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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. 



! The American State Reports. 







ooiiTAiiiiiie turn 










L4W Poaununa amb Law BooKnuna. 


Copyright, 1906 



8ak Fkakcxsgo: 

Thb VttMmtL BKOTRms BLBcniorvTB CoirPA.irY, 

TvpoomAFHnui akd amtBcymms. 


VOIiUMB 91. 


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 




Vol. 116. 




Vol. 180. 


Vol. 86. 




Vol. 67. 


Vol. 40. 


Vol. 23. 


Vol. 15. " 


Vol. 108. 




Vol. 27. 


VoL 114. 






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; 


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) 

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| 


(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 


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> 

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. 


TOL. 91. 


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 


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.«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 








[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- 

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 


[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. 


[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 

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. 


[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 

^'^ 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 

BeTersed and remanded. 


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, 


[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. 


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


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 

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 

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^ 


[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. 

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 

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. 

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 


[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., 

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. 


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. 


[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- 

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

^"^ 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 

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- 

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« 





^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 

^ 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. 


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- 

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. 


[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- 

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. 



[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 la ngu age, 
(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- 

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. 


[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 


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 

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. 


[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 

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 

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 

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. 


[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. 





[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- 


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 

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. 


[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- 

*•• 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 

*^^ 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^ 


[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. 

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- 

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, 

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. 

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. 






[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 


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 

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. 



[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 


[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. 

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 

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, 


[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. 

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- 

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. 


{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 


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. 


[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 

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 


[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 

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. 


[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- 

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 

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. 





[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 


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 

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. 


[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. 

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- 

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. 



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. £. 

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 


[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: 


"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 


"To Hall & Bobinson, Kansas City, Mo/' 

This draft was indoreed thus : "Pay to First National Bank 
rf Marion, or order. 


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, 

"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. 


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. 


[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 

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. 


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- 

















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 

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 

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 

''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«« i t, - 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 

"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 

"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 


"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 

"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. 



[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 

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 

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. 

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. ^^ 


[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 

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 

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- 

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 


[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.) 

HA BE AS 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. 

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- 

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 

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 

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. 





[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 


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. 


[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 


^® 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. 


[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 


[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. 


[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. 


[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- 

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 


[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 

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. 


[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 

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. 


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 


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 

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- 

4. Illustrations of Jtstiileation Where Crime has Imsb 


5. Partial J^istifieation. 

6. Must Confess the Use of the Defamatory Weeis 

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 Pro s e cuti ons. 

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- 

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. 


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. 

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» 


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» 

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^ 

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. 

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. 


[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. 



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 

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 


[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, 

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- 

^^ 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. 

314 American State Reports^ Vol. 91. [Mattu 

[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 

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. 


[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 

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* 


[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. 

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. 


[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 

It was also contended that the provisions of section 14 were 

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. 

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. 






[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 


[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. 


[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* 

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 

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 



[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. 

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. 


[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 


**^ 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 

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- 

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 


[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 

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 

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. 

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. 


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 


[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. 

Brown ft Kerr and Y. Steama^ for tie appellant. 

McGiffert ft Hunter and Baldwin ft Baldwin, for the re* 

^^^ 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 

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 

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 certai