employs  who  quits,  for  example,  because  his  employer 
joins  a  blacklisting  association ;  because  nonunion  men  or  mem- 
bers of  some  other  union  are  employed,  or  nonunion  or  forbid- 
den machines  or  materials  are  used;  because  of  an  obnoxious 
foreman ;  because  excessive  houis  of  work  are  required ;  because 
compelled  to  trade  at  employer's  store  or  board  at  his  boarding- 
house;  or  because  of  any  other  fact  or  conduct  now  considered 
entirely  ^^^  adequate  reason  for  refusing  or  leaving  a  particular 
service.    It  must  not  he  forgotten,  if,  as  counsel  for  the  state 
argues,  the  laborer  is  too  weak  to  meet  the  employer  on  equal 
terms  in  the  field  of  contract,  that  he  will  be  far  more  subject  to 
the  latter's  control  and  oppression  in  the  field  of  politics,  and 
that  laws  of  the  above  character  will  surely  come,  if  within  the 
proper  province  of  the  legislature,  unless,  as  we  have  faith  to 
believe,  the  character  and  the  individuality  of  the  wage-earners 
of  the  country  are  suflBcient  to  maintain  their  independence — 
both  contractual  and  political — ^in  a  field  of  equal  rights  under 
the  law,  and  of  full  liberty  to  each  to  sell  and  buy  labor  to  and 
from  whom  he  will. 

As  already  mentioned,  recent  times  have  witnessed  much 
increase  in  legislative  activity  in  the  way  of  interference  with 
individual  conduct,  and  especially  with  transactions  between  em- 
ployer and  employ^.  The  views  of  the  courts  as  to  the  constitu- 
tionality of  many  such  laws  are  in  serious  conflict,  as  illustrated 
by  the  following  decisions .  Statute  and  common-law  prohibition 
against  conspiracies  have  generally  been  held  invalid  so  far  as 
they  merely  prohibit  the  employ^  from  quitting  individually  or 
in  concert  with  others:  Arthur  v.  Oakes,  11  C.  C.  A.  209,  63  Fed. 
310 . 1  Tiedeman  Control  of  Persons  and  Property,  424,  where  it 
is  said:  "No  law  could  deny  him  this  right,  without  violating  the 
constitutional  principle  of  liberty  of  contract,  unless  he  hap  been 
engaged  to  serve  for  a  definite  period  of  time.^'  An  act  forbid- 
ding deductions  from  wages  because  of  defective  work  is  held  in- 
vaUd,  so  far  as  it  interferes  with  the  making  of  contracts  for  em* 


944  American  State  liEi'OiiTS,  Vol.  91.     [Wisconsin^ 

ployment,  in  Commonwealth  y.  Perry,  155  Mass.  117,  31  Am.  SU 
B^.  533, 28  N.  E.  1126.    Acts  regulating  the  time  of  payment 
of  wages  in  defiance  of  contract  are  held  valid  in  Skinner  ▼.  6ar> 
nett  Gold  Min.  Co.,  96  Fed.  735,  and  in  Opinion  of  Justices^  163^ 
Mass.  589,  40  N.  £.  713 ,  but  invalid  iu  Leep  ▼.  St  Louis  etc 
By.  Co.,  58  Ark.  407, 427, 41  Am.  St.  Bep.  109,  25  S.  W.  75,  and 
Braceville  Coal  Co.  v.  People,  147  IlL  66,  37  Am.  St  Bep.  206, 
3&  N.  E.  62.    Acts  in  mining  regions  requiring  that  payment 
^^^  shall  be  based  upon  coal  without  screening,  so  far  as  they 
prohibit  contracts  to  the  contrary,  are  held  invalid  in  Bamsey  t. 
People,  142  111.  380,  32  N.  E.  364,  and  In  re  Preston,  6S  Ohio 
St.  428,  81  Am.  St  Bep.  642, 59  N.  E.  101 ;  vaKd  in  State  v.  Wil- 
son, 7  Kan.  App.  428, 53  Pac.  371.    Acts  prohibiting  payment  in 
orders  are  held  unconstitutional,  as  invading  the  liberty  of  con- 
tract, in  State  v.  Haun,  61  Kan.  146,  59  Pac.  340 ;  Prorer  v.  Peo- 
pie,  141  111.  171,  31  N.  E.  395;  State  v.  Loomis,  115  Mo.  307,  22 
S.  W.  350;  Godcharles  v.  Wigeman,  113  Pa.  St.  431,  6  AtL 
354;  and  valid  in  Dayton  C.  &  I.  Co.  v.  Barton,  103  Temu 
604,  53  S.  W.  970;  Harbison  v.  Knoxville  I.  Co.,  103  Temu 
421,  76  Am.  St  Bep.  682,  63  S.  W.  955 ;  KnoiviUe  I.  Co.  v. 
Harbison,  183  U.  S.  13,  22  Sup.  Ct.  Bep.  1 ;  also  in  Hancock 
V.  Yaden,  121  Ini  366,  16  Am.  St.  Bep.  396,  23  N.  E.  253; 
but  in  the  last  case  on  the  ground  that  the  state  has  the  right 
to  prohibit  the  use  of  anything  except  legal  tender  to  circulate 
as  money.     Statutes  limiting  hours  of  labor  have  been  held  in- 
valid, as  infringing  the  right  of  contract,  in  Low  ▼.  Rees  P. 
Co.,  41  Neb.  127,  43   Am.  St  Bep.  670,  69   N.  W.  362,  and 
Bitchie  v.  People,  155  111.  98,  46  Am.  St  Bep.  315,  40  N.  E. 
454,  on  the  ground  that  his  labor  is  the  property  of  the  woik- 
ingman,  and  government  has  no  power  to  restrict  him  in  sdl- 
ing  it  as  he  deems  most  to  his  advantage.    Such  l^slation  is 
held  valid  in  Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct 
Bep.  383,  with  reference  to  labor  in  mines,  on  the  gronnd  that 
long  hours  are  prejudicial  to  health,  and  therefore  within  proper 
regulation,  under  the  police  power,  to  preserve  the  general 
health.     An  act  prohibiting  farriers  from  shoeing  horses  with- 
out first  obtaining  a  license  is  held  unconstitutional  in  Illinois: 
Bessette  v.  People,  193  111.  334,  62  N".  E.  215,  219. 

The  nearest  parallel  we  have  found  to  the  act  in  question 
are  laws  enacted  in  Missouri  and  Illinois,  nearly  identical  with 
our  law  as  it  existed  before  the  amendment  of  1899 — ^namdy, 
making  criminal  attempts  to  coerce  employes  against  memb»«* 
ship  in  labor  unions,  by  discharge  or  otherwise.  In  State  v. 
Jnlow,  129  Mo.  163,  50'  Am.  St  Bep.  443,  31  S.  W.  781,  meb 


June,  1902J  State  v.  Krbutzbebg.  945- 

law  was  held  ^^^  nneonstitiitioiial  as  unduly  invading  fhe  libr 

eity  of  the  employer  to  make  or  refuse  to  make  contracts  with 

whom  he  pleased.    In  that  case  the  act  committed  was  merely 

difieharging  an  employ6^  and  it  was  contended  that  it  was  pro^ 

hibited  by  fhe  law.    The  court  said :  ''If  an  owner  [etc.]  obeyt^ 

the  law  on  which  this  prosecution  re^ts^  he  is  thereby  deprived 

of  a  right  and  a  liberty  to  contract  or  terminate  a  contract 

aa  all  others  may.  ....  We  deny  the  power  of  the  legislature 

to  do  this;  to  brand  as  an  offense  that  which  the  constitution 

deeagnates  and  declares  to  be  a  right,  and  therefore  an  innocent 

acf    And  further:  ''Nor  can  the  statute  escape  censure  by 

assuming  the  label  of  a  police  regulation.    It  has  none  of  the 

elements  or  attributes  whidi  pertain  to  such  a  regulation,  for 

it  does  not>  in  terms  or  by  implication,  promote,  or  tend  to 

promote,  the  public  health,  welfare,  comfort,  or  safety;  and, 

if  it  did,  the  state  would  not  be  allowed,  under  the  guise  and 

pretense  of  police  regulation,  to  encroach  or  trample  upon  any 

of  the  just  rights  of  the  citizen,  which  the  constitution  intended- 

to   secure  against  dimdnution   or  abridgment     In   Oillespie 

V.  People,  188  lU.  176,  80  Am.  St.  Eep.  176,  68  N.  E.  1007, 

was  considered  a  similar  act,  claimed  to  be  breached  by  dis^ 

charging  an  employ^  because  he  was  a  member  of  a  ceriain 

labor  organization.    That  court  also  held  the  act  unoonstitu^ 

tional,  adopting  substantially  the  views  of  the  Missouri  court 

in  the  preceding  case.    The  court  said:  "One  citizen  cannot 

be  compelled  to  give  employment  to  another  citizen,  nor  can 

anyone  be  compelled  to  be  employed  against  his  wiU.    The  act 

....  now  under  consideration  deprives  the  employer  of  the 

right  to  terminate  his  contract  with  his  employ6.    The  right 

to  terminate  such  a  contract  is  guaranteed  by  the  organic  law 

of  the  state.     The  legislature  is  forbidden  to  deprive  the  em* 

ployCT  or  employ6  of  the  exercise  of  that  right.     The  legisla- 

ture  has  no  authority  to  pronounce  the  performance  of  an  in- 

nocent  act  criminal,  when  the  public  health,  safety,  comfort,  or 

welfare  is  not  interfered  with/'    "Liberty  *^^  includes  not 

only  the  right  to  labor,  but  to  refuse  to  labor,  and  consequently 

the  right  to  contract  to  labor  or  for  labor,  and  to  terminate 

such  contracts,  and  to  refuse  to  make  such  contracts.'* 

On  this  subject  Mr.  Tiedeman  (Control  of  Persons  and  Prop- 
erty  332)  declares  the  opinion  that  a  state  statute  which  made  it 
unlawful  for  an  employer  to  refuse  to  employ  union  men,  or  to 
compel  an  employ^  to  withdraw  from  a  trade  union  on  pain 
of  dismissal,  would  be  clearly  unconstitutional.     In  Georgia 

Am.  St.  Rep.,  YoL  91—60 


4>4:6  Ambbicam  Statb  Bbpobts^  Yol.  91.    [Wisconsiii, 

«  atatute  requiring  an  employer  to  give  to  a  discliarged  irork- 
man  a  certificate  stating  the  reasons  of  the  discharge  is  held 
tinconstitutional  on  the  ground  that  the  right  of  discharge  may 
•be  exercised  without  any  reason  Or  explanation:  Wallace   ▼. 
•Georgia  etc.  Ry.  Co.,  94  Ga.  732,  22  S.  E.  679.    In  IGfisonii 
the  same  principle  on  which  an  act  prohibiting  discharge  of 
men  by  reason  of  membership  in  unions  was  held  unconsti- 
tutional in  the  Julow  case,  supra,  is  held  to  preclude  inter- 
ference with  members  of  a  union  in  soliciting  others  to  refuse 
to  trade  with  a  manufacturer:  Marx  etc.  Co.  ▼.  Watson,  166 
Mo.  133,  67  S.  W.  391.    In  New  York,  union  men  are  held 
not  liable  for  compelling  discharge  of  nonunionists  by  threats 
to  strike:  National  Pro.  Assn.  ▼.  Gumming,  170  N,  T.  315, 
63  N.  E.  369.    Many  other  illustrations  might  be  given,  but 
the  foregoing  suffice  to  show  the  confusion  among  different 
courts,  and  probably  the  general  tendency  on  such,  subjects. 

In  considering  our  own  statute  under  which  relator  is  com- 
mitted, it  must  first  be  noted  that  we  are  concerned  only  witb  that 
portion  added  to  pre-existing  statutes  (Stats.  1898,  sec.  4466b) 
by  the  act  of  1899:  ^'No  person  or  corporation  shaH  diaebaige 
an  employ6  because  he  is  a  member  of  any  labor  organization,'^ 
for  the  relator  is  not  charged  with  breach  of  any  other  of  the 
provisions  of  that  act.  Confining  ourselves,  then,  to  the  act 
so  charged  and  the  statutory  prohibition  involved  ***•  is  it 
within  the  legislative  povrer  to  make  criminal  the  refusal  to 
contract  with  another  for  his  labor  for  any  reason  which  the 
employer  deems  cogent?  We  speak  of  refusal  to  contract,  for, 
while  the  act  mentions  only  discharge,  it  is  in  no  wise  limited 
to  situations  where  there  is  any  contract  or  other  right  to  oon- 
trnuance  of  employment,  and  is  obviously  intaided  by  the 
framers  to  apply  generally  to  the  relation  of  employer  and  em- 
ploy6,  where,  as  common  knowledge  assures  us,  there  is  usually 
no  term  of  employment  and  each  day  constitutes  a  new  con- 
tract. As  each  morning  comes,  the  employ6  is  free  to  decide 
not  to  work,  the  employer  to  decide  not  to  receive  him,  bnt 
for  this  statute.  That  the  act  in  question  invades  the  liberty 
of  the  employer  in  an  extreme  degree,  and  in  a  respect  entitled 
to  be  held  sacred,  except  for  the  most  cogent  and  urgent  coim- 
tervailing  considerations,  we  have  pointed  out.  Hardly  any 
of  the  personal  civil  rights  is  higher  than  that  of  free  will 
in  forming  and  continuing  the  relation  of  master  and  servant. 
If  that  may  be  denied  by  law,  the  result  is  legalized  thraldom, 
not  liberty — certainly  not  to  the  laboring  men  of  ihe  countiy. 


JunBy  1902.]  BtATS  9.  K&butzbebg.  947 


aspeot  of  the  cmbject  is  too  clear  to  warrant  further  dis- 
enssion.     Is  there  any  conceiyable  reaeon  to  warrant  such  ex- 
treme invasion  of  individual  liberty?    Can  it  be  neceaeary 
to  the  reasonable  liberty  of  others  nnder  the  law?    The  act 
here  charged  as  criminal  clearly  does  not  deprive  any  other 
person  of   any  private  or  civil  right.    Its  utmost  effect  is  to 
deny  privilege  of  contract,  but  no  right  exists  to  enter  into  con- 
tract with   another  against  his  will.    The  maxim,  ^Sic  utere 
tuo  ut  alienum  non  Isedas/  cannot  justify  restraint  of  acts  which 
do  not  injure  others  in  their  legal  rightsi.    We  therefore  find 
entirely   lacking  one  of  the  requisitee  of  the  police  power  to 
restrain  conduct,  declared  by  many  authoritieB  to  be  an  essen- 
tial— namely,  that  «uch  conduct  shall  injuriously  affect  the 
rights  of  others :  1  Tiedeman  Control  of  Persons  and  Property  6 ; 
Kuhstrat  v.  People,  186  111.  133,  76  Am.  St  Kep.  30,  67  N.  E. 
41;  Niagara  Fire  Ins.  Co.  v.  Cornell  (C.  C),  110  Fed.  816. 

•*'*'  But  fliough  not  directly  injurious  to  the  rights  of  other 
individuals,  is  the  forbidden  act  injurious  to  the  welfare  of  the 
eommnnity?    Is  its  prohibition  so  essential  to  the  existence 
of  good  government  that  we  must  aasrume  the  constitution  build- 
ers intended  the  liberty  which  they  reserved  should  be  subject 
to  it?     Or  does  it  so  tend  to  promotion  of  public  peace  or  safety 
that  we  can  reasonably  attribute  to  the  legislation  such  a  pur- 
pose?    After  most  careful  consideration,  we  find  ourselves  un- 
able to  reach  an  affirmative  answer  to  any  of  these  queries.    We 
have  aoQght  to  give  to  the  legislature  the  benefit  of  every  doubt.« 
We  have  examined  the  decided  cases  in  great  number;  we  in- 
vited couiffiel  for  the  state  to  suggest,  and  we  have  given  loose 
to  our  own  invention  and  imagination;  but  we  are  unable  to 
discover  reason  to  think  that  the  legislation  is  needful  for  or 
even  calculated  to  protect  public  welfare,  though  cogent  reasons 
to  the  contrary  readily  present  themselves.    Those  courts  which 
have  sustained  the  various  laws  above  mentioned,  interfering 
in  some  degree  with  freedom  of  contrad;,  when  they  have  dis- 
cussed the  subject,  have  found  some  respect  in  which  the  pub- 
lie  were  interested,  or  thought  to  be.    Thus,  in  forbidding  the 
ficreening  of  coal  before  weighing,  the  legislature  was  held  to 
be  exercising  merely  the  recognized  governmental  function  of 
regulating  weights  and  measures :  State  v.  Wilson,  7  Kan-  App. 
428,  53  Pac.  371 ;  Yates  v.  Milwaukee,  12  Wis.  673.     Limiting 
hours  of  labor  in  mines  or  of  children  in  factories  has  been 
justified  by  the  peril  to  general  health :  Holden  v.  Hardy,  169 
V.  8.  366,  18  Sup.  Ot.  Rep.  383.    Prohibition  of  payment  in 


948  Ameiiican  State  Sepohts^  Vol.  91.     [Wiscoxisuiy. 

orders  hafi^  beeu  sustained  upon  the  governmental  power  to 
regulate  current  money:  Hancock  v.  Yaden,  121  Tnd.  366,  16 
Am.  St.  Eep.  396,  23  N.  £.  253.  In  Wisconsin,  laws  hare  beca 
treated  as  or  declared  valid,  though  restricting  freedom  in  eon-- 
ducting  business,  when  was  apparent  a  purpose  of  promoting^ 
or  protecting  public  health  in  (slaughter-houses)  Taylor  ▼• 
State,  35  Wis.  298 ;  (pharmacists)  State  v.  Heinemann,  80  Wia* 
253,  27  Am,  St  Eep.  34,  49  N.  W.  818;  »*»  (plumbers)  State 
V.  Benzenberg,  101  Wis.  172;  76  N.  W.  346;  (phyacians)  State 
y,  Currens,  111  Wis.  431,  87  N.  W.  561.  ObTioualy,  how< 
none  of  these  considerations  can  be  involved  in  the  policy 
derlying  l^e  legislation  now  under  consideration. 

One  menace  to  public  welfare  was  suggested  by  eomiBel  for 
plaintiff  in  error,  based  upon  the  assertion  that  diadiarges  of 
employfe,  especially  union  men,  are  likely  to  be  followed  by 
turbulence,  violence,  and  even  bloodshed;  hence  that  it 
proper  to  deprive  employers  of  their  rights^  presumably 
cause  they  are  ordinarily  law-abiding  and  will  not 
trouble.  We  decline  to  acknowledge  as  a  fact  that  the  labor- 
ing  men,  as  a  class,  union  or  nonunion,  are  more  prone  to  law- 
breaking  or  violence  than  other  classes  of  the  community,  or  to 
adopt  the  theory  that  the  legislature  so  assumed.  But 
if  that  assumption  were  made,  it  would  constitute  no  justii 
tion  for  depriving  one  man  of  his  liberty  of  contract  that 
other  was  likely  to  commit  crimes  or  breaches  of  the  peace. 
As  well  deny  the  right  of  private  ownership  of  chattels  because 
they  tempt  the  thief  to  steaL  Neither  the  restriction  imposed 
nor  the  penalty  is  at  all  relevant  to  the  public  purpose  sought^ 
nor  to  the  wrongful  acts  threatened.  Nevertheless,  the  sug- 
gested purpose  seems  to  have  had  weight  with  the  supreme  court 
of  Tennessee  in  Harbison  v.  Knozville  I.  Co.,  103  Tenn.  443^ 
76  Am,  St  Eep.  682,  63  S.  W.  960,  as  justifying  an  act  com- 
pelling  mining  employers  to  pay  in  money  orden  for  ooal 
issued  to  their  workmen.  Whether  the  characteriaticB  of  wage- 
earners  in  Tennessee  or  the  conception  of  liberty  are  such  as  to 
warrant  the  decision  must  be  left  to  the  courts  there.  We  can- 
not 60  view  them  in  Wisconsin.  It  is  the  reservation  of  Ub^ty 
and  pursuit  of  happiness  made  by  our  own  constitution,  thus 
limiting  the  police  power  conferred  upon  our  legislature,  by 
which  we  must  be  controlled.  Thereunder  we  hold  that  free* 
dom  to  make,  and,  even  more,  to  refuse  to  make,  contraeta^ 
whereby  no  rights  of  others  suffer,  cannot  be  reetrictedy  •^ 
unless  otherwise  will  result  substantial  disturbance  of  the  publio 


June,  1902.]  Stats  v.  K&eutzbsbg.  V^4^ 

liflami,  safety,  or  welfare,  and  that  even  a  possible  tendency  of 
some  persons  to  wrongfully  disturb  the  peace  when  thwarted  of 
their  will  constitutes  no  justification  for  restraining  others  of 
their  just  rights;  nor,  if  so,  is  the  present  act  at  all  calculated 
•or  reasonably  necessary  to  prevent  the  only  suggested  menace  to 
the  commiinity. 

Ab  the  legislation  clearly  and  beyond  doubt  Invades  the  nat- 
ural liberty  of  the  individual,  it  must  be  void,  unless  we  can 
discover  both  the  existence  of  a  public  need,  and  at  least  tend- 
•eocy  of  the  statute  to  provide  therefor.  In  fiie  search  for  such 
need  and  purpose  we  must  and  do  concede  to  the  legislative 
branch,  of  the  government  the  fullest  exercise  of  discretion 
within  the  realm  of  reason,  and,  if  a  public  purpose  can  be  con- 
•ceived  which  might  rationally  be  deemed  to  justify  the  act,  the 
court  cannot  further  weigh  the  adeqaacy  of  the  need  or  the  wis- 
dom of  the  method.  When,  however,  after  all  diligence  and  re- 
jection, we  are  unable  to  discover  any  such  public  need  or  pur- 
pose, we  have  no  alternative  conclusion,  save  that  the  legislature 
has,  ''under  the  guise  of  protecting  public  interests,  arbitrarily 
interfered  with  private  business  and  imposed  unusual  and  un- 
necessary restrictions  upon  lawful  occupations,''  which  it  may 
not  do :  Lawton  v.  Steele,  152  TJ.  S.  133,  14  Sup.  Ct.  Rep.  499. 
It  has,  then,  taken  from  one  his  liberty  and  property,  not  for  a 
public  purpose,  but  for  the  benefit  of  other  individuals,  which 
is  but  robbery  under  the  forms  of  law:  Citizens'  etc.  Aasn.  v. 
Topeka,  20  Wall.  655,  664. 

The  act  of  1899  is  further  assailed  upon  the  charge  that  it 
is  class  legislation,  not  affecting  alike  all  persons  similarly  situ- 
ated and  conditioned,  and  therefore  prohibited  by  the  require- 
ment of  article  1,  section  1  of  our  constitutioir— that  equal  free- 
dom be  preserved  to  all  men— discussed  in  State  v.  Curreus,  111 
Wis.  431,  87  N.  W.  561,  and  Black  v.  State,  113  Wis.  205,  89  N. 
W.  522.  This  objection  was  sustained  in  State  v.  Julow, 
129  Mo.  163,  50  Am.  St.  Eep.  443,  31  S.  W.  781,  and  «»® 
Gillespie  v.  People,  188  IlL  176,  80  Am.  St.  Eep.  176,  58 
17.  E.  1007;  but,  as  we  have  reached  the  conclusion  that  the 
legislation  is  not  within  the  police  power  of  this  state  at  all,  we 
iieed  not  consider  whether  the  attempted  exercise  of  that  p^wer 
ia  defective. 

We  agree  with  the  trial  court  that  the  enactment  under  con- 
^deration  exceeded  the  limitations  imposed  by  the  constitution 
•of  Wisconsin  upon  the  legislature.  It  is  therefore  void,  and 
<^nferred  no  power  upon  the  magistrate  to  make  the  commit* 


meat  under  whidi  petitumer  was  held  in  custody.     Hu  iSm 
charge  therefrom  was  not  error. 

By  the  Court.    The  order  of  the  superior  court  of  Milwanka^ 
-eotmty  is  affirmed. 


Constitutional  Laio.— A  statute  making  it  criminal  for  any 
ployer  to  attempt. to  prevent  hia  employ^  from  joining  labor  HBion%. 
or  to  discharge  him  because  of  his  connection  with  a  labor  vsmm^ 
was  declared  unconstitutional  in  Gillespie  ▼.  People^  188  CL  176^ 
80  Am.  St.  Bep.  176,  6S  N.  E.  1007.  And  in  State  t.  Jnlow,  12» 
Mo.  163,  60  Am«  St  Bep.  44&,  31  &  W.  781,  a  statute  laakiiig  it  • 
crime  for  an  employer  to  impose  a^  a  condition  of  employment  tfaet 
his  employ6  shaU  withdraw  from  or  refrain  from  joining  any  trade 
or  labor  union,  was  held  unconstitutional:  See,  in  this  eonneetiooy 
People  V.  Color,  166  N.  Y.  1,  82  Am.  St  Bep.  60$»  l>9  N.  B.  7U. 
In  States  ▼.  Justus,  85  Minn.  279,  80  Am.  St  Bep.  650,  88  N«  W. 
769,  a  statute  prohibiting  the  blacklisting  of  discharged  employ^ 
was  upheld*  An  employer  ie  not  imder  any  obligation  to  give  Ue 
discharged  employ^  a  clearance  paper:  New  York  ete.  B.  B*  Oo.  ^ 
Schaffer,  65  Ohio  St  41i.  87  Am.  St  Bc^  628,  62  N.  B.  lOSe. 


INDEX. 


«n 


ABBITBATIOir  AND  AWABD. 

ABBXTBATIOK^Agreements  for«  Wlien  Void.— An  Agreein«iit 
to  mlsjiiit  to  arbitration  a  controvers/  which  has  not  yet  ariaon  !• 
▼oid.      (fi.  L)    Fepin  t.  Societe  St.  Jean  Baptiste^  6&0. 

AOOZDENT   UXSURAJXOB. 
8e«  Inmiranee. 

AOOOBD  AND  BATZflFACmOK. 

AOOOBD  AND  BATZSFAOTIOK— OonsideratioiL— A  eonrflj- 
anee  bj  the  debtor  of  his  absolute  title  to  property  held  by  tii» 
ereditor  as  eollateral  seenrity  only,  and  a  waiver  by  the  debtor  of 
Ufl  right  to  the  benefit  of  the  bankrupt  laws^  is  a  soffieient  eon- 
■Idaration  to  support  a  settlement  of  the  indebtednese  upon  payment 
of  part  of  it.    (Wis.)    Herman  t.  Behlesingery  922. 

Aeconntliig   between    eotenants   of   mines   for   profits   realized   by 
one  of  their  number  when  operating  on  his  own  aeeonn^ 
875-830. 
between  eotenants  of  mines  for  rents  or  royalties  reeeivedi  875* 
876. 

ADXJLTESATION. 

PUBS  FOOD  XAW— Oonstmetion  of.— If  one  seetion  of  a  stat» 
ute  proTides  that  the  dairy  eommissioner  may  seize  any  artidie  whose 
■ale  is  prohibited  by  the  act,  and  another  seetion  prohibits  the 
Banafaeture  or  sale  of  proeess  butter  unless  plainly  marked,  the 
eommissioner  may  seise  sneh  butter  when  kept  in  violation  of  law.. 
(Wash.)    Hathaway  t.  McDonald,  889. 

ADVEBSE  POSSESSION. 

ADVEBSE  POSSESSION,  Taken  Under  a  Oonyeyance,  Cannot 
Bxtond  Beyond  the  Lands  Described  Therein  to  other  lands  mistakenly 
believed  by  the  grantee  to  be  included  in  his  deed,  but  of  whieh  he 
did  not  take  possession.     (Ark.)    Bust  Land  ete.  Co.  t.  Isomi  68. 

See  Mines  and  Minerals,  7. 

AFFIDAVIT. 
See   Proeess. 

AOENOT. 

See  Principal  and  Agent. 

(MI) 


952  IiiDEZ. 


ALTM0K7. 
See  Divorce;  Fraudulent  Convegraaeei^  7. 


See  Druggists 

AFPBAJL  AKB  B(BO». 

1*    ATFEIiLATB  FBOOEDXJBE.— An  Order  Befosliig  ma 
tton  Pendente  Lite  Is  AppealaMe  under  the  etatntee  of  IContaBft. 
(Mont.)    Jordan  t.  Andrue,  396. 

2.  APPEUiATB  PBOCaSDintE— AtttoFlt  on  Appeal  Prematnraly 
lyUile.— An  affidavit  that  the  appeal  is  not  taken  for  the  porpose  of 
delaji  but  that  justice  may  be  done,  required  by  the  statutes  of 
Arkansas,  thpugh  made  before  the  judigment  appealed  from  was  ren- 
dered, is  a  substantial  compliance  with  the  statute,  and  the  nppesl 
will  not  be  dijmiissed.     (Ark.)     Bust  Land  etc  Go.  t.  Isom,  68. 

8.  APFEAZfc— Appellants  may  Waive  Exceptions  to  the  Ffndliia 
and  bring  their  ease  to  the  sspreme  court  on  errors  arising  upon  de 
pleadings.     (Wash.)     Hathaway  v.  McDonald,  889. 

4.  APPELLATE  nLA0Z19B.^Q«neral  Exceptions  or  exceptions 
to  a  whole  paragraph  in  the  eharge  of  the  court  to  the  jury  are  insolli- 
eient  to  raise  any  qvestien  on  appeal.     (Utah)     State  v.  King^  808. 

6.    APPELLATE  FEAOTiaE.— Assignments  of  Exxor  frasied  in 

entire  disregard  of  the  rules  of  pleading  and  of  practise  in  the  m^ 
p«llate  court  cannot  be  considered  on  appeaL  (N.  J.  L.)  Kvoy  t. 
Pennsylvania  B.  B.  Co.,  445. 

6.  APPEAL— Fraud  at  TriaL— The  supreme  court,  although  all 
the  testimony  has  been  brought  up,  is  not  so  good  a  judge  of  whether 
fraud  was  perpetrated  at  the  trial  as  the  court  below,  and  its  judg- 
ment will  not  be  interfered  with,  an  abuse  of  its  discretion  not  ap- 
pearing.    (Wash.)     Callihan  v.  Washington  Water  Power  Co.,  829. 

7.  APPEAL.— The  Supreme.  Court  may  AfOrm  a  Judgment 
on  a  directed  verdict  if  it  finds  either  of  the  grounds  stated  in  the 
motion  therefor  well  taken,  though  it  may  not  be  the  gronnd  upon 
which  the  verdiet  actually  was  directed.'  (S.  Dak.)  Tobin  ▼•  ICe- 
£inney,  688. 

8.  APPELLATE  PEOOEDUBE— Practice,  Who  may  bo  OnittsA 
ftom. — If  in  a  suit  to  foreclose  a  mortgage  certain  persona  are 
made  defendants  under  a  general  allegation  that  th^  claim  to 
own  or  hold  some  right,  title,  or  interest  in  the  real  estate,  but  there 
as  no  judgment  for  or  against  them,  the  failure  to  make  them  par- 
ties to  the  proceeding  in  error  is  not  a  ground  for  dismissal.  (Kan.) 
;8kinner  v.  Moorey  244. 

d.  APPEULATE  PBOCEDtTBE.— On  Appeal  it  is  no  I^onger  a 
<()aesUon  of  the  Preponderance  of  Evidence,  but  only  whether  it  was 
legally  sufficient  to  support  the  verdict  (Ark.)  St.  Louis  ete.  Bj. 
Oo.  ▼.  Wilson,  74. 

See  Constitutional  Law,  5;  Judgments^  7. 

ABGUMENT  OF  COX7NSEL. 

See  Criminal  LaW|  6. 

.ATTOEZTEY  AND  OUEMT; 
See  Criminal  Law,  6;  Witnesses. 


Ikd£Z«  968 

ATTOBMEY'8  FEES. 
Bee  Carrier  By  13;  Divorce^  8-S. 

AoditoxB,  eomtty,  sureties  of,  liability  for  issuing  fraudulent  bonds  or 
wamuits,  571,  572. 

BATLMEITTS. 

KATTiMEHTg.— The  Statate  of  Linoitatlens  does  not  begin  to 
nm  in  favor  of  a  bailee  and  against  a  bailor  until  the  latter  has 
made  domand,  when  the  bailment  is  gratuitous,  and  the  bailee  holds 
speeille  propertj  for  the  benefit  of  the  bailor  without  permisaioa 
or  authority  to  use  it.     (Tenn.)     Goodwin  y.  Bay,  761. 

SAUiOxa 

See  Eleetiona 

BAmObXTPTCT. 

See  Libely  2. 

BANKS   AND   BAIIKZNO. 

!•    A  BANK  l8  not  Uable  to  Depositors,  except  after  demand  of 
payment.     (8.  Dak.)     Tobin  y.  McKinney,  688. 

la.  A  CEBTIFIOATE  OF  DEPOSIT,  payable  to  the  order  of  the 
depositor  on  its  return  properly  indorsed,  does  not  mature  until  so 
returned,  and  a  suit  thereon  cannot  be  maintained  without  demand* 
(S.  Dak.)      Tobin  y.  McKinney,  694. 

2.  AOZSNOY— Bank  Cashier.— The  same  rules  of  agency  apply 
to  bank  cashiers  as  to  other  persons  occupying  fiduciary  relations. 
(N.  J.  L».)     Campbell  v.  Manufacturers'  Nat.  Bank,  438. 

S.  AOBNCT->Bank  Cashiers.— A  pierson  cannot  deal  with  a  bank 
cashier  as  an  individual  in  securing  a  draft,  and  then  claim,  after 
the  draft  is  delivered,  that  it  has  become  the  transaction  of  the 
bank.     (N.  J.  L.)     Campbell  v.  Manufacturers'  Nat.  Bank,  438. 

4.  AOBNCY.— To  Make  Acts  of  Bank  Cashiers  Valid  as  against 
their  banks,  the  transaction  must  be  a  bank  transaction  made  by 
the  cashier,  within  his  express  or  implied  authority  in  the  conduct 
of  the  business  of  the  bank,  and  so  long  as  a  person  deals  with  the 
cashier  in  a  matter  wherein,  as  between  himself  and  the  cashier, 
he  is  dealing  with^  or  has  a  right  to  believe  he  is  dealing  with,  the 
bank,  the  transaction  is  obligatory  upon  the  latter.  (N.  J.  L.) 
Campbell  v.  Manufacturers'  Nat.  Bank,  438. 

ft.  BANKS  AND  BANKINO— Power  of  Bank  Oashiers— Presump- 
tions.— While  a  bank  cashier  is  presumed  to  have  all  the  authority 
he  exercises  in  dealing  with  executive  funetions  legally  within  the 
powers  of  the  bank^  or  which  are  usually  or  customarily  done,  or 
keld  out  to  be  done  by  such  officer,  the  test  of  the  transaction  is 
whether  it  is  with  the  bank  and  its  business,  or  with  the  cashier  per- 
sonally and  in  his  business.  As  to  the  former,  all  presumptions  are 
in  favor  of  its  validity  as  against  the  bank.  In  the  latter  no  such 
presumptions  are  indulged.  (N.  J.  L.)*  Campbell  v.  Manufacturers' 
Nat.  Bank,  438. 

6.  BANKS  AND  BANKENO— Transactions  with  Cashier.— If  a 
transaction  between  an  individual  and  a  bank  cashier  is  known  to 
the  individual  to  be  a  personal  transaction,  and  not  one  for  the  bank^ 


S54  Indrx. 

the  burden  of  proof  is  Tipon  liim  to  establfsli  that  the  aet  of  the- 
eashler  thus  done  for  hie  individnal  benefit  was  anthorized  or  rmtifled 
by  the  bank.     (N.  J.  L.)     Campbell  t.  Manufaetnren'  Nat.  Bank,. 

4da. 

7.  BANKS  AND  BANKINO— Frandulent  ^eti  pt  Oaiklar—Batt- 
ficatloii  and  EBtoppeL— If  a  bank  gives  its  eashier  anthoritjr  t» 
draw  drafts  for  his  own  aeeonnt  on  its  funds,  or  ratifies  his  acts  im 
known  transactions  which  he  openly  conducts,  honestly  or  dUioa^ 
estly,  it  is  estopped  to  say  that  a  similar  transaction,  secretly  and 
by  concealment  conducted  by  him,  does  not  bind  it,  but  sock  e9> 
toppel  and  ratification  does  not  arise  from  concealed  dishonest  trans- 
actions by  the  cashier  unknown  to  the  banka  (N.  J.  L.)  Campbell 
▼•  Manufacturers'  Nat.  Bank,  438. 

8.  BANKS  AND  BANKINO— Frandnlent  Acts  of  Oadiiar— Batl^ 
ficatlon.— Failure  on  the  part  of  the  officers  and  directors  of  a  bank 
to  detect  the  concealed  and  fraudulent  acts  of  its  cashier,  which  a» 
inspection  of  the  records  and  books  of  the  bank  with  or^nary  eare 
would  not  have  disclosed,  will  not  work  a  ratifieation  of  sneh  dis- 
honest acts.    (N.  J.  L.)    Campbell  y.  Manufacturers'  Nat.  Bai^  438L 

Banklzig;  draft  attached  to  bill  of  lading,  liability  of  eonsigiiae 
'    on  acceptance  of,  212-216. 
draft  attached  to  bill  of  lading,  recovery  of  money  paid  iip0% 

212-216. 
interpleader,  bills  of  to  determine  to  whom  moneys  0]i  deporf^ 
eh*ll  be  paid,  608,  609. 

See  Limitation  of  Actions,  6-8;  Salei^  8. 

BASTABD8. 

1.  BASTABDT  FBOCStolNO— Pxofert  of  OhiUL— In  a  bastaHr 
proceeding  it  is  eompetent  to  make  prof ert  of  the  ehild  to  the  farf 
to  show  its  likeness  to  the  defendant.     (Ala.)    Kelly  t.  State,  25. 

2.  BASTABDY  FBOOEEDINO— Association  Witb  Other  HsB.— 
In  bastardy  proceedings,  if  the  state  proves  the  defendant's  as* 
■oeiation  with  the  prosecutrix  at  about  the  date  of  conception,  hm^ 
may  show  that  about  the  same  time  she  associated  with  other 
(Ala.)    Kelly  v.  8Ute,  25. 


BENBFIOIAIi  ASSOCIATIONS— By4aw8  B8q[lliililt 
for  Benefits  to  be  Submitted  to  Arbitration  of  a  Oemmlltea  «f  the* 
AssociatUML— A  by-law  of  a  beneficial  association  requiring  erery  con- 
testation between  it  and  its  members  to  be  referred  to,  and  decided' 
by,  a  committee  of  five  persons,  two  to  be  appointed  by  it,  two  by  the 
member,  and  a  fifth  by  the  other  four,  and  that  the  decision  of  sseh 
committee  is  final,  cannot  prevent  the  member  from  iwM«^i«tiy 
an  action  for  benefits  which  he  claims  to  be  due  him,  without  Srst  sub- 
mitting his  claim  to  such  committee.'  (B.  I.)  Pepin  r.  Seciete  St. 
Jean  Baptiste,  620. 

BELLS  AND  NOTBS. 

1.  NBGOTIABLE  INSTBUHBNTS— Bnrden  of  Proof  as  to  Omi* 
■Ideratlon.— In  an  action  upon  a  promissory  note  the  burden  of 
proof  is  upon  the  plaintiif  to  establish  that  it  was  given  for  a 
valuable  consideration,  though  it  purports  to  be  for  value  received. 
While  the  production  of  the  instrument  with  proof  or  admission  of 


its  ezeeution  makes  a  prima  facie  ease,  yet  if  the  defendant  pnt» 
in  evidence  a*  want  of  consideration,  the  burden  of  proof  remaina 
witlk  tbe  plaintill,  who  must  satisfy  the  JQry,  by  a  fur  preponder- 
«Bee  ot  the  eyidence^  of  the  existence  of  a  valuable  consideration. 
(MaflA,)     Unntington  T.  Bhutey  809. 

2l     €JBB0KB  Indorsed  When  Presented    are    to    be    received    aa^ 
prima  £acie  evidence  that  they  bear  the  indorsements  of  the  payees. 
(Minn.)     Burrows  v.  Western  Union  Tel.  Co.,  380. 

3.  OHE0E[8— Indorsement— Presumption.— If  the  person  indors* 
Ing*  m  ebeek  as  payee  and  presenting  it  has  been  identified  as  the- 
person  'W'ho  received  it  from  the  maker,  and  whom  the  maker  desig- 
nated as  payee,  he  is  presumed  to  be  the  payee  in  favor  of  an  inno- 
cent purchaser  from  him.  (Miim.)  Burrows  v.  Western  Union  Tel.. 
Co.,  380. 

4.  CHECKS— Bellvery  of  to  Wrong  Pezson^Im&ocent  Purchaser.. 
It  IB  the  duty  of  a  drawer  of  a  cheek  to  know  that  the  person  tiy 
wlxouL  it  is  delivered  is  the  one  for  whom  it  is  intendedi  and  as 
a(;rivin8t  an  innocent  purchaser  from  the  holder  by  indorsement  the- 
djraiver  is  estopped  from  denying  the  validity  of  a  check.  (Hinn.)i 
BnzTOwe  r.  Western  Union  TeL  Co.,  880. 

See  Patentii 

BILL  OF  LADna. 

See  Sales,  8. 

BOABD  OF  HBALTB. 

'See  Health. 

BONDa  ^ 

See  Principal  and  Surety. 

BUILDINOS. 

VUTLDUXOBf  Walls  of.  When  Boyert  to  the  Land  Owner.^If 
one  owxia  the  ilrst  and  second  stories  of  a  building,  the  third  story 
of  which  has  been  conveyed  to  certain  trustees  to  hold  during  the 
life  of  the  building,  and  it  has  been  destroyed  by  fire,  leaving  the 
walla  standing,  the  wall  of  such  third  story  immediately  •  becomes- 
hie  property.    (Mass.)    AJnsworth  v.  Lakin,  81i. 

BXJILDINa  AND  LOAK  A8SO0IATIOK& 

!•  mnJBT.— A  Loan  by  a  Foreign  Bnildiog  and  Loan  associatien 
to  a  eitisen  of  this  state  is  solvable  by  its  laws,  notwithstanding  the 
loan  is  stipulated  to  be  paid  at  the  domicile  of  the  association,  whto 
Bvch  stipulation  is  designed  to  evade  the  usury  laws  of  this  state 
(Or.)    Pacific  States  Savings  etc.  Co.  v.  Hill,  477. 

2.  TTSUBT.— A  Oontract  of  a  Building  and  Loan  Associationi 
which  exacts  from  a  borrowing  member  interest,  and  also  dues  on 
stock  absolutely  assigned  to  the  association  as  a  premium  bid  in  con- 
sideration of  the  loan,  is  usurious,  when  the  interest  and  dues  in  the 
aggregate  exceed  the  legal  rate  of  interest.  (Or.)  Pacific  Statee 
Sav.  etc  Co.  v.  Hill,  477. 

Building  and  Loan  Associations,  contracts  with,  when  governed  by 
the  laws  of  the  state  where  made,  484. 

See  Corporations,  8. 


*66  Iin>Bz« 

OASBJEELBm 

1.  RAHiBOADB^PiUHMiigeni  T^j^iting  ogt  of  Oar  «r  . 

FlatfornL— The  Toluntakry  •zpotnre  by  a  pasBengper  of  his  h^dy, 
any  part  thereof,  beyond  the  sidee  of  a  moring  railroad  tmia,  or 
the  use  of  the  car  platform  aa  a  place  for  riding  whem  tkera  la 
room  within  the  car  where  hie  safety  ie  aesored,  is  iiegiigetk&^  oat 
bis  part,  barring  recovery  for  any  injury  resulting  therefrosn. 
<Minn.>     Benedict  v.  Minneapolis  etc  R.  B.  Co.,  345. 

2.  RAILROADS— Passenger  on  Platform— NegUgenca.^If  a  rafl- 
road  company  receives  compensation  for  carrying  passengers  vpoa 
the  platforms  of  its  cars  because  of  the  overcrowded  colidltion  of 
the  latter,  it  cannot  avoid  responsibility  for  an  injury  to  a  pasiesf^ 
occupying  such  platform  to  which  he  does  not  contribute;  bat  If 
-the  passenger,  while  riding  on  the  car  platform,  extends  his  body,  or 
some  part  thereof,  beyond  the  side  of  the  car  from  curiosity  or 
•ether  unjustifiable  cause,  his  act  is  negligent,  and  he  cannot  recover 
for  an  iniury  reenlting  therefrom.  (Minn.)  Benedict  t.  Mmne- 
apolis  ete.  B.  Il  Go.,  S40. 

3.*    KEQUOENOE— Toutb   of  Xmrnature  Tears.— A   boy   sixteen 

years  of  age,  traveling  alone,  is  not,  because  of  his  youth,  is- 
•capable  in  law  of  exercising  sufficient  judgment  and  discretion  co 
avoid  incurring  the  risk  of  a  voluntary  exposure  of  part  of  his  body 
beyond  the  sides  of  a  moving  railroad  train,  or  to  avoid  the  eoar 
aequences  of  any  act  of  culpable  negligence.  (Minn.)  Benedict  ▼• 
Minneapolis  etc.  R.  R.  Co.,  345. 

4.  RAILROADS— Rigl^   of   Passenger  to    Stopover.- A   regular, 

full  rate,  non coupon  railroad  ticket,  ii^  the  absence  of  agreement, 
entitles  the  holder  to  a  continuous  passage  only,  and  if  a  change 
of  train?  must  bo  made,  the  journey  must  be  continued  on  the 
next  available  train.  Under  such  ticket  the  holder  may  begin  the 
journey  when  he  elects,  but,  having  started,  he  is  not  entitled  to  snb- 
oivide  the  journey  at  will,  or  go  otherwise  than  continuously  from 
the  initial  point  to  the  point  of  destination.  (Tenn.)  Railroad  v. 
Klyman,  755. 

5.  RAILROADS— Rights  Under  Passenger  Ti^et.— In  the  ab- 
sence of  agreement,  rule  or  regulation,  the  obligation  created  by 
the  sale  of  a  regular,  full  rate,  noncoupon  railroad  ticket  is  for 
-one  continuous  passage,  and  if  the  passenger  voluntarily  leaves  the 
train  at  an  intermediate  station,  while  the  carrier  is  engaged  in 
the  performance  of  the  contract,  he  thereby  releasee  it  &om  far- 
ther performance,  and  has  no  right  to  demand  such  performance  on 
another  train  or  at  another  time.     (Tenn.)     Railroad  v.  Klyman,  755. 

6.  RAILROADS— Wtong  Reason  for  Rejection  of  Pasaeager 
Ticket. — If  a  railroad  passenger  ticket  is  invalid  for  any  reaeo% 
the  faet  that  the  train  conductor  assigns  a  wrong  reason  for  its 
rejection  doee  not  prevent  the  setting  up  of  the  invalidity  of  the 
ticket  as  a  defense  to  an  action  to  recover  for  a  refusal  to  honor 
it.     (Tenn.)     Railroad  v.  Klyman,  755. 

7.  RAILWAYS— Duty  of  to  Provide  Pire  In  Waltlng-zooiiL— If 

one  goes  to  a  railway  depot  to  take  passage  on  a  train,  and  at  a  time 
when  the  weather  is  such  as  to  require  a  fire  in  the  waiting-room  te 
make  it  comfortable,  it  is  the  duty  of  the  railway  company  to  bniid 
and  keep  a  fire  therein,  and  if  it  fails  to  do  so,  and  the  intendiag  pae- 
senger  suffers  injury  in  consequence,  he  is  entitled  to  recover  there- 
for.    (Ark.)     8t.  Louis  etc.  Ry.  Co.  v.  Wilson,  74. 

8.  RAILWAYS.— A  Person  in  Charge  of  a  Railway  Station  Bu 
Apparently  Power  and  Authority  requisite  to  do  and  effectuate  the 


Imdbz.  967 

Imstness  of  tbe  eompsny  at  tk&t  station.  He  lias  control  over  the- 
dop»t  and*  authority  to  exclude  persons  therefrom  who  persist  in  vio- 
lating TMisonable  regulations  prescribed  for  their  conduet.'  (Ark.; 
8t.  LoaiB  ete.  Sj.  Co.  v.  Wilson,  74 

9.  SAIXiWATB —Liability  <a  for  Miacondnet  or  Keglect  of  Sta^ 
tton  Agents.— If  one  goes  to  a  railway  depot  to  take  passage  on  a 
train,  and  the  station  agent  knowingly  permits  it  to  be  locked,  or 
iaurmnglj  permits  it  to  remain  locked  after  being  notified  that  it  is 
Isekecl,  so  that  an  intending  passenger  is  restrained  from  going  in 
find  onty  the  eorporation  is  Sable.  (Ark.)  St.  Louis  etc.  Ry.  Go.  v. 
Wilaon,  74. 

lO:  BATLWAYS— Liability  for  Injvry  or  Annoyance  at  Matioii  to 
Intending  Passenger.— While  it  is  the  duty  of  railway  eorporationa 
to  exercise  ordinary  care  to  protect  intending  passengers  from  un- 
reasonable annoyance,  and  from  insult  and  injury  from  turbulent,, 
riotous,  or  disorderly  persons,  yet  to  make  a  corporation  liable  in 
damages,  it  must  be  shown  that  there  was  an  injury,  that  the  agent 
in  charge  of  the  station  had  opportunity  to  know  that  the  injury 
was  threatened,  and  that  by  his  prompt  intervention  he  could  have 
prevented  or  mitigated  it.  (Ark.)  St.  Louis  etc.  By.  Co.  v.  Wilson, 
74, 

11.  I>AMAOB8,  PUNinVE,  for  Miscondnct  of  Servant.— A  rail- 
way eorporation  is  not  liable  in  punitive  damages  for  the  tort  of 
its  servant,  unless  it  was  in  the  line  of  his  employment,  and  was  will- 
ful, wanton  and  malicioua  (Ark.)*  St.  Louis  etc.  By.  Co.  v.  Wilson, 
74. 

12.'  EVIDENCE— When  Improperly  Bejected.— When  the  issue  is 
whether  a  railroad  company  has  delivered  to  a  consignee  all  the 
goods  it  received  from  the  consignor,  it  is  error  to  reject  evidence 
tending  to  show  that  the  car  in  which  the  goods  were  shipped  was 
scaled  at  the  loading  point  and  remained  under  seal  until  delivery 
of  the  goods  to  the  consignee.  (Kan.)  Missouri  etc.  By.  Co. 
V.  Simon  son,  248. 

IS.  OONSTITUTIOITAL  LAW.— A  Statnte  AUowhig  Attorneys* 
Tees  to  the  Plaintiff  in  actions  against  common  carriers  to  recover 
for  negligence  in  failing  to  transfer  and  deliver  grain  is  not  uncon- 
stitntionfd.     (Kan.)     Missouri  etc.  By.  Co.  v.  Simonson,  248. 

'  14.  BAQiBOADS— Contract  to  Famish  Cars.— It  is  within  the 
power  of  a  railroad  company  to  contract  to  furnish  to  a  shipper 
^rs  belonging  to  another  company.  (Utah)  Nichols  v.  Oregon 
Short  Line  B.  B.  Co.,  778. 

15.  RAILROADS— Contract  to  Fnmish  Can— Discrimination.— If 
a  railroad  company  contracts  to  furnish  a  shipper  with  cars  at  a 
certain  time,  its  action  in  filling  subsequent  orders  for  cars  before 
sneh  shipper  is  supplied  is  an  unlawful  discrimination  for  which  it 
must  respond  in  damagea  (Utah)  Nichols  v.  Oregon  Short  Line 
•tc  Co.,  778. 

16.  RAILBOADS- Broach  of  Contract  to  Fnmish  Cars.— If  a  rail- 
way station  agent  contracts  on  behalf  of  his  principal  to  furnish  a 
shipper  with  a  specific  kind  of  cars  belonging  to  another  company, 
the  company,  on  whose  behalf  the  contract  is  made  is  not  relieved  of 
the  duty  to  furnish  cars  at  the  required  time  by  inability  to  obtain 
the  kind  contracted  for.  In  such  case  the  company  must,  with  the 
consent  of  the  shipper,  furnish  him  with  some  kind  oi  cars  without 
unreasonable  delay,  or  notify  him  of  its  inability  to  do  so,  and,  for  u 
failure  and  neglect  to  perform  such  duty,  it  is  liable  for  the  damages* 
caused  thereby.     (Utah)     Nichols  v.  Oregon  Short  Line  etc.  Co.,  778.. 


"958  iNDBZk 

17.  BAHiBOABS— Agent*t  OMitraet  to  Foniidi  Can— Bmdian  «f 

Proof  as  to  Authority.^  A  contract  bj  a  railwaj  atatiotf  mgemt  om 
"behalf  of  his  company  to  furnish  a  shipper  ears  beloagiiig  to  another 
'Oompany  is  presumptively  within  the  scope  of  his  aotiiority,  aad  tbo 
burden  of  proof  is  upon  the  railway  company  to  r^ut  such  preeaBp- 
tion  and  show  his  want  of  authority.  (Utah)  Nikola  ▼•  Oregoa 
-Short  Line  etc.  Co.,  778. 

18.  BAILBO ADS— Agent's  Ctontraet  to  Fumiah  Oara.— A  eontrsbet 

1)y  a  railroad  station  agent  on  behalf  of  his  company  to  f  umirii  a  ship- 
per certain  cars  belonging  to  another  company  is  within  the  appareat 
scope  of  his  authority  and  binding  on  his  principaL  (Utah)  Niehola 
w»  OregOA  Short  Line  etc.  Co.,  778. 

OASHIES. 

See  Banks  and  Banking. 

0ASt7AI.T7  IKSTmAKOE. 
See  Lasurance^  1. 

0EBTIFI0ATE8  OF  DEPOSIT. 

See  Banks  and  Banking;  Limitation  of  Aetions,  6-8. 

OHATTEL  M0BTGAOE8. 

1.  OHATTEIi  MOBTOAOE— DefectlTe  Description.— A  mortgage 
•of  "101  yearlings  and  two-year-olds,  branded  with  the  letter  F  on 
left  hip,"  without  specifying  the  species  of  animals  mortgaged,  ia 
good  as  between  the  mortgagor  and  the  mortgagee,  where  the  mort- 
gage recites  that  it  is  for  purchase  money,  and  that  the  property  is 
in  possession  of  the  mortgagor  in  the  county  designated.  (Iowa) 
Frick  V.  Fritz,  165. 

2.  OHATTEL  MOBTQAQES.— Parol  Evidence  is  Admlssilile  for 
the  purpose  of  identifying  the  property  actually  mortgaged,  as 
where  it  serves  to  supply  the  description  of  the  subject  matter  ia- 
tended  to  be  embraced  by  it,  and  not  to  change  the  deacriptioa. 
(Iowa)      Frick  v.  Fritz,  165. 

S.  OHATTEL  MOBTOAGE  Defective  In  Description— Kotloe  of 
to  Attaching  Creditors.— Though  the  description  in  a  mortgage  of 
•chattels  intended  to  be  embraced  therein  is  too  imperfect  to  impart 
notice  to  an  attaching  creditor,  yet  if  he  or  his  attorney  is  advised 
by  the  mortgagor  that  all  of  his  cattle  were  mortgaged  to  Morris  ft 
*Co.,  and  an  examination  is  thereupon  made  of  the  reeords,  and  the 
mortgage  in  question  discovered,  such  creditor  must  be  regarded  as 
having  actual  notice  of  the  mortgage  and  that  the  property  iia- 
perfectly  described  in  subject  thereto.     (Iowa)     Frick  v.  Frit^  1S6. 

4.  OHATTEL  MOBTGAQE.— The  Intermingling,  After  the  Ezeea- 
tion  of  a  Mortgage,  of  the  animals  subject  thereto  with  others  eanaot 
render  it  void  for  indeflnitenesa.     (Iowa)    Frick  v.  Frits,  165. 

5.  A  OHATTEL  MOBTGAOE  Is  not  Void  as  Against  Attaddag 

CJreditors  because  it  incorrectly  states  that  the  steers  covered  thereby 
are  all  the  steers  owned  by  the  mortgagor,  if  such  creditor  has  ready 
means  of  ascertaining  what  animals  are  included  in  the  mortga|a 
•(Iowa)    Frick  v.  Fritz,  165. 

OHEOKS. 

See  Bills  and  Notes. 


Ikobz.  969 

OHILDBEK. 

See  Infanta 

Clerks  of  Courts,  sureties  of,  for  what  funds  liable,  566-568.* 

snreties  of,  liability  of  for  default  or  neglect  in  the  approval  o£ 

bonds,  564,  565. 
sureties  of,  liability  of  for  failure  of  principals  to  issue  writs, 

562. 
sureties  of,  liability  of  for  failure  to  collect  f ees^  or  for  collect* 

in^  them  without  authority,  565,  566. 
sureties  of,  liability  of  for  issuing  letters  of  guardianship  with- 
out authority,  562. 
sureties  of,  liability  of  for  issuing  marriage  licenses,  563. 
sureties  of,  liability  of  for  misappropriation  of  public  moneys 

by,  566-568. 
sureties  of,  liability  of  for  moneys  received  without  authority. 

567. 
sureties  of,  liability  of  for  nonperformance  of  ministerial  duties, 

663,  564. 

tOE. 


i,M:^: 


1.  PUBB  FOOD  ULW— Interstate  Commerce.— A  statute  prohibit- 
^g  the  manufacture  and  sale  of  process  butter,  unless  marked 
^'BenoTatod  Butter,''  does  not,  in  its  application  to  foreign  products, 
contravene  the  commerce  clause  of  the  federal  constitution.  (Wash.) 
Hathaway  ▼.  McDonald,  889. 

2.  COKSTlTUTXONAIi  LAW— Interstate  Commerce.— A  statute 
^008  not  violate  the  interstate  commerce  clause  of  the  national  con- 
rtitntion,  because  it  provides  that  a  bill  of  lading  shall  be  conclusive 
proof  a^inst  the  corporation  issuing  it  of  the  amount  of  the  prop- 
erty received  by  such  corporation.  (Kan.)  Missouri  etc  By.  Co. 
V.  Simonson,  248. 

See  Telegraphs  and  Telephones. 


Ctonunon  Carriers,  conflict  of  laws  as  to  measure  of  damages  when 
contract  is  to  be  performed  in  two  or  more  states,  718. 
interpleader,  bills  by  to  determine  to  whom  property  should  be 
delivered,  609. 

COMMON  LAW. 

See  Evidence,  9. 

CONDUCTOB'8  TBIP  BEFOBT. 
See  Evidence,  8. 

CONFUSION  OF  GOODS. 

t  CONFUSION  OF  GOODS.— If  the  Defendant  Cats  Timber  on 
plaintiff's  land  and  converts  it  into  staves,  which  he  mingles  with 
staves  of  his  own,  it  is  not  necessary,  to  entitle  the  plaintiff  to  re- 
cover, that  he  prove  that  the  intermingling  was  with  the  intention 
^f  preventing  him  from  identifying  the  staves  cut  from  his  land. 
(Ark.)     Rust  Land  etc.  Co.  v.  laom,  68. 

2.  BEFLEVIN— Confusion  of  Goods— When  does  not  Frevent  Be- 
covery  in. — If  a  defendant  owning  staves  of  the  same  kind,  quality, 
And  value  as  the  plaintiff,  intermingles  them  without  the  fault  of 


^tfO  Ihdex. 

the  latter,  bo  that  they  cannot  be  aeparated,  replevin  lies  for  tkm- 
part  owned  by  the  plaintiff,  to  be  taken  out  of  the  man,  where  ■» 
advantage  would  result  to  either  by  getting  the  identieal  tiMwmm- 
owned  by  him.     (Ark.)     Bust  Land  etc  Co.  v.  Isom,  68. 

ODnfliet  of  Iiaw8»  as  to  allowing  interest  as  an  element  of  danftMi^ 

731,   732. 
as  to  exemplary  damages  for  torts  eonmitted  in  obo  state  wlieB. 

sued  for  in  another,  728. 
as  to  measure  of  damages  for  breach  of  bond  given  in.  a  fedoral 

court  and  sued  upon  in  a  state  courts  724. 
as  to  measure  of  damages  for  breach  of  contract  to  pay  or  ac- 
cept a  bill  of  exchange,  718,  719. 
as  to  measure  of  damages  for  breach  of  contracts  of  carriers  ex- 
ecuted in  one  state^  but  partly  to  be  performed  fat  aaothery. 

718. 
as  to  measure  of  damages  for  breach  of  negotiable  inatramfwta 

executed  in  one  state,  but  payable  in  another,  718,  719. 
as  to  measure  of  damages  for  breach  of  negotiable  inBtni]tteB.ta 

secured  by  mortgage,  719,  720. 
as  to  measure  of  damages  for  torts,  cases  applying  the  role  of 

the  forum,  730,  731.  ^    " 

as  te  measure  of  damages  for  torts  committed  in  a  foreign  conm- 

try,,  726,  728. 
as  to  measure  of  damages  in  actions  against  telegraph  coq^Mta- 

tions  on  contracts  made  in  one  state  to  deliver 

in  another,  725,  726. 
as  to  measure  of  damages  in  actions  ex  delicto  for  death 
by  a  wrongful  act  in  another  state,  726,  727. 
as  to  measure  of  damages  in  actions  of  tort  baeed  en  coBtraetnai 

relations,   725. 
as  to  measure  of  damages,  law  of  the  forum,  when  eontrols,  720- 

725. 
as  to  the  measure  of  damages  on  the  breach  of  a  eoveaant  of 

warranty,  717. 
as  to  measure  of  damages,  place  where  the  property  is  sttnated^ 

law  of,  when  controls,  717. 
as  to  measure  of  damages  where  the  contract  is  made  in  oat 

place,  to  be  performed  in  another,  716. 
as  to  measure  of  damages  where  the  place  of  performance  is 

partly  within  the  state  of  the  execution  of  the  contract,  717, 

718. 
contracts,  when  not  governed  by  the  laws  of  the  state  where  pay* 

able,  484. 
fixing  a  maximum  amount  of  recovery,  730. 
interest  on  a  judgment  of  a  court  of  another  state,  737. 
interest  on  a  judgment  is  not  affected  by  the  fact  that  it  was 

founded  on  a  foreign  cause  of  action,  737. 
interest  on  bills  of  exchange,  by  what  law  controlled,  733,  734. 
interest  on  foreign  judgments,  by  what  law  controlled,  735,  736. 
interest  on  negotiable  instruments,  by  what  law  controlled,  733. 
interest,  law  of  the  forum,  when  controls,  732,  733,  735,  736,  731 
interest,  when  allowed  by  way  of  damages,  734. 
place  of  performance,  when  controls  as  to  measure  of  damage! 

for  breach  of  contracts,  716,  717. 
penalties,  statutory,  arising  under  the  laws  of  oae  state  eaaaol 

be  recovered  in  another,  728,  729. 
ttatntes  allowing  mental  anguish  as  an  dement  of  damagv^  73(1 

See  Contracts,  8. 


Index.  961 

OOireiOKMENT* 

866  Bal60y  8. 

OOKBTITUnONAL  lAW. 

1.  OOKSnTUnONAL  LAW.  —  Tli6  Legi8lAtiir6»  just  u  com- 
pletely as  a  eonstitutional  eonvention,  represents  the  will  of  the 
people  in  all  matters  left  open  by  the  constitution.  (8.  Dak.) 
Ghunberlain  v.  Wood,  674. 

2.  OOKSTlXUTlONAIi  LAW.— PvesiimptiTely  a  Statute  is  Valid, 
unless  dearly  in  conflict  with  the  constitution.  (8.  Dak.)  Cham- 
berlaiii  ▼.  Wood,  674. 

8.  CONSTITUTIONAL  LAW— Statutory  Ctonstmction.— An  ex- 
position of  the  meaning  of  a  statute  in  the  statute  itself  cannot 
be  departed  from  by  the  courts,  and  if  the'legislatiye  intent  in  the 
statute  is  plain,  such  intent  must  be  deemed  the  sole  purpose  of 
the  act,  however  unreasonable  or  absurd  the  statute  may  be.'  (Wis.) 
Hossmiller  ▼.  State,  910. 

4.  CONSTITUTIONAL  LAW  — Failure  to  Belease  Mortgage.— 
A  statutory  provision  that  if  a  mortgagee  falls  to  release  a  mortgage 
after  the  satisfaction  thereof,  the  mortgagor  may,  by  acticn,  compel 
such  release  and  recover  costs,  including  a  reasonable  attorney's  fee 
from  such  mortgagee,  is  special  legislation,  and  violates  a  constitu- 
tional provision  that  no  special  law  shall  be  enacted  when  a  general 
law  can  be  made  applicable.     (Utah)     Openshaw  v.  Halfln,  796. 

6w  CONSTITUTIONAL  •LAW  — Supreme  Court  —  Legislative 
Power  to  Annul  Bule  of  Bespecting  the  Mode  of  Printing  Transcripts 
on  AppeaL — A  rule  of  the  supreme  court  requiring  transcripts  on 
appeal  to  be  printed  cannot  be  abrogated  by  the  act  of  the  legisla- 
ture permitting  them  to  be  typewritten,  though  the  constitution  de- 
clares that  the  appellate  jurisdiction  of  the  supreme  court  shall 
extend  to  all  cases  at  law  or  in  equity,  subject,  however,  to  such 
limitations  and  restiictions  as  may  be  prescribed  by  law.  (Mont.) 
Jordan   v.  Andrus,   396. 

6.  CONSTITUTIONAL  LAW  —  ConclusiTS  Evidence.— A  statute 
declaring  that  in  any  action  brought  against  a  railway  corpora- 
tion for  a  failure  to  deliver  grain,  either  duplicate  of  the  bill  of 
lading  should  be  conclusive  proof  of  the  amount  of  grain  received 
by  such  corporation,  is  unconstitutional.  (Kan.)  Missouri  etc.  By. 
Co.  V.  Simonson,  248. 

7.  SPECIAL  LEGISLATION.— A  Statute  Providing  for  Primary 
Electtons  in  cities  of  ten  thousand  or  more  population,  "as  shown  by 
the  last  state  or  federal  census,"  though  applicable  to  only  one  city 
when  enacted,  extends  to  all  that  subsequently  may  reach  such  pop- 
ulation, and  is  not  special  or  local.     (Or.)'    Ladd  v.  Holmes,  457. 

8.  CONSTITUTIONAL  LAW  — Labor  Unions  — Bight  to  Dis- 
chsrge  EmployA — A  statute  prohibiting,  under  a  penalty,  an  em- 
ployer from  discharging  *  *  an  employ^  because  he  is  a  member  of  any 
labor  organization,"  is  void,  as  an  unwarranted  and  unlawful  in- 
fringement of  the  constitutional  right  of  ''liberty"  in  making  pri- 
vate contracts.     (Wia)     State  v.  Kreutzberg,  934. 

0.  CONSTITUTIONAL  LAW  — Bights  in  PnbUc  Waters.— The 
right  of  every  person  within  the  state  to  enjoy  its  public  waters 
for  every  legitimate  purpose,  including  the  cutting  and  appropria- 
tion of  ice,  which  does  not  wrongfully  interfere  with  the  right  of 
any  other  person  to  like  enjoyment,  subject  only  to  such  mere  poliee 
Am.  St  Rep.,  Vol.   »1— 61 


962  Ikdez. 

regulations  as  the  legislature  maj,  in  its  wis<Iom,  prescribe  to  p: 
serve  the  common  heritage  of  all,  is  a  constitutional  right    of    mil 
persons  within  the  state.     (Wis.)     BossmiUer  y.  State^  910. 

10.  CONSTITUnONAIi  LAW.— Ice  Formed  Naturally  upon  the 
public  waters  of  the  state  is  not  state  property,  in  a  proprietary 
sense,  so  as  to  enable  the  state,  under  authority  of  a  atatatey  to 
deal  with  it  by  sale  made  by  the  atate^  or  otherwise.     (Wia.)     Soas^ 

miller  v.  State,  910. 

11.  CONSTITTTTIONAIi  LAW— Bights  in  Ice.— The  state  can  ao 
more  appropriate  to  itself  the  ice  formed  upon  its  navigable  waters 
than  one  person  can  rightfully  appropriate  the  property  of  anoth^ 
without  his  consent  and  pass  the  utle  by  bargain  and  aalh  or  other- 
wise. The  whole  beneficial  use  in  such  ice  is  vested  in  all  of  the 
people  within  the  state  as  a  class,  and  any  law  invading  sueb  use 
is  an  invasion  of  the  right  to  liberty  and  property,  without  due  pro- 
cess of  law.     (Wia)     l^ssmiller  v.  State,  910. 

CoBStitutional  Law,  elections,  statutes  restricting  the  right  of  the 
voter  to  persons  whose  names  appear  on  the  official  baHot, 

See  Carriers^  13;  Commerce;  Criminal  Law,  4;  flections;  Bmiaaat 

Domain;  Statutes. 

OONTBAaT& 

1.  00KTBA0T8— CknistructlmL— If  the  language  ueed  by  partiss 
to  a  contract  is  indefinite  and  ambiguous,  and  hence  of  deabtM 
construction,  the  practical  construction,  of  the.  parties  themselves 
is  entiUed  to  great,  if  not  eontroUing,  infiuence.  (Utah)  JeaHes 
V.  Jensen,  783. 

2.  00NTBA0T8— Presimqirtftoii  that  UgBsr  Bead.— Afilsng  a  sif- 
nature  to  a  contract  creates  a  conclusive  presumption,  ezespt  ss 
against  fraud,  that  the  signer  read,  understood  and  assented  to  Us 
terms.     (N.  J.  L.)    Fivey  v.  Pennsylvania  B.  B.  Co.,  445. 

3.  OONFLIOT   OF   LAW8.  — A   Ckmtract   for  tlie  Payment  of 

taoney  entered  into  bona  fide  in  one  place  and  made  payable  in  an- 
other, is  construed,  governed,  and  enforced  aceordij^  to  the  law 
of  the  place  where  payable.  (Or.)  Pacific  States  Savings  etc  Co. 
V.  Hill,  477. 

Bee  Infants;  States. 

OONVEBSIOK. 
See  Trover  and  CoaversiML 

CONVETAKOEa. 

See  Deeds;  Vendor  and  VenHee. 

OOBPOBATIOK8. 

1.  OOBPOBASIONS  —  Bight  to  Becover  Assets  of  Bslteet  Oifw 
poiatloiL — Personal  representatives  of  the  deeeased  stoekholders  sf 
an  extinct  corporatioa  are  entitled  to  reeover  the  psoeeeds  of  a 
life  insuraaee  poUey  held  by  the  corporation  as  eoUatsral  ssaDtritj» 
to  the  extent  of  the  debt,  for  pro  rata  distribution  aceordiag  to  tibs 
interests  of  t&eir  several  intestates  after  the  payment  ef  the  debts 
of  the  corporation*    (Tenn.)    Insurance  Co»  v.  Dunsoomb^  768. 


Index.  963 

2.  OOBPORATION  —  Dlstrflration  of  Assets— Parties.— A  bill  for 
Ihe  distribution  of  the  assets  of  a  eorporation  among  the  stoclE- 
lioldera,  w^liich  avers  that  the  respondents  are  the  principal  share- 
liolders  and  represent  the  adverse  interest  of  all,  that  all  the  share- 
liolders  belong  to  the  same  class  and  have  analogous  interests,  and 
that  it  ^would  be  impossible  to  bring  the  cause  to  a  final  hearing  if 
tdl  the  Btoclcholders  are  required  to  be  made  parties,  is  not  de- 
murrable because  all  the  stoekholders  are  not  made  parties.  (Ala.) 
Noble   V.    Oadgdon  Land  etc.  Co.,  27. 

3.  CORPORATION— Distribution  of  Assets.- Minority  Stockhold- 
-^rs  of   a   solvent  corporation  may  maintain  a  bill  for  the  distribu- 
tion  of   its    assets,  when  the  enterprise  for  which,  it  was  organized 
bas  been    abandoned  and  the  original  scheme  is  impossible  of  eon- 
awmmation.     (Ala.)     Noble  v.  Gadsden  Land  etc.  Co.,  27. 

4.  laiNTNQ  COMPANIES  —  Authority  of  General  Manager  to 
Employ  Pliysidans  for  Injured  Employes.- If  employes  of  a  mining 
corporation  are  injured  by  an  accident  for  which  it  is  not  liable, 
its  general  manager  has  no  implied  authority  on  its  behalf  to  employ 
physicians  or  surgeons  to  attend  them,  or  to  bind  it  by  a  promise 
to  pay  for  meh  services,  (Mont.)  Spelman  ▼.  Gold  Coin  Min.  etc. 
•Co.,  40»- 

5.  MimNG  COBPORATIONS  —  General  Manager  —  Powers  of  .^ 
Unless  the  limits  of  his  authority  are  shown  io  have  been  enlarged, 
the  duties  of  the  general  manager  of  a  mining  corporation  are  eon- 
Ikned  to  the  transaction  of  the  business  of  the  corporation  as  dis- 
tinguished from  its  mere  ethical  duties  and  consequent  imperfeot 
•obligations  or  supposed  charities.    The  fact  that  a  certain  person  is 

manager  of  such  a  corporation  does  not  in  itself  impose  authority 
i>n  him  to  bind  it  in  matters  other  than  those  of  business  affairs. 

(Mont.)     Spelman  v.  Gold  Coin  Min.  etc.  Co.,  402. 

6.  FOBEIGN  0OBPOBATION8— Maintenance  of  Action  by.— If  a 
statute  requires  foreign  corporations  to  do  certain  acts,  and  if  they 
refuse,  they  shall  not  maintain  any  suit  or  action  in  any  of  the  courts 
-of  the  state,  the  doing  of  those  acts,  though  not  within  the  time 
prescribed  by  the  statute,  authorizes  the  corporation  to  proceed  with 
the  prosecution  of  an  action  previously  pending.  (Ark.)  Buffalo 
^inc  etc.  Co.  v.  Crump,  87. 

7.  rOBEIGN  0OBPOBATION8  —  Doing  Business  by— What  is.-* 

The  institution  and  prosecution  of  an  action  are  not  a  doing  of  bnsl* 
ness  within  the  state  within  the  meaning  of  the  statute  relating  to 
foreign  corporations.     (Ark.)     Buffalo  Zinc  etc.  Co.  v.  Crump,  87. 

8.  FOBBIGN  COBPOBATION  —  Agent  to  Beceive  86rvlce.-^A 
loan  assoelation  is  not  within  the  purview  of  a  statute  requiring 
foreign  banking  concerns  to  appoint  a  resident  of  the  state  as  at- 
torney on  whosd  writs  and  process  may  be  served.  (Or.)  Paeifie 
Btates  Sav.  etc.  Co.  t.  Hill,  477. 

€orpocationfl^  dissolution  of,  because  object  of  becomes  impossible, 

right  of  equity  to  compel,  34. 
dissolution  of,  equity  has  no  jurisdiction  over,  33. 
dissolstion  of,  stockholders'  right  to  insist  upon,  34. 
equity,  power  to  dissolve  and  distribute  assets^  33-35. 
interpleader,  bills  by  to  determine  to  whom  dividends  should 

be  paid,  61L 

8ee  Beeeiveri, 


964  Index. 

C0BPU8  DEUOTL 

See  Criminal  Law,  5;  Larceny,  8. 

OOTENAHOT. 

866  Minea. 

OOX7NTIE8. 

OOUNTT  BOAD  — Injury  from  Constmetlon  of.  ^If,  in  tkr 
construction  of  a  county  road,  the  water  of  a  lake  ia  drained  onto 
lower  lands,  the  county  is  liable  for  the  injury  occasioned,  irrespeetiTe 
of  negligence.     (Wash.)    Wendel  v.  Spokane  County,  825. 

Ctounty  Clerks,  sureties  of,  liability  of  for  aets  as  license  eolleetor% 

569. 
sureties  of,  liability  of  for  acts  as  recorders^  569. 
sureties  of  liability  of  for  acts  in  ez-officio  capacities^  569. 
sureties  of,  liability  of  for  issuing  warrants  without  mntluwity. 

669. 
sureties  of,  liability  of  for  misappropriation  of  funds,  56S. 
sureties  of,  liability  of  for  when  acting  in  special  capaeitiei^  Sl% 

571. 

C0XJBT8. 

1.  OOUBT  DE  FACTO— Wken  Cannot  Exist.— Though  an  eleetioa 
is  authorized  to  be  held  to  determine  whether  m  court  shall  eodst^ 
and  after  such  election  returns  are  canvassed,  the  proper  officers 
certify  that  the  proposition  has  carried,  and  a  judge  and  other  neces- 
sary officers  are  appointed  and  assume  to  exercise  the  duties  of 
their  offices,  yet  if  it  is  afterward  established  that  the  result  of 
such  election  was  not  in  favor  of  creating  such  court,  it  cannot  be 
treated  as  a  court  de  facto.     (Kan.)     In  re  Norton,  255. 

2.  COURTS  AND  OFFICERS  De  Facto.— There  cannot  be  a 
court  or  officer  de  facto  where  there  can  be  no  court  or  officer  de  jursi 
(Kan.)     In  re  Norton,  255. 

3.  JURISDICTION.— A  Court  ifl  not  of  Competent  JnrisdietiOB 

unless  it  is  provided  for  in  the  constitution  or  created  by  the  legisla- 
ture^ and  has  jurisdiction  of  the  subject  matter  and  of  the  person. 
(Kan.)     In  re  Norton,  255. 

COVENANTS. 

1.  HEIRS  —  Liability  of  for  the  Debts  of  an  Anceetor.— By  the 

common  law  an  heir  or  devisee  was  not  liable  for  the  breach  of  a 
covenant  unless  expressly  bound,  but  this  rule  did  not  apply  to 
covenants  which  ran  with  the  land,  among  which  are  covenants  to 
warrant  and  defend  the  title.'    (Iowa)     McClure  t.  Dee,  181. 

2.  HEIRS— Iiiability  of  on  Covenants  of  an  Ancestor,  When  Ae- 
ernes. — To  authorize  a  recovery  against  an  heir  or  devisee,  it  must 
appear  that  the  ancestor's  estate  was  settled  and  closed  before  the 
claim  accrued  to  the  covenantee.     (Iowa)     McClure  ▼•  Dee,  18L 

3.  HEIRS  —  Claims  Against*  Whether  Barred  by  the  Statute  of 
Limitations. — Though  a  covenant  against  encumbraneee  is  broheii  ss 
soon  as  made,  and  there  may  be  a  recovery  of  nominal  damages 
thereunder,  yet  there  can  be  no  recovery  of  substantial  damages  until 
the  encumbrance  is  enforced,  and  therefore,  the  cause  of  action,  ss 
to  such  damages,  cannot  be  regarded  as  accruing  or  becoming  nb* 


Index.  966 

Jeei  to  tbe  statute  of  limitations  until  that  time.     (Iowa)     McClure 
▼.  Dee^  181. 

4.  PARTIES  TO  ACTION  to  Enforce  Ancestor's  Liabmty.--If 
the  grantor  in  a  eonreyanee  with  eovenants  of  warranty  or  against 
•enenmbranees  subsequently  dies,  bequeathing  his  property  to  his 
wife  for  life,  with  power  to  use  both  principal  and  interest  to  supply 
herself  with  the  comforts  and  luxuries  she  may  desire,  with  re- 
mainder to  a  trustee  for  several  beneficiaries,  an  action  for  dam- 
ages resulting  from  the  breach  of  the  testator's  covenant  is  prop- 
erly broQg^bt  against  the  wife  and  trustee,  instead  of  against  the 
remaindermen  under  the  will.  Perhaps  they  also  should  be  made 
parties^  but  as  this  Question  is  not  covered  by  the  demurrer,  it  is  not 
'decided.     (Iowa)    McGlnre  v.  Dee,  181. 

See  Vendor  and  Vendee. 

OBEDITOBS. 

See  Debtor  and  Creditor. 

OBEDITOBS'   SUIT 

OBEDITOBS'  BILIi  —  Bednclng  Claims  to  a  Judgment,  Whan 
not  Kec(»8ary. — It  is  not  necessary,  to  support  a  suit  by  an  admin- 
istrator to  set  aside  a  conveyance  by  a  decedent  as  in  fraud  of  tha 
Matter's  creditor,  to  show  that  they  have  reduced  their  claims  to  judg- 
ment.    (Iowa)     Mallow  v.  Walker,  158. 

CBIMIKAIf  LAW. 

1.  rOBMEB  JEOPA£DY.—An  Acquittal  of  an  Assault  with  a 
deadly  weapon,  with  an  intent  to  rob,  is  not  a  bar  to  a  prosecution  for 
robbery,  the  two  offenses  being  a  part  of  one  transaction^  (S.  Dak.) 
«tate  v.  Caddy,  666. 

2.  OBIMINAIi  LAW— Reasonable  Donbt.— A  Charge  to  the  jury 
that  ''unless  the  evidence  is  such  as  to  exclude  to  a  moral  certainty 
every  hypothesis  but  that  of  the  guilt  of  the  defendant  of  the  of- 
fense charged  in  the  indictment,  you  should  acquit  him,"  is  cor- 
rectly refused.*    (Ala.)     Smith  v.  State,  21. 

3.  CBIMIKAL  LAW.— The  Corpus  Delicti  must  often  be  proved 
by  circumstances.     (Ala.)     Smith  v.  State^  21. 

4.  COKSTXTUTIONAL  LAW— Criminal  Trials— AdmlssibiUty  of 
Former  Testimony  of  Witness  Since  Deceased  or  Absent.— A  statute 
providing  that  if  the  testimony  of  a  witness  is  taken  down  by 
question  and  answer  on  a  preliminary  examination  before  a  commit- 
ting magistrate,  in  the  presence  of  the  defendant,  who  has,  either  in 
person  or  by  counsel,  cross-examined,  or  has  had  an  opportunity  to 
-cross-examine,  the  witness,  such  testimony,  or  the  deposition  of  such 
witness,  may  be  read  upon  the  trial  upon  it  being  satisfactorily  shown 
to  the  court  that  he  is  dead  or  insane,  or  cannot,  with  due  diligence, 
^  found  within  the  state,  is  not  in  conflict  with  a  constitutional 
guaranty,  that  the  accused  shall  have  the  right  ''to  be  confronted 
by  witness  against  hinu"     (Utah)     State  v.  King,  808. 

5.  CBIMINAL  LAW  —  Admissibility  of  Teetlmony  of  WltneM 
Since  Dead  or  Absent. — If  it  is  shown  that  the  accused  has  cross- 
examined  a  witness,  or  has  had  an  opportunity  of  so  doing  upon  the 
preliminary  examination,  the  testimony  of  such  witness  may  be  read 
at  the  trial,  upon  its  being  shown  to  the  satisfaction  of  the  court. 


066  Index. 

that  mch  witvess  ii  dead,  insane,  or  cannot  with  due  dfllgoaee,  te* 
fonnd  within  the  state.  The  admission  of  the  testimony  under  maA 
cirenmstanees  is  not  a  matter  of  right  but  rests  in  the  wmnd  diaere- 
tion  of  the  trial  court     (Utah)     State  v.  King,  808. 

6.  PRACTISE— Mode  of  Objecting  to  the  Line  of  ArsvBMift  aT 

Ooimsel. — Iff  on  the  trial  of  a  person  aoeused  of  a  crime,  the  pr— c 
cuting  attorney  relies  upon  a  fact  from  whieh  the  defendant's  at- 
torney claims  that  no  inference  can  be  drawn  against  hina,  the- 
proper  practise  is  for  him  to  ask  the  court  to  rule  that  such  fact 
is  not  evidence,  and  cannot  be  used  against  the  aeensed  fer  aay 
purpose  on  the  trial,  and  if  such  ruling  be  refused,  to  exeepw 
(Mass.)     Commonwealth  v.   Ooldstein,  3X1. 

7.  CRTMINAL  TRIALS.— The  fact  that  the  accused,  thongb  not 
represented  by  an  attorney,  offered  no  testimony  at  the  preliminary 
examination,  is  admissible  at  his  trial,  especially  where  hia  defense 
is  an  alibi.  What  conclusion  shall  be  drawn  from  such  evidence  i» 
for  the  jury  to  determine.  (Mass.)  Commonwealth  ▼•  Goldstein, 
311. 

8.  CRIMINAL  LAW. — A  court  has  no  power  to  suspend  sentence 
after  it  is  pronounced,  save  for  the  purposes  of  an  appeaL     (Iowa) 

Miller  ▼.  Evans,  143. 

9.  CRIMINAL  LAW.— Failure  of  OfUcen  to  Enforoe  a  gsntence 
ef  Imprisonment,  due  either  to  delay  in  issuing  the  execution  ^r 
in  taking  defendant  into  custody  after  it  issues  does  not  prevent  h]» 
■nbsequent  arrest  and  imprisonment.  The  time  when  a  eentenee  is 
to  be  carried  out  is  ordinarily  directory  merely,  and  forma  no  part 
of  the  judgment  of  the  court.     (Iowa)     Miller  v.  Evans,  143. 

DAMAOB8. 

1.  DAMAGES  for  Nonrons  Shock.— If  the  plaintiif  in  conse- 
quence of  a  collision,  received  certain  physical  injuries  on  aceenat 
of  which  the  defendant  is  Uable,  and  also  a  nervous  shook,  she  is 
entitled  to  recover  for  the  consequences  of  the  shock,  whether  it  was^ 
due  to,  or  merely  accompanied,  the  visible  injury.  (Mass.)  Ho- 
mans  v.  Boston  Elevated  By.  Co.,  324. 

2.  DAMAGES.  —  There  Can  be  no  Recovery  for  Mental  Angvidi 
Unaccompanied  by  Personal  Injury,  where  there  is  no  willful^  wanUm,. 
or  malicious  wrong  done.  (Ark.)  St.  Louis  etc  By.  Co.  ▼•  Wilson, 
74. 

S.  DAMAGES,  Measure  of— Interest— In  awarding  danmges  for 
an  injury,  the  jury  should  take  into  account  the  lapse  of  time 
since  it  was  suffered,  and  put  plaintiff  in  as  good  position  as  if  th^- 
damages  had  been  paid  immediately.  Therefore,  they  may  fix  suck 
damages  by  ascertaining  what  was  the  amount  which  should  have 
been  paid  at  the  time  the  injury  occurred  and  by  adding  thereto- 
such  sum  as  will  compensate  delays  in  its  payment,  not  exeeedia^ 
the  legal  rate  of  interest.'    (Mass.)     Ainsworth  v.  Lakin,  314. 

See  Carriers^  11;  Conflict  of  Laws;  Death;  Municipal  Corpoimtion%. 

3;  Telegraphs  and  Telephones. 

DANGEROUS  FRBMISBS. 

See  Negligence. 

DEATH. 

1.    DAMAGES  for  Loss  of  Advice,  Counsel,  Comfort  and  Sajoy* 
aiint  resnlting  from  a  husband's  death,  caused  by  the  negligent  set 


JwDwx.  067 

of  maotker,  eauBot  be  recovered  by  bis  widow,    (Tenn.)    BaOroad 
v.  Beats,   763. 

S.  IBWmSKCB  tin*  a  Pereon  Silled  «poB  a  Bailroad  was  a  Oan- 
fnl  Man  Abeot  His  Work  ie  not  admissible  io  an  aetion  to  reeover 
damages  for  such  killing  as  bearing  en  the  measore  of  damages.  In 
determix&ing  the  value  of  a  hnman  life,  consideration  may  be  given 
to  tbe  habits  of  the  deoedent  as  to  sobriety  and  indnstryy  because 
sncb  qualities  affect  his  capacity  to  earn  money.  (Ind.  App.) 
Pitteburgh  etc.  By.  Go.  v.  Parish,  120. 

3.  KJBXLD  NOT  YET  BOBN— Aetion  for  Injuries  to.— For  injuries 
reeeived  by  a  child  while  in  its  mother's  womb  it  cannot  maintain 
a  civil  action.  Therefore,  under  a  statute  declaring  that  whenever 
the  death  of  a  person  is  caused  by  the  neglect  or  default  of  another, 
and  tbe  neglect  or  default  is  such  that  if  death  had  not  ensued  it 
would  have  entitled  the  party  injured  to  maintain  an  action  to  re- 
cover damages,  then  the  wrongdoer  shall  be  liable  to  action  not- 
witbatanding  such  death,  the  proceeds  of  the  action  to  go  to  certain 
kindred  specified  in  the  statute,  an  aetion  cannot  be  maintained  by 
the  next  of  kin  of  an  infant  for  negligently  causing  its  death  while 
in  its  mother's  womb.     (B.  I.)     Gorman  v.  Budlong,  620. 

Beatliy  convict  of  laws  as  to  measure  of  damages  in  actions  for  tor- 
tiously  causing,  726,  727. 

DEBTOB  AND  OBEDITOB. 

A  OBEDITOB  18  ONB  who  has  a  right  to  demand  and  reeever 
of  another  a  sum  of  money  on  any  account  whatever.  (Ind.  App.) 
Be  Bolter  v.  De  Buiter,  107. 

See  Accord  and  Satisfaction. 

DEEDS* 

1.  UNDUE  INFLUEKOE.— The  Burden  of  Proving  nndne  in- 
flnenee,  for  the  purpose  of  having  a  will  or  deed  set  aside,  is  upon  the 
party  seeking  that  relief.     (Iowa)*    Mallow  v.  Walker,  158. 

fi.  UKDUE  INPiiUEKOE,  to  Justify  the  Setting  Aside  of  a 
Deed*  must  have  been  such  as  to  overcome  the  will  of  the  grantor, 
and  to  destroy,  to  some  extent,  at  least,  his  free  agency.  It  must 
farther  appear  that  the  undue  influence  was  exercised  at  the  time  the 
act  referred  to  was  done.     (Iowa)     Mallow  v.  Walker,  158. 

S.  UVDUB  INFLUEKCE.^An  act  is  not  due  to  undue  influence 
though  it  resulted  by  reason  of  the  influence  of  affection  or  a  mere 
desire  to  gratify  the  wishes  of  another,  if  the  free  agency  of  the 
party  is  not  impaired.     (Iowa)'    Mallow  v.  Walker,  158. 

4.  UNDUE  INFLUENCE  is  not  Ptoved  by  showing  that  a  dis- 
position made  by  a  parent  of  his  property  among  his  children  is  un- 
reasonable or  unjust.     (Iowa)     Mallow  v.  Walker,  158. 

5.  UNDUE  INFLUENOE.— Parol  Declarations  of  Intention  con- 
trary to  a  subsequent  disposition  of  property  do  not  alone  prove  un* 
dne  influence.     (Iowa)     Mallow  v.  Walker,  158. 

6.  UNDUE  INFLUENCE  is  not  Presmned  from  the  fact  that  the 
provision  made  is  by  a  parent  in  favor  of  his  child.  (Iowa)  Mai* 
low  V.  Walker,  158. 

7.  UNDUE  INFLUENCE.— Though  it  Appears  thkt  a  Deed  or 
WiU  was  Ezecnted  at  the  Suggestion  or  Beqaest  of  the  Orantee  or 


968  Index. 

devisee,  and  was  prompted  by  the  influence  which  lie  aeqnired  hf^ 
business  eonfidence  or  the  showing  of  an  affectionate  regard,  Iku 
does  not  prove  undne  influence,  n^ess  freedom  of  will  baa  beieB  la 
some  way  impaired  or  destroyed.     (Iowa)     Mallow  ▼.  Walker,  X6iL 

Bee  CoYenaats;  Vendor  and  Vendee. 

DEFAULT  JUDGMENT. 
See  Judgments,  5. 

DEP0SITI0N8. 

EVIDENOE.— DepoBltionB  may  be  read  in  evidence  only  oa 
eondition  that  they  shall  have  been  filed  with  the  clerk  of  the  eonrt^ 
and  the  opposing  party  notified  thereof  before  the  ^^w*™ ftw^rgmimt 
of  the  trial.    (Wi&}     Herman  v/Bchlesingefr,  922. 

DEPOTS. 

See  Carriers. 

DIVOBCE. 

1.  DIVOBOE.— Alimony  to  an  Innocent  and  Injured  Wife  Sboold 
be  In  a  Proportion  to  leave  her  at  least  as  well  off  pecuniarily  oa 
noncohabitation  as  she  would  be  if  cohabiting.'  An  apf>ellate  court 
will  not  interfere  with  the  decree  of  a  trial  court  in  allowing  alimony 
unless  an  abuse  of  discretion  ia  manifest.  (Ind.  App.)  De  Bniter 
V.  De  Buiter,  107. 

2.  DIVOBOE— Snpport  of   Ohlldren.— A  Divorced  Wlfe^   having 

the  custody  of  the  children,  may  sue  her  former  husband  for  expenses 
incurred  in  their  support  and  sJso  for  their  future  support.  (Wash.) 
Ditmar  v.  Ditmar,  817. 

3.  DIVOBOE— Attorneys'  Fees.— The  Fact  that  a  Wife  has  Pxef> 
erty  of  Her  Own  does  not  prove  that  an  allowance  of  attorneys'  fees 
to  her  in  a  decree  divorcing  her  from  her  husband  ia  improper  er 
unreasonable.     (Ind.  App.)     De  Buiter  v.  De  Buiter,  107. 

4.  DIVOBOE— Attorneys'  Fees.- Under  a  statute  making  it  the 
duty  of  the  trial  court  in  decreeing  divorce  to  a  wife  to  require  the 
husband  to  pay  her  reasonable  expenses  in  the  prosecution  of  her 
suit,  an  allowance  may  be  made  in  her  favor  for  attorneys'  fees. 
(Ind.  App.)     De  Buiter  v.  De  Buiter,  107. 

5.  ATTOBNEYS'    FEES.— In   an   Action   by   a  Divorced  Wife 

against  her  former  husband  for  the  support  of  their  children,  aha 
cannot  recover  attorneys'  fees.    (Wash.)    Ditmar  v.  Ditmar,  817* 

DBAFT. 
See  Sales,  8. 

DBUOGI8TS. 

1.    SALE  OF  DANGEBOUS  ABTIOLES— When  Jtiatlflalile.— When 

a  person  of  the  age  of  discretion,  and  apparently  in  the  poeseasioa  of 
his  mental  faculties  applies  to  a  druggist  for  a  designated  drug,  ht, 
by  implication,  represents  to  the  seller  that  he  knows  its  propertiei 
and  uses,  and  that  he  is  a  fit  person  to  whom  the  sale  thereof  may  be 
made,  and,  unless  there  is  something  connected  with  the  transaction^ 
or  previously  known  to  the  seller,  indicating  that  the  would-be  pur- 


Index.  969 

«hsaer  cannot  oaf elj  be  intnisted  with  the  substance,  a  sale  thereof 
to  him  may  be  made  without  explaining  its  properties  and  the  manner 
in  whieh  it  may  be  safely  used  or  handled.  (Iowa)  Qibson  >.  Tor- 
bert,  147. 

2.  NEOLIGENOS  in  the  Bale  of  Fhosphoms— What  is  not.^Jf 
a  druggist  receives  a  written  order  for  phosphorus  and  sends  it  to 
the  writer  properly  packed  in  water  and  labeled,  such  druggist  is  not 
guilty  of  negligence  because  he  did  not  explain  the  properties  of  the 
phoephoras,  nor  the  dangers  of  improperly  using  it,  and  he  is  not 
liable  for  injury  sustained  by  the  purchaser  from  the  explosion  of 
the  phosphorus  when  taken  from  the  water  and  dropped  on  the  floor. 
It  is  not  a  new  or  daugeroUs  substance  with  the  (qualities  of  which 
the  general  public  is  not  acquainted.  (Iowa)  Gibson  v.  Torbert^ 
147. 

3.  NEOLIGENOE  —  Selling  Dangerons  Article  to  an  Illiterate 
Person. — The  fact  that  the  letter  by  which  the  writer  ordered  phoe- 
phoms  to  be  sent  to  him  by  express  by  a  druggist  was  badly  spelled 
and  poorly  written  is  not  equivalent  to  a  notice  that  the  writer  is 
nnaeqnainted  with  the  properties  of  the  article  ordered,  so  as  to 
render  the  druggist  liable  for  injuries  resulting  to  such  writer  from 
his  ignorance  of  such  properties,  and  his  consequently  taking  the 
phosphorus  out  of  the  water  in  which  it  was  sent  and  dropping  a  stick 
of  it  on  the  floor,  from  whieh  an  explosion  resulted.  (Iowa)  Gibson 
V.  Torberty  147. 

EASEBCENT8. 

THE  EASEMENT  Of  Light  and  Air  is  placed  along  with  the 
easement  of  access,  the  one  no  more  important  than  the  other^  except 
in  degree.     (Ala.)    First  Nat.  Bank  v.  Tyson,  46. 

Bee  Licenses;  Municipal  Corporations,  0« 

EJECTMENT. 

1.  IN  EJECTMENT  for  Land  Occt!~ied  by  Defendant^  his  plea 
of  not  guilty  admits  a  possession  or  claim  of  title,  not  in  subordina- 
tion to  plaintiff.     (N.  J.  L.)     French  v.  Robb,  433. 

2.  EJECTMIENT  —  Complaint,  Sufllciency  of.  —  A  complaint  in 
ejectment  alleging  that  plaintiff  is  the  owner  and  entitled  to  the 
possession  of  the  land  described  therein,  and  that  it  is  wrongfully 
withheld,  is  sufficient,  without  alleging  in  detail  the  particular  facts 
upon  which  his  claim  of  title  is  based.  (Minn.)'  Atwater  v.  Spald- 
ing, 331. 

8.  EJECTBIENT  —  Public  Streets.  —  The  owner  of  the  soil  in  a 
publie  street  has  such  a  right  of  possession  as  is  capable  of  sup- 
porting the  action  of  ejectment.     (N.  J.  L.)     French  v.  Bobb,  433. 

4.  EJECTMENT— Public  Streets.-- The  owner  of  the  soil  in  a  pub- 
lie  street  cannot  maintain  ejectment  against  a  publie  corporation 
occupying  the  street  within  the  limits  of  the  public  right.  (N.  J.  L.) 
French  ▼.  Bobb,  438. 

Ejectment^  by  one  eotenant  of  a  mine  against  another,  884. 
See  Municipal  Corporations,  6;  Pleading,  4. 

ELECTIONS. 

1.  ELECTIONS.— The  Words  "Free"  and  "Equal'*  in  a  con- 
stitutional provision  that  all  elections  shall  be  free  and  equal,  signify 
thAi  elections  shall  not  only  be  open  and  untrammeled  to  all  endowttd 


970  Index. 

wHh  the  eleetive  franchise,  but  shall  be  closed  to  all  not  U  tke  eB» 
joyment  of  sueh  priTilege.     (Or.)     Ladd  ▼.  Holmee,  4S7; 

2.  PSIBfABT  SUBOTIOXS.— A  Statute  Bm^iirliig  primary  elae 
tions  for  the  selection  of  delegates  to  nominating  conventions  pn>* 
Tides  for  elections  ''anthorized  by  law  and  not  elsewhere  provided  for 
by  the  constitution,"  within  section  2,  article  2  of  the  Oregoa  eoa* 
stitution,  prescribing  the  qaaliflcations  of  electors.  (Or.)  Ladd  ▼• 
Holmes^  467. 

8.    A    PfilMABY    ELECnOK    LAV/    Limiting    the     EleetonV 

Privilege  at  the  respective  primaries  to  party  members  is  eonstita- 
tionai;    (Or.)     Ladd  v.  Holmes,  457. 

4.    A    PBIMABT    EI£OTION    LAW    Denying    Its    FxivU^gw 

to  parties  casting  less  than  three  per  cent  of  the  vote  at  the  pre- 
ceding election,  bnt  providing  a  mode  of  obtaining  representation  on 
the  official  ballot  for  such  parties  is  constitutional.  (Or.)  Ladd  v. 
Holmes,  457. 

6.  PBQCABT  ELBOTION.— Bvery  Elector  Sboold  1m  as  Tim 
to  express  his  choice  of  a  candidate  for  office  as  to  denote  Ida  ehoiee 
of  an  office  at  the  polls.    (Or.)     Ladd  v.  Holmes^  457. 

6.  PBIMABY  ELEOnOKS.— Party  BCanagenMBt  and  Affsirs.  s» 

far  as  they  concern  the  naming  of  candidates  for  public  office,  ar* 
proper  objects  of  legislative  supervision.  (Or.)'  Ladd  v.  Holmes^ 
467. 

7.  PBIMABT  ELECTION  LAW^-Invasion  of  Party  Affairs.— 
A  primary  election  law  providing  for  the  appointment  of  judges  and 
eleiks  of  the  election  by  the  county  court,  prescribing  a  test  for 
party  affiliation,  and  directing  the  manner  of  the  election  of  com- 
mitteemen, fixing  their  terms  of  office,  and  specifying  their  dutle%. 
is  not  an  unwarranted  interference  with  party  management.  (Or.) 
Ladd  V.  Holmes,  457. 

8.  PBUCABY  ELECnOKS— Nonregistered  Voter.—The  Oregon 
:piimary  election  law  providing  that  no  one  may  vote  nnless  "he 
•  shall  have  complied  with  the  requirMnents  of  the  law  relating  to 

registration  of  electors,  and  shall  be  entitled  to  vot»at  the  ensuing 
general  election,"  does  not  close  the  doors  to  all  ell^tors  who  had 
not  secured  registration  prior  to  primary  day.  They  may  vote  nnder 
certain  conditions.     (Or.)     Ladd  v.  Holmes,  457. 

9.  PBIMABY  ELECmOKS— Special  Election*— It  is  no  vaUd 
objection  to  a  primary  election  law  that  it  makes  no  provision  for 
special  eloctiona     (Or.)     Jjadd  v.  Holmes,  467. 

10.  PBIMABY  ELBOnOK   LAW.— The  Ooontry  PradBCta  are 

not  discriminated  against  nnder  sections  24  and  25  of  the  Oregon 
primary  election  law.     (Or.)    Ladd  v.  Holmes^  457« 

11.  PBIBfABY  ELEOnONS— EzponaeB.— ThA  Lsghdntiirs  may 
impose  the  expense  of  primary  elections  in  a  city  upon  the  whole 
county  wherein  it  is  located.     (Or.)     Ladd  v.  Hdmes^  457. 

12.  CONSTITUTIOKAL  LAW.— The  Bight  of  Bafltago  is  not  a 
natural  or  eivU  right,  but  a  privilege  conferred  upon  the  person  by 
the  constitution  and  the  laws  of  the  stata  (S.  Dak.)  Chamberiain 
V.  Wood,  674. 

13.  OOK8TITX7TIONAL  LAW— Bestrictlng  Bight  to  Vote.— The 
legislature  may,  by  requiring  the  names  of  all  candidates  for  office 
to  be  printed  upon  the  official  ballot,  deny  the  right  of  voters  to  write 
on  their  ballots  the  names  of  candidates  not  printed  thero.  (8.  DaL> 
Chamberlain  v.  Wood,  674. 


Imdbx.  »71: 

X4.  XIiBOTZOMB.— If  on  ballots  on  wbich  the  same  name  appears* 
two  or  more  times  as  that  of  a  candidate  for  the  same  ofiee,  a 
ytuoap  is  plaeed  opposite  such  name  in  two  of  the  places  in  which 
it  so  appears,  such  double  markings  do  not  constitute  distinguishing 
marks  nor  a  marking  of  more  names  than  there  are  persons  to  be- 
elected  to  the  o£Sce,  but  only  a  marking  of  the  same  name  more- 
tinies  than  is  necessary,  and  the  ballots  fiiould  be  counted.  (Kan.) 
Parker  v.  Hughes,  216. 

16«  EXJBCTIONS-^Ballots.— A  distinguishing  mark,  to  warrant  the- 
rejection  of  a  ballot,  must  be  found  to  have  been  made  for  the  pur- 
XKwe   of  identification.     (Kan.)     Parker  v.  Hughes,  216. 

16.  BLBCTIOKS.— If  a  Package  of  Bstoms  ftom  an  Election  Pre- 
duct  Contains  More  Ballots  tban  were  i>oiuited  Therein,  and  it  is  not 
possible  to  distinguish  those  which  were  not  counted  from  those  that. 
were,  the  whole  package  is  not  to  be  rejected,  but  the  surplus  bal- 
lots should  be  deducted  from  the  count  of  both  parties  in  propor- 
tion to  the  veto  for  each  in  the  precinct,  but  if,  on  inspection,  it  ^s 
^ound  that  so  many  of  the  ballots  must  be  rejected  that  the  number 
reniaining  is  leas  than  the  number  voted  in  the  precinct,  the  balance 
of  the  ballots  should  be  counted  for  the  candidates  for  whom  they 
were  respectively  voted.     (Kan.)     Parker  v.  Hughes,  216. 

17.  EIiECTIONS— Distinguishing  Marks.— Ballots  marked  with. 
ink  QW  with  a  pencil  other  than  black,  or  with  a  single  stroke  instead 
of  a  oros%  or  with  a  cross  after  a  name,  and  also  with  a  cross  is. 
the  square  after  the  blank  space  on  the  right  of  the  ballot  without. 
any  name  being  written  there,  must  all  be  rejected  as  bearing  dis- 
tingnishing  marks.  The  same  result  must  follow  where  the  ballot, 
has  lines  drawn  across  it  or  names  partially  or  wholly  obliterated^ 
by  pencil  marks,  or  names  or  initials  written  thereon.  (Kan.) 
Parker  r.  Hughes,  216. 

!».  BIiBOnONS— Ballots,  When  Most  be  Bejectad.— If  a  Statute- 
Makes  it  Criminal  to  so  mark  a  ballot  that  it  can  be  distinguislied,. 
such  statute  necessarily  imi^ies  that  such  ballot  cannot  be  counted.. 
(£a9.)    Parker  ▼•  Hughes,  216. 

Xtoetloni,  ballots,  official,  power  of  the  legislature  to  prescribe,  685.. 
ballots^  official,  voters  cannot  be  restricted  to  candidates  whose 

names  are  printed  upon,  688. 
ballots,  official,  whether  must  allow  the  elector  to  vote  for  the- 

candidate  of  his  choice,  686,  687. 
ballots,  printing  of,  power  of  legislature  to  require  and  regulate, 

685. 
constitutionality  of  statutes  restricting  voters  to  persons  whose 

names  are  printed  on  the  ticket,  688. 
sniTrage,  restrictions  which  the  legislature  may  impose  on  the 

exercise  of  the  right  of,  685. 
suffrage^  whether  a  natural  or  a  political  right,  685. 

EXEOTBIO     COMPAKIBB. 

See  Municipal  Corporations^  5,  6. 

EMINENT  DOMAIN. 

1.    BMnrSNT  DOMAIN— OonstitutloiiaUty  of  SUtnte  AUowlng^ 

DaaiMe0.-*Il3  is  within  the  power  of  the  legislature  to  authorise  the 

aUowance  of  damages  in  proceedings  in  the  exercise  of  the  power 

of   eminent   domain,   though   such   damages  are   of  a  character   for 


•972  Index. 

which  it  need  not  have  anthorized  rach  allowanee.  The  lagifllatvr* 
iA  not  forbidden  to  be  just  in  some  cases  where  it  is  not  reqaired 
to  be  by  the  letter  of  paramount  law.  (Mass.)  Earle  ▼.  Gonunon- 
wealth,  826. 

2.  EMTNTEKT  DOMAIN— OonstitntionaUtj  of  Btatates  AIlowliis 
Compensation  for  Iioss  of  Bnsiness.— A  statute  authorizing^  in  pro- 
•ceedings  in  the  exercise  of  the  power  of  eminent  domatn,  an  al- 
lowance to  persons  who  have  the  possession  of  lands  in  a  speeifled 
town,  whether  sueh  lands  were  taken  or  not,  for  decrease  in  tlis 
value  of  business^  is  not  unconstitutionaL  (Mass.)  Earle  ▼.  Com- 
monwealth,  326. 

3.  EBCIKEirr  DOMAIN— Owner  of  Established  Buslnass  on 
Irfmdy  Who  is. — Under  a  statute  providing  that  anyone  ownlni;  an 
established  business  in  a  designated  town,  whether  on  lands  tmksa 
or  not,  shall  be  allowed  damages  for  a  decrease  in  the  value  of 
his  business,  whether  by  loss  of  custom  or  otherwise,  a  physieiaa  'who 
has  his  office  in  a  house  belonging  to  his  wif  e^  which  is  taken  uidsr 
the  act,  is  entitled  to  be  allowed  for  any  loss  accruing  to  him  bj 
the  consequent  changing  of  his  place  of  business.  (Mass.)  Eazle  ▼• 
Commonwealth,  326. 

4.  EMINENT  DOMAIN— Market  Value— When  not  the  Measure 
ef  Damages. — Under  a  statute  allowing  compensation  for  deereass 
in  value  of  business  due  to  carryinc^  out  a  statute^  the  amount  re- 
coverable is  not  measured  by  the  difference  in  the  market  value  of 
the  business  before  and  after  tbe  taking,  but  by  the  differenee  in 
value  between  the  business  carried  on  before  the  proceeding  was 
taken  under  the  statute  and  a  similar  business  carried  on  ^  the 
same  person  in  the  nearest  available  place.  (Mass.)  Earle  v.  Com- 
monwealth, 326. 

E<liilty,  corporations,  power  of,  to  dissolve  and  to  distribute  aaseti^ 
33-33. 

EVIDENOE. 

1.  EVIDENCE.— All  Facts  are  Admissible  in  evidence  which  af- 
ford reasonable  inferences,  or  throw  any  light  upon  the  matter  eon- 
tested.     (Wash.)     Callihan  v.  Washington  etc.  Power  Co.,  829. 

2.  EVIDENCE.- The  Trip  Beport  of  a  Street-car  Conductor,  show- 
ing the  number  of  passengers  on  a  certain  trip  and  that  they  paid 
«ash  fares,  is  admissible  in  evidence  against  one  who  claims  to  have 
been  a  passenger,  under  a  transfer  slip,  on  that  trip  and  negligently 
injured.     (Wash.)     Callihan  v.  Washington  etc.  Power  Co.,  829. 

3.  EVIDENCE.— Error  In  Beceiving  or  Bejecting  Eridenco  in  as 

•equity  case  is  not  deemed  prejudicial,  in  the  absence  of  reasonable 
.ground  to  believe  that  if  the  impropw  evidence  had  not  been  con- 
fiidered,  and  the  proper  rejected  had  been  admitted  and  given  due 
weight,  the  result  might  probably  have  been  different.  (Wis.) 
Herman  v.  Schlesinger,  922.  ' 

4.  EVIDENCE— Bes  Ckstae.— Whenevor  Brldence  of  an  act  is 
in  itself  admissible  as  a  material  fact,  and  is  so  admitted,  the  declara- 
tions accompanying  and  characterizing  the  act  are  a  part  of  the 
les  gestae,  and  are  admissible  in  explanation  of  act.  (iia.)  Gamp- 
bell  V.  State^  17. 

6.  EVIDENCE— Bes  Gestae.— In  a  FroBOcntion  for  Murder,  if 
evidence  is  introduced  that  the  defendant  went  to  the  i^aee  where 
the  deceased  and  another  were  engaged  in  a  quarrel,  and,  partieipatiiig 
therein,  killed  the  deceased,  declarations  made  by  the  defendaat 
on  starting  for  the  scene  of  the  altercation  are  admissible  as  part 
of  the  res  gestae.     (Ala.)     Campbell  v.  State,  17. 


Index.  973^ 

6.  EVIDEKOE— Foreign  Langnaga— Testimony  of  What  Inter- 
preter Said  at  the  Former  TrlaL— On  the  trial  of  an  indictment  for  per- 
jury claimed  to  have  been  eommitted  by  testimony  given  at  a  prior 
trial'  in  a  foreign  language,  and  then  interpreted  to  the  court  and 
jury,  it  is  error  to  permit  a  witness  to  testify  to  the  translation  of* 
the  testimony  as  made  at  such  former  trial  by  the  interpreter.  What 
he  there  said  must  be  regarded  as  hearsay  only.  The  only  exception 
to  this  rule  arises  where  the  interpreter  aeted  as  agent  of  the  wit- 
ness in  translating  his  testimony.     (B.  I.)     State  ▼.  Terline,  650. 

7.  ±svjxiEKOE  Taken  at  a  Former  Trial  may  be  Proved  on  a- 
Second  Trial  of  the  Same  Action  if  the  witness  has  removed  from 
the  state  or  is  otherwise  beyond  the  jurisdiction  of  the  court.  (E[an.> 
Atchison  etc  B.  B.  Co.    v.  Osborn,  189. 

8.  EVTDENOE.— A  Stenographer  Who  Took  the  Testimony  at  a 
Former  Trial  of  the  Oanse,  and  who  is  able  to  read  his  notes  and 
willing  to  testify  that  they  are  correct,  should  be  permitted  to  tes- 
tify therefrom  as  to  what  was  the  testimony  of  a  witness  at  Bueh 
former  trial.     (Kan.)     Atchison  etc.  B.  B.  Co.  v.  Osborn,  189. 

9.  EVIDEKCE.— It  Is  Presumed  that  the  Common  X«aw  is  the* 
same  in  the  several  states  of  the  Union.  (Minn.)'  Engstrand  v, 
Kleffroan,  359. 

10.  EVIDENCE— Dnty  of  Court  to  Idmlt  Effect  of.— The  admis- 
sion of  a  conveyance  of  lands  adjoining  those  upon  which  the  defend- 
snt  had  ent  timber  can  be  justified  only  for  the  purpose  of  showing  an 
honest  misapprehension  of  the  boundary,  and  the  jury  should  be  so* 
informed,  and  instructed  that  it  is  not  evidence  of  title  to  lands 
claimed  by  the  plaintiff,  but  not  described  therein.  (Ark.)  Bust 
Land  etc.  Co.  v.  Isom,  68. 

Bee  Constitutional  Law,  6;  Criminal  Law,  4,  6;  Depositions;  Wit- 
nesses. 

Evidence,  right  of  is  sufficient  to  render  testimony  admissible  in  the^ 

second  trial,  201. 
of  a  deceased  witness  at  a  former  trial,  admissibility  of  in  the 

trial  of  a  different  action,  198. 
of  a  deceased  witness  at  a  former  trial  in  a  subordinate  court, 

194. 
of  a  deceased  witness  at  a  former  trial,  is  admissible,  196. 
of  a  deceased  witness  at  a  former  trial,  who  has  been  a  party 

to.  the   action,   193. 
of  a  witness  at  a  former  trial,  manner  of  proving,  206,  207. 
of  a  witness    at  -  a  former  trial,  preliminary  proof  to  warrant 

admission  of,  203,  204. 
of  a  witness  at  a  former  trial,  proof  of  by  notes  taken  by  the- 

judge  or  others,  206,  207. 
of  a  witniess    at  a  former  trial,  proving  by  bills  of  exception^ 

etc.,  207,  208. 
of  a  witness  at  a  former  trial,  since  deceased,  193. 
of  a  witness   at  a  former  trial,  substance  of,  is  sufficient,  206. 
of  a  witness    at  a  former  trial,  who  has  absconded,  and  whose 

residence  cannot  be  found,  196. 
of  a  witness   at  a  former  trial,  who  has  become  incompetent  by 

acquiring  an  interest,  197. 
of  a  witness  at  a  former  trial,  who  has  become  incompetent  since 

giving  his  testimony,  194. 
of  a  witness   at  a  former  trial,  who  has  become  mentally  incom-- 

petent,  194,  195. 


"974  Index. 

JBvUtonea  of  a  witn«M  at  a  former  trial,  who  has  beeome  t^  ill  to  a|* 

tend  court,  194,  195. 
of  a  witneaa  at  a  former  trial,  who  in  absent  on  oflleial  dntXy  IMl 
of  a  witness  at  a  former  trial,  who  is  kepi  away  from  the  seeond 

trial  by  the  adverse  party,  196. 
of  a  witness  at  a  former  trial,  who  is  now  ont  of  the  jorisdietiim 

of  the  eourt,  195. 
of  a  witness    at  a  former  trial,  who  may  testify  to,  204-2(ML 
of  a  witness    at  a  former  trial,  whose  presence  eaimot  be  pn^ 

cured  for  the  second  trial,  196,   197. 
on  the  trial  of  one  cause,  general  admissibility  of,  in  the  tiial  el 

another,  198. 
taken  on  default,  admissibility  of  in  &  seeond  trial,  200,  201. 

EXEOUTION8. 

EZEOUnON— Property  Subject  to.—MMieyt  Whetlier  flBCjetii 
<iit  Deposited  In  Bank,  is  not  subject  to  leyy  under  execution.  (lad. 
App.)     De  Buiter  v.  De  Buiter,  107. 

See  Mandamus. 

BZBOUTOBS  AKD  ADiaRI8TBATOB& 

LDSITATZON  OF  ACTIONS  Agaimt  AimfaMnfter* 
Benedy  of  Minor  Heir.—If ,  through  the  neglect  of  an  adndnislnlor 
to  sue,  he  and  the  minor  heir  are  barred  by  the  statute  of  limitatioe% 
the  heir  may  reeerer  against  him  or  his  bondsmen.  (Utnh)  Jen* 
kins  ▼•  Jensen,  788. 

See  Limitation  of  Actions,  4^  6. 


See    Druggists. 


See  Master  and  Servant,  10. 

See  Trespass. 

FOOD. 

See  Adulteration;  Commereeb 

F0BS0L08UBB. 
See  Mortgagefti 

FOBBI0N  liAKaUACHL 

See  Evidence^  6;  Perjury,  2. 

FOBMEB  JBOPABDT, 

See  Criminal  Law,  !• 


Index.  975 


FEAXJD. 


1.  TRATTD  18  not  Presomed,  but  must  be  elearly  and  diatiQctly 
proved  by  the  person  who  asserts  it.  (N.  J.  L.)  Fivej  t.  Fennel* 
Tania  B.  R.  Co.,  445. 

2.  FBAUD— Bnrden  of  Proof.— A  person  who  claims  that  his  sig- 
nature to  a  written  contraet  was  procured  by  fraud  has  the  burden 
of  proof  to  elearly  establish  such  fraud,  as  innocence,  and  not  fraud, 
is  always  presumed.  (N.  J.  Ik)  Fivey  t.  Pennsylvania  B.  B.  Co., 
445. 

3.  FRAUD— Bvidieiice.~To  establish  a  misrepresentation  that 
will  invalidate  a  contract  it  must  appear  that  the  representation  was 
not  only  false,  but  made  with  intent  to  deceive,  and  that  the  person 
seeking  relief  acted  upon,  and  was  misled  by  it.  (N.  J.  L.)  Fivey 
V.  Pennsylvania  B.  B.  Co.,  445. 

4.  FHAUD  MAT  BB  XNPBRBSD  From  SstabUiihed  Fact^  and 
seed  not  be  proved  by  positive  evideaeew  (Ind.  App.)  De  Buiter  v. 
Jhi  Baiter,  107. 

FBAXTDULEKT  OONVEYAKCTBS. 

1.  FBAUDUIiENT  CONVEYANCES.~Althoagli  Conveyances  are 
Separate,  and  executed  at  different  times,  if  done  in  pursuance  of  a 
common  design  to  defraud,  any  fact  that  vitiates  one  will  be  visited 
upon  ail.     (Ala.)     Bussell  v.  Davis,  56. 

2.  FBAUDUISKT  COICVETANOB— B^UtiTes.~The  fact  that  a 
transaction,  assailed  by  creditors  as  fraudulent,  was  between  par- 
ties nearly  related,  is  a  circumstance  calling  for  closer  scrutiny  than 
if  the  parties  were  strangers.     (Ala.)     Bussell  v.  Davis,  56. 

3.  FBAUDUIiENT  TBAK8FBB8  are  VaUd  Eroept  as  Against  the 
Clalins  of  Creditors  whom  they  tend  to  defraud,  and  when  a  suit  is 
brought  by  an  administrator  of  a  decedent  to  set  aside  a  conveyance 
made  by  him  in  fraud  of  his  creditors,  the  grantee  must  be  permitted 
to  retain  whatever  remains  after  satisfying  the  creditors.  (Iowa) 
HaUow  v.  Walker,  158. 

4.  FBAUDUIiENT  TBANSFEBS.— A  Conreyance  in  Consideratioa 
tlMt  the  Oranteo  Will  Support  the  Orantor,  made  when  the  latter  had 
substantially  no  other  property,  is  void  as  against  his  creditors. 
(Iowa)     MaUow  v.  Walker,  158. 

5.  FBAUDUIiENT  TBANSFEBS.— The  Administrator  of  aa 
Estate  may  IMUilntain  an  Action  against  the  grantee  of  the  decedent 
to  set  aside  a  conveyance  in  fraud  of  the  latter 's  creditors.  (Iowa) 
Hallow  V.  Walker,  158. 

6.  FBAUDUIiENT  TBANSFEBS— Who  may  Attack  as  a  Creditor. 
A  Wife  is  a  present  and  continuous  debtor  of  her  husband,  and  as 
such  ie  within  the  protection  of  the  statute  against  fraudulent  con- 
veyances, and  may  proceed  to  obtain  relief  against  such  a  conveyance 
if  it  interferes  with  her  right  to  collect  maintenance  and  alimony. 
(Ind.  App.)     De  Buiter  v.  De  Buiter,  107. 

7.  FBAUDXTIiENT  TBANSFEBS— Judgment  for  Alimony.— A 
wife  who  has  obtained  a  judgment  for  alimony  is  a  creditor  of  her 
husband,  and  as  such  entitled  to  attack  a  fraudulent  and  voluntary 
transfer  made  by  him.'    (Ind.  App.)     De  Buiter  v.  De  Buiter,  107. 

8.  FBAUDUIiENT  CONVEYANCE.— If  a  Debtor  Prefers  one  of; 
his  creditors  by  conveying  his  entire  estate  to  him,  the  conveyance 
it  void  as  to  other  creditors,  if  the  transfer  is  not  absolute,  without 


976  Index. 

benefit  reserved,  if  the  property  la  in  excess  of  the  demand,  if  tk» 
debt  is  fictitious  in  whole  or  in  part,  or  if  anj  cash  eonaideratiini 
is  giyen.     (Ala.)     Bussell  v.  Davis^  66. 

9.  FBAUDUIJ5NT  0OKVETAK0E.~Tliie  Burden  of  Ftoof  is  iipo» 

the  grantee  in  a  conveyance,  assailed  by  a  creditor  as  frandnlent,  to 
show  the  bona  fides  of  the  transaction.     (Ala.)     Bussell  v.  Dsvia,  56. 

10.  FRAUDtJIiENT  TBANSFEBS^Belief  Against— Where  • 
wife  has  obtained  a  decree  divorcing  her  from  her  husband,  awarding 
idimony,  and  declaring  a  conveyance  made  by  him  to  be  fraadnlest 
and  void  as  against  her,  the  court  may  also  direct  a  sale  of  the  prop- 
erty so  conveyed,  and  the  application  of  the  proceeds  to  the  pmytnemt- 
of  the  amount  due  her.     (Ind.  App.)    De  Bniter  v.  Do  Bniter,  107. 

aUABDIAK  AND  WABD. 

aUABDIAK'8  8ALB— Whsn  not  Void  for  Falliiro  to  Gfro 

Bond.— Though  a  statute  requires  a  guardian,  before  making  a  sale 
of  the  property  of  his  ward,  to  give  a  specified  bond  for  the  ^Lppd- 
cation  of  the  proceeds,  a  saJe  made  without  giving  such  bond,  but 
subsequently  confirmed  by  the  court,  is  not  void.  (Mont.)  Hngheo 
V.  Goodale,  410. 

HABEAS  00BPU8. 

1.  HABEAS  COBPUS.— Under  this  Writ  Nothing  Will  be  Inqnlxod 
Into  if  the  ProsecQtor  is  in  Custody  Under  Process,  except  the  validity 
of  the  process  on  its  face  and  the  Jurisdiction  of  the  court  issuing  it 
(Ark.)     Ex  parte  Foote,  63. 

2.  HABEAS   OOBPUS— Inquiry  into  Upon  tho  Anthozlty  of  a 

Court.— On  habeas  corpus  it  may  be  shown  that  the  court  under 
whoRe  judgment  or  order  the  prisoner  is  deprived  of  his  liberty  had 
no  legal  existence  or  is  not  a  court  of  competent  jurisdiction.  (Kaa.) 
In  re  Norton,  255. 

HEALTH. 

1.  MUNICIPAL  COBPOBATIONS— Public  Health— ConstmettOB 
of  Powers  Conferred. — Powers  conferred  by  statute  upon  municipal- 
ities  or  boards  of  health  to  secure  the  preservation  of  the  publie 
health,  and  to  provide  for  the  enforcement  of  all  proper  and  neces- 
sary sanitary  regulations,  and  for  the  summary  suppression  of  all 
conditions  detrimental  to  the  lives  and  health  of  tho  people,  should, 
notwithstanding  the  individual  liberty  of  the  citizen  is  in  a  large 
measure  involved,  receive  a  broad  and  liberal  construction  in  aid  of 
the  beneficial  purposes  of  their  enactment.  (Minn.)  State  ▼•  ZiiB- 
merman,  351. 

2.  MUNICIPAL    COBPOBATIONS— Vaccination.— A    broad   and 

comprehensive  delegation  of  power  by  statute  to  municipalities  or 
health  boards  to  do  all  acts  and  make  all  regulations  for  the  preser 
vation  of  the  public  health  as  are  deemed  expedient,  confers  i^wa 
the  proper  authorities  power  to  make  and  enforce  a  regulation  tiitt 
in  cases  of  emergency  caused  by  an  epidemic  of  smallpox,  all  chil- 
dren shall  be  required  to  be  vaccinated  as  a  condition  precedent  te 
their  admission  to  the  publie  schools.  (Minn.)'  State  ▼• 
man,  351. 


See  Covenants;   Limitation  of  Aetiouk 


Indsx.  d77 


JSIOHWATB. 

NEOLIOEKOE^LeaYliig  Hone  XTatied  in  Street.— It  is  not 
negUgenee  for  the  driver  of  a  quiet,  gentle  horse  to  leave  him  un- 
"Cied  and  otherwise  unattended  on  the  side  of  a  publie  street  or  high- 
"vray,  as  he  is  accustomed  to  do  without  accident,  and  with  nothing 
of  an  unusual  character  present  to  alarm  the  horse  while  the  driver 
Is  near  by  loading  goods  into  the  wagon  to  which  the  horse  is 
liitehed.    (N.  J.  L.)    Belles  v.  KeUner,  429. 

HOMESTEAD. 

HOMESTEAD —Statute  of  limitations— Payments  Made  by 
SMband. — If  a  husband  and  wife  execute  a  mortgage  on  their 
liomestead  to  secure  the  payment  of  a  note  made  by  him  only,  his 
payment  of  interest  from  time  to  time,  though  without  her  knowl- 
edge, prevents  the  running  of  the  statute  of  limitations,  and .  the 
mortgage  may  be  foreclosed  in  a  suit  commenced  more  than  five 
years  after  the  note  became  due.'    (Kan.)     Skinner  v.  Moore,  244. 

Somestead*  statute  of  limitations  on  liens  against  husbands,  power 
to  suspend  the  running  of,  247. 

See  Publio  Lands,  2. 

HOMIOIDE. 

1.  MUBDEB— Indictment— Evidence  of  Felony.— Under  an  in- 
dietment  for  murder  in  the  first  degree  simply  charging  the  offense 
as  willful,  deliberate,  and  premeditated,  any  evidence  is  admissible 
"wbieh  tends  to  show  the  facta  of  the  killing,  and  also  that  the  homi* 
eide  was  committed  in  the  perpetration  of  a  xobbery,  which  by  statute 
is  made  murder  in  the  first  degree.  The  indictment  need  not  specifi- 
cally allege  that  the  homicide  was  committed  in  the  perpetration 
of  a  robbery  to  admit  proof  of  that  fact.    (Utah)    State  v.  King,  808. 

2.  MXJBDEE— Conspiracy  to  Bob.— If  two  persons  are  associated 
together  for  the  purpose  of  robbing  a  person,  who  is  killed  by  one  of 
tbem»  either  or  both  are  chargeable  with  the  murder,  whether  he  or 
his  companion  fired  the  fatal  shot.     (Utah)     State  v.  King,  808. 

8b  HOMIOIDE— Killing  Attempted  Bobber.— A  person  upon 
"whom  an  attempt  to  rob  is  being  made  is  justified  in  killing  his  as- 
aailant,  without  attempting  to  use  other  or  less  radical  means,  or  t3 
retreat,  even  though  such  means  may  be  resorted  to  with  entire 
safety  to  himself,  and  would  manifestly  be  successful.  (N.  J.  L.) 
State  V.  Bonofiglio,  423. 

4.  HOMIOIDE— Murder— Deliberation.— The  presence  of  a  spe- 
cific intent  to  take  life  is  not,  standing  alone,  conclusive  that  the 
homicidal  act  was  done  with  deliberation  and  premeditation.  (N.  J. 
Ij.)     State  V.  Bonofiglio,  423. 

6.  HOMIOIDE— Justifiable. — A  man  may  protect  himself  against 
assault,  even  to  the  extent  of  taking  the  life  of  his  adversary, 
when  that  act  is,  or  reasonably  appears  to  be,  necessary  to  the 
preservation  of  his  own  life  or  to  protect  himself  from  serious  bod- 
ily harm.     (N.  J.  L.)     State  v.  Bonofiglio,  423. 

6.  JT7BT  TBIAIk— Instructions  Postulating  an  Acquittal  upon 
self-defense,  which  are  argumentative,  or  which  omit  some  con- 
stituent element  of  self-defense  are  properly  refused.  (Ala*)  Gamp> 
beU  T.  Statey  17. 

Am.  8t.  Rep.,  Vol.   M.--62 


^8*  Imwz. 

HUJfflNGi 
See  Treepaas. 

HDSBAKD  Ain>  WIFE. 

HUBBAin)  AND  WIFE— Ocmfidenttal  B^Uttons  of.— A  wlf* 
^as  a  right  to  rely*  upon  confidential  relations  ezieting  between  her 
«nd  her  husband,  and  is,  therefore,  excused  in  not  reading  paper* 
presented  to  her  by  him,  to  ascertain  whether  his  representations 
respecting  their  nature  and  purpose  are  true,  and  if  such  representa- 
tions were  false,  she  is  not  precluded  from  obtaining  relief  in  equity 
hj  the  fact  that  she  executed  the  papers  without  ascertaining  that 
their  contents  were  not  as  so  represented.  (Ind.  App.)  De  Bolter 
w.  De  Buiter,  107. 

See  Dirorce. 

IGE. 

See   Constitutional   Law,   9-11;   Navigable  Waters. 

INDEMNIT7. 

Bee  Insurance. 

ZNDEFEIIDSKT     OONTRAOTpBi 

See  Ifaster  and  Servanty  8. 

IMDIOTlflENT. 

See  Homicide;  Larcenj;  Perjury. 

rNTANTS; 

1.  INFANTS— The  Pl^a  of  Infancy  is  not  Always  a  PiiTllese 
Personal  to  an  Infant.— Its  chief  application  is  for  his  proteetiea  ia 
^cases  where  the  adult  seeks  to  avoid  his  contract  on  that  groand 
-when  it  has  not  been  disaffirmed  by  the  infant.  It  cannot  be  r^ed 
upon  for  the  purpose  of  showing  that  an  infant  is  bound  by  a  wa^ 
Tanty  in  a  contract  of  insurance,  he  having  died  before  disafBrmin^ 
it.     (B.  I.)     O'Bourke  v.  Hancock  Mut.  Life  Ins.  Co.,  643. 

2.  CONTBAOTS  OF  INFANTS— Liability  for  Tort.— If  an  in- 
fant's tort  is  subsequent  to,  or  independent  of,  his  contract  and  not 
a  mere  breach  thereof,  but  a  distinct,  willful,  and  positive  wrong 
in  itself,  then,  notwithstanding  the  contract,  the  infant  is  liabla 
(Tenn.)     Lowery  v.  Gate,  744. 

3  CONTSAOTS  OF  INFANTS— liability  for  Negligent  BreadI 
>of.— If  an  infant  contracts  to  thresh  grain,  and  in  performing  tbe 
work  negligently  uses  an  engine  without  a  spark-arrester,  plaeerf 
.80  near  that  it  sets  fire  to  and  burns  the  grain  and  the  shed  con- 
taining it,  he  is  not  liable  for  the  loss,  without  proof  that  his  act 
was  a  willful  and  intentional  wrongs  done  independently  o^  and 
-outside  of,  the  contract.     (Tenn.)    Lowery  v.  Cate,  744. 

4.  CONTSAOTS  OF  INFANTS— Liabili^  for  TortiiMni  Brensli  of 
"Contract.^ While  an  infant  is  liable  for  his  independent  twt,  he 
is  not  liable  for  the  tortious  ^  consequences  of  his  breaches  of  eoa- 
itract,  though  the  action  may  be  in  form  as  for  a  tort,  so  long  as 


Index.  979 

-^lie  snbjeet  of  iht  rait  is  based  <m  the  contract.    (Texm.)    Low^rr* 
V.   Gate,  744. 

5.  0OHTKAOT8  OF  IKFAKTS— B«piiidiatlon.--A  minor  cannot 
repudiate  a  contract  made  for  his  benefit  without  returning  the 
property  in  his  possession  obtained  hy  and  through  it.  (Utah) 
Jenkins  ▼.  Jensen,  783. 

6.  A  MINOB  may  Dlsai&nn  and  Aroid  a  Contract  by  him  made 
^or  the  purchase  of  a  bicycle  of  which  he  has  had  possession  and 
tjse,  and  recover  a  sum  which  he  paid  on  account  of  such  purchase 
^without  putting  the  other  party  in  statu  quo  or  allowing  anything 
"for  the  rent  and  use  of  the  property  while  in  his  possession  under  the 
•contract  of  purchase,  though  the  reasonable  value  of  the  use  of  the 
l)icycle  was  equal  to  the  sum  paid  by  him  on  account  of  its  pur«. 
«ha8e.     (Mass.)     GiUis  v.  Goodwin,  265.  * 

€e»  Death^'S;  Limitation  of  Actions;  Negligence;  Street  Bailwaya. 

IKJUKOnOK. 
8e»  Appeal  and  Error^  1;   Municipal  Corporations,'   ft. 

INSAHB  FEB801I8. 

WANT  OF  MENTAZi  CAPACZT7  is  not  Made  Cat  where  it 
appears  that  the  party  in  question  had  sufficient  mind  to  determine 
for  bimself  what  he  wanted  to  do,  and  to  carry  out  his  purpose  with 
reference  to  the  disposition  of  the  property  owned  by  him.  though 
he  acts  upon  an  antipathy  suddenly  formed.  (lows  )  Mallow  v* 
Walker,  158. 

IK8TBtroTION& 

See  Trial. 

mSOBANOE. 

1.  BAII^AYB— iDsnranco  of  Against  Idabllity  for  AcddeBt* 
WHen  Dees  not  Include  Death  of  Passenger.— Under  a  policy  insuring 
ji  railway  corporation  "against  loss  from  liability  to  any  person  who 
may,  during  the  period  of  twelve  months,  accidentally  sustain  bodily 
injuries  while  traveling  on  any  railway  of  the  insured  under  cir- 
cumstances which  shall  impose  upon  the  insured  a  common  law  or 
statutory  liability  for  such  injuries,"  there  can  be  no  recovery  be- 
cause of  an  accident  due  to  the  fault  of  the  insured,  if  the  person 
injured  dies  instantly  and  without  conscious  suffering.  (Mass.) 
Worcester  etc.  By.  Co.  v.  Travelers'  Ins.  Co.,  275. 

2.  IMKJBANCE— Bstate  of  Deceased.— A  policy  insuring  the 
^'estate"  of  a  deceased  person  against 'loss  by  fire  is  valid  and 
enforceable.  (Minn.)  Magoun  v.  Fireman's  Fund  Insurance  Co., 
370. 

3.  IN8TJBAK0B— Mortgage  Olanse.— A  policy  of  insurance  pro- 
Tiding  that  if  it  shall  be  made  payable  to  a  mortgagee  of  the  in- 
sured property,  no  act  or  default  of  any  person  except  such  mort- 
■gagee^  his  agents,  or  those  claiming  under  him,  shall  affect  the 
right  of  the  mortgagee  to  recover  in  case  of  loss,  which  shall  be 
payable  to  a  certain  named  person,  mortgagee,  as  his  interest  may 
appear,  gives  to  such  mortgagee  independent  insurance,  which  eaa- 
not  be  destroyed  by  any  act  or  default  of  the  mortgagor,  or  of 


980  INDIZ. 

person  ezeept  the  mortgagee,  his  agent,  or  privies.'    (Minn.) 
▼.  Fireman's  Fund  Ins.  Co.,  370. 

4.  IN8UBANCE— Change  in  Title.— If  an  agreement  under  whieb 
a  mortgagee  is  to  receive  a  conveyance  of  infured  premises  in  sat- 
isfaction of  the  mortgage  debt  is  not  fnllj  consummated  prior  to> 
loss  under  the  policy,  there  is  no  change  in  the  legal  title  to  th» 
property,  so  as  to  constitute  that  a  ground  for  the  avoidance  of  th» 
policy.     (Minn.)     Magoun  y.  Fireman's  Fund  Ins.  Co.,  370. 

6.  INSURANCE— Failure  of  Agent  to  Disclose  Facts~Exceasi¥e 
Insurance. — If  an  insurance  agent  is  part  owner  of  the  insured  prop- 
erty as  heir  to  one  deceas^  subsequently  to  the  execution  of  & 
mortgage  on  the  property,  and  also  one  of  the  makers  of  the  mort- 
gage note,  his  failure  when  issuing  the  policy  to  notify  his  eom- 
pany  of  these  facts,  or  that  there  was  a  prior  policy  upon  the  prop- 
erty issued  to  such  mortgagee,  does  not  void  the  policy  last  issaed, 
although  the  amount  of  insurance  is  in  excess  of  the  unonnt  per- 
mitted as  concurrent  insurance.  (Minn.)  Magoun  y.  FireoiiaA'e 
Fund  Ins.  Co.,  370. 

6.  INSURANCE,  LIFE— Agent  Procuring  Insnrance,  VHio  Deemed 
to  be  the  Agent  of. — An  agent,  in  simply  procuring  inearaaec^ 
is  deemed  to  be  the  agent  of  the  applicant,  and  not  of  the  insurer, 
and  the  applicant  is  answerable  for  his  mistakes  and  false  answers. 
Testimony  of  what  was  said  to  and  by  the  solicitor  is,  therefore,  in- 
material.     (K.  I.)     O'Hoizrke  v.  Hancock  Mut.  Life  Ins.  Co.,  643L 

7.  INSXJB.ANCE,  LIFE— Warranty—Burden  of  Proof.— Answers 
in  an  application  for  life  insurance  respecting  the  previous  illness 
of  the  insured  and  his  consulting  physicians,  and  the  like,  are  war- 
ranties which  must  be  proved  by  the  plaintiff,  but  which,  for  con- 
venience of  trial,  may  stand  on  presumption  of  prima  facie  evidence 
until  contradicted.  (B.  I.)  O'Bourke  v.  Hancock  Mut.  Life  In&. 
Co.,  643. 

8.  INSUBANCE,  LIFE— Insurer,  Wliether  Bound  to  Have  Preeent 
Knowledge  of  Its  Files.— Where  the  answers  of  an  applicant  for  life 
insurance  stated  that  the  insuring  corporation  had  never  refnsed  an 
insurance  on  his  life,  a  recovery  cannot  be  defeated  on  the  ground 
that  such  answer  was  false,  if  the  corporation,  by  an  examination  of 
its  files,  must  have  seen  that  a  previous  application  on  behalf  of 
the  same  person  had  been  by  it  rejected.  (B.  I.)  O'Bourke  y» 
Hancock  Mut.  Life  Ins.  Co.,  643. 

9.  INSUBANCE,  LIFE— Answers  of  Applicant  Known  Iff  tlie 
Insurer  to  be  False.— Where  an  insurance  corporation  is  in  actual 
possession  of  knowledge  of  a  fact,  and  by  turning  to  its  own  records 
can  assure  itself  better  than  by  the  imperfect  memory  of  the  ap- 
plicant, it  is  a  perversion  of  the  purpose  of  warranty  to  allow  it  to- 
avoid  its  contract.  (B.  I.).  O'Bourke  T.  Hancock  Mut.  Life  Ins. 
Co.,  643. 

10.  INSUBANCE,  LIFE.— An  Infant  is  not  Bound  by  His  War- 
ranties in  a  Contract  of  Insurance.  Hence  a  policy  insuring  his  life 
cannot  be  defeated,  where  he  has  died  before  his  majority,  by  prov- 
ing that  the  answers  made  to  questions  projyounded  in  the  applica- 
tion were  false.  (B.  I.)  O'Bourke  v.  Hancock  Mut.  Life  Ins.  Co.,. 
643. 

11.  INSXJBANCE,  LIFE— Estoppel  Against  Beneflciarj.— Where  a 
policy  issues  insuring  the  life  of  a  minor,  containing  warranties 
which  are  not  binding  on  him  because  of  his  infancy,  the  baieficiair 
is  not,  upon  the  minor's  death,  estopped  from  reeoveriag  on  the 


Imdbx.  9Sl 

pbliey,  if  she  did  not  proenre  the  inmiraiiee  witli  knowledge  of  the 
false  statement.     (B.  L)    O'Bburke  v.  Hancock  Mnt.  Life  Ins.  Co«, 

12.  INSinLANOE,  UFE^SelmbiiXBeiiient  for  Premlnnis  Paid.— 
An  assignee  of  a  life  insurance  policy  who  pays  premiums  tnereon 
is  entitled  to  reimbursement  therefor  out  of  the  proceeds  of  the  pol- 
icy, with  interest.     (Tenn.)    Insurance  Go.  y.  Dunscomb,  769.  ' 

15.  INSUBAKOE,  UFE— Znsiirable  Interest— Statute  of  Limita- 
ttoiiB. — The  fact  that  the  debtor  may  be  armed  with  a  legal  defense, 
<uch  as  the  statute  of  limitations,  against  the  creditor,  does  not 
destroy  the  insurable  intezest  of  the  latter  in  the  life  of  the  former, 
-either  as  absolute  payment  or  as  collateral  security,  nor  defeat  his 
right  to  recover  on  insurance  on  the  debtor's  life  in  his  favor. 
<Teim.)     Insurance  Co.  t.  Dunscomb,  769. 

14.  mBUBANOE,  UFE— Inmirable  Interest— Statute  of  Limita- 
ttons. — If  a  creditor  takes  insurance  on  the  life  of  his  debtor,  either 
as  payment  or  as  collateral  security,  the  fact  that  the  debt  is  barred 
by  limitation  at  the  time  the  insurance  is  taken,  or  becomes  barred 
or  affected  with  a  presumption  of  payment  before  the  policy  be- 
comes imyable,  does  not  prevent  the  creditor  from  recovering  the 
insurance,  either  as  against  the  insurer  or  the  personal  representa- 
tivee  of  the  insured.     (Tenn.)     Insurance  Co.  v.  Dunscomb,  769.' 

16.  IN8UBAN0E,  LIFE.— A  Creditor  has  an  Insurable  Interest 
in  the  life  of  his  debtor  to  the  extent  of  the  indebtedness.  (Tenn.) 
Insurance  Co.  v.  Dunscomb,  769. 

16.  INBUBANCE— Accident— Death  by,  What  Evidence  Sufficient 
to  Prove. — If  it  appears  that  a  passenger  on  a  railway  train,  intending 
to  alight  at  a  crossing,  left  his  seat  while  the  train  was  running,  went 
to  the  steps,  and,  descending  them,  stood  on  the  lower,  holding  the 
railing  with  both  hands,  and  he  was  next  seen  acting  as  if  he  was 
going  to  step  down  another  step,  and  next  holding  the  railing  with 
one  hand,  and  being  dragged,  the  jury  is  authorized  to  f  nd  that  his 
Tesultlng  injuries  were  accidental.  (Iowa)  Smith  v.  Aetna  Life 
Ins.  Co.,  153. 

17.  INSURANCE,  ACCIDENT— Exposure  to  Unnecessary  Danger. 
The  Burden  of  Proof  is  on  the  defendant  to  show  that  an  accident 
^eausing  death  resulted,  in  whole  or  in  part,  from  voluntary  exposure 
to  unnecessary  danger.     (Iowa)     Smith  v.  Aetna  Life  Ins.  Co.,  153. 

18.  INSUBANOE,  ACCIDENT.— Voluntary  Exposure  to  Danger 
ICeana  something  more  than  negligence  proximately  contributing  to 
the  injury.  The  test  seems  to  be,  did  the  insured  appreciate  that,  by 
doing  the  act,  he  was  putting  life  and  limb  in  hazard.  (Iowa)  Smith 
V.  Aetna  Life  Ina  Co.,  1^3. 

19.  INSUBANCE  AGAINST  ACCIDENT.— Voluntary  Exposure  to 
Danger  is  not  ProTOd  by  evidence  tending  to  show  that  the  insured 
-stood  on  the  steps  of  a  moving  train,  holding  on  with  both  hands, 
<and  fell  or  stepped  therefrom  in  the  belief  that  he  was  stepping  on 
<i  lower  step,  which  in  fact  did  not  exist.  (Iowa)  Smith  v.  Aetna 
Life  Ins.  Co.,  153. 

20.  INSUBANCE,  ACCIDENT.— One  making  preparations  to  leave 
a  train  at  a  place  elsewhere  than  the  depot,  if  the  train  should  stop, 
is  not  guilty  of  a  violation  of  law,  and  does  not  break  the  conditions 
of  a  policy  of  insurance  exempting  the  insurer  from  liability  for 
injuries  sustained  in  acts  in  violation  of  law,  nor  does  he  violate 
the  condition  of  the  policy  exempting  the  insurer  from  liability  for 


982  iTWE^. 

iajnrias  mfftrad  1^  tti«  lB0iirad  wMIe -!«itaHiig  or  loaTlacT 
«anT«yaBee.    (l^owa)    ISnUlh  y,  Aotea  Xnife  Xu.  Co^  ISA. 

Xttrarance,  interpleader,  bills  of    to  determine    to  whom 
monej  ■hoold  *be  paid,  €12,  SIS, 

See  Interpleader,  2. 


1.  XNTBBB8T,  'After  tbo  Breach  of  a  Ctootract,  la  reeoTvcaUo* 

only  as  damages.'    (Or.)     Close  ▼.  Biddle,  980. 

2.  XNTSRJSBT—mgkn   Rate   After  J>of«iat.— A    stipolatiott   is 

a  bond  and  mortgage  for  a  MgU$r  i;ate  of  .interest  after  matnzity^ 
such  rate  not  being  usurious,  is  for ,  liquidated  damages,  and  not  a> 
penalty,  and  is  enforceable  in  equity.     (Or.)     Close  t.  Biddle,  580. 

Interest,  agreememt  to  pay.  hi^er  upon  4ofaii|t  after  .SMtvity  of  the- 

debt,  586,  587. 
agreement  to  pay  higher  upon  4ofa«|k,r>eaaes.jieiiyi]|g  Talidity  of^ 

584-586. 
agieoment  to  pay  higher  npon  default,  eaaes  miintaifiiiig  Talsdity 

of,  586-569. 
.agreement  to  pay  higher  npon  defaalt  to  be  eonqpntad  from  tbo 

accruing  of  the  debt,  587,  588. 
agreement  to  pay  higher  upon  defiMilt,  waiver  of,  588,  569. 
agreement  to  pay  higher  upon  default,  whether  ofEenda  the  stat- 
utes against  usury,  ^88,  589. 
conflict  of  laws  as  to  allowance  of  in  actions  on  negotiable  instm- 

ments,  733,  734. 
conflict  of  laws  as  to  allowing  as  an  element  of  damages,  731,  73^ 
conflict  of  laws  aa  to  allowing  by  wi^  of  damages,  734. 
foreign  law  allowing  must  be  proved  as  a  fact,  741,  742. 
foreign  law  concerning  will  be  judicially  noticed,  741. 
law  of  the  forum,  when  controls  the  .allowance  of,  735,  736,  738^ 

743. 
on  a  judgment  is  not  affected  by  the  fact  that  H  is  fonndod  oa 

a  foreign  cause  .of  action,  737. 
on  a  judgment  of  a  court  of  another  state,  787. 
on  bills  of  exchange,  by  what  law  controlled,  733,  "734. 
on  foreign  judgments,  by  what  law  controlled,  735,  736. 
on  promissory  notes,*  by  what  law  controlled,  '783. 
when  allowed  by  way  of  damages^  784. 
whether  controlled  by  the  law  of 'tfae''fonim,-732^'733. 
presumption  that  common  law  eontvols,  742. 

See  Damages,  3;  QAear8^.7;  Usozy. 

IMTBBPXBADaaS. 

1.  INTEBPZiEADEB.— The  Office  of  an  Intorpleadliig  toit  is  not 
to  protect  a  party  against  a  double  liability,  but  against  doubl* 
Toxation  in  the  ease  of  one  liability.  (B.  I.)  Connecticut  Mot.  Life 
Ins.*  Co.  V.  Tucker,  590. 

2.  ZN8UBAK0E  COBPOBATIOK— When  Oannot  Oompel  Claim- 
ants Under  Two  Policies  to  Interplead.~If  a  life  insnrance  eompsay 
iraues  a  policy  upon  the  life  of  A,  .payable  to  B,  but  if  B  should 
not  survive  A,  then  to  B's  children,  and  pem^itfl  B,  then  having 
children,  to  atisign  to  A,  and  thereupon  issues  a  now  policy  payable 
to  the  estate  of  A,  the  corporation  cannot,  on  the  death  of  A,  main- 


iMDiBZ.  96& 


"twkhk  a  bill  of  interpleader  .  against  the  peraom  elaimiag  imdar 
'tvwo  policies,  because  it  may  be  liable  on  both*     (B.  I.)'    Connecticut. 
rAlnt.  lilerlns.  Co.  Y.  .Tucker,  390. 

.  XiibtJU»l6ader»  adverse  elaims,  to  support  must  arise  out  of  reasonable- 
doubt,  595. 

bills  by,  preceding  action  by  one  of  the  claimants  is  not  neces- 
sary to  support;  603,  604. 

bills  in,  nature  of ,  ^598. 

bills  of,  absence  of  other  rcnedy,  whether  «saential  to  /main- 
^enaaseof,  600. 

bills  of,  agents  or  bailees,  whether  may  maintain,  606. 

bills  of,  attorneys,  when  may  maintain,  606. 

bills  of,  bailees,  whether  may  maintain  against  the  •bailer  andf 
another,  608. 

bills  of  by  banks  to  determine  the  title  to  .moneys  4^p*sited^ 
608,  609. 

bills  of  by  common  carriers,  609. 

bills  of  by  corporations  to  determine  to  whom  to  pay  diyidends,. 
611. 

bills  of  by  executors  and  administrators,  610. 

bills  of  by  insurers  to  determine  to  whom  insurance  money  shalt 
be  paid,  612,  613. 

UUs'.of  by  judgment  .debtors  to  determine  to  whom  payment 
should  be  madey  613,  614. 

bills  of  .by  persons  liable  upon  .negotiable  instruments,  611,  612. 

bills  of  by  tenants  where /adveiae  claims  are  made  to  rents,  tf07^ 
608. 

bills  of  by  trustees,  609,  610. 

bills  of,  claims  of  the  adverse  parties  must  be  free  from  contin- 
gency, 604. 

bills  of,  claims  of  the  defendants^  whether  must  proceed  fron^ 
.a  common  source,  600. 

-bills   of,   disinterestedness  of    complainant,  when  necessary  to* 
maintain,  598,  599. 

bills  of,  dispute  between  claimants  necessary  to  sustain,  602. 

bills  of,  complainant  must    concede  his  liability  for    the  ftklT 
amount  of  the  claim,  603. 

bills  of,  interest  ,of  the  complainant  which  will  bar  right  to* 
maintain,  590. 

'bills  of,  lie  only  when  the  complainant  is  under  a  -single  liability,. 
595. 

bills  df ,  mere  existence  of  adverse  claims  is  not .  saffieient  'to* 
sustain,  596. 

bills  of,  payment  or  d^osit  into  court  by  the  complainant  18= 
essential,  604. 

bills  of,  possession  of  the  property  by  the  complainant  is  essen- 
tial, 604.    . 

•  bills  of,  privity  aeeeesaTy  to  sustain,  600. 

bills  of,  receivers,  whether  may  maintain,  607. 

bills  of  must  be  jUed  before  a  judgment  at  law  against  the  som- 
plainant,  198. 

bills  of,  subject  matter  of  the  adverse  claims  must  be  identioal^ 
!600,  601. 

bills  of,  the  amount  of  claim  must  not  be  in  dispute,  603. 

bills  of  to  ascertain  to  whom  moneys  should  be  paid  in  the  eocer- 
cise  of  the  right  of  .eminent  domain,  613. 

bills  of,  vendees  of  property,  when  may  maintaioi  607. 


984  Index. 

Interpleader,  bUle  of,  when  Ue,  594,  695. 

bills  of,  when  should  be  filed,  698. 

bills  of  where  action  against  or  in  favor  of  one  elalmant 

protect  the  complainant  from  the  other,  596. 
bills  of  where  the  claim  of  one  defendant  is  legal  and  ef 

other  equitable,  603. 
bills  of,  who  entitled  to  file^  605. 
bills  of,  wrongdoers  cannot  maintain,  605. 
doable  liability  prevents  maintenance  of  bill  of,  tKM. 
ia  not  a  proeeedhig  in  rem,  596. 
jorisdiction  of  equity,  whether  ousted  by  anthorinag 

ings  by,  597. 
proceedings  in  are  equitable  in  character,  597. 
reasonable  doubt  necessary  to  support,  595,  608. 
statutes  affecting  proceedhigs  by,  597« 
suits  in  are  not  £i  disfavor,  597. 

ZNTEBSTATE 

Bee  Commerce. 


JT7DOMEKT8. 

1.  JUDOMEirrS— When  .Voidable  or  Void.-— The  orders  and 
judgments  of  a  court,  within  its  jurisdiction,  may  be  voldaUe  for 
error  or  irregularity,  but  such  error  or  irregularity  does  not  of  itsdf 
make  them  void.    (Mont.)    Hughes  v.  Gk>odale^  410. 

2.  JX7DOMENTS  Void  as  to  One,  Whether  Void  as  to  AIL— At 
common  law  a  judgment  in  an  action  ex  delicto,  against  two  or  more 
defendants  jointly  and  severally  liable,  though  void  as  to  one  of  them 
for  want  of  jurisdiction,  is  not  necessarily  void  as  to  the  other  or 
ethers.     (Minn.)     Engstrand  v.  Kleffman,  359.  * 

8.  BBS  JUDICATA.— A  Judgment  Against  a  Holder  of  a  Vegs- 
tiable  Instrument,  for  noncompliance  with  the  statute^  requiring  it 
to  be  on  a  printed  form  and  to  show  the  consideration,  does  not  bar 
an  action  for  the  purchase  price  of  the  article  on  account  of  which 
the  instrument  was  executed.  (Ark.)  Both  v.  Merchants'  etc  BaalL 
80. 

4.    JX7DOMENT8  OF  NATIONAL  0OUBT8  as  Bes  Jodlcate  IB 

State  Courts.— If  a  judgment  in  favor  of  plaintiff  in  a  national  eoort 
is  reversed  on  appeal,  and  the  cause  remanded  for  a  new  trial, 
whereupon  plaintiff  takes  a  voluntary  nonsuit  and  brings  a  mew 
action  in  the  state  court,  the  judgment  of  the  national  court  is 
not  conclusive,  either  as  res  judicata,  or  as  a  declaration  of  the 
law  of  the  case,  in  the  prosecution  of  the  latter  action.  (Toul) 
Bailroad  v.  Bents,  768. 

6.    COIiLATEBAIa  ATTACK.— A  Judgment  by  Default^  erroaeoos 

in  granting  relief  not  demanded,  is  not  void  and  open  to  collateral 
attack.     (S.  Dak.)     Mach  v.  Blanchard,  698. 

6.  JUDGMENT- Merger— Lbnltatloss  U'pon  the  Bffeet  of.— A 
judgment  upon  a  cause  of  action  which  is  exempt  from  the  opcratioa 
of  a  discharge  in  bankruptcy  is  not,  by  operation  of  the  law  of  oMr- 
ger,  brought  within  the  effect  of  the  discharge.  (B.  L)  MeDoaald 
V.  Brown,  659. 

7.  BBVEBSAL  OF  JTJDGMENT.— A  Mortgage  Is  KnlUlled  by 
the  reversal  of  a  judgment  on  which  the  mortgagor's  title 
(S.  Dak.)     Mach  v.  Blanchard,  698. 


Index.  986 

entirety  of  when  sgainBt  seYeral  def endante,  S63-366. 
entirety  of  when  against  several  defendants,  deeisions  denying, 

366-370. 
foreign,  interest  on,  by  what  law  eontrolled,  735,  736. 
in  another  state  void  as  to  one  defendant  is  void  as  to  all,  366. 
interest  upon,  when  rendered  in  another  state  or  country,  736,  737. 
of  other  states,  interest  upon,  by  what  law  controlled,  737. 
Toid  as  to  one  defendant^  history  of  decisions  declaring  it  void 

as  to  all,  362. 
void  as  to  one  defendant  must,  on  appeal,  be  reversed  as  to  all, 

368. 
void  as  to  one  defendant^  whether  void  as  to  all,  362-370* 

JX7BISDI0TI0K. 
See  Courts;  Process. 

^teUces  of  the  Peaces  judicial  acts  of  prompted  by  eorruption,  576. 
judicial  acts  of,  what  deemed  to  be,  676,  676. 
sureties  of,  liability  of  for  acts  of  in  ex-oficio  capacities,  579. 
sureties  of,  liability  of  for  acts  of  in  approval  of  bonds,  676. 
sureties  of,  liability  of  for  failure  to  issue  execution,  574. 
sureties  of,  liability  of  for  judicial  acts  of,  676. 
sureties  of,  liability  of  for  moneys  received  by,  577. 
sureties  of,  liability  of  for  unlawful  issuing  of  execution,  574. 
sureties  of,  liability  of  is  confined  to  nonjudicial  acts,  575. 
sureties  of,  liability  of  when  acting  as  collecting  agents,  575,  576. 
sureties  of,  ministerial  acts  and  neglects  for  which  are  liable^ 
674. 

lABOB  UNIONS. 
See  Constitutional  Law,  8;  States,  5. 


LACHES— Bole  of  Does  not  Apply  to  Legal  Actions.— The  doe- 
trine  of  laches  does  not  apply  to  a  case  in  which  the  plaintiff  does 
not  ask  equitable  relief,  but  seeks  in  a  court  of  law  to  enforce  a 
plain  legal  title  in  an  action  not  barred  by  any  statute  of  limitations. 
(Ark.)    McFarlane  v.  Qrober,  84. 

LABCENY. 

L  LABOENT— -Indictment.— The  Ownership  of  Property  Stolen 
ftom  a  Partnership  is  sufficiently  laid  in  one  of  the  n^embers  of 
the  firm;    (Ala.)     Smith  v.  State,  21. 

2.  LABOENY— Proof  of  Corpus  Delicti.— If  the  evidence  affords 
«n  inference  of  larceny,  its  sufliciency  is  for  the  jury,  and  it  is 
their  province  to  determine  whether  the  corpus  delicti  has  been 
proved.  In  such  case,  evidence  of  possession  by  the  prisoner  of 
goods  of  the  same  kind  as  those  charged  to  have  been  stolen  is  com- 
petent.    (Ala.)     Smith  v.  State^  21. 

3.  LABCENY— Admissibility  of  Evidence.— In  a  prosecution  for 
larceny,  evidence  of  the  defendant's  opportunity  of  aiding  the  own- 
er's employ^  in  committing  the  theft^  or  of  his  opportunity  of 
receiving  the  goods  from  such  employd,  is  admissible.  (Ala.)  Smith 
▼.  State,  21. 


M6 

4.  liAB0BK7-*PwN6irfia  ef  Oooas.«-Uiitfl  tbe 
>ffhown  a  prima  facie  lareeny,  it  is  not  entitled  to  int«odiiee-evldeBee 
of  possession  by  the  defendant  of  the  goods  alleged  to  have   be« 
stolen.     (Ala.)     Smith  v.  State,  21. 

6.  '  IiABCEKT.— ^Tke  TTBeKplaiBed  'PMsession  by  one  person  of 
goods  belonging  to  another  does  not  raise  a  presnmption  that  a 
larceny t  has  been  committed  and  that  the  possessor  is  a  thief.'  ( Ala.> 
Smith  T.  Stotey  21. 

6.  XtABCENT.— The  Unexplained  Possessioii  of 'Property  reeently 
stolen  does  not,  as  a  matter  of  law,  raise  a  presumptioA  of  guilts 
(Ala.)     Smith  y.  State,  21. 

ZJBEI.  AKD  aLAHDEB. 

!»    A  UBEL  Must  be  Deemed  a  Willful  and  Mftlicioiis  itct»  and 

injurious  to  the  property  of  another  within  the  meaning  of  the 
statutes  of  the  United  States,  declaring  what  eauaea  of  action  aio 
released  by-a -diachasge  in  bankruptcy.  (&..I.)  McDonald  ▼.  Brown,. 
659. 

"2.  UBEL.— liability  for  Iribel  is  not  Beleaaad  by  Diadhsrge  In 
Banknxptey,  because'  stattttes  of  the  United  States  exempt  from  the 
effect  of  sQch  release,  all  judgments  in  actions  for  willfnl  uid 
malicious  injury- to  the  person  or  property  of  another.  (B.  I.)  Mc- 
Donald V.  Brown,  659. 

5.  FBACTISE— Slander— Motion  to  Make  Complalat  More  DefioHa 
and  Certain. — If  a  complaint  containing  two  or  more  counts  al- 
leges a  speaking  by  the  defendant  of  the  different  slanderous  words 
stated  in  the  several  counts,  the  plaintiff,  on  motion  of  the  de- 
fendant, should  be  required  to  maJce  his  complaint  more  definite 
and  certain  by  showing  therein  whether  the  charges  made  in  such 
counts  all  relate  to  words  spoken  in  the  same  conyersation.  (Kan.) 
Thompeon  t.  Harris,  187. 

4.  SLANDEB.— Charging  one  with  being  "a  dirty  old  whore"  ia 
not  justified  by  proof  of  adultery  on  different  occasions  with  the  same 
person,  if  the  jury  is  of  the  opinion  that  the  eha^e  -  meant  that 
plaintiff,  made  merchandise  of  her  person,  for  hire.  (Mass,)  Bather* 
ford  ^.  Paddock,  282. 

6.  SIiANDBB— Different  WordB-^Wlien  Oivo  ^Uao  to  Init  Om 
Oanse  of  Action.— If  several  slanderous  diarges  .are  ;all  xsade  in  a 
single  conversation,  though  relating  to  distinct  offenses,  they  con- 
stitute but  one  cause  of  action.*    (^m.)     Thompeon  t.  Harris^  187. 

6.  8LANDEB— Pleading.— The  justification  of  slanderous  wonls 
must  be  as  broad  as  the  charge.  (Mass.)  Bntherford  v.  Paddock, 
282. 

Idbel  and  Slander,  justification  in,  agfra¥ation  of  damages  by  jdes 

of,  302-305. 
justification  in,  belief  of  defendant  in  truth  of  eharge  docs  aot 

amount  to,  288. 
justification  in,  burden  of  proof,  306. 

justification  in,  construction  pnt  on  words  by  tiie  defendaat,  ZSL 
jaatifieation  in,  idefinition  of,  286,  287. 

justification  in,  degree  or  amount  of  proof  required,  306,  307. 
justification  in,  evidence  admissible  under  plea  of,  308,  309. 
justification  in,  evidence  to  flustain  charge  of  perjury,  309. 
justification  in,  evidence  to  sustain  must  establish  evaiy  slsneit 

of  the  crime  charged,  309. 


Ismx.  987 

.mM  fflnntliir,  juiitlfliMityirTi  in, -fivktonee^  ^bat  soflcient  to  estab- 
lish eharffe  of  per  jury,  308.' 
JiMltiflffatioii  ui,  <«VAdsnee,  what  soSeieiit  to  establish  where  a 

crime  is  charged,  307. 
justification  in,  failuce  of  ,penioii'r.eadiDC^  or  heaiiiig  to  believe,. 

287. 
jiUitiAeiition  in,  general  issue  or  gemeial  denial  does  not  .entitle^ 

the  defendant  to  introduce  evidence  in,  292. 
Jugtifteation  ii^  in  cfininal  pvoseentioas,  .truth  does  not  amount 

to,  290. 
Joflitifieation  la,  ineonsislent  defenses^  when  may  be  joined,  301,. 

304. 
]|n4<i£cationtin,  injury  to  plaintiff,  absence  of  does  not  eonttitute,. 

287. 
Juatificialion  'in  nnst  leonfess  tlie  use  .of  the  dgfamatoiy  words^ 

justified,  300,  301. 
justification  in  of  an  indiviaiblejBharge,  291* 
justification  in,  partial, '800. 
jvstifieatioiL  in,  partial  where  the  dtf endatnt  admits  that  patt  of 

the  eharge  inadeby  him  is-falsey  291. 
Jwitifieation  in,  pattial  where  the  defendant  need  past  only  of 

the  defamatory  words,  290. 
^ juatifi^cation  in,  plea  of  as  evidenoe  of  malice,  302,  303. 
'justification  in,  plea  of,  certainty  required  in,  293,  297. 
'justification  in,  plea  ef  charging  other  crimes,  294. 
justification  in,  plea  of,  effect  of  making  in  bad  faith,  803,  304. 
justification  in,  plea  of  filed  in  good  faiUi,  but  not  proved,  303. 
'justification  in  plea  of,  form  of,  296. 
justification  in,  plea  of,  form  of  when  the  charge  involves  a  mero- 

opinion  or  conclusion,  298. 
jvstifloation  in,  plea  of,  form  of  when  the  defamatory  charge  iS' 

epecifie  in  its  details,  297. 
jostafieation  in,  plea  of,  form  of  where  the  charge  is  of  a  specifie 


-jMStifieatiQBL  in,  plea  of,  'form  ef  where  the  charge  is  that  plain- 
tiff is  Jt  thief ,  299. 
•justification  in,  plea  of,  innuendoes  most  be  responded  to  by,  295^ 

296. 
JBStifieation  ip,  plearof,  IsMer  er. different  aet  cannot  amount  to,. 

294. 
Jnstifieation  Wy  .plea  of  must  be  as  bread  as  the  charge,  293. 
justification  in,  plea  of  most  meet  thO'tfiarge  as 'expressed  by  the 

innuendoes,  293,  295. 
justification  in,  plea  of  must  not  be  conditional  or  contingent,. 

295. 
justification  in,  plea  iff,  atatntes  modifying  the  common-law  rule 

that  it  may  be  considered  in  aggravation  of  damages,  303, 

304. 
justification  in,  piea  of   truth  of  some  only  of  the  defamatory^ 

acts  charged,  294. 
jug^ficatian  in,  plea  of  where  the  charge  constitutes  a  general^ 

imputation  against  the  plaintiff's  character,  299. 
justification  in,  plea  of  where  the  innuendo  restricts  the  mean- 

.ing  of  the  charge^  296. 
jnttifieatton  in,  plea  ef  where  the  plaintiff  is  charged  with  being 

a  liar,  .300. 
justification  in,  plea  of  where  the  plaintiff  is  charged  with  being. 

a  perjurer,  300. 


-988  Index. 

lifbel  and  Slander^  Justification   in,  plea   of  where  tli^    plaintiir 

eharged  with  being  a  proetitute,  299. 
jnatifieation  in,  plea  of  where  the  plaintiff  ia  eharged  with 

a  thief,  299. 
justifieation  in,  plea  of,  withdrawal  of,  306. 
Jofltification  in,  prior  reports  cannot  amonnt  to,  287. 
justification  in,  reasonable  doubt,  eriminal  charge  must  he  proyorf 

beyond,  307. 
justification  in,  reasonable  doubt,  defendant  is  entitled  to  bCB- 

efit  of  in  a  criminal  prosecution,  308. 
justification  in,  retraction  or  apologj  does  not  amount  to,  28&. 
justification  in,  truth  as,  288,  289.  * 
Justification  in,  truth  ii,  though  the  defendant  was  actuated  b^ 

malice,  289. 
justifieation  in,  truth,  states  where  it  may  not  eonstitute  a  eom* 

plete,  289. 

LI0ENSE8. 

1.  BASEMENT  AEB  U0EN8E  DI8TIKOUI8HED.— An  easemsKt 

Is  a  permanent  interest  in  realty,  while  a  license  is  a  personal  priTilegw 
to  do  certain  acts  upon  the  land  of  another  without  pessessiBg  aaix 
estate  therein.     (Ala.)     Hicks  ▼.  Swift  Greek  Mill  Co.,  38. 

2.  EASEMENT  AND  UOENSE— How  Created.— An  easemsBt 
must  be  created  by  deed  or  prescription,  while  a  license  may  be  bj^ 
parol.     (Ala.)'    Hicks  ▼.  Swift  Creek  Mill  Co.,  38. 

8.  A  LICENSE  is  Oenerally  Bevocable  at  the  will  of  the  owner 
of  the  land  in  which  it  is  enjoined.*  (Ala.)  Hicks  v.  Swift  Creek 
Mill  Co.,  38. 

4.  LICENSE— Estoppel  to  Revoke.— One  who  gives  verbal  per^ 
mission  to  construct  a  ditch  and  dam  upon  his  land  is  not  estopped 
to  revoke  the  license,  because  the  licensee  incurs  great  expense  in 
their  construction.     (Ala.)     Hicks  v.  Swift  Creek  Mill  Co.,  38. 

5.  LICENSE— Revocation  by  Conveyance.— The  eonveyance  of 
land  upon  which  a  third  person  has  constructed  a  ditch  and  dam  un- 
der a  verbal  permission  from  the  land  owner  operates  as  a  revoca- 
tion of  the  license.     (Ala.)     Hicks  v.  Swift  Creek  Mill  Co.,  38. 

6.  LICENSEE— Damages  Against.— The  Qrantee  of  land  whereoa 
«  third  person,  by  the  verbal  permission  of  the  owner,  had  constructed 
jk  ditch  and  dam,  may  maintain  trespass  against  the  licensee  for 
damages  suffered,  and  the  recovery  may  include  exemplary  damages. 
<Ala.)    Hicks  v.  Swift  Creek  MiU  Co.,  38. 

LICENSE  TAX. 
See  Taxation,  1. 

UENS. 

1.  LIEN— When  not  Waived  by  Demanding  a  Sum  Greater  tliaa 
that  Due. — If  one  entitled  to  retain  personal  property  until  a  liea 
in  his  favor  thereon  is  paid  demands  a  ram  exceeding  that  due  hin, 
he  does  not  thereby  waive  his  lien  nor  forfeit  his  right  to  retain 
possession  of  the  property,  if  his  demand  was  made  in  good  faith 
and  in  the  belief  that  he  was  entitled  to  such  sum,  and  no  paymeaft 
or  tender  was  made  of  the  amount  actually  due.  (Maaa.)  JTolsosi 
w.  Barrett,  320. 


Index.  98^ 

2.  ZaJjtLM  jiOLDEB— Bight  of  to  tlie  Expenses  of  Keeping  Prop- 
— Tbe  owner  of  a  horse  which  another  is  holding  as  security 
for  the  payment  of  a  debt  is'  personally  liable  for  the  expenses  or 
keeping  such  horse  after  a  demand  made  for  its  possession^  and  a 
demand,  in  good  faith  by  the  lienholder  of  a  sum  in  excess  of  that 
due,  if  Bneh  owner  does  not  tender  the  sum  due,  and  such  tender  ist 
not  ^waived.     (Mass.)     Folsom  v.  Barrett,  320. 

S.  T±S±4'1>EB  of  Amomit  to  Satisfy  a  Lien,  when  not  Waived.— 
Thongli  a  lienholder  states  that  he  will  not  deliver  personal  prop- 
erty until  paid  a  sum  which  he  names,  and  which  is  in  excess  of  that 
to  -vrUch  l&e  is  entitled,  this  is  not  a  waiver  of  a  tender  of  the 
ankonnt  actually  due,  where  it  does  not  appear  that  he  had  reasoi^ 
to  believe  that  the  other  party  was  thinking  of  a  tender  and  pre- 
pared to  make  it.*    (Mass.)     Folsom  v.  Barrett,  320. 

UFE  IKSUBAKOE. 

See  Insurance. 

LIMITATION  OF  ACTIONS. 

1.  STATUTE  OF  LIMITATIONS— Disability  of  One  Plaintiff.— 
A  married  woman,  against  whom  the  statute  of  limitations  does  not 
ran  and  who  is  a  cotenant  with  her  brother,  cannot,  on  purchasing 
his  share,  recover  the  whole  property  if  the  statute  of  limitations  has 
run   against  his  claim.     (Ark.)     McFarlane  v.  Grober,  84. 

2.  UMITATI0N8  OF  ACTIONS— Statute,  When  Commences  to 
Bon. — If  it  is  claimed  that  a  culvert  in  an  embankment  erected  by 
a  xailw^ay  company  across  a  public  highway  was  insufdcient  in  size 
to  carry  away  the  accumulations  of  waters  in  times  of  heavy  rains, 
and  that  by  reason  thereof  plaintiff's  lands  were  overflowed  and 
damaged,  the  statute  of  limi^tions  against  his  cause  of  action  there- 
for commences  to  run  at  the  date  of  his  suffering  the  injury,  and  not 
at  the  date  of  the  completion  of  the  embankment  and  culvert.  (Ind. 
App.)     Kelly  v.  Pittsburgh  etc.  E.  E.  Co.,  134. 

3.  UMITATION  OF  ACTIONS— Subsequent  DisabiUty.— If  the 
statute  of  limitations  once  commences,  it  does  not  cease  to  run  on 
aecount  of  any  subsequent  liability,  unless  such  disability  comes 
within  the  exception  of  the  statute.     (Utah  )     Jenkins  v.  Jensen,  783. 

4.  LIMITATION  OF  ACTIONS— Administrator  and  Minor  Heir.— 
If  an  administrator  neglects  to  bring  an  action  to  recover  property 
of  the  estate  until  it  is  barred  under  the  statute  of  limitations,  the 
heir  is  also  barred,  though  he  is  a  minor  at  the  time  the  action  accruea 
to  the  administrator.     (Utah)     Jenkins  v.  Jensen,  783. 

5.  LIMITATION  OF  ACTION  Against  Fosthumous  Heir.— If  the^ 
right  of  an  administrator  to  sue  is  barred  by  limitation,  the  right 
of  a  posthumous  heir  represented  by  him,  and  born  after  his  ap- 
pointment is  also  barred,  and  his  infancy  does  not  stop  the  running 
of  the  statute.     (Utah)     Jenkins  v.  Jensen,  783. 

6.  CBBTIFICATE  OF  DEFOSIT.- The  Statute  of  Limitations^ 
does  not  begin  to  run  against  a  certificate  of  deposit  until  a  demand 
for  payment.     (S.  Dak.)     Tobin  v.  McKlnney,  694. 

7.  CBBTIFICATE  OF  DEPOSIT.— The  Statute  of  Limitations 
does  not  begin  to  run  on  a  certificate  of  deposit  until  payment  ha» 
been  demanded*'    (S.  Dak.)     Tobin  v.  McKlnney,  688. 

See  Adverse  Possession;  Bailment;  Covenants,  3;  Executors  and  Ad- 
ministrators; Homesteads;  Insurance,  13, 14;  Nuisance,  3;  Officers,. 
3;  Principal  and  Surety,  2;  Trusts;  Waters  and  Watercourses. 


UQUIDATED  DAMAOE& 
Bee  Munioipal  Coiporationfly  3. 

MAnrCENANOB. 
See  Divorce. 

MANDAMX7& 

1.  MAMBAMUS'  dow  not  Lie  to  Compel  A  Oleife  of  »  Oooit  to 
Invo  an  Alias  Bzecntion  or  Order  of  Sale,  because  there  io  a  eoitt* 
plete  and  adequate  remedy  by  motion  in  the  cause  in  -vrhieb  tho 
•clerk  is  desired  to  aet^     (Mont.)    State  ▼.  Wright,  421. 

2.  MANDAMUS  may  Issue  Against  a  Public  Qflleer  of  tbe  Stale 

if  the  duty  to  be  performed  is  purely  ministerial,  though  it  is  eon- 
•ceded  that  the  state  is  not  directly  subjeet  to  suit.  (Mont.}  State 
▼.  Toole^  386. 

3.  MANDAMUS  may  lime  to  Ckmipel  a  Stato  Fnmlnhlng  Board 

to  execute  a  contract  which  it  has  awarded  to  the  lowest 
bl6  bidder.    (Mont.)     State  v.  Toole,  386. 

MABBIAGB. 

See  DiTorce. 

MASTEB  AND  8EBVANT. 

1.  MABTEB  AND  SEBVANT— Condition  of  Fremi8es.->AB  in- 
struction that  it  is  the  duty  of  the  master  to  keep  the  premises  about 
which  the  servant  is'  employed  in  as  reasopably  safe  condition  as  thef 
would  have  been  kept  by  a  person  of  ordinary  prudence  under  the 
same  circumstances,  considering  the  nature  of  the  work  to  be  aeeom* 
plished,  presents  a  correct  proposition  of  law,  without  limiting  tke 
Jury  to  a  consideration  of  the  condition  of  the  premises  at  the  very 
place  where  the  accident  happened  to  the  servant  and  the  injury  was 
received,  especially  when  the  inquiry  has  not  been  to  any  other  part 
of  the  premises.     (Utah)     Downey  v.  Gemini  Min«  Co.,  79S. 

2.  MASTEE  AND  SEBVANT— Conditioii  of  FzemisOB.— An  in- 
struction that  it  is  the  duty  of  the  master  to  keep  the  premises 
about  which  the  servant  is  employed  in  as  reasonably  safe  eonditioB 
as  they  would  be  kept  by  a  person  of  ordinary  prudence  under  the 
same  circumstances,  considering  the  nature  of  the  work  to  be  per- 
formed, states  a  correct  proposition  of  law,  without  the  addition  of 
the  words  '' skilled  in  the  business"  after  the  words  ''person  of  ordi- 
nary prudence."     (Utah)     Downey  v.   Gemini  Min.  Co.,   798. 

3.  MASTEE  AND  SEBVANT— Duty  as  to  Ckmdition  of  Prsai- 
Ises.— A  servant  in  his  employment  has  a  right  to  assume  that 
the  master  will  conduct  his  business  as  respects  the  servant's  safety 
with  ordinary  prudence  and  care,  and  that  if  he  makes  the  plaee 
where  he  is  employed  or  is  required  to  pass  to  his  work  dangeross 
and  unsafe,  which  was  before  reasonably  safe,  and  the  servant  hsi 
no  knowledge  or  duty  to  know  of  the  changed  conditions,  that  the 
master  will  warn  him  of  such  danger  in  time  to  prevent  his  injury. 
Failing  in  this,  the  master  must  respond  in  damages  to  the  servant 
injured  while  exorcising  due  care.  (Utah)  Downey  v.  Gemini  Mia. 
Co,  798; 


4.    MA8TEB  AND  SEBVANT.— If  a  Master  Oreates  a  Dangerous 
on  his  premisee  unJkoowa  to  the  servant,  and  fails  to  warn  him 
"tliereof ,  the  servant,  who  is  injured  b^  venturing  into  saeh  dangerous 

f^laee  while  in  the  exercise  of  ordinary  care,  is  not  gnilty  of  eoa- 
iributory  negligence.'    (Utah)     Downey  v.  Gemini  Min.  Co.,  798. 

6.  MA8TEB  AND  SEBVANT— Negligence— Bisk  Assumed.— If 
^lie  danger  causing  the  accident  is  a  peril  incident  to  the  employment, 
-and  the  injury  is  not  caused  by  a  want  of  ordinary  care  on  the 
j>art  of  the  master,  then  it  is  a  risk  assumed  by  the  servant,  and 
lie  cannot  recover,  but  if  the  contrary  state  of  facts  is  true,  he  is 
^exKtitled  to  recover  if  he  is  injured  without  fault  on  his  part.  (Utah) 
I>owney  v.  Gemini  Min*  Co.,  708. 

6.  MASTEB  AND  SEBVANT.— Oxdiiiasj  Oare  as  between  mas- 
ter and  servant  simply  implies  and  includes  the  exercise  of  sueh 
reasonable  diligence,  care,  skill,  watchfulness,  and  forethought  as^ 
binder  all  of  the  circumstances  >  of  the  particular  service,  a  careful, 
prudent  man  or  <^cer  of  a  corporation  would  exercise  under  the 
«ame  or  similar  circumstances.  By  the  term  ''similar  circumstances'' 
i^  mennt  to  include  all  the  circumstances  of  time,  place  and  attendant 
•conditions^    (Utah)     Downey  v.  Gemini  Min«  Co.,  708. 

7.  MASTEB  AND  SEBVANT.— PresnmptiOB  of  Negligence  on  the 
part  of  the  master  does  not  arise  from  the  mere  happening  of  an  aeei- 
^e»t  to  his  servant.  Negligence  is  not  presumed,  but  is  an  af&rm^ 
«tive  fact,  ^diieh  must  be  proved  by  a  preponderance  of  the  evidence. 

(Utah)     Downey  v.  Gemini  Min.  Co.,  708. 

8.  INDEPENDENT    OONTBACTOB— NegUgenee    of.— If  an  in* 
-dependent  contractor  leaves  an  excavation  unguarded  in  a  public 
«troet,  the  property  owner  is  liable  to  one  injured  .by  falling  into  it. 
(S.  Dak.)     McCarrier  v.  HolHster,  605. 

9.  MA8TBB  AND  SEBVANT  —  Fellow-senrants.  —  An  ordinary 
-day  laborer  in  a  mine  and  the  foreman  thereof  are  not  f ellow-servantSk 
(Utah)     Downey  r.  Gemini  Mim  Co.,  708. 

10.  MASTEB  AND  SEBVANT— Fellow-servants.— The  negligence 
•of  a  railroad  telegraph  operator  in  transmitting  running  orders  to 
men  in  charge  of  a  train  is  not  one  of  the  risks  assumed  by  the 
latter,  as  they  are  not  fellow-servants  with  such  operator.  (Tenn.) 
Bailroad  v.  Bentz,  763. 

11.  MA8TBB  AND  SEBVANT— Medical  or  Surgical  Aid— Duty 
tc  TxanisitL — An  employer  does  not  owe  to  his  servant  or  employd  a 

duty  to  furnish  medical  or  surgical  aid  to  him  or  to  nurse  him  when 
sick,  disabled,  or  injured  while  working  for  the  master  or  employer* 
<Mont.)     Spelman  v.  Gold  Coin  Min.  Co.,  402. 

See  Principal  and  Agent,  3. 

MEDIOAIa  SEBVIOBa 

See  Physicians  and  Surgeons. 


See  Judgments,  6w 


MINES  AND  MINEBALS. 


1.    MINES— Bxtralateral  Bights.— The  holder  of  a  mining  location 
irithin  which  a  vein  apexes  owns  the  whole  of  the  vein,  and  may; 


992  iMii^jL. 

follow  its  dipt  and  angles  when  it  dips  under  and  leads  without 
side  lines  of  his  claim  as  marked  on  the  surfaee.     (Wash.)*     Cedar  j 
Canyon  Consolidated  Min.  Co.  ▼.  Yarwood^  841.  i 

2.  BdXNINQ.— A  Lead,  Lode^  or  Veiiiy  as  Those  Words  ar*  IFmI  | 
In  the  Acts  of  Congress,  Means  any  zone  or  belt  of  mineralized  roek  ' 
lying  within  boundaries  elearly  separating  it  from  the  neighboring: 
rocks.  It  must  be  continuous  in  the  sense  that  it  can  be  traeed 
through  the  surrounding  rock,  though  slight  interruptions  in  the  min- 
eral-bearing rock  would  not  alone  Im  sufficient  to  destroy  the  identity 
of  the  vein.  Neither  would  a  short  partial  closure  of  the  fissure  haTS^ 
that  eif ect,  if  a  little  farther  on  it  recurred  again  with  mineral-bearing 
roek  within  it.     (Ark.)    Buffalo  Zinc  etc  Co.  v.  Grumpy  87. 

S.  MININQ  0LAIM8.— Abandonment  is  a  Volnntaxj  Act»  and  eon- 
sists  of  the  relinquishment  of  possession  of  the  daim  with  an  inten- 
tion not  to  return  and  occupy  it.  It  is  purely  a  question  of  intention. 
(Ark.)     Buffalo  Zinc  etc  Co.  v.  Crump,  87. 

4.  MTNTIKO  CLAIMS— Abandonment^  What  is  not.— The  quitting 
of  work  upon  a  mining  claim  temporarily,  except  annual  assessment 
work/  on  account  of  lack  of  transportation  for  the  ore  taken  from  the 
mine,  does  not  amount  to  an  abandonment,  though  the  land  is  entered 
as  a  homestead  by  a  third  person,  but  without  the  consent  of  the 
claimant  of  the  mine.     (Ark.)     Buffalo  Zinc  etc  Co.  ▼.  Crump,  87. 

5.  MININa  CLAIMS  are  not  Subject  to  Location  until  the  rights 
of  the  former  locator  have  come  to  an  end.  Any  relocation  bedfore 
that  time  is  void.     (Ark.)     Buffalo  Zind  etc.  Co.  v.  Crump,  87. 

6.  MINING  CLAIMS— Descriptions  in  Locations  of.— Where  the 
commencement  point  of  a  mine  is  described  in  the  notice  of  location 
as  beginning  at  the  ''northwest  corner  of  Ed.  Williams,  1-16,  at  a 
black  oak  post,"  it  will  be  presumed  that  "Ed.  Williams,  1-16"  is  a 
well-known  natural  object,  until  the  contrary  appears.  (Ark.)  Buf- 
falo Zinc    etc.  Co.  v.  Crump,  87. 

7.  BONINO  CLAIMS.— Failure  to  do  the  Work  on  a  Mining  OlaiB 
Within  the  Time  Prescribed  by  law  does  not  forfeit  it,  if  the 
locator,  before  any  location  is  made,  resumes  work  in  good  faith. 
After  that  no  other  person  has  a  right  to  locate  the  mine.  (Ark.) 
Buffalo  Zinc  etc.  Co.  v.  Crump,  87. 

8.  MININa  CLAIMS— Bights  Acquired  by  AdveiBe  Poflsenlon  of. 
Though  the  lands  attempted  to  be  located  as  mining  daims  are  not 
then  subject  to  location  because  of  previous  locations,  yet  if  the 
claimants  under  the  junior  location  take  possession,  and  hold  a)jd  de- 
velop the  mine  by  work  and  labor  performed,  and  continue  the  ad- 
verse holding  for  a  longer  time  than  the  period  of  limitations  pre- 
scribed by  statute,  their  claim  is  valid  against  everyone  except  the 
United  States.     (Ark.)     Buffalo  Zinc  etc.  Co.  ▼.  Crump,  87. 

9.  BONINa  CLAIMS— Presumption  of  Begularity  of  Location  of. 
As  against  the  objection  that  there  was  no  evidence  of  the  posting  of 
the  notice  of  the  location  of  a  mining  claim,  if  it  appears  that  soeh 
claim  was  purchased  from  and  conveyed  by  the  supposed  locators^ 
and  has  been  held  by  the  vendee  adversely  to  all  the  world  for  s 
longer  time  than  the  statutory  period  of  limitations,  it  will  be  pre- 
sumed that  the  location  was  regularly  made  (Ark.)  Buffalo  Zinc  * 
etc.  Co.  V.  Crump,  87. 

10.  MININO  CLAIMS— Proof  of  Forfeitore.— The  forfeiture  of  i 
mining  claim  by  failure  of  the  owner  to  perform  the  annual  labor  re- 
quired by  law  cannot  be  established  except  by  clear  and  convincing 
evidence,  and  the  burden  of  proof  rests  upon  him  who  claims  that  a 
forfeiture  has  occurred.     (Ark.)     Buffalo  Zinc  etc  Co.  v.  Crump,  87» 


l^DKX.  993 

IXm  mKINO  CLAIMS.— The  Fact  tliat  Mineral  is  not  DiscoToreA 
on  a  inlning  claim  until  after  posting  the  notice  of  location  and 
nuirlcdiig  the  boundaries  is  immaterial,  in  the  absence  of  interven- 
ln|S  rii^hts;  if  the  diacovery  is  the  result  of  subsequent  work»  the 
possessory  rights  are  complete  from  the  date  of  such  discovery. 
(l?7aeli.)     Cedar  Canyon  etc  Min.  Co.  ▼.  Yarwood,  841. 

12.  MININC^  CLAIMS.— The  Failure  to  Beoord  the  Notice  of  the 
tdon  of  a  Mining  Claim  within  the  time  prescribed  by  law  is  not 

kterial  to  claimant,  if  the  notice  is  recorded  before  any  adverse  right 
Required.     (Ark.)     Buffalo  Zinc  etc.  Co.  ▼.  Crump,  87. 

13.  A  OOTEKANT  IN  A  MENB  Cannot  Question  tbo  Common 
in  a  contest  between  him  and  his  eo-owners.     (Wash.)     Cedar 

Cany  on  etc.  Min.  Co.  v.  Yarwood,  841. 

14.  COTENANCT  IN  MINES.— If  a  Cotenant  In  a  Mining  Claim 
pnrchnses  an  Interest  in  an  adjoining  claim  for  the  benefit  and  pro- 
leetion  of  the  common  property,  it  inures  to  the  benefit  of  the  other 
tenaxLts.     (Wash.)     Cedar  Canyon  etc.  Min.  Co.  ▼.  Yarwood,  841. 

15.  COTENANCT  IN  MINES— Purchase  and  Contribntion.-'If  a 
cotennnt  in  a  mining  claim  purchases  an  interest  in  an  adjacent  claim 
for  tlie  protection  of  the  common  property,  his  co-owners  do  not  lose 
their  right  to  participate  therein  by  failing  to  contribute  to  the 
cost,  'when  no  demand  has  been  made  on  them  and  they  Have  been 
ready,  since  having  notice,  to  pay  their  share  of  the  price.'  (Wash.) 
Cedax    Canyon  etc.  Min.  Co.  v.  Yarwood,  841. 

16.  COTENANCT  IN  MINES— Validity  of  the  Location.— A  min- 
ing  location  good  as  between  the  owners  and  the  government^  unless 
a  third  person  can  show  a  superior  title,  is  property  to  which  a  co> 
tenancy  can  attach.  (Wash.)  Cedar  Canyon  etc.  Min.  Co.  y.  Yar- 
wood,  841. 


eotenancy  in,  conveyance  to  two  or  more  persons  creates,  854. 
cotenancy  in,  created  by  participating  in  a  joint  location,  855. 
eotenancy  in,  created  by  prospecting  agreements,  855,  856. 
cotenancy  in,  creates  relation  of  trust  and  confidence,  858. 
cotenancy  in,  is  not  created  by  a  mere  right  to  share  in  the 

proceeds,   854. 
eotenancy  in,  is  not  created  by  the  separate  ownership  of  the 

surface  and  of  the  minerals,  854. 
eotenancy  in,  manner  and  essentiala  of  creation  of,  854. 
eotenancy  in,   relations   of   persons   separately   owning   the   sur- 
face and  the  minerals,  854,  85'5. 
eotenancy  in,  restraint  imposed  by  the  relation  of,  858. 
eotenants  of,  accounting  between  for  profits  of  operating,  basis 

of,  876,  877. 
eotenants  of,  accounting  between  for  what  expenditures  tenant 

in  possession  may  be  allowed,  877. 
eotenants  of,  accounting  between,  joinder  of  parties  in  suits  for, 

879,  880. 
eotenants  of,  accounting  between  where  one  has  operated  the 

mine,  875-880. 
eotenants  of,  actions  between  and  third  personS|  889. 
eotenants  of,  actions  by  one  against  another  fw  damage  for 

ouster,  exclusion,  or  misuse,  884«' 
eotenants  of,  actions  which  one  may  maintain  against  another^ 

883-885. 

Am.  St.  Rep.,  Vol.  U— 63 


^4  Index.  ^ 

JCInMi  eotenants  of,  admissions  by  one  do  not  bind  the  others,  882,  883. 
ootenants  of,  adverse  holding  bj  one,  whether  terminates  trust 

relations  of,  863. 
eotenants  of,  agency  of  one  for  the  others,  when  implied,  880,  881. 
-eotenants  of,  assault  upon  the  common  title  by,  858. 
eotenants  of,  assumpsit  by  one  against  the  others,  883. 
eotenants  of,  conveyance  by  one  of  the  others'  interest,  881. 
•eotenants  of,  conveyance  by  metes  and  bounds  executed  bj  oas 

only,  881. 
«otenanta  of,  ejectment  by  one  against  the  other%  884. 
-eotenants  of,  implied  power  of  one  to  repiesent  the  others,  880. 
eotenants  of,  improvements,  when  allowable  on  an  aecountiiif 

'between,  879. 
•eotenants  of,  interest,  when  allowable  on  an  accounting  between, 

878. 
eotenants  of,  lease  or  license  by  one  only,  881,  882.' 
•eotenants  of,  liability  of  one  to  account  to  the  others,  875-880L 
eotenants  of,  lien  of  for  expenditures,  870. 

•eotenants   of,   one  who   excludes  the   others  must  account   for 
'        profits  of  operating,  874,  875. 
ootenants  of,  oustw  by  one^  notice  of  need  not  bo  given  to  the 

others^  868. 
•eotenants  of,  ouster  by  one  of  the  others^  what  establishes^  867, 

868. 
eotenants  of,  outstanding  title,  purchase  by  one,  assertiiig  trust 

against  subsequent  purchaser  from,  864. 
ootenants  of,  partition  between,  action  for,  when  snstainaUe^ 

856. 
eotenants  of,  partition  between  by  sale,  when  will  bo  ordered, 

887. 
ootenants  of,  partition  between,  effeet  of,  884,  885. 
•eotenants  of,  partition  between,  improvements,  allowanee  for  is, 

888. 
eotenants  of,  partition  between,  waiver  of  right,  880. 
eotenants  of,  partition  betweex^  who  may  eompel,  886. 
eotenants  of,  patent,  application  for  by  one^  whether  the  others 

must  assert  their  claims,  866. 
ootenants  of,  patent,  issuing  of  to  one  does  not  prevent  the 

others  from  enforcing  the  trust  in  equity,  866. 
ootenants  of,  patent  taken  in  the  name  of  one,  when  held  in 

trust  for  all,  864,  865. 
ootenants  of,  possession  of  one  may  be  adverse  to  the  othen^ 

867. 
ootenants  of,  possession  of  one,  when  the  possession  of  all,  867. 
eotenants  of,  possession,  right  of  each  to,  866,  867. 
eotenants  of,  presumption  that  one  holds  for  the  others  may  be 

rebutted,   867. 
ootenants  of,  purchase  by  one  of  a  senior  location,  862. 
eotenants  of,  purchase  by  one  of  the  interest  of  the  others,  86S. 
ootenants  of,  purchase  of  outstanding  title  by  one  and  his  right 

*    to  be  reimbursed,  864. 
ootenants  of,  relations  between  where  they  acquire  of  different 

grantors  and  at  different  times,  863. 
ootenants  of,  relocation  by  one  for  faUure  to  do  the  neeeesary 

work,  858,  859. 
ootenants  of,  rents  and  royalties^  duty  of  to  aceonnt  for,  876^ 

876. 


Indbz.  095 

eotenants  of,  right  of  one  to  an  accounting  for  minerali  taken 

l>y  the  others,  871,  872. 
eotenants  of,  right  of  one  to  exclude  the  others,  871. 
eotenants  of,  right  of  one  to  operate  the  mine,  statutes  affecting, 

870. 
*  eotenants  of,  right  of  one  to  use  part  of  for  the  benefit  of  an 

adjacent  mine,  870. 
cotonants  of,  right  of  one  to  work  the  mine  and  remove  ore^  869, 

871. 
eotenants  of,  services  of  in  operating,  no  allowance  can  be  made 

for,  878. 
eotenants  of,  title  acquired  by,  when  held  in  trust,  860-862. 
eotenants  of,  voluntary  partition  between,  884. 
eotenants  of,  wasto  by  one,  what  constitutes,  869. 
joint  tenancy  in,  is  not  created  in  a  location  by  Beveral,  857. 
loeation  by  agents  of  locators,  855. 
partnerships  in,  857. 
proflta  received  from  operating,  right  of  one  eotenant  to  eompel 

smother  to  account  for,  872-874. 
prospecting  agreements  are  within  the  statutes  of  frauds,  866. 

See  Corporations^  4,  5* 

MDTOBa 

Bee  Inf  antSL 


Bee  Mortgages. 

MOBTaAQES. 

1.  MOBTOAGE— Application  of  Payments.— When  payment  on  a 
mortgage  is  the  result  of  compulsion,  its  application  is  not  to  be 
governed  by  the  rules  governing  voluntary  payments.  (Iowa)  Tol- 
erton  etc.  Co.  v.  Boberts,  171. 

2.  MOBTGAGE8— Application  of  Proceeds  of,  When  may  be  Con- 
trolled by  the  Mortgagee. — If  a  mortgage  is  given  to  secure  several 
notes,  upon  some  of  which  there  are  indorsers  or  sureties,  the  mort- 
gagee is  entitled  to  apply  any  moneys  received  from  the  mortgaged 

.  property  on  its  sale  to  the  payment  of  indebtedness  not  otherwise 
secured.     (Iowa)     Tolerton  etc.  Co.  v.  Boberts,  171. 

3.  MUTUAIi  MISTAKE  OF  LAW  with  reference  to  the  manner 
In  which  the  proceeds  of  mortgaged  property  will  be  applied  in  the 
event  of  its  foreclosure  does  not  entitle  a  party  to  relief,  nor  con- 
stitute a  suf&cient  reason  for  not  applying  such  proceeds  as  the  law 
directs.     (Iowa)     Tolerton  etc.  Co.  v.  Boberts,  171. 

4.  MOBTGAGE  FOBECLOSUBE— Application  of  Proceeds.— If  a 
mortgage  given  to  secure  four  notes,  upon  two  of  which  is  a  surety, 
is  foreclosed^  the  surety  is  entitled  to  have  the  proceeds  applied  in 
Just  proportion  to  that  part  of  the  debt  for  which  he  is  bound.  (Ala.) 
Bostick  V.  Jacobs,  36. 

6.  MOBTGAGE  FOBECLOSTJBE— Disposal  of  Proceeds.— Direct- 
ing the  remainder  of  the  proceeds  of  a  mortgage  foreclosure,  after 
-satisfying  the  sum  due  the  plaintiff,  to  be  deposited  in  court  sub- 
ject to  its  further  order,  is  not  reversible  error.  (Or.)  Close  ▼. 
Biddle,  580. 

See  Chattel  Mortgages;  Constitutional  Law,  4;  Judgments,  7. 


996  Index. 


SffUKIOZPAIi  OOBPORATIOHa. 

1.  BiUNIOIPAIi  OOBPOBATIONS— Charten  of.— The  various 
and  proper  provisions  of  a  mumcipal  charter,  legally  framed,  eaaeted 
and  adopted  by  a  city,  have  all  the  force  and  effect  of  legisIatlTe 
eoactments,  and  may  properly  include  provisions  relating  to  the 
preservation  of  the  public  health.     (Minn.)    State  ▼.  Zimmerman,  351^ 

SL  MUNICIPAL  COKPORATIOirS— Ultra  Vl]re8.~A  municipal 
corporation  is  not  liable  for  an  act  wholly  beyond  the  scope  of  ita 
pawers,  but  it  is  answerable  for  a  wrongful  act  done  in  the  cxeea- 
tion  of  its  authority.     (Wash.)*    Wendel  v.  Spokane  County,  825. 

3.  BOITD  to  Comply  witk  FraacbiBe— Liqpidatad  Dama^H.— 
If  a  city  grants  the  use  of  its  streets  to  one  proposing  to  eonstract 
sn  electric  lig^ht  plant,  and  ezacta  a  bond  from  him  conditioned  for 
the  completion  of  the  plant  within  a  eertain  time,  the  sum  therein 
specified  is  liquidated  damages,  and  recoverable  without  proof  of 
actual  damage.     (Or.)     Salem  ▼.  Anson,  485. 

4.  BOND  to  Comply  With  Franchise —Power  to  Bzact. — Uader  % 

charter  authorizing  a  city  to  iprant  the  use  of  its  streets  to  those 
desiring  to  furnish  it  with  light,  a  bond  may  be  eiaeted  from  the 
grantee  of  such  privilege  conditioned  for  the  completion  of  his  plant 
within  a  specified  time.     (Or.)     Salem  v.  Anson,  485. 

5.  EJECTMENT— Poles  and  Appliances  for  Li^thting  StresL— 
The  owner  of  the  soil  in  a  public  street  cannot  maintain  ejectment 
against  a  person  occupying  part  of  the  street  with  poles  and  ap- 
pliances for  lighting  it,  under  a  contract  made  by  the  city  anci  as- 
thorized  by  statute,  and  if  he  uses  such  appliances  wrongfully  for 
private  lighting  in  addition  to  their  public  use,  he  does  not  thereby 
lose  his  right  to  maintain  them,  but  is  liable  to  an  action  by  the 
owner  of  the  soil  for  an  injunction,  or  for  damages.  (N.  J.  I^) 
French  v.  Eobb,  433. 

6.  EJECTMENT— Poles  and  Appliances  In  Street.— A  parses  who 

has  rightfully  placed  poles  and  appliances  in  a  public  street  for 
the  purpose  of  lighting  it,  has  no  such  right  to  th''  use  of  the  street 
in  the  immediate  vicinity  for  the  purpose  of  supporting  the  poles  as 
will  support  a  plea  of  not  guilty  in  an  action  of  ejectment  by  the 
owner  of  the  soil  in  the  street.     (N.  J.  L.)'    French  v.  Bobb,  433. 

7.  MUNICEPAIi  COBPOBATIONS— Liability  of  for  Aoemmilat- 
ing  and  Casting  Water  npon  Private  Lands.— The  accumulation  in 
one  channel  of  a  large  stream  of  water  by  the  act  of  a  city  places 
upon  it  the  duty  to  see  that  suitable  provision  is  made  for  the  escape 
of  the  water  without  injury  to  private  property,  and  if,  by  reason 
of  the  intfufficiency  of  the  drain  or  other  means  provided,  the  aecam- 
nlated  waters  are  cast  upon  private  property  to  its  injury,  the 
municipality  is  liable.  (Ind.  App.)  Kelly  ▼•  Pittsburgh  ete.  B.  K. 
Co.,  134. 

8.  NUISANCES— Power   of  Municipal   Corporations   to   Decbzs 

What  are. — Under  a  statute  authorizing  municipal  corporations  to 
prevent  annoyances  within  their  limits  from  anything  dangerous,  of- 
fensive, or  unhealthy,  and  to  cause  nuisances  to  be  abated,  they  have 
power  to  prevent  and  abate  nuisances,  but  not  to  declare  anything 
to  be  a  nuisance,  which  is  not  so  in  fact.  (Ark.)  Ex  parte  FOota, 
€3. 

9i  EASEMENT  OF  VIEW  from  Street.— An  adjoining  owner  maj 
sse  to  restrain  the  erection  of  a  building  which,  encroachbig  upon 
the  public  street,  obstructs  his  easement  of  view.  (Ala.)  First  Nat 
Bank  r.  Tyson,  46. 


Index.  967 

10.  irCTZSANOE.— A  Municipal  Ck>xporation  Oannol  Iiieense  the 
^reetioii  or  the  commission  of  a  nuisance  in  or  en  a  public  street. 
<Ala.)      First  Nat.  Bank  v.  Tyson,  46. 

11.  XTTJISAKGE— Building  into  Street— An  Adjoining  Owner,  who 
-aastains  special  damages,  apart  from  those  suffered  by  the  general 
public,  m&y  sue  to  restrain  the  erection  of  columns  of  a  building  which 
will  encroacli  upon  the  sidewalk.  (Ala.)  First  Nat.  Bank  v.  Tyson, 
AG. 

12.  XTDXSANCE— Building  into  Street.— Columns  of  a  building  pro- 
jecting some  two  feet  onto  the  sidewalk  are  a  public  nuisance.  (Ala.) 
rixst  Kat.  Bank  ▼.  Tyson,  46. 

13.  KinSAKOE— BuikUng  Into  Street.— It  is  no  Defense  to  a  suit 
by  an  adjoining  property-owner  to  restrain  the  erection  of  a  building 
«neroacliin£  upon  the  public  street,  that  he  has  not  applied  without 
tniceess  to  the  public  authorities  for  relief.  (Ala.)  First  Nat.  Bank 
•V.  Tyson,  46. 

14.  MTJKIGIPAIi  OBDIKANOES  Void  in  Part  Only.— If  a  munic- 
ipal ordinance  requires  the  payment  of  a  tax  to  be  in  gold,  silver,  or 
TJnited  States  currency,  when  euch  payment  should  have  been  author- 
ized to  be  made  in  municipal  warrants,  or  makes  unlawful  discrimina- 
tion bet-ween  persons,  these  unauthorized  provisions  of  the  ordinance 
may  be  disregarded  and  the  balance  enforced.  (Ark.)  Fort  Smith 
T.  Scmsgs,  100. 

16.  BSXTNIOIPAIi  COBPOBATIONS— Tax  for  Privilege  of  Using 
Streets  of. — The  legislature  may  authorize  a  municipal  corporation 
to  impose  a  tax  on  the  privilege  of  driving  vehicles  upon  its  public 
t>treet8.      (Ark.)*    Fort  Smith  v.  Scruggs^  100. 

16.  MXTKIOIPAIi  OOBPOBATIONS— Tax  for  Using  Streets— 
^Wliether  may  be  Exacted  of  Besidents  Only.— The  legislature  may 
antborize  the  imposing  by  a  municipal  corporation  upon  its  residents 
of  a  tax  for  keeping  and  using  a  vehicle  on  its  streets,  because,  as 
a  class,  residents  use  such  streets  more  than  nonresidents.  (Ark.) 
Tort  Smith  v«  Scruggs,  100. 

See  Counties;  Ejectment,  3,  4;  Health. 


See  Homicide. 

HAYIQABIf  WATEB& 

1.  NAVIGABLE  WATEB8  of  tbe  State  have  substantiaUy  the 
incidents  of  tidal  waters  at  common  law.  The  rights  of  the  pub- 
lic therein  are  the  same,  and  the  state  cannot  interfere  therewith 

except  by  police  regulation.     (Wis.)    Bossmiller  v.  State,  910. 

2.  KAViaABLE  WATEBS— Bight  to  Ice.— The  state  has  no 
greater  right  to  sell  the  ice  that  forms  upon  its  navigable  waters 
than  to  sell  the  water  thereof  in  its  liquid  state,  or  the  fish  that 
inhabit  the  water,  or  the  wild  fowl  that  resort  thereto.  It  can  do 
neither.     (Wis.)     Bossmiller  v.  State,  910. 

3.  KAViaABIC  WATEBS— Bights  to  Ice.— The  state  has  no 
imch  interest  in  the  natural  ice  on  its  navigable  waters  that  it  can 
treat  it  as  a  subject  for  bargain  or  sale,  or  grant  it  away  to  private 
-owners  under  the  guise  of  the  police  power,  or  otherwise.  It  is  a 
mere  trustee  of  the  title  thereto  with  no  power  thereover  except 
-that  of  mere  regulation  to  preserve  the  common  right  of  all.  (Wis.) 
liossmiller  v.  State,  010. 


998  Index. 

4.  NAVIGABLE  WATEB8— Biglit  to  Take  Zee.— Whenerer    tMm 

title  to  beds  of  navigable  waters  is  in  the  state  for  pnblie  pnrpose^ 
all  of  the  incidents  of  public  waters  at  common  law  ezisty  loelndJus' 
the  public  right  of  taking  ice  therefrom  to  the  same  extent  aa  t]i«- 
right  of  taking  fish.     (Wis.)     Bossmiller  v.  State,  910. 

Bee  Constitutional  Law,  0.  ' 

NEOLiaEKCE. 

1.  THE  NEGLIGENCE  of  the  Defendant  is  Always  a  Qnestlom. 
for  the  Jnry^  though  there  is  no  conflict  in  the  evidence^  and  it  im- 
error  for  the  court  to  instruct  them,  as  a  proposition  of  law,  th^.^ 
upon  the  conceded  facts  the  defendant  was  guilty   of  negligenee. 
(Or.)     Shobert  v.  May,  453. 

2.  NEGUGENCE  is  the  FaHnre  to  Exercise  that  Degreo  of  Oar«a 

and  Forethonght  which  a  prudent  person  might  be  expected  to  umm 
under  similar  circumstances.    The  degree  of  care  necessary   to   bo- 
exereised  must  always  be  commensurate  with  the  danger  incident 
to,  or  reasonably  to  be  apprehended  from,  the  instrumentalitiea  nsed^ 
and  is  measured  by  the  extent  of  the  legal  duty  owing  to  the  per- 
son who  might  sustain  injury  from  any  neglect  in  the  nae  of  saeb 
agencies.     (Or.)     Bhobert  v.  May,  453. 

5.  NEGLIGENCE— Care  Which  Must  be  Exercised  liy  Store- 
keepers Toward  their  Patrons.— He  who  maintains  a  store  for  tfae- 
sale  of  goods  impliedly  solicits  patronage,  and  one  who  accepts  the 
invitation  to  enter  is  not  a  trespasser  nor  a  mere  licensee,  but  i» 
rightfuUy  on  tlie  premises  by  invitation,  and  there  arises  in  his 
favor  a  legal  duty  which  demands  reasonably  safe  arrangements  for 
his  protection.     (Or.)     Shobert  v.  May,  453. 

4.  EVIDENCE— Fresnmptlon  of  Ordinary  Care.— It  is  preanme-l 
that  all  men  will,  under  ordinary  circumstances,  act  with  due  care^ 
but  this  presumption  is  not  indulged  if  circumstances  arise  sock 
as  should  convince  a  reasonable  man  that  such  care  was  not  being  ex- 
ercised.    (Utah)     Downey  ▼.  Gemini  Min.  Co.,  798. 

5.  NEGLIGENCE  is  Failure  to  Obsenre,  for  the  protection  or 
another's  interests  and  safety,  such  care,  precaution,  and  vigilance  a» 
the  circumstances  justly  demand,  and  the  want  of  which  causes  him 
injury.    (Utah)     Downey  v.  Gemini  Min.  Co.,  798. 

6.  NEGLIGENCE— Failnre  to  Define.— In  an  action  to  reeover  for 

personal  injury  to  a  servant,  a  failure  to  specifically  define  negligence 
in  an  instruction  is  not  Mrror  when  the  instructions  aa  a  whole  must 
have  conveyed  to  the  jury  the  meaning  of  the  term.  (Utah) 
Downey  v.  Gemini  Min.  Co.,  798. 

7.  NEGUGENCE— Oontribntory.— It  is  not  contributory  negli- 
gence not  to  look  out  for  danger  when  there  is  no  reason  to  apprehend 
any,     (Utah)     Downey  v,  Gemini  Min.  Co.,  798. 

e.  NEGLIGENCE— Child,  When  Guilty  of  Oontribntory.— A  boy 
twelve  years  of  age,  of  capacity  and  experience  usual  to  boys  of  hi» 
years,  is  guilty  of  contributory  negligence,  if,  while  engaged  in  the 
street  in  a  game  with  other  boys,  he  dodges  rapidly  into  a  coUisioa. 
with  a  slowly  approaching  team,  when  chasing  another  boy,  and 
without  taking  any  measures  to  ascertain  the  approach  of  vehicles 
or  to  otherwise  avoid  danger.     (Mass.)     Gleason  v.  Smith,  261. 

9.    NEGLIGENCE,  CONTRIBXJTOBT— Evidence  to  B6bat.—saghtr 

positive  testimony,  whether  circumstantial  or  otherwise,  when  taken 
in  eonnection  with  the  instinct  of  self-preservation  and  the  desire 


Ikdez.  9i9 

'to  avoid  pain  or  iigury  to  one's  telf,  may  be  sufficient  to  snpport 
'tb.e  conclusion  that  one  who  suffered  injury  did  not  help  to  bring  it. 
upon  himself.     (Jnd.  App.)     Pittsburgh  etc.  By.  Co.  v.  Parish,  120^ 

XO.  NEaLIOENOE— Care  Which  Land  Owner  Must  Take  to  Pre- 
vent Injury  by  His  Property.— Where  a  certain  lawful  use  of  prop- 
ertjr  will  bring  to  pass  wrongful  consequences  from  the  conditioik 
in  'which  the  property  is  put,  if  these  are  not  guarded  against,  an 
owner  who  makes  such  a  use  is  bound  at  his  peril  to  see  tha^ 
proper  care  is  taken  in  every  particular  to  prevent  the  wrongs 
(2Cfiss.y    Ainsworth  v.  Larkin,  314. 

IX  BTTHiDINOS,  Dangerous  Walls,  Liability  for.— If,  through  the- 
destruction  of  a  building  by  fire,  the  title  to  the  third  story  of* 
tb.e  wall  thereon  vests  in  the  owner  of  the  land,  he  does  not  im- 
mediately become  liable,  but,  before  liability  grows  up  against  him,. 
h.e  is  entitled  to  a  reasonable  time  to  make  necessary  investigations 
and  to  take  such  precautions  as  are  required  to  prevent  the  wall 
from  doing  harm.     (Mass.)     Ainsworth  v.  Larkin,  314. 

12.  NEQLIOENCE  in  Failing  to  Remove  Walls  Destroyed  by  Fire. 
"Where  there  is  standing  in  close  proximity  to  other  property  the  wall 
of  a  building  destroyed  by  fire,  the  fall  of  which  must  injure  a 
neighbor,  the  landlord  must  pull  down  such  wall  or  use  such  caro 
in  its  maintenance  as  will  absolutely  prevent  injuries,  except  from 
causes  over  which  he  can  have  no  control,  such  as  vis  major,  acts 
of  public  enemies,  or  wrongful  acts  of  third  persons  which  hnmaa. 
foresight  could  not  be  reasonably  expected  to  anticipate  and  prevent* 
(Mass.)     Ainsworth  v.  Larkin,  314. 

13.  NEGLIOENCS  in  Manufacturing  or  Selling  an  Article— ThirA 
Person  When  may  not  Becover  for.— Where  a  cause  of  injury  is 
not  in  its  nature  imminently  dangerous,  where  it  does  not  depend  on 
fraud,  concealment,  or  implied  invitation,  and  where  the  plaintilT 
is  not  in  privity  of  contract  with  the  defendant,  an  action  for  negli- 
gence cannot  be  maintained.'  (B.  L)  McCaffrey  v.  Mossberg  etc» 
Mfg.  Co.,  637. 

14.  MAKXTFAOTUBEB  OF  MACHINE— When  not  Answerable  t» 
a  Third  Ferson  for  Defects  in.— Negligence  in  the  manufacture  of  a 
machine  whereby  an  employe  of  the  purchaser  is  injured  will  net 
sustain  a  recovery  in  favor  of  the  latter  against  the  manufacturer 
when  tho  machine  is  not  of  an  imminently  dangerous  character,  aa 
where  it  is  a  machine  for  use  by  a  manufacturing  jeweler,  and,, 
through  a  defect  in  the  materials  from  which  it  was  made,  a  hook 
broke  and  caused  a  weight  to  fall  upon  and  injure  an  employ^.  (B.. 
I.)     McCaffrey  v.  Mossberg  etc.  Mfg.  Co.,  637. 

15.  NEOLiaENCE  OF  FABENTS  Exposing  ChUd  to  Injury  in  ai 
Fnbllc  Street — While  the  limited  powers  of  the  poor  must  be  taken 
into  account,  as  a  general  fact  in  drawing  the  line  at  which  th» 
responsibility  of  persons  injuring  a  child  in  the  public  streets  begins,, 
still  third  persons  cannot  be  held  accountable  for  an  accident  from* 
the  fact  that  the  parents  of  the  child  did  the  best  they  could.  Ther& 
is  a  certala  minimum  of  precaution  against  danger  into  which  infants 
will  wander  which  must  be  taken  into  account  before  another  is 
made  to  pa:5r,     (Mass.)     Cotter  v.  Lynn  etc.  B.  B.  Co.,  267. 

16.  NEaLiaENCE  in  the  Care  of  Children^ What  is  not.^Where 
a  mother  leaves  her  child,  less  than  eighteen  months  of  age,  playin^^ 
with  other  children  in  a  neighbor's  yard,  between  which  and  the 
street  there  is  no  fence  or  other  obstruction,  the  street  being  a  quiet 
one,  it  cannot  be  held,  as  a  matter  of  law,  that  the  child  might  dart 
out  into  the  street  beforei  the  mother  saw  it,  or  might  fail  to  notice 


lOuO  Index. 

at,  though  it  went  out  so  slowly  that  she  was  guilty  of  such  negligeaee 
that  the  case  should  be  taken  from  the  jury,  in  an  action  to  reeov«r 
for  damages  sustained  by  it  from  being  overrun  in  nieh  street  by 
defendant's  wagon.     (Msum.)     Walsh  v.  ijoorem,  263. 

KegUgenco  of  the  defendant,  whether  mmy  be  affirmed  by  the  eieurt 
as  a  proposition  of  law,  457. 

6ee  Death;  Druggists;  Highways;  Insurance^  1;  Master  and  Serraat; 

Bailroads. 

Vegotiable  Instrnmsnts,  eonfiict  of  laws  as  to  measora  of  damages  ia 
actions  upon,  718,  719. 
eonflict  of  law%  law  of  the  forum  does  not  control  the  amount 

of  the  recovery  upon,  739,  740. 
interpleader,  bills  of  to  determine  to  whom  payment  should  be 
made,  611,  612. 

See  Bills  and  Notes. 

HUISANOEa 

1.  KUISANGES.— A  Loud,  Disagreeable  Noise  may  ereate  a  nui- 
eaace,  and  be  the  subject  of  an  action  at  law  for  damages,  or  a  suit 
u^  equity  for  an  injunction,  or  of  an  indictment  as  a  pabUc  oifense. 
(Ark.)     Ex  parte  Foote,  63. 

2.  NUISANCEa— The  Keeping  of  »  Jackass  Within  the  Units 
of  a  Mvnicipal  Corporation  may  by  it  be  declared  to  be  a  nuisance^ 

and  punishable  as  such.     (Ark.)     £x  parte  Foote,  63. 

3.  NUI8AN0B— Prescription.— The  Bight  to  Maintain  a  PnUle 
nuisauee  cannot  be  acquired  by  prescription.  Hence,  the  maintenanee 
of  an  embankment  and  culvert  across  a  public  highway,  however  long 
continued,  cannot  result  in  the  prescriptive  right  to  so  maintais 
them  as  to  constitute  a  public  nuisance.  (Ind.  App.)  Kelly  ▼.  Pitts- 
burgh B.  B.  Co.,  134. 

Nnisancoy  municipal  corporations,  power  to  declare  what  ii^  68. 

See  Municipal  Corporations,  8>13. 


1.  OFFXCEBS— Liability  for  Moneys  Stolen  ftom.— If  a  statute, 
either  in  direct  terms  or  from  its  general  tenor,  imposes  a  dnty  npcB, 
a  public  officer  to  pay  over  money  received  by  him  in  his  official 
capacity  either  for  the  public  or  private  parties,  the  obligation  thns 
imposed  is  an  bsolute  one  and  binding  on  his  suretiea  The  plea 
that  the  money  has  been  stolen  or  lost  without  his  fault  does  not 
eonstitute  a  defense  to  an  action  for  its  recovery.  This  rule  applies 
to  a  clerk  of  a  district  court  as  to  money  received  under  eondemna* 
tion  proceedings.     (Minn.)     Northern  Pac  By.  Co.  v.  Owens^  33€b 

2.  PUBUC  OFFICEBS— 'Color  of  Offlce.'-An  appointment  or 
election  of  one  to  an  office  that  has  no  legal  existence  gives  no  color 
of  existence  to  the  office  or  color  of  authority  to  the  person  so  ap- 
pointed or  elected.     (Kan.)     In  re  Norton,  256. 

3.  A  STATUTE  OF  LIMITATIONS  in  Actions  to  Becover  Moneys 
Misappropriated  by  an  Official  does  not  begin  to  run  nntU  the  defalk 
cation  is  discovered,  where  it  was  concealed  by  the  principal  by 
making  false  entries  in  his  books,  and  he  was  of  good  repute  for 
honesty.     (Kan.)     McMuUen  v.  Winfield  Building  etc  Assn.,  236. 


Ikdbol.  1001 

4.  OFFZOXAIi  BONDS— AetB  in  PriTmte  Ospactty.-^A  eoattalOe* 
"who  receiyes  money  from  a  judgment  debtor  to  stay  exeention  and 
^▼e  time  to  perfect  an  appeal,  aets  in  his  priyate  eharaeter.  His 
'Boreties,  therefore,  are  not  liable  for  a  conversion  of  the  money. 
(Or.)      FeUer  ▼.  Oates^  492. 

6.  OTFIOIAL  BONDS— Burden  of  Proof  Bespecting  the  Date  of 
m  BCIsapproprlatlon. — Where  there  are  snceessiYe  bonds,  and  money 
18  traced  to  the  principal  and  not  accounted  for,  the  burden  is  on 
him  and  his  sureties  to  show  what  became  of  the  money,  and,  fail- 
ing to  do  this,  the  presumption  is  that  the  defalcation  took  place 
during  the  term  covered  by  the  bond.  (Kan.)  McMuUen  v.  Win- 
field    Building  etc.  Assn.,  236. 

6.  OTFIOIAIi  BOND— Burden  of  Proving  Whether  Defalcattona 
Occurred  Before  or  After  the  Bzeeotton  of  a  Bond.— Money  which 
comes  into  an  officer '■  hands  before  the  execution  of  a  bond  is 
presumed  to  have  been  still  in  his  possession,  and  the  burden  is 
upon  his  sureties  to  prove  that  defalcations  by  him  occurred  before 
the  bend  was  given.  (Kan.)  McMullen  v.  Winfield  Building  etc. 
Assn.,  236. 

7.  OSnoiAIi  BOND— Interest,  Whether  Becoverable  In  Bl&cess 
cf  the  Penalty. — Where  there  is  a  defalcation  equal  to  or  in  excess 
of  the  amount  of  the  principal  of  an  official  bond,  the  amount  of 
the  recovery  on  the  bond  may  include  interest  on  the  sum  misappro- 
priate.d  from  the  date  of  the  misappropriation.  (Kan.)  McMullen 
▼.  Winfield  Building  etc.  Assn.,  236. 

8.  OPFICIAIi  BOND— When  Betrospectiye.— A  bond  executed 
after  the  commencement  of  the  year,  reciting  that  the  principal  had 
been  elected  secretary  of  an  association  for  the  year  beginning 
January  Ist  and  ending  December  31  st,  and  declaring  that  if  he 
should  perform  the  duties  of  the  office  during  such  year,  the  bond 
should  be  void  and  of  no  effect,  but  otherwise  should  remain  in 
force,  is  retrospective  in  its  terms^  and  renders  the  sureties  an- 
swerable for  defalcations  occurring  within  the  year,  but  prior  to 
the  execution  of  the  bond.  (Kan.)  McMullen  v.  Winfield  Building 
etc  Assn.,  236. 

See  Courts;  Public  Officers;  States. 

Official  Bonds,  construction  of,  as  against  the  sureties,  503. 
construction  of,  special,  509. 

construction  of,  when  given  by  treasurer  to  perform  duties  ac- 
cording to  law,  506. 
construction  of,  where  they  appear  to  cover  duties  thereafter 

to  be  imposed  by  law,  505. 
duties  imposed  after  the  execution  of,  liability  of   sureties  for, 

503,  504. 
duties  of  principal,  changes  in  which  do  not  release  sureties,  505. 
duties  of  principal  may  be  increased  if  germane  to  the  office, 

505,  606. 
judicial  acts,  sureties  are  not  answerable  for  upon,  515. 
liability  of  both  principal  and  sureties  is  measured  by  the  terme 

of,  503. 
ef  clerks  of  courts,  change  in  duties  for  which  sureties  are  Uable^ 

507. 
ef  sheriffs  and  constables,  change  in  duties  for  which  suretiee 

nrh  liable,  506. 
of  tax  collectors,  change  in  duties  for  which  sureties  are  liable^ 

506. 


1002  IHDEX. 

OJBidal  Bonds  of  treasurer,  changes  in  duties  for  which  sureties  av» 

liable,  506. 
principal  in,  liability  of  on  the  bond  is  no  greater  than  that  of 

his  sureties^  603. 
special,  for  particular  duties,  construction  of,  509. 
sureties  of  auditors,  liability  of,  571. 
sureties  of  clerks  of  courts,  duties^  increase  of  for  which  are 

liable,  507. 
sureties  of  clerks  of  courts,  liability  of,  562-568. 
sureties  of  county  and  city  clerks,  liability  of,  568-971* 
sureties  of  justices  of  the  peace,  liability  of,  574-579. 
sureties  of  sheriffs  and  constables^  duties,  increase  of  for  whiek 

are  answerable,  506. 
sureties  of  sheriffs  and  constables,  liability  of,  531-550. 
sureties  of  superintendents  and  inspectors,  liability  of,  573. 
sureties  of  surveyors,  liability  of,  572. 
sureties   of   tax   collectors,   duties,   increase   of^  for  which   are 

answerable,  506. 
sureties  of  tax  collectors,  liability  of,  552-555. 
sureties  of  tax  collectors,  when  not  liable  f(»  special  taxes  col- 
lected by,  508,  509. 
sureties  of  treasurers^  duties,  increase  of,  for  which  are  answer^ 

able,  506. 
sureties  of  treasurer,  liability  of,  555-563. 
sureties  of  trustees,  liability  of,  572. 
sureties  on,  are  liable  for  of&cial  acts  only,  509. 
sureties  on  bond,  of  county  treasurer,  when  liable  for  his  acts  sa 

school  director,  508. 
sureties  on  bond  of  sheriff,  when  not  answerable  for  his  acta  a* 

tax  collector,  508. 
sureties  on,  liability  of,  demand  for  payment  or  performance^ 

whether  essential  to,  527,  528. 
sureties  on,  liability  of  for  acts  and  defaults  of  the  principal  for 

his  personal  profit,  512,  513. 
sureties  on,  liability  of,  for  acts  done  colore  officii,  511,  512. 
sureties  on,  liability  of,  for  acts  or  defaults  of  their  principsl,. 

caused  by  other  public  officers,  529,  530.  • 

sureties  on,  liability  of,  for  certificates  or  other  papers  issued  by 

their  principal  without  authority  of  law,  513. 
sureties  on,  liability  of,  for  duties  subsequently  imposed  on  their 

principal,  503-507. 
sureties  on,  liability  of,  for  failure  of  their  principal  to  execute 

a  writ,  531. 
sureties  on,  liability  of,  for  failure  of  their  principal  to  pay  hia 

deputies,  514. 
sureties  on,  liability  of,  for  fines,  forfeitures,  &nd  penalties  in- 
curred by  their  principal,  528,  529. 
sureties   on,  liability  of,  for  funds  other  than  public  moneys^ 

522,  523. 
sureties  on,  liability  of,  for  interest  received  by  their  principal 

on  public  moneys,  527. 
sureties  on,  liability  of,  for  moneys  lost  by  inevitable  accident^ 

519,  520. 
sureties  on,  liability  of,  for  moneys  lost  by  robbery  or  theft^ 

519,  520. 
sureties  on,  liability  of,  for  moneys  lost  by  failure  of  depositoiy,. 

520. 
sureties  on,  liability  of,  for  moneys  lost  without  their  fault,  516L 


Imdez.  1003 

Bond%'  sureties  on,  liability  of,  for  nonpayment  by  de  f aet» 
offieer  to  officer  de  jure  for  fees  collected,  514. 
sureties  on,  liability  of,  for  nonpayment  of  bills  by  their  prin- 
cipal, 513,  514. 

mreties  on,  liability  of,  for  the  act  of  Ood,  or  the  publie  enemy,. 
521. 

sureties  on,  liability  of,  for  writings  fraudulently  issued  by 
their  principal,  512. 

sureties  on,  liability  of,  general  rules  goTeming,  502. 

sureties  on,  liability  of,  improper  motives  on  the  part  of  their 
principal,  absence  of  does  not  limit,  529. 

sureties  on,  liability  of,  negligence  or  default  of  other  public- 
officers,  when  does  not  limit,  530. 

sureties  on,  liability  of,  on  original  bond  for  duties  for  whieb 
a  special  bond  is  required,  €07. 

sureties  on,  liability  of,  where  there  are  separate  bonds^  529. 

unofficial  acts  for  which  sureties  may  be  made  answerable  by 
statute,  510. 

'Where  the  same  person  holds  two  or  more  offices,  and  is  required 
to  give  separata  bonds^  508,  509. 

PABENT  AND  OHHJ). 
Bee  Negligence,  15,  16;  Street  Bailways. 

PABTinOK. 

1.  PABTinOK— Married  Women.— A  partition,  deed  or  decree- 
betvreen  tenants  in  common  who  are  married  women,  including  their 
husbands  as  decretal  parties  or  joint  grantees,  carries  no  other  or 
greater  interest  to  the  husbands  than  if  the  decree  or  deed  had  been 
Blade  to  their  wives  alone.  Each  wife  thereafter  holds  her  share* 
in  severalty,  but  no  new  title  or  additional  estate  is  thereby  con- 
ferred or  created  in  favor  of  the  husband.  (Tenn.)  Cottrell  v.. 
Griffiths,  748. 

2.  PABTITIOK.— Bnles  of  Pleading,  Practise  and  Evidence  ap- 
plicable generally  to  civil  actions  apply  to  an  action  for  partition.. 
(Minn.)     McArthur   v.    Clark,    333. 

3*  PABTITIOK— Pleading  and  Proof^Adverse  Possession.— A 
general  allegation  by  a  defendant  in  his  answer  to  a  suit  in  par-^ 
tition,  of  his  ownership  of  the  property,  is  sufficient  to  admit  proof 
of  his  title  by  adverse  possession,  and  the  effect  of  such  evidence 
is  not  only  to  bar  plaintiff's  right  of  action,  but  also  to  establish 
an  absolute  legal  title  in  the  defendant.  (Minn.)  McArthur  v. 
Clark,  333. 

Partition  of  mines  by  sale,  when  will  be  directed,  887. 

of  mines,  between  cotenants^  action  for,  when  sustainable^  885,, 

886. 
of  mines,  between  eotenants,  effect  of,  884,  885. 
of  mines^  between  eotenants,  waiver  of  right  of,  886. 
of  mines^  improvements,  allowance  for  in,  888. 
of  mines,  voluntary  between  eotenants  of,  884. 


1004  IvDSX. 


PABTNSB'8  LIABIUTY  Attn  Ilteolixtion  of  Flm.-'OM 
-i^ho  makes  two  deposits  with  a  banking  firm  of  fortj  and  thirtj-llv» 
dollars  eaeh  in  one  jear  is  a  ''person,"  -within  the  rale  that  a  pmrt- 
ner's  liability  continues  after  the  dissolution  of  the  firm  "in  favor 
of  persons  who  haTS  had  dealings  with,  and  giyea  eivdit  to,  tte  part- 
nership during  its  existence,  until  they  have  had  personal  Botioo 
of  its  dissolution.    <&  Dak.)     Tobia  y.  MoKinney,  688. 


fieo 


PATENT  BIGHTS— Becorery  of  PuduuM  Pricey  Thoafh  Hoto 
Oiviii  Therefor  is  Void*— A  statute  requiring  every  negotiable  in- 
«trumont  given  for  any  patent  medicine,  implement,  substaaeo^  or 
instrument  of  any  kind  to  be  executed  upon  a  printed  form,  and  to 
show  on  its  face  for  what  it  was  given,  otherwise  such  instrmnemt 
ahall  be  void,  does  not  prevent  the  vendor  to  whom  an  instroment 
was  given,  which  did  not  comply  with  the  statute,  from  maintaining 
an  action  for  the  purchase  price.  The  object  of  the  statute  ia  to 
save  to  the  vendee  all  the  defenses  he  may  have  to  an  action  on  the 
note  for  the  purchase  money  and  to  prevent  the  loss  of  such  defease 
by  a  transferrer  to  an  innocent  holder  before  maturity.  (Ark.) 
Both  ▼.  Merchants'  and  Planters'  Bank,  80. 

PAYMENT. 

1.  PIiEA  OF  PAYMENT  Admits  the  Debt  and  places  the  bv- 
den  of  proving  payment  on  the  defendant.  (Tenn.)  Insurance  Co. 
▼•  Dunscomby  769. 

2.  THE  PBE8UMPTION  of  Payment  of  a  Debt,  arising  after 
sixteen  years  from  its  maturity,  may  be  rebutted  by  any  satisfactory 
evidence  that  the  debt  is  still  due.  The  condition  of  the  debtor  as 
to  solvency,  and  the  possession  by  the  creditor  of  the  evidence  of  the 
debt  and  valuable  collateral  security  may  repel  the  presumption  of 
payment.     (Tenn.)  •Insurance  Co.  v.  Dunscomb,  769. 

Bee  Mortgages. 


1.  PEBJUBY— Indictment   for— Words,  How  to  bo  Sot  Ont— 

Neither  at  the  common  law  nor  under  the  statutes  generally  prevail- 
ing in  the  United  States  is  it  necessary  to  set  out  the  precise  words 
of  the  testimony  alleged  to  have  been  false.  (B.  L)  State  v.  Ter- 
line,  650; 

2.  PEBJUBY  in  a  Foreign  Language— Indictment  for.— Thou|^ 
the  testimony  was  given  in  a  foreign  language,  it  is  not  necessary,  in 
An  indictment  for  perjury,  to  show  that  fact  or  t-o  state  in  such 
languag9  the  testimony  alleged  to  have  been  false.  It  is  suffieient  W 
set  out  in  English  the  substance  of  the  testimony.  (B.  L)  State  v. 
Terline,  650. 

3.  PEBJUBY— Variance  in  Indictment  for— Wlion  ImmateriaL— 
A  mistake  in  an  indictment  for  perjury  respecting  the  testimony  sf 


Index.  1005- 

tlie  aeeused,  in  to  far  as  H  related  to  a  place  or  locality,  is  not  de- 
sttviptive  of  the  identity  oT  the  offense,  and  is  hence  not  a  legal 
ewential  thereof.     (B.  L)     State  ▼.  Terllne,  650. 

PHTSXCnLAlTS  AJXD  SUBOBON& 

BflSDICAIi  SSBVI0B8  TO  ANOTHER— Implied  Promise  to- 
Pay  tOT — When  does  not  Exist.— An  implied  promise  on  the  part  of 
otne  "v^lio  requests  performance  of  medical  or  surgical  services  to  an- 
oilier  to  pay  for  them  does  not  arise  unless  the  relation  of  the- 
patient  to  the  person  mailing  the  request  is  such  as  raises  a  legal 
olfeligatiott  on  his  part  to  eall  in  a  physician  and  pay  for  his  senricefl. 
(Momt.>     Spelman  v.- Gold. Coin  Min.  etc  Co.,  40^  * 

See  Corporations,  4,  5;  Master  and  Servant,  11« 

PLEADING. 

1.  A  PU3ADINO  Must  be  Constmed  most  strongly  against  the 
pleader,  and  specific  averments  therein  must  be  given  preeedenee  over 
general.     (Ind.  App.)     De  Buiter  v.  De  Buiter,  107. 

2.  FlaEADINO— One  Averment,  When  not  Sufficient  to  Overcome 
Another. — If  a  pleading  states  that  the  defendant,  at  the  time  of 
makings  a  conveyance,  was  largely  indebted,  and  has  since  become,. 
and  now  is,  insolvent,  and  that  he  had  not  at  the  time  of  making  such 
conveyance,  nor  has  he  now,  sufficient  property  subject  to  execution 
to  pay  his  debts  and  plaintiff's  claim  for  alimony,  and  that  he  is 
possessed  of  a  large  amount  of  money  and  bonds  which  he  secrets, 
this  latter  allegation  is  so  indefinite  and  uncertain  that  it  cannot  be 
regarded  as  contradicting  the  essential  averments  preceding  it. 
(Ind.  App.)'    I>©  Buiter  v.  De  Buiter,  107. 

3.  DUPUCITY  OF  PLEA  to  Bill  to  Restrain  Nuisance.— A  plea 
to  a  bill  by  an  adjoining  property  holder  to  restrain  the  erection  of 
a  building  encroaching  upon  the  public  street  is  bad  for  duplicity^ 
if  it  sets  up  that  the  complainant  consented  to  the  encroachment,. 
and  that  he  was  not  entitled  to  the  light,  air  and  view  from  that 
part  of  the  street  in  front  of  the  building.  (Ala.)  First  Nat.  Bank 
V.  Tyson,  46. 

4.  OWNERSHIP— Pleading.-A  general  allegation  of  ownership 
of  real  property,  in  a  pleading  in  either  a  legal  or  an  equitable  ae- 
tion,  is  sufficient  to  admit  proof  of  any  legal  title  held  by  the 
pleader.     (Minn.)     McArthur  v.  Clark,  333. 

POSSESSION  OF  STOLEN  GOODa 
See  Larceny, 

PRESCRIPTION. 

See  Nuisances;  Public  Landa 

PRIBIART  ELECTIONS. 

See  Elections. 

PRINCIPAL  AND  AGENT. 

1.  EVIDENCE.- The  Declarations  of  One  ABSuming  to  Act  as  an. 
Agmt  are  not  admissible  to  prove  his  agency.  (B.  I.)  Panlton  v» 
Keith,  024. 


1006  Index. 

2.  AGENCY.— No  Penon  can  Legally  Act  as  an  agent  in  a  trans- 
action in  which  he  has  an  interest  or  to  which  he  is  a  partj  on  the 
filde  opposite  to  his  principal.  (N.  J.  L.)  Campbell  v.  Manufaetur* 
«r8'  Nat  Bank,  438. 

3.  PEINOIPAI.  AND  AGENT— Manager  and  Proprietor  of 
Theater.— A  manager  of  a  theater  who  stands  against  the  door  at 
41  stage  and  refuses  to  allow  an  officer  to  enter  for  the  pnrpone  of 
serving  a  writ  npon  an  actor  is  not  acting  within  the  limits  of  the 
apparent  scope  and  implied  authority  of  his  employment.  CB^  JJ\ 
Paulton  V.  Keith,  624.  r   j  \  , 

4.  PBINCIPAL  AND  AGENT.— The  Powers  of  an  Agent  eaimot 
T;e  Enlarged  by  his  unauthorized  representations  and  promiMiL 
<Mont.)     Spelman  v.  Gold  Coin  Miti    etc  Co.,  402. 

See  Banks  and  Banking;  Carriers,  18;  Insurance^  5,  6. 

PBINOIPAL  AND  SXTBETY. 

1.  8UBETIE8— NegUgence  in  not  Discoyering  Defalcations  of  Um 

Principal.— Though  the  books  of  the  secretary  of  an  association  aro 
cpen  to  the  examination  of  its  officers  and  members^  and  due  dili- 
gence might  have  detected  the  dishonesty  of  the  principal  and  pre- 
vented or  reduced  the  amount  of  his  defalcation,  his  sureties  are 
not  released,  provided,  the  association  or  its  members  did  not  act 
in  bad  faith  toward  the  sureties,  nor  omit  any  effort  to  protect 
the  funds  of  the  association  after  receiving  notice  of  the  dishonesty 
and  unfaithfulness  of  the  secretary.  (Kan.)  HcMullen  v.  Winfield 
Building  e.tc.  Assn.,  236. 

2.  8XJBETIES— Statute  of  Limitations  in  Actions  Against.-- 
Where,  Because  of  Fraud  of  a  Principal  in  the  concealing  and  mis- 
appropriation of  money,  the  statute  of  limitations  does  not  ma 
iigainst  him,  it  does  not  run  against  the  sureties  on  his  bond.  (Kan.) 
McMullen  y.  Winfield  Building  etc  Assn.,  236. 

See  Officers. 

PBIVILEOED  COMMnNICATION& 

See  Witnesses. 

PROCESS. 

!•    JUBISDICTION.- Affidayit   for   Publication   of   Sununom^  if 

defective,  cannot  be  aided  by  reference  to  the  other  papers  of  record 
in  the  case  for  the  purpose  of  conferring  jurisdiction.  (Minn.)  Gil- 
more  y.  Lampman,  376. 

2.  JURISDICTION.- Affidayit  for  Publication  of  Summons  which 

fails  to  state  that  the  defendant  has  property  within  the  state,  or 
that  the  subject  matter  of  i\t0  action  is  within  the  state,  is  fatally 
defective,  and  does  not  confer  jurisdiction.  (Minn.)  Gilmoi^  v. 
Lampman,  376. 

3.  JUBISDICTION.— Oonstructlye  Service  of  Process  is  porely  a 
statutory  creation,  in  derogation  of  the  common  law,  and  the  re- 
quirements of  the  statute  must  be  strictly  observed  or  the  attempted 
service  will  be  fatally  defective.  (Minn.)  Gilmore  y«  Lampman, 
376. 

4.  JUBISDICTION— Oonstructlye  Seryice  of  Process.— The  af- 
fidavit for  publication  of  summons  is  of  itself  the  prerequisite  upon 


Indxz.  1007 

widcli  jurisdiction  is  based,  and  it  must  eontain  and  state  positively- 
all  tbe  facts  required  by  the  statute,  otherwise  it  is  fatally  defective. 
(Minn.)       Gilmore  v.  Lampman,  376. 

5.  AN  OZnOEB  in  the  Service  of  Olvll  Process  has  the  S1|M 
to  Break  IDoon  and  command  sufficient  force  to  enter  a  theater  or 
other  buildizig  not  occupied  as  a  dwelling.*  (B.  I.)  Paulton  v,  Keith. 
«24.  ^ 

See  Principal  and  Agent,  3. 

FUBUO  0ONTBA0T8. 

See  States. 

POTLIO  I.Ain>8. 

1.  P17BU0  LANDS.— An  Artificial  Lake  maintained  on  lands^  the 
title  of  which  is  in  the  state,  does  not  stamp  on  such  lands  the  same 
character  and  trusts  as  if  they  were  covered  by  a  natural  lake,  nn- 
leaa  the  artificial  lake  is  continued  for  a  time  sufficient  to  make  it 
a  natural  lake  by  prescription.  (Wis.)  Diana  Shooting  Club  v.  Lam- 
oreux,  898. 

2.  PT^LIC  LANDS— Injury  to  Homestead.— An  entryman  under 
the  federal  homestead  laws  may  bring  an  action  for  injury  to  his 
land,  although  he  has  not  yet  made  final  proof.*  (Wash.)  Wendel  v. 
Spokane  County,  825. 

3.  PUBLIC  LAND  —  Swamp  Lands.  —  Decisions  by  the  land  de- 
partment of  the  general  govemmenti  as  to  whether  lands  were  up- 
lands or  swamp  lands  within  the  meaning  of  a  national  swamp  land 
act  at  the  time  it  took  effect,  are  conclusive  in  all  courts  and  as 
to  all  parties,  except  a  claimant  by  paramount  title.  (Wis.)  Diana 
Shooting  Club  v.  Lamoreux,  898. 

4.  PT7BLI0  LANDS  —  Title  to  Swamp  Lands  When  Vests  In 
State. — A  national  swamp  land  act  vests  in  the  state,  as  of  the  date 
it  takes  effect,  the  title  to  all  lands  determined  by  the  general  land 
df&partment  of  the  United  States  to  be  affected  thereby.  Such  lands 
are  thereafter  segregated  from  the  remainder  of  the  public  domain 
and  vested  in  the  state,  whether  or  not  they  were  at  the  time  of 
tho  passage  of  such  act  artificially  covered  by  navigable  water,  by 
trespassers  upon  the  public  lands.  (Wis.)  Diana  Shooting  Club  v. 
Lamoreux,  893. 

PabUc  Officers,  auditors,  liability  of  sureties  on  bonds  of,  671,  572. 
city  clerks,  liability  of  sureties  on  bonds  of,  568-571. 
clerks  of  courts,  liability  of  sureties  on  bonds  of,  562-568. 
county  clerks,  liability  of  sureties  on  bonds  of,  568-571. 
interest  received  by  on  public  moneys,  liability  for,  527. 
judicial  acts  of,  what  are,  515,  516.  • 

judicial  acts^  sureties  of,  when  not  answerable  for,  515. 
judicial  acts,  sureties  of,  whether  liable  if  incorrectly  done,  tS15. 
justices  of  the  peace,  liability  of  sureties  on  bonds  of,  574-579. 
liability  of  for  moneys  lost  by  act  of  God  or  the  public  enemy, 

520,  521. 
liability  of  for  moneys  lost  by  inevitable  accident,  519«  520. 
liability  of  for  moneys  lost  by  robbery  or  theft,  519,  520. 
liability  of,  for  moneys  stolen  by  a  deputy  appointed  under  eivil 
service  rules,  519,  520. 


1008  Isvsx. 

P»bUe  Qfflcws,  liability  of,  for  moneys,  wliether  it  is  Ib  th« 

of  a  debt,  516,  517. 
liability  of,  for  private  funds,  522,  52i. 
moDeya,  absolute  liability  for,  whether  qualified  by  thmr  i^<«^i^m 

bonds,  52i. 
moneys  in  their  bands,  nature  of  title  to,  516. 
moneys  lost  without  their  fault,  liability  for,  516-523. 
moneys,  negligence  in  the  less  of,  whether  necessary  to  ere&te- 

liability  for,  523,  526. 
negligence,  whether  necessary  to  create  liability  for  loss  of  piil>- 

lie  moneys,  525,  526. 
public  enemy,  acts  of  which  will  relieye  from  li&bilit7t  522- 
sheriffs  and  constables,  liability  of  sureties  on  bonds  of,  531-550L. 
supervisors,  liability  of  sureties  on  bonds  of,  572. 
tax  collectors,  liability  of  sureties  on  bonds  of,  652-555. 
treasurers,  liability  of  sureties  on  bonds  of,  555-502. 
what  aots  of  are  virtute  offieii  and  what  are  colore  offieiiy  511» 

See  Officers;  Official  Bonda 

PUBE  FOOD  LAWS. 
See  Adulteration;  Gommeresb 

QUIETINO  TITLE. 

ZN  A  SUIT  TO  QUIET  TITIiE,  the  Decree  Should  be  Gonlliiod 

to  the  property  and  interests  in  issue.     (Wash.)     Cedar  Canyon  etc 
Min.  Co.  V.  Yarwoody  841. 

EAILBOAD8. 

1.  BAILWATS.— Oonductors  and  Trsimnen  have  the  right  to 
assume  that  the  company  would  not  permit  any  obetmetion  to 
lemain  above  its  tracks  which  would  be  dangerous  to  its  employes 
while  operating  its  trains.  If  there  is  such  obstruction,  and  the 
company  knows  it,  it  is  its  duty  to  notify  its  trainmen  of  the  danger, 
and  it  is  no  part  of  the  trainmen's  duty  to  anticipate  sneh  obstnie- 
tion.     (Ind.  App.)     Pittsburgh  etc.  By.  Co.  v.  Parish,  120. 

2.  NEOLIOENCE,  GONTBIBUTOBT— Equal  Means  of  Knowl- 
edge.— A  railway  employ^  injured  by  an  obstruction  on  or  over  the 
track  is  not  precluded  from  recovering  therefor,  on  the  ground  that 
he  had  an  equal  means  of  knowledge  with  his  employer  of  the  exist- 
ence of  such  obstruction,  unless  it  was  also  his  duty  to  use  thooo 
means.     (Ind.  App.)     Pittsburgh  etc.  By.  Co.  v.  Parish,  120. 

3.  BArLVOi^rs.— The  Duty  of  Making  an  Examination  for  the 
Purpose  of  Discovering  Whether  an  Obstruction  exists  which  is  likely 
to  render  dangerous  his  performance  of  his  duty  by  an  employ^  rests 
upon  the  employer,  and  the  employ^  is,  therefore,  not  necessarilr 
chargeable  with  contributory  negligence  beoause  he  did  not  make 
such  examination  or  discovery.  (Ind.  App.)  Pittsburgh  etc  By.  Co. 
V.  Parish,  120. 

4.  BAILWATS.— If  the  Limbs  of  a  Tree  Sxtond  Orer  a  Ballwmy 
Track,  Thongh  Its  Body  does  not  Stand  on  the  Bight  of  Way,  and 
such  limbs  constitute  a  constant  danger  to  the  lives  of  employes  when 
on  the  top  of  freight-cars,  and  are  of  sufficient  sise  and  abrength 
to  push  a  man  off  of  the  top  of  a  car  running  from  three  to  six 
miles  an  hour,  the  railway  has  a  right  to  remove  such  dangerous 


Ikdbz.  1009 

O'verliaxi^ng  limbs^  and,  failing  to  do  so,  is  guilty  of  negligenee,  for 
"wblclL  its  employ^  may  recover  if  injured  thereby.  (Ind.  App.> 
Pittsburgh  etc.  By.  Co.  ▼•  Parish,  120. 

G.      SUBOXJOBKC^  OOKTBIBUTOBY— Absence  of.  How  may  b9 

SstalillBlLed.— The  absence  of  contribntory  negligence  may  be  estab- 
lished l>y  eircamstantial  evidence.    When  it  appears  from  the  evidence 
that  a  railway  conductor  was  pushed  from  the  top  of  a  slowly  moving 
train    by  the  limbs  of  a  tree  overhanging  the  track,  and  that  he 
^ras  a  sober,  careful,  competent,  and  experienced  man,  and  was  in  the 
proper  place  and  in  the  performance  of  work  in  the  line  of  his  duty, 
and  had  never  been  warned  of  the  existence  of  the  danger,  and  that  a 
"witness  saw  the  motion  of  a  man's  arm,  and  branches  of  the  tree 
xnovinfiry  and  a  lantern  fall,  the  jury  is  warranted  in  finding  that  the 
conductor,  at  the  time  of  his  injury,  was  not  chargeable  with  con- 
tributory negligence.     (Ind.  App.)    Pittsburgh  etc.  By.  Co.  ▼.  Parish^ 
320. 

6.  KEOUGENOE  —  Absence  of  Warning.— Evidence  that  a  con- 
ductor injured  by  being  pushed  from  the  top  of  a  moving  train  by 
the  overhanging  limbs  of  a  tree  had  not  been  notified  of  the 
existence  of  this  obstruction  is  admissible.  Tt  was  not  such  a  danger 
as  is  ordinarily  incident  to  the  business  of  railroading,  and  if  the 
corporation  knew  of  its  existence,  it  should  have  informed  its 
employes.     (Ind.  App.)     Pittsburgh  etc.  By.  Co.  ▼.  Parish,  120. 

7.  mOUOENCE.— Bvidence  that  a  Ballway  Had  not  Erected 
Any  Warners  or  Tell-tales  on  either  side  of  a  tree  by  the  overhang- 
ing limbs  of  which  an  employ^*  was  injured,  is  admissible.  Though 
the  failure  to  erect  them  may  not  be  negligence,  their  absence  tends 
to  prove  that  the  decedent  did  not  know  of  such  obstruction,  and 
had  not  been  warned  of  the  existence  of  danger.  (Ind.  App.)  Pitts- 
burgh etc.  Ry.  Co.  v.  Parish,  120. 

8.  HEGUGEKOB,  OONTBXBITTOBT— When  a  Question  for  the 
Jury. — "Whether  an  obstruction  on  the  line  of  a  railway  track  con- 
sisting of  the  limbs  of  a  tree  overhanging  the  track,  so  as  to  push 
from  the  top  of  a  car  an  employ^  thereon,  is  an  open  and  obvious 
defect,  and  the  danger  therefrom  apparent,  is  a  question  for  the 
jury,  and  their  finding  upon  it  cannot  be  ignored.  (Ind.  App.) 
Pittsburgh  etc.  Ry.  Co.  v.  Parish,  120. 

9.  BAILWAYS  —  Trees  Overhanging  Track  —  Employ^  are  not 
Bonnd  to  Know  of. — Trees  overhanging  a  railway  track  are  not  such 
an  open  and  obvious  obstruction  that  the  court  can  say,  as  a  matter 
of  law,  that  an  omplo}*^  in  the  discharge  of  his  duties  is  bound  to 
see  them,  and  is  therefore  chargeable  with  knowledge  of  the  danger 
from  them.     (Ind.  App.)     Pittsburgh  etc.  Ry.  Co.  v.  Parish,  120. 

10.  BAILWAYS.— Trees  Overhanging  a  Track  so  Low  that  they 
come  in  contact  with  and  injure  employes  while  engaged  in  their 
duties  on  the  tops  of  cars  are  not  dangers  incident  to  the  service, 
nor  are  they  dangers  of  which  employes  are  presumed  to  know;  and 
hence  they  are  entitled  to  recover  for  injuries  suffered  therefrom  if 
themselves  free  from  contributory  negligence.  (Ind.  App.)  Pitts- 
burgh etc.  By.  Co.  v.  Paiish,  120. 

See  Carriers;  Insurance,  1;    Street  Bailwaya 


1.  A  BEOEIVEB  of  a  Corporation  has  no  right  to  sne  outside  of 
the  jurisdiction  appointing  him,  unless  he  is  actually  or  virtually  an 
assignee  of  the  claim  upon  which  he  brings  the  action.  (Maes ) 
Homer  v.  Barr  Pumping  Engine  Co.,  269. 

A.      Am.  ft.  Bepw,  VoL  iMM 


1010  Index. 

2.    BEOEXVES— Pleading  in  Aettons  by.— In  an  aetimt  hj  n 
-«eiver  of  a  foreign  eorporation,  he  must,  under  the  general  denial,  I 
prove  that  he  ia  authorized  to  bring  actions  in  hia  own  name  in  the    ' 
•court*  of  the  atate.    (Mass.)    Homer  ▼•  Barr  Punping  Engine  Gol^ 
:269. 


Bee  Arbitration  and  Award. 


See  Oonfusion  of  Goodai 

BBS  GESTAE. 
6ee  Evidence,  4. 

BBS  XUDIOATA. 

See  Judgmenta. 

BAJLBB. 

1.  SAI£— Implied  Wamnty.— On  a  sale  of  onion  aela  to  ft 
chant  by  description,  there  is  an  implied  warranty  that  they 
answer  the  deecription  and  be  merchantable.     (Ala.)    Frith  A  Go.  ▼• 
Hollan,  64. 

2.  8AI£— Bemedlea  of  Bnyer  for  Breach  of  Warranty.— A  ner- 
•chant,  finding  goods  purchased  by  him  to  be  in  a  bad  condition^  mad 
fpart  of  them  unmerchantable,  may  rescind  the  sale  and  retnm  the 
'goeds^  or  retain  them,  and  when  sued  for  the  priee^  avafl  hJmaelf 
•of  the  damages  suffered,  either  by  bringing  his  cross-action  for  the 
(breach  of  warranty,  or  by  proving  their  r^  value  and  abating  the 
recovery  pro  tanto.     (Ala.)     Frith  &  Co.  v.  Hollan,  54. 

3.  OOKSIONOB   AND   CONSIGNEE  —  LUbiUty   for   Failnre   of 

Title.— Neither  the  payee  nor  a  bank  collecting  a  draft  drawn  by 
the  consignor  of  grain  and  accompanying  a  bill  of  lading  is  liable 
to  the  consignee  accepting  and  paying  the  draft  for  a  failure  of 
title  to  the  property  described  in  such  bilL  (Kan.)'  Hall  v.  KeUer, 
209. 


See  Homicide,  5,  6. 


See  Criminal  Law,  8,  9. 

3heriib  and  Oonstables^  arrests,  warrants,  when  not  necessary  to  an- 
thorize,  534. 
■oroties,  liability  of  for  acts  done  in  the  absenee  of  proeeas,  633- 

535. 
•nreties^  liability  of  for  acts  as  tax  collector,  550-552. 
euretles,  liability  of  for  acts  as  trustees  or  treasurers,  SSO,  tWL 
tfureties^  liabiUty  of  for  acts  ex  officio  their  appointive  eapaeity, 

550,  551.  .  ^        ^  u- 

r^eureties,  liability  of  for  acts  in  excess  of  authority  conferred  by, 

process,  541. 


ImvL.  1011 

Oonstables,  sareties,  liability  of  for  aets  of  deputies^  550. 
miretieSy  liability  of  for  acta  where  there  is  discretion  to  be  ex- 
ercised, 549y  550. 
soretiesy  liability  of  for  arrests  under  void  process,  536. 
sureties,  liability  of  for  escapes,  543. 
Buretiee,  liability  of  for  failure  to  execute  writs,  531,  532. 
sureties,  liability  of  for  failure  to  pay  over  moneys  receivedy 

546,  547. 
sureties,  liability  of  for  failure  to  return  process,  544. 
sureties,  liability  of  for  failure  to  take  proper  security,  540. 
sureties,  liability  of  for  false  return  of  process^  544,  545. 
sureties,  liability  of  for  improper  release  of  person  or  property, 

543,  544. 
sureties,  liability  of  for  injury  to  person  in  custody  of  principal, 

541. 
sureties,  liability  of  for  injury  to  property  in  custody  of  prin- 
cipal, 541. 
sureties,  liability  of  for  moneys  received  to  stay  execution,  648. 
sureties,  liability  of  for  moneys  received  under  defunct  process, 

546. 
sureties,  liability  of  for  moneys  received  under  private  arrange* 

ment  with  the  judgment  debtor,  548. 
sureties,  liability  of  for  moneys  received  under  void  or  illegal 

process,  546. 
sureties,  liability  of  for  proceeds  of  property  sold  by,  545,  546. 
sureties,  liability  of  for  property  received  when  authorized  to 

receive  money  only,  548. 
sureties,  liability  of  tor  refusal  to  release  property,  543. 
sureties,  liability  of  for  seizure  of  exempt  property,  537. 
sureties,  liability  of  for  seizure  of  property  of  a  stranger  to  the 

writ,  536-540. 
sureties,  liability  of  for  seizure  of  property  under  void  or  illegal 

process,  535,  536. 
sureties,  liability  of  for  the  arrest  of  a  stranger  to  the  writ,  540. 
sureties,  liability  of  for  unauthorized  arrests  and  seizures^  582, 

533. 
sureties,  liability  of  where  they  act  as  collecting  agents^  582,  585, 
545. 

SIiAMDEB. 

See  Libel  and  Slander. 

STATES. 

1.  STATE  OFFICEBS,  Contracts  with  —  ConditioiMi  Whidi  may 
not  "be  Inserted  in. — Where  a  state  board  has  accepted  a  bid  and 
awarded  a  contract,  it  has  no  power  to  insert  in  the  formal  written 
contract  any  condition  not  consonant  with  the  contract  already  made 
by  virtue  of  the  acceptance  of  the  bid,  though  such  contract  is  sub- 
ject to  the  approval  of  the  governor  and  the  state  treasurer.  (Mont.) 
State  V.  Toole,  386. 

2.  STATE  OFFICEBS— Contracts— Power  of  to  Cancel.— A  state 
furnishing  board  has  no  power  to  cancel  a  contract  created  by  the 
acceptance  of  a  bid,  unless  for  some  cause  which  the  law  recognizes 
as  sufficient  to  invalidate  the  contract.     (Mont.)     State  v.  Toole,  386. 

3.  PUBLIC  OOKTBACTS— Defects  In  Advertising  for.— If  a  stat- 
ute declares  that  before  any  contract  is  let,  the  board  must  advsr- 


1012  iNBsr. 

tise  in  two  daily  newspapers  printed  in  the  atate,  one  ot  'wfcieft 
be  printed  at  the  seat  of  government,  the  letting  of  a  tontrmct  baaed 
on  an  advertisement  only  in  a  newspaper  printed  *t  ^e  seat  of 
government  is  unauthorized  and  void.     (Mont.)    State  v.  TooIm,  38G, 

4u    PUBUO    00MTRA0T8.— Iietting  by   Ctontract  to  tlw  Zriovest 

Bidder  Kecessarily  IinplieB  Equal  opportunities  to,  and  fceedoai  ioi, 
idl  whose  interests  or  inclinations  may  impel  them  to  eompete  at  the 
bidding.     (Mont.)     State  v.  Toole,  386. 

5.  FXJBIJO  OOKTBAOT8  —  limitliig  of  to  Persons  Employing 
Unioji  Xahor  Only. — A  contract  entered  into  by  the  aceeptanee  of 
a  bid  for  public  work  tendered  in  pursuance  of  an  advertiaement 
limiting  the  right  to  bid  to  persons  employing,  or  who  will  in  the 
future  employ,  union  labor  only,  is  void.  (Mont.)  State  v.  Toole, 
366. 

6.  PUBLIC  G0NTBA0T8— Beasons  for  Canceling  Need  not  1m 
Correctly  Stated  at  the  Time.— Although  the  reason  ^ven  at  the 
time  of  the  attempted  canceling  of  a  public  contract  is  not  Talid, 
yet  the  canceling  may  be  sustained  if  there  was  another  eanee  miB- 
eicut  to  render  the  contract  void.     (Mont.)     State  v.  Toole,  386. 

7.  PUBLIC  CONTBACT— Bight  to  Befnse  to  Complete  Beeaost 
Labor  Unions  were  Hostile  to  the  Accepted  Bidder.— A  state  famiah- 
ing  board  has  no  power  or  discretion  to  refuse  to  enter  into  a  writ- 
tea  contract  in  pursuance  of  an  award  theretofore  made  by  H  on 
the  ground  that  the  other  contracting  party  is  in  hostility  to  labor 
unions,  and  may  therefore  be  embarrassed  and  delated  in  eonply* 
ing  with  his  contracts  because  of  strikes  and  labor  troubles.  (Mont) 
State  V.  Toole,  386. 

8.  CONSTIT  U  TIOKAL  LAW— Advertising  for  PropoealB- Power 
of  the  Legislature  to  Beqnlre. — A  constitutional  provision  requiring 
contracts  for  materials  to  be  given  to  the  lowest  responsible  bidder 
usder  such  regulations  as  may  be  prescribed  by  law  does  not  pro- 
hibit the  legislature  from  providing  that,  before  any  contract  is  let» 
an  advertisement  inviting  proposals  therefor  must  be  published  for 
twenty  days  in  two  newspapers.    (Mont.)    State  v.  Toole,  886. 

STATUTES. 

!•  CONSTITUTIONAL  LAW— Title  of  Act— Primary  Parposea.— 
The  statement  of  the  primary  object  in  the  title  of  an  act  as  being 
the  creation  of  a  corporation  for  manufacturing  purposes  soffgesti^ 
as  germane  thereto,  and  as  part  of  the  expressed  purpose,  anuoritjr 
to  acquire  and  maintain  a  dam  to  create  power  for  the  nse  of  the 
corporation,  to  acquire  '  rls  affected  by  the  backwater  of  such  dam, 
and  authority  in  the  owners  of  such  lands  to  sell  them  to  the  eor- 
poration.     (Wis.)     Diana  Shooting  Club  v.  Lamoreuz,  898. 

2.  CONSTITUTIONAL  LAW  — Title  of  Act.  — The  constitu- 
tion requires  the  subject  of  an  act  to  be  expressed  in  its  title,  hot 
leaves  the  mode  of  expressing  it  wholly  to  the  discretion  of  the  legis- 
lature.    (Wis.)'    Diana  Shooting  Club  v.  Lamoreux,  898. 

8.  CONSTITUTIONAL  LAW  — Titie  of  Statate.  —  Evety  isb- 
ject  which  the  court  can  see  would  or  might  facilitate  the  acMB- 
plishment  of  the  primary  purpose  named  in  the  title  of  an  act  if 
germane  thereto,  and  may  be  considered  as  constitutionally  Boggested 
by  the  expression  of  such  primary  purpose.  (Wis.)  Diana  Shoot- 
ing Club  V.  Lamoreux,  898. 

4u  CONSTITUTIONAL  LAW  —  Title  of  Statote.  —  The  title  of 
an  act  should  be  liberally  construed,  and  not  be  condemned  aa  iissf* 


IlTDEZ.  1013 

-Heient  to  constitutionally  snggest  those  thing*  found  in  the  body  of 
tli«  aoft>  tmlessy  giving  thereto  the  largest  scope  which  reason  will 
permit,  something  is  found  therein  which  is  neither  within  its  literal 
meaning:  nor  its  spirit,  nor  gerauuM  thereto.  (Wis.)  Diana  Shoot- 
ing Clnb  V.  Lamoreuzy  898. 

5.  PTTBJB  FOOD  LAW— Title  of.— It  kk  not  necessary  to  set  forth 
in  the  title  of  a  pure  food  statute  the  nature  and  character  of  the 
-penalties  porovidecL     (Waah.)*    Hathaway  v.  McDonald,  889. 

e.  TITIf  OF  FBDiABY  ELEOTION  LAW.— A  section  of  a 
-statute  relating  to  the  appointment  of  »  county  managing  committee, 
and  its  functions  and  duties,  ia  within  the  purview  of  the  title  of  an 
aety  ''To  pro^de  for  primary  elaetiona  in  cities  ....  and  providing 

for  the  manrner  of  eondneting  the  same,''  ete.    (Or.)  Ladd  ▼.  Holmes. 

4S1.  T  ' 

Sea  ConatitatloBal  Law. 

0TATUTB  OF  ZJ1IITATION& 
Bee  Limitation  ef  Aetlona. 

8TBEET  BAILWATa 

!•  OHZUD  —  KagUgence  of  Parent  —  When  Preehidea  Becevery 
for  Znjwiea  to. — If  a  child  is  injured  in  a  public  street  by  collisioft 
with  a  atreet-car,  and  there  ia  no  eyidenee  that  the  child  used  the 
€aro  -vrhieh  would  be  expected  of  an  adult,  if  there  is  negligence  on 
the  part  of  its  parents  in  allowing  it  to  be  where  it  was,  it  cannot 
recover.     (Mass.)     Cotter  y.  Lynn  etc.  B.  B.  Co.,  267. 

2.  KBOLIOENOE  OF  PABENTS  Which  Precludes  Becovery  by 
<niilcL — If  a  child  lees  than  three  years  old  is  left  unattended  in  a 
yard  fronting  on  a  pubUe  street,  in  which  there  is  considerable  team- 
ing and  a  line  of  electric-cars,  between  which  yard  and  street  there 
is  a  gate  always  open,  and  the  child  strays  out  into  the  street,  and, 
in  trying  to  return,  is  run  over  and  injured  by  a  car,  the  negligence 
of  the  parents  is  such  as  to  preelude  any  recovery  by  a  ehild,  where 
it  was  not  using  the  care  of  a  prudent  person.  (Mass.)  Cotter  ▼• 
Lynn  ete.  B^  B.  Co.,  267. 

Bee  Evidenee,  2. 


Bee  Highways;  Municipal  Corpovfttloiiai 

8UFFBAO& 

Bee  Eleetiona 

BUMMOmi 
Bee  Proeeea 
ItapOTTiMn,  sureaes  sf ,  liability  of,  572,  Nt. 

SanMm  are  favored  ih  law,  502. 

eonstruotion  of  tnles  relating  to  the  liability  ^  6M. 
duties  of  principals^  changes  in  for  which  may  be  made 

abU,  502-507. 
liability  of  for  moneys  lost  to  their  principal  without  his  fanlt^ 
516-52S. 


lOU  IllBBZ. 

Sureties  may  stand  oa  the  striet  tenns  of  their  obligatioa,  608L 
en  official  bonds  where  the  same  person  holds  two  or  more 
608,  509. 

8ee  Official  BondSp 


8WAMP  LAND& 
Bee  Pablie  Lands. 

TAZATIOK. 

1«  TAZATIOKy  DOUBLE  —  What  is  not.—  A  statute  requiriii 
persons  loping  and  using  wheeled  vehicles  in  a  city  to  pay  a  ta: 
for  that  inriTilege,  such  tax,  when  collected,  to  be  appropriated  as 
dnsively  for  repairing  and  improving  streets,  does  not  aathoria 
double  taxation,  though  snch  property  is  also  assessed  in  proportioi 
to  its  value,  and  a  tax  levied  thereon.  The  tax  thus  authorised  t< 
be  impofiod  by  the  city  is  in  the  nature  of  a  toll  for  the  use  of  it 
improved  streets.     (Ark.)    Fort  Smith  v.  Scruggs,  100. 

2.  TAX  TITLE— Who  may  Acquire.— One  who  is  under  no  obliga 
tion  to  pay  taxes  may  strengthen  his  title  to  lands  by  purchasing  a1 
a  tax  sale.  Hence,  if  he  is  in  possession  as  grantee  of  the  owner  oi 
a  life  estate  under  a  conveyance  purporting  to  convey  in  fee,  and  is 
holding  adversely  to  the  remaindermen,  he  may  purchase  and  asserl 
an  outstanding  tax  title,  created  when  he  was  not  in  possession  and 
was  under  no  obligation  to  pay  taxea  (Ark.)  McFarlane  v*  Qroberj 
84. 

See  Municipal  Corporations,  15,  10. 

• 

Tax  Collectors,  sureties  of,  liability  of  for  failure  to  collect,  552. 

sureties  of,  liability  of  for  failure  to  pay  over  proceeds  of  col* 

lections,  552,  553.  ' 

sureties  of,  liability  of  for  seizure  of  exempt  property,  552. 
sureties  of,  liability  of  for  taxes  illegally  levied  or  collected,  55^ 
sureties  of,  liability  of  for  taxes  unconstitutionally  levied,  554:^. 

TELEOSAFHS  AND  TELEPHONES. 

1.  TELEGBAFH  COMPANIES  —  Delay  In  Delivery  —  Person  In- 
jured.—The  sender  of  a  telegrsph  message  is  a  person  aggrieved 
by  negligent  delay  in  its  transmission  and  delivery.  (Tenn.)  Qray 
▼.  Telegrapii  Co.,  706. 

2.  TELEOBAPH  COMPANIES— Interstate  Commerce- Delay  in. 
Delivery  of  Messages.- A  statute  enforcing  the  prompt  delivery  of 
telegraph  messages  and  making  tho  company  guilty  of  a  misde- 
meanor and  liable  in  damages  for  a  failure  to  deliver  messages 
promptly,  is  not  an  unlawful  interference  with  interstate  commerce 
when  applied  to  messages  sent  from  one  state  for  delivery  in  the 
state  enacting  such  statute.     (Tenn.)     Gray  v.  Telegraph  Co.,  706. 

8.  TELEGRAPH  COMPANIES— Becovery  for  Mental  Anguish- 
Conflict  of  Laws.- The  sender  of  a  telegraph  message  from  one  state 
to  a  point  in  another  state  may  recover  in  the  latter  state  for  mental 
anguish  suffered  through  negUgent  delay  in  the  delivery  of  the  mes- 
sage, when  such  recovery  is  authorized  by  the  statutes  of  that  state, 
although  in  the  state  from  which  the  message  was  sent  no  recovery 
ean  be  had  for  mental  anguish.    (Tenn.)     Gray  v<  Telegraph  Co.,  706^ 


TEI^OBAPH  OOBCPAXnBS  —  IMllv«nr  of  OlMek  to  Wron^p: 
.^  W..01I— Iimoceiit  Pnrdiaser.— If  a  telegraph  eompany,  upon  an  or- 
der, iflsnef  and  delivert  its  check  to  the  wrong  person  by  miatake^ 
it  is  liable  thereon  to  an  innocent  purchaser  who  takes  the  check 
from,  the  holder  upon  his  indorsement.  It  is  presumed  in  favor 
o^  0ucb  purchaser  that  the  indorser  is  the  payee  intended,  especially^ 
-wl&eii.  the  purchaser  has  identified  him  as  the  person  to  whom  the- 
ebeelc  was  deliyered  as  payee.  (Minn.)  Burrows  ▼•  Western  Uniom 
Tel.  Co.,  880. 

Telaiffrapli  Oorporations,  conflict  of  laws  as  to  measora  of  damages  ink 
actions  agains^  725,  726. 

I 

TBNAKCnr  ZN  OOBOCON. 
See  Mines  and  Minerals 


Bee  Principal  and  Agent,  8» 


060  Confusion  of  €k>ods;  Troyer  and  Converaloa. 

TITIiE  OF  STATUTES. 

See  Statutes,  1-6* 

Torti^  conflict  of  laws  as  to  measure  of  damages  in  actions  founded^ 
upon,  726-728. 

See  Infants. 

TRADES  XTNIOK. 
See  Constitutional  Law,  8;  Stateii^  6. 


See  Constitutional  Law,  5. 

Treasurers,  county,  false  reports  of,  liability  of  sureties  for.  656^ 

reports  of,  failure  to  make,  is  a  breach  of  their  oflcial  bond,  SSBL 
reports  of,  failure  to  make,  is  not  the  proximate  cause  of  subse- 
quent embezzlements,  555. 
sureties  of,  estoppel  of  to  urge  that  moneys  were  raised  or  col*^ 

lected  without  authority,  560. 
sureties  of,  liability  of  for  duties  imposed  after  the  execution  of 

their  bond,  561. 
sureties  of,  liability  of  for  failure  to  make  reports  and  for  false 

reports,  555,  556. 
sureties  of,  liability  of  for  funds  improperly  raised  or  collected^ 

558,  559. 
sureties  of,  liability  of  for  funds  not  actually  received,  560. 
sureties  of,  liability  of  for  misappropriation  of  funds  other  than- 

public,  558. 
sureties  of,  liability  of  for  misappropriation  of  moneys  received 

without  legal  authority,  558. 


1016  Itobx. 

TCxnMWtvn,  oonnty,  Bureties  of,  Habilitj  of  for  misapproprlatioa   of 
pnblio  moneys^  557. 
sureties  ct,  liabUfty  of  for  noneys  deposited  in  hnnk,  561,  602. 
sureties  of,  liability  of  for  ps3rmeiit  of  illegal  iffarraats,  556. 
sureties  of,  liability  of  for  refusal  to  pay  legal  warrants^  550. 
sureties  of,  liability  of  for  the  improper  iBsuiug  of  tax  raee&pti^ 
657. 

TBE8PASS. 

1«  TBESPA88.— Any  Wrongful  Intrusion  upon  the  right  of  am- 
0ther  is-  both  an  injury  and  a  damage,  and  is  a  proper  snbjeot  for 
legal  redresa     (Wis.)     Diana  Shootii^  Club  ▼.  Lamoretoi^  898. 

2.  TBE8PASS— Hunting.— Any  wrongful  intrusion  upon  the 
right  to  use  land  for  fishing  and  huntiI^'  is  aetionable^  no  matter 
as  to  tho  amount  of  damages  caused  by  such  invasion.  (Wis.)  I>ijuui 
Shooting  Club  y.  Lamoreuz,  898. 

8.  TBE8PASS.— State  Idcense  to  Hunt  confers  no  right  upon  tbe 
holder  to  go  upon  private  lands  without  the  permission  of  the  owner. 
(Wis.)    Diana  Shooting  dub  ▼•  LamoreoaEy  898. 


1.  TBIAJ#»— ZnAtmetions  need  not  be  given  when  there  ia  no  ori- 
dence  upon  which  to  base  them.  (Utah)  Downey  ▼•  Gemini  Min. 
Co.,  798. 

2.  JUBY  TBIAIfc— Abstract  Instmctlons,  not  Snppoxted  bj  tbm 
Bvidence,  are  Brroneons,  and  require  a  reversal,  as  where  the  jury  la 
charged  that  they  should  find  against  a  railway  corporation,  if  Ito 
agent  used  toward  or  to  a  plaintiff,  or  in  her  hearing,  any  proteae^ 
obscene,  or  boisterous  language,  which  insulted  her  or  injured  her 
feelings,  when  there  is  no  evidence  of  the  use  of  any  such  language. 
(Ark.)     St.  Louis  etc.  By.  Co.  v.  Wilson,  74. 

3.  JUBT  TBTATi,— An  instruction  cannot  be  regarded  as  erroneous 
and  entitling  the  appellant  to  a  reversal  of  the  judgment  or  to  a  new 
trial,  because  it  states  some  of  the  material  facts  and  omits  others^ 
if,  taken  in  connection  with  other  instructioniL  the  whole  of  the  law 
and  the  facts  were  sufficiently  disclosed.  (Ind.  App.)  Pittsburgh 
etc  By.  Co.  v.  Parish,  120. 

4.  JUBY  TBIAL.— Argumentative  InstmctionB  are  properly  re- 
fused.    (Ala.)'    Campbell  v.  State^  17. 

5.  JUBY  TBIAL— Instructions  not  Applicable  to  tbe  Bwidanee.— 

An  instruction  that  if  the  jury  find  that  one  under  whom  the  de- 
fendant claims  held  actual,  continuous,  adverse,  and  nnintempted 
possession  for  more  than  ten  years  before  the  commeneement  of  the 
suit,  the  verdict  should  be  for  the  defendant,  is  abstract,  and  con* 
atitutes  reversible  error,  when  there  is  no  evidence  of  such  a  holding^ 
and  the  undisputed  testimony  shows  that  the  lands  were  wild  and  on* 
occupied.     (Ark.)    Bust  Land  etc  Co.  v.  Isom,  68. 

6.  JUBY  TBIAIr— Instmctions  not  Technically  bnt  SabitantiaQj 
Acenrate.-— Though  the  trial  court  instructed  the  jury  that  they, 
fihould  allow  interest  from  the  date  of  the  injury  to  the  date  A 
the  vMrdict  in  estin»ting  the  amount  of  damages,  when  it  skould 
have  instructed  them  that  they  should  take  into  account  the  lapse 
of  time  and  put  plaintiff  in  as  good  position  as  if  the  damage  had 
been  paid  immediately,  a  new  trial  will  not  be  granted  if  there  Is. 
nothing  to  indicate  that  the  defendant  was  injured  hy  the  instrte* 
tion.     (Mass.)     Ainsworth  v.  Lakin,  814. 


7.  TBZAXi  —  4B0rtlaii  tor  Jary.— A  p«e  isne  «^  ffeMft  ttrart  be 
•nbmitted  to  the  jury,  and  it  im  rtvercible  erres  fiv  the  eowi  te  tele 
tlia  qnestien  thus  iBT<dyed  awi^  from  aad  direit  the  TWdist.  (Min*)^ 
Mm^owx  ▼•  Fiiemaa't  Faad  lae.  Ooiy  870. 

See  Criminal  Law. 

TBOVEB  AVD  OONVBlUnOir. 

CPOarVBBnOH  of  BTAHDIKO  TIMBEB— Demagee.— if  one 
imder  tile  mfitaken  idea  that  standing  timber  is  his,  converts  it  into 
•eordwvo^  the  measore  of  damages  is  tne  yalne  of  the  timber  standiagi 
•(Wlanii.)    (Siapi^  ▼.  Pngei  Scnnd  Bednetioa  Co.,  820. 

See  Oonfnsion  of  (JoodsL 

TEUWS. 

1.  umTATIOK  or  ACTIONS  Against  Trust  — The  role 
tliat  the  stable  ^  ttmHations  does  not  bar  a  tntst  estate  holds  only 
between  the  trustee  and  eestni  que  trast,  and  not  as  between  sueh 
parties  on  one  side  and  strangers  on  the  other.  (Utah)  Jenhins  ▼• 
788. 
UMITATIOir  or  ACTIONS  —  Trustee  and  Minor  Cestui  4a« 

k— Whenever  the  right  of  action  in  a  trustee'  is  barred  by  the 

•tatvte  of  limitations,  the  right  of  a  minor  cestui  que  trust  represented 
1)7  1dm  ie  also  barred.    (Utah)    Jenkins  ▼.  Jensen,. 788. 

'ONDUE  mrLUENCE. 
See  Deeds. 

USXTBY. 

USCBY— Sabterfnge.— Usnry  is  a  Moral  Taint  Wherever  it 
«d0ts.  and  no  subterfuge  should  be  permitted  to  conceal  it  from  the 
«yes  of  the  law.    (Or.)    Pacific  States  Savings  etc  Co.  ▼.  Hill,  477. 

Vsnzy,  agreement  to  pay  higher  interest  upon  default,  whethev  of* 
fends  law  against,  588,  689. 
place  of  payment,  when  does  not  contVol  question  of,  48i» 

flee  Building  and  Loan  AssociatJonai 

VACCINATIOir. 

See  Health. 

VSNDOB  AND  VHNDBB. 

1.  VENDOB  AND  VENDBE— Covenant  for  Title  When  Applies 
to  the  Time  of  Conveying  Bather  than  to  that  of  the  Contraet  of  Sale. 
If  a  contract  for  the  sale  of  real  property  provides  for  the  payment 
4if  nart  of  the  purchase  price  at  a  subsequent  date.,  and  that  thereupon 
the  vendor  will  convey  ''a  good  and  clear  title  fre6  from  all  enjjim- 
brances,"  the  vendor  is  answerable  for  any  encumbrance  or  failure 
4%t  title  arisinc  after  the  sale  and  before  the  making  of  the  deed, 
thouffh  not  due  to  his  fault,  as  where  part  of  the  property  is  taken  for 
a  pubUc  dtreet.    (Masa)    Kares  v.  CoveU,  271. 


1018  iMDMX. 

%    yBMDOB   AMD    VBMDEB— Partial  Fallim  of  nOm  

AfUr  tiM  Ckmtnet  of  PucIumo  Wm  ICado.— Thon^  wboa  a  

^  tnet  to  eoATOX  ^  made,  the  yendor'a  titie  ia  perfeety  yet  If  afterwai4 
part  of  the  property  is  lost  to  him  by  being  taken  for  the  widosiBf 
of  a  street,  the  vendee  may  recover  damages  for  the  part  thaa  take% 
if  the  vendor  eovenanted  to  eonvey  a  good  title  free  from  all  ea- 
enmbraneea    (Mass.)    Kares  v.  Covell,  271. 

S.  VBMDOB  AMD  VENDEE  —  Partial  Failiiro  of  Title.  —  If  a 
vendor  eannot  eonvey  all  of  the  property  aeeording  to  hla  eontracV 
there  is  a  partial  failure  of  consideration,  for  which  the  vendeo  may^ 
at  his  election,  hold  the  vendor  liable  in  damages^  or  reaeind  mad 
recover  the  purchase  price,  if  the  parties  can  be  put  la  state  msL 
(MaM.)    Kares  v.  CoveU,  271. 

VOTZNO. 

See  Elections. 

Wairaiity  Implied  on  the  sale  of  goods  hj  deaeriptiony  %S» 

Bee  Insurance';  Bales, 

WATEB8  AND  WAXESOODSfiB& 

WATEB8  AND  WATEBOOUBSBS— Btatota  of  XdmltatioiM.— 

Although  an  artificial  condition  of  water  may,  by  prescriptive  righV 
become  a  natural  condition  as  regards  public  nghts,  yet  this  ia 
not  80  in  the  absence  of  elements  necessary  to  chainge  the  title  te 
the  lands  by  operation  of  the  statute  of  limitationsL  (Wla.)  Diaaa 
Shooting  Club  v.  Lamoreuz,  898. 

See  Municipal  Corporations;  Navigable  Waters;  Public  Laada 
Wast^  by  a  cotenant  of  a  mine,  what  constitutes^  809.   * 


1.  WILLS.— A  Devise  to  Nephews  does  not  Incliido  grandnophewa^ 
unless  there  is  something  in  the  context  to  show  that  the  testator  in- 
tended to  include  them,  or  there  is  such  an  ambigoity  aa  to  aa* 
thorize  extrinsic  evidence  for  the  purpose  of  showing  that  the  grand- 
nephews  were  intended  to  be  included.  (Iowa)  Downing  v.  Niehol- 
son,  175. 

2.  WILLS  — Devlae  to  Glass  —  OonstmetiOB  of.  —  Since  a  -wiUt 
speaks  from  the  date  of  the  testator's  death,  the  membora  of  a 
class,  where  there  is  a  devise  to  a  class,  must,  prima  facie,  be  de- 
termined upon  the  death  of  the  testator.  If,  howevw,  the  will  in- 
dicates a  contrary  intent,  that  intent  will  be  adopted  and  given 
effect.     (Iowa)'    Downing  v.  Nicholson,  175. 

3.  WILLS.— A  Devise  to  a  Class,  One  of  tbo  Members  of  WUdi  la 
Dead  When  the  Will  Is  Executed,  cannot  operate  for  the  benefit  of 
his  heirs,  though  the  statute  of  the  state  declares  that  if  a  devisee 
dies  before  the  testator,  his  heirs  shall  inherit  the  property  devised 
to  him,  unless,  from  the  terms  of  the  will,  a  contrary  intent  ia 
manifest.  Therefore,  a  devise  to  the  testator's  nephews  and  niecea 
cannot  benefit  a  son  of  a  niece  who  died  long  before  the  will  was  made^ 
(Iowa.)     Downing  v.  Nicholson,  175. 

4.  WILIA— Devise  to  a  Class,  Whether  AlTected  by  Statute  Pro* 
Tiding  that  Heirs  of  a  Deceased  Devlaae  ICay  Xnlierit  Bis  Share.— 
As  a  general  rule,  a  statute  providing  that  if  a  deviaee  dies  before 


101» 

^^e  testator,  Ui  keirt  |]i]i«rit  the  Froperty,  udMi  *  eoiitnury  intent 
mppenn  from  the  will,  Applies  to  devliee  to  »  elan  as  wcil  as  to* 
^e^isen  where  the  deyisees  are  speeiaUj  named.*  (loira)  Downing 
^.  Nieliolson,  175.  « 

6»  "WHiLS  —  OancttUatlon.— A  written  declaration  signed  by  tho 
^entator  that  ''this  will  is  null  and  Yoid/'  following  his  signatory 
-to  an  instmment,  otherwise  perfect  as  his  wilL  together  with  his 
ae«1aration  that  he  had  "defaced"  and  "hilled''  such  wilL  is  soffl- 
eient  to  cancel  and  revoke  it,  although  the  testator  kept  it  In  hi» 
poasession  in  a  locked  drawer,  and  in  such  condition,  nntil  his  death* 
<Teiiii.y    Billington  ▼.  Jones^  751. 

'WfUfl^  revocation  of  bj  nnattested  indorsements  npoiii  754. 

8eeDeeda 


1.  WITNESS— Testimony  Against  a  Deeoased  Parson.— Under  a 

■tatnte  prohibiting  a  person  from  being  examined  as  a  witness  as  t» 
any  transaction  between  him  and  a  decedent  against  an  executor,  ad- 
ministrator, or  next  of  kin,  or  other  survivor,  such  person  may  b» 
examined  as  to  a  conversation  between  decedent  and  another  persoa 
oecnrring  in  the  presence  of  the  witness,  but  in  which  he  did  not  par- 
ticipate.   (Iowa)    Hallow  v.  Walker,   158. 

2.  ATT0BNE7  AND  GUENT— Oonfidenlial  CkmmimiioatiODS. — 
If  an  attorney 'r  services  in  a  transaction  are  rendered  to  several 
persons,  confidential  communications  to  him  in  regard  thereto,  in 
Trhieh  all  such  persons  are  interested,  cannot  be  disclosed,  unlesa 
all  join  in  consenting  thereto.     (Wis.)     Herman  v.  Schlesinger,  922.. 

3.  ATTOBNET  AND  CLIENT— Oonfldential  Oommunlcations.— 
The  successor  of  a  person  acting  in  a  repreeentative  capacity,  such 
as  an  assignee^  cannot  waive  the  privilege  of  his  predecessor  as  to* 
secrecy  in  regard  to  privileged  communications  made  by  the  latter 
to  his  attorney  while  he  is  in  office.     (Wis.)     Herman  v.  Schlesinger^ 


L  ATTORNEY  AND  OUENT— Privileged  Ctommunlcatlons.— A 
dient,  by  procuring  his  attorney  to  sign,  as  a  subscribing  witness,, 
an  instrument  evidenciug  an  agreement  or  transaction  between  such 
client  and  a  third  person,  in  the  making  of  which  and  reduction 
whereof  to  writing  such  attorney  served  such  client  in  his  pro- 
f essionsl  capacity,  does  not  waive  his  privilege  of  secrecy  in  reispect 
to  confidential  communications  made  during  the  preparation  of  tho 
instrument  or  agreement.     (Wis.)     Herman  v.  Schlesinger,  922. 

5.  ATTOBNET  AND  CLIENT— Confidential  Commmiications.— 
The  privilege  of  confidential  communications  between  attorney  and* 
client  does  not  extend  to  the  question  whether,  in  the  preparation 
of  k  cause  for  trial,  the  client  was  interrogated  as  to  his  knowledge- 
respecting  the  matters  involved,  and  the  questions  and  answers 
thereto  reduced  to  writing,  thus  enabling  the  attorney  to  know 
what  his  client  might  be  expected  to  testify  to.  (Wis.)  Herman  v.. 
Schlesinger,  922. 

6.  ATTOBNET  AND  CLIENT— Privileged  Commnnlcatlons— 
Third  Persons.— If  a  person  employs  an  attorney  in  his  professionaF 
capacity  in  a  transaction  between  such  person  and  another,  tlie- 
sttomey  is  not  privileged  from  disclosing  the  communications  which 
pass  between  him  and  the  third  person  in  regard  to  such  employment.. 
The  privilege  of  secrecy,  as  to  transactions  between  attorney  and 


IC^O  Index. 

client,  is  limited  to  emnmimicatioiiB  made  hj  tlie  latter  to  tfca  ft 
and  to  the  fomter'e  adviee  thereon,  in  the  eonrse  of  his  profaaaiinal 
emplo/meDt.    (Wie.)    Herman  t.  SeUeeingery  928. 

7.  WITNESSES.— A  Party  la  Bound  hy  the  Teettmony  of  his  own 
-witneae.  when  his  is  the  only  eyidenee  on  the  point  introdneed. 
<Wa8h.)    Ghappell  t.  Pnget  Soond  ete.  Co.,  820. 

8.  WXTJiiSSS-^Orogs-fgamtpatlon  for  the  Pnrpoae  of  ]>egrmdlng.— 
The  eonrt  ought  not^  on  cross-examination  of  a  witness*  permit  his 
past  life  to  be  ransacked  and  his  misdeeds  brought  before  the  juy 
for  the  purpose  of  disgracing  or  degrading  him  in  their  eyea.  (&  L) 
Kolb  ▼.  Union  B.  B.  Co.,  614. 

9.  •  WITNESS. — If  the  impeachment  of  a  proseenting  witness  is 
attempted  by  showing  eontndietory  statements  out  of  eourt,  the 
etate  may  show  that  prior  to  such  statements  he  made  others  eon* 
mstent  with  his  testimony  at  the  Mat  (a  Dah.)  State  t.  Okddy, 
€66. 

10.  nCFEAOBXKO  BT  BVIDBNOB  of  Spedflc  Acts  «f  '^"■^fr^Ttr* 
and  of  Oeneral  BepittatioiL— Specific  acts  of  miseendnet  eonunitied 
by  a  witness  who  is  a  party  to  a  suit  may  be  shown  where  the  net 
has  some  relation  to,  or  some  bearing  upon,  an  issue  inyolred  in  the 
casCy  and  his  general  reputation  as  to  the  par€ieolar  trait  of  ehai^ 
acter  inyolved  may  also  be  shown.  <B.  L)  Kolb  ▼•  UnioA  B»  B. 
<io.,  614. 

11.  WITNESS— Impeaching  by  Showing  Wast  of  Chastity. — In  ■■ 
«ctlon  by  an  administratrix  of  a  decedent  as  his  widow  aad 
for  the  benefit  of  his  minor  children  to  reeoyer  for  his  death 
by  the  defendant's  negligence,  it  is  error  to  require  her  to 
whether  she  had  borne  an  illegitimate  child  since  his  death. 
•eYidence  is  not  admissible  for  the  purpose  of  impeaching  her, 
for  any  othw  purpose  is  immateriaL    (B.  L)    Kolb  t.  Union  B.  B. 
Co^  614. 

Witness^  absent,  evidence  of  at  a  former  trial,  when  admiastUe  at 

a  subsequent,  195. 
at  a  former  trial,  eyidenee  of,  when  admissible  in  a  different 

suit,  197-200. 
eross-examination  of,  failure  to  make  does  not  prevent  testiBUMiy 

from  being  admissible  on  a  second  trial,  200,  201. 
deceased,  evidence  of  at  a  former  trial,  when  admissihls  in  a 

subsequent,  198,  194. 
deceased,  evidence  of  at  a  subsequent  trial,  against  whom  may 

be  admitted,  202. 
•videnee   of   death,   absence,   or   disability,  what   snJBeient  te 

sustain  reception  of  evidence  at  a  second  trial,  203. 
identity  of  issue  which  will  render  competent  in  one  proceeding 

evidence  tahen  in  another,  197-200. 
incompetent,  evidence  of  at  a  former  trial,  when  admiaihle  at  a 

•ttbseqnsi^  IMg  195. 

See  Bridenesb 


^851' 


>