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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" and the "American reports" decided in the courts of last resort of the several states"

i ' 



-I 



iibrar/ 

IRVINE 




THE LffiRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

IRVINE 

GIFT OF 



J. A. C. Grant 



«*Ao\vS>. Bte^Ja\>^WA\c 



Digitized by the Internet Archive 

in 2007 with funding from 

IVIicrosoft Corporation 



http://www.archive.org/details/americanstaterep11 5f reeiala 



THE 



American State Reports, 



CONTAINING THE 



CASES OF GENERAL VALUE AND AUTHORITY 



SL^SEQUENT TO THOSE CONTAINED IN THE "AMERICAN 
DECISIONS" AND THE "AMERICAN REPORTS," 

DECIDED IN THE 

COURTS OF LAST RESORT 



OF THE SEVERAL STATES. 



SELECTED, EEPOETED, AND ANNOTATED 



By A. C. FREEMAN. 



VOLUME 115, 



SAN FRANCISCO: 

BANCROFT- WHITNEY COMPANY, 

Law Publishers and Law Booksellers. 

1007. 



V, I IS 



Copyright, 1907. 

BY 

BANCROFT-WHITNEY COMPANY. 



San Francisco: 

Tkb Filmer Brothers Electrotype Company, 

Typographers and SStereotypers. 



AMERICAN STATE REPORTS. 

VOLUME 115. 





SCHEDULE 






showing the ori^nal 


volumes of reports in which the cases 


herein selected and re-reported 


may be found, 


and the pages 


of this voliime devoted to each state. 














PAGE. 


Arkansas Reports 


. 


Vol. 78. 




17- 63 


Georgia Reports . 




. . 


Vol. 126. 




64-131 


Illinois Reports . 


. 


. 


Vol. 224. 




132-172 


Kansas Reports . 




. 


Vol. 72. 




173-240 


Ejentucky Reports 






Vol. 119. 




241-294 


Maine Reports . . 






Vol. 101. 




295-342 


Maryland Reports . 






Vol. 103. 




343-387 


Michigan Reports . 






Vol. 144. 




388-471 


Missouri Reports 






Vol. 198. 




472-509 


Montana Reports . 






Vol. 34. 




510-558 


Nebraska Reports 






Vol. 71. 




559-623 


New Jersey Equity R 


EPORTS . 


Vol. 69. 




624-635 


North Carolina Repc 


)RTS . . 


Vols. 137,141, 


142. 


636-762 


Tennessee Reports . 


• • • 


Vol. 116. 




763-837 


Virginia Reports . 


• • • 


Vol. 105. 




838-896 


West Virginia Repoi 


RTS . . 


Vol. 59. 




897-954 


Wisconsin Reports . 


• • 


Vols. 125,127. 




955-1081 






(3) 







SCHEDULE 



SHOWING IN WHAT VOLUMES OF THIS SERIES THE CASES 

BEPOBTED IN THE SEVERAL VOLUMES OF OFFICIAL 

BEPORTS MAY BE FOUND. 



Btat« reports are In parentbeaee, and the numbers of thU aerlea In bold-faced fl^nrea 



ALABAMA.— (83) 3; (84) 5; (85) 7; (86) 11; (87) 13; (88) 16; (89) 
18; (90, 91) 24; (92) 25; (93) 30; (94) 33; (95) 36; (96, 97) 38; 
(98) 39; (99) 42; (100, 101) 46; (102) 48; (103) 49; (104, 105) 
63; (106, 107, lOS) 64; (109, 110) 65; (111) 66; (112) 57; (113) 
59; (114) 62; (115, 116) 67; (118, 119) 72; (120) 74; a21) 77; 
(122, 123, 124, 125) 82; (126, 127) 85; (128) 86; (129) 87; (130) 
89; (131, 132) 90; (133) 91; (134) 92; (135) 93; (136) 96; (137) 
97; (138) 100; (139) 101; (140) 103; (141) 109; (142) 110; (143) 
111; (144) 113. 

ARKANSAS.— (48) 3; (49) 4; (50) 7; (51) 14; (52) 20; (53) 22; (54) 
26; (55) 29; (56) 36; (57) 38; (58) 41; (59) 43; (60) 46; (61, 62) 
64; (63) 68; (64) 62; (65) 67; (66) 74; (67) 77; (68) 82; (69) 86; 
(70) 91; (71) 100; (72) 105; (73) 108; (74) 109; (75) 112; 
(76, 77) 113; (78) 115. 

CALIFORNIA.— (72) 1; (73) 2; (74) 6; (75) 7; (76) 9; (77) 11; (78, 
79) 12; (80) 13; (81) 16; (82) 16; (83) 17; (84) 18; (85) 20; (86) 
21; (87, 88) 22; (89) 23; (90, 91) 25; (92, 93) 27; (94) 28; (95) 
29; (96) 31; (97) 33; (98) 35; (99) 37; (100) 38; (101) 40; (102) 
41; (103) 42; (104) 43; (105) i5; (106) 46; (107) 48; (108) 49; 
(109) 50; (110, 111) 52; (112) 63; (113) 64; (114) 65; (115) 
66; (116) 68; (117) 59; (118) 62; (119) 63; (120) 65; (121) 66; 
(122) 68; (123) 69; (124) 71; (125) 73; (126) 77; (127) 78; (12S, 
129) 79; (130) 80; (131) 82; (132) 84; (133) 86; (134) 86; (135) 
87; (136) 89; (137) 92; (138) 94; (139) 96; (140) 98; (141) 99; 
(142) 100; (143) 101; (144) 103; (145) 104; (146) 106; (147) 109; 
(148) 113. 

COLORADO.- (10) 3; (11) 7; (12) 13; (13) 16; (14) 20; (15) 22; 
(16) 26; (17) 31; (18) 36; (19) 41; (20) 46; (21) 62; (22) 66; 
(23) 68; (24) 66; (25) 71; (26) 77; (27) 83; (28) 89; (29) 93; 
(30) 97; (31) 102; (32) 105; (33) 108; (34) 114. 

CONNECTICUT.— (54) 1; (55) 3; (56) 7; (57) 14; (58) 18; (59) 21; 
(60) 26; (61) 29; (62) 36; (63) 38; (64) 42; (65) 48; (66) 50; 
(67) 62; (68) 67; (69) 61; (70) 66; (71) 71; (72) 77; (73) 84; 
(74) 92; (75) 96; (76) 100; (77) 107; (78) 112. 

DELAWARE.- (5 Houst.) 1; (6 Houst.) 22; (7 Houst.) 40; (9 Houat.) 
43; (1 Marv.) 66; (2 Marv.) 69; (1 Pennewill) 73; (2 Pennewill) 
82; (3 Pennewill) 94; (4 Pennewill) 103. 

FLORIDA.— (22) 1; (23) 11; (24) 12; (25, 26) 23; (27) 26; (28) 29; 
(29) 30; (30) 32; (31) 34; (32) 37; (33) 39; (34) 43; (35) 48; (36) 
61; (37) 63; (38) 66; (39) 63; (40) 74; (41) 79; (42) 89; (43) 
•99; (44) 103; (45, 46, 47) 110; (48, 49, 50) 111. 

GEORGIA.- (76) 2; (77) 4; (78) 6; (79) 11; (80, 81) 12; (82) 14; 
(83, 84) 20; (85) 21; (86) 22; (87) 27; (88) 30; (89) 32; (90) 35; 
(91, 92, 93) 44; (94) 47; (95, 96) 61; (97) 64; (98) 68; (99) 69; 

(4) 



SCHEDULK 5 

(100) 62; (101) 65: (102) 66; (103) 68; (104) 69; (105) 70; (106) 
71; (107) 73; (108) 75; (109) 77; (110, 111) 78; (112) 81; (113) 
84; (114) 88; (115) 90; (116) 94; (117) 97; (118) 98; (119) 100; 
(120) 102; (121) 104; (122) 106; (123) 107; (124) 110; (125) 
114; (126) 115. 

IDAHO.— (2) 35; (3, 4, 5) 95; (6) 96; (7) 97; (8) 101; (9) 108; (10) 
109; (11) 114. 

ILLINOIS.— (121) 2; (122) 3; (123) 5; (124) 7; (125) 8; (126) 9; 
(127) 11; (128) 15; (129) 16; (130) 17; (131) 19; (132) 22; (133, 
134) 23; (135) 25; (136) 29; (137) 31; (138, 139) 32; (140, 1411 
33; (142) 34; (143, 144, 145) 36; (146, 147) 37; (148) 39; (149, 
150) 41; (151) 42; (152) 43; (154) 45, (153, 155) 46; (156) 47; 
(157) 48; (158) 49; (159) 50; (160, 161) 52; (162) 53; (163) 54; 
(164, 165) 56; (166) 57; (167) 59; (168, 169) 61; (170) 62; (171) 
63; (172, 173) 64, (174) 66; (175) 67; (176) 68; (177, 178) 69; 
(179) 70; (180, 181) 72; (182) 74; (183, 184) 75; (185) 76; (186) 
78; (187) 79; (188) 80; (189) 82; (190) 83; (191, 192) 85; (193) 
86; (194, 195) 88; (196) 89; (197) 90; (198) 92; (199, 200), 93; 
(201) 94; (202) 95; (203) 96; (204, 205) 98; (206, 207) 99; (208) 
100; -(209) 101; (210) 102; (211, 212) 103; (213) 104; (214) 105; 
(215) 106; (216, 217) 108; (218, 219) 109; (220) 110; (221) 112; 
(222) 113; (223) 114; (224) 115. 

INDIANA.— (112) 2; (113) 3; (114) 5; (115) 7; (116) 9; (117, 118) 
10; (119) 12; (120, 121) 16; (122) 17; (123) 18; (124) 19; (125) 
21; (126, 127) 22; (128) 25; (129) 28; (130) 30; (131) 31; (132) 
32; (133) 36; (134) 39; (135) 41; (136) 43; (137) 45; (138) 46; 
(139) 47; (140) 49; (1, 2, 3 Ind. App.; 141) 50; (4, 5, 6 Ind. App.; 
142) 51; (7, 8 Ind. App.; 143) 52; (9, 10 Ind. App.) 53; (11 Ind. 
App.) 54; (13 Ind. App.; 144) 55; (14 Ind. App.) 56; (15 Ind. 
App.; 145) 57; (146) 58; (16 Ind. App.) 59; (17 Ind. App.) 60; 
(147, 148) 62; (18 Ind. App.; 149) 63; (150; 19 Ind. App.) 65; 
(20 Ind. App.) 67; (151) 68; (21 Ind. App.) 69; (152) 71; (22 
Ind. App.) 72; (153) 74; (23 Ind. App.; 154) 77; (24 Ind. App.) 
79; (155) 80; (25 Ind. App.) 81; (156) 83; (26 Ind. App.) 84; 
(157; 27 Ind. App.) 87; (28 Ind. App.) 91; (158) 92; (29 Ind. 
App.) 94; (159) 95; (30 Ind. App.) 96; (160) 98; (31 Ind. App.) 
99; (161) 100; (32 Ind. App.; 162) 102; (33 Ind. App.) 104; (163) 
106; (34 Ind. App.) 107; (164) 108; (35 Ind. App.) Ill; (165) 
112; (36 Ind. App.) 114. 

TOWA.— (72) 2; (73) 5; (74) 7; (75) 9; (76, 77) 14; (78) 16; (79) 
18; (80) 20; (81) 25; (82) 31; (83) 32; (84) 35; (85) 39; (86) 
41; (87) 43; (88) 45; (89, 90), 48; (91) 51; (92) 54; (93) 57; 
(94, 95) 58; (96, 97) 59; (98) 60; (99) 61; (100) 62; (101, 102) 
63; (1U3) 64; (104) 65; (105) 67; (106) 68; (107) 70; (108) 75; 
(109) 77; (110) 80; (111) 82; (112) 84; (113) 86; (114) 89; (115) 
91; (116) 93; (117) 94; (118) 96; (119) 97; (120) 98; (121) 100; 
(122, 123) 101; (124) 104; (125, 126) 106; (127) 109; (128) 111; 
(129) 113; (130) 114. 

KANSAS.- (37) 1; (38) 5; (39) 7; (40) 10; (41) 13; (42) 16; (43) 
19; ^44) 21; (,45) 23; (46) 26; (47) 27; (48) 30; (49) 33; (50) 
34; (51) 37; (52) 39; (53) 42; (54) 45; (55) 49; (56) 54; (57) 
57; (58) 62; (59) 68; (60) 72; (61) 78; (62) 84; (63) 88; (64) 
91; (65) 93; (66) 97; (67) 100; (68) 104; (69) 105; (70) .109; 
(71) 114; (72) 115. 

KENTUCKY.— (83, 84) 4; (85) 7; (86) 9; (87) 12; (88) 21; (89) 25; 
(90) 29; (91) 34; (92) 36; (93) 40; (94) 42; (95) 44; (96) 49; 
(97) 53; (98) 56; (99) 59; (100) 66; (101) 72; (102) 80; (103) 



6 SCHEDUIiS. 

82; (104) 84; (105) 88; (106) 90; (107) 92; (108) 94; (109) 95; 

(110) 96; (111) 98; (112) 99; (113) 101; (114) 102; (115) 103; 
(116) 105; (117, 118) 111; (119) 115. 

LOUISIANA.— (39 La. Ann.) 4; (40 La. Ann.) 8; (4i La. Ann.) 17; 
(42 La. Ann.) 21; (43 La. Ann.) 26; (44 La. Ann.) 32; (45 La. 
Ann.) 40; (46, 47 La. Ann.) 49; (48 La. Ann.) 55; (49 La. Ann.) 
62; (50 La, Ann.) 69; (51 La. Ann.) 72; (52 La. Ann.) 78; (104) 
81; (105) 83; (106) 87; (107) 90; (108) 92; (109) 94; (110) 98; 

(111) 100; (112, 113) 104; (114) 108; (115) 112; (116) 114. 
MAINE.— (79) 1; (80) 6; (81) 10; (82) 17; (83) 23; (84) 30; (85) 

35; (86) 41; (87) 47i (88) 51; (89) 56; (90) 60; (91) 64; (92) 

69; (93) 74; (94) 80; (95) 85; (96) 90; (97) 94; (98) 99; (99) 
105; (100) 109; (101) 115. 

MARYLAND.- (67) 1; (68) 6; (69) 9; (70) 14; (71) 17; (72) 20; 

(73) 26; (74) 28; (75) 32; (76) 35; (77) 39; (78) 44; (80) 45; 

(79) 47; (81) 48; (82) 51; (83) 55; (84) 57; (85) 60; (86) 63; 
(87) 67; (88) 71; (89) 73; (90) 78; (91) 80; (92) 84; (93) 86; 
(94) 89; (95) 93; (96) 94; (97) 99; (98) 103; (99) 105; (100) 108; 
(101) 109; (102)111; (103) 115. 

MASSACHUSETTS.— (145) 1; (146) 4; (147) 9; (148) 12; (149) 
14; (150) 15; (151) 21; (152) 23; (153) 25; (154) 26; (155) 31; 
(156) 32; (157) 34; (158) 35; (159) 38; (160) 39; (161) 42; (162) 
44; (163) 47; (164) 49; (165) 52; (166) 55; (167) 57; (168) 60; 
(169; 61; (170) 64; (171) 68; (172) 70; (173) 73; (174) 75; (175) 
78; (176) 79; (177) 83; (178) 86; (179) 88; (180) 91; (181) 92; 
(182) 94; (183) 97; (184) 100; (185) 102; (186) 104; (187) 105; 
(188) 108; (189) 109; (190) 112; (191) 114. 

MICHIGAN.— (60, 61) 1; (62) 4; (63) 6; (64, 65) 8; (66, 67) 11; (68, 
69, 75) 13; (70) 14; (71, 76) 15; (72, 73, 74) 16; (77, 78) 18; (79) 
19; (80) 20; (81, 82, 83) 21; (84) 22; (85, 86, 87) 24; (88) 26; 
(89) 28; (90, 91) 30; (92) 31; (93) 32; (94) 34; (95, 96) 35; (97) 
87; (98) 39; (99) 41; (100) 43; (101) 45; (102) 47; (103) 50; 
(104) 53; (105) 55; (106) 58; (107) 61; (108) 02; (109) 63; (110) 
64; (111) 66; (112, 113) 67; (114) 68; (115) 69; (116, 117) 72; 
(118) 74; (119) 75; (120) 77; (121, 122) 80; (123) 81; (124) 83; 
(125) 84; (126) 86; (127) 89; (128) 92; (129) 95; (130) 97; 
(131) 100; (132) 102; (133) 103; (134) 104; (135)106; (137) 109;' 
(138) 110; (139) 111; (136,140) 112; (141,142) 113; (143) 114; 
(144) 115. 

MINNESOTA.— (36) 1; (37) 5; (38) 8; (39, 40) 12; (41) 16; (42) 18; 
(43) 19; (44) 20; (45) 22; (46) 24; (47) 28; (48) 31; (49) 32; 
(50) 36; (51, 52) 38; (53) 39; (54) 40; (55) 43; (56) 45; (57) 
47; (58) 49; (59) 50; (60) 51; (61) 52; (62) 54; (63) 56; (64) 
58; (65) 60; (66) 61; (67, 68) 64; (69) 65; (70) 68; (71) 70; 
(72) 71; (73) 72; ^74) 73; (75) 74; (76, 77) 77; (78, 79) 79; 

(80) 81; (81, 82) 83; (83) 85; (84) 87; (85) 89; (86) 91; (87) 
94; (88) 97; (89) 99; (90) 101; (91) 103; (92) 104; (93) 106; 
(94) 110; (95) 111; (96) 113; (97), 114. 

MISSISSIPPI.— (65) 7; (66) 14; (67) 19; (68) 24; (69) SO; (70) 35; 

(71) 42; (72) 48; (73) 55; (74) 60; (75) 65; (76) 71; (77) 78; 

(78) 84; (79) 89; (80) 92; (81) 95; (82) 100; (83) 102; (84) 105; 

(85) 107; (86) 109; (87) 112. 
MISSOURI.- (92) 1; (93) 3; (94) 4; (95) 6; (96) 9; (97) 10; (98) 

14; (99) 17; (100) 18; (101) 20; (102) 22; (103) 23; (104, 105) 

24; (106) 27; (107) 28; (108, 109) 32; (110, 111) 33; (112) 34; 

(113, 114) 35; (115) 37; (116, 117) 38; (118) 40; (119, 120) 41; 



SCHEDULB. 1 

(121) 42; (122) 43; (123) 45; (124, 125) 46; (126) 47; (127) 48; 
(128) 49; (129) 50; (130) 51; (131) 52; (132) 53; (133) 54; (134) 
56; (135, 136) :8; (137) 59; (138) 60; (139) 61; (140) 62; (141, 
142) 64; (143) 65; (144) 66; (145) 68; (146) 69; (147, 148) 71; 
(149, 150) 73; (151^ 74; (152) 75; (153, 154) 77; (155) 78; (156) 
79; (157) 80; (158, 159) 81; (160) 83; (161) 84; (162, 163) 85; 
(164) 86; (165) 88; (166) 89; (167, 168) 90; (169) 92; (170, 171) 
94; (172) 95; 073) 96; (174, 175) 97; (176) 98; (177) 99; (178, 
179) 101; (180, 181, 182) 103; (183. 184, 185, 186) 105; (187) 106: 
(188, 189) 107; (190, 191) 109; (192) 111; (193, 194) 112; (195, 
196) 113; (197) 114; (198) 115. 

MONTANA.— (9) 18; (10) 24; (11) 28; (12) S3; (13) 40; (14) 43; 
(15) 48; (16) 50; (17) 52; (18) 56; n9) 61; (20) 63; (21) 69: 
(22) 74; (23) 75; (24) 81; (25) 87; (26> 91; (27) 94; (28) 98; 
(29) 101; (30) 104; (31) 107; (32) 108; (33) 114; (34) 115. 

NEBRASKA.— (22) 3; (23, 24) 8; (25) 13; (26) 18; (27) 20; (28, 29) 
26; (30) 27- (31) 28; ^32, 33) 29; (34) ??; (35) 37; (36) i8; 
(37) 40; (38) 41; (39, 40) 42; (41) 43; (42, 43) 47; (44) 48; 
(45, 46) 50; (47) 53; (47, 48) 58; (49) 59; (50) 61; (51, 52) 
66; (53) 68; (54) 69; (55) 70; (56) 71; (57) 73: (58) 76; (59) 
80; (60) 83; (61) 87; (62) 89; (63) 93; (64) 97; (65) 101; (66) 
103; (67) 108; (68) 110; (69) 111; (70) 113; (71) 115. 

NEVADA.— (19) 3; (20) 19; (21) 37; (22) 58; (23) 62; (24) 77; 
(25) 83; (26) 99; (27) 103; (28) 113. 

NEW HAMPSHIRE.- (64) 10; (62) 13; (65) 23; (66) 49; (67) 68; 
(68) 73; (69) 76; (70) 85; (71) 93; (72) 101; (73) 111. 

NEW JERSEY.— (43 N. J. Eq.) 3; (44 N. J. Eq.) 6; (50 N. J. L.) 7; 
(51 N. J. L.; 45 N. J. Eq.) 14; (46 N. J. Eq.; 52 N. J. L.) 19; 
(47 N. J. Eq.) 24; (53 N. J. L.) 26; (48 N. J. Eq.) 27; (49 N. 
J. Eq.) 31; (54 N. J. L.) 33; (50 N. J. Eq.) 35; (55 N. J. L.) 
39; (51 N. J. Eq.) 40; (56 N. J. L.) 44; (52 N. J. Eq.) 46; (57 
N. J. L.; 53 N. J. Eq.) 51; (54 N. J. Eq.; 58 N. J. L.) 55; (59 N. 
J. L.) 59; (55 N. J. Eq.) 62; (60 N. J. L.) 64; (56 N. J. Eq.) 67; 
(61 N. J. L.) 68; (62 N. J. L.) 72; (57 N. J. Eq.) 73; (63 N. J. 
L.) 76; (58 N. J. Eq.) 78; (64 N. J. L.) 81; (59, 60 N. J. Eq.) 
83; (65 N. J. L.) 86; (61 N. J. Eq.; 66 N. J. L.) 88; (62 N. J. 
Eq.) 90; (67 N. J. L.) 91; (63 N. J. Eq.) 92; (68 N. J. L.) 96; 
(64 N. J. Eq.) 97; (69 N. J. L.) 101; (65 N. J. Eq.; 70 N. J. L.) 
103; (66 N. J. Eq.) 105; (71 N. J. L.) 108; (67 N. J. Eq.) 110; 
(68 N. J. Eq.; 72 N. J. L.) Ill; (69 N. J. Eq.) 115. 

KEW YORK.— (107) 1; (108) 2; (109) 4; (110) 6; (111) 7; (112) 8; 
(113) 10; (114) 11; (115) 12; (116, 117) 15; (118, 119) 16; (120) 
17; (121) 18; (122) 19; (123) 20; (124, 125) 21; (126) 22; (127) 
24; (128, 129) 26; (130, 131) 27; (132, 133) 28; (134) SO; (135) 
81; (136) 32; (137) 33; (138) 34; (139) 36; (140) 37; (141) 38; 
(142) 40; (143) 42; (144) 43; (145) 45; (146) 48; (147) 49; (148) 
51; (149) 52; (150) 55; (151) 56; (152) 57; (153) 60; (154) 61; 
(155) 63; (156) 66; (157) 68; (158, 159) 70; (160) 73; (161, 162) 
76; (163, 164) 79; (165) 80; (166, 167) 82; (168) 85; (169, 170) 
88; (171) 89; (172) 92; (173) 93; (174) 95; (175) 96; (176) 98; 
(177) 101; (178) 102; (179) 103; (180) 105; (181) 106; (182) 108; 
(183) 111; (184) 112; (185) 113. 

NORTH CAROLINA.— (97, 98) 2; (99, 100) 6; (101) 9; (102) 11; 
(103) 14; (104) 17; (105) 18; (106) 19; (107) 22; (108) 23; 
(109) 26; (110) 28; (111) 32; (112) 34; (113) 37; (114) 41; (115) 



8 Schedule. 

44; (116) 47; (117) 53; (118) 54; (119) 56; (120) 58; (121) 61; 
(122) 65; (123) 68; (124) 70; (125) 74; (126) 78; (127) 80; 
(128) 83; (129) 85; (130) 89; (131) 92; (132) 95; (133) 98; 
(134) 101; (135) 102; (136) 103; (137,138) 107; (139,140) 111; 
(137,141,142) 115. 

NORTH DAKOTA.— (1) 26; (2) 33; (3) 44; (4) 50; (5) 57; (6, 7) 
66; (8) 73; (9) 81; (10) 88; (11) 95; (12) 102; (13) 112. 

OHIO.— (45 Ohio St.) 4; (46 Ohio St.) 15; (47 Ohio St.) 21; (48 Ohio 
St.) 29; (49 Ohio St.) 34; (50 Ohio St.) 40; (51 Ohio St.) 46; 
(52 Ohio St.) 49; (53 Ohio St.) 53; (54 Ohio St.) 56; (55, 56 
Ohio St.) 60; (57 Ohio St.) 63; (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.) 83; (65 Ohio St.) 87; (66 Ohio St.) 
90; (67 Ohio St.) 93; (68 Ohio St.) 96; (69 Ohio St.) 100; (70 
Ohio St.) 101; (71 Ohio St.) 104; (72 Ohio St.) 106; (73 Ohio St. • 
112; (74 Ohio St.) 113. 

OREGON.— (15) 3; (16) 8; (17) 11; (18) 17; (19) 20; (20) 23; (21) 
28; (22) 29; (23) 37; (24) 41; (25) 42; (26) 46; (27) 50; (28) 
52; (29) 54; (30) 60; (31) 65; (32) 67; (33) 72; (34) 75; (35) 
76; (36) 78; (37) 82; (38) 84; (39) 87; (40) 91; (41) 93; (42) 
95; (43) 99; (44) 102; (45) 106; (46, 47) 114. 

PENNSYLVANIA.— (115, 116, 117 Pa. St.) 2; (118, 119 Pa. St.) 4; 
(120, 121 Pa. St.) 6; (122 Pa. St.) 9; (123, 124 Pa. St.) 10; (125 
Pa. St.) 11; (126 Pa. St.) 12; (127 Pa. St.) 14; (128, 129 Pa. St.) 
15; (130, 131 Pa. St.) 17; (132, 133, 134 Pa. St.) 19; (135, 136 
Pa. St.) 20; (137, 138 Pa. St.) 21; (139, 140, 141 Pa. St.) 23; 
(142, 143 Pa. St.) 24; (144, 145 Pa. St.) 27; (146 Pa. St.) 28; 
(147, 150 Pa. St.) 30; (151 Pa. St.) 31; (148 Pa. St.) 33; (149, 
152, 153 Pa. St.) 34; (154, 155 Pa. St.) 35; (156 Pa. St.) 36; 
(157 Pa. St.) 37; (158 Pa. St.) 38; (159 Pa. St.) 39; (160 Pa. 
St.) 40; (161 Pa. St.) 41; (162 Pa. St.) 42; (163 Pa. St.) 43; 
(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.) 52; (176 Pa. St.) 53; (177 Pa. St.) 55; (178 
Pa. St.) 56; (179, 180 Pa. St.) 57; (181 Pa. St.) 59; (182 Pa. 
St.) 61; (183, 184 Pa. St.) 63; (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.) 73; (193 Pa. St.) 74; 
(194 Pa. St.) 75; (195 Pa. St,) 78; (196 Pa. St.) 79; (197 Pa. 
St.) 80; (198 Pa. St.) 82; (199 Pa. St.) 85; (195, 200 Pa. St.) 
86; (201 Pa. St.) 88; (202 Pa. St.) 90; (203, 204 Pa. St.) 93; 
(205 Pa. St.) 97; (206 Pa. St.) 98; (207 Pa. St.) 99; (208 Pa. 
St.) 101; (209 Pa. St.) 103; (210 Pa. St.) 105; (211 Pa. St.) 107; 
(212 Pa. St.) 108; (213 Pa. St.) 110; (214 Pa. St.) 112; (215 
Pa. St.) 114. 

RHODE ISLAND.— (15) 2; (16) 27; (17) 33; (18) 49; (19) 61- (20) 
78; (21) 79; (22) 84; (23) 91; (24) 96; (25) 105; (26) 106; (27) 
114. ^ 

SOUTH CAROLINA.— (26) 4; (27, 28, 29) 13; (30) 14; (31, 32) 17- 
(33) 26; (34) 27; (35) 28; (36) 31; (37) 34; (38) 37; (39) 39;' 
(40) 42; (41) 44; (42) 46; (43) 49; (44) 51; (45) 55; (46) 57; 
(47) 58; (48) 59; (49) 61; (50) 62; (51) 64; (52) 68; (53) 69; 
(54) 71; (55) 74; (56, 57) 76; (58) 79; (59) 82; (60, 61) 85; (62) 



Schedule. 9 

89; (63) 90; (64) 92; (65) 95; (66) 97; (67) 100; (68) 102; 

(69) 104; (70) 106; (71) 110; (73, 74) 114. 
SOUTH DAKOTA.— (1) 36; (2) 39; (3) 44; (4) 46; (5) 49; (6) 55; 

(7) 58; (8) 59; (9) 62; (10) 66; (11) 74; (12) 76; (13) 79; (14) 

86; (15) 91; (16) 102; (17) 106; (18) 112. 
TENNESSEE.— (85) 4; (86) 6; (87) 10; (88) 17; (89) 24; (90) 25; 

(91) 30; (92) 36; (93) 42; (94) 45; (95) 49; (96) 54; (97) 56; 

(98) 60; (99) 63; (100) 66; (101) 70; (102) 73; (103) 76; (104) 

78; (105) 80; (106) 82; (107) 89; (108) 91; (109) 97; (110) 100; 

(111) 102; (112) 105; (113) 106; (114) 108; (115) 112; (116) 

115. 
TEXAS.— (68) 2; (69; 24 Tex. App.) 5; (70; 25, 26 Tex. App.) 8; 

(71) 10; (27 Tex. App.) 11; (72) 13; (73, 74) 15; (75) 16; (76) 

18; (77; 28 Tex, App.) 19; (78) 22; (79) 23; (29 Tex. App.) 25; 

(80, 81) 26; (82) 27; (30 Tex. App.) 28; (83) 29; (84) 31; (85) 

34; (31 Tex. Cr. Bep.; 86) 37; (86; 32 Tex. Cr. Eep.; 40: (87; 

33 Tex. Cr. Kcp.) 47; (34 Tex. Cr. Eep.; 88) 53; (89, 90) 59; 

(35 Tex. Cr. Rep.) 60; (36 Tex. Cr. Eep.) 61; (91; 37 Tex. Cr. 

Eep.) 66; (38 Tex. Cr. Eep.) 70; (92) 71; (39 Tex. Cr. Rep.) 

73; (40 Tex. Cr. Eep.) 76; (93) 77; (94) 86; (95) 93: (41, 42, 

43 Tex. Cr. Eep.) 96; (96) 97; (44 Tex. Cr. Eep.) 100; (97) 104; 

(98) 107; (45, 46 Tex- Cr. Eep.) 108. 
UTAH.— (13) 67; (14) 60; (15) 62; (16) 67; (17) 70; (18) 72; (19) 

75; (20) 77; (21) 81; (22) 83; (23) 90; (24) 91; (25) 95; (26) 99; 

(27) 101; (28) 107; (29) 110. 
VEEMONT.— (60) 6; (61) 15; (62) 22; (63) 25; (64) 33; (65) 36; 

(66) 44; (67) 48; (68) 54; (69) 60; (70) 67; (71) 76; (72) 82; 

(73) 87; (74) 93; (75) 98; (76) 104; (77) 107; (78) 112. 
VIEGINIA.— (82) 3; (83) 5; (84) 10; (85) 17; (86) 19; (87^ 24; 

(88) 29; (89) 37; (90) 44; (91) 50; (92) 53; (93) 57; (94, 95) 

64; (96) 70; (97) 75; (98) 81; (99) 86; (100) 93; (101) 99; (102) 

102; (103) 106; (104) 113; (105) 115. 
WASHINGTON.— (1) 22; (2) 26; (3) 28; (4) 31; (5) 34; (6) 36; (7) 

38; (8) 40; (9) 43; (10) 45; (11) 48; (12) 50; (13) 52; (14) 53; 

(15) 55; (16) 58; (17) 61; (18) 63; (19) 67; (20) 72; (21) 75; 

(22) 79; (23) 83; (24) 85; (25) 87; (26) 90; (27) 91; (28, 29) 

92; (30) 94; (Si) 96; (32) 98; (33) 99; (34) 101; (35) 102; (36) 

104; (37, 38) 107; (39) 109; (40, 41) 111; (42) 114. 
WEST VIEGINIA.— (29) 6; (30) 8; (31) 13; (32, 33) 25; (34) 26; 

(35) 29; (36) 32; (37) 38; (38, 39) 45; (40) 52; (41) 56; (42) 57; 

(43) 64; (44) 67; (45) 72; (46) 76; (47) 81; (48) 86; (49) 87; 

(50) 88; (51) 90; (52) 94; (53) 97; (54) 102; (55) 104; (56) 107; 

(57) 110; (58) 112; (59) 115. 
WISCONSIN.— (69) 2; (70, 71) 5; (72) 7; (73) 9; (74, 75) 17; (76, 

77) 20; (78) 23; (79) 24; (80) 27; (81) 29; (82) 33; (83) 35; 

(84) 36; (85, 86) 39; (87) 41; (88) 43; (89) 46; (90) 48; (91) 

51; (92) 53; (93) 57; (94) 59; (95) 60; (96, 97) 65; (98, 99) 67; 

(100) 69; (101) 70; (102) 72; (103) 74; (104, 105) 76; (106) 80; 

(107, 108) 81; (109) 83; (110) 84; (111) 87; (112) 88; (113) 90; 

(114) 91; (115) 95; (116) 96; (117) 98; (118) 99; (119) 100; 

(120) 102; (121) 105; (122) 106; (123) 107; (124) 109; (125,126) 

110; (125, 127) 115. 
WYOMING.— (3) 31; (4) 62; (5) 63; (6) 71; (7) 75; (8) 80; (9) 87; 

(10) 98; (11) 100; (12) 109; (13) 110. 



AMERICAN STATE REPORTS. 

VOLUME 115. 



CASES KEPOETED. 



NAME. SUBJECT. EEPORT. PAGE. 

Abrams v. Uuited States Fidelity 

etc. Co Guardian 127 Wis. 579 1055 

Albright v. Bangs Executors .... 72 Kan, 435 . . . 219 

Albrigbt-Pryor Co. v. Pacific Sell- 
ing Co Attachment ...126 Ga. 498 108 

Aldrich v. People Larceny 224 111. 622 166 

Allen V. Thornapple Elec. Co Waters 144 Mich. 370... 453 

Amnions v. Toothman Deeds 59 W, Va. 165 . . 908 

Arkansas etc. Ry. Co. v. Dickin- 
son Rewards 78 Ark. 483 54 

Baltimore etc. Ry. Co. v. KlafE & 

Co Eeplevin 103 Md. 357 363 

Bibber v. Carville Equity 101 Me. 59 303 

Blackwell v. Mutual Reserve Fund 

Life Assn Insurance.. . .141 N. C. 117. . . 677 

Bogart V. Stevens Mortgages.. .. 69 N.J.Eq.800. 627 

Bowe V. Gage Brokers 127 Wis. 245... 1010 

Bridger V. Exchange Bank Lis Pendens. . .126 Ga. 821 118 

Brotherton v. Gilchrist Partnership . . .144 Mich. 274. . . 397 

Brown V. Brown Wills 71 Neb. 200... 568 

Brown v. Smith Executors 101 Me. 545 339 

Brown v. Trustees of Schools Limitations.. .224 111. 184 146 

Burnett V. Lyman Ejectment.. . .141 N. C. 500. . . 691 

Bynum V. Wicker Entireties.. ..141N. C. 95 675 

Carpenter v. Carpenter's Trustee. . Wills 119 Ky. 582 275 

Cary v. Preferred Accident Ins, 

Co Insurance .. ..127 Wis. 67 997 

Cincinnati etc. Ry. Co. v. Msltts. .Bailroads 119 Ky. 954 289 

Clancy V. Barker Innkeepers.. . 71 Neb. 83 559 

Clark V. Toronto Bank Banking 72 Kan. 1 173 

Cogan V. Conover Mfg. Co Assignments .. 69 N.J.Eq.809. 629 

Commonwealth v. Beckett False Pretenses.ll9 Ky. 817. . , . 285 

(10) 



Cases Reported. 11 



NAM15. SUBJECT. EEPORT. PAGE. 



Costigan V. Truesdell Judicial Sale. .119 Ky. 70., 

Crabtree v. Dawson Assault 119 Ky, 148, 



Daret V. Swearingen Wills 224 111. 229. . . 

Davenport v. State Banking Co.. .BanJcs 126 Ga. 136.. 

Detroit Southern R. E. Co. v. Mal- 

comson Sales 144 Mich. 172. 

Dickson v. Stewart Stat, of Frauds. 71 Neb. 424. 

Disconto Clesellschaft v. Umbreit. .Aliens 127 Wis. 651. . 

Doan V. Ascension Parish Trusts 103 Md. 662. . 

Dobbins v. Dobbins Cotenancy 141 N. C. 210. 

Dunbar v. American Tel. etc. Co.. .Corporations . .224 111. 9 



. 241 
. 243 

. 152 
. 68 

. 390 
, 596 
.1063 
. 379 
. 682 
. 132 



Fidelity Trust etc. Co. v. Louis- 
ville Banking Co Judgments. ..119 Ky. 675 279 

Finch V. Haynes Deeds 144 Mich. 352. . . 447 

Fischer v, Butz Partition 224 HI. 379 160 

Ford V. State Homicide 71 Neb. 246 591 

Frazier v. Poindexter Agency 78 Ark. 241. ... 33 

French v. Vradenburg Wills 105 Va. 16 838 

Gertsen's Will, 'a re Wills 127 Wis. 602 1060 

Greenman v. O 'Riley Seduction . . . .144 Mich. 534. . . 466 

Harvey v. Ryan Injunction. . .. 59 W. Va, 134. . 897 

Hay V. City of Baraboo Streets 127 Wis. 1 977 

Hayes v. Rich Executors.. ..101 Me. 314 314 

HoUoway v. Holloway Divorce 126 Ga. 459. 102 

Huber v. Martin Insurance . . . .127 Wis. 412 1023 

Humbarger v. Humbarger Probate Courts . 72 Kan. 412... 204 

Insurance Co. of Tennessee v. Wal- 
ler Trusts 116 Tenn. 1 763 

Interstate Nat. Bank v. Bingo ... Banking 72 Kan. 116... 176 

Ivers & Pond Piano Co, v. Alleo. . Trover 101 Me. 218 307 

Ives V, Atlantic etc. E. R. Co Stat, of Frauds.l42 N, C. 131 732 

Jackman V. Eau Claire Nat. Bank. BflHArrupfcy. ..125 Wis. 465... 955 

Jacobson v. Bcntzler Contracts 127 Wis. 566 1052 

Jones V. Crawford Homestead.. ,119 Ky. 5.j4 273 

Jones V. Jones Bills and Notcs.lOl Me. 447 .... 328 

Klauber V. Schloss Fraud. Con... .198 Mo. 502 486 

Knights of Maccabees v, Sackett. , JSejie/ft Society. 34 Mont. 357... 532 

Lane v. Fidelity etc. Ins. Co Insurajtce . . ..142 N. C. 55.... 729 

Leahy v. Wayne Circuit Judge. . .Judgments ....144 Mich, 304... 443 

Levin v. Gladatein Judgments. . . .142 N. C. 4S2. . . 747 

Liddell v. Bodenheimer Judgments. ... 78 Ark. 364. . . 42 



12 Cases Reported. 

KAia. SUBJECT. WEPORT. PAGE. 

Lloyd T. Hulick Deeds 69 N.J. Eq. 784. 624 

Ludlow Lumber Co. v. KnhWng. . .Building Con... 119 Ky. 251 254 

McAllister V. Fair Succession.. .. 72 Kan. 533... 233 

McCauley v. Jones Mortgage 34 Mont. 375. . . 538 

McConnell V. McKillip Game Laws 71 Neb. 712... 614 

Marling v. Nommensen Records 127 Wis. 363 1017 

Marshall v. St. Louis etc. Ry. Co.. .Bailroads 78 Ark. 213 27 

Maryland Tel. etc. Co. v. Simon 

Sons Co Telephones.. .103 Md. 136 346 

Matlock V. WiUiamsville etc. Ey. 

Co Death 198 Mo. 495 481 

Mayv. Pennell Suicide 101 Me. 516 334 

Metropolitan Life Ins. Co. v. Eli- 
son Insurance .. . . 72 Kan. 199 189 

Milske V. Steiner Mantel Co Building Con.. .WZ Md. 235 354 

Moore v. Durnan Lost Check 69 N. J.Eq. 828. 635 

Moores v. State Mandamus. ... 71 Neb. 522 605 

Morgart V. Smouse Partnership. ..103 Md. 463.... 367 

Morris v. Duncan Damages 126 Ga. 467 105 

Newport News etc. Ey. Co. v. 
Clark Negligence. ..105 Va. 205 868 

North Carolina Corp. Com. v. At- 
lantic etc. E. E. Co Railroads 137 N. C. 1 636 

O'Connor v. St. Louis Transit Ck>..Atty's Lien . .198 Mo. 622 495 

Perry v. Hackney Deeds 142 N. C. 368. . . 741 

Petroski v. Minzgohr V'dor ir F 'dee. 144 Mich. 356. . . 450 

Prewitt V. Security Mut. Life Lis. 

Co Insurance.. ..119 Ky. 321 264 

Purinton v. Purinton Evidence 101 Me. 250 309 

Eeeder v. Meredith Executors . . . . 78 Ark. Ill ... . 22 

Rich V. Hayes Executors.. ..101 Me. 324 321 

Eichardson v. Busch Executors .. . .198 Mo. 174 472 

Rolfe V. Lake Shore etc. Ry. Co.. .Carriers 144 Mich. 169. . . 388 

Euflfner Bros. v. Dutchess Ins. Co.. Insurance . . . . 59 W. Va. 432. . 924 

Rugg V. Lemley Party-wall .... 78 Ark. 65 17 

Rutherford v. Eutherford Partition 116 Tenn. 383... 799 

Salina, City of, v. Blaksley Weapons 72 Kan. 230... 196 

Samuelson V. State Carriers 116 Teun. 470... 805 

Sawyer v. Norfolk etc. E. E. Co.. . Slander 142 N. C. 1 716 

Schirm v. Wieman Contract 103 Md. 541.... 373 

Scoggin V. Hudgins Executors . . . . 78 Ark. 531 ... . 60 

State V. Bradley Forgery.. .."..116 Tenn. 711... 836 

State V. District Court Foreign Will.. 34 Mont. 96 510 

State V. District Court Justice 's Court. 34 Mont. 112 .. . 522 



Cases Reported. 13 

NAME. SUBJECT. REPORT. PAGE. 

State V. District Court Em. Domain. . . 34 Mont. 535 . . . 540 

State V. Dorr Hecognizance. . 59 W. Va. 188. . 915 

State V. Frederickson Intoxicants . . .101 Me. 37 295 

State V. Lilliston Homicide 141 N. C. 857. . . 705 

State V. Monahan Elections 72 Kan. 492 224 

State V. Ring Seduction 142 N. C. 596. . . 759 

State V. Wheeler Taxation 141 N. C. 773. . . 700 

SufiFel V. McCartney Nat. Bank ... Banlcruptcy . . .127 Wis. 208 1004 

Swing V. St. Louis Refrigerator 

etc. Co Judgments.. . . 78 Ark. 246 38 

Tanner v. Bowen Eelease 34 Mont. 121. . . 529 

Thompson v. Fidelity Mut. Life 

Ins. Co Insurance 116 Tenn. 557.. 823 

Thompson v. Silverthorne Cotenancy. . . .142 N. C. 12 727 

Tidewater Quarry Co. v. Scott Setoff. . 105 Va. 160 864 

Tipton V. Smythe Limitations ... 78 Ark. 392 44 

Townsend v. Norfolk Ry. etc. Co. . Street Bailway. 105 Va. 22 842 

Trough V. Trough Divorce 59 W. Va. 464 940 

United Brothers v. Williams Corporations . .126 Ga. 19 64 

Walker v. Potomac etc. B. E. Co. .. Bailroads 105 Va. 226 871 

Walpert v, Bohan Bathhouse E'pr..l26 Ga. 532 114 

Watkins v. Robertson Options 105 Va. 269 880 

White V. Horn Admin 'tions . .224 111. 238 155 

Wilcke V. Duross Judgments .... 144 Mich. 243 . . . 394 

Winkler v. Killian Parent ^ Child. lU N. C. 575. . . 694 

Wood Reaping etc. Co. v. Ascher. . Guaranty 103 Md. 133 343 

Wyandotte Brewing Co. v. Hart- 
ford Fire Ins. Co Insurance 144 Mich. 440. . . 458 

Yellowstone Park B. B. Co. v. 

Bridger Coal Co Em. Domain 34 Mont. 545. . 546 



AMEKICAJST STATE REPORTS. 

VOLXTME 115. 
(15) 



CASES 

IN THE 

SUPREME COURT 

OP 

ARKANSAS. 



RUGG V. LEMLEY. 

[78 Ark. 65, 93 S. W. 570.] 

PARTY-WALLS — Charge on Land. — An agreement by an ad- 
jacent lot owner to pay part of the cost of a party-wall when he 
commences to use it creates a charge in the nature of an equitable 
lien upon his part of the lot on which the wall is erected, which is 
enforceable in equity, (p. 19.) 

EQUITY JUBISDICTION.— Effect of Prayer.— The statement 
of facts in a complaint in equity, and not the prayer for relief, con- 
stitutes the cau&e of action, which confers jurisdiction, (p. 20.) 

PAETY-WALLS — Covenant Running With Land. — An agree- 
ment of an adjoining owner to pay for the use of a party-wall is a 
covenant running with the land, and the right to recover the sum 
agreed upon passes to the grantee of the original builder under his 
deed, (p. 20.) 

Wood & Henderson and M. S. Cobb, for the appellants. 

Greaves & Martin, for the appellee. 

«« McCULLOCH, J. The plaintiffs, B. L. Lemley and 
M. F. Work, are the owners of lot 27 in block 89 in the city 
of Hot Springs, on which is situated a two-story brick 
building, the center of the south wall of the building being 
on th^ line between lots 47 and 48. Lot 48 is owned by 
D. C. Riigg, who leased the same to defendant Ed Spear. 
This suit was brought in chancery by the plaintiffs, Lemley 
and Work, against defendants Spear and Ledwidge (a 
building contractor) to enjoin them from using tKe south 
wall of plaintiff's building as a party-wall in the construc- 
tion of a new building on lot 48. It is alleged in the com- 
plaint that the wall is wholly upon lot 47, and is the prop- 
erty of plaintiffs, and that the defendants are proceeding, 
without right, to cut into the wall for the purpose of join- 
Am. St. Rep., Vol. 115—2 (17) 



18 American State Reports, Vol. 115. [Arkansas, ■ 

ing the new building to it. A temporary restraining order 
was issued as prayed for, but the same was subsequently 
dissolved when it was shown that the wall was a party- 
wall on the line between lots 47 and 48. 

On motion of defendant Spear, his lessor, D. C. Rugg, 
the owner of lot 48, was made a defendant in the cause. 

After the dissolution of the temporary restraining order, 
the plaintiffs filed an amendment to their complaint, pray- 
ing that if the court should determine that the wall de- 
scribed in the complaint is a party-wall, and equally on 
lots 47 and 48, the plaintiffs recover of defendant Rugg one- 
half of the original cost of the wall. 

After the dissolution of the injunction. Alma B. Womack, 
the widow of J. P. Warren, deceased, filed her intervention 
in the cause, in which she alleges that said Warren in his 
lifetime was the owner of lot 47 ; that w*hile such owner, by 
agreement between himself and D. C. Rugg, he erected upon 
the division line between lots 47 and 48 a brick wall (the 
wall in question) ; that at the time of the erection of said 
wall the portion ^^"^ of said lot 48 on which said wall was 
built was placed in the possession of said J. P. Warren, with 
the agreement and understanding by the owner of said lot 
48 that whenever the wall was used by the owner of said 
lot 48, Warren should be paid one-half the price or value 
thereof; that said agreement was oral; that said wall then 
became the personal property of said Warren ; that Warren 
subsequently died, leaving the intervener, his widow, and 
also leaving a will, by and in which he bequeathed to the 
intervener all his personal property; that by virtue of said 
will the said wall, and the agreement with reference there- 
to, became the personal property of the intervener; that 
the wall is of the value of five hundred and fifty dqllars; 
that recently D. C. Rugg, who is now the owner of said 
lot 48, by an agreement with the defendant Spear, as his 
tenant, has misde use of the wall, by attaching thereto the 
sleepers. and joists of the house that Spear is erecting on 
said lot 48, by virtue of all of which sh« alleges that D. 
C. Rugg is indebted to her in the sum of the value of said 
wall. 

Defendant Rugg filed demurrers to the intervention of 
Mrs. Womack and the complaint of the plaintiffs, which 
were both overruled by the court, and he then filed his an- 



Feb. 1906,] Rugg v. Lemlet. 19 

swer, in which he denied specifically all the material alle- 
gations contained in said interplea. 

Rugg also filed his motion to transfer to the law court, 
which was overruled. Upon final hearing, the chancellor 
rendered a decree in favor of the plaintiffs, Lemley and 
Work, against defendant Rugg foj* the recovery of the sum 
of four hundred and seventy-five dollars, with interest, 
one-half of the cost of the wall, and "that, upon the pay- 
ment of the judgment aforesaid by D. C. Rugg, .... his 
heirs and assigns, shall hold, have and enjoy the easement 
of the party-wall situate on part of said lot 47 owned by 
the plaintiffs herein for the life of said wall; also to in- 
clude that part of said wall on said lot 47, but in common 
with plaintiffs, their heirs and assigns, as to that strip 
of land actually covered by said party-wall as well as the 
wall itself appurtenant to both lots," 

The intervention of Mrs. Womack was dismissed for 
want of equity. Rugg and Mrs. Womack appealed to this 
court. 

•® There are two questions of law presented: 1. Whether 
the court had jurisdiction to hear and determine the cause 
of action against appellant Rugg for the recovery of half 
the cost of the wall; and 2. Which of the two claimants 
should recover the same, Mrs. Womack, the widow and 
legatee of J. P. Warren, the original owner of lot 47 and 
builder of the wall, or Lemley and Work, the grantees of 
Warren under deed conveying lot 47 "with all appur- 
tenances thereunto belonging." 

The proof failed to sustain the cause of action stated in 
the original complaint, and the court denied the relief 
prayed. The "** amendment to the complaint, filed after 
the dissolution of the injunction, stated a different cause of 
action and one inconsistent with the facts stated in the 
original complaint, but one which was cognizable in equity. 
The agreement of Rugg to pay part of the cost of the wall, 
when he commenced use of the wall, became a charge in 
the nature of an equitable lien upon the lot on which the 
wall was erected, and was enforceable in equity: Washburn 
on Easements and Servitudes, 612; Richardson v. Tobey, 
121 Mass. 457, 23 Am. Rep. 283 ; Nelson v. McEwen, 35 111. 
App. 100; Roche v. Ullman, 104 111. 11; Keating v. Korf- 
hage, 88 Mo. 524; Burr v. Lamaster, 30 Neb. 688, 27 Am. 



20 American State Reports, Vol. 115. [Arkansas, 

St. Rep. 428, 46 N. W. 1015, 9 L. R. A. 637 ; First Nat. Bank 
V. Security Bank, 61 Minn. 25, 62 N. W. 264. 

The fact that only a personal judgment against Rugg was 
prayed for and granted did not prevent the court from 
assuming jurisdiction. The statement of facts in the com- 
plaint, and not the prayer for relief, constitued the cause of 
action which conferred jurisdiction upon the court: San- 
noner v. Jacobson, 47 Ark. 31, 14 S. W. 458; Waterman v. 
Irby, 76 Ark. 551, 89 S. W. 884. 

The more serious question in the case is whether the 
agreement concerning the payment for use of the party- 
wall is a covenant which runs with the land and the right 
to recover the agreed sum passes to the grantee of the 
original builder, under his deed to the lot, or whether it 
is the personal asset of the covenantee which passes to his 
assignee or personal representative. 

Upon this question the authorities are inharmonious, but 
we incline to the view that the chancellor was correct in 
adopting the line of authorities which hold that such an 
agreement is a covenant which runs with the land and 
passes to the grantee of the original builder's lot: Rich- 
ardson V. Tobey, 121 Mass. 457, 23 Am. Rep. 283 ; Maine v. 
Cumston, 98 Mass. 317 ; Tomblin v. Fish, 18 111. App. 439 ; 
McChesney v. Davis, 86 111. App. 380; Piatt v. Eggleston, 
20 Ohio St. 414; Adams v. Noble, 120 Mich. 545, 79 N. W. 
810; Kimm v. Griffin, 67 Minn. 25, 64 Am. St. Rep. 385, 
69 N. W. 634. 

Under the contract, when the wall was built, the builder 
became the sole owner thereof, with an easement over the 
strip of the adjoining lot built upon, subject to the right 
of the owner of the adjoining lot to use the wall upon pay- 
ment of half the cost thereof. The whole wall, together 
with the easement over the adjoining lot, passed under 
the deed executed by the builder as ''^ an appurtenance to 
his lot: McChesney v. Davis, 86 111. App. 380; Kimm v. 
Griffin, 67 Minn. 25, 64 Am. St. Rep. 385, 69 N. W. 634. 

The owner of the adjoining lot, by paying half of the cost 
of the wall in accordance with the terms of the contract, 
not only obtained title to that part of the wall which was 
built upon his lot, but he also acquired an easement over 
the other lot for support of the wall. These consummated 
rights he obtained, not from the builder, the original owner 



Feb. 1906.] Rugg v. Lemley. 21 

of the lot, but through and from the person who was the 
owner of the lot at the time he used the wall and paid 
the agreed price. Though the rights of the parties were 
fixed by the original contract, yet the enjoyment of them 
was consummated only when the agreed price should be 
paid. Therefore, in contemplation of law, these rights were 
obtained through and from the present owner of the lot 
and wall, and he alone is entitled to the compensation. 

As is well stated by the supreme court of Illinois in the 
case of Gibson v. Holden, 115 111. 199, 56 Am. Rep. 146, 
3 N. E. 282: "In all such cases (that is, where the title 
to the wall is in the builder) the title to the whole wall 
may be regarded as appurtenant to the lot of the builder, 
and so passing, by every conveyance of it, until a severance 
of the half by the payment of the purchase money. The 
sale of the half of the wall does not occur, nor the title to 
it pass, in those cases until the payment is made ; and so 
necessarily it is, constructively, a sale by the assignee of 
so much of the wall." 

The contrary view is taken by the Nebraska court, and 
the question is discussed with much learning and ability 
by that court in the recent case of Cook v. Paul (Neb.), 66 
L. R. A. 673, where all the authorities supporting that 
view are cited, but we are unable to agree with the conclu- 
sion there reached. 

The decree of the chancellor is therefore affirmed. 



Party-wall. — An Agreement Between Adjoining owners to pay for the 
building of a party-wall is generally regarded as a covenant running 
with the land: See Southworth v. Perring, 71 Kan. 755, 114 Am. St. 
Rep. 527, notes to Dunscomb v. Randolph, 89 Am. St. Rep. 941; 
Geiszler v. De Graaf, 82 Am. St. Rep. 679. 



22 American State Reports, Vol. 115. [Arkansas, 



REEDER V. MEREDITH. 

[78 Ark. Ill, 93 S. W. 558.] 

EXECUTORS AND ADMINISTEATOBS.— An Administrator 
la a Trustee for all who are interested in the estate which he has in 
charge, (p. 23.) 

TBUSTEES — Purchase by. — Although, as a general rule, a 
trustee cannot buy from the beneficiary, yet an exception exists when 
there is a distinct and clear contract executed after a jealous and 
scrupulous examination of all the circumstances and proof that the 
beneficiary intended the trustee to buy, and there is a fair considera- 
tion, no fraud, no concealment, and no advantage taken by the trustee 
of information acquired by him in his character as such. (p. 23.) 

TRUSTEES — ^Purchase by — Burden of Proof. — A trustee who 
purchases proj)crty from his beneficiary has the burden of proof to 
show the utmost good faith in the transaction, (p. 25.) 

DEEDS — Voidable in Part. — A contract of conveyance, if 
voidable in part, is voidable as to all, as there can be no apportion- 
ment thereof, (p. 25.) 

EXECUTOBS AND ADMINISTBATOBS— Purchase by— Im- 
provements. — An administrator who purchases the lands of the estate 
in bad faith is not entitled to any compensation for improvements 
placed thereon, (p. 26.) 

EXECUTORS AND ADMINISTEATOBS— Purchase by— Be- 
tum of Consideration Beceived. — If an administrator purchases the 
interest of an heir in the estate in bad faith, and is sued by him to 
enforce a trust as to part of the property, the heir need not return 
the consideration received, if the administrator has realized from part 
of the property more than he paid for all of it., (p. 26.) 

EXECUTOBS AND ADMINISTBATOBS— Purchase by— Ac- 
counting. — If an administrator purchases the interest of an heir in 
the estate and is sued by him to enforce a trust as to part of the 
property purchased, he is not entitled, in such suit, to an accounting 
by the administrator of his profits on the part of the interest of such 
heir not involved in the suit. (p. 26.) 

D. B. Sain and W. C. Rogers, for the appellant. 

Feazel & Bishop, for the appellees. 

**■* WOOD, J. 1. At the time appellant purchased the 
land from his sisters, he was administrator of his father's 
estate, and as such had possession and control of the land 
for the payment of the debt *>f the estate for which it ap- 
pears the lands were needed: Kirby's Digest, sec. 79, Ap- 
pellant, therefore, was trustee for the creditors to see that 
their claims were paid. He was also trustee for the heirs 
to see that the lands were properly administered in the pay- 
ment of the debts, and that the residue of the proceeds of 
the lands sold for the purpose of paying the ^ebts should 



March, 1906.] Reeder v. Meredith. 29 

be distributed to them according to their respective inter- 
ests. Appellant was a trustee for all who were interested 
in the estate which he had in charge to administer: Wright 
V. Campbell, 27 Ark. 637; 1 Woemer on Administration, 
sec. 10; 2 Woemer on Administration, sec. 489. 

The general rule, says Mr. Perry, is "that the trustee shall 
not take beneficially by gift or purchase from the cestui que 
trust; .... the question is not whether or not there is 
fraud in fact; the law stamps the purchase by the trustee 
as fraudulent per se, to remove all temptation to collusion 
and prevent the necessity of intricate inquiries, in which 
evil would often escape detection, and the cost of which 
would be great. The law looks only to the facts of the re- 
lation and the purchase. The trustee must not deal with 
the property for his own benefit." "But," he continues, 
"there are exceptions to the rule, and a trustee may buy 
from the cestui que trust, provided there is a distinct and 
clear contract, ascertained after a jealous and scrupulous 
examination of all the *** circumstances; that the cestui 
que trust intended the trustee to buy, and there is fair con- 
sideration and no fraud, no concealment, no advantage 
taken by the trustee of information acquired by him in the 
character of trustee. The trustee must clear the transac- 
tion of every shadow of suspicion Any withhold- 
ing of information, or ignorance of the facts or of his rights 
on the part of the cestui que trust, or any inadequacy of 
price, will make such purchaser a constructive trustee ' ' : 
Perry on Trusts, sec. 195. This is the general doctrine an- 
nounced by our own court and recognized by practically all 
the authorities: See Thweatt v. Freeman, 73 Ark. 575, 84 
S. W. 720 ; Cook V. Martin, 75 Ark. 40, 87 S. W. 625, 1024 ; 
Cornish v. Johns, 74 Ark. 231, 85 S. W. 764. As to the 
purchase of trust property bj' the trustee, see, also, Gibson 
V. Herriott, 55 Ark. 85, 29 Am. St. Rep. 17, 17 S. W. 589; 
Hindman v. O'Connor, 54 Ark. 627, 16 S. W. 1052, 13 
L. R. A. 490; White v. Ward, 26 Ark. 445; Imboden v. 
Hunter, 23 Ark. 622, 79 Am. Dec. 116, where the general 
rule is declared. See, also, 28 American and English Ency- 
clopedia of Law, second edition, pages 1016, 1020, where the 
rule and exception thereto are stated, and the numerous 
authorities, English and American, are cited; 2 Woemer 
on Administration, sec. 487 et seq. 



24 American State Reports, Vol. 115. [Arkansas, 

In Handlin v. Davis, 81 Ky. 34, it is said: "An adminis- 
trator or executor is not allowed to purchase or speculate 
upon the estate confided to him for the purposes of adminis- 
tration. * ' 

In all cases the burden is on the trustee to establish all 
the requirements necessary to bring his title within the 
exception to the rule: 28 Am. & Eng. Ency. of Law, 2d ed., 
1023. 

In Coles V. Trecothick, 9 Ves. Jr. 234, Lord Eldon said: 
**Upon the question as to a purchase by a trustee from the 
cestui que trust I agree, the cestui que trust may deal with 
his trustee, so that the trustee may become the purchaser 
of the estate. But, though permitted, it is a transaction of 
great delicacy, and which the court will watch with the 
utmost diligence, so much so that it is very hazardous for 
a trustee to engage in such a transaction." And further 
on in the opinion, after stating the requirements to bring 
a case within the exception upholding such transactions, 
he says: "I admit, it is a difficult case to make out, wherever 
it is contended the exception prevails." 

The chancellor found: "That defendant, W. S. Reeder, 
was the acting administrator of the said estate; that prior 
to the purchase by him he submitted to the respective plain- 
tiffs an offer, on ^^® behalf of his mother, for two hundred 
and twenty-five dollars for the undivided one-eighth inter- 
est she had in her father's estate; that at the time of the 
submission of the said offer defendant stated to plaintiffs 
that after the debts of the estate had been paid that would 
be their respective shares, and that his mother requested 
him to purchase it in order to hold the estate together until 
her death, when it would go back to all the children; that 
defendant further represented to plaintiff that that part 
of the lands allotted as dower and homestead* was not to be 
taken into consideration in arriving at the extent of plain- 
tiff's interest, and that he was not purchasing that interest 
at all; that plaintiffs, relying on these declarations, exe- 
cuted the deeds in controversy ; that the value of the home- 
stead and dower land was four thousand five hundred dol- 
lars, and that the value of the other lands was three 
thousand five hundred dollars; that the two hundred and 
twenty-five dollars received by plaintiffs for their respective 
interests was not an adequate price therefor." It could 



March, 1906.] Eeedeb v. Meredith. 25 

serve no useful purpose to review at length the testimony 
upon which the chancellor's findings were based. It suf- 
fices to say that, eliminating all incompetent and irrelevant 
testimony, we are of the opinion that his conclusions of 
fact were not clearly against the weight of the evidence. 
Applying the principles of law announced, supra, to these 
facts, the conclusion reached by the lower court "that the 
defendant (appellant here) by reason of his relation of 
trustee for the creditors, the heirs and next of kin, was in- 
capable of dealing with the trust property to his advan- 
tage" was clearly correct. 

But, aside from any trust relationship, appellant was en- 
joined to the utmost good faith in dealing with his sisters. 
The dependence upon and confidence in him to do the right, 
engendered by the natural love and affection incident to 
such close blood kin, made uberrimam fidem imperative: 
Million V. Taylor, 38 Ark. 428. 

2. The court did not err in canceling the deed from Annie 
Meredith to appellant, so far as it related to the south 
half of the northeast quarter, the northeast quarter of the 
northeast quarter, and the east half of the northwest quar- 
ter of section 19, and the northeast quarter of the south- 
west quarter of section 20, all in township 11 south, range 
27 west. "While this land had been assigned to the widow 
of Sam Reeder and the mother of appellant as homestead 
and dower, and was therefore not in the possession or under 
the control of the appellant as the administrator, still it 
was embraced in ^^"^ the deed which conveyed the interest 
of appellee in the lands of the estate which were under the 
control of appellant as administrator, and which deed, as 
we have seen, was voidable. Now, the deed to all these 
lands was based upon one and the same consideration, and 
was an entire and indivisible transaction. The contract of 
conveyance was entire, and, being voidable in part, was 
voidable as to all. For there is no apportionment of such 
a contract: See Phoenix Ins. Co. v. Public Parks Am. Co., 
63 Ark. 187, 37 S. W. 959 ; Mc(^ueeny v. Phoenix Ins. Co., 
52 Ark. 257, 20 Am. St. Rep. 179, 12 S. W. 498, 5 L. R. A. 
744; State v. Scoggin, 10 Ark. 326; Jackson v. Jones, 22 
Ark. 158; Iron Mt. etc. R. Co. v. Stansell, 43 Ark. 275. 
And, as to entire contracts, Higgins v. Gager, 65 Ark. 604, 
47 S. W. 848. 



26 American State Reports, Vol. 115. " [Arkansas, 

3. The court did not err in refusing to allow appellant 
for alleged improvements. The testimony of appellant 
tends to show that what improvements he put upon the 
lands were under contract with his mother, she having pos- 
session and control at the time appellant claims the im- 
provements were made, and that she paid appellant for 
these improvements in allowing him the use of the land for 
two years. Moreover, if appellant's purchase was in bad 
faith, as the court's findings show and the proof warrants, 
he would not be entitled to any compensation for improve- 
ments. 

4. It was not necessary under the facts of this record for 
appellee to offer to return the two hundred and twenty- 
five dollars which appellant paid her for her interest in the 
land, before she could maintain her suit for a rescission of 
the contract. For the proof shows that appellant had real- 
ized from appellee's interest in the estate which he bought, 
apart from the reversionary interest in the dower and home- 
stead, the sum of fifty-five dollars and twenty-five cents 
more than he paid. He is therefore in statu quo, with a 
clear profit of fifty-five dollars and twenty-five cents. 

5. The claim of appellee that appellant should pay her the 
amount he received from the lands sold in excess of what 
he paid her for her interest is without equity, since the 
oourt annulled the sale of her reversionary interest in the 
dower and homestead. All the proof shows that she was 
willing to sell her interest in the estate, and would have 
sold it for the consideration paid her, had her dower and 
homestead not been included. There is nothing in the proof 
to impeach the good faith of the contract between appellant 
and appellee except the alleged misrepresentation on the 
part of appellant that the reversionary interest of appellee 
was ^^** not to be included in the deed she should execute 
for her interest in the lands of the estate. But for this there 
would have been no cause for setting aside the deed. 

The small profit realized would not show any inadequacy 
of consideration. 

So our conclusion on the cross-appeal is that the court did 
not err in refusing appellee's claim for the fifty-five dollars 
and twenty-five cents. 

The decree was right. Affirm. 



March, 1906.] IMarshall v. St. Louis etc. Ry. Co. 27 

The Purchase by an Executor or Administrator of his decedent's 
property may be voidable, but it is not void: See Mason v. Odum, 210 
111. 471, 102 Am. St. Kep. 180, and cases cited in the cross-reference 
note thereto. 

A Trustee is Incapacitated, as a rule, to purchase any interest in 
the trust property: Gilbert v. Hewetson, 79 Minn. 326, 79 Am. St. 
Eep. 486i Petrie v. Badenoch, 102 Mich. 45, 47 Am. St. Eep. 503. 



MARSHALL v. ST. LOUIS, IRON MOUNTAIN AND 

SOUTHERN RAILWAY COMPANY. 

■ [78 Ark. 213, 94 S. W. 56.] 

EVIDENCE — ^Ees Gestae. — If a railroad brakeman is mortally 
injured while in the discharge of his duty and lives only a short time 
thereafter, a statement by him as to how he received the injury is 
admissible in evidence as part of the res gestae, (p. 29.) 

EAUiBOADS — Duty and Liability as to Disabled Cars. — A rail- 
road company is bound only to exercise due care, through its vice- 
principals, and through a proper system of timely inspection, to dis- 
cover disabled cars and notify its trainmen of such condition. When 
this is done, the risk of handling the cars and carrying them to the 
shop becomes one of the risks ordinarily incident to the employment 
assumed by such trainmen, (p. 30.) 

BAIIjBOADS — Disabled Cars — Bisks Assumed by Trainmen. — 
If a car is reported to a railroad brakeman as being out of order or 
disabled, or is known to him to be in such condition, the burden of 
ascertaining the defect and source of danger is cast upon and is as- 
sumed by him. (p. 31.) 

BAILHOADS — Disabled Cars — ^Duty to Employ^ — ^Assumption 
of Bisks. — Although a railway employ^ is engaged in the hazardous 
work of handling disabled cars, he does not assume risks created by 
the negligence of the railroad company in not exercising due care to 
protect him. (p. 32.) 

BAIIjBOADS — Disabled Cars — Assumption of Bisk. — A railroad 
brakeman engaged in coupling a disabled car to be taken to a repair 
shop, with notice of its condition, assumes the risk of handling it. 
(p. 32.) 

BAUjBOADS — Disabled Cars — Assumption of Bisks. — A rail- 
road employ^ whose duty it is to handle disabled cars, knowing that 
a certain car is disabled, assumes as one of the ordinary risks of his 
employment any injury resulting from the disabled condition of such 
car in the absence of negligence on the part of the railroad com- 
pany, (p. 32.) 

Marshall & Coffman and Trimble & Robinson, for the 
•appellant. 

O. L. Miles, for the appellee. 



28 American State Reports, Vol. 115. [Arkansas, 

^'^ McCULLOCH, J. Appellant, as administratrix of the 
estate of her deceased husband, C. R. Marshall, brought this 
action against appellee to recover damages by reason of his 
death, alleged to have been caused by the negligence of ap- 
pellee. Deceased was a brakeman employed by appellee, 
and was killed by a train at Russellville, Arkansas, while he 
was coupling cars. Negligence of appellee was alleged in 
allowing the roadbed to become covered with piles of 
clinkers and cinders, and in allowifig a drawhead and coup- 
ler on one of the cars which deceased was attempting to 
couple to become defective, and in allowing a hinge of an 
apron attached to the car to become broken, none of which 
defects, it is alleged, deceased had notice of. The answer 
denied all the allegations of negligence, and alleged con- 
tributory negligence on the part of deceased, and that his 
death resulted from an accident which was a part of the risk 
he assumed in his employment. 

When the introduction of testimony was completed, the 
court instructed the jury to return a verdict for the defend- 
ant, which was done, and the plaintiff appealed. The only 
question, therefore, presented is whether there was suffi- 
cient testimony, giving it the strongest probative force in 
support of plaintiff's alleged cause of action, to justify a 
verdict in her favor. 

It is shown that deceased made three or four attempts to 
couple the cars, which were ineffectual on account of the 
failure of the coupler to work automatically. He was killed 
in the last attempt. No defect in the coupler is shown to 
have existed, except that it was perhaps rusty, and the 
knuckle failed to open and close from the impact of the 
cars coming together. Immediately after the accident it 
worked all right after being greased. The car which he was 
attempting to couple onto the train was a disabled dirt car 
which had been in use in the work of reconstructing the 
roadbed. On the end of the car was an iron apron about 
three feet wide, extending the full width of the car, which 
was attached to the car by large iron hinges. The apron 
was arranged so that, when turned down in a horizontal 
position, it covered the space between that car and the next 
one, and enabled the plow to pass along unobstructed from* 
car to car to expel the *** loads of dirt. One of the hinges 
on the apron was broken, and, when the apron was turned 
back, it protruded twelve inches, so one of the witnesses 



March, 1906.] Marshall v. St. Louis etc. Ry. Co. 29 

stated, over the end of the ear. Deceased, in attempting 
the last time to couple the ears, stepped out from between 
them, gave the signal to the engineer to back up, and 
walked back between the cars to adjust the knuckle of the 
coupler. He had his hand on the knuckle when the cars 
came together, and he attempted to jump out from between 
them, and was caught by the hinge, and fell between the 
ends of the couplings, and was hurt. The hinge either 
pierced his body or his clothing. He lived only a very 
short while, and when asked, after he partially revived from 
the shock, concerning the manner in which he received the 
injury, merely said, "The hinge." There was sufficient 
evidence to have justified the jury in finding that the com- 
pany was guilty of negligence in allowing piles of clinkers 
and cinders to accumulate along the track which might 
hinder the trainmen in handling and coupling cars, but 
there was no testimony tending to show that this contrib- 
uted to the injury of appellant's intestate. One witness 
stated that he was either "caught by something or stum- 
bled," he did not pretend to know definitely which it was. 
Two eye-witnesses introduced by plaintiff stated that he was 
caught by something and was thrown over between the 
ends of the couplings. There can be no doubt, under the 
evidence, that he was caught by the hinge as he attempted 
to pass out from between the cars. This was his own brief 
account of the accident, which was stated under circum- 
stances which rendered it admissible as part of the res 
gestae. So there was nothing to go to the jury on this 
charge of negligence. 

The evidence was undisputed that the coupler was not in 
perfect working order, and that the hinge on the apron of 
the car was broken, either of which defects the jury might 
have found from the evidence contributed to the injury. 
There was also sufficient evidence to warrant a finding that 
the car had not been inspected and notice given in the usual 
way of the defects. But it does not follow from this that 
the servants of the company were negligent in this regard, 
or that the accident was not due to one of the risks which 
appellant's intestate assumed by virtue of his employment. 
On the contrary, it is clear from the evidence that he had 
notice that the car was ^^"^ disabled in some way, and that 
it was being coupled into the train for the purpose of carry- 
ing it to Van Buren for repairs. This train was made up 



30 American State Reports, Vol. 115. [Arkansas, 

at Russellville for a trip to Van Buren, and the conductor 
had orders from the office of the trainmaster to take up 
all bad-order dirt cars and all empty boxcars on the road 
between Russellville and Van Buren, and convey them to 
Van Buren for repairs. Deceased knew of this order, and 
assisted in locating the bad-order dirt cars (there being two 
of them) on the sidetrack at Russellville. The conductor 
and one of the brakemen testified that deceased had the 
switch list containing the numbers of those cars, and that 
all three of them hunted up the cars and looked at them. 
In this way he received notice that they were disabled cars 
to be carried to the shop for repairs. It may be that he did 
not know of the projecting broken hinge before he was 
caught by it, though it is highly probable from the evidence, 
that he did observe it. It was a defect easily discernible 
on casual observation of that end of the car, and the con- 
ductor testified that he and deceased examined the car to- 
gether, and that the latter was bound to have seen it. But 
the company was not bound to give him specific notice of 
the defects. It was not customary to do so, and under the 
facts of this case it was not required in the exercise of due 
care. It was customary for the inspector merely to mark 
with chalk on the disabled car the letters "B. 0.," meaning 
bad order. This was not done in this instance, and the 
jury would have been warranted in so finding, and that the 
inspector was guilty of negligence in failing so to do; but, 
as deceased received information of the same fact from 
another source, it cannot be said that the negligence of the 
inspector contributed to the injury. In the operation of 
railroad trains, cars will necessarily become disabled, some- 
times from ordinary wear of use and sometimes from un- 
avoidable accident. They must then be conveyed to the 
shop for repairs, and it is the duty of the trainmen to do 
this. It is necessarily and unavoidably a part of the duties 
arising from their employment as train operatives, because 
the company obviously cannot provide a repair shop wher- 
ever a car may become disabled, nor send out a special train 
and corps of men to bring in or repair every disabled car. 
It is only bound to exercise due care, through its vice-prin- 
cipals, **® and through a proper system of timely inspec- 
tion, to discover the disabled cars and notify the trainmen 
of such condition. When this is done, the risk of handling 
the cars and carrying them to the shop becomes one of the 



March, 1906.] ALvrshall v. St. Louis etc. Ry. Co. 31 

risks ordinarily incident to the employment, and is assumed 
by the employe: 1 Labatt on Master and Servant, sec. 268; 
Dresser on Employers' Liability, p. 409; 4 Thompson on 
Negligence, sec. 4729; Chesapeake etc. R. Co. v. Hennessy, 
96 Fed. 713, 38 C. C. A. 307; Yeaton v. Boston etc. R. R., 
135 Mass. 418; Judkins v. Maine Cent. R. Co., 80 Me. 
417, 14 Atl. 735 ; Arnold v. Delaware etc. Co., 125 N. Y. 15, 
25 N. E. 1064; Chicago etc. Ry. Go. v. Ward, 61 111. 130; 
Fraker v. St. Paul etc. Ry. Co., 32 Minn. 54, 19 N. W. 349 ; 
Kelly V. Chicago etc. Ry. Co., 35 Minn. 490, 29 N. W. 173 ; 
Flannagin v. Chicago etc. R. Co., 50 Wis. 462, 7 N. W. 337 ; 
Watson V. H. & T. C. Ry. Co., 58 Tex. 434 ; Brown v. Chicago 
etc. R. Co., 59 Kan. 70, 52 Pac. 65. 

The doctrine applicable to the facts of this case is fully 
stated by the supreme court of Minnesota in Kelly v. Chi- 
cago etc. R. Co., 35 Minn. 490, 29 N. W. 173, as follows : 

"The aspect of the case is, then, this: The plaintiff's in- 
testate is notified generally that the car is in bad order, so 
that it has been necessary to withdraw it from ordinary 
service and lay it up for repairs. When he comes to handle 
it, he does so knowing that, for some reason not disclosed 
to him, it is not suitable for use in the ordinary way. Not 
knowing what, in particular, those reasons are, if he han- 
dles the car at all, he handles it as a ear which is unsuit- 
able for use, and at his own risk, not only for its defects — 
at least for such as are apparent to or would be fairly sug- 
gested by ordinarly diligence and careful observation, like 
those of the brake on this car The plaintiff's intes- 
tate must be taken to have asstlmed the risk of handling 
this car as one in bad order, which it therefore might be 
dangerous to handle in the ordinary way, and as to which, 
in the absence of any definite information as to the respect 
in which it was defective, the burden of ascertaining the 
defects and source of danger was cast upon and assumed 
by him. As he took this risk and burden upon himself, he 
cannot hold the defendant responsible for it." 

In Chesapeake etc. R. Co. v. Hennessy, 96 Fed. 713, 38 
C. C. A. 307, Judge Lurton, speaking for the court, said : 
"The rule is well settled that if the work of the employe 
consists, in whole or in part, in dealing with damaged or 
defective cars, and which, by the very **® nature of his 
occupation, he must know, or have some reason to know, 
are unsafe and dangerous, he voluntarily assumes the risk 



32 American State Reports, Vol. 115. [Arkansas, 

and hazards which are incident to the duty he was engaged 
to perform. It is not a case where dangerous or defective 
instrumentalities are supplied by the master to be used 
in his work, and where notice of such danger should be 
given, but a case where the instrumentalities to be handled 
and worked with or upon are understood to involve peril 
and to demand unusual care. In such cases, the risk is 
assumed by the servant as within the terms of his contract, 
and compensated by his wages." 

We do not mean to hold that because the servant is en- 
gaged in the hazardous work of handling disabled cars he 
is deemed to have assumed risks created by the negligence 
of the company or its vice-principals, or that the company 
is absolved from the exercise of due care to protect him. 
On the contrary, we say that whilst he is engaged in that 
work, though he is deemed to have assumed all the ordinary 
risks incident to the performance of that particular duty, 
yet the same duty rests upon the company and its vice- 
principals to commit no act of negligence whereby he may 
suffer injury, and to exercise ordinary care to protect him 
from danger, as while he is in the discharge of other and 
less hazardous work. The case of St. Louis etc. Ry. Co. 
V. Touhey, 67 Ark. 209, 77 Am. St. Rep. 109, 54 S. W. 577, 
is illustrative of the doctrine. In that case the servant was 
a member of a wrecking crew engaged in removing wrecked 
cars to the repair shops, and was injured by reason of the 
negligent acts of other employes of the company in moving 
the train to which the cars were attached at too rapid a 
speed. The court held that the company was liable for the 
negligence — that it was a risk which the servant had not 
assumed. But in the case at bar the servant knew that 
the car was disabled. It was a part of his duties to handle 
such cars, and, according to all the authorities on the sub- 
ject, he must be deemed to have assumed, as one of the or- 
dinary risks of his employment, the risk resulting from the 
disabled condition of the car. 

This being true, the evidence did not justify a verdict in 
favor of the plaintiff, and the court properly instructed the 
jury to return a verdict for the defendant. 

Affirmed. 

Riddick, J., not participating. 



March, i9i06.] Frazier v. Poindexter. 33 

The Liability of an Employer to his employe for injuries arising 
from defective machinery and appliances is considered in the note to 
Brazil Block Coal Co, v, Gibson, 98 Am. St. Rep, 289. It is the duty 
of a railroad company to provide and maintain reasonably safe and 
suitable cars and appliances for its employes to work with: Cincin- 
nati etc. R. R. Co. V. McMullen, 117 Ind. 439, 10 Am. St. Rep. 67; 
Mason v. Richmond etc. R. R. Co., Ill N. C. 482, 32 Am. St. Rep. 814; 
Eaton V. New York etc. R. R. Co., 163 N. Y. 391, 79 Am, St, Rep. 600. 
On the general doctrine of assumption of risks on the part of an em- 
ploye, see the note to Houston etc. Ry, Co. v. De Walt, 97 Am. St. 
Rep. 884. 



FRAZIER V. POINDEXTER. 

[78 Ark. 241, 94 S. W. 464.] 

AOENCT — Undisclosed Principal — Setoff.:^— If an undisclosed 
principal sues on a contract made by his agent in his own name with 
some person who had no knowledge of the agency but supposed that 
the agent dealt for himself, such suit is subject to any defense or 
setoff acquired by a third person against the agent before he had 
notice of the principal's rights, and this rule applies not only to the 
sale of goods, but as well to other contracts where the agent is au- 
thorized to collect money for his undisclosed principal, (p. 36.) 

AGENCY — Knowledge of Undisclosed Principal — Setoff, — If a 

Eerson who deals with an agent, acting in his own name, knows, or 
as reason to believe, that he is dealing with an agent, though he 
does not know who the principal is, he cannot plead against such 
principal a defense or setoff which he has against the agent, (p. 
36.) 

AGENCY — Setoff, — If an agent accepts notes for collection 
Bnder an agreement that he will pay the money, when collected, over 
a third person, he has no right to use it as a setoff on a demand due 
him from his principal, disclosed or undisclosed, (p, 37,) 

Smead & Powell and Campbell & Stevenson, for the ap- 
pellant. 

24* McCULLOCH, J. This is an action brought by N, F. 
Frazier, appellant, against E. S, Poindexter, appellee, on 
account to recover money alleged to have been collected by 
the defendant upon certain promissory notes delivered to 
him by one J. W, Ferguson as agent of plaintiff, 

Frazier lived at El Dorado, Kansas, and owned a lot of 
horses which he placed for sale in the hands of Ferguson, 
who was engaged in the business of buying and selling 
horses in Arkansas. Ferguson sold the horses for Frazier 
in Miller county, this state, taking notes for the purchase 
price in his own name. He delivered these notes to Frazier 
Am, St, Eep,, Vol. 115—3 



34 American State Reports, Voii. 115. [Arkansas, 

who subsequently returned them to him (Ferguson) for col- 
lection. There is a conflict in the testimony concerning the 
indorsements on the notes. Frazier and Ferguson both tes- 
tified that they were assigned to the former by written in- 
dorsements on the back of each note, whilst Poindexter tes- 
tified that Ferguson indorsed them in blank. 

Ferguson sent the notes for collection by mail to Poin- 
dexter, who was at the time an employe of Ferguson's on a 
stated salary, assisting him in buying and selling horses 
and cattle, making collections, etc. Ferguson testified that 
he directed Poindexter to remit the money when collected 
to Frazier. Poindexter testified that Ferguson instructed 
him to remit to Frazier any amount left in his hands after 
making expenditures directed by him (Ferguson). He col- 
lected five hundred and fifty-two dollars and seventy-five 
cents on the notes and remitted three hundred and twenty- 
five dollars to Frazier, promising to remit the balance soon, 
but subsequently he refused to pay the balance of two hun- 
dred and twenty-seven dollars and seventy-five cents to 
Frazier, upon the alleged ground that Ferguson owed him 
more than that amount on account, and claimed that he 
had collected the money for Ferguson under the belief that 
the notes belonged to the latter and without any informa- 
tion that Frazier owned the notes. He claimed in his tes- 
timony at the trial that he knew Frazier to be a banker at 
El Dorado, Kansas, and supposed that Ferguson directed th'j 
remittance to be made to him because he (Ferguson) was 
indebted to Frazier. 

In his answer, Poindexter set forth the above as a defense 
and pleaded his account against Ferguson as a setoff. He 
also alleged that, under the belief that Ferguson owned the 
horses and notes, he expended large sums, by direction of 
Ferguson, ^^^ in feeding and taking care of the horses, and 
that he was directed to pay therefor out of the said funds 
collected. 

A trial before a jury upon the issues thus presented re- 
sulted in a verdict for the defendant, and the plaintiff ap- 
pealed. 

Appellant asked the court to give the following instruc- 
tions: "1. The court instructs the jury that if you find 
from the evidence in this case that the notes from which 



March, 1906.] Frazier v. Poindexteb. 85 

the money was collected were made payable to J. W. Fer- 
guson or order, and that the said J. W. Ferguson, for value, 
before they were due, transferred said notes to Frazier, and 
that said notes were received from Frazier for collection by 
Ferguson, and delivered to defendant, and he collected 
same, and failed to remit said money, then your verdict 
must be for plaintiff, for the amount he has received for 
Frazier and has not remitted." 

But the court, over the objection of appellant, added to 
said instruction the following: "If the defendant knew 
Frazier was the owner of the notes, or was in possession 
of facts that would place a reasonable person on inquiry 
as to the ownership." 

Appellant also asked the court to give the following in- 
struction, which the court, over his objection, modified by 
inserting the words in italics: "3. The court instructs the 
jury that if you find from the evidence in this case that the 
notes were the property of the ^^'^ plaintiff, and the de- 
fendant collected the same agreeing to remit the amount so 
collected to plaintiff, and knowing the plaintiff to be the 
owner of the notes, then your verdict should be for the plain- 
tiff in the amount collected less amount remitted, though 
you may further find that the said Ferguson is or is not in- 
debted to the said Poindexter. ' ' 

The court refused to give the following instruction asked 
by appellant: "4. The court instructs the jury that J. W. 
Ferguson is not a party to this suit; and if you find from 
the evidence in this case that these notes were taken in the 
name of J. W. Ferguson, and by Ferguson transferred to 
the plaintiff by writing his name on the back of said notes 
for value, and by Frazier were delivered to Ferguson, and 
by him delivered to defendant for collection for accoimt 
of Frazier, and the defendant accepted said notes for col- 
lection for plaintiff and collected same, then your verdict 
should be for the plaintiff in the amount collected, less 
amount remitted, though you may further find that the wit- 
ness Ferguson is or is not indebted to the defendant." 

The court erred in refusing the fourth instruction asked 
by appellant. That instruction contained a recital of facts 
which, if they were found to be true, were sufficient to put 
appellee upon notice that the notes belonged to appellant, 
and he could not under those circumstances claim a setoff 



36 American State Reports, Vol. 115. [Arkansas, 

against the money collected thereon. It was undisputed, 
under the testimony, that the notes belonged to appellant. 
If, therefore, they were taken in the name of Ferguson, but 
transferred to appellant by written indorsement, and ap- 
pellee accepted them for collection for appellant, he was 
bound to take notice of the latter 's ownership, and account 
for the money collected. He could not apply it on a debt 
due him by Ferguson. This instruction was not covered by 
the first instruction asked by appellant and modified by the 
court. The latter did not embrace the facts stated in the 
former that the assignment of the notes was in writing, so 
that appellee was bound to take notice of it, nor that he 
accepted the notes for collection for appellant. 

It is undoubtedly the law that where an undisclosed prin- 
cipal sues on a contract made by his agent in his own name 
with some person who had no knowledge of an agency, 
but supposed ^^^ that the agent dealt for himself, such suit 
is subject to any defense or setoff acquired by the third 
party against the agent before he had notice of the princi- 
pal's rights: 2 Clark & Skyles on Agency, sec. 537; Tiffany 
on Agency, p. 311 : George v. Clagett, 7 Term Rep. 359 ; 
Rabone v. Williams, 7 Term Rep. 360; Belfield v. National 
Supply Co., 189 Pa. 189, 69 Am. St. Rep. 799, 42 Atl. 131; 
Sullivan v. Shailor, 70 Conn. 733, 40 Atl. 1054; Buchanan v. 
Cleveland Linseed Oil Co., 91 Fed. 88, 33 C. C. A. 351. 

And this rule applies not only to sale of goods, but as 
well to other contracts where the agent is authorized to col- 
lect money for his undisclosed principal : Tiffany on Agency, 
p. 311; Montague v. Forward, [1893] 2 Q. B. 350. 

But if the party who dealt with the agent, acting in his 
own name, knew, or had reason to believe, that he was deal- 
ing with one who was an agent for some third person, he 
cannot successfully plead such defense or setoff. He must, 
in order to be protected, be innocent of any knowledge or 
of facts and circumstances which would put a reasonably 
prudent person on inquiry that he was dealing with an 
agent. Where he knows that the party he is dealing with 
is an agent, although he does not know who the principal 
is, he is not protected: Quinn v. Sewell, 50 Ark. 380, 8 S. 
W. 382 ; Baxter v. Sherman, 73 Minn. 434, 72 Am. St. Rep. 
631, 76 N. W. 211; Semenza v. Brinsley, 18 Com. B., N. S., 



March, 1906.] Frazier v. Poindexter. 37 

467, 34 L. J. C. P. 161 ; 114 Eng. Com. L. 467 ; George v. 
Clagett, 7 Term Rep. 359 ; Bliss v. Bliss, 7 Bosw. 344. 

The third instruction asked by appellant should have 
been given, and the court erred in modifying it. If the de- 
fendant accepted the notes for collection under an agree- 
ment that he would pay the money when collected over to 
plaintiff, he had no right to apply it to his own debt, and to 
refuse to pay it to plaintiff, even though he had no informa- 
tion of Ferguson's agency and believed that the notes be- 
longed to Ferguson. 

"The right of setoff, recoupment and counterclaim in ac- 
tions at law between principal and agent is," says Mr. 
Mechem, "governed ordinarily by the same rules that ap- 
ply in other cases. This right, however, may be waived by 
contract, express or implied, and it cannot be insisted upon 
where its enforcement would result in a violation of the 
agent's duty to his principal. The receipt of money by an 
agent to be applied to a specific purpose imposes upon him 
the duty not to apply it to another and different purpose. 
He cannot, therefore, apply it to his own use by using as a 
setoff against it a demand due him from his principal": 
*** Mechem on Agency, sec. 535; 1 Clark & Skyles on 
Agency, sec. 427; Tagg v. Bowman, 108 Pa. 273, 56 Am. 
Rep. 204. 

The same rule would undoubtedly apply where suit is 
brought by an undisclosed principal; for, if the defendant 
could not have claimed the right of setoff against his own 
principal, he could not do so against the undisclosed prin- 
cipal of an agent with whom he dealt as principal. 

There was abundant evidence to base the instruction upon 
as asked by appellant. Ferguson testified that when he 
sent the notes to Poindexter for collection he instructed 
him to remit the amount collected to Frazier, and he was 
corroborated by Frazier, who testified that Poindexter, 
when he made the remittance of three hundred and twenty- 
five dollars, promised to send the balance in a short time. 
If the jury found these facts to be true, and that Ferguson 
did not recall that direction for the application of the 
funds, then the verdict should have been for the plaintiff. 

The first instruction given at the request of appellee is 
objectionable, because it imposed upon appellant the bur- 



38 American State Reports, Vol. 115. [Arkansas, 

den of showing that he had given notice to appellee of his 
rights, even though the jury found that there were cir- 
cumstances sufficient to put him upon notice as to appel- 
lant's ownership of or interest in the notes, but this objec- 
tion should have been specifically pointed out. A general 
objection to the instruction as a whole was not sufficient. 

For the errors indicated, the judgment is reversed, and 
cause remanded for a new trial. 



Suits "by Undisclosed Principals on contracts made by their agents 
are considered in the note to Powell v. Wade, 55 Am. St. Rep. 915. 
An undisclosed principal runs the risk, as against those who deal 
with his agent as the real owner, of having his claim met by the set- 
off of a demand due from the agent: Belfield v. National Supply Co., 
189 Pa. 189, 69 Am. St. Kep. 799, See, however, Baxter v. Sherman, 73 
Minn. 434, 72 Am. St. Bep. 631. 



SWING V. ST. LOUIS REFRIGERATOR AND WOODEN 
GUTTER COMPANY. 

[78 Ark. 246, 93 S. W. 978.] 

JUDGMENTS, FOREIGN— Proof of, to Cpnfer Jurisdiction.— 

One claiming authority to sue as trustee under a foreign judgment, 
must, to maintain his suit, when the defendant denies the jurisdic- 
tion of the foreign court to appoint the plaintiff a trustee, not only 
produce the judgment appointing him, but also prove such pleadings 
and proceedings as empowered the court to render the judgment, 
(pp. 40, 41.) 

JUDGMENTS — Jurisdiction. — A petition or complaint must 
be filed in the court whose action is sought, or the subject matter must 
be otherwise presented for its consideration in some mode sanctioned 
by law, in order to confer jurisdiction upon the court to render judg- 
ment, (p. 41.) 

LIMITATION OF ACTIONS— Burden of Proof.— If the statute 
of limitations is set up as a defense, the burden is upon the plaintiff 
to prove that his action was brought within the time prescribed by 
such statute, (p. 41.) 

Hardage & Wilson, J. W. & M. House and P. A. Reece, 
for the appellant. 

J. H. Crawford, for the appellee. 

**® BATTLE, J, James B. Swing, as trustee for the cred- 
itors and policy-holders of the Union Mutual Insurance 
Company, of Cincinnati, Ohio, in a complaint in an action 



March, '06.] Swing v. St, Louis Refbigerator etc. Co. 39 

against the St. Louis Refrigerator and Wooden Gutter 
Company, alleged that the supreme court of Ohio, on De- 
cember 18, 1890, disincorporated said insurance company, 
and afterward appointed plaintiff the trustee for the credi- 
tors and policy-holders of the insurance company, and he 
accepted the trust and qualified, and is acting as such trus- 
tee; that said insurance company was a mutual company, 
and was incorporated under the laws of Ohio on May 27, 
1887 ; that section 3650 of the Revised Statutes of Ohio pro- 
vides that "every person who effects insurance in a mutual 
company, and continues to be insured, and his heirs, ex- 
ecutors, administrators and assigns, shall thereby become 
members of the company during the period of insurance, 
and shall be bound to pay for losses and such necessary ex- 
penses as accrue in and to the company in proportion to 
the original amount of his deposit note." Said mutual in- 
surance company was doing business during the years 1889 
and 1890, That the defendant accepted from the insur- 
ance company a policy of insurance on its property against 
loss by fire ; that said policy was for four thousand dol- 
lars, and was in force from May 1, 1889, to May 1, 1890, 
the annual premium on it being ninety-six dollars; that the 
contingent liability to assessment of the defendant, under 
the by-laws of the company and the statutes of Ohio and 
the decree hereinafter mentioned, was and is five times the 
annual premium, to wit, four hundred and eight dollars; 
that by accepting and holding the policy the defendant 
effected insurance in the insurance company during the 
time and in the amount aforesaid, and became a member of 
the same, and is legally and equitably liable for its just 
proportion of all unpaid losses and expenses incurred by 
the insurance company *^® during the life of the policy 
and to pay such percentage on the amount of the contin- 
gent liability to assessment on the policy. That the su- 
preme court of Ohio, on the eleventh day of June, 1901, 
assessed the rate of liability of the members and stock- 
holders of the insurance company for the unpaid losses and 
expenses of the company; that plaintiff, on or about the 
sixth day of September, 1901, notified the defendant to 
pay said assessment, but it refused to do so, and is indebted 
to him as such trustee, on the assessment, in the sura of 
one hundred and sixteen dollars and seventy-seven cents, 



40 American State Reports, Vol, 115. [Arkansas, 

with six per cent per annum interest thereon from 6th 
of September, 1901. 

The defendant, the St. Louis Refrigerator and Wooden 
Gutter Company, answered and denied that the supreme 
court of Ohio disincorporated the insurance company and 
appointed plaintiff trustee as alleged, and made and en- 
tered a decree of assessment; and alleged that the supreme 
court of Ohio was without jurisdiction to appoint plain- 
tiff trustee for the purposes alleged in the complaint; and 
pleaded the statute of limitation in bar of plaintiff's right 
to maintain this action. 

In the trial of this action the following was shown to be 
a statute of Ohio: "Every person who effects insurance in 
a mutual company, and continues to be insured, and his 
heirs, executors, administrators and assigns, shall thereby 
become members of the company during the period of in- 
surance, shall be bound to pay for losses and such neces- 
sary expenses as accrue in and to the company in propor- 
tion to the original amount of his deposit note or contingent 
liability; and the directors shall, as often as they deem 
necessary, settle and determine the sum to be paid by the 
several members thereof, and publish the same in such man- 
ner as they may choose, or as the by-laws prescribe, and the 
sum to be paid by each member shall always be in propor- 
tion to the original amount of such liability, and shall be 
paid to the officers of the company within thirty days next 
after the publication of such notice, ' ' etc. 

The issuance of the policy, the date, the amount, the 
premium and the time it was in force were shown to be as 
alleged in the complaint. 

What was said to be the judgment of the supreme court 
of Ohio, without any pleadings or other proceedings, was 
read as evidence. 

^'^^ The defendant recovered judgment, and plaintiff ap- 
pealed. 

The appellee having denied that the supreme court of 
Ohio had jurisdiction to appoint appellant trustee, the duty 
and the burden devolved upon him to show jurisdiction. 
He failed to do so. He produced what he called the judg- 
ment of the court appointing him trustee, but did not prove 
such pleadings and proceedings as authorized or empowered 
the court to render the judgment. "It is essential," says 



March, '06.] Swing v. St, Louis Refrigerator etc. Co. 41 

Mr. Freeman, "that the jurisdiction of a court over a sub- 
ject matter be called into action by some party and in 
some mode recognized by law. A court does not have 
power to render the judgment in favor of one as plaintiff 
if he has never commenced any action or proceeding call- 
ing for any action, nor has it, as a general rule, power to 
give judgment respecting a matter not submitted to it for 
decision, though such judgment is pronounced in an action 
involving other matters which have been submitted to it 
for decision, and over which it has jurisdiction. A petition 
or complaint must be filed in the court whose action is 
sought, or otherwise presented for its consideration in some 
mode sanctioned by law": 1 Freeman on Judgments, sec. 
120, and cases cited. 

Many illustrations might be given of this rule. A few 
will suffice. "The circuit courts of this state have juris- 
diction to enforce the collection of debts according to an 
established procedure. A holds the bond of B for one thou- 
sand dollars, due and unpaid. He goes into a circuit court 
with the bond in his hand, and without writ issued or any 
pleadings, asks the court to award a rule against B to show 
cause why judgment should not be rendered against him 
for the debt and interest. The rule is accordingly awarded, 
executed and returned, and judgment thereupon rendered 
for the debt, interest and costs. Such a judgment would 
be void, notwithstanding the court has jurisdiction of the 
subject and of the parties. Why void? Because, in the 
language of Mr. Justice Field, 'the court is not authorized 
to exert its power in that way.' The same would be true 
if A should sue B on one bond, and in the same action de- 
cline to take judgment on the bond sued on, and take judg- 
ment on another bond of B, on which no suit had been in- 
stituted, without the consent of B": Anthony v. Kasey, 83 
Va. 338, 5 Am. St. Rep. 277, 5 S. E. 176 ; Searaster v. Black- 
stock, 83 Va. 232, 5 Am. St. Rep. 262, 2 S. E. 36; Munday 
V. Vail, 34 N. J. L. 418. 

*** Appellant was therefore without authority to bring 
or maintain this action. 

Appellee having pleaded the statute of limitation, the 
burden devolved upon the appellant to prove that this ac- 
tion was brought within the time prescribed by the stat- 
ute : Taylor v. Spears, 6 Ark. 381, 44 Am. Dec. 519 ; McNeil 



42 American State Reports, Vol. 115. [Arkansas, 

V. Garland, 27 Ark. 343; Carnall v. Clark, 27 Ark. 500; 
Memphis etc. Ry. Co. v. Shoecraft, 53 Ark. 96, 13 S. W. 422 ;• 
Leigh V. Evans, 64 Ark. 26, 41 S. W. 427. The policy 
and membership of appellee in the insurance company ex- 
pired on the 1st of May, 1890. The insurance company was 
disincorporated on the eighteenth day of December, 1890, 
by the supreme court of Ohio. Its directors, during its 
life, were authorized by the laws of Ohio to apportion its 
losses and expenses among its members, and to give notice 
of such apportionment; and thirty days were allowed in 
which to pay the amount so apportioned. This could have 
been done and the statute set in motion before the com- 
pany was disincorporated. It was therefore necessary for 
appellant to prove that it was not done, in order to show 
that his action was not barred. The proceedings of the 
supreme court of Ohio alone were not sufficient to show that 
the action was brought within the time prescribed by the 
statute, because the statute of limitation might in the man- 
ner indicated have been set in motion before such proceed- 
ings were instituted. 

The evidence fails to show that this action was brought 
within the time prescribed by the statute of limitation. 

Judgment affirmed. 



In an Action Upon a Judgment rendered by a court of a sister 
state, the defendant may plead and prove a want of jurisdiction in 
the court which rendered the judgment: Chicago Title etc. Co. v. 
Smith, 185 Mass. 363, 102 Am. St. Eep. 350; Cuykendall v. Doe, 129 
Iowa, 453, 113 Am. St. Eep. 472. See the note to Montgomery v. 
Consolidated Boat Store Co., 103 Am. St. Eep. 304. 



LIDDELL V. BODENHEIMER. 

[78 Ark. 364, 95 S. W. 475.] 

JUDGMENTS — Entry Nunc Pro Tunc. — Parol evidence of an 
order omitted from the record, if satisfactory, is sufficient to au- 
thorize a nunc pro tunc or judgment, (p. 44.) 

JUDGMENTS — Entry Nunc Pro Tunc — Limitations. — An ap- 
plication for a nunc pro tunc order cannot be barred by limitation. 
(p. 44.) 

JUDGMENTS — Entry Nunc Pro Tunc. — A court has no au- 
thority to set aside or modify its judgment after the expiration of 
the term at which it was rendered, on application for a nunc pro 
tunc order, (p. 44.) 



April, 1906.] Liddell v. Bodenheimer. 43 

P. G. Taylor, for the appellant. 
J. D. Block, for the appellee. 

^** BATTLE, J. An action was brought in the name of 
Bodenheimer, Landau & Company against Robert Liddell, 
before a justice of the peace of Clay county, to recover the 
possession of certain personal property. Plaintiffs re- 
covered judgment, and the defendant appealed to the cir- 
cuit court. 

In the circuit court (the term is not shown) plaintiffs 
represented to the court that the action was brought with- 
out their consent, and asked that it be dismissed, and there- 
upon S. D. ^^^ Hawkins, who had possession of the prop- 
erty in controversy and claimed the same, appeared, and 
asked that he be substituted for plaintiffs, and that the ac- 
tion proceed in his name as such. The action was dis- 
missed as to Bodenheimer, Landau & Company, and revived 
in the name of S. D. Hawkins as plaintiff. This order was 
not entered of record. 

At the January, 1894, term of the Clay circuit court for 
the eastern district, the action proceeded in the names of 
Bodenheimer, Landau & Company and S. D. Hawkins, plain- 
tiffs, against Robert Liddell and John Matthews Apparatus 
Company, defendants, and Hawkins recovered judgment 
against the defendants for the property in controversy. 
This proceeding was had after the action was dismissed as 
to Bodenheimer, Landau & Company. On motion of the 
defendants the judgment in favor of Hawkins was set aside, 
and a new trial was granted. 

At the August, 1895, term of the Clay circuit court for 
the eastern district of Clay county, the action was called for 
trial, and the plaintiffs failed to appear. Judgment by de- 
fault was rendered against Bodenheimer, Landau & Com- 
pany in favor of the defendant, Robert Liddell, for the 
property in controversy and costs. 

In August, 1901, Bodenheimer, Landau & Company filed 
an application in Clay circuit court for the eastern dis- 
trict, in which they stated the foregoing facts, and asked 
that the order omitted from the record be entered nunc 
pro tunc. All parties appeared, and the court heard the 
application and the evidence adduced in respect thereto, 
and found that the order was made, and ordered that it 



44 American State Reports, Vol. 115. [Arkansas, 

be entered, and ordered that the judgment in favor of Lid- 
dell against Bodenheimer, Landau & Company for property 
be corrected so as to be against Hawkins, and to show that 
Bodenheimer, Landau & Company were and are not parties 
thereto ; and Liddell appealed. 

Parol evidence of an order omitted from the record, if 
satisfactory, is sufficient to authorize a nunc pro tunc order 
or judgment : Bobo v. State, 40 Ark. 224 ; Ward v. Magness, 
75 Ark. 12, 86 S. W. 822. The application for the order 
was not barred, by the statute of limitations : 1 Freeman on 
Judgments, 4th ed., sec. 73, and cases cited. 

The court erred in setting aside or modifying a judgment 
36« -vv^hich was actually rendered. It had no authority to 
set aside or modify a judgment after the term at which it 
was rendered has expired, on application for a nunc pro 
tunc order. 

The nunc pro tunc order is affirmed, and the order setting 
aside or modifying a judgment rendered at a previous term 
is reversed. 

Hill, C. J., did not participate. 



In Entering an Order Nunc Pro Tunc the court is not confined, ac- 
cording to many authorities, to an examination of the judge's min- 
utes, or written evidence, but may proceed on any satisfactory evi- 
dence, including parol testimony: See Harris v. Jennings, 64 Neb. 80, 
97 Am. St. Bep. 635, and cases cited in the cross-reference note there- 
to. 



TIPTON V. SMYTHE. 

[78 Ark. 392, 94 S. W. 678.] 

CONSTITUTIONAIj law— Due Process of Law.— A statute 
providing for the calling in and payment of state bonds, and au- 
thorizing the state treasurer to pay valid bonds only, and thereby 
imposing upon him the duty of ascertaining the validity of all bonds 
presented for payment, is not unconstitutional as depriving a bond- 
holder of his property without due process of law, as an appeal 
to the courts is always open to him from the adverse decision of 
the state treasurer, (p. 48.) 

CONSTITUTIONAL LAW — Statute of Limitations. — A statute 
merely prescribing a period of limitations within which outstanding 
past due state bonds may be presented for payment and redemption, 
is not unconstitutional, either as depriving the bondholder of his 
property without due process of law, or as impairing the obligation of 
his contract, (p. 48.) 



April, 1906.] Tipton v. Smythe. 45 

CONSTITUTIONAL LAW — Statute of Limitations.— The legis- 
lature may prescribe a period of limitation within which rights may 
be asserted, even though no limitation existed when the right accrued, 
or may shorten the period of limitation which existed when the right 
accrued, provided the added limitation is reasonable and affords 
ample opportunity for the assertion of existing rights, (p. 48.) 

CONSTITUTIONAL LAW — Limitation of Actions. — In deter- 
mining whether a statute of limitations affords a reasonable time 
for the assertion of rights existing at the time of its passage, the 
court must consider the circumstances under which it is to apply. 
(p. 50.) 

CONSTITUTIONAL LAW — Statute of Limitations — ^Notice. — A 
statute providing for the calling in and payment of certain past due 
state bonds after six months' public notice before the day fixed 
for expiration of the time for presenting the bonds for payment, 
is not unconstitutional as imposing unreasonably short terms as to 
length of time or adequacy of the notice, either as to resident or 
nonresident bondholders, (p. 51.) 

CONSTITUTIONAL LAW — Statute of Limitations.— A statute 
providing that certain past due state bonds shall be called in and 
paid upon, six months' public notice, and that unless presented within 
such time the right of presentation and payment shall be barred, 
is not unconstitutional, aa depriving a bondholder, whether resident 
or nonresident, of his property without due process of law, nor does 
it impair the obligation of his contract, (p. 52.) 

CONSTITUTIONAL LAW— Impairment of Obligation of Con- 
tracts. — A statute which deprives a holder of state bonds of the 
right to use his bond in payment of the purchase price of a certain 
class of public lands is not unconstitutional as impairing the obli- 
gation of a contract, if such statute provides for the payment by the 
state of the bond in money upon due presentation, (pp. 52, 53.) 

R. L. Rogers, attorney general, for the state. 
Bradshaw, Rhoton & Helm, for the appellee. 

»»4 McCULLOCH, J. Appellee, R. M. Smythe, being the 
owner of a bond numbered 2034 in the sum of one thousand 
dollars, with fifty-five semi-annual interest coupons of thirty 
dollars each attached thereto, issued by the state of Arkan- 
sas on January 1, 1870, and due thirty years after date, 
applied to the commissioner of state lands to purchase a 
certain tract of Real Estate Bank lands situated in Phil- 
lips county at the price of two hundred and forty dollars, 
and tendered to the treasurer of state eight of said inter- 
est coupons in payment therefor. 

The treasurer refused to accept said coupons on the 
ground that the bond and coupons attached .were barred be- 
cause not presented within the time required by an act of 
the General Assembly approved May 3, 1901, and appellee 
thereupon presented to the circuit court of Pulaski county 



46 American ^tate Reports, Vol. 115, [Arkansas, 

his petition for writ of mandamus to require the treasurer 
to accept said coupons in payment for the land. 

*** The treasurer appeared, and demurred to the peti- 
tion; the demurrer was overruled, and final judgment was 
rendered awarding the writ in accordance with the prayer 
of the petition, and the treasurer has appealed to this court. 

Said bond was issued by the state pursuant to the provi- 
sions of an act of the General Assembly of April 6, 1869, 
providing for the funding of the public debt of the state, 
the particular bond in question being a reissue, under said 
act, of Real Estate Bank bonds then outstanding. Section 
10 of said act of 1869 pledged the faith of the state for the 
payment of said bonds and interest, and to provide annually 
a sinking fund to pay off the principal as the same should 
become due. Section 11 of the act provides that "the pro- 
ceeds of all of the mortgages, notes, bills, and other securi- 
ties in possession of the state, obtained as security for the 
bonds issued to the Real Estate and State Bank, are hereby 
set aside as a sinking fund for the payment of the interest 
and principal of the bonds to be issued in pursuance of 
this act." 

The act of May, 3, 1901, the validity of which is chal- 
lenged by appellee, is entitled "An act to provide for the 
cancellation of certain state bonds, and to fix the rate of 
sinking fund tax." It provides (section 1) that immedi- 
ately after its passage "the state treasurer shall make a call 
for all outstanding valid bonds of the state, except those 
of the issue of 1899"; and (section 2) that the publication 
should be made in a daily newspaper published in the city 
of Little Rock, and certified copies of the call should be 
filed with the secretaries of the stock exchanges of New 
York, Boston and St. Louis, six months before the day fixed 
in the notice for expiration of the time in which the owners 
of bonds were allowed to present bonds for redemption. 
Section 3 provides that the call or notice shall warn all 
holders of bonds to present same for redemption and pay- 
ment within six months from the first day of said publica- 
tion, "or that said bonds shall thereafter be null and void 
and nonpayabl* out of the treasury." Section 5 provides 
that all valid bonds presented within the time prescribed 
shall be redeemed and paid by the treasurer out of the 
moneys in his hands to the credit of the sinking fund, and 



April, 1906.] Tipton v. Smythe. 47 

the succeeding section provides for a levy of taxes to raise 
a sinking fund, out of the which the bonds shall be paid. 

Section 4 of the act is as follows: ^^® "All persons who 
shall hold any of said valid bonds, and shall neglect or 
refuse to present same to the treasurer of state for redemp- 
tion within the time prescribed by this act and set out in 
said notice, shall thereafter be debarred from deriving any 
benefit from same; and said bonds shall thereafter be in- 
valid and nonpayable. The treasurer of state shall, upon 
expiration of the period of presentation and redemption 
herein fixed, indorse on the record of each of said bonds 
herein called in but not presented that same is barred of 
payment by the provisions of this act, and same shall no 
longer be carried on the books of the treasurer or auditor 
as part of the valid indebtedness of this state." 

Appellee in his petition attacks the validity of the act of 
May 3, 1901, on the following grounds: 

"A, Because said act seeks to deprive the owner of this 
bond of his property, without due process of law, by cancel- 
ing said bond without payment, in violation of the consti- 
tution of the state of Arkansas, and of the constitution of 
the United States. 

"B. Because said act seeks to call in or to cancel, without 
payment, an obligation of the state of Arkansas, under 
terms and condition which were not the law, and not there- 
fore a part of the contract at the time of the issuance of 
said bond, and thereby impairs the obligation of the con- 
tract between the state of Arkansas and the holder of the 
bond, and said act is in conflict with the constitution of the 
state of Arkansas, and the constitution of the United States. 

"C. Because the time within which to present said bond 
for payment is too short, and in violation of public policy. 

"D. Because said act does not repeal section 4866 of 
Kirby's Digest, providing for the acceptance of said bonds 
in payment of the purchase price of Real Estate Bank lands 
belonging to the state of Arkansas." 

A feature of both the first and second contentions of ap- 
pellee, that the act in question seeks to call in and cancel 
the bonds of the state without payment thereof, can easily 
be disposed of by reference to the express terms of the act 
itself. The express object and purpose of the act is to call 
in the bonds for payment und redemption, and not for 



48 American State Reports, Vol. 115. [Arkansas, 

adjudication as to their validity or ^^^ cancellation with- 
out payment. No unreasonable provisions are found in* the 
act requiring the bondholder to submit his bond to the 
treasurer or any other person or board for final determina- 
tion as to its validity. It is true that the act authorized 
the treasurer to pay valid bonds only, and thereby imposed 
upon him the duty of ascertaining the validity of all bonds 
presented for payment; but his adverse decision as to the 
validity of a bond was in no wise binding upon the bond- 
holder, to whom the courts are always open for an adjudica- 
tion of such questions. In this respect the act in question 
is entirely different from the statute condemned by this 
court in McCracken v. Moody, 33 Ark. 81, whereby holders 
of school district warrants were required to present them 
within a fixed time for cancellation and reissue, and to sub- 
mit them for final determination as to their validity to a 
board composed of the county judge and county clerk. 

It is urged against the validity of the statute that it is 
in violation of the constitution of this state and of the 
constitution of the United States, because the time within 
which the bonds must have been presented was too short, 
and the effect was to deprive the holder of his property 
"without due process of law," and that it impaired the ob- 
ligation of the contract between the state and its bondhold- 
ers inasmuch as, at the date of the issuance of the bond, no 
authority existed in the law for peremptorily calling in such 
obligations. 

We do not think either contention is sound. The statute 
merely prescribes a period of limitation within which out- 
standing past due bonds of the state might be presented for 
payment and redemption. That the legislature may pre- 
scribe a period of limitation within which rights may be 
asserted, even though no limitation existed when the right 
accrued, or may shorten a period of limitation which existed 
when the right accrued, is too well settled now for contro- 
versy. The only restriction upon that power is that the added 
limitation must be reasonable, and must afford an ample op- 
portunity for the assertion of existing rights, otherwise the 
effect would be to impair the obligation of a contract or to 
deprive a person of property without due process of law. 

Chief Justice Waite, in delivering the opinion of the court 
in Terry v. Anderson, 95 U. S. 628, 24 L. ed. 365, said: 



April, 1906.] Tipton v. Smythe. 49 

"This court has often ^*^ decided that statutes of limita- 
tion affecting existing rights are not unconstitutional, if 
a reasonable time is given for the commencement of an ac- 
tion before the bar takes effect (citing Hawkins v. Barney, 
5 Pet. 457, 8 L. ed. 190; Jackson v. Lamphire, 3 Pet. 280, 
7 L. ed. 679; Sohn v. Waterson, 17 Wall. 596, 21 L. ed. 
737 ; Christmas v. Kussell, 5 Wall. 290, 18 L. ed. 475 ; Sturges 
V. Crowninshield, 4 Wheat. 122, 4 L. ed. 529). It is diffi- 
cult to see why, if the legislature may prescribe a limita- 
tion when none existed before, it may not change one which 
has already been established. The parties to a contract 
have no more vested interest in a particular limitation which 
has been fixed than they have in an unrestricted right to 
sue In all such cases the question is one of reason- 
ableness, and we have, therefore, only to consider whether 
the time allowed in this statute is, under all the circum- 
stances, reasonable. Of that the legislature is primarily 
the judge; and we cannot overrule the decision of that de- 
partment of the government unless a palpable error has been 
committed. ' ' 

The same doctrine has been announced by that court in 
the following cases: Koshkonong v. Burton, 104 U. S. 668. 
26 L. ed. 886; Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. 
Rep. 854, 27 L. ed. 808; In re Brown, 135 U. S. 662, 10 
Sup. Ct. Rep. 972, 34 L. ed. 304 ; Turner v. New York, 168 
U. S. 90, 18 Sup. Ct. Rep. 38, 42 L. ed. 392 ; Saranac Land 
etc. Co. V. Comptroller of New York, 177 U. S. 318, 20 Sup. 
Ct. Rep. 642, 44 L. ed. 786 ; Wilson v. Iseminger, 185 U. S. 
55, 22 Sup. Ct. Rep. 573, 46 L. ed. 804. 

To the same effect see Cooley's Constitutional Limitations, 
7th ed., p. 523; 2 Lewis' Sutherland on Statutory Construc- 
tion, sec. 668; Meigs v. Roberts, 162 N. Y. 371, 76 Am. St. 
Rep. 322, 56 N. E. 838 ; Bigelow v. Bemis, 84 Mass. 496. 

It being therefore clear that the legislature had the power 
to pass a statute fixing a period within which the state's 
obligations should be presented for payment and redemp- 
tion, it only remains for us to determine whether the stat- 
ute in question prescribed a reasonable limitation upon the 
right of presentation. Of this the legislature is primarily 
the judge, as we have already seen: Koshkonong v. Burton, 
104 U. S. 668, 26 L. ed. 886. 
Am. St. Eep., Vol. 115—4 



50 American State Reports, Vol. 115, [Arkansas, 

"It is essential," says Judge Cooley, "that such statutes 
allow a reasonable time after they take effect for the com- 
mencement of suits upon existing causes of action; though 
what shall be considered a reasonable time must be settled 
by the judgment of the legislature, and the courts will not 
inquire into the wisdom of its decision in establishing the 
period of legal bar, unless the **® time allowed is mani- 
festly so insufficient that the statute becomes a denial of 
justice": Cooley 's Constitutional Limitations, 7th ed., 523. 

In determining whether or not the statute is reasonable, 
the court must consider the circumstances under which it 
is made to apply, and also whether the notice provided for 
is reasonable. 

"It is evident from this statement of the question that 
no one rule as to length of time which will be deemed rea- 
sonable can be laid down for the government of all cases 
alike. Different circumstances will often require a differ- 
ent rule. "What would be reasonable in one class of cases 
would be entirely unreasonable in another": In re Brown, 
135 U. S. 662, 10 Sup. Ct. Rep. 972, 34 L. ed. 304. How- 
ever, a reference to cases will illustrate the shortest periods 
which the courts have approved as reasonable. The 
shortest statute of limitation of this state which has there- 
tofore been passed upon by this court is the two years stat- 
ute as to suits to recover lands held under sales for non- 
payment of taxes, and the court has repeatedly upheld the 
statute: Ross v. Royal, 77 Ark. 324, 91 S. W. 178; Finley 
V. Hogan, 60 Ark. 499, 30 S. W. 1045. 

In Terry v. Anderson, 95 U. S. 628, 24 L. ed. 365, a stat- 
ute which limited the time for bringing suit to nine and a 
half months was held not unreasonable. 

In Turner v. New York, 168 U. S 90. 18 Sup. Ct. Rep. 
38, 42 L. ed. 392, the supreme court of the United States, 
following the decision of the New York court of appeals in 
Meigs V. Roberts, 162 N. Y. 371, 76 Am. St. Rep. 322, 56 
N. E. 838, held that a statute of that state providing that 
deeds from the comptroller of the state of lands in the forest 
preserve sold for nonpayment of taxes should, after having 
been recorded for two years and in any action brought 
more than six months after the act took effect, be con- 
clusive evidence that there was no irregularity in the as- 
sessment of the taxes, was a statute of limitation, and as 
such was reasonable and valid. This decision was also 



April, 1906.] Tipton v. Smythe. 51 

followed in Saranac Land etc. Co. v. Comptroller, 177 U. S. 
318. 20 Sup. Ct. Rep. 642, 44 L. ed. 786, where Mr. Justice 
McKenna, speaking for the court, said: "The decision (in 
Turner v. New York, 168 U. S. 90, 18 Sup. Ct. Rep. 
38, 42 L. ed. 392) establishes the following propositions: 
1. That statutes of limitations are within the constitutional 
power of the legislature of a state to enact; 2. That the 
limitation of six months was not unreasonable." 

In Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. Rep. 854, 
27 L. ed. 808, the same court upheld as reasonable a provi- 
sion of the constitution of the state of Louisiana ^*^ adopted 
in 1868, and a statute pursuant thereto passed March 8, 
1869, requiring that all "tacit mortgages [in favor of a 
minor on the property of his tutor] and privileges now ex- 
isting in this state shall cease to have effect against third 
parties after January 1, 1870, unless duly recorded." The 
statute gave only the period from the date of passage March 
8, 1869, until January 1, 1870, within which such mortgages 
might be recorded, and the court held it to be a reasonable 
provision, even against an infant. 

In Krone v. Krone, 37 Mich. 308, the court, by Judge 
Cooley, upheld a statute shortening the period of limitation 
to one year on causes of action then existing. In Osborne 
V. Lindstrom, 9 N. Dak. 1, 81 Am. St. Rep. 516, 81 N. W. 
72, 46 L. R. A. 715, a statute under which an existing cause 
of action could be asserted within nine months after the 
statute went into effect was upheld as reasonable. In Bige- 
low V. Bemis, 84 Mass. 496, the supreme court of Massa- 
chusetts held that a statute was reasonable which shortened 
the period of limitation and left about five months within 
which an existing cause of action might be asserted. 

Applying the rule illustrated by these cases, we see no 
grounds upon which the statute under consideration can be 
held to be unreasonable. 

It must be remembered that when this statute was passed 
the bonds were past due about a year and a half. The stat- 
ute required the notice to be published in a daily news- 
paper in the capital city of the state, and certified copies to 
be filed with the secretaries of the stock exchanges of New 
York, Boston and St. Louis for six months before the expira- 
tion of the time for presenting the bonds for payment. 

It is alleged in the petition that appellee was, at the 
time of the passage of this act and the publication of the 



62 American State Reports, Vol. 115. [Arkansas, 

notice, without the limits of the United States, and had no 
information thereof. It is argued that the statute was 
unreasonable because a bondholder so situated could re- 
ceive no notice of the terms of the statute. The same argu- 
ment could be made in favor of a bondholder in foreign 
lands if the statute had given six years, instead of six 
ihonths, for presentation if he had been making no effort to 
secure payment of his matured demand against the state. 
The legislature doubtless had in contemplation, when it fixed 
a short period, that the bonds were past due, and that the 
'*^* holders were accessible and in waiting for payment. It 
was not unreasonable to anticipate such a condition, and 
indulge the reasonable presumption that the holders of 
matured bonds would receive notice given in the manner 
pointed out by the statute. It is known that such securities 
are generally handled through the medium of the stock ex- 
change in the principal cities of the country, and that in- 
formation concerning their value may be ascertained through 
those channels. 

We cannot say that the statute imposed such unreason- 
able terms, either as to the length of time or adequacy of 
the notice, that it deprived the bondholder of his property 
"without due process of law," or impaired the obligation 
of the contract. 

Again, it is argued that the statute in question impairs 
the obligation of the contract if it be construed to bar the 
bondholder of using the bond in payment of Real Estate 
Bank lands, as provided by statute: Kirby's Digest, sec. 
4866. The statute just cited provides that such bonds shall 
be receivable in payment of the purchase price of Real Es- 
tate Bank lands, but it was enacted February 26, 1879, long 
after the issuance of the bonds, and therefore its provisions 
did not enter into and become a part of the contract. But, 
conceding that they did, the contract was in no wise im- 
paired 1t)y the act of May 3, 1901, as payment of the bond 
in money was provided for, and would have been made if 
it had been presented. The supreme court of the United 
States in the case of In re Brown, 135 U. S. 662, 10 Sup. 
Ct. Rep. 972, 34 L. ed. 304, where a statute authorizing the 
issuance of refunding bonds, as an inducement for accept- 
ance of the bonds, provided that they should be receivable 
for taxes, held that a subsequent statute limiting the time 
within which the same might be so used was void because 



April, 1906.] Tipton v. Smythe. 53 

it impaired the obligation of the contract. The decision 
was placed upon the ground that, as long as the bonds re- 
mained unpaid, the holder had, according to the terms of 
the original statute authorizing the issuance of the same, 
the right to use them in payment of taxes, and that a re- 
striction of that right impaired the obligation to that extent. 
No provision was • made for payment of the bonds within 
the limits prescribed by the new statute, and the court found 
that it would be impracticable for the bondholder to use 
all the bonds in payment of taxes within the time pre- 
scribed. 

■**** The statute we are now considering is vastly different 
in its operation. There can be no higher method of dis- 
charging a past due obligation than by payment in money; 
and when this method of payment was provided by the 
statute, the bondholder sustained no impairment of his con- 
tract by being deprived of the right to use it in payment for 
lands. 

Lastly, it is contended that the statute does not in express 
terms repeal the act of 1879, making the bonds receivable 
in payment of the purchase price of Real Estate Bank lands, 
and should be construed not to deprive the holder of that 
right given by the former statute. The statute in the broad- 
est terms provides that bonds not presented within the time 
prescribed should thereafter be treated as invalid and barred 
for all purposes. By no sort of reasoning can the act be 
construed to leave the bonds in force for the purposes of 
use in payment for lands purchased from the state. 

The circuit court erred in awarding the writ of mandamus, 
and the judgment is reversed and cause remanded, with di- 
rections to sustain the demurrer to the petition. 



Constitutional Law. — Statutes of Limitation affecting exi&ting rights 
are not unconstitutional if a reasonable time is given for the commence- 
ment of an action before the bar takes effect: Soper v. Lawrence, 
98 Me. 268, 99 Am. St. Hep. 397. The statutory period of limita- 
tion may be shortened, provided a reasonable time for the bringing 
of actions is allowed: See Tice v. Fleming, 173 Mo. 49, 96 Am. St. 
Rep. 479; Osborne v. Lindstrom, 9 N. Dak. 1, 81 Am. St. Rep. 516. 

The Hetrospective Operation of Statutes of Limitation is the subject of 
a note to Brown v. Pinkerton, 111 Am. St. Rep. 455. 



54 American State Reports, Vol. 115. [Arkansas, 



ARKANSAS SOUTHWESTERN RAILWAY COMPANY v. 
DICKINSON. 

[78 Ark. 483, 95 S. W. 802.] 

BAILBOADS — ^Power to Offer Bewards. — A railroad company 
has implied power to offer a general reward for the arrest and con- 
viction of any person found maliciously placing obstructions upon its 
tracks, changing switches or doing any act for the purpose of causing 
derailments or the wreck of trains, (p. 56.) 

RAHjBOADS — Power of General Manager to Offer Beward. — 
The general manager of a railroad company has authority to offer 
a general reward for the arrest and conviction of any person found 
maliciously obstructing its tracks, (p. 56.) 

BAILBOADS — Offer of Beward by General Manager — Notice. — 
Evidence that a person who offered a reward for the arrest and con- 
viction of any person found maliciously obstructing the railroad 
track had acted for three years as the general superintendent of a 
railroad company, that notices offering such reward were posted at 
every station of such company, and must have been seen by its presi- 
dent, that such notices were furnished to such manager by the vice- 
president of the company, and that the act of such manager in offer- 
ing the reward was never repudiated by the company, is sufficient 
to sustain a finding that the other officers of the railroad company 
were cognizant of and ratified the act of offering such reward, 
(p. 56.) 

BEWABDS — Conviction as Evidence. — If a railroad company 
offers a reward for the arrest and conviction of any person found 
maliciously placing obstructions on its track, the record of the con- 
viction of a person for such offense is admissible, and prima facie 
evidence of his guilt in an action to recover the reward, (p. 68.) 

APPEAL — Presumption. — If the record shows that a paper was 
placed in evidence, it must be presumed, on appeal that its contents 
were made known to the jury on the trial, (pp. 59, 60.) 

B. S. Johnson, for the appellant. 

McRae & Tompkins, for the appellee. 

483 '^OOD, J. Appellee sued appellant on the following : 

"REWARD. 
"One thousand dollars reward will be paid upon the 
arrest and conviction of any person or persons found ma- 
liciously, without ^®* regard to the lives of employes or 
passengers, placing obstructions upon the track, changing 
switches, etc., for the purpose of causing derailments or 
wrecks. 

** ARKANSAS SOUTHWESTERN RY. CO. 

"J. J. Kress, Manager." 



April, 1906.] Arkans.\s etc. Ry. Co. v. Dickinson. 55 

Appellee alleged: "That said reward was offered by post- 
ing same along the tracks and at the depot houses of the 
defendant company, in Pike county, Arkansas; that on the 
sixth day of October, 1902, the plaintiff procured the arrest 
of one Zach Furlow charged with the offense of maliciously 
placing obstructions upon the track of the defendant com- 
pany in Pike county, Arkansas, the said Zach Furlow sub- 
sequently being indicted by the grand jury of Pike county, 
Arkansas, for said offense, and he was on the twentieth day 
of August, 1903, duly convicted of said offense by the con- 
sideration and judgment of the circuit court of Pike county, 
which said judgment was on the thirtieth day of April, 1904, 
duly affirmed by the supreme court of the state of Arkansas. 
Copies of said record df conviction are filed herewith, and 
made a part of this complaint." 

Appellee further alleged that he had, at great expense of 
time and money, procured the arrest and conviction of the 
said Zach Furlow, and is entitled to recover said reward, 
amounting to the sum of one thousand dollars, which the 
defendant wholly neglects and refuses to pay after proper 
demand made therefor. 

Appellant answered, denying specifically all the allega- 
tions of the complaint, and denying that it ever authorized 
J. J. Kress or any other person to offer said reward, and 
set up that the person alleged to have been arrested and con- 
victed at the instance of Joe Dickinson, Jr., was not guilty 
of said offense or any other offense; that the said Zach 
Furlow, the person arrested, was found maliciously, without 
regard to the lives of employes and passengers, placing ob- 
structions upon the track, changing switches, or anything 
else, for the purpose of causing derailments or wrecks, and 
denies that said Zach Furlow was ever at any time found 
placing obstructions upon tracks and changing switches for 
any purpose whatever. 

Plaintiff recovered judgment for the amount of the re- 
ward, and defendant appealed. 

***** 1. Appellant contends that it did not offer the reward. 
The proof showed that one who had acted for more than 
three years under the title and in the capacity of general 
manager of the road, with the knowledge of the president. 
had posted the reward. He had received the card offering 
the reward by express from the office of the vice-president 



$6 American State Reports, Vol. 115. [Arkansas, 

in St. Louis, with instructions to post same. This was done 
at every station, and the president of the road passed over 
it as often as every ten days. 

In Central Railroad etc. Co. v. Cheatham, 85 Ala. 292, 7 
Am. St. Rep. 48, 4 South. 828, it was held that a railroad 
corporation has the implied power to offer a general reward 
"for the detection, apprehension and bringing to justice 
of persons obstructing the road," and that authority to offer 
such rewards is incident to the business and duties of the 
superintendent, and to the purposes of his department, and 
consequently within the scope of this agency. This is sound 
doctrine. But appellant contends that the agency of Kress 
has not been established by competent proof. The court 
ruled that the agency of Kress could not be established by 
whiit he said, but that his acts in the capacity of superin- 
tendent and general manager might be considered. This 
was correct, since there was proof to justify the conclusion 
that these acts were assented to by the company: St. Louis 
etc. Ry. Co. v. Bennett, 53 Ark. 208, 22 Am. St. Rep. 187, 
13 S. W. 742. "We are of the opinion that the proof was 
suflficient to show that Kress was the superintendent and 
general manager of the road he was seeking by the offer of 
the reward to protect. But if not, still appellant is shown 
to have had knowledge of his acts as superintendent and 
general manager, for he had acted in that capacity and un- 
der that title for more than three years, and appellant had 
not repudiated any of his acts as such. And appellant is 
shown to have had knowledge, not only of his acts in gen- 
eral, but of this specific act, for the knowledge of its pres- 
ident would be sufficient to show that the company had 
knowledge. The company can only act through its repre- 
sentatives. The president ^^'^ of the company, as we have 
said, went over the road every ten days, and these rewards 
were posted at every station. This and other evidence, such 
as the fact that the reward came from the office of the vice- 
president, was entirely sufficient to show that the company 
had knowledge of the act of Kress in offering the reward. 
In Central Railroad etc. Co. v. Cheatham, 85 Ala. 292, 7 Am. 
St. Rep. 48, 4 South. 828, the court said: "On questions of 
ratification, facts that circulars were posted at various places 
on the line of the railroad, by direction of an employe who 
was under the control of the superintendent, and remained 



April, 1906.] Arkansas etc. Ry. Co. v. Dickinson. 57 

posted for several months and until after the rendition of 
the service, were proper to go to the jury as tending to show 
that the oflfieers of the company were cognizant of the super- 
intendent 's act in offering the reward." 

2. Appellant contends that, before it could be held liable, 
it was essentiaL that the appellee prove that Zach Furlow 
placed obstructions upon appellant's track within the terms 
of the published reward. Appellants contend that there is 
no such proof, and that the papers and record of the pro- 
ceedings showing that Zach Furlow had been arrested and 
convicted of the criminal offense in which he was so charged 
was not sufficient to show that appellant's track had been 
obstructed in the manner set forth in the offer of reward, 
and appellant objected to such papers and record going 
to the jury as evidence of that fact. There is in the record 
an affidavit made by appellee before a justice of the peace 
charging Zach Furlow, with others, of the offense of "ma- 
liciously placing obstructions on the Arkansas Southwestern 
Railroad." Appellee testified that he procured the arrest 
of Zach Furlow on this charge, and assisted in his prosecu- 
tion for same because of the offer of the reward. The in- 
dictment on which Zach Furlow was convicted in the circuit 
court charged that he "did unlawfuly, feloniously, etc., place 
an obstruction upon the track of the Arkansas Southwest- 
em Railway Company." The trial court permitted the in- 
dictment and the record of conviction of Zach Furlow in the 
circuit court to go before the jury for the purpose of show- 
ing his conviction, and also the mandate of the supreme 
court, showing that the judgment of the circuit court was 
affirmed, for the same purpose. 

On the cross-examination of appellee by appellant this ap- 
pears in the record: "Q. This is the affidavit [exhibiting 
paper] ^®® that you made, is it? A. Yes, sir. 

"Q. Now, you say the reward was put up the next day 
after the offense was committed? A. Well, I saw it the 
next day after it was committed." 

One of the witnesses for appellee testified as follows: "Q. 
Mr. Westbrook, do you remember the circumstances of the 
track having been obstructed between Delight and Antoine? 
A. Yes, sir. I remember hearing of it. 

*'Q. With reference to that, when was the reward stuck 
up, as you remember? A. To the best of my knowledge. 



58 American State Reports, Vol. 115. [Arkansas, 

it was two or three days, something like that, after the ob- 
struction was placed on the track; wouldn't be positive 
about that; just after something of that kind had happened, 
whether it was that particular obstruction I could not say. 

**Q. You remember the circumstance of Zach Furlow be- 
ing arrested charged with this offense? A. Yes, sir. 

"Q. And he was arrested for an obstruction between 
Delight and Antoine?" 

The defendant objected to that part of the question re- 
ferring to the place where the obstruction occurred, and the 
objection was by the court sustained. 

Another witness testified that he "remembered the cir- 
cumstance of Zach Furlow 's being arrested over there for 
placing obstructions on the track." 

A reasonable interpretation of this contract is that the 
railroad company offered a reward of one thousand dollars 
for the arrest and conviction of any person or persons 
charged with the offense of placing obstructions upon a rail- 
road track under section 1999 of Kirby's Digest. The arrest 
and conviction of any person for the offense was evidently 
aimed at by the appellant, and the appellee accepted and 
duly performed the contract on his part when he secured 
the arrest and conviction of a person for that offense. It is 
obvious from the language of the reward that the company 
contemplated in its offer that the conviction for the offense 
should be taken as an evidence of the fact that the offense 
had been committed, and that the person convicted was the 
real offender. If this be the correct construction of the con- 
tract, the doctrine of res inter alios does not apply. In 
Brown v. Bradlee, 156 Mass. 28, 32 Am. St. Rep. 430, 30 N. 
E. 85, 15 L. R. A. 809, the offer of reward was as follows: 
** $2,500 reward will be paid for any person furnishing evi- 
dence that will lead to the arrest and conviction of the 
person who shot Mr. Edward Cunningham." The plaintiff 
in that case had furnished '*®® evidence that led to the ar- 
rest and conviction of a person for the shooting of Cun- 
ningham. In the civil suit for the reward it was proved 
by the record that one De Lucca had been convicted for 
shooting Edward Cunningham, and De Lucca's evidence at 
his trial, admitting that he shot Cunningham, was also put 
in, but the defendants contended in that case, as appellant 
contends here, that such evidence was res inter alios, and 



April, 1906,] Arkansas etc. Ry. Co. v. Dickinson. 59 

not competent to prove the action against them for the re- 
ward that De Lucca was the guilty man. The court said: 
"This position rests on too strict a construction of the words 
'the person who shot Mr. Edward Cunningham' in the con- 
tract. We will assume that they mean a little more than ' a 
person for shooting,' and that it would be open to the de- 
fendants to prove mistake or fraud in the conviction. But 
we have no doubt that the contract so far adopts the pro- 
ceedings of the criminal trial as a test of liability that the 
conviction is prima facie evidence of guilt." In Borough 
of York V. Forscht, 23 Pa. 391, a reward was offered "for 
the detection and conviction of the person who set fire to" 
a certain barn, and the suit was to recover on this offer of 
reward by one who had given the information upon which 
a certain party was arrested, and afterward tried and con- 
victed. The court held, quoting syllabus, "where a reward 
is offered for the detection and conviction of an offender, 
and a person is detected and convicted, the record of con- 
viction is evidence in an action for the reward that the per- 
son convicted is the true offender." The doctrine of these 
cases comports with our construction of the contract under 
consideration: See Brennan v. Haff, 1 Hilt. (N. Y.) 151, and 
Mead v. City of Boston, 3 Cush. (Mass.) 404. See, also, 
contra, Burke v. Wells, Fargo & Co., 34 Cal. 60. 

But aside from this, it is doubtful from the state of the 
record whether appellant could avail itself of a failure on 
the part of appellee to make proof that the offense was actu- 
ally committed, and that Zach Furlow was the real offender, 
when on the trial below it objected to evidence that was 
tending in that direction. 

3. The objection made here for the first time that the 
court erred in permitting the indictment and the record of 
conviction in the circuit court and the mandate of the su- 
preme court in the case of Furlow v. State, 72 Ark. 384, 81 
S. W. 232, to be introduced in '**** evidence without being 
read to the jury, cannot avail appellant. The record shows 
that "it was agreed by the parties that they [these papers] 
be considered as read to the jury." Such being the case, 
appellant is in no position to complain that such papers were 
not read, and it will not be heard to make such complaint. 
An amended record, brought here by agreement, shows that 
"upon the trial of this case in the lower court, the man- 



60 American State Repobts, Vol. 115. [Arkansas, 

date, judgment and indictment were introduced." That ef- 
fectually answers the contention in the brief that the court 
erred in not having these papers read to the jury under sec- 
tion 3145 of Kirby's Digest. Where a paper "is introduced 
in evidence," it must be considered here that its contents 
were made known to the jury. 

4. Measured by the doctrine already announced, we find 
the instructions of the court correct. 

Affirm. 



A Bailroad Company has implied power to offer a general standing 
reward for the detection, apprehension and bringing to justice of 
persons who may obstruct its road, or otherwise offend against its 
property rights, and such authority is incident to the business 
and duties of the superintendent, and to the purposes of his depart- 
ment, and consequently is within the scope of his agency: Central 
E. E. etc. Co. V. Cheatham, 85 Ala. 292, 7 Am. St. Eep. 48. 



SCOGGIN V. HUDGINS. 

[78 Ark. 531, 94 S. W. 684.] 

EXECUTORS AND ADMINISTRATOES— Liability of Dece- 
dent's Lands for Debt. — Land of a decedent, while held by his heirs, 
may, in equity, be subjected to sale for the payment of his debts 
accruing after the time allowed for the probate of claims has ex- 
pired, (p. 62.) 

EXECUTORS AND ADMINISTRATORS— Liability of Dece- 
dent's Lands for Debts — Innocent Purchasers. — Interests or estates in 
lands of a decedent in the hands of innocent purchasers for value, 
and acquired from the heirs before the commencement of a suit to 
charge them with the payment of the decedent's debts, cannot be 
subjected thereto either in law or equity, (p. 62.) 

COVENANTS— Breach— Right of Action.— If land subject to 
a mortgage is conveyed with warranty of title and against encum- 
brances, the covenantee's right of action for breach of the covenant 
accrues on his paying the judgment recovered by the mortgagee's 
receiver for the purpose of saving the land from sale. (p. 63.) 

HOMESTEADS OF DECEDENTS— Claims of Creditors— Lien. 
If a claim for a breach of covenant of warranty in a deed against a 
decedent does not accrue until after the close of the administration 
of his estate, the covenantee is entitled, on recovering judgment, to 
have it declared a lien on the decedent's homestead, to be sold only 
after the homestead has expired, although a constitutional provision 
declares that a homestead shall not be subject to the lien of any 
judgment or decree, or to sale under execution or other process 
thereon, (p. 63.) 



April, 1906.] SCOGGIN V. HUDGINS. 61 

O. A. Graves, for the appellants. 

D. B. Sain and W. C. Rodgers, for the appellee. 

633 BATTLE, J. J. J. Hudgins brought a suit against 
the heirs of W. G. Scoggin, deceased, to subject certain lands 
descended to them to the satisfaction of his certain claim 
against the deceased. 

Sometime in the year 1892, W. G. Scoggin, in considera- 
tion of the sum of seventy-five dollars paid to him by J. J. 
Hudgins, conveyed a certain tract of land to Hudgins, and 
covenanted with him that he would forever warrant and 
defend the title to the land against all lawful claims. At 
the time of the execution of the deed there was a valid 
mortgage on the land in favor of the Southern Building and 
Loan Association to secure an indebtedness of three hun- 
dred and fifty dollars. Thereafter Scoggin died intestate, 
leaving the defendants, his heirs, surviving him ; and on the 
nineteenth day of April, 1893, letters of administration were 
granted and issued to his widow, M. L. Scoggin. Sometime 
in the year 1900 J. A. Bowman, as receiver of the Southern 
Building and Loan Association, instituted a suit in the cir- 
cuit court of the United States for the Texarkana Division 
of the western district of Arkansas to foreclose the mort- 
gage on the land in favor of the building and loan associa- 
tion, making *^^* Hudgins and others defendants. When 
that suit was instituted, Hudgins notified and requested 
the administratrix of Scoggin 's estate to defend against it, 
which she failed to do. On the twenty-fourth day of May, 
1900, Bowman, as receiver in the suit instituted by him, re- 
covered a decree foreclosing the mortgage and for one hun- 
dred and eighty-six dollars and sixty-two cents; and on the 
tenth day of December, 1900, for the purpose of protecting 
and saving his lands from sale, Hudgins paid the amount 
recovered by the decree. 

Scoggin died, seised and possessed of certain lands de- 
scribed in the complaint. Forty-four acres of this land con- 
stituted his homestead, and after his death was occupied as 
a homestead by his widow and minor heirs. The remainder 
contained thirty-eight acres. Before the institution of this 
suit W. M. Greene acquired the interest and share of one of 
the heirs, Jane Scoggin, in these lauds, without any actual 



62 American State Reports, Vol. 115. [Arkansas, 

or personal knowledge on his part of any claim of Hudgins, 
vested or expected. 

The court found that the administratrix was not a proper 
party to this action, and that W. M. Greene had acquired 
and was entitled to hold the interest of James Scoggin in 
the lands, and as to them, administratrix and Greene, dis- 
missed the suit; and decreed that Hudgins was entitled to 
recover seventy-five dollars and six per cent per annum 
interest thereon from the tenth day of December, 1900, and 
that the same is a lien on the lands owned by Scoggin in 
his lifetime, and upon the land occupied by the widow and 
minors, subject to their rights of homestead; and that, if 
the seventy-five dollars, interest and costs are not paid on 
or before January 1, 1904, Hudgins have a special execution 
against the lands to satisfy his judgment and costs. The 
defendants appealed. 

The administration of Scoggin 's estate closed before the 
accrual of appellee's cause of action, the two years for the 
probate of claims having expired on the 19th of April, 1895. 
It is settled by decisions of this court that the lands of 
the deceased, while they are held by the heirs, may in 
equity be subjected to sale for the payment of such claims: 
Williams v. Ewing, 31 Ark. 229 ; Hecht v. Skaggs, 53 Ark. 
291, 22 Am. St. Rep. 192, 13 S. W. 930; Berton v. Anderson, 
56 Ark. 470, 20 S. W. 250. But interests or estates in lands 
acquired by innocent purchasers for value before the com- 
mencement of a suit to charge them with the payment of 
such claims cannot be lawfully or equitably subjected to 
such charges : Berton v. Anderson, 56 Ark. 470, 20 S. W. 250. 

'^^ Hudgins' cause of action accrued on the tenth day of 
December, 1900, when he paid the judgment recovered by 
Bowman, as receiver. He was not bound to wait until he 
was actually disseised. If he had done so, his right of 
redemption would have expired, and he would have lost the 
land, with the right to recover on the covenant of his 
grantor only a small part of its value. Why submit to such 
loss? Why wait for the inevitable? Equity does not re- 
quire such sacrifice : Collier v. Cowger, 52 Ark. 322, 12 S. W. 
702, 6 L. R. A. 107 ; Dillahunty v. Little Rock etc. Ry. Co., 
59 Ark. 629, 634, 27 S. W. 1002, 28 S. W. 657 ; 8 Am. & Eng. 
IStucy, of Law, 2d ed., 203, and cases cited. 



April, 1906.] Scoggin v. Hudgins. 63 

The chancery court virtually declared a lien on the land 
occupied by the Avidow and minors as a homestead, and 
ordered that it be sold subject to such homestead. The con- 
stitution of this state declares that "the homestead of any 
resident of this state who is married or the head of a family 
shall not be subject to the lien of any judgment or decree 
of any court, or to sale under execution, or other process 
thereon, except," etc.: Const. 1874, art. 9, sec. 3. But it 
does not prevent the courts from protecting creditors in 
their rights in such cases as this. The heirs may sell the 
lands descended to them to innocent parties for value before 
the commencement of suits in equity by creditors to subject 
them to the payment of their claims. Unless the lands con- 
stituting the homestead can be held in some way, creditors 
of a deceased person, holding claims accruing after the close 
of the administration of his estate, will be left to the mercy 
of heirs. A declaration that the claim of the creditors is a 
lien on the land, but it shall not be sold until the homestead 
expires, would be nothing more than a declaration of the 
equitable rights of the creditor, and would not interfere, 
directly or remotely, with the homestead rights, and would 
be stripped of the evil effects of the liens prohibited by the 
constitution, and would not belong to that class of liens. 

The cause is remanded, with instructions to the court to 
modify its decree in accordance with this opinion. 



Heir's Liability for Ancestor's Debts. — For Authorities bearing upon 
the principal case, see the recent note to Crawford v. Turner 112 
Am. St. Bep. 1020-1023. 



CASES 

IN THE 



SUPREME COURT 



OP 



GEORGIA. 



UNITED BROTHERS v. WILLIAMS. 

[126 Ga. 19, 54 S. E. 907.] 

CORPORATIONS. — After the Charter of a Corporation has 
Expired It is Without Authority to take any proceedings of a cor- 
porate nature for the purpose of expelling a member of the late 
corporation, and thua depriving him of property rights, (p. 66.) 

CORPORATIONS. — On the Expiration of the Charter of a 
Corporation Its Property is Held in Trust for its members, (p. 66.) 

CORPORATIONS. — On the Renewal of a Corporate Charter 
Which has Theretofore Expired, all the property of the old corpora- 
tion then in the hands of its ofticers and members is carried into the 
new corporation as created by the renewal of the charter, (p. 67.) 

CORPORATIONS —Rights of the Members of the Old Corpora- 
tion on the Renewal of Its Charter. — On the renewal of the charter 
of an expired corporation, each person interested in the assets of the 
corporation as a member at the date the old charter expired becomes 
a member of the corporation created by the renewal, and the corpora- 
tion as renewed is bound to admit into membership every person 
interested in the property of the old corporation as it existed at 
the date of the expiration of the charter, (p. 67.) 

CORPORATIONS. — Mandamus is a Proper Remedy for One 
Who has Been Unlawfully Deprived of His Privilege as a Member 
of the Corporation, (p. 67.) 

CORPORATIONS. — The Expulsion of a Member of a Corpora- 
tion Because He has Testified Against It in an action to which it was 
a party is wholly unauthorized where there is no claim that he tes- 
tified falsely, and if the corporate charter expires and a new one 
is obtained he cannot be denied membership on account of such 
testifying, (p. 68.) 

Marion W. Harris and Julian F. Urquhart, for the plain- 
tiff in error. 

F. R. Martin, contra. 

(64) 



March, 1906.] United Brothers v. Williams. ,65 

*® COBB, P. J. This was an application for a mandamus 
by Hamp Williams against the United Brothers, alleged to 
be a corporation of this state. It appears from the peti- 
tion and amendments thereto that a corporation called the 
United Brothers was created by an order of the superior 
court of Bibb county at the April term, 1883. The purpose 
of the corporation was to promote systematic benevolence 
by providing a fund for taking care of sick members, and 
paying the expenses of burial of members and members of 
their families. There was no capital stock, but the funds 
of the association were to be derived from membership fees 
and dues. The plaintiff became a member of the association 
soon after its organization, the exact date not appearing. 
The charter of the association expired on the eighth day of 
May, 1903. When the charter expired the association did 
not go into liquidation, but the members and officers con- 
ducted the business of the association as if the corporation 
still existed. This state of affairs continued until 1905, 
when a petition to the superior court was filed by the United 
Brothers, describing itself as a corporation whose charter 
had expired, and S. J. Hammond, one of its original incor- 
porators, and other named persons, alleging that the charter 
was granted to the United Brothers on May 8, 1883, which 
expired May 7, 1903, and that petitioners desired to revive 
the corporation with all the rights of the original charter 
as the same appeared on the records of the court. It was 
also asked that they be given authority to organize branch 
societies in other ** counties, and provide constitutions and 
by-laws for their government. The prayer was that it be 
"incorporated and renewed for a period of twenty years." 
On this petition an order was passed, April 19, 1905, grant- 
ing the same. In 1904, after the original charter had ex- 
pired and before the same was renewed, the plaintiff at a 
regular meeting was declared expelled from the association. 
This was done without notice of any charge against him, 
the president of the association merely stating to the meet- 
ing then in session that the plaintiff had testified against 
the association in a suit against it, and as a result of his 
testimony the case was decided against the association. The 
plaintiff was, under the charter and by-laws, entitled to 
certain substantial benefits in case of sickness or death in 
his family. It is distinctly alleged that the plaintiff's testi- 
Am. St. Rep., Vol. 115—5 



6Q American State Keports, Vol. 115. [Georgia, 

mony in the case referred to was true, and that the sole 
reason for expelling him was the fact that he had testified 
as a witness. The plaintiff made an effort to have himself 
reinstated, but the association denied him all the rights and 
privileges of membership. It is charged that the expulsion 
of plaintiff was without authority, and was the result of 
malice on the part of the president of the association, who 
was responsible for the litigation referred to. It was al- 
leged that at the time the plaintiff was expelled the associa- 
tion had assets to the amount of one hundred dollars in 
cash, in which plaintiff was interested. The prayer of the 
petition was for the writ of mandamus, commanding the 
corporation to reinstate the plaintiff to his privileges as a 
member. The petition was filed on April 17, 1905. The de- 
fendant filed demurrers, both general and special, which 
were overruled, and the defendant excepted. 

The plaintiff was a member of the corporation at the time 
its charter expired in 1903. At the time the proceedings 
were had which purported to expel him from the association 
there was no corporation in existence. ^^ The affairs of the 
former association were being carried on in an irregular, 
if not an illegal, way. At that time the plaintiff was inter- 
ested in the property of the association on account of having 
been a member at the date of the expiration of the charter. 
The officers and members were then without authority to 
take any action in the nature of corporate proceedings 
which would deprive the plaintiff of his property rights. 
The assets and funds of the association were to be held by 
them until the association went into liquidation and a di- 
vision took place, or until the charter was renewed in con- 
formity to law. The proceedings purporting to expel the 
plaintiff from the association were therefore a nullity; for 
there was no corporation from which to expel. He was a 
part owner with the other members in assets held by the old 
officers in trust for all the members. It is to be noted that 
a new charter for a new corporation was not granted. The 
old charter was renewed with certain amendments. The 
effect of the renewal of the charter was to carry the prop- 
erty of the old corporation then in the hands of the officers 
and members into the corporation as created by the renewal 
of the charter. Every person interested in the assets of the 
corporation as a member on the date the old charter expired 



March, 1906.] United Brothers v. Williams. 67 

became a member of the corporation created by the renewal 
of the charter. It was renewed under the same name with 
all the powers the original corporation had, and others 
added thereto. The corporation as renewed was bound to 
admit into membership every person interested in the prop- 
erty of the corporation as it existed at the time of the expira- 
tion of the charter. The power to deal with the members, as- 
sets and property of the association in a corporate capacity 
died upon the expiration of the charter, but came to life with 
the renewal of the charter. Persons interested as members- 
of the old corporation lost no rights by the irregularities 
that took place between the expiration of the old charter 
and the granting of the new charter. When the corpora- 
tion began business under the new charter with the funds 
and property of the old corporation as a basis for its opera- 
tion, all members of the old corporation were entitled to the 
privileges and benefits which they would have had if the 
charter had not expired. As members of the old corpora- 
tion, they had no authority to deal with and expel the 
plaintiff at the time the alleged action was taken against 
him. He became a member of the new corporation created 
by the renewal of ^ the charter. He is entitled to all the 
rights and privileges of a member. This has been denied to 
him. Undoubtedly he has a right of action against the 
corporation for refusing to admit him as member, but this 
remedy would not be adequate. He could recover damages, 
but damages are not desired. He wishes to be restored to 
membership, so that he may exercise the privileges and re- 
ceive the benefits resulting from membership in the corpora- 
tion. There are numerous decisions in other jurisdictions 
that mandamus is a proper remedy to be resorted to by one 
who has been wrongfully deprived of his privileges as a 
member of the corporation: Bacon on Benefit Societies, 3d 
ed., sees. 109, 442. In State v. Georgia Medical Soc, 38 
Ga. 608, 95 Am. Dec. 408, it was held by this court that 
where a corporator has a clear legal right which has been 
violated by the corporation, and he has no other adequate 
remedy, he is entitled to relief by mandamus: See, also, 
Savannah Cotton Exchange v. Warfield, 54 Ga. 668. In the 
opinion in the Waring case, Mr. Chief Justice Brown says: 
"When a member feels that he is aggrieved or injured by 
the illegal or oppressive action of the body, it is his right 



68 American State Reports, Vol. 115. [Georgia, 

to appeal to the courts for redress and protection ; and it is 
the right and duty of the court to investigate such charges, 
when properly before it, and to judge of the legality of the 
action of the society in expelling a member or depriving him 
of any other legal right." 

The only reason alleged for the action of the corporation 
in declining to admit the plaintiff as a member is that he 
testified to the truth as a witness in a case where the associa- 
tion was a party. Even if the corporation had been in exist- 
ence at the time of the alleged action purporting to expel 
him therefrom, this would not have been sufficient to jus- 
tify an expulsion. He could not have been legally expelled 
for this reason, even if he had had a formal trial, after due 
notice, according to the by-laws of the association. Cer- 
tainly, then, upon the renewal of the charter he cannot be 
denied admission into the association on account of the pur- 
ported action of the association at a time when it had no 
right to deal with the question of expulsion. There was 
no error in overruling the demurrers. 

Judgment affirmed. 

All the justices concur, except Fish, C. J., absent. 



The Eight of a Corporation or association to expel members is dis- 
cussed in the recent note to Del Ponte v. Societie Italiana, 114 Am. 
Bt. Eep. 24. 



DAVENPORT v. STATE BANKING COMPANY. 

[126 Ga. 136, 54 S. E. 977.] 

BANKS. — The Belation Between a Bank and Its Depositors is 
that of Debtor and Creditor. The money deposited becomes the ab- 
solute property of the bank, and as it is merely the debtor of the 
depositor, it has no lien on his deposit for the purpose of securing 
a debt due to it from him, though it may have the right to set off 
the one against the other, (p. 76.) 

A BANE Does not Owe to the Surety of an Indebtedness in Its 
Favor the Duty of exercising its right to set oflf a sum due from it to 
the depositor against the indebtedness of such depositor to it which 
the obligation of surety has created, (pp. 77, 78.) 

BANKING.— Surety, Duty of Bank to Apply Deposit to the 
Satisfaction of Indebtedness Secured by. — If a bank holds th& note 
of one of its depositors with a surety, it owes no duty to the surety 



March, 1906.] Davenport v. State Banking Co. 69 

to apply to the satisfaction of such note a sum due by it to the 
depositor on his general deposit account, and hence such surety re- 
mains liable notwithstanding he demands that such application be 
made, and the bank refuses to make it. (p. 84.) 

Action by the State Banking Company on two notes 
against the surety of one Lipscomb. The defendant pleaded 
that when the indebtedness became due, and for some time 
afterward, the maker of the notes had on deposit with the 
bank a sum more than sufficient to pay them, and that the 
defendant demanded of the president of the bank that the 
notes be satisfied out of the moneys so on deposit, and the 
bank refused to make such application, and permitted the 
maker of the notes to check out all of his money to pay 
fines imposed on him for selling liquor without a license, 
thereby rendering such maker insolvent. The plea was 
stricken out as constituting no defense, and the defendant 
excepted. 

H. H. Dean, for the plaintiff in error. 

Fletcher M. Johnson and J. A. Bell, Jr., contra. 

*^ COBB, P. J. The precise question made in this case 
has never been decided by this court, and in respect thereto 
there is, in principle, a conflict in the decisions which have 
been rendered in other jurisdictions. We say there is a 
conflict in principle, because if we take the cases in which 
a surety upon a note held by a bank claimed to have been 
discharged because, at the time of its maturity, the principal 
had sufficient funds on general deposit in the bank to pay 
it, and the bank failed to charge the amount of the note up 
against such deposit account, there is really not much con- 
flict. But when we consider the principle, or principles, upon 
which these cases, holding the surety discharged, have been 
decided, and then consider the cases in which the failure of 
a bank to exercise its right of setoff against deposits of the 
maker of a note, made subsequently to its maturity, has been 
held not to discharge a surety upon such note, and the 
reasons upon which these decisions have been based, we 
find that there is a marked and, to us, an irreconcilable 
conflict in the authorities upon the question under considera- 
tion. It has been held in a number of cases that where a 
bank is the owner of a note or other obligation evidencing 
an indebtedness, upon which there is a surety, and at the 



70 American State Reports, Vol. 115. [Georgia, 

maturity of the debt the principal debtor has funds on 
general deposit with the bank, sufficient to pay the debt, 
the failure of the bank to apply such funds to its payment 
will discharge the surety: Commercial Bank v. Henninger, 
105 Pa. 496; German Nat. Bank v. Foreman, 138 Pa. 474, 
21 Am. St. Rep. 908, 21 Atl. 20 ; Dawson v. Real Estate Bank, 

5 Pike (Ark.), 283; Pursifull v. Pineville Bankinjr Co., 97 
Ky. 154, 53 Am. St. Rep. 409, 30 S. W. 203 ; Central Bank of 
Rochester v. Thein, 76 Hun, 571, 28 N. Y. Supp. 232. The 
**® contrary view was taken in Second Nat. Bank v. Hill, 
76 Ind. 223, 40 Am. Rep. 239, Martin v. Mechanics' Bank, 

6 Har. & J. (Md.) 235, and National Mahaiwe Bank v. Peck, 
127 Mass. 298, 34 Am. Rep. 368. For although in the Massa- 
chusetts case, and perhaps in each of the other two, the de- 
cision might have been placed upon the narrow ground 
that it did not appear that at the maturity of the note the 
bank held on general deposit funds of the principal sufficient 
to pay it, in none of these cases was this done, but the 
decision in each case was placed upon the broad ground 
that the bank was not bound to set off the amount of a 
note due to it by a depositor against his general deposit ac- 
count, for the protection of a surety upon the note. It has 
been held by almost all the courts where the questions have 
arisen that if at the maturity of a note held by a bank the 
principal thereon has not sufficient funds on general de- 
posit with the bank to pay it, the bank is under no duty 
to a surety upon the note to apply such funds of the prin- 
cipal as may then be on deposit to the payment of the note 
pro tanto, nor is it bound to pay the note from subsequent 
deposits of the principal, although they are sufficient for 
this purpose: People's Bank of Wilkes-Barre v. Legrand, 
103 Pa. 309, 49 Am. Rep. 126 ; First Nat. Bank of Lancaster 
v. Shreiner, 110 Pa. 188, 20 Atl. 718; First Nat. Bank of 
Lock Haven v. Peltz, 176 Pa. 513, 53 Am. St. Rep. 686, 35 
Atl. 218, 36 L. R. A. 832 ; Voss v. German- American Bank, 
83 111. 599, 25 Am. Rep. 415 ; National Bank of Newburg v. 
Smith, 66 N. Y. 271, 23 Am. Rep. 48; Bacon's Admr. v. 
Bacon's Trustees, 94 Va. 686, 27 S. E. 576; Houston v. 
Braden (Tex. Civ. App.), 37 S. W. 467; Citizens' Bank v. 
Elliott, 9 Kan. App. 797, 59 Pac. 1102. The only case to 
the contrary which we have foiind is McDowell v. Bank of 
"Wilmington & Brandywine, 1 Harr. (Del.) 369. 



March, 1906.] Davenport v. State Banking Co. 71 

Let us examine the grounds upon which courts have based 
decisions discharging a surety when the bank holding the 
note fails, upon its maturity, to pay it from funds of the 
maker which it then holds on general deposit, which are 
sufficient for this purpose. All of the courts which have 
dealt with the question seem to recognize the right of the 
bank to set off the amount due it upon a note by one of its 
depositors against its indebtedness, on general deposit ac- 
count, to such depositor, whether such indebtedness on its 
part exists at the time the note matures or is caused by 
deposits subsequently made. And it is upon this right to 
extinguish the note by applying thereto an amount of its 
general deposit indebtedness to the maker thereof, sufficient 
for the purpose, that most of the decisions ^*^ in which 
sureties have been held to be discharged have been placed. 
Thus, in Commercial Nat. Bank v. Henninger, 105 Pa. 496. 
while it was held that the note in question, being made 
payable at the bank which held it, was equivalent to a draft 
or check upon the bank for the amount of the note, yet the 
court first undertook to demonstrate that the surety on the 
note was released because the bank had the right to set off 
the amount of the note against its general deposit indebted- 
ness to the maker thereof, and this right it was bound to 
exercise for the protection of the surety. The court said: 
"The rule is well settled that 'when a creditor has in his 
hands the means of paying his debt out of the property of 
his principal debtor, and does not use it, but gives it up, the 
surety is discharged. It need not be actually in the hands 
of the creditor; if it be within his control, so that by the 
exercise of reasonable diligence he may have realized his 
pay out of it, yet voluntarily and by supine negligence re- 
linquished it, the surety is discharged.' " In support of 
the ruling, the court used the following illustration: "If I 
am the holder of A's note, indorsed by C, and when the 
note matures I am indebted to A in an amount equal to or 
exceeding the note, can I have the note protested and hold 
C as an indorser? It is true that A's note is not technically 
paid, but the right to setoff exists, and surely C may show, 
in relief of his obligation as surety, that I am really the 
debtor, instead of the creditor of A. If this is so between 
individuals, why is it not so between the bank and indi- 
viduals f" Under this argument and this principle, it is 



72 American State Reports, Vol. 115. [Georgia, 

quite clear that it would make no difference whether the 
note was made payable at the bank or not. In either case 
the bank would have the right of setoff, and its failure to 
exercise it would discharge the surety. And under the 
principle here announced we cannot see why it should make 
any difference whether the opportunity for the bank to 
protect the surety occurred at the precise time that the note 
matured or afterward. In so far as the decision in that case 
and the one in German Nat. Bank v. Foreman, 138 Pa. 474, 
21 Am. St. Rep. 908, 21 Atl. 20, which followed it, and any 
decision rendered in another jurisdiction, may be based on 
the idea that a note payable at a particular bank is equiva- 
lent to a draft or check on that bank for its amount, it is 
not applicable to the case with which Ave are dealing ; for in 
this case the note was not made payable at any bank at 
all. And we may say, in passing, that this construction of 
a note payable *** at a bank, which obtains in a number 
of jurisdictions, is by no means generally accepted by the 
courts, but has met with vigorous protest: Grissom v. 
Commercial Bank, 87 Tenn. 350, 10 Am. St. Rep. 669, 10 
S. W. 774, 3 L. R. A. 273; Wood v. Merchants' Trust Co., 41 
111. 267; Ridgely Nat. Bank v. Patton, 109 111. 479; Scott 
V. Shirk, 60 Ind. 160; Second Nat. Bank v. Hill, 76 Ind. 
223, 40 Am. Rep. 239 ; Gordon v. Muchler, 34 La. Ann. 604. 
In so far as the decisions in these Pennsylvania cases, and 
the other cases wherein a surety on a note owned by a bank 
has been held to have been discharged by the failure of the 
bank, upon the maturity of the note, to charge the amount 
thereof against the deposit account of the principal obligor, 
rest upon the principle that the bank was bound, for the 
protection of the surety, to exercise its right of setoff against 
the principal, we fail to see any rational distinction between 
them and the cases in which it has been held that a surety 
is not discharged by the failure of the bank to apply de- 
posits of the principal debtor made subsequently to the ma- 
turity of the note to its payment. For, as it is generally 
held that the bank has the right of setoff in either in- 
stance, it would seem that if its neglect to exercise it in the 
one instance would discharge the surety, its failure to 
exercise it in the other would likewise do so. And yet, as 
will be seen from cases cited above, the same courts which 
hold a surety discharged if the amount of the deposit of the 



March, 1906.] Davenport v. State Banking Co. 73 

maker of the note, at its maturity, is sufficient to pay it, and 
the bank fails to avail itself of its right of setoff, also hold 
that a failure by the bank to apply general deposits made 
oy the maker subsequentlj'' to the maturity of the note to its 
payment will not discharge the surety. For instance, it 
was held in People's Bank of Wilkes-Barre v. Legrand, 103 
Pa. 309, 49 Am. Rep. 126, that "Where at the maturity of a 
Dote held by a bank the maker's balance on deposit in said 
bank was insufficient to pay the note, which was protested 
for nonpayment, the bank is not bound, for the protection 
of the indorser, to apply the maker's subsequent deposits 
to the payment of the note, although they were sufficient for 
that purpose." In the opinion it was said: "While it is 
true that a bank is a mere debtor to its depositor for the 
amount of his deposit, and, therefore, in an action by the 
bank against the depositor, on a note upon which he is lia- 
ble, the latter may set off his deposit, yet we do not think 
the bank is bound to hold a deposit for the protection of an 
indorser of the depositor. A bank deposit is different from 
an ordinary debt in this, *^* that from its very nature it 
is constantly subject to the check of the depositor, and is 
always payable on demand. The convenience of the com- 
mercial world, the enormous amount of transactions by 
means of bank checks, occurring every business day in all 
parts of the country, require that the greatest facilities 
should be afforded for the use of bank deposits by means 
of checks drawn against them. The free use of checks for 
commercial purposes would be greatly impaired if the banks 
could only honor them on peril of relieving indorsers, with- 
out an investigation of the state of the depositor's liabilities 

on discounted paper It is beyond question that the 

bank, in the absence of any special appropriation of the 
deposit by the depositor, would have the right to apply a 
general deposit to any existing matured indebtedness of the 
depositor. But that privilege is a right which the bank may 
or may not exercise in its discretion We fully recog- 
nize the rule that where a principal creditor has the means 
of satisfaction actually or potentially within his grasp, he 
must retain them for the benefit of the surety, but we 
regard the case of bank deposits as an exception to the 
rule." Most of this language of the Pennsylvania court 
was approvingly quoted, and the views therein set forth 



74 American State Reports, Vol. 115. [Georgia, 

were followed, by the Kansas court in Citizens* Bank v. 
Elliott, 9 Kan. App. 797, 59 Pac. 1102, and by the Texas 
court in Houston v. Braden (Tex. Civ. App.), 37 S. W. 467. 
Again, in First Nat. Bank of Lock Haven v. Peltz, 176 Pa. 
513, 53 Am. St. Rep. 686, 35 Atl. 218, 36 L. R. A. 832, it 
was held: "While a bank which is a holder of a promissory 
note and has on deposit at the time of maturity to the credit 
of any party liable to it on the note a sum sufficient to pay 
it, and not previously appropriated by the depositor to be 
held for a different purpose, may apply the deposit to 
the payment of the note, .yet it is not in general bound to 
do so. The cases where the right becomes a duty on the 
part of the bank rest on the special equity of the party — 
usually the indorser — to have the payment enforced against 
the depositor as the one primarily liable. In these cases the 
deposit must be sufficient at the time of the maturity of 
the note, it must not have been previously appropriated to 
any other use, and it must be to the credit of the party 
primarily liable." In the opinion the court said that though 
the title to money deposited passes to the bank, "yet the 
whole business of banking is founded on the faith of the 
immediate availability of the deposit, as money, for the use 
of the depositor, and any rule that interfered with the 
freedom of action of either bank or customer, ^^^ by compel- 
ling a stop of their dealings with each other to examine the 
relations of other parties to the deposit, would go far toward 
destroying that instant convertibility which is the essence 
of the business. We do not think it desirable to go beyond 
the line already marked by the authorities." In the case 
with which the court was dealing it appeared that the party 
claiming to have been released by the conduct of the bank 
was a mere accommodation surety for the payee of the note, 
who had procured the bank to discount it, and he offered 
to prove that six days after the maturity of the note and at 
other times thereafter the bank had a balance to the credit 
of such payee sufficient to pay the note, and allowed him 
to check it out, although it knew at the time it did so of 
the fact of such suretyship. Yet it was held, for the rea- 
sons stated in the opinion, that the evidence offered "was 
incompetent and irrelevant." So both the ruling, as ap- 
plied to the facts, and the opinion in the case show that 
the court realized the necessity of putting a rigid and, as it 



March, 1906.] Davenport v. State Banking Co. 75 

seems to us, an arbitrary, limitation upon the broad prin- 
ciple which has been applied in the cases in which a surety 
upon a note owned by a bank has been held to have been 
discharged by the failure of the bank to exercise its right 
of setoff against the party primarily liable thereon. The 
broad principle to which we refer and which has been in- 
voked in such cases is, that when the creditor has the means 
of satisfying the debt actually or potentially within his 
control, he must retain them for the benefit of the surety. 
If this principle applies at all to deposits of money in a 
bank, it is difficult to see why it should be rigidly limited 
to deposits held by the bank at the time the depositor's 
debt to the bank matures; for if the means of satisfaction 
can be said to be within the control of the bank then, they 
would seem to be equally within its control when the depos- 
its are made after the debt has matured. It has been said 
by an able and often quoted text-writer that "if the bank 
at the maturity of a note held by it holds funds that, by 
a scratch of a pen, it could apply upon the note, thus secur- 
ing itself, it is difficult to see why neglecting so easy a means 
of security is not as improper as giving up collateral desig- 
nated for the purpose of securing the note": 2 Morse on 
Banks and Banking, 956. This argument applies as well to 
a case in which the opportunity to protect the surety, "by a 
scratch of a pen," occurs after the maturity of the note as 
it does to a case in which such opportunity presents **^ it- 
self at the time when the note falls due. We do not over- 
look the fact that it has been said, in a case wherein the 
party claiming to have been discharged was an indorser, 
that the liability of an indorser becomes fixed when the note, 
at maturity, is protested for nonpayment. But we do not 
understand that this strips him of the right to be protected, 
as a surety, against subsequent acts of the creditor which 
will injure him, or increase his risk. "It is true that there 
Is a distinction between an ordinary indorser and one who 
is merely a surety, but a contract of suretyship is necessarily 
included in every unqualified indorsement of a negotiable 
instrument .... and the principle which protects sureties 
from any act of the creditor tending to injure the surety, 
or increase his risk, is applicable as well to indorsers for 
value as those whose indorsement is for accommodation 
merely": Tanner v. Gude, 100 Ga. 157, 27 S. E. 938. So we 



76 American State Reports, Vol. 115. [Georgia, 

fail to see why, even in eases involving the rights of an 
ordinary indorser, there should be a distinction made based 
upon the mere question as to the time when the bank had 
the opportunity to protect the surety by subjecting the de- 
posit account of the principal to the payment of the debt. 
In our opinion, as we have already indicated, there is a di- 
rect conflict in principle between the decisions which hold 
the surety discharged because the bank at the maturity of 
the note could have protected him by recourse to the deposit 
of the principal, and failed to do so, and those which hold 
that the surety is not discharged by the failure of the bank 
to exercise its right of setoff against the deposits made sub- 
sequently to the maturity of the debt ; and we think that the 
better view of the question is that taken in the latter class 
of cases. 

One ground upon which it has been held that a surety 
upon a note held by a bank is discharged, if, at the maturity 
thereof, the bank holds on general deposit for the maker a 
sum sufficient to pay the note, which it permits to be checked 
out, is that the bank has a lien upon such deposit of the 
principal debtor to the extent of its claim against him, and 
ought, in justice to the surety, to enforce it for his protec- 
tion : Zane on Banks and Banking, sec. 114 ; Sheldon on Sub- 
rogation, sec. 124, and cases cited. We do not see how a 
bank has a lien upon the general deposit account of its 
debtor to secure his indebtedness to it. When money is de- 
posited in a bank upon general deposit account, it ceases 
to be the money of the depositor and becomes the absolute 
property of the bank, and ^^^ the relation between the bank 
and the depositor is that of debtor and creditor, the bank 
becoming indebted to the depositor in the amount of his 
deposit, and the debt being payable when, and in such 
amounts thereof, as the creditor may, by written order or 
check, demand. A general deposit of money in a bank *'is 
a loan, and transforms the funds from ready money into a 
chose in action": Ricks v. Broyles, 78 Ga. 610, 6 Am. St. 
Rep. 280, 3 S. E. 772 ; Morse on Banks and Banking, 30, 42 ; 
Newmark on Bank Deposits, sec. 105. As the bank holds no 
funds or property of the depositor, but is merely his debtor 
in a given amount, how can it be said the bank has a lien 
upon the deposit to secure its claim against the depositor? 
Let us state this lien proposition. Smith owes the bank and 



March, 1906.] Davenport v. State Banking Co. 77 

the bank owes him, each has a chose in action against the 
other, and to secure the payment of its claim against Smith, 
the bank has a lien upon the chose in action which he holds 
against it. We fail to see how one can hold a lien upon 
his own indebtedness to another, upon a mere chose in ac- 
tion which the other holds against him. Again, if a bank 
which holds a note against one of its depositors has a lien 
upon his deposit account, to secure the payment of the note, 
it would seem that the bank, before the maturity of the 
note, would have the right to assert this lien against de- 
posits made with it by him prior to the maturity of the 
debt, by refusing to honor his checks whenever by so 
honoring the amount of his deposit account would be re- 
duced to a sum less than the amount of the note. We do 
not think any court would hold that the bank could do this. 
And yet this would seem to be the logical effect of holding 
that the bank has a lien upon the deposit account ; and the 
only escape from this conclusion would be to hold that the 
lien of the bank comes into existence only at the moment 
that the debt against the depositor matures. Besides, if the 
theory of a lien applies to a deposit on hand when the debt 
falls due, why does it not also apply to a deposit subse- 
quently made, as in either case the right of the bank to set 
off what the depositor owes it against the deposit exists? 
The Kentucky court of appeals, in Pursifull v. Pineville 
Banking Co., 97 Ky. 154, 53 Am. St. Rep. 409, 30 S. W, 203. 
recognized that the discharge of a surety in a case like this 
could not be placed upon the release by the bank of a lien 
which it had to secure the debt. In the opinion in that case 
it is said: "Now, while it is true that the bank in this case 
had not, strictly speaking, a lien upon any money or prop- 
erty belonging to Hurst, **® and while the surety could 
not. perhaps, by paying this debt to the bank, have become 
entitled to demand of it repayment out of Hurst's deposit, 
which is laid down by some of the authorities as the true 
test, yet it seems to us that this bank, by the voluntary sur- 
render to the principal of money more than sufficient to pay 
this debt, and which, it is conceded, it had a right to apply 
to that purpose, has been equally reckless of the interests 
of this surety as though it had surrendered a security on 
which it had a specific lien." When a bank which holds a 
note against one of its depositors charges it up against the 



78 American State Reports, Vol. 115. [Georgia, 

depositor on his deposit account and marks the note paid, 
it is not availing itself of any lien against funds of the de- 
positor in its hands, but is availing itself of a right, which 
has been pretty generally recognized, to set off against its 
indebtedness to the depositor the amount of his indebtedness 
to it. In our opinion, this is a right which it may exercise 
for its own protection, but which it is not bound to exercise 
for the protection of a surety upon the note, unless it knows 
that the depositor principal is insolvent, in which case it 
seems that the bank would be bound to protect the surety: 
Walsh V. Colquitt, 64 Ga. 740. If the bank, in the absence 
of knowledge of insolvency on the part of the depositor, 
fails to exercise its right of setoff, and allows him to check 
out his deposit, we do not see how a surety upon the note 
of the depositor has been legally injured, or exposed to 
greater liability, or has had his risk increased. Its nonex- 
ercise of its right of setoff interferes with no right of sub- 
rogation which the surety would have upon payment of the 
note ; for by paying the note he could not, under the right 
of subrogation, reach the indebtedness of the bank to the 
principal. The bank, by merely owing the principal upon 
the note, held neither collateral nor lien to secure the note, 
and nothing whatever to which the surety, upon payment of 
the note, could, by subrogation, resort for the purpose of 
reimbursement. How, then, can it be said that the surety 
has been, in a legal sense, injured by the conduct of the 
bank in paying the debt which it owed the principal, in- 
stead of setting off against it the debt which he owed it? 

In Hollingsworth v. Tanner, 44 Ga. 11, it was held that 
although the owner of judgments against a principal and 
surety had, while owning the judgments, employed the 
principal to perform certain services for him at a stipulated 
price, and when the services were rendered had paid the 
principal therefor, and still held the judgments "'' unset- 
tled, the surety was not discharged. In the opinion Chief 
Justice Lochrane said: "The decision of this court in Curren 
V. Colbert, 3 Kelly, 239, 46 Am. Dec. 427, is invoked to sus- 
tain the doctrine, that any act of the holder which increases 
the risk of the surety will discharge the surety. That case 
was the dismission of a levy and the release of the property 
of the principal, levied on by a creditor having a judgment 
against the principal and surety, without privity of the 



March, 1906.] Davenport v. State Banking Co. 79 

surety. But the doctrine is clearly recognized as settled in 
the books that mere indulgence, unless given upon a new 
and distinct consideration, or unless given under such a 
binding obligation as precludes the creditor from pursuing 
his remedy on the debt, will not discharge the surety. ' ' In 
Echols V. Head, 68 Ga. 152, it was held that, as there is no 
vendor's lien in Georgia, and the right to attach for pur- 
chase money is a privilege and not a lien, the fact that the 
vendor of a horse, for the purchase money of which he had 
taken a note with personal security thereon, subsequently 
bought the horse back from the vendee, and thereby de- 
stroyed his right to attach the property for the purchase 
money, did not discharge the surety on the note. It will be 
observed that the ruling in each of these Georgia cases is 
opposed to the idea that a creditor is bound, for the pro- 
tection of a surety, to avail himself of any and every means 
which he may have for the protection of himself. He is not 
bound to preserve his right to set off a debt due him,- where- 
on there is a surety, against a debt which he may owe his 
principal debtor, in order to protect the interests of the 
surety. Nor is he bound, for the sake of the surety, to 
preserve a remedy which he may have against the principal 
debtor, of which the surety could not, upon payment of the 
debt, avail himself. In Lumsden v. Leonard, 55 Ga. 374, 
it was held that the neglect of a judgment creditor for 
four years to levy upon real estate sold by the principal 
debtor to a purchaser, who held possession until the land 
was discharged from the lien of the judgment, did not dis- 
charge the surety, though such real estate was sufficient to 
satisfy the judgment, there being no proof, or offer to prove, 
that the judgment creditor was notified in writing to levy, 
and no tender of expenses by the surety. This ruling was 
placed upon the ground that "Mere nonaction by the cred- 
itor will not release the surety, unless such nonaction makes 
unproductive some collateral security, such as a mortgage, 
or is based upon a consideration paid by the principal 
*^** debtor to the creditor, or he is notified under the stat- 
ute to collect the debt." In the opinion, Jackson, J., said: 
"On a careful examination of our own decisions since the 
organization of this court, and of the law in general, upon 
this subject, we conclude that the true doctrine to be gath- 
ered from all the sources at our command is this (and it 



80 American State Reports, Vol. 115. [Georgia, 

is embodied in our code) : Some act must be done by the 
creditor, either before or after judgment, which injures the 
surety in some way; mere failure or negligence on the 
part of the creditor will not relieve the surety. And the 
exceptions to this general rule will be found where the cred- 
itor omits to do something by which collateral security in 
his hands is made unproductive, or where he is notified un- 
der the statute to proceed, and he fails or refuses; and if 
the letter of the statute on the subject of notice be extended 
to embrace proceedings after judgment, we think the secur- 
ity, in addition to the notice, should at least indemnify the 
creditor against the expenses of litigation." 

In Glazier v. Douglass, 32 Conn. 393, *'The plaintiff held 
a promissory note [payable at a bank] indorsed by the 
defendant for the accommodation of the makers, which had 
been protested for nonpayment, the makers having become, 
and still remaining, insolvent. A firm of which the plain- 
tiff was a member owed the makers a larger sum than the 
amount of the note, against which, if sued, they could by 
statute have set off the claim held by the plaintiff. Without 
requiring such application the firm paid the makers the 
amount owed them, with full knowledge on the part of the 
plaintiff of all the facts." It was held, "in an action brought 
against the defendant on his indorsement, that he was not 
discharged by the neglect of the plaintiff to secure an ap- 
plication of the debt of the firm to the payment of the 
note." This ruling was based upon the principle that "the 
security, the discharge of which by a creditor will release 
a surety, must be a mortgage, pledge, or lien — some right 
to or interest in property which the creditor can hold in 
trust for- the surety and to which the surety if he pay the 
debt can be subrogated ; and the right to apply or hold must 
exist and be absolute." In the opinion the court said: 
"By a series of decisions adopting the equitable principles 
of the civil law, there have been annexed to the undertaking 
of a surety, in a case like this, three conditions; and if 
either is broken by the creditor, that undertaking becomes 
inoperative, and the surety is discharged. *^® The first is 
that the creditor shall present the note to the maker at 
maturity, and if dishonored use due diligence in giving no- 
tice to the surety. The second is that no obligatory exten- 
sion of time of payment shall be given which will preclude 



March, 1906.] Davenport v. State Banking Co. 81 

the surety, if he pay the note to the creditor, from enforc- 
ing immediate payment by compulsory process from the 
principal debtor. And the third is, that the creditor shall 
apply in payment of the debt, or hold in trust for the 
benefit of the surety, all securities which he may receive or 
procure for that purpose by contract or operation of law, 
so that if compelled to discharge the debt the surety may 

be subrogated to them But although in some special 

cases in equity the creditor may be compelled to proceed 
against the maker, the law annexes no condition requiring 
the creditor to proceed against the principal debtor, or do 
any act (whatever his opportunity or however much it may 
subserve the interest of the surety) to procure security or 
enforce payment from the principal ; and he may remain 
entirely passive and rely on the undertaking of the surety, 
whether the principal be solvent or insolvent. In respect 
to what shall be deemed a security within the meaning of 
the condition, there has been some contrariety of decision. 
The better opinion is that it must be a mortgage, pledge or 
lien — some right to or interest in property which the cred- 
itor can hold in trust for the surety, a^d to which the surety 
if he pay the debt can be subrogated, and the right to apply 

or hold must exist and be absolute The contrariety 

of decision spoken of has been chiefly in respect to liens 
obtained by process or operation of law. Judgment liens, 
made such by the local law, are assignable, and clearly with- 
in the condition. But it has been made a question whether 
a lien obtained by levy of execution on the goods of the 
principal debtor can be released or abandoned, and the 
better opinion now is that it cannot be." In Second Nat. 
Bank v. Hill, 76 Ind. 223, 40 Am. Rep. 239, the bank brought 
a suit upon a promissory note against Hill, Mote and Hair. 
Mote and Hair filed a joint answer, in which they alleged 
that they signed the note as sureties for Hill, who was the 
principal therein, which fact was known to the bank at the 
time that the note was given to it for money borrowed by 
Hill; that after the maturity of the note Hill made general 
deposits in the bank in suras exceeding the amount due on 
the note, and after the note became due the bank had of 
the funds of Hill on deposit more **** than enough to pay 
the note, and, except as to a small amount which was stated, 
it failed to apply any of the funds of Hill which it held on 
Am. St, Bep., Vol. 115 — 6 



82 American State Reports, Vol. 115. [Georgia, 

deposit to the payment of the note, and suffered him to 
check out his funds, although prior to the maturity of the 
note Hill "had consented and directed the [bank] to allow 
and pay said note, interest, etc., thereon at any time after 
its maturity, out of his deposits in said bank, if he should 
have any such funds in said bank to pay the same or any 
part thereof." The plaintiff demurred to this answer, and 
the trial court overruled the demurrer, which ruling was 
reversed by the supreme court of the state. In the opinion 
the court said: "Though the funds deposited with the plain- 
tiff might have been applied by it to the payment of the 
note in suit, the bank did not hold the funds, in any sense, 
in trust for the sureties of Hill on the note. Had Mote 
and Hair, as such sureties, paid to the appellant the note 
in suit, they could not, had the bank at the time been in- 
debted to Hill on his deposit account in a sum exceeding the 
amount paid on the note, have required the bank to apply 
such indebtedness for their benefit, or to reimburse them 
for the money paid by them on the note for Hill's benefit. 
They could not have required this of the bank, for the 
obvious reason that they could not have, under the cir- 
cumstances, any right to, or interest in, the debt due from 
the bank to Hill The question is not what a credi- 
tor might or could have done, but was he obliged to do 
this or discharge the surety? The creditor might sue the 
principal debtor as soon as the debt matured, and thereby 
save the surety from future hazard, but he is not obliged 
to sue. He may delay the collection of his debt until the 
principal debtor fails, without discharging the surety. To 
hold that the bank was obliged to apply deposits made by 
Hill to the payment of the note would be to compel him 
to collect his debt, though none of the parties bound to 
pay it had requested him to do so. ' ' In the case with which 
we are dealing there was a request by the surety for the 
creditor to collect the debt; but we know of no request 
which compels the creditor to proceed to do this, except 
the written notice from the surety to the creditor to sue, 
provided for by our statute. 

In Voss V. German-American Bank, 83 111. 599, 25 Am. Rep. 
115, the supreme court of Illinois said: "The note appears 
to have been made for Michelson's benefit, and Voss to 
liave been only a surety, as between himself and Michel- 



March, 1906.] Davenport v. State Banking Co. 83 

son, and, as Michelson is shown to have had funds ^"^* on 
deposit in the bank, from time to time, after the maturity 
of the note, and before the bringing of the suit, to an 
amount exceeding that of the note, it is insisted that the 
bank was bound to apply such funds to the payment of the 
note, and that, not having done so, Voss is discharged. And 
the case of McDowell v. Bank of Wilmington and Brandy- 
wine, 1 Harr. (Del.) 369, and Law v. East India Co., 4 Ves. 
825, are cited as authorities that, under such circumstances, a 
surety will be discharged. Without remark upon or con- 
sideration of these authorities, we do not regard them as 
having application to the case in hand. We do not recog- 
nize, in such a case as is here presented, the existence of 
any such obligation as the one which is asserted by appel- 
lant's counsel." In National Mahaiwe Bank v. Peck, 127 
Mass. 298, 34 Am. Rep. 368, Chief Justice Gray well said: 
"Money deposited in a bank does not remain the property 
of the depositor, upon which the bank has a lien only; but 
it becomes the absolute property of the bank, and the bank 
is merely the debtor of the depositor in an equal amount. 
[Citing cases.] So long as the balance of account to the 
credit of the depositor exceeds the amount of any debts due 
and payable by him to the bank, the bank is bound to honor 
his checks, and liable to an action by him if it does not. 
When he owes the bank independent debts, already due and 
payable, the bank has the right to apply the balance of his 
general account to the satisfaction of any such debts of 
his. But if the bank, instead of so applying the balance, 
sees fit to allow him to draw it out, neither the depositor 
nor any other person can afterward insist that it should 
have been so applied. The bank, being the absolute owner 
of the money deposited, and being a mere debtor to the 
depositor for his balance of account, holds no property in 
which the depositor has any title or right of which a surety 
on an independent debt from him to the bank can avail him- 
self by way of subrogation, as in Baker v. Briggs, 8 Pick. 
122, 19 Am. Dec. 311, American Bank v. Baker, 4 Met. 
164, cited for the defendant. The right of the bank to ap- 
ply the balance of account to the satisfaction of such a debt 
is rather in the nature of a setoff, or of an application of 
payments, neither of which, in the absence of express agree- 
ment or appropriation, will be required by the law to be 



84 American State Reports, Vol. 115. [Georgia, 

so made as to benefit the surety." "We do not think that 
what the plea alleged occurred between the president of 
the bank and the surety renders a different principle appli- 
cable in the present case. ^'^^ If the bank was, as we have 
seen, under no legal duty to the surety to set off the amount 
which the principal upon the notes owed it against the 
amount which it owed him upon his general deposit account, 
it was not bound to do this upon a mere request or demand 
of the surety that this should be done. It is provided by 
statute in this state that a surety may, at any time after 
the debt on which he is liable becomes due, give notice to 
the creditor to proceed to collect the same out of the prin- 
cipal, and that if the creditor fails or refuses to commence 
action for the space of three months after such notice, the 
surety will be discharged: Civ. Code, sec. 2974. This is the 
only notice from a surety to the creditor holding the obli- 
gation for which our law provides. It is true that there 
are decisions which hold that where a surety has requested 
the creditor to take action for the collection of the debt, 
which, if taken, would result in its collection from the 
property of the principal, and the creditor assures the 
surety that he will do so, and thus induces the surety to 
forego any means of indemnity or protection to which he 
might otherwise have resorted, and the creditor fails to 
redeem his promise, whereby the surety is injured, the 
surety is released. Bulard v. Ledbetter, 59 Ga. 109, is a case 
of this character. But in such cases it is not the mere fail- 
ure of the creditor to comply with the verbal request of the 
surety, but his failure to comply with a promise which 
he made to the surety, and upon which the latter relied to 
his injury, which discharges the surety. Here there was no 
promise by the creditor which put the surety to sleep, but, 
on the contrary, the surety knew that the creditor did 
not intend to comply with his demand. Of course the mere 
indulgence, without consideration, of the principal debtor 
did not discharge the surety. The decision rendered in 
Walsh V. Colquitt, 64 Ga. 740, might have required a dif- 
ferent conclusion in the present case, if the plea here had 
alleged that at the time the bank allowed Lipscomb to check 
out the whole of his deposit he was insolvent and the bank 
knew it, or that the bank, in addition to knowing the use 
for which he checked out the money, knew that by so using 
it he would be rendered insolvent. 



March, 1906.] Davenport v. State Banking Co. 85 

The judgment of the court, sustaining the motion to strike 
the plea, was not erroneous, and as this left the defendant 
without any issuable defense filed under oath, it was proper 
for the court ^'^^ to render judgment in favor of the plain- 
tiff for the amount due upon the notes. 

Judgment afl&rmed. 

All the justices concur, except Fish, C. J., absent. 



WHAT DUTY, IF ANY, A CEEDITOE OWES TO A SURETY. 
I. Scope of Note, 85. 

n. Extent of Duty of Creditor to Attempt the Collection of the 
Debt or Obligation by Suit or Otherwise. 

a. In General, 85. 

b. Duty to Present Claim Against Estate of a Deceased or 

Bankrupt Principal, 86. 

c. General Effect of Delay in Suing Upon the Principal Obli- 

gation. 88. 

d. Effect Where Creditor has been Requested by Surety to 

Sue Upon the Obligation, 89. 

e. Effect Where Principal is Insolvent at Time of the Request 

to Sue or Becomes so Thereafter, 93. 

m. Extent of Duty of Creditor to Give Surety Notice of Default 
of Principal, 94. 

IV. Effect Where Creditor Surrenders Securities or Funds Which were 
in His Possession. 

a. In General, 95. 

b. Effect Where Creditor Makes Payments to Principal Which 

He had a Right to Withhold, 95. 

c. Duty of Creditor Where He has Property or Funds of the 

Principal in His Possession, Such as Where a Bank is 
Creditor, 95. 

d. Duty of Creditor to Exercise Care and Diligence in the 

Management of Collateral Securities, 100. 
V. Effect Where Creditor Loses Lien Secured by Levy of Execution 

Against Principal Debtor by His Own Negligence, 101. 
VI. Effect Where Lien in Favor of Creditor is Lost by Operation of 
Law, 101. 

L Scope of Note. 

In this note we shall include only those cases tending to illustrate 
the active, as distinguished from the passive, duties of the creditor 
toward the surety. We shall exclude from our consideration those 
cases discussing the release or discharge of the surety by reason 
of acts prohibited by the contract of suretyship itself or by reason 
of acts done by the principal. 

n. Extent of Duty of Creditor to Attempt the Collection of fhe 

Debt or Obligation by Suit or Otherwise. 

a. In General. — A creditor is not bound to sue on a bond when 

due under penalty of discharging the surety therein: Thursby v. 

Gray's Admr., 4 Yeates, 518. The payee of an instrument having 



86 American State Reports, Vol. 115. [Georgia, 

a principal obligor and surety owes no duty of active vigilance to 
the surety to enforce the collection of the indebtedness arising from 
the obligation, since the surety at any time after default of the 
principal is entitled to pay the debt and reimburse himself by enforc- 
ing it against the principal and his cosureties, if he have any; Levy 
V. Wagner, 29 Tex. Civ. App. 98, 69 S. W. 112; Fanning v. Murphy, 
126 Wis. 538, 110 Am. St. Eep. 946, 105 N. W. 1056, 4 L. R. A., 
N. S., 666 J Alexander v. Byrd, 85 Va. 690, 8 S. E. 577. In Eyre v. 
Everett, 2 Russ. Ch. 381, a case in which the question of the failure 
of the creditor to sue upon the debt for over five years was urged 
as a defense by the surety, Lord Eldon observed: "The case, there- 
fore, presents nothing more than the passive act of the obligees 
not suing. But the surety has no right to say that he is discharged 
from the debt which he has engaged to pay, together with the 
principal, if all that he rests upon is the passive conduct of the 
creditor in not suing. He must himself use diligence, and take such 
effectual means as will enable him to call on the creditor either to 
sue or to give him, the surety, the means of suing." 

And the mere fact that the payee of a note failed to sue the maker 
thereon while the maker was solvent, and by his passivity in that 
respect allowed the maker to become insolvent, does not exonerate 
a surety on the note from his liability to pay the note: Burge v. 
Duden, 105 Mo. App. 8, 78 S. W. 653. 

b. Duty to Present Claim Against Estate of a Deceased or Bank- 
rupt Principal. — The failure of the creditor to present his claim 
against the estate of the principal debtor does not operate as a dis- 
charge of the surety: Winter v. Branch Bank, 23 Ala. 762, 58 Am. 
Dec. 315; Bull v. Coe, 77 Cal. 54, 11 Am, St. Rep. 235, 18 Pac. 808; 
Johnson v. Planters' Bank, 4 Smedes & M. 165, 43 Am. Dec. 480. 
In Willis v. Chowning, 90 Tex. 617, 59 Am. St. Eep. 842, 40 S. W. 
395, the court, in discussing the subject, said: "When the principal 
debtor in an obligation, to which there are sureties, dies, the payee 
may look to the sureties as primarily liable to perform the contract, 
and need not present the claim to the administrator of the deceased 
principal for allowance and payment: Scantlin V. Kemp, 34 Tex. 388; 
Ray V. Breuner, 12 Kan. 105; People v. White, 11 111. 341; McBrown 
V. Governor, 6 Port. 32; Minter v. Branch Bank, 23 Ala. 762, 58 Am. 
Dec. 315; Ashby v. Johnston, 23 Ark. 163, 79 Am. Dec. 102; Vreden- 
burgh V. Snyder, 6 Iowa, 39; Johnson v. Planters' Bank, 4 Smedes 
& M. 165, 43 Am. Dee. 480; Boardman v. Paige, 11 N. H. 431. 

"But it is claimed that the failure to institute suit within ninety 
days after the rejection by the administrator of Morrison barred 
the action by Willis and Brother against the estate, and, since Willis 
and Brother could not recover against the estate of Morrison, the 
sureties of Morrison were also discharged from further liabUitj upon 
the judgment. 



March, 1906. J Davenport v. State Banking Co. 87 

"Although the debt may be barred by limitation as against the 
principal, yet judgment may be entered against the surety if he be 
liable thereon — in cases where suit may be maintained against the. 
surety without joining the principal — and if the surety pay the 
debt which is at the time barred by limitations as against the prin- 
cipal, but is a valid obligation against the surety, such surety may 
recover against the principal, or against his estate in case of his 
death. The right of action in favor of the surety arises when 
he pays the debt, and is not based upon the original debt itself, but 
upon the implied contract which exists by law between the principal 
and surety in such cases: Faires v. Cockerell, 88 Tex. 428, 31 S. W. 
190, 639, 28 L. R. A. 528; Eeeves v. Pullian, 7 Baxt. 119; Maxey 
v. Carter, 10 Yerg. 521; Marshall v. Hudson, 9 Yerg. 57; Peaslee v. 
Breed, 10 N. H. 489, 34 Am. Dec. 178; Crosby v. Wyatt, 23 Me. 
156; Wood v. Leland, 1 Met. 387. 

"In support of a contrary proposition the defendant in error cites 
the following authorities: State v. Blake, 2 Ohio St. 147, Dorsey 
T. Wayman, 6 Gill, 59, and Auchampaugh v. Schmidt, 70 Iowa, 642, 
59 Am. Eep. 459, 27 N. W. 805. The authorities cited fairly sup- 
port the contention of the defendant in error upon this question, 
but the overwhelming weight of authority, as well as sound reasoning, 
are against his contention. The proposition that the surety is dis- 
charged when the right of action is barred as against the principal 
rests upon the doctrine that the surety's action is based upon the 
right of subrogation to the claim of the payee in the contract, 
against which doctrine this court has held, in the case of Faires v. 
Cockerill, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528, after a care- 
ful review of the authorities on the question. 

"Defendant in error urges upon this court that, although it be 
held that the plaintifiFs in error were not bound to present the claim 
to Morrison 's administrator, yet, having done so, and having failed 
to establish the claim as required by law, the sureties are, by such 
failure, discharged. If the failure of Willis and Brother to sue upon 
their claim within ninety days, or the fact that, having sued sub- 
sequently, they were defeated upon that claim for the reason that 
their right is barred by the lapse of ninety days' time, had the 
effect to discharge the estate of Morrison from liability to the 
sureties, then it would follow that the sureties would be discharged 
from a claim against them by Willis and Brother. But a discharge 
of the administrator of Morrison's estate upon that ground will not 
have the effect to discharge the estate from liability to Chowning, 
in case he was compelled to pay the debt; therefore, Chowning has 
suffered no injury by the failure of Willis and Brother to institute 
suit upon their claim within the time prescribed by law, nor by their 
failure to recover judgment against Morrison's estate when suit was 
instituted, and Chowning was not discharged by the bar of ninety 



88 American State Reports, Vol. 115. [Georgia, 

days' limitation in favor of the estate: Marshall v. Hudson, 9 Yerg. 
57. In the case last cited, a suit was instituted against the ad- 
ministrator of the principal debtor, and against which the admin- 
istrator pleaded the statutes of limitation and was discharged. Suit 
was afterward instituted against the surety, who pleaded that the 
debt was barred as to the estate of the principal, and also the judg- 
ment in favor of the estate, claiming that it discharged him, but 
the court gave judgment against him. The surety paid the judgment 
and brought suit against the estate of the deceased principal to re- 
cover the amount. It was claimed, as in this case, that, the debt 
being barred against the principal, the surety could not recover be- 
cause he had discharged no obligation which rested upon the estate 
of the principal, but the court held that the surety was entitled 
to recover upon the implied obligation which arose under the law 
out of the relation of principal and surety." 

But the voluntary release of the estate of the principal debtor 
has the effect of releasing his surety from personal liability and 
the failure to present a claim against it within the time fixed for 
the allowance and presentation of claims amounts to a release of the 
claim, where the estate is sufficient to pay all claims against it: 
Siebert v. Quesnel, 65 Minn. 107, 60 Am. St. Eep. 441, 67 N. W. 803. 

The payee of a bankrupt's note owes no duty to the surety of such 
note to prove the debt as a claim in the bankruptcy court. Mere 
delay and passivity on the part of the creditor does not discharge 
the surety. Besides, the -surety has his own efficient and appropriate 
remedies: Levy v. Wagner, 29 Tex. Civ. App. 98, 69 S. W. 112. 

c. General Eflfect of Delay in Suing Upon the Principal Obligation. 
Inasmuch as the surety has the right to pay the debt or satisfy 
the obligation, and then bring his own action against the principal, 
or, in some cases, proceeding in equity or under the statutes of some 
of the states to compel the principal to pay the debt or discharge 
the obligation, he is not allowed to demand from the creditor any 
greater degree of diligence in the collection of the debt or the en- 
forcement of the obligation than is required in cases in which the 
relation of principal and surety does not exist. Hence, the 
general rule is that the mere forbearance of a creditor to sue upon 
the principal obligation or debt does not discharge the surety. Or, 
in other words, the creditor is under no active duty to sue the prin- 
cipal debtor: Hooks v. Branch Bank, 8 Ala. 580; Dawson v. Eeal 
Estate Bank, 5 Ark. 283; Humphreys v. Crane, 5 Cal. 173; Bull v. Coe, 
77 Cal. 54, 11 Am. St. Rep. 235, 18 Pac. 808; Moreland v. State 
Bank, 1 111. 263; Naylor v. Moody, 3 Blackf. 92; Kirby v. Stude- 
baker, 15 Ind. 45; Holdeman v. Woodward, 22 Kan. 734; Pharr v. 
McHugh, 32 La. Ann. 1280; Purdy v. Forstall, 45 La. Ann. 814, 13 
South. 95; Freeman's Bank v. Rollins, 13 Me. 202; Sasscer v. Young, 
6 Gill & J. 243; Banks v. State, 62 Md. 88; Hunt v. Bridgham, 2 Pick. 



March, 1906.] Davenport v. State Banking Co. 89 

581, 13 Am. Dec. 458; Allen v. Brown, 124 Mass. 77; Huey v. Pinney, 
5 Minn. 310 (Gil, 246); Johnson v. Planters' Bank, 4 Smedes & M. 
165, 43 Am. Dec. 480; Hawkins v. Eidenhour, 13 Mo. 125; Quillen v. 
Quigley, 14 Nev. 215; Morris Canal etc. Co. v. Van Vorst's Admx., 
21 N. J. L. 100; Schroeppel v. Shaw, 3 N. Y. 446; Thompson v. Hall, 
45 Barb. 214; Mutual Life Ins. Co. v. Davies, 56 How. Pr. 440; 
Carter v. Jones, 40 N. C. 196, 49 Am. Dec. 425; Neal v. Freeman, 
85 N. C. 441; Dye v. Dye, 21 Ohio St. 86, 8 Am. Eep. 40; Thursby 
V. Gray's Admrs., 4 Yeates, 518; Kichards v. Commonwealth, 40 Pa. 
146; Appeal of Neal (Pa.), 11 Atl. 636; Edwards v. Dargan, 30 S. C. 
177, 8 S. E. 858; Johnston v. Searcy, 4 Yerg. 182; Willis v. Chowning, 
90 Tex. 617, 59 Am. St. Kep. 842; Crawn v. Commonwealth, 84 Va. 
282, 10 Am. St. Eep. 839, 4 S. E. 721; Harris v. Newell, 42 Wis. 687; 
Fanning v. Murphy, 126 Wis. 538, 110 Am. St. Eep, 946, 105 N, W. 
1056, 4 L, E, A,, N, S,, 666, But to the contrary effect are Au- 
champaugh v. Schmidt, 70 Iowa, 632, 59 Am, Eep. 459, 27 N. W. 
805, and Bridges v. Blake, 106 Ind. 332, 6 N. E. 833, in which cases 
the court, proceeding upon the theory that when the statute of 
limitations has run against the principal debtor he is under no obli- 
gation to preserve the evidences of his defense against the prin- 
cipal obligation, reasoned that the same rule should apply to the 
surety. 

The rule where the principal obligation is an unliquidated claim, 
such as the fidelity bond of a public officer, is that where the statute 
provides that actions for misfeasance in office are barred within a 
certain time, that the action against the surety will also be barred 
by the same period of limitations: State v. Conway, 18 Ohio, 234; 
State V. Blake, 2 Ohio St. 147. 

d. Effect Where Creditor has been Requested by Surety to Sue 
upon the Obligation. — It is well settled that a surety may by a suit 
in equity, after the principal obligation becomes due, compel the 
creditor to collect the debt from the principal, provided, of course, 
that he indemnify the creditor against loss from an unsuccessful 
suit against the principal: Eice v. Downing, 12 B. Mon. 44; Whit- 
ridge V. Durkee's Exrs., 2 Md. Ch. 442; Huey v. Pinney, 5 Minn. 
310; King v, Baldwin, 2 Johns. Ch. 554; Kent v. Matthews, 12 Leigh, 
573; Hogaboom v. Herrick, 4 Vt. 131; Eanelagh v. Hays, 1 Vern. 
189; Autrobus v. Davidson, 3 Mer. 578; Lee v, Eook, Mos. 318; Nesbet 
V. Smith, 2 Bro, C, C, 579; Eees v, Berrington, 2 Ves, Jr. 543. 

But it is not well settled whether the creditor is obliged to sue 
the principal upon the mere request of the surety to do so. The 
leading case holding that the failure of the creditor to so sue the 
principal upon request by the surety will exonerate the surety in the 
event that the principal thereafter becomes insolvent is that of 
King V, Baldwin, 17 Johns, 384, 8 Am. Dec. 415. The reasoning of 
the court in that case will show the contentions made by the 



90 Americ.vn State Reports, Vol. 115. [Georgia, 

courts on both sides of this question. The court, after referring to 
Pain V. Packard, 13 Johns. 174, 7 Am. Dec. 369, which held the same 
doctrine as it was about to hold, but which had been overruled by 
Chancellor Kent in a very exhaustive opinion in King v. Baldwin, 2 
Johns. Ch. 554, said: "The only point in which the chancellor and 
the supreme court differ is this: The chancellor maintains that the 
surety has no right, by an act in pais, to require the creditor to 
coerce the principal by suit to pay the debt, but he must apply to 
a court of equity, which will lend its aid for that purpose; whilst 
in the case decided in the supreme court, it is held that the creditor 
is bound to prosecute the principal at the request of the surety, and 
if he fail to do so, and the principal becomes insolvent afterward, 
so that the debt is lost as against him, the surety will be discharged. 
The chancellor considers it unnecessary and inexpedient to intro- 
duce what he considers a new principle of action between the cred- 
itor and surety; he apprehends that it will open a litigious inquiry 
as to the certainty and eflBciency of the notice, and that such a 
weapon put into the hands of a surety affords a temptation to 
vexation and fraud. 

"The principle adopted by this court in Rathbone v. Warren, 
10 Johns. 587, that a surety will be discharged if a new agreement be 
entered into between the creditor and the principal debtor, varying 
or enlarging the time of the performance of a contract, although 
amply supported by cases decided in the English courts, is of 
modern growth even in a court of equity. And it is well settled 
now that this defense may be set up at law. Gibbs, C. J., says in 
Orme v. Young, Holt N. P. 84, 17 E, E. 611, that the principle is 
borrowed from a court of equity. Our system of jurisprudence is 
in a constant progress of improvement, and some of the most valuable 
principles have sprung up and attained their perfection within the 
recollection of many members of the bar. Many cases might be 
mentioned, but I will refer to that just and salutary rule that a 
court of law will take notice of and protect the rights of an assignee 
of a chose in action. I have witnessed the rise, progress and es- 
tablishment of that wholesome and equitable principle. This, too, 
was borrowed from a court of equity. The soil into which it has 
been transplanted is congenial to its nature and perfection; it has 
saved much litigation and enormous costs. 

"I do not, then, perceive any solid objection to a court of law 
taking cognizance of the matters forming the grounds of the appel- 
lant's relief because in such cases courts of equity have also juris- 
diction. Much less do I perceive the necessity of applying to a 
court of equity to compel a creditor to do what equity and good 
conscience require of him. Courts of equity, when they interpose 
to compel a creditor, at the instance of a surety, to sue the principal 
debtor, undoubtedly proceed on the sound and just principle that 



March, 1906.] Davenport v. State Bankestg Co. 91 

it is the duty of the creditor to obtain payment, in the first instance, 
of the principal debtor, and not of the man who is a mere surety 
that the principal shall pay the debt. The doctrine is that it is 
inequitable and unjust for the creditor, by delaying to sue, to expose 
the surety to the hazards arising from a prolongation of the credit, 
and that the surety has an equity sufficient to invoke the interposi- 
tion of the powers of a court of chancery for his protection. In 
every such case a court of equity proceeds on a pre-existing equitable 
obligation, binding on the conscience of the creditor, to exert himself 
to obtain payment of the debt from the principal, who is regarded as 
the real debtor, and who ought to be coerced to pay the debt; and 
it must be the natural and necessary consequence that if the cred- 
itor, after an order or decree that he shall proceed at law to collect 
the debt of the principal, omits to do so, and thereafter the principal 
becomes insolvent, that the surety will be discharged. 

"If this duty exists and does bind the conscience of the creditor, 
[ cannot conceive why it may not be brought into exercise by an act 
in pais and without the interposition of a court of equity. Upon 
an application to that court by the surety, if the facts were conceded, 
an order or decree that the creditor should prosecute the principal 
debtor would be a matter of course; the decree would operate as a 
mere declaration of the duty of the creditor, and unless his con- 
science was dead to a sense of moral duty, it would not stand in 
need of such an admonition. If we are at liberty, as I think we are, 
to regard the consequences of the contrary doctrine, that the surety 
must either pay the debt himself, or resort to a court of equity 
to coerce the creditor to proceed at law against the principal, we 
shall find abundant cause to adopt the principle of the decision in 
Pain V. Packard, 13 Johns. 174, 7 Am. Dec. 369. The delay and 
expense are serious evils; the debt itself may, and undoubtedly will, 
in many cases, be jeopardized and lost as regards the principal, 
and the surety will be exposed to the final payment with a vast ac- 
cumulation of costs. 

"The principal objection to the decision in Pain v. Packard, 13 
Johns. 174, 7 Am. Dec. 369, is 'that it will open a litigious inquiry 
as to the certainty and efficiency of the notice.' This objection lies 
with equal force to all acts in pais, such as a demand of the goods 
in an action of trover, a demand of the maker of a note and notice 
of the nonpayment to the indorser, due demand and notice of nonpay- 
ment to the guarantor; so in a great variety of other cases the re- 
sponsibilities of parties depend on acts in pais; and I cannot perceive 
any ground for alarm or apprehension as to the mode of proof, 
unless we are prepared to distrust parol evidence in all cases. The 
chancellor refers to the civil law in support of his opinion. It 
appears that Justinian altered the civil law, and gave to the surety 
an exception of discussion, by which be might require the creditor 



92 American State Reports, Vol, 115. [Georgia, 

to proceed in the first instance against the principal; but if the 
creditor does not proceed against the sureties before he has proceeded 
against the principal, he cannot be obliged to proceed against the 
principal until he thinks proper; and his forbearing to proceed 
against him does not eventually destroy his right of proceeding 
against the surety, however great the delay has been: 1 Pothier on 
Obligations, by Evans, 262-267. The civil law is evidently defective 
in not affording any process which should coerce the creditor to 
proceed against the principal, and the superiority of the English law 
is striking and manifest in this respect. 

"My opinion rests on these principles, that the creditor is under 
an equitable obligation, and such is the essence of the contract, 
to obtain payment from the principal debtor and not from the surety, 
unless the principal is unable to pay the debt, and if the creditor 
unjustly and improperly collude with the principal to throw the debt 
on the surety, or after a full and explicit request by the surety 
to proceed at law to recover the debt of the principal, the creditor, 
from any improper motives, refuses and neglects to do so, and by 
such refusal and neglect the means of recovering the debt of the 
principal are lost, that theYi the surety is exonerated. 'This has been 
treated as a novel and alarming doctrine; but in my apprehension, 
it cannot alarm an honest or conscientious creditor; for where is the 
man who will boldly avow the unjust and immoral principle that 
after his debt has become due, and after he has been solicited by 
the surety to proceed and collect it by prosecuting both principal 
and surety, he will abstain from suing, with a view of favoring 
the principal and throwing the eventual loss on an innocent man, 
who from motives of friendship or humanity has become a surety! 

"There is but a minute shade of difference between the opinion ex- 
pressed by the chancellor and that of the supreme court in Pain v. 
Packard, Johns. 174, 7 Am. Dec. 369, and it is simply this: the chancellor 
holds that a court of equity must first be appealed to, to compel the credi- 
tor to sue at law, whereas the supreme court maintain that he can be re- 
quired by the surety to sue, without the aid of a court of equity, and if I 
am right in supposing that there does exist a moral and equitable duty 
on the part of the creditor to collect his debt from the principal in 
the first instance and this must be so, or a court of equity could 
not interpose at all, then I maintain that a court of law may, with- 
out overleaping its just jurisdiction, and in analogy to several other 
cases in which they take notice of existing equities, not only take 
cognizance of the equity which requires a creditor to collect his debt 
from the real debtor; but they may apply the consequences of the re- 
fusal of the creditor to sue the principal, without which the prin- 
ciple itself would be of no value, by holding that the surety is dis- 
charged if the creditor will not do his duty and collect this debt, if 
he can, from the principaL" 



March, 1906.] Davenport v. State Banking Co. 93 

Among the cases following the rule that the surety will be exon- 
erated where the creditor fails to sue the principal after a request 
by the surety may be found: Hempstead v. Watkins, 6 Ark. 317, 42 
Am. Dec. 696; Thompson v. Kobinson, 34 Ark. 44; Martin v. Shekun, 
2 Colo. 614; Ingals v. Sutliff, 36 Kan. 444, 13 Pac. 828; Manchester 
Iron Mfg. Co. v. Sweeting, 10 Wend. 162; Wheeler v. Benedict, 36 
Hun, 478; Eemsen v, Beekman, 25 N. Y. 552; Colgrove v. Tallman, 
67 N. Y. 95, 23 Am. Eep. 90; Toles v. Adee, 84 N. Y. 222; Crandall v. 
Mosten, 24 App. Div. 547, 50 N, Y. Supp, 145; De Caumont v. Easines, 
38 App. Div. 153, 56 N. Y. Supp. 652; Cope v. Smith, 8 Serg. & E. 110, 
11 Am. Dec. 582; Hopkins v. Spurlock, 2 Heisk. 152; Thompson v. 
Watson, 10 Yerg. 362. 

But the principal must be solvent at the time that the surety makes 
the request: Herrick v. Borst, 4 Hill, 650; Huffman v. Hulbert, 13 
Wend. 377; Merritt v. Lincoln, 21 Barb. 249. Among those cases 
holding that the creditor is under no obligation or duty to commence 
suit against the principal at the mere request of the surety are the 
following: Taylor v. Beck, 13 111. 376; Leavitt v. Savage, 16 Me. 72; 
Frye v. Barker, 4 Peck. 382; Bellows v. Lovell, 5 Pick. 307; Adams 
Bank v. Anthony, 18 Pick. 238; Benedict v. Olson, 37 Minn. 431, 35 
N. W. 10; Pintard v. Davis, 20 N. J. L. 205; Caston v. Dunlap, Eich. 
Eq. Cas. 77, 23 Am. Dec. 194; Harris v. Newell, 42 Wis. 687. 

In some of the states the statutes make it the duty of the creditor 
to commence suit against the principal after receiving a notice so 
to do from the surety: Cochran v. Orr, 94 Ind. 433; Barnes v. Mowry, 
129 Ind. 568, 28 N. E. 535; Piper v. Newcomer, 25 Iowa, 221; Shen- 
andoah Nat. Bank v. Ayres, 87 Iowa, 526, 54 N. W. 367; Smith v. 
Clapton, 48 Miss. 66; Jaspar County v. Shanks, 61 Mo. 332; Updike's 
Admr. v. Lane, 78 Va. 132; Coleman v. Stone, 85 Va. 386, 7 S. E. 
241; Gillilan v. Ludington, 6 W. Va. 128. 

e. Effect Where Principal is Insolvent at Time of the Bequest to 
Sue, or Becomes so Thereafter. — The creditor, even in those states 
where the rule prevails that a request on the part of the surety for 
him to sue the principal will exonerate the surety from liability, is not 
obliged to sue the principal where he ia insolvent at the time of the 
request to sue: Hartman v. Burlingame, 9 Cal. 557; Huffman v. Hurl- 
burt, 13 Wend. 377; Herrick v. Borst, 4 Hill, 650; Hunt v, Purdy, 82 
N. Y. 486, 37 Am. Eep. 587; Marsh v. Dunckel, 25 Hun, 167; Bizzell 
T. Smith, 17 N. C. 27. In some of the states where the matter is 
regulated by statute, the duty to sue is not affected by the question 
of the insolvency of the principal: Overturf v. Martin, 2 Ind. 507; 
Or&bam v. Bush, 73 Iowa, 451, 35 N. W. 518; Meriden Silver Plate Co. 
V. Hory, 44 Ohio St. 430, 7 N. E. 753. 

Of course, where the principal was solvent at the time of the re- 
quest and only becomes insolvent subsequently, the rule whether the 
creditor is nevertheless under the duty to sue him under penalty of 



94 American State Reports, Vol. 115. [Georgia, 

exonerating the surety is dependent npon the rule followed in the par- 
ticular state with respect to whether the creditor is under a positive 
duty to sue the principal upon the mere request of the surety as 
shown in the preceding subdivision. 

In order for the creditor to be under any obligation to sue the 
principal after a request so to do from the surety, it is essential that 
the notice to sue be couched in language which clearly and distinctly 
shows a request to sue, and not mere advice as to the propriety of 
such a course of action: Savage's Admr, v. Carleton, 33 Ala. 443; 
Darby v. Bemey Nat. Bank, 97 Ala. 643, 11 South. 881; Bates v. 
State Bank, 7 Ark. 394, 46 Am. Dec. 293; Bowling v. Chambers, 20 
Colo. App. 113, 77 Pac. 16; Kennedy v. Folde, 4 Dak. 319, 29 N. W. 
667; Kaufman v. Wilson, 29 Ind. 504; Moore v. Peterson, 64 Iowa, 
423, 20 N. W. 744; Lockridge v. Upton, 24 Mo. 184; Maier v. Cana- 
van, 57 How. Pr. 504; Denick v. Hubbard, 27 Hun, 347; Goodwin v. 
Simonson, 74 N. Y. 133; Baker v. Kellogg, 29 Ohio St. 663; Fidler v. 
Hershey, 90 Pa. 363; Parrish v. Gray, 1 Humph. 88, 

m. Extent of Duty of Creditor to Give Surety Notice of Default 

of Principal. 

The general rule is that the creditor is under no obligation to give 
the surety notice of the default of the principal in order to hold the 
surety liable, unless, of course, he has specifically agreed to do so in the 
contract of suretyship: Treweek v. Howard, 105 Cal. 434, 39 Pac. 20; 
Phoenix Mut. Life Ins. Co. v. Holloway, 51 Conn. 310, 50 Am. Eep. 
21; Week v. Pugh, 92 Ind. 382; Phoenix Ins. Co. v. Findley, 59 Iowa, 
591, 13 N. W. 738; Gilbert v. State Ins. Co., 3 Kan. App. 1, 44 Pac. 
442; Dougherty v. Peters, 2 Eob. 534; Forrester v. State, 46 Md. 154; 
Morris Canal. etc. Co. v. Van Vorst's Admx., 21 N. J. L. 100; Neal v. 
Freeman, 85 N. C. 441; Matthewson v. Sprague, 1 B. I. 8; Smith v. 
Martin, 4 Desaus. 148; Watson v. Barr, 37 S. C. 463, 16 S. E. 188. 
But where the creditor, by positive acts on his part, leads the surety 
to believe that the debt or obligation has been satisfied, and the 
surety, in consequence thereof, releases security held by him, or omits 
to secure himself against the default of the principal, the surety 
will be discharged: High v. Cox, 55 Ga. 662; Scarratt v. F. W. Cook 
Brewing Co., 117 Ga. 181, 43 S. E. 413; Thornburgh v. Madren, 33 Iowa, 
380; West v. Brison, 99 Mo. 684, 13 S. W. 95; Cochecho Nat. Bank v. 
Haskell, 51 N. H. 116, 12 Am. Eep. 18; Atkins v. Payne, 190 Pa. 5, 42 
Atl. 378. 

The question of the timeliness of the notice of default very fre- 
quently arises in respect to the liability of a surety on contractor's 
bonds, or on bonds for the fidelity of employes, but in such cases 
the duty of the obligee is generally fixed by the terms of the bond: 
Getchell etc. Mfg. Co. v. National Surety Co., 124 Iowa, 617, 100 N. 
W. 556; Hurley v. Fidelity etc. Deposit Co., 95 Mo. App. 88, 68 S. W. 
958; In re Byer's Estate, 205 Pa. 66, 54 Atl. 492; Dallas etc. Loan 



March, 1906.] Davenport v. State Banking Co. 95 

Assn. V, Thomas, 36 Tex. Civ. 268, 81 S. W. 1041; National Surety 
Co. V. Long, 125 Fed. 887. 

IV. Effect Where Creditor Surrenders Securities or Funds Which 

were in His Possession. 

a. In General. — It is the duty of the creditor, where he holds prop- 
erty of the principal in his possession as security for the principal 
obligation, not to release such property upon penalty of discharging 
the surety to the extent of the property so released. The position 
of the creditor under such circumstances is in the nature of that of 
a trustee for all the parties concerned: Cullum v. Emanuel, 1 Ala. 23, 
34 Am. Dec. 757; Winston v. Yeargin, 50 Ala. 340; Stallings v. Bank 
of America, 59 Ga. 701; Kirkpatrick v. Howk, 80 111. 122; Holland v. 
Johnson, 51 Ind. 346; Sample v. Cochran, 82 Ind. 260; Bonney v. Bon- 
ney, 29 Iowa, 448; Lucas Co. v. Eoberts, 49 Iowa, 159; Barrow v. 
Shields, 13 La. Ann. 57; Gay v. Blanchard, 32 La. Ann. 497; Springer 

V. Toothaker, 43 Me. 381, 69 Am. Dec. 66; Cummings v. Little, 45 
Me. 183; American Bank v. Baker, 4 Met. 164; Guild v. Butler, 127 
Mass. 386; Ives v. Bank of Lansingburg, 12 Mich. 361; Willis v. 
Davis, 3 Minn, 17; Nelson v. Munch, 28 Minn. 314, 9 N. W. 863; 
Taylor v. Jeter, 23 Mo. 244; Griswold v. Jackson, 2 Edw. Ch. 461; 
Third Nat. Bank v. Shields, 55 Hun, 274, 8 N. Y. Supp. 298; Smith 
V. McLeod, 38 N. C. 390; New Hampshire Sav. Bank v. Colcord, 15 
N. H. 119, 41 Am. Dec. 655; Day v. Ramey, 40 Ohio St. 446; Brown v. 
Rathburn, 10 Or. 158; Clow v. Derby Coal Co., 98 Pa. 432; Temple- 
ton V. Shakley, 107 Pa. 370; Cherry v. Miller, 7 Lea, 305; Strong v. 
Wooster, 6 Vt. 536; Austin v. Belknap, 54 Vt. 495; Plankinton v. Gor- 
man, 93 Wis. 560, 67 N. W. 1128; Allen v. O 'Donald, 23 Fed. 573; 
Brown v. First Nat. Bank, 132 Fed. 450. 

b. Effect Where Creditor Makes Pajrments to Principal Which He 
had a Bight to Withhold. — A surety on a bond given as an indemnity 
against defective work under a construction contract can only be re- 
leased by some positive act done by the owner to the prejudice of 
the surety, such as acceptance and payment with knowledge or some 
act which would imply connivance amounting to fraud: Newark v. 
New Jersey Asphalt Co., 68 N. J. L. 458, 53 Atl. 294. Positive acts of 
negligence on the part of the creditor in making payments which he 
had the right under a building contract to withhold will in some 
cases release the surety: Hedrick v. Bobbins, 30 Ind. App. 595, 66 N. 
E. 704. 

c. Duty of Creditor Where He has Property or Funds of the Prin- 
cipal in His Possession Such as Where a Bank is Creditor. — Where 
money is deposited on condition that the creditor require it to be ap- 
plied on his claim and he turns it over to the principal without the 
consent of the surety, the surety is discharged: Pierce v. At wood, 64 
Neb. 92, 89 N. W. 669. Hence the general rule is that where the 



96 American State Reports, Vol. 115. [Georgia, 

creditor has within his control funds of the principal debtor which 
may properly be applied toward the payment of the obligation, but 
fails to do so, the surety is discharged: Dawson v. Eeal Estate Bank, 
6 Pike (Ark.), 283; McDowell v. Bank of Wilmington etc., 1 Harr. 
369; Central Bank v. Thein, 76 Hun, 571, 28 N. Y. Stipp. 232; Com- 
mercial Nat. Bank v. Henninger, 105 Pa. 496; German Nat. Bank v. 
Foreman, 138 Pa. 474, 21 Am, St. Eep. 908, 21 Atl. 20; Mechanics' 
Bank v. Seitz, 150 Pa. 632, 30 Am. St. Eep. 853, 24 Atl. 356; First N. 
Bank of Lockhaven v. Peltz, 176 Pa. 513, 53 Am. St. Eep. 686, 36 
L. E. A. 832, 35 Atl. 218. 

But in order to make it incumbent upon the creditor to apply funds 
or property in his possession upon the debt of the principal, the cred- 
itor must have some such lien on or interest in the property or fund 
that it is charged with a trust in favor of the surety. The reasons 
for this rule were well set forth in the case of Glazier v. Douglas, 32 
Conn. 393, the court saying: "By a series of decisions adopting the 
equitable principles of the civil law, there have been annexed to the 
undertaking of a surety in a case like this three conditions, and If 
either is broken by the creditor that undertaking becomes inopera- 
tive, and the surety is discharged. 

"The first is that the creditor shall present the note to the maker 
for payment at maturity, and if dishonored use due diligence in giv- 
ing notice to the surety. The second is that no obligatory extension 
of the time of payment shall be given which will preclude the surety, 
if he pay the note to the creditor, from enforcing immediate repay- 
ment by compulsory process from the principal debtor. And the third 
is, that the creditor shall apply in payment of the debt, or hold in 
trust for the benefit of the surety, all securities which he may receive 
or procure for that purpose by contract or operation of law, so that 
if compelled to discharge the debt the surety may be subrogated to 
them. And the surety may waive the benefit of these conditions by 
assent. But although in some special cases in equity the creditor 
may be compelled to proceed against the maker, the law annexes no 
condition requiring the creditor to proceed against the principal debtor, 
or do any act (whatever his opportunity or however much it may 
subserve the interest of the surety) to procure security or enforce 
payment from that principal; and he may remain entirely passive, and 
rely on the undertaking of the surety, whether the principal debtor 
be solvent or insolvent. 

"In respect to what shall be deemed a security within the meaning 
of the condition, there has been some contrariety of decision. The 
better opinion is that it must be a mortgage, pledge or lien — some 
right to or interest in property which the creditor can hold in trust 
for the surety, and to which the surety, if he pay the debt, can be sub- 
rogated, and the right to apply or hold must exist and be absolute^ 



March, 1906.] Davenport v. State Banking Co. 97 

"Mortgages and pledges made or given as security are, as a mat- 
ter of course, within the condition. But even these may be received 
under such a qualified or contingent contract that they may be re- 
leased. Thus in Pearl Street Congregational Soc. v. Finlay, 23 Conn. 
10, a mortgage was given as security with the understanding that 
other security when offered should be received and the mortgage re- 
leased, and this court held that the creditor could safely carry out 
the agreement and release the mortgage. The right to hold the secur- 
ity in that case was created by the agreement, and was contingent, 
not absolute, and the interest of the surety in it could be no greater 
than that of the creditor. 

"The contrariety of decision spoken of has been chiefly in respect 
to liens by process or operation of law. Judgment liens made such by 
the local law are assignable, and clearly within the condition. But it 
has been made a question whether a lien obtained by levy of execu- 
tion on the goods of the principal debtor can be released or aban- 
doned, and the better opinion now is that it cannot be: Mayhew v, 
Crickett, 2 Swan, 185; Commonwealth v. Vanderslice, 8 Serg. & E. 452; 
Chichester's Admr. v. Mason, 7 Leigh, 244. In the last case execution 
was not levied, but the law made it a lien on all the defendants' goods 
as soon as issued. 

"But it is otherwise in respect to liens acquired by attachment on 
mesne process. As the creditor is under no obligation of active dil- 
igence, and therefore need not commence a suit whatever his oppor- 
tunity, so if he commences one he is under no obligation to pursue 
it, for it involves trouble and expenses not required of him where 
goods are taken by the officer in execution: Hurd v. Little, 12 Mass. 
502; Bank of Montpelier v. Dixon, 4 Vt. 587, 24 Am. Dec, 640; Crane 
V. Stickles, 15 Vt. 252; Baker's Exrs. v. Marshall, 16 Vt. 522, 42 Am, 
Dec. 528. 

"Applying these principles to the case, it is clear that the defense 
is groundless. If it appeared from the finding that the plaintiff was 
individually indebted to Rogers & Co. for goods purchased of them 
after the note was given, that indebtedness, in the absence of any 
agreement tv that effect, would not be a security in his hands, within 
the condition annexed by law to the defendant's udertaking. The 
plaintiff would have had no lien upon it and no right by contract or 
operation of law to apply it; nor would he hold the debt in trust for 
the benefit of the surety; nor if the defendant paid the note could 
he claim to be subrogated to it. 

"The plaintiff could have retained it, and if sued could offset it, 
but that the defendant had no more right to insist he should do than 
to insist that he should do any other act to secure or enforce payment. 
The surety could have paid the note and attached the debt by foreiga 
attachment. 

"The defendant cites several dicta to the effect that 'where the 
creditor has the means of satisfaction actually or potentially in his hands 
Am. St. Rep., Vol. 115—7 



98 American State Reports, Vol. 115. L^eorgia, 

and releases them the surety is discharged.' The dicta were all made 
in cases where there was a lien, and the money or property held under 
a right of application. Thus, in the case in the 8th Pickering, 122, 19 
Am. Dec. 311 (Baker v. Briggs), property had been assigned by the 
debtor in trust to pay the note, and the money was in the hands of 
the assignee subject to the call of the creditor, and Judge Parker said 
it was the same as if in his own hands, and as he had funds with the 
right to apply them, he could not call on the surety. There the right 
to apply was created by the assignment of the debtor and the money 
was strictly a security. In Commonwealth v. Vanderslice, 8 Serg. & 
R. 452, a lien had been acquired by the levy of execution on goods, 
and the dictum cited had reference to such a state of facts. In Law 
V. East India Co., 4 Ves. 825, funds had been left in the hands of 
the creditor to pay the debt, and there was a right of application. 
In Lichtenthaler v. Thompson, 18 Serg. & R. 157, 15 Am. Dec. 581, 
the plaintiff was a lessor, and the defendant surety for the fulfill- 
ment of the lease, and the lessor had a lien by statute on the goods 
of the lessee which had been taken by another creditor in execution 
and sold, but his lien extended to the money which he fraudulently 
permitted a prior lessor to claim, and the court held the right to the 
money, a security which the plaintiff was bound to apply to the officer 
for and obtain. These and all the other cases from which the de- 
fendant cites are cases of lien, with right of application, and would 
not sustain the defense if the debt to Roger & Co. was the individual 
debt of the plaintiff." 

The decisions with respect to whether a bank which is the payee of a 
note is obliged to retain the amount of the note from out of the de- 
posit of the maker at the bank when the note becomes due are not 
harmonious. Where a deposit with the bank is a special one, such 
as, for instance, under an agreement that the depositor will buy cattle 
and check the money out in such transactions, it is held that the 
bank is under no duty to retain the deposit in order to protect the 
surety from loss: Wilson v. Dawson, 52 Ind. 513; Neponset Bank v. 
Leland, 5 Met. 259. 

The diversity of opinion amongst the courts upon the question of 
the duty of a bank holding a note made by a depositor and signed 
by a surety is well shown in the principal case (Davenport v. State 
Banking Co., 126 Ga. 136, ante, p. 68, 54 S. E. 977), wherein the 
court said: "It has been held in a number of cases that where a bank 
is the owner of a note or other obligation evidencing an indebtedness, 
upon which there is a surety, and at the maturity of the debt the prin- 
cipal debtor has funds on general deposit with the bank sufficient to 
pay the debt, the failure of the bank to apply such funds to its pay- 
ment will discharge the surety: Commercial Bank v. Henninger, 105 
Pa. 496; German Nat. Bank v. Foreman, 138 Pa. 474, 21 Am. St. Rep. 
808, 21 Atl. 20; Dawson v. Real Estate Bank, 5 Pike (Ark.), 283; 



March, 1906.] Davenport v. State Banking Co. 99 

Pursifull V. Pineville Banking Co., 97 Ky. 154, 53 Am. St. Eep. 409, 
30 S. W. 203; Central Bank of Eochester v. Thein, 76 Hun, 571, 28 
N. Y. Supp. 232. The contrary view was taken in Second Nat. Bank 
V. Hill, 76 Ind. 223, 40 Am. Kep. 23i», Martin v. Mechanics' Bank, 6 
Har. & J. 235, and National Mahaiwe Bank v. Peck, 127 Mass. 298, 
34 Am. Eep. 368. For although in the Massachusetts case,_ and 
perhaps in each of the other two, the decisions might have been 
placed upon the narrow ground that it did not appear that at the 
maturity of the note the bank held on general deposit funds of 
the principal sufficient to pay it, in none of these cases was this 
done; but the decision in each case was placed upon the broad 
ground that the bank was not bound to set oflP the amount of a note 
due to it by a depositor against his general deposit account for the 
protection of a surety upon the note. It has been held by almost 
all the courts where the questions have arisen that, if at the 
maturity of a note held by a bank the principal thereon has not suffi- 
cient funds in general deposit with the bank to pay it, the bank is 
under no duty to a surety upon the note to apply such funds of the 
principal as may then be on deposit to the payment of the note pro 
tanto; nor is it bound to pay the note from subsequent deposits of 
the principal, although they are sufficient for this purpose: People's 
Bank of Wilkes-Barre v. Legrand, 103 Pa. 309, 49 Am. Eep. 126; 
First Nat. Bank of Lancaster v. Shreiner, 110 Pa. 188, 20 Atl. 718; 
First Nat. Bank of Lock Haven v. Peltz, 176 Pa. 513, 53 Am. St. Eep. 
686, 35 Atl. 218, 36 L. E. A. 832; Voss v. German-American Bank, 
83 ni. 599, 25 Am. Eep. 415; National Bank of Newburg v. Smith, 
66 N. Y. 271, 23 Am. Eep. 48; Bacon's Admr. v. Bacon's Trustees, 
94 Va. 686, 27 S. E. 576; Houston v. Braden (Tex Civ. App.), 37 
8. W. 467; Citizens' Bank v. Elliott, 9 Kan. App. 797, 59 Pac. 1102. 
The only case to the contrary which we have found is McDowell 
V. Wilmington Bank, 1 Harr. (Del.) 369." 

If a bank at which a note is payable and to which it belongs 
had, when it became due, moneys of the maker on deposit more 
than sufficient to pay it, and, instead of applying the moneys to 
such payment, permitted them to be drawn out by the maker, who 
subsequently became insolvent, his surety on the note is thereby re- 
leased: PursifuU v. Pineville Banking Co., 97 Ky. 154, 53 Am. St. 
Eep. 409, 30 S. W. 203. In the case last cited, the court observed: 
"The right on part of this bank to retain a sufficiency of Hurst's 
deposit gave it the absolute control of an ample security for the 
payment of this debt. A lien by pledge could give no higher right 
to the security than this bank had. It had the unquestioned right 
to actually appropriate and apply this money, which it owed to 
Hurst, to the payment of Hurst's debt to it. It matters not whether 
the right to the security has its origin in the doctrine of setoflF 
or under a pledge as collateral. It is the extent of the right to 



100 American State Reports, Vol. 115. [Georgia, 

the security, rather than the source from which that right springs, 
that should determine the question whether the creditor can volun- 
tarily surrender the security without releasing the surety, and, hav- 
ing had in its hands a fund which it could, by mere exercise of its 
option to do so, have used for the satisfaction of this debt, and which, 
we may assume, the dictates of ordinary diligence and of prudent 
banking would have prompted it to thus use, this bank has, in our 
judgment, been guilty of bad faith toward the surety, who, accord- 
ing to the facts as they are admitted here, knew of this large de- 
posit to the credit of his principal, who received no notice of the 
nonpayment of the note until nearly four years thereafter, and who 
assumed, as he had a right to do under these circumstances, that 
the note had been paid at maturity." 

But a mere partial release of the maker's deposit account to the 
prejudice of the surety's equitable rights will not operate as a full 
discharge of the surety's obligation, though it may be so operated 
to the extent of the maker's deposit: Lowe v. Eeddan, 123 Wis. 90, 
100 N. W. 1038. 

d. Duty of Creditor to Exercise Care and Diligence in the Man- 
agement of Collateral Securities. — A creditor who receives securities 
as collateral to the principal obligation owes a duty to the surety 
to use proper care and diligence in the management and care of 
such securities. But he is not required to exercise any greater de- 
gree of care in regard to them than an ordinarily prudent man 
would exercise in protecting his own interests: Sullivan v. State, 59 
Ark. 47, 26 S. W. 194; Pfirshing v. Peterson, 98 111. App. 70; Crira 
V. Fleming, 101 Ind. 154; Wasson v. Hodshire, 108 Ind. 26, 8 N. E. 
621; Mingus v. Dougherty, 87 Iowa, 56, 43 Am. St. Eep. 354, 54 N. 
W. 66; Jenkins v. National Bank, 58 Me. 275; Fennell v. McGowan, 58 
Miss. 261; State Bank v. Bartle, 114 Mo. 276, 21 S. W. 816; Burr 
V. Beyer, 2 Neb. 265; City Bank v. Young, 43 N. H. 457; Black Eiver 
Bank v. Page, 44 N. Y. 453; Teaflf v. Eoss, 1 Ohio St. 469; Kemmerer 
v. Wilson, 31 Pa. 110; Harrison Mach. Works v. Templeton, 82 Tex. 
443, 18 S. W. 601; Douglas v. Eeynolds, 7 Pet. 113, 8 L. ed. 626. But 
after a mortgage or other lien in favor of the creditor has been madn 
effective, the creditor is under no positive duty to foreclose the lien 
prior to the property subject to the lien becoming depreciated, since it is 
in the power of the surety to pay the debt and become subjected to the 
lien: Grisard v. Henson, 50 Ark. 229, 6 S. W. 906; Carver v. Steele, 116 
Cal. 116, 58 Am. St. Eep. 156, 47 Pac. 1007; Wasson v. Hodshire, 108 Ind. 
26, 8 N. E. 621; Fuller v. Tomlinson, 58 Iowa, 111, 12 N. W. 127; Sheldon 
V. Williams, 11 Neb. 272, 9 N. W. 86; Schroeppell v. Shaw, 3 N. Y. 446; 
Howe M. Co. v. Farington, 82 N. Y. 121; Appeal of Kindt, 102 Pa. 441; 
Day V. Elmore, 4 W^is. 190. But a creditor who has a judgment lien upon 
the land of the principal debtor, which land is fairly worth in the mar- 



March, 1906.] Davenport v. State Banking Co. 101 

ket enough to cover the principal obligation, releases the surety 
where he combines with the owner in selling it at private sale for 
less than it is worth: Montgomery v. Sayre, 100 Cal. 182, 38 Am. St. 
Rep. 271, 34 Pac. 646. In other words, where the creditor is guilty 
of colluding with the principal debtor in such a manner as to waste 
the securities held by the creditor as collateral to the obligation, the 
surety may avail himself of that fact: Phares v. Barbour, 49 111. 370; 
Eobeson v. Eoberts, 20 Ind. 155, 83 Am. Dec. 308; Nichols v. Burch, 
128 Ind. 324, 27 N. E. 737; Clopton v. Spratt, 52 Miss. 251; Sitgreaves 
V. Farmers' Bank, 49 Pa. 359. 

V. Efifect Where Creditor Loses Lien Secured by Levy of Execution 
Against Principal Debtor by His Own Negligence. 

The efifect of the loss of a lien secured by the levy of an execution 
* upon the property of the principal debtor has been stated by the court 
of Maine to be as follows: "Although the plaintiff was not legally 
> bound to use active diligence in collecting the debt of the principal, 
and the surety would not be discharged by reason of his delay in 
the matter, and though the plaintiff might have discontinued proceed- 
ings against the principal debtor which he need noot have instituted, 
yet it would be clearly inequitable to allow him to abandon an ab- 
solute lien or security upon the property of the principal, which he 
^-^ had obtained as the result of those proceedings, and to retain his 
i^— & hold upon the security for the whole debt": Springer v. Toothaker, 

I 43 Me. 381, 69 Am. Dec. 66. 
Cf-t The rule on this subject has been stated in Freeman on Executions, 
section 269, to be as follows: "When third persons, as sureties, are 
collaterally liable, the release of the levy cannot revive the judgment 
as to them; and in general, so far as the rights of third persons are 
concerned, whether they are sureties or the holders of junior liens, or 
otherwise interested in the discharge of the writ, the levy upon goods 
, is a satisfaction of the judgment to the extent of their value, unless 
^^^ plaintiff is deprived of the benefit of his levy, without any fault, 
neglect or indulgence on his part, or on the part of the oflficer. If 
there are sureties for the payment of the debt for which the writ is- 
sued, its levy operates as a satisfaction in their behalf, of the bene- 
fit of which they cannot be deprived through the fault of the plain- 
tiff or the officer. Hence, a release of the levy without their assent 
relieves them of their obligation as sureties, unless the release is with- 
out the concurrence of the plaintiff, as where it is accomplished by 
giving an undertaking on appeal, or a forthcoming and delivery 
bond." 

VL Effect Where Lien in Favor of Creditor is Lost by Operation of 

Law. 

Where a lien secured by the creditor upon property of the principal 
debtor is lost by operation of law, the surety is discharged: New- 



102 American* State Reports, Vol. 115. [Georgia, 

comb V. Eaynor, 21 Wend. 108, 34 Am. Dec. 219; Shutts v. Fingar, 
100 N. Y. 539, 53 Am. Rep. 231, 3 N. E. 588; Wright v. Kuepper, 
1 Pa. 361; Johnson v. Young, 20 W. Va. 614. But the failure of the 
creditor to revive a judgment does not release a surety, in the ab- 
sence of an express agreement that such judgment should be kept 
revived for his benefit: Campbell v. Sherman, 151 Pa. 70, 31 Am. St. 
Eep. 735, 25 Atl. 35. 



HOLLOWAY V. HOLLOWAY. 

[126 Ga. 459, 55 S. E. 191.] 

DIVORCE — Moral Turpitude — Voluntary Manslaughter. — 
Under a statute giving as a ground for divorce the conviction of 
either party of an offense involving moral turpitude, and under 
which he or she is sentenced to the penitentiary for a term of two 
years or longer, a wife becomes entitled to a divorce on her husband 
being convicted of voluntary manslaughter and sentenced to the 
penitentiary for a term of more than two years, (p. i03.) 

DIVORCE rOE CRIME— Pardon, Effect of.— If a husband is 
convicted and sentenced for a crime entitling his wife to a divorce, 
his subsequent pardon by the governor does not destroy her right 
to such divorce, (p. 104.) 

0. M. Duke and J. E. and L. B. McClelland, for the plain- 
tiff in error. 

J. D. Kilpatrick, contra. 

4«o COBB, P. J. Mittie D. Holloway brought her libel 
for divorce against Joseph Holloway on May 13, 1905, and 
alleged that they were married on December 24, 1893; in 
1899 the respondent was convicted of the offense of volun- 
tary manslaughter, and sentenced to serve a term of twenty 
years in the penitentiary ; they have not lived together since 
the conviction of the respondent; in 1904 the respondent 
was pardoned by the governor. A demurrer to the libel 
was overruled, and the respondent excepted. 

1. The Civil Code declares among the grounds for divorce, 
"the conviction of either party for an offense involving 
moral turpitude, and under which he or she is sentenced 
to imprisonment in the penitentiary for the term of two 
years or longer": Civ. Code, sec. 2426, par. 8. The respond- 
ent was sentenced to the penitentiary for a term exceeding 
two years, and the right of the libelant to a divorce depends 



March, 1906.] Hollow ay v. Hollo way. 103 

upon whether the offense of which he was convicted involved 
moral turpitude. Turpitude in its ordinary sense involves 
the idea of inherent baseness or vileness, shameful wicked- 
ness, depravity: Webster's International Dictionary. In 
its legal sense it includes everything done contrary to jus- 
tice, honesty, modesty or good morals: Black's Law Diction- 
ary; Bouvier's Law Dictionary. The word "moral," which 
so often precedes the word "turpitude," does not seem to 
add anything to the meaning of the term, other than 
that emphasis which often results from a tautological ex- 
pression. All crimes embraced within the Roman's concep- 
tion of the crimen falsi involve turpitude ; but it is not 
safe to declare that such crimes only involve turpitude. 
Murder involves vileness and depravity; for it is the result 
of an abandoned and malignant heart. Voluntary man- 
slaughter involves the intentional destruction of human life. 
It is true that there is no deliberation, no malice, in the 
act constituting the offense, but the manslayer intends to 
kill, and carries out the intention in an unlawful manner. 
It may be the result of passion or '*®* teipper, and the law 
in its mercy visits a less penalty than that inflicted for will- 
ful killing; but it necessarily involves the intention to un- 
lawfully deprive another of life. Whenever one intention- 
ally and wrongfully takes human life, he does an act which 
is base vile, depraved and contrary to good morals. That 
the offense of voluntary manslaughter involves mo»al turpi- 
tude cannot admit of serious question: See, in this connec- 
tion, 5 Words and Phrases, 4580. 

2. The right of'the libelant to a divorce results from the 
conviction and sentence. There are three essential ingredi- 
ents in the ground for divorce : the commission of the offense 
involving moral turpitude, the conviction for the same, and 
a sentence for a term of two years or longer in the peniten- 
tiary. When this state of affairs is shown to exist, the law 
declares the libelant is entitled to a divorce. Can this right 
given by statute be destroyed by an executive pardon? The 
pardon restores the convict, so far as the public is con- 
cerned, to the position he occupied before the conviction. 
He is no longer infamous; he may vote, hold office, and per- 
form other public functions. Rights which have accrued to 
individuals as a result of the conviction are not affected by 
the pardon. Mr. Bishop, in his work on Marriage, Divorce 



104 American State Reports, Vol. 115. [Georgia, 

and Separation, sections 444, 1807, says that where convic- 
tion for a crime is declared to be a ground for divorce it is 
a defense to a divorce suit to show that the convict has 
been pardoned. He cites no authority for this statement. 
He does refer to the case of Young v. Young, 61 Tex. 191, 
where it was held that the commutation of the sentence of 
one convicted of a felony was not equivalent to a pardon. 
The statute of Texas provided that if a party to a marriage 
was convicted of a felony and imprisoned in a state prison, 
this should be a ground for divorce, provided that no suit 
could be maintained for the conviction of either party until 
twelve months after final judgment of conviction, nor then 
if the governor should have pardoned the convict. In that 
case the governor had commuted the sentence of the con- 
vict within twelve months after final judgment; and this 
was held not to amount to a pardon within the meaning of 
the statute. Mr. Nelson in his work on Divorce and Separa- 
tion says that it would seem that if before the trial of 
the suit for divorce the convict is pardoned, the divorce 
should not be granted. He cites no authority for the prop- 
osition. Reference is made to "**** the case of Young v. 
Young, 61 Tex. 191, and also to the case of State v. Duket, 
90 Wis. 272, 48 Am. St. Rep. 928, 63 N. W. 83, 31 L. R. A. 
575. In that case it was held that the reversal of a sen- 
tence of one convicted of a felony did not have the effect 
of restorftig the conjugal rights taken away by virtue of a 
statute which declared that a sentence of imprisonment for 
life should dissolve the mai*riage of the person sentenced. 
Mr. Keezer, in his recent work on Marriage and Divorce, 
says that no pardon granted after the decree of divorce will 
restore such party to his or her conjugal rights. To sustain 
this proposition he cites the case of Young v. Young, 61 
Tex. 191, and Handy v. Handy, 124 Mass. 394. In the case 
last cited the facts were peculiar, and it is impossible to tell 
from the meager statement in the report exactly what was 
the extent of the ruling. We have been able to find no 
decision which is a direct ruling on the question now before 
us. We think the better view is that the pardon of the con- 
vict does not destroy the right to a divorce, declared by stat- 
ute to arise upon conviction and sentence. 
Judgment affirmed. 

All the justices concur, except Fish, C. J., absent. 



March, 1906.] iloRRis v. Duncan. 105 

The Dissolution of Marriage consequent upon the sentence of either 
spouse for life is absolute, and a reversal of the sentence does not 
restore the parties to their marital relations, where the court pro- 
nouncing the sentence had jurisdiction of the accused and of the 
offense: State v. Duket, 90 Wis. 272, 48 Am. St. Eep. 928. 



MORRIS V. DUNCAN. 

[126 Ga. 467, 54 S. E. 1045.] 

PUNITIVE DAMAGES Against the Estate of a Decedent can- 
not be Awarded, because, on account of his death, the object in 
awarding such damages must fail. (p. 106.) 

DAMAGES for Wounded Feelings are not Punitive but Com- 
pensatory, and the estate of a decedent may be liable for such dam- 
ages, (p. 106.) 

STATUTES, Construction of Must be Prospective. — A statute 
authorizing a court to open defaults does not apply to judgments by 
default already existing, (p. 107.) 

Action for damages for the malicious use and abuse of 
civil process in levying on the household effects of the de- 
fendant on a debt which she did not owe. During the pend- 
ency of the action, the defendant died, and his executors 
were substituted as defendant. The court instructed the 
jury, among other things, as follows: "Now, what sum you 
shall allQw, if you' allow any, is to be determined by you, 
and, as already stated to you, you will take into considera- 
tion the character of the wrong, and then, desiring to be 
fair and just to both sides, you would assess in favor of the 
plaintiff such sum as would receive the approval of your 
enlightened consciences, desiring, as I have said, to be fair 
and just to both sides, and not oppressive to the defend- 
ant, because as to this class of damage the law declares there 
is no standard by which to measure it except the enlight- 
ened consciences of impartial jurors." Verdict for the 
plaintiff for twelve hundred and thirty dollars, and the de- 
fendant appealed. 

W. H. Terrell, for the plaintiffs in error. 

B. J. Conyers, contra. 

470 ATKINSON, J. 1. Considering the objections urged 
against the portions of the charge last above quoted, it is 



106 American State Kepobts, Vol. 115. [Georgia, 

evident that they were well taken. Damages which are 
given merely as a punishment to deter the wrongdoer from 
a repetition of the offense clearly have no reference to com- 
pensation for the wrong inflicted. The award of such dam- 
ages against the estate of a wrongdoer no longer in life 
must fail of its object, and could not therefore be allowed : 
See 12 Am. & Eng. Ency. of Law, 42, and 13 Cyc. 120, and 
cit. Damages, however, for wounded feelings are not puni- 
tive, but compensatory (see Head v. Georgia Pac. R. Co., 
79 Ga. 358, 11 Am. St. Rep. 434, 7 S. E. 217) ; and if the 
jury in their discretion deemed it proper to award them, 
the defendants might be liable for such damages, just as 
well as for compensatory damages of any other class. A 
given act of trespass, as, for example, by injury to personal 
property, as alleged in this case, may be committed in such 
a way as to authorize a recovery of damages as compensa- 
tion for injury to the property, or for attorneys' fees, or 
for the wounded feelings of the person injured on account 
of aggravating circumstances attending the commission of 
the injury. And in addition to these, if the aggravation 
warrant, there may be a further sum recovered, not as 
compensation to the injured party, but as a penalty against 
the trespasser to prevent a repetition of such conduct upon 
his part. As already stated, the defendant being dead, no 
punishment can be inflicted by the allowance of a recovery 
purely for that purpose, and a right of recovery, of such 
damages would not survive against his representative. But 
where there has been injury to the property or feelings 
of the plaintiff by the trespass for which she is entitled to 
compensation, her right of recovery as to these compensa- 
tory damages survives, and may be enforced against the 
estate of the deceased. This is true although the right to 
damages for wounded feelings may arise from the same ag- 
gravating circumstances which would have authorized a re- 
covery of an additional sum, not in any way compensatory 
to the plaintiff, but purely as a punishment of the tres- 
passer, had he lived. It follows that the court should not 
have charged upon the ^''^ subject of additional damages 
as complained of. The charge should have been so restricted 
as to prevent confusion in the minds of the jury, in order 
that they might avoid confounding the right to compen- 
satory damages with a liability upon the part of the defend- 



March, 1906.] Morris v. Duncan. 107 

ant for punitive damages. The charge as dealt with being 
sufficient to require the grant of a new trial, a further dis- 
cussion of the errors complained of is not necessary. 

2. Prior to the act of 1902, page 117, the judge of the city 
<jourt of Atlanta had no power to open a default : Dodson 
Printers' Supply Co. v. Harris, 114 Ga. 966(2), 41 S. E. 54; 
Beacham v. Kea, 118 Ga. 406, 45 S. E. 398; Cheatham v. 
Brown-Catlett Furniture Co., 118 Ga. 420, 45 S. E. 399. A 
ease in that court was required to be answered on or before 
the first day of the first term of court; otherwise it would 
be in default. The act above referred to provided that the 
judge "may open defaults upon the same terms and condi- 
tions as may judges of the superior courts of this state." 
But that act was prospective in its operation, and did not 
contemplate default judgments then in existence. It fol- 
lows that the default in this case, which existed on the first 
Monday in July, 1898, did not fall within the operation of 
the act, and could not be opened by order of the court. Had 
the court been vested with power, there was in point of fact 
no order of court taken directing that the default be opened. 
There was merely a petition filed July 5, 1898, asking per- 
mission to open the default and file a plea. No order what- 
ever was passed upon the petition, but a plea was filed with- 
out any apparent sanction of the court. On July 21, 1904, 
the plaintiff moved the court to strike the plea from the 
files of the court. The plea being in court without author- 
ity of law or the sanction of the court, there was no other 
course except to strike the plea. 

Judgment reversed. 

All the justices concur, except Fish, C. J., absent. 



The Death of a Wrongdoer destroys any right of action to recover 
exemplary damages for the wrong: See the note to Spellman v. 
Bichmond etc B. B. Co., 28 Am. St. Bep. 875. 



108 American State Reports, Vol. 115. [Georgia, 



ALBRIGHT-PRYOR COMPANY v. PACIFIC SELLING 
COMPANY. 

tl26 Ga. 498, 55 S. E. 251.] 

JURISDICTION, Necessity of Return Supporting. — To au- 
thorize judgment against a person who has not appeared or answered 
or otherwise submitted himself to the jurisdiction of the court, there 
must be not only service upon such defendant, but a legal return of 
service, (p. 110.) 

JURISDICTION, — In Attachment Cases the Levy Takes the 
Place of the Service. Where there has been no step taken to acquire 
jurisdiction of the defendant's person, and he has not submitted him- 
self to the jurisdiction of the court, it is without jurisdiction to 
render judgment, unless there has been a legal seizure of property- 
owned by him within the jurisdiction of the court, and then only 
after a legal return of such seizure has been duly entered, (p. 110.) 

ATTACHMENT, Levy of Must Show on Whose Property It is. 
It is essential to the validity of an attachment against a nonresident 
that the entry of the levy show that the property was levied on as 
the property of the defendant in the attachment, and when there are 
two or more defendants, the entry must show to which of them 
such property belonged, (p. 110.) 

A JUDGMENT or Attachment Against a Nonresident When 
the Return of the Levy Does not Show to Which of the Defendants 
the Property Belongs is without jurisdiction and void. (p. 110.) 

A JUDGMENT on a Garnishment Against a Nonresident is 
Unauthorized and Void if, at the time it was rendered, the garnishee 
had not answered, and there was nothing before the court from 
which it could be determined whether any property of either of the 
defendants had been seized, (p. 111.) 

ATTACHMENT — ^Amendment of Entry of Levy. — If an at- 
tachment is levied on personal property, the entry of such levy is 
amendable, but the amendment does not relate back so as to render 
a judgment previously entered valid, (p. 111.) 

ATTACHMENT — Jurisdiction to Enter Judgment in Must be 
Acquired Before the Return Term. — The subsequent issuing and re- 
turn of summons in garnishment cannot give validity to a judgment 
if there had been no seizure of the property of the defendant before 
the return term, and jurisdiction had not been otherwise acquired, 
(p. 112.) 

PRACTICE. — An Amendment May be Made to a Motion to Set 
Aside a Judgment in which other grounds are added to the motion, 
(p. 113.) 

Moore & Pomeroy, for the plaintiff. 

J. W. Moore and George Gordon, for the defendant. 

^»» COBB, P. J. On October 28, 1904, Albright-Pryor 
Company sued out an attachment against the Pacific Selling 
Company, a nonresident corporation, and Thos. Roberts & 



March, '06.] Albright-Pbyor Co. v. Pacific etc. Co. 109 

Co., a nonresident partnership, claiming an indebtedness of 
one thousand dollars. This attachment was levied by serv- 
ing summons of garnishment upon three railroad companies, 
and "also by levying on the following property as the 
property of defendant: fifty cases of canned salmon, con- 
tained in Southern car No. 24,425," etc. The attachment 
was returnable to the January term of the city court of 
Atlanta, which begins on the first Monday in January. At 
the time none of the railroad companies answered the sum- 
mons of garnishment. On January 25, 1905, the attach- 
ment was further levied by serving summons of garnish- 
ment upon the Atlanta National Bank. On February 24, 
1905, the plaintiff filed its declaration in attachment. At 
the March term, which was the trial term, the Atlanta 
National Bank answered, admitting possession of fifteen 
hundred and thirty-eight dollars and sixty cents belonging 
to the Pacific Selling Company; and as the latter company 
failed to answer the suit, a judgment was rendered against 
it on April 14, 1905. On May 29, 1905, the Pacific Selling 
Company filed a motion to vacate the judgment against it, 
upon the ground that no jurisdiction had been obtained 
against the movant by levy ^^^ upon any of its property. 
It was alleged in the motion that the salmon levied upon 
was not the property of movant, but was the property of 
Roberts & Co. ; that no property of movant was seized by the 
garnishment upon the railroad companies; and that on the 
first Monday in January, 1905, the date on which the at- 
tachment was returnable, no property of movant had been 
seized. It was also alleged that while the attachment was 
sued out for one thousand dollars, the petition showed an 
indebtedness of only nine hundred dollars, and the judg- 
ment should be vacated upon this ground. It was further 
alleged, by amendment, that the entry of the constable, 
wherein it appeared that he levied upon the canned salmon 
"as the property of the defendant," was void for uncer- 
tainty, there being two defendants. To the motion and 
amendment the plaintiff filed general and special demurrers, 
which were overruled. An answer was also filed, denying 
the material allegations of the motion. The levying officer, 
who had been made a party, offered to amend his entry so 
that it would appear that the canned salmon had been 
levied on as the property of the Pacific Selling Company. 



110 American State Reports, Vol. 115. [Georgia, 

This amendment was disallowed. After a hearing, the judg- 
ment was vacated as prayed. Albright-Pryor Company ex- 
cepted to each of the rulings stated. 

1. To authorize a judgment against a person who has not 
appeared and answered or otherwise submitted himself to 
ihe jurisdiction of the court, there must be not only service 
upon such person, but also a legal return of such service. 
Until service has been made and a legal return entered, the 
court is without jurisdiction to enter judgment against a 
defendant who has not appeared: Wood v. Callaway, 119 
Ga. 801, 47 S. E. 178, and cases cited. 

2. In attachment cases the levy takes the place of service. 
When no steps have been taken in an attachment case to 
acquire jurisdiction of the defendant's person, and he has 
not appeared and answered or otherwise submitted himself 
to the jurisdiction of the court, the court is without juris- 
diction to render a judgment until there has been a lawful 
seizure of property owned by him within the jurisdiction of 
the court, and then only after a lawful return of such seiz- 
ure has been duly entered: Tuells v. Torras, 113 Ga. 691, 39 
S. E. 455. 

^*^ 3. It is essential to the validity of the levy of an at- 
tachment issued against a nonresident that the entry of levy 
should show that the property was levied on as the property 
of defendant in attachment ; and this is so whether the prop- 
erty be realty or personalty: Drake on Attachments, 7th 
ed., sec. 449. In the absence of such a return the court has 
no jurisdiction to render a judgment in the case: Tuells v. 
Torras, 113 Ga. 691, 39 S. E. 455. When an execution 
against several defendants is levied, it is essential to the 
validity of the levy that the entry should disclose to which 
of the defendants the property seized belonged. A mere 
general levy upon the property without describing it as 
the property of the defendant is invalid, and a sale there- 
under will not devest the title of the real owner of the land : 
Cooper V. Yearwood, 119 Ga. 44, 45 S. E. 176. It necessarily 
follows from what was laid down in the decision cited, 
that when an attachment against two defendants is levied, 
and the entry of levy simply shows that certain property 
was seized as the "property of the defendant," not dis- 
closing which defendant was referred to, the levy fails to 
disclose a valid seizure of the property of either defendant. 



March, '06.] Albright-Pryob Co. v. Pacific etc. Co. Ill 

and is insufficient as the basis of a judgment on the attach- 
ment. There being, at the time that the judgment on the 
attachment in the present case was rendered, no entry of 
levy other than the one above described, the judgment was 
void, it not appearing from the entry of levy that any prop- 
erty of the defendant against whom the judgment on the 
attachment was rendered had been seized, and the court 
was therefore without jurisdiction. 

4. It is said that the judgment is authorized, because there 
was an entry of service of garnishment upon three railroad 
companies, and the garnishees had not answered, and that 
the judgment was valid, and would be operative upon any 
property that would thereafter be disclosed by the answer 
of such garnishees. The garnishees not having answered, 
it was impossible at the time the judgment was rendered 
to determine whether any property of either of the defend- 
ants had been seized, and until this fact appears the court 
is without jurisdiction to render the judgment: Henry v. 
Lennox-Haldeman Co., 116 Ga. 9, 42 S. E. 383. 

5. The levy having been upon personal property and the 
entry, therefore, being mere evidence of seizure and not the 
seizure itself, it is amendable. The jurisdiction of the court 
depending upon both the seizure and the entry, the amend- 
ment would not relate *®* back so as to render the judg- 
ment valid. The case of Jones v. Bibb Brick Co., 120 Ga. 
321, 48 S. E. 25. was not an attachment case, and in addition 
to this the motion to set aside the judgment showed affirm- 
atively that the garnishee had been properly served. 

6. But it is said that the summons of garnishment issued 
against the bank resulted in an answer disclosing assets in 
the hands of the bank belonging to the defendant against 
whom the judgment in attachment was rendered, and there- 
fore the court had jurisdiction to render the judgment. The 
code declares that when affidavit and bond to obtain gar- 
nishment have been given, summons of garnishment may 
issue from time to time before trial, without giving any 
additional bond: Civ. Code, sec. 4709. In Alston v. Dun- 
ning. 35 Ga. 229, it was held that summons of garnishment 
founded on an attachment may issue after the return term 
of the attachment without additional affidavit and bond. 
In that ease the attachment was levied upon certain personal 
property of the defendant, and was also executed by ser- 



112 American State Reports, Vol. 115. [Georgia, 

vice of summons of garnishment, all of this being done be- 
fore the return term. The garnishments were subsequently 
dismissed, and after the return term new summons issued 
directed to the same garnishees. The jurisdiction of the 
court depends upon the proceedings had prior to the return 
term: Waples on Attachment, 2d ed., sec. 295; Drake on 
Attachments, 7th ed., sec. 451 (b) ; 1 Wade on Attachment, 
sec. 128 ; 2 Wade on Attachment, sec. 336 ; Nance v. Barber, 
7 Tex. Civ. App. Ill, 26 S. W. 151. If there has been no 
seizure of the property of the defendant before the return 
term, the court is without jurisdiction in the matter, and 
all subsequent proceedings are invalid. Hence when the 
court had failed to acquire jurisdiction at the return term, 
summons of garnishment issued after that time would be 
invalid. It would be otherwise, however, if the court had 
acquired jurisdiction. In the case above cited (Alston v. 
Dunning, 35 Ga. 229), the validity of the attachment was 
not brought into question, and therefore the decision cannot 
be treated as authority for the proposition that a seizure 
of personal property before the return term, which is 
claimed by a third person and the claim subsequently sus- 
tained, would give the court jurisdiction to render a judg- 
ment on the attachment. If there has been a levy upon 
tangible personal property under the attachment and be- 
fore the return term, the court would have jurisdiction to 
render a judgment on the attachment, provided the legal re- 
turn of such levy was ^^^ made before the return term, or 
thereafter entered nunc pro tunc before the judgment. If 
the attachment has been executed by serving summons of 
garnishment, it is of course not essential to jurisdiction that 
the fact that effects of the defendant have been seized un- 
der the garnishment should appear before the return term. 
But the jurisdiction of the court is in abeyance until the 
fact that there are effects in the hands of the garnishee 
appears by answer, or by judgment on a traverse to the 
answer. If the court acquires jurisdiction before the return 
term as a result of a seizure under levy of tangible personal 
property, judgment may be so entered that it will operate 
upon funds thereafter brought in under answers of gar- 
nishees: Steers v. Morgan, 66 Ga. 552. The seizure of the 
personalty would give the court jurisdiction to render an 
absolute judgment as to the property so seized, and a pro- 



March, '06.] Albright-Peyor Co. v. Pacific etc. Co. 113 

visional judgment as to that which plight thereafter be 
brought in under proceedings against the garnishees. How- 
ever, if the attachment is executed by service of summons of 
garnishment only, then no judgment can be rendered until 
it is made to appear to the court that the effects of the 
defendant have been seized under garnishment proceedings. 
In the present case the court did not acquire jurisdiction 
as to the property levied on, for the reason that there had 
been no legal entry of the levy prior to the judgment. At 
the time the judgment was rendered it did not appear 
from the answer of the garnishees who had been summoned 
to answer at the return term that any of the effects of 
the defendant were in their hands. The validity of the 
garnishment sued out after the return term depending upon 
the jurisdiction of the court having been acquired be- 
fore the return term, the court was without authority to 
enter judgment on the answer of such garnishee, until it ap- 
peared from the answer of the other garnishees whether 
such jurisdiction had been acquired. 

7. An amendment was offered to the motion to set aside 
the judgment, in which other grounds were added to the 
motion. Objection was made to this amendment, on the 
ground that it added a new cause of action. We do not 
think the law prohibiting the addition of new causes of 
action by amendment has application to a proceeding of 
this character, and the court did not err in allowing the 
amendment. 

Judgment affirmed. 

All the justices concur, except Fish, C. J., absent 

Judgments Depending for Their Validity on an attachment of prop- 
erty are considered in the note to Miller v. White, 76 Am. St. Eep. 
800. 

Am. St. E«p., VoL 115— « 



114 American State Repoets, Vol. 115. [Georgia, 



WALPERT V. BOHAN. 

[326 Ga. 532, 55 S. E. 181.] 

INNKEEPEB, Liability of When He Also Maintains a Bath- 
hOTise. — If one keeps an inn, and, separately therefrom, a bathhouse, 
where persons bathing in the sea change their garments and leave 
their clothes, be is not liable as an innkeeper for property stolen from 
the bathhouse, (p. 116.) 

BATHHOUSES and Bathing Establishments, Liability of 
Keepers of. — The proprietor of a bathing establishment who receives 
from his patrons a sum demanded for the privikge of the bath and 
assumes the custody of their wearing apparel while they are bathing, 
is a voluntary custodian for profit, and bound to exercise due care 
to guard against the loss of theft by others having access to his 
establishment by his permission. He is a bailee for hire and bound 
to exercise ordinary care, and liable for his failure to do so. (p. 117.) 

Alexander & Edwards, for the plaintiflP. 

O 'Connor, 'Byrne & Hartridge, for the defendant. 

532 LUMPKIN, J. Mrs. Walpert brought suit against 
William Bohan, alleging in substance as follows : Bohan was 
a resident of Chatham county, and was during the month 
of May, 1905, the proprietor and owner of a certain sea- 
shore inn called " Bohan 's Pavillion," or " Bohan 's Hotel," 
located on the island of Great Tybee, and was "at that 
time engaged at said place in the business of an innkeeper. 
In connection with said inn, and as a part of said inn, and 
as a part of his said business at said place as an innkeeper, 
said Bohan maintained a certain bathhouse, where he is and 
was at that time accustomed to furnish for rent or hire 
to such of his guests and the general public who desired 
to enjoy the pleasure and benefits of sea-bathing, bath- 
rooms, bathing suits, and other bathing accessories." On 
May 11, 1905, ''petitioner, along with several friends, de- 
siring to enjoy the entertainment of said inn, and the 
pleasure and advantages of sea-bathing, paid to the said 
William M. Bohan the charges or hire therefor, and be- 
came and were the guests of said inn and of the said Will- 
iam M. Bohan as such innkeeper, and as such were guests 
and were received as such therein and thereat; that in said 
bathhouse, a part of said inn, as aforesaid, is a certain 
public room or office in charge of a keeper or attendant as 
the servant, agent, and direct representative of the said 



March, 1906.] Walpert v. Bohan. 115 

William Bohan, .... who furnishes to guests, for hire, 
such bathing-rooms, towels, etc., as is required for sea- 
bathing, and assigns then to bathrooms ^^^ in said inn or 
bathhouse; and receives from said guests for safekeeping, 
while they are bathing in the sea and not occupying their 
said rooms, such articles, jewelry, money and other valu- 
ables as they may have, so that the same shall not be lost or 
stolen from their bathrooms while they are absent there- 
from, and that posted in a conspicuous place and in full 
view of the public is a large printed or written sign or no- 
tice requiring the guests of said inn and bathhouse to de- 
posit with the keeper or custodian in charge of said office 
all moneys, jewelry and other articles of value for safe- 
keeping, and warning them that upon failure to comply with 
this requirement the said innkeeper would be relieved of all 
liability for any losses sustained through theft, or other- 
wise." Petitioner, after having inquired of defendant's 
agent whether a deposit of her valuables would be safe, and 
being assured that they would be, and after having shown 
the same to such attendant and apprised him of their value, 
deposited with such agent of defendant a hand-bag con- 
taining a small sum of money and a diamond brooch and 
ring of the value of seven hundred dollars, receiving a check 
therefor. This deposit of valuables was made along with 
those of one of petitioner's party of friends accompanying 
her, and a single check issued for the property of both. 
After returning from her bath, Robinson, "acting for him- 
self and petitioner," presented the check and received the 
hand-bag, when upon examination it was found that "peti- 
tioner's hand-bag or purse had been entered" and the dia- 
mond brooch and ring taken therefrom. It was opened in 
full view of the attendant in charge, and the loss immedi- 
ately reported to this agent of defendant. Petitioner de- 
manded of defendant compensation for her loss, and the de- 
fendant refused to pay the same. Petitioner's loss was not 
occasioned by any fault or neglect on her part, but oc- 
curred through the neglect "of the said William M. Bohan, 
innkeeper, his servants, agents, employes, and representa- 
tives, as aforesaid." The petition prayed for a judgment 
for seven hundred dollars and costs, and for process. The 
defendant filed a general demurrer, which was sustained, 
and the plaintiff excepted. 



116 American State Reports, Vol. 115. [Georgia, 

If one keeps an inn, and also, separate from the inn, keeps 
a bathhouse where persons bathing in the sea change their 
garments '^^ and leave their clothes, he is not chargeable 
as an innkeeper for property stolen from the bathhouse: 
Minor v. Staples, 71 Me. 316, 36 Am. Rep. 318. In the opin- 
ion in this case it is said: "We are not now speaking of 
bathrooms attached to or kept within hotels, but of sepa- 
rate buildings, erected upon the seashore, and used, not as 
bathrooms, but as places in which those who bathe in the 
sea change their garments and leave their clothes and other 
valuables while so bathing." In Schouler's Bailments and 
Carriers, third edition, section 280, it is said: "One who 
keeps a public house may, not inconsistently, carry on a 
restaurant, cater to a select company, serve liquors at a bar, 
keep a shaving-saloon, or permit outside parties to get up 
a ball on his premises ; and, as to strangers who avail them- 
selves of such extraneous service, he is no innkeeper at all. ' ' 
It is true that the declaration alleges in general cerms that 
in connection with the inn, and as a part of it, and as a 
part of his business at that place, the defendant maintained 
a certain bathhouse where he was accustomed, for rent or 
hire, to furnish to such of his guests and the general public 
as desired to enjoy the pleasure and benefits of sea-bathing, 
bathrooms, bathing suits, and other bathing accessories. 
It does not appear, however, that the bathhouse was physi- 
cally connected with the inn, or was for the use of guests 
as such, or that becoming a guest at the inn entitled one to 
use the bathhouse, or that conducting it was an actual part 
of innkeeping; but apparently it was a separate and dis- 
tinct building on the seashore, where the general public, 
whether guests of the inn or not, could for hire obtain 
dressing-rooms and other accessories of sea-bathing. We do 
not think this was sufficient to show that the relation of inn- 
keeper and guest existed between the proprietor of the bath- 
house and those who went there for the purpose of bath- 
ing in the sea. Although the proprietor of the bathhouse 
may have also been an innkeeper, operating the bathhouse, 
it did not thereby become a part of the innkeeping. When 
the facts set forth show that the defendant, in reference to 
the transaction under consideration, is not an innkeeper, 
merely to call him by that name in the pleading does not 
determine his liability as that of an innkeeper. Ancient 



March, 1906.] Walpert v. Bohan. 117 

common-law definitions of an inn are not altogether ap- 
plicable to modem conditions and methods of travel and 
innkeeping. Thus Lord Bacon defines an innkeeper to be 
"a person who makes it his business to entertain travelers 
and passengers, and to provide lodgings ^^'^ and necessaries 
for them and their horses and attendants": Bacon's Abridg- 
ment, title "Inn and Innkeepers," B. Few now travel with 
horses and attendants ; nor is the entertainment of transient 
customers confined to actual travelers. A very good defini- 
tion of an innkeeper at present is, "one who regularly keeps 
open a public house for lodging and entertaining transient 
comers, on the general expectation of his suitable recom- 
pense": Schouler on Bailments and Carriers, sees. 279, 303. 
If the proprietor of a hotel should also furnish, for hire by 
his guests and others, boats for rowing and sailing on a 
river or lake, or should maintain a public racecourse or 
golf-links or a baseball park, where all could enter by pay- 
ing an admission fee, these things would evidently not be 
a necessary part of keeping an inn, although they might 
furnish attractive sports which would give pleasure to 
guests and others: See Bonner v. Welborn, 7 Ga. 296; 16 
Am. & Eng. Ency of Law, 2d ed., 509. 

2, 3. While this is true, we think the presiding judge 
erred in dismissing the petition on general demurrer. In 
Bird V. Everard, 4 Misc. Rep. (N. Y.) 104, it was held that 
the proprietor of a bathing establishment who receives from 
his patrons the sum demanded for the privilege of a bath, 
and assumes the custody of their wearing apparel while the 
latter are enjoying the privileges thereof, becomes a volun- 
tary custodian of the patrons' apparel for profit, and is 
bound to exercise due care to guard against loss or theft 
by others having access to his establishment with his permis- 
sion; and for any loss or theft which could have been pre- 
vented by the exercise of such care, said proprietor is an- 
swerable in damages: See, also, Bunnell v. Stern, 122 N. Y. 
539, 19 Am. St. Rep. 519, 25 N. E. 910, 10 L. R. A. 481; 
Tombler v. Koeling, 60 Ark. 62, 46 Am. St. Rep. 146, 28 S. 
W. 795, 27 L. R. A. 502; Dilberto v. Harris, 95 Ga. 571, 23 
S. E. 112; 7 Am. & Eng. Ency. of Law, 2d ed., 321, 322, and 
notes. The proprietor of such an establishment, who re- 
ceives the apparel or valuables of a bather for safekeeping 
while the customer is bathing, and receives a consideration 



118 American State Reports, Vol. 115, [Georgia, 

for this and the use of the bathroom or dressing-room and 
accessories to the bath, being a bailee for hire, is bound to 
use ordinary care, and is liable for a failure to do so. The 
declaration sufficiently alleged negligence on the part of 
the defendant or his agent, and was not subject to a general 
demurrer. 
Judgment reversed. 

All the justices concur, except Fish, C. J., absent. 



The Liahility of InnJceepers for injury to or loss of the property of 
their guests is considered in the note to Johnson v. Chadburn Finance, 
99 Am. St. Rep. 577. 

The Liability of the Keeper of a Bathhouse for the property of his 
customer is considered in Tombler v. Koelling, 60 Ark. 62, 46 Am. St. 
Bep. 146. 



BRIDGER V. EXCHANGE BANK. 

[126 Ga. 821, 56 S. E. 97.] 

PRACTICE. — ^Whether a Court Will Keopen a Canse for the 

introduction of further evidence after both parties have announced 
the evidence closed, and while the motion for the direction of the 
verdict is being argued, rests in the discretion of the court, (p. 120.) 

PRACTICE — Partial Reopening of a Cause — The Court may 
Permit the Reopening of a Cause to allow evidence to* be offered on 
a particular point without being compelled to reopen it for the gen- 
eral introduction of evidence, (p. 121.) 

NOTICE. — ^Possession of Land is Notice of whatever right or 
title the occupant has. (p. 121.) 

LIS PENDENS Affects not Only a Purchaser from One of the 
Parties to the suit, but also those who hold under him. (p. 123.) 

LIS PENDENS Applies to Purchasers from the Plaintiff as 
well as to purchasers from the defendant, (p. 123.) 

LIS PENDENS Applies to a Judgment Creditor whose rights 
as an encumbrancer are acquired during the existence of the lis 
pendens; and also to the purfehaser of the property at a judicial 
sale had in execution of the judgment in favor of a person whose 
interests in the property to be sold are affected by the lis pendens, 
(p. 123.) 

LIS PENDENS Begins in Georgia from the filing and docket- 
ing of the petition, if followed by the issuance and service of process 
and due prosecution, (p. 124.) 

LIS PENDENS — Cross-complaint. — Relative to an affirmative 
cross-action or cross-complaint, the defendant occupies the position of 
a plaintiff, and a lis pendens as to the cross-complaint operates 
against a purchaser from the plaintiff only from the time it is filed, 
(p. 126.) j<. 



Oct. 1906.] Bridgeb v. Exchange Bank. 119 

LIS PENDENS — Laches. — Either the plaintiff or the defendant 
may lose the benefit of the pendency of lis pendens by failure on his 
part to prosecute with due diligence, (p. 128.) 

NOTICE. — The Continued Possession of the Grantor After the 
Execution of a Conveyance gives the world notice of his rights, as 
where his conveyance was in effect given as security for indebtedness 
and he took a bond for a reconveyance on its payment, (p. 130.) 

EXECUTION SALE of Property Conveyed to Secure Indebted- 
ness. — If one makes a promissory note and executes a conveyance 
to secure its payment, and an execution against his grantee is levied 
on the property, the grantor remaining in possession, the purchaser 
under such execution takes only the rights of such grantee, (p. 
130.) 

EXECUTION, Burden of Proof in an Attack Upon. — One who 
alleges that a levy is void for excessiveness carries the burden of 
sustaining his contention, (p. 130.) 

EXECUTION. — ^A Levy is not Necessarily Excessive because 
the value of the land is considerably more than the amount of the 
execution, (p. 130.) 

EXECUTION — Excessiveness of Levy, When a Question for the 
Jury. — If the property levied upon and sold under execution was 
worth considerably more than the amount due, and it was reasonably 
capable of subdivision, and fronted fifty-five feet on one street 
and ran back two hundred feet to an alley, giving an outlet to an- 
other street, and there were houses fronting on both the street 
and the alley, separately numbered and separately rented, it is a 
question for the jury whether the levy was excessive and whether 
the property should have been divided for the purpose of sale. (pp. 
130, 131.)* 

Petition filed Auo^nst 15, 1893, and served on the eigh- 
teenth day of the same month by H. L. Woodward against 
J. C. Bridger, praying for a judgment declaring a special 
lien against certain real property, on the ground that the 
same had been conveyed by Bridger, as trustee for his wife 
and children, for the purpose of securing the payment of 
certain indebtedness. The defendant pleaded that the in- 
debtedness held by the plaintiff was accommodation paper, 
wholly without consideration, and was the individual obli- 
jjation of Bridger, all of which was known to the plaintiff 
before he received it. The defendant alleged that the con- 
veyance to plaintiff was a cloud on the title of the defend- 
ant and his cestui que trust. 

On October 27, 1905, and after the filing of the defend- 
ant's answer, the Exchange Bank of Atlanta was permitted 
to intervene. By its complaint in intervention it alleged 
that on September 27, 1892, Bridger, as trustee for his wife 
and children, conveyed to plaintiff the property described 
in his petition under a conveyance duly recorded, and the 
plaintiff by a conveyance recorded May 30, 1895, conveyed 



120 American State Reports, Vol. 115. [Georgia, 

his interest to Emmet B. Woodward; that the bank levied 
upon and sold under execution the interest of Emmet B. 
Woodward in the property, and received a sheriff's deed 
therefor, having no notice that he was not the absolute 
owner of the property, although the present suit had been 
previously commenced; that no pleading had been filed in 
the present suit after its commencement until a few days 
before the filing of the petition for intervention, when the 
defendant filed his amended answer and cross-bill. The 
bank prayed that the cross-bill be stricken out and relief 
thereunder be denied, and that the conveyance made by the 
defendant to H. L. Woodward be declared good and valid. 
Bridger, as trustee, answered the complaint of intervention, 
alleging that neither Emmet B. nor H. L. Woodward had ever 
had possession of the land, and that Emmet B. Woodward 
when he took his conveyance had full knowledge of the na- 
ture of the transaction between the defendants and H. L. 
Woodward. The court directed a verdict against the de- 
fendant and in favor of the bank upon the issues as to title, 
and the defendant appealed. 

W. H. Terrell, for the plaintiff in error. 

L. Z. Rosser, J. H. Porter and Dorsey, Btewster & Howell, 
contra. 

824 LUMPKIN, J. 1, 2. After both parties had an- 
nounced the evidence closed, and while a motion for the di- 
rection of a verdict was being argued, it rested in the dis- 
cretion of the court to determine whether he would reopen 
the case for the introduction of further evidence : Walker 
V. Walker, 14 Ga. 242; Blaekman v. State, 80 Ga. 785, 791. 
7 S. E. 626 ; Orr v. Garabold, 85 Ga. 373, 11 S. E. 778 ; Powell 
V. State, 101 Ga. 9, 65 Am. St. Rep. 277, 29 S. E. 309; Green. 
V. State, 119 Ga. 120, 45 S. E. 990; Maddox v. Cole, 81 
Ga. 325, 6 S. E. 601; Cushman v. Coleman, 92 Ga. 772, 19 
S. E. 46; Georgia R. & B. Co. v. Churchill, 113 Ga. 12, 38 
S. E. 336; Watson v. Barnes, 125 Ga. 733, 54 S. E. 723. 
This was not an application seeking to save a nonsuit by 
supplying an omitted link in the chain of evidence and thus 
causing the case to proceed to a termination of the litiga- 
tion, but a desire to add evidence to avoid the direction of 
a verdict, which addition would probably require a general 
reopening of the trial on the evidence. ^^^ No good reason 



Oct. 1906.] Bridgeb v. Exchange Bank. 121 

was shown why the additional evidence was not offered be- 
fore. On application the court did reopen the case to al- 
low evidence to be introduced on a particular point; but, 
by having done so, he was not compelled to throw the case 
open broadly for the general introduction of evidence. 
Even as to a motion to reopen the case after a motion for 
nonsuit has been made and argued, and especially after the 
judge has announced his decision, the rule does not seem 
to be entirely arbitrary and regardless of the circumstances : 
Cushman v. Coleman, 92 Ga. 772, 19 S. E. 46; Brooks v. 
Lowe, 122 Ga. 358, 50 S. E. 146 (citing McColgan v. Mc- 
Kay, 25 Ga. 631, as to the general practice). But that point 
is not directly before us. 

3, 4. The defendant (plaintiff in the cross-petition) testi- 
fied that as trustee he was in continuous possession of the 
property, through his tenants, except that after the sheriff's 
sale the bank obtained and held possession for a time, when 
he again took possession. If this be accepted as true, 
which it must be on a motion to direct a verdict against 
him, so far as the matter of notice by possession is involved, 
the ease falls within the general rule declared in the Civil 
Code, section 3931, that "possession of land is notice of 
whatever right or title the occupant has." This has been 
held to apply to possession under a bond for title (Finch 
V. Beal, 68 Ga. 594; Jordan v. Rhodes, 24 Ga. 480), and gen- 
erally to any right or title of the occupant: Neal v. Jones, 
100 Ga. 765, 28 S. E. 427; Baldwin v. Sherwood, 117 Ga. 
827, 45 S. E. 216. This case is not controlled by that of 
Johnson v. Equitable Securities Co., 114 Ga. 604, 40 S. E. 
787, 56 L. R. A. 933. It was there held that a bona fide 
purchaser at sheriff's sale, who has paid the purchase 
money without notice of a secret equity, will be protected. 
On page 608 it was said that "the purchaser at such sale 
would, in our opinion, occupy the same position as the pur- 
chaser at a private sale, so far as any secret equity held by 
some one in the property was concerned, if such purchaser 
bought the property and paid his money without notice of 
such secret equity." It was not decided that if he bought 
with notice he would obtain a good title, nor was the ques- 
tion of notice by po.ssession discussed. In Malette v. 
Wright, 120 Ga. 735, 48 S. E. 229, it was held that where 
one sold property and made a fee simple deed thereto, but 



122 American State Keports, Vol. 115. [Georgia, 

by mistake included in the deed certain land not intended 
to be included, and such deed was duly recorded, his re- 
maining in possession would not give notice to the world of 
the mistake, so as to affect bona fide purchasers or those oc- 
cupying a like *^® situation. This was the only point de- 
cided. The decision never intended to abrogate the gen- 
eral rule, but merely held that the facts of that case did 
not fall within it. What was said in the opinion must be 
construed in the light of the question involved. 

Although the bond for title was made to Bridger as an 
individual, the trust estate had an interest, which could 
not be thus destroyed. If he had a right to make the con- 
veyance and take the bond for title, the latter in his hands 
would be affected with an equity in favor of the trust. 
That possession puts a prospective purchaser on inquiry: 
See Walker v. Neil, 117 Ga. 733, 45 S. E. 387; Austin v. 
Southern Home Bldg. etc. Assn., 122 Ga. 439, 50 S. E. 382. 

5-10. Two different theories have been advanced as the 
basis of the doctrine of lis pendens. Numerous courts and 
text-writers state that it is referable to the doctrine of con- 
structive notice, and say that a pending suit concerning 
property operates as notice to the world, and that a pur- 
chaser of the property under one of the parties is bound by 
the result of the litigation, because he is charged with such 
notice. The other view is thus stated in Bellamy v. Sabine, 
1 De Gex & J. 566: "The doctrine as to the effect of lis 
pendens on the title of an alienee is not founded on any prin- 
ciples of courts of equity with regard to notice, but on the 
ground that it is necessary to the administration of justice 
that the decision of the court in a suit should be binding, 
not only on the litigant parties, but on those who derive 
title from them pendente lite, whether with notice of the 
suit or not." On page 584 Lord Justice Turner makes 
this clear and concise statement: "It is, as I think, a doctrine 
common to the courts both of law and of equity, and rests, 
as I apprehend, upon this foundation — that it would plainly 
be impossible that any action or suit could be brought to a 
successful termination, if alienations pendente lite were per- 
mitted to prevail. The plaintiff would be liable in every 
case to be defeated by the defendant's alienating before 
the judgment or decree, and would be driven to commence 
his proceedings de novo, subject again to be defeated by 



Oct. 1906.] Bkidger v. Exchange Bank. 123 

the same course of proceeding." The latter theory appears 
to have been adopted by most of the recent decisions: 2 
Pomeroy's Equity Jurisprudence, sec. 632, and notes. 
Whichever opinion may be accepted, it will not affect the 
well-settled rules concerning lis pendens, although if the 
second be upheld it may "prevent the extension ^^"^ of the 
doctrine, and restrict its further application to particular 
persons and conditions": 2 Pomeroy's Equity Jurispru- 
dence, sec. 632, and notes. 

An application of the doctrine to the present case in- 
volves a decision of several points. Not only is a purchaser 
from one of the parties to the suit affected, but also those 
who hold under him: Beardsley v. Hilson, 94 Ga. 50, 20 
S. E. 272. It applies not merely to purchasers from the 
defendant, but also to purchasers from the plaintiff: Ben- 
nett on Lis Pendens, 287, sec. 239. "The rule has been ap- 
plied with steadiness to all cases of transfer during the 
progress of a cause, notwithstanding the hardship of in- 
dividual cases, from considerations of public policy and con- 
venience. Suits would be interminable, if the rights of 
parties could be disturbed by mesne conveyances; and a 
necessity imposed for the introduction of other parties 
upon the record": Secombe v. Steele, 61 U. S. 94, 15 L. 
ed. 833; Fash v. Ravesies, 32 Ala. 451; Berry v. Whitaker, 
58 Me. 422; Cole v. Winnipisseogee Lake etc. Co., 54 
N. H. 242; Olson v. Leibpke, 110 Iowa, 594, 80 Am. St. 
Rep. 327, 81 N. W. 801; Welton v. Cook, 61 Cal. 481; 
Borrowscale v. Tuttle, 5 Allen, 377; Garth v. Ward, 2 
Atk. 174; Bellamy v. Sabine, 1 De Gex & J. 566; 2 Pom- 
eroy's Equity Jurisprudence, 3d ed., sec. 633; Story's 
Equity Pleading, 10th ed., sec. 156. The rule applies to a 
judgment creditor whose rights as an encumbrancer are ac- 
quired during the existence of the lis pendens; and also to 
a purchaser of the property at a judicial sale had in ex- 
ecution of a judgment in favor of a person whose inter- 
ests in the property thus sold are affected by the lis pen- 
dens: 21 Am. & Eng. Ency. of Law, 645, 646; Carmichael 
V. Foster, 69 Ga. 372; Bennett on Lis Pendens, p. 242, sec. 
181; Secombe v. Steele, 61 U. S. (20 How.) 94, 15 L. ed. 
833; Allen v. Halliday, 28 Fed. 261; Cotton v. Dacey, 61 
Fed. 481; Freeman on Judgments, sec. 205; Hope v. Blair, 
105 Mo. 85, 24 Am. St. Rep. 366, 16 S. W. 595; Watson v. 



124 American State Reports, Vol. 115. [Georgia, 

Wilson, 2 Dana, 406, 26 Am. Dec. 459; Ettenborough v. 
Bishop, 26 N. J. Eq. 262 ; MeCauley v. Rogers, 104 111. 578. 
When does the lis pendens begin? In England and in 
some states it has been held to be upon service of process 
or subpoena. In this state a pending suit is notice to the 
world from the filing and docketing, if followed by the is- 
suance and service of process and due prosecution: Civ. 
Code, sec. 3936; Weems v. Harold, 75 Ga. 866; Cherry v. 
North & South R. Co., 65 Ga. 633. What, then, as to a 
cross-action or answer in the nature of a cross-bill seeking 
*** affirmative relief? Does it relate back to the begin- 
ning of the suit and affect a purchaser from the plaintiff 
from that time, or does it operate as a lis pendens from the 
date of its filing? Two different opinions are entertained 
on this subject. The leading case on one side is Hall Lum- 
ber Co. V. Gustin, 54 Mich. 624, 20 N. W. 616, in which that 
distinguished jurist, Judge Cooley, delivered the decision. 
The seventh headnote reads as follows: "A suit and cross- 
suit constitute one cause, and notice of the suit is notice 
of the cross-suit also. So held in the case of a lis pendens 
filed in an original foreclosure suit, but not in a cross- 
suit for foreclosure ; it was constructive notice to all the 
defendants." Strictly speaking, the exact matter before 
the court was this: A statute required (as in many states 
and now in England) a notice of a lis pendens to be filed 
in order to be effectual. On the bringing of a foreclosure 
suit the notice was filed. Later a cros^-bill was filed, but 
no notice under the statute was filed as to it. The ques- 
tion was whether it was necessary to file such a notice as 
to the cross-bill, or whether that filed at the commence- 
ment of the suit covered the whole case. It would be per- 
haps too narrow a view to treat this decision as merely a 
construction of the Michigan statute; as the reasoning goes 
to the point of holding that "notice of the suit was notice 
of all that properly belonged to it," including the cross- 
bill as a mode of defense. In Bennett on Lis Pendens, sec- 
tion 331 (pages 379, 380), in stating this as a rule it is said: 
"That is to say, a lis pendens will exist as between all par- 
ties to the suit. It might be held otherwise as to third par- 
ties having no knowledge of the cross-claim." The only 
case referred to in this footnote is the Hall case (54 Mich. 
624, 20 N. W. 616), and the criticism was evidently meant 



Oct. 1906.] Bridger v. Exchange Bank. 125 

to apply to it: See, also, Henderson v. Wanamaker, 79 Fed. 
736, 25 C. C. A. 181 (where, however, the answer of the 
defendant had been filed) ; Kinney v. Consolidated Virginia 
Min. Co., 4 Saw. 382, Fed. Cas. No. 7827. The adverse 
view Is thus clearly stated in 2 Pomeroy's Equity Juris- 
prudence (third edition, section 634) : **I would remark, in 
passing, that while the general doctrine of notice by lis 
pendens and the foregoing special rules have ordinarily 
been applied to real property described by the plaintiff in 
his bill of complaint, they should, upon principle, apply 
with equal force to the 'counterclaims' and 'cross-com- 
plaints' authorized by the reformed procedure, by which 
the defendant alleges some equitable interest or right, and 
demands some affirmative equitable relief. In such 
^^^ pleadings the defendant becomes the actor, and is to all 
intents and purposes a plaintiff." This remark is quoted 
approvingly, though the point is not decided, in Walker 
v. Goldsmith, 14 Or. 125, 12 Pac. 537. 

It appears to us that the proper determination of the 
mooted question depends largely on what is the extent of 
the lis pendens arising on the original suit. Or, if the 
doctrine of notice be adopted, of what does the original 
suit give notice to one dealing with the property. Mr. 
Pomeroy says (2.' Pomeroy's Equity Jurisprudence, 3d ed., 
sec, 634): "Lis pendens is notice of everything averred in 
the pleadings pertinent to the issue or to the relief sought, 

and of the contents of exhibits filed and proved The 

notice arising from a pending suit does not affect property 
not embraced within the descriptions of the pleading; nor 
does its operation extend beyond the prayer for relief." 
"Averred" in what pleadings — in those filed by the com- 
plainant before the time of the purchase (together with 
certain amendments thereto, as will be seen below) and in 
the denials or defensive pleadings of the defendant, or in 
possible affirmative pleadings which may be thereafter filed 
by the defendant, not merely combating the plaintiff's case, 
but seeking affirmative relief? Generally, amendments to 
a bill or petition relate back to the filing of such bill or peti- 
tion. It has been held that a bill so defective in its aver- 
ments as not to create a lis pendens may be subsequently 
cured by amendment, but the lis pendens will commence 
at the time of filing the amendment, if the defendant has 



12S American State Reports, Vol, 115. [Georgia, 

been served with process: Norris v. He, 152 111. 190, 43 Am. 
St. Rep. 233, 38 N. E. 762. See, also, Miller v. Sherry, 2 
Wall. 237, 17 h. ed. 287 (where the defect was for want 
of description of the property) ; Worthman v. Boyd, 66 
Tex. 401, 1 S. W. 109 (where an original suit to cancel a 
deed was amended so as affirm the deed and enforce a 
grantor's lien) ; Mansur & Tebbetts I. Co. v. Beer, 19 
Tex. Civ. App. 311, 45 S..W. 972; Letcher v. Reese, 24 Tex. 
Civ. App. 537, 60 S. W. 256 ; Stone v. Connelly, 58 Ky. 652, 
71 Am. Dec. 499. Statements in some of the text-books 
imply that the continuity of the suit may be broken by a 
simple ameudment, but this seems not to be well founded 
where the parties are the same, the property to be affected 
is the same, and the general purpose and object is the 
same: Turner v. Houpt, 53 N. J. Eq. 526, 33 Atl. 28. It 
would appear, therefore, that when a suit is filed by a plain- 
tiff, anyone taking from the defendant a conveyance of the 
property involved takes with notice of, or subject to, the 
plaintiff's action as it stands, and that mere ordinary *^** or 
amplifying amendments which do not change the identity 
of the suit or affect the general purpose or object, or create 
a new lis pendens, will relate back to the date of the filing 
of the original petition. So, also, if one purchases from the 
plaintiff, the suit operates as a lis pendens in respect to 
the property described and the relief prayed; and the pur- 
chaser may fairly anticipate that the defendant will resist 
the action, and that he will set up any appropriate defen- 
sive matter thereto. But he is not bound to anticipate that 
the defendant will bring a cross-action against the plaintiff 
in respect to the property or will file an affirmative cross- 
complaint against the plaintiff, setting up some equitable 
right and demanding affirmative equitable relief in regard 
thereto. Relatively to such affirmative cross-action or cross- 
complaint the defendant occupies the position of a plain- 
tiff, and the lis pendens as to such cross-complaint operates 
as against a purchaser from the plaintiff only from the time 
when it is filed. It is evident that if the defendant had to 
file a separate action against the plaintiff in order to set 
up the affirmative claim and pray for relief, it would only 
operate as a lis pendens from the time when it was brought ; 
and where, under our uniform procedure act, the plaintiff 
or defendant may assert all of his rights, legal or equi- 



Oct. 1906.] Bridger v. Exchange Bank. 127 

table, in respect to the subject matter of the suit in one 
proceeding, the same reason would seem to apply to a cross- 
complaint or affirmative equitable plea praying relief. Un- 
der the very liberal system of amending which prevails in 
this state, the plaintiff may bring an action of complaint 
for land, which by amendment may be changed into an ac- 
tion seeking equitable relief in regard to the land; and in 
an equitable action, what would have required a supple- 
mental bill in England can be brought in by amendment in 
Georgia: Civ. Code, sec. 4969. The defendant may answer 
the plaintiff's suit by denying title; and subsequently he 
may amend by alleging affirmative equitable rights on his 
part in respect to the property and praying relief. Indeed, 
it is quite common for a suit to begin as an apparently 
simple action at law, and terminate as a most complex ac- 
tion to settle equities and cross-equities. 

If the rule which we have suggested above is not a cor- 
rect one, and if a person who purchases from a plaintiff in 
a pending lawsuit were bound to anticipate all possible 
cross-complaints, which might greatly broaden the scope of 
the action or alter the nature of **^* the relief sought, and 
if he were affected by the lis pendens as to all such possible 
cross-complaints before they were filed, it would be an ex- 
ceedingly dangerous matter to purchase property at all from 
any person who might happen to be either plaintiff or de- 
fendant in any sort of action. It is true that the defendant 
may often show by way of defense substantially the same 
matters as those on which his affirmative equitable plea 
would rest; and if one who purchases from the plaintiff 
after suit has been brought and while the defendant is en- 
titled to plead, but before he has done so, is bound to an- 
ticipate that the latter will deny the plaintiff's right of 
recovery, and to take subject to his doing so, and to the 
result of the action, the difference in effect between this 
and his taking subject to a cross-complaint based on like 
facts may not appear to be great. But the distinction be- 
tween mere defensive action and an effort to obtain affirma- 
tive relief is well recognized, even where similar facts are 
involved in the two : English v. Thorn, 96 Ga. 557, 23 S. E. 
843. In Hart v. Hayden, 76 Ky. 346, it was held that 
"When a mortgagee has sued to foreclose his mortgage, and 
made another mortgagee a defendant, the action of the lat- 



128 American State Reports, Vol. 115. [Georgia, 

ter is not a lis pendens until he has filed his cross-petition 
and has process issued." In Garver v. Graham, 6 Kan. App. 
344, 51 Pac. 812, where a husband brought an action of 
divorce, and his wife filed an answer and cross-petition, 
denying the grounds alleged by him, setting up grounds for 
divorce in her favor, that she was the owner of certain 
lands, describing them, and that the husband was the owner 
of certain other real estate and personal property, describ- 
ing it, and praying that a divorce be granted her, that the 
real estate then in the name of her husband (describing it) 
might be decreed to her, that alimony should be granted, 
and that all of the property both real and personal should 
be appropriated to satisfy the decree, it was held that the 
answer and cross-petition brought the property described 
within the jurisdiction of the court, and that a person subse- 
quently taking a mortgage from the husband was bound by 
the judgment and decree rendered: See, also, Mansur & 
Tebbetts v. Beer & Co., 19 Tex. Civ. App. 311, 45 S. W. 972. 
In Tinsley v. Rice, 105 Ga. 285, 31 S. E. 174, it was said : 
"The protection afforded to a plaintiff under the doctrine 
that lis pendens is notice to all the world may be lost by a 
failure on his part to prosecute his action with due dili- 
gence": See, also. Civ. Code, sec. 3936. This ruling was in 
favor of one against whom the doctrine of lis pendens 
*^^ would otherwise operate for the benefit of the plain- 
tiff. A similar rule would naturally apply as to the defend- 
ant's cross-complaint. The defendant cannot be charged 
with laches in not pressing the plaintiff's suit for him, but 
may be charged with laches for failing to duly press his 
cross-complaint. The bank holds under the plaintiff. It 
could hardly claim that the defendant lost whatever right 
existed in his favor under the plaintiff's suit, by virtue of 
the doctrine of lis pendens prior to the conveyances under 
which the bank holds, because the plaintiff failed to prose- 
cute with diligence. Certainly the plaintiff could not suc- 
cessfully claim that, by reason of his own laches in prose- 
cuting his action against the defendant, the latter should 
suffer. Can one who purchases under the plaintiff and, by 
intervention, becomes himself a party plaintiff, do so, if the 
defendant be not in laches? What duty was on him, before 
he filed his cross-complaint, to press the plaintiff's action? 
In Fox V. Reeder, 28 Ohio St. 181, 22 Am. Rep. 370, it was 



Oct. 1906.] Bridger v. Exchange Bank. 129 

said: "The rule itself, though undoubted, will not be ap- 
plied where the party has been negligent to the injury of 
innocent parties. As Sugden says in an early edition of 
his work, the application of the rule may rest upon the 
question whether or not the party seeking its benefit has 
been 'guilty of laches.' " Different courts have used differ- 
ent expressions in describing the negligence or failure to 
prosecute duly which may cause a loss of the protection 
afforded under the doctrine of lis pendens. Some have re- 
ferred to it as negligence, some as gross negligence, some as 
a failure to duly prosecute, some as unusual and unreason- 
able or inexcusable negligence in prosecuting, and other 
expressions have been employed. Mere lapse of time in 
which the party who ought to prosecute an action has 
failed to do so, though it may be for a considerable period, 
is not conclusive, but may be explained by showing a rea- 
sonable excuse for the delay: Wickliffe's Exr. v. Breckin- 
ridge's Heirs, 64 Ky. 427; Watson v. Wilson, 32 Ky. 406, 
26 Am. Dec. 459 ; Hayes v. Nourse, 114 N. Y. 595, 11 Am. 
St. Rep. 700, 22 N. E. 40. In Bennett on Lis Pendens, sec- 
tion 109, page 179, it is said: "The ground upon which to 
place the invalidity of lis pendens for a failure to take 
action in pending suits, for want of 'full prosecution,' as 
provided in Lord Bacon's rule, is not, as in many cases 
seems to be supposed, negligence merely as such, but es- 
toppel as warranted by such negligence, and other con- 
duct on the part of those seeking the enforcement of lis 
®^ pendens." And this is substantially quoted by Mr. 
Justice Little in Tinsley v. Rice, 105 Ga. 285, 31 S. E. 174. 
Referring to the interposition by courts of equity of a bar on 
account of laches, it has been said that this power as exer- 
cised by courts of equity is well symbolized by the emblem 
of Time, "who is depicted as carrying a scythe and an 
hour-glass, and that while with one he cuts down the evi- 
dence which might protect innocence, with the other he 
metes out the period when innocence can no longer be 
assailed": Graff v. Portland Town etc. Co., 12 Colo. App. 
106, 54 Pac. 854. 

Counsel for plaintiff in error urged that an intervener 

took the case where he found it: Charleston etc. R. Co. v. 

Pope, 122 Ga. 577, 50 S. E. 374. In that case it was held 

that an intervener "could not be heard to make objections 

Am. St. Rep., Vol. 115—9 



130 American State Reports, Vol. 115. [Georgia, 

to the pleadings or process which the defendant vouching 
him into court did not urge." He would not be prevented, 
however, from contesting rights asserted antagonistic to 
his own. 

11. If Bridger as trustee wrongfully made a conveyance 
to secure his individual indebtedness and took a bond for 
title from his grantee to himself as an individual, the equi- 
table interest would be in him as trustee, and his holding 
would be for the benefit of the trust estate: Bourquin v. 
Bourquin, 120 Ga. 115, 47 S. E. 639. Aside from this, if one 
makes a promissory note and executes a deed to secure it, 
taking a bond to reconvey upon payment of the debt and 
remaining in possession; and if an execution against the 
grantee in the deed is levied on the property, what does 
the purchaser at such a sale acquire? Evidently the inter- 
est of the defendant in execution, whatever that may be. 
The continued possession of Bridger as trustee, as we have 
seen, gave notice to the world of his rights ; and a purchaser 
under a sale against the grantee would acquire only the 
rights which the latter might have : Parrott v. Baker, 82 
Ga. 364, 9 S. E. 1068 ; Wilkerson v. Burr, 10 Ga. 117 ; Leitch 
v. May, 98 Ga. 714, 27 S. E. 151. If the grantee in the 
security deed made a conveyance to another, the second 
grantee could acquire no more relatively to the debtor in 
possession with bond for title than the first grantee had to 
convey; and if the sheriff's sale was under a judgment 
against the second grantee, the purchaser would acquire no 
more than if such second grantee had made a deed to him. 

12, 13. One who alleges that a levy is void for excessive- 
ness carries the burden of sustaining his contention. It 
does not follow ^^^ as matter of course that, because the 
value of land levied on is considerably more than the amount 
of the execution, the levy is void. The property may be in- 
capable of subdivision, or such as can only be levied on its 
entirety: Forbes v. Hall, 102 Ga. 47, 66 Am. St. Rep. 152, 
28 S. E. 915; Roser v. Georgia Loan etc. Co., 118 Ga. 181, 
44 S. E. 994. In the present case, however, we think that 
there was enough evidence to require the submission to the 
jury of the question whether the property was reasonably 
capable of subdivision, and whether the levy was excessive. 
It appeared that the lot fronted fifty-five feet on a street, 
and extended back two hundred feet to an alley, fifteen or 



Oct. 1906.] Bridger v. Exchange Bank. 131 

twenty feet wide, which gave an outlet to another street 
only a short distance away, that there were houses on the 
lot fronting on the public street, separately numbered, and 
that on the rear of the lot there was one frame house con- 
taining six rooms, and two containing two rooms. All of 
them were dwelling-houses, and they were rented sepa- 
rately. Bridger testified that the entire property was worth 
at the time of the sale fifteen thousand dollars, and that 
one of the two mortgages upon it had been paid off, leaving 
the other outstanding. No witness expressed the opinion 
that the lot was capable of subdivision ; yet, considering the 
testimony above referred to, there was enough evidence to 
authorize this question to be submitted to the jury rather 
than to be determined by the court. 
Judgment reversed. 

All the justices concur. 



The Possession of Seal Property as notice of the occupant's rights 
therein is considered in the note to Crooks v. Jenkins, 104 Am. St. 
Bep. 331-354. 

The Law of Lis Pendens is the subject of a note to Stout v. Philippi 
Mfg. etc. Co., 56 Am. St. Eep. 853. 



CASES 

IN THE 

STJPKEME COURT 

OF 

ILLINOIS. 



DUNBAR V. AMERICAN TELEPHONE AND TELE- 
GRAPH COMPANY. 

[224 HI. 9, 79 N. E. 423.] 

COEPORATION — Purchase of Stock of a Bival to Prevent 
Competition. — If one corporation purchases a majority of the stock 
of another for the purpose of controlling the latter and preventing 
competition, the transaction is one which the courts will not uphold, 
(pp. 136, 138.) 

CORPORATIONS, Purchase of the Stock of Another hut in the 
Name of a Natural Person. — If the stock of one corporation is pur- 
chased by another with a view to prevent competition, the transaction 
is not relieved of its unlawful character by the fact that the purchase 
is made by and in the name of a natural person. To hold otherwise 
would sustain a transaction illegal in its character accomplished by 
indirection when it could not be done if the method were direct, (p. 
136.) 

TRUST — ^Unlawful Combinations Though There is not a Com- 
plete Monopoly. — A combination or scheme to prevent competition 
between corporations is unlawful, though other persons are engaged 
in the same business and a complete monopoly thereof will not re- 
sult, if the tendency is in that direction, (p. 136.) 

FOREIGN CORPORATIONS— Subjection of to the Policy of 
the State. — A corporation coming into the state is subject to all the 
rules and regulations provided by its laws, and therefore cannot have 
power to purchase the stock of a rival corporation for the purpose 
of reducing competition between them, if a domestic corporation has 
not such power, (p. 137.) 

ONE CORPORATION cannot Become a Stockholder in An- 
other Unless such power is given to it by its charter or is necessarily 
implied thereunder, especially if the purpose of the purchase is to 
control the management of the other corporation, (pp. 137, 138.) 

CORPORATIONS — Minority Stockholders, Right to Enjoin 
Scheme to Acquire Stock by Rival Corporation to Prevent Competition. 
If a corporation, for the purpose of preventing competition between 
it and a rival corporation, causes a majority of the stock of the 
latter to be purchased for the benefit of the former, the minority 
shareholders are entitled to an injunction to prevent the voting of the 
stock so purchased, (pp. 139, 141.) 

(132) 



Dec. 1906.] Dunbar v. American etc. Tel. Co. 133 

EQUITY PRACTICE — Cross-bill, When Should be Dismissed. — 
If the complainant in a cross-bill is merely a nominal party to the 
original bill against whom no relief is prayed, and he will obtain 
all the relief to which he is entitled if the prayer of the original 
bill is granted, it is proper to dismiss such cross-bill. (p. 144.) 

EESCISSION OF CONTRACT of Sale— Duty of Doing Equity. 
One who seeks by a bill in equity to rescind a contract of sale for 
fraud on the part of the purchaser must, as a condition precedent, 
offer to repay the purchase price, (p. 145.) 

Suit by Francis W. Dunbar and six other of the minority 
stockholders of the Kellogg Switchboard and Supply Com- 
pany against the American Telephone and Telegraph Com- 
pany, Kellogg Switchboard and Supply Company, M. G. 
Kellogg, W. I. De Wolf, and other parties, alleging that 
the Kellogg company was a corporation organized in Illinois 
for the purpose of manufacturing, selling, hiring, leasing 
or otherwise procuring, owning and disposing of electric 
telephone and telegraph instruments of all kinds; that the 
complainants were a minority of the stockholders of such 
corporation ; that the defendant De Wolf was president, the 
defendant Bush vice-president, and L. D. Kellogg was the 
secretary and treasurer of the corporation, and M. G. Kel- 
logg its principal stockholder; that the defendant American 
Telephone and Telegraph Company was organized under the 
laws of the state of New York, but was doing business in 
Illinois and in many other parts of the Union ; that it suc- 
ceeded to the business of the American Bell Telephone Com- 
pany, and defendant Fish was its president; that it owned 
sixty per cent of the stock of the Western Electric Com- 
pany, which last-named corporation and the American Bell 
Telephone Company formed the Bell telephone monopoly, 
and as such had had exclusive control in the United States 
of the business of telephone and telegraph apparatus; that 
the defendant Fish is also a director of the Western Electric 
Company, which was an Illinois corporation engaged in the 
manufacture, buying and selling of electric apparatus, and 
the defendant Barton was its president and manager, and 
dominated by the defendant Fish ; that the telephone switch- 
boards, instruments, and other apparatus of the independ- 
ent exchanges throughout the United States have been man- 
ufactured by several companies, the larger and most im- 
portant of which are the Kellogg company and the Strom- 
berg-Carlson Company of Chicago; that the business of the 
Kellogg company for the large independent exchanges con- 



134 American State Repoets, Vol. 115. [Illinois, 

siderably exceeded that of the Stromberg-Carlson or any 
other company; that in order to stifle competition in trade 
and create a monopoly and to exact and maintain usurious 
and excessive rates of charges, the American Telephone and 
Telegraph Company conceived the illegal purpose of acquir- 
ing at least two-thirds of the stock of the Kellogg company, 
thereby to elect and maintain a board of directors which 
should not act in the interests of the Kellogg company, 
but, on the contrary, in the interests of the American com- 
pany ; that to accomplish such illegal purpose the American 
company intended to vote the stock so purchased to dissolve 
the Kellogg company, and in the meantime to conceal from 
the public the real facts respecting such company; that 
prior to January 4, 1902, the defendant Milo G. Kellogg 
owned three thousand three hundred and seven shares of the 
Kellogg company, the defendant Buckingham two hundred 
and sixty-two shares, the defendant De Wolf two hundred 
and two shares ; the defendant Wright thirteen shares ; that 
Milo G. Kellogg, being in ill-health, was then absent in Cali- 
fornia and had given a general power of attorney to the 
defendant De Wolf to sell and dispose of stock; that to 
accomplish its illegal purpose the American company caused 
defendant Barton to enter into a contract with De Wolf for 
the sale of the shares of Kellogg, and that De Wolf, as agent 
of Kellogg, Buckingham, and Mrs. Wright, delivered to 
Barton shares of the Kellogg company amounting to three 
thousand seven hundred and eighty-three shares, by reason 
of which the American company claims to own and control 
the same, or the voting part thereof. Various other facts 
were alleged tending to show the extent to which monopoly 
would be created, and that the shares of stock purchased 
were paid for by the American company and held in trust 
for it ; that defendant Kellogg, having recovered his health 
and learned of the sale of the stock, disapproved of it and 
sought to repudiate it, but that Barton and Fish insisted 
upon retaining sufficient to constitute two-thirds of the stock 
of the company. 

The bill prayed that a temporary injunction issue, to be 
made perpetual on the final hearing, restraining the Ameri- 
can company, Barton, and the Western Electric Company 
from selling said three thousand seven hundred and eighty- 
three shares of the Kellogg company; also enjoining the 



Dec. 1906.] DuNBAB v. American etc. Tel. Co. 135 

transfers of such shares on the books of the company; and 
also enjoining its voting for the purpose of dissolving the 
company or of controlling its action, and that the sale of such 
stock be set aside. 

October 31, 1903, defendant Milo G. Kellogg filed a cross- 
bill, the allegations of which, however, were in substantial 
accord with those of the original bill. Demurrers to the 
bills were interposed for want of equity and sustained. 
Appeals were then prosecuted by the complainants in the 
original bill and in the cross-bill, resulting in the affirmance 
by the appellate court and further appeals to the supreme 
court. 

Henry S. Bobbins, Charles H. Aldrich, Henry S. McAuley, 
John S. Miller and Pliny S. Smith, for the appellants. 

A. N. Waterman, Holt, "Wheeler & Sidley, and Tenney, 
Coffeen, Harding & Wilkerson, for the appellees. 

22 WILKIN, J. The theory of the original bill is, that 
the American Telephone and Telegraph Company of New 
York (called the American company) purchased a majority 
of the stock of the Kellogg Switchboard and Supply Com- 
pany of this state (known in the record as the Kellogg com- 
pany), for the purpose of suppressing competition and 
creating a monopoly in itself of the telephone business. The 
ground of the demurrer was that the allegations of the bill 
were insufficient to sustain the cause of action, and that 
complainants, being minority stockholders in the Kellogg 
company, could not legally maintain it. 

That the American company could not lawfully make a 
contract for the purpose claimed, is not seriously questioned, 
but the argument of counsel for appellees is devoted to the 
proposition that the traversable allegations of the bill are 
not Sufficient to present the theory relied upon, and that 
complainants below are not entitled to the relief prayed. 
The demurrer, so far as the question thus raised is con- 
cerned, is general, and, of course, admits all the material 
facts well pleaded in the bill. The bill certainly is not a 
model of conciseness in pleading, but is justly subject to the 
criticism of being indefinite, uncertain and more or less 
evasive. We think, however, that it sufficiently shows, 
against a general demurrer, that the American company, 



136 American State Reports, Vol. 115. [Illinois, 

through defendant Barton and others, became the purchaser 
of the shares of stock with the unlawful purpose and inten- 
tion of putting the Kellogg company out of business or so 
using and controlling it as to prevent rivalry in business 
and creating a monopoly, and it called for an answer from 
defendants. If such was the purpose and object of the pur- 
chase, the decisions of this court are full to the effect that 
the law will not lend its aid to accomplish the object. That 
is to say, if the American company had purchased a major- 
ity of the capital stock of the Kellogg company in its own 
name ^^ for the purpose of controlling the latter and there- 
by preventing competition between itself and the latter 
corporation, the transaction would have been one which 
the courts of this state would not uphold: People v. Chicago 
Gas Trust Co., 130 111. 268, 17 Am. St. Rep. 319, 22 N. E. 
798, 8 L. R. A. 497 ; Distilling etc. Co. v. People, 156 111. 448, 
47 Am. St. Rep. 200, 41 N. E. 188 ; Bishop v. American Pre- 
servers' Co., 157 111. 284, 48 Am. St. Rep. 317, 41 N. E. 765; 
Harding v. American Glucose Co., 182 111. 551, 74 Am. St. 
Rep. 189, 55 N. E. 577, 64 L. R. A. 738. Nor can it be seri- 
ously contended that a purchase by the company in the 
name of others, as agents or trustees, will relieve the trans- 
action of its illegality. To hold otherwise would be to 
sustain a transaction illegal in its character, accomplished 
by indirection, when it could not be done if the methods 
were direct: Northern Securities Co. v. United States, 193 
U. S. 197, 24 Sup. Ct. Rep. 436, -i-S L. ed. 679, affirming the 
decision of the circuit court (120 Fed. 721). 

The American company and its subcompany, the Western 
Electric Company, must be considered as one in determin- 
ing whether the tendency of the purchase alleged in the 
bill would be to suppress the competition existing between 
the Kellogg company and the "Western Electric Company in 
the manufacture and sale of telephone appliances, etc. 
Neither is it material that the Kellogg and Western Electric 
Companies were not the only parties engaged in manufac- 
turing such appliances, for the reason that if such was the 
case, while a complete monopoly or a complete restraint 
of competition would not necessarily result, the tendency 
would be in that direction, which is sufficient to condemn 
the transaction as unlawful: People v. Chicago Gas Trust 
Co., 130 111. 268, 17 Am. St. Rep. 319, 22 N. E. 798, 8 L. R. 



Dec. 1906.] Dunbar v. American etc. Tel. Co. 137 

A. 497; More v. Bennett, 140 111. 69, 33 Am. St. Rep. 216, 
29 N. E. 888, 15 L. R. A. 361. 

The averment of the bill to the effect that it is the purpose 
of the American company to suppress competition and 
create in itself a monopoly is further aided by the averment 
that Barton, through whom the purchase was made, agreed 
to pay, as part of the purchase price, so much per share in 
cash and the balance by applying thereto the pro rata pro- 
ceeds of any or all bills and accounts reasonably due and 
^^ owing to the Kellogg company on December 1, 1901, the 
same to be settled and paid to said seller as the same are 
paid and collected by said company, plainly indicating that 
a dissolution of the Kellogg company was contemplated, be- 
cause in no other event could the American company ap- 
propriate the assets of the Kellogg company to pay a stock- 
holder of that company for the stock purchased by the 
former company from him; also, that by the contract of 
purchase the Kellogg company should be carried on in the 
usual manner for the space of one year in order that bills 
and accounts receivable could be collected in the usual 
course of business, thus showing a purpose to dissolve the 
Kellogg company after the expiration of one year. 

We have examined the briefs and arguments of counsel 
for the defendants, and reached the conclusion that the pur- 
pose and tendency of the purchase by the American com- 
pany are sufficiently shown by the bill to be to suppress 
competition by that company in telephone service to the 
public and create in the American company a monopoly of 
that business. 

That the American company, a foreign corporation com- 
ing into the state of Illinois, is subject to all the rules and 
regulations provided by the laws of this state cannot be 
doubted: Kurd's Stats. 1905, c. 32, p. 501, sec. 26; Stevens 
V. Pratt, 101 111. 206; Bishop v. American Preservers' Co., 
157 III. 284, 48 Am. St. Rep. 317, 41 N. E. 765 ; Harding v. 
American Glucose Co., 182 111. 551, 74 Am. St. Rep. 189, 55 
N. E. 577, 64 L. R. A. 738 ; Coler v. Tacoma Ry. etc. Co., 64 
N. J. Eq. 117, 53 Atl. 680. The question here, therefore, 
is whether the American company, if it had been organized 
in this state, would have had the power to purchase a ma- 
jority of the stock of the Kellogg company for the purpose 
of controlling the latter, and that question, as we have 



138 American State Reports, Vol. 115. [Illinois, 

already indicated, has been frequently decided in the nega- 
tive by this court. The decisions in other states are to the 
same effect: Marble Co. v. Harvey, 92 Tenn. 115, 36 Am. 
St. Rep. 71, 20 S. W. 427, 18 L. R. A. 252 ; Nassau Bank v. 
Jones, 95 N. Y. 115, 47 Am. Rep. 114. In Pearson v. Con- 
cord R. R. Co., 62 N. H. 537, 13 Am. St. Rep. 590, it was said: 
"A corporation ^* cannot become a stockholder in another 
corporation unless such power is given it by its charter or 
is necessarily implied in it, especially if the purchase be 
for the purpose of controlling or affecting the management 
of the other corporations": Elkins v. Camden etc. R. R. Co., 
36 N. J. Eq. 5; Great Eastern Ry. Co. v. Turner, L. R. 8 
Ch. 149. These authorities fully sustain the position thai 
the purchase by the American company, either in its own 
name or in the names of others, of the majority stock of 
the Kellogg company with the purpose and intent of con- 
trolling the latter and putting it out of business as a com- 
petitor of the American company and its subcompany, the 
Western Electric Company, was an attempt to exercise a 
power which it did not have. To permit it to do so would 
be against the law of this state and its public policy : Hazel- 
ton Boiler Co. v. Hazelton Tripod Boiler Co., 142 111. 494, 
30 N. E. 399 ; Santa Clara Female Academy v. Sullivan, 116 
111. 375, 56 Am. Rep. 776, 6 N. E. 183, Illinois cases above 
cited. 

The courts below, as we understand their decision, do 
not uphold the contract of purchase by the American com- 
pany as one made by it in its own name ; nor do we under- 
stand counsel for appellees to contend that under the facts 
alleged in the bill such a purchase could have been lawfully 
made. It is attempted, however, to show that, inasmuch 
as the purchase was made in the names of others and the 
legal title to the stock vested in them, the strict doctrine 
of ultra vires has no application. A court of equity will 
look through all devices to discover and afford relief against 
the real situation, and we shall hereafter, in considering 
another branch of the case, have occasion to cite more at 
length the authorities bearing on this question. For the 
present it will be sufficient to cite Central R. R. Co. v. 
Pennsylvania Co., 31 N. J. Eq. 475, where a bill was filed 
by a railroad company to enjoin another from building 
tracks across the complaining company's tracks, and it was 



Dec. 1906.] Dunbar v. American etc. Tel. Co. 139 

alleged that the defendant had, through its nominees and 
employes, effected *® the incorporation of another corpora- 
tion for the purpose of building said tracks. A writ of 
injunction being granted, the court said: "A corporation 
cannot in its own name subscribe for stock or be a cor- 
poration under the general railroad law; nor can it do so 
by a simulated compliance with the provisions of the law 
through its agents, as pretended corporators and subscrib- 
ers of stock." We have fully considered the reasoning of 
the chanceller on this branch of the case which was adopted 
by the appellate court, and have reached the conclusion that 
it is based upon a distinction without a legal difference. 
If, as a matter of fact, the object and purpose of the pur- 
chasing company was to acquire such ownership in the Kel- 
logg company as would enable it to control the latter, then, 
whether it did so by a direct purchase in its own name or 
through the intervention of agents or trustees, the want of 
power was the same, and the purchase was strictly ultra 
vires, no matter what the device may have been. 

The remaining important question to be considered is 
whether the complainants below, minority stockholders in 
the Kellogg company, can maintain this bill. If we are cor- 
rect in the view that the object of the American company 
was illegal and that its attempt to acquire ownership of the 
stock in the Kellogg company was absolutely null and void 
as being in excess of its chartered powers, then it would 
seem to follow that each and every stockholder in the latter 
company would have the right to say that the American 
company, assuming to own stock which it did not, and could 
not, legally own and vote at any meeting of the Kellogg 
company in the management and control of its business, 
should be restrained. In other words, every lawful owner 
of stock in a corporation has the right to say that others 
assuming to vote shares of stock which they do not have the 
legal right to vote, shall be restrained. This, we assume, 
must be admitted, and such is the logical effect of the de- 
cision of this court in Stebbins v. Perry County, 167 HL 
567, 47 N. E. 1048. 

^ In Marble Co. v. Harvey, 92 Tenn. 115, 36 Am. St. 
Rep. 71, 20 S. W. 427, 18 L. R. A. 252, the supreme court 
of the state of Tennessee, in passing upon the question 
whether shares of stock in a corporation of that state en- 



140 American State Reports, Vol. 115. [Illinois, 

gaged in a similar business transferred to a trustee chosen 
by the purchasing corporation for its use and benefit were 
legally transferred, said: "The evidence shows that the de- 
clared purpose of complainant in buying in the shares held 
by the defendant was to enable it to manage and control 
the business of the Tennessee company in the interest of the 
Ohio company. There is no pretense that it had any express 
power to purchase shares in another company, and it is too 
clear to need argument or further citation of authorit}^ that 
it had no implied authority to purchase and hold shares, 
either in its own name or in that of a trustee, for the pur- 
pose of controlling another corporation. ..... The purpose 

and intent in granting the charter is, that the corporation 
shall carry on its business through its own agents, and not 
through the agents of another corporation. The public pol- 
icy of this state will not permit the control of one corpora- 
tion by another. Especially is this true when a foreign cor- 
poration thus undertakes to control and swallow up a domes- 
tic company. Such control of one corporation by another 
in a like business is unlawful, as tending to monopoly. The 
result is, that this purchase of shares for the express object 
of controlling and managing another corporation was ultra 
vires, and therefore unlawful and void. Being void, it was 
of no legal effect, and no rights result from it enforceable 
by or through the courts of the state, when such aid is 
invoked in furtherance of the unlawful agreement": Nassau 
Bank v. Jones, 95 N. Y. 115, 47 Am. Rep. 114; De La Vergne 
R. M. Co. V. German Savings Inst., 175 U. S. 40, 20 Sup. Ct. 
Rep. 20, 44 L. ed. 65. 

Pearson v. Concord R. R. Co., 62 N. H. 537, 13 Am. St. 
Rep. 590, was a bill by a stockholder of the Concord Rail- 
road Company against the Northern Railroad Company, in 
the decision of which case the court used the following lan- 
guage: "The court finds that the Northern Railroad Com- 
pany is the owner of twelve hundred and ninety ^® shares 
of Concord railroad stock purchased in 1873, upon which it 
has since voted at the meetings of the Concord railroad. A 
corporation cannot become a stockholder in another corpora- 
tion unless such power is given it by its charter or neces- 
sarily implied in it, especially if the purchase be for the 
purpose of controlling or affecting the management of the 

other corporation It [the Northern railroad] can no 

more make a permanent investment of funds in the stock of 



Dec. 1906.] Dunbar v. American etc. Tel. Co. 141 

another road than it can engage in a general banking, manu- 
facturing or steamboat business. It is neither incidental to 
the purposes of its incorporation nor necessary in the exer- 
cise of the powers conferred by its charter. If it can pur- 
chase any portion of the corporation stock of the Concord 
company it may buy up the whole, and thus engage in a 
business for which its charter gives it no authority. And 
what will hinder a banking corporation from becoming a 
manufacturing company, or a manufacturing company from 
becoming a railroad common carrier? But the facts in this 
case go further. The stock was bought at one hundred and 
five dollars or one hundred and six dollars per share (par 
value fifty dollars), a price largely in excess of its market 
value, and for the purpose of obtaining control of the Con- 
cord company and securing more favorable contracts to 
'itself." 

Many other cases might be cited in support of the position 
that all such contracts are ultra vires and void. 

Nor do we think it can be said in this case there was a 
mere exercise of an excess of power rendering the trans- 
action merely voidable and not an absolute nullity. We said 
in Barnes v. Suddard, 117 111. 237, 7 N. E. 477, a case in 
which there had been a mere excess of power (page 243) : 
"Had the corporation been clothed with no power to acquire 
real estate in this state, or if the purchase had been prohib- 
ited by statute or contrary to the manifest policy of our 
laws, a different question would be presented, and the cases 
of Carroll v. City of East St. Louis, 67 111. 568, 16 Am. Rep. 
632, and Starkweather v. American Bible Soc. 72 111. 50, 
22 Am. Rep. 133, might properly be invoked as ^^ authority. 
But such is not the case." Consequently it was held that 
relief could not be granted at the instance of a private in- 
dividual, as was held in Carroll v. City of East St. Louis, 
67 111. 568, 16 Am. Rep. 632, and Starkweather v. American 
Bible Soc., 72 111. 50, 22 Am. Rep. 133, cases referred to, the 
remedy in the Bames-Suddard case (117 111. 237, 7 N. E. 
477), being only at the instance of the public authorities. 
In the one case a title vests which may be set aside ; in the 
other the whole transaction is null and void. 

But aside from the question as to whether the contract of 
purchase waa ultra vires in the sense that the contract be- 
came a nullity, we think that such equitable rights are 



142 American State Reports, Vol. 115. [Illinois, 

shown in the complainants, though minority stockholders, 
as ought to entitle them to maintain this bill. It is alleged 
in the bill, and admitted by the demurrer, that in order 
to stifle competition in trade and create a monopoly in itself 
and its licensee company, and for the purpose of enabling 
it to secure and maintain unreasonable and excessive rates 
and charges, said American company conceived the illegal 
purpose of acquiring at least two-thirds of the stock of said 
Kellogg company, and through such ownership to select 
and maintain a board of directors which should act in the 
real interests of and subservient to the American company 
and free that company and its licensee from the competition 
of the Kellogg company and independent exchanges; also, 
that its ultimate purpose was to injure and finally destroy 
the Kellogg company. That such conduct on the part of 
the American company was fraudulent as against the stock- 
holders of the Kellogg company cannot be denied, and 
against which, on the plainest principles of equity, a stock- 
holder in the Kellogg company should have the right to re- 
lief : Menier v. Hooper Tel. Works, L. R. 9 Ch. 350. And, on 
principle, Chicago Hansom Cab Co. v. Yerkes, 141 111. 320, 
33 Am. St. Rep. 315, 30 N. E. 667 ; Wheeler v. Pullman Iron 
etc. Co., 143 111. 197, 32 N. E. 420, 17 L. R. A. 818; Gamble 
V. Queens County Water Co., 123 N. Y. 91, 25 N. E. 201, 9 
L. R. A. 527, and Fougeray v. Cord, 50 N. J. Eq. 185, 24 
Atl. 499, are in point. 

3o In Memphis etc. R. R. Co. v. Woods, 88 Ala. 630, 16 
Am. St. Rep. 81, 7 South. 108, 7 L. R. A. 605, the bill was 
by stockholders representing a minority of the stock of the 
Memphis company, and the case was submitted to the court 
below on a demurrer and motion to dismiss the bill and to 
dissolve the injunction, which the court overruled and the 
company prosecuted an appeal. In the decision of the case 
the supreme court held that where a corporation has ac- 
quired the majority of the stock of another corporation, its 
officers, directors or others acting in its interest may be 
enjoined from exercising the voting power that the majority 
of the stock confers, so as to govern and control the man- 
agement of such other corporation, especially when the two 
corporations have the same field of action and operation and 
the profits of one may be advanced by lessening those of 
the other, and where their interests are conflicting as to 



Dec. 1906.] Dunbar v. American etc. Tel. Co. 143 

expenditures and division of earnings. In many respects 
that ease is similar to the one at bar. In the opinion it is 
said: "We come, then, to the naked inquiry, can one cor- 
poration acquire a majority of the stock of another cor- 
poration, and by the exercise of the voting power the ma- 
jority of stock confers, govern and control the management 
of such corporation?" And the question was answered in 
the negative: See State v. Newman, 51 La. Ann. 833, 72 
Am. St. Rep. 476, 25 South. 408. 

In Milbank v. New York etc. R. R. Co., 64 How. Pr. 20, 
minority stockholders, on behalf of themselves and others, 
sought to enjoin another railroad company from voting. 
The injunction was granted, the court holding that the pur- 
chase was against public policy, and used this language: "In 
the case under consideration the New York, Lake Erie and 
Western company have acquired, by purchase, the majority 
of all the stock issued by the Buffalo, New York and Erie 
railroad. K its officers are permitted to vote thereon they 
can elect a board of directors of their own choosing. It 
would then be for the interests of the New York, Lake Erie 
and Western Railroad Company to have the Buffalo, New 
York and Erie company managed ^* and controlled in the 
interests of tjie former company. This would be liable to 
result in injury to these plaintiffs and their fellow-stock- 
holders, and if so, they have a right to complain": See, 
also, Parson v. Tacoma Smelting etc. Co., 25 Wash. 492, 65 
Pac. 765. 

In Franklin Bank v. Commercial Bank, 36 Ohio St. 350, 
one bank purchased certificates of stock in the other and 
sought to have the same transferred upon its books, which 
was refused, whereupon the bank claiming to have purchased 
the stock brought an action against the other for conversion, 
based on refusal to make the transfer, but the court denied 
the relief, saying: "There would seem to be little doubt, 
either upon principle or authority and independently of ex- 
press statutory prohibition of the same, that one corporation 
cannot become the owner of any portion of the capital stock 
of another corporation unless authority to become such is 

clearly conferred by statute Were this not so, one 

corporation, by buying up the majority of the shares of 
stock of another, could take the entire management of its 
business, however foreign such business might be to that 



144 American State Repoets, Vol. 115. [Illinois, 

which the corporation so purchasing said shares was created 

to carry on Its action in refusing the transfer was 

but the denial of any right by the plaintiff to be placed 
in a position to interfere and participate in the control and 
management of its internal affairs. To the claim of the 
plaintiff that it was the duty of the defendant to make the 
transfer when the same was demanded and leave the state 
to impose the penalty of forfeiture on the plaintiff for a 
violation of its charter, we do not assent. The cases of 
Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188. 
and Jones v. Guarantee etc. Co., 101 U. S. 622, 25 L. ed. 
1030, and cases therein cited, do not support such proposi- 
tion. The principle of those cases is, that where a corpora- 
tion is incompetent, by its charter, to take a title to real 
estate, a conveyance to it is not void, but voidable only, 
and that the sovereign alone can object; that the convey- 
ance is valid unless assailed in ^* a direct proceeding insti- 
tuted for that purpose. But they neither, by the principle 
maintained nor by the reasoning advanced in support of it, 
sanction the doctrine that one corporation may buy up the 
stock of another and thereby enable itself to interfere with 
the internal management of its affairs, especially where the 
power to do so is expressly prohibited by its .charter. " 

Other authorities, some of which have been already cited, 
are to the same effect. 

There are other grounds upon which the complainants' 
right to maintain this bill may be placed, but we do not feel 
called upon now to extend this opinion for the purpose of 
pointing them out. Three separate, independent, lengthy 
briefs and arguments have been filed on behalf of appel- 
lants, which have unnecessarily increased the labor of re- 
viewing and deciding the case. We have endeavored only 
to point out the substantial grounds upon which we hold the 
defendants to the original bill should have been required to 
answer the same. 

We think the decree of the circuit court sustaining the 
demurrer to and dismissing the cross-bill is right and should 
be affirmed. No necessity whatever for that bill is shown. 
At most, Milo G. Kellogg was a mere nominal party to the 
original bill. No relief was prayed against him, and if a 
decree granting the prayer of that bill had been rendered he 
would have obtained all he was in equity entitled to. More- 



Dec. 1906.] DuNBAB v. American etc. Tel. Co. 145 

over, as a bill to set aside the contract of sale for the fault 
or misconduct on the part of his attorney, De Wolf, he does 
not offer to place the purchaser in statu quo. 

The decree, in so far as it sustains the demurrer to the 
cross-bill, will be sustained, but for the error in sustaining 
the demurrer to the original bill, the decree will be reversed 
and the cause remanded, with directions to proceed in con- 
formity with the views herein expressed. 

Decree aflSirmed in part. 

^^ Afterward, on consideration of the petition for rehear- 
ing in this case, the following additional opinion was filed: 

Per CURIAM. The object and purpose of the cross-bill 
is to rescind the sale of Kellogg 's shares of stock on the 
ground of fraud. In order to entitle him to that relief he 
must have shown by his bill that he promptly disaffirmed the 
sale upon discovering the alleged fraud and offered to re- 
fund the purchase price which he received therefor or give 
some sufficient legal excuse for his failure to do so, and in 
this respect his cross-bill is fatally defective. The rule in 
this state is, that a party who seeks by bill in equity to 
rescind a contract of sale for fraud on the part of the pur- 
chaser, must, as a condition precedent, offer to repay the 
purchase price. In other words, he must, before filing his 
bill, offer to restore the purchaser to the same position he 
was in before the sale was made. The contract is not void, 
but only voidable at the election of the defrauded party: 
Rigdon V. Walcott, 141 111. 649, 31 N. E. 158. And it was 
there said (page 662) : "The complainant then having failed 
to show that prior to the filing of his bill he elected to re- 
scind the transaction or agreement complained of, or took" 
any of those steps which are legally necessary to effectuate 
a rescission, it must be held that, so far as is shown by the 
bill, said transaction remains in full force and that the com- 
plainant is entitled to no relief based upon the theory of its 
rescission." The rule is clearly stated by Judge Gary in 
Duncan v. Humphries, 58 111. App. 440, that to lay the 
foundation for a bill to rescind a contract, the complainant 
must, before the commencement of his suit, offer and be 
willing to perform such acts on his part as will restore the 
defendant to the position which he occupied before the 
transaction: Citing Rigdon v. Walcott, 141 Cal. 649, 31 
N. E. 158. It is not sufficient to make the offer in the bill. 
Am. St, Eep., Vol. 115—10 



146 American State Reports, Vol. 115. [Illinois, 

The judgment of the appellate court as to the cross-bill is 
right and will be affirmed. 



Unlawful Trusts and Monopolies are considered in the note to Hard- 
ing V. American Glucose Co., 74 Am. St. Rep. 235. 

The Consolidation of Corporations is considered in the note to Morri- 
son V. American Snuflf Co., 89 Am. St. liep. 604; and the sale by a 
corporation of all its property and assets is considered in the note to 
Tanner v. Lindell Ey. Co., 103 Am. St. Rep. 548. 

The Bight of One Corporation to Acquire Stock in another is con- 
sidered in the note to Denny Hotel Co. v. Schram, 36 Am. St. Rep. 
137. See, too, the recent case of McCampbell v. Fountain Head R. R. 
Co., Ill Tenn. 55, 102 Am. St. Rep. 731, and authorities cited in the 
cross-reference note thereto. 

Actions by Stockholders on Behalf of Their Corporations are con- 
sidered in Johns v. McLester, 97 Am. St. Rep. 29. 



BROWN V. TRUSTEES OF SCHOOLS. 

[224 HI. 184, 79 N. E. 579.] 

LIMITATION OF ACTIONS Against the State.— Statutes of 
limitation do not run against .the state in respect to public rights, 
unless it is expressly within the terms of the statute, (p. 147.) 

LIMITATION OF ACTIONS— Minor Municipalities.— The rule 
that statutes of limitation do not run against the state applies in favor 
of minor municipalities created by it as well as to local governmental 
bodies in respect to governmental affairs affecting the general public. 
The exemption extends to counties, towns and minor municipalities 
in all matters respecting strictly public rights as distinguished from 
private or local rights, but as to matters involving private rights, 
they are subject to the statute of limitations to the same extent as in- 
dividuals, (pp. 147, 148.) 

LIMITATION OF ACTIONS— School Districts.— Statutes of 
limitation run against trustees of school districts with respect to 
property held by them in trust for the use of the free public schools 
of the district, because the people of the state in general have no in- 
terest in common with the inhabitants of the school district in the 
schoolhouse site. (pp. 149, 150.) 

Outten & Roby, for the appellant. 

J. B. Moffett, for the appellees. 

^»5 CARTWRIGHT, J. This is an action of ejectment 
brought by the appellees, against appellant, in the cir- 
cuit court of Macon county, to recover possession of part 
of a schoolhouse lot to which appellees held the legal title, 
for the use of school district No. 90, in said county. Appel- 



-i 



Dee. 1906.] Brown v. Trustees of Schools. 147 

lant's plea was not guilty and **^ the defense was the stat- 
ute of limitations of twenty years. The cause was sub- 
mitted to and tried by the court upon an agreed statement 
of facts showing adverse possession of the premises for 
more than twenty years. Appellant and his predecessors in 
title to the adjoining lands had been in the open, exclusive 
and adverse possession of that part of the schoolhouse lot 
in controversy for more than twenty years, and it had been 
inclosed by a fence, and a portion of it had been used for 
an orchard and another portion for a garden. The posses- 
sioi^of appellant was such as would have barred the action 
if the statute of limitations applies to trustees of- schools in 
respect to lands held for the use of a school district. Ap- 
pellant submitted to the court propositions of law to the 
effect that the action would not lie because of the adverse 
possession, and that the title and possession of appellees 
were subject to the limitation laws of the state. The court 
refused to hold the propositions to be the law and found 
the defendant guilty, and entered judgment that the ap- 
pellees recover the premises. 

Statutes of limitation do not run against the state, in 
respect to public rights, unless the state is expressly in- 
cluded within the terms of the statute. The rule is founded 
on the maxim of the common law, Nullum tern pus occurrit 
regi. It was supposed that the time and attention of the 
sovereign were occupied by the cares of government, and 
there could be no negligence or laches on his part. The 
same prerogative extends to the state, in its sovereign capac- 
ity, as to all governmental matters. As to them no delay 
in resorting to the remedy will bar the right; but if the state 
becomes a partner with individuals, or engages in business, 
it devests itself of its sovereign character and is subject to 
the statute : Governor v. Woodworth, 63 III. 254. In such 
relations it does not exercise sovereignty, but acts merely 
as an individual and cannot claim the exemption. The 
rule that statutes of limitation do not run against the state 
also extends to minor municipalities created by it as local 
governmental **"^ agencies, in respect to governmental af- 
fairs affecting the general public. The exemption extends 
to counties, cities, towns and minor municipalities in all mat- 
ters rcKpectiug strictly public rights as distinguished from 
private and local rights, but as to matters involving private 



148 American State Reports, Vok 115. [Illinois, 

rights they are subject to statutes of limitation to the same 
extent as individuals.' Logan County v. City of Lincoln, 
81 111. 156; County of Piatt v. Goodell, 97 111. 84; School 
Directors v. School Directors, 150 111. 653; People v. Town 
of Oran, 121 111. 650, 13 N. E. 726 ; Greenwood v. Town of 
Lasalle, 137 111. 225, 26 N. E. 1089 ; 19 Am. & Eng. Ency. of 
Law, 2d ed., 181, 191. 

The question in this case is whether there is an implied 
exemption from the statutes of limitation in favor of trus- 
tees of schools with respect to property held for the use of 
a particular school district, and that depends upon the mean- 
ing of the term "public rights," as used in the decisions. 
In one sense, all property held by a municipal corporation 
is held for public use, and the public at large, or some por- 
tion of the public, have rights or interests in such property. 
It may be held for the use of the people of the state gen- 
erally, or the use may be limited to the inhabitants of the 
local subdivision or municipality, such as the city, village 
or school district, and the question whether the statute ap- 
plies in the latter class of cases was considered in County 
of Piatt v. Goodell, 97 111. 84. That case involved the title 
to swamp lands owned by the county, in which the in- 
habitants of the county were interested. It was held that 
the public right and public use must be in the people of the 
state at large, and not in the inhabitants of a particular 
local district. It was said that there is a well-founded dis- 
tinction between cases where the municipality is seeking to 
enforce a right in which the public in general have an in- 
terest in common with the people of such municipality, and 
cases where the public have no such interest; that the pub- 
lic generally had no interest in the tract of land in question 
in that case in common with *** the voters and taxpaj'crs 
of Piatt county, and that the county for that reason was 
subject to the limitation laws. 

There are numerous cases where it has been held that 
municipalities or minor political subdivisions of the state 
are not subject to limitation laws in respect to streets and 
public highways (Lee v. Town of Mound Station, 118 111. 
304, 8 N. E. 759) ; but streets and highways are not for the 
use of the inhabitants of any municipality or locality alone, 
but for the free and unobstructed use of all the people in 
that state. Such rights are clearly distinguishable from the 



Dec. 1906.] Brown v. Trustees of Schools. 119 

rights or interests of the inhabitants of a locality in prop- 
erty acquired for a mere local use, such as city offices, a 
library site or the use of a fire department. Such prop- 
erty is held and used for strictly local purposes. In Green- 
wood V. Town of Lasalle, 137 111. 225, 26 N. E. 1089, where 
it was held that an action by the town to recover taxes 
was not barred by any statute of limitation, the taxes were 
levied for purposes in which the public generally are di- 
rectly interested, such as repairing bridges, roads or cause- 
ways, in which the public at large are as much interested 
as the people of the township. In the case of Trustees of 
Commons v. McClure, 167 111. 23, 47 N. E. 72, it was held 
that the statutes of limitations did not run against the state 
itself in respect to the commons held in trust for a portion 
of the general public, where there was no power, except in 
the state, to authorize a diversion of the lands to any use 
different from that provided for in the grant; but it was 
said that the court did not wish to be understood as hold- 
ing that if the inhabitants of the village of Kaskaskia had 
been incorporated and endowed by the state with full au- 
thority to divide, divert and convey the commons, or any 
part thereof, in fee, the statute of limitations would not 
run against them as in other cases. It was there held that 
the state could not, by mere lapse of time, be barred from 
the exercise of its sovereign power in respect to the aliena- 
tion of the lands, although the trust was for the benefit of 
a portion, only, of the general public, but the court declined 
to hold that a municipality ^**^ would be exempt under the 
same circumstances. That decision was based on the pre- 
rogative of the state as a sovereign. 

By section 31 of the act to establish and maintain a sys- 
tem of free schools the trustees of schools of a township are 
invested with the title, care and custody of all schools and 
schoolhouse sites, but the supervision and control of such 
schools and schoolhouse sites are vested in the directors of 
the particular district. The trustees are required by sec- 
tion 32 to sell and convey any schoolhouse site which has 
become unnecessary, unsuitable or inadequate for a school, 
on petition of a majority of the voters of the district, and 
the proceeds of the sale are to be paid over to the township 
treasurer for the benefit of the school district: Kurd's 
Stats. 1905, p. 1796. The people of the state in general have 



150 American State Keports, Vol. 115. [Illinois, 

no interest, in common with the inhabitants of a school 
district, in the schoolhouse site or the proceeds of it. The 
use and the right are confined to the particular local dis- 
trict, and under the decision in County of Piatt v. Goodell, 
97 111. 84, the statute of limitations was a good defense. 
The judgment is reversed and the cause remanded. 

WILKIN, J, Dissenting. I do not understand that the 
right of action in plaintiffs below is barred by limitation. 
They proved a fee simple title in themselves for the use 
and benefit of the public. Section 32 of the school law 
(Kurd's Stats. 1899, c. 122, p. 1526) provides that the school 
business of the township shall be done by three trustees to 
be elected by the legal voters of the township, as there- 
inafter provided for. Section 33 makes said trustees a 
body politic and corporate by the name and style of "Trus- 
tees of schools of township No. , range No. ," 

according to the number, and provides that such corporation 
shall have perpetual existence, shall have power to sue 
and be sued, to plead and be impleaded in all courts and 
places where judicial proceedings are had. ^^^ Section 60 
authorizes the trustees of schools in each township in the 
state to receive any gift, grant, donation or devise made 
for the use of any school or schools or library, or other 
school purposes, within their jurisdiction, and provides that 
"they shall be and are hereby invested, in their corporate 
capacity, with the title, care and custody of all schoolhouses 
and schoolhouse sites; provided, that the supervision and 
control of such schoolhouses and school sites shall be vested 
in the board of directors of the district." Section 61 au- 
thorizes the trustees, when in the opinion of any board of 
directors the schoolhouse site or any buildings have be- 
come unnecessary or unsuitable or inconvenient for a school. 
on petition of a majority of the voters of the district, to 
sell and convey the same in the name of said board, after 
giving at least twenty days' notice of such sale by posting 
up written or printed notices thereof particularly describ- 
ing said property and the terms of sale. 

It has always been the doctrine of this court that the 
statute of limitations does not run against a municipal cor- 
poration in respect to property held for public use. I do not 
think it can be said the trustees of schools do not hold prop- 
erty the title to which is vested in them for school purposes, 



Dec. 1906.] Brown v. Trustees op Schools. 151 

for the public use. Such property is held for the benefit of 
all the people of the school district. It cannot be sold by 
the trustees without the petition of a majority of the vot- 
ers in the district. They have no power to dispose of the 
fee to such property or convey it away at their own will 
and independently of the will of a majority of the voters. 
A sale or conveyance by them, otherwise than upon the peti- 
tion required by the school law, would be a plain violation 
of duty. The public have an interest in the land in com- 
mon with the citizens and taxpayers of the district and 
township. The laws providing for public schools are passed 
in pursuance of the constitutional provision that "the Gen- 
eral Assembly shall provide a thorough and efficient sys- 
tem of free schools, whereby all children of this state may 
receive a good common **** school education": Const. 1870, 
art. 8, sec. 1. The public school of each township or dis- 
trict is a part of the common school system of the state, 
and the interest of the public in it is as broad as the sys- 
tem itself. In Logan County v. City of Lincoln, 81 111. 
156, this court said: "Our understanding of the law is, that 
as respects all public rights, or as respects property held 
for public use upon trusts, municipal corporations are not 
within the operation of the statute of limitations ; but in re- 
gard to contracts or mere private rights the rule is differ- 
ent, and such corporations, like private citizens, may plead 
or have pleaded against them the statute of limitations": 
See. also, :Martel v. City of East St. Louis, 94 111. 67 ; Village 
of Lee V. Harris, 206 111. 428, 99 Am. St. Rep. 176, 69 N. 
E. 230. Here the school trustees, as a municipalit}', held 
this school lot not in a private capacity, nor do they hold 
the fee with unlimited power of disposal. The power of 
disposal is subject to the will of a majority of the voters 
of the school district. In my opinion the trustees cannot, 
by mere neglect of duty or laches, deprive the public of its 
right to the property. Section 8 of our statute of limita- 
tions expressly excepts such property from the operation 
of the seven years' limitation. 

I think the judgment below should be affirmed. 



Adverse Fossession of property of a public character is considered in 
the notes to Schneider v. Hutchinson, 76 Am. St. Rep. 479; Northern 
Pac. Ry. Co. v. p:iy, 87 Am. St. Rep. 775. 

The Maxim "Nullum Tempus Occurrit Regi" is the subject of a note 
to Bannock County v. Bell, 101 Am, St. Rep. 144. 



152 American State Reports, Vol. 115. [Illinois, 



DARST V. SWEARINGEN. 

[224 lU. 229, 79 N. E. 635.] 

WIIiLS, Property Oiven to Heirs by, Wlien Deemed to be 
Personal Property. — A devise of real property to be con%'crtecl into 
money and the money to be distributed among the devisees is to be 
treated as a devise of money and not as of land, though the devisees 
may, by their unanimous concurrence, elect to take land instead of 
money, (p. 154.) 

WlliliS. Property Olyen to Heirs When Deemed to be Vested 
in Them by Eescent — A devise giving the devisee precisely the 
same estate and interest in the property as he would have taken 
by descent is void, for the reason that title by descent is regarded 
as worthier and better than title by purchase, (p. 154.) 

WTLLS — Devise to Heirs, When Does not Vest in Them by 
Descent. — If a devise is made by the testator's heirs and there is a 
difference in kind or quality of the estate or property to be passed 
under the devise from that which would descend to them by the 
statute, they must be held to take by devise and not by descent, (p. 
154.) 

EXECXJTION, Interest of the Devisee, When Subject to. — If a 
testator devises all his real estate occupied as a homestead to his 
wife for life, and within two years after her death to be sold, the 
proceeds to be equally divided among his six children, they take no 
vested interest in such property on the death of the testator, but only 
a right to money when the land shall be sold as directed, and the in- 
terest of one of them is not subect to levy and sale under execution, 
and such levy and sale are void. (p. 155.) 

W. W. Hammond and H. V. Foster, for the appellants. 

Lillard & Williams, for the appellee. 

231 WILKIN, J. On July 12, 1882, Joseph B. McCorkle 
died testate. The fourth clause of his will was as follows: 

"I give and bequeath to my wife, Cynthia Ann ]\IcCorkle, 
my homestead or home place, with all its appurtenances 
thereunto belonging, and all the land described as belonging 
to me in sections 18 and 19, Tp. 26, N. R. 1 W. 3d P. M., 
Olio Tp., Woodford county, Illinois, to have and to hold 
during her natural lifetime, and within two years after her 
death the above-described homestead and lands I will to be 
sold and the proceeds to be equally divided between my six 
children, viz.: Maria Josephine Poynter, Richard Henry 
McCorkle, Orpha Jane Hedrick, Eunice Adele McCorkle, 
Missouri (or Zuie) Amanda McCorkle, Cyrus Byron Mc- 
Corkle." 

The widow and six children named in this clause were 
testator's sole heirs at law. The will vv^as admitted to pro- 



Dec. 1906.] Darst v. Swearingen. 153 

bate by the county court of "Woodford county on August 10, 
1882, but the executor named therein failed to qualify. The 
widow occupied the homestead until her death, on August 
16, 1905. 

On June 15, 1900, Orpha Jane Hedrick, a daughter, in 
consideration of twelve hundred dollars, assigned to appel- 
lee, Ezra F. Swearingen, her estate in all moneys derived 
from the sale of the ^^* real estate described in the fourth 
clause. On April 4, 1897, J. P. Darst, L. C. Darst and G. 
W. Darst, partners doing business as J. P. Darst & Co., 
obtained a judgment in the circuit court of Woodford county 
against Orpha J. Hedrick and others. An execution was 
issued and levied upon the share of Orpha Jane Hedrick 
in the real estate above described and the same was sold 
by the sheriff in satisfaction thereof. No redemption was 
made from this sale, and on June 26, 1905, the sheriff is- 
sued a deed conveying said interest to appellants, J. P. 
Darst & Co. On December 8, 1905, appellee, Ezra F. Swear- 
ingen, filed his bill in the circuit court of Woodford county 
against J. P. Darst & Co., and the six children of Joseph 
B. McCorkle, in which he alleged the above facts; also that 
no title was vested in Orpha Jane Hedrick at the time of 
said judgment, levy and sale; that the time had arrived 
when said homestead property should be sold and the pro- 
ceeds divided, and that the sheriff's deed was void and a 
cloud upon complainant's title. The prayer of the bill was, 
that a trustee should be appointed to sell said real estate; 
that the sheriff's levy, sale and deed be set aside, and that 
the master in chancery be directed to sell the property and 
distribute the proceeds, giving to appellee, Swearingen, the 
share of Orpha Jane Hedrick. A demurrer to the bill Avas 
filed by J. P. Darst & Co., which was overruled, and they 
electing to stand by their demurrer, a decree was entered 
in accordance with the prayer of the bill. From that de- 
cree this appeal is prosecuted. 

The only question for our determination is whether 
Orpha Jane Hedrick took, under the fourth clause of the 
will, real estate or personal property. On behalf of appel- 
lants it is claimed that she took real estate subject to levy 
and sale by judgment creditors; on the other hand, appellee 
contends that it became personal property under the will, 
and that the title to the same, as realty, did not vest in her. 



154 American State Reports, Vol. 115. [Illinois'. 

We have held in a great many cases that a devise of real 
estate which by the provisions of a will is to be converted 
*^^ into money and the money distibuted among the dev- 
isees is to be treated as a devise of money and not of land 
and that the devisees may elect to take the land itself in 
stead of the money. The character of the devise cannot 
however, in such case be changed from money to land witl? 
out the concurrence of all of the devisees. This doctrini 
was first decided in the early case of Baker v. Copenbarger 
15 111. 103, 58 Am. Dec. 600, and has been followed in num 
erous subsequent cases, among which are Ebey v. Adams. 
135 111. 80, 25 N. E. 1013, 10 L. R. A. 162 ; English v. Cooper. 
183 111. 203, 55 N. E. 687, and Starr v. Willoughby, 218 111. 
485, 75 N. E. 1029, 2 L. R. A., N. S., 623. 

But it is claimed by appellants that there is a distinction 
between cases where the direction is to sell and divide the 
proceeds among a class of persons other than the testator's 
heirs or in different proportions from the statutory inheri- 
tance, and cases where the heirs of the testator are benefi- 
ciaries in the same proportions they would take by dascent, 
and they insist this case falls within the latter class. There 
can be no question but the distinction insisted upon exists; 
that a devise giving precisely the same estate and interest 
in property as the devisee would take by descent if the de- 
vise had not been made is void, for the reason that a title 
by descent is regarded as a worthier and better title than a 
title by purchase: Kelett v. Shepard, 139 111. 433, 28 N. E 
751, 34 N. E. 254. But this rule is not applicable where 
there is a difference in kind or quality of the estate or prop- 
erty to be passed under the devise from that which would 
descend under the statute. Where there is a difference in 
either the amount or quality of the interest taken the rule 
is not applicable. Had Joseph McCorkle died intestate his 
widow would have taken homestead and dower in the lands 
in question, and the six children would have taken, at the 
moment of his death, the intestate lands as real estate, sub- 
ject to the widow's dower and homestead. The title would 
immediately have vested in them and been subject to levy 
and sale on an execution of a judgment creditor. By the 
terms of this will the homestead of the widow was merged 
in other property without *^'* assignment of homestead and 
in lieu of dower. Both the homestead and dower rights of 



Dec. 1906.] White v. Horn. 155 

the widow were thrown together. Her property, there- 
fore, as it descended under the will was entirely different 
from what it would have been if she had taken under the 
statute. The six children, instead of inheriting the land 
subject to the assignment of dower and homestead, as pro- 
vided by the statute, took no vested estate at the death 
of their father, but only a right to money when the land 
should be sold within the two years after the death of the 
widow. It will readily be seen, therefore, that there was 
a marked difference between the title given under the will 
and that which would have been derived under the statute, 
and therefore the case does not fall within the rule sought 
to be invoked by appellants. 

The interest of Orpha Jane Hedrick under her father's 
will was a money interest, and not real estate. The levy 
and sale were therefore void. 

We find no reversible error, and the decree of the circuit 
court will be affirmed. 



Wills Devising or Bequeathing to an Heir what he is entitled to 
unflor the law of succession, in the absence of a will, are considered 
in the note to Akers v. Clark, 75 Am. St. Rep. 154. 

The Liability of an Heir or Devisee for the debts of his ancestor is 
considered in the note to Crawford v. Turner, 112 Am. St. Eep. 1017. 



WHITE V. HORN. 

[224 111. 238, 79 N. E. 629.] 

ESTATES OF DECEDENTS— Limitation of Time Within 
Which to Apply for an Order to Pay Debts. — In the absence of a legis- 
lative rule upon the subject an application for an order to sell lands 
of a decedent to pay his debts must be made within seven years unless 
the delay is satisfactorily explained. If the circumstances show 
good reason for the delay, a very much longer time will not bar the 
proceedings, (p. 158.) 

ESTATES OF DECEDENTS — Laches in Executing an Order to 
Sell Eeal Estate to Pay Debts. — An order to sell land to pay debts 
amounts to no more than a lien which should be enforced within 
the time allowe<l for the enforcement of judgment liens. If the 
order is not enforced within seven years, the parties may be brought 
before the court at any time within twenty years, and, in a proper 
case, the order may be revived and enforced; but it should not be 
enforced after twenty years where the only excuse for delay is that 
the lands were of so little value during such twenty years that they 
were worth nothing in the market, but their value had recently been 
much enhanced, (pp. 159, 160.) 



156 American State Repoets, Vol. 115. [Illinois, 

Williams & Williams and Paul F. Grote, for the appel- 
lants. 

Edward Doocy and William Mumford, for the appellees, 

**i CARTWRIGHT, J. Thomas Cochran, at the time of 
his death, on June 18, 1876, was the owner of two tracts of 
land in Pike county, one containing thirty-two acres and 
the other seventy-five and seventy-five hundredths acres. 
He left no descendant, and the heirs were his widow, Etha- 
linda Cochran, and collateral relatives. The lands were sub- 
ject to the dower of the widow, and she took one-half in 
fee as heir, subject to the dower. John B. Horn, one of 
the appellees, was appointed administrator on August 18, 
1876, and claims were allowed against the estate in excess 
of the personal assets to the amoimt of three thousand six 
hundred dollars. The creditors presented to the court their 
petition for a citation against the administrator to compel 
him to sell the real estate to pay the debts, and on June 30. 
1880, he filed his petition for that purpose. On October 22, 
1880, an order of sale was entered, and by virtue of that 
order the lands were sold on January 22, 1881, the thirty- 
two acre tract bringing one hundred and eighty -seven dol- 
lars and fifty cents and the seventy-five and seventy -five 
hundredths acre tract seventy-five dollars. A report of the 
sale was made, which the county court refused to approve 
because of the inadequacy of price. The sale was set aside 
and the administrator was ordered to again advertise and 
sell the lands. No further attempt to sell the lands was 
made and nothing was done by the creditors to compel a 
sale until March 22, 1904, when appellants, who are cred- 
itors of the estate, presented to the county court their peti- 
tion in this case for a citation to the administrator to show 
cause why he should not proceed to sell under the original 
order. John B. Horn and Ethalinda Cochran, the appel- 
lees, demurred to the petition, and their demurrer was over- 
ruled and an order was entered directing the appellee Horn 
to sell the real estate **^ in pursuance of the original order. 
Appellees appealed to the circuit court, where they again 
demurred to the petition, and the demurrer was overruled. 
Appellee Horn then filed his answer, alleging that the judg- 
ments of appellants were barred by limitation and by their 
negligence and laches; that the proceedings for the sale 



Dec. 1906.] White v. Horn. 157 

were long ago abandoned and the ease was off the docket 
of the county court, and that appellants had allowed the 
widow to expend large sums of money to improve the 
land and were estopped to assert any rights antagonistic to 
her. The circuit court heard the cause and entered an or- 
der requiring the appellee to advertise the lands and pro- 
ceed to sell the same under the order entered October 22. 
1880. Appellees appealed to the appellate court for the 
third district, and that court reversed the order of the cir- 
cuit court. From the judgment of the appellate court ap- 
pellants have brought the case here by appeal. 

The petition for the enforcement of the order of sale 
was filed more than twenty-three years after the order was 
entered, and alleged as an excuse for the delay that both 
tracts were encumbered by dower rights of the widow, and 
that the seventy-five and seventy-five hundredths acres 
were swamp lands in a drainage district and of little value, 
and that the lands have recently become valuable. The 
petition further alleged that the widow was in possession 
of all said lands from the death of her husband; that on 
October 23, 1893, she conveyed the seventy-five and seventy- 
five hundredths acre tract to Peter Brown, and thereby her 
dower right in that tract was extinguished; that on Janu- 
ary 10, 1895, Brown procured a deed from the commission- 
ers of the drainage district, who had bought said tract for 
levee and other taxes on June 4, 1883 ; that on September 7, 
1895, Brown and wife quitclaimed the premises to the 
widow, and on July 11, 1902, she also received a deed from 
Isaac Strauss and wife, who had bought the tract at a tax 
sale on June 13, 1898. One of the petitioners testified that 
the lands were of little value prior to the settlement, in 
1902, of a bond suit in the United States court against the 
drainage district, and before that **^ settlement would not 
have sold for enough, subject to the widow's dower, to pay 
for the cost of the proceeding. The petition alleged that 
the widow had contracted a sale of part of the premises 
for three thousand six hundred dollars and had filed a peti- 
tion to quiet title as against petitioners. 

The principal question presented is whether a petition 
to enforce the execution of an order of sale to pay the 
debts of an estate will be entertained after the lapse of 
twenty-three years from the time it was entered. There is 



158 American State Reports, Vol, 115. [Illinois, 

no statute limiting the time within which an administrator 
shall file a petition for leave to sell land to pay debts nor 
within which he shall proceed to execute the order of sale 
after it has been entered. The question within what time 
the petition shall be filed has often been considered, and a 
period has been fixed which was adopted in analogy to 
statutes of limitation relating to liens of judgments. In 
the absence of a legislative rule fixing a definite period of 
limitation it has uniformly been held that the application 
must be made within seven years, unless the delay is satis- 
factorily explained. If the circumstances show good rea- 
son for a delay, a very much longer time will not bar a 
proceeding: Rosenthal v, Renick, 44 111. 202; Moore v. Ells- 
worth, 51 111. 308; Bursen v. Goodspeed, 60 111. 277; Judd 
V. Ross, 146 111. 40, 34 N. E. 631; People v. Lanham, 189 
111. 326, 59 N. E. 610; Graham v. Brock, 212 lU. 579, 103 
Am. St. Rep. 248, 72 N. E. 825. 

Counsel for appellants contend that the rule so estab- 
lished does not apply to an order of sale ; that the proceed- 
ing is in rem, and a judgment of that kind does not fall 
within any statute of limitation, and that the order may be 
executed at any time, however remote. While counsel are 
correct in saying that there is no statute governing the 
time within which the order may be executed, it is equally 
true that there is no statute fixing the time within which 
the application shall be made, and that practically the 
same reasons which induced the establishment of the rule 
in one case apply to the other. The law gives to creditors 
of an estate a lien on the real estate to be enforced by the 
administrator for their benefit; ^*^ but the lien is not per- 
petual, and may be lost by gross laches or unreasonable 
delay (Vansyckle v. Richardson, 13 HI. 171), and there 
seems to be no valid reason why the lien should be per- 
petual after it has taken the form of an order of sale. It 
is the often-declared policy of the lavv* that titles to real 
estate shall be secure, and courts have not hesitated to ap- 
ply rules, based on the analogies of statutory law, to pre- 
vent insecurity of such titles. In the case of a sheriff's 
certificate of sale, although there was no statutory limita- 
tion, the court applied a rule, drawn from the analogies of 
the law, that the deed must be made within a reasonable 
time; that such time was the seven years within which 



Dec. 1906.] White v. Horn. 159 

the judgment was a lien, adding thereto fifteen months al- 
lowed for redemption, and that if the application for a deed 
was not made within that time it must be made through 
the court, on notice to the parties. The court was inclined 
to hold that a period of twenty years should be considered 
an insuperable bar to the relief prayed for: Rucker v. 
Dooley, 49 111. 377, 99 Am. Dec. 614. The court in that 
ease mentions other examples where a limitation had been 
adopted without legislation, and reiterates the declaration 
of a former opinion: "In short, the policy of our law is 
repose and security of titles and estates against dormant 
claims. ' ' 

Where the only effect of an order to sell lands to pay 
debts is to subject the lands to sale for vhat purpose, the 
order amounts to no more than a lien, and payment of the 
claims will relieve the lands from the effect of the order. 
The heir, in such a case, may pay the debt and relieve the 
lands from the charge : Richie v. Cox, 188 111. 276, 58 N. E. 
952. By statute a judgment is a lien upon land for seven 
years if execution has been issued within a year, and no 
longer. When the judgment has become dormant it may 
be revived by scire facias, or an action of debt may be 
brought thereon within twenty years after the date of the 
judgment, and not afterward. Actions for the recovery of 
lands held adversely are barred in seven years under some 
circumstances and in ^^'^ other cases in twenty years. 
Petitioners seem to have recognized that the order of sale 
had become dormant, and could not properly be executed 
without bringing the parties interested before the court 
and obtaining an order to enforce the decree. 

Following the analogies of the law, it would seem that 
if an order of sale has not been executed within seven years 
from the date of its entry, the parties may be brought be- 
fore the court at any time within twenty years, and in a 
proper case the order may be revived and enforced; but 
we do not think that the order ought to be enforced, in a 
case like this, more than twenty years after the original 
order was entered. The only excuse for the long delay 
which was alleged or proved was, that the lands were worth 
nothing in the market until recently, when there has been 
a great advance in market value. In the case of People v. 
Lanham, 189 III. 326, 59 N. E. 610, where a great delay in 



160 American State Reports, Vol. 115. [Illinois, 

beginning the proceeding was excused, the lands were sub- 
ject to a homestead estate, and could not have been sub- 
jected to a sale for the payment of the debts of the estate, 
and similar conditions existed in other cases where it was 
held that the delay was satisfactorily explained. There 
was something in the condition of the title which prevented 
a sale, and not a mere question of market values, which 
has not been regarded as good ground for delay: Graham 
V. Brock, 212 111. 579, 103 Am. St. Rep. 248, 72 N. E. 825. 
A steady increase in the market value of farm lands in 
this state has taken place since the first settlement of the 
country, and a probability of increased market value in 
the future would exist in every case. None of the reasons 
generally applicable to the commencement of proceedings 
which would excuse delay could have any force in excusing 
the execution of the order when once made. 

The judgment of the appellate court is affirmed. 



Estates of Decedents. — As to Laches in Applying for Orders to Sell 
the real property of a decedent to pay debts, see the note to Killough 
V. Hinton, 26 Am. St. Eep. 22. A delay for more than seven years 
after the grant of letters of administration before attempting to 
subject the land of an intestate to the payment of his debts will bar 
such proceeding, where the only excuse for the delay is that the values 
of real estate in the city where the land is situated were declining 
during that time: Brogan v. Brogan, 63 Ark. 405, 58 Am. St. £ep. 
124. 



FISCHER V. BUTZ. 

[224 111. 379, 79 N. E. 695.] 

PABTITION — Power Conferred Upon Executors or Trustees to 
Make, When Exclusive. — If a testator by his will vests in his executors 
authority to partition his real property among his heirs and devisees, 
a court of equity will not take the execution of the trust out of their 
hands unless they have abused it or have for an unreasonable time re- 
fused to exercise it. (pp. 163, 164.) 

PARTITION — Dismissal of Bill for Because Power to Partition 
is Vested in Executors. — A bill filed for the partition of real property 
of a testator or decedent will be dismissed where his executors are, 
by the will, vested with authority to make partition, and only four 
months and a half have elapsed since the death of the testator and 
but three and a half months since the admission of the will to probate. 
They should be allowed time to ascertain whether and to what extent 
the estate is indebted, and to so inform themselves as to intelligently 
exercise their discretion, (p. 164.) 



Dec. 1906.] Fischer v. Butz. 161 

PARTITION, Exercise of Power of by Executors Though There 
axe Conflicting Claims of Title. — A claim by a woman that she is the 
widow of the testator by virtue of a common-law marriage does not 
constitute a sufficient ground for the taking of jurisdiction by a court 
of equity of a suit to partition his property commenced by one of his 
heirs, where the executors are, by the will, given power to make parti- 
tion and have not refused nor unreasonably delayed to exercise 
their power, (pp. 164, 165.) 

PAETITION. — Jurisdiction of the Court to Make Partition of 
the Projwrty of a Decedent, he having vested his executors with power 
to partition it, cannot be sustained on the ground that when the 
suit for partition was commenced, it could not be known whether the 
personal property would be sufficient to pay his debts and legacies. 
It will be no hardship to the heirs and devisees if they are compelled 
to delay partition until the expiration of the time allowed for filing 
claims in the probate court against the estate, (p. 165.) 

Rosenthal, Kurz & Hirschl, for the appellant. 

Mason & Wyman and Vincent D. Wyman, for the appel- 
lees. 

3*^0 FARMER, J. This was a suit for the partition of the 
real estate owned by Joseph Fischer at the time of his 
death. The bill alleges that said Joseph Fischer died tes- 
tate December 2, 1904; that he left no widow surviving him, 
but left as his children, Mary L. Zuttermeister, Herman H. 
Fischer, Oscar Fischer and Arthur Fischer, the last two 
named being minors; that George C. Fischer, a son of the 
testator, died before the death of .his father, leaving no 
childen, but leaving the complainant, Josephine Fischer, his 
widow. The will of Joseph Fischer, after directing the 
payment of his debts and a bequest of five hundred dollars 
to Sophie Butz, gave all the rest, residue and remainder of 
his estate, real, personal and mixed, to his children in 
equal parts, share and share alike. The will further pro- 
vided that if any child died before the death of the tes- 
tator, leaving no children but leaving a husband or wife, 
such surviving husband or wife should receive one-third of 
the share of such deceased child, the other two-thirds to be 
divided equally among the testator's surviving children. 
Appellant, as surviving wife of George C. Fischer, deceased, 
filed a bill for partition, claiming to be the owner of an 
undivided one-fifteenth of the real estate owned by the 
testator at the time of his death. The will was executed 
in March, 1901, and by it the testator appointed his tliree 
adult children, Mary L. Zuttermeister, George C. Fischer 

Am, St. Bep., Vol. 115—11 



162 American State Reports, Vol. 115. [Illinois, 

and Herman H. "®* Fischer, or the survivors of them, ex- 
ecutors. After naming them as such executors and direct- 
ing that they be allowed to qualify without giving bond, 
the will reads: "And I hereby give and grant to the said 
executors full power and authority to settle my estate in 
such manner as to them may seem best ; to compromise 
and compound all claims and demands in favor of or 
against my estate ; to give full discharges and acquittances ; 
to sell, convey, mortgage or partition any part or all of 
my estate for the purpose of settlement thereof, and to do 
all acts which they may deem necessary or advisable in the 
administration of my estate, without any order of court." 
The bill made Sophie Butz a defendant, and alleged that 
she falsely claimed and pretended to be the widow of 
Joseph Fischer, deceased; alleged she was not such widow; 
that she had never been married to Joseph Fischer, and 
asked that the court decree that she is not the widow of 
Joseph Fischer, and has no interest, as widow, in his estate. 
Sophie Butz answered complainant's bill and filed a cross- 
bill, by which she claimed to be the widow of Joseph 
Fischer, deceased, by virtue of a common-law marriage be- 
tween them. The executors and devisees of the will filed 
an answer admitting the material allegations of the bill, 
and averring that by virtue of the authority of the will em- 
powering the executors to make partition of the real estate 
of the testator without going into court, said executors did, 
on seventeenth day of May, 1905, by their deed of partition, 
convey and set off to the complainant, as and for her one- 
fifteenth share in the real estate of the testator, lot 14 in 
the bill described, subject to a trust deed in the nature of 
a mortgage to secure a note for the sum of nine hundred 
dollars. The answer avers that the said lot, subject to the 
encumbrance, was of the value of one-fifteenth part of all 
the real estate described in the bill. The cause was re- 
ferred to the master to take proof and report his conclu- 
sions. After hearing the evidence the master reported that 
the executors of the will of Joseph Fischer, deceased, acting 
within the powers vested in- them by said will, *** had 
partitioned and set off to the complainant, in fee simple, her 
full share and interest in the real estate of testator, and 
that she had no title or interest in any of the other real 
estate she sought to partition and was not entitled to any 



Dec. 1906.] Fischer v. Butz. 163 

relief prayed in her bill. He also found and reported 
against the claim of Sophie Butz made by her cross-bill, and 
recommended that both the original and cross-bills be dis- 
missed. A decree was entered in accordance with the 
recommendations of said report of the master, dismissing 
both the original and cross-bills. From that decree com- 
plainant in the original bill has prosecuted this appeal. No 
appeal was prosecuted by Sophie Butz, and the correctness 
of the decree in dismissing her cross-bill is not involved 
in this record. 

The question to be determined is, whether the power con- 
ferred by the will upon the executors to partition the land, 
and the partitioning and setting off to appellant by them 
of her share of the real estate, precluded her from main- 
taining a bill for partition. 

The will of Joseph Fischer was admitted to probate on 
the seventh day of January, 1905. Appellant filed her bill 
for partition April 18, 1905. The decree finds that the 
executors prepared a deed May 17, 1905, conveying to ap- 
pellant the premises partitioned and set off to her ; that said 
deed was acknowledged June 1, 1905, recorded June 2, 1905, 
and mailed to appellant August 21, 1905, and that appellant 
in due time notified the executors that she refused to accept 
the deed. 

That the will conferred power upon the executors to par- 
tition the real estate of the deceased is not disputed. Ap- 
pellant's contention is, that the power in the executors to 
make partition is merely authority to do so if they deem 
it advisable, and this power is subject to be defeated by a 
bill for partition being filed before the power is exercised. 
It is also urged that Sophie Butz claimed to be the widow 
of testator, and that this clouded the title to his real es- 
tate, and that this cloud could only be removed by a court 
of equity, and afforded ^**^ additional reasons why appel- 
lant's bill was proper and should have been sustained. 

"We are of opinion it was the intention of the testator 
that the power to partition his lands should be lodged in 
his executors at least for a reasonable time after his death. 
He is presumed to have known that, in the absence of re- 
strictions in his will to the contrary, his devisees, or any 
of them, would have had the right to invoke the aid of a 
court of chancery for partition, and whether he made the 



164 American State Reports, Vol. 115. [Illinois, 

duty to partition mandatory upon his executors or not, the 
fact that he gave them the power to do so, we think, shows 
his intention to have been that they should have had at 
least a reasonable time in which to exercise the power. It 
was said in Story v. Palmer, 46 N. J. Eq. 1, 18 Atl. 363: 
"The bill in this case was filed within a few months of 
the death of the testator. The estate is a very large one. 
The trustees need time for consideration, and it appears 
to me that before the bill was filed sufficient time was not 
allowed them to agree as to the execution of the trust. 
It is to be expected that trustees, especially where the estate 
is large, will have temporary disagreements as to the proper 
methods of executing the trust. Reasonable time must be 
allowed them to ascertain and consider the elements that 
should influence and control their judgment." 

The power to partition was a special trust and confi- 
dence reposed in his executors by the testator, and a court 
of equity will not take the execution of that trust out of 
their hands unless they have abused it or refused for an 
unreasonable time to execute it themselves. "A court of 
equity will examine into the conduct of a trustee in the 
execution of his discretionary powers, and will assume con- 
trol over the trustee's conduct, and, if need be, will take 
upon itself the execution of the trust. But the court will 
exercise this prerogative with great caution, and will not 
displace the trustee from exercising his functions unless, 
upon a consideration of the reasons and grounds upon 
which he has acted, ^^^ it appears that he has abused his 
trust and that his acts in the premises have not been 
within the limits of a sound and honest execution of the 
trust": Story v. Palmer, 46 N. J. Eq. 1, 18 Atl. 363. Of 
course, a court of equity would take upon itself the execu- 
tion of the trust if those charged with it by the will were 
fraudulently or unfairly dealing with the property to the 
detriment of the beneficial owners: Dickson v. New York 
Biscuit Co., 211 111. 468, 71 N. E. 1058 ; Story v. Palmer, 46 
N. J. Eq. 1, 18 Atl. 363 ; Perry on Trusts, sees. 510, 511. The 
bill in this case was filed four and one-half months after 
the death of the testator, and three and one-half months 
after the will was admitted to probate. No demand or re- 
quest was made upon the executors for partition before it 
was filed. Indeed, the exercise of some judgment and rea- 



Dec. 1906.] Fischer v. Butz. 165 

son able discretion upon the part of the executors would for- 
bid a partition and distribution of the real estate at so early 
a date after letters testamentary were issued, for it could 
not be known then certainly what the indebtedness of the 
estate w^as. It surely cannot be that whether the executors 
should be permitted to exercise the power and discharge 
the trust reposed in them by the testator would depend 
upon whether they could make the partition before one 
of the devisees could get a bill on file for that purpose. It 
is not pretended there was any fraud or unfairness in set- 
ting off to appellant her share of the land, or that what 
was set off to her was worth less than the value of her 
interest in the premises. The decree recites that appellant 
offered no evidence on this question, and finds, from the 
evidence offered by the executors, that the partition was 
a fair and honest one and that the land set off to her was 
her full share of the real estate. 

We do not think the pretense of Sophie Butz that she 
was the widow of Joseph Fischer by virtue of a common- 
law marriage w^ith him constituted sufficient grounds for 
taking from the executors the powers and duties conferred 
upon them by the will. The mere fear that some designing 
adventuress might seek to establish some fraudulent claim 
**** upon property would not authorize a court of equity, 
on appellant's motion, to assume the execution of the 
trust. And this is especially true under the facts in this 
case as found by the decree. The decree finds that at the 
time of the probate of the will, also at the time of the 
death of Joseph Fischer, and at a time about six months 
prior thereto, there were rumors in the neighborhood where 
he lived that he and Sophie Butz were married, and said 
claim by Sophie Butz became known to all the children of 
Joseph Fischer at the time his will was admitted to pro- 
bate. The decree further finds that at all times since the 
death of Joseph Fischer his executors and iieir at law Avere 
in possession of abundant evidence establishing the fact 
that said Sophie Butz was not married to and was not the 
widow of Joseph Fischer. Up to the time the bill in this 
case was filed by appellant, Sophie Butz had made no move 
to establish her claim. She made no resistance to the pro- 
ceeding when the will was admitted to probate, proof of 
heirship made and letters testamentary granted. 



166 American State Reports, Vol. 115. [Illinois, 

It is also urged by appellant that partition in equity was 
necessary because it could not be known when the bill was 
filed whether the personal property would be sufficient to 
pay the debts and legacies, and if the partition was made 
by the executors, it could not be known whether the lands 
were free from liability on account of indebtedness of the 
estate. It does not appear that any emergency existed for 
partition that required a court of equity to so far take 
charge of the administration of the estate as to determine, 
in advance of the time allowed by law for determination 
in the probate court, whether the personal estate was suffi- 
cient to pay the indebtedness, so that the partition might 
be made. It would not be the imposition of a hardship on 
a tenant in common if partition were delayed until the 
expiration of the time allowed by law for filing claims in 
the probate court against an estate. It is only then that it 
can be ascertained certainly what the liabilities of the 
estate are. 

386 ^g ^j.Q Qf opinion the filing of the bill by appellant 
did not defeat the power conferred upon the executors by 
the will, and that the superior court properly dismissed 
the bill. Said decree is therefore affirmed. 



Partition of the Estates of Decedents in connection with the distribu- 
tion thereof is considered in the note to Buckley v. Superior Court, 
41 Am. St. Eep. 140. 



ALDRICH V. PEOPLE. 

[224 111. 622, 79 N. E. 964.] 

ItABCENY — Goods Obtained by Trick. — If the owner of goods 
alleged to have been stolen parts with both the title and the posses- 
sion to the thief, not expecting the goods to be returned to the owner 
or to be disposed of according to his directions, neither the taking 
nor the conversion amounts to larceny, though the owner was induced 
to part with the title and possession through the fraud or mis- 
representation of the thief, (p. 168.) 

LARCENY. — If the Owner of Goods Parts with the Possession, 
but Betains the Title, expecting and intending that the goods shall 
be returned to him or disposed of in some particular manner agreed 
upon, the subsequent felonious conversion of the property by the 



Feb. 1906.] Aldrich v. People. 167 

alleged thief relates back and makes the taking and conversion lar- 
ceny, (p. 168.) 

LAECENY. — Every Larceny Includes a Trespass, (p. 168.) 

LABCENY of Property in Possession of Servant. — The fact 
that a servant in whose possession property is consents to its taking 
will not prevent the act being larceny, he having no authority to 
consent, and the wrongdoer being aware of that fact. (p. 169.) 

LARCENY. — The Asportation Necessary to Larceny May be 
Effected by an innocent human agency as well as by mechanical 
agency or by the offender's own hands, (p. 170.) 

LAECENY Effected by Shifting the Checks ota Baggage.— If 
a larceny is effected by shifting the checks on baggage which is in 
the hands of a transportation company, and thereby an agent of such 
company is allowed to further the criminal purpose by delivering the 
baggage to a person not entitled thereto, who receives and converts 
it to his own use, having in his own mind at all times the felonious in- 
tent to steal the property, he is guilty of larceny, (p. 171.) 

TRIAL — Construction of Instructions. — A charge to the jury 
that if they find that the accused or any other witness has willfully 
and corruptly testified falsely to any fact material to the issue, they 
have the right to entirely disregard his testimony, except in so far 
as it is corroborated by other evidence of facts and circumstances 
in evidence, is not susceptible of the construction that the jury may 
disregard the testimony of the defendant if some other witness has 
testified falsely, (pp. 171, 172.) 

Prosecution and conviction for larceny. In July, 1905, 
Miss Barr checked her trunk at Grand Haven, Michigan, 
for Chicago, and took passage on a steamship of the Good- 
rich Transportation Company. At Chicago, she gave the 
check for her trunk to a transportation company to be 
transferred to the Burlington depot and checked to Oak- 
land. California. On arriving at Oakland and giving her 
check to a transfer company, it brought a trunk to her 
which she at once discovered was not hers, although it had 
a check attached corresponding to the " one she had re- 
ceived in Chicago. The evidence tended to show that after 
Miss Barr passed through Chicago, a man appeared at the 
baggage-room of the Goodrich Transportation Company 
with two trunks, bought a ticket, and checked them to Mil- 
waukee. It was subsequently discovered that these trunks 
were very light and apparently empty and had had their 
locks broken. The defendant presented checks and de- 
manded the trunks. One of these was afterward identified 
as Mi.ss Barr's, and there was evidence tending to show that 
the defendant had secured possession of her trunk by hav- 
ing a duplicate of the check that was originally attached 
to the trunk delivered her in California. 



168 American State Reports, Vol. 115. [Illinois, 

Cantwell & Erbstein and Charles P. R. Macauley, for the 
plaintiff in error. 

W. H. Stead, attorney general, John J. Healey, state's 
attorney, John R. Newcomer and Howard 0. Sprogle, for 
the people. 

«2» VICKERS, J. 1. The court instructed the jury, as 
a matter of law, that if one obtains property from the owner 
or custodian' thereof by some sort of a trick or device, 
for the purpose of stealing and converting the same to his 
own use, he will be guilty of larceny. Error is assigned 
upon the giving of this instruction. The contention of 
plaintiff in error is, that if the property was obtained with 
the consent of the transportation company it would not 
amount to larceny, even though such consent was obtained 
by means of a trick or device and with the intention of 
stealing the same. 

It is an established rule of the common law relating to 
the offense of larceny that if the owner of the goods alleged 
to have been stolen parts with both the possession and the 
*** title of the goods to the alleged thief, not expecting the 
goods to be returned to the owner or to be disposed of in 
accordance with his directions, then neither the taking 
nor the conversion amounts to larceny; and this is true 
even where the owner is induced to part with the title and 
possession through the fraud and misrepresentation of the 
alleged thief. If, however, the owner merely parts with 
the possession and retains the title, expecting and intending 
that the goods shall be returned to him or disposed of in 
some particular riianner agreed upon, in such case the sub- 
sequent felonious conversion of the property by the alleged 
thief wnll relate back and make the taking and conversion 
a larceny : Welsh v. People, 17 111. 339 ; Stinson v. People, 
43 111. 397 ; Murphy v. People, 14 111. 528 ; Johnson v. People, 
113 111. 99 ; Quinn v. People, 123 111. 333, 15 N. E. 46 ; Doss 
V. People, 158 111. 660, 49 Am. St. Rep. 180, 41 N. E. 1093 ; 
Steward v. People, 173 111. 464, 64 Am. St. Rep. 133, 50 
N. E. 1056 ; Bergman v. People, 177 111. 244, 52 N. E. 363. 

The doctrine illustrated and applied in the above cases 
is based on the rule of the common law that every larceny 
includes a trespass, and since the alleged thief could not 
commit a trespass on property in his possession and re- 



Feb. 1906.] Aldrich v. People. 169 

specting which the owner had parted with the possession 
and title, such property could not be the subject of larceny 
by the fraudulent possessor. The above rule does not, in 
our opinion, have any application to the case at bar, for the 
reason that the Goodrich Transportation Company held the 
trunk and its contents merely as bailee of the rightful 
owner, of which plaintiff in error must, upon the theory of 
the prosecution, be presumed to have had notice, and there- 
fore such transportation company had no authority to 
consent to the title passing, with the possession, to plaintiff 
in error. But even if it could be held that the corporation 
could have given such consent by its proper officers, it cer- 
tainly cannot be said that the mere act of its servants in 
turning over the trunk to plaintiff in error upon the mis- 
taken supposition that he was entitled to the possession 
thereof, would amount to such a consent as is necessary to 
bring the case within the rule contended ^^"^ for by plain- 
tiff in error. In IMcClain on Criminal Law (volume 1, sec- 
tion 558) it is said: "The fact that the servant in whose 
possession the property is consents to its taking will not 
prevent the act being larceny, he having no authority to 
consent, and the wrongdoer being aware of that fact": State 
V. McCartey, 17 Minn. 76 ; People v. Griswold, 64 Mich. 722, 
31 N. W. 809 ; State v. Edwards, 36 j\Io. 394. It seems clear, 
on principle, that if property is obtained from an infant 
or an insane person, who is legally disqualified from giving 
consent, with the felonious intent to steal the same, such 
consent could not be availed of as a defense to a charge of 
larceny. The same principle ought to apply to bailees, 
whose interest in the property is known to the alleged thief. 
In our opinion the case at bar is not controlled by the 
principle contended for bj' the plaintiff in error. The case 
comes within the rule laid down in Commonwealth v. Barry, 
125 Mass. 390. This case, in all of its essential facts, is like 
the case at bar. The charge was for the larceny of a trunk, 
and the offense was committed by the shifting of checks, as 
is alleged in the case at bar. In disposing of the case the 
court said: "It does not appear that the question whether 
there was an asportation at or before the changing of the 
checks was raised at the trial. An asportation at that pre- 
cise time was unimportant. The real question was whether 
the defendant then, feloniously and with an intent to steal. 



170 American State Reports, Vol. 115. [Illinois, 

set in motion an innocent agency by which the trunk and its 
contents were to be removed from the possession of the 
true owner and into the defendant's possession, and by 

means of such agency effected the purpose There is 

no occasion that the carrying away be by the hand of the 
party accused, for if he procured an innocent agent to take 
the property, by means of which he became possessed of it, 
he will himself be the principal offender: 3 Chitty on 
Criminal Law, 925. It is held to be larcenj^ if a person in- 
tending to steal my horse take out a replevin and thereby 
have the horse delivered to him by the sheriff, or if one 
intending to rifle ®^* my goods get possession from the 
sheriff by virtue of a judgment obtained without any the 
least color or title, upon false affidavits, etc., in which cases 
the making use of legal process is so far from extenuating 
that it highly aggravates the offense by the abuse put on 
the law in making it serve the purposes of oppression and 
injustice": 1 Hawkin's Pleas of the Crown, 333, par. 12; 
1 Hale's Pleas of the Crown, 507. 

It will thus be seen that an asportation may be effected 
by means of innocent human agency as well as mechanical 
agency, or by the offender's own hands. One may effect an 
asportation of personal property so as to be guilty of lar- 
ceny by attaching a gas-pipe to the pipes of the company 
and thus draw the gas into his house and consuming it 
without its passing through the meter: Clark & Marshall 
on Law of Crimes, 446, and cases cited in note; Woods v. 
People, 222 111. 293, 113 Am. St. Rep. 415, 78 N. E. 607. 
From these cases the law appears to be well settled that 
where, with the intent to steal, the wrongdoer employs or 
sets in motion any agency, either animate or inanimate, 
with the design of effecting a transfer of the possession of 
the goods of another to him in order that he may feloni- 
ously , convert and steal them, the larceny will be complete, 
if, in pursuance of such agency, the goods come into the 
hands of the thief and he feloniously converts them to 
his own use, and in such case a conviction may be had upon 
a common-law indictment charging a felonious taking and 
carrying away of such goods. If in the case at bar the 
accused shifted the checks on the trunks, by means of which 
the servants of the transportation company were innocently 
led to further the criminal purpose by delivering the trunk 



Feb. 1906.] Aldrich v. People. 171 

in question to the accused, who received and converted the 
same to his own use. and if there was in the mind of the 
plaintiff in error a felonious intent to steal this property 
pervading the entire scheme and attending every step of 
it, then he is guilty of larceny, and the instruction under 
consideration, as applied to such a state of facts, is a cor- 
rect statement of the law, and there was no error in giving 
it to the jury. 

®^ 2. Instruction No. 2 given on behalf of the people 
contains the same principle of law as No. 1, and the objec- 
tions thereto are disposed of by the foregoing discussion of 
the first instruction. 

Instruction No. 3 relates to the count in the indictment 
charging plaintiff in error with receiving stolen property. 
Since the jury acquitted plaintiff in error of this charge we 
need not consider the exception to this instruction. 

3. Instruction No. 7 given for the people is also excepted 
to. That instruction is as follows: "The court instructs 
the jury, as a matter of law, that in this state the accused 
is permitted to testify in his own behalf; that when he does 
so testify he at once becomes the same as any other wit- 
ness, and his credibility is to be tested by and subjected 
to the same tests as are legally applied to any other wit- 
ness; and in determining the degree of credibility that shall 
be accorded to his testimony, the jury have a right to take 
into consideration the fact that he is interested in the re- 
sult of this prosecution, as well as his demeanor and con- 
duct upon the witness-stand; and the jury are also to take 
into consideration the fact, if such is the fact, that he has 
been contradicted by other credible witnesses. And the 
court further instructs the jury that if, after considering all 
the evidence in this case, they find that the accused or any 
other witness has willfully and corruptly testified falsely to 
any fact material to the issue in this case, they have the 
right to entirely disregard his testimony, excepting in so 
far as his testimony is corroborated by other evidence or 
facts and circumstances in evidence." 

The objection to this instruction, as stated by plaintiff 
in error in his brief is, that it is erroneous in informing 
the jury that if they found that any witness had committed 
perjury they had a right to disregard the testimony of the 
defendant. This argument is based on the assumption that 



172 American State Reports, Vol. 115. [Illinois. 

the pronoun "his," in the third line from the bottom of the 
instruction, refers to the defendants only, and not to the 
^® defendant "or any other witness." This construction 
is as illogical as it is ungrammatical. The language of the 
instruction does not mean that the jury should disregard 
the defendant's testimony if some other witness had will- 
fully and corruptly testified falsely to some material fact 
in issue, and we cannot believe that anyone with intelli- 
gence enough to serve on a jury would understand the in- 
struction as announcing a rule so unreasonable and absurd. 
Other objections to the instructions given, as well as the 
exceptions to the refusal of the court to give some and to 
the modification of other of the instructions of plaintiff in 
error, have all received our careful consideration, and we 
have reached the conclusion that no error exists for which 
the judgment below should be reversed. Accordingly, the 
judgment below should be and is affirmed. 



For Authorities bearing upon the principal case, see the note to 
People V. Miller, 88 Am. St. Eep. 559, on larceny. 



CASES 

IN THE 

SUPREME COUKT 



OP 



KANSAS. 



CLARK V. TORONTO BANK. 

[72 Kan. 1, 82 Pac. 582.] 

BANKS AND BANKING — Unaccepted Checks as Assignment 
of Deposit. — An unaccepted cheek or draft in the usual form does not, 
in the absence of exceptional circumstances, amount to an assign- 
ment, in law or equity, of any part of the drawer's deposit in bank, 
(p. 175.) 

S. C. Holmes, for the plaintiff in error. 

"W. S. Marlin, for the defendants in error. 

» MASON, J. B. B. Clark, a resident of Iowa, sold 
some cattle in Woodson county, Kansas, through an agent, 
who accepted in payment a check drawn on the Toronto 
Bank, in that county. The agent presented the check at 
the bank, and upon his request was given in payment a 
draft payable to the order of his principal, drawn by the 
Toronto Bank upon a Kansas City bank against a fund 
then on deposit there to its credit. Shortly afterward 
the Toronto Bank was closed by the bank commissioner, 
and in due course of time a receiver was appointed. The 
draft was presented for payment to the Kansas City bank, 
which, having notice of the failure of the issuing bank, 
refused for that reason to pay it. Clark, the holder of the 
draft, brought an action against the receiver, asserting the 
right to recover from him the full amount of the draft 
irrespective of the amount the failed bank might be able 
to pay its general creditors. He was denied relief and now 
prosecutes error. 

(173) 



174 American State Reports, Vol. 115. [Kansas, 

In the petition an attempt was made to give the trans- 
action described the color of a special deposit, or a con- 
tract for the transferring of a fund in specie from Toronto 
to the plaintiff's home in Iowa. As clearly appears from 
the statement made, however, the facts will not bear that 
construction. The transaction was the ordinary one of the 
purchase of a draft for convenience in the remitting of 
money, and the giving to it of a different name cannot alter 
its essential character. In a stipulation regarding the facts 
upon which, together with the plaintiff's evidence, the case 
was submitted, it was stated that the plaintiff was at no 
time a creditor of the failed bank, but this statement can- 
not overcome the effect of the specific facts admitted and 
shown, if inconsistent with them. It must be interpreted as 
meaning either that the ^ plaintiff was not a creditor of 
the bank, except so far as that relation was created by the 
facts already recited in detail, or as a mere conclusion of 
law, to be disregarded by the court if found to be incor- 
rect. 

An effort is also, made to build up a right to have the 
money paid by plaintiff to the Toronto Bank treated as a 
trust fund, upon the theory that it was a deposit unlaw- 
fully received by the officers of the bank while it was in- 
solvent and while they knew of its insolvency. If the facts 
in this case are otherwise sufficient to bring it within the 
principle invoked, they fall short in this: It is shown that 
the bank was insolvent when the draft was purchased, but 
not that the officers were cognizant of the fact; and there 
is an entire failure of any showing that the money paid 
for the draft ever reached the hands of the receiver or 
that the assets in his hands were increased in any way by 
the transaction. 

The plaintiff's action must, therefore, fail unless it can 
be said that the issuance of the draft operated to transfer 
to him the equitable title to so much of the money of the 
Toronto Bank then on deposit in the Kansas City bank as 
it called for, in which case the receiver, who succeeded 
only to the rights of the failed bank and was entitled only 
to its assets, could have no valid claim upon that portion 
of the deposit. This theory has received the support of 
a number of courts and is the settled law in several of the 
states. It is adopted by Mr. Daniel in his work on Nego- 



Oct. 1905.] Clark v. Toronto Bank. 175 

tiable Instruments (volume 2, fifth edition, section 1643). 
Nevertheless, the great weight of authority is to the effect 
that an unaccepted cheek or draft in the usual form does 
not, in the absence of exceptional circumstances, amount to 
an assignment, in law or equity, of any part of the drawer's 
deposit : 5 Cyc. 536 ; 2 Am. & Eng. Ency. of Law, 1064 ; 4 
Century Digest, cc. 1247-1250. This rule has frequently 
been enforced in controversies between the holder of a 
draft and the assignee or receiver of its insolvent drawer: 
Fourth Street Bank v. Yardley, 165 * U. S. 634, 17 Sup. 
Ct. Rep. 439, 41 L. ed. 855 ; Covert v. Rhodes, 48 Ohio St. 
66, 27 N. E. 94, and cases cited ; Attorney General v. Conti- 
nental Life Ins. Co., 71 N. Y. 325, 27 Am. Rep. 55 ; Akin v. 
Jones, 93 Tenn. 353, 42 Am. St. Rep. 921, 27 S. W. 669, 25 
L. R. A. 523; Harrison v. Wright, 100 Ind. 515, 58 Am. 
Rep. 805; Guthrie Nat. Bank v. Gill, 6 Okla. 560, 54 Pac. 
434; Reviere v. Chambliss, 120 Ga. 714, 48 S. E. 122. It 
has the sanction of so great a preponderance of the au- 
thorities that we have no hesitation in accepting it. 

A uniformity of decision in different jurisdictions upon 
matters of commercial usage is especially to be desired, 
and the question here presented, being of that character, 
affords a strong argument in favor of a solution that shall 
be in harmony with the generally prevailing doctrine. It 
may be added that since this action arose the rule referred 
to has been incorporated in the Kansas statute, being found 
in section 196 of the negotiable instruments act (Laws 1905, 
e. 310). The general adoption of substantially the same 
act, in pursuance of an organized effort to secure uniformity 
upon the subject, may finally make the rule of universal 
application. 

No exceptional circumstances being shown in this case, 
it falls within the operation of the principle stated, and 
the plaintiff cannot recover. The judgment is affirmed. 

All the justices concurring. 



Banking — Checks as Assignments. — The Authorities are at variance 
on the question whether a check operates as an assignment of the 
money for which it is drawn: See Pullen v. Placer County Bank. 
138 Cal. 169, 94 Am. St. Rep. 19, and cases cited in the cross-refer- 
ence note thereto; Turner v. Hot Springs Nat. Bank, 18 S. Dak. 
498, 112 Am. St. Rep. 804; Loan and Sav. Bank v. Tarmers' etc. Bank, 
74 8. C. 210, 114 Am. St, Rep. 991. 



176 American State Reports, Vol. 115. [Kansas, 



INTERSTATE NATIONAL BANK v. RINGO. 
[72 Kan. 116, 83 Pac. 119.] 

PAYMENT by Check. — The mere delivery and acceptance of 
a check is not payment nor evidence of payment, (p. 181.) 

PAYMENT. — Credits Made Upon Books of Account can have 
no greater effect as evidence of payment than receipts given ac- 
knowledging payment, and the latter, when exchanged for checks, 
do not show that absolute payment was intended, (p. 182.) 

BANKS AND BANKINO— Payment by Check.— If a bank hold- 
ing a note for collection delivers it to an indorser on the day of ma- 
turity in exchange for such indorser 's check on another bank, and 
after inquiring by telephone of the drawee bank about the check, 
and being informed, through mistake, that it would be paid, enters 
the amount to the credit of the owner of the note, and on the next 
day payment of the check, which was at no time good, is refused for 
w^ant of funds, and the collecting bank delivers it to the drawer, 
and immediately recovers possession of the note, these transactions 
do not constitute payment of the note. (p. 182.) 

BANKS AND BANKING — Note Held for Collection —Ac- 
ceptance of Worthless Check — Liability of Bank. — If a bank, holding 
a note for collection, surrenders it to the maker in exchange for his 
worthless check upon another bank, and upon the dishonor of such 
check regains possession of the note as a subsisting obligation against 
all persons in interest, with no actual prejudice to the owner of the 
note from the transaction, which takes place after banking hours 
of one day and before their opening on the next day, no liability is 
created against the collecting bank in favor of the owner of the note, 
(pp. 184, 185.) 

BANKS AND BANKING— Collections— Provisional Credit.— 
If a note or draft is sent by one individual or bank to another bank 
to collect, and to remit the proceeds to the sender, the relation of 
principal and agent is created, and not that of creditor and debtor, 
and having received the note or draft for collection, the collecting 
bank does not owe the amount thereof to the sender until collected, 
and though it may credit him in its books therefor, such credit may be 
treated as provisional, and if the paper is afterward dishonored, it 
may cancel the credit, (p. 186.) 

BANKS AND BANKING — Collections — Erroneous Credit to 
Owner of Note — Liability of Bank. — If a bank holding a note for col- 
lection surrenders it to the maker in exchange for his worthless 
check on another bank, and upon the dishonor of such check imme- 
diately regains possession of the note as a subsisting obligation against 
all interested parties, no liability arises against the collecting bank 
in favor of the owner of the note from the facts that upon being 
orally promised payment by mistake on the part of the bank on which 
such check is drawn, it gives such owner credit for the amount, mails 
him a statement to that effect, adding that the credit is subject 
to collection, and gives him notice of the dishonor of the check 
early in the morning of the next day after the credit is extended, 
(p. 187.) 



Nov. 1905.] Interstate Nat. Bank v. Ringo. 177 

C. F. and S. D. Hutchings, MeFadden & Morris and W. 
R. Smith, for the plaintiff in error. 

S. D. Bishop, A. C. Mitchell, I. N. Watson and E. C. Mes- 
ervey, for the defendants in error. 

**'' MASON, J. Ringo & Askew, residing in Oklahoma, 
gave their note for $10,209.63 to Ladd, Penny & Swazey, 
commission merchants, of Kansas City, due without grace 
June 14, 1900, secured by a mortgage on cattle, which was 
duly filed for record. The payees sold the note to the 
Watkins National Bank of Lawrence, which sent it for 
collection to the Interstate National Bank at Kansas City 
a few days before its maturity. To meet this note the 
makers, on June 5, 1900, executed a new note, and a mort- 
gage on the same cattle securing it, and sent it to Ladd, 
Penny & Swazey with directions to sell it and use the pro- 
ceeds to pay the first note. Ladd, Penny & Swazey indorsed 
the note to the Union Brokerage Company to find a buyer 
for it. The Union Brokerage Company sold the note to the 
Boatmen's Bank of St. Louis, which paid for it by giving 
the brokerage company credit for the amount. The Union 
Brokerage Company paid Ladd, Penny & Swazey for the 
note by giving them its check on the Merchants' Bank of 
Kansas City. Ladd, Penny & Swazey had at the time issued 
cheeks on the Merchants' Bank which exceeded the amount 
of their deposit by $11,393.92. To provide for the pay- 
ment of these cheeks, upon receiving notice from the bank 
that they had been presented and would not be paid un- 
less such provision were made, they, on June 13th, depos- 
ited the check given them by the Union Brokerage Com- 
pany for the Ringo & Askew note, and the checks were 
paid by reason of this deposit. The deposit was made in 
the Interstate National Bank to the credit of the Merchants' 
Bank, in **® accordance with an existing arrangement be- 
tween the banks and Ladd, Penny & Swazey. 

In the afternoon of June 14th the collector of the Inter- 
state National Bank, as was his custom, took the note 
which had been sent to it for collection by the "Watkins 
bank, carried it to the office of Ladd, Penny & Swazey, and 
left it there, going on with other business. Later in the 
afternoon he returned to the office and took from a basket, 
Am. St. Rep., Vol. 115—12 



178 American State Reports, Vol. 115. [Kansas, 

where it had been left for him, a check drawn by Ladd, 
Penny & Swazey on the Merchants' Bank, payable to the 
Interstate bank, for the amount of the note. There was no 
conversation on the occasion of either visit. The collector 
took the check to the Interstate bank, letting the note and 
mortgage remain with Ladd, Penny & Swazey. 

Previous to this time (and the arrangement still sub- 
sisted) the Merchants' Bank had authorized the Interstate 
bank to pay and charge to its account any checks drawn 
by Ladd, Penny & Swazey upon the Merchants' Bank that 
were stamped "Interstate National Bank" under or across 
the words "Merchants' Bank." Where a check drawn by 
this firm upon the Merchants' Bank but not bearing the 
stamp "Interstate National Bank" was presented at the 
latter bank, it was the custom to call up the Merchants' 
Bank by telephone, ask instructions, and be governed by 
the reply. 

The check under consideration bore no such stamp. "When 
it was delivered by the collector to the teller of the Inter- 
state bank a little after 3 o'clock he called up the INIer- 
chants' Bank and inquired if it was good. The officer of 
the Merchants' Bank who responded to the inquiry under- 
stood that another check was referred to — one for a smaller 
amount given by Ladd, Penny & Swazey to a different 
payee — and answered that it was good and that his bank 
would pay it. Relying upon this assurance the Interstate 
bank credited ^^^ the Watkins bank with the amount of 
the check and mailed to it a postal card reading as fol- 
lows: 

"J. D. Robertson, Prest. 

"Lee Clark, V.-prest. Wm. C. Henrici, Cash. 

"THE INTERSTATE NATIONAL BANK. 

"Stock-yards Station, Kansas City, Kan. 

"June 14, 1900. 

"Yours of received with enclosures as stated. 

Due diligence will be observed in the selection of banks or 
agents for the collection of all papers out of the city, but 
this bank will not be responsible for the failure or negli- 
gence of such bankers or agents. All items credited sub- 
ject to payment. 

- "Credited: Entered for collection: 

"No. 16,513. $10,209.63. T7. N. Bank, June 15, 1900." 



Nov. 1905.] Interstate Nat. Bank v. Ringo. 179 

It also mailed the check to the Merchants' Bank for col- 
lection and credit. The Merchants' Bank, about two hours 
after the conversation related, discovered its mistake and 
attempted to reach the Interstate bank by telephone, but 
was unable to do so. At half-past 8 the next morning, 
however, it did so, explained the misunderstanding of the 
day before, said that Ladd, Penny & Swazey had no funds 
to meet the check, and asked in substance to be relieved of 
any liability resulting from its former statement. The In- 
terstate bank answered in effect that it had surrendered the 
note for which the check was given and which it had held 
for collection, and that it could not release the Merchants' 
Bank, but that it would do what it could to assist it and for 
that purpose would talk with the Watkins bank. It ac- 
cordingly at once called up that bank by telephone, stated 
that the notice of credit of ^ the day before had been sent 
by mistake, that a check which had been given for the note 
had not been paid, and asked instructions. Later in the 
day the "Watkins bank directed the protest of the note, with- 
out having been informed, however, of the details of the 
transactions of the previous day or of the connection of 
the Merchants' Bank with the matter. 

The Merchants' Bank, on the morning of the 15th, re- 
fused payment of the check and returned it to the *^® Inter- 
state bank, which on the same morning, between 9 and 10 
o'clock, sent it to Ladd, Penny & Swazey and exchanged it 
for the Ringo & Askew note and mortgage. The note was 
then formally protested. The Merchants' Bank, during all 
of this time, carried a deposit of some $25,000 with the In- 
terstate bank. At some time — the exact date does not seem 
to be shown and is not important — the Interstate bank 
charged the amount of the check against this deposit. On 
June 16th the Watkins bank, having learned all the cir- 
cumstances of the case, notified the Interstate bank that it 
refused to permit the credit given it to be set aside, and 
A'ould insist upon the payment of the amount. On June 
18th the Interstate bank replied stating that while it had 
originally credited the Watkins bank with the amount, and 
charged it to the Merchants' Bank, it had now charged it 
to the Watkins bank and placed it in the form of a cashier's 
check, and was so holding it pending a settlement of the 
matter. About a month later the Interstate bank paid the 



180 American State Reports, Vol. 115. [Kansas, 

money to the Merchants* Bank, upon the execution of a 
bond indemnifying it against the claim of the Watkins 
bank. 

After 3 o'clock in the afternoon on June 14th Ladd, 
Penny & Swazey took notes of the face value of $28,000 
to the Merchants' Bank and asked it to accept them as col- 
lateral security for all overdrafts, notes and bills of ex- 
change, and to agree to pay all their checks that had been 
written that day. This the bank refused to do, the officers 
conducting the negotiations saying that they would have 
to take the matter up with the other directors. The col- 
lateral offered was left with the bank and was never re- 
turned to Ladd, Penny & Swazey. 

On the morning of June 15th the Union Brokerage Com- 
pany saw the note and mortgage in the office of Ladd, 
Penny & Swazey, in their custody and under their control. 

Ringo & Askew brought a Suit against all persons inter- 
ested asking that their first note be canceled, upon the 
theory that it had been paid. Issues were framed *** be- 
tween the various parties, findings were made embodying 
substantially the facts already stated, from which the court 
concluded that the note had been paid, and a judgment 
was rendered decreeing the cancellation of the note, order- 
ing the Interstate bank to pay its amount to the Watkins 
bank, declaring that the note held by the Boatmen's Bank 
was a first lien upon the mortgaged cattle, and holding 
that the question of the liability of the Merchants' Bank 
to the Interstate bank was not raised by the pleadings. 
The Interstate bank prosecutes error. 

In support of the judgment rendered it is argued that, 
inasmuch as the check given by the Union Brokerage Com- 
pany to Ladd, Penny & Swazey really belonged to Ringo & 
Askew, it could not, under the circumstances of this case, 
be diverted from its true ownership, but after its deposit in 
the Merchants' Bank constituted a trust fund for the pur- 
pose for which it was intended, namely, the payment of 
the first Ringo & Askew note. The cases of Cady v. South 
Omaha Nat. Bank, 46 Neb. 756, 65 N. W. 906, 49 Neb. 125, 
68 N. W. 358, and Davis v. Panhandle Nat. Bank (Tex. Civ. 
App.), 29 S. W. 926, are the strongest ones cited to sus- 
tain this contention. Whether the doctrine they announce 
would apply to the facts here presented need not be de« 



i 



Nov. 1905.] Interstate Nat. Bank v. Ringo. 181 

termined, for this court has already refused to follow them : 
Kimmel v. Bean, 68 Kan. 598, 104 Am. St. Rep. 415, 75 
Pac. 1118, 64 L. R. A. 785. Upon the authority of that case 
and Martin v. Kansas Nat. Bank, 66 Kan. 655, 72 Pac. 218, 
it must be held that the proceeds of this check became the 
absolute property of the Merchants' Bank, and the situa- 
tion *^^ presented is no different from what it would have 
been if Ladd, Penny & Swazey had spent the money which 
belonged to Ringo & Askew for any other purpose of their 
own, instead of using it, as they happened to do, to pro- 
vide for the payment of checks issued by them upon the 
Merchants' Bank. As was said in the syllabus of Martin 
V. Kansas Nat. Bank, 66 Kan. 655, 72 Pac. 818: "A bank 
cannot be held to account to the owner of a fimd where 
such fund has been deposited by an agent in his own name 
and paid out upon his check without knowledge by the 
bank of any want of power on the part of the agent." 

The two principal questions involved are: 1. Do the cir- 
cumstances narrated show a payment of the Ringo & Askew 
note so as to discharge the makers from liability upon it? 
2. Was the conduct of the Interstate National Bank such 
as to establish a liability against it in favor of the Watkins 
National Bank? 

The inquiry whether the note was paid may perhaps be 
simplified by a consideration of the effect of the successive 
steps in the transaction. The mere delivery and acceptance 
of the check of course did not constitute a pajonent and were 
no evidence of a payment : 22 Am. & Eng. Ency. of Law, 569, 
par. 13. The surrender of the note (if it is to be considered as 
having been surrendered) did not affect the matter one way 
or the other: 22 Am. & Eng. Ency. of Law, 572, d. If the 
Interstate bank had been the owner of the note, and upon 
receiving the check had made entries upon its books as 
though a payment had been made, this likewise would have 
been immaterial, for such entries would be interpreted in 
the event of the nonpayment of the check as evidencing 
conditional payment only: Cheltenham Stone etc. Co. v. 
Gates Iron Works, 124 111. 623, 16 N. E. 923; Turner v. 
Bank of Fox Lake, 3 Keyes (N. Y.), 425. Credits made 
upon books of account can have no greater effect in this 
connection than receipts given acknowledging payment, and 
these, where exchanged *^* for checks, do not sliow that 



182 American State Reports, Vol. 115. [Kansas, 

absolute payment was intended: 22 Am. & Eng. Ency. of 
Law, 572, e. The fact that the Interstate bank held the note 
for collection and credited the proceeds to the Watkins bank 
does not call for a different rule in interpreting the entry of 
such credit. Whatever effect it may have had upon the rela- 
tions of the Interstate bank and the Watkins bank, it was as 
to the makers of the note merely evidence of a conditional 
payment. 

If, then, the note was ever paid so as to protect Ringo 
& Askew, this condition must have resulted from the trans- 
actions between the Interstate bank and the Merchants' 
Bank. In this connection it is important to notice that in 
the telephone conversation between these banks on June 
14th the Merchants' Bank did not authorize the Interstate 
bank to pay the check out of the funds of the Merchants' 
Bank then on deposit in the Interstate bank. If that au- 
thority had been given and acted upon the situation would 
have been the same as though the check had been presented* 
at the counter of the Merchants' Bank and there accepted 
for the credit of the holder. In such a case, according to 
the prevailing doctrine, the check would ordinarily have 
been deemed paid, whatever might have been the condition 
of the account of the drawer, upon the principle that in 
such circumstances the bank is bound to know of the state 
of its depositor's account, and cannot be relieved from the 
effect of any mistake it may make in that regard, and that 
the entry of the credit closes the transaction: 2 Morse on 
Banks and Banking, 4th ed., sec. 569 ; 2 Daniel on Nego- 
tiable Instruments, 5th ed., sees. 1621, 1622; 5 Am. & Eng. 
Ency. of Law, 1058. And if the check had been paid, of 
course this would have operated to change the conditional 
payment of the note into an absolute payment. But what 
the ^Merchants' Bank in fact did was merely to say that 
the check was good and to promise to pay it. This was 
no more than an oral acceptance or certification of the 
check, and was not binding by ^^^ reason of section 547 of 
the General Statutes of 1901, which reads: "No person with- 
in this state shall be charged as an acceptor of a bill of 
exchange, unless his acceptance shall be in writing, signed 
by himself or his lawful agent." 

A bank check is held to be a bill of exchange within the 
meaning of this section: Eakin v. Bank, 67 Kan. 338, 72 



Nov. 1905.] Interstate Nat. Bank v. Ringo. 183 

Pac. 874. It does not appear that the Interstate bank 
charged the check to the account of the Merchants' Bank 
on the 14th — the day it was given — for on that day it was 
mailed to the latter bank for collection and credit. Such 
an entry upon the books of the Interstate bank, however, 
would have been unimportant, for it would have been made 
without authority. The matter is not affected by the con- 
sideration that the Interstate bank afterward attempted 
to hold the Merchants' Bank liable for the payment of 
the check, and accordingly made an entry upon its books 
showing a deduction of the amount from the deposit ac- 
count of the Merchants' Bank. The assertion by the Inter- 
state bank of a claim against the Merchants' Bank which 
could not be maintained did not operate by estoppel or 
otherwise to prevent its standing upon any legal right it 
might have against Ringo & Askew. It follows that the 
trial court erred in concluding that the facts found showed 
that the Ringo & Askew note had actually been paid. As 
the note until paid* was secured by a lien upon the cattle, 
it was likewise error to hold that the mortgage accompany- 
ing the note held by the Boatmen's Bank was a first lien. 

To sustain the trial court in holding the Interstate bank 
liable to the Watkins bank the defendants in error invoke 
the doctrine that a collecting agent who surrenders the 
note of his principal in exchange for the check of the 
maker thereby assumes the risk of its payment. The plain- 
tiff in error denies the doctrine, and contends that the col- 
lecting agent is protected from liability in pursuing such 
course by the fact that ^^'^ it is in accordance with a cus- 
tom of bankers and business men of which the courts must 
take notice. Of this contention it is said in Daniel on 
Negotiable Instruments (volume 2, fifth edition, section 
1625) : "While it may be, and as a general rule luidoubt- 
edly is, the practice of creditors, in mercantile communities, 
to teke checks in the collection of debts, and frequently 
to surrender other instruments on receiving them, such 
a practice, on the part of the principal, falls far short of 
a usage which would permit the agent to do likewise": 
See, also, 5 Cyc. 505, 506 ; 3 Am. & Eng. Ency. of Law, 804. 

Assuming, but not deciding, that ordinarily where a bank 
holding a note for collection in surrendering it to the maker 
in exchange for his check upon another bank thereby makes 



184 American State Reports, Vol. 115, [Kansas, 

itself liable to the owner of the note for the amount, would 
not this ease be taken out of the rule by the fact that the 
Interstate bank regained possession of the note under the 
circumstances already stated? In Daniel on Negotiable 
Instruments (volume 2, fifth edition, section 1625), it is 
said: "In the United States it is quite certain that a banker 
or other agent, holding a bill or note for collection, would 
act at his peril in delivering it up on receipt of a check 
for the amount; and that if the debtor did not pay the 
amount in money, and the drawer or indorsers were not 
duly notified, they would be discharged, and the loss would 
fall upon the collecting agent. If, indeed, on the same 
day that the bill or note was due the agent received a 
check for the amount and delivered up the bill or note, 
but on presentment of the check at the bank, and refusal 
of payment that very day, it had been returned, the bill 
or note reclaimed and protested, and the drawer or in- 
dorsers duly notified, then no right would be forfeited, but 
the liability of all preserved. But if the agent neglected 
to present the check until the next day, it would then be 
too late to preserve recourse against the drawer, if a for- 
eign bill, by making protest; and if in the meantime the 
bank had failed, the loss would fall upon the agent." 

This language makes plain the theory upon which *^^ the 
rule referred to is based, which is that the collecting agent 
who assumes without authority to pursue a course that 
results in releasing a part of the security of the note, thus 
rendering it less valuable than it was before, is justly held 
to become at once liable to the owner for the full amount, 
perhaps irrespective of any question of actual or probable 
final loss. There is at least plausible ground for the argu- 
ment that until the note is paid its owner is entitled to its 
possession and to all the incidental rights attached to it, 
and, therefore, an agent who fails to return either the 
very thing intrusted to him, or its equivalent in money, 
the only thing he is authorized to accept for it, should not 
be permitted to haggle about the extent of the resulting 
injury, but should be compelled to respond at once to his 
principal for the amoimt of the note and to look for his 
own reimbursement to whatever rights he has succeeded 
in retaining against the maker. But when the note is re- 
covered without its vitality or security having been in any 



Nov. 1905.] Interstate Nat. Bank v. Ringo. 185 

way impaired, no reason is apparent why the agent should 
be liable at all, unless to the extent of any actual loss that 
might have been occasioned by his act. Therefore, as sug- 
gested by Mr. Daniel, a recovery of the note by the collect- 
ing agent upon the very day of its surrender to the maker 
retrieves any wrong thereby done to the owner. But mani- 
festly the only importance of the two acts being done on 
the same calendar day arises from the necessity under or- 
dinary circumstances of the note being protested on the 
day of its presentation in order to hold the indorsers. 

In the present case there was no indorsement upon the 
note except that of Ladd, Penny & Swazey, who were hard- 
ly in a position to assert a right to notice of its dishonor. 
Moreover, the note bore upon its face a waiver by the mak- 
ers and indorsers of both protest and notice of nonpay- 
ment. Therefore, the fact that the Interstate bank did not 
recall the note from Ladd, Penny & Swazey on the day 
upon which it was delivered ^^"^ to them is not controlling 
here. The leaving of the note at the office of Ladd, Penny 
& Swazey by the collector was clearly only provisional, as 
well after he had obtained the check as before. The Inter- 
state bank could not upon any theory be considered as 
having surrendered the note until it had made inquiry of 
the Merchants' Bank about the check. This was after 
banking hours on June 14th. The knowledge that the 
check was worthless was imparted to it before the begin- 
ning of banking hours on the next day, and it at once acted- 
upon the information. So far as the mere lapse of time 
was concerned, the interval was more signficant than if 
these acts had all been done upon the same day, and no 
just cause appears for giving them any different effect 
than would have resulted had the Merchants' Bank suc- 
ceeded in reaching the Interstate bank by telephone at the 
time it attempted to do so on June 14th for the purpose of 
correcting the mistake which it then suspected had oc- 
curred. 

We do not understand that it is claimed, and it certainly 
cannot successfully be maintained, that the mere physical 
exchange of a note held for collection for a check can at 
once fix a liability upon the collecting agent, irrespective 
of all considerations of the subsequent conduct of the par- 
ties. If after such an exchange the agent, before the maker 



186 American State Reports, Vol. 115. [Kansas, 

of the note left his presence, should become so far doubt- 
ful of the sufficiency of the check as to insist upon and ob- 
tain a retransfer of the note, this would clearly reinstate 
the precise situation that existed before any surrender of 
the note was made. In the present case if, when the Inter- 
state bank first called up the Merchants' Bank, it had been 
told that the check was worthless and had then reclaimed 
the note, probably no contention would have been made 
that it had incurred any liability. This is for all practical 
purposes just what was done, so far as the mere matter of 
time was concerned — for the delay was really insignificant. 
We are, therefore, of the opinion that the recaption of the 
note was accomplished *** under such circumstances as to 
relieve the Interstate bank of liability, unless the matter 
is affected by its entry upon its books of a credit to the 
Watkins bank, and by its subsequent dealings with that 
bank and the Merchants' Bank. 

We cannot regard this entry of credit upon the books of 
the Interstate bank as any more determinative of its re- 
lations with the Watkins bank than of the question of the 
payment of the note. In Midland Nat. Bank v. Brightwell, 
148 Mo. 358, 71 Am. St. Rep. 608, 49 S. W. 994, it was said : 
"When a note or draft is sent by one individual or bank 
to another bank for collection and to remit the proceeds 
to the sender, the relation of principal and agent is created, 

and not that of creditor and debtor Having received 

the note or draft for collection it does not owe the amount 
thereof to the sender until collected, and though it may 
credit in its books therefor, such a credit may be treated 
as provisional if the paper is afterward dishonored, and it 
may cancel the credit." 

"The fact that the depositor's account is credited with 
the amount of the items taken for collection does not of 
itself operate to transfer the title to the paper; for, by the 
custom of bankers, the collection is charged back at once 
if not paid": 3 Am. & Eng. Ency. of Law, 817. 

The fact that the credit was given only after the check 
had been received and an inquiry made about it does not 
affect the principle by which the matter is controlled. The 
bank might well elect to give credit only for such collec- 
tion items as upon investigation it believed reasonably cer- 
tain would be paid, and to hold others without credit un- 



Nov. 1905.] Interstate Nat. Bank v. Ringo. 187 

til actual payment, without, by pursuing such course, bind- 
ing itself to be answerable whenever its judgment that 
payment would be made should prove mistaken. 

The rule, already referred to, that when a bank accepts 
a check and credits a depositor with it the transaction is 
deemed closed and cannot be reopened for the ^^^ correc- 
tion of a mistake is confined to checks drawn upon the 
bank which gives the credit, and proceeds upon the prin- 
ciple before stated that the bank is conclusively presumed 
to know the state of its depositor's accounts. Even with 
this limitation the rule has not always been approved: 1 
Morse on Banks and Banking, sec. 419 ; 3 Am. & Eng. Ency. 
of Law, 817, second paragraph of note 1. 

In Steinhart v. National Bank, 94 Cal. 362, 28 Am. St. 
Rep. 132, 29 Pae. 717, it was held, although without full 
discussion, that a bank to which a note had been sent for 
collection and which at the request of the maker, its cus- 
tomer, charged the amount to him, marked the note can- 
celed, and deposited in the mail addressed to the owner of 
the note a draft for the amount, might still, upon discover- 
ing that the maker was insolvent, reclaim the draft, rescind 
the entry upon its books, return the note to its principal, 
and by these means escape liability on its own part, such 
transactions not having effected a payment of the note : 
See, also, Second Nat. Bank v. Cummings, 89 Tenn. 609, 
24 Am. St. Rep. 618, 18 S. W. 115; Second Nat. Bank of 
Baltimore v. Western Nat. Bank of Baltimore, 51 Md. 128. 
34 Am. Rep. 300. 

The postal card sent to the Watkins bank is not more 
effective than the credit upon the books of the Interstate 
bank. Indeed, it is somewhat significant of the character 
of the entire transaction that while this card acknowledged 
the receipt of the note, and the entry of credit for the 
amount, it also gave express notice that all items were 
credited subject to payment. 

The attitude of the Interstate bank toward the Mer- 
chants' Bank — the attempt to insist upon the payment of 
the check — cannot avail the Watkins bank, which was not 
entitled to rely upon it and was not misled by it. The 
positions that the Interstate bank assumed in its com- 
munications with the other two banks may not have been 
entirely consistent with each other, *^® but it was not re- 



188 American State Reports, Vol. 115. [Kansas, 

quired to determine at its peril what its obligation might 
be under the law and at once act accordingly. It was 
probably in doubt whether it might not be able to hold the 
Merchants* Bank accountable upon its oral acceptance of 
the check, and as it had funds of that bank in its custody 
it prudently decided to retain enough to cover the amount 
until its rights should be settled or until it was otherwise 
indemnified. 

The Watkins bank suffered no prejudice through the 
failure of the Interstate bank to learn on the 14th that the 
note would not be paid. The notice that it had been given 
credit was mailed to it after half-past 3 o 'clock in the after- 
noon of that day. Even if this had justified an inference 
of the payment of the note, it would have been counter- 
acted by the telephone message given before 9 o'clock the 
next morning. In any view of the case this was timely 
notice of nonpayment, and gave the Watkins bank every 
opportunity to which it was entitled to protect its inter- 
ests. 

We are unable to attach any significance to the circum- 
stance that the Union Brokerage Company saw the Ringo 
& Askew note uncanceled in the possession of Ladd, Penny 
& Swazey on the morning of June 15th. Nor can we be- 
lieve that the case is affected in any aspect by the fact 
that Ladd, Penny & Swazey deposited certain collateral 
with the Merchants' Bank to secure any claims against 
them, for it is expressly shown that the bank did not agree 
with them to pay the check in question. The case is a 
hard one for Ringo & Askew, but their misfortune results 
from the misappropriation of their funds by agents of their 
own selection. If the transactions between Ladd, Penny 
& Swazey and the several banks had resulted in destroying 
the vitality of the first note, the purely fortuitous circum- 
stance of a mistake occurring in a telephone conversation 
to which they were not a party would have enabled Ringo 
& Askew to shift their loss to one of the banks. If any 
principle of law enabled them to do this they *^* would, 
of course, be entitled to the full benefit of their good for- 
tune. In the absence of any such legal doctrine there is 
no peculiar hardship in permitting the loss to remain where 
it originally lodged, nor is any rule of equity or good con- 
science thereby violated. 



Nov. 1905.] Metropolitan Life Ins. Co. v. Elison. 189 

The judgment is reversed and the cause remanded, with 
directions to render judgment upon the findings in accord- 
ance with the views herein expressed. 

All the justices concurring. 

Porter, J., not sitting. 



Payment. — The Talcing of a Check is not usually considered as a pay- 
ment of the debt for which it is taken: National Bank v. Chicago 
etc. E. R. Co., 44 Minn. 224, 20 Am. St. Rep. 566; Steinhart v. National 
Bank, 94 Cal. 362, 28 Am. St. Rep. 132; Johnson-Brinkman Commis- 
sion Co V. Central Bank, 116 Mo. 558, 38 Am. St. Rep. 615; Burrows 
V. State, 137 Ind. 474, 45 Am. St. Rep. 210; Watt v. Gans, 114 Ala. 
264, 62 Am. St. Rep. 99. 

A Bank WhMh Receives a note or draft for collection does not owe 
the amount thereof to the sender until collected; and, although it 
may enter a credit therefor in its books, the bank may treat such 
credit as provisional, and cancel it if the paper is afterward dis- 
honored: Midland Nat. Bank v. Brightwell, 148 Mo, 358, 71 Am. St. 
Rep. 608. See, also, Steinhart v. National Bank, 94 Cal. 362, 28 
Am. St. Rep. 132; Bank v. Cummings, 89 Tenn. 609, 24 Am. St. Rep, 
618. 



METROPOLITAN LIFE INSURANCE COMPANY v. 

ELISON, 

[72 Kan. 199, 83 Pac. 410.] 

INSURANCE, LITE — Insurable Interest. — An nncle of an in- 
sured has no insurable interest in his life by reason of kinship. 
(p. 191.) 

INSUBANOE, LIFE — Insurable Interest — ^Assignment. — A per- 
son cannot take directly, or by assignment, a policy of insurance 
on the life of one in whose life he has no insurable interest, (p. 191.) 

INSUBANCE, Life — Insiirable Interest — ^Assignment of PoUcy. 
An agreement by which part of the insurance provided for in a life 
insurance policy is assigned by the insured and the beneficiary to 
one having no insurable interest in the life of the insured, upon 
consideration that the assignee is to pay all accruing premiums, is 
opposed to public policy, and neither such assignee nor beneficiary 
can recover on the insurance policy, (p. 193.) 

INSUBANCE, LIFE — Insurable Interest — Assignment of 
Policy. — A beneficiary of an insured who knowingly and purposely 
sells and assigns to another, who has no insurable interest in the life 
of the insured, the policy of insurance on the life of the latter, cannot 
enforce the policy for his own benefit, (p. 195.) 

Action by Lizzie Elison on a policy of insurance issued 
on the life of her late husband, Adolph Elison, in which 



190 American State Reports, Vol. 115. [Kansas, 

she was named as beneficiary. She set up a contract between 
herself and her husband and his uncle, Casper Elison, by 
which an interest in the policy, to the extent of one thousand 
dollars, was assigned to him in consideration that he should 
pay the premiums on the policy. The contract was in writing, 
signed by the assured, the beneficiary, and Casper Elison. It 
recited that the assured had taken out a life insurance policy 
in the sum of two thousand dollars on his life, the quarter 
yearly premium of which was thirteen dollars and ninety-six 
cents, and that it was understood between the parties that 
Casper Elison should promptly pay these premiums as they 
fell due for the term of twenty years, or during the life of 
Adolph Elison, and that at his death, Lizzie Elison should 
pay to Casper Elison the sum of one thousand dollars. Lena 
Elison, the legal representative of Casper Elison, was made a 
defendant, and in a cross-petition alleged that Casper Elison 
had paid two premiums on the policy, aggregating twenty- 
seven dollars and ninety-two cents, and she claimed a re- 
covery of one thousand dollars of the insurance by virtue of 
the contract of assignment. The defendant insurance com- 
pany demurred to the petition of Lizzie Elison and also to 
the cross-petition of Lena Elison on the ground that neither 
stated a cause of action against the insurer. The trial court 
sustained the demurrer as to the cross-petition, but overruled 
it as to the original petition. The defendant insurance com- 
pany then answered alleging that, although Adolph Elison, 
in response to the answers in the application, had stated that 
he was in good health and had never been sick, nor had a 
medical attendant, he was then in fact ill from tuberculosis 
and had been treated by a physician for that disease. Upon 
a trial, the issues were found in favor of Lizzie Elison and 
judgment entered against the defendant company, from which 
it appealed. 

J. H. Austin, for the plaintiff in error. 

S. W. Wicker and Fuller & Jackson, for the defendant in 
error. 

202 JOHNSTON, C. J. The controlling question in the 
case is, Can the beneficiary, Lizzie Elison, who joined in the 
contract by which the insurance on her husband's life w&.s 
assigned to Casper Elison, recover on the policy? In her 
petition, and in part as a basis of recovery, she set up the 



Nov. 1905.] Metropolitan Life Ins. Co. v. Elison. 191 

contract, which appears to have been entered into with Cas- 
per Elison twelve days after the policy was issued. The de- 
murrer to the petition raised the question whether, under the 
facts stated, as well as those admitted by the recitals of the 
contract, she had stated a cause of action. The contract is 
plain in its provisions and leaves no doubt ^^^ about the 
purposes of the parties. Casper Elison agreed to pay the 
premiums on the policy for twenty years, or until the death 
of Adolph Elison, and in consideration therefor was to re- 
ceive one thousand dollars of the insurance money to be paid 
by the company. There was some claim that he was only to 
be reimbursed to the extent of the payments made, but it is 
expressly stated, and again repeated, that he was to receive 
one thousand dollars at the death of the insured, or at the 
maturity of the policy. He was to have the possession of 
the policy, and the precaution was taken to provide that the 
draft drawn by the insurance company in favor of Lizzie 
Elison should be indorsed and turned over to the assignee. 

Casper Elison was an uncle of the insured, and therefore 
had no insurable interest in his life by reason of kinship : 
Singleton v. St. Louis Mut. Ins. Co., 66 Mo. 63, 27 Am. Rep. 
321; Prudential Ins. Co. of America v. Jenkins, 15 Ind. 
App. 297, 57 Am. St. Rep. 228, 43 N. E. 1056; Appeal of 
Corson, 113 Pa. 438, 57 Am. Rep. 479, 6 Atl. 213; 2 Joyce 
on Insurance, sec. 1069. The consideration of the transfer 
was not advances made by the uncle, nor was the transfer 
made as security for any subsisting indebtedness. It there- 
fore appears that Lizzie Elison, the beneficiary of the pol- 
icy, undertook to assign and transfer an interest in the pol- 
icy to one who had no interest in the life of the insured. 

The theory of life insurance is that one who is interested 
in the preservation of the life of the insured may safely take 
and hold insurance, but that insurance in favor of one who 
has no interest in the life of the insured — who would be in- 
terested in his early death — is contrary to good morals and 
a sound public policy. In the early case of Missouri etc. 
Life Ins. Co. v. Sturges, 18 Kan. 93, 26 Am. Rep. 761, it was 
held that such in.surance, if sustained, would open the door 
to speculation and traffic in human life and invite to enter 
the most shocking of all crimes, and that "of all wagering 
**** contracts, those concerning the lives of human beings 
should receive the strongest, the most emphatic, and the most 



192 American State Reports, Vol. 115. [Kansas, 

persistent condemnation." The authorities generally unite 
in holding that one who has no insurable interest can no 
more take an interest in a policy, valid in its inception, 
by purchase and assignment than he could by direct issue 
from the insurer. In Warnock v. Davis, 104 U, S. 775, 26 
L. ed. 924, it was said: "The assignment of a policy to a 
party not having an insurable interest is as objectionable 

as the taking out of a policy in his name If there be 

any sound reason for holding a policy invalid when taken 
out by a party who has no interest in the life of the assured, 
it is difficult to see why that reason is not as cogent and 
operative against a party taking an assignment of a policy 
upon the life of a person in which he has no interest." 

It has been said: "The evil of wager policies would rather 
be aggravated than otherwise by such a rule, because specu- 
lators, desiring to indulge in this species of gambling in 
human life, could more easily purchase from embarrassed 
policy-holders than procure the issue of such policies directly 
to themselves upon the lives of strangers. *In either case,' 
as observed by a recent author in treating of this subject, 
'the holder of such policy is interested in the death, rather 
than the life, of the insured' ": Helmetag's Admr. v. Miller, 
76 Ala. 183, 52 Am. Rep. 316. 

As tending to sustain the view that a person cannot take 
directly, or by assignment, a policy of insurance on the life 
of one in whose life he has no insurable interest, see Cam- 
mack V. Lewis, 82 U. S. 643, 21 L. ed. 244; Gilbert v. Moose's 
Admrs., 104 Pa. 74, 49 Am. Rep. 570; Carpenter v. United 
States Life Ins. Co., 161 Pa. 9, 41 Am. St. Rep. 880, 28 Atl. 
943, 23 L. R. A. 571 ; Alabama Gold Life Ins. Co. v. Mobile 
Mutual Ins. Co., 81 Ala. 329, 1 South. 561 ; Whitmore v. Su- 
preme Lodge Knights and Ladies of Honor, 100 Mo. 36, 13 
S. W. 495; Heusner v. Mutual Life Ins. Co., 47 Mo. App. 
336; 206 Thornberg v. Aetna Life Ins. Co., 30 Ind. App. 
682, 66 N. E. 922; Bayse v. Adams, 81 Ky. 368; Roller v. 
Moore's Admr., 86 Va. 512, 10 S. E. 241, 6 L. R. A. 136; 
Wilton V. New York Life Ins. Co., 34 Tex. Civ. App. 156, 78 
S. W. 403. 

In this case the interest of Casper Elison, who contracted 
with the beneficiary to pay all the premiums, would have 
been best subserved by the early death of Adolph Elison ; 
and, in fact, death did occur in less than five months. It 



Nov. 1905.] JMetropolitan Life Ins. Co, v. Elison. 193 

was a matter of much concern to him whether he should get 
the contingent amount of one thousand dollars for a few 
premiums, or whether he should be required to pay them 
during the period of twenty years. In this respect it was 
more mischievous and vicious in its tendencies than many of 
such arrangements, because, if the insured had lived until 
the maturity of the policy, the assignee would have been re- 
quired to pay even more than he was to receive. In that 
event he would have paid eleven hundred and sixteen dol- 
lars and eighty cents, saying nothing of interest, for the one 
thousand dollars of insurance money which he would re- 
ceive; and, while there would have been a profit in the early 
death of the insured, his living until the end of the twenty 
year period would have occasioned the assignee a substantial 
loss. Contracts of this character have been frequently de- 
nounced and held bad because they were regarded as wagers, 
but this court has declared them to be void on the broader 
ground that they are contrary to public policy. 

If the transaction is tainted as to the assignee, who has no 
insurable interest, how does it stand as to the beneficiary 
in the contract of insurance, who participated in the wrong? 
If the agreement which furnished an inducement to take 
human life and a temptation to commit the most atrocious 
of crimes was participated in by the beneficiary voluntarily, 
how can she escape the condemnation of the law? She not 
only signed the agreement, but it appears that she was to 
take an active part in carrying it out, and was to receive 
^**® a share of the insurance to be secured through the pay- 
ment of premiums by Casper Elison. 

We have given much attention to the relation which Lizzie 
Elison bore to the transaction, and if we follow the rule of 
Life. Ins. Co. v. McCrum, 36 Kan. 146, 59 Am. Rep. 537, 12 
Pac. 517, it must be held that the whole transaction was so 
tainted with illegality as to bar a recovery by her. There 
appears to be no substantial distinction between this case 
and the one cited. There the insurance company issued a 
paid-up policy to Snyder, payable to his two daughters. He 
and the beneficiaries, for a valuable consideration, joined in 
an assignment of the policy to Mrs. Parker, who had no in- 
surable interest in Snyder's life. After the death of Snyder, 
Mrs. Parker, on learning that she could not collect the insur- 
ance, transferred the policy back to the beneficiaries, who in 
Am. St. Bep., Vol. 115—13 



194 American State Reports, Vol. 115. [Kansas, 

turn transferred it to MeCrum, and he brought an action 
to recover upon the policy. It was held that McCrum stood 
in the shoes of the beneficiaries; that the transaction be- 
tween the beneficiaries and the assignee was contrary to pub- 
lic policy, not to be tolerated by law; and that the policy 
was worthless and void, not only as to the assignee but also 
in the hands of the beneficiaries. In speaking of the par- 
ticipation of the beneficiaries in the tainted transaction it 
was remarked: "This policy was placed in her [Mrs. Park- 
er's] possession, not only with the written consent of the 
beneficiaries, but upon a valuable consideration paid to them 
for the same; they therefore aided in creating, in the mind 
of Mrs. Parker, a desire for the early death of the insured; 
they held out to her the temptation to bring about the event 
insured against In making the transfer and assign- 
ment, and in receiving the money therefor, the beneficiaries, 
Elizabeth and Desylvia Snyder, were participants with Mrs. 
Parker in the attempted fraud upon the insurance company; 
the whole transaction between the beneficiaries and Mrs. 
Parker contravenes public policy, and the law leaves the 
parties as it found them": Page 149. 

**'' Attention is called to the fact that in the McCrum 
case the beneficiaries received a consideration, while noth- 
ing was paid by the assignee to the beneficiary in the present 
case. Here Lizzie Elison procured Casper Elison to pay 
the premiums upon the policy in order to keep it alive, that 
she might receive a share of the insurance money. The fact 
that the assignee did not pay her money directly for the 
transfer did not take the vice out of the transaction nor 
make it less hurtful in its tendencies. It none the less, as 
was said in the McCrum case, aided in creating in the mind 
of the assignee a desire for the early death of the insured, 
and held out to him the temptation to bring about the event 
against which the insurance was issued. In the McCrum case 
the court further remarked: "If the party who attempts to 
speculate in human life cannot enforce the policy which he 
has purchased on the life of another, in whose life he has 
no insurable interest, the beneficiaries who knowingly and 
purposely sell and assign to such a person the policy on 
the life of another for a valuable consideration ought not 
thereafter to be permitted to enforce the same for their own 
benefit It is not for the sake of the insurance com- 



Nov. 1905.] Metropolitan Life Ins. Co. v. Elison. 195 

pany that the transactions between the beneficiaries and Mrs. 
Parker are held wrongful, but such rule is founded on gen- 
eral principles of public policy forbidding speculative con- 
tracts upon human life. In all such cases the courts ought 
not to lend their aid to assist parties engaged in the perpe- 
tration or attempted perpetration of such wrongful specula- 
tions": Pages 150, 151. 

The case of Powell v. Dewey, 123 N. C. 103, 68 Am. St. 
Rep. 818, 31 S. E. 381, sustains the view taken in the Mc- 
Crum case. There Powell took out a policy of insurance on 
his own life and assigned the same to the beneficiary named 
in the policy, who had no insurable interest. The assignee 
paid the premiums which accrued up to the death of the in- 
sured. Upon proof of death the insurance company paid 
the amount of the policy to the assignee, and the executor of 
Powell's estate then brought an action on behalf of the estate 
208 against the assignee and the insurance company to re- 
cover the insurance money. The court held that the policy 
was void because of the transfer to one having no insurable 
interest; that no action could be maintained upon it by the 
beneficiary against the insurance company, nor could the 
plaintiff, who was the representative of the insured, main- 
tain an action, because, "looking at it in any view, it has its 
foundation on the policy which is void": See, also Hinton v. 
Mutual etc. Co., 135 N. C. 314, 102 Am. St. Rep. 545, 47 S. 
E. 474, 65 L. R. A. 161. 

The McCrum case is deemed to be a controlling authority 
in the present one, and the court is not inclined to overrule 
or modify that decision. It follows that the judgment must 
be reversed and the cause remanded, with directions to sus- 
tain the demurrer of the insurance company to the petition 
of Lizzie Ellison. 

All the justices concurring. 



The Assignment of Life Insurance Policies is the subject of a note 
to Chamberlain v. Butler, 87 Am. St. Rep. 484. Such an assignment 
may be made, according to the better opinion, to a person having 
no insurable interest in the life of the assured: Harrison v. North- 
western etc. Ins. Co., 78 Vt. 473, 112 Am, St. Rep. 932; Mechanics' 
Nat. Bank v. Comins, 72 N. H. 12, 101 Am. St. Rep. 650. See, how- 
ever, Hinton v. Mutual Reserve etc. Assn., 135 N. C. 314, 102 Am. 
St. Rep. 545, and cases cited in the cross-reference note thereto. 



198 American State Bepoets, Vol. 115. [Kansas, 



CITY OF SALINA v. BLAKSLEY. 

[72 Kan. 230, 83 Pac. 619.] 

CONSTITUTIONAL LAW— Right to Bear Arms.— A constitu- 
tional provision that people have the right to bear arms for their 
defense and security applies only to the right to bear arms as a 
member of the state militia, or some other military organization 
provided by law, and does not prevent the enactment of a valid law 
prohibiting and punishing the carrying of arms or deadly weapons 
by private individuals, (p. 198.) 

D. Ritchie, for the appellant. 
R. A. Lovitt, for the appellee. 

^^^ GREENE, J. James Blaksley was convicted in the 
police court of the city of Salina, a city of the second class, 
of carrying a revolving pistol within the city while under 
the influence of intoxicating liquor. He appealed to the 
district court, where he was again convicted, and this pro- 
ceeding is prosecuted to reverse the judgment of the latter 
court. The question presented is the constitutionality of 
section 1003 of the General Statutes of 1901, which reads: 
"The council may prohibit and punish the carrying of fire- 
arms or other deadly weapons, concealed or otherwise, and 
may arrest and imprison, fine or set at work all vagrants and 
persons found in said city without visible means of support, 
or some legitimate business. ' ' 

Section 4 of the Bill of Rights is as follows: "The people 
have the right to bear arms for their defense and security; 
but standing armies, in time of peace, are dangerous to lib- 
erty, and shall not be tolerated, and the military shall be in 
strict subordination to the civil power." 

2^* The contention is that this section of the Bill of Rights 
is a constitutional inhibition upon the power of the legis- 
lature to prohibit the individual from having and carrying 
arms, and that section 1003 of the General Statutes of 1901 
is an attempt to deprive him of the right guaranteed by the 
Bill of Rights, and is, therefore, unconstitutional and void. 
The power of the legislature to prohibit or regulate the car- 
rying of deadly weapons has been the subject of much dispute 
in the courts. The views expressed in the decisions are not 
uniform, and the reasonings of the different courts vary. It 
has, however, been generally held that the legislatures can 



i 



Nov. 1905.] City of Salina v. Blaksley. 107 

regulate the mode of carrying deadly weapons, provided they 
are not such as are ordinarily used in civilized warfare. 

To this view there is a notable exception in the early case of 
Bliss V. Commonwealth, 2 Litt. (Ky.) 90, 13 Am. Dec. 251, 
where it was held, under a constitutional provision similar to 
ours, that the act of the legislature prohibiting the carrying 
of concealed deadly weapons was void; that the right of the 
citizen to own and carry arms was protected by the constitu- 
tion and could not be taken away or regulated. While this 
decision has frequently been referred to by the courts of 
other states, it has never been followed. The same principle 
was announced in Re Brickey, 8 Idaho, 597, 101 Am. St. Rep. 
215, 70 Pac. 609, but no reference was made to Bliss v. Com- 
monwealth, 2 Litt. (Ky.) 90, 13 Am. Dec. 251, nor to any 
other authority in support of the decision. 

In view of the disagreements in the reasonings of the 
different courts by which they reached conflicting conclusions, 
we prefer to treat the question as an original one. The pro- 
vision in section 4 of the Bill of Rights that "the people 
have the right to bear arms for their defense and security" 
refers to the people as a collective body. It was the safety 
and security of society that were being considered when this 
provision was put into our constitution. It is followed imme- 
diately by the declaration that standing armies in time *^^ of 
peace are dangerous to liberty and should not be tolerated, 
and that "the military shall be in strict subordination to 
the civil power." It deals exclusively with the military; 
individual rights are not considered in this section. The 
manner in which the people shall exercise this right of bear- 
ing arms for the defense and security of the people is found 
in article 8 of the constitution, which authorizes the organiz- 
ing, equipping and disciplining of the militia, which shall 
be composed of "all able-bodied male citizens between -the 
ages of twenty-one and forty-five years." The militia is 
essentially the people's army, and their defense and 
security in time of peace. There are no other provisions 
made for the military protection and seciirity of the people in 
time of peace. In the absence of constitutional or legislative 
authority no person has the right to assume such duty. 

In some of the states where it has been held, under similar 
provisions, that the citizen has the right preserved by the con- 
stitution to carry such arms as are ordinarily used in civilized 



198 American State Reports, Vol. 115. [Kansas, 

warfare, it is placed on the ground that it was intended that 
the people would thereby become accustomed to handling 
and using such arms, so that in case of an emergency they 
would be more or less prepared for the duties of a soldier. 
The weakness of this argument lies in the fact that in nearly 
every state in the Union there are provisions for organizing 
and drilling state militia in sufficient numbers to meet any 
such emergency. 

That the provision in question applies only to the right to 
bear arms as a member of the state militia, or some other 
military organization provided for by law, is also apparent 
from the second amendment to the federal constitution, 
which says: "A well-regulated militia being necessary to the 
security of a free state, the right of the people to keep and 
bear arms shall not be infringed." Here also the right of 
the people to keep and bear arms for their security is pre- 
served, and the manner of bearing them for such purpose 
**^ is clearly indicated to be as a member of a well-regulated 
militia, or some other military organization provided for by 
law. 

Mr. Bishop, in section 793 of the third edition of his work 
on Statutory Crimes, treating of this provision, which is 
found in almost every state constitution, says: "In reason, 
the keeping and bearing of arms has reference only to war, 
and possibly also to insurrections wherein the forms of war 
are as far as practicable observed." 

The case of Commonwealth v. Murphy, 166 Mass. 171, 44 
N. B. 138, 32 L. R. A. 606, strongly supports the position we 
have taken. In that case the defendant was convicted of 
being a member of an independent organization that was 
drilling and parading with guns. The guns, however, had 
been intentionally made so defective as to be incapable of 
being discharged. The prosecution was had under a statute 
which provided: "No body of men whatsoever, other than 
the regularly organized corps of the militia [and certain 
other designated organizations], shall associate themselves 
together at any time as a company or organization, for drill 
or parade with firearms, or maintain an armory in any city 
or town of this commonwealth." 

On the trial the defendant invoked the provision of the 
Massachusetts Bill of Rights that "the people have a right to 
keep and bear arms for the common defense" in support of 



Nov. 1905.] City op Salina v. Blakslet. 199 

his contention that he had the right to bear arms. The court 
said: "This view cannot be supported. The right to keep 
and bear arms for the common defense does not include the 
right to associate together as a military organization, or to 
drill and parade with arms in cities or towns, unless author- 
ized so to do by law. This is a matter affecting the public 
security, quiet, and good order, and it is within the police 
powers of the legislature to regulate the bearing of arms so 
as to forbid such unauthorized drills and parades." 

The defendant was not a member of an organized ^^* mi- 
litia, nor of any other military organization provided for by 
law, and was therefore not within the provision of the Bill 
of Rights and was not protected by its terms. The judgment 
is affirmed. 

All the justices concurring. 



CONSTITUTIONAL EIGHT TO KEEP AND BEAE AEMS. 
I. Effect of United States Constitution, 199. 
n. Effect of State Constitutions. 

a. Carrying Concealed Weapons, 200. 

b. Carrying Deadly Weapons Openly, 202. 

c. Miscellaneous, 203. 

I. Effect of United States Constitution. 

The second amendment to the United States constitution provides 
that, "a well-regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms shall not be 
infringed," but this does not give the right to bear arms for a nur- 
pose declared unlawful or in an unlawful manner. 

Such amendment means no more than that it shall not be "in- 
fringed" by Congress, tuid has no other effect than to restrict the 
powers of the national government: United States v. Gruikshank, 92 
U. 8. 542, 23 L. ed. 588; Presser v. Illinois, 116 U. 8. 252, 6 Sup. Ct. 
Rep. 580, 29 L. ed. 615; Spies v. Illinois, 123 U. 8. 131, 8 Sup. Ct. 
Eep. 21, 31 L. ed. 80. 

As was well said in State v. Smith, 11 La. Ann. 633, 66 Am. Dee. 
208: "The state statute against carrying weapons does not contra- 
vene the second article of the amendments of the constitution of the 
United States. The arms there spoken of are such as are borne by 

people in war or at least carried openly This [amendment] 

was never intended to prevent the individual states from adopting 
■aeh measures of police as might be necessary, in order to protect 
the orderly and well-disposed citizens from the treacherous use of 
weapons not even designed for any purpose of public defense, and 
used most frequently by evil-disposed men who seek to take ad- 



200 American State Reports, Vol. 115. [Kansas, 

vantage over their antagonists, in the disturbances and breaches 
of the peace which they are prone to provoke. There is, therefore, 
nothing in the constitution of the United States which requires of 
us a rigorous construction of the statute in question." 

The seeond article of the amendments to the constitution of the 
United States securing to the people the right to keep and bear arms 
is a restriction upon the powers of the national government only, and 
not upon state legislation: Fife v. State, 31 Ark. 455, 25 Am. Eep. 
556; State v. Shelby, 90 Mo. 302, 2 S. W. 468; English v. State, 35 
Tex. 473, 14 Am. Rep. 374; State v. Workman, 35 W. Va. 367, 14 
S. E. 9, 14 L. B. A. 600. In the case last cited the court, in speaking 
of the second article of the amendments of the United States con- 
stitution, said that "the keeping and bearing of arms, therefore, 
which, at the date of the amendment, was intended to be protected 
as a popular right, was not such as the common law condemned, 
but was such a keeping and bearing as the public liberty and its 
preservation commended as lawful and worthy of protection. So, 
also, in regard to the kind of arms referred to in the amendment, 
it must be held to refer to the weapons of warfare to be used by the 
militia, such as swords, guns, rifles and muskets, arms to be used in 
defending the state and civil liberty, and not to pistols, bowie- 
knives, brass knuckles, billies and such other weapons as are usually 
employed in brawls, street fights, duels and afifrays, and are only 
habitually carried by bullies, blackguards and desperadoes, to the 
terror of the community and the injury of the state": State v. Work- 
man, 35 W. Va. 367, 14 S. E. 9, 14 L. R. A. 600. 

II. Effect of State Constitutions. 
a. Carrying Concealed Weapons. — The examination as to the con- 
stitutionality of state statutes relating to the keeping and bearing 
arms must, under the above construction of the second article of the 
amendments to the constitution of the United States, be made with 
reference to the respective constitutions of those states in which exist- 
ing statutes were passed. The constitutions of the several states gen- 
erally provide that every person shall have the right to keep and 
bear arms in the lawful defense of himself or the state. In some of 
them it is added that the Jegislature shall have the right to regulate 
the exercise of such right, while in others no limitation is added, and 
in either case the power of the state legislatures to make the carry- 
ing of concealed weapons a crime is now generally recognized and 
conceded by the great weight of authority: State v. Reid, 1 Ala. 612, 
35 Am. Dec. 44; Owen v. State, 31 Ala. 387; Davenport v. State, 112 
Ala. 49, 20 South. 971; State v. Buzzard, 4 Ark. 18; Fife v. State, 
31 Ark. 455, 25 Am. Rep. 556; Haile v. State, 38 Ark. 564, 42 Am. 
Bep. 3; Nunn v. State, 1 Ga. 243; Willis v. State, 105 Ga. 633, 32 S. E. 
155; State v. Mitchell, 3 Blackf. 229; In re Brickey, 8 Idaho, 507, 



Nov. 1905.] City op Salina v. Blaksley. 201 

]01 Am. St. Eep. 215, 70 Pac. 609; State v. Smith, 11 La. Ann. 633, 
66 Am. Dec. 208; Wilson v. State, 81 Miss. 404, 33 South. 171; State 
V. Wilforth, 74 Mo. 528, 41 Am. Eep. 320; State v. Shelby, 90 Mo. 
302, 2 S. W. 468; State v. Speller, 86 N. C. 697; State v. Hogan, 63 
Ohio St. 202, 81 Am. St. Eep. 626, 58 N. E. 572, 52 L. E. A. 863; 
Walburn v. Territory, 9 Okla. 23, 59 Pac. 972; Wright v. Common- 
wealth, 77 Pa. 470; Aymette v. State, 2 Humph. 151; Andrews v. State, 
3 Heisk. 165, 8 Am. Eep. 8; State v. Wilburn, 7 Baxt. 57, 32 Am. Eep. 
551; English v. State, 35 Tex. 473, 14 Am. Eep, 370; State v. Work- 
man, 35 W. Va. 367, 14 S. E. 9, 14 L. E. A. 600. In speaking of the 
constitutional right to keep and bear arms in the lawful defense of 
the state or of the person, the court, in Haile v. State, 38 Ark. 566, 
42 Am. Eep. 3, said that "the constitutional provision sprung from 
the former tyrannical practice, on the part of governments, of dis- 
arming the subjects, so as to render them powerless against oppres- 
sion. It is not intended to afford citizens the means of prosecuting 
more successfully their private broils in a free government. It would 
be a perversion of its object, to make it a protection to the citizen, 
in going, with convenience to himself, and after his own fashion, 
prepared at all times to inflict death upon his fellow-citizens upon the 
occasion of any real or imaginary wrong. The ' common defense ' ' 
of the citizen does not require that. The consequent terror to timid 
citizens, with the counter violence which would be incited amongst 
the more fearless, would be worse than the evil intended to be rem- 
edied The clause, upon this point, of the Tennessee bill of 

rights is similar to ours, except that it expressly reserves to the leg- 
islature the power, 'by law to regulate the wearing of arms, with 
a view to prevent crime.' We think this reservation a matter of 
superabundant caution, inserted to prevent a doubt, and that un- 
expressed, it would result from the undefined police powers, inherent 
in all governments, and as essential to their existence as any muni- 
ments of the bill of rights. Only the legislature must take care that 
in regulating it does not destroy nor materially interfere with the 
objects of the constitutional provision. A Tennessee law passed un- 
der the constitution of 1871 prohibiting the carrying of any army 
weapon except openly and in the hand was held constitutional: State 
V, Wilburn, 7 Baxt. 57, 32 Am. Eep. 551"; State v. Speller, 86 N. C. 
697. A statute prohibiting the carrymg of concealed, dangerous and 
deadly weapons upon the person, and an exhibition of the same, is 
a reasonable regulation to which the citizen must yield, and is a valid 
exercise of the legislative power: State v. Shelby, 90 Mo. 302, 2 S. 
W. 4fi«. 

In Bliss v. Commonwealth, 2 Litt. 90, 13 Am. Dec. 251, it was de- 
cidt«l luat the right of the i-itizen to bear arms in defense of himself 
and of the state cannot be taken away or impaired, and that an act 
to prevent the carrying of concealed weapons was unconstitutional 



202 American State Reports, Vol. 115. [Kansas, 

and void. Since that decision, however, the constitution of Kentucky 
has been so amended as to give the legislature power to prevent per- 
sons from carrying concealed arms: Hopkins v. Commonwealth, 3 
Bush, 480; and one may be found guilty in that state of carrying a 
concealed deadly weapon though he is simply carrying to the pur- 
chaser a pistol sold by another: Cutsinger v. Commonwealth, 7 Bush, 
392. And it has also been decided that a citizen may be guilty of a 
crime in carrying, within his own home, a deadly weapon concealed 
upon his person contrary to a statute prohibiting the carrying of 
concealed weapons: Wilson v. State, 81 Miss. 404, 33 South. 171. 

b. Carrying Deadly Weapons Openly. — As to the constitutional 
right to keep and bear arms openly, there is much conflict in the few 
decided cases. In Fife v. State, 31 Ark. 455, 25 Am. Rep. 556, it 
was announced that a constitutional provision securing to the citizens 
of the state the right to keep and bear arms for their common defense 
relates to such arms as are used for the purposes of war, and does 
not prevent the legislature from prohibiting the wearing of such 
weapons as are not used in civilized warfare, and would not con- 
tribute to the common defense. And a statute which prohibits the 
carrying of any pistol whatever as a weapon refers to such pistols 
as are usually carried in the pocket, and of a size to be concealed about 
the person and used in private quarrels, and not such as are within 
the provisions of the constitution. "In order to arrive at what is 
meant by this clause of the state constitution, we must look at the 
nature of the thing itself, the right to keep which is guaranteed. It 
is arms; that is, such weapons as are properly designated as such as 
the term is understood in the popular language of the country, and 
such sui are adapted to the ends indicated above, that is, the effi- 
ciency of a citizen as a soldier, when called upon to make good the 
defense of a free people, and these arms he may use as a citizen, in 
all the usual modes to which they are adapted, and common to the 
country. What, then, is he protected in the right to keep and thus 
to uset Not everything that may be useful for offense or defense, 
but what may properly be included or understood under the title of 
'arms' taken in connection with the fact that the citizen is to keep 
them as a citizen. Such, then, as are found to make up the usual 
arms of the citizen of the country, and the use of which will properly 
train and reader him efficient in defense of his own liberty, as well 
as of the state. 

' ' Under this head, with a knowledge of the habits of our people, and 
of the arms in the use of which a soldier should be trained, we hold that 
the rifle of all descriptions, the shotgun, the musket and repeater are 
such arms, and that, under the constitution, the right to keep such 
arms cannot be infringed or forbidden by the legislature. Their use, 
however, to be subordinated to such regulations and limitations as 
are or may be authorized by the law of the land, passed to subserve 



Nov. 1905.] City of Salina v. Blaksley. 203 

the general good so as not to infringe the right secured and the 
necessary incidents to exercise of such right": Fife v. State, 31 Ark. 
455, 25 Am. Eep. 556. The same principles are adopted and the same 
rule laid down in Andrews v. State, 3 Heisk. 165, 8 Am. Eep. 8, English 
V. State, 35 Tex. 473, 14 Am. Eep. 374, and State v. Workman, 35 W. 
Va. 367, 14 S. E. 9, 14 L. E. A. 600. Othfer cases maintain that a law 
which merely inhibits the wearing of certain weapons in a concealed 
manner is valid, but if it attempts to cut off the exercise of the right 
of the citizen to bear "arms" openly, or, under the color of prescrib- 
ing the mode, renders the right itself useless, it is in conflict with the 
constitution and void: Nunn v. State, 1 Ga. 243; In re Brickey, 8 
Idaho, 597, 101 Am. St. Eep. 215, 70 Pac. 609. It has been held, also, 
that a city ordinance prohibiting the carrying of a pistol either openly 
or concealed is repugnant to the constitution and void: State v. 
Eosenthal, 75 Vt. 295, 55 Atl. 610. 

In Wilson v. State, 33 Ark. 557, 34 Am. Eep. 52, it was said that: 
"But to prohibit the citizen from wearing or carrying a war arm, ex- 
cept upon his own premises or when on a journey .... or when act- 
ing in the aid of an officer, is an unwarranted restriction upon his con- 
stitutional right to keep and bear arms." 

A statute prohibiting a citizen from bearing arms, ia this case an 
ordinary pocket pistol, openly, is, it has been held, in conflict with 
the constitution and void: Nunn v. State, 1 Ga. 243; Stockdale v. 
State, 32 Ga. 225. 

c. Miscellaneous. — A state statute prohibiting all bodies of men 
other than the regularly organized volunteer militia of the state and 
the troops of the United States from associating together as military 
organizations, or drilling or parading with arms in any city of the 
state without license from the governor, is constitutional and valid: 
Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. Bep. 580, 29 L. ed. 615; 
Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. E. A. 
606. A statute to this effect exists in California: Cal. Pen. Code, see. 
734. 

It may be made a crime by statute to keep and bear arms of any 
kind in the presence of a court of justice: Hill v. State, 53 Ga. 472; 
and a statute which makes it a crime to keep and sell pistols except 
army or navy pistols is constitutional and valid: Dabbs v. State, 39 
Ark. 353, 43 Am. Bep. 275; Stats ▼. Burgoyne, 7 Lea, 173, 40 Am. 
Bep. 60. 



204 American State Reports, Vol. 115. [Kansas, 



HUMBARGER v. HUMBARGER. 

[72 Kan. 412, 83 Pac. 1095.] 

PEOBATE COURTS have Jurisdiction to settle and sign bills of 

exceptions, (p. 205.) 

APPELLATE PBACTICE— Bill of Exceptions.— If a bill of 
exceptions itself recites that certain evidence and rulings are attaclied 
to and made a part of such bill, and they are so plainly identified that 
no doubt can exist that they were settled by the court as a part of 
the bill of exceptions, they may be considered on appeal as such. 
(pp. 205, 206.) 

APPEAL — Becord on — Date of Proceedings. — If the record on 
appeal states that the hearing began on a certain day, and each suc- 
cessive step in the proceedings, including the settling and signing of 
the bill of exceptions, is introduced by the term "thereupon," with- 
out naming any other date, it must be inferred that each step fol- 
lowed the other without delay, and that all occurred on the date of 
the hearing, (p. 206.) 

PEOBATE COURTS — Sununaiy Proceedings to Discover and 
Recover Property. — Summary proceedings in probate courts authorized 
by statute for the discovery and to compel the delivery of property 
of an estate suspected of having been concealed, embezzled or con- 
veyed, cannot be employed to enforce the payment of a debt, or lia- 
bility for the conversion of the property of the estate, or to try con- 
troverted questions of the right to property as between the representa- 
tive of the estate and others, (p. 207.) 

Z. C. Millikin, for the plaintiffs in error. 

D. Ritchie, for the defendant in error. 

*^^ JOHNSTON, C. J. This was a summary proceeding 
begun in the probate court upon a complaint of John Hum- 
barger, an heir at law of Susan Humbarger, deceased, in 
which he alleged that his brothers, Henry Humbarger, George 
Humbarger and Thurston Humbarger, were concealing 
money, property and effects of the estate of Susan Hum- 
barger, decea.sed, and asked that they be cited to appear and 
answer questions propounded to them by the court touching 
.such concealment. A citation was issued and an examination 
had, at the end of which the probate court found that there 
was no concealment of the assets of the estate by the respond- 
ents, and the proceeding was discontinued. In the course of 
the hearing the probate court sustained objections to ques- 
tions a.sked of Henry Humbarger, and to these rulings excep- 
tions were taken. A bill of exceptions was presented to, and 
allowed by, the probate court, and this was made the basis 



Dec. 1905.] HUMBARGEB V. HUMBABGEB. 205 

of a proceeding in error in the district court. That court 
reversed the decision of the probate court, and of these rulings 
plaintiffs in error complain. 

The first contention is that the district court had no juris- 
diction to review the rulings of the probate court in the 
admission of testimony, because such rulings never became a 
part of the record. The ground of this claim is that the 
probate court had no power to settle and sign a bill of excep- 
tions. Aside from the right of appeal from a decision of the 
probate court, express authority is given for the review of its 
judgments and final orders by a proceeding in error to the 
district court: Code, see. 541; Gen. Stats. 1901, sec. 5018. 
It is argued, however, that as the jurisdiction of the probate 
court is limited, it has only such authority as is specifically 
conferred, and that the right to prosecute a proceeding 
in error from that court does not '*^'* imply that it has 
authority to settle and sign a bill of exceptions. There ap- 
pears to be express legislative authority for the settling and 
signing of a bill of exceptions by the probate court. The 
statute declares that probate courts are courts of record : Gen. 
Stats. 1901, sec. 1974. By another statutory provision courts 
of record and the judges thereof at chambers are given au- 
thority to settle and sign bills of exceptions, and also to extend 
the time for doing so beyond the term: Laws 1901, c. 275, 
sec. 1; Gen. Stats. 1901, sec. 4753. 

It is next contended that the evidence and rulings were 
attached to, rather than embodied in, the bill of exceptions, 
and were not so preserved as to make them a part of it. It 
is true that a mere reference to papers or proceedings, with- 
out embodying them in the bill of exceptions, is not sufficient. 
They must be made a part of the bill of exceptions in some 
way, and so plainly identified as a part of it that no mistake 
can be made as to what is included in the bill. Here it is 
recited in the bill that the evidence is "attached hereto, and 
made a part of this bill of exceptions." Since the evidence 
and rulings are fully identified and specifically made a part 
of the bill, they cannot be ignored because of the manner in 
which they were incorporated into it, or because of the part 
of the bill in which they were placed. It is a better and safer 
method to place the proceedings and papers to be preserved 
in the body of the bill, preceding the signature of the judge, 
and thus avoid any question as to what is incorporated in it. 



206 American State Reports, Vol. 115. [Kansas, 

The courts give a liberal construction to a bill, and are in- 
clined to disregard mere normal defects and irregularities 
that do not cloud the record or violate a statutory require- 
ment. In this case there can be no misapprehension as to 
what the bill contains, nor whether the evidence and rulings 
in question were settled by the probate court as a part of the 
bill of exceptions. 

Although questioned, it sufficiently appears that the bill 
was settled in good time. The final hearing began '**'^ on 
February 8, 1904, and in the recitals of the subsequent steps, 
including the order of the court and the settling and signing 
of the bill of exceptions, each is introduced by the word 
"thereupon." So used, the word means that one step fol- 
lowed another immediately and without delay, and justifies 
the conclusion that all occurred on the date of the hearing: 
Dewey v. Linscott, 20 Kan. 684 ; Hill v. Wand, 47 Kan. 340, 
27 Am. St. Rep. 288, 27 Pac. 988. 

The final question raised in the case is. Did the probate 
court err in rejecting further evidence and in discontinuing 
the proceeding? The asset of the estate involved in the 
inquiry was a promissory note given by Henry Humbarger 
to his father. The only thing charged in the complaint was 
concealment. Without hesitation Henry Humbarger testified 
that the note had been given, and he stated the amount for 
which it was given, and, further, that it had been fully 
paid and the debt discharged. He went further, and stated 
that it had been paid partly in money, partly in services, and 
partly in board. The complainant tried to push the inquiry 
still further as to the payment of the note and as to whether 
Henry's liability thereon had been discharged. His liability 
on the note could not be determined in that proceeding by 
that court. It was a summary proceeding brought under 
section 3002 of the General Statutes of 1901. That statute 
provides: "Upon complaint made to the probate court by the 
executor, administrator, creditor, devisee, legatee, heir, or 
other person interested in the estate of any deceased person, 
against any person suspected of having concealed, embezzled 
or conveyed away any money, goods, chattels, things in action, 
or effects of such deceased, the said court shall cite the person 
suspected forthwith to appear before it and to be examined 
on oath or afiirmation touching the matters of the said com- 
plaint." 



Dec. 1905.] HUMBARGER V. HUMBARGER. 207 

The testimony of the parties examined is to be reduced to 
writing and filed in the probate court, and if the court is of 
opinion that the accused is guilty of '**® either concealing, 
embezzling or conveying away any of the assets of the estate, 
it may order and compel the delivery thereof to the executor 
or administrator or person entitled to receive the same: Gen. 
Stats. 1901, sees. 3002-3006. The purpose of the proceeding 
is to make discovery and compel production of the property of 
an estate suspected of having been concealed, embezzled, or 
conveyed away, but it cannot be employed to enforce the pay- 
ment of a debt or liability for the conversion of property of 
an estate, or to try controverted questions of the right to 
property as between the representative of the estate and oth- 
ers. One purpose is to perpetuate evidence against the party 
charged, to be used, if necessary, in an action brought for 
the recovery of the property in a court of competent juris- 
diction. In Moss V. Sandefur, 15 Ark. 381, it was held under 
a similar statute that it was intended to compel a discovery 
and delivery of the assets of an estate which were secretly 
and unlawfully held, but that it did not invest the probate 
court with jurisdiction of contested rights and matters of 
litigation as to the title of property. A like provision was 
before the supreme court of Illinois in Dinsmoor v. Bressler, 
164 111. 211, 45 N. E. 1086, where it was said: "The summary 
proceeding in the probate court to compel the production and 
delivery of property 'is not the proper remedy .... to try 
contested rights and title to property between the executor 
and others': 2 Woerner's American Law of Administration, 
sec. 325, p. 681. *Nor does the power conferred upon probate 
courts to subpoena and examine parties alleged to conceal or 
withhold property of the estate authorize such courts to try 
the title to the property in dispute': 1 Woerner's American 
Law of Administration, sec. 151, p. 347 ; Schouler on Execu- 
tors and Administrators, sec. 270. If sections 81 and 82 
could be used to settle contested rights to property as be- 
tween executors and administrators on the one side and third 
persons on the other, they would operate as an infringement 
upon the constitutional right to trial by jury, as they contain 
no provision for a jury trial": See, also. In re Wolford, 10 
Kan. App. 283, 62 Pac. '•^^ 731 ; Howell v. Fry, 19 Ohio St. 
556; Ex parte Casey, 71 Cal. 269, 12 Pac. 118; Gardner 
v. Gillihan, 20 Or. 598, 27 Pac. 220; Gibson v. Cook, 62 Md. 
256 J Matter of Beebe, 20 Hun, 462. 



208 American State Reports, Vol. 115. [Kansas, 

Here the chaise was concealment, and when the testimony 
developed that there was no concealment of the note — the 
subject of inquiry — the end of the investigation was reached. 
No doubt existed that there was a note, and that it belonged 
to the estate; and the only question left was whether it had 
been paid by Henry Humbarger, or whether he was still 
liable for all or part of it. The proceeding was a propef 
remedy to compel the delivery of the note itself, if it had 
been concealed, but not to enforce its payment, nor to try 
the title to the note as between parties claiming to own it. 
Courts will not be disposed to hamper such investigations so 
long as there remains a question whether effects of the estate 
have been concealed, embezzled, or conveyed away, but where, 
as in this case, the charge is not sustained, and it appears 
that there was no concealment, further inquiry as to the pay- 
ment and whether there still existed any liability is useless, 
and beyond the scope of the proceeding. The probate court 
rightly refused to go into the question of the indebtedness of 
the respondent Henry Humbarger, and therefore the judg- 
ment of the district court is reversed and the cause remanded 
for further proceedings. 

All the justices concurring. 



SUMMARY PEOCEEDINGS TO DISCOVER OR RECOVER PROP- 
ERTY OF ESTATES OF DECEDENTS. 

I. Statutory Provisions, 208. 

II. Constitutionality of Statutes, 210. 

III. Nature of Proceedings, 211. 

IV. Scope and Object of Proceeding. 

a. Generally, 211. 
1). Collection of Debts, 213. 
c. Trial of Title, 214. 
V. Claim of Property, 214. 
VI. Rights of Person Examined, 217. 
VII. Persons Interested, 217. 
VIII. Proceedings Against Personal Representative, 218. 
XI. Petition or Affidavit, 218. 
X. Iiimitation of Action, 218. 

L Statutory Provisions. 
In addition to existing remedies at law and in equity entitling ad- 
ministrators and executors to recover the property of an estate, a 
summary proceeding in the probate court is provided in many of the 
states, enabling them, or an interested person in such estate, to make 



Dec. 1905.] HUMBAKGER V. HUMBARGEB, 209 

examination and discovery, and in some states to compel the produc- 
tion and delivery of property suspected to be concealed, embezzled 
or wrongfully withheld. Such statutes famish a more speedy and 
much less expensive mode of detecting the existence or location of 
the property of the estate than the ordinary remedy of bill of dis- 
covery in equity or replevin or other action at law. 

These statutes, generally speaking, are almost uniform in their 
phraseology and legal effect, and it is not deemed necessary to here 
set them out in each particular instance in full. They authorize pro- 
bate courts to cite before them for examination any person suspected 
by an executor or administrator, or other person interested in the 
estate, of having concealed, embezzled, or converted any goods, chat- 
tels or money, or having in his or their possession or knowledge of 
any evidence of debt or right of the deceased, and compel such per- 
son to answer under oath. The proceeding in such case is plenary, 
the object being to perpetuate the evidence against the person 
charged, to be used upon any action to be brought thereon, and the 
testimony, it is usually provided, must be reduced to writing. 

Statutes of this tenor exist in the following states: California (Code 
Civ. Proc, sec. 1459 et seq.); Idaho (Rev. Stats. 1887, sees. 5432-5434); 
Indiana (Annotated Stats. 1894, sec. 2455); Maine (Rev. Stats. 1903, 
66, sees. 70-72); Maryland (2 Pub. Gen. Laws 1888, art. 93, sec. 238, p. 
1399); Massachusetts (2 Rev. Laws 1902, c. 162, sec. 43); Michigan 
(3 Comp. Laws 1897, c. 25, sees. 8-10); Minnesota (Gen. Stats. 1891, 
sees. 5712, 5713); Nevada (Prot. Code Stats. 1895, sec. 2572); New 
Hampshire (Pub. Stats. 1901, c. 190, sees. 1-4) ; New York (Code Civ. 
Proc, sec. 2706 et seq.); Oregon (Gen. Laws, 1887, sec. 1121 et seq.); 
Ohio (2 Bates Ann. Stats., 2d ed., sees. 6053-6057) ; Rhode Island (Gen. 
Laws 1896, pp. 696, 697); Vermont (Stats. 1904, see, 2470); Washing- 
ton (2 Ballinger's Annotated Codes and Statutes, sees. 6212-6214); 
"Wisconsin (Ann. Stats. 1889, sees. 5446, 5447). Under such statutes a 
like proceeding is authorized against persons to whom the executor or 
administrator has intrusted property of the estate, and who wrong- 
fully withholds it, and the appearance of such parties and their an- 
swers to the interrogatories propounded to them may be enforced hj 
attachment and imprisonment. 

In other of the states the power of the probate court is, by statute, 
made to extend much further, and the person found guilty of con- 
cealing, embezzling or wrongfully withholding property belonging to 
the estate may be proceeded against by attachment and imprison- 
ment. Statutes to this effect exist in Illinois (Rev. Stats. 1891, c. 3, 
sees. 80, 81); Maryland (2 Pub. Gen. Laws 1888, art. 93, sec. 238, p. 
1391); North Dakota (Code 1895, sec. 6379); South Dakota (2 Ann. 
Stats., sees. 7UU5, 7U06); Utah (Rev. Stats. 1898, sees. 3927, 3928); 
Wyoming (Rev. Stats. 1887, sees. 2045-2U47). 
Am. St. Rep., Vol. 115—14 



210 American State Reports, Vol. 115. [Kansas, 

n. Constitutionality of Statutes. 

Statutes authorizing summary proceedings for the discovery of 
property of a decedent wrongfully withheld from his legal representa- 
tives, in so far as they authorize an examination of the question of 
possession only and not that of title, are undoubtedly constitutional, 
and not in conflict with constitutional provisions declaring that no per- 
son shall be deprived of life, liberty or property without due process 
of law, and that trial by jury in all cases in which it has theretofore 
been used shall remain inviolate: Matter of Curry, 25 Hun, 321. 

In California it has been decided that a statute providing for pro- 
ceedings by an administrator to recover property of the estate of a 
decedent alleged to have been concealed or embezzled by the defend- 
ant and converted to his own use is remedial, and not penal, in its 
nature, though providing redress in the way of imprisonment and 
damages under certain contingencies as a means of enforcing the civil 
remedy provided for therein, and is not in conflict with constitutional 
provisions that no person shall be compelled in a criminal case to be 
a witness against himself, and that the right of the people to be se- 
cured in their persons, houses, papers, and eEfects against unreasonable 
seizures and searches cannot be violated: Levy v. Superior Court, 105 
Cal. 600, 38 Pac. 965, 29 L. E. A. 811. 

In a summary proceeding before the probate court as authorized by 
statute on the complaint of an administrator against a person sus- 
pected of embezzling, concealing or conveying away the property or 
effects of the estate, the court has no constitutional power to render 
judgment against the person so charged, except for such property or 
effects as he, on his examination, admits himself guilty of having in 
his possession, and to the extent that such statute authorizes a judg- 
ment in cases where there is a controversy between the parties, it is 
unconstitutional as depriving such person of the right of trial by 
jury, and of appeal: Howell v. Fry, 19 Ohio St. 556. In Dinsmoor v. 
Bressler, 164 111. 211, 45 N. E. 1086, it was said that if such statu- 
tory proceedings "could be used to settle contested rights to prop- 
erty as between executors and administrators on the one side and 
third persons on the other, they would operate as an infringement 
upon the constitutional right to trial by jury, as they contain no pro- 
vision for a jury trial." And this language was repeated with ap- 
proval in Martin v. Martin, 170 111. 18, 48 N. E. 694. Or if such 
statute authorizes the probate court, if it shall appear that any ef- 
fects of the deceased are withheld by the person under examination, 
to issue a warrant commanding an ofiicer to whom it is directed to 
search for and seize such effects and deliver them to the personal 
representative of the deceased, unless the person holding such effects 
Bhall give security, is unconstitutional and void as depriving a person 



Dec. 1905.] HUMBARGEB V. HUMBARGEB. 211 

of his property without due process of law: Matter of Beebe, 20 Hun, 
462. 

III. Nature of Proceeding. 
Under statutes concerning the discovery of concealed assets of an 
estate, the proceeding partakes of a suit in chancery, and is in the 
nature of a bill for discovery and relief, and the evidence heard in 
the circuit court on appeal therefrom may be preserved for review 
by 'the certificate of the judge in the form of a bill of exceptions: 
Martin v. Martin, 170 111. 18, 48 N. E. 694. The statutory proceeding 
for the discovery of assets of an estate is in the nature of a bill 
in chancery for discovery, and the proceedings should be governed 
by the principles of and practice in equity: Adams v. Adams, 81 111. 
App. 637. But a statute authorizing the probate court, on an 
executor's or administrator's application, to examine a person under 
oath concerning property in his possession belonging to the estate, 
is not exclusive of the right of the personal representative to maintain 
a bill in equity for discovery with respect to such property: Stark- 
weather V. Williams, 21 E. I. 55, 41 Atl. 1003. 

IV. Scope and Object of Proceeding. 
a. Generally. — If an executor, administrator or other person inter- 
ested in an estate states upon oath to the probate court that he be- 
lieves that some third person has in his possession any goods, chattels, 
money or effects, books of account, papers or any evidence of debt 
whatever, it is the duty of the court to require such person to appear 
before it by citation, and the court may examine him on oath, and 
hear the testimony of such executor or administrator or other per- 
son interested in the estate and other evidence offered by either 
party, but in such case the statute leaves it discretionary with the 
court to examine or not to examine the person against whom such 
proceedings are had: Mahoney v. People, 98 111. App. 241. The 
court is not confined to an examination of, nor need it examine, the 
defendant, but either party has the right to introduce any evidence 
pertinent to the issue: Wade v. Pritchard, 69 111. 279. The statute 
does not confer authority upon the court to try and determine, as an 
issue of fact, upon general evidence, the question whether a person, 
suspected of so doing, has taken wrongful possession of property or 
effects of the estate, but merely to summon and compel the appear 
ance of such person, and subject him to an examination under oath, 
and in case it appears therefrom that he has property belonging to 
the estate, to order and compel the delivery of such property to the ad- 
ministrator: Rickman v. Stanton, 32 Iowa, 134. The sole purpose of 
a statute, in so far as it provides that if any executor or adminis- 
trator or other person interested in the estate of a deceased person 
shall complain to the judge of probate that any person is suspected to 
have ifi his possession any property belonging to such estate, is to 



212 American State Reports, Vol. 115. [Kansas, 

enable such judge to cite such suspected person to appear before the 
court of probate, and to examine him on oath, upon the matter of 
such complaint: Manly v. Babbitt, 99 Mich. 441, 58 N. W. 367. 
One of the objects of such statutes is to enable the administrator 
to secure information as to property which he is required to inventory 
or appraise, although the present situation of the property is such 
that it would be impracticable to order its delivery to the adminis- 
trator: Matter of O'Brien, 65 App. Div. (N. Y.) 282, 27 N. Y. Supp. 
1001. 

Such summary proceedings under the statute apply only where 
^Mrraons charged with concealing or embezzling the assets of an es- 
tate have the goods in actual possession at the time of the com- 
mencement of the proceedings. If the property has passed from the 
possession of the person so charged, the common-law rights of action 
still remain to the executor or administrator, but he is precluded from 
further prosecuting the statutory remedy: Dameron's Admr. v. 
Dameron, 19 Mo. 317; Howell v. Howell, 37 Mo. 124. 

And such proceedings can only be used for and result in the dis- 
covery of facts to serve as a basis of ulterior proceedings: O'Dee v. 
McCrate, 7 Me. 467; Dodge v. McNeil, 62 N. H. 168; Saddington's 
Estate V. Hewitt, 70 Wis. 240, 35 N. W. 552, where it is also decided 
that where the statute authorizes merely an examination, it cannot 
be changed by rule of court into a proceeding in the nature of an 
action to recover the property as to which the examination is had. 
And as such ulterior proceedings cannot be had in the probate court 
under some of the statutes, that court can do nothing except to take 
the examination of the person complained of, and the judge thereof 
has no authority to determine the question whether such charge is or 
is not sustained: Dodge v. O'Neil, 62 N. H. 168. 

Under statutes which authorize an order for the surrender and 
delivery of the property sought to be discovered, the only purpose 
of the legislature in enacting them is to provide for the examination 
of the person claimed to have property belonging to the estate at 
the instance of the personal representative of the decedent or of 
some person interested in his estate, and to afiford a simple and sum- 
mary proceeding whereby such person may obtain an order for the 
surrender of the property discovered in the hands or under the con- 
trol of some person or persons not lawfully entitled to the possession 
thereof, and, whenever it is apparent at any stage of the proceed- 
ings taken under such statutes that such a result is in th^ nature of 
things unattainable, the proceeding should terminate: Estate of 
Knittel, 12 Civ. Proc. (N. Y.) 1. 

Such summary proceedings against, and the commitment of any 
person having property belonging to any deceased person which he 
refuses to disclose or deliver to the administrator, apply only to 
money or property remaining in specie and unchanged, and not 



Dec. 1905.] HUMBARGER V. HUMBARGEB. 213 

to proceeds of collections made by an attorney under employment 
to the administrator: Dinsmor v. Bressler, 164 111. 211, 45 N. E. 
1086. 

A proceeding in the probate court to discover assets begun on the 
affidavit of a person interested in the estate of a deceased, in which 
a certain other person is charged with having concealed and em- 
bezzled certain assets is "a suit pending" within the meaning of a 
statute concerning the taking of depositions: Ex parte Gfeller, 178 
Mo. 248, 77 S. W. 552; Eckerle v. Wood, 95 Mo. App. 378, 69 S. W. 
45. 

And on an application by an administrator to the probate court 
invoking its authority to require the production by a third person 
of any part of the personal estate of his decedent, he must allege 
in his application in express or equivalent terms that the same is con- 
cealed, in order to give the court jurisdiction. The simple withholding 
of property is not "concealment" within the meaning of the statute: 
Taylor v. Bruscup, 27 Md. 219. 

b. Collection of Debts. — Statutes which authorize summary pro- 
ceedings before courts of probate against any person having property 
of an estate in his possession and refusing to deliver it up to the 
personal representative of the deceased are not intended to apply 
to a case of mere indebtedness of such person to the estate, but 
only to the case of specific property belonging to such estate, and 
wrongfully withheld by such person: Ive's Appeal, 28 Conn. 416. 
Such proceedings cannot be maintained to aid in the collection of 
debts due the estate, but only for the purpose of obtaining posses- 
sion of the identical articles or money belonging to such estate: 
Williams v. Conley, 20 111. 643; Matter of Stewart, 77 Hun, 564, 28 
N. Y. Supp. 1048. The personal representative of an estate has no 
right to examine a debtor of his decedent merely for the purpose of 
ascertaining the nature and amount of such debtor's liability to the 
estate: Estate of Knittel, 12 Civ. Proc. (N. Y.) 1; Estate of Nay, 6 
Dem. Sur. 346; Matter of Carey, 11 App. Div. (N. Y.) 289, 42 N. Y. 
Supp. 346. Probate courts have no jurisdiction under such statutes, 
by any proceedings, to enforce the payment of a debt due the estate 
by commitment as for a contempt: In re Wolford, 10 Kan. App. 283, 
62 Pac. 731. In a summary proceeding before a probate court under 
authority of a statute on the complaint of an administrator against 
a person suspected of embezzling, concealing or conveying away 
the property or effects of the estate, the court has no constitutional 
power to render judgment against the person so charged, except for 
such property and effects as he, on his examination, admits himself 
guilty of having in his possession, and to the extent that the 
statute professes to authorize a judgment in cases where there is a 
controversy between the parties, it is unconstitutional and void: 
Howell v. Pry, 19 Ohio St. 556. 



214 American State Reports, Vol. 115. [Kansas, 

C. Trial of Title. — Probate courts have no jurisdiction, under the 
■unimary proceedings provided by statute for the discovery and 
recovery of property of a decedent wrongfully withheld from his 
legal representatives, to try the title to such property as between 
the executor or administrator and others. The question of possession 
only, and not that of title, can be examined: Moss v. Sandefur, 15 
Ark. 381; In re Wolford, 10 Kan. App. 283, 62 Pac. 731; Gibson v. 
Cook, 62 Md. 256; Estate of Curry, 25 Hun, 321; Summerfield v. 
Howie, 2 Red. Sur. 149; Gardner v. Gillihan, 20 Or. 598, 27 Pae. 
220. In such proceedings neither the probate court nor the circuit 
court on appeal can finally determine the title or right to property 
between bona fide disputants, as the good faith of the person in 
possession of the assets is the sole question to be tried in such pro- 
ceeding: Johnson v. Johnson, 82 Mo. App, 350. The court has no 
power to order property in the possession of the person examined 
and claiming title thereto to be delivered up to the personal repre- 
sentative of the deceased, or deposited subject to the order of the 
court, and the refusal of such person claiming title to obey such 
order is not a contempt: Ex parte Casey, 71 Cal. 269, 12 Pac. 118. 

V. Claim of Property. 

Where an administrator or executor, seeking to discover property 
of his decedent alleged to be concealed or withheld, alleges that the 
person to be cited has in his possession or under his control specified 
articles of property belonging to the estate, the New York state 
statute provides that "in case the person so cited shall interpose 
a written answer, duly verified, that he is the owner of such prop- 
erty, or is entitled to the possession thereof, by virtue of any lien 
thereon, or special property therein, the surrogate shall dismiss the 
proceeding as to such property so claimed." Under such provision 
of the statute, the assertion by the person cited of his own title 
to a portion only of such property, does not bar further inquiry, 
and is not ground for a dismissal of the proceedings: Matter of 
Peyser, 25 Misc. Rep. (N. Y.) 705, 4 K Y. Supp. 707; Estate of 
Elias, 4 Dem. Sur. 139. The person cited must allege that he or she. 
is the owner or is entitled to the possession of the specific property 
described in the petition by virtue of a lien thereon or special prop- 
erty therein, and if such allegation is not made, the motion for 
discovery must be granted and the examination must proceed: Estate 
of Hastings, 6 Dem. Sur. 423; Estate of Seaver, 1 Dem. Sur. 365. 

When the person cited for examination interposes a written answer, 
duly verified, alleging that by virtue of a lien on the property of 
which a discovery is sought, or special property therein, he is entitled 
to the possession thereof and setting forth the nature and circum- 
stances of the lien, the surrogate must dismiss the proceeding, and 
it is not within his power to pass upon the validity, sufficiency or 



Dec. 1905.] HUMBARGER V. HUMBARGER. 215 

extent of such lien: Matter of Lynch, 83 Hun, 39, 31 N. Y. Supp. 767. 
"When the proper claim of title is interposed, the surrogate is ousted 
of jurisdiction and cannot decide the question raised, the parties 
being remitted to another tribunal, where a jury trial or other proper 
disposition of the issues may be had. Under such circumstances, no 
examination is permissible, and if it were allowed no order could 
be made for the delivery or disposition of the property based upon 
it: Estate of Basch, 24 Civ. Proc. (N. Y.) 264, 33 N. Y. Supp. 424. 
If the person cited for examination alleges by proper answer that he 
is the owner of the property in question, that is sufficient to secure 
a dismissal of the proceeding, without showing hqw he became 
such owner, but if he claims to be entitled to the possession of the 
property by virtue of a lien thereon or special property therein, he 
must allege the facts necessary to sustain such claim: Estate of 
Scaver, 1 Dem. Sur. 365. And if such person alleges in his answer 
that "he is the owner of all property specifically recited in said 
petition, or entitled to the possession thereof," he is not entitled 
to a dismissal of the proceeding, as such answer is not an absolute 
claim of ownership or of a right of possession by virtue of a lien 
thereon, or special property therein, but is merely a naked alternative 
claim to the property: Matter of Peyser, 35 App. Div. (N. Y.) 447, 
54 N. Y. Supp. 832. 

If the person cited for examination has possession of papers, 
the delivery of which is sought to be compelled by the adminis- 
trator, and claims a lien thereon for services rendered by him as an 
attorney at law for the decedent, it is the duty of the surrogate 
to dismiss the proceedings: Matter of McGuire, 106 App. Div. (N. Y.) 
131, 94 N. Y. Supp. 97. 

In Matter of Wing, 41 Hun, 452, it appeared that in obedience 
to a citation issued by a surrogate upon the petition of an adminis- 
trator, alleging that the respondent had in his possession property, 
bonds and notes which belonged to the deceased, and which he ought, 
but refused, to deliver to the administrator, the respondent appeared 
and answered, reciting that the property in question was placed in 
his hands by the deceased under agreement with him that the latter 
should hold it for advances made to the deceased which were never 
repaid, and that the respondent, as by agreement provided, disposed 
of the property in the lifetime of the deceased, and applied the whole 
of the proceeds to his reimbursement, and that he had none of the 
property in his possession, and it was held that it was the duty of 
the surrogate to have dismissed the proceedings. 

An answer to a petition for the examination of a person cited 
for discovery of the assets of an estate of a decedent, which sets 
ap ownership and title of the property by virtue of a bequest to him, 
requires a dismissal of the proceeding under the provision of the 
above-mentioned New York statute: Matter of McCarthy, 26 Civ. 



216 Amekican State Reports, Vol. 115. [Kansas, 

Proc. (N. Y.) 397, 47 N. Y. Supp. 1127; Matter of Harriman, 50 Misc. 
Eep. (N. Y.) 245, 100 N. Y. Supp. 481. And under the statutes of 
other states authorizing summary proceedings for the discovery and 
delivery of property of an estate alleged to be concealed or embezzled 
by a third person, if there is substantial evidence on such examination 
that the deceased made a valid gift of the property sought for, and 
that the gift was made in view of death, and that respondent was in 
lawful possession of such property prior to the decedent's death, 
claiming title thereto in good faith, he is entitled to a dismissal 
of the proceeding: Hoehn v. Struttmann, 71 Mo. App. 399. Or if it 
appears from the evidence that the administrator's intestate had no 
title to the property sought, or that the respondent's appropriation 
of it was not fraudulent, but in good faith under a valid claim 
of title, the respondent should be acquitted of the embezzlement, 
and should not be compelled to surrender the property. Beyond this 
the probate court has no jurisdiction to settle the respective rights 
of the parties to the property, and if they wish to litigate their 
rights to the property they must resort to some other jurisdiction: 
Gordon v. Eans, 97 Mo. 587, 4 S. W. 112, 11 S. W. 64, 370. 

Under the New York statute an executor or administrator who pre- 
sents a petition to the surrogate showing that the property of the 
estate which should be included in an inventory or appraisal, and 
which is in the possession, under the control or within the knowledge 
or information of a person who withholds it from the representative 
of the deceased, is entitled to an order permitting him to examine 
such person, and this statute applies in favor of an administrator 
appointed in the state of the residence of the deceased as against 
his temporary administrator appointed to administer that part of 
his estate situated in another state: Matter of O'Brien, 65 App. Div. 
(N. Y.) 282, 72 N. Y. Supp. 1001, 34 Misc. Eep. (N. Y.) 436, 69 N. Y. 
Supp. 1022. And the person sought to be examined cannot defeat the 
examination by an answer alleging that he has no property belonging 
to the estate in his possession, and that he is the absolute owner 
of the property described in the petition, and was such owner before 
the decedent's death. The proceeding is intended to enable an 
executor or administrator to obtain information in regard to such 
property as well as to get possession of it, and, although the case 
is one where delivery of possession could not be directed, an examina- 
tion of the claimant may, nevertheless, be allowed, and the provision 
for terminating the proceeding where a dispute arises as to the 
ownership of the property refers to a dispute developed upon the 
examination of the claimant, and not a dispute which he creates by 
ailegations in an answer to a petition for his examination: Matter 
of Gick, 49 Misc. Kep. (N. Y.) 32, 98 N. Y. Supp. 299; Matter of 
O'Brien, 34 Misc. Kep. (N. Y.) 436, 69 N. Y. Supp. 1022, 65 App Div. 
282, 72 N. Y. Supp. 1001. 



Dec. 1905.] HUMBARGER V. HUMBARGEB. 217 

VI. Bights of Person Examined. 

Under statutory proceedings to compel a person to answer 
touching the assets of an estate in his possession, such person is not 
entitled to a trial by jury in such proceeding as a matter of right: 
Mahoney v. People, 98 111. App. 241. Although the statute some- 
times provides for a jury trial in such case: Kev. Stats. 1887, sec. 
2045 et seq. 

A person charged with withholding the assets of an estate has the 
right to be examined under oath, and the court may believe and 
act upon his uncontradicted statements, and may permit him to tes- 
tify to facts occurring prior to the death of the deceased: Kraher's 
Estate V. Launtz, 90 111. App. 496. And in the event of the finding 
of the court in his favor after his examination under oath, he is en- 
titled to an immediate dismissal of the proceedings without further 
examination of himself or other witnesses: Matter of Stuart, 67 
Mo. App. 61. He also has the right to introduce any evidence per- 
tinent to the issue: Wade v. Pritchard, 69 111. 279. And he is en- 
titled to have the assistance of counsel in such a proceeding: Martin 
▼. Clapp, 99 Mass. 470. 

VH. Person Interested. 

Under a statute authorizing the probate court to issue a citation 
for the discovery of the assets of an estate upon the affidavit of the 
executor, administrator or "other person interested in the estate," 
it has been held in Missouri that if the affidavit alleging conceal- 
ment or embezzlement does not affirmatively show that the person 
making it has an interest in the estate; it is defective and gives the 
court no jurisdiction: Shaw v. Groomer, 60 Mo. 495. But if the 
probate court issues a citation at the instance of the moving 
party, it necessarily decides that he is "a person interested in the 
estate," and such decision cannot be reviewed by writ of prohibi- 
tion: Eckerle v. Wood, 95 Mo. App. 378, 69 S. W. 45. The order 
of such court issuing a citation on the affidavit of the husband 
of the testatrix is a decision by the probate court that such husband 
is interested in the estate: Ex parte Gfeller, 178 Mo. 248, 77 S. W. 
552. 

The husband of a childless testatrix, although the will under 
which he acts may specifically declare that he is to have no part of 
the estate, has such an interest therein as to authorize the probate 
court, upon his affidavit that certain persons are concealing certain 
assets, to issue a citation to them for the discovery thereof: Ex parte 
Gfeller, 178 Mo. 248, 77 S. W. 552. 

If the probate court becomes satisfied from any source that prop- 
erty belonging to an intestate's estate is wrongfully in the posses- 
sion or under the control of a third person, it may cite him for ex- 
amination independently and without any petition from a person in- 



218 American State Reports, Vol. 115. [Kansas, 

terested in the estate or from the administrator: Hughes v. People, 5 
Colo. 436; Mead v. Sommers, 2 Dem. Sur. 296. 

Vm. Proceedings Against Personal Eepresentative. 
Statutes providing summary proceedings upon the petition or affi- 
davit of a person interested in the estate of a decedent for the pur- 
pose of discovering assets of such estate alleged to be concealed, em- 
bezzled or wrongfully withheld apply as well against executors and 
administrators as they do against persons: Case's Appeal, 35 Conn. 
115; O'Dee v. McCrate, 7 Me. 467; Stewart v. Glenn, 58 Mo. 481;- 
Given 's Case, 34 N. J. Eq. 191. And it has been decided that in 
such proceeding against an executor to discover assets of the estate, 
the executor is not competent as a witness as to business occurrences 
between himself and the testator, his father, out of which the al- 
leged withholding of assets arose: Tygard v. Falor, 163 Mo. 234, 63 
S. W. 672. 

IX. Petition or Affidavit. 

In a special statutory proceeding brought by an executor or admin- 
istrator to discover property of the decedent withheld from the peti- 
tioner the allegations on the part of the latter may be exclusively 
upon information and belief, and without disclosing the sources or 
grounds thereof, as the only prerequisite to the issuing of the cita- 
tion is the satisfaction of the probate court that there are reasonable 
grounds for the inquiry: Walsh v. Downs, 3 Dem. Sur. 202. But all 
of the executors or administrators must join in the petition, and be 
made parties to the proceeding, else the petition and citation must be 
dismissed upon motion of the person cited for examination: Matter 
of Shingerland, 36 Hun, 575. If, however, such person appears and 
goes to trial upon the merits, he thereby waives any defects in the 
affidavit or petition by which the proceeding is commenced. Objec- 
tion to the affidavit or petition must be urged before submitting to 
the jurisdiction of the court: Wade v. Pritchard, 69 111. 279. 

An administrator has a right to file an amended affidavit in such pro- 
ceeding, and thereafter the proceedings under the original affidavit 
will be considered as abandoned, and it will be presumed that the 
proceeding was conducted under the amended affidavit, but the whole 
record may be examined on appeal to ascertain whether the subse- 
quent steps and orders were taken under the amended or under the 
original affidavit : Blair v. Sennott, 134 111. 78, 24 N. E. 969. 

X. Limitation of Action. 
A judge of probate has statutory power to call before him and ex- 
amine, under oath, as well the executor or administrator of an estate 
when suspected and charged with concealment or embezzlement or 
wrongfully withholding the property of the estate, as any other per- 
son who is interested with such property by the executor or admin- 



Dec. 1905.] Albright v. Bangs. 219 

istrator, and so charged, and, while such proceedings can only re- 
sult in a discovery of the facts, to serve as a basis of ulterior proceed- 
ings, yet the lapse of thirty years since the transaction inquired into 
Ib no bar to such examination: O'Dee v. McCrate, 7 Me. 467. 



ALBRIGHT v. BANGS. 

[72 Kan. 435, 83 Pac. 1030.] 

EXECUTORS AND ADMINISTRATORS— Foreign Admlnia- 
trator De Bonis Non — Sale of Real Estate by — Validity. — If a non- 
resident dies testate in one state owning property in another, and ex- 
ecutors named in his will are appointed and qualify as such in the 
former state, and letters testamentary are issued afterward to the 
same persons in the other state, an administrator de bonis non. who. 
is appointed in the former state on account of the death of one 
executor and the removal of the other, is not thereby made the suc- 
cessor in trust of the executors under their appointment in the other 
state, so as to enable the courts of that state to permit him to sell 
lands of the estate to pay its debts under an order previously granted 
to the executors, without giving a new notice of his application for 
such authority. A sale by him without such notice is void, and a 
deed under such sale constitutes no defense to an action of ejectment 
by the devisees or their successors in interest, (p. 220.) 

G. H. Buckman and 0. P. Fuller, for the plaintiffs in er- 
ror. 

Hackney & Lafferty, for the defendants in error, 

"^^^ MASON, J. Soranus L. Bretton died testate in Ill- 
inois in 1881. The will was duly probated in the county 
court of Rock Island county, Illinois, and the two persons 
whom it named as executors were appointed and qualified 
as such. These executors then represented to the probate 
court of Cowley county, Kansas, that at the time of his 
death the testator owned certain real and personal prop- 
erty in that county, and asked that the will be there ad- 
mitted to probate, and that they be granted letters testa- 
mentary that they might proceed in the management of the 
part of the estate found in Kansas. An order was made 
admitting the will to record upon the strength of its hav- 
ing been approved by the Illinois court, and letters testa- 
mentary were granted to the executors, who gave the bond 
and took the oath required by the Kansas statute and en- 



220 American State Reports, Vol. 115. [Kansas, 

tered upon the performance of their duties in this state. 
In 1883 they filed in the Cowley county probate court a 
petition for leave to sell real estate situated in that county 
for the payment of debts. Notice of a hearing thereon was 
properly given, and an order was made authorizing the ex- 
ecutors to sell certain tracts of land for that purpose at 
private sale. A number of tracts were accordingly sold, 
the sales were confirmed, and deeds were executed. On 
June 3, 1886, the court ordered that no more of the real 
estate should be sold until a reappraisement should be made 
and until the court should direct further proceedings un- 
der the order of sale already made. 

For more than twelve years nothing further was done to 
subject the real estate remaining unsold to the payment of 
debts. On August 30, 1898, Burton F. Peek made a show- 
ing in the probate court of Cowley county that the Illinois 
court having jurisdiction of the Bretton estate had ap- 
pointed him administrator de bonis non with the will an- 
nexed, on account of one ^^'^ executor's having died and 
the other's having refused to act and being disqualified by 
nonresidence in Illinois. He asked the Kansas court to 
make an order recognizing him as such administrator, with 
authority to sell real estate in the manner prescribed by 
law. An order was accordingly made recognizing him as 
such administrator, confirming his appointment by the 
Illinois court, and approving the bond which had been there 
given. 

This administrator then presented an application to the 
Cowley county probate court representing that an indebted- 
ness against the estate remained unpaid, reciting that the 
order of sale made fifteen years before was still in force, 
and asking that appraisers be appointed to appraise enough 
real estate to satisfy such debt. Appraisers were named, 
appraisements were had, a tract of land was sold, the sale 
was confirmed, a deed was ordered and executed, and pur- 
chaser went into possession. Thereafter several convey- 
ances of the property were made, the last grantees being 
Grant Stafford and P. H. Albright. In 1902 an action was 
brought by the Bretton devisees against Stafford and Al- 
bright for the recovery of the possession of this land, un- 
der the claim that the administrator's sale was absolutely 



Dec. 1905.] Albright v. Bangs. 221 

void and passed no title. They recovered a judgment, 
from which the defendants prosecute error. 

The administrator, Peek, gave no notice of the hearing 
of the petition presented by him for an order authorizing 
the sale of real estate, and the sale was obviously void on 
this account unless the proceedings taken by him can be 
regarded as a continuation of those begun by the executors. 
They were manifestly so considered by him, and so treated 
by the probate court. The only question that need be de- 
termined here is whether the two proceedings were so con- 
nected that the jurisdiction to authorize sales of real es- 
tate acquired by the probate court in virtue of the notice 
given by the executors remained with the court '*^^ so as 
to warrant the making of an order, without further notice, 
for the administrator to sell lands covered by the original 
notice and order. 

It is not doubted that an order made upon due notice 
for the sale of real estate by an executor or administrator 
is sufficient to authorize a sale by his successor in trust (18 
Cyc. 726, 758), but the vital inquiry here is whether for this 
purpose Peek, the administrator de bonis non, was the 
successor of the executors who gave the notice and to whom 
the original order of sale was granted. In the investiga- 
tion of this question it is necessary to observe carefully 
the different steps that were taken and the statutory pro- 
visions by which they were respectively authorized. In 
this connection it is first to be noted that there are two 
separate and distinct methods under our statute by which 
real property in this state may be sold to satisfy the debts 
of a nonresident testator. One of them is that provided 
in sections 7962 to 7965, inclusive, of the General Statutes 
of 1901. Under this method, when a will has been duly 
proved in another state, upon the production by the execu- 
tor or other interested person of an authenticated copy 
of the will and probate thereof the probate court of any 
county in this state in which there is property upon which 
the will may operate may admit it to record: Gen. Stats. 
1901, sec. 7963. Section 7965 reads: "After allowing and 
admitting to record a will pursuant to the four preceding 
sections of this act, the court may grant letters testa- 
mentary thereon, or letters of administration with the will 
annexed, and may proceed in the settlement of the estate 



222 American State Reports, Vol. 115. [Kansas, 

that may be found in this state; and the executor taking 
out letters, or the administrator with the will annexed, shall 
have the same power to sell and convey the real and per- 
sonal estate, by virtue of the will or the law, as other execu- 
tors or administrators with the will annexed shall or may 
have by law." 

It will be noticed that the section quoted contemplates 
the actual appointment by a Kansas court of '*'*® an execu- 
tor or administrator who shall be subject to the control 
of that court in all things. 

The other method referred to is described in sections 
2950 and 2951 of the General Statutes of 1901. Section 
2950 reads as follows: "When an executofr or administrator 
shall be appointed in any other state, territory or foreign 
country on the estate of any person dying out of the state, 
and no executor or administrator thereon shall be ap- 
pointed in this state, the foreign executor or administrator 
may file an authenticated copy of his appointment in the 
probate court of any county in which there may be any 
real estate of the deceased; after which he may be author- 
ized under an order of the court to sell real estate for the 
payment of debts or legacies and the charges of admin- 
istration, in the same manner and upon the same terms 
and conditions as are prescribed in the case of an executor 
or administrator appointed in this state, except as herein- 
after provided." 

Section 1951 provides that if the bond already given by 
the foreign executor or administrator be found sufficient, 
he shall not be required to give any further security; that 
otherwise he must give an undertaking properly to ac- 
count for the proceeds of all sales he may make, according 
to the laws of the state in which he was appointed. It is 
to be noticed that these sections do not contemplate the 
appointment of a Kansas executor or administrator or any 
appointment in Kansas whatever; they merely relate to the 
recognition, for the purpose of effecting the sale of real 
estate situated in Kansas, of an appointment made else- 
where. 

In the present case the executors proceeded under the 
first stated of these two methods. They did not ask that 
the Kansas court should authorize them to sell real estate 
in virtue of their having qualified as executors in Illinois. 



Dec. 1905.] Albright v. Bangs. 223 

They were appointed as executors for Kansas, amenable to 
the Kansas courts and the Kansas laws in all things, and 
they gave bond and took their oaths as Kansas executors. 
The circumstance that they had already been appointed ex- 
ecutors ^^® in Illrnois is a mere incident. It was not essen- 
tial to their appointment in Kansas. Indeed, it would ap- 
pear that, since the statutes of Illinois and of Kansas alike 
forbid the appointment of a nonresident executor, no one 
could properly qualify as an executor in both states. 

On the other hand, the administrator proceeded under 
the second method. He did not seek to be, nor was he, ap- 
pointed as a Kansas administrator. He merely asked to 
have the appointment that had already been made in Illi- 
nois recognized by the Kansas court, so that he might as 
an Illinois administrator sell Kansas real estate under the 
supervision of a Kansas court. 

As appears by section 2950, supra, this could be done only 
upon the theory that no executor or administrator had 
been appointed in Kansas. Executors had been appointed 
in Kansas. One of them died. The other, although re- 
moved by the Illinois court because he was not a resident 
of Illinois, may have been still qualified to act in Kansas, 
80 far as the record discloses. In order for the Cowley 
county probate court to have had jurisdiction to permit 
the foreign administrator to sell Kansas real estate the 
executors already appointed must have been disposed of in 
some way. Perhaps to sustain the acts of the court it may 
te assumed that the surviving executor had been removed 
by the Kansas court as well as by that of Illinois, and that 
the situation therefore became the same, so far as related 
to sales of real estate by a foreign administrator, as though 
no executor or administrator had been appointed in Kansas. 
In that view of the matter the administrator de bonis non, 
in virtue of his appointment in Illinois, might have been 
authorized to sell real estate in Kansas "in the same man- 
ner and upon the same terms and conditions as are pre- 
scribed in the case of an executor or administrator ap- 
pointed in this state." But to procure an order for that 
purpose it was essential that he should give notice. He 
could not avail himself of the notice given by the executors 
*** fifteen years before, for he was not their successor in 
this matter — he did not succeed them in the capacity in 



224 American State Reports, Vol. 115. [Kansas, 

which they had acted in giving the notice and obtaining the 
order of sale. He may have been, and doubtless was, the 
successor of the executors so far as related to their appoint- 
ment and qualification in Illinois, but he was not their 
successor in respect to their appointment and qualification 
in Kansas. The notice they gave and the order they pro- 
cured from the Kansas court were solely in virtue of their 
appointment in Kansas, and, although they chanced to be 
the same persons to whom letters testamentary had already 
been issued in Illinois, it does not follow that the person 
appointed to succeed them there acquired the authority to 
complete their acts begun in their capacity as Kansas ap- 
pointees. 

The administrator's deed was therefore void, and consti- 
tuted no defense to the action of ejectment brought by the 
owners of the land. The judgment is affirmed. 

All the justices concurring. 



On Administrators Be Bonis Non, see the note to Morrow v. Fidelity 
and Deposit Co., 108 Am. St. Eep. 413. 



STATE V. MONAHAN. 

[72 Kan. 492, 84 Pac. 130.] 

CONSTITUTIONAL LAW — Elections — Property Qualifications 
of Officers. — A constitutional provision that no property qualification 
shall be required for any office of public trust, or for any vote at any 
election, applies only to elections and offices provided for in such 
constitution, and has no application to elections held in, or officers 
chosen for a public corporation created by statute, such as a drain- 
age district, whose directors may be required to be freeholders elected 
by resident taxpayers, (p. 226.) 

CONSTITUTIONAL LAW — Elections — Property Qualifications 
of Officers. — The elections held to choose officers of a drainage district 
or to pass upon the expediency of proposed improvements designed 
for protection against floods are not merely other elections than those 
provided for in the constitution; they are of a different character 
from any therein referred to, and so far dissimilar in their nature that 
it cannot be inferred that they were within the contemplation of the 
constitutional convention when the qualifications of electors were 
under consideration by that body. (p. 232.) 

CONSTITUTIONAL LAW— Property Qualifications of Officers 
of Drainage Districts. — A statutory requirement that the directors of 
a drainage district shall be freeholders is not in contravention of a 
constitutional limitation forbidding a property qualification for any 
office of public trust, (p. 233.) 



Dee. 1905.] State v. Monahan. 225 

C. C. Coleman, attorney general, and J. S. Gibson, county 
attorney, for the state. 

W. R. Smith, Pratt, Dana & Black and Waggener, Doster 
& Orr, of counsel. 

S. W. Moore and F. H. Wood, amici curiae. 

Keplinger & Trickett, for the defendants. 

^®* MASON, J. The Kansas legislature at its last ses- 
sion enacted a law (Laws 1905, e. 215) permitting the crea- 
tion of public corporations known as drainage districts, 
having power to take certain measures for the protection 
of property within their boundaries against injury from 
the overflow of natural watercourses ; this power to be exer- 
cised by a board of directors, chosen by the resident tax- 
payers, who are authorized to call elections to vote upon 
propositions to issue bonds to meet the cost of any im- 
provements undertaken. This action is brought in the 
name of the state, upon the relation of the county attorney, 
against the persons selected as the first directors of such a 
drainage district, which has been organized in Wyandotte 
'*®^ county, to oust them from the exercise of the duties 
attached by the statute to their office, upon the ground 
that the act referred to is wholly void because it conflicts 
with the Kansas constitution. The case is submitted on a 
demurrer to the petition. 

The provisions of the act which are claimed to be in con- 
flict with the fundamental law of the state are those pre- 
scribing the qualifications of directors and electors of the 
district. Section 13 provides: "At all elections and meet- 
ings held under the provisions of this act, only persons 
twenty-one years of age who are taxpayers and residents of 
the district, regardless of sex, shall be entitled to vote." 

Substantially the same language is also found in section 
9. Section 8 reads: "That all powers granted to drainage 
districts incorporated under the provisions of this act shall 
be exercised by a board of directors consisting of five per- 
sons, who shall be freeholders and actual residents of the 
district, who shall hold their offices for three years and 
until their successors are elected and qualified, and who 
shall be chosen at the time and in the manner hereinafter 
specified." 

Am. St. Rep., Vol. 115—15 



226 American State Reports, Vol. 115. [Kansas, 

Section 7 of the Bill of Rights includes this restriction: 
"No religious test or property qualification shall be re- 
quired for any oflfice of public trust, nor fpr any vote at any 
election": Gen. Stats. 1901, sec. 89. 

In behalf of the plaintiff it is asserted that the statute, 
in requiring directors of the district to be freeholders, and 
voters to be taxpayers, attempts to impose a property qual- 
ification for an office of public trust, and for a vote at an 
election, within the letter and spirit of the constitutional 
limitation quoted. The defendants maintain: 1. That the 
words "election" and "office," as here used in the consti- 
tution, relate only to elections and offices provided for in 
that instrument, and have no application to elections held 
in, or officers chosen for, a public corporation created by 
statute, such as a drainage district ; 2. That, even if '*^^ the 
provisions attacked are invalid, they may be disregarded 
without impairing the effect of the remainder of the act. 
As the court agrees with the defendants in their first con- 
tention, it will not be necessary to consider the second. 

The question whether it is competent for the legislature 
to confine to taxpayers the right of voting at such elec- 
tions as are provided by this act must be answered in the 
affirmative, upon the authority of Wheeler v. Brady, 15 
Kan. 26. In that case this court upheld a statute giving 
women the right to participate in the election of school dis- 
trict officers, notwithstanding the constitution in granting 
the general right of suffrage to male citizens only by neces- 
sary implication excluded females from its exercise. The 
decision was based upon the principle that the constitu- 
tional expressions concerning the privilege of voting were 
intended to apply only to those elections provided for by 
the constitution itself. In the opinion it was said: "There 
is no school district election or meeting provided for in 
the constitution; there is no provision as to how school 
district officers shall be elected, appointed, or chosen; and 
we suppose no one will claim that they are, by the terms 
of the constitution, to be elected at either of the elections 
provided for in the constitution; hence it would seem that 
the legislature would have full and complete power in the 
matter; that the legislature might provide for the election 
or appointment of school district officers as it should choose, 



Dec. 1905.] State v. Monahan. 227 

when it should choose, in the manner it should choose, and 
by whom it should choose": Page 32. 

The soundness of this decision is questioned by counsel 
for the plaintiff, who allege that it is out of harmony with 
the view prevailing elsewhere. It has, however, been fre- 
quently cited with approval in other jurisdictions: See 
State V. Comes, 15 Neb. 444, 19 N. W. 682; Plummer v. 
Yost, 144 111. 68, 33 N. E. 191, 19 L. R. A. 110; State v. 
Dillon, 32 Fla. 545, 14 South. 383, 22 L. R. A. 124; Harris 
V. Burr, 32 Or. 348, 52 Pac. 17, ^^^ 39 L. R. A. 768 ; State 
V. Board of Elections of City of Columbus, 9 Ohio C. C. 134. 

The cases of Matter of Gage, 141 N. Y. 112, 35 N. E. 1094, 
25 L. R. A. 781, People v. English, 139 111. 622, 29 N. E. 
678, 15 L. R. A. 131, and Coffin v. Election Commrs., 97 
Mich. 188, 56 N. W. 567, 21 L. R. A. 662, turned upon differ- 
ent aspects of the question, but cited the Kansas case with 
approval, and in distinguishing it emphasized the force of 
the reasoning by which it was sustained. 

While the following cases did not in terms refer to 
Wheeler v. Brady, 15 Kan. 26, they involved substantially 
the same question and decided it in the same way: Buckner 
V. Gordon, 81 Ky. 665 ; Belles v. Burr, 76 Mich, i, 43 N. W. 
24; Mayor etc. v. Shattuck, 19 Colo. 104, 41 Am. St. Rep. 
208, 34 Pac. 947 ; Hanna v. Young, 84 Md. 179, 57 Am. St. 
Rep. 396, 35 Atl. 674, 34 L. R. A. 55 ; Spitzer v. Village of 
Fulton, 172 N. Y. 285, 92 Am. St. Rep. 736, 64 N. E. 957 ; 
Leflore County v. State, 70 Miss. 769, 12 South. 904. 

It is true that there are cases which announce a contrary 
doctrine, but they are neither of so large a number nor of 
such cogency of reasoning as to shake the authority of the 
Kansas decision : See St. Joseph etc. R. R. Co. v. Buchanan 
Co. Court, 39 Mo. 485; State v. Constantine, 42 Ohio St. 
437, 51 Am. Rep. 833; Black v. Trower, 79 Va. 123; Allison 
V. Blake, 57 N. J. L. 6, 29 Atl. 417, 25 L. R. A. 480. 

The present case cannot be distinguished from the earlier 
one upon the ground that here the limitation invoked is 
express, while there it was merely implied, or upon the 
ground that here the right of suffrage is restricted, while 
there it was enlarged. It is universally held that the enu- 
meration in a state constitution of the classes of citizens who 
shall be permitted to vote is to be taken as to all matterg 



223 American State Reports, Vol. 115. [Kansas, 

within the purview of the provision as a complete and final 
test of the right to the exercise of that privilege, and that 
the legislature ^®** can neither take from nor add to the 
qualifications there set out: 15 Cyc. 281, 282, 298; 10 Am. 
& Eng. Ency. of Law, 573, 576, 577. The case of Wheeler 
V. Brady, 15 Kan. 26, was not decided upon the theory that 
the legislature might extend to women the right to vote for 
school officers because the constitution did not forbid such 
enlargement of the voting privilege there granted. On the 
contrary, the court assumed that the constitutional pro- 
vision defining qualified electors as male persons of stated 
attril)utes operated to bar females from the exercise of the 
right there referred to as completely as though there had 
been an express prohibition to that effect, and that the 
legislature could no more enlarge any right of suffrage con- 
ferred by the constitution than it could restrict it. The de- 
termination reached was, therefore, necessarily based upon 
the doctrine that the constitutional rules concerning the 
right to vote have application only to such elections as are 
provided for in the constitution itself. 

Nor can the present case be withdrawn from the opera- 
tion of this doctrine b)'' reason of the broad and unqualified 
language of the prohibition relied upon by plaintiff: "No 
.... property qualification shall be required .... for 
any vote at any election.'* Manifestly it is not necessary 
to construe this literally as applying to every election what- 
soever. It doubtless would not be contended that the sen- 
tence relates to the election of the officers of a private cor- 
poration, although that is a matter over which the legisla- 
ture exercises some control : Gen. Stats. 1901, sec. 1288. 
It would be superfluous to cite instances in which general 
language of this character has been given a restricted mean- 
ing. A typical example is presented in Pape v. Capitol 
Bank, 20 Kan. 440, 27 Am. Rep. 183, where the requirement 
that no banking law shall be in force until submitted to a 
popular vote is held to apply only to banks of issue: See, 
also, Fischer v. Moore, 69 Kan. 191, 76 Pac. 403. A reason- 
able interpretation ^"'' of the clause here in question seems 
to confine its application to those elections provided for or 
referred to in other parts of the constitution. This is in 
accordance with the view taken of equivalent expressions 
in cases already cited. In Hauna v. Young, 84 Md. 179 



Dec. 1905.] State v. Monahan. 229 

57 Am. St. Eep. 396, 35 Atl. 674, 34 L. R. A. 55, the section 
of the Maryland constitution under consideration was as 
follows: "All elections shall be by ballot; and every male 
citizen of the United States, of the age of twenty-one years 
or upAvard, who has been a resident of the state for one 
year, and of the legislative district of Baltimore city, or oJ" 
the county in which he may offer to vote, for six months 
next preceding the election, shall be entitled to vote in the 
ward or election district in which he resides at all elec- 
tions hereafter to be held in this state." 

Of this section it was said in the opinion: "It is con- 
tended on the part of the appellant that this section of the 
constitution plainly comprehends and includes within its 
express terms all elections, whether state or federal, county 
or municipal. Yet there is but one municipality mentioned 
in this section of the organic law, and in fact Baltimore City 
is the only municipality mentioned eo nomine in any part of 

the constitution Whilst the constitution (art. 3, sec. 

48) authorizes and empowers the general assembly to create 
corporations for municipal purposes, it nowhere prohibits 
the legislature from imposing upon the qualified voters re- 
siding within the corporate limits of a town any reasonable 
restrictions it may deem proper, when seeking the exercise 
of the right of elective franchise in the selection of its offi- 
cers. In this respect the power of the legislature is unlim- 
ited. The argument advanced at the hearing in this court 
is to the effect that the act in question is void because the 
constitution has conferred the right and prescribed the 
qualifications of all electors in this state, [and] the legis- 
lature is without authority to change or add to them in 
any manner. If the premises of this contention were cor- 
rectly stated, the argument and sequence would undoubt- 
edly be correct. But. as already observed, the constitu- 
tion (art. 3, sec. 48) only in general terms authorizes "**** the 
creation of corporations for municipal purposes, and leaves 
to the legislature the enactment of such details as it may 
deem proper in the management of the concerns of the cor- 
poration, or which may be regarded as beneficial in the 
government of the same. The constitution of this state pro- 
vides for the creation of certain offices, state and county, 
which are filled, either by election or by appointment; and 
we regard it as an unreasonable inference to suppose that 



230 American State Reports, Vol. 115. [Kansas, 

municipal elections held within the state (outside the cor- 
porate limits of Baltimore City) can be properly termed 
elections under the constitution, such as state and county 
elections; or that the framers of the constitution ever con- 
templated that article 1, section 1, of that instrument was 
intended to apply to municipal elections, such as the one 
now under consideration, which is the mere creature of 

statutory enactment It is only at elections which the 

constitution itself requires to be held, or which the legis- 
lature under the mandate of the constitution makes pro- 
vision for, that persons having the qualifications set forth 
in said section 1, article 1, are by the constitution of the 
state declared to be qualified electors": Pages 182, 183. 

The case of Belles v. Burr, 76 Mich. 1, 43 N. W. 24, in- 
volved the construction of a section of the Michigan consti- 
tution reading as follows: "In all elections every male 
citizen ; every male inhabitant residing in the state on the 
twenty-fourth day of June, 1835 ; that every male inhab- 
itant residing in the state on the first day of January, 1850, 
who has declared his intention to become a citizen of the 
United States, pursuant to the laws thereof, six months 
preceding an election, or who has resided in the state two 
years and six months, and declared his intention as afore- 
said; and every civilized male inhabitant of Indian descent, 
a native of the United States, and not a member of any 
tribe — shall be an elector, and entitled to vote; but no citi- 
zen or inhabitant shall be an elector or entitled to vote at 
any election unless he shall be above the age of twenty- 
one years, and has resided in this state three months, and 
in the township or ward in which he offers to vote ten 
days, next preceding such election." 

"•^^ The court said: "While it must be conceded that no 
person can vote for the election of any officer mentioned 
in the constitution unless he possesses the qualifications of 
an elector prescribed by that instrument, it does not fol- 
low that none but such electors can vote for officers which 
the legislature has the right to provide for, to carry out 
the educational purpose declared in that instrument": 
Page 11. . 

In Mayor etc. v. Shattuck, 19 Colo. 104, 41 Am. St. Rep. 
208, 34 Pac. 937, the court, in interpreting a constitutional 
provision that certain persons should be entitled to vote "at 



Dec. 1905.] State v. Monahan. 231 

all elections," said: "It is manifest that some restriction 
must be placed upon the phrase 'all elections,' as used in 
section 1, else every person having the qualifications there- 
in prescribed might insist upon voting at every election, 
private as well as public, and thus interfere with affairs 
of others in which he has no interest or concern. In our 
opinon the word 'elections,' thus used, does not have its 
general or comprehensive signification, including all acts 
of voting, choice, or selection, without limitation, but is 
used in a more restricted political sense — as elections of 
public officers." 

In Spitzer v. Village of Fulton, 172 N. Y. 285, 92 Am. St. 
Rep. 736, 64 N. E. 957, the court said of a provision of the 
constitution giving citizens having certain qualifications the 
right to vote "for all officers that now are or hereafter may 
be elective by the people, and upon all questions which may 
be submitted to the vote of the people": "The contention 
of the plaintiffs is that the provisions of chapter 269 eon- 
tain a restriction upon the provisions of article 2 as to the 
right to vote for elective officers and upon all questions 
which may be submitted to the vote of the people, and, 
hence, are violative of its provisions. The obvious purpose 
of that article was to prescribe the general qualifications 
that voters throughout the state were required to possess 
to authorize them to vote for public officers or upon public 
questions relating to general governmental affairs. But we 
are of the opinion that that article was not intended to de- 
fine the qualifications of voters upon questions relating to 
the financial interests or ****** private affairs of the various 
cities or incorporated villages of the state, especially when, 
as in this case, it relates to borrowing money or contracting 
debts": Page 289. 

The Mi.ssissippi legislature enacted a stock law which was 
to become effective in each county upon being approved at 
a local election, to be participated in by voters having quali- 
fications entirely different from those prescribed for elect- 
ors by the con.stitution. The statute was attacked upon 
the ground that it sought to establish a property qualifica- 
tion for voting and to extend the right of suffrage to per- 
sons barred from its exercise by the constitution. In Le- 
flore County V. State. 70 Miss. 769, 12 South. 904, the court 
said: "The provisions of the constitution as to qualified 



232 American State Reports, Vol. 115. [Kansas, 

electors, and registering electors, and the election ordinance 
adopted by the constitutional convention, have been ap- 
pealed to as rendering: unconstitutional the provisions of 
the code as to a stock law. We reject this view. There is 
nothing in the constitution or ordinances at war with the 
stock law. The legislature might pass a stock law for one 
or all the counties Avithout a vote of the people on the 
subject. It might empower each board of supervisors to 
declare such law in force, without vote or petition of the 
people, and, having plenary power over the subject, was 
authorized to prescribe the conditions on which the boards 
might act": Page 778. 

The electioijs referred to in the act under consideration 
were not provided for by the constitution, nor did the con- 
stitution impose upon the legislature any duty to make 
provision for them. They were not required to be held 
by reason of anything contained in the fundamental law of 
the state. The drainage district in question is wholly the 
creation of the legislature, which had practically unlimited 
discretion in the matter. The statute might have made the 
office of director appointive instead of elective, and might 
have made the issuance of bonds dependent upon the will 
of the taxpayers as indicated by petition instead of by 
vote. That the '^^^ selection of the officers Avho act for the 
corporation is decided by the usual electoral machinery, 
but by a restricted electorate, and that the concurrence of 
the taxpayers in a bonding proposition is expressed by 
means of an election, rather than by some other method, do 
not bring the case within the reason or within the true 
meaning of the clause of the constitution relied upon by 
the plaintiff. The elections held to choose officers of a 
drainage district or to pass upon the expediency of pro- 
posed improvements designed for protection against floods 
are not merely other elections than those provided for in 
the constitution; they are of a different character from any 
therein referred to, and so far dissimilar in their nature 
that it cannot be supposed that they were within the con- 
templation of the constitutional convention when the quali- 
fications of electors were under consideration by that body. 

It practically follows from the views already announced 
that the requirement that the directors of the district shall 
be freeholders is not in contravention of the constitutional 



Jan. 1906.] McAllister v. Fair. 233 

limitation forbidding a property qualification for any office 
of public trust. The words "office of pubilc trust" are 
equivalent to "public office": Ex parte Yale, 24 Cal. 241, 
85 Am. Dec. 62; Conley v. State, 46 Neb. 187, 64 N. W. 
708. The director of a drainage district is in a sense a pub- 
lic officer, but as his office is not one provided for by the 
constitution, nor even one of the same general character 
as any that are referred to in that instrument, it must be 
deemed not to be within the scope of the prohibition. The 
reasons for giving to the broad expression "any election" 
a restricted meaning apply with almost or quite equal force 
to the corresponding one — "any office of public trust." 
As the two phrases are used in the same sentence and in 
the same connection, it would hardly be reasonable to en- 
force the restriction in the one case and not in the other. 
The demurrer to the petition is sustained. 

All the justices concurring. 



A Statute Limiting the Eight of Suffrage as to the business and finan- 
cial affairs of villages to the taxpayers of the municipality does not 
violate the article of the constitution defining the general qualifica- 
tions of the electors of the state: Spitzcr v. Fulton, 172 N. Y. 285, 
92 Am. St. Rep. 736. For other authorities on this question, see 
Hanna v. Young, 84 Md. 179, 57 Am. St. Eep. 396; Mayor v. Shattuck, 
19 Colo. 104, 41 Am. St. Rep. 208. 



McAllister v. fair. 

[72 Kan. 5.33, 84 Pac. 112.] 

DESCENT AND DISTRIBUTION— Inheritance by Murderer.— 

If the statute of descents provides in clear and unambiguous terms 
♦hat a husband shall inherit from his wife dying intestate, and makes 
no exception on account of crime on his part, the courts cannot, upon 
considerations of public policy, so interpret the statute as to exclude 
from the inheritance one who murders his wife for the purpose of ac- 
quiring her property, (p. 285.) 

DESCENT AND DISTRIBUTION- Bight of Criminal to In- 
herit. — If the statute of descents contains no exception on account 
of crime by one entitled to inherit under its terms, the courts can add 
none. (p. 239.) 

R. W. Turner, for the plaintiffs in error. 

W. S. Canan. W. R. Mitchell and S. H. Allen, for the de- 
fendants in error. 



234 American State Reports, Vol. 115. [Kansas, 

**** JOHNSTON, C. J. This was a proceeding begun iu 
the probate court to obtain a distribution of the estate 
of Kate Brandt. She was killed by her husband on March 
14, 1903. for the purpose of obtaining her property, and in 
a prosecution for the offense he was convicted of murder 
in the first degree and is now imprisoned in the penitentiary 
under a death sentence. She had no children, and under 
ordinary and normal circumstances her husband would 
inherit her estate. She left a personal estate said to be 
worth about one thousand dollars, and the husband assigned 
and transferred his interest in it to G. A. Bailey, the attor- 
ney who defended him against the criminal charge. Her 
brothers and sisters, the nearest blood relatives living, 
claimed the estate, alleging that the husband's crime dis- 
abled him from taking any interest in it. In the probate 
court, and also in the district court, to which the case was 
appealed, '^^^ it was held that the husband was the only heir 
of his deceased wife ; that her estate descended to him ; and 
that Bailey was entitled to it under the assignment. 

The plaintiffs complain, and insist that a murderer should 
not be permitted to inherit the estate of his victim. The 
descent and devolution of property is regulated by statute. 
Section 2521 of the General Statutes of 1901 provides: "If 
the intestate leave no issue, the whole of his estate shall go 
to his wife; and if he leave no wife nor issue, the whole of 
his estate shall go to his parents." Section 2529 provides: 
"All the provisions hereinbefore made in relation to the 
widow of a deceased husband shall be applicable to the hus- 
band of a deceased wife. Each is entitled to the same 
rights or portion in the estate of the other, and like in- 
terests shall in the same manner descend to their respective 
heirs." Section 2532 provides that "the personal prop- 
erty of the deceased not necessary for the payment of debts, 
nor otherwise disposed of according to law, shall be dis- 
tributed to the same persons and in the same proportions as 
though it were real estate." It is conceded that the stat- 
ute is general and inclusive in its terms, but it is said to 
be inconceivable that the legislature intended to give an 
estate to a husband who murdered his wife to obtain it. 
It is argued that the letter of a statute should not prevail 
over its sense and spirit, and that a literal interpretation 
of the statute in question would in effect be giving property 



Jan. 1903.] McAlijster v. Fair. 235 

as a reward for crime. It is said that the legislature is 
presumed to have enacted the statute in question having in 
view the maxims of the common law that no man shall take 
advantage of his own wrong, or acquire property by his 
own crime, or use the law to accomplish his unlawful pur- 
poses, and, therefore, that the courts are justified in im-. 
puting a different intention to the legislature and excepting 
murderers from the operation of the statute. 

These considerations would have great weight if ^^^ there 
were ambiguity in the statute, or if it were the province 
of the court to settle the policy of the state with respect 
to the descent of property or as to the character and extent 
of punishment which should be inflicted for the commission 
of crime. That anyone should be given property as the re- 
sult of his crime is abhorrent to the mind of every right- 
thinking person, and is a strong reason why the lawmakers, 
in fixing the rules of inheritance and prescribing punish- 
ment for felonious homicide, should provide that no person 
shall inherit property from one whose life he has feloniously 
taken. A statute of this character has been enacted in at 
least one state: Iowa Code, 1897, sec. 3386; Kuhn v. Kuhn, 
125 Iowa, 449, 101 N. W. 151. The horror and repulsion 
caused by such an atrocity, however, do not warrant the 
court in reading into a plain statutory provision an excep- 
tion which the statute itself in no way suggests. If the 
statute were of doubtful meaning and open to two con- 
structions, there might be room to infer that the legislature 
intended the one which would be most reasonable and just 
in its application. As will be observed, however, the rule 
of inheritance is explicit, and the statute contains no hint 
that anyone is to be excluded on account of misconduct or 
crime. 

In Ayers v. Commissioners of Trego Co., 37 Kan. 240, 15 
Pac. 229, the court was asked to read into a statute a mean- 
ing which its words did not import, and the re()ly was 
made: "We have not the right to change the statute where 
it is clear and free from ambiguity, by any judicial inter- 
pretation." In the recent case of Atchi.son etc. Ry. Co. v. 
Atchison Grain Co., 68 Kan. 585, 75 Pac. 1051, it was held 
that the* fraud and misconduct of one party which pre- 
vented another from bringing an action did not create an 
implied exception to the statute of limitations; that, the 



236 American State Repohts, Vol. 115. [Kansas, 

legislature having made no exception on that ground, none 
could be made by the courts; that it was the duty of the 
courts to administer the law regardless of particular cases 
of hardship; that the '*^** function of changing a law be- 
cause it works unjustly or oppressively belongs to the 
legislature, and for a court to ingraft an exception upon 
a statute would be judicial legislation. 

The argument that a literal interpretation of the statute 
would in effect encourage crime and contravene public pol- 
icy is no reason why the courts should disregard a plain 
statutory provision, nor would it justify them in determin- 
ing the policy of the state upon the question. The right 
to determine what is the best policy for the people is in 
the legislature, and courts cannot assume that they have a 
wisdom superior to that of the legislature and proceed to 
inject into a statute a clause which, in their opinion, would 
be more in consonance with good morals or better accom- 
plish justice than the rule declared by the legislature. It 
has been said that "the well-considered cases warrant the 
pertinent conclusion that when the legislature, not tran- 
scending the limits of its power, speaks in clear language 
upon a question of policy, it becomes the judicial tribunals 
to remain silent": Deem v. Millikin, 6 Ohio C. C. 357. 

The statute makes nearness of relationship to the dece- 
dent, and not the character or conduct of the heir, the con- 
trolling factor as to the right of inheritance. Besides, the 
penalties for felonious homicides are definitely prescribed in 
another statute, and the loss of the inheritable quality or 
the forfeiture of an estate is not among them. If the court 
should hold that the loss of heirship and the forfeiture 
of an estate were a consequence of Brandt 's crime, it would 
have to ignore the legislative rule governing the descent 
of property, and would, in effect, impose a punishment for 
his crime in addition to that prescribed by the only body 
authorized to declare penalties for violations of law. Nor 
is it easy to attribute to the legislature an intention to 
take from a criminal the right to inherit as a consequence 
of his crime, since the constitution provides that no convic- 
tion shall work a corruption of blood or ^^^ forfeiture of 
estate: Bill of Rights, sec. 12; Gen. Stats. 1901, sec. 94. 

The cases relied on by plaintiffs in error as authorities 
against the right to inherit are those involving insurance 



Jan. 1906.] McAllister v. Fair. 237 

policies, wills, and the like: Riggs v. Palmer, 115 N. Y. 
506, 12 Am. St. Rep. 819, 22 N. E. 188, 5 L. R. A. 340; Eller- 
son V. Westeott, 148 N. Y. 149, 42 N. E. 540; Luudy v 
Lundy, 24 Can. S. C. 650; New York Life Ins. Co. v. Arm 
strong, 117 U. S. 591, 6 Sup. Ct. Rep. 877, 29 L. ed. 997 
Schmidt v. Northern L. Assn., 112 Iowa, 41, 84 Am. St. Rep 
323, 83 N. W. 800, 51 L. R. A. 141 ; Box v. Lanier, 112 Tenn 
393, 79 S. W. 1042, 64 L. R. A. 458. 

There is a manifest difference, however, between private 
grants, conveyances and contracts of individuals and a pub- 
lic act of the legislature. It might be tliat a person would 
not be permitted to avail himself of the benefits of an in- 
surance policy the maturity of which had been accelerated 
by his felonious act. Many considerations of an equitable 
nature might affect the operation or enforcement of a grant 
or contract of a private person which would have no appli- 
cation or bearing on a statute enacted by the legislature. 
So far as the descent of property is concerned, the courts 
are practically unanimous in holding that all the power and 
responsibility rest with the legislature. They have spoken 
with one voice in opposition to the exclusion of an heir 
from taking an estate on account of crime, where the 
statute in plain terms designates him as one entitled to in- 
herit. 

In Owens v. Owens, 100 N. C. 240, 6 S. E. 794, the court 
had under consideration the question whether a wife who 
had been convicted of being accessory to the killing of her 
husband was disabled from taking the share of the estate 
left by, the deceased which the statute gave to her. It was 
said: "We are unable to find any sufficient legal grounds 
for denying to the petitioner the relief which she demands; 
and it belongs to the law-making power alone ^^** to pre- 
scribe additional grounds for the forfeiture of the right, 
which the law itself gives, to a surviving wife. 

"Forfeitures of property for crime are unknown to our 
law, nor does it intercept for such cause the transmission 
of an intestate's property to heirs and distributees, nor can 
we recognize any such operating principle": Page 242. 

In Carpenter's Estate, 170 Pa. 203, 50 Am. St. Rep. 765. 
32 Atl. 637, 29 L. R. A. 145, it was held that a son who mur- 
dered his father for the purpose of .securing the father's 
estate was entitled to take the estate under the intestate 



1 



233 American State Reports, Vol. 115. [Kansas, 

laws, and that his crime did not destroy his right of inheri- 
tance. Among other things the court remarked: "The legis- 
lature has never imposed any penalty of corruption of blood 
or forfeiture of estate for the crime of murder, and there- 
fore no such penalty has any legal existence The 

intestate law in the plainest words designates the persons 
who shall succeed to the estates of deceased intestates. It 
is impossble for the courts to designate any different per- 
sons to take such estates without violating the law 

It is argued, however, that it would be contrary to public 
policy to allow a parricide to inherit his father's estate. 
"Where is the authority for such a contention? Plow can 
such a proposition be maintained when there is a positive 
statute which disposes of the whole subject? How can 
there be a public policy leading to one conclusion when 
there is a positive statute directing a precisely opposite con- 
clusion? In other words, when the imperative language of 
a statute prescribes that upon the death of a person his 
estate shall vest in his children in the absence of a will, 
how can any doctrine, or principle, or other thing called 
public policy, take away the estate of a child and give it 
to some other person? The intestate law casts the estate 
upon certain designated persons, and this is absolute and 
peremptory, and the estate cannot be diverted from those 
persons and given to other persons without violating the 
statute. There can be no public policy which contravenes 
the positive language of a statute": Page 208. 

In Deem v. Millikin, 6 ^^» Ohio C. C. 357, it was held 
that "the statute of descents provides in clear terms that 
where one dies intestate and seised in fee of lands, they 
shall descend and pass to the children of such intestate; 
and the courts cannot, upon considerations of policy, so 
interpret the statute as to exclude from the inheritance one 
who murders such intestate": Syllabus. This decision was 
affirmed by the supreme court of Ohio upon the reasons 
given by the circuit court: Deem v. Millikin, 53 Ohio St. 
668, 44 N. E. 1134. 

In Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 939, 
25 L. R. A. 564, the supreme court of Nebraska first held 
that one who killed an ancestor could not share in an es- 
tate (Shellenberger v. Ransom, 31 Neb. 61, 28 Am. St. 
Rep. 500, 47 N. W. 700, 10 L. R. A. 810), but upon a re- 



Jan. 1906.] McAllister v. Fair. 239 

hearing and a fuller consideration the court changed its 
position and declared that where the statute of descents 
contains no exception on account of crime the courts can 
add none. In determining the question the court, at page 
643, quoted approvingly from Bosley v. Mattingly, 53 Ky. 
(14 B. Mon.) 89, as follows: "When the law is clear and 
explicit, and its provisions are susceptible of but one inter- 
pretation, its consequences, if evil, can only be avoided by 
a change of the law itself, to be effected by legislative, 
and not judicial, action." 

In meeting the suggestion that to allow a person to gain 
property by intentional homicide is shocking to the senses, 
and that the legislature would necessarily have shared in a 
feeling of abhorrence against such a rule if they had given 
it attention when the act was passed, the court remarked: 
"This is no justification to this court for assuming to sup- 
ply legislation, the necessity for which has been suggested 
by subsequent events, but which did not occur to the minds 
of those legislators by whom our statute of descent was 
framed. Neither the limitations of the civil law nor the 
promptings of humanity can be read into a statute from 
which, without question, they are absent, no matter how de- 
sirable the result to be attained may be": Page 644. 

•^o In the case of Kuhn v. Kuhn, 125 Iowa, 449, 101 
N. W. 151, it was contended that public policy forbids a 
party from deriving advantage from a criminal act, but 
the answer made by the supreme court of Iowa was: "The 
public policy of a state is the law of that state as found in 
its constitution, its statutory enactments, and its judicial 
records: People v. Hawkins, 157 N. Y, 1, 68 Am. St. Rep. 
736, 51 N. E. 257, 42 L. R. A. 490. And when such policy 
touching a particular subject has been declared by statute, 
as in this case, it is limited by such statute, and the courts 
have no authority to say that the legislature should have 
made it of wider application": Page 453. 

In Box v. Lanier, 112 Tenn. 393, 79 S. W. 1042, 64 L. R. 
A. 458, which is cited as an authority against the husband's 
right to inherit, there was a contest over the proceed.s of 
an insurance policy, and, while it was held that the husband 
who feloniously killed his wife was incapacitated to take 
her choses in action, it was determined upon the rules of 
the common law, and not upon a statute of descents. The 



240 American State Reports, Vol. 115. [Kansas. 

majority of the court recognized that the weight of au- 
thority, as well as the better legal reasoning, supported the 
view that an unqualified statute casting descent should be 
given effect, and in the opinion it was said: "For it may 
be true that it would be a stretch of judicial authority to 
hold that an unambiguous statute providing a line of devo- 
lution of property should be interpreted to mean that this 
line was to be broken upon the felonious homicide of the 
ancestor or testator by the one next in succession": Page 
407. 

The court then proceeded to determine that no statute 
existed in the state governing the devolution of property in 
such cases, and based its judgment on common-law prin- 
ciples entirely: See, also, 41 Cent. L. J. 377. 

Although a theory cutting a murderer out of any benefits 
resulting from his crime appeals to the court's sense of 
justice, it cannot be overlooked that the legislature has 
the power to declare a rule of descents; it *** has done so 
in language that is plain and peremptory, and no rule of 
interpretation would justify the court in reading into the 
statute an exception or clause disinheriting those guilty of 
crime. 

The judgment of the district court is affirmed. 

All the justices concurring. 



The Principal Case has the support of Carpenter's Estate, 170 Pa. 203, 
50 Am. St. Kep. 765. However, it is held that a beneficiary in ii 
life insurance policy payable to him, his heirs, or legal representatives, 
who murders the insured, forfeits his rights under the policy, and 
neither he, his assigns, nor his children as heirs can recover thereon 
during his lifetime: Schmidt v. Northern Life Assn., 112 Iowa, 41, 84 
Am, St. Rep. 323. 



CASES 

IN THE 



COURT OE APPEALS 



OF 

KENTUCKY. 



COSTIGAN V. TRUESDELL. 

[119 Ky. 70, 83 S. W. 98.] 

JUDICIAL SAIiE. — Mere Inadequacy of Price is not sufficient 
to set aside a sale of a decedent's real estate to pay debts, (p. 242.) 

JUDICIAL SALE — Setting Aside After Confirmation. — Except 
upon the grounds stated in section 518 of tiie Civil Code practice, a 
court is without power to set aside a sale of a decedent's real estate 
to pay debts after its confirmation, (p. 242.) 

JUDICIAL SALE — Parties, — A Sale of a Decedent's real es- 
tate to pay debts in an action for the settlement of the estate will 
not be set aside because a person who claims to be a creditor, but who 
has not established his claim, was not made a party to the proceed- 
ings, (p. 243.) 

JUDICIAL SALE. — ^Where the Sale of an Equity of Bedemp- 
tion is ordered to pay a decedent's debts, the fact that the order of 
sale is not executed does not prevent the termination of the statutory 
right to redeem, (p. 243,) 

JUDICIAL SALE — Bents, — If a Purchaser of a Decedent's 
Bealty, sold to pay a mortgage and other indebtedness, takes posses- 
sion before the expiration of the time for redemption, he becomes 
liable to the owners for the rents. They are not assets of the estate, 
but a claim in favor of the husband and heirs of the decedent, (p. 
243.) 

JUDICIAL SALE — Bight of Possession. — The Owners of a de- 
cedent 's estate, sold to pay a mortgage and other indebtedness, are 
entitled to possession until a receiver is appointed or the period of 
exemption expires, (p. 243.) 

Louis Reuscher and C. L. Raison, for the appellant. 

George "Washington, Ramsey "Washington and Edward 
A. Bruton, for the appellant. 

^» PAYNTER, J. This action was instituted to settle 
the estate of Anna "W. Covington, and there being but little 
personal property, it was necessary to sell real estate. A 
Am. St. Bep,, Vol. 115—16 (241) 



242 American State Reports. Vol. 115. [Kentucky, 

building association held a mortgage on the real estate, and 
there were some other creditors, including Costigan, who 
did not have a lien upon it. The court ordered it sold to 
satisfy the debts, and it was sold for that purpose on Feb- 
ruary 4, 1903, and it was purchased at the commissioner's 
sale by the appellee Truesdell at less than two-thirds of 
its appraised value. On February 14, 1903, the sale was 
confirmed. The proceeds of the sale only paid the mort- 
gage creditor and costs of the suit, leaving the demands 
of the other creditors unsatisfied. On ]\Iarch 28, 1903, the 
court ordered the equity of redemption sold, but for some 
reason not appearing in the record that order was never 
executed. In November, 1903, W. G. Wagenlander filed a 
petition asking to be made a party to the action, claiming 
he had a debt of thirty dollars against the estate secured 
by mortgage on the real estate. He seems to have aban- 
doned his claim, as he took no further steps to enforce it, 
and he is not here complaining, so the questions here for re- 
view are not affected by the alleged claim of Wagenlander. 
On February 2, 1904, two days before the time for the re- 
demption of the land expired, the appellant Costigan filed 
what is denominated as an answer and cross-petition, by 
which he sought to set aside the sale to Truesdell, claiming 
the land had been sold for a grossly inadequate price. Af- 
ter the expiration of the time for redemption, ''* Costigan 
filed an amended answer and cross-petition, in which he 
avers that, if the property is resold, he would pay five hun- 
dred and fifty dollars for it. 

This court has repeatedly held that a mere inadequacy of 
price is not sufficient to set aside a sale. If it had been a 
good ground for setting aside the sale, the question was 
raised too late, as the sale had been confirmed months be- 
fore. Except upon the grounds stated in section 518 of 
the Civil Code Prac, the court was without power to set 
aside the sale after it had been confirmed: Thompson v, 
Brownlie, 25 Ky. Law Rep. 622, 76 S. W. 172 ; Carpenter v. 
Strother's Heirs, 16 B. Mon. 289; Yoeum v. Foreman, 14 
Bush, 494; Megowan v. Pennebaker, 3 ]\Iet. 501 ; Dawson v. 
Litsey, 10 Bush, 408; Kincaid v. Tutt, 83 Ky. 392, 10 Ky. 
Law Rep. 1006, 11 S. W. 297; Bean etc. v. Hoffendorfer, 84 
Ky. 685, 8 Ky. Law Rep. 739, 2 S. W. 556, 3 S. W. 138. The 
fact that Wagenlander was not made a party does not al- 



Sept. 1904.] Craetree v. Dawson. 2-13 

ter the ease: Thompson v. Brownlie, 25 Ky. Law Rep. 622, 
76 S. W. 172. Besides, he did not establish his claim. It 
may not have existed in law. After the sale to Truesdell, 
the equity of redemption could have been sold, and the 
court so ordered. It was not sold, and the failure to ex- 
ecute the order could not prevent the termination of the 
statutory right to redeem. It only existed for one year 
after the sale, and during that time there was not even an 
offer to redeem : Bethel v. Smith, 83 Ky. 84. It is averred 
in the amended answer that Truesdell took possession of the 
property after his purchase, and that the value of the 
rents was twelve dollars per month. If he did so before 
the expiration of the time for redemption, he is liable to 
the owners for the rents. That question cannot be deter- 
mined in this action, because the court did not place the 
property in the hands of its receiver, and the owners were 
'^ entitled to enjoy the use of the property until the court 
did so, or until the time for redemption expired. The rents 
were not assets of the estate, but a claim in favor of hus- 
band and heirs at law of the decedent. The appellant 
Costigan slept on his rights, and thus failed to collect his 
claim. 
The judgment is affirmed. 



A Judicial Sale will not be set aside, as a nile, for mere inadequacy of 
price alone: George v. Norwood, 77 Ark. 216, 113 Am. St. Rep. 143; 
Koch V. West, 118 Iowa, 468, 96 Am. St. Rep. 394; Clark v. Glos, 180 
111. 556, 72 Am, St. Rep. 223; Stroup v. Raymond, 183 Pa. 279, 63 Am 
St. Rep. 758. 



CRABTREE v. DAWSON. 

[119 Ky. 148, 83 S. W. 557.] 

TORTS— Unintentional Injury. — No one is liable, civilly or 
criminally, for an unintentional consequential injury which results 
from a lawful act, where neither ntgligtnce nor folly can be imputed 
to him; and the burden of jtroving n(gligence or folly, where the act 
is lawful, is always upon the plaintiff. In other words, the founda- 
tion of the defendant's liability in all such casts is negligence, or the 
failure on his part to exercise that degree of care to avt)id making a 
mistake which an ordinarily prudent man would exercise under the 
same or similar circumstances, (p. 249.) 

ASSAULT on Innocent Person Supposed to be an Assailant. — 
If a person, while apprehensive of an attack from A, strikes B, wli'^n 
he has reasonable gfrounds to believe that B is A, and when he further 



244 



American State Reports. Vol. 115. [Kentucky,. 



believes that it is necessary, in tiie exercise of a reasonable judgment, 
to strike A in order to defend himself from a threatened attack by 
A, using no more force than is necessary, or appears necessary to him, 
for this purpose, then he is e::cused ou the ground of self-defense and 
apparent necessity. But it is his duty to exercise the highest degree 
of care practicable under the circumstances to ascertain whether the 
one whom he is about to strike is in fact the one from whom he ap- 
prehends danger; it is not enough that he exercises "due" or "or- 
dinary care and diligence." And if he recklessly and wantonly 
strikes B, he is liable in exemplary as well as compensatory damages, 
(p. 252.) 

ASSAULT — Whether Excusable. — An Instruction in an action 
for assault and battery is objectionable, if it specifically calls the 
attention of the jury in detail to the facts testified to by the defend- 
ant, and relied on to excuse his conduct, (p. 253.) 

J. D, Atchison and Laurence P. Tanner, for the appellant. 

Wilfred Carrico and La Vega Clements, for the appellee. 

ISO BURNAM, C. J. This action for assault and battery 
instituted by appellant, Roy Crabtree, against the appellee, 
John T. Dawson, grew out of the following facts: Appellee 
Dawson owns a three-story building on the corner of Main 
and Locust streets, in Owensboro, Kentucky. The room on 
the first floor is used as a business house. The second floor 
is divided by a partition, the room on one side being used 
for private entertainments. The third floor is a large hall, 
which was rented by appellee for dancing and public enter- 
tainments. The following diagram of the second floor will 
give a fair understanding of the location of the parties and 
place at the time of the assault: 

LOCUST 5TPEET 




STORE ROOrt 



is 

of 

Hi z • 
.Otrf 

Ul 



Sept. 1904.] Crabtree v. Dawson. 245 

A is Dawson at the head of the stairs when he struck 
Crabtree. The red mark* is the stairway leading from the 
store to the landing of the second floor. B is a door enter- 
ing ^^^ the storeroom from the landing, which is about six 
feet wide, and which Dawson opened to get the musket with 
which he struck appellant. C is a door opening into the 
entertainment hall on the second floor. D, D, are two win- 
dows looking from the second floor to the third floor. E is 
a storeroom on the second floor, and F is the hall on the 
second floor. On the night on which this accident occurred, 
Dawson had rented the large hall in the third story to Philip 
Dorn and Ed Rrney to give what was known as a "pay 
dance" for the benefit of the young people of the city. On 
the same night the daughter of appellee and a number of 
friends were giving a social entertainment in the small hall 
on the second floor. While these two entertainments were 
in progress, one Noble, while intoxicated, gained admittance 
to the hall on the third floor, without having paid the cus- 
tomary charge for admittance. Riney, one of the lessees, 
approached him, and insisted that he should either pay or 
leave the hall. He at first refused, but finally Riney suc- 
ceeded in enticing him out of the room into the hall, and 
then closing the door, leaving Noble on the outside. He 
became disorderly, thereby attracting the attention of Daw- 
son, who approached him. Dawson's version of what took 
place after this is as follows: "Noble remarked that he 
was going back and clean out the whole thing, and I said, 
*No, you won't friend.' He replied, 'I am doing no harm.' 
I told him he must go downstairs. He said that he would 
not. I replied, 'You will,' and took hold of him. He went 
down. I may have shoved him a little. He stopped in front 
of the door of the hall on the second floor, where he tried 
to go in. I pushed him by, and got down to the platform 
on the first floor, where he sat down. He then got up and 
said, 'If you will come down here, I will fix it with you.' 
I replied, 'I don't want to bother with you.' ^'^^ This plat- 
form goes into my storeroom. And when I got up to the 
head of the steps, somebody remarked, 'He is getting some 
bricks.' I stepped into the door and got an old musket. 
Just then Crabtree came running rapidly up the steps from 
the store below. I believed it was Noble returning to attack 

*Tbe red mark is designated with dotted lines in the diagram. 



246 American State Reports. Vol. 115. [Kentucky, 

me, and called out to him, 'Don't come up here'; but he paid 
no attention to me, and, when he got up within striking dis- 
tance, supposing it was Noble, I struck him with the butt 
of the musket, when I discovered that I had made a mistake 
and hit the wrong man." It is also shown that the hall 
at this point was somewhat dimly lighted, and that after ap- 
pellee discovered his mistake he took appellant to a drug- 
store, had his wounds dressed by a physician, and sent him 
home in a carriage, and that he went the next day to ex- 
press his regret at the occurrence, and offered to pay his doc- 
tor's bill, for loss of time, and for a new suit of clothes, the 
one worn by appellant having been greatly injured. The 
testimony for plaintiff is to the effect that he was only seven- 
teen years old; that he was on his way as a guest to the 
dance being given in the hall on the third floor; that, whilst 
he heard Dawson tell Noble not to come back at the time 
he pushed him out of the store, he did not hear anyone call 
to him not to come up; that, as a result of the blow, he was 
knocked to the bottom of the steps, and sustained serious in- 
juries. The jury, on these facts and the instructions given 
by the court, returned a verdict for the defendant, and plain- 
tiff has appealed. 

The main ground for reversal is that the court did not 
properly instruct the jury. As the question is a somewhat 
novel one, we deem it best at this point to insert the instruc- 
tions in full. They are as follows: 

"1. The court instructs the jury that if they believe from 

the evidence that the defendant on the day of November, 

*** 1903, did wrongfully, willfully, recklessly, or unlawfully 
assault, beat, bruise, or wound the plaintiff by striking him 
violently on the head with the butt of a heavy gun or musket, 
thereby inflicting a dangerous wound on his head, from the 
effect of which assault and wounding the plaintiff suffered 
physical and mental pain and anguish, and was damaged 
thereby, they should find for the plaintiff' such a sum of 
money as will reasonably compensate for the physical and 
mental pain which he sustained as the proximate result of 
said assault, not exceeding the sum of five thousand dollars. 

"2. The court further instructs the jury that if they 
believe from the evidence that the assault of the defendant 
on the plaintiff was willful and reckless, and the defendant 
did not believe, or have reasonable grounds to believe when 



Sept. 1904.] Crabtree v. Dawson. 247 

he made said assault, that the person he was assaulting was 
Ollie Noble, then they may find any sum as punitive dam- 
ages in favor of the plaintiff, provided, however, all damages 
they may find for the plaintiff do not exceed in the aggregate 
the sum of five thousand dollars. 

"3. The court further instructs the jury that if they be- 
lieve from the evidence that the striking of the plaintiff by 
the defendant as set out in the petition was unintentional, 
and they further believe that it was recklessly committed 
by the defendant, and that the defendant did not use ordi- 
nary care and diligence, considering all the circumstances, 
to discover who the person was that he was about to strike 
before he struck, then the law is for the plaintiff, and the 
jury should find for the plaintiff; and, if they find for the 
plaintiff, the measure of their finding should be such sum 
as will rea,sonably compensate the plaintiff for the physical 
and mental pain which he sustained as the proximate *^^ re- 
sult of said striking or assault, not exceeding the sum of all 
as mentioned in instruction No. 1. 

"4. The court further instructs the jury that if they be- 
lieve from the evidence that the defendant believed, and had 
reasonable ground to believe, that the person whom he struck 
was Ollie Noble, and said Noble had been on the premises 
of the defendant immediate!}'' before said assault, and had 
been ordered to leave defendant's premises, and had threat- 
ened to return and assault the defendant or his guests, and 
the defendant believed, and had reasonable grounds to be- 
lieve, that when the plaintiff was coming up his stairway 
that it was Ollie Noble, and that it was necessary to strike 
the plaintiff in order to defend himself and his guests from 
the threatened attack upon him and his guests, and the de- 
fendant used due care and diligence, considering all the cir- 
cumstances and facts surrounding him, and his connection 
with said Noble, immediately before said time, and unin- 
tentionally struck the plaintiff, mistaking the plaintiff for 
the said Noble, then the law is for the defendant, and the 
jury should so find. 

"5. The court further instructs the jury that if they be- 
lieve from the evidence that at the time the defendant as- 
saulted the plaintiff" he had just previously thereto had a 
difficulty with one Noble, and he had ordered said Noble to 
leave the premises, and took him out of his house, and that 



248 American State Reports. Vol. 115. [Kentucky, 

said Noble threatened to immediately return to the defend- 
ant's house, and threatened to assault the defendant, and im- 
mediately thereafter he did see the plaintiff coming up the 
plaintiff's stairway on his premises, and, after exercising 
due care to ascertain whether or not it was Noble, did be- 
lieve the plaintiff to be said Noble, and defendant was in 
the exercise of reasonable care for his own safety and pro- 
tection of his property and guests, and in his own house, 
^f"* and was also reasonably careful and exercised due care 
to discover whether the person he was about to strike or as- 
sault was, or not, the said Noble, and they further believe 
that before striking the plaintiff he ordered the plaintiff to 
leave defendant's premises, and the plaintiff did not do so, 
or offer to leave, and the defendant believed at the time he 
struck the person he was about to strike Ollie Noble, that 
he was then in danger of great bodily harm or death at the 
hands of the said Noble, and that it was necessary to strike 
him in order to protect his guests, property, family, or him- 
self, from the threatened assault, and he had used no more 
force than was reasonably necessary to protect himself, his 
guests, or his property, from said assault, then the law is 
for the defendant, and the jury should so find, except they 
believe from the evidence that the defendant used more force 
and violence in striking than was necessary to eject the per- 
son from his premises, if he believed it to be Ollie Noble, 
or more force and violence than was necessary to protect 
his property, his guests, his family, and himself from the 
threatened assault of said Ollie Noble. 

"6. The court further instructs the jury that if they be- 
lieve from the evidence that the striking of the plaintiff by 
the defendant was unintentional, and that the defendant was 
intending to strike one Ollie Noble, and that the defend- 
ant would not have struck the plaintiff, except for the plain- 
tiff's own carelessness and negligence in coming up the stair- 
way of the defendant, and they further believe that the plain- 
tiff's own carelessness and negligence contributed to and 
brought about the damages now complained of, then the law 
is for the defendant, and the jury should so find. 

*'7. 'Due care,' as used in the foregoing instructions, is 
that degree of care that a prudent man would exercise under 
the same or similar circunLstances. 



Sept. 1904.] Crabtree v. Dawson. 249 

1B6 «<8 The court further instructs the jury that if they 
believe from the evidence that the striking of the plaintiff by 
the defendant on the occasion mentioned in instruction No. 
1 was willful or reckless, or that the defendant did not ex- 
ercise due care in ascertaining whom he was about to strike, 
then the jury cannot consider mitigating circumstances, as 
against the actual damage that the plaintiff sustained by 
such striking, but can only consider the mitigating circum- 
stances and the justification, if any, of the defendant, in so 
far as it affects the punitive damages sought to be recovered 
in this action." 

Both the plaintiff and defendant excepted to all the instruc- 
tions given by the court, and offered instructions covering 
their respective views of the law. Those offered by appel- 
lant were based upon the theorj'^ that he was, in any contin- 
gency, under the admitted facts of the case, entitled to com- 
pensatory damages for the injuries resulting from the as- 
sault and battery made upon him by the defendant. On 
the other hand, those offered by defendant are based upon 
the theory that if he believed, and had reasonable grounds 
to believe, at the time he struck plaintiff, that it was Ollie 
Noble whom he was striking, and that it appeared to him 
to be necessary in order to protect himself or guests from a 
threatened assault at the hands of Noble, he was excusable 
on the grounds of apparent necessity and self-defense. From 
a careful examination of the decisions of this court and 
those of other jurisdictions, we feel warranted in asserting 
that no one is liable, civilly or criminally, for an uninten- 
tional consequential injury which resulted from a lawful act, 
where neither negligence nor folly can be imputed to him, 
and that the burden of proving negligence or folly, where the 
act is lawful, is always upon the plaintiff. In other words, 
that the foundation of defendant's liability in all such cases 
^^"^ is negligence, or the failure on his part to exercise that 
degree of care to avoid making a mistake which an ordinarily 
prudent man would exercise under the same or similar cir- 
cumstances. A very full discussion of this class of cases 
is found in Morris v. Piatt, 32 Conn. 75. As this is the 
oldest and best considered case on the subject to which our 
Attention has been directed, we quote from it liberally as 
follows: "An accident is an event or occurrence which h-ap- 



250 American State Reports. Vol. 115. [Kentucky, 

pens unexpectedly, from the uncontrollable operations of na- 
ture alone, and without human agency, as when a house is 
stricken and burned by lightning, or blown down by tempest, 
or in an event resulting undesignedly and unexpectedly from 
human agency alone, or from the joint operation of both; 
and a classification which will embrace all the cases of any 
authority may easily be made. In the first class are all 
those which are inevitable or absolutely unavoidable, be- 
cause affected or influenced by the uncontrollable operations 
of nature ; in the second class, those which result from human 
agency alone, but were unavoidable under the circumstances; 
and in the third class, those which were avoidable, because 
the act was not called for by any duty or necessity, and the 
injury resulted from the want of that extraordinary care 
which the law reasonably required of one doing such lawful 
act, or because the accident was the result of actual negli- 
gence or folly, and might, with reasonable care adapted to 
the exigency have been avoided. Thus, to illustrate: If A 
bum his own house, and thereby the house of B, he is liable 
to B for the injury; but if the house of A is burned by 
lightning, and thereby the house of B is burned, A is not 
liable. The accident belongs to the first class, and was strictly 
inevitable and absolutely unavoidable. And if A should 
kindle a fire in a long unused flue in his own house, which 
has become cracked without his knowledge, and the fire 
***** should communicate through the crack and bum his 
house, and thereby the house of B, the accident would be un- 
avoidable, under the circumstances, and belong to the second 
class. But if A, when he kindled the fire, had reason to sus- 
pect that the flue was cracked, and did not examine it, and 
so was guilty of negligence, or knew that it was cracked and 
might endanger his house and that of B, and was so guilty 
of folly, he would be liable, although the act of kindling the 
fire was a lawful one, and he did not expect or intend that the 
fire should communicate." The learned writer goes on to 
say further: "The foundation of that liability in every case 
of accident, where it is the result of human agency, unin- 
fluenced by the operations of nature, and the act is lawful, 
is really negligence. This is true of collisions between ves- 
sels on the water, or horses and vehicles and persons on land. 
.... So, when a man in firing at a mark unintentionally 
wounds another, the injury is direct, and the form of ac- 



Sept. 1904.] Crabtree v. Dawson. 251 

tion is trespass; but the ground of liability is negligence in 
doing an unnecessary and avoidable, though lawful, act with- 
out that extraordinary degree of care which the law demands 
in such circumstances, and which would have prevented the 
accident." 

In Brown v. Kendall, 6 Cush. 292, which was an action 
of assault and battery, the defendant accidentally hit the 
plaintiff, a bystander, while raising a stick to strike and 
part two dogs which were fighting. Chief Justice Shaw, 
in his opinion in that case, held that the defendant was not 
liable, unless the act was done in the want of the exercise of 
due care adapted to the exigencies of the case, and therefore 
such want of due care became part of the plaintiff's case, 
and the burden of proof was on the plaintiff to establish it. 
In Paxton v. Boyer, 67 111. 132, 16 Am. Rep. 615, the ac- 
tion was for an assault and battery. It appeared that de- 
fendant ^^^ and plaintiff's brother were in a conflict. "When 
defendant struck plaintiff with a knife, supposing him to be 
the brother, plaintiff had in fact g;ven no provocation. The 
jury found for the plaintiff, and assessed his damages. The 
court instructed for that plaintiff that it was no defense, 
so far as actual damages were concerned, that the defendant 
had been violently assaulted by a person other than plaintiff, 
or was then being assaulted by such person, or that he may 
have honestly believed he was striking the plaintiff's brother 
when he struck plaintiff, or that he may have honestly be- 
lieved it was necessary for his self-defense to assault the 
plaintiff, if the jury found from the evidence that the plain- 
tiff was not a party to such assault upon the defendant ; that 
such evidence of mistake of fact or good intentions on the 
part of the defendant can only be considered by the jury 
as a defense against the infliction by the jury of vindictive 
damages, and not as a defense against such actual damages 
as the evidence showed plaintiff had suffered from such as- 
sault, or as naturally resulted from such assault." The in- 
structions were disapproved of in the opinion of the supreme 
court, the court saying: "If a person, doing a lawful act 
in a lawful manner, with all due care and circumspection, 
happens to kill another, without any intention of doing so, 
he is not liable criminally. How, then, can it be said he 
shall be responsible in a civil ca.se, when, in doing a lawful 
act with due care, if an injury happens, he shall be deemed 



252 American State Reports. Vol. 115. [Kentucky, 

in fault, and mulcted in damages? It is said by appellee 
the rule is different in civil cases; that the motive, intent 
or design of the wrongdoer toward the plaintiff is not the 
criterion as to the form of remedy, for when the act occa- 
sioning the injury is unlawful, the intent of the wrongdoer 
is immaterial, but appellant here is no wrongdoer, as the 
160 jyjy have said by their special verdict." The judgment 
in the case was reversed. 

In 1 Joyce on Damages, page 427, section 367, the author 
says: "Though an assault may be unintentional, yet if it 
is recklessly committed, the party guilty will be liable in 
damages therefor, and the injured party may recover such 
damages as are the natural and direct result of the act of 
violence, including mental and physical pain and suffering. 
But one who in the exercise of his right of self-defense in- 
flicts an unintentional injury upon a third party is not 
responsible in damages therefor, as where a person was as- 
saulted by another, and he struck a third person, mistaking 
him for the assailant." Roberson's Criminal Law and Pro- 
cedure, in section 542, page 752, lays down the rule as fol- 
lows: "This right of self-defense exists although the danger 
is not real, but apparent only. A person will not be held 
responsible, civilly or criminally, if he acts in self-defense 
from a real and honest conviction induced by reasonable evi- 
dence, although he may have been mistaken as to the extent 
of the actual danger"; citing a number of Kentucky cases in 
support of the text. 

When we apply the principles of law announced in these 
decisions to the case at hand, it follows that if the defendr.nt, 
at the time he struck the plaintiff, believed and had reason- 
able grounds to believe, that he was OUie Noble, and that 
he further believed that it was necessary, in the exercise 
of a reasonable judgment, to strike Noble, in order to defend 
himself from a threatened attack about to be made upon him 
by Noble, and that he used no more force than was neces- 
sary, or appeared to him to be necessary, for this purpose, 
then he is excused on the ground of self-defense and apparent 
necessity. But it was the duty of the defendant to have 
exercised the highest degree of care practicable under the 
circumstances to have ascertained whether the person whom 
'^^ he was about to strike was in fact the one whom he be- 
lieved him to be, and from whom he apprehended danger to 



Sept. 1904.] Ckabtree v. Dawson. 253 

himself. And if he recklessly and wantonly struck plaintiff, 
he was entitled, in addition to compensatory damages, to 
exemplary damages as well. 

Whilst the instructions given in the case by the trial court 
are based upon the proper theory, they are in several impor- 
tant respects technically erroneous. For instance, in the third 
instniction only "ordinary care and diligence" is required 
of the defendant in ascertaining whether the person he was 
about to strike was in fact the person from whom he antici- 
pated injury. This is error. He should have been required 
to exercise the highest or utmost care practicable under the 
circumstances by which he was surrounded. 

In the fourth and fifth instructions the words "due care 
and diligence" are used. While the word "due" is defined 
to be "that which is owed," or "that which one has a right 
to demand or claim," we think it hardly comes up to the 
requirements of this case. 

Instruction No. 5 is also objectionable, in that it specifi- 
cally calls the attention of the jury in detail to the facts 
testified to by the defendant, and relied on to excuse his 
conduct. This error has been frequently pointed out and 
condemned by this court. 

The sixth instruction is based upon the plea of contribu- 
tory negligence, and is, in our opinion, out of place in this 
case. There is not a particle of evidence to show contribu- 
tory negligence on the part of the plaintiff. He was at the 
place and doing exactly what he had the right to do. The 
instruction should, therefore, have been omitted altogether. 

For reasons indicated, the judgment is reversed, and cause 
remanded for a new trial not inconsistent with this opinion. 

Petition for rehearing by appellee overruled. 



The Law of Self-defenxe is discussed in the notes to State v. Gordon, 
109 Am. St. Rep. 804; State v. Sumner, 74 Am. St. Rep. 717. 

Unintentional Homicides are considered in the note to Johnson v. 
State, 90 Am. St. Rep. 571. 

Negligence is the Failure to do what a reasonable and prudent person 
would ordinarily have done under the circumstances, or the doing of 
what such a person would not have done under those circumstances. 
Thi« definition does not exclude the idea that one may act upon ap- 
pearances: McDonald v. International etc. Ry. Co., 86 Tex. 1, 40 Am. 
St. Rep. 803; Harker v. Burlington etc. Ry. Co., 88 Iowa, 409, 45 Am. 
St. Rep. 242; Brotherton v, Manhattan Beach Imp. Co., 48 Neb. 563, 
58 Am. St. Rep. 709; Tully v. Philadelphia etc. R. B. Co., 2 Penne. 
(Del.; 537, 82 Am. St. Rep. 425. 



254 American State Reports. Vol. 115. [Kentucky, 



LUDLOW LmrBER COMPANY v. KUHLING. 

[119 Ky. 251, 83 S. W. 634.] 

BUHiDINO CONTRACT — ^Acceptance as Waiver. — The owner 
of land on wliifh he contracts to have a house erected may recover 
damages for defective construction, although he pays the contract 
price, takes possession, and does not discover the defect until eight 
months thereafter, (p. 2.56.) 

Furber & Jackson, for the appellant. 

W. A. Byrne, for the appellee. 

252 PAYNTER, J. The appellees owned a lot in Ludlow, 
and, desiring to have a brick house built upon it, they entered 
into a contract with T. Johnson and others, as partners doing 
business under the firm name of Ludlow Lumber Company, by 
which they, in consideration of two thousand one hundred 
dollars, agreed to furnish the material and labor, and erect 
the house according to the plans and specifications. It was 
completed in October, 1901, when it was turned over to the 
appellees under representations by the appellants that it had 
been completed according to the contract. The appellees 
lived in it until May, 1902, a period of eight months, when 
they awoke one morning and found the walls of the house 
badly cracked and out of ^^^ plumb ; and it cost them several 
hundred dollars to repair the foundation and house. This 
action was brought against appellants to recover damages for 
the defective construction of the house. The defendants 
sought to avoid a recovery by showing that it had been com- 
pleted according to the contract, and that the damages 
resulted from a cause other than defective construction. The 
verdict of the jurj', which was sustained by the court, and 
upon which the judgment was rendered, allowed the plaintiffs 
three hundred and thirty-eight dollars and ninety-five cents. 

There was a conflict in the testimony, but it was the prov- 
ince of the jury to reconcile it, and, having done so, this 
court must decline to disturb the finding of the jury upon 
the question of fact. 

The principal reason urged for a reversal is that appel- 
lees accepted the house, and moved into and lived in it for 
eight months before discovering the alleged defect. Even 
if there had been a defect in the construction, and they had 
knowledge of it before moving into the house, that " fact 



Sept. 1904.] Ludlow Lumbeb Co. v. Kuhlinq. 255 

would not prevent them from recovering for the breach of 
the contract. The law on this question is well stated in 
Morford v. Mastin etc., 6 T. B. :\ron. 609, 17 Am. Dec. 168, 
in which the court said : * ' We are unwilling to attach so much 
importance to the defendant's receiving the work. How 
could he reject it without abandoning his estate on which it 
was situated? It was already part of his freehold, and he 
received every part as it progressed. The court seems to 
have confounded the case of a building on an employer's 
premises with such jobs of work and labor as a tailor per- 
forms in making his garment, the cabinet-maker his furniture, 
or the painter his figures. In these latter cases it is admitted 
that much depends on the acceptance of the article made, and 
not objecting to it, and rescinding the contract so soon as the 
defect is discovered, and that ^^"* for a very good reason ; be- 
cause it is necessary to do justice to the mechanic by possess- 
ing him of the article out of which to make his money, 
instead of keeping both the article and the price. Hence 
Starkie (volume 3, page 1769), says: 'Notwithstanding the 
universality of the position that performance, when it is the 
consideration for the payment of the stipulated price, is a 
condition precedent, yet the conduct of the employer in 
adopting the contract, when, if he disputed the performance, 
he had it in his power to rescind it in toto by placing the 
parties in statu quo, affords, as against him, a conclusive pre- 
sumption that the work has been properly executed, or, at 
all events, excludes the party acquiescing from making the 
objection. Instances to this effect have already been cited. 
The principle extends to all cases of executory contracts for 
works of art to be delivered in a complete state. The party 
receiving the work under a specific contract must abide by 
it or rescind it in toto.' But it is well known that such return 
and such rescinding of a contract is impracticable with 
regard to a building erected on an employer's own premises. 
He could not object to the work, and leave it on the hands 
of the workmen, without conveying away his estate; nor 
could the mechanic receive or sell it for his own indemnifi- 
cation. Heuee the reception — that is, leaving it on his prem- 
ises not demolished — or even living in it, could not, with any 
good reason, preclude the employer from making the objection 
on the trial, as the in.struction given supposes." The case 
of Escott V. White, 10 Bush, 169, is to the same effect. The 



256 American State Reports. Vol. 115. [Kentucky, 

legal principle announced by these cases was applied by the 
court in instructions, and, we think, properly so. However, 
counsel for appellant insists that the principle of the Morford 
case does not apply, because in that case the defect was dis- 
covered before taking possession ^^'^ of the property and 
before all of the contract price was paid. The rif?ht to re- 
cover in that case was not based upon the fact that the defect 
was discovered before the owner took possession of the prop- 
erty', and because he protested that it was not completed 
according to the contract. If it was a fact that the house 
was defectively constructed when appellees paid the contract 
price and took possession of the property, a cause of action 
existed. They did not forfeit their claim against the appel- 
lant for damages, because they did not discover that appellant 
had not built the house according to contract. If the law is 
that such a discovery must be made in a reasonable time (it 
is not necessary here to decide that it must be done), the fail- 
ure to make the discovery before eight months is not an 
unreasonable time. We are of the opinion that the jury's 
verdict fixes a proper amount of compensation for appellees; 
therefore they are not entitled to a reversal on the cross- 
appeal. 

The judgment is affirmed on the original and cross-appeals. 



ACCEPTANCE OF WORK AS A WAIVEE OF IMPERFECT PER- 
FORMANCE. 

I. Contract to Manufacture and Sell an Article of Personalty, 256. 
n. Contract to Furnish Machinery, 257. 
m. Contract to Erect Structure on Land. 

a. Effect of Using or Paying for Building, 257. 

b. Doctrine of Substantial Performance, 259. 

c. Church Edifices, 261. 

d. Public Buildings or Works, 261. 

e. Building Materials, 262. 

IV. Contract to Construct Drains or Ditches, 262. 
V. Contract to Dig Wells, 263. 
VI. Effect of Knowledge of Nonperformance, 263. 
VII. Effect of Necessity of Using Articles Contracted for, 263. 

I. Contract to Manufacture and Sell an Article of Personalty. 

An acceptance by the vendee of personal property, after an oppor- 
tunity for inspection, in the absence of fraud, generally estops him from 
tiiereafter raising any objection as to visible defects, unless there is a 
warranty intended to survive acceptance: Day v. Mapes-Keeve Construc- 
tion Co., 174 Mass. 412, 54 N. E. 878; Talbot Paving Co. v. Gorman, 103 



Sept. 1904.] Ludlow Lumber Co. v. Kuhling. 257 

Mich. 403, 61 N. W. 655, 27 L. E. A. 96 ; Eeed v. Eandall, 29 N. Y. 358, 86 
Am. Dec. 305; Pierson v. Crooks, 115 N. Y. 539, 12 Am. St. Eep. 831, 22 N. 
E. 349; Waeber v, Talbot, 167 N. Y. 48, 82 Am. St. Eep. 712, 60 N. E. 288. 
Practically the same rule applies in case of an agreement for the 
manufacture and sale of an article of personalty. An acceptance by 
the vendee of personal property manufactured under an executory 
contract of sale, after a full and fair opportunity for inspection, in 
the absence of fraud estops him from thereafter raising any objection 
as to visible defects and imperfections, whether discovered or not, 
unless the acceptance is accompanied by some warranty of quality 
intended to survive acceptance: Studer v. Bleistein, 115 N. Y. 316, 
22 N. E. 243, 5 L. E. A. 702. 

n. Contract to Furnish Machinery. 
A company for which an electric light plant is constructed may 
waive its right to rescind for failure entirely to complete the plant, 
by accepting and making use of it before its completion: Florence Gas 
etc. Co. V. Hanby, 101 Ala. 15, 13 South. 343. But where a contract 
is violated by constructing defective machinery on the premises of a 
person who has contracted for a first class outfit and appliances, and 
he cannot reasonably do otherwise than to accept the situation and 
make the best use possible of the outfit, he does not thereby waive 
his right to damages: Payne v. Amos Kent Brick etc. Co., 110 La. 
750, 34 South. 763. Where one contracts to have a new boiler erected 
in his boiler-house, and the one which the contractor puts in is not 
of the capacity specified by the contract, use of the boiler after its 
construction and connection with the factory for which it is designed 
does not establish an acceptance thereof: Manitowoc Steam Boiler 
Works V. Manitowoc Glue Co., 120 Wis. 1, 97 N. W. 515. 

III. Contract to Erect Structure on Land. 
a. Effect of Using or Paying for Building. — If a contract is for 
work to be done on movable articles, acceptance is generally a waiver 
of any objections to the quality of the work. However, a contract 
to do work on real property, such as to erect a building thereon, stands 
on a very different basis than do contracts for doing work on a chattel, 
for the owner of the premises is necessarily called upon to take pos- 
session of the completed building or else be excluded from the full 
enjoyment of his estate. Hence it is that the mere fact that the 
owner enters into possession and uses a building which has been con- 
structed for him does not ordinarily constitute a waiver of a non- 
compliance by the contractor with his contract in erecting the build- 
ing. The occupancy and enjoyment of the structure by the owner 
does not necessarily preclude him from showing that the contractor's 
work has been improperly or defectively executed: Mitchell v. Wis- 
cotta Land Co., 3 Iowa, 209; Kilboume v. Jennings, 40 Iowa, 473; 
Monford v. Martin, 22 Ky. (6 T. B. Mon.) 609, 17 Am. Dec. 168; 
Am. St. Eep., VoL 115 — 17 



258 American State Reports. Vol. 115. [Kentucky, 

Stewart v Fulton, 31 Mo. 59; Yeates v. Ballentine, 56 Mo. 530; Fee- 
ney v. Bardsley, 66 N. J. L. 239, 49 Atl. 443; Anderson v. Todd, 8 N. 
Dak. 158, 77 N. W. 599; Faulkner v. Cornell, 80 App. Div. 161, 80 N. 
Y. Supp. 526; Hartupee v. City of Pittsburgh, 97 Pa. 107. 

"Such a contract deals with a subject matter of a peculiar nature. 
"When an agreement for the manufacture of a chattel out of materials 
furnished by the maker is not performed according to its terms, the 
remedy of the party for whom it is made seems perfect. And the re- 
jection of the chattel, while completely protecting him, does no in- 
justice to the maker, for it leaves in his hands the materials with 
which his labor has been united. But when, under a contract for 
building, labor and materials of the builder are put into an edifice im- 
movably affixed to the lands of another, and the title to which goes 
with such lands, the right of rejection, while it may be said theo- 
retically to exist, is difficult to enforce in practice without apparent 
injustice to one party or the other. If the building be wholly unlike 
that contracted for, the owner is put to the delay and expense of 
removing it from his land which it encumbers. If, as is more usual, 
the building is not so unlike that contracted for as to permit the 
owner to feel reasonably justified in removing it, or if he is driven by 
necessity to use the shelter of the building, and if by protest and re- 
jection he may escape payment, yet if the building add anything to 
the value of the land, eventually he or his representatives become 
benefited thereby": Bozarth v. Dudley, 44 N. J. L. 304, 43 Am. Eep. 
373. 

"The owner of the soil is always in possession. The builder has 
a right to enter only for the special purpose of performing his con- 
tract. Each material as it is placed in the work becomes annexed 
to the soil, and thereby the property of the owner. The builder 
would have no right to remove the brick or stone or lumber after an- 
nexation, even if the employer should unjustifiably refuse to allow 
him to proceed with his work. The owner, from the nature and ne- 
cessity of the case, takes the benefit of part performance, and, there- 
fore, by merely so doing, does not necessarily waive anything con- 
tained in the contract. To impute to him a voluntary waiver of con- 
ditions precedent from the mere use and occupation of the building 
erected, unattended by other circumstances, is unreasonable and 
illogical, because he is not in a situation to elect whether he will 
or will not accept the benefit of an imperfect performance. To be 
enabled to stand upon the contract, he cannot reasonably be required 
to tear down and destroy the edifice if he prefers it to remain. As 
the erection is his by annexation to the soil, he may suffer it to stand, 
and there is no rule of law against his using it without prejudice to 
his rights": Smith v. Brady, 17 N. Y. 173, 72 Am. Dec. 442, quoted 
with approval in Franklin v. Schultz, 23 Mont. 165, 67 Pac. 1037. 



Sept. 1904.] Ludlow Lumber Co. v. Kuhling. ' 259 

Where one accepts work done upon a house, by a builder, he does 
not thereby waive objections to any latent defects in the work which 
are not open to inspection at the time of acceptance: Korf v. Lull, 
70 111. 420. And the payment of the contract price and the occu- 
pancy of the house by the owner is not such an acceptance of the 
work as to estop her from claiming damages for the failure of the 
builder to carry out his contract, she having no knowledge of build- 
ing, having no notice of defects at the time, being a personal friend 
of the builder, and relying entirely upon him to properly construct 
the building: Ekstrand v. Earth, 41 Wash. 321, 83 Pac. 305. 

Where, after the expiration of the time within which the con- 
tractor stipulated to complete the building, the owner enters into 
possession of the premises, as it is his right to do, he cannot be held 
to have waived all defects of which he knew, or could have known 
"by the exercise of ordinary care": Cannon v. Hunt, 116 Ga. 452, 
42 S. E. 734. 

It will be noted that in the principal case the Kentucky court 
holds that the owner of land on which he contracts to have a house 
erected may recover damages for defective construction, although 
he pays the contract price, takes possession, and does not discover 
the defect until eight months thereafter: See, too, Flannery v. 
Eohrmayer, 46 Conn. 558, 33 Am. Rep. 36. "The mere occupancy 
of the building by the owner, while appropriate, is neither presump- 
tive nor conclusive evidence of acceptance. The reason is obvious. 
The building belongs to the owner of the land on which it stands. 
.... He cannot be appropriately said to take possession of the 
building, for he has not been out of possession of that which is thus 
affixed to his own land"; Bozarth v. Dudley, 44 N, J. L. 304, 43 Am. 
Bep. 373. 

Where work has been done on the interior of a building, its con- 
tinued use is not necessarily an acceptance, for the law is not so 
nnreasonable as to require the owners to abandon the building in 
order to reject the work: Fitzgeral v. La Porte, 64 Ark. 34, 40 S. 
W. 261. 

b. Doctrine of Substantial Performance. — Where a builder fails 
to comply with his contract in erecting a building, but the owner 
nevertheless accepts and uses it, the builder may, at least if he has 
acted in good faith and not departed widely from the terms of the 
contract, recover the reasonable value of the work: Bell v. Teague, 
85 Ala. 211, 3 South. 861; Schaefer v. Gildea, 3 Colo. 15; Blakeslee 
V. Holt, 42 Conn. 226; Estop v. Fenton, 66 111. 467; McClure v. 
Secrist, 5 Ind. 31; Becker v. liecker, 9 Ind. 497; White v. Oliver, 36 
Me. 92; Eaton v. Gladwell, 121 Mich. 444, 80 N. W. 292; Marsh v. 
Bichards, 29 Mo. 99; Dutro v. Walter, 31 Mo. 516; Moffitt v. Glass, 
117 N. C. 142, 23 S. E. 104; Goldsmith v. Hand, 26 Ohio St. 101; 



260 American State Rkpobts. Vol. 115. [Kentucky, 

Harris Connty T. Campbell, 68 Tex. 22, 2 Am. St. Rep. 467, 3 S. W. 
243; Jennings v. Wilier (Tex. Civ. App.), 32 S. W. 24; Taylor v. 
Williams, 6 Wis. 363; Dermott v. Jones, 69 U. S. (2 Wall.) 1, 17 
L. ed. 762. 

"Where a special contract is made with the owner to erect a 
house or other buildings on his land, and the contractor uninten- 
tionally fails to fully perform it by reason of unimportant variations, 
while he cannot recover on the contract itself, he may recover under 
a count on an account annexed for the value of the labor and ma- 
terials, less any deductions necessary to complete the work, but not 
to exceed the contract price. It is no bar to his recovery that there 

has not been a full performance The foundation for this rule, 

whether applied to an action at law or in a petition to enforce a 
lien, has been stated to be that the land owner should not be per- 
mitted to avail himself of the added value to his property thus fur- 
nished, without making just compensation": Burke r. Coyne, 188 
Mass. 401, 74 N. E. 942. To the same effect are Fitzgeral v. La 
Porte, 64 Ark. 34, 40 S. W. 261; White v. School District, 159 Pa. 
201, 28 Atl. 136. 

We are not sure that all the authorities recognize so liberal a doc- 
trine as that adopted in Massachusetts. In the leading case of 
Bozarth v. Dudley, 44 N. J. L. 304, 43 Am. Rep. 373, Justice Magie 
declared that "when a contract for erecting a building has not been 
80 performed that a recovery can be had upon the common counts 
for work and material furnished in the erection, it will be permitted 
only when the owner. has accepted the building erected. The view 
that assumes acceptance from the mere fact that the edifice adds 
value to the land on which it stands, in my judgment unduly re- 
strains the force of the contract of the parties, and deprives the 
owner of the right to reject an edifice not in substantial conformity 
with its terms. If thereby any apparent injustice seems done to 
the builder in retaining the materials put upon the property, it is the 
result of his own default, to which he must submit." 

And in the later case of Elliott v. Caldwell, 43 Minn. 357, 45 
N. W. 845, 9 L. R. A. 52, Justice Mitchell aflirms: "The doctrine 
of 'substantial compliance' of building contracts docs not apply 
where the omissions or departures from the contract are intentional, 
and so substantial as to be capable of remedy, and that an allowance 
out of the contract price could not give the owner essentially what 
he contracted for. To entitle a party to recover for a part perform- 
ance or for performance in a different way from that contracted 
for, his contract remaining open and unperformed, the circumstances 
must be such that a new contract may be implied from the conduct 
of the parties to pay a compensation for the partial or substantial 
performance. The mere fact that the partial performance is bene- 
fieiai to a party is not enough from which to imply a promise 



Sept. 1904.] Ludlow Lumbes Co. v. Kuhling. 231 

to pay for it. Hence, in the case of a building on land, which the 
builder fails to complete, or completes in a manner not substantially 
conforming to the contract, the mere fact that it remains on the 
land, and the owner enjoys the benefit of it, he having no option 
to reject it, is not such an acceptance as will imply a promise to 
pay for it, notwithstanding the nonperformance of the special con- 
tract." 

The case of Anderson v. Todd, 8 N. Dak. 158, 77 N. W. 599, is 
also a leading authority on this point. In writing the syllabus 
therein, Justice Young states: "To entitle a contractor to recover 
upon a building contract which has not been fully complied with 
by him, under the doctrine of substantial performance, it must 
appear, not only that he endeavored to perform it in good faith, 
but also that he has done so, except as to unimportant omissions 
or deviations which are the result of mistake or inadvertence, and 
were not intentional, and which are susceptible of remedy, so that 
the other party will get substantially the building he contracted 
for. The mere fact of taking possession of the building does not of 
itself amount to an acceptance of the same by the owner as having 
been erected according to contract." 

c Church Edifices. — The doctrine of allowing compensation for 
services rendered and materials furnished under a special contract, 
but not in entire conformity with it, provided the deviation from 
the contract was not willful and the other party has availed himself 
of and been benefited by the labor and materials, has been applied 
in the case of the erection of church edifice where the builder by 
mistake made the ceiling lower, the windows shorter and narrower, 
and the seats of different dimensions than the specifications called 
for, but the owners took and retained possession of the builing: 
Pincher v. Swedish Evangelical Lutheran Church, 55 Conn. 183, 10 
Atl. 264. It has also been adjudged that the nonconformity of pews 
to the contract specifications cannot be urged to defeat a lien on the 
church edifice, where the trustees have themselves received and put 
the pews into the building, for the breach is thereby waived: Harris- 
burg Lumber Co, v. "Washburn, 29 Or. 150, 44 Pac. 390. But where 
tiling is laid in a cathedral, at a variance with the terms of the con- 
tract, the continued use of the building by the owners does not 
of itself show an acceptance of the work: Fitzgrral v. La Porte, 64 
Ark. 34, 40 S. W. 261. 

d. Public Buildings or Works. — If a contractor does work on a 
public buiiilirg, the subsequent use and occupancy of the building 
by the municipality does not necessarily show an acceptance of the 
work which is not performed in accordance with the specification of 
the contract: MacKnight Plintic Stone Co. v. Mayor etc. of New York, 
43 N. y. Supp. 139, 13 App. Div. 231. More especially is this true. 
tvhere possession is taken through necessity, and with the under- 



262 American State Reports. Vol. 115. [Kentucky, 

standing that it shall not prejudice the rights of the municipality or 
be construed as a waiver: MacKnight Flintic Stone Co. v. Mayor 
etc. of New York, 52 N. Y. Supp. 747; Long v. Pierce County, 22 
Wash. 330, 61 Pac. 142. Where a county makes a part payment of 
the amount due for the erection of a courthouse, after the time 
specified for its completion, though the building is still incomplete, 
and the county also authorizes the circuit court and the clerk of the 
court to use the building before its acceptance, this is not a waiver 
of the county's claim for liquidated damages under the contract 
because the building was not completed on time: Lawrence County 
V. Stewart, 72 Ark. 525, 81 S. W. 1059. 

The rule that the owner of real property who has employed anoj;her 
to erect a structure on his land does not, by taking possession and 
appropriating the structure to the uses for which it was built, pre- 
clude himself from insisting that the builder has not properly per- 
formed his contract, is applied to a contract for the eonstruction 
of a drydock for the United States in United States v. Walsh, 115 
Fed. 697, 52 C. C. A. 419, where Justice Wallace observes: "The 
results cannot be separated from the necessary consequences of 
ownership; and as he cannot, without prejudice to himself, reject 
them or refuse to retain them, the law does not imply any promise 
from his acceptance of them. This being so, it matters not whether 
at the time he is or is not aware of the defects. ' ' 

e. Building Materials. — Where the owner or his representative has 
the right and opportunity to inspect and reject the materials before 
they go into his building, he will be deemed to have waived the use 
of materials which do not come up to the requirements of the speci- 
fications, if he permits them to be used when their defects are of 
such a nature as to be discoverable on inspection: Lay cock v. Moon, 
97 Wis. 59, 72 N. W. 372; Ashland Lime etc. Co. v. Shores, 105 Wis. 
122, 81 N. W. 136. However, the mere use of finishing material in 
a building, without discovering latent defects therein, is not such 
an acceptance as to preclude showing that the material was not fur- 
nished according to agreement, on the defects appearing as season- 
ing progresses: Utah Lumber Co. v. James, 25 Utah, 434, 71 Pac. 986. 

rv. Contract to Construct Drains or Ditches. 
Where a person who has contracted to construct a drain does not 
complete the work within the time limited therefor, and does not do 
all of it in strict accordance with the specifications, but the other 
party nevertheless accepts the work and thereby waives these ob- 
jections, the contractor may sue on the contract, although the other 
party may set up by way of counterclaim the damages sustained 
by him: Cummings v. Pence, 1 Ind. App. 317, 27 N. E. 631, And 
where the person for whom a ditch is constructed accepts it with 
knowledge of the facts, uses it without objection, and subsequently 



Sept. 1904.] Ludlow Lumbeb Co. v. Kuhlinq. 263 

acknowledges his liability under the contract, he may be deemed 
to have waived a requirement that a full head of water should flow 
through the ditch for a certain time: Flick v, Hahn's Peak etc. Min. 
Co., 16 Colo. App. 485, 66 Pac. 453. The levy of an assessment by a 
company on its members to pay for a ditch for which the company 
has contracted, does not of itself constitute an acceptance of the 
contractor's work: Gilliam v. Brown, 116 Cal. 454, 48 Pac. 486. 

V. Contract to Dig Wells. 
When one accepts a well as completed according to the contract 
for drilling, he will not ordinarily be heard to say in an action for 
the contract price that the contract was not performed: Elwood 
Natural Gas etc. Co. v. Baker, 13 Ind. App. 576, 41 N. E.' 1063. If 
a person has agreed to construct a well, and is not entitled to re- 
cover the price on his special contract on account of his failure to 
show compliance with its terms on his part, nevertheless if he satis- 
fies the jury that the owner has received and used the well without 
notifying him of any defect in the work until payment is demanded, 
he may recover, as on the common coiir*^«' for work and labor done: 
Simpson v. Carolina Cent. R. E. Co., IIC C. 703, 16 S. E. 853. 

VI. Effect of Knowledge of Nonperformance. 
The acceptance of work which has been defectively done, the 
defects being unknown and not discoverable by inspection, does not 
amount to a waiver of the imperfect performance. This rule has 
been applied to carpenter's work (Trustees of Monroe Female Uni- 
versity V. Broadfield, 30 Ga. 1), to work on a wall (Barker v. Nichols, 
3 Colo. App. 25, 31 Pac. 1024), and to work on a roof: Dodge v. 
Minnesota etc. Roofing Co., 14 Minn. 49. But where work is ac- 
cepted with knowledge that it has not been done according to the 
contract, or under such circumstances that knowledge of its im- 
perfect performance may be imputed, the acceptance will generally 
be deemed a waiver of the defective performance: Waters v. Harvey, 
3 Houst. (Del.) 441; Robert Mitchell Furniture Co. v. Monarch 
(Ky.), 39 S. W. 823; Adams v. Hill, 16 Me. 215. It is generally 
conceded, however, that where a contract calls for the erection of a 
structure or building on real estate, the owner may take possession 
of the structure when completed without being held to have waived 
defects in the work for which he has notice: Stewart v. Fulton, 
31 Mo. 59; Mohney v. Reed, 40 Mo. App. 99; United States v. 
Walsh, 115 Fed. 697, 52 C. C. A. 419. Contracts of this nature 
are peculiar in this respect, as is hereinafter pointed out. 

Vn. Effect of Necessity of Using Articles Contracted for. 
It not infrequently happens that work is accepted with knowledge 
that it is not such as has been contracted for, because the ac- 
ceptor, under the exigencies of the case, has no alternative. When 



264 American State Repoets. Vol. 115. [Kentucky, 

work is thus accepted under the pressure of necessity, the general 
rule that acceptance is a waiver of imperfect performance may be 
modrfied in favor of the acceptor. Thus, it has been held that where 
one contracts for stave bolts with which to operate his mill, the 
fact that he uses them, when he has relied upon them to keep his 
mill in operation and cannot reject them without great injury, does 
not preclude him from thereafter showing their bad quality: 
Ketchum v. Wells, 19 "Wis. 25. See, too, Andrews v. Eastman, 41 
Vt. 134, 98 Am. Dec. 570, where firewood of a quality different from 
that contracted for is used through necessity. Where a vendee of 
machinery uses it, notwithstanding it is not such as he has con- 
tracted for, or has not been furnished within the time agreed upon, 
his use thereof being necessary in order to carry on his business, 
he does not thereby waive the imperfect performance on the part 
of the vendor: Payne v. Amos Kent Brick etc. Co., 110 La. 750, 
34 South. 763; Industrial Works v. Mitchell, 114 Mich. 29, 72 N. W. 
25. The fact that one walks from necessity over a walk and steps 
from his door to the street does not show an acceptance of the con- 
tractor's work in constructing them: Gwinnup v. Shies, 161 Ind. 
500, 69 N. E. 158. 



PREWITT V. SECURITY MUTUAL LIFE INSURANCE 

COMPANY. 

[119 Ky. 321, 83 S. W. 611, 84 S. W. 527.] 

FOREIGN INSURANCE COMPANY— Revocation of License.— 
A Statute providing that if a foreign insurance company, without the 
consent of the other party to any suit brought by or against it in a 
state court, removes the suit to a federal court, the insurance com- 
missioner shall forthwith revoke its authority to do business in the 
state, does not offend the United States constitution, (p. 271.) 

Pirtle, Trabue, Doolan & Cox, for the appellant. 

William Marshall Bullitt, for the appellee. 

Hazelrigg, Chenault & Ilazelrigg, N. B. Hays, attorney gen- 
ial, and R. H. Prewitt, for the commissioner, 

*** HOB SON, J. In the first of the above eases the Secur- 
ity Mutual Life Insurance Company filed its petition in 
equity, alleging that in the year 1900 it began business in 
Kentucky, having complied with the requirements of the 
statutes of the state applicable to foreign insurance companies, 
the plaintiff being a corporation organized under the laws of 



Sept. 1904.] Prewitt v. Security Mut. Life Ins. Co. 265 

the state of New York; that the commissioner then granted 
it permission to transact the business of life insurance in this 
state, and it employed a large number of agents, established a 
large number of agencies throughout the state, expended large 
sums of money in advertising its business, and acquired a 
large and profitable business in the state; that in June, 190-i, 
it removed to the circuit court of the United States for the 
eastern district of Kentucky, without the consent of the other 
party, a suit brought against it in one of the circuit courts 
of the state ; and that on September 29, 1901, the ^'^ defend- 
ant Prewitt, as insurance commissioner, revoked its authority 
to do business in the state for the sole reason that it had 
removed the suit referred to to the circuit court of the 
United States, and refused and still refuses to set aside the 
revocation. It prayed an injunction requiring the commis- 
sioner to annul the revocation of its license and to continue 
its authority to transact the business of life insurance in the 
state. The defendant demurred to the petition, his demurrer 
was overruled, and he, declining to plead further, a judgment 
was entered as prayed in the petition. 

In the other cases the petition is very similar, except that 
it is there averred that the commissioner has not yet revoked 
the plaintiff's license, but that he threatens to do so, and 
unless enjoined by the court, will revoke it, to the plaintiff's 
irreparable injury, it being a foreign corporation created 
under the laws of the state of Connecticut. The defendant 
demurred to the petition, his demurrer was sustained, and'the 
plaintiff declining to plead further, its petition was dismissed. 
Both the appeals raise the same question and will be consid- 
ered together. 

By section 633 of the Kentucky Statutes of 1903, licenses to 
agents of foreign companies must be renewed annually, and 
any person acting as the agent of such a company without pro- 
curing a license, or after the license has expired, or has been 
suspended or revoked, shall be guilty of a misdemeanor and 
fined not less than fifty dollars nor more than one hundred 
dollars for each offense. By section 634 every foreign insur- 
ance company, before transacting any business in this state, 
must return to the commissioner a copy of its charter or 
organic law, and the commissioner, upon being satisfied that 
the company has complied with the laws of the state and is 
possessed with the legal reserve, shall furnish to such agents 



266 American State Reports. Vol. 115. [Kentucky, 

as the company directs ^*® a license to transact business as 
agents for the company, under the seal of the insurance de- 
partment. By section 657 foreign life insurance companies, 
in addition, must file statements annually of their condition 
on the 31st of December of the year preceding and certain 
evidences of their deposits, securities, etc. By section 694 
insurance companies other than life, not incorporated under 
the laws of this state, upon complying with the provisions of 
the statute, may be authorized by the commissioner to transact 
business in the state. By section 761, the fees to be charged 
by the commissioner are regulated. 

Section 631 of the Kentucky Statutes of 1903 is in these 
words: "Before authority is granted to any foreign insurance 
company to do business in this state, it must file with the com- 
missioner a resolution adopted by its board of directors, con- 
senting that service of process upon any agent of such com- 
pany in this state, or upon the commissioner of insurance of 
this state, in any action brought or pending in this state, shall 
be a valid service upon said company; but if process is served 
upon the commissioner it shall be his duty to at once send it 
by mail, addressed to the company at its principal office ; and 
if any company shall, without the consent of the other party 
to any suit or proceeding brought by or against it in any 
court of this state, remove said suit or proceeding to any 
federal court, or shall institute any suit or proceeding against 
any citizen of this state in any federal court, it shall be the 
duty of the commissioner to forthwith revoke all authority 
to such company and its agents to do business in this state, 
and to publish such revocation in some newspaper of general 
circulation published in the state." 

The validity of the latter clause of the section is the only 
question to be determined upon the appeal. It is insisted 
**'' that it is in conflict with the constitution of the United 
States. Three decisions of the United States supreme court 
are relied on. In Home Ins. Co. v. Morse, 20 Wall. 445, 22 
L. ed. 365, the statute of the state required the foreign in- 
surance company to sign an agreement not to remove any of 
its cases to the federal courts. The company signed the agree- 
ment and afterward filed a petition seeking the removal of a 
suit brought against it to the federal court. The state court 
refused to remove the case, but on appeal to the United 
States supreme court the judgment of the state court was re- 



Sept. 1904.] Prewitt v. Security Mut. Life Ins. Co. 267 

versed, and it was held that the agreement in advance not to 
exercise a right guaranteed by the constitution did not pre- 
vent the defendant from removing the case to the federal 
court. The opinion was written by Judge Hunt, and goes 
no further than the question actually before the court. 

The next case relied on is Doyle v. Continental Ins. Co., 94 
U. S. 535, 24 L. ed. 148, the opinion being also written by 
Judge Hunt. In that case there was a state statute corres- 
ponding to section 631 above quoted, and the state officer 
under it was about to cancel the license of the insurance com- 
pany. The plaintiff made in substance the same allegations 
as are made in the case before us, and prayed an injunction 
as in these cases. The supreme court, reversing the court be- 
low, dismissed the bill. After distinjjuishing the case from 
the Morse case (20 Wall. 445, 22 L. ed. 365), the court 
said: "The cases of Bank of Augusta v. Earle, 13 Pet. 
519, 10 L. ed. 274, Ducat v. Chicago, 10 Wall. 410, 10 L. 
ed. 972, Paul v. Virginia, 8 Wall. 168, 19 L. ed. 357, and 
Lafayette Ins. Co. v. French, 18 How. 404, 15 L. ed. 451, 
establish the principle that a state may impose upon a foreign 
corporation, as a condition of coming into or doing business 
within its territory, ^^* any terms, conditions and restrictions 
it may think proper that are not repugnant to the constitu- 
tion or laws of the United States. The point is elaborated 
at great length by Chief Justice Taney in the case fh-st named, 
and by Mr. Justice Field (Curtis) in the case last named. 
The correlative power to revoke or recall a permission is a 
necessary consequence of the main power. A mere license 
hy a state is always revocable: Rector v. Philadelphia, 24 How. 
300, 16 L. ed. 602 ; People v. Roper, 35 N. Y. 629 ; People v. 
Commissioners of Texas, 47 N. Y. 501. The power to revoke 
can only be restrained, if at all, by an explicit contract upon 
good consideration to that effect: Humphrey v. Pegues, 16 
Wall. 244, 21 L. ed. 326 ; Tomlinson v. Jessup, 15 Wall. 454, 
21 L. ed. 204. License to a foreign corporation to enter 
a state does not involve a permanent right to remain, subject 
to the laws and constitution of the United States. Full 
power and control over its territories, its citizens, and its 
business belongs to the state. If the state has the power to 
do an act, its intention or the reason by which it is influenced 
in doing it cannot be inquired into. Thus the pleading be- 
fore us alleges that the permission of the Continental Insur- 



268 AMERiavN State Reports. Vol. 115. [Kentucky, 

ance Company to transact its business in Wisconsin is about 
to be revoked for the reason that it removed the case of 
Drake from the state to the federal courts. If the act of an 
individual is within the terms of the law, whatever may be 
the reason which governs him or whatever may be the result, 
it cannot be impeached. The acts of a state are subject to 
still less inquiry, either as to the act itself or as to the rea- 
son for it. The state of Wisconsin (except so far as its con- 
nection with the constitution and laws of the United States 
alters its position) is a sovereign state, possessing all the 
powers of the most absolute government in the world. 
329 rpjjg argument that the revocation in question is made for 
an unconstitutional reason cannot be sustained. The sugges- 
tion confounds an act with an emotion or a mental proceed- 
ing which is not the subject of inquiry in determining the 
validity of a statute. An unconstitutional reason or intention 
is an impracticable suggestion, which cannot be applied to 
the affairs of life. If the act done by the state is legal — is 
not in violation of the constitution or laws of the United 
states — it is quite out of the power of any court to inquire 
what was the intention of those who enacted the law. In 
all cases where the legislation of a state has been declared 
void, such legislation has been based upon an act or a fact 
which was itself illegal." After discussing certain previous 
decisions, 'the court added: "It is said that we thus indi- 
rectly sanction what we condemn when presented directly, to 
wit, that we enable the state of Wisconsin to enforce an 
agreement to abstain from the federal courts. This is an 
'inexact statement.' The effect of our decision in this is- 
spect is that the state may compel the foreign company to ab- 
stain from the federal courts or to cease to do business in the 
state. It gives the company the option. This is justifiable, 
because the complainant has no constitutional right to do 
business in that state. That state has authority at any time 
to declare that it shall not transact business there. This is 
the whole point of the case, and, without reference to the in- 
justice, the prejudice, or the wrong that is alleged to exist, 
must determine the question. No right of the complainant 
under the laws or constitution of the United States, by its 
exclusion from the state, is infringed; and this is what the 
state now accomplishes. There is nothing, therefore, that 
will justify the interference of this court." 



Sept. 1904.] Prewitt v. Security Mut. Life Ins. Co. 269 

It is conceded by counsel that if this case is still authority, 
*^** these actions must fail. But it is insisted that in Barron 
V. Bumside, 121 U. S. 186, 7 Sup. Ct. Rep. 931, 30 L. ed. 915, 
this case was, in effect, overruled. In Barron v. Burnside 
there was a state statute requiring every foreign corporation 
to have a license before engaging in business in the state. 
The license, by the tei-ms of the statute, was not to be issued 
except upon the application of the company by a resolution 
of the board of directors or stockholders authorizing it, and 
containing a stipulation that the permit should be subject 
to each of the provisions of the act, one of which was that 
the permit should be void if the corporation removed a case 
to the federal courts. Barron was arrested under the stat- 
ute for doing business for a foreign corporation without com- 
plying with the statute, and obtained a writ of habeas corpus, 
which was sustained by the United States supreme court. 
The court, after quoting the statute and discussing it at some 
length, said: "This proceeding is a unit. The filing of the 
articles of incorporation and the provision in regard to ser- 
vice of process are to be authorized by the same resolution 
which requests the issue of the permit; and this request or 
application is to contain the stipulation above mentioned. 
These various things are not separable." Then, after soine 
further discussion of the statute, the court concludes with 
the.se words: "In view of these considerations, the case falls 
directly within the decision of this court in Home Ins. Co. 
V. Morse, 20 Wall. 445, 22 L. ed. 365." It then proceeds, 
after showing what was decided in the Morse case, to discuss 
the Doyle case in these words: "The case of Doyle v. Con- 
tinental Ins. Co., 94 U. S. 535, 24 L. ed. 148, is relied on by 
the defendant in error. In that case this court said that it 
had carefully reviewed its decision in Home Ins. Co. ^^* v. 
Morse, 20 Wall. 445, 22 L. ed. 365, and was satisfied with it. 
In referring to the second conclusion in Home Ins. Co. v. 
Morse, 20 Wall. 445, 22 L. ed. 365, above recited, namely, that 
the statute of Wisconsin was repugnant to the constitution of 
the United States, and was illegal and void, the court said, in 
Doyle V. Continental Ins. Co., 94 U. S. 535, 24 L. ed. 148, 
that it referred to that portion of the statute which required 
a stipulation not to transfer causes to the courts of the United 
States. In that case, which aro.se under the statute of Wis- 
consin, the foreign insurance company had complied with 
the statute, and had filed an agreement not to remove suits 



270 American State Reports. Vol. 115. [Kentucky, 

into the federal courts, and had received a license to do busi- 
ness in the state. Afterward it removed into the federal 
court a suit brought against it in a state court of Wisconsin. 
The state authorities threatening to revoke the license, the 
company filed a bill in the circuit court of the United States, 
praying for an injunction to restrain the revoking of the 
license. A temporary injunction was granted. The defend- 
ant demurred to the bill, the demurrer was overruled, a de- 
cree was entered making the injunction perpetual, and the 
defendant appealed to this court. This court reversed the 
decree and dismissed the bill. The point of the decision seems 
to have been that, as the state had granted the license, its 
officers would not be restrained by injunction by a court of 
the United States from withdrawing it. All that there is 
in the case beyond this, and all that is said in the opinion 
which appears to be in conflict with the adjudication in Home 
Ins. Co. V. Morse, 20 Wall. 445, 22 L. ed. 365, must be re- 
garded as not in judgment." 

We do not understand this to overrule the Doyle case (94 
U. S. 535, 24 L. ed. 1481) ; for certainly, if the state cannot 
withdraw the license it has once granted, any court of com- 
petent jurisdiction may so decide. If the state statute with- 
drawing the license was unconstitutional ^^^ and void, the 
supreme court of the United States had the same power to 
declare the statute in that case unconstitutional as it had 
to declare the statute unconstitutional in Barron v. Burnside, 
121 U. S. 186, 7 Sup. Ct. Rep. 931, 30 L. ed. 915. Our stat- 
ute is not liable to the objections made to the statute in either 
the Morse case (120 Wall. 445, 22 L. ed. 365) or the Barron 
case (121 U. S. 186, 7 Sup. Ct. Rep. 931, 30 L. ed. 915). Un- 
der our statute the foreign insurance company is at liberty to 
remove its caus»i to the federal court whenever it sees proper. 
It is required to sign no stipulation or agreement interfering 
with that right. The regulation is reasonable that the state, 
for the protection of its citizens against unsafe insurance 
companies, should require them, before doing business in 
the state, to obtain a license from the insurance commissioner, 
and to furnish him such evidences of their solvency as will 
protect insurers in this state before he is authorized to grant 
them a license. The license which the state grants is purely 
a matter of grace, and, like any other license, may be revoked 
by the licensor at pleasure. The rev9cation of the license 



Sept. 1904.] Prewitt v. Security Mut. Life Ins. Co. 271 

interferes with no legal right of the licensee; for, when he 
takes it, he takes it subject to revocation. He cannot question 
the reason of the licensor for revoking the license, as the state 
may exclude foreign corporations from doing business in the 
state with or without reason. If I have license to cross my 
neighbor's lot, and he revokes it because I brought a suit 
against his son, I cannot enjoin him from revoking the licerise 
on the ground that I had a constitutional right to go to the 
courts for relief, and that my exercise of a constitutional 
right was no just reason for his revoking the license he had 
given me; for he had an absolute right to revoke the license, 
and the fact that he did it out of spite, or for a bad reason, 
is immaterial. The state, by her statutes above referred to, 
in effect, says to the foreign insurance companies: "I will 
*^^ license you to do business here on the same plane as do- 
mestic corporations, and if you come here you must stand on 
no more favorable ground than the domestic insurance com- 
panies. If, after you come, you refuse to so stand, I will 
withdraw my license." The reason for the statute is not 
distrust of the federal courts, but the practical denial of 
justice that results, in a sparsely settled state like ours, if 
the case must be tried one hundred or two hundred miles from 
where the parties and witnesses reside. Domestic insurance 
companies enjoy no such immunity, but must try their cases 
in the vicinage. The state simply says to the foreign insur- 
ance companies: "I will withdraw my license if you insist 
on privileges not enjoyed by home companies." If the state, 
on the day before these suits were filed, by legislative act had 
withdrawn all licenses to foreign insurance companies, recit- 
ing in the preamble to the act that it was enacted inasmuch as 
the two cases above referred to had been removed to the 
United States circuit court, could these plaintiffs have com- 
plained? If not, how are they affected by the fact that the 
state acts by an executive officer, and not by a special stat- 
ute? Certainly they cannot complain that the license of cer- 
tain other companies was not revoked. 

The case of Commonwealth v. East Tennes.see Coal Co., 97 
Ky. 238, 17 Ky. Law Rep. 139, 30 S. W. 608, did not involve 
the revocation of a license granted by the state, but was in 
effect similar to Barron v. Burnside. above cited, being a 
proceeding to impose a fine on the defendant after it removed 
a case from the state courts. The naked question presented 



272 American State Reports. Vol. 115. [Kentucky, 

here is, May the state, without cause, revoke a license it has 
once granted? for a bad reason is no worse than none at all. 
The distinction is a narrow one, but none the less sound, 
unless the whole doctrine that the state may grant or with- 
hold ^^^ a license as it sees fit is to be abandoned. It is jug- 
gling with words to say that a state may at will prohibit 
foreign corporations from doing business in the state (Hooper 
V. California, 155 U. S. 648, 15 Sup. Ct. Rep. 207, 39 L. ed. 
297), and yet that it may not at will withdraw a license which 
it has once granted to such corporations. It seems to us 
that the Boyle case rests on sound principles, and that the 
Barron case in no wise conflicts with it ; for that case is by the 
court expressly put upon the ground that the statute there, 
when properly construed, fell within the rule laid down in 
the Morse case: 6 Thompson on Corporations, sees. 7466, 
7467; 13 Am. & Eng. Ency. of Law, 867; People v. Pavey, 
151 111. 101, 37 N. E. 691. 

The judgment in the first case is therefore reversed, for 
further proceedings consistent herewith. 

The judgment in the second case is affirmed. 

Chief Justice Bumam and Justice Barker Dissented from the con- 
clusion of the majority of the court, Justice Barker writing a dissent- 
ing opinion in which he reviewed and relied upon the following au- 
thorities: Commonwealth v. East Tennessee Coal Co., 97 Ky. 238, 
30 S. W. 608; Commonwealth v. Jellico Coal Co., 97 Ky. 246, 30 
S. W. 611; Insurance Co. v. Morse, 87 U. S. (20 Wall.) 445, 22 L. ed. 
365; Barron v. Burnside, 121 U, S. 186, 7 Sup. Ct. Eep. 931, 30 L. ed. 
915; Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. ed. 148. 



A Foreign Corporation does business within the state, not by right, 
but by comity, and the state may, at pleasure, revoke the privilege 
granted by it to such corporation: State v. Standard Oil Co., 61 Neb. 
28, 87 Am. St. Rep. 449; Woodward v. Mutual Reserve Life Ins. Co., 
178 N. Y. 485, 102 Am. St. Rep. 519; Presbyterian Ministers' Fund 
V. Thomas, 126 Wis. 281, 110 Am. St. Eep. 919. 



Jan. 1905.] Jones v. Crawford. 273 



JONES V. CRAWFORD. 

[119 Ky. 554, 84 S. W. 568.] 

HOMESTEAD — Loss l)y Marriage of Infant. — Under a statute 
providing that the unmarried infant children of a deceased home- 
steader shall be entitled to a joint occupancy of the homestead with 
his widow until the youngest arrives at full age, a daughter who mar- 
ries during minority loses her homestead rights, (pp. 274, 275.) 

W. B. Moody and W. O. Jackson, for the appellant. 

Turner & Turner, for the appellee. 

^^'^ O'RBAR, J. The question presented for decision by 
this appeal is whether a homestead right under the statute 
which had become vested in an infant daughter of the land 
owner is devested by her marriage during her minority. By 
statute (Ky. Stats. 1903, sec. 1702) there is exempted to the 
debtor with a family, who is a resident of this commonwealth, 
land occupied by him, not exceeding one thousand dollars in 
value, which cannot be subjected without his consent to sale 
for his debts. This right of homestead exemption belongs to 
the debtor who is a head of the family, and attaches to such 
of his real estate as may have been selected and is occupied 
by him for that purpose. Upon the death of such home- 
steader, by section 1707 of the Kentucky Statutes of 1903, 
it is provided: "The homestead shall be for the use of the 
widow so long as she occupies the same, and the unmarried 
infant children of the husband shall be entitled to a joint 
occupancy with her until '^^^ the youngest child arrives at 
full age. But the termination of the widow's occupancy shall 
not affect the children." But for section 1707, upon the 
death of the homesteader his property would at once pass 
to his heirs at law or devisees, subject to the rights of cred- 
itors, without any right to the widow or minor children to 
occupy it, save as they might take as heirs at law or devisees, 
which would give minors no claim superior to or different 
from that of major heirs. It is competent for the legislature 
to remove from liability for debts such portion of the debtor's 
estate as may be needful to sustain his family. It tends to 
keep the family together, to keep them from want, and is in 
harmony with the public policy to encourage the maintenance 
of the instruction of the home. This policy, though varied 
in many of its features, is now a universal one in this country. 
Am. St. Rep., Vol. 115—18 



274 American State Reports. Vol. 115. [Kentucky, 

It would be incomplete, and fall short of its wise and humane 
purpose, did it not extend to the widow and infant children 
of the debtor after his death. Every reason that existed be- 
fore upon which it could rest continues with increased force 
after the death of the debtor. This right or privilege of home- 
stead exemption is a creature of the statute. Its beneficia- 
ries can take only what the statute has given them, and upon 
the terms named in the act. The heirs at law have no title, 
during their ancestor's life, to his property. Upon his death 
they take simply what the law gives them, and subject to the 
terms imposed by law. There is no inherent natural right of 
inheritance. So, when the legislature created the privilege 
of homestead exemption in favor of a householder, and con- 
tinued it after his death for certain members of his family, 
it was competent for the law-making body to select those 
members whose interests and whose relation to society were 
such as to bring them within the public policy treated of by 
the enactment, and who should, for these reasons, be favored 
'^'^^ by the statute. It was likewise competent, and perhaps 
necessary, to provide in what contingencies the right so con- 
ferred might be lost or otherwise terminated. The widow, 
by abandonment of the homestead, and the children upon 
reaching majority, lose their rights in the homestead as a 
homestead. The unity of the family — of the one family — 
of the deceased owner is looked to. When the widow aban- 
dons the homestead — as by remarrying and removing perma- 
nently from it — she is no longer regarded by the law, for the 
purposes of the application of the benefits of this statute, as 
a member of that family. "When an infant child reaches his 
majority, he, too, is no longer a member of the decedent's 
remaining "family," within the contemplation of the statute. 
If an infant child marries, it thereby becomes a member of 
another family — that of his or her own — a new family, the 
head of which would be entitled to his or her own homestead 
exemption as such head of a family. By marriage the infant 
does not bring the spouse into the old family as a member 
of it, in law. 

Counsel for appellee argue that an infant is incapable of 
contracting or of waiving his or her legal rights by conduct; 
that, as appellee's right to occupy the homestead in this case 
had once attached, her subsequent marriage during her in- 
fancy could not waive that right, because she was then under 



Jan. 1905.] Carpenter v. Carpenter's Trustee. 275 

the disability of infancy. But it must be remembered that 
the disability of infancy, as discussed in law, is a status 
created by the law, and may be subject to limitations or ex- 
ceptions by the lawmakers. The statute under investigation 
is an exception by legislation to the general rule of law re- 
garding the disability of infants. Under it the infant's act 
whereby he is removed from the class who may claim the 
benefits of the statute is what was contemplated by the 
658 legislature, and was made a condition concurrent to the 
enjoyment of the statutory privileges. 

The judgment of the circuit court is reversed, and cause 
remanded for proceedings not inconsistent herewith. 



If a Person has Acquired the Bight to a Homestead exemption by 
the occupancy of land with his family, the loss of his family by 
death and marriage does not defeat such right: Davis v. Feltman 
Co., 112 Ky. 293, 99 Am. St. Eep. 289, and cases cited in the cross- 
reference note thereto. 



CARPENTER v. CARPENTER'S TRUSTEE. 

[119 Ky. 582, 84 S. W. 737.] 

WILL — Extrinsic Evidence to Vary Trust. — Where a testator 
has directed the share of his son to be paid to a trustee, to be used 
for the benefit of the son, but not to be paid into his hands, extrinsic 
evidence is not admissible to show that the testator's reason for 
creating the trust was the incapacity of the son because of disease, 
that since the death of the testator the son has so far recovered his 
health as to be able to manage his estate, and that therefore its 
possession and control should be given to him. (p. 277.) 

C. B. Larimore, H. W. Curie and C. B. Dowling, for the 
appellant. 

D. A. McCandless, for the appellee. 

*^ BARKER, J. This action involves a construction of 
the following item of the will of John B. Carpenter, deceased: 
"(6) I direct the share of my son, E. A. Carpenter, to be 
paid into the hands of a trustee to be appointed by the Hart 
county court, to be used for his benefit and to keep him from 
want, but that it be not paid into his hands." The will of 
the father was admitted to probate, and the appellee, Truax 
Sturgeon, appointed trustee by the Hart county court. 
Afterward the cestui que trust instituted this action in the 



276 American State Reports. Vol. 115. [Kentuclr;', 

Hart circuit court against his trustee, setting up in his peti- 
tion the foregoing item from his father's will, and alleging 
substantially that for three or four years before his father's 
death he (plaintiff) had suffered greatly from paralysis, and 
was unable to labor for his support, and that his father, 
"probably thinking or believing that his mind was impaired 
or would become impaired by reason of the paralysis, which 
this plaintiff ***"* denies, and which was a wrong conception, 
if it was conceived by his father that his [plaintiff's] mind 
was impaired or would become impaired by reason of the 
severe stroke of paralysis," placed his (plaiutift''s) estate in 
trust, as shown in the foregoing item of the will; that since 
his father's death his health has so improved as to render him 
physically able to prudently manage and control his estate, 
which is now withheld from him by his trustee, Truax Stur- 
geon; and he prays that the trust be vacated, and the fund 
constituting it be turned over to his hands for management, 
etc. A general demurrer was interposed to this petition, 
which was sustained by the court, and the appellant declin- 
ing to plead further, was dismissed. 

This action is based upon the opinion of this court in the 
case of Webster v. Bush, 19 Ky. Law Rep. 565, 39 S. W. 411, 
42 S. W. 1124, which involved the construction of a clause in a 
will in all respects similar in principle to that at bar, in which 
it was held that where a testator devised an estate in trust for 
his daughter, under the supposition that she was of feeble mind, 
the court was authorized, upon an allegation that the physical 
incapacity had ceased to exist, to try this question, and. if it 
was established by the evidence, to discharge the trust. In 
that case Judge DuRelle delivered a dissenting opinion, which 
contains an admirable exposition of the law, and from which 
we adopt the following: "With the wisdom or unwisdom of 
the clause above quoted from the will this court has nothing 
to do, except in so far as it might shed light on the intention 
of the testator if ambiguity existed. There was no ambigu- 
ity. The testator had the absolute and unconditional right 
to place upon the devise to his daughter the limitations which 
he imposed, and no court has a right to assign to him a 
motive for these limitations, and, by denying the existence 
of a rea.son for that ^^^ motive, create a new will for the tes- 
tator. To adjudge that a court, in construing unambiguous 
language in a will, may surmise a reason in the testator's 



Jan. 1905.] Carpenter v. Carpenter's Trustee. 277 

mind for his clearly expressed intent, and then, upon evi- 
dence introduced by devisees denying the existence of that 
supposititious fact, proceed to set aside the plain expression 
of intent, is to nullify the statute of wills. No trust could 
then be so carefully guarded as not to be at the mercy of 
the imagination of the chancellor. There can be no doubt 
that this trust comes within the class which do not vest a 
legal estate in the cestui que trust, being a case 'where such 
powers or duties were imposed with the estate upon a donee 
to uses that it was necessary that he should continue to hold 
the legal title in order to perform the duty or execute the 
power': Perry on Trusts, sees. 300-305; Kay v. Scates, 37 
Pa. 31, 78 Am. Dec. 399, and note. It seems to be equally 
well settled that 'where the instrument is free from ambigu- 
ity, and there is no imperfection or inaccuracy in its lan- 
guage, the testator's intention is to be collected from the 
words used by him and parol evidence is not allowable for 
the purpose of adding to or explaining or subtracting from 
it, or to raise an argument in favor of any particular con- 
struction : Phillips on Evidence, 545 ; 8 Bingham, 244 ; Wig- 
ram on Ec. Evidence, 65. Extrinsic evidence of intention is 
inadmissible for the purpose of supplying a devise or any 
other material provision omitted by mistake, or to superadd 
any qualification to the terms used, or to evince a mistake 
in writing the instrument': Stephen v. Walker, 8 B. Mon. 
600. It is not necessary here to inquire whether the evidence 
introduced would be sufficient to justify a discharge of the 
trust if the will had provided i)\at it was to continue only 
until the daughter became competent to manage her estate. 
The proposition here stated is that, under the terms of the 
will as written, no evidence can be introduced ^^^ to show 
what the reason was for the devise to the trustee, and that 
that reason never existed or has ceased to exist. To do so 
is to superadd a qualification to the terms used, and by parol 
to import into the will an intention which is not there ex- 
pressed: Bingel v. Volz, 142 111. 214, 34 Am. St. Rep. 64, 31 
N. E. 13, 16 L. R. A. 321. It is to show by evidence aliunde 
a different intent on the part of the testator in reference to 
the devise to Euphemia from that manifested by the language 
of the will. The rule was stated by Judge Simpson in Stephen 
V. Walker, 8 B Mon. 600: 'The inquiry must be confined to 
the meaning of the words used, and hence all extrinsic evi- 



278 American State Reports. Vol. 115, [Kentucky, 

dence tending to prove, not what the testator has expressed, 
but what he intended to express, is inadmissible.' " 

The question involved in the case at bar is not to be con- 
fused with the principle that a dry or simple trust will be 
vacated by the chancellor upon the request of the cestui que 
trust. A dry or simple trust is one as to which the trustee 
has no duties to perform, and the cestui que trust has the 
entire management of the estate. It is a simple separation 
of the equitable and legal estates, which can be united at 
the option of the cestui que trust: Woolley v. Preston, 82 
Ky. 415. Nor is it to be confounded with those trusts which 
are created upon a declared condition which has passed away ; 
the reason ceasing, the trust also ceasing. Such, for in- 
stance, a trust established for the benefit of a married woman, 
and she. becomes discovert. In that case the trust will cease 
to exist when the declared disability ceases : Thomas v. Hark- 
ness, 13 Bush, 23. The case at bar presents an active trust, 
where the trustee has the sole management and control of 
the estate, * and the question involved is whether evidence 
aliunde can be introduced to establish for a testator a motive 
for his action when he has expressed ^^"^ none in his will, 
and where his language is perfectly plain and unambiguous. 
This, we hold, cannot be done, and Webster v. Bush is no 
longer to be regarded as authority. 

It seems to us a safer rule to leave intact this trust — the 
result of loving foresight reaching into the future to shield 
the object of its solicitude after the heart which it inspired 
has ceased to beat — than to subject it to the vicissitude of 
a judicial inquiry based upon the careless opinions of wit- 
nesses as to the sufficient restoration of the beneficiary's mind 
to warrant the nullification of the will of the donor. 

The judgment dismissing the petition is affirmed. 



Extrinsic Evidence to Explain Wills is discussed in the note to 
Chappell V. Missionary Society, 50 Am. St. Eep. 279. It is well 
understood that extrinsic evidence is not admissible to aid the con- 
struction of a will, where, from the language alone, when applied 
to the facts and circumstances to which it relates, the meaning of the 
testator is clear: Thompson v. Betts, 74 Conn. 576, 92 Am. St, Eep. 
235. Evidence as to the intention of the testator separate and apart 
from that conveyed by the language of the will is not admissible 
for the purpose of interpreting the instrument: Clarke v. Clarke, 
46 S. C. 230, 57 Am. St. Eep. 675: Bingel v. Voltz, 142 111. 214, 34 
Am. St Eep. 64. 



Oct. 1900.] Fidelity etc. Co. v. Louisville etc. Co. 279 



FIDELITY TRTTST AND SAFETY VAULT COMPANY 
V. LOUISVILLE BANKING COMPANY. 

[119 Ky. 675, 58 S. W. 712.] 

JUDGMENT — Effect of Reversal. — Where the claim of a mort- 
gage creditor was adjudged a lien superior to that of attaching cred- 
itors upon property assigned for the benefit of creditors, and he, 
under order of court, withdrew the funds which the assignees had 
paid into court, and distributed them among his creditors, the cred- 
itors of the assigned estate, upon the reversal of the judgment which 
has been appealed from but not superseded, cannot compel his cred- 
itors to refund the money, but must look to him alone, (pp. 283, 28-1.) 

John Eoberts, Lane & Burnett, Kohn, Baird & Spindle 
and C. B. Seymour, for the appellants. 

Humphrey, Burnett & Humphrey, for the appellee. 

67T GUFFY, J. In 1890 the Etheridge Manufacturing 
Company, a corporation, made an assignment to George 
Straeffer, as alleged, for the benefit of all its creditors. 
Afterward some, if not all, of these appellees instituted suit 
and obtained attachments which were properly levied, and 
also attacked the assignment as fraudulent and as made with 
the intent to delay and defraud creditors. Said assignee was 
also summoned as garnishee. N. N. Etheridge, one of the 
stockholders and officers of said corporation, asserted a mort- 
gage lien upon the proceeds in the hands of said assignee for 
the sum of $6,000, besides interest. 

The court below sustained the attachments, and adjudged 
the assignment to be fraudulent, and set the same aside ; but 
adjudged the mortgage claim of Etheridge to be a superior 
lien upon the fund which Straeffer had, under proper orders 
of the court, paid into court, said amount being more than 
$20,000, and after said judgment the court below allowed by 
order said Etheridge, through his attorneys. Lane & Burnett, 
to withdraw the money adjudged to him, and within a few 
days, if not on the very day said order was made, the money 
*^** was 80 withdrawn. These judgments and orders and 
withdrawal of the money occurred in December, 1894. 

After the rendition of the judgment and the said order and 
collection had been made, the creditors of the corporation 
prosecuted an appeal to the court of appeals, but these judg- 
ments were not superseded. On the 22d of October, 1897, 



280 American State Reports. Vol. 115. [Kentucky, 

this court reversed the judgment of the lower court in so far 
as it allowed Etheridge any lien upon said fund prior or even 
equal to the lien of the attaching creditors. After the re- 
turn of the cause to the circuit court these appellees obtained 
rules against the several appellants, requiring them to pay 
back the several sums of money received by them. 

It appears from the responses and testimony in this case 
that after the withdrawal of said sum, which then amounted 
to $6,900, that on the fourteenth day of December, 1894, 
Etheridge paid out $2,500 thereof to the Fidelity Trust and 
Safety Vault Company on a mortgage debt of $5,500 to Mrs. 
E. L. Lane, and afterw^ard paid to said company $540; that 
he paid to his attorneys. Lane & Burnett, the sum of $690, 
which was their charge against him for services rendered him 
in these cases; that he paid to C. G. Hulsewede and C. B. 
Seymour, for services that they had rendered him, the sum 
of $1,380, and to S. E. Roach, on a mortgage debt, $250, and 
city and state taxes, $615.46, and to the Mutual Life Insur- 
ance Company, for insurance on his life, $295.32; and some 
other sums not necessary to mention. 

The substance of the responses of the several appellants 
herein show that they received the various sums of money 
named therein in payment of debts due them from N. N. 
Etheridge; and it is claimed that Etheridge was authorized 
to withdraw the fund from the court, and the judgment ad- 
judging the same to him was then valid, unreversed and had 
never been superseded. 

^"^^ The court below adjudged the responses insufficient, 
and made the several rules absolute, and from these judg- 
ments these several appeals are prosecuted, and, by agreement, 
are heard together. It is the contention of appellees that 
they had a lien upon the $6,900 in question, and that the 
circuit court erroneously adjudged the money to Etheridge, 
but they contend that such judgment did not destroy or an- 
nul their several liens; and inasmuch as the court of appeals 
reversed the judgment, and adjudged that the lien of the 
attaching creditors was superior to that of Etheridge, that 
the lien in fact and in law existed on the fund all the time; 
hence they argue that these appellants having received that 
identical money, that they were in law bound to repay the 
same under and in accordance with the rules issued as afore- 
said. The appellants insist that there was no lien upon the 



Oct. 1900.] Fidelity etc. Co. v. Louisville etc. Co. 281 

fund; that it was simply a liability upon the part of the 
holder to pay the same under proper orders of the court; 
and it is further contended that inasmuch as Etheridge, un- 
der the judgment of the trial court in the original case, was 
adjudged the money and the same paid to him, and by him 
to these appellants as aforesaid, that they are under no legal 
obligation to refund the same, and that the attaching cred- 
itors must look alone to Etheridge. There is no claim by ap- 
pellees that any effort was being made, or intention made 
known, that the creditors desired or intended to supersede 
the original judgment. 

We have not been referred to any decision of this court 
that expressly decides the question herein presented. It is, 
however, a familiar rule of law that a purchaser of land 
under a judgment acquired a good title, although the judg- 
ment may afterward be reversed. It seems to be conceded 
that in cases where a person is garnished that if he pays the 
debt owing to the defendant, that the party receiving the 
**® money cannot be held to account therefor; but all that 
the plaintiff can recover is a judgment against the garnishee. 
We do not think the case of Hobson v. Hall, 13 Ky. Law Rep. 
109, 14 S. W. 958, sustains the contention of appellees. It 
will be seen in that case that the parties who purchased the 
attached tobacco had executed a forthcoming bond, which 
bound them to have the tobacco, or the value forthcoming 
subject to the order of the court, and although the attach- 
ment under which the tobacco had been seized was tinally 
discharged, yet the plaintiff had been allowed to file addi- 
tional grounds of attachment before the bond had been dis- 
charged or sureties released, and the latter attachment hav- 
ing been sustained, the court adjudged a lien in favor of the 
attaching creditor upon the tobacco in question. 

If, instead of the $6,900 being in money, there had been a 
contest between Etheridge and the other attaching creditors 
as to a lien upon personal property, for instance, horses 
and cattle, then in the custody of the court's receiver, and 
the court had denied any lien to the attaching creditor and 
adjudged the property to Etheridge, it would seem that he 
could sell it and pass good title thereto at any time while 
such judgment was in force. 

In Freeman on Executions, volume 3, section 346, it is 
said: "Upon the reversal of a judgment, after a sale has 



282 American State Reports. Vol. 115. [Kentucky, 

been made under execution to a stranger to the suit, the de- 
fendant must seek redress from the plaintiff. This redress 
was formerly obtained by a scire facias quare restitutionem 
non This is still the remedy in some states in cases where 
the record does not show that the money realized from the 
sale had been paid to the plaintiff. "Where the plaintiff has 
received the proceeds of the sale, the defendant may recover 
in an action for money had and received. If, however, the 
money, after being paid to plaintiff, is by him paid to a third 
•** person, it cannot be recovered from such person, though 
he was one of the plaintiff's attorneys." 

In Rhorer on Judicial Sales, section 576, it is said: "Where 
the sale is to a third person and bona fide purchaser, and 
has been fully completed by confirmation, conveyance and 
pajonent, it will neither be avoided nor will it be set aside 
by reason of a subsequent reversal of the decree. This rule 
is so generally recognized as to scarcely require authorities 
to support it. In the language of the Illinois supreme court, 
"if the court has jurisdiction to render the judgment or to 
pronounce the decree — that is, if it has jurisdiction over the 
parties and the subject matter — then, upon principles of 
universal law, acts performed and rights acquired by third 
persons, under the authority of the judgment or decree, and 
while it remains in force, must be sustained, notwithstanding 
a subsequent reversal." 

In the case of Langley v. Warner, 3 N. Y. 327, the court, 
in considering a case somewhat analogous to the case at bar, 
uses the following language: "The case then comes to this: 
The money in question, in the regular course of judicial pro- 
ceedings, came to the hands of the defendant as the attorney 
of Walsh; and on the subsequent settlement between them 
the money was passed to the creditor, Walsh, on account of 
his indebtedness to the defendant. It was the same thing 
in effect as though the defendant had first paid over the 
money to Walsh, and the latter had then repaid it to the de- 
fendant in satisfaction of his debt. About two months after- 
ward the judgment was reversed and restitution was awarded 
to the plaintiffs against Walsh. It was very proper that he 
should make restitution, for he had in effect received the 
money and applied it to the payment of his debt. The plain- 
tiffs proceeded to execution against Walsh, in pursuance of 
the judgment for restitution; but *** failing in that, they 



Oct. 1900.] Fidelity etc. Co. v. Louisville etc. Co. 283 

now seek to recover the amount from the defendant. I see 
no principle on which the action can be maintained. The 
defendant has got none of the plaintiff's money; he has got 
nothing but his own. Walsh had a perfect title to the money 
when it was collected, just as perfect as it would have been 
if no certiorari had been issued. He had a right to do what 
he pleased with the money; and he made a very proper use 
of it by paying his debt. The plaintiffs have taken up the 
strange notion that because they were trying to get the judg- 
ment reversed Walsh could not give a good title to the money, 
especially if he paid it to one who knew what they were do- 
ing. I am not aware of any foundation for such doctrine. 
As Walsh had a good title to the money, he could, of course, 
give a good title to the defendant, or anyone else. No one 
was bound to presume that the judgment of a court of com- 
petent jurisdiction was erroneous and would be reversed. 
The legal presumption was the other way — that the judg- 
ment was right and would be affirmed. But if the judgment 
had been known to be erroneous the pendency of the proceed- 
ings in error could not affect, in the least degree, the title of 
Walsh to the money. Nothing short of a reversal of the judg- 
ment could destroy or impair his right." 

In Bank of the United States v. Bank of Washington, 
6 Pet. 19, 8 L. ed. 305, the supreme court, in discuss- 
ing similar questions to that under consideration, said: "But 
the answer to the argument is that no notice whatever could 
change the rights of the parties so as to make the Bank of 
the United States responsible to refund the money. When 
the money was paid there was a legal obligation on the part 
of the Bank of Washington to pay it; and a legal right on 
the part of Triplett and Neale to demand and receive it, or 
to enforce payment of it under the execution. And whatever 
**** was done under that execution, whilst the judgment was 
in full force, was valid and binding on the Bank of Wash- 
ington so far as the rights of strangers or third persons are 
concerned. The reversal of the judgment cannot have a retro- 
spective operation and make void that which was lawful 
when done. The reversal of the judgment gives a new right 
or cause of action against the parties to the judgment, and 
creates a legal obligation on their part to restore what the 
other party has lost by reason of the erroneous judgment; 
and as between the parties to the judgment there is all the 



284 American State Reports. Vol. 115. [Kentucky, 

privity necessary to sustain and enforce such right; but as 
to strangers, there is no such privity;. and if no legal right 
existed when the money was paid to recover it back, no such 
right could be created by notice of an intention so to do. 
Where money is wrongfully and illegally exacted, it is re- 
ceived without any legal right or authority to receive it; 
and the law, at the very time of payment, creates the obliga- 
tion to refund it. A notice of the intention to recover back 
the money does not, even in such cases, create the right to 
recover it back; that results from the illegal exaction of it, 
and the notice may serve to rebut the inference that it was 
a voluntary payment, or made through mistake." 

If the contention of appellees that they had a lien upon 
the specific $6,900, which lien attached and continued with 
the money, it would seem that if these appellants had paid 
the money to some other party that appellees would hold 
such party responsible, and that any and all persons who 
received the money would incur a liability to be required to 
refund the same. Surely this cannot be the law. The duty 
of Etheridge to refund the money is not disputed. And it 
seems to us that these appellees must look alone to Etheridge 
for relief or restitution. It results from the foregoing that 
the trial court erred in making the several rules absolute. 

684 rpj^g judgments appealed from are reversed and cause 
remanded, with directions to adjudge the several responses 
sufficient and for proceedings consistent herewith. 



The Effect of the Beversal of a Judgment on appeal is considered 
in the note to Cowdery v. London etc. Bank, 96 Am. St. Rep. 124. 



Jan, 1905.] Commonwealth v. Beckett. 285 



COMMONWEALTH v. BECKETT. 

[119 Ky 817, 84 S. W. 758.] 

FALSE Pretenses — ^Use of confederate Money.— Where 
one party to a horse trade agrees to pay the other seven anrl one- 
half dollars to boot, and accordingly, with intent to defraud, hands 
him a ten dollar Confederate bill, saying: "Give me two dollars and 
a half; here is a ten dollar bill," whereupon the other receives 
the bill, supposing it to be United States currency, and passes two 
dollars and a half back as change, the offense of obtaining money 
under false pretenses is committed, although the bill may not be 
calculated to deceive a person of ordinary prudence and discre- 
tion, for the law protects the unwary and even the "foolish." The 
bill must be calculated to deceive, according to the capacity of him 
to whom it is presented to detect its falsity under the circumstances; 
whether or not it is, is a question for the jury. (p. 288.) 

FALSE PRETENSES. — If the Facts Recited in an Indictment 
for obtaining money under false pretenses show upon their face 
that they are capable of defrauding, and it is charged that the de- 
fendant by them did intentionally and wickedly defraud the prose- 
cuting witness, it is unnecessary specifically to charge that they 
were capable of defrauding, (p. 288.) 

Ed. Daum, commonwealth attorney, N. B. Hays, attorney 
general, and Loraine Mix, for the appellant. 

®** O'REAR, J. This appeal involves the suflficiency of 
an indictment against appellee, charging him with obtain- 
ing money and property under false pretenses: Ky. Stats. 
1903, sec. 1208. A demurrer was sustained to the indict- 
ment. It is charged that appellee fraudulently, knowingly 
and with the wicked intent to deceive and defraud one Will- 
• iam C. French, induced the latter to part with two dollars 
and fifty cents lawful money of the United States which be- 
longed to said French, in exchange in part for a ten dollar 
bill of the Confederate States of America. The particulars 
of the tran.saction were set forth in the indictment, the sub- 
stance of which is that appellee and said French swapped 
horses, it being agreed that appellee was to pay French seven 
dollars and fifty cents to boot. The horses were exchanged, 
***® and appellee handed French a ten dollar Confederate 
bill, with the remark: "Give me two dollars and fifty cents; 
here is a ten dollar bill." French, believing it was a bill 
for ten dollars of lawful money — its appearance being quite 
similar to the treasury silver certificates for that sum — gave 
appellee the two dollars and fifty cents, and accepted the 



286 American State Reports. Vol. 115. [Kentucky, 

Confederate bill as good money, without knowledge or sug- 
gestion that it was what it was. It is charged that appellee 
knew at the time that it was a Confederate bill, and intended 
by his words and conduct to deceive French into believing it 
was a bill of lawful currency, and did so deceive hira. It is 
said that the indictment was held to be bad because there 
was no specific statement by appellee that the bill was United 
States currency. 

The statute is (section 1208) : "If any person by false pre- 
tenses, statement or token, with intention to commit a fraud, 
obtain from another money, property or other thing which 
may be the subject of larceny, .... he shall be confined in 
the penitentiary for not less than one nor more than five 
years." It seems to be conceded that all the conditions of 
the statutes are satisfied except that of the false pretense, 
statement, or token. It is the deceit, falsely and fraudu- 
lently superinduced by a beneficiary, whereby the latter ob- 
tains money or property of value, that is sought to be re- 
pressed by the statute. When one intentionally creates a be- 
lief as to an existing fact which is false, and with the intent 
to defraud another of his property, anl does so, it cannot 
matter whether the erroneous belief was induced by words 
or acts, or both. The mischief may be done as effectually by 
one method as by another. Some words, by their common em- 
ployment, may imply other words not spoken. A proposi- 
tion to sell an article for ten dollars, without designating the 
currency in which the price is to be paid, in this country im- 
plies that the seller ®^* is to get lawful money or currency 
of the United States of America. When the buyer agrees to. 
pay the price, and offers a bill in pajTnent purporting to be 
a bill of the currency of the circulating medium of the coun- 
try, it is implied that he thereby represents that it is of that 
currency, if nothing to the contrary is stated. This amounts 
to an assertion or representation by conduct, which may be 
as efficacious to convey an idea, or to constitute the basis of 
a rea.sonable belief, as though exact and appropriate words 
had been used. Words are used to express ideas. Signs 
might be used instead. Conduct that conveys necessarily 
the same idea, and intended to do so, is but a substitute 
for the words or signs expressive of it. We have no doubt 
but that the use of a worthless bill, pretending it is valid, 
and with the intent to defraud, is a false token under the 
statute : State v. Pattilo, 11 N. C. 348 ; State v. Stroll, 1 Rich. 



Jan. 1905.] Commonwealth v. Beckett. 287 

244; State v. Grooms, 5 Strob. 158. It may be said that 
a false representation or token is not within the statute "un- 
less calculated to deceive persons of ordinary prudence and 
discretion": 2 Wharton on Criminal Law, 2129; Common- 
wealth V. Grady, 13 Bush, 285, 26 Am. Rep. 192. This is 
true only in a limited sense, for the statute was not designed 
to protect only the ordinarily wary and prudent, who, in 
spite of their vigilance, might be overreached by the clever 
rogue, but must have been aimed at all scoundreldom, who, 
by false statements or tokens, succeeded in hoodwinking the 
unwary, or even the foolish, into parting with their prop- 
erty. The statute has a twofold purpose: 1. To protect the 
owner of property against cheats; 2. To punish the cheater. 
It cannot be said that the law is partial to "persons of or- 
dinary prudence and discretion" in protecting them in their 
property, whilst it leaves imprudent and silly persons as law- 
ful prey for frauds. On ®** the other hand, in punishing 
the wrongdoer, his motive and its results are the main sub- 
jects of inquiry. Under this statute the wicked purpose — the 
fraud — is equivalent to the same ingredient in theft. So is 
the result the same. The distinguishing feature is, in theft 
the owner does not intentionally part with the title and pos- 
session of his property, while under this statute he does. It 
would not do to say that to steal from a careless or impru- 
dent person is not punishable, though the statutes against 
larceny aim to protect the owner in the possession of his 
property, as well as to punish the thief who purloins it. 
Under the statute being considered the pretense or token 
must be false. Where a token is used, it must be calculated 
to deceive, according to the capacity of the person to whom 
it is presented to detect its falsity under the circumstances. 
A token that might be calculated to deceive a blind man, or 
one in the dark, or a child, would not necessarily be a false 
token when used upon one who could see, and who has ma- 
ture judgment: Peckham v. State (Tex. Cr. App.), 28 S. W. 
532. Nor would absurd or irrational pretenses, not ordinarily 
calculated to deceive one of the intellectual capacity and dis- 
cretion of the person upon whom it may have been practiced, 
be sufficient, it seems: Woodbury v. State, 69 Ala. 242, 44 
Am. Rep. 515; People v. Crissie, 4 Denio, 525. Or, where 
the representation is as to the state of the title to real estate, 
a record of which is accessible to the vendee, the representa- 
tion, though false, cannot be said to have induced the ac- 



288 American State Reports. Vol. 115. [Kentucky, 

tion; for, as registration of deeds is provided for the ex- 
press purpose of protectinf; purchasers of real estate, to 
which they are presumed to have recourse for final informa- 
tion concerning facts shown by them, and about the exist- 
ence of which there need be no doubt, it cannot be said that 
the vendee could have been ^^^ deceived by the oral repre- 
sentations respecting the state of the title. This is the rea- 
son supporting the decision in Commonwealth v. Grady, 13 
Bush. 285, 26 Am. Rep. 192; while in Commonwealth v. 
Haughey, 3 ]\Iet. 223, the facts were that Jones, the person 
alleged to have been defrauded, really parted with nothing 
upon the misrepresentation. Furthermore, it appears that 
the misrepresentation was as to quality of a crop of tobacco — 
a matter of opinion, not the subject of the statute. Whether 
the false token is one calculated to deceive one of the capac- 
ity and understanding and in the situation of the prosecut- 
ing witness is a question of fact to be found by the jury: 
Wagoner v. State, 90 Ind. 504. In People v. Court of Oyer 
and Terminer, 83 N. Y. 436, it is laid down distinctly that 
the pretenses must be calculated to deceive, leaving that to 
be determined by the jury, and, if the pretense was capable 
of defrauding, it is sufficient. There may be a state of facts 
where it would not be apparent upon their mere recital that 
they alone were capable of defrauding, and it may be the 
better practice in such cases to aver in the indictment that 
they were capable of defrauding, as well as did defraud, the 
prosecutor. But where the facts recited show upon their face 
that they are capable of defrauding, and it is charged that 
the defendant by them did intentionally and wickedly defraud 
the prosecuting witness, it seems to us to be useless to spe- 
cifically charge that they were capable of defrauding. It 
is a matter of common and general knowledge that a Con- 
federate ten dollar bill is quite similar in appearance to 
treasury silver certificates of that denomination, and that it 
is entirely capable to defraud credulous persons by its use 
under many circumstances. Whether there were peculiar 
circumstances in the case at bar to rebut the probability of 
such an effect upon the prosecuting witness is more properly 
evidential matter by **^ way of defense. The facts alleged 
in the indictment bring the transaction clearly within the 
statute, and the demurrer should have been overruled. 

Judgment reversed, and cause remanded for further pro- 
ceedings not inconsistent herewith. 



Jan. 1905.] Cincinnati etc. Ry. Co. v. Marks. 2S9 

The Crime of Obtaining Money under False Pretenses is the subject 
of a note to Barton v. People, 25 Am. St. Rep. 378. To constitute 
this crime, it is necessary that the false pretense should have de- 
ceived: Chauncey v. State, 130 Ala. 71, 89 Am. St. Eep. 17. How- 
ever, a conspiracy to defraud by false pretenses may exist, although 
the means employed are not calculated to deceive persons of ordi- 
nary intelligence: People v. Oilman, 121 Mich. 187, 80 Am. St. Eep. 
490. 



CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC 
RAILWAY COMPANY v. :MARRS. 

[119 Ky. 954, 85 S. W. 188.] 

BAILBOADS — Duty to Dnrnken Trespasser. — Where the 
yardmaster and foreman of the switch crew of one railroad com- 
pany see a passenger of another railroad company aroused from a 
drunken stupor and put off a car on the depot platform at night, 
and a few minutes- later find him drunk and asleep between the 
tracks in their switchyard, and thereupon arouse him and start 
him walking through tue network of tracks and switches toward 
the highway, and a short time thereafter he lies down and goes to 
sleep on one of the tracks, where he is struck by their switch en- 
gine, the railroad company is answerable for his injuries, (pp. 293, 
294.) 

Thornton & Kerr and John Galvin, for the appellant. 

Matt O'Doherty and Hunt &.Hunt, for the appellee. 

»»« BARKER, J. William H. Marrs, a resident of Lex- 
ington, Kentucky, on a visit to Louisville, became intoxi- 
cated, and while in this condition his friends purchased a 
ticket for him over the Louisville Southern Railway to his 
home, put him on the train, and gave his ticket to the con- 
ductor. When the train arrived at the depot in Lexington 
he was in the smoker, asleep, with his head and arm hanging 
out of the window. One of the brakemen aroused him, and 
required him to go from the car to the platform of the sta- 
tion. The Louisville Southern Railway uses the depot of the 
Cincinnati, New Orleans and Texas Railway Company at 
Lexington. Near this depot are the private switchyards of 
the latter corporation. These yards are perhaps more than 
half a mile ^'^'^ in length, and covered with the network of 
tracks and switches; there being, probably, as many as 
eighteen or twenty separate tracks. The train on which 
Marrs was a passenger arrived at the Lexington depot at 
about 10:45 P. M. Within thirty or forty minutes after the 
Am. St. Rep., Vol. 115—19 



290 American State Reports. Vol. 115. [Kentucky, 

drunken passenger left the ear he was found by the yard- 
master, Savage, asleep in the switchyard between tracks Nos. 
3 and 4. Appellant's switching crew, with their engine, com- 
ing along at this time, were stopped by the yardmaster, who 
called to some of them to come and assist him in arousing 
the sleeping man. This was responded to by James H. Joyce 
and John Haney, who left the engine and went to where 
Marrs was lying. Joyce shook the sleeping man who looked 
up, and, with an oath, said: "Kid, did you expect to find a 
man with his head cut off?" To which Joyce replied: "No, 
but if you lie around here in this way, you will have your 
head cut off. ' ' Whereupon Marrs got upon his feet, * * hitched 
up his trousers," and walked off in the direction of the Ver- 
sailles pike, cursing, as he went, the men who had disturbed 
him. The switching crew then went to their supper (a mid- 
night lunch), and, returning in an hour, started with their 
engine along one of the tracks in the switchyard for the pur- 
pose of getting a car of stock which was to be transferred 
from one track to another. The engine was being backed, 
with several of the crew in front on the tender, keeping a 
lookout for the car of stock which they intended to shift. 
While proceeding at the rate of six or seven miles an hour, 
the engine ran over Marrs, who had again fallen asleep (this 
time on the track), inflicting injuries from which he in a 
few days died. To recover damages for the death thus occa- 
sioned, this action was instituted by the administratrix of his 
estate against both the Louisville Southern Railway and ap- 
pellant. A trial ^^^ resulted in peremptory instruction be- 
ing awarded in favor of the Louisville Southern Railway, and 
a verdict and judgment against appellant for the sum of four 
thousand five hundred dollars, of which it now complains. 

Was appellant entitled to a peremptory instruction? This 
is the substantial question presented in the record. 

There was no relation of pa.ssenger and carrier between 
Marrs and appellant, and therefore his entrance into the 
private switchyard of the corporation made him a trespasser; 
and, if those in charge of the switch engine had run it over 
him when he was first found in the yard, then, undoubtedly, 
appellant would have been entitled to a peremptory instruc- 
tion under the evidence as adduced on the trial, because, he 
being a trespasser, its employes owed him no duty, except 
to refrain, after his peril was discovered, from injuring him, 



Jan. 1905.] Cincinnati etc. Ry. Co. v. Marks. 291 

if this could be done by the exercise of ordinary diligence. 
But having found him drunk and asleep in the yard, could 
they arouse him, and start him wandering in the dark, through 
the network of switches and tracks, and then say, when they 
afterward ran over him, that they owed him no lookout duty 
because he was a trespasser? We cannot sanction so cruel 
and inhuman a principle. Both Savage, the yardmaster, and 
Haney, the foreman of the switching crew, saw Marrs on 
the Louisville Southern train when it reached the depot, and 
knew that he was a passenger thereon and drunk. "When 
they saw him in the switchyard, asleep, and aroused him, 
they recognized him as the man they had seen on the train. 
They knew he was still intoxicated, and the fact that within 
so short a time he was found by them asleep in the switch- 
yard was all the evidence that reasonable men required to 
know that, owing to his condition, he was unable to take care 
of himself, and more than probably was dazed and lost. 
Under these circumstances, it was ^'^^ their duty either to 
see him safely out of the yard or, in default of this, to exer- 
cise at least ordinary care to avoid injuring him in moving 
the switch engine about where, under the circumstances, it 
was reasonable to anticipate his presence. Haney and Sav- 
age, within forty minutes before they found Marrs asleep in 
the switchyard, had seen him asleep on the train. They had 
seen him aroused from his stupor by the brakeman and put 
upon the platform, and when they found him, within so 
short a time after being aroused by the brakeman, again in 
a stupor in the switchyard, they were bound to know that 
his condition was such as to render him incapable of taking 
care of himself; and, this being true, as we have before said, 
common humanity forbade them simply to arouse him from 
where they found him asleep, and start him on another walk, 
merely to sink into a torpor in the yard a second time. In- 
deed, the action of these men was a positive injury to the de- 
cedent, for, as he lay between tracks Nos, 3 and 4, he was 
theli, at least, safe from being run over. Wlien they aroused 
him from this position, and started him on his walk in the 
dark through the yards, they subjected him to the perilous 
chance, when again overcome by the liquor, of assuming a 
position of greater danger than he was occupying at first. 
This chance subsequently became a reality. When the un- 
fortunate man was overcome a second time in the yard, he 



292 American State Reports. Vol. 115. [Kentucky, 

went to sleep on one of the tracks instead of between them. 
Under the circumstances, the switching crew should have done 
either more or less than they did, so far as the safety of the 
deceased was concerned. 

We fully concede that Marrs being drunk did not make 
him any the less a trespasser when he first went into the yard 
of the corporation, and his intoxication added no new duty 
from it to him then. But when its servants actually dis- 
covered ****** him, trespasser though he was, they owed him 
the duty to refrain from injuring him, and this duty was as 
comprehensive as the helplessness of his condition demanded 
to insure his safety from injury by them. The fact that 
his senses were overcome by liquor was demonstrated by 
what the servants of the corporation actually knew at the 
time they found him in the yard. It was no longer a ques- 
tion of surmise, but one of positive knowledge. That he was 
not a tramp awaiting an opportunity to steal a ride they 
knew from the fact that they had seen him arrive in Lexing- 
ton as a passenger on the Louisville Southern train, and we 
think we have a right to assume, from all the evidence in 
the case concerning Marrs, that his appearance indicated him 
to be what he really was — an unfortunate man on a spree. 
The servants of the corporation, after finding him in the 
yard, could not shut their eyes and close their faculties to 
what must have been apparent to the most casual observer, 
and say that, under the circumstances surrounding Marrs, 
they owed him no duty, and could after that treat him as 
a trespasser. They knew he was intoxicated and in the yard, 
and, having seen him twice before within an hour in a drunken 
stupor, they had no right to assume that when left to him- 
self he would not again sink into a torpor, as he had done 
twice before. 

This case comes within the principle of Fagg's Admr. v. 
Louisville etc. R. Co., Ill Ky. 30, 23 Ky. Law Rep. 383, 63 
S. W. 580, 54 L. R. A. 919. In that case the employes of 
the railroad knew a drunken man had entered a deep cut 
through which a train was soon expected. They knew that, 
if this train passed while he was in this cut, his life would be 
in peril. With this knowledge they permitted the train to 
run into the cut without informing those in charge of the 
perilous position of the unfortunate man. He was killed, 
'*®^ and we held the corporation responsible. The principle 



Jan. 1905.] Cincinnati etc. Ry. Co. v. Marks. 293 

in that case is identical with that at bar, although the facts 
on the surface are somewhat variant. The servants of appel- 
lant knew that Marrs was in the yard in a drunken condi- 
tion. They had seen him asleep in a stupor. They were 
bound to know that the chances were that, as soon as the 
stimulus of their presence was removed, he would again suc- 
cumb to the benumbing influence of the liquor with which 
he was intoxicated. This being true, they owed him one of 
two alternative duties — either to see him safely out of the 
yard, which common humanity required, or, failing in this, 
to watch out for him as the engine was moved about in the 
corporation's business. The case of Brown's Admr. v. Louis- 
ville etc. R. Co., 103 Ky. 211, 19 Ky. Law Rep. 1873, 44 S. 
W. 648, does not support appellant. In that case the servants 
of the corporation had no right to suppose, after the drunken 
passenger was removed from the train at London, he would 
seek the railroad track as a bed. In this case the employes 
of appellant knew that Marrs was likely to do this, for they 
had just aroused him up from such a position. Nor is the 
case of Virginia M. R. R. v. Boswell's Admr., 82 Va. 932, 
7 S. E. 383, authority in favor of appellant's claim to a 
peremptory instruction. In that case the trackwalker found 
the trespasser lying on the railroad track. He accosted him, 
whereupon the man aroused up on his elbow, and apparently 
assented, when told to get off the track, as a train would pres- 
ently be coming along. The corporation's servant did not 
know that the trespasser was drunk, or in any other way 
physically incapacitated; the court on this point stating: 
"There was nothing in the conduct of Boswell which could 
lead Harrison to suspect that he was drunk or physically dis- 
abled. When accosted by Harrison, °®- and told that he 
must get up and get off the track — that a train was coming 
presently — he (Boswell) got partly up, leaned on his elbow, 
and as.sented to the suggestion in such a manner as to con- 
vince Harrison that he understood him; and, under these cir- 
cumstances, HarrLson had the right to presume that Boswell 
would take such measures to protect himself from danger as 
rea.sonable persons would be sure to take under such circum- 
stances." In the ease at bar, appellant's servants knew Marrs 
was drunk, and the circumstances surrounding him were such 
as would lead any reasonably prudent person to believe that 
he was incapable of caring for himself. Under these eircum- 



294 American State Reports. Vol. 115. [Kentucky. 

stances, we think they, after having discovered his perilous 
condition, owed him the duty of refraining from injuring him 
by exercising the care for his safety which we have indicated. 

The trial court correctly overruled appellant's motion for 
a peremptory instruction, and the instructions given were 
as favorable to the corporation as it merited. Perceiving 
no error in the record prejudicial to appellant's substantial 
rights, the judgment is affirmed. 

Petition for rehearing by appellant overruled. 



Drunkenness Never Excuses a person for a failure to exercise the 
measure of care and prudence which is due from a sober man under 
the same circumstances. Drunkenness does not exempt a person from 
responsibility for contributory negligence: Nash v. Southern Ry. Co., 
136 Ala. 177, 96 Am. St. Eep. 19; Bageard v. Consolidated Traction 
Co., 64 N. J.'L. 316, 81 Am. St. Eep. 498. Therefore, a railroad com- 
pany is not liable for the injury on its tracks of a drunken trespasser, 
in the absence of willful or wanton conduct: Nash v. Southern Ry. 
Co., 136 Ala. 177, 96 Am. St. Rep. 19. As to the duty of a railroad 
company to see that an intoxicated person does not get upon the tracks 
and thus expose himself to danger, see Bageard v. Consolidated Trac- 
tion Co., 64 N. J. L. 316, 81 Am. St. Eep. 498. 



CASES 

IN THE 

SUPKEME COURT 

OP 

MAINE. 



STATE V. FREDERICKSON. 
[101 Me. 37, 63 Atl. 535.] 

STATUTES — Construction. — Two chapters of the Eevised 
Statutes of a state relating to the same subject, though having no 
immediate connection with each other, should be construed together. 
Hence one chapter of such statutes enumerating what are to be 
deemed intoxicating liquor must be construed in connection with the 
words "intoxicating liquor" as used in another chapter of such stat- 
utes, (pp. 297, 298.) 

INTOXICATING LIQUORS— Construction of Statute.— A stat- 
ute enumerating certain liquors, including "cider," when kept and 
deposited with intent to sell them for tippling purposes, or as a bever- 
age, and declaring them to be intoxicating, was intended to include 
and does include "cider," when kept and sold for tippling purposes 
or as a beverage, even though such cider may be unfermented and non- 
intoxicating in fact. (pp. 299, 300.) 

INTOXICATING LIQUOB — Statutory Construction. — ^When it 
ap[>ears that a certain liquor comes within the scope of a forbidden 
statutory enumeration as intoxicating, that moment its character be- 
comes fixed by law, and its nonintoxicating character, as a matter of 
fact, becomes entirely immaterial with respect to the application of 
the statute, (p. 300.) 

INTOXICATING LIQUOIIS— Constitutional Law.— The consti- 
tutional right of the state legislature to regulate or prohibit the sale 
and keeping of intoxicating liquors, and to declare certain liquors in- 
toxicating within the meaning of the law governing intoxifiating 
liquors, irrespective of the intoxicating character of such liquors as 
a matter of fact is a legal exercise of the police power of the state 
and not in contravention of either the state or United States coistitu* 
tions. (pp. 302, 303.) 

W. C. Eaton, county attorney, for the state. 

M. P. Frank, for the defendant. 

*• SPEAR, J. This case covers two actions, one involving 
a complaint for keeping a tippling-shop, and the other an 
indictment for maintaining a common nuisance. Both the 

(295) 



296 American State Reports, Vol. 115. [Maine, 

complaint and the indictment are based upon the same state 
of facts, wherein it is admitted that the respondent during 
the period covered by the complaint and the indictment was a 
citizen of the United States and a licensed victualer, and 
kept a restaurant on India street in Portland, in the county 
of Cumberland, and was accustomed to keep in his restaurant 
cider, with intent to sell the same as a beverage and for 
tippling purposes, and that frequently during that period 
he there sold cider to be drank on the premises, and the same 
was so there sold and drank, but said cider was unfermented 
and nonintoxicating in fact. 

With respect to the complaint the defendant requested the 
instruction that section 40 of chapter 29 of the Revised Stat- 
utes did not apply to unfermented, nonintoxicating cider, and 
that the having of '*^ such cider on deposit with intent to sell 
the same as a beverage and for tippling purposes constituted 
no offense. Also, if it should be found that section 40 did 
apply to the keeping and sale of such cider, imposing penal- 
ties of fine and imprisonment for the violation thereof, its 
provisions are contrary to and in violation of section 1, article 

1, of the declaration of rights in the constitution of Maine, 
and of the fourteenth amendment of the constitution of the 
United States, and to that extent are null and void. 

With respect to the nuisance indictment, the defendant re- 
quested the instruction that if the respondent kept and main- 
tained a place used for the sale or keeping for sale, for 
tippling purposes or as a beverage, of cider, and where cider 
was kept and deposited with intent to sell the same for 
tippling purposes or as a beverage, he would not be guilty of 
maintaining a nuisance under provisions of sections 1 and 2, 
chapter 22 of the Revised Statutes, unless such cider was in 
fact intoxicating, and that the keeping and maintaining of 
such place used for the sale or keeping for sale or for selling 
of unfermented nonintoxicating cider only, would not con- 
stitute the crime of keeping and maintaining a nuisance. The 
other requested instruction raised the same constitutional ques- 
tions involved in the instruction with reference to the com- 
plaint. 

The two cases can be construed together, inasmuch as if it is 
held that the enumeration of intoxicating liquors specified 
in section 40 of chapter 29 of the Revised Statutes, does not 
apply to the intoxicating liquors referred to in sections 1 and 

2, chapter 22 of the Revised Statutes, then that is the end of 



Dec. 1905.] State v. Frederickson. 297 

the nuisance case and the exceptions must be sustained. If, 
on the other hand, it is held that said enumeration does apply, 
then the two cases with respect to all the points raised fall 
within the same category and involve the simple questions, 
whether the keeping and selling of unfermented, nonintoxicat- 
ing cider as a beverage and for tippling purposes is inhibited 
by chapter 29, and if so inhibited, if said chapter is constitu- 
tional. 

We will therefore determine, first, whether the enumeration 
of intoxicating liquors found in section 40, chapter 29, shall 
be held to define the meaning of the words "intoxicating 
liquors," as used in sections 1 and 2, chapter 22, relating to 
nuisances. To determine "** this proposition, we assume, ar- 
guendo, that unfermented, nonintoxicating cider, kept for 
sale and sold as a beverage and for tippling purposes comes 
within the above enumeration of liquors classed as intoxicat- 
ing. The question raised by this exception whether such 
cider does, as a matter of law, come within the purview of 
section 40 will be discussed later. 

The proposition before us has been lately considered, and 
we think fully settled, in the recent case of State v. O'Con- 
nell, 99 Me. 61, 58 Atl. 59. Like the case at bar, it arose 
under an indictment for maintaining a nuisance. The re- 
spondent was indicted for selling "uno beer," a malt liquor. 
The question involved in the trial and under the exceptions 
was not whether this beer was in fact intoxicating, but, re- 
gardless of this fact, whether it came within one of the classes 
of liquors denominated intoxicating under section 40, chapter 
29. 

The court by necessary implication squarely held that, al- 
though one of the indictments was under chapter 17 of the 
Revised Statutes of 1883, now chapter 22, the question of 
whether the liquor was to be regarded as intoxicating was 
to be determined by reference to chapter 27 of the Revised 
Statutes of 1883, now chapter 29. In deciding the character 
of the liquor the opinion says: "Revised Statutes of 1883, 
chapter 27, section 33, amounts to a prohibition of the sale 
of malt liquor." But malt liquor is not mentioned under 
chapter 17, yet being classed as intoxicating under chapter 
27, it was held to be intoxicating under chapter 17. 

But under the established rules of construction the two 
sections of the statutes should be con.strued together. Both 
sections are part of the same body of revised laws. We see 



298 American State Reports, Vol, 115. [Maine, 

no good reason why chapters of the same statute should not 
be construed with reference to each other as well as sections 
of the same chapter. Chief Justice Shaw, in Commonwealth 
V. Coding, 3 Met. 130, says : " In construing the Revised Stat- 
utes, we are to bear in mind that the whole were enacted at 
one and the same time, and constitute one act; and then the 
rule applies, that in construing one part of a statute, we are 
to resort to every other part to ascertain the true meaning of 
the legislature in each particular provision. This rule is 
peculiarly applicable to the Revised Statutes, in which, for 
the convenience of analysis and classification of subjects, pro- 
visions are sometimes widely separated from each '*^ other 
in the code, which have so immediate a connection with each 
other that it is quite necessary to consider the one, in order 
to arrive at the true exposition of the other." 

The suggestion in the above quotation that ' * the whole were 
passed at one and the same time" was not intended, we ap- 
prehend, to in any degree limit the rule of comparing stat- 
utes, whenever enacted, in pari materia — a principle well es- 
tablished by our own as well as other courts: Gould v. Ban- 
gor etc. R. R., 82 Me. 122, 19 Atl. 84; Cotton v. Wiscasset 
etc. R. R. Co., 98 Me. 511, 57 Atl. 785; Commonwealth v. 
Sylvester, 13 Allen, 247. 

Black on Interpretation of Laws, page 6, in discussing this 
principle says: "The phrase 'statute in pari materia' is ap- 
plicable to private statutes or general laws made at different 

times, and in reference to the same subjects So, also, 

all the laws of the state, whenever passed, relating to the sub- 
ject of the regulation of the liquor traffic, are in pari ma- 
teria. ' ' 

Commonwealth v. Shea, 14 Gray, 386, is a case precisely 
analogous in principle to the phase of the case now under 
consideration, and declares that "the provisions of Statutes 
of 1855, chapter 405, section 1, by which ' all buildings, places 
or tenements used for the illegal sale or keeping of intoxicat- 
ing liquors are declared to be common nuisances, and are to 
be regarded and treated as such,' is to be construed by refer- 
ence to the Statutes of 1855, chapter 215, in pari materia, 
to which it is necessary to refer in order to ascertain what 
intoxicating liquors it is illegal to sell; and the first section 
of which declares that 'ale, porter, strong beer, lager beer, 
cider and all wines, shall be considered intoxicating liquors 
within the meaning of this act. Proof of sales of cider was, 
therefore, competent in support of this indictment. ' ' ' 



Dec. 1905.] State v. Frederickson. 299 

State V. Hnghes, 16 R. I. 403, 16 Atl. 911, is a case also 
directly in point, and holds that statutes, although enacted 
at different times, if they have a common object and are parts 
of one system for the punishment of illegal selling and keep- 
ing of liquors, are to be construed together: See, also, United 
States V. Freeman, 44 U. S. 556, 11 L. ed. 724; Linton's Ap- 
peal, 104 Pa. 228 ; United Soc. v. Eagle Bank, 7 Conn. 456 ; 
State V. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313. 

Our conclusion is that the proposition is well settled both 
by the ^^ decisions and by the rules of statutory construc- 
tion that the enumeration of liquors declared to be intoxi- 
cating, contained in section 40 of chapter/ 29 of the Revised 
Statutes, is referred to by, and was intended to include, the 
words "intoxicating liquors" as used in section 1 of chapter 
22 of the Revised Statutes. It is therefore manifest that if 
unfermented and nonintoxicating cider is found to be an in- 
toxicating liquor within the definition laid down in section 
40, chapter 29, it is also an intoxicating liquor within the 
meaning of sections 1 and 2 of chapter 22, and if kept for 
sale and sold in violation of said sections, the premises where 
80 kept would be subject to indictment as a nuisance. 

This brings us to the consideration of the second proposi- 
tion, whether the enumeration of liquors declared to be in- 
toxicating, contained in section 40 of chapter 29, was intended 
to include cider which is kept and deposited with intent to 
sell the same for tippling purposes or as a beverage, which is 
unfermented and nonintoxicating in fact. If it is found to 
be 80 included, then both the complaint and indictment are 
sustainable unless it appears that section 40, with respect to 
the kind of cider herein specified, is in contravention of the 
state or federal constitutions. Section 40 declares that ' ' wine, 
ale, porter, strong beer, lager beer or other malt liquors and 
cider, when kept and deposited with intent to sell the same 
for tippling purposes, or as a beverage, as well as distilled 
spirits, are declared intoxicating within the meaning of this 
chapter." The liquors above enumerated are declared intox- 
icating by law. 

In determining whether or not a liquor is to be regarded 
as intoxicating under this enumeration it is entirely immate- 
rial whether it is intoxicating in fact. As was well said in 
State V. O'Connell, 99 Me. 61, 58 Atl. 59: "It is not for the 
jury to revise the judgment of the legislature and determine 
whether liquor is or is not in fact intoxicating." When it 



300 AMERiCiVN State Reports, Vol. 115. [Maine, 

appears that a liquor comes within the scope of the forbidden 
enumeration, that moment its intoxicating character becomes 
fixed by law, and its nonintoxicating character, as a matter 
of fact, becomes entirely immaterial with respect to the ap- 
plication of the statute: State v. Piche, 98 Me. 348, 56 Atl. 
1052; State v. O'Connell, 99 Me. 61, 58 Atl. 59; Common- 
wealth V. Bios, 116 Mass. 56; Commonwealth v, Anthes, 12 
Gray, 29; Commonwealth v. Brelsford, ^'^ 161 Mass. 61, 36 
N. E. 677; Commonwealth v. Snow, 133 Mass. 575; State v. 
Intoxicating Liquors, 76 Iowa, 243, 41 N. W. 6, 2 L. R. A. 
408 ; State v. Guiness, 16 R. I. 401, 16 Atl. 910. 

Does unfermented, nonintoxicating cider fall within the 
above rule? Unless we read into the statute enumerating 
the kinds of prohibited liquors some adjective modifying the 
word "cider" that shall have the effect of differentiating be- 
tween intoxicating and nonintoxicating cider, then it is evi- 
dent that both cases at bar come, by the express terms of the 
statement of facts, within the prohibition of the respective 
statutes under which they are brought. 

We do not feel authorized to modify the statutes by the in- 
terpolation of any such adjective. It is not the province of 
the court to legislate. Had the legislature, during all the 
years that the prohibitory statutes have been upon the books, 
intended that any differentiation should be made with re- 
spect to new and old cider, they unquestionably would have 
seen that it was effectuated by proper legislation. A mo- 
ment's reflection will readily suggest that such legislation 
has been withheld advisedly. Unfermented, nonintoxicating 
cider by the simple lapse of time becomes intoxicating. There 
is a dividing line somewhere in the course of time over which 
the same cask of eider, in the process of fermentation, passes 
from a nonintoxicating to an intoxicating liquor. But where ? 
To locate this line is to nullify the statute. Hence the ab- 
sence of legislation. This view is sustained not only by rea- 
son but by authority. 

State V. Spaulding, 61 Vt. 505, 17 Atl. 844, is precisely in 
point. It involved the construction of a statute which pro- 
vides that "no person shall sell or furnish cider or unfer- 
mented liquor at or in a victualing-house, tavern, grocery- 
shop, cellar or other place of public resort." The point 
raised in this case is identical with that raised in the cases 
before us. The court say: "The only prohibition as to cider 
is at the places specified in the sixth paragraph, but not there 



Dec. 1905.] State v. Frederickson. 301 

or anywhere in the statute is there any word qualifying the 
kind of cider prohibited at such places. The term used is 
"cider." It is said that the juice of apples is not cider until 
it is fermented. This is perhaps technically correct, but not 
in popular understanding. The apple juice when it comes 
from the cider press is immediately and universally called 
"cider" by the people generally. The term should be '*'* con- 
strued according to such universal use and understanding. 
Presumably no class of men understand better the difference 
between sweet and sour or new and old cider than our legis- 
lators, because they are mostly farmers who make the cider, 
and those who are not living in the cider-producing state 
could hardly claim ignorance on so familiar a subject; yet 
in their prohibitory enactment they ignore all distinction, 
and simply say ' ' cider. ' ' The prohibition is limited to certain 
specified places, and such as indicate an intent only to pre- 
vent cider selling and drinking at public resorts, not to inter- 
fere with the manufacturer who does not make his establish- 
ment a public resort for drinking purposes like the saloon. 
It is well known, also, that the fermentation of cider, and 
the change from sweet to sour, so as to become more or less 
alcoholic, greatly varies — sometimes being very rapid, at 
other times very slow. It would be practically impossible to 
prove whether a particular mug of cider that had been drank 
was intoxicating, and to require it would therefore render the 
statute nugatory. In view of all these facts, we think it 
would be more likely carrying out the legislators' intent to 
construe the enactment according to its plain and common 
meaning, rather than to interpolate qualifying terms, and 
hold that the legislature meant something different from what 
it said. We therefore hold that the prohibition as to the 
places named is absolute, regardless of the stage of fermenta- 
tion or the intoxicating quality of the cider." 

Our conclusion is that the enumeration of liquors declared 
to be intoxicating and contained in section 40 of chapter 29 
of the Revised Statutes, was intended to include, and does. in- 
clude, cider when it is kept and deposited with intent to 
sell the same for tippling purposes or as a beverage, even 
though such cider may be unfermented and nonintoxicating 
in fact. 

The third question raised by the exceptions is whether sec- 
tion 40, with respect to cider that is unfermented and nonin- 
toxicating in fact is in violation of section 1 of article 1 of 



302 American State Reports, Vol. 115. [Maine, 

the constitution of the state of Maine. This involves the con- 
sideration of, first, the constitutional right of the legislature 
to regulate or prohibit the sale and keeping of intoxicating 
liquors ; and second, the constitutional right of the legislature 
to declare certain liquors intoxicating within the '*® mean- 
ing of the law governing intoxicating liquors, irrespective of 
the intoxicating character of such liquors as a matter of fact. 
Both of these questions are so universally answered in the 
affirmative by the decisions in our own state and those of 
other states under similar constitutional provisions that it is 
no longer a question for argument or even of doubt: Lunt's 
Case, 6 Me. 412 ; Gray v. Kimball, 42 Me. 299 ; State v. Miller, 
48 Me. 576; State v. O'Connell, 99 Me. 61, 58 Atl. 59; State 
V. Roach, 75 Me. 123. There are also numerous cases in other 
states to the same effect. 

The affirmative of the second question is equally well es- 
tablished: State V. O'Connell, 99 Me. 61, 58 Atl. 59; Common- 
wealth V. Anthes, 12 Gray, 29; Commonwealth v. Brelsford, 
161 Mass. 61, 36 N. E. 677 ; State v. Guiness, 16 R. I. 401, 16 
Atl. 910; State v. Gravelin, 16 R. I. 407, 16 Atl. 914; State 
V. Intoxicating Liquors, 76 Iowa, 243, 41 N. W. 6, 2 L. R. A. 
408. 

We now come to the last proposition raised by the excep- 
tions, and that is, whether section 40, with respect to the sale 
of cider which is unfermented and nonintoxicating, in fact 
is in violation of the fourteenth amendment to the constitu- 
tion of the United States. And here two questions must be 
considered: First, whether this provision of the federal con- 
stitution is violated by a state law regulating or prohibiting 
the sale and keeping for sale of intoxicating liquors; and 
second, whether it is violated by a state law declaring cer- 
tain liquors intoxicating, within the meaning of the law gov- 
erning intoxicating liquors, irrespective of the intoxicating 
character of such liquors as a matter of fact. The answer to 
both these questions is that a state law regulating or prohib- 
iting the selling or keeping for sale of intoxicating liquors 
is a legal exercise of police power, and is not in contravention 
of the fourteenth amendment to the federal constitution. 
This has been repeatedly held and can be no longer an open 
question : United States v. Ronan, 33 Fed. 117, In re Hoover, 
30 Fed. 51; Bartemeyer v. Iowa, 85 U. S. (18 Wall.) 129, 21 
L. ed. 929 ; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. Rep. 
6, 32 L. ed. 346 ; Boston Beer Co. v. Massachusetts, 97 U. S. 



Dec. 1905.] Bibber v. Cakville. 303 

25, 24 L. ed. 989 ; Mugler v. Kansas, 123 U. S. 623, 8 Sup. 
Ct Rep. 273, 31 L. ed. 205; License Cases, 46 U. S. 504, 12 
L. ed. 256 ; Foster v. Kansas, 112 U. S. 201, 5 Sup. Ct. Rep. 
8, 97, 28 L. ed. 629; Eilenbecker v. Plymouth County, 134 
U. S. 31, 10 Sup. Ct. Rep. 424, 33 L. ed. 801. 
Exceptions overruled. 



The Legislative Department of the State, in the exercise of the 
police power, ia vested with plenary power to regulate or absolutely 
prohibit the sale of intoxicating liquors: Hart v. State, 87 Miss. 171, 
112 Am. St. Rep. 437, and eases cited in the cross-reference note there- 
to; Equitable Loan etc. Co. v. Edwardsville, 143 Ala. 182, 111 Am. St. 
Eep. 34; but the principal case goes further and authorizes the legis- 
lature to declare beverages to be intoxicating whether or not, as a mat- 
ter of fact, they belong to that class. The language employed by the 
court justifies the conclusion that the legislature has power to de- 
clare pure milk or water to be intoxicating and therefore to prohibit 
its use or sale. However well supported by authority this conclu- 
sion may be, it is, upon principle, arrant nonsense. The judgment 
of the court is, however, defensible, with respect to the liquor there 
in question, on the ground that, as it is often intoxicating, the stat- 
ute involved must be rendered practically inoperative unless all cider 
be deemed to fall within its prohibition. 



BIBBER V. CARVILLE. 

[101 Me. 59, 63 Atl. 303.] 

EQUITY JTJEISDICTION — ^Unilateral Mistake — Cancellation of 
Contract. — While a court of equity may decree the rescission of a con- 
tract for a mistake which is unilateral, the power should not be ex- 
ercised against a person whose conduct has in no way contributed to 
or induced the mistake, and who will gain no unconscionable advan- 
tage thereby, (p. 305.) 

EQUITY JURISDICTION— Belief Against Mistake.— Equity 
does not relieve against mistakes which ordinary care would have pre- 
vented. Conscience, good faith and reasonable diligence are necessary 
to call a court of equity into activity, (p. 305.) 

EQUITY JUEISDICTION— Relief Against Mistake.— If a per- 
■on has acted in ignorance of facts merely, courts of equity will never 
afford relief against mistake when actual knowledge would have been 
obtained by the exercise of due diligence and inquiry, (p. 305.) 

EQXHTY JURISDICTION— Mistake— CanceUation of Deed.— If 
a grantor gives a warranty deed of land which he does not own, under 
the mistaken belief that he has title thereto, equity will not cancel 
the deed when there is no fraud, faLsehood, misrepresentation or con- 
cealment on the part of such grantor, (p. 306.) 

F. E. Southard, for the plaintiflP. 
R. F. Springer, for the defendant. 



304 American State Reports, Vol. 115. [Maine, 

®** POWERS, J. Exceptions to a decree sustaining a de- 
murrer to the plaintiff's bill and dismissinor the bill with costs. 

In substance, the bill alleges that Denham Hall, being the 
owner of a lot of land in Bowdoin containing about one hun- 
dred acres, mortgaged the same to James M. Hall in 1866, 
and to one Bibber in 1870. In 1880 James M. Hall assigned 
the mortgage to Bibber, who in 1888 foreclosed the mort- 
gage given to him and the foreclosure became absolute. Bib- 
ber died in 1897, leaving as his sole heir at law the plaintiff, 
who in 1902, conveyed the premises to the defendant by war- 
ranty deed. At the time he gave the deed, the plaintiff be- 
lieved that he had full title to the premises, but being after- 
ward notified by the defendant that such was not the case, 
he investigated the matter in the registry of deeds, and found 
by the records therein that Bibber and Denham Hall, the 
mortgagor, in 1873 conveyed about twenty-five acres of the 
premises to one Cox, who, the plaintiff alleges he is informed 
and believes, has ever since claimed to be in possession thereof. 
Thereupon the plaintiff offered to return the consideration 
and asked the defendant to reconvey. The defendant de- 
clined to accept the money or reconvey, and brought suit for 
covenant broken, which is now pending in court. Plaintiff in 
his bill further offers to pay back the consideration received 
from the defendant and also such other sum, if any, as jus- 
tice and equity may require; and prays that the deed to the 
defendant may be canceled and for an injunction against 
the prosecution of said suit. 

Does the plaintiff present a case for equitable relief? No 
fraud, falsehood, misrepresentation or concealment on the 
part of the defendant, the grantee, is alleged. There was no 
mistake as to the terms ®^ of the deed. It expressed precisely 
what the parties intended. There was a mistake on the plain- 
tiff's part as to the title, resulting in the not uncommon case 
of a man giving a warranty deed of land which he does not 
own. Our attention has been called to no case where, under 
the circumstances such as are here alleged, a deed has been 
canceled on the prayer of the grantor. 

"Defects in the title do not entitle the grantor to a re- 
scission of the conveyance": 8 Am. & Eng. Ency. of Law, 2d 
ed.. 222. We see no reason why the grantee, who acted in 
good faith, is not entitled in good conscience to retain the 
benefit of the contract which he made. The grantor, who re- 



Dec. 1905.] BiBBEK v. Carville. 305 

ceived the full price he set upon the property, has no equi- 
table right to deprive him of it simply because he was mis- 
taken as to his title and is liable upon his covenants. While 
a court of equity may decree the rescission of a contract for 
a mistake which is unilateral, the power should not be exer- 
cised against a party whose conduct has in no way con- 
tributed to or induced the mistake, and who will obtain no 
unconscionable advantage thereby. 

There is another reason why the plaintiff cannot prevail. 
Equity assists only the vigilant. It does not relieve against 
mistakes which ordinary care would have prevented. Con- 
science, good faith and reasonable diligence are necessary^ to 
call a court of equity into activity: Bonney v. Stoughton, 
122 111. 536, 13 N. E. 833. The plaintiff claimed title as 
heir at law of Bibber. The true state of the title appeared 
on record. He does not allege that before the conveyance he 
ever examined the records to ascertain what title at the time 
of his decease Bibber had to the premises. After the convey- 
ance he examined the records and found that Hall, the mort- 
gagor, and Bibber, the mortgagee, had united in conveying 
a part of the premises to Cox, who, the plaintiff says he is 
informed and believes, has ever since, for more than thirty 
years, claimed to be in possession of the part so conveyed. 
The same investigation before he gave his deed would have 
revealed to the plaintiff the extent of his title and corrected 
his mistake. The bill alleges no reason whatever for the mis- 
taken belief which he entertained. We cannot think it rea- 
sonable diligence for a man to assume, without examination 
of the records, that as heir at law he has a perfect title to 
land conveyed to the intestate twenty-seven ®* years before 
his decease, and of which it is not claimed he ever had pos- 
session. "When a party has acted in ignorance of facts 
merely, courts of equity will never afford relief when actual 
knowledge would have been obtained by the exercise of due 
diligence and inquiry": McDaniels v. Bank, 29 Vt. 230, 70 
Am. Dec. 406. To relieve a party under such circumstances 
would \ye to encourage culpable negligence : Durkee v. Durkee, 
59 Vt. 70, 8 Atl. 490. In that case an examination of the 
records in the town clerk's office would have given the com- 
plainant the information. To the same effect is Deare v. 
Carr, 3 N. J. Eq. 513. In a later case, Graham v. Berry- 
man, 19 N. J. Eq. 29, the same court thus states the prin- 
Am. St. Rep., Vol. 115—20 



306 American State Reports, Vol. 115. [Maine, 

ciple: "When a party ought in the exercise of ordinary pru- 
dence to have made inquiry, and neglects to ascertain the 
facts upon which his contract is based, in cases where it is 
not necessary to repose confidence in the other party, or where 
it is as much his duty as that of the other party with whom 
he deals to know the facts, courts of equity will not relieve 
against his own negligence." 

In conclusion it is to be noted that this is not a case where 
a court of equity is asked to reform a deed which, on account 
of mutual mistake, does not represent the intention of the 
parties. In this case the court is asked to cancel a deed which 
expressed just what the plaintiff intended it should. The mis- 
take was unilateral, on the part of the grantor alone, induced 
by no fraud, falsehood, misrepresentation or concealment of 
the grantee, relating to the grantor's own title, the true state 
of which ordinary care and diligence on his part would have 
revealed to him. It does not appear that the grantor will 
obtain an unconscionable advantage by the deed, or that he 
will not be fairly compensated for his liability on his cove- 
nants by the purchase money which the grantee paid him. 
Under these circumstances eqqity will not interfere to cancel 
the deed and deprive the grantee of the benefit of a contract 
fairly made. 

Exceptions overruled. 



Equity Will Grant Belief Against a Mistake of fact only when it is 
of such a nature that it could not, with reasonable diligence, have 
been avoided at the time. Relief will not be given against the results 
of inexcusable negligence: Woodside v. Lippold, 113 Ga. 877, 84 Am. 
St. Rep. 267. And the mistake, as a rule, must be mutual, in order to 
warrant equitable relief: See the note to Williams v. Hamilton, 65 
Am. St. Rep. 490. 

A Mistake as to the ownership of a lot of land is a mistake of fact; 
and an erroneous view of the legal effect of a deed in a chain of title 
is a mistake against which equity will grant relief: See Livingstone 
V. Murphy, 187 Mass. 315, 105 Am. St. Rep. 400, and cases cited in 
the cross-reference note thereto. 



Feb. 1906.] Ivers & Pond Piano Co. v. Allen. 307 



IVERS & POND PIANO COMPANY v. ALLEN. 

[101 Me. 218, 63 Atl. 735.] 

TEOVEE AND CONVERSION — Second Mortgage of Chattels. 
If a person first gives a mortgage on chattels to one who does not re- 
cord it, and then gives another mortgage on the same chattels to a 
person who records it, the giving of the second mortgage is an illegal 
and unauthorized exercise of dominion over the chattel, inconsistent 
with, and detrimental to, the rights of the first mortgagee and con- 
stitutes a conversion of such chattels by the mortgagor without any 
manual transfer of the property, (p. 308.) 

W. R. Pattangall, for the plaintiff. 

H. H. Gray and A, D. McFaul, for the defendant. 

220 POWERS, J. Trover for a piano. In July, 1904, 
the plaintiff delivered the piano to the defendant, who at 
that time executed and delivered to the plaintiff a lease or 
agreement in regard to the same, reciting that she had paid 
ten dollars for rent until August 7, 1904, and was to pay 
eight dollars a month for the use of the same, as long as she 
hired the piano, until three hundred dollars and interest on 
unpaid balances of that sum was paid, and that, if she ful- 
filled her agreements till the payments of rent amounted to 
three hundred dollars and interest, the piano should become 
her property. This instrument was never recorded. The 
defendant paid as agreed up to February, 1905, when the 
piano was destroyed by fire. On December 28, 1904, the 
defendant mortgaged the piano to one ]\Ieans, who recorded 
his mortgage but never took possession of the property. The 
presiding justice ordered a nonsuit and the plaintiff excepted. 
By agreement of the parties if the nonsuit was incorrectly 
ordered, the plaintiff is to have judgment for two hundred and 
fifty dollars. 

The so-called lease was in sub.stance a conditional sale, not 
valid, except between the original parties, without record : Rev. 
Stats., c. 114, sec. 5. The plaintift"s mortgage of the piano, 
not simply of ^^* her interest in it, conveyed a good title to 
Means. Before that mortgage and its record the plaintiff 
had the full title to the property, subject to the defendant's 
equity of redemption. After that the plaintiff had simply 
the right to redeem from the Means mortgage. The fact that 
the plaintiff saw fit to trust to the defendant's honor instead 



308 American State Reports, Vol. 115. [Elaine, 

of recording its lease gave her no right to sell or dispose of 
the piano in any way that would injuriously affect its rights. 
As against the defendant its claim was valid, and her mort- 
gage of the property was an illegal and unauthorized exer- 
cise of dominion over it, inconsistent with and detrimental to 
the rights of the plaintiff. It requires neither citation nor 
argument to show that such an act, carrying with it such 
consequences, was a conversion of the property, without any 
manual transfer or removal of it. Indeed, we know of no 
accepted definition of a conversion which would exclude the 
facts of this case. It is sometimes said that a mere paper sale 
of a chattel without transfer of possession does not constitute 
a conversion. That is true where the rights of the owner to 
possession and his legal interest in and title to the chattel 
remain unaffected and unimpaired by the sale. Not so here, 
where the legal effect of the defendant's unlawful act de- 
prived the plaintiff of its property and its right to possession 
thereof. 

This case is not to be confounded with cases against a mort- 
gagor, who has sold only his interest in the mortgaged prop- 
erty, as in White v. Phelps, 12 N. H. 382, or with cases against 
a vendee of the mortgagor, as in Dean v. Cushman, 95 Me. 
454, 85 Am. St. Rep. 425, 50 Atl. 85, 55 L. R. A. 959, who 
obtains by his purchase a right of possession against all the 
world except the mortgagee. 

Exceptions sustained. 

Judgment for the plaintiff for two hundred and fifty dol- 
lars. 



Conversion of Personal Property which will sustain an action of trover 
is considered in the note to Boiling v. Kirby, 24 Am. St. Rep. 795. If 
a mortgagor of chattels in possession sells and delivers the property, 
he is guilty of conversion: Dean v. Cushman, 95 Me. 454, 85 Am. St. 
Rep. 425. As to the right of a mortgagee to maintain an action for 
conversion, see Johnson v. Wilson, 137 Ala. 468, 97 Am. St. Rep. 52, 
and cases cited in the cross-reference note thereto. 



March, 1906.] Purlnton v. Pubinton. 309 



PURINTON V. PURINTON. 

[101 Me. 250, 63 Atl. 925.] 

EVIDENCE — Letters Bead to Witness. — If one voluntarily and 
without solicitation reads the whole or a portion of a letter to another, 
and the person hearing does not undertake to repeat the contents of 
such letter, but only what the person purporting to read or state has 
said, such statements assume the form of an admission by the person 
holding the letter, and testimony of such evidence becomes primary 
evidence. This rule applies as against a plaintiff in divorce as to 
letters written by her after her marriage to the defendant to a third 
person and by him to her, the contents of which have been read to 
the witness, (p. 310.) 

EVIDENCE — ^Admissions — Best Evidence. — ^If it is sought to 
use a written statement as an admission, the "best evidence" rule 
does not apply, (p. 311.) 

EVIDENCE. — ^Admissions and Statements made by a person are 
in all cases admissible in evidence against him, though such state- 
ments and admissions may involve what must necessarily be contained 
in some writing, deed or record, (p. 311.) 

EVIDENCE — Letters Written by Third Person. — A letter in the 
handwriting of a third person which appears to be one of many writ- 
ten by him to the plaintiff in divorce, and found under a couch in her 
room, is admissible against her. (pp. 312, 313.) 

APPELLATE PBACTICE. — Exceptions must be overruled un- 
less they affirmatively show, without the aid of extrinsic evidence, not 
only that the ruling was wrong, but that the person complaining was 
aggrieved, so that if the ruling would be justified or would be harm- 
less to the complainant upon any possible but not impossible situation 
unexplained by the exceptions, the doings below will not be disturbe^l 
or condemned, (p. 313.) 

S. S. Brown, for the plaintiff. 

Thompson & Wheeler, for the defendant. 

*** SPEAR, J. This case involves a libel for divorce and 
comes up on exceptions to the admission of certain testimony. 
The charges in the libel were failure to support and cruel 
and abusive treatment. The answer of the libelee was a de- 
nial of every allegation laid in the libel as a cause for di- 
vorce and every specification offered therein under the alle- 
gations; and also a denial of the allegation in the libel that 
the libelant had been faithful to her marriage obligations 
ever since she became his wife, and charged that, on the con- 
trary, during the same time she had offered him extreme and 
continuous provocation, and that her conduct during this 
time had been such as would have justified all that she charged 



310 American State Reports, Vol. 115. [Maine, 

• 
or could truly allege against him, and that during the same 
time her conduct with relation to men other than her husband 
had been immodest, improper, scandalous, ^^^ indecent and 
criminal. Among the witnesses called by the defendant was 
one James Colby, who testified that soon after the marriage 
of the parties he carried numerous letters between this libel- 
ant and one Frank Bartlett, for whom Mrs. Purinton had 
done housework before her marriage with the libelee, and that 
the libelant had often read aloud to the witness the con- 
tents of letters written by said Bartlett to her and by her to 
him, and the defendant's counsel asked the witness to give 
in testimony such portions of the letters so read or stated to 
him by the libelant as he could remember. No effort had 
been made by the libelee to procure the letters and no notice 
had been given by the libelant to produce any such letters 
as she might have in her possession. The libelant's counsel 
objected to such inquiry, but the court allowed the wititess 
to testify as to what was read or stated in them by the libel- 
ant. This ruling presents the first ground of exception. 

The libelant claims that the letters themselves, if any such 
letters ever exi.sted, were the best evidence of the contents 
of the letters, and that no secondary proof of their contents 
should be received until it was shown that the libelee had 
made all reasonable effort to obtain the letters. In other 
words, that the evidence offered to prove the contents of these 
letters, or any part of them, fell within the usual rule relat- 
ing to the proof of the contents of written instruments. But 
we hardly think this position is tenable. 

The case shows and the libelee contends that this evidence 
was not offered to prove the contents of the letters, but the 
statements or admissions of the libelant herself as to some 
of the statements contained in these letters. Proof of her 
voluntary admissions against her own interest would clearly 
be admissible by the testimony of any competent witness who 
might have heard such admissions. We are unable to see why 
the source of her admissions, whether made by her as volun- 
tary statements of her own, purporting to be quotations from 
memory or to be read from some writing, should modify the 
general rule with respect to their proof. When one volun- 
tarily and without solicitation reads the whole or a portion 
of a letter or writing to another, the party hearing does not 
undertake to repeat ^'^ the contents of the original writing, 
but only what the person purporting to read or state has said. 



March, 1906.] Purixton v. Purinton. 313 

This is entirely different from an attempt on the part of a 
witness, who, having read a letter himself, undertakes to 
testify to its contents, when the letter, of course, is the best 
evidence. But when a party voluntarily assumes to state 
what is in a letter, or to read a portion of a letter, to another, 
then such statement assumes the form of an admission by the 
party holding the letter, and testimony of such admission be- 
comes primary evidence under the general rule with refer- 
ence to proof of admissions. 

The testimony of Colby does not assume to give the legal 
effect of the letters, but shows to the extent of his recollec- 
tion what was said by the libelant to have beea their terms 
and import. 

The libelee's legal position is fortified by authority as well 
as reason. 16 Cyclopedia, page 944, lays down this rule : 
"When it is sought to use a written statement as an admis- 
sion, the 'best evidence rule,' so called, does not apply; and 
a copy of a letter, for example, is competent when identified, 
without accounting for the original." 

In Kelly v. IMcKenna, 18 Mich. 381, it was held that the 
copy of a letter which the writer of the original had admitted 
in its leading points to be a correct copy was as to these 
points converted into admissions by him and became original 
evidence. The court said: "It was of no consequence that 
the paper was a copy of the letter he had written. When he 
made its contents identical with his declaration, the paper 
became an original for the purpose of showing his declaration 
to Bruce." So in the case at bar, the testimony of Colby 
became primary for the purpose of showing the declarations 
of the libelant which purported to be identical with the let- 
ters from which she was quoting. 

In Smith v. Palmer, 6 Cush. 513, the court say: "The ad- 
missions of a party stand on distinct grounds. The admis- 
sions of a party are not open to the same objection which 
belongs to parol evidence from other sources. A party 's own 
statements and admi.ssions are in all cases admi.ssible in evi- 
dence against him, though such statements and admissions 
may involve what must necessarily be contained in some writ- 
ing, deed or record. Thus, the statement of a party that 
certain lands had been conveyed might be admittecj, 
*** though the conveyance must be by deed or record. The 
general principle as to the production of written evidence as 
the best evidence does not apply to the admissions of parties ; 



312 American State Reports, Vol, 115. [Maine, 

as what a party admits against himself may reasonably be 
taken to be true." 

In 1 Greenleaf on Evidence, sections 96 and 97, this rule 
is laid down: "It appears that the prevailing doctrine in 
England and this country is that a verbal admission of the 
contents of a writing by a pari;y himself will supersede the 
necessity of giving notice to produce it; in other words, that 
"said admissions being made against the party's own inter- 
est can be used as primary evidence of the contents of a writ- 
ing against him." In note A of section 96, above cited, it 
is said that while the rule as stated is denied in Ireland and 
New York, it is " the prevalent opinion in the United States. ' ' 

In Blacki'ngton v. Rockland, 66 Me. 332, involving the 
proof of a notice to a town for injuries received upon a de- 
fective highway, in which the objection was raised that the 
records of the city were not competent evidence to show that 
a bill for damages had been presented without the produc- 
tion of the bill itself, our court held: "It has been decided 
that oral admissions of a party are admissible evidence of 
facts, though the facts are established by some writing. The 
records here would in effect be equivalent to the oral admis- 
sion of an individual party or more than that." In this 
opinion the court also adopts the English decision in Slatterie 
V. Pooley, 6 Mees. & W. 664, which is referred to by Green- 
leaf in note A, supra, as the leading English case on this 
point. 

In Loomis v. Wadhams, 8 Drake, 557, the court adopts the 
following quotations from Mr. Justice Parke : ' * What a party 
says is evidence against himself as an admission, whether it 
relates to the contents of a written paper or to anything else. ' ' 

In Clarke v. Warwick Cycle Mfg. Co., 174 Mass. 434, 54 
N. E. 887, Chief Justice Holmes says: "It is to be remembered 
with reference to this and other exceptions that admissions 
are evidence against a party making them although they re- 
late to the contents of a written paper or to a corporate vote ' ' : 
See, also, Wolverton v. State, 16 Ohio, 173, 47 Am. Dec. 373 ; 
Edgar v. Richardson, ^ws 33 Ohio St. 581, 31 Am. Rep. 571; 
Edwards v. Tracy, 62 Pa. 374 ; Taylor v. Peck, 21 Gratt. 11. 

The second exception involves the admission of a letter 
written by Bartlett, found by the libelee behind a couch in 
a room vacated by the wife when she left her husband. 

The exceptions do not show whether this letter was opened 
when found, or written before or after the marriage of the 



March, 1906.] Purinton v. Purinton. 313 

libelant with the libelee, nor upon what grounds the judge 
found in the affirmative upon both of these points. But it is 
a well-settled rule of law that in the trial of a ease it 
is to be presumed that things were rightly and regulariy 
done except so far as the exceptions make it otherwise appear. 

Exceptions must be overruled unless they affirmatively 
show, without aid from extrinsic evidence, not only that the 
ruling was wrong, but that the party complaining was ag- 
grieved, so that if the ruling would be justified, or would be 
harmless to the complainant upon any possible but not im- 
probable situation unexplained by the exceptions, the doings 
below will not be disturbed or condemned. Among the latest 
authorities upon this proposition are Toole v. Bearce, 91 Me. 
209, 39 Atl. 558 ; Hill v. Reynolds, 93 Me. 25, 74 Am. St. Rep. 
329, 44 Atl. 135; Smith v. Smith, 93 Me. 253, 44 Atl. 905; 
Look V. Norton, 94 Me. 547, 48 Atl. 117 ; Atkinson v. Ome- 
ville, 96 Me. 311, 52 Atl. 796 ; Copeland v. Hewett, 96 Me. 
525, 53 Atl. 36. 

Under these principles of law it must be held that the letter 
was in all respects properly admitted except those specifically 
stated in the exceptions, and, therefore, must be assumed that 
the evidence satisfied the court that the letter was written 
after the marriage and either found open or without any 
envelope. 

"When this letter was offered, it had already appeared in 
the case by legitimate evidence that Mrs. Purinton had been 
carrying on a clandestine correspondence with Bartlett, em- 
ploying a private carrier; that many letters had passed be- 
tween them. Then the letter found by the libelee was offered 
as one of the letters contained in the correspondence in which 
Mrs. Purinton had been an active participant. 

The exceptions do not deny the passage of these letters be- 
tween the libelant and Bartlett except the last one, simply 
alleging that ^'^^ "Mrs. Purinton denies all such pretended 
reading of said letters by her to said Colby, and denies any 
such letters as the defendant exhibits." The libelee presented 
only the letter which is the subject of the second exception. 

The only real question under this exception is whether 
under all the accompanying circumstances the finding of this 
letter will warrant the inference that it was received by the 
libelant notwithstanding her denial of having received it. 

In view of the fact that the letter was in the handwriting 
of Bartlett, and appeared to be one of many which was writ- 



314 American State Reports, Vol. 115, ^ [Maine, 

ten to her by him, and was found under a couch in the room 
from which the libelant moved when she left her husband, 
the conclusion seems irresistible that she received the letter. 
How otherwise could such a letter, admitted to be in the hand- 
writing of Bartlett, have found its way into her room? If 
the letter had been forged or not in the handwriting of Bart- 
lett, with whom the evidence tends to show she had sustained 
a course of improper correspondence, it could not be ad- 
mitted ; but there is no pretense that it was forged or that it 
was in a handwriting other than Bartlett's, or that there wat 
any collusion with Bartlett by which it was placed there 
but a simple denial on her part that she ever received it. It 
that letter was not placed in that room through her hands, 
we are at a complete loss to know how it got there. The only 
reasonable explanation is that she received it and accidentally 
dropped it behind the couch or on the floor, and in that way 
left it to be found by her husband. 
Exceptions overruled. 



The Admissibility in Evidence of the Admissions of parties to a 
divorce is cousidered in the note to Richardson v. Richardson, 30 Am. 
Dec. 544. The admissions of a party to a divorce suit are generally re- 
garded as competent evidence against him: Burke v. Burko, 44 Kan. 
307, 21 Am. St. Rep. 283; Gardner v. Gardner, 104 Tenn. 410, 78 Am. 
St. Rep. 924. See, however, Toole v. Toole, 112 N. C. 152, 34 Am. 
St. Bep. 479. 



HAYES v. RICH. 

[101 Me. 314, 64 Atl. 659.] 

JUDGMENTS — Assignment. — Where a judgment must be 
deemed a chose in action upon which an action may be maintained 
by an assignee in his own name, an assignment of judgment in writ- 
ing, although not under seal, is sufficient, (pp. 316, 317.) 

EXECUTORS AND ADMINISTRATORS— Speculation wltti 
Funds of Estate. — So great a breach of trust is it for the personal 
representative of a decedent to engage in business with the funds of 
the estate, that the law charges him with all the losses thereby in- 
curred, without, on the other hand, allowing him to receive the bene- 
fit of any profits that he may make, the rule being that the persons 
beneficially interested in the estate may either hold the representative 
liable for the amount so used with interest, or, at their election, take 
all the profits which the representative has made. (pp. 318, 319.) 

EXECUTORS AND ADMINISTRATORS— Speculation with 
Funds of Estate. — It is the duty of an executor or administrator to 



March, 1906.] Hayes v. Rich. 315 

settle the estate, pay the debts, and distribute the surplus, and not 
to speculate in demands against creditors. If the latter transaction 
is indulged in, all loss must fall upon such personal representative, 
(p. 319.) 

EXECUTORS AND ADMINISTEATOES— Speculation with 
Funds of Estate — Eecovery in Representative Capacity. — It is the 
duty of an administrator to collect a good note in favor of the estate 
in cash, and not to invest it in a worthless judgment at twenty cents 
on the dollar, and if he assumes the responsibility of employing the 
funds of the estate for such purpose, he must be deemed to have done 
so in his individual capacity. If an administrator thus changes the 
nature of the debt originally due the intestate by contract made with 
himself, he must sue for the new debt in his own name, and not in 
his representative capacity, (p. 320.) 

EXECUTORS AND ADMINISTRATORS— Speculation with 
Funds of Estate — Right to Rescover in Representative Capacity. — If 
an administrator speculates with the funds of the estate and changes 
the nature of the debt originally due the intestate by a contract made 
with himself, his assumption that he can maintain an action thereon 
>»nd recover judgment in his representative capacity is incompatible 
with the right of the defendant to testify as a witness in his own 
behalf respecting matters that happened before the death of the in- 
testate, (p. 320.) 

JUDGMENTS — Assignment — Witnesses. — In an action on a 
judgment brought by an original judgment creditor or by his assignee in 
his individual capacity, the defendant therein is a competent witness 
as to all matters material to the issue; and any transaction or pro- 
ceeding which would effectually render him incompetent in such action 
will not be tolerated or approved, (p. 321.) 

G. W. Heselton and Heath & Andrews, for the plaintiff. 

Williamson & Burleigh, for the defendant. 

»i» WHITEHOUSE, J. The first of these eases is an 
action of debt on a judgment for seven hundred and eight 
dollars and sixty-five cents recovered in 1899 by Albert A. 
Robbins against the defendant. Rich. It is alleged in the 
declaration that February 10, 1900, Robbins, for a valuable 
consideration, assigned this judgment "to Alvah R. Hayes, 
then the administrator de bonis of the Dingley Brothers es- 
tate." In support of this allegation the following instru- 
ment signed by Robbins was offered in evidence: "For a 
valuable consideration, in a note of one hundred and fifty 
dollars payable to F. B. Dingley, admr., d. b. n. Dingley 
Bros.' estate, dated P^eb. 1, 1899, to me this day surrendered 
by A. R. Hayes, admr., d. b. n. of same estate, I assign and 
transfer to said estate the within judirment debt with full 
power in my name but without expense to me to collect the 
same." 



316 American State Reports, Vol. 115. [Maine, 

The plea was the general issue with a brief statement deny- 
ing that there was any assignment of the judgment to the 
plaintiff in his capacity as administrator as set forth in the 
declaration. 

It was accordingly contended in behalf of the defendant, 
first, that the instrument in question was ineffectual as an as- 
signment and inadmissible as evidence because not under seal ; 
second, that under our statutes an assignee of a judgment 
could not maintain an action in his own name, and third, 
that in any event the instrument could not operate as an as- 
signment of a judgment to Hayes in his capacity as adminis- 
trator of Dingley Brothers, but only as an assignment to 
Hayes in his individual capa.^ity, and hence fails to support 
the plaintiff's declaration. 

These objections were severally overruled pro forma by 
the presdding judge, the assignment received as evidence, 
and judgment ordered for the plaiijtiff for eight hundred and 
eighty-eight dollars and ninety-five cents. The case comes 
to this court on exceptions to this ruling. 

^*® The first and second propositions afppear to have been 
decided against the defendant's contention. In Dunn v. 
Snell, 15 Mass. 481, the court say: "The objection to the as- 
signment as offered to be proved by the witnesses is that it 
was not by deed, and the objection rests upon the general 
principle which was assumed by the counsel that an assign- 
ment of a specialty must be by an instrument of as solemn 
a nature as the instrument itself which is to be assigned. 
Considering a judgment as a specialty, it is obvious that, 
upon this general principle, it could never be assigned; be- 
cause there is no instrument in pais of so high a nature as 

the record of a judgment in court It is not doubted 

that this debt, upon which the judgment was rendered, might 
have been assigned by writing without seal The judg- 
ment is only evidence of the debt, and if the execution is de- 
livered over, with intent to transfer the debt, upon a fair 
bargain upon a valuable consideration, there is no reason why 
the transaction should not be as binding Upon the parties as 
the parol assignment of a debt before it is reduced to judg- 
ment. And, in this case, the execution was in fact delivered 
to the use of the assignee, so that the judgment creditor could 
not have obtained another execution upon that judgment." 

In Prescott v. Hull, 17 Johns. 284, the court said: "I do 



March, 1906.] Hayes v. Rich. 317 

not consider the want of a seal essential. The mere delivery 
of a chose in action upon good and valid consideration would 
be sufficient even were it a specialty": See, also. Wood v. 
Decoster, 66 Me. 542; Ware v. Bucksport etc. R. R. Co., 69 
Me. 97. 

In the two last-named cases it was also decided that under 
section 146, chapter 84 of the Revised Statutes (originally 
chapter 235, laws of 1874), a judgment must be deemed a 
chose in action upon which an action might be maintained 
by the assignee in his own name. 

In considering the peculiar terms of the instrument in ques- 
tion and its operation as an assignment with reference to the 
defendant's third contention, it is allowable to observe the 
situation of the parties at that time and the obvious purpose 
of this assignment. 

In October, 1904, the defendant. Rich, obtained a verdict 
of two thousand and ninety-three dollars and twenty-five 
cents against the plaintiff, Hayes, in his capacity as admin- 
istrator de bonis non on the estate of Dingley Brothers. The 
action which ^^^ finally resulted in this verdict was com- 
menced April 9, 1900, and was based on a note originally for 
three thousand dollars bearing date December 29, 1894, given 
by Dingley Brothers to Rich. The motion for a new trial in 
this case was overruled by the law court, and the case went 
to judgment in October, 1905. 

It is true that the plaintiff, Hayes, obtained the assign- 
ment of the Robbins judgment two months before the actual 
commencement of the original suit of Rich v. Hayes, last de- 
scribed, but it has been seen that the note on which this ac- 
tion was brought was dated December 29, 1894. It may rea- 
sonably be inferred from all the circumstances disclosed by 
the evidence to which we are permitted to refer that both 
Hayes and Fred B. Dingley, his predecessor in the adminis- 
tration of the estate in question, had reason to apprehend 
that a suit would be brought by Rich on his note against 
Dingley Brothers, and having an opportunity to purchase 
the Robbins judgment at less than twenty cents on the dol- 
lar, Hayes appears to have consummated the arrangement 
alleged to have been made by Fred B. Dingley, and obtained 
an assignment of the judgment in the obvious hope of being 
allowed to offset the full amount of it against any judgment 
that might be recovered by Rich on his three thousand dollar 



318 American State Reports, Vol, 115. [Maine, 

note. But a judgment against Rich standing in the name 
of Robbins as plaintiff could not be offset against a judg- 
ment obtained by Rich against Hayes in his capacity as ad- 
ministrator d. b. n. of the estate of Dingley Brothers, and the 
suit at bar was manifestly brought for the purpose of ob- 
taining a judgment in the name of Hayes, the assignee, in 
his capacity as administrator, in the expectation that in this 
form the Robbins judgment could be offset pro tanto against 
the larger judgment of Rich against Hayes, administrator. 
Accordingly, on the rendition of the judgment for two thou- 
sand and ninety-three dollars in favor of Rich, a motion to 
offset the Robbins judgment was promptly made. 

It is the opinion of the court, however, that in the case at 
bar the plaintiff is not entitled to a judgment in his right 
and capacity as administrator. In the first place, it does not 
explicitly or satisfactorily appear that the one hundred and 
fifty dollar note invested by Hayes in the purchase of the 
Robbins judgment in fact represented any part of the assets 
of the estate of Dingley Brothers. It is described in the as- 
signment, ^^* it is true, as * * payable to F. B. Dingley, Admr. 
d. b. n. Dingley Brothers' estate," but there is no evidence 
from any witness having personal knowledge of the matter 
that it was given for any debt due the firm of Dingley 
Brothers in their lifetime. 

But if it be assumed that the Robbins judgment was 
purchased by Hayes with funds belonging to the estate of 
Dingley Brothers, still, in a broader view of the question, 
insuperable objections present themselves arising from consid- 
erations of sound public policy, and the rights of a party in 
the situation of Rich as defendant in a suit in the Robbins 
judgment, which must prevent the plaintiff Hayes from recov- 
ering a new judgment in his name and capacity as adminis- 
trator on the estate of Dingley Brothers. It is the recognized 
function of an administrator to settle the estate, reduce the 
assets to cash as far as necessary and practicable, pay the 
debts and legacies and unfler the order of court distribute the 
residue among those entitled to it under the intestate laws of 
the state. "So great a breach of trust is it for the repre- 
sentative to engage in business with the funds of the estate 
that the law charges him with all the losses thereby incurred, 
without, on the other hand, allowing him to receive the bene- 
fit of any profits that he may make, the rule being that the 



March, 1906.] Hayes v. Rich. 319 

persons beneficially interested in the estate may either hold 
the representative liable for the amount so used with interest, 
or at their election take all the profits which the representative 
has made by such unauthorized use of the funds of the es- 
tate": 18 Cye. 241, 242, and cases cited. 

In Mead v. Merritt, 2 Paige, 402, the facts were analogous 
to those at bar. In a suit by the defendant Peck against the 
plaintiff, as executor of the will of one Sherwood, the plaintiff 
alleged that he had purchased a note against Peck and asked 
to have it set off against the latter upon Sherwood's estate. 
It was further alleged, it is true, that Peck's claim had been 
assigned to the defendant IMerritt for the purpose of defeat- 
ing the plaintiff's claim to setoff, and the question of jurisdic- 
tion was also involved. But in the opinion Chancellor Kent 
says: "Independent of this question of jurisdiction, it is 
evident that the complainant has no right to the equitable 
interposition of this court. The note of Peck, which he 
**^ purchased since the death of Sherwood, and now holds in 
his own right, could not, at law, be set off against Peck's 
demand upon the estate of the testator. And it would be 
inconsistent with the principles of sound policy to permit an 
executor to buy up claims against creditors of an estate, for 
the purpose of obtaining a setoff in equity": 2 Paige, 405. 

So in Dudley v. Griswold, 2 Bradf. 24, the court say: "It 
is the duty of an executor or administrator to settle the estate. 
pay the debts and distribute the surplus, and not to speculate 
in demands against creditors." 

The distinction between the duty and authority of an ad- 
ministrator, and the functions of a trustee or receiver, is so 
well established and a matter of such common knowledge as 
to render unnecessary the citation of authorities or any ex- 
tended discussion of the subject. It has been recognized 
from time immemorial as the characteristic duty of an admin- 
istrator to settle the estate of his intestate with reference to 
the situation of the as.sets at the time of the death of the 
decedent, and not attempt, by trade or speculation, to adjust 
the affairs of the estate upon an entirely different basis, which 
might seriously affect the (piestion of distribution and in some 
instances render the estate insolvent : See the numemus cases 
upon the question of setoff in Rich v. Hayes, 101 Me. 324, 
post, p. 321, 64 Atl. 656. In the case at bar it appears that 
at the time Hayes purchased the Robbins judgment, Rich was 



320 American State Reports, Vol. 115. [Maine, 

hopelessly insolvent, and had no available property with which 
to satisfy any judgment, except the note in suit in Rich v. 
Hayes, 101 Me. 324, post, p. 321, 64 Atl. 656 ; while, on the other 
hand, there is no evidence that Robbins was not entirely 
solvent and able to pay the note for one hundred and fifty 
dollars which the plaintiff held against him. It was the obvi- 
ous duty of the plaintiff, if acting for the interest of the 
estate which he represented, to collect this note in cash, and 
not invest it in a worthless judgment at twenty cents on the 
dollar. If he assumed the responsibility of employing the 
funds of the estate for such a purpose, he should be deemed 
to have done so in his individual capacity ; and if an adminis- 
trator thus changes the nature of the debt originally due the 
intestate by a contract made with himself, he must sue for the 
new debt in his own name, and not in his representative 
»23 capacity: Helm v. Van Vleet, 1 Blackf. (Ind.) 342, 12 
Am. Dec. 248; Bond v. Corbett, 2 Minn. 209; Burdyne v. 
Maekey, 7 Mo. 374. 

Again, the assumption that the plaintiff can maintain this 
action and recover judgment in his capacity as administrator 
is incompatible with the right of the defendant to testify as 
a witness in his own behalf respecting matters that happened 
before the death of the plaintiff's intestate. In an action 
on a judgment brought by the original judgment creditor or 
by an assignee in his individual capacity, the defendant would 
be a competent witness as to all matters material to the issue. 
It would be the privilege of the defendant Rich, for instance, 
to give personal testimony that before the death of the Dingley 
Brothers he had paid the Robbins judgment in full, but under 
the provisions of section 112 of chapter 84 of the Revised 
Statutes, the fact that the plaintiff brings the action as the 
representative of a deceased party precludes the defendant 
from giving any such evidence in his own behalf, although 
Robbins, the judgment creditor, would be a competent witness 
for the plaintiff. Under the operation of such a rule any 
person could effectually close the mouth of his adversary as a 
witness by assigning his claim to an administrator of some 
estate. 

But it has been seen that the ruling of the presiding judge 
to which exceptions were taken fails to specify whether the 
judgment was ordered in favor of the plaintiff in his indi- 
vidual or representative capacity. But it is not alleged in 



March, 1906.] Rich v. Hayes. 321 

the declaration that the cause of action accrued to the estate 
which he represented, but for aught that appears it may have 
been one accruing to him in his own right. The words 
describing him as administrator of the estate may therefore 
be stricken out as merely descriptio personae, and he may be 
allowed to take judgment in his individual capacity : Bragdon 
V. Harmon, 69 Me. 29; Fleming v. Courtenay, 95 Me. 128, 
49 Atl. 611, 98 Me. 401, 99 Am. St. Rep. 414, 57 Atl. 592. 

Inasmuch, therefore, as the plaintiff is entitled to judgment 
in his individual capacity, the entry in the first case must 
be, exceptions overruled. 

324 rpj^g second case, Hayes v. Rich, is also an action of debt 
on a judgment. It appears that Rich commenced an action 
again.st Hayes, administrator, and became nonsuit. Judg- 
ment for costs was accordingly rendered in favor of Hayes for 
three hundred and seventy-eight dollars and ninety-seven 
cents. This judgment properly belonged to Hayes in his 
own right, and in this action on that judgment he is entitled 
to recover in his individual name and capacity: Buswell v. 
Eaton, 76 ^le. 392 ; Titonic Nat. Bank v. Turner, 96 Me. 380, 
52 Atl. 793. 

In this case, therefore, the entry must also be, exceptions 
overruled. 



For Authorities bearing upon the principal case, see Rich v. Hayes, 
101 Me. 324, post, p. 321. The setting off of one judgment against 
another is the subject of a note to Coonan v. Loewenthal, 109 Am. St. 
Bep. 137. 



RICH V. HAYES. 

flOl Me. 324, 64 Atl. 656.] 

EXECUTORS AND ADMINISTEATORS— Setoff In Favor of.— 
An administrator cannot offset against a judgment rendered upon a 
liability of the decedent another judgment on a claim with which the 
decedent had no connection in his lifetime, purchased by such admin- 
istrator with the funds of the estate for that purpose, after the death 
of the intestate, (p. 325.) 

EXECUTORS AND ADMINISTRATORS— Setoff in Favor of .— 
If an executor or administrator sues for a deb< created to him since 
the death of the decedent, the defendant in such suit cannot set off a 
debt due to him from the decedent, and the same rule applies against 
the personal representative when he is the defendant, (p. 325.) 
Am. St. Rep., Vol. 115—21 



322 American State Reports, Vol. 115. [Maine, 

SETOFF Against Estates of Deceased Persons. — Demands on 
which causes of action arise subsequently to decedent's death are not 
proper subjects of setoff against demands or causes of action arising 
in decedent's lifetime, (p. 326.) 

SETOFF Against Estates of Decedents. — Claims against an es- 
tate purchased after his death cannot be set off in an action against 
the purchaser thereof for a debt due the decedent, nor even on a debt 
created after the death of the decedent, (p. 326.) 

Williamson & Burleigh, for the plaintiff. 

G. W. Heselton and Heath & Andrews, for the defendant. 

«*« WHITEHOUSE, J. The question involved in this case 
arises upon the motion of the defendant to set off against the 
judgment recovered by the plaintiff in this case two judg- 
ments recovered by the defendant against the plaintiff. The 
case comes to this court on report. 

In October, 1904, the plaintiff obtained a verdict of two 
thousand and ninety-three dollars and twenty-five cents 
against the defendant in his capacity as administrator de 
bonis non on the estate of Dingley Brothers. The action 
which terminated in this result was commenced April 9, 1900, 
on a note given by the plaintiff to Dingley Brothers in 1894 
for three thousand dollars. A motion to set aside the verdict 
was overruled by the law court, and the case went to judgment 
in October, 1905. 

Thereupon a motion was made to offset against this judg- 
ment, pro tanto, the judgment which might be rendered in 
favor of the defendant Hayes in two cases then pending in 
his name as administrator against the plaintiff Rich. The 
first of these cases was an action of debt on a judgment for 
seven hundred and eight dollars and sixty-five cents, recov- 
ered in 1899 by Albert Robbins against the defendant Rich. 

It is alleged in the declaration that February 10, 1900, Rob- 
bins, for a valuable consideration, assigned this judgment "to 
Alvah R. Hayes, then the administrator de bonis of the Ding- 
ley Brothers estate." In support of this allegation the fol- 
lowing instrument signed by Robbins was offered in evidence : 
"For a valuable consideration, in a note of one hundred and 
fifty dollars payable to F. B. Dingley, admr. d. b. n. Dingley 
Bros.' estate, dated Feb. 1, 1899, to me this day surrendered 
by A. R. Hayes, admr. d. b. n. of same estate, I assign and 
transfer to said estate the within judgment debt with full 
power in my name but without expense to me to collect the 
same." 



March, 1906.] Rich v. Hayes. 323 

It is contended in behalf of the defendant that if the action 
is maintainable at all the plaintiff is not entitled to recover 
in his representative capacity as administrator of the estate 
of Dingley Brothers, but only in his individual capacity. 
This question came before the court in Hayes v. Rich, 101 Me. 
314, ante, p. 314, 64 Atl. 659, and upon the reasons and 
authorities there adduced it was held that the plaintiff 
^^"^ was entitled to recover only in his individual capacity 
and judgment was entered accordingly. 

The second case, Hayes v. Rich, was also an action of debt 
on a judgment. It appears that Rich commenced an action 
against Hayes, administrator, and became nonsuit. Judg- 
ment for costs was accordingly rendered in favor of Hayes for 
three hundred and seventy-eight dollars and ninety-seven 
cents. It was held by the court that this judgment properly 
belonged to Hayes in his own right, and that in this case also 
he was only entitled to recover in his individual name and 
capacity : Hayes v. Rich, 101 Me. 314, ante, p. 314, 64 Atl. 659. 

It is provided by section 77 of chapter 84 of the Revised 
Statutes as follows : * * In actions against executors, administra- 
tors, trustees or others in a representative capacity, they may 
set off such demands as those whom they represent might have 
set off in actions against them; but no demands, due to or 
from them in their own right, can be set off in such actions. ' ' 

Ina.smuch as it has been shown by the court in Hayes v. 
Rich, 101 Me. 314, ante, p. 314, 64 Atl. 659, that the two judg- 
ments there rendered in favor of Hayes properly belonged to 
him in his own right, and as the new judgments have accord- 
ingly been awarded to him in his individual capacity, it 
follows that by the express terms of the statute above quoted 
these judgments could not have been set off against Rich's 
note in suit before judgment. Neither could the executions 
on these judgments be set off under the provisions of section 
27 of chapter 86 of the Revised Statutes, since the creditor in 
one is not debtor in the other "in the same capacity and 
trust." Indeed, the right to set off judgments in this state 
is not derived from any express statutory regulations, but 
depends upon the general jurisdiction and power of the courts 
over suitors at common law ; but if the right to set off, in the 
manner proposed, assigned claims that are not negotiable, was 
recognized as existing at common law, it is r<^markable that 
the legislature should prohibit its exercise before judgment, 
when the setoff could be made with at least equal convenience. 



324 American State Reports, Vol. 115. [Maine, 

It is no less significant that the provision for offsetting execu- 
tions should be limited to cases where "the creditor in one 
is debtor in the other in the same capacity and trust"; for 
ordinarily the right of the court to set off judgments **® can 
only be exercised when the executions could be set off under 
the statute: New Haven Copper Co. v. Brown, 46 Me. 418. 
In this case it should be observed that the "assigned claim" 
was a negotiable promissory note. 

In Ames v. Bates, 119 Mass. 397, the facts were strikingly 
similar to those at bar, and although/ the decision of the case 
turned upon another point, the following observations of the 
court are worthy of consideration: "If Ames had continued 
to be the owner of the judgment recovered in his name, it 
might '(veil be questioned whether Bates should be permitted 
to set off against it the judgment recovered by him in the 
name of Freeman and another when he could not have set off 
the claims upon which the judgments were founded. The 
reason why a party is not permitted by the statute to set off 
such claims may fairly be presumed to be, that it is not just 
that one should be encouraged, instead of paying his own 
debt, to seek out claims against his creditor in order thus 
to change the position of parties pendente lite, and this reason 
is equally applicable to judgments which may afterward be 
obtained upon such claims." 

In the case at bar, it is true, the assigned judgment was 
not purchased pendente lite, but about two monjths before 
the commencement of the original suit of Rich v. Hayes. It 
is manifest, however, from the history of these transactions 
disclosed by the evidence that both Hayes and his predecessor 
in the administration of the estate apprehended the suit by 
Rich on his three thousand dollar note, and having an oppor- 
tunity to purchase the Robbins judgment at less than twenty 
cents on the dollar, obtained the assignment of it for the 
express purpose of claiming a setoff, pro tanto, against the 
note in suit or any judgment that Rich might recover upon it. 

It is undoubtedly true that the principle of mutuality is 
implied in the use of the word "setoff," and that it is not 
necessarily confined to a nominal mutuality indicated by the 
record, but in some cases may be a real mutuality of the 
indebtedness of the parties at the time of the commencement 
of the suit : Collins v. Campbell, 97 Me. 23, 94 Am. St. Rep. 
458, 53 Atl. 837, and cases cited. 



March, 1906.] Rich v. Hayes. 325 

But if it be conceded in the case at bar that the Robbins 
judgment was purchased by Hayes with funds belonging to 
the estate of Dingley ^-® Brothers, and that the assignment, 
although in terms made "to the estate" and not to any person, 
was procured for the purpose of vesting the title thereto in 
Hayes as the legal representative of the estate, and making 
it a part of the assets of the estate, still in a broader 
view of the precise question here presented, irrespec- 
tive of the provisions of the statute, there appear to be con- 
vincing reasons and an overwhelming weight of authority in 
support of the plaintiff's contention that an administrator 
cannot offset against a judgment rendered upon a liability of 
the decedent another judgment on a claim with which the 
decedent had no connection in his lifetime purchased by the 
administrator with the funds of the estate for that purpose 
after the death of his intestate. Some of these reasons are 
stated and authorities cited in Hayes v. Rich, 101 Me. 314, 
ante, p. 314, 64 Atl. 659. The question involved in the two 
cases are so blended or intimately connected, that the con- 
siderations controlling the decision of the one will be found 
in most respects equally important in the other. 

It is a self-evident proposition, in the first place, that Hayes 
can certainly have no greater right to offset a judgment 
against Rich, purchased by him from a stranget" after the 
death of Dingley Brothers, than he would to offset a judgment 
obtained by him, for instance, on an account for goods of the 
estate sold by him to Rich ; and since the essence of the doc- 
trine of setoff is its mutuality, it is equally axiomatic that if 
Rich could not offset against the Robbins judgment a debt 
due him from the estate, neither can Hayes set off a debt due 
him as admini.strator against a claim due Rich from the 
estate. It would obviously be immaterial whether the motion 
for a setoff was made by Rich or Hayes. In Dale v. Cooke, 4 
Johns. 11, Chancellor Kent, speaking for the court, says: 
"It is an established rule in courts of law that if executors 
sue for a debt created to them since the testator's death, 
defendant cannot set off a debt due to him from the testator. 
I see no reason why the same rule should not prevail in 
equity. If the defendant could not set off in such a case, 
neither could the executor, if he was the defendant, for the 
rule must be mutual": See, also, Dudley v. Griswold, 2 
Bradf. (N. Y.) 24: Mead v. Merritt, 2 Paige, 402; Root v. 
Taylor, 20 Johns. 137, 



326 American State Reports, Vol. 115. [Maine, 

^*® Indeed, this seems to be substantially a uniform rule in 
this country. In Dayhuff v. Dayhuff' s Admr., 27 Ind. 158, 
the defendant sought to set off a claim due him against the 
administrator's claim against him for goods of the estate sold 
him; and although there was evidence that the administrator 
agreed to allow the setoff as an inducement to the defendant 
to purchase the goods, the court declared it to be a settled 
rule that in a suit by an administrator for a debt due the 
estate of the decedent originating after the death of the intes- 
tate the defendant cannot set off a debt due him from the 
intestate before his decease. In this case the suit was by the 
plaintiff in his representative capacity, but this fact was held 
to be immaterial. The case was expressly affirmed in Harte 
V. Houchin, 50 Ind. 327; Minor v. Minor's Admr., 8 Gratt. 
1; Cook V. Lovell, 11 Iowa, 81; Aiken v. Bridgman, 37 Vt. 
249 ; Wisdom v. Becker, 52 111. 342 ; Lee v. Russell, 18 Ky. 
Law Rep. 951, 38 S. W. 874 ; Grew v. Burditt, 9 Pick. 265 ; 
Lamberton v. Freeman, 16 N. H. 547; 25 Am. & Eng. Ency. 
of Law & Pr., 2d ed., 534, and cases cited. 

In 18 Cyclopedia of Law and Procedure, 896 et seq., the 
rule upon this question is thus formulated: "Demands on 
which causes of action arise subsequent to decedent's death 
are not proper subjects of setoff against demands or causes 
of action arising in decedent's lifetime, because there is no 
mutuality of indebtedness between the parties." 

On page 899 of the same volume is the following rule: 
"Claims against an estate purchased after decedent's death 
cannot be set off in an action against the purchaser thereof 
for a debt due the decedent, nor even a debt created after 
the death of a decedent." 

Both of these propositions are supported by numerous 
citations of authorities, basing the rule for the most part 
upon considerations of sound public policy, which re- 
quire the estate to be settled as of the time of the decease 
of the intestate and forbid any alteration in the course of the 
distribution of the assets': See, also. Irons v. Irons, 5 R. I. 
264; Union Nat. Bank v. Hicks, 67 Wis. 189, 30 N. W. 234; 
Bizzell V. Stone, 12 Ark. 378. In the last-named case the 
same rule was held to be settled both at law and in equity, 
and whether the estate be solvent or insolvent. 

In like manner it appears to have been uniformly held by 
the ^* courts of England, that if an administrator brings 



March, 1906.] Rich v. Hayes. 327 

an action upon a debt created against the defendant after the 
death of the intestate or upon which the cause of action arose 
after that event, the defendant cannot set off a debt on which 
there was a cause of action in the lifetime of the intestate' : 
Shipman v. Thompson, Will. 103 ; Tegetmyer v. Lumley, Will. 
264; Watts V. Rees, 9 Ex. 696, 11 Ex. 410; Lambard v. 
Elder, 17 Beav, 542. 

As stated by the court in Hayes v. Rich, 101 Me. 314, ante, 
p. 314, 64 Atl. 659: "It appears that at the time Hayes pur- 
chased the Robbins judgment, Rich was hopelessly insolvent 
and had no available property with which to satisfy any 
judgment, except the note in suit in Rich v. Hayes, while, on 
the other hand, there is no evidence that Robbins was not 
entirely solvent and able to pay the note for one hundred and 
fifty dollars which the plaintiff held against him. It was the 
obvious duty of the plaintiff, if acting for the interest of the 
estate which he represented, to collect this note in cash, and 
not invest it in a worthless judgment at twenty cents on the 
dollar." 

Inasmuch as the attorneys for Rich have a common-law lien 
upon the judgment which they have against Hayes personally 
for their costs of suit, it is not claimed that either of the judg- 
ments in Hayes v. Rich can be offset against that ; and upon 
the reasons and authorities above presented it is the opinion 
of the court that Hayes is not entitled to have either of his 
judgments offset against the judgment for two thousand and 
ninety-three dollars in favor of Rich. Judgment must accord- 
ingly be entered in favor of Rich for both damages and costs 
without the setoff claimed. 

Motion denied. 



The Setting Off of One Judgment against another is the subject of a 
note to Coonan v. Loewenthal, 109 Am. St. Kep. 137. See, also, Hayes 
▼. Eich, 101 Me. 314, ante, p. 314. 



328 American State Reports, Vol. 115. [Maine, 



JONES V. JONES. 

[101 Me. 447, 64 Atl. 815.] 

APPELLATE PRACTICE— Bills of Exceptions— TTh at Must 
State. — An excepting party, if he would obtain any benefit from his 
exceptions, must set forth enough in the bill of exceptions to enable 
the court to determine that the points raised are material and that 
the rulings excepted to are both erroneous and prejudicial. It is 
not enough that the court can find these characteristics by studying 
the report of the evidence in support of the motion for a new trial 
when it accompanies the bill of exceptions, unless it is made part 
thereof, (p. 329.) 

BILLS AND NOTES — Delivery. — A note does not become a 
liability until delivery, (p. 331. "l 

BILLS AND NOTES — Delivery to Agent — Death of Maker. — 
If the maker of a note places it in the hands of a third person merely 
for delivery to the payee, such third person is the agent of the maker, 
and not of the payee, and if the maker dies before delivery by the 
agent, his authority is thereby revoked and a subsequent delivery by 
him is ineflfectual to create a liability, (p. 331.) 

BILLS AND NOTES — Delivery on Happening of Contingency — 
Burden of Proof. — If a note is left with a third person to be delivered 
to the payee upon the happening of a contingency, the first delivery 
is complete and irrevocable, but the burden of proving such delivery 
is upon the person setting it up. (p. 332.) 

PARTNERSHIP — Loan to Member of Firm — ^Recovery as 
Money had and Received. — If a third person, by mortgage or other- 
wise, procures money and furnishes it to a person for the use of a 
partnership of which he is a member, he, as a member of such firm, 
becomes bound in equity and good conscience to repay such debt and 
such loan may be recovered as for money had and received, unless all 
or some part of it is barred by limitation and as to the part not so 
barred recovery may be had. (p. 333.) 

L. C. Steams, T. D. Bailey and J. F. Gould, for the plain- 
tiff. 

P. H. Gillin and JMartin Cook, for the defendants. 

"*'^** SAVAGE, J. Action to recover on three promissory; 
notes, one dated February 17, 1896, for fifteen hundred dol- 
lars; one dated April 14, 1900, for five hundred dollars; and 
one dated February 8, 1901, for five hundred dollars, all pur- 
porting to be signed on the face by Silas D. Jones & Sons, 
and on the back by Silas D. Jones, individually, and payable 
to the plaintiff. There is also a count for money had and 
received. The action is against the estate of Silas D. Jones, 
of whose will the defendants are the executrices. The defend- 
ants deny the execution of the notes, and particularly that 



July, 1903.] Jones v. Jones. 829 

the individual signature of Silas D. Jones is genuine; they 
pleaded the statute of limitations as to the fifteen hundred 
dollar note; they claim that the notes never became effective 
for want of delivery during the lifetime of Silas D. Jones and 
they assert that the plaintiff, having come into possession of 
the notes after the death of Silas D. Jones, voluntarily forgave 
the indebtedness, surrendered the notes to the executrices 
and consented to their destruction, in consideration of the 
promise of Sarah C. Jones that she would not thereafter 
change the provisions of her will in favor of the plaintiff's 
husband, who was the son of Sarah C. Jones. 

Nevertheless, the jury returned a verdict for the plaintiff 
for the full amount claimed. And the case now comes before 
us on the defendants' motion and exceptions. Of the many 
exceptions, only one — that relating to the delivery of the 
notes — is open to consideration. INIany times the court has 
reiterated the rule that an excepting party, if he would 
obtain any benefit from his exceptions, must set forth enough 
in the bill of exceptions to enable the court to determine that 
the points raised are material and that the rulings excepted 
to are both erroneous and prejudicial. The bill of exceptions 
must show what the issue was, and how the excepting party 
was aggrieved. Error must appear aflirmatively: Dennen v. 
Haskell, 45 Me. 430 ; ITovey v. Hobson, 55 Me. 256 ; Merrill v. 
Merrill, 67 Me. 70; Fairfield v. Old Town, 73 Me. 573; John- 
son V. Day, 78 Me. 224, 3 Atl. 637 ; Nutter v. Taylor, 78 Me. 
424, 6 Atl. 835 ; Smith v. Smith, 93 Me. 253, 44 Atl. 905, and 
many other cases. The bill of exceptions in this case, except 
in one instance to be considered later, is '*'** barren of state- 
ments to show that the matters complained of were material, 
or erroneous or harmful. It is not enough that the court can 
find all of these characteristics by studying the report of the 
evidence in support of the motion for a new trial, when it 
accompanies a bill of exceptions. The bill must be strong 
enough to stand alone. The court, in considering the excep- 
tions, cannot travel outside of the bill itself. In this respect 
the court cannot consider the report of the evidence nor the 
charge of the presiding justice, unless they are made a part 
of the bill of exceptions. They are not so made in this case. 

It will not be necessary to consider all of the questions 
argued by counsel. If we assume that the signature of 
Silas D. Jones upon the notes was genuine, and that the sur- 



330 American State Reports, Vol. 115. [Maine, 

render of the notes by the plaintiff was procured by falsehood 
and fraud, as she now claims, there is still an insuperable 
difficulty in sustaining the verdict. There was sufficient evi- 
dence to warrant the jury in finding that Silas D. Jones 
negotiated loans at a savings bank on the days and for the 
respective amounts for which the notes in suit were given; 
that the first loan was obtained upon the note of Storer W. 
Jones, plaintiff's husband, and the second and third loans 
upon the notes of the plaintiff and her husband, all secured 
by the plaintiff's mortgages of her own real estate; that the 
first two loans were procured for the use of the firm of Silas 
Jones & Sons, of which Silas D. Jones was a member, and the 
third for the use of Silas D. Jones' Sons, after Silas D. Jones 
had retired from the original firm; and that Storer W. Jones 
was a member of both firms. Upon the assumptions above 
stated, the jury might properly find, also, that the notes in 
suit were, intended by the makers to be collateral security 
for the liability of the plaintiff incurred by giving her notes 
and mortgages. This is what the plaintiff claims. We think, 
too, that a verdict based upon the inference that the notes 
were given as a direct liability in consideration of money 
procured by the plaintiff for the firm could not in that 
respect have been disturbed. In such case it would have 
been expected that the plaintiff was to pay the bank loans, 
and the signers of the notes in suit to pay them to the plain- 
tiff. 

^•^^ But the defendants contend that, whatever may have 
been the inception of these notes, they were not delivered to 
the plaintiff in the lifetime of Silas D. Jones; that so far as 
the individual liability of Silas D. Jones was concerned, they 
were left by him in the hands of Storer W. Jones, who, as a 
member of the firm, was also one of the makers, to be deliv- 
ered to the plaintiff; that Storer was the agent for that pur- 
pose of Silas, and that Storer 's authority to make delivery 
was revoked by the death of Silas, before delivery. It is 
not in dispute that Silas D. Jones died August 9, 1903, and 
that the notes were not delivered into the posses-sion of the 
plaintiff until the following September. And it is admitted 
that the plaintiff was in entire ignorance of the existence of 
the notes until a week or two before the death of Silas, when 
she says she first learned of it from her husband. And it 
does not appear that there had ever been any agreement or 



July, 1906.] Jones v. Jones. 231 

understanding on her part that notes should be given to her 
on account of the bank loans. 

It is of course well settled that a promissory note does not 
become a liability until delivery. It is likewise true that 
when the maker places the note in the hands of a third person 
merely for delivery to the payee, such third person is the 
agent of the maker, and not of the payee. And if the maker 
dies before delivery by the agent, the agent's authority is 
thereby revoked, and a subsequent delivery by him is ineffect- 
ual to create a liability. The plaintiff does not dispute the 
principles thus stated, but she attempts to meet and parry 
them by another well-established doctrine, and that is, that 
when a deed or other instrument, whose validity depends 
upon delivery, is left with a third person to be delivered ta 
the grantee, or in case of a note, the payee, on the happening 
of a contingency, the first delivery is complete, and irrevocable 
by death or otherwise: See Hanunon v. Hunt, Fed. Cas. No. 
6003, 4 Ban. & A. 411. Sometimes this doctrine is explained 
by saying that the depositary, in such case, holds in trust for 
the payee until the happening of the contingency, and that 
a delivery to the trustee is upon general principles as 
effectual as a delivery to the cestui would be. The contention 
of the plaintiff is that the notes were made "as collateral 
security for the mortgages placed by her upon her property 
for the benefit of the firm," and that the delivery ^'^ of the 
notes to the payee "was to be conditioned upon the happening 
of a contingency," which contingency was the failure of the 
makers of the notes "to take care of the mortgages placed 
for their benefit by the plaintiff upon the property." And 
assuming this contention to be supported by proof, and show- 
ing the contingency had happened, her counsel argue upon 
the principle of law above stated, that the authority of Storer 
"W. Jones to deliver the notes was not revoked by the death 
of Silas D. Jones, and that upon such delivery after his 
death, the notas became liabilities of his estate ; and, further, 
that although the fifteen hundred dollar note was then upon 
its face more than six years overdue, yet it was not barred by 
the statute of limitations, because that statute did not begin 
to run until the note first became a liability, namely, at deliv- 
ery to the plaintiff. 

If, in face of the apparent want of delivery in the lifetime 
of Silas, the plaintiff would obtain the benefit of the rule 



332 American State Reports, Vol. 115. [Maine, 

she relies upon, it is incumbent upon her to show that when 
Silas D. Jones left the notes in the hands of Storer for deliv- 
ery to her, that delivery was intended to be conditional upon 
the happening of a contingency. Unfortunately for her the- 
ory we are unable to find the proof which sustains her burden. 
The only contingency suggested was the failure of the makers 
of these notes to take care of the bank loans, and pay the 
interest when due. But why does the plaintiff say that the 
depositary held these notes to be delivered only upon the 
happening of this particular contingency? Apparently be- 
cause this one fits her case. There is no evidence that Silas 
D. Jones left these notes in the hands of his son to be deliv- 
ered only upon the happening of any contingency. "We know 
nothing of his particular intention or purpose, or directions 
further than that it may be inferred that he intended the 
notes to be delivered. We know nothing whatever about 
these notes until they are found in the possession of Storer, 
shortly before the death of Silas. We can only conjecture, 
and conjecture is not proof: McTaggart v. Maine etc. R. R. 
Co., 100 Me. 223, 60 Atl. 1027. If we might conjecture, we 
should say that if the notes were intended as security for the 
liability the plaintiff had incurred, it would be more reasona- 
ble to think that the security was intended to become effective 
from the time her liability attached, than upon the happening 
■**** of some future contingency. The plaintiff was liable all 
the time. Why should she not have been secured all the 
time? We do not think any legitimate inference can be 
drawn from the record that the delivery of these notes was to 
be conditioned upon the happening of a contingency. And 
therefore the plaintiff must fail as to this contention. 

But the plaintiff claims further that there was a construc- 
tive delivery of the notes before the death of the maker. She 
says her husband informed her that he had these notes in his 
possession a short time before his father's death. We do not 
need to discuss the effect of a constructive delivery to create 
a liability upon the notes, for we are unable to persuade our- 
selves that the mere fact that her husband told her that such 
notes were in existence, and nothing more, can be regarded as 
a constructive delivery of them to her. 

We conclude, therefore, that the plaintiff was not entitled 
to retain a verdict based upon the notes. We turn now to 
the count for money had and received. If the plaintiff, by 



July, 1906.] Jones v. Jones. 333 

mortgage or otherwise, procured money and furnished it to 
Silas D. Jones for the use of a firm of which he was a member, 
and there is evidence that she did, then he as a member of the 
firm became bound in equity and good conscience either to 
pay her or pay her debt. If he did not do the one, he ought to 
do the other. And we think she might recover for money 
had and received. 

But there are difficulties here, also. In the first place, the 
claim for the fifteen hundred dollars arose when the firm 
became indebted to her to that amount in 1896, and that 
claim became barred by the statute of limitations, even before 
the death of Mr. Jones. In the next place, the evidence in 
the case, such as it is, raises the inference, we think, that the 
third loan was procured for, and received bj^ the firm of 
Silas D. Jones' Sons, and not for the firm of Silas D. Jones & 
Sons, Silas D, Jones having gone out of the firm several 
months before the loan was procured. The verdict tor 
the full amount of the loans and interest was excessive, 
therefore, even if based upon the count for money had and 
received. 

And in the absence of special findings by the jury, the last 
difficulty is that we have no means of knowing whether they 
founded '*^'* their verdict upon the notes, in whi-^h case it 
was wholly wrong, or upon the count for money had and 
received, in which case it might be only excessive. From the 
amount of the verdict we incline to think that it was based 
upon the notes themselves. Under the instruction of the 
court, upon the undisputed evidence, the jury might well 
find a perfected and valid delivery of all the notes. 

Although the motion to set aside the verdict must be sus- 
tained, it is expedient to examine the defendants' one excep- 
tion that is open to consideration. The jury were instructed 
to the effect that if the notes had been delivered as completed 
instruments by Silas D. Jones to Storer (one of the members 
of the firm) to deliver to his wife, "that delivery might be 
perfected, even after the death of Silas." While such an 
instruction, as we have seen, might be correct under some 
circumstances, and a delivery to an agent for future delivery 
to the payee upon the happening of a contingency might be 
effective, yet we think, as applied to the evidence in this case, 
the rule given without limitation or qualification must be 
deemed to be exceptionable error. 

Motion and exceptions sustained. 



334 American State Reports, Vol. 115. [Maine, 

A Negotiable Instrument has no legal inception or valid existence 
as such, as a rule, until delivered in accordance with the purpose 
and intention of the parties: Purviance v. Jones, 120 Ind. 162, 16 Am. 
St. Bep. 319; McCormick etc'Machine Co. v. Faulkner, 7 S. Dak. 363, 
58 Am. St. Rep. 839. As to the effect of putting negotiable paper in 
circulation in violation of instructions or conditions, see the note to 
Bedell t. Herring, 11 Am. St. Bep. 314. 



MAY V. PENNELL. 

[101 Me. 516, 64 Atl. 885.] 

SUICIDE — Attempt to Commit. — In the absence of an express 
statute an attempt to commit suicide is not an indictable offense, 
(p. 339.) 

W. H. Connellan, for the plaintiff. 

516 WHITEHOUSE, J. The petitioner was indicted in 
the superior court for Cumberland county for the alleged 
crime of attempting to commit suicide, and upon conviction 
was sentenced at the May term, 1906, to imprisonment at labor 
in the county jail for the term of eleven months. Thereupon 
he presented to a single justice his petition ^^"^ for a writ of 
habeas corpus, to obtain a release from imprisonment on the 
ground that the act charged in the indictment is not a crime 
in this state, and that the sentence inflicted upon him was 
not warranted by law. The justice overruled this contention 
pro forma, and refused to discharge the petitioner. The case 
comes to the law court on exceptions to this ruling. 

By the early common law of England suicide was ranked 
among infamous crimes and held to be a "species of felony." 
It was punished by a forfeiture to the king of the goods and 
chattels of the felo de se, and an ignominious burial in the 
highway with a stake driven through his body: 4 Blackstone's 
Commentaries, 189. But aside from the mental suffering 
which might thus be inflicted upon innocent surviving rela- 
tives of the suicide by a desecration of his body, it was not in 
the power of human tribunals to impose any other punishment 
than the forfeiture of his estate; and "since forfeitures for 
crime are not practiced in our states," says Mr. Bishop, 
"suicide is not practically an offense with us": Bishop on 
Criminal Law, 1, sec. 512, 2, sec. 1187. No case has been 



Aug. 1906.] May v. Pennell. 335 

brought to the attention of the court in which it has been held 
in any of the United States that suicide is a punishable 
offense. Although it may be deemed ethically reprehensible 
and inconsistent with the public welfare, it has never been 
declared by the legislature or held by the court of this state, 
to be such a public wrong as will subject the doer to legal 
punishment. Section 1 of chapter 136 of the Revised Statutes 
declares that "when no punishment is provided by statute, 
a person convicted of an offense shall be imprisoned for less 
than one year or fined not exceeding five hundred dollars." 
But even if suicide is deemed to be criminal as malum in se, 
neither of the penalties specified in this statute can be inflicted 
upon one whose life is ended. 

Nor is there any statute in this state which constitutes an 
attempt to commit suicide a substantive offense or makes it 
subject to Tegal punishment. Section 9 of chapter 132 of the 
Revised Statutes provides as follows: "Whoever attempts 
to commit an offense, and does anything toward it, but fails, 
or is interrupted, or is prevented in its execution, where no 
punishment is expressly provided for such attempt, shall, if 
the offense thus attempted is punishable with imprisonment 
for life, be **** imprisoned for not less than one, nor more 
than ten years; and in all other cases he shall receive the 
same kind of punishment that might have been inflicted if 
the offense attempted had been committed, but not exceeding 
one-half thereof." But here again it is obvious that cases of 
suicide were not within the contemplation of the legislature 
in the enactment of this statute. As no penalty of any kind 
is attached to suicide if actually committed, there could be 
no punishment whatever by force of this statute for an 
attempt to commit it. 

In the absence of any statute in this state expressly making 
an attempt to commit suicide a punishable offense, it is there- 
fore difficult to discover any satisfactory ground upon which 
the sentence in this case can rest : for it would appear to be a 
palpable .solecism in the law to declare that a mere attempt 
to commit an act which is not penal is itself punishable. 

It is suggested, however, that inasmuch as suicide was a 
"species of felony" by the common law of England, and an 
attempt to commit suicide was there held to be a misdemeanor, 
it became incorporated in the common law of Massachusetts 
as a substantive offense, and in this state is subject to the 



336 American State Reports, Vol. 115. [Maine, 

provisions of section 1 of chapter 136 of the Revised Statutes 
above quoted, declaring that "when no punishment is pro- 
vided by statute, a person convicted of an offense shall be 
imprisoned less than one year, or fined, etc. ' ' 

The only English cases that have been cited in any of the 
text-books or cyclopedias as authority for the doctrine that 
an attempt to commit suicide was a misdemeanor by the com- 
mon law of England are Regina v. Doody, 6 Cox C. C. 463, 
and Regina v. Burgess, 9 Cox C. C. 247. The former case is 
simply the report of a nisi prius ruling at a trial, in which 
the prisoner was not defended by counsel. In the latter case 
the defendant pleaded guilty, and the question reserved for 
the court of criminal appeals was primarily one of jurisdic- 
tion. It was contended in behalf of the defendant that an 
attempt to commit suicide was an attempt to commit murder 
within the meaning of chapter 100 of 24 and 25 Victoria, and 
hence was not within the jurisdiction of the county assizes; 
but the court held that though suicide was deemed a felony 
in England, it was not murder within the meaning of the act 
named, and that the attempt to commit '^'^ suicide was a mis- 
demeanor and within the jurisdiction of that court; but sen- 
tence was respited. 

"An attempt," says Mr. Bishop, "is an intent to do a par- 
ticular thing which the law, either common or statutory, has 
declared to be a crime, coupled with an act toward the doing 
of it": 1 Bishop on Criminal Law, sec. 728: while a substan- 
tive offense is one depending on itself alone and not on 
another offense to be first established by the conviction of the 
person who directly committed it": 1 Bishop on Criminal 
Law, sec. 696. It is not claimed that the attempt to commit 
suicide was ever made a substantive offense by any act of the 
British parliament, and there is no suggestion in the brief 
oral utterances of the judges in the English cases above cited 
that the misdemeanor of which the defendant was in each 
instance there convicted was other than the ordinary attempt 
to commit a punishable felony ; it is not suggested that it was 
a substantive offense by the law of England. If the accom- 
plished act of suicide had not been a punishable crime, the 
attempt to commit the act could not have been held to be a 
punishable misdemeanor. For it has been seen that an at- 
tempt involves an "intent to do a particular thing which the 
law declares to be a crime," and the word "crime" or 



Aug. 1906.] May v. Pennell. 337 

** offense," as ordinarily used in legislative enactments hy 
text-writers on criminal law and in the practical administra- 
tion of it by the courts, uniformly signifies a public wrong 
which subjects the perpetrator to legal punishment : Standard 
Dictionary; 1 Bishop on Criminal Law, 32. In accordance 
with this view is the statement of Mr. Bishop, as above 
sho\^^l, that suicide is "not practically an offense with us." 
But an attempt to commit an act which is not "practically a 
crime" is not itself "practically criminal," because nut 
punishable. In JNIassachusetts forfeitures were abolished 
by the "Body of Liberties" of 1641, the statute providing for 
an ignominious burial of the suicide fell into disuse at the 
close of that century and the colony act of 1660 was repealed 
in 1823. Thus the common law of England upon this subject 
was modified in Massachusetts, and suicide ceased to be a pun- 
ishable offense. The groundwork for the English doctrine 
that an attempt to commit it was a misdemeanor was thus 
removed. If it was a misdemeanor by the common law of 
England, it ceased to be such under the law of ^^^ Massa- 
chusetts and has never been recognized as a part of the com- 
mon law of Maine. "Reason is the soul of the law," says 
Lord Coke, "and when the reason changes the law also 
changes": 7 Coke, 7. Although there have been attempts 
to commit suicide in great numbers in the history of both 
Massachusetts and Maine, in no instance which this court 
has been able to discover has there been a conviction of such 
an attempt before any cpurt prior to the case at bar. 

In Commonwealth v. Dennis, 105 Mass. 162, it was dis- 
tinctly held that "an attempt to commit suicide was not an 
indictable offense in that commonwealth"; but the decision 
re.«5ts upon the construction of their statutes, which, however, 
are in substance and effect precisely like our own. In the 
opinion the court say: "In this commonwealth the whole 
matter of punishments for all attempts to commit an offense 
prohibited by law, where no express provision is otherwise 
made, ha.s been subject to revision by statute." After stating 
the provision of the statute in terms like section 9, chapter 
132 of our statutes above quoted, the court add : * ' The attempt 
to commit suicide is thus left without punishment, because the 
act itself could never be punished by any of the modes stated. 
By a well-established rule of the construction of statutes, the 
common law is held to be repealed by implication, when the 
Am. St. Rep., Vol. 115—22 



338 American State Reports, Vol. 115. [Maine, 

whole subject has been revised by the legislature: Common- 
wealth V. Cooley, 10 Pick. 37; Commonwealth v. Marshall, 11 
Pick. 350, 22 Am. Dec. 377; Lakin v. Lakin, 2 Allen, 45. 
This rule requires us to look to the statute alone for the 
punishment, if any, aflSxed to the act here indicted. If it 
is not there made punishable, it is enough, whatever the 
reason which induced its omission. The end of punishment is 
the prevention of crime, and it may have been thought at least 
impolitic to punish an attempt to do that which is itself dis- 
punishable, when the direct effect of the penalty must be to 
increase the secrecy and eflficiency of the means employed to 
accomplish the end proposed." 

It is true that in Commonwealth v. Mink, 123 Mass. 422, 
25 Am. Rep. 109, it was held that suicide must still be 
deemed criminal as malum in se, and although an attempt to 
commit suicide is not punishable, yet a person who, in at- 
tempting to commit it accidentally kills another who is trying 
to ^^^ prevent its accomplishment is guilty of manslaughter. 
But Chief Justice Gray, trho drew the opinion in the latter 
case, appears to have concurred in the former, and expressly 
states in his opinion that * ' the conclusion reached in Common- 
wealth V. Mink, 123 Mass. 422. 25 Am. Rep. 109, is not af- 
fected by the fact that the legislature having in the general re- 
vision of the statutes measured the degree of punishment pre- 
scribed for attempts to commit offenses by the punishment 
prescribed for such offense if actually committed, has inten- 
tionally or inadvertently left the attempt to commit suicide 
without punishment, because the completed act would not be 
punished in any manner"; citing the former case of Common- 
wealth V. Dennis, 105 Mass. 162. 

The question arose under the Penal Code of Hawaii in 
1868, upon a demurrer to an indictment for an attempt to 
commit suicide, and the demurrer was sustained and the 
indictment quashed. In the opinion of the court published 
in 2 American Law Review, 794, Chief Justice Allen says in 
conclusion: "The wisdom of legislative power has never 
deemed it wise to make a provision to apply to the act charged 
against the defendant, and we are of opinion that we should 
be slow to give an entirely new construction to the code 
concerning murder, and to impose a punishment never con- 
templated, and of the wisdom of which the framers of the 
law have not yet expressed a favorable opinion We 



Sept. 1906.] Brown v. Smith. 339 

find no statute of any country nor any provision of tlie com- 
mon law which will sustain this indictment." 

By section 178 of the Penal Code of New York, however, 
enacted in 1881, "Every person guilty of attempting suicide 
is guilty of felony, punishable by imprisonment in a state 
prison not exceeding two years or by fine not exceeding one 
thousand dollars, although no forfeiture is imposed in the case 
of the "successful perpetrator." These sections of the New 
York code are incorporated in the codes of North and South 
Dakota. But these provisions appear to have fallen into 
utter disuse; for we have been unable to find any reported 
convictions for this offense in either state since the adoption 
of this code. And although there have doubtless been 
innumerable attempts to commit suicide in the United States, 
no instance has been discovered in which there has been a con- 
viction for this offense on '^^^ either statutory or common- 
law grounds, prior to that in the case at bar. 

It is accordingly the opinion of the court that an attempt 
to commit suicide is not an indictable offense in this state, 
and that entry should be, exceptions sustained. 

Prisoner discharged. 



Suicide is not generally regarded as a crime, although some authori- 
ties seem to regard an attempt to commit suicide as a public offense: 
Darrow v. Family Fund Society, 116 N. Y. 537, 15 Am. St. Rep. 430; 
Eoyal Circle v. Achterrath, 204 111. 549, 98 Am. St. Eep. 224; Burnett 
V. People, 204 111. 208, 98 Am, St. Kep. 206. 



BROWN V. S:\IITH. 

flOl Me. 545, 64 Atl. 915.] 

EXECUTORS AND ADMINISTRATORS— Limitation of Power. 

The power and autliority of an administrator or executor over the 
estate of the deceased is confined to the sovereignty by virtue of 
whose laws he is appointed, (p. 340.) 

EXECUTORS AND ADMINISTRATORS— Foreign Decedents— 
Ancillaxy Administration. — If assets of a foreign decedent are found 
within the state, ancillary administration must be obtained therein 
for the protection of resident creditors, before the courts of Buch 
•tate will enforce the recovery of debts due the foreign decedent, (p. 
842.) 



340 American State Reports, Vol. 115. [Maine, 

ADMINISTRATORS — Foreign — Assignment of Mortgage. — An 
administrator in one state cannot, by virtue of letters granted in an- 
other state, assign a mortgage of land situated in the first-named 
state, so as to enable the assignee to enforce payment thereof, (p. 
342.) 

F. W. Brown, Jr., and W. H. McLellan, for the plaintiff. 
R. F.- Dunton and W. P. Thompson, for the defendant. 

646 POWERS, J. Writ of error to recover certain lands 
in Thorndike. The case comes here on report. 

To make out title plaintiff introduced (1) a duly recorded 
mortgagre of the demanded premises from Albert D. Bumps, of 
Thorndike, Maine, to George Tyler, of Boston, Massachusetts, 
dated" May 28, 1887, given to secure a certain execution and 
judgment recovered by said Tyler against said Bumps in this 
court in said Waldo county; (2) copies of records of the 
probate court of Middlesex county, Massachusetts, showing 
that December 10, 1889, Isabella J. Tyler of Waltham, in the 
county of Middlesex, was duly appointed administratrix 
^^"^ of the estate of George Tyler, late of said Waltham, 
deceased; (3) assignment from said administratrix to the 
plaintiff of said mortgage, duly recorded and dated November 
21, 1904. This makes a prima facie case, if an administratrix 
appointed in another state has power to assign a mortgage 
given to her intestate upon real estate in this state. 

It is a well-settled principle of the common law that the 
power and authority of an administrator or executor over the 
estate of the deceased is confined to the sovereignty by virtue 
of whose laws he is appointed. In recognition of this principle 
provision is made by our statutes for the granting of ancillary 
administration on the estate of nonresidents, who die leaving 
estate to be administered in this state, or whose estate is after- 
ward found therein : Rev. Stats., c. 65, sec. 7, c. 66, sees. 14-16. • 

One reason at least upon which this rule is founded is to 
prevent the effects or credits of the deceased found in any 
state which may be needed to satisfy debts due to the citizens 
of that state from being withdrawn from its jurisdiction. 
That no such necessity in fact exists can never be known 
with certainty in any given case unless administration is 
granted, and an opportunity thereby afforded to creditors 
to present their claims : Mansfield v. McFarland, 202 Pa. 173, 
51 Atl. 763. It is said in Steams v. Bumham, 5 Me. 261, 17 
Am. Dec. 228, that the principles of justice and policy upon 



Sept. 1906.] Brown v. Smith. 341 

which similar statutes to those above cited were found "would 
seem to lead our courts of law to that course of proceedings 
which would harmonize with those principles and have a mani- 
fest tendency to produce the same beneficial results." In 
that case it was accordingly held that an executor appointed 
under the laws of another state cannot indorse a promissory 
note payable to his testator by a citizen of this state, so as to 
give the indorsee a right of action here in his own name. 

The debt due from Bumps, who at the time of the recovery 
of the judgment and ever since has been a resident of this 
state, constituted no part of the goods, effects, rights and 
credits of the intestate in IMassachusetts, which alone the 
administratrix was authorized and empowered to administer. 
The debt follows the creditor while living; after his death it 
follows the debtor : Saunders v. Weston, ^*® 74 Me. 85. The 
situs of the debt being in Maine, the administratrix, deriving 
her authority solely from the laws of Massachusetts, had no 
control over it. 

There is even stronger reason for holding that she had no 
control over the mortgage. A mortgage and its assignment 
are conveyances of land in fee which must be recorded. It 
is desirable that title to real estate should so far as possible 
appear of record. The party having a right to redeem ought 
to be able, by an examination of the records in the registry of 
deeds and the probate courts of this state, to ascertain who 
is entitled to receive payment and give a discharge of the 
mortgage, without being compelled at his peril to incur the 
expense of searching the records of other states and countries. 
"Without doing this the defendant in the present case could not 
know until the evidence was produced at the trial that the 
plaintiff's assignee had ever been appointed administratrix 
of the deceased in the place of his domicile. The courts of 
^ra.s.sachu.setts in a case which has been frequently cited and 
followed in that state have decided the precise point here 
presented against the plaintiff's contention : Cutter v. Dav- 
enport, 1 Pick. 81, 11 Am. Dec. 149. The question is a new 
one in this state; but the trend of our decisions has been to 
restrict the power of a foreign administrator to the jurisdic- 
tion of his appointment: Stevens v. Gaylord, 11 Ma.ss. 256; 
Stearns v. Burnham. 5 Me. 261, 17 Am. Dec. 228; Smith v. 
Guild, 34 Me. 443; Oilman v. Oilman. 54 Me. 453; Smith v. 
Howard, 86 Mc. 203, 41 Am." St. Rep. 537, 29 Atl. 1008; Green 
V. Alden, 92 Me. 177, 42 Atl. 358. 



342 American State Reports, Vol. 115. [Maine, 

It may fairly be regarded as the settled policy of this state 
that, when assets of a foreign decedent are found here, ancil- 
lary administration must be obtained here for the protection 
of resident creditors, before our courts will enforce the recov- 
ery of debts due the foreign decedent. Otherwise the assets 
could be converted into money, taken outside the state, dis- 
tributed under the jurisdiction of foreign courts, and our 
citizens compelled to go into other jurisdictions to collect 
their just dues. Such is the general rule: Note to Shinn's 
Estate, 45 Am. St. Rep. 667 ; Maas v. German Sav. Bank, 176 
N. Y. 377, 98 Am. St. Rep. 689, 68 N. E. 658. 

Inasmuch, therefore, as ample provision is made by our 
statutes for the granting of ancillary administration in this 
state, a course '^^ which seems to be in accord with our 
legislative policy and judicial decisions, and may in any case 
be necessary for the protection of our citizens who are 
creditors of the estate, in view also of the fact that it is 
desirable so far as possible that title to real estate should 
somewhere appear of record in this state, we hold, in accord- 
ance with Cutter v. Davenport above cited, that an adminis- 
trator cannot, by virtue of letters granted in another state, 
assign a mortgage of land situated in this state, so as to en- 
able the assignee to enforce payment thereof: Dial v. Gary, 
14 S. C. 573, 37 Am. Rep. 737; 18 Cyc. 1231; Reynolds v. 
McMullen, 55 Mich. 568, 54 Am. Rep. 386, 22 N. W. 41. The 
right of a foreign administrator to receive a voluntary pay- 
ment and give a discharge of a debt so paid is not involved 
in this case. 

Judgment for the defendant. 



Letters of Administration have do extraterritorial operation, and do 
not, as a matter of right, confer authority upon the administrator to 
maintain a suit in another state: Grayson v. Robertson, 122 Ala. 330, 
82 Am. St. Rep. 80; Maas v. German Sav. Bank, 176 N. Y. 377, 98 
Am, St. Rep. 689. Perhaps, however, his assignee may maintain such 
a suit (note to Shinn's Estate, 45 Am. St. Rep. 673), except where the 
assignment is of a mortgage on real estate: Dial v. Gary, 14 S. C. 573, 
37 Am. St. Rep. 737; Reynolds v. McMullen, 55 Mich. 568, 54 Am. Rep. 
386. 



CASES 



IN THE 



COURT OF APPEALS 



OP 



MARYLAND. 

WOOD REAPING AND MOWING MACHINE COMPANY 
V. ASCHER. 

[103 Md. 133, 62 Atl. 1023.] 

GUARANTY OF PAYMENT of Promissory Note, Efifect of.— 
The guaranty of the payment of a promissory note is absolute, and it 
is not necessary, if the note is not paid at maturity, for the payee 
to show that he has exhausted his remeaies against the maker or that 
the latter is insolvent, (p. 345.) 

Hope H. Barroll and James P. Gorter, for the appellant. 
No appearance for the appellee. 

i»» SCHMUCKER, J. The appellant corporation sued 
the appellee in the circuit court for Kent county, upon his. 
written guaranty of the payment of the promissory note of 
C. R. Atkinson. The defendant pleaded the general issue. 
At the trial of the case, before the court without a jury, the 
plaintiff's prayer was rejected and the defendant's prayer, 
asserting the want of legally sufficient evidence to entitle 
the plaintiff to recover, was granted. A verdict and judg- 
ment were entered for the defendant and the plaintiff ap- 
pealed. 

The note was in the following form: 

"$100. Chestertown, September 1, 1901. 

"On or before the first day of September, 1902, I, , 

of Chestertown Post Office, Kent County, Md., for value re- 
ceived promise to pay to the order of The Walter A. Wood 
Mowing and Reaping Machine Co. one hundred dollars. Pay- 
able at Chestertown National Bank, Md., *^'* with interest 
at legal per cent per annum from September 1, 1901, until 
paid. C. R. ATKINSON." 

(343) 



344 American State Reports, Vol. 115. [Maryland, 

On the back of this note was written the following guar- 
anty: 

* ' For value received I hereby guarantee the payment of the 
within note. Demand for payment, protest and notice of pro- 
test waived. MARCUS J. ASCHER." 

The signatures to the note and the guaranty were admitted, 
and there was evidence tending to show that the note had 
been given by its maker in part payment for a mowing ma- 
chine sold to him by Ascher as the plaintiff's agent. 

The only bill of exceptions in the record is to the rulings 
of the circuit court upon the prayers. The plaintiff offered 
one prayer which asked the court to rule as matter of law 
that if it appeared from the evidence that the note in question 
was executed by Atkinson and the guaranty thereon was ex- 
ecuted by Ascher and the note was then passed to the plain-, 
tiff in part payment for the machine, and that no portion of 
the note was ever paid, then the verdict must be for the plain- 
tiff for the amount of the note and interest, less any credits 
thereon to which Atkinson appeared to be entitled. 

This prayer the court rejected and granted the one of the 
defendant, asserting that there was no legally sufificient evi- 
dence to entitle the plaintiff to recover. 

We have not the benefit of any expression by the learned 
judge below of the views which led to his action upon these 
prayers, nor do we find in the record any sufficient support 
for that action. 

No brief was filed in this court on behalf of the appellee, 
and the case was submitted to us by both parties without ar- 
gument. It is stated, however, in the brief filed by the appel- 
lant that the judge who heard the case was of the opinion 
that the guaranty sued on was a conditional one, and that 
therefore the plaintiff's case was defective, because it had 
offered no evidence tending to show either the exhaustion by 
it of its remedies against the maker of the note before suing 
the guarantor or the insolvency of the maker. If such was 
the view of the case entertained by the judge of the circuit 
court, he fell into an error. 

*^ The guaranty is in terms predicated upon no contin- 
gency, nor is it merely one of the collectibility of the note. 
It is a distinct and unequivocal guaranty of the payment of 
that obligation. Such a guaranty is uniformly treated by 
the leading text-books as an absolute one: 2 Randolph on 



Feb. 1906.] Wood etc. Mowing Machine Co. v. Ascher. 315 

Commercial Paper, 2d ed., c. 26, par. 850; Daniel on Nego- 
tiable Instruments, 5th ed., p. 799; 1 Brandt on Suretyship 
and Guaranty, sec. 220; Stearns on Suretyship, sec. 61; 14 
Am. & Eng. Ency. of Law, p. 1142, where it is said upon the 
authority of many cases that "the most usual form of abso- 
lute guaranty is that of payment." In Townsend v. Cowles, 
31 Ala. 428, the court held the words "I guarantee the pay- 
ment of the within" indorsed on a promissory note and 
signed by the defendant to constitute an absolute engagement 
to pay the debt when due on default of the maker, and per- 
mitted the holder of the note to recover from the guarantor 
without proof of having attempted to recover of the maker. 
In Hungerford v. O'Brien, 37 Minn. 306, 34 N. W. 161, it was 
held that the indorsement on a note of the words "For value 
I hereby guaranty the payment of the within note to Cassie 
Hungerford or bearer" constituted an absolute guaranty. 
The court in that case said : ' ' The nature of the obligation of 
the guarantor is affected by the character of the principal 
contract to which the guaranty relates. The note expresses 
the absolute obligation of the maker to pay the sum named 
at the specified date of maturity or before. The guaranty 
of the payment of the within note imported an undertaking, 
without condition, that, in the event of the note not being 
paid according to its terms — that is, at maturity — the guar- 
antor should be responsible. The nonpayment of the note at 
maturity made absolute the liability of the guarantor, and 
an action might at once have been maintained against him 
without notice or demand. Such was the effect of the un- 
qualified guaranty of the payment of an obligation which was 
in itself absolute and perfect and certain as respects the sum 
to be paid and the time when payment should be made, all 
of which was known to the guarantor, and appears upon the 
face of the contract. The liability of the guarantor thus be- 
coming *^** absolute by nonpayment of the note, the neglect 
of the holder to pursue such remedies as he mitrht have against 
the maker (the guarantor not having required him to act) 
would not discharge the already fixed and absolute obliga- 
tion of the guarantor, nor would neglect to notify the guar- 
antor of the nonpayment have such effect." 

The same doctrine has been asserted or recognized by this 
court in Heyman v. Dooley. 77 ^Id. 162, 26 Atl. 117, 20 L. 
R. A. 257, Emerson v. Aultman. 69 Md. 125, 14 Atl. 671. 
and Mitchell v. MeCleary, 42 Md. 374. 



346 American State Eeports, Vol. 115. [Maryland, 

The judgment appealed from must be reversed and the 
case remanded for a new trial. 



Contracts of Guaranty are discussed at length in the note to Pear- 
sell Mfg. Co. V. Jeffreys, 105 Am. St. Eep. 502. If one makes an ab- 
solute guaranty of the payment of a promissory note, in an action 
thereon, presentation of the note to the maker when due, request to 
pay, and notice to the guarantor of dishonor need not be alleged, nor 
is the guarantee under any legal obligation to first resort to the 
maker of the note or to any securities held for payment: Fegley v. 
Jennings, 44 Fla. 203, 103 Am, St. Rep. 142, 



MARYLAND TELEPHONE AND TELEGRAPH COM- 
PANY V. SIMON SONS COMPANY. 

[103 Md. 136, 63 Atl. 314.] 

SPECIFIC PERFORMANCE— Injunction, Bill for, When 
Equivalent to a Suit for. — A bill enjoining a telephone company from 
charging a higher rate for its telephones than is specified in a con- 
tract is equivalent to a bill for the specific performance of such con- 
tract, and the suit must be determined by the application of the same 
principles, (p. 349.) 

TELEPHONES — Construction of Contract and Ordinance for 
the Furnishing of. — A contract and a municipal ordinance for the 
supplying of telephones means such as will furnish the most effective 
service then in use. (p. 351.) 

AN INJUNCTION Should be Denied When Its Enforcement 
will Render a Service Corporation Insolvent and unable to proceed 
with its business. Therefore, a bill against a telephone corporation 
to compel it to furnish telephones and telephonic service at the rate 
specified in a contract and in a municipal ordinance should be dis- 
missed and the complainants left to their remedy at law, if it is not 
possible to furnish the service at the rate specified and to do so will 
make the company insolvent and unable to perform its obligation to 
the public, (p. 353.) 

Edgar H. Gans and William L. Marbury, for the appel- 
lant. 

William S. Bryan, Jr., J. Walter Lord, John Stonewall, J. 
Healy and Leon E. Greenbaum, for the appellees. 

138 PAGE, J, This is an appeal from a decree of the lower 
court restraining the appellant from exacting or requiring 
of the appellees a greater rate of rental than $48 per annum 
for business telephones and service connections on a one 
party, double copper wire metallic circuit, central energy 



Feb. 1906.] Maryland etc. Tel. Co. v. Simon Sons Co. 347 

system, with unlimited calls, and declaring that such leases 
are illegal and void, so far as they provide for rates in ex- 
cess of the said sum of $48 per annum ; and further restrain- 
ing the appellant from refusing to continue the said service 
so long as the appellees tender and pay therefor a rental 
at the rate of $48 per annum. 

Many of the legal questions affecting the cause have been 
heard and decided in a former appeal reported in 99 Md. 142, 
which arose upon demurrer to the appellees' bill. We refer 
to the proceedings in that case for a fuller statement of the 
averments of the bill, and also for the several questions that 
must be taken as settled here. The cause having been re- 
manded to the lower court for further proceedings, the appel- 
lant answered the bill, and testimony was taken by each party, 
and the decree was rendered from which this appeal is taken. 
In its answer the appellant admits that it has charged for 
telephone service at the rates stated in the bill, but' denies 
these rates are in excess of the amount it is entitled to charge ; 
that ordinance No. 110 was enacted as stated in the bill, 
and was accepted by the appellant: that it has established 
a large and effective telephone system in Baltimore City to 
over seven thou.sand subscribers; but it denies that the cen- 
tral energy system had been supplied prior to or at the time 
of the enactment of ordinance No. 110, but, it is averred, 
an inferior system known as the trunking system was then 
in general use by the company. It denies that it has charged 
higher rates for telephone service, such -as it is now supplying, 
It avers that the said rates are reasonable, and that since 
the time of the enactment of the ordinance referred to, "or- 
dinary" telephone equipment did not include a metallic cir- 
cuit nor the central energy feature. That at that time there 
were only five hundred in the city, and the central energy 
system was unknown, and therefore *** these were not then 
contemplated, and it was not intended that the appellant 
should be prohibited from making special contracts at special 
rates for special or improved equipment. It admits that 
when it first began operations in Baltimore City it supplied 
a metallic circuit, not because it was under legal obligation 
to do so, according to the terms of the ordinance, but "for 
purely business rea.sons," made to compete with its powerful 
rival, the Chesapeake and Potomac Telephone Company. It 
avers that this wa.s continued long after it was financially 
profitable to do so. That as the number of telephones in- 



348 American State Reports, Vol. 115. [Maryland, 

creased the cost per telephone also increased, and it. finally 
became impossible to supply the best service at the rates men- 
tioned in the ordinance. That it therefore became and was 
necessary to adopt a scale of charges, regulated to some ex- 
tent by the number of calls per day required by the sub- 
scriber. That the rates charged are reasonable, the highest 
being seventy-two dollars per annum and the lowest sixty 
dollars, etc. 

The testimony taken by both parties shows the contracts 
entered into between the appellant and the appellees, the kind 
of service rendered by the former, the cost of supplying it 
per 'phone, the several kinds of equipment needed, and the 
financial status of the appellant, and the conditions existing 
at the time of the passage of the ordinance. 

The court, in the case reported in 99th Md., overruled 
the demurrer to the bill filed by the telephone company, and 
in its opinion decided as follows: 

1. That there was nothing in the previous legislation of 
1892, chapter 387, or in the act of 1894, chapter 207, to pre- 
vent the appellant from making the contract, which the ap- 
pellant made, to furnish the citizens of Baltimore with tele- 
phone service at the rates specified in ordinance No. 110. 

2. That the kind and description of equipment and service 
that was to be supplied must be sought for, not in the law 
theretofore existing, but in the contracts that were made. 

3. That the "most natural and reasonable construction 
to be given or meaning to be imputed to word 'telephone' as 
used in the ordinance" is the "telephone with all improve- 
ments, *^® equipments and appliances essential in its opera- 
tion to make it most effective in use"; and if any other con- 
struction is to be applied, it can be only after it is made to 
appear from all the "circumstances and conditions surround- 
ing the parties to the contract at the time of the making of 
the contract that such was the intention," 

4. That the design of the ordinance was to promote the 
public welfare, and to that extent was more than "a mere 
contract." That the ordinance was within the authority and 
power of the mayor and city council, and that the appellant 
at the time had the right to refuse to accept its terms, but it 
cannot now object that the regulation of rates therein con- 
tained is not a reasonable one. 

5. And finally, that the ordinance imposed upon the appel- 
lant "a duty to the general public which the members thereof 



Feb. 1906.] Maryland etc. Tel. Co. v. Simon Sons Co. 349 

have a right to enforce against it in conditions which will 
show that is violating such duty." 

It is contended upon the part of the appellant that the 
legal effect of the bill is practically to bring about the en- 
forcement of the contract contained in the ordinance, and 
that therefore the principles regulating the specific enforce- 
ment of contracts must govern. The appellees claim to have 
the right to require the telephone company to furnish tele- 
phone service at $48 per annum, because of its contract with 
the city, as embodied in the ordinance No. 110. The plain 
purpose of this bill is to secure the telephone service, at the 
rates prescribed, and it is sought to reach this end by an in- 
junction, forbidding and restraining the appellant from in- 
terfering with the 'phones, and also from charging or exact- 
ing more than forty-eight dollars per annum. Should such 
an injunction issue, it is clear there would be accomplished 
everything a decree for the specific execution could effect. 
It would prevent the removal of the 'phones, and require the 
continuance of the service at a rate not exceeding $48 per 
annum, and this being so, the bill must be taken as one for 
the enforcement of the contract; and therefore all the prin- 
ciples which apply to the case of a bill for specific perform- 
ance must be applicable here. This court *** in Gurley v. 
IIite?hue, 5 Gill, 217, said: "All the principles which apply 
to the case of a bill for specific performance apply with equal 
force to the ca.se of a bill for perpetual injunction, when 
that injunction accomplishes all the objects which could be 
accompli.shed by a successful prosecution of a formal bill for 
specific execution." This doctrine so stated has substantial 
support in many cases in this state as well as elsewhere : Can- 
ton Co. V. Northern C. R. R. Co., 21 Md. 383. 

In Strang v. Richmond etc. R. R. Co., 101 Fed. 511, 41 
C. C. A. 474, where the complainant sought to use the process 
of the court to compel by indirection the specific perform- 
ance of a contract to build a railroad, after citing the last- 
mentioned case, the court said : "We are clearly of the opinion 
that it [the bill] does not show such a contract as a court 
of equity can enforce by decree, and failing in that, it fol- 
lows that an injunction which was intended to aid the gen- 
eral relief sought by the bill was improperly granted." The 
same general principle was recognized in the case of Ryan 
v. McLane, 91 Md. 175, 80 Am. St. Rep. 438, 46 Atl. 340^ 50 
L. R. A. 501, where this court held that a contract which has 



350 American State Reports, Vol. 115. [Maryland, 

for its main object the placing of a great corporation in the 
control of the complainant and his undisclosed associates, 
will not be specifically enforced, as being against public pol- 
icy. It is settled that the "specific execution of contracts by 
courts of equity is not a matter of absolute right in the party 
applying, but of sound discretion in the court, to be exercised 
upon consideration of all the circumstances of each particu- 
lar case. The court will be controlled, of course, in the ex- 
ercise of its discretion by the established doctrines and settled 
principles upon the subject ; but it does not follow, as matter 
of course, that because the legal obligation under the con- 
tract may be perfect, therefore the equitable power of the 
court will be exercised to compel or affect specific execution ' ' : 
Semmes v. Worthington, 38 Md. 298. 

So in the case of Curran v. Holyoke Water Power Co., 
116 Mass. 90, where the bill w^as to enforce specific perform- 
ance of an agreement of purchase of a parcel of land, by a 
party who had paid the purchase money and entered into 
*'*^ possession, the court held that his right rested in the dis- 
cretion of the court, to be exercised upon equitable considera- 
tions in view of all the circumstances; it was noted that the 
rights of other parties who have in good faith purchased 
lots, erected buildings, have intervened: ''and although 
these rights are subsequent in point of time, and there- 
fore subordinate to those of the plaintiff, yet they furnish 
equitable consideration to be regarded in adjudicating the 
rights between the parties to this suit." There is a broad 
distinction between the case of a plaintiff seeking a specific 
performance in equity and the case of a defendant. In Mc- 
Cutcheon v. Raleigh (Ky.), 76 S. W. 51, the court said : "If to 
enforce specifically an agreement would do one party great in- 
jury, and the other comparatively little good, so that the result 
would be more spiteful than just, the chancellor will not re- 
quire its execution": See, also, St. Regis Paper Co. v. Santa 
Clara Lumber Co., 67 N. Y. 149, 55 App. Div. 225. The for- 
mer is not of absolute right in the party, but of sound discre- 
tion in the court ; and it will not be granted, but the party will 
be left to his remedy at law, when the performance has become 
impossible, or the decree would be inequitable under all the 
circumstances of the case: 2 Story's Equity Jurisprudence, 
sees. 750, 759; Pomeroy's Equity Jurisprudence, p. 2164, 
sec. 1405, note 2; Fry on Specific Performance, sec. 251, 
note a. 



Feb. 1906.] MaryiiANd etc. Tel. Co. v. Simon Sons Co. 351 

The complaint of the appellees is, that the appellant refuses 
to furnish the appellees with telephone service at the rates 
mentioned in ordinance No. 110, and now proposes to remove 
the 'phones from their places of business unless they agree 
to pay therefor a higher rate. And their contention is, that 
the appellant has no power under the ordinance to make such 
higher charges for any kind of service. On the other side, 
it is insisted that inasmuch as the ordinance does not describe 
the equipment to be furnished, for which the charge is to be 
made, and the words used are indefinite, the facts existing 
at the time of the passage of the ordinance show that the 
word "telephone" was intended to include only such tele- 
phones as were operated upon the grounded circuit service — 
and not the metallic ^*^ service, and the ordinance should 
be so construed. But the proof shows much uncertainty upon 
this point. At the time the ordinance was passed both the 
metallic and grounded circuits were in general use. The 
Chesapeake and Potomac Telephone Company, in 1896, was 
the only company doing business in Baltimore City. It had 
then about two thousand seven hundred subscribers, of which 
two thousand were the grounded circuits and seven hundred 
were metallic. There w^as some conflict in the testimony as 
to the efficiency of these respective methods — and there is 
also testimony tending to show that that company had begun 
the execution of a purpose of gradually converting its sys- 
tem to the metallic; and also that the grounded system was 
growing more or less obsolescent, although it was regarded 
as effective within a limited radius. By letters and adver- 
tisements written to individuals and generally distributed, 
the appellant publicly and widely proclaimed that it was 
about to enter into competition with the "present local com- 
pany." It offered greatly reduced rates; and in one of 
these public notices it stated that the equipment would in- 
clude "every telephone on copper wire metallic circuit and 
equipped with a long di.stance transmitter; business tele- 
phone, $48; residence, $36." There is no evidence which 
shows specifically that the "telephone" referred to in the 
ordinance was to be one ba.sed upon any particular system, 
but the declarations of the appellant and the preamble of 
the ordinance showed that it had in contemplation a ser- 
vice equal in every respect to that furnished by its rival, 
the Chesapeake and Potomac Telephone Company. In the 
view we take of the case it is not necessary to decide the 



352 American State Reports, Vol. 115. [Maryland, 

matter more definitely than this court has already done in 
the decision in 99 Md., that the telephone mentioned in the 
ordinance must be understood to mean such as would fur- 
nish the most effective service then in use. 

Aside from this question, however, there are other consid- 
erations which must control this case. 

There is proof that the appellant has now between seven 
and eight thousand subscribers, of whom there are only 
eighteen parties to this proceeding or who are now seeking 
relief of any ^'^ kind from the appellant. There are about 
eight hundred who are passive, and the residue have entered 
into the new contracts at $72 per annum. 

It seems to be conceded that it is a law applicable to the 
telephone service that the cost per 'phone increases in rapid 
ratio as the number of telephones increases. The appellant 
beginning business upon the passage of the ordinance in 1896, 
with about eleven hundred, finds it impossible to furnish the 
service at the same cost with seven thousand five hundred sub- 
scribers, as it then did. So that while cost per telephone to 
the appellant in 1901 up to 1902 was $34 per telephone, in 
1902 it was $39.74, or a loss of $2 per telephone; and in the 
next year there was a deficiency of nearly $9 per telephone. 
Mr. Webb testifies that during that year under the old rates 
the deficiency would amount to over $70,000, "so that at $48 
and $36 a year under actual operation demonstrated by 
actual experience, it means $72,000 a year less than cost." 
This would mean only one thing, and that is, that the appel- 
lant could not find it possible to continue the service, but 
would speedily pass into the hands of receivers. The coun- 
sel for the appellees, while not resisting this conclusion, at- 
tempts to meet it by arguing that the service could still be 
supplied by deducting the alleged deficiency from the interest 
on the bonds. These consist of a first issue of $1,000,000, 
and a second of $1,155,000, bearing interest at five per cent, 
issued to provide the means for constructing the plant. All 
of the proceeds thereof, besides other large sums, were de- 
voted exclusively to that purpose, and the expenditure was 
rendered necessary to furnish the equipment necessary to 
meet the demand of the public. The bonds were put on the 
market and sold to purchasers. It is not contended they were 
improvidently issued, or that the money derived therefrom 
was extravagantly or even unwisely expended for any other 
purposes than to obtain the means of constructing plant and 



Feb. 1906.] Maryland etc. Tel. Co. v. Simon Sons Co. 353 

conducting its business in such a manner as to enable it to, 
compete with the other company doing business in Baltimore 
City. So that the proposition asked for by the complain- 
ant is that the court shall issue its injunction restraining 
^^® the appellant from charging more than the rates provided 
by its contract as expressed in the ordinance, by which great 
losses will be incurred by many innocent persons, and the 
public will be deprived of the benefits of competition in the 
business of furnishing telephone service, for the benefit of and 
on the application of eighteen persons. By granting this in- 
junction each of the appellees will be nominally benefited in 
small amounts; but in fact the appellant may be forced into 
the hands of receivers, so that the service cannot be rendered 
at all, and the decree would eventually be of no service to 
them, while disaster would be brought on the corporation, 
and large and irreparable losses entailed upon the holders of 
the bonds; and thereby the very purposes for which the or- 
dinance No. 110 was enacted probably entirely' defeated. 
Under these circumstances it is manifestly the duty of the 
court to deny the injunctions prayed for, and leave the appel- 
lees to such remedies as they may have at law. 
Decree reversed, with costs to the appellant. 



The Granting of an Injunction is not a matter of strict right in 
the parties, but it is a matter resting in the sound discretion of the 
court: Macon etc. R. R. Co. v. Gibson, 85 Ga. 1, 21 Am. St. Rep. 135; 
Piatt V. Waterburj-, 72 Conn. 5.31, 77 Am. St. Rep. 335; Gray v. Mayor 
etc., 60 N. J. Eq. 385, 83 Am. St. Rep. 642. An injunction will therefore 
not be granted, as a rule, when it would be productive of great hard- 
ship or oppression or great public or private mischief: Fisk v. Hart- 
ford, 70 Conn. 720, 66 Am. St. Rep. 147; Gray v. Mayor etc., 60 N. J. 
Eq. 385, 83 Am. St. Rep. 642; Crescent Min. Co. v. Silver King Min. 
Co., 17 Utah, 444, 70 Am. St. Rep. 810; Jones v. Concord etc. R. R. 
Co., 67 N. H. 234, 68 Am. St. Rep. 650. 

The Awarding of SpScific Performance by a court of equity is a 
matter, not of absolute right, but of sound discretion: Boldt v. Early, 
33 Ind. App. 434, 104 Am. St. Rep. 255. It may be withheld where 
the results would be inequitable or unjust: Winne v. Winne, 166 N. 
Y. 263, 82 Am. St. Rep. 647; Ryan v. McLane, 91 Md. 175, 80 Am. St. 
Rep. 438; Maguire v. Heraty, 163 Pa. 381, 43 Am. St. Rep. 800. 

Am. St. Rep., Vol. 115—23 



354 American State Reports, Vol. 115. [Maryland, 



mLSKE V. STEINER MANTEL COMPANY. 

[103 Md. 235, 63 Atl. 471.] 

CONTBACTS, Confitmctlon of. — In Construing a Contract 
Courts Should Place Themselves in the Same Situation as the Parties 
were who made the contract, so as thereby to judge of the meaning of 
the words and a correct application of the language to the things 
described, (p. 357.) 

CONTEACT for the Construction of a Building, When not to 
be Construed in Connection with a Bond Given by the Contractor. — 
If a contract is entered into for the construction of a building 
within a time and on the conditions therein specified, and the con- 
tractor gives a bond with a surety for the performance of the contract, 
within such time and upon such conditions, the covenants and con- 
ditions of the bond are not to be read into the contract, and taken 
not only as narrowing and limiting the obligations of the person con- 
tracting for the erecting of the building, but also as imposing new 
and additional duties upon him. (pp. 357-359.) 

CONTRACT for the Construction of a Building — Bond Declar- 
ing that Neither the Principal nor the. Surety Therein Shall be Liable 
for Damages Resulting from the Act of God. — If a building contract 
provides that the building shall be constructed within a time speci- 
fied and according to certain plans and specifications, and that the 
builder will execute a bond for the faithful performance of his 
duties in erecting the building, and such bond, when executed and 
accepted, provides that neither the principal nor the surety shall 
be liable for damages resulting from the act of God, the bond does 
not vary or alter the meaning of the contract so as to make the 
owner answerable for the contract price, or for a portion thereof, 
when the building as partly constructed is destroyed as the result 
of a storm, (pp. 357-359.) 

BUILDING CONTRACT— Eight to Recover on Partial Per- 
formance. — If a building contract is entered into, but provides for the 
payment of specified amounts as the work progresses, an action may 
be brought for the payment of any such installment when it be- 
comes due by the terms of the contract, (p. 359.) 

BUILDING CONTEACT. — Notwithstanding the Destruction 
of a Partially Constructed Building by a Storm, the owner is under 
obligation to permit the builder to perform hie contract by rebuilding 
the structure, (p. 359.) 

PLEADING, Duplicity in. — If one who has contracted to erect 
a building for another has two causes of action against the latter, 
one for a definite sum of money due for work done, and the other 
for preventing the plaintiff from going on and completing his con- 
tract, and states both causes in a single count in his declaration, it 
is bad for duplicity, (p. 361.) 

APPEAL AND EEEOE — Eemanding Cause for Trial on the 
Merits Though the Judgment Appealed from was not Erroneous. — 
If a judgment is entered in the trial court for the defendant because 
of defects in the plaintiff's pleading, where it is infected with 
duplicity, the appellate court may, in Maryland, in its discretion, re- 
mand the cause for trial on the merits, (p. 362.) 



March, 1906.] Milske v. Steineb Mantel Co. 355 

William S. Bansemer, Marbury & Gosnell and Charles P. 
Coady, for the appellant, 

William S. Bryan, Jr., and John H. Richardson, for the 
appellee. 

*"** BURKE, J. This is an action of covenant based upon 
a sealed agreement *^^ between the parties to the suit dated 
June 1, 1903. The suit was originally instituted in the cir- 
cuit court for Baltimore county, but was subsequently re- 
moved to the court of common pleas. By leave of the court 
the plaintiff, on the 19th of June, 1905, filed an amended 
declaration which contained three counts, each of which pur- 
ported to assign breaches of the agreement committed by the 
defendant. The defendant demurred to each count of the 
declaration. The court sustained the demurrers, with leave 
to the plaintiff to amend, which he declined to do, and there- 
upon the court entered judgment on the demurrers in favor 
of the defendant. From this judgment the plaintiff appealed. 
The record, therefore, presents this one question: Was the 
court's ruling upon the demurrers correct? 

The circumstances which gave rise to the suit are as fol- 
lows: The defendant corporation contemplated the erection 
of a brick factory and storehouse to be located in Baltimore 
county, and to that end had plans and specifications for 
the construction of the work prepared. The contract was 
awarded to the plaintiff on the 1st of June, 1003, and he ob- 
ligated himself to complete the* work in forty-seven working 
days. During the course of the erection and construction 
of the building, and when the same had been almost com- 
pleted, it was blown down on the 12th of July, 1903, by a 
storm of unusual violence and severity which swept over the 
section of the county in which the building was located. It 
was made a condition precedent to the awarding of the con- 
tract to the plaintiff that he should enter into a bond to 
the defendant, in conjunction with a surety company satis- 
factory to the defendant, as surety, conditioned for the faith- 
ful performance of the contract. There was also stipulation 
in the contract that as the work advanced to certain stages 
of completion the plaintiff should be paid certain specified 
sums. When the storm of the 12th of July, 1903, demolished 
the building, an installment of fifteen hundred dollars due 
the plaintiff under said provision of the contract was un- 
paid. 



i 



356 American State Reports, Vol. 115. [Maryland, 

The proposition for which the plaintiff contends is that 
^■*'^ under the contract between himself and the defendant 
all losses or damages which resulted to the building from the 
storm of July 12, 1903, which the narratio describes as an 
"act of God," must be borne by the defendant, and that he, 
the plaintiff, has a right under the contract to recover all 
such losses and damages to said work as he may be able to 
show he sustained by reason of the storm. The first and 
third counts are based solely upon this contention. The 
second count presents a different question, and will be con- 
sidered later. The first count seeks to recover an unpaid in- 
stallment of fifteen hundred dollars, and also the value of 
the materials used in the construction of the building, which 
it alleges were retained and used by the defendant. The 
third count alleges that "the defendant was bound to suffer 
and stand good for the loss from an 'act of God,' and the 
plaintiff was relieved from any loss so incurred, and that the 
defendant was under an obligation to bring the building to 
the stage of completion to which it had progressed at the 
time it was destroyed." Under this count the plaintiff seeks 
to recover profits on the contract, the unpaid installment of 
fifteen hundred dollars, and the value of the materials used 
in the work. 

The theory upon which the plaintiff seeks to maintain these 
counts is that the bond and building contract are to be taken 
together as constituting the agreement by which the rights 
and duties of the respective parties to the suit must be deter- 
mined, and that inasmuch as by the third condition contained 
in the bond given by the plaintiff' and the American Surety 
Company it is provided: "That the principal shall not, nor 
shall the surety be liable for any damage resulting from an 
act of God," it is argued that thereby the obligations as- 
serted in the first and third counts were imposed upon the 
defendant, and that upon this conception of the character 
and meaning of the contract the pleader has introduced ver- 
batim into each count of the narratio the agreement and 
bond. It, therefore, appears that the question presented in- 
volves an inquiry as to what was the contract entered into 
between the parties and what were the rights and obligations 
arising thereunder. 

*^® It is needless to quote authorities to show that in the 
construction of a contract the intention of the parties as it 
appears from the whole agreement must be ascertained and 



;March, 1906.] Milske v. Steineb Mantel Co. 357 

given its full effect. The rule of construction was stated, 
with great clearness, in Nash v. Towne, 5 Wall. 689, 18 L. 
ed. 527, as follows : ' * Courts, in the construction of contracts, 
look to the language employed, the subject matter, and the 
surrounding circumstances. They are never shut out from 
the same light which the parties enjoyed when the contract 
was executed, and, in that view, they are entitled to place 
themselves in the same situation as the parties who made the 
contract, so as to view the circumstances as they viewed 
them, and so to judge of the meaning of the words and of the 
correct application of the language to the things described." 
When the contract for the construction of the factory and 
the storehouse is looked at in the light of these principles, the 
contention of the plaintiff that the covenants and conditions 
of the bond which the plaintiff was required to give for the 
faithful performance of his duties are to be read into the con- 
tract, and to be taken, not only as narrowing and limiting his 
obligations under his agreement with the defendant, but as 
imposing new and additional duties upon the defendant, can- 
not for a moment be entertained. The plaintiff undertook 
to do a certain, definite thing, to wit, the erection and com- 
pletion of a factory and storehouse according to the plans 
and specifications furnished by the defendant. These plans 
and specifications constituted a part of the contract. He was 
to do all the work and furnish all the materials to be used in 
and about the erection of the building, and was to do the 
work in a good and thorough workmanlike manner. He fur- 
ther obligated himself to have the building completed and 
ready for the business for which the same was to be erected 
in a specified number of days. Upon the performance by 
the plaintiff of all the covenants on his part to be performed, 
the defendant agreed to pay to the plaintiff the sum of 
eight thousand seven hundred and ninety-four dollars and 
fifty cents in the following installments, viz. : five hundred 
dollars when the building is completed to the first floor, and 
the fir.st floor joists are laid; one thousand dollars to ^■*'^ be 
paid when the building is completed to the second floor, and 
the second floor joists are laid ; one thousand dollars to be 
paid when the building is completed to the third floor and 
the third floor joists are laid ; fifteen hundred dollars to be 
paid when the building i.s completed to the roof and the roof 
is placed upon the same-, five hundred dollars to be paid when 
the flooring on the fir.st floor is laid and trimmed out; five 



358 Americ-vn State Reports, Vol. 115. [Maryland, 

hundred • dollars to be paid when the flooring on the second 
and third floors each is laid and trimmed out. The bal- 
ance of three thousand two hundred and ninety-four dollars 
and fifty cents to be paid when the building is completed 
in accordance with said plans and specifications, and same 
delivered to said party of the second part free of all claims 
by the party of the first part or any party claiming through 
him. There is also a stipulation that on the signing of the 
contract the plaintiff should execute a bond in the sura of 
four thousand dollars with some responsible bonding comp'any 
satisfactory to the defendant, "conditioned for the faithful 
performance of his duties in the erection of said building." 
These are the main and substantial provisions of the con- 
tract. It is an absolute and unconditional contract on the 
part of the plaintiff. There are no conditions or contingen- 
cies incorporated or provided for therein by which he might 
be excused from performance, or might be relieved from 
loss or damage, or whereby the loss occasioned by the storm 
mentioned in the declaration might be imposed upon the 
defendant. The bond was given, not to vary or change in 
any particular the obligations of the plaintiff under the con- 
tract, but to secure the faithful performance by him of all 
the duties assumed by him thereunder. Its object was to 
protect the defendant from loss or damage which might re- 
sult from nonperformance by the plaintiff, and cannot be 
construed to add to or change any of the terms of the con- 
tract, or to be taken as a part thereof. When the purpose 
of the contract, its subject matter, and the surrounding cir- 
cumstances at the time are considered, it would seem to be 
perfectly clear that the bond is an entirely independent and 
collateral contract given to protect the defendant against any 
default or miscarriage of the plaintiff under the contract. 
The original obligation to construct the building ^* had been 
undertaken by the plaintiff, and the bond must be treated 
as a contract of guaranty or suretyship for the faithful dis- 
charge of his duties under his agreement with the defendant. 
That the original and distinct obligation of the plaintiff ex- 
isted, and that the bond was a mere collateral agreement 
founded upon it, appears clear from the language employed 
and from a consideration of the surrounding circumstances. 
The bond may, therefore, be dismissed from the case, and 
should not have been introduced into the declaration. 



March, 1906.] Milske v. Steiner Mantel Co. 359 

With the bond out of the case, it must be admitted that 
the plaintiff cannot recover for the loss which the storm occa- 
sioned, for by all the authorities, in the absence of special 
provisions in the contract providing for such a contingency, 
the loss must fall upon the plaintiff. In both counts the 
contract is treated as a subsisting, binding obligation. 
Neither alleges performance by the plaintiff, nor does either 
disclose any legal excuse for his failure to perform the con- 
tract. The theory upon which both counts rest is that the 
failure of the defendant to pay the losses which the plaintiff 
sustained by the storm constitutes a breach of the contract 
from which a right of action accrued to the plaintiff. This 
contention, as we have said, is based upon a fallacious con- 
struction of the contract, and as both counts are framed upon 
that construction, both are bad. 

They are bad for a further reason which will be stated when 
the second count is considered, which we will now examine. 
The contract sued on is an entire and not a divisible con- 
tract. The thing with which it deals is the building and con- 
struction, in a certain specified manner, of a factory and 
warehouse. But it contains certain stipulations by which 
the defendant obligated itself to pay to the plaintiff certain 
specified and definite sums of money at stated periods as the 
work progressed. When the building had reached the stage 
of completion designated in the contract, the obligation of 
the defendant to pay the sums specified therein became fixed 
and absolute. But it is argued that because the contract 
is an entire contract, no suit can be brought thereon until 
the plaintiff has fully performed his agreement. Whatever 
may be the **® rule in other jurisdictions, the mere fact that 
the contract is entire does not preclude the plaintiff from en- 
forcing the payment of the unpaid installments due and pay- 
able thereunder. In Broumel v. Rayner, 68 Md. 47, 11 Atl. 
833, this court said: "In Taylor v. Laird, 1 Hurl. & N. 266, 
Pollock, C. B., determined that when there is a contract for 
an entire service, but the parties stipulated that payments 
for such service shall be made periodically in fixed sums, a 
failure to make any one of these payments may become the 
foundation for a suit. Thus it is manifest that many suits 
may grow out of one contract This principle has been recog- 
nized in all of the states." 



360 American State Reports, Vol. 115. [Maryland, 

Notwithstanding the destruction of the building by the 
storm, the defendant was under an obligation to permit the 
plaintiff to perform his contract by rebuilding the structure. 
In Black v. Woodrow & Richardson, 39 Md. 194, Judge Al- 
vey said: "It not infrequently occurs that contracts on their 
face and by their express terms appear to be obligatory on 
one party only, but in such cases, if it be manifest that it was 
the intention of the parties, and the consideration upon which 
one party assumed an express obligation, that there should 
be a corresponding and correlative obligation on the other 
party, such corresponding and correlative obligation will be 
implied. Thus, if the act to be done by the party binding 
himself can only be done upon a corresponding act being 
done or allowed by the other party, an obligation by the latter 
to do or allow to be done the act or things necessary for the 
completion of the contract will be necessarily implied: 
Churchward v. The Queen, 6 Best & S. 807. And among the 
instances given of such implied obligation is the case where 
A covenants or contracts with B to buy an estate of the lat- 
ter, at a given price; there, although the contract may be 
silent as to any obligation on the part of B to sell, the law 
implies a corresponding covenant or contract by him to sell 
and convey the estate: Pordage v. Cole, 1 Saund. 319. In- 
deed, no better instance of the proper application of the 
principle could be furnished than the present case. The ap- 
pellees agreed with the appellant to build for the latter a 
house on ^^^ his land for a certain price, part to be paid 
while the house was in course of erection, but the larger 
part of the price was not to be paid until the house was com- 
pleted; although the appellant could not be compelled to 
have the house built against his consent, yet, notwithstand- 
ing the contract is silent as to the appellant's promise that 
he would suffer the house to be built, the agreement with 
the appellees for the building of the house clearly implies 
that he would allow that to be done without which it would 
be impossible for the appellees to do what they had agreed to 
do. To allow or suffer the house to be built was the corre- 
sponding or correlative obligation of the appellant, implied 
by the law to the obligation of the appellees to build the 
housCj as expressed by the contract; and for any breach of 
this implied promise or obligation by the appellant, he was 
equally liable as upon an express promise." 



1 



March, 1906.] Milske v. Steiner JIantel Co. 361 

It is, therefore, clear that if, before the building had been 
destroyed by the storm, a definite sum of money was due to 
the plaintiff under the stipulation of the contract for work 
done, and which the defendant refused to pay, and if, after 
the occurrence of the storm, the plaintiff was ready and will- 
ing to rebuild said factory and warehouse according to the 
terms of the contract, and was prevented by the defendant 
from so doing, two distinct breaches of the contract were 
thereby committed by the defendant, for both, either of which 
a right of action accrued to the plaintiff. For both of said 
alleged breaches the plaintiff seeks to recover in this suit. 
But he has combined the two distinct causes of action in one 
count of his declaration. He seeks to recover for the failure 
to pay the installments due, and also to recover damages for 
the refusal of the defendant to permit him to perform the 
contract. This vice is found in all the counts. The whole 
declaration is a flagrant example of duplicity in pleading: 
Chitty on Pleading, 225; 1 Poe on Pleading, sees. 733-737. 
This defect in pleading may now be taken advantage of by a 
general demurrer: Steams v. State, 81 Md. 341, 32 Atl. 282; 
State V. McNay, 100 Md. 622, 60 Atl. 273. 

281 -^g therefore find no error in the action of the court 
below in sustaining the demurrers to each count of the dec- 
laration, and in entering the judgment for the defendant 
upon the refusal of the plaintiff to amend the declaration. 
But if the facts set out in the record be true, the plaintiff 
has substantial grounds of action against the defendant, and 
it would be a reproach to the administration of justice if he 
were denied the right to have his case heard upon its merits 
merely because of errors in the pleading or mistake of judg- 
ment in the pleader in not making the proper amendments. 
In order to avoid such injustice, it is provided by article 5, 
section 22 of Code of 1904, as follows: "In all cases where 
judgment shall be reversed or affirmed by the court of ap- 
peals, and it shall appear to the court that a new trial ought 
to be had, such new trial shall be awarded, and a certified 
copy of the opinion and judgment of the court of appeals 
shall be transmitted forthwith to the court from which the 
appeal is taken, to the end that said cause may be again tried 
as if it had never been tried ; and no writ of procedendo, 
with transcript of record, shall be transmitted, as heretofore 
practiced." 



362 American State Reports, Vol. 115. [Maryland, 

It was said in Creager v. Hooper, 83 Md. 490, 35 Atl. 159, 
that under the above-quoted section "this court is vested with 
discretionary power, when in its judgment the ends of jus- 
tice will be promoted, to remand a case to the lower court 
for trial upon its merits. This is manifestly a case for the 
exercise of its discretion. The merits of the controversy have 
never been passed upon by the court, nor has the case ev^r 
been in the condition that they could be passed upon, and 
not to remand it would be neither more nor less than a denial 
of justice." The case of State v. Baltimore etc. R. R. Co., 
77 Md. 489, 26 Atl. 865, presented a situation very similar 
to the one under consideration. In that case the plain- 
tiff had filed an amended declaration to which the defend- 
ant demurred. The court sustained the demurrer and en- 
tered judgment for the defendant. The plaintiff appealed. 
This court held the pleading insufficient, and aflEirmed the 
judgment, but remanded the case for trial upon its merits. 
Judge Bryan, who delivered ^'*^ the opinion of the court, 
said: "We think it just, under the circumstances, to remand 
the case, in order that the declaration may be amended and 
the case be brought to trial on its merits, although we shall 
affirm the judgment." The circumstances of this ease, in 
our opinion, warrant the exercise of the discretionary power 
vested in this court under the act. 

Judgment affirmed and cause remanded for a new trial, 
the appellant to pay the costs. 



The Effect of the Destruction of a Building in course of construction 
before its completion on the rights and liabilities of the contractor 
and the owner is considered in the note to Huyett & Smith Co. v. 
Chicago Edison Co., 59 Am. St. Eep. 285. A contractor is released 
from his undertaking to repair an old building and construct an 
annex thereto, where, after the work is practically finished and 
eighty per cent of the contract price received, the structure is so 
damaged by fire from lightning that completion is impossible without 
first restoring the old building; and this, although the contractor 
should have completed his contract before the fire, and although the 
contractee offers to restore the old building: Krause v. Board of 
School Trustees, 162 Ind. 278, 102 Am. St. Rep. 203. See, in this 
connection, Butterfield v. Byron, 153 Mass. 517, 25 Am. St. Rep. 
654. 



March, '06.] Baltimore etc. Ky. Co. v. Klafp & Co. 363 



BALTIMORE, CHESAPEAKE AND ATLANTIC RAIL- 
WAY COIVIPANY V. KLAFF & CO. 

[103 Md. 357, 63 Atl. 360.] 

REPLEVIN for Property in Custody of the Law. — Replevin 
can be sustained for property under levy under attachment, though 
the writ issue in an action against a person other than the owner 
of such property, (pp. 366, 367.) 

Ralph Robinson and Bond & Duffy, for the appellant. 
Myer Rosenbush, for the appellee. 

ssT" SCHMUCKER, J. This appeal presents the single 
question whether the owner of personal property can main- 
tain a replevin for it after it has been levied on by the sheriff 
under an attachment, against a third person, which is still 
pending. The question arises under the following circum- 
stances : 

The appellee, as plaintiff below, instituted the present re- 
plevin suit in the Baltimore City court to recover posses- 
sion of certain chattels which were on board the appellant's 
steamer, "Pocomoke," at her wharf in Baltimore City. The 
chattels were taken from the boat by the sheriff under the 
replevin and delivered to the plaintiff. The appellant ap- 
peared to the action and pleaded non cepit, property in a 
third person, and that the goods when replevied were in pos- 
session of the sheriff of Dorchester county, who had seized 
them under a pending attachment. 

*** The case was tried before the court without a jury. 
There was evidence at the trial tending to show the following 
facts: The goods in controversy were shipped on March 17, 
1905, per the steamer ' ' Pocomoke ' ' by one Orinoff from Cam- 
bridge to Baltimore, consigned to the appellee. As the boat 
was leaving her wharf at Cambridge the sheriff of Dorches- 
ter county came on board and levied on the goods under an 
attachment by way of execution on a judgment rendered by 
a justioe of the peace of that county against Orinoff. The 
goods were attached as per schedule and the writ was also 
laid in the hands of the captain of the boat as garnishee. 
The sheriff allowed the goods to remain on board the boat 
and went along with them to Baltimore City. On the arrival 
of the boat at Baltimore the goods were taken by the sheriff 



364 American State Reports, Vol. 115. [Maryland, 

of that city under the writ of replevin in the present case. 
There was also evidence tending to prove the value of the 
goods and that they had never been the property of Orinoff 
but were owned by the appellee. 

At the close of the evidence the appellee, as plaintiff, and 
the appellant, as defendant, each offered one prayer. The 
I^aintiff's prayer asked the court to declare, as matter of 
law, that if it found from the evidence that, at the time of 
the issuing of the writ of replevin in this case, the plaintiff 
was entitled to the possession and the right of possession of 
the goods seized under the writ, he was entitled to a verdict 
for the goods replevied, together with such damages as the 
court should find that he had sustained by reason of their 
detention. The court granted that prayer. 

The defendant's prayer, which was rejected, asserted the 
proposition that as the evidence showed that the goods re- 
plevied had prior to the replevy been attached anu scheduled 
by the sheriff of Dorchester county while the defendant's 
boat was lying at Cambridge and the attachment had been 
laid in the hands of the captain of the boat and he had been 
returned as garnishee and the schedule of the goods had been 
returned in the case in which the attachment had been issued, 
the verdict must be for the defendant. 

*^* The ruling of the court on these two prayers presents 
the question whether the goods in question, being in custodia 
legis by virtue of their attachment, were liable to be replevied 
under the writ issued in this case. 

The appellee does not deny the accuracy of the general 
proposition of law that property in custodia legis cannot be 
replevied, but he contends that cases like the present, where 
the property of the plaintiff has been attached under a writ 
mnning against a third party, constitute a reccgnized ex- 
ception to the proposition. In support of his contention he 
relies upon Clark v. Skinner, 20 Johns. (N. Y.) 465, and a 
number of more recent cases in the courts of last resort of 
many states, and also upon the statement made on page 500 
of volume 24 of American and English Encyclopedia of Law, 
second edition, that "by the great weight of authority, how- 
ever, which in some jurisdictions is recognized by statute, 
it is held that where in process running against the property 
of one person the property of another is taken, the latter may 
maintain replevin therefor, even though the property was in 



March, '06.] Baltimore etc. Ry. Co. v. Klafp & Co. 365 

possession of the attachment or execution debtor or a third 
person at the time of its seizure." 

We have examined many of the cases appearing on the 
appellee's brief and of those cited in the Encyclopedia in 
support of the statement there made. Those cases undoubt- 
edly show that in many, if not the majority, of the American 
states the exception contended for by the appellee is now 
recognized and upheld, but our predecessors in this court 
have been clear and emphatic in maintaining the opposite 
\iew. 

In Cromwell v. Owings, 7 Har. & J. 55, this court, although 
recognizing the fact that in this state the action of replevin 
has nearly taken the place of trespass and trover, and is the 
usual and almost universal remedy resorted to for the recov- 
ery of goods in the possession of another, whether tortiously 
taken or not, held that it will not lie for goods which are 
in custodia legis by reason of having been taken in execu- 
tion under legal process, even though that process was against 
a stranger who was not the owner of the goods. The court 
in their opinion ^®^ admit that "the application of the rule 
'that goods taken in execution cannot be replevied' to the 
case of a stranger whose property has been taken on an exe- 
cution against another person may sometimes be attended with 
individual inconvenience," but they insist upon its applica- 
tion, saying that "it is not the officer that the law protects 
in doing wrong, but the possession only of the chattels in 
order to effect its own ends, the purpose for which the exe- 
cution issued," and to prevent a contempt of the jurisdic- 
tion of the court issuing the execution. 

This court in the opinion in that case refer to the cases of 
Thompson v. Button, 14 Johns. 84, and Clark v. Skinner, 20 
Johns. 465, 11 Am. Dec. 302, but decline to follow their 
reasoning or adopt their conclusions. The court then say in 
concluding their opinion: "But the question whether the 
goods of a stranger taken out of his pos.session on an execu- 
tion against another person can be replevied out of the hands 
of the officer, having also been discussed, and being a ques- 
tion in which the public is materially concerned, and there- 
fore proper to be settled, we avail ourselves of this occasion 
to exprass our opinion upon the subject. In Thompson v. 
Button and Clark v. Skinner it is held that in such case a re- 
plevin will lie. 



366 American State Reports, Vol. 115. [Maryland, 

"But we cannot perceive any suflBcient ground for the dis- 
tinction. In either case the taking of the property of a 
stranger is wrongful as to him, and as much so in one case as 
in the other, and if replevin will lie by a stranger whose 
property is taken in execution out of his possession, on the 
principle that it is wrongfully taken, it would seem to fol- 
low that the same writ will equally lie for an equally wrong- 
ful taking of the property of a stranger out of the posses- 
sion of a defendant. But it does not depend upon the ques- 
tion whether the property was wrongfully taken or not, which 
can only be determined at the trial, but whether it was in 
the custody of the law or not, and that once established, the 
possession cannot be disturbed, but the party injured is left 
to seek his remedy by an action of trespass or trover, or to 
wait until the goods are sold and then regain his possession 
by a writ of replevin against the purchaser in whose hands 
they cease to be ^** in the custody of the law. Upon that 
principle we think that in no case whatsoever will replevin 
lie against an officer for goods taken in execution under law- 
ful process; and so is the case of Ilsley v. Stubbs, 5 Mass. 
280. If it were otherwise, it would always be in the power 
of a defendant to evade the law and defeat the ends of jus- 
tice, by placing his property in the hands of a friend and 
causing it, when taken in execution, to be replevied from the 
hands of the officer by such friend; and thus the mischief 
would be just as great as to permit a defendant to replevy 
property taken in execution out of his own possession." 

In Ginsberg v. Pohl, 35 Md. 505, a case in which the goods 
had been seized under an attachment which was still pending, 
the opinion in Cromwell v. Owings was referred to with ap- 
proval and its conclusions adopted and relied on, and the cases 
of Thompson v. Button, 14 Johns. 84, and Clark v. Skinner, 20 
Johns. 465, 11 Am. Dec. 302, were referred to as having been 
disapproved of by this court. Cromwell v. Owings, 7 Har, 
& J. 55, has been cited with approval in more recent cases, the 
last being Fidelity & Deposit Co. v. Singer, 94 Md. 124, 50 
Atl. 518, upon other aspects of the action of replevin, but none 
of the conclusions to which we have referred have been 
doubted or called in question. 

Mr. Poe, in the admirable discussion of the question when 
replevin will and when it will not lie appearing in section 252 
in his work on Pleading, also holds it to be the well-established 



June, 1906.] Mobgart v. Smousb. 367 

doctrine in this state that the action will not lie for goods in 
the custody of the law, even though they may have been taken 
on an execution against a stranger. 

The judgment appealed from must be reversed and the 
cause remanded. 

Judgment reversed with costs and case remanded for new 
trial. 



Seplevin Against Officers is considered in the note to Carpenter v. 
Innes, 25 Am. St. Rep. 256. The general question of when replevin 
is maintainable is the subject of a note to Sinnott v. Feiock, 80 Am. 
St. Bep. 741. 



MORGART V. SMOUSE. 

[103 Md. 463, 63 Atl. 1070.] 

STATUTE OF FEADDS. — The Transfer of an Equitable In- 
terest in Land is as much within the statute of frauds as the transfer 
of the legal interest, (p. 370.) 

STATUTE OF FEAUDS — Pleading. — One who has filed a gen- 
eral issue plea and thus denied the existence of a contract sued upon 
is entitled to rely on the statute of frauds, (p. 370.) 

STATUTE OF FRAUDS — Agreement to Purchase Lands as 
Partners or <m Joint Account. — An agreement between two persons 
that they will purchase lands and develop and sell them on joint 
account, and share equally in the profits and losses of the venture, 
is not within the statute of frauds, but constitutes them partners to 
the extent of the undertaking, governed by it. (p. 370.) 

PARTNERSHIP, Essentials of. — The essentials requisite to con- 
stitute the relation of partners are a community of interest between 
the parties for the purpose of profit, (p. 371.) 

PARTNERSHIP Between the Parties is a Matter of Intention 
to be proved by their express agreement or inferred from their acts. 
(p. 371.) 

PARTNERSHIP in Lands, When Exists. — An agreement by 
two or more persons to buy land and sell it and share the profits 
or profits and losses constitutes them partners for that venture, and 
entitles either of them to an accounting in equity for his share 
of the joint transaction, (p. 371.) 

STATUTE OF FRAUDS — Partnership in Lands.— An Oral 
Agreement is Suf&cient to constitute a partnership to deal in lands, 
(p. 372.) 

PARTNERSHIP in Lands, Action at Law for a Share of the 
Profits of. — if two persons have entered into a partnership to buy 
and sell land, an action at law cannot be maintained by one of them 
against the other for a share of the profits of ^he venture, there not 
appearing to have been any settlement of accounts between them. 
(p. 372.) 



368 American State Reports, Vol. 115. [Maryland, 

Ferdinand Williams and De Warren H. Reynolds, for the 
appellant. 

Thomas J. Peddicord and D. James Blaekiston, for the 
appellee. 

-•^^ SCHMUCKER, J. The appellee sued the appellant 
in the circuit court for Allegany county to recover what he 
claimed to be his share of the profits realized from the pur- 
chase and sale of certain real estate. The declaration con- 
tained only the common counts in assumpsit, but it was ac- 
companied by a bill of particulars in the form of an account 
charging the defendant with one-half of specified profits al- 
leged to have been received by him on three several trans- 
actions. The count relied on in argument by the plaintiff 
was the one for money had and received for his use. 

The appellant, as defendant, pleaded two general issue 
pleas, and also payment and limitations, whereupon the 
plaintiff joined issue on all of the pleas except that of limita- 
tions, to which he replied a new promise. To that replication 
the plaintiff rejoined that he had been kept in ignorance of 
his cause of action by the defendant's fraud until within 
less than three years before the bringing of the suit. 

The case was tried before the court without a jury and the. 
verdict and judgment were against the defendant, who took 
this appeal. There is but one bill of exceptions in the record 
and that is to the court's ruling on the prayers. 

The plaintiff, to support his case, offered evidence tending 
to prove the making of a verbal contract between him and 
the defendant for the purchase, development and sale for 
their joint account of two parcels of land, the one containing 
five thousand '***^ acres, known as the Cunningham tract and 
the other, containing thirteen hundred acres, known as the 
Maynadier tract. 

To establish the contract in reference to the Cunningham 
tract the plaintiff himself went upon the stand as a witness, 
and after saying that he had frequent interviews with Mr. 
Hamill, the owner of the lands, beginning in 1896, he testified 
as follows: "I met Mr. Hamill a number of times afterward, 
and in conversations about this land I finally got a price from 
him on the land, as he represented three-fourths owners of 
the property at the time, and he told me he would sell me 
the land on time payments at five dollars per acre." Then, 
after saying that he had made arrangements to borrow the 



June, 1906,] Morqart v. Smouse. 369 

money to buy the land when Morgart, the defendant, came 
frequently to see him in June or July, 1898, and offered to 
go into the deal with him, he described the making of the 
contract with Morgart as follows: "We were talking over 
this property and I told him about having arranged for the 
money to buy the one tract; he said to me that it would be 
foolish to go into a deal of that kind, and if I would allow 
him to go in this deal he would furnish whatever money it 
took and that he would take one-half of the profits whatever 
we made out of it, and it would relieve me of borrowing this 
money, and I arranged not to take this money." In reply to 
the question, "Just state what Mr. Morgart offered to do," 
the plaintiff testified, "Mr. Morgart 's offer was that he would 
furnish all the money required to run this deal to a finish, 
and do all the work connected with it, and would do that in 
consideration of half the profits to be made out of it, and, on 
the other hand, if we lost in it I was to put up my half of 
what was lost"; and further testified that he accepted Mor- 
gart 's proposition. 

The plaintiff and Morgart, a short time thereafter, went 
together to see Mr. Hamill, who declined to give them at that 
time a written option on the land, as he had given the refusal 
of it to other parties for thirty days. After the expiration of 
the thirty days Morgart went again to see Mr. Hamill, and 
when he returned he told the plaintiff that Hamill had given 
him a written option for the land, and had charged him a 
hundred "*** doUars for it, but the plaintiff never saw this 
alleged writtai option, nor, if it existed, was it put in evi- 
dence in the case. 

In reference to the Maynadier tract, the plaintiff testified, 
fixing the date as sometime in November, 1898: "Mr. Mor- 
gart acted on my instructions to him for to buy the Maynadier 
land ; it was understood it was to go in the same deal. I ex- 
plained to him it was the natural outlet to get the timber away 
from the Cunningham lands, and, after going on the Cun- 
ningham land, he saw that himself My arrangement 

[with Morgart] was that I was to share in the whole deal, 
and that it was to apply to the Maynadier as well as the 
Cunningham." 

The defendant Morgart stoutly denied the truth of this tes- 
timony of the plaintiff, but there is other evidence in the rec- 
ord tending to corroborate it, from which the court might have 
found it to be true. We will, for the purposes of this opinion. 
Am. St. Rep., Vol. 115—24 



370 American State Reports, Vol. 115. [Maryland, 

give the plaintiff the benefit of his own version of the contract 
on which he bases his right to recover. 

Neither the Cunningrham nor the Maynadier tract of land 
was conveyed by its owners to either of the parties to this 
suit, but there is evidence in the record tending to show that 
both tracts were conveyed in 1899 to purchasers procured by 
Morgart, and were afterward sold at an advance by those 
purchasers, and that ^lorgart received a portion of the profits 
thus realized, and refused to divide the amount so received 
by him with the plaintiff. 

The plaintiff's alleged contract with Morgart must be re- 
garded as having been intended to be either a verbal assign- 
ment by the former to the latter of a one-half interest in an 
equitable estate in the lands mentioned in the evidence , or an 
agreement between the two parties for the future purchase, 
development and sale of those lands, and an equal division of 
the profits or losses to result from the venture. Treated as 
an assignment of an equitable interest in the lands, it was 
void under the fourth section of the statute of frauds, for it is 
well settled that a transfer of an equitable interest in lands 
is as much within the operation of the statute as a transfer of 
a ^o'' legal interest: Polk v. Reynolds, 31 Md. 106; 29 Am. 
& Eng. Ency. of Law, 2d ed., 888, and cases there cited. 

The defendant, having filed the general issue pleas, and 
thus denied the existence of the contract sued on, was entitled 
to invoke and rely upon the statute of frauds, as he did on his 
brief and in argument, without having set it up by plea: 
Hamilton v. Thirston, 93 Md. 213, 48 Atl. 709; Semmes v, 
Worthington, 38 Md. 298. 

Furthermore, the plaintiff, when he made the contract with 
Morgart, possessed, so far as the evidence in the record goes, 
no valid title either legal or equitable to the lands, as he had 
nothing more than a verbal promise from their owner to sell 
them to him at a certain price: Green v. Drummond, 31 Md. 
71, 1 Am. Rep. 14. Nor can the plaintiff escape from the toild 
of the statute upon the ground contended for by him, that the 
contract had been fully executed when he brought his sutt, 
because, whatever may be said of the effect of the conveyances 
appearing in the record from the owners of the lands to var- 
ious purchasers and from the latter to their vendees, such 
conveyances were not an execution of the verbal contract of 
Hamill to sell the lands to the plaintiff nor of the latter 's 
verbal contract to transfer a half interest in them to Morgart. 



June, 1906.] Morgart v. Smouse. 371 

If, on the other hand, we treat the contract between the 
plaintiff and Morgart as an agreement made by them to pur- 
chase, develop and sell the lands for their joint account, and 
share equally the profits and losses of the venture, the statute 
of frauds was not applicable to it, but it constituted them co- 
partners quoad the undertaking covered by it. The requi- 
sites of a copartnership have been stated by the text-books 
and cases in various forms of expression, which substantially 
agree that the essential requisite to constitute the relation is 
a community of interest between the parties for the purpose of 
profit. Ordinarily, the profits are expected to arise from the 
purchase and sale of some form of property, but they may be 
produced by the skill and industry of the partners, as in the 
case of professional firms or those for the organization or pro- 
motion of various enterprises : Parsons on Partnership, sees. 
■*** 58-61 ; Lindley on Partnership, 10-13 ; Rowland v. Long, 
45 Md. 439; Heise v. Barth, 40 Md. 259; 22 Am. & Eng. 
Ency. of Law, 2d ed., p. 27, 

As between parties, partnership is a matter of intention 
to be proved bj'' their express agreement or inferred from 
their acts and conduct. If they intend to and do enter into 
such a contract as in the eye of the law constitutes a partner- 
ship, they thereby become partners, whether they are desig- 
nated as such or not in the contract. The late Judge Robin- 
son, in speaking for this court in Thillman v. Benton, 82 Md. 
64, 33 Atl. 485, after reviewing the authorities bearing upon 
this subject and commenting upon the earlier decisions of 
this court in Rowland v. Long, 45 Md. 439, arrived at the 
following conclusion as to the present state of the law: "We 
take it then to be well settled that a partnership is a contract 
of some kind involving mutual consent of the parties, and 
when such a contract is entered into between two or more per- 
sons for the purpose of carrying on a trade or business with 
the right to participate in the profits of such trade or busi- 
ness, then such a contract constitutes a partnership, unless 
there be other facts and circum-stanees which show that some 
other relation existed." 

It has been repeatedly held in other jurisdictions that an 
agreement by two or more persons to buy land and sell it, and 
share either the profits or the profits and the losses, constitutes 
them partners for that venture, and entitles either of them to 
an accounting in equity from the others of the joint transac- 
tions: Van Houton v. Copeland, 180 111. 74, 54 N. E. 169; 



372 American State Reports, Vol. 115. [Maryland, 

Speyer v. Desjardins, 144 111. 641, 36 Am. St. Rep. 473, 32 
N. E. 283 ; Tyler v. Waddingham, 58 Conn. 375, 20 Atl. 335, 8 
L. R. A. 657 ; Richards v. Grinnell, 63 Iowa, 44, 50 Am. Rep. 
727, 18 N. W. 668; Hill v. Sheibley, 68 Ga. 556; Parsons on 
Contracts, 4th ed., sec. 67. A verbal agreement is sufficient to 
constitute a partnership to deal in lands, the statute of frauds 
not being applicable to such contract : Parsons on Partnership, 
4th ed., sec. 6 ; Lindley on Partnership, 88, 89 ; Van Houten v. 
Copeland, 180 lU. 74, 54 N. E. 169; Speyer v. Desjardins, 
144 111. 641, 36 Am. St. Rep. 473, 32 N. E. 283 ; Richards v. 
Grinnell, 63 Iowa, 44, 50 Am. Rep. 727, 18 N. W. 668 ; Bruns 
V. Spalding, 90 Md. 349, 45 Atl. 194; 29 Am. & Eng. Ency. 
of Law, 2d ed., 897. 

Such being the law controlling the relations of the parties 
*^ to this appeal in respect to the subject matter of the 
present suit, the appellee was not entitled to recover in an 
action at law against the appellant for a share of profits of 
their joint venture in the Cunningham and Maynadier tract? 
of land, there not appearing to have been any settlement or 
account stated between them. 

Under these circumstances the learned judge below should 
not have granted the plaintiffs' thira prayer, which declared, 
as matter of law, that if the court, sitting as a jury, found the 
facts therein stated, the plaintiff was entitled to a verdict in 
his favor. On the contrary, he should have granted the de- 
fendant's first prayer, which asked him to declare, as matter 
of law, that under the pleadings in the case there was no 
evidence legally sufficient to entitle the plaintiff to recover, 
and the verdict must be for the defendant. In the view which 
we have taken of the case, we deem it unnecessary to notice 
in detail the other prayers which asked for rulings upon 
segregated portions of the facts of the case. 

For the error of the court below in granting the plaintiff's 
third prayer and rejecting the defendant's first prayer, the 
judgment appealed from must be reversed, without a new 
trial. 

Judgment reversed, with costs, without a new trial. 



While a Contract by Two Persons to Purchase real estate for their 
joint benefit is within the statute of frauds, it seems that an agree- 
ment to create a partnership for the purpose of buying and selling 
lands for profit is not an agreement for the sale of lands, and is 
not within the statute. See the note to McCoy v. McCoy, 102 Am. 
St. Bep. 239. 



June, 1906.] ScniRM v. Wiejman. 373 



SCHIRM V. WIEMAN. 

[103 Md. 541, 63 Atl. 1056.] 

CONTEACT — Agreement to Pay for the Eetam of Stolen Prop- 
erty. — An agreement to pay for the return of stolen property, or a 
check given to procure such return, is neither illegal, immoral nor 
against public policy, and may be enforced where it does not inter- 
fere with the public interest and duty, respecting the apprehension 
and conviction of the criminal, (p. 378.) 

J. Cookman Boyd, for the appellant. 

Alonzo L. Miles, German H. H. Emory and John T. Mor- 
ris, for the appellee. 

*** PAGE, J. This suit was instituted to recover upon a 
check given to the appellant by the appellee, under the cir- 
cumstances which '^^^ will afterward be stated. The case was 
tried without the intervention of a jury, and but one excep- 
tion was taken, and that was to the action of the court upon 
the prayers asked for by the respective parties. The court, 
by its granted instruction, decided there was no sufificient 
evidence to entitle the appellant to recover. The judgment 
being against him, the appellant has appealed. 

The following facts appear from the record : In July, 1904, 
the appellant and the appellee, together with two other per- 
sons, all members of the Order of Elks, occupied the same 
room in a hotel in the city of Cincinnati, on the occasion of a 
convention of the members of that order. During the night 
the watch of the appellee was lost, under circumstances which 
led to the belief that it had been stolen. Notice was given by 
the appellee of his loss, and extensive searches therefor were 
instituted by officers and detectives throughout the hotel and 
elsewhere, without, however, obtaining any clue as to the 
manner of its mysterious di.sappearance. The appellee ob- 
tained no information about his watch until the 7th of Decem- 
ber, 1904. About that time the appellant had an interview 
with a Mr. Lyons, since deceased, a detective in the city of 
Baltimore. After pledging him not to reveal what he was about 
to tell him, Lyons told the appellant that the appellee could re- 
cover his watch, ' ' but would have to i)ay for it " ; that * ' parties 
outside the state had communicated with him, and told him 
they would accept three hundred and fifty dollars for it." 
Neither at that time nor subsequently was the appellant in- 



374 American State Reports, Vol. 115. [Maryland, 

formed who these persons were, and he never knew more of 
the matter that was communicated to him by the detective 
Lyons. It was shown that on that occasion Lyons employed 
the appellant "to communicate this information to Mr. Wie- 
man, and if Mr. Wieman was satisfied to accept the proposi- 
tion, to turn over the money to Lyons and get the watch and 
return it to Wieman." The appellant also stated in evidence 
and there is nothing to contradict or in any respect impeach 
it, that he knew of the loss of the watch and believed it had 
been stolen; but he had no knowledge as to that fact or the 
manner of its loss, other than '^^^ that which Wieman him- 
self communicated to him. The appellant communicated this 
conversation to the appellee. At first the latter refused to 
pay anything; but, after several weeks, he agreed to give three 
hundred dollars if the watch could be returned to him in good 
condition. The appellant so informed Lyons, and the sum 
was then agreed to. The appellant testifies, without being 
contradicted, that the state of his knowledge at that time 
was that "Mr. Wieman agreed to pay the money; that the 
watch was at that time outside the state, and that it was 
sent for at his [Wieman 's] request, through him, and that 
Lyons would not have sent to New York for the watch ex- 
cept Mr. Wieman had authorized me to tell him to have it 
sent for, and that he [Wieman] would pay the three hundred 
dollars for it." 

It was under these circumstances that the appellee and ap- 
pellant met on the 4th of April to carry out the understandinij 
between them as to the return of the watch. Wieman 's ac- 
count of the conversation is substantially as follows: Schirm 
asked Wieman, "Have you got the money?" "Wieman re- 
plied he had a check"; that he paid everything by check, and 
besides, he said, "Suppose he gave a check and that fellow 
should pocket the money, and keep the watch too, he would 
have no redress," and "How do I know the watch is not all 
battered up?" He, Wieman, then suggested to call in Hen- 
negen & Bates, and let them examine the watch. Schirm ob- 
jected to this. Wieman then proceeds: "There is no shenan- 
igan about this. I was to say this and when I did make that 
remark I felt a little guilty, because there was some scheme 
arranged beforehand to have a deputy sheriff there, and to 
seize it, 'but I told him there was no shenanigan about it.' I 
wanted the watch at any price." He, Schirm, said, "Well, 



June, 1906.] Schirm v. Wieman. 375 

I will tell you what I will do, I will go to your bank and cash 
that check. I will first go to the other party and show them 
I have got the check." In reference to the last statement, 
the testimony of the appellant is, that he (Schirm) said, "I 
will go over to the Fidelity and Deposit Company and get 
it cashed, because I will have to deliver the cash for it." 
Upon this conversation the appellee delivered the check on 
the Drovers' and Mechanics' '^'* National Bank to the ap- 
pellant, who indorsed it and had it cashed at the Fidelity and 
Deposit Company after it was indorsed by Schirm. With the 
proceeds Schirm obtained the watch and delivered it to the 
appellee. The payment of it was the same day stopped hy 
Wieman, and the appellant afterward was compelled to make 
it good, and has not since been reimbursed. 

It is contended that under these circumstances there can be 
no recovery, because the consideration of the check was the ad- 
vancement of money to be used for an illegal purpose — that 
is, for securing the return by a thief of property alleged to 
have been stolen. It undoubtedly is a correct principle that 
one who furnishes funds to another whom he knows, or has 
every reason to believe, intends to devote them to the per- 
petration of crime, and that they were procured for that 
purpose, will not be allowed to maintain an action on his 
contract. He cannot do so, for the reason that, as was said 
by Judge Story in his Conflict of Laws, section 253, "no one 
can hesitate to say that such a man voluntarily aids in the 
perpetration of the fraud, and, morally speaking, is almost, 
if not quite, as guilty as the principal offender": Hanauer 
V. Doane, 79 U. S. 342, 20 L. ed.'439. But is that the case 
with which we are now dealing? Was it intended by any of 
the parties to perpetrate a crime with the proceeds of a 
check? The purpose, as shown, was to employ it in an 
arrangement having for its object the return of the watch, 
by the supposed thief, to its real owner. Unless this object 
was for some sufficient reason fraudulent, or legally wrong, 
or contrary to public policy, the act of the appellant in 
advancing or otherwi.se procuring the money on the appellee's 
check cannot be ^so tainted as to preclude the recovery by 
the appellant of the amount paid him on that account. And 
this legal conclusion would be equally sound, even though in 
the transaction in which he advanced his own money or credit 
for the use of the appellee, the appellant was acting as the 



376 American State Reports, Vol. 115. [Maryland, 

agent of the detectire, or even of the thief, inasmuch as it 
was on the credit of the appellee that he acted, unless by so 
doing he participated in some wrong act. 

•*** It seems to be dear that unless it can be maintained 
that it was illegal or morally wrong, or contrary to public 
policy, for the appellee to pay money to the detective or to 
anyone else, for the purpose of recovering his own property, 
the legal right of the appellant to recover from Wieman in 
this case cannot be questioned. Now, was it illegal or morally 
wrong, or contrary to public policy, for Wieman to pay more 
money to secure the recovery of his own property which pre- 
sumably had been stolen? The solution of this question de- 
pends upon the nature of the act and its effect upon the 
public interest. Every case of larceny may be considered 
from two points of view: first, with respect to th? interest of 
the general public in the matter, and then as to the interests 
of the real owner of the lost property. As to the first, it 
seems to be clear that the public has no property interest, and 
indeed no other interest, except such as grows out of its duty 
to protect property and enforce its laws in the interest of the 
public. For these reasons, it is of public interest and in ac- 
cordance with public policy that the laws for the protection 
of property shall be effective, in order that the offenders may 
be promptly apprehended and convicted. Therefore, all pro- 
posed agreements made with the thief or with anyone, by 
which the apprehension of the criminal, his trial or conviction 
may be prevented or obstructed, are contrary to public policy, 
and absolutely void. With respect to the personal property 
interests of the real owner, the public has no particular con- 
cern. There can be no reason assigned why the owner of 
stolen property cannot pursue his own interest as he deems 
proper, so long as there is no interference with the proper en- 
forcement of the laws in the pursuit, apprehension and con- 
viction of the criminal. The owner may properly take no 
step nor make contracts or arrangements that in any respect 
will interfere with the performance of these things. He may 
sue the thief or others in the possession of the stolen prop- 
erty in replevin or by any other appropriate proceeding, and 
it seems to be without reason to deny him the right to negotiate 
for the return of any of the property he could sue for, pro- 
vided he agrees to nothing that ^"^*^ has the object or effect of 
obstructing, impeding or preventing the apprehension or con- 
viction of the criminal. Upon a contract containing such 



June, 1906.] Schibm v. Wieman. 377 

features, having such a purpose or effect, there can be no re- 
covery; it is contrary to public policy and void; and, it may 
be added, that if anyone advances money for such a purpose, 
participates in the illegal purpose, and his contract for that 
purpose is tainted, contrary to the public interest and is void. 

There seems to be a wide concurrence in the general prin- 
ciple that a contract for the return of stolen property to the 
true owner is not void, as being contrary to public policy, so 
long as it does not interfere, or tend to interfere, with the 
public interest and duty respecting the apprehension or con- 
viction of the criminal. It was stated by the supreme court 
of the United States in Pope Mfg. Co. v. GormuUy, 144 U. S. 
224, 12 Sup. Ct. Rep. 632, 36 L. ed. 414, that "ordinarily 
the law leaves to parties the right to make such contracts as 
they please, demanding, however, that they shall not require 
either party to do an illegal thing, and that they shall not 
be against public policy or in restraint of trade." 

In Burnett v. Weber, 125 N. Y. 22, a suit to foreclose a 
mortgage, given to secure to the plaintiff pa%Tnent for goods 
stolen, the defense set up was that it was given to compound 
a felony; the court held that it was necessary "to show that 
there was some agreement or promise on the part of the 
mortgagee to forbear prosecution for the crime, or to suppress 
evidence that would tend to prove it." So in Ford v. Cratty, 
52 111. 313, an attorney who retained and refused to pay over 
money of his client, was shown a warrant for embezzlement, 
and told that unless he paid or secured the claim the prosecu- 
tion would be pushed to a conclusion. It was held not to be 
regarded as having been given to compound a felony. The 
same view is maintained in Brittin v. Chegary, 20 N. J. L. 
625; Deere v. Wolff, 65 Iowa, 32. 21 N. W. 168. 

In Ward v. Lloyd, 7 Scott (N. R.), 499, 46 Eng. Com. L. 
785, it was moved to set aside a warrant on the ground that 
it was founded upon an illegal consideration, namely, an 
agreement to abstain from prosecuting the defendant for em- 
bezzlement. The court held, ^^'^ per Tindal, C. J., that "this 
is not a case of security given to induce an uninterested party 
to withhold a charge of a criminal nature; there is a just debt 
due from the defendant to the plaintiff"; and Maule, J., said: 
"The plaintiff demanded what he had a perfect right to de- 
mand, viz., the money due him; and the defendant did what 
he was bound to do, namely, give a security for money he was 
bound to pay": Portner v. Kirschner, 169 Pa. 472, 47 Am. St 



378 American State Reports, Vol. 115. [Maryland, 

Rep. 925, 32 Atl. 442 ; Cass County Bank v. Bricker, 34 Neb. 
516, 33 Am. St. Rep. 649, 52 N. W. 575. Many other cases 
of similar import could be cited. A large number of these 
will be found referred to in the sixth volume of American and 
English Encyclopedia of Law, page 410, and note 6, to the 
effect that it is perfectly lawful for the parties to compromise 
the civil liability arising from the commission of an offense, 
and if this be the sole purpose, it is valid. 

In this case there is no evidence that the appellee agreed to 
compound the felony or intended to do so. In fact the proof 
isr not clear that it was the thief who had the possession of the 
watch. Rlany circumstances might have then existed which 
would show that the person for whom the detective was acting 
came into its possession without having been guilty of a crime. 
But without laying much stress upon this, the evidence makes 
it clear that the purpose of the appellee was solely to regain 
his property, and in his efforts to do so carefully refrained 
from making any terms other than upon the paj'ment of the 
money he was to receive his property. In Brittin v. Che- 
gary, 20 N. J. L. 625, the court said of a transaction similar 
in some respects to this, that it was "merely getting his own 
money. ' ' 

We hold that Wieman, in paying the money and receiving 
the property, did not violate any rule of law, and therefore 
the act of Schirm in having the check cashed upon his in- 
dorsement, does not now preclude him from recovering from 
Wieman the amount which in consequence thereof he has "had 
to pay. 

It follows that the plaintiff's first prayer should have been 
granted and the first of the defendant rejected. The other 
prayers were properly refused. 

Judgment reversed, with costs to the appellant, and new 
trial awarded. 



It w Neither Unlawful nor Against Public Policy for au embezzler 
to voluntarily give a bond with sureties for the return of the money 
which he has wrongfully taken: Portner v. Kirschner, 168 Pa. 472, 
47 Am. St. Rep. 925; Miller v. Minor Lumber Co., 98 Mich. 163, 
39 Am. St. Rep. 524. And the owner of goods stolen or wrongfully 
taken has a right to receive compensation for the injury sustained, 
and may take a note signed with sureties therefor. In such a case, 
unless there is an agreement not to prosecute or to suppress evidence 
of the crime, the defense of compounding a felony is not available 
against the note: Cass County Bank v. Bricker, 34 Neb. 516, 33 Am. 
St. Rep. 649. 



June, 1906.] Doan v. Asceksion Parish. 379 



DOAN V. ASCENSION PARISH. 

[103 Md. 662, 64 Atl. 314.] 

CORPOEATIONS, Devises to. — The Misnomer of a Corporation 
will not defeat a devise or bequest to it if its identity is otherwise 
sufficiently established, (p. 381.) 

TEUST, When not Created. — The legal owner of property is 
prima facie entitled to its beneficial enjoyment, and to convert him 
into a trustee, there must be a sufficient indication of the inten- 
tion of the parties that he is to hold for the benefit of others, (p. 
382.) 

A TBUST cannot Exist when the same person possesses both 
the legal title and the right to the beneficial enjoyment, (p. 382.) 

TEUST, When not Created by Devise to the Vestry of a Church. 
A devise to the vestry of Ascension Church to be used for such 
church purposes as the rector of the church may direct, accompanied 
by a statement that it is the purpose and desire of the testator that 
the property shall be under the control of the rector of the churcu 
and be used for such work as he may deem best for the interest 
of the church, does not create a trust, for the reason that the devise 
gives both the legal title and the beneficial interest in the property 
to the vestry of the church, to be used for its corporate purposes. 
The power given to the rector is a naked collateral power, repugnant 
to the fee devised to the vestry, and therefore void. (p. 386.) 

James A. C. Bond, Stevenson A. Williams and F. Neal 
Parke, for the appellant. 

John Milton Reifsnider and Guy W. Steele, for the ap- 
pellee. 

*^ PEARCE, J. This is an appeal from a judgment of 
the circuit court for Carroll county in an action of ejectment 
brought by Lucretia E. Doan, George L. Van Bibber and 
others, against "The ®**^ Vestry of the Parish of the Ascen- 
sion of Carroll County," a body corporate of the state of 
^larj'land, and "The Order of the Holy Cross of Westminster. 
Maryland," also a body corporate of the state of ]Maryland, to 
recover thirteen undivided eighteenths of a parcel of land 
lying in Westminster, in Carroll county, Maryland, and fully 
described in the declaration. The case was tried below with- 
out a jury on an agreed statement of facts, providing that if 
the court should be of opinion that the plaintiffs were entitled 
to recover, then the court should enter judgment accordingly 
with one cent damages and costs; but if the court should be 
of opinion that the plaintiffs were not entitled to recover, 



880 American State Reports, Vol. 115. [Maryland, 

then jadgment should be entered for the defendants, with 
costs, reserving the right of appeal to either party. 

It appears from the statement of facts: 1. That Lucretia E. 
Van Bibber, being seised in fee of the parcel of land describ- 
ed in the declaration under a valid conveyance thereof, 
erected certain buildings thereon, and on September 25, 1892, 
conveyed said land and buildings to the defendant, "The 
Order of the Holy Cross of Westminster, Maryland, ' ' so long 
as it should use said land and buildings for the corporate -pur- 
poses mentioned in its certificate of incorporation, with a 
proviso that if it should cease to use the same for such cor- 
porate purposes, then the title thereto should revert to, and 
vest in, the said Lucretia E. Van Bibber, her heirs and as- 
signs. 2. That the said "The Order of the Holy Cross of 
Westminster, Maryland," without ever obtaining the sanc- 
tion of the legislature of Marj-land to said conveyance, en- 
tered into possession of said land and buildings upon the ex- 
ecution and delivery of said conveyance, and continued to use 
the same for its corporate purposes until April 24, 1905, when 
it finally abandoned the user thereof for its corporate pur- 
poses. 3. That the said Lucretia E. Van Bibber died Febru- 
ary 8, 1896, leaving a last will and testament duly executed 
and admitted to probate by the orphans' court of Carroll 
county, whereby, amongst other things, she devised as follows : 
"T\Tiereas, I have heretofore, by deed dated September 25, 
1892, granted ****^ and conveyed a parcel of land containing 
one acre, one rood and four perches of land more or less to 
'The Order of the Holy Cross of Westminster, Maryland' (a 
body corporate of the state of Maryland), subject to the fol- 
lowing condition: 'That in the event said Order of the Holy 
Cross should at any time hereafter abandon said premises for 
the uses in its certificate of incorporation mentioned, then in 
that event said land and premises, with the buildings and im- 
provements thereon, shall revert to me, my heirs and assigns,' 
as appears by said deed — and desiring to provide for the dis- 
posal of said property in the event of the abandonment and 
the reversion of the same, as in said deed set forth, I give and 
devise said land in said deed described and thereby conveyed, 
to the Vestry of Ascension Church, Ascension Parish, in West- 
minster, Carroll county, Maryland, to be used for such church 
purposes as the rector of said church shall or may direct, it 
being my purpose and desire that the said land and buildings 
thereon shall be under the control of the rector of tlie Aseen- 



June, 1906.] Doan v. Ascension Parish. 381 

sion Church, and shall be used for such work as he may deem 
for the best interest of Ascension Church"; 4. That upon the 
abandonment of said land and buildings as aforesaid, the 
said Order of the Holy Cross of Westminster, Maryland, sur- 
rendered and delivered the actual possession of said land and 
buildings to "The Vestry of the Parish of the Ascension of 
Carroll County," one of the defendants, which accepted said 
delivery and possession, and entered upon said lands and 
buildings, and now holds the same, and has ever since rented 
the same by the direction and with the consent of the rector 
of said church, the money derived therefrom being used for 
the purposes of the Ascension Church, it now and always 
being the only church within the territorial limits of said par- 
ish, there being but one Ascension Church, and but one Ascen- 
sion Parish in Carroll county, embracing the town of West- 
minster. 5. That since the institution of this suit, at the 
first session of the legislature after the abandonment of said 
premises by the said Order of the Holy Cross, the legislature 
gave its sanction and consent to the devise now in question in 
the will of said Lucretia E. Van Bibber. And 6, That if said 
®^ devise is not valid and effective, then the plaintiffs are 
entitled to thirteen undivided eighteenths of said land and 
premises. 

It will be seen that the corporate name and title of "The 
Vestry of the Parish of the Ascension of Carroll County" is 
not correctly given in Miss Van Bibber's will, it being there 
called "The Vestry of Ascension Church, Ascension Parish, 
in Westminster, in Carroll county, Maryland. " It is too well 
settled, however, to admit of question that the misnomer of a 
corporation will not defeat a devise or bequest to it, if its 
identity is otherwise sufficiently certain. As was said in 
Woman's Foreign Miss. Soc. v. Mitchell, 93 Md. 199, 48 Atl. 
737, 53 L. R. A. 711: "When it is clear who was intended to 
take, the accidental miscalling of the beneficiary's name will 
not invalidate the gift." And again in Reilly v. Union 
Protestant Infirmary, 87 Md. 668, 40 Atl. 894, it was said: 
"The name is simply descriptive of the legatee. The name is 
no more the legatee than is the name of an individual the in- 
dividual himself." It is too obvious for argument, upon ref- 
erence to the agreed statement of facts, that the beneficiary 
was intended to be "The Vestry of the Parish of the Ascen- 
sion of Carroll County," and we understand that this is prac- 
tically conceded by the appellant. 



382 American State Reports, Vol. 115. [Maryland, 

Neither is it denied that Miss Van Bibber had the power 
and right to devise this property, and the sole question pre- 
sented is, whether under a proper construction of the lan- 
guage, the devise is valid or void. 

The plaintiff asserts that this devise creates a trust in its 
subject matter, and that the trust thus created is void, be- 
cause its objects are not ascertained, and also because, even 
if ascertained, it is a perpetuity; while the defendants eon- 
tend that the devise is of a fee simple estate, to the Vestry of 
the Parish of the Ascension, and not a trust, and that the 
only construction of the subsequent clause relating to the 
control of the said land and buildings by the rector of the 
parish is that it is an attempt to ingraft upon the fee a naked 
collateral power to cut down the fee, to which the law will 
not permit effect to be given. 

Mr. Hill, in his work on Trustees, fourth American edition, 
star page ^^^ 44, says : * ' Before the relation of trustee can be 
constituted, there must necessarily exist: 1. A subject matter 
for a proper trust ; 2. A person competent to create a trust ; 
3. One capable of holding property as trustee ; and 4. A per- 
son for whose benefit the trust property is held, who is known 
by the somewhat barbarous appellation of cestui que trust. ' ' 

In the case at bar the land and buildings devised are proper 
subject matter for a trust; the devisor is competent to create 
a trust, and the devisee is capable of taking and holding prop- 
erty as a trustee ; but there must still be found within the 
terms of the devise a cestui que trust. On page 55 IVIr. Hill 
says: "The legal owner' of property is prima facie entitled to 
its beneficial enjoyment, and in order to convert him into a 
trustee, there must be a sufficient indication of the intention 
of the parties that he should hold the estate for the benefit of 
others." To effect this conversion there must be "a proper 
declaration of the trust, for it is not the legal conveyance or 
transfer of the property, but the declaration of the trust, that 
operates in the creation of the trustee": Hill on Trustees, 4th 
Am. ed., 64. 

It is apparent, therefore, that wherever a trust is alleged to 
be created by any instrument or instruments, there must be a 
separation of the legal estate from the beneficial enjoyment, 
and that a trust cannot exist where the same person po-ssesses 
both. As expressed by Mr. Lewin in his work on Trusts, 
volume 1, page 14, first American edition: "A trust is u 
confidence reposed in some other than the cestui que trust, 



June, 1906.] Doan v. Ascension Pabish. 383 

for which the cestui que trust has no remedy but by sub- 
poena in chancery; .... for as a man cannot sue a sub- 
poena against himself, he cannot be said to hold upon trust 
for himself. If the legal and equitable interests happen to 
meet in the same person, the equitable is forever merged in 
the legal." INIr. Lewin is equally explicit as to the necessity 
of a proper declaration of trust, saying on page 83: "It is 
essential to the creation of a trust that there should be the 
intention of creating a trust, and therefore, if, upon a con- 
sideration of all the circumstances, the court is of the opinion 
that the settler did not mean to create a trust, the court will 
not impute a trust where none in fact was contemplated." 

**'' In Bennett v. Humane Impartial Soc, 91 Md. 10, 45 
Atl. 888, this court said: "Whilst no set form of words is 
required to create a trust, if there be an intention to create 
one, still there must be a manifestation on the face of the 
will of such an intention before a trust will be declared. The 
particular circumstances which denote such an intention are 
necessarily variant ; but it may be generally affirmed that 
where there is a gift to one for the use of another, or whert3 
the legatee or devisee is clearly designed to have no beneficial 
interest in the property given to him, a trust for the benefit 
of some one was intended to be created, and this conclusion 
would result either from the words used, or from the legal 
effect of the instrument itself. In the one case there would 
be an express declaration of a trust, in the other there would 
be a trust by construction, but in both it is essential that 
there should be an intention to create a trust, or none will 
arise. ' ' 

It is obvious that there is in this will no express declaration 
of any trust, and if any can be declared to exist, it must rest 
upon implication derived from the language of the will, and 
it is contended by the plaintiffs that the words following the 
devise to the vestry, viz., "to be used for such church pur- 
poses as the rector of said church shall or may direct, it being 
my purpose and desire that the said land and buildings 
thereon shall be under the control of the rector of the Ascen- 
sion Church, and shall be used for such church work as he 
may deem for the be.st interest of Ascension Church," creates 
a trust for indefinite purposes or beneficiaries. Let us see, 
then, what is meant by the "church purposes" and "church 
work" which is here referred to. If there were anything in 
this will to justify the conclusion that Miss Van Bibber meant 



384 American State Reports, Vol. 115. [Maryland, 

thereby general or diocesan missions, or any of the charitable 
or religious objects which the Christian church at large is 
concerned in, there might be ground for holding that the 
Vestry of the Parish of the Ascension of Carroll County^ was 
not designed to take the beneficial interest in the property 
devised to it, and was only designed to be the administrator 
of its benefits to these indefinite beneficiaries, but this inten- 
tion must **** be deduced from some rational and substantial 
analysis of the will, and not from abstract speculation merely. 
If the contention of the plaintiffs is to prevail, they will de- 
feat the intention of the testatrix that they should in no event 
have this particular property, and as was said in Bennett v. 
Humane Impartial Soc, 91 Md. 10, 45 Atl. 888: "Courts are 
not, or ought not to be, astute in searching for a construction 
which nullifies a will if there are other equally reasonable 
interpretations which uphold it." 

In Phillimore's Ecclesiastical Law, volume 2, page 1755, 
the word "church" is said to be derived from the two Greek 
words "kurion oikos," the "house of the lord," and this 
plainly appears in the scotch word "kirk." Its primary 
meaning as given in the Century Dictionary is, "an edifice 
or place of assemblage for Christian worship." Several 
secondary meanings are there given, conforming to different 
contexts in which the word is used, among which are the 
following: "An organized body of Christians belonging to 
the same city, diocese or province, as the church at Corinth 
or the Syrian church"; and "a body of Christians worship- 
ping in a particular church edifice or constituting one congre- 
gation." 

It is in this latter sense that the word is used in the code, 
article 23, section 206, which provides for incorporating re- 
ligious societies or congregations generally, and which author- 
izes them to take and hold property and "to use, lease, mort- 
gage or sell and convey the same in such manner as they 
shall judge most conducive to the interest of their respective 
churches, societies or congregations." 

It is used in the same sense in the act of 1798, chapter 24, 
which provides specially for the incorporation of vestries for 
each of the parishes of the Protestant Episcopal Church in 
this state. In section 29 of that act it is declared that "no 
vestry shall sell, alien or transfer any of their estates or 
property belonging to their church or churches without the 



June, 1906.] Doan v. Ascension Parish. 385 

consent of at least five of their body (of which number the 
rector shall always be one), together with the consent of both 
the church wardens ' ' ; and in section 9 of the same act it is 
provided that the ®**® vestry of each parish, for the time 
being, shall have an estate in fee simple in all lands, and 
other property belonging to them, and "shall manage and 
direct all such property as they may think most advantageous 
to the interest of the parishioners." 

In the case of Weld v. May, 9 Cush. 181, the word 
"church," it was contended, meant an indefinite aggregation 
of persons, but the court said, "as commonly used in our law, 
it is synonymous with 'parish' .... and designates an in- 
corporated society." The references above made to code, 
article 23, and the act of 1798, chapter 24, are sufficient to 
show that as the word is used in the law of Marjdand, it is 
synonymous with the corporate entity holding the title to its 
property. The devise in this will is to "the Vestry of As- 
cension Church, Ascension Parish, in "Westminster, Carroll 
County, Maryland," and when she added, "to be used for 
such church work or church purposes as the rector of said 
church may deem for the best interests of Ascension Church, ' ' 
it is, we think, obvious, in the light of what we have said 
as to the meaning of the word "church," that she meant 
"parish" purposes and "parish" work — that is, the purposes 
and work of the Vestry of the Parish of the Ascension of 
Carroll County, or, for the corporate work and purposes of 
the vestry of that parish. This purpose would be sufficiently 
clear if the last clause in the devise had been omitted, but it 
is distinctly asserted and emphasized in that clause where 
the "church work" previously mentioned is declared to be 
such as the rector should deem best, not for the interest of 
the church at large, but of Ascension Church. 

In Domestic and Foreign Miss. Soc. of the Protestant 
Episcopal Church of the United States of America v. Gaither, 
62 Fed. 422, there was a bequest of five thousand dollars to 
the society above named with a request and desire that it be 
applied to domestic missions. Judge Morris said: "This 
society has for its immediate object two purposes — one domes- 
tic, the other foreign, missions. It would seem, therefore, 
that money given to the corporation as this was is not to be 
held by it upon any trust, but is to be expended by it in the 
missionary work which it carries on in the United States. 

Am. St. Bep., Vol. 115—25 



386 American State Reports, Vol. 115. [Maryland, 

.... This is not a case ^^ in which there is a trust, or 
trustee and cestui que trust. It is a direct expenditure by 
the corporation for the very purpose for which it was created. 
It is, therefore, not within the ruling in Church Extension 
Soc. V. Smith, 56 Md. 362, and is stronger than Eutaw Place 
Bap. Church v. Shively, 67 Md. 493, 1 Am. St. Rep. 412, 10 
Atl. 233, in which the court sustained the validity of the be- 
quest as being one for the corporate use of the donee." 

So, in Look's Case, 7 N. Y. Supp. 298, a bequest to the 
American Bible Society, to be used for the promulgation of 
the Holy Bible, was held to be a gift limited to the very use 
for which the donee was incorporated, and not a trust for an 
indefinite beneficiary. 

Holding, as we do, that the purposes and uses for which 
she desired this property to be used were the corporate pur- 
poses of the donee, it is immaterial that she wished the rector 
to determine for which of these corporate uses it should be 
employed, or whether this was determined by the rector or 
by the vestry. Inasmuch as the whole beneficial interest in 
the property is given to the Vestry of the Parish of the 
Ascension, the true reading of the will is, that the estate given 
is not an estate given in trust, but one devised to the corpora- 
tion for its general and corporate purposes: Bennett v. Hu- 
mane Imp. Soc, 91 Md. 10, 45 Atl. 888; Woman's Foreign 
Miss. Soc. V. Mitchell, 93 Md. 199, 48 Atl. 737, 53 L. R. A. 
711. The legal estate and beneficial interest, being thus 
vested in the defendant, the estate it takes is an absolute fee 
simple. The rector has neither estate nor interest in the sub- 
ject of the devise, and the power which the testatrix desired 
to be exercised by him of designating the particular corporate 
uses to which it should be applied was not to be exercised for 
his own benefit or that of another, but for that of the vestry 
alone. It is therefore a naked collateral power, repugnant 
to the fee devised to the vestry, and for that reason void. 
As was said in Smith v. Clark, 10 Md. 186, "No interest in 
terms is attempted to be reserved or carved out of the land 
for any other person, the enjoyment of the whole estate being 
the benefit intended by the testator there to be conferred 
upon the devisee," but he attempted to do that which the 
law will ®'^* not permit him to do, namely, to prescribe the 
mode by which this benefit or property, during all time, was 
to be enjoyed by the devisee, .... which would be wholly 



June, 1906.] Doan v. Ascension Parish. 3S7 

inconsistent with a fee simple interest, as well as public 
policy. ' ' 

For the reasons assigned the judgment will be affirmed. 

Judgment affirmed, with costs to the appellees above and 
below. 



To Constitute an Express Trust, there must be either an explicit 
declaration of trust, or circumstances which show beyond a reason- 
able doubt that a trust was intended to be created: Beaver v. 
Beaver, 117 N. Y. 421, 15 Am. St. Rep. 531. See, too, Estate of 
Smith, 144 Pa. 428, 27 Am. St. Eep. 641; Eandall v. Randall, 135 
111. 398, 25 Am. St. Rep. 373. 

To the Constitution of Every Express Trust there must be a trustee, 
an estate to vest in him, and a beneficiary. If property is devised 
to persons, to hold in trust for their own benefit, no trust is created, 
but they take both the legal and the equitable estate; for these two 
estates cannot be separately maintained in the same persons: Greene 
V. Greene, 125 N. Y, 506, 21 Am. St. Rep. 743. 

The Misnomer in a Will of a Legatee or devisee is not material, 
if the will phows who was intended; and extrinsic evidence is ad- 
missible, in case of ambiguity or obscurity, to show who was meant: 
See the note to Chappell v. Missionary Society, 50 Am, St. Rep. 
287. 



CASES 

IN THE 

SUPREME COURT 

OF 
MICHIGAN. 



ROLFE V. LAKE SHORE AND MICHIGAN SOUTHERN 
RAILWAY COMPANY. 

[144 Mich. 169, 107 N. W, 899.] 

CABBIEBS, Connecting, Presumption as to the One on Whose 
Line Damage Occurred. — Where goods are transported by successive 
carriers, and an action is brought to recover against the terminal 
carrier for damage to the goods, it is not enough to show that they 
were delivered to the initial carrier in good condition, but the plain- 
tiflf must further prove that they remained in such condition when 
received by the defendant. There is no presumption that the dam- 
age was suffered on its road rather than on that of the initial car- 
rier, (p. 389.) 

Action to recover for injuries to personal property. Judg- 
ment for the plaintiff, and the defendant appealed. 

Weaver, Morgan & Priddy, for the appellant. 

Bird & Sampson, for the appellee. 

!''» MONTGOMERY, J. The plaintiff's consignor deliv- 
ered to the Chicago, Burlington and Quincey Railway, at Den- 
ver, for shipment to plaintiff at Adrian, Michigan, an automo- 
bile of the value of sixteen hundred dollars, in good condi- 
tion. The ear was shi.pped by the Chicago, Burlington and 
Quincey Railway in B. & A. car No. 11,601. It was ac- 
cepted by defendant in the same car in Chicago, and was for- 
warded in that car to Adrian. On opening the car at Adrian 
it was found that the automobile had never been braced in the 
car, and that its motion back and forth on the floor of the car 
had been guarded against in no other way than by nailing 
across the car in front of the front wheels and back of the 
rear wheels a two by four strip ; that the automobile had been 
jolted over these strips, so that any jolting of the car would 
cause the vehicle to run back and forth on the car floor; that 

(388) 



May, 1906.] Rolfe v. Lake Shore etc. Ry. Co. 389 

this had resulted in serious damage. The plaintiff recovered 
for the entire damage, and defendant brings error. 

The questions discussed were saved by appropriate excep- 
tions, and proper assignments of error were duly filed. The 
important question is whether a case was made meeting the 
requirements laid down in the two cases of Marquette etc. R 
Co. V. Langton, 32 Mich. 251, and Marquette etc. R. Co. v. 
Kirkwood, 45 :\rich. 51, 40 Am. Rep. 461, 7 N. W. 760. These 
two cases establish the rule for this state that where goods are 
transported by successive carriers, and an action brought 
again.st the terminal carrier for damage to the goods, it is not 
enough to show that the goods were delivered to the initial 
carrier in good condition, but it is incumbent upon the plain- 
tiff to show that they were in good order when received by the 
defendant. We feel ^''^ bound to adhere to this rule, which 
has prevailed in this state for more than thirty years. 

The plaintiff's counsel does not ask us to depart from the 
rule of these cases, but insists that he has brought his case 
within it. The plaintiff's brief assumes that the machine was 
reloaded by defendant at Chicago. Of this we discover no 
evidence whatever. On the contrary, the inference is entirely 
the other way, as the machine came through from Denver to 
Adrian in the same car. Can it be assumed that the damages 
to this car were caused by defendant, rather than the initial 
rciad? Certainly, there is no proof of the fact. There is no 
testimony tending to show that this car was subjected to any 
unusual jolting by defendant while under its control. If the 
inference be that the automobile was jolted from its insecure 
position by the ordinary action of a freight train, it should 
be noted that the car was transported by the initial road a 
much greater distance than the defendant hauled it, and was 
subject to the same vicissitudes. The inference is therefore 
as strong, if not stronger, that the damage was caused by the 
initial carrier as that it was caused by defendant. It must be 
held that the proofs failed to fix the responsibility upon de- 
fendant. 

Judgment reversed, and new trial ordered. 

McAlvay, Grant, Blair and Ostrander, JJ., concurred. 



The Liability of an Initial Carrier for the torta and negligence of 
connecting lines is discussed in the note to Pennsylvania Co. v. Lof- 
tis, 106 Am. St. Rep. 604; and the burden of proof as between con- 
necting carriers to show who is at fault for a loss or injury is dis- 
cussed in the note to Beede v. Wisconsin Cent. Ky. Co., 101 Am. St, 



if 



390 American State Reports, Vol. 115. [Michigan, 

Eep. 392. It has recently been held, and probably in accordance 
with the better opinion and weight of authority, that when an initial 
carrier receives freight in good order, the law presumes that each 
successive carrier between the first and the last receives it in good 
order; and that this presumption, working through to the last car- 
rier, who delivers it in bad order, leaves the responsibility with him, 
unless he can show that the damage occurred prior to his receiving 
the freight: St. Louis etc. By. Co. v. Coolridge, 73 Ark. 112, 108 Am. 
St. £ep. 2L 



DETROIT SOUTHERN RAILROAD COMPANY v. MAL- 

COMSON. 

[144 Mich. 172, 107 N. W. 915.] 

SALE OF PEOPEETY F. O. B. Cars, Title to, When Does not 
Pass to the Purchaser. — Under an agreement for the sale and pur- 
chase of all the coal f. o. b. cars which the purchaser may require 
during a specified j'ear for the use of an illuminating company, mine 
weights to govern all settlements, no title passes to the purchaser 
until the coal is delivered on such cars, and he hence cannot recover 
for the unlawful confiscation of the coal before it arrives at the 
railroad tracks. Nor is this result affected by the sending of postal 
cards by the seller to the purchaser announcing the shipment of the 
coal. (p. 393.) 

Assumpsit for freight charges. The defendant interposed 
a counterclaim for coal confiscated by the plaintiff. The trial 
court directed a verdict for the plaintiff, and the defendant 
brought error. 

Anderson & Rackham, for the appellant. 

Dickinson, Stevenson, Cullen, Warren & Butzel, for the ap- 
pellee. 

*'^* BLAIR, J. Plaintiff sued defendant for the freight 
upon certain cars of coal shipped to defendant over plain- 
tiff's railroad by the Superior Coal Company, of Wellston, 
Ohio, under a contract containing the following clauses: 



1T3 << 



CONTRACT WITH DEALERS. 



**Made at Detroit, this 1st day of July, 1901, between the 
Superior Coal Co., Wellston, O., the first party, and A. Y. 
Malcomson, of Detroit, Mich., the second party. 

* ' Said first party agrees to furnish all the coal that may be 
required by said second party, for the use of The Edison 
Illuminating Co., of Detroit (with whom the said second party 
has annual contract), for steam or manufacturing purposes, 



May, '06.] Detroit Southern R. R, Co. v. Malcomson. 391 

until the 30th day of June, 1902, at the following prices, f. o. 
b. Mich. Cent. R. R., viz. : 

"From July 1st, 1901, until June 30th, 1902. 

"Mine run, per ton, $2.05 per net 

"The said second party agrees to purchase from said first 
party all the mine run coal they may require for the purpose 
aforesaid, until said 30th day of June, 1902, and to pay for 
same on or before the 25th day of each month for all coal 
shipped during the previous month. Mine weights to govern 
settlements. ' ' 

Defendant having given notice of setoff, based, among other 
things, upon the confiscation by plaintiff of numerous cars 
of coal shipped under said contract, before they arrived at 
the jMichigan Central Railroad tracks, waived the benefit of 
his plea of the general issue, admitted the plaintiff's claim, 
and assumed the affirmative of the issue upon his notice of 
setoff. The court held that defendant's contract provided for 
a delivery of the coal on the Michigan Central tracks at 
Detroit, and that the coal having been confiscated before it 
was so delivered, he had no title thereto, and could not re- 
cover for its loss. In accordance with this view of the con- 
tract, a verdict was directed for plaintiff. 

Defendant contends that the court erred in his construction 
of the contract; that while the letters, f. o. b., usually import 
delivery at the point designated, it is apparent that, in the 
contract in question, delivery of the coal to the plaintiff rail- 
road company was intended by the parties to be a delivery to 
the defendant, and it is said: "There are two features in this 
contract strongly indicating this intention: 1. 'Mine weights 
to govern settlement.* This language means that defendant 
had to ^^^ pay the Superior Coal Company for this coal on 
the basis of the weights of the coal at the mines where it was 

delivered on cars for transportation to defendant 2. 

The contract provides: 'Said second party agrees to purchase 
from said first party all mine run coal .... and to pay for 
same on or before the twenty-fifth day of each month for all 
coal shipped during the previous month.' 

"The words, 'for all coal shipped during previous month' 
are also significant, we contend, in that they plainly show 
when the parties to the contract themselves regarded the re- 
sponsibility of the Superior Coal Company for the coal 
shipped under it at an end, and that shipment and delivery 



392 American State Reports, Vol. 115. [Michigan, 

by the Superior Coal Company to defendant were concurrent 
and not separate acts." 

It is also contended that the letters, f. o. b., are used "to 
qualify, fix and determine a certain essential feature of the 
contract, viz., the price. The language, 'prices f. o. b.' was 
not used unadvisedly by the parties to the contract. These 
words are not synonymous with 'delivery f. o. b.' nor with 
*f. o. b. ' standing by itself. In interpreting the language, 
therefore, it should be given that interpretation which the 
parties themselves sought to put upon it, viz. : The basis of 
price of the coal, and not the interpretation which plaintiff's 
counsel and the court below sought to arbitrarily place upon 
it, viz. : The place of delivery of the coal. Particularly is 
this so when an entire reading of other portions of the con- 
tract, as we have seen, clearly show that a contrary intention 
as to place of delivery between the parties existed. The lan- 
guage related and was intended by the parties to it to relate 
entirely to prices, and not to indicate the place where title 
to the coal passed. It is equivalent to the following: 'At the 
following prices less freight to Michigan Central R. R. ' "; 
citing A. J. Neimeyer Lumber Co. v. Burlington etc. R. R. 
Co., 54 Neb. 327, 74 N. W. 670, 40 L. R. A. 534. 

The contract is clear and unambiguous and was properly 
construed by the court. The words, ' ' free on board, ' ' in such 
contracts have acquired a settled judicial meaning: Vogt v. 
Schienebeck, 122 Wis. 491, 106 Am. St. Rep. 989, 100 N. W. 
820, 67 L. R. A. 756. 

There is nothing in the clauses referred to by defendant's 
counsel or elsewhere in the contract which militates ^'^'^ against 
the usual meaning of the words ; nor was there any evidence 
outside of the contract to warrant a different construction. 
The opinion of Commissioner Ragan in the Nebraska case, 
cited supra, supports defendant's contention that the letters, 
f. o. b., relate to the price merely, but none of the other mem- 
bers of the court concurred with him upon this point, and 
Norval, J., dissented in an able opinion supported by the cita- 
tion of numerous authorities. Plarrison, C. J., Sullivan, J., 
and Irvine and Ryan, CC, concurred "in the conclusion 
reached by Commissioner Ragan, on the ground that, conced- 
ing, for the purposes of this case, that the use of the ex- 
pression 'Prices f. o. b. Omaha' might of itself afford a pre- 
sumption that the delivery was to be made at Omaha, and that 
title should there pass, the other evidential facts were suf- 



May, '06.] Deteoit Southern R. R. Co. v. Malcomson. 393 

ficient to ground an inference that title should pass at the 
place of shipment, and the question being one of fact, the 
finding is sustained by the evidence." 

As above stated, there are no such evidential facts in this 
ease requiring a submission of the question to the jury. Alt- 
house V. McMillan, 132 :\rich. 145, 92 N. W. 941, is not in con- 
flict with this conclusion. In that case "the correspondence 
contemplated, and there actually was in this case, in accord- 
ance therewith, a bill of lading procured, which, with the in- 
voice attached, was immediately transmitted to the purchaser. 
This transfer of the bill of lading passed the title to the prop- 
erty in controversy," citing cases. 

In the case at bar there was no bill of lading transmitted to 
defendant. It is claimed that the postal cards sent to de- 
fendant, of which the following is an example, were equivalent 
to a bill of lading, viz. : 

"Mine weights govern settlements. All bills due tenth of 
each month. 

"Jackson, Ohio, 10/28, 1901. 
"A. Y. M. 

* ' In our office we ship this day on your account : 

iTe Initial. Car No. Ton. Grade. Route. 186. 

0.8. 4324 34.50 Lp. Dt. 5 

6534 32.50 " " 6 

6753 31.00 " " 7 

5160 31.50 It ft 8 

5083 32.00 *« «« 9 

"Mine No. 3. 
"Remarks: Weights to follow. 
"Yours truly, 

"SUPERIOR COAL COMPANY." 
Stamped: "Received Oct. 30, 1901. Ansd. ." 

These postal cards were in nowise inconsistent with the con- 
Btniction we have placed upon the contract, and, being con- 
strued in harmony with it, were mere notices to the defend- 
ant that the coal company, in accordance with the contract, 
had shipped the coal for delivery to him free on board the 
cars at Detroit. 

Tlie judgment is affirmed. 

Carpenter, C. J., and McAlvay, Grant and Montgomery, 
J J., concurred. 



394 American State Reports, Vol. 115. [Michigan, 

The Term "F. 0. B. Cars" has a definite moaning in the law of 
sales. A sale f. o. b. oars means that the subject of the sale is to 
be placed on cars for shipment without any expense or act on the 
part of the buyer, and that as soon as so placed the title is to pass 
absolutely to the buyer, and the property be wholly at his risk, in 
the absence of any circumstances indicating a retention of such con- 
trol by thvj seller as security for the purchase money, by preserving 
the right of stoppage in transitu: Vogt v. Schiencbeck, 122 Wis. 491, 
106 Am. St. Rep. 989; Capehart v. Furman F. L Co., 103 Ala. 671, 
49 Am. St. Rep. 00. 



WILCKE V. DUROSS. 

[144 Mich. 243, 107 N. W. 907.] 

JUDGMENT, Relief in Equity Against. — If the process is not 
served on the defendant, equity has jurisdiction to relieve from tbi; 
judgment entered against him. (p. 39.5.) 

JUDGMENT, Relief Against in Equity — Amount Involved. — 
Though a judgment against the defendant is for less than one hun- 
dred dollars, yet if under it property is levied upon of much greater 
value than that sum, equity is not prevented from granting relief 
on the ground that one hundred dollars is not involved, (p. 395.) 

CERTIORARI is not the Proper Remedy for Relief Against a 
Judgment on the Ground that Process was not Served on the defend- 
ant, if the return will not disclose the facts as to the want of such 
service, (p. 396.) 

RELIEF Against a Judgment for Want of Service of Process, 
Though the Defendant E^ew of the Void Service When Made and 
Failed to Take Any Measures to Prevent the Entry of Judgment 
Thereunder. — If, in an action, process is served on the defendant's 
daughter of the same name as herself, and the defendant is at once 
informed of such service, but does not appear and make any objec- 
tion, and permits the case to proceed to judgment and a transcript 
of the judgment to be taken out and levied on her property, whereupon 
she brings suit in equity for relief, such relief must be granted, but 
the court has a discretion to refuse to award her costs, (p. 396.) 

Suit to set aside a judgment and execution on the ground 
that the process was not served on the complainant. The trial 
court dismissed the bill, and the complainant appealed, 

Emil W. Snyder, for the complainant. 

Haug & Yerkes, for the defendants. 

^* MONTGOMERY, J. The defendants Duross and 
"Weber instituted a suit in justice's court to recover of com- 
plainant a demand of sixty-five dollars and forty-seven cents. 
A return of a constable showed service upon complainant 



May, 1906.] Wilcke v. Duross. 395 

Duross and Weber proceeded to take judgment for their claim 
and costs, and later took a transcript to the circuit court, 
caused execution to be issued and placed in the hands of de- 
fendant Dickson, as sheriff, who levied the same upon prop- 
erty, of complainant of the value of two thousand dollars or 
more. Complainant thereupon served notice on Duross and 
Weber, and also upon the sheriff, stating that the judgment 
was void for the want of personal service upon her. 

Complainant soon after filed this bill setting up the above 
facts, and also that she had a just and meritorious ^^^ de- 
fense to the claim of Duross and Weber as she was advised by 
counsel. She prayed that the judgment be set aside and for 
general relief. An issue was made upon the question of ser- 
vice, and the answer also contained a demurrer clause. 

The circuit judge in his opinion found the facts as follows : 
"Through error on the part of the constable, the summons 
of the said cause was served upon the daughter of the said 
complainant, a person by the same name as the complainant. 
The complainant was informed by her daughter of the service 
upon her of the said summons on the evening of the service 
thereof. It appears that the complainant consulted with an 
attorney, and was advised to pay no attention to the said 
suit. Complainant was kept advised of the progress of the 
suit by the attorney; knew of its pendency, and knew that 
judgment had been entered against her, and took no steps 
whatever to protect her rights or guard her interests. Some- 
time during the fall of 1904 levy was made upon her real 
estate in the city of Detroit, and she thereupon filed this 
bill"; but refused relief on the authority of Finn v. Adams, 
138 Mich. 258, 101 N. W. 533. 

The circuit judge, in applying that case, proceeded upon the 
understanding that the judgment there involved was void. 
This is a mistake. That judgment was admittedly good at 
law, and it was sought to set up equitable grounds of attack. 
In this case no jurisdiction was obtained to render judgment 
as against complainant. That a remedy exists in equity to re- 
lieve against such a judgment in a proper case cannot b« 
doubted : 2 Freeman on Judgments, 4th ed., sec. 495. 

The objection that one hundred dollars is not involved is 
answered by the fact that one purpose of the bill is to relieve 
property of much greater value from a cloud: Matteson v. 
Matteson, 132 Mich. 516, 93 N. W. 1079. 



396 American State Reports, Vol, 115. [Michigan, 

Certiorari would not have been an appropriate remedy, as 
no return would have disclosed the true facts: O'Connor v. 
White, 124 Mich. 22, 82 N. W. 664. 

*^® The complainant was entitled to relief. The testimony- 
shows, however, that complainant knew of the service on her 
daughter on the day it was made, that an attorney was con- 
sulted on her behalf at once, and that instead of appearing 
and making objection she permitted the case to proceed to 
judgment, and permitted the transcript to be sued out, and 
permitted the levy to be made before taking any proceedings. 
While we cannot say that she by her inaction conferred juris- 
diction upon the justice, we do hold that when one voluntarily 
chooses a remedy which is designed or the necessary effect of 
which is to impose large costs upon his adversary, when a 
simple, inexpensive remedy is open, the court will, in the exer- 
cise of its discretion as to costs, take into account the op- 
pressive conduct of the complainant. 

The decree will be entered for complainant, but without 
costs of the lower court, and for actual disbursements only 
in this court, exclusive of a solicitor's fee. 

McAlvay, Grant, Blair and Moore, JJ., concurred. 



Belief in Equity, Other than by Appellate Proceedings, Against 
Judgments, decrees, and other judicial determinations is considered in 
the note to Little Rock etc. Ry. Co. v. Wells, 54 Am. St. Rep. 218. 
An action in equity to set aside a judgment at law, although not 
collateral is an indirect attack, as distinguished from a direct attack 
by appeal: Le Mesnager v. Variel, 144 Cal. 463, 103 Am. St. Rep. 91. 
It has been held that to obtain relief in equity against a judgment 
on the ground that process was not served on the defendant, he must 
show that he did not have actual notice of the proceeding before 
the judgment was entered and that he had a .meritorious defense: 
Preston v. Kindrick, 94 Va. 760, 64 Am. St. Rep. 777. For subsequent 
cases on the falsity of the return of process as a ground for relief 
in equity from judgments, see McClung v. McWhorter, 47 W. Va. 
150, 81 Am. St. Rep. 785; Dowell v. Goodwin, 22 R. I. 287, 84 Am. 
St. Rep. 842; Smoot v. Judd, 161 Mo. 673, 84 Am. St. Rep. 738. 



May, 1906.J Beotherton v. Gilchrist. 397 



BROTHERTON v. GILCHRIST. 

[144 Mich. 274, 107 N. W. 890.] 

PARTNERSHIP — Agreement for Joint Adventure and a Shar- 
ing of the Profits, When does not Create. — An agreement between B., 
T., and G., that they will engage in raising sugar beets, that T. is 
to manage the enterprise and receive therefor a stated sum, that B. 
is to contribute his counsel and advice, that G. is to advance the 
capital, that the profits shall be equally divided among the three, 
that G. shall receive no return of his advances until all the other 
obligations are met, and in case there is not enough to meet these, 
B. and T. will each be responsible for one-third of the deficiency, 
does not make G. a partner, and an action cannot be sustained against 
him as such where it was clearly understood that neither of hte others 
had any authority to make contracts which would bind G., nor the 
authority to make contracts to bind them, and that his libility should 
be limited to his advances, (p. 399.) 

PARTNERSHIP, When Created and Whon not.— Though thero 
is a partnership whenever there is a community of property, of inter- 
est, and of profits, there is no partnership if any of these elements is 
missing, (p. 399.) 

William H. Aitken, for the defendant Sanilac Sugar Re- 
fining Company. 

C. F. Gates, for the defendant Trowbridge. 

George P. Codd and Thomas A. E, Weadcock, for the de- 
fendant Gilchrist. 

^""^ CARPENTER, C. J. This is a suit in equity for a 
partnership accounting. The business of the partnership was 
that of raising sugar beets in the county of Huron in the year 
1902. Complainant, defendant Trowbridge, and defendant 
Gilchrist each was interested in this business. Complainant 
and Trowbridge were partners in said business, and the im- 
portant question in the case is whether Gilchrist was also a 
partner. The trial court decided that he was not, and en- 
tered a decree in accordance with that decision. From that 
decree defendants Trowbridge and the Sanilac Sugar Refining 
Company (a creditor of the partnership) appeal. 

They maintain that the trial court erred in deciding that 
Gilchrist was not a partner. The circumstance that the Sugar 
Refining Company stands in the relation of a creditor to tlie 
partnership is unimportant. For it is not claimed that the 
credit owned by that company was so extended as to make 
Gilchrist liable therefor unless he was in fact a partner. We 



898 American State Reports, Vol. 115. [Michigan, 

have, then, to consider only this question, viz. : Was Gilchrist 
actually a partner? The only witnesses sworn in the case 
were defendant Trowbridge and one Andrew Wilson, In de- 
termining the case we have to consider only their testimony 
and certain letters, some of which were written by Trow- 
bridge and some by Gilchrist. This testimony clearly proves 
that Brotherton, Trowbridge and Gilchrist entered into a joint 
venture to raise sugar beets; that Trowbridge was to manage 
the enterprise and receive therefor the sum of one hundred 
and fifty dollars per month ; that Brotherton was to contribute 
his counsel and advice; that Gilchrist was to advance capital 
to the amount of ten thousand dollars; that the enterprise 
was to be ^''^ carried on under the name of Brotherton and 
Trowbridge; that Gilchrist's connection with the venture 
should not be disclosed ; and that the profits should be divided 
equally among the three interested parties. It also appears 
from a letter written by defendant Trowbridge to his code- 
fendant the Sugar Refining Company that Gilchrist should 
"receive no return of his advances until all other obligations 
are met. In case there is not enough left to meet these ad- 
vances by the silent partner, Mr. Brotherton and I each agree 
to be responsible for one-third of the deficit." • Gilchrist did 
in fact advance twenty-two thousand six hundred and fifty 
dollars. The venture proved unsuccessful and he has lost this 
entire amount, unless he can collect a part of it from his 
associates. Though he lAade various suggestions to Trow- 
bridge, Gilchrist took no active part in the business manage- 
ment of the venture. He did, however, on one occasion give 
directions or suggestions ** about plowing where Brotherton 
and Trowbridge were raising beets," and on another occasion 
directed or suggested that certain employes be discharged. 

The law governing this case is stated in the leading case 
of Beecher v. Bush, 45 Mich. 188, 40 Am. Rep. 465, 7 N. W. 
785, as follows: "Except when one allows the public or indi- 
vidual dealers to be deceived by the appearances of partner- 
ship when none exists, he is never to be charged as a partner 
unless by contract and with intent he has formed a relation in 
which the elements of partnership are to be found. And 
what are these ? At the very least the following : Community 
of interest in some lawful commerce or business, for the con- 
duct of which the parties are mutually principals of and 
agents for each other, with general powers within the scope of 



May, 1906.] Brotherton v. Gilchrist. 399 

the business, which powers, however, by agreement between 
the parties themselves, may be restricted at option, to the ex- 
tent even of making one the sole agent of the others and of 
the business": See, also, Canton Bridge Co. v. City of Eaton 
Rapids, 107 Mich. 613, 65 N. W. 761; Dutcher v. Buck, 96 
Mich. 160, 55 N. W. 676, 20 L. R. A. 776. Under this rule 
parties interested in a joint venture are not partners unless 
one of them has (to ^'^'^ quote other language from the opin- 
ion in Beecher v. Bush, 45 Mich. 188, 40 Am. Rep. 465, 7 
N. W. 785) "clothed the other with an agency to act on his 
behalf in this business." Tested by this rule there was no 
partnership. For it is clearly established by the correspond- 
ence in this record that neither Brotherton nor Trowbridge 
had authority to make contracts which would bind Gilchrist. 
It was clearly understood that the liability of Gilchrist should 
be limited to his advances. Neither had Gilchrist authority 
to make contracts which would bind Brotherton and Trow- 
bridge. It is true Trowbridge testifies that Gilchrist referred 
to himself as "a silent partner," and Wilson gives similar 
testimony. This, if we had no other testimony, might be 
convincing, but, under the circumstances, we think that it is 
merely an instance of the use of inexact words to describe a 
relation which was not that of a partner. It is also true that 
after the partnership business was ended, Gilchrist at one time 
announced to Trowbridge his purpose of paying all outstand- 
ing accounts. This announcement was accompanied by no ad- 
mission of liability, and did not enlarge his obligation. 

Nor is this case within the principles of Dutcher v. Buck, 
96 Mich. 160, 55 N. W. 676. The most that can be claimed 
for that case is that it decides that a partnership exists if there 
is "community of property, community of interest and com- 
munity of profits." That decision is not applicable if a single 
one of these elements is lacking. It does not apply if there 
is not community of property : See Canton Bridge Co. v. City 
of Eaton Rapids, 107 Mich. 613, 65 N. W. 761. In the case 
at bar all the evidence in the record bearing on the question 
of community of property in the beet crop is this statement 
(in a letter written by defendant Trowbridge to his code- 
fendant, the Sugar Refining Company) "the silent partner 
(meaning defendant Gilchrist) has no claim whatsoever upon 
the crop." We are bound to say, therefore, that there was 
no community of property, and that the decision of Dutcher 



400 American State Reports, Vol. 115. [Michigan, 

V. Buck, 96 Mich. 160, 55 N. W. 676, 20 L. R. A. 776, is in- 
applicable. 

In my judgment, the trial court correctly decided that 
^'^^ defendant Gilchrist was not a partner of complainant and 
of defendant Trowbridge, and the decree appealed from 
should be affirmed. 

McAlvay and Ostrander, JJ., concurred. 

Blair and Moore, JJ., concurred in the result. 



WHAT CONSTITUTES A PARTNERSHIP. 
I. General Definitions Given of Partnership, 401. 
n. Distinction Between Partnership and Joint Tenancy and Co- 
tenancy, 407. 

III. Distinction Between Partnerships and Joint Adventures, 407. 

IV. Distinction Between a Partnership and a Joint Stock Company, 

407. 

V. Purposes for Which a Partnership may be Formed. 

a. Necessity for Object of the Partnership to be for Pecuniary 

Gain, 408. 

b. Effect Where Formed for a Single Transaction or Venture, 

408. 

c. Effect Where Formed to Buy or Speculate in Land, 409. 

d. Effect of Illegal Purpose of Partnership, 409. 

VI. Between Whom a Partnership may be Formed. 

a. In General, 410. 

b. Betv een Several Partnerships, 410. 

c. Between Several Corporations or a Corporation and an In- 

dividual, 411. 

d. Between Husband and Wife, 411. 

VII. Necessity for a Consideration as Between the Alleged Partners, 

412. 

ViU. Necessity for Intent on Part of the Alleged Partners to Form 
a Partnership, 412. 

IX. Necessity for a Mutual Agency to Exist Among the Parties, 413. 

X. Status of de Facto Corporations as Partnerships, 419. 
XE. Status of the Promoters or Subscribers to the Stock of a Cor- 
poration Prior to Its Incorporation, 419. 
XII. Status of Parties Pretending to Conduct a Corporation, 420. 
XIII. Community of Interest in Property or in the Profits from the 
Management of Property or from Some Enterprise, as Con- 
stituting the Parties a Partnership. 

a. Necessity for Commimity of Interest in the Property of 
the Alleged Partnership. 

1. In General, 420. 

2. Effect Where One Party Furnishes Land or Personal 

Property and the Other Services or Skill, 424. 

S. Effect Where Owners of Separate Businesses Pool 
Their Property Interests or Proceeds Ratably or 
Otherwise, 426. 

4. Status of Subpartners with Respect to the Main Part- 
nership, 430. 



May, 1906.] Brotherton v. Gilchrist. 401 

b. Necessity for Participation in Both Profits and Losses, 431. 

c. Effect Where the Sharing of Losses is Limited as to Some 

of the Parties, 435. 

d. Effect Where a Party Shares Loss or Expenses Only, 436. 

e. Effect Where Parties Share the Gross Receipts of a 

Business, 436. 

f. Effect Where Parties Share Crops, Cattle and Their In- 

crease Instead of Money, 437. 

g. Effect Where Share of Profits is Allowed as Compensation 

for Services in Whole or in Part, 439, 
h. Effect Where Share of Profits is Allowed in Eepajonent of 

Capital Advanced, 441. 
1. Effect Where Share of Profits is Allowed as Interest on 

Loans or Advances, 441. 
J. Effect Where Share of Profits is Allowed as Bent, 442. 

XTV. Partnership by Estoppel, 442. 

1. General Definitions Given of Partnership. 

Though the courts have from time to time formulated general 
definitions of a partnership, still it is often found that such defini- 
tions are inadequate in some cases. The difficulty arises in making a 
definition which will be equally applicable to controversies arising 
between parties who are alleged to be partners and controversies 
between alleged partners and creditors of the partnership. It may 
often happen that parties who are not partners, inter se may still 
be partners with respect to creditors by reason of having by their 
acts authorized the creditors to consider and rely upon them as 
partners. 

Chancellor Kent in his Commentaries defines a. partnership as "a 
contract of two or more competent persons to place their money, 
effects, labor and skill, or some or all of them, in lawful commerce 
or business, and to divide the profit and bear the loss in certain 
proportions": 3 Kent's Commentaries, 23. And it has been said 
that where persons associate themselves together to carry on a joint 
business for their common benefit, to which each contribute either 
property or services, and the profits arising therefrom are to be shared 
between them, it constitutes a partnership: McMurtrle v. Guiler, 183 
Mass. 451, 67 N. E. 358. And likewise a combination of property, 
labor and skill in an enterprise or business as principal for joint 
profit has been declared to be a partnership as between the parties: 
McDonald v. Campbell, 96 Minn. 87, 104 N. W. 760; Spaulding v. 
Stubbings, 86 Wis. 255, 39 Am. St. Rep. 888, 56 N. W. 469. So, also, 
' it has been declared that a partnership is a voluntary contract be- 
tween two or more persons who place their money, effects, labor and 
skill, or some or all of them, into lawful commerce or business, with 
the understanding that there shall be a community of profits between 
them: Carter v. McClure, 98 Tenn. 109, 60 Am. St. Rep. 842, 38 S. 
W. 585, 36 L. R. A. 282. 

In Goldsmith v. Eichold, 94 Ala. 116, 33 Am. St. Rep. 97, 10 South. 
80, the court, in discussing the essential characteristics, said: "Part- 
Am. St. Rep., Vol. 115—26 



402 American State Reports, Vol. 115. [Michigan, 

nership is not necessarily an entire merger of the individual, his 
labor, energy, or estate in the firm. The extent of the merger is 
determined by the agreement entered into, and the purpose the part- 
ners have in view. Anything left out of the partnership agreement 
and its views, whether it be money, property, labor or skill, pertains 
to the individual in as absolute right as if there had been no con- 
tract of partnership. The merger of the individual into the firm or 
company extends to and includes everything embraced, expressly or 
impliedly, in the terms of the agreement, and to that extent changes 
the character of his ownership. The individual parts with the sep- 
arate right and power to manage, direct, and control that of which, 
before that time, he had been supreme arbiter. His dominion was 
an integer. It becomes a fraction. He surrenders to the partner- 
ship an interest in his property, labor, skill, energy, one or more, as 
the agreement may bind him by express or implied stipulations, in 
consideration of a corresponding surrender, to like extent and for like 
purposes, by his copartners. The agreement consummated, each 
partner becomes seised and rightfully possessed of the same interest 
in and power over whatever has been contributed to the firm by 
his copartners as he retains in that contributed by himself. This, 
and no more. 

"These properties of partnership render it eminently a relation of 
trust. All its effects are held in trust, and each partner is, in one 
sense, a trustee: a trustee for the newly created entity, the partner- 
ship, and for each member of the firm, who thus becomes a bene- 
ficiary under the trust. He is more: he is a trustee, and a cestui que 
trust. A trustee, so far as his own duties bind him; a cestui que 
trust, so far as duties rest on his copartners. And it is sometimes 
said that each partner is both a principal and an agent; a principal 
to the extent he represents his own interests, but an agent only so 
far as he represents his copartners. 

"The first duty devolved by this trust on each of the partners 
is to apply the partnership effects to the payment of the debts of 
the partnership, and not to pervert them to individual uses or wants, 
without the consent of the copartners. Any attempt to so pervert 
them, whether by private arrangement or under judicial proceedings, 
can be intercepted by the nonconseuting partners. This, on the plain 
principle that, being beneficiaries under the trust, they have a clear 
right to prevent its breach. 

"The trust goes further. After discharging all the partnership - 
liabilities, the residuum is still held in trust for partition or dis- 
tribution among the several partners, according to their several in- 
terests; and the same rights and remedies exist to preserve, protect, 
and secure the proper administration of the trust fund to this end 
as are given in enforcing the payment of debts. ' ' 

But a mere participation in the profits and loss of an enterprise 
does not necessarily constitute a partnership among the participat- 



May, 1906.] Brotherton v. Gilchrist. 403 

JDg parties. The relation of partnership inter se is a question of in- 
tention on the part of the alleged partners, and this intention is to 
be determined from all the circumstances of the case: McDonald v. 
Matney, 82 Mo. 358. 

The tests by which it is determined that a partnership exists be- 
tween the parties has long been a matter upon which the courts have 
differed. The doctrine of the earlier English cases seems to have 
been disapproved by the later cases. These divergent views are 
shown in the discussion on this branch of the subject, found in 
Webster v. Clark, 34 Fla. 637, 43 Am. St. Eep. 217, 16 South. 601, 
27 L. E. A. 126. The court in that case observed: "As to partner- 
ship liability, it was formerly broadly laid down that everyone who 
shared in the profits of a trade or business ought also to bear his 
share of the losses, for the reason that, by taking a part of the prof- 
its, he takes a part of the fund of the business, upon which the 
creditors had a right to rely for payment. This was the rule an- 
nounced in the case of Waugh v. Carver, 2 H. Black. 235. In the 
application of this rule the courts began to add qualifications, and 
to make distinctions that were not of easy application. It was 
said, in some cases, that a sharing in the profits, in order to render 
one liable as partner, must be a participation therein as principal, 
and the test applied in other cases was that the party entitled to 
a part of profits was a partner, if he had a lien thereon as against 
the private creditors of the other members of the firm. The ques- 
tion was very much discussed in England in the case of Cox v. 
Hickman, 8 H. L. Cas. 268, and it seems to be generally conceded 
that this case modified materially the rule formerly announced on 
the subject. It is said of this case that it brought back the English 
law to the true rule. The facts, in brief, were, that two merchants 
became embarrassed and assigned their partnership property to 
trustees, with direction and authority for them to carry on the busi- 
ness in a new name, and pay the net profits ratably among the cred- 
itors of the assignors, and, after the creditors were paid, the residue 
to go to the assignors. The creditors joined in the deed of assign- 
ment, and a majority of them had authority to make rules for the 
conduct of the business, or to end it if they saw proper. Debts were 
contracted by the trustees in conducting the business under this 
management, and it was held that the creditors were not liable as 
partners for the debts. Several opinions were rendered in the case, 
and those of the majority do not seem to rest upon the same grounds. 
It has been considered that the decision put the liability of one 
partner for the acts of his copartner upon the doctrine of the lia- 
bility of a principal for the acts of his agents, the test of liability 
being in the fact that one has authorized the managers of the busi- 
ness to carry it on for him, and that, while the right to participate 
in the profits was cogent, it was not conclusive, evidence that the 
business was carried on iu part for the person receiving a part of the 



404 American State Reports, Vol. 115, [Michigan, 

profits. There is found in the books a great deal of discussion on 
the subject of partnership liability. The following authorities, among 
the many, contain a thorough review of the decisions on the old 
rule as it is called, and the modifications thereof: Eastman v. Clark, 
53 N. H. 276, 16 Am. Rep. 192; Parchen v. Anderson, 5 Mont. 438, 51 
Am. Rep. 65, 5 Pac. 588; Boston etc. Smelting Co. v. Smith, 13 R. 
I. 27, 43 Am. Rep. 3; Culley v. Edwards, 44 Ark. 423, 51 Am. Rep. 
614; Denny v, Cabot, 6 Met. 82; Meehan v. Valentine, 145 U. S. 
611, 12 Sup. Ct. Rep. 972, 36 L. ed. 835; Beecher v. Bush, 45 Mich. 
188, 40 Am. Rep. 465, 7 N. W. 785. This court in the case of Dubos 
V. Hoover, 25 Fla. 720, 6 South. 788, quoted with approval the def- 
inition of a partnership given by Judge Story, viz.: 'Partnership, 
often called copartnership, is usually defined to be a voluntary con- 
tract between two or more competent persons to place their money, 
effects, labor and skill, or some or all of them, in lawful commerce 
or business, with the understanding that there shall be a communion 
of the profits thereof between them': Story on Partnership, 6th ed., 
sec. 2. It seems that when Judge Story wrote his book on Part- 
nership he conceived the liability of one sought to be charged as a 
partner to rest upon the law of principal and agent, and his view 
is quoted with approval in one of the opinions delivered in the case 
of Cox V. Hickman, 8 H. L. Cas. 268. 

"A reference to agency as a test of partnership has not, it seems, 
proven a correct guide in many cases, as agency results from part- 
nership, rather than partnership from agency. It is said in Meehan 
V. Valentine, 145 U. S. 611, 12 Sup. Ct. Rep. 972, 36 L. ed. 835: 
'Such a test seems to give a synonym, rather than a definition, an- 
other name for the conclusion, rather than a statement of the pre- 
mises from which the conclusion is to be drawn. To say that a per- 
son is liable as a partner who stands in the relation of principal 
to those by whom the business is actually carried on adds nothing 
by way of precision, for the very idea of partnership includes the 
relation of principal and agent.' In this case it is said: 'The requi- 
sites of a partnership are that the parties must have joined together 
to carry on a trade or adventure for their common benefit, each con- 
tributing property or services, and having a community of interest 
in the profits. ' Judge Cooley says for the court, in Beecher v. Bush, 
45 Mich. 188, 40 Am. Rep. 465, 7 N. W. 185: 'That in so far as the 
notion ever took hold of the judicial mind that the question of part- 
nership or no partnership was to be settled by arbitrary tests, it was 
erroneous and mischievous, and the proper corrective has been ap- 
plied. Except when one allows the public or individual dealers to 
be deceived by the appearances of partnership when none exists, he 
is never to be charged as a partner unless by contract and with in- 
tent he has formed a relation in which the elements of a partner- 
ship are to be formed.' The same view is announced in the recent 



May, 1906.] Beotherton v. Gilchrist. 405 

English case of Mollwo v. Court of Wards, 1.. R. 4 P. C, App. Cas. 
419. And in section 49 of his work on Partnership, Judge Story says: 
'In short, the true rule, ex aequo et bono, would seem to be, that 
the agreement and intention of the parties themselves should govern 
in all the cases. If they intended a partnership in the capital stock 
or in the profits, or in both, then that the same rule should apply 
in favor of third persons, even if the agreement was unknown to 
them. And, on the other hand, if no such partnership were intended 
between the parties, then that there should be none as to third per- 
sons, unless where the parties had held themselves out as partners 
to the public, or their conduct operated as a fraud or deceit upon 
third persons.' " 

The definition of a partnership given by Justice Story in his work 
on Partnership, and which is quoted by the court in the extract 
from the case above, has been substantially adopted in the follow- 
ing cases: Stone v. Boone, 24 Kan. 337; Post v. Kimberly, 9 Johns. 
470; Niagara County v. People, 7 Hill, 504; Harvey v. Childs, 28 Ohio 
St. 321, 22 Am. Rep. 387; In re Gibb's Estate, 157 Pa. 59, 27 Atl. 
383, 22 L. R. A. 276; Galveston etc. R. Co. v. Davis, 4 Tex. Civ. App. 
468, 23 S. W. 301; Berthold v. Goldsmith, 24 How. 536, 16 L. ed. 
762; Hunt v. Oliver, 118 U. S. 210, 6 Sup. Ct. Rep. 103, 30 L. ed. 
128. 

In Meehan v. Valentine, 145 U. S. 611, 12 Sup. Ct. Rep. 972, 36 L. 
ed. 835, the court, after an exhaustive discussion of English decisions, 
both prior and subsequent to the leading case of Cox v. Hickman, 
8 H. L. Cas. 268, observed: "In the present state of the law upon 
this subject, it may perhaps be doubted whether any more precise 
general rule can be laid down than, as indicated at the beginning 
of this opinion, that those persons are partners who contribute either 
property or money to carry on a joint business for their common 
benefit, and who own and share the profits thereof in certain pro- 
portions. If they do this, the incidents or consequences follow that 
the acts of one in conducting the partnership business are the acts 
of all; that each is agent for the firm and for the other partners; 
that each receives part of the profits as profits, and takes part of 
the fund to which the creditors of the partnership have a right to 
look for the payment of their debts; that all are liable as partners 
upon contracts made by any of them with third persons within the 
scope of the partnership business; and that even an express stipu- 
lation between them that one shall not be so liable, though good be- 
tween themselves, is ineffectual as against third persons. And par- 
ticipating in profits is presumptive, but not conclusive, evidence of 
partnership. 

"In what«ver form the rule is expressed, it is universally held 
that an agent or servant, whose compensation is measured by a cer- 
tain proportion of the profits of the partnership business, is not 



406 American State Reports, Vol. 115. [MTichigan, 

thereby made a partner, in any sense. So an agreement that the 
lesswr of a hotel shall receive a certain portion of the profits thereof 
by way of rent does not make him a partner with the lessee: Perrine 
V. Hankinson, 11 N. J. L. 181; Holmes v. Old Colony R. Corp., 5 Gray, 
58; Beecher v. Bush, 45 Mich. 188, 40 Am. Eep. 465, 7 N. W. 785. 
And it is now equally well settled that the receiving of part of the 
profits of a commercial partnership, in lieu of or in addition to in- 
terest, by way of compensation for a loan of money, has of itself 
no greater eflfect: Wilson v. Edmonds, 130 U. S. 472, 9 Sup. Ct. Kep. 
563, 32 L. ed. 1025; Richardson v. Hughitt, 76 K Y. 55, 32 Am. Rep. 
267; Curry v. Fowler, 87 N. Y. 33, 41 Am. Rep. 343; Cassidy v. 
Hall, 97 N. Y. 159; Smith v. Knight, 71 HI. 148, 22 Am. Rep. 94; 
Williams v. Soulter, 7 Iowa, 435; Boston & C. Smelting Co. v. Smith. 
13 R. I. 27, 43 Am. Rep. 3; Mollwo v. Court of Wards, L. R. 4 P. C. 
419, and Badeley v. Consolidated Bank, 38 Ch. Div. 238, above cited." 

A partnership has recently been defined as a relation subsisting 
between persons who have combined their property, labor and skill 
in an enterprise or business, as principals, for the purpose of joint 
profit: Williamson & Co. v. Nigh, 58 W. Va. 629, 53 S. E. 124. We 
believe that there is great force in the observation of Lord Wensley- 
dale in Cox v. Hickman, 8 H. L. Cas. 268, to the efifect that "the 
law as to partnership is undoubtedly a branch of the law of prin- 
cipal and agent; and it would tend to simplify and make more easy 
of solution the questions which arise on this subject if this true 
principle were more constantly kept in view." 

If we were to venture a definition of a partnership, we would say 
that a partnership exists where two or more persons, each of whom 
acting as principal for himself and agent for his associates, combine 
their property, labor or skill in a lawful enterprise or business as 
principals for the purpose of joint profit. 

A partnership is created only by a contract, express or implied: 
Dunham v. Loverock, 158 Pa. 197, 38 Am. St. Rep. 838, 27 Atl. 990. 
"A partnership is not like a corporation, from which certain con- 
sequences necessarily follow. As to the parties to it the contract of 
partnership is like any other and the powers conferred, duties en- 
joined, and liabilities imposed are to be deduced from its terms. 
This idea was expressed by Mr. Justice Lindley in Walker v. Hirch, 
27 Ch. Div. 460. He said: 'Persons who share profits and losses 
are, in my opinion, properly called partners; but that is a mere ques- 
tion of words; their precise rights in any particular case must de- 
pend upon the real nature of the agreement into which they have 
entered' ": Coward v. Clanton, 122 Cal. 451, 55 Pac. 147. 

It is not necessary that the parties adopt a firm name: Johnson v. 
Carter, 120 Iowa, 355, 94 N. W. 850, Nor is it necessary that the 
agreement of partnership be for any definite term: Fruin v. Chotzia- 
noff, 79 Conn. 65, 63 Atl. 782. What will constitute a partnership 
is a question of law, but whether the facts which constitute the part- 



May, 1906.] Brotherton v. Gilchrist. 407 

nership do exist is a question for the jury: Deputy v. Harris, 1 Marv. 
(Del.) 100, 40 Atl. 714; Jones v. Purnell (Del.), 62 Atl. 149; Eider 
V. Hammell, 63 Kan. 733, 66 Pac. 1026. 

n. Distinction Between Partnership and Joint Tenancy and Co- 
tenancy. 

Although partnerships and cotenancies have many points of simi- 
larity, the main difference between them lays in the termination of 
the relation and the methods by which a partner and a cotenant may 
dispose of his individual interest. Partnerships differ from joint 
tenancies in that there is no right of survivorship between the part- 
ners: Cowles V. Garrett's Admrs., 30 Ala. 341; Bradley v. Harkness, 
26 Cal. 69; La Societe Francaise etc. v. Weidmann, 97 Cal. 507, 32 
Pac. 538; Sims v. Dame, 113 Ind. 127, 15 K E. 217; Goell v. Morse, 
126 Mass. 480; Putnam v. Wise, 1 Hill, 234, 37 Am. Dec. 309; Far- 
rand V. Gleason, 56 Vt. 633; Hungerford v. Gushing, 8 Wis. 332. 

m. Distinction Between Partnerships and Joint Adventures. 

A joint adventure is generally regarded as of a similar nature to 
that of a partnership and governed by the same rules applicable to 
partnerships: Slater v. Clark, 68 111. App. 433; Doane v. Adams, 15 
La. Ann. 350; Chester v. Dickerson, 54 N. Y. 1, 13 Am. Eep. 550; 
Marston v. Gould, 69 N. Y. 220; Ross v. Willett, 76 Hun, 211, 27 N. . 
Y. Supp. 785. A joint adventure generally relates to a single trans- 
action: Pickercll v. Fisk, 11 La. Ann. 277; Alderton v. Williams, 
139 Mich. 296, 102 N. W. 753; Knapp v. Hanley, 108 Mo. App. 353, 
83 8. W. 1005; Felbel v. Kahn, 29 App. Div. 270, 51 N. Y. Supp. 435. 
The usual test of partnership as between the parties in a joint ad- 
venture is the intent to become partners: Fewell v. American Surety 
Co., 80 Miss. 782, 92 Am. St. Rep. 625, 28 South. 755. 

IV. Distinction Between a Partnership and a Joint Stock Company. 

At common law, joint stock companies are regarded as partner- 
ships and are governed by the same general rules applicable to part- 
nerships, but the status of joint stock companies is often regulated 
by statutory provisions: Montgomery v. Elliott, 6 Ala. 701; Smith v 
Fagan, 17 Cal. 178; McConnell v. Denver, 35 Cal. 365, 95 Am. Dec 
107; Pettis v. Atkins, 60 111. 454; Pipe v. Bateman, 1 Iowa, 369 
Frost V. Walker, 60 Me. 468; Phillips v. Blatchford, 137 Mass. 510 
Bicker v. American Loan etc. Co., 140 Mass. 346, 5 N. E. 284; But 
terfield v. Beardsley, 28 Mich. 412; Willson v. Owen, 30 Mich. 474 
Boisgerard v. Wall, Smedes & M. Ch. 404; Atkins v. Hunt, 14 N. H. 205 
Wells v. Gates, 18 Barb. 554; Skinner v. Dayton, 19 Johns. 513, 1(? 
Am. Dec. 286; McFadden v. Leeka, 48 Ohio St. 513, 28 N. E. 874 
Hedge's Appeal, 63 Pa. 273; Shamburg v. Abbott, 112 Pa. 6, 4 Atl 
518; Walker v. Wait, 50 Vt. 668; Hardy v. Norfolk Mfg. Co., 80 Va. 404 
Kimmins v. Wilson, 8 W. Va. 584; Werner v. Leisen, 31 Wis. ICa 



408 American State Reports, Vol. 115. [Michigan, 

A distinction, however, exists between a joint stock company and 
an ordinary partnership, in that the death of a member does not 
ordinarily dissolve the joint stock company where it does have that 
effect in an ordinary partnership. And in a joint stock company 
there is no delectus personae as in the ordinary partnership: Ma- 
chinists' Nat. Bank v. Dean, 124 Mass. 81; McNeish v. Hulless Oat 
Co., 57 Vt. 316; Baird's Case, L. R. 5 Ch. App. 725. 

V. Purposes for Which a Partnership may be Formed. 

a. Necessity for Object of the Partnership to be for Pecuniary 
Gain. — "The fundamental idea of a partnership inter sese is that 
it is formed for the purpose of trade or gain in business, and that 
each has the right to participate in the profits": Missouri Bottlers' 
Assn. v. Fennerty, 81 Mo. App. 525. Hence organizations, the ob- 
jects of which are social, literary, scientific or political advancement, 
and not pecuniary gain, are not regarded as partnerships: Lewis v. 
Tilton, 64 Iowa, 220, 52 Am, Rep. 436, 19 N. W. 911; Burt v. Lathrop, 
52 Mich. 106, 17 N. W. 716; McMahon v. Ranke, 47 N. Y. 67; Lafond 
V. Deems, 81 N. Y. 507; Ostrom v. Greene, 161 N. Y. 353, 55 N. E. 919; 
Ash V. Guie, 97 Pa. 493, 39 Am. Rep. 818; Winona Lumber Co, v. 
Church, 6 S. Dak. 498, 62 N. W. 107. But voluntary associations for 
mutual relief in sickness or distress by means of funds raised by 
initiation fees, dues and the like, are regarded as partnerships: 

•Gorman v. Russell, 14 Cal. 531; Babb v. Reed, 5 Rawle, 158, 28 Am.. 
Dec. 650; Beaumont v. Meredith, 3 Ves. & B. 180; Pierce v. Piper, 
17 Ves. 15. 

But an organization for religious and social purposes, the members 
putting their property in common and living as one family, and 
having no business for common benefit and profit, is not a partner- 
ship: Teed v. Parsons, 202 111, 455, 66 N. E, 1044. Likewise an ar- 
rangement between several persons to keep house together in order 
to diminish expenses, one party to pay the rent and meat bills, an- 
other to pay all other bills, constitutes no partnership: Austin v. 
Thomson, 45 N. H. 113. A mere agreement to hold land in common 
constitutes no partnership: Iluckabee v. Nelson, 54 Ala. 12; Gilmore 
V. Black, 11 Me. 485; Treiber v. Lanahan, 23 Md. 116; Sikes v. Work, 
6 Gray, 433; Ballou v. Spencer, 4 Cow. 163; White v. Fitzgerald, 19 
Wis. 480. 

b. Effect Where Formed for a Single Transaction or Venture. — A 
partnership may exist for a single transaction, venture or undertak- 
ing: Harris v. Umsted (Ark.), 96 S. W. 146; Bates v. Babcoek, 95 
Cal. 479, 29 Am. St. Rep. 133, 30 Pac. 605, 16 L. R, A. 745; Robin- 
son V. Compher, 13 Colo. App. 343, 57 Pac. 754; Plunkett v. Dillon, 
4 Houst. 338; Winstanley v. Gleyre, 146 111. 27, 34 N. E. 628; Jones 
V. Davies, 60 Kan. 309, 72 Am. St. Rep. 354, 56 Pac, 484; Cochran 
T. Anderson County Nat. Bank, 83 Ky. 36; Ripley v. Colby, 23 N. 



May, 1906.] Brotherton v. Gilchrist. 409 

H. 438; Clark v. Eumsey, 59 App. Div. 435, 69 N. Y. Supp. 102; 
Demarest v. Koch, 129 N. Y. 218, 29 N. E. 296; Hulett v. Fairbanks, 
40 Ohio St. 233; Yeoman v. Lasley, 40 Ohio St. 190; Flower v. Barne- 
kofif, 20 Or. 132, 25 Pac. 370, 11 L. E. A. 149; Pierson v, Steinmyer, 
4 Rich. 309; Spencer v. Jones, 92 Tex. 516, 71 Am. St. Rep. 870, 50 
S. W. 118; Williams & Co. v. Nigh, 58 W. Va. 639, 53 S. E. 124. 

c. Effect Where Fonned to Buy or Speculate in Land. — A partner- 
ship may be formed for the purpose of buying, dealing or speculat- 
ing in lands: Bates v. Babcock, 95 Cal. 479, 29 Am. St. Rep. 133, 30 
Pac. 605, 16 L, R. A. 745; Winstanley v. Gleyre, 146 111. 27, 34 N. E. 
628; Holmes v. McCray, 51 Ind. 358, 19 Am. Rep. 735; Richards v. 
Grinnell, 63 Iowa, 44, 50 Am. Rep. 727, 18 N. W. 668; Simpson v. 
Tenney, 41 Kan. 561, 21 Pac. 634; Jones v. Davies, 60 Kan. 309, 72 
Am. St. Rep. 354, 56 Pac. 484; Dudley v. Littlefield, 21 Me. 418; 
Winslow V. Young, 94 Me. 145, 47 Atl. 149; Morgart v. Smouse, 103 
Md. 463, 63 Atl. 1070; Corey v. Cadwell, 86 Mich. 570, 49 N. W. 611; 
Menage v. Burke, 43 Minn. 211, 19 Am. St. Rep. 235, 45 N. W. 155; 
Hunter v. Whitehead, 42 Mo. 524; Chester v. Dickerson, 54 N. Y. 
1, 13 Am. Rep. 550; Williams v. Gillies, 75 N. Y. 197; Mitchell v. 
Tonkin, 109 App. Div. 165, 95 N. Y. Supp. 669; Ludlow v. Cooper, 
4 Ohio St. 1; Hulett v. Fairbanks, 40 Ohio St. 233; Kelley v. Bourne, 
15 Or. 476, 16 Pac. 40; Flower v. Barnekofif, 20 Or. 132, 25 Pac. 370, 
11 L. R. A. 149; Spencer v. Jones, 92 Tex. 516, 71 Am. St. Rep. 870, 
50 S. W. 118. An agreement to co-operate in the sale of land on 
which one of the parties holds an option and to share profits con- 
stitutes a partnership: Frazer v. Linton, 183 Pa. 186, 38 Atl. 589. 

A partnership to deal in real estate may be formed by parol agree- 
ment: Speyer v. Desjardins, 144 111. 641, 36 Am. St. Rep. 473, 32 N. 
E. 283; Fountain v. Menard, 53 Minn. 443, 39 Am. St. Rep. 617, 55 N. 
W. 601. 

d. Effect of Illegal Purpose of Partnership. — Where the object of 
the partnership is the prosecution of an illegal business or one which 
is contrary to public policy, the partnership agreement is void: 
Powell V. Maguire, 43 Cal. 11; Craft v. McConoughy, 79 111. 346, 22 
Am. Rep. 171; Tenney v. Foote, 95 111. 99; Hunter v. Pfeiffer, 108 
Ind. 197, 9 N. E. 124; Spaulding v. Nathan, 21 Ind. App. 122, 51 
N. E. 742; Anderson's Admr. v. Whetlock, 2 Bush, 398, 92 Am. Dec. 
489; Stewart v. Mcintosh, 4 Har. & J. 233; Spies v. Rosenstock, 
87 Md. 14, 39 Atl. 268; Sampson v. Shaw, 101 Mass. 145, 3 Am. 
Bep. 327; Dunham v. Presby, 120 Mass. 285; McGunn v. Hanlin, 
29 Mich. 476; Durant v. Phenes, 26 Minn. 362, 4 N. W. 610; Shriver 
V. McCloud, 20 Neb. 474, 30 N. W. 534; Gaston v. Drake, 14 Nev. 
175, 33 Am. Rep. 548; Tucker v. Adams, 63 N. H. 361; Watson v. 
Murray, 23 N. J. Eq. 257; Kelly v. Devlin, 58 How. Pr. 487; Warner 
v. Griswold, 8 Wend. 665; Woodwortb v. Bennett, 43 N. Y. 273, 3 
Am. Rep. 706; King v. Winants, 71 N. C. 469, 17 Am. Rep. 11; Dudley 



410 American State Reports, Vol. 115. [Michigan, 

V. Littlfc, 2 Ohio, 504, 15 Am. Dec. 575; Davis v. Gelhaus, 44 Ohio St. 
69, 4 N. E. 593; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; 
Jackson v. Akron Brick Assn., 53 Ohio St. 303, 53 Am. St. Eep. 638, 41 
N. E. 257, 35 L. B. A. 287; Morris Run Coal Co. v. Barclay Coal Co., 
68 Pa. 173, 8 Am. Eep. 159; Wiggins v. Bisso, 92 Tex. 219, 71 Am. 
St. Rep. 837, 47 S. W. 637; Watson v. Fletcher, 7 Gratt. 1; Fairbank 
V. Newton, 50 Wis. 628. The illegality of the purpose of the part- 
nership must, however, plainly appear: Delamour v. Roger, 7 La. 
Ann. 152; Williams v. Connor, 14 S. C. 621; Whitcher v. Morey, 
39 Vt. 459; Fairbank V. Leary, 40 Wis. 637; Thwaites v. Coulthwaite, 
[1896] 1 Ch. 496. 

Where a partnership is sought to be formed for several purposes, 
and only one of the purposes of the partnership is illegal, the 
partnership will be sustained if the illegal object can be clearly sepa- 
rated from the legal objects of the partnership: Northrup v. Phillips, 
99 111. 449; Anderson v. Powell, 44 Iowa, 20; Dunham v. Presby, 
120 Mass. 285; Willson v. Owen, 30 Mich. 474; Todd v. Raflferty's 
Admrs., 30 N. J. Eq. 254; Lane v. Thomas, 37 Tex. 157; Whitcher 
V. Morey, 39 Vt. 459. So, also, where, in order to conduct a certain 
business, it is necessary that the person conducting the business 
be legally qualified to do so. A partnership between persons legally 
qualified and one who is not so qualified is not illegal where the 
business is to be conducted by the legally qualified persons: Harland 
V. Lilienthal, 53 N. Y. 438. 

VI. Between Whom a Partnership may be Formed. 

a. In General. — A partnership may exist between tenants !in 
common of lands in conducting business on the land without affect- 
ing the legal status of the land: Holton v. Guinn, 76 Fed. 96. 

An infant may enter into a partnership agreement: Mehlhop v. 
Rae, 90 Iowa, 30, 51 N. W. 650; Vinsen v. Lockard, 7 Bush, 458; 
Bush V. Linthicum, 59 Md. 344; Dana v. Stearns, 3 Cush. 372; 
Osborn v. Farr, 42 Mich. 134, 3 N. W. 299; Goodnow v. Empire 
Lumber Co., 31 Minn. 468, 47 Am. Rep. 798, 18 N. W. 283; Kerr 
V. Bell, 44 Mo. 120; Gay v. Johnson, 32 N. H. 167; Continental 
Nat. Bank v. Strauss, 137 N. Y. 148, 32 N. E. 1066; Bixler v. 
Kresge, 169 Pa. 405, 47 Am. St. Rep. 920, 32 Atl. 414; Miller 
V. Sims, 2 Hill, 479; Penn v. Whitehead, 17 Gratt. 503, 94 Am. Dec. 
478. 

b. Between Several Partnerships. — One partnership firm may 
enter into partnership with another partnership firm: Mayrant v. 
Marston, 67 Ala. 453; Bullock v. Hubbard, 23 Cal. 495, 83 Am. Dec. 
130; Butler v. American Toy Co., 46 Conn. 136; Willson v. Morse, 
117 Iowa, 581, 91 N. W. 823; Meador v. Hughes, 14 Bush, 652; 
Simonton v. Mc