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Full text of "A treatise on the law of trials in actions civil and criminal"

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D.qilizMb,G00l^le 



A TREATISE 

ON THE 

LAW OF TRIALS 

IN ACTIONS 

CIVIL AND CRIMINAL 

Bv SEYMOUR D. THOMPSON, LL. D. 



SECOND EDITION 

Bt MARION C. EARLY 



IN FOUR VOLUMES 
VOL II 



CHICAGO 

T. H. FLOOD & COMPANY 



D.qilizMb,G00l^le 



>d Moordbs to Aot of ConsNB. ■■ tto Tw inSb br 

BETMOUB D.THOMPSOK, 
olSoe at cIm Llbniriaii of Oontraw, kt n 



COPTBIOBT, 1918 



T. H. FLOOD A 00. 



177501 



D.qitizeabyG00<^lc 



THE LAW OF TRIALS 



VOLUME II 



TITLE V-CONTINUED 



D.qilizMb,G00l^le 



CHAPTER XLIL 
.._ V INSURANCH. 

;"*,J[tiTIOLB I, — FlEB, LiPB AND ACCID&NT iNSUaANO* 

'Abticlb II. — ^Mabimb Insubancb. 



AbTICLB I. — FiBB, LiFB AND ACCIDENT. 

1279. Components Parts of a Contract of Insurance. 

1280. Insurable Intereet 

1281. Waiver of Condftlone to the leauance of a Policy; 

1282. W&lver u to Conditions Subsequent during Life ol a Polity. 

1283. Wafver after Policy has Matured. 

1284. Waiver of Proofs of Lobs — Appraleement, etc. 
128G. General ObservKtlons. 

12SS. Representations and Warranties. 

1287. Authority of Agents. 

1288. Conditions Subsequent as to Keeping Policy In Force. 

1289. Exercise of Diligence or Negligence. 

1S90. Whether Change of Clrcumstancea Increases the Risk 

1291. Descriptive Terms as Question of Fact. 

1292. Cause and Proximate Cause of Loss — Voluntary Exposure to 

Danger. 

1293. Whether Insured was Sane or Insane at Sulcld& 

1294. Reasonable Time for Qiving Notice of Loss. 
129G. Sufficiency of Preliminary Proofs of Loss. 

129G. Waiver of Limitation for bringing Action and Vexatious Defense. 
129T. Waiver of a Condition against Transfer of Policy. 

1298. Failure to Heatlon Speclflc Articles of Merchandlssi 

1299. Identity of the Articles Destroyed. 

ISOO. Mutual Insurance — Data for Correct Assessment, 
1301. Habitual Intemperance, 

§ 1279. OompoBent parts o( a contract o( Insurance. — ^The or- 
dinaiy contract of inBuraace, whether life, fire, accident, guaranty 
or marine, culminates in a policy of insarance, which is based npon 
representationa of the applicant therefor. If the representations aa 
well aa the policy are in writing, the general principle ohtaina, that 
they are for interpretation by the court. And whether all or only a 
part of the contract is in writing, yet if it is clear of what words, Ihe 
written, as well as the oral, contract consists, the like principle 
obtains. The exception as to written words lies in ambigaity and 

IC 



raSURANCE. 1035 

to spoken words in their uncertainty both aa being ambiguous and 
aa to what they actually are. These questions have been consid- 
ered already,' 

§ 1280. Insurable Interest. — Insurance in its moat comprehea- 
^Te description is & contract of indemni^.' Where there is a 
total absence of that which is the esseuce of the contract, the con- 
tract necessarily fails.' These contracts arc also generally de- 
nominated wagering policies, if there does not exist, at inception, in 
the contingency insured against, that which is commonly termed an 
insorable interest,* or if it does not exist to such an appreciable 
extent, as would take away from insurance contracts the character- 
istics of a wagering policy,' all of which are absolutely void, as 
against public policy. This rule has been applied so severely in a 
ease lately decided in Kentucky Court of Appeals, that the ad- 
ministrator of an insured, who participated in the fraud of the 
beneficiaiy in obtaining such insurance based on his statement that 
beneficiary was his creditor, was not permitted to recover what was 
paid by the insurer to the beneficiary sought to be charged as 
trustee,* the principle of in pari delicto being applied. As extin- 
gnishment of the indemnity, which constituted insurable interest 
when insurance was effected, is dependent upon matters dehors the 
contract, this is a question of fact, and may or not, according to 
(urcomstances, bo determined by the court where the facts are clear ' 
or a mixed question of law and fact, to be decided by the jury under 
instructions of the court." And so as to the existence of an insur- 
able interest when the insurance was obtained.* 
1 Chs. 33, 31 and 35, ante. 31 Ky. Law Rep. 784, 103 S. W. 714. 

■ Spare t. Home Mut. Ids. Co., 1G Generally It Is ruled that tbe bene- 
Fed. (C. C.) 707. ficlari' coIIectluE the pollc; Is a trua- 

* Baker t. Monumental S. A L. tee (or the estate of Insured. See 

ASBiu E8 W. Ta. 40S. 62 8. E. 403; Rlner v. Riner. 16fl Pa. 617, 31 AU. 

Bennett v. Unt Fire Ins. Co., 100 347, 45 Am. St. Rep. 693; ChecTes v. 

Hd. 337. 60 Atl. 99. Andrews. 87 Tex. 287, 25 S. W. 321, 

*Locher t. Kuecbenm tester, 120 47 Am. St. Rep. 107. 

Mo. App. 701, 98 3. W. 92; Trinity t aark t. Dwelling House Ins. 

ColleKe T. Travellers Ins. Co., 113 Co.. 81 Mo. 373, 17 Att. 303; Lind- 

N. C. 244, IS S. E. 175, 22 L. R. A. ner V. St Paul F. A M. Co., 93 Wis. 

291. 526. 67 N. W. 1125; Maloney v. 

■ Hajs T. Lapege, 48 La. Ann. 749, State Ins. Co., 133 Iowa, 670, 110 N. 
1» Sontli. 821, 35 L. R, A. 647; W. 1041. 9 L. R. A. (h. b.) 490. 
Mowrj T. Home L. Ins. Co.. 9 R. I. ■ Bennlnger v. Phoenix Ins. Co., 
S«. 57 Cal. 644; Chandler v. St Paul F. 

■ Howe's Bxr. V. Orlffln's Admr., 



D.qitizeabyG00<^lc 



1036 PHOVINCB OF COURT AND JUBY. 

§ 1281. Waiver of Conditions to the luoanoe of Policy. — ^Where 
the conditions precedent to the issuance of a valid policy of insur- 
ance do not relate to that which the law coodemna na against public 
policy, as is tnie of a wagering contract, thty may be waived either 
expressly or by implication, generally in tiie way of an estoppel. 
Thus an insurer is estopped from claiming invalidity of a policy in 
respect of a false representation, when it or its authorized agent 
knew at the time the truth in respect to the matter misrepresented." 
Whether the insurer or its agent so knew of the existence of that 
which would prevent issuance of policy depends on conflicting evi- 
dence, and is a question for the jury." 

§ 1282. Waiver as to Conditions Subsequent during Life of a 
Policy. — This kind of waiver, being based on a eoisideratioD in pay- 
ment of premiums necessary to keep a policy in force, the principle 
of estoppel makes it effective, where knowledge accompanies the 
receipt or retention of that which is paid to continue the insur- 
ance.'* In such case the only question that could be in dispute would 
be the fact of notice or knowledge of the fact causing forfeiture, and 
this would be a question for the jury." 

§ 1283. Waiver afto: Policy baa Hatnred. — The principle un- 
derlying decision in cases holding waiver to be effective, after lia- 
bility upon a policy is claimed to be absolute, will also be found to 

ft H. Ins. Co., 21 MiDii. 8G, 18 Am. 860; Aetba Ins. Co. t. JobnsOD, 127 

Rep. 385. Ga. 4S1, B6 S. E. 643, 9 L. R. A. (it. 

• Batcbeller t. Com'l U. Assur. s.) 667. 
Co., 113 Maes. 495. 10 N. E. 321; it Continental Cas. Co. v. Jen- 
Oakland Home los. Co. t. Bank of nlngs, 45 Tex. Civ. App. 14, 99 S. 
Commerce, 47 Neb. 717. 66 N. W. W. 423; McKInney v. rire Ins. Soc, 
646, 36 L. EL A. 673; Ozark Ins. Co. 89 Wis. 653. 62 N. W. 413, 46 Am. 
V. Hopaon (Ark.). 101 3. W. 171. St. Rep. 861; Industrial Mut. In- 

ii>Se« also Thompson ▼. Pled- dem. Co. t. Thompson (Ark.), 104 

mont Mut. loB. Co., 77 S. C. 486, 68 S. W. ZOO; McNlchol t. Prudential 

S. E. 341; Flsbblate t. Fidelity ft Ins. Co., 191 Mass. 304, 63 Atl. 211: 

Cas. Co.. 140 N. C. 589. 53 S. E. 354; North British ft M. Ins. Co. v. Stel- 

Re Millers ft M. Ins. Co.. 197 Minn. ger. 124 111. 81. 16 N. E. 95. 

98. 106 N. W. 485; Pearlatlne v. » Wilson v. Mut. F. Ins. Cki., 174 

Pbcenlx Ins. Co.. 74 S. C. 246, 54 a Pa. 664, 34 Atl. 122; Mlcb. v. Bqul- 

B. 372; Fludd t. Assur. Co., 76 3. UUe F. ft M. Co., 2 Colo. App. 4S4. 

C. 31E, SB S. B. 762. 31 Pac. 389; Riley v. Am. Cent. Ins, 
II Perry v. John Hancock M. L. Co., 117 Mo. App. 229, 92 8. W. 

Ins. Co., 143 Mich. 290, 106 N. W. 1127. 



D.qitizeabyG00<^lc 



INSUKANCI. 1037 

test upon estoppel. The facta constituting estoppel, however, w« 
the oppo^te of those which create it prior to the mataring of a 
policy. In such ease the consideration for the estc^pel is the pay- 
ment by the insured of value, while the consideration subsequent 
to maturity is detriment Buffered hy him, in the performance of 
some requirement exacted by the insurer (upon the theory of the 
policy being a valid obligation), involving either labor or expense 
or both. 

Thus in a recent case in Missouri Court of Appeals, it was ruled, 
Uiat requiring insured, in an accident policy, to submit to a physical 
examination, when cause of forfeiture is known constitutes waiver 
of the forfeiture." Waiver being a mixed question of law and 
fact," generally is referable to a jury. 

S 1284. Waiver of Proofs of Loss — ^Appraisemeiit, etc. — A 

policy may be conceded to be a valid matured obligaticm, if the con- 
tingency of its maturity has ensned, either as to a total or a partial 
loss. Conditions to its paj-ment being demandable are g^ierally 
found in policies and these are formal notice and proof of the hap- 
pening of the loss, its nature and the manner or cause of the loss. 
These provi^ons are for the benefit of the insurer and may be 
waived. Where the facts are clear and undisputed and admit but 
one iufereuce, the court decides whether an insurance company has 
waived compliance mth such conditions." And so as to compliance 
within the time provided by the policy." And as to variance in 
form from that prescribed.'* And the court may determine, under 
like circumstances, whether there has been a waiver, or estoppel 
amounting to waiver, us to appraisal made a necessary condition 

itHyers t. Hsry]and Cas. Co., Mo. App. 456, SI S. W. S37; Cullea 

123 Ho. App. eS2, 101 S. W. 124. T. loBurance Co. ot N. A., 126 Ho. 

II Keet'RoQtitree D. O. Co. v. App. 412, 104 S. W. 117; Yates v. 

Hercantlle T. Mnt Ids. Co.. 100 Mo. Tbomason (Ark.), 102 S. W. 1112; 

App. 504. 74 S. W. 469; McCalum T. Kennedy v. Agricultural Ina. Co.. 

N. F. Ins. Co., 61 Mo. App. 352; SI 8. D. 145, 110 N. W. 116; W. F. 

Cleaver t. Traders Ins. Co., 71 Parker v. Conflnental Ins. Co., 143 

Mich. 414, 39 N. W. 571, 15 Am. St. N. C. 339, 65 S. E. 717; Thompson 

Rep. 275; Agricultural Ins. Co. V. r. Germsnla F. Ins. Co., 45 Wasb. 

Potts. 55 N. J. L. 15S, 26 Atl. 27. 39 4S2, S8 Psc. 941. 

Am. St, Rep. 637; Security Mut. L. i» Western Underwriters Aasn. v. 

Ins. Co. V. Calvert (Tex. CW. App.), Hanklns, 221 111. 304, 77 N. E. 447. 

103 8. W. 320. >• SpHng Garden Ins. Co. v. 

H Slegel V. Pboenli Ins. Co., 107 Whayland. 103 Md. 699, 64 Atl. 925. 



ovGoo^^lc 



1038 PEOVINCB OP COUET AND JURY. 

precedent to bringing an action on a policy.'" Fnwn the adjudged 
caaes it is to be fiurly deduced, that the insured is m^^ly bound 
to a reasonable con]plian<!e with a condition or provision enabling 
insured to sattle the matter without resort to litigation. If it is 
indicated by the insurer that such compliance ia either not necessary 
as information to ^able it to pay a recognized liability, m it denies 
all liability, non-compliance does not preclude the bringing of a 
suit upon the policy. But if insurer insists there has been no 
waiver, and the facts are in dispute or inf^^nce therefrom is not 
certain and clear, the que^ion is for the jury.'* And so whether 
the aets of the agent of insurer baying authority in the matter were 
fairly calculated to, and did, mislead insured as to the necessity of 
com.plying with such precedent conditions.** And bo whether do- 
fects in the form of proof have been waived.** Whether delay was 
caused by insurer and if reasonable diligence has been used by in- 
sured in compliance have been held questions for the jury." 

§ 1286. General Obserrations. — Getting away from the question 
<^ waiver, with its nece-ssaiy concomitant of knowledge, and also 
the questitm of liie existence of insurable interest, either not pos- 
sessed at the beginning of the contract or part«d with snbseqnently, 
tliere yet remains a very extensive field of inqniry into matters of 
fact. Diversity in this respect is perhaps more characteristic of 
insurance, than of almost any other kind of contracts. There is 
the same reason why misrepresentation and fraud should play their 
parts in entering into these contracts such as may be present in 
other contracts, looking at them in a general way. Considering 
them specially, however, the complicated provisions of policies, with 
their infinite detail of inquiry from applicants, multiply the ques- 

ED FroTtdence Washington Ina. Wltham (Ark.), 101 8. W. 721; 
Co. V. Wolf, 168 iDd. 690, 80 N. B. TliompBon v. Traders Ins. Co.. 
26; O'Rourke v. German Ins. Co., 169 Mo. 12, 68 S. W. 889. 
99 Minn. 293. 109 N. W. <01; Fire :> Dwelling House Ins. Co. r. 

Assn. of FhlladelpMa v. Appel, 76 Dowdall, 159 III. 179. 42 N. E. 606; 
Oblo St 1, 80 N. E. 952; Hartford Hanover F. Ins. Co. v. Gustln, 40 
F. Ins. Co. T. Asher, 30 Ky. Law Neb. 828, 59 N. W. 375. 
Rep. 10S3, 100 S. W. 1053. is Davis Shoe Co. v. Klttannlng 

n White T. Dwelling House Ins. Ina. Co., 138 Pa. 73, 20 Atl. 838, 21 
Co., 12 Ky. Law Hep. 191; Carp v. Am. St. Rep. 904; Peoples F. Ids. 
Queens Insurance Co. (Mo. App.), Co. v. Fulver, 127 111. 246, 20 N. E. 
92 S. W. G28; Western Under- 18. 
writers Assn. v. Hanklns, supra; 
Arkansas Mut. F. Ids. Co. v. 



o.GoQi^lc 



INSUB-UfCB. lUoU 

tidns of fact, which enter into such contracts. To this is added the 
eagerness of agents towards the earning of conunissions or their 
desire to favor individuals at the expense of insurers. These ageota, 
either upon an understanding with applicants, or independently 
of these participating in their fraud, often cause the truth in state- 
ments In applications to be suppressed or actually misrepresented. 
In addition there arise during the life of such a. contract, terminable 
by forfeiture in a variety of ways, the occurrence of any one of 
which may present an inquiry of facts, countless opportunities for 
dispute. The remaining sections of this chapter and cases cited 
thereto relate to questions, where knowle<^ of facts tending to 
show non-liability was not imputable to the insurer prior to loss, 
unless waiver is specitieally referred to. 

§ 1286. Bepresentationa and Warranties.— Whether a statement 
in an application for insurance is a representation or a warranty is 
a qaestiiHi of law, arising out of the contract as its terms are con- 
trolled by the law of the place of contract, the general rule being 
that construction which preserves a policy against forfeiture is to 
be preferred to that which puts an end to its existence.** Unless 
the law of the place of tiie contract prevents, the contract may make 
a representation a warranty and reqiiire exact compliance there- 
with, irreapective of ita materiality and whether it amounts to a 
fraudulent misrepresentation or not." Statutes, however, have re- 
quired that the materiality of a representation is the sole question 
to be cnnmdered and these have been held not to deprive an insur- 
ance company either of its liberty or property without due process 
of law or deny to it the equal protection of law." In jurisdictions 
where materiality is the test, that is a question ordinarily for the 
jury.*" In Massachusetts it has been steadily ruled that it is a 

" American Cred. iDdem. Co. t. Modern Brotherhood, 15 N. D. 92, 

Wood, 73 Fed. 81, 19 C. C. A. 264; 108 N. W. 561; Meyer v. Home Ins. 

Aetna Indem. Co. t. Crowe C. ft M. Co., 137 Wla. 2B3, 106 N. W. 1087; 

Co., 154 red. 545, 83 C. C. A. 431; Prudential Ina. Co. v. Hummer, 36 

Missouri SUte L. Ins. Co., 1 Ga. Colo. ZOS, 84 Pac. 61; Demlog Inv. 

App. 446, 58 S. B. 93; JCennedy v. Co. t. Fire Ina. Co., 16 Okl. 1. 83 

Agricultural Ina. Co., 21 S. D. 146, Pac. 918. 

110 N. W 116; Court ot Honor t. " Northwestern Nat. Life Ina. Co. 

Clark, 125 111. App. 490. v. RIggs, 203 U. S. 243, 51 L. Ed. 168. 

»■ PennsylTanla M. L. Ina. Co. v, '» Kaller v. Home L. Ina. Co., 198 

Hecbanlca Sav. Bank ft T. Co., 72 Mo. 440, 96 S. W. 903; Provldeiit 

Fod. 413, ISaO. A. 284; Saterleev. Sav. L. Aasur. Co. t. Wtaa^ne'a 



jcibyGoOQlc 



1040 PBOVINCB OF COURT .UJD JUEY. 

qnestion for the court'' If forfeiture is dependent upon the in- 
tent, with which a misi-opresenfation is made, this is a question for 
the jury.*° And where the meaning of a question or answer is 
douhtful, the truth of the answer is for the jury.** As to materijil 
ity of concealment the rule is the same ns in misrepresentation.*- 

§ 1287. Anthority of Ajrents. — In the absence of ratification, ex- 
press or implied, the question may be sometimes in dispute as Ui 
the authority of an agent to effect insurance. "Where this was mnth' 
to depend on whether the property claimed to he insured was wilhin , 
the jurisdiction, wherein an agent was authorized to solicit insur- 
ance, and the evidence as to this was conflicting, it was held a ques- 
tion for the jury,*' A course of dealing between an agent and a 
customer, such as notification prior to expiration, that a policy 
would be renewed unless customer directed to the contrary, it was 
held a question for the jury whether policy was to be considered 
renewed, where loss occurred in the interval of the usual credit 
given on premiums." Where one other than a regular agent 
solicited and secured the insurance, his authority is a question of 
fact.** And so, where company sent renewal receipt to a broker 
who procured original insurance, but did not collect the premium 
on it, it was held a question for the jury whether he was authorizc<I 
to collect the renewal premium, where company «Tote to him re- 
minding him he had not remitted the premium.** Where an agent 
presented a policy, but there was a disagreement about payment of 
premium, and insurer testifies it was agreed he should call again and 
liz the matter up and agent remits the premium, reporting it paid, 
but a fire occurring he then stamped the policy cancelled, it was 

Admr., 26 Kj. Law Rep. IGO, 93 ai Mut. U Ins. Co. v. Baker, 10 

8. W. 1049; Fidelity A O. Co. v. Tex. Civ. App. 515, 31 8. W. 1072. 

Weatern Bank, 29 Ky. Law Rep. »DuIany v. Fidelity ft Caa. Co.. 

639, 91 S. W. 3: MonabBD V. Mut. L. 106 Md. 17, 6S Atl. 614. 

IDB. Co., 103 Md.-146, 63 Atl. 211; MRugKlea v. Am. Cent Ina. Co.. 

State Ina. Co. v. Da Bols, 7 Colo. IH N. Y. 415, 21 N. B. 1000. 

App. 214, 44 Fac. 756. ■• Long t. North BritlBh A M. Ins 

MLangdeau t. Lite Ina. Co., 194 Co., 137 Pa.-335. 20 AU. 1014, 21 

Mass. 56. 80 N. E. 452. Am. St. Rep. 879. 

nLevle V. Metropolitan L. Ina. "Com'l Union Asaur. Co. t. Ell- 
Co.. 163 Maaa. 117, 39 N. E. 792; iott (Pa.), 13 AU. 970 (not reported 
Modem Woodmen v. Wilson, 76 In atale reports). 
Neb. S44, 107 M. W. 668. xAm. Fire Ina. Co. v. Brooks, 83 
Md. 22, 34 Atl. 373. 



7crib;G00<^IC 



INSURiVNOB. 1041 

for the jury to say if tlie policy was in force." It hpa been held, 
that, where it was sliown it.aurer had do knowledge of any limita' 
tions «i an agent's authority, it was not error to leave it to the jury 
to determine whether an agent had authority to make an oral con- 
traet that the insurance should rtm from the time of the appli- 
cation." 

S 1288. OonditioDS SutMeqnent as to keepins Policy in Force. — 
Insurance policies contain various clauses in regard to things to be 
performed or forbidden during the existence of the risk assumed, as 
to change in condition of the property, the keeping of inventories 
in a safe place, the guarding against fire from explosion and keeping 
the premises occupied. In defending an action upon a policy upon 
■ny such executory condition being violated the burden is upon the 
insurer to estAblisb such fact. This often involves a niised question 
of law and fact Thus where a policy contained a bookkeeping 
clause requiring assured to keep a complete set of bo(^ and there 
is expert testimony as to the system used by the insurer, the ques- 
tion of compliance was left to the jury." And whether vacancy 
continued for the length of time forbidden by the policy, may, un- 
der circumstances, be a question for the jury.'^ It has been also 
held that vacancy is more often a question for the court." Where 
an 'application for insurance stated that the premises are "unoccu- 
pied but to be occupied by a tenant," this was held to leave it to 
the jury as a qnesticm of fact, whether the occurrence of the fire 
was beyond the reasonable time within which they were to be oc- 
cupied.** Generally it may be said that compliance or non-com- 
pliance with a prospective warranty presents upon confiicting 
evidence a question for the jury, or where the undisputed facts are 
capable of different inferences.** 

S 1289. Exercise of Diligence or NesUgenoe.— Where a policy 
provides for insured making diligent effort to save his property, it 

c Dors T. Royal Ins. Co., 9S Mich. 135, GS M. W. 695; Rockford Ina. Co. 

122, 67 N. W. 30. v. Storlg. 137 111. 646, 24 N. E. 674. 

u Hardwick v. St Ina. Co., 20 Ore. <> Hartshonie t. Agrfcultural las. 

647, 26 Pac. S40. Co.. 50 N. J. L. 427, 14 Atl. 615. 

>*W«Btem Amut. Co. r. Al- ** Hough v. City Fire Ins. Co., 2S 

Uielmer Bros., 68 Aric 565, 25 S. W, Conn. 11, 24. 

1067. 4t Allen v. Mtlwaukee M. Ina. Co., 

*» Haas T. Anchor P. Ids. Co.. 14S 106 MIcb. 204, 64 N. W. 15; Hastings 

Mich. 432, 111 N. W. 1044; German v. Brooklyn Lite Ins. Co., 138 N. T. 

Am. Ins. Co. r. Buckataft, 38 Neb. 473. 34 N. E. 289. 
Trails— <e 



7crib,G00l^lC 



1042 PBOVINCB OF COUBT JLKD JUBY. 

is for the jury to Bay whether and to what extent his loss was due 
to alleged neglect in this regard.** So whether a loss by fire was 
caused by gross neglect of insured, where it was shown that it 
originated from a stove inside a bam, was a question for the jury.** 

§ 1290. Whether & ObaDge of Oircnmstaoces increases the 
Bisk. — It is a familiar rule in the law of fire insurance that any 
change in the condition of the property insured, which substan- 
tially increases the risk, avoids the policy; but whether such a. 
change has taken place is always a question of fact for a jury." 
"Whether the company, in defending an action on a policy, relies 
upon the falsity of the particular representation, or on the failure 
to comply with an executory stipulation, it is upon them to prove 
it; and it is a questicm of fact for the jury in either aspect.*^ Thus, 
where the policy required that notice should be given to the com- 
pany of any alterations which tend to increase the risk, within 
twenty days, or that the insurance should become void, and altcrar- 
tions were made and no notice given, it was held a questimi of fact 
for the joT}' whether such alterations did tend to increase the 
risk.** So, where the subject of the insurance was a dwelling- 
house in a suburban place, and, aft«r the insurance and before the 
loss, it was removed bodily to a position 200 feet away, without, it 
seems, being brought into proximity to any other buildings or com- 
bustible materials, it was lieid that the court could not say, as matter 
of law, that the removal increased the risk, but that whether it did 
or not was a question for the jury.*" 

M Jones V. Hovard Ins. Co., 117 399; Sbepherd t. TTnlon M. F. Ins. 

N. Y. 103, 22 N. E. 578. Co., 38 N. H. 232. 240; Harris v. 

»MoBs T. Home Ids. Co., 30 Ky. North Am. tns. Co., 190 Mass. 361, 

Law Rep. G3D, 99 S. W. 308. 77 N. B. 493. 

"Gamwell v. Merchants ate. Ina. "Daniels v. Hudson Elver etc. 

Co., 12 Gush. (Mass.) 167; Clark v. Ins. Co., 12 Cuah. (Mrsb.) 416, 426. 

Insurance Co., 40 N. H. 333, 339; Le Compare Bilbrough v. Metropolis 

Roy V. Park P. Ina. Co., 39 N. Y. 56; Ins. Co., S Duer (N. Y.), 587. 

Grant v. Howard Ins. Co., 6 Hill ** Schneck v. Mercer Countr M. F. 

(N. T.). 10; Townaend v. North- Ina. Co., 24 N. J. Law, 447. 

western Ins. Co., 18 N. Y. 168; »QrlBwold v. American Central 

North Britisli etc Ins. Co. v. Insurance Co., 1 Mo. App. 97, af- 

Stelger, 13 Bradw. (III.) 482; firmed, 70 Mo. 654. In an Inquiry 

Schmidt V. Ins. Co., 41 111. 295; New or this kind expert opinion may be 

Eng. Ins. Co. v. Wetmore. 32 111. taken as to the snrroundlng clr- 

221; Wood on Fire Ins. 814; Smith cumatkncea. comparing the now and 

V. Mecbanlc'a etc. Ins. Co., 82 N. Y. the old locations. showluK conBtruo- 



Coo»^lc 



INSUBANCE. 1043 

§ 1291. Descriptive Tenna as Question of Tact. — The question 
whether an insured comes within a class of persons described in a 
policy has been held to be a jury question. Thus where the keeper 
of a house of ill fame was insured as a "housewife."'* And so 
in an accident policy where insured was put down as "Superin- 
tendent of Inspection" no such position being known to the service 
in which he was employed and no such class in the insurer's manual 
bat both in the service and in the manual there was something of 
a similitude in description of insured's occupation, and at a lower 
rate of premium.'*' Similarly it has been held as to classification 
of injuries.'* In various instanees juries have been allowed to 
consider the scope and meaning of descriptive terms.'* 

§ 1292. Cause and Proximate Cause of Loss — Volantary Ez- 
posnre to Danger. — In life and accident insurance cases (and, as 
we shall see hereafter, in marine insurance cases) the cause of the 
loss or death is a matter as to which different inferences may be 
drawn by fair-minded men from the evidence. Thus a defense may 
be predicated upon suicide; the death occurring from a mortal 
wound being indicted, when no other attainable eye-witness than de- 
ceased was present The evidence to establish or repel the inference 
of self-destruction would tflke, generally speaking, a very wide range 
and it would be for the jurj- to pass upon its weight." Indeed one 
court has gone to the extent of saying that the defense of suicide 
is not maintainable from the finding of a dead body with a mortal 
wound from a bullet, and a pistol there present, unless the eircum- 

tion of adjacent bnlldlngB, the facU- Aasn., 89 Wis. 19, 61 N. W. 293, 48 
ItleB for putting out lira and gener- Am. St. Bep. SIE, 26 L. R. A. T41. 
allr all evldenie reaaonably tending >» Meaning of "accidental." Dun- 
to Bbow relative exposure and can v. Mut. Ace. Assn., 59 Supr. Ct. 
chances of destruction la competent. 145, 13 N. T. 3. 620. So eaylcg 
Adams T. Atlas Ins. Co., 135 Iowa, whether a sting of an Insect Is 
299, 112 N. W. 661. poisonous. Prererred Mut. Ace. 

"Perry v. John Hancock M. L. Assn., 1 Moneg. (Pa.) 481, 

Int. Co., 143 Mich. 290, 106 N. W. »* Travelers' Ins. Co. t. Nltter- 

860. house, 11 Ind. App. 155, 3S N. E. 

•1 Wilder r. Continental Caa. Co., IllO; Walcott v. Metropolitan L. 

150 Fed. 92. Ins. Co., 64 Vt. 221. 24 Atl. 992, 33 

■aBeber r. Brotherhood R. R. T., Am. St Rep. 9S3; Snyder v. Mut. 

75 Neb. 1S3. 106 N. W. 168. L. Ins. Co., 93 U. S. 393, 23 L. Ed, 

Whether a certain Injury was a kind SS7; Couadeau v. Am. Aco. Co., 95 

causing total disability held a Jury Ky. 2S0, 2S S. W. 6. 
quMtloD. Lord v, Am. Mut. Ace. 



ovGoo^^lc 



1014 FBonHoB or ooubt and jdst. 

Btances exclude with reasonable certainl? any hypoflieaia of ac- 
cident or the act of another.** In other cases, however, verdicts 
against insurers have been set aside where inference of accident or 
murder waa so effectually excluded as to warrant no other condu- 
sion than self-destruetion.** And the question of proximate cause 
of death is often a jury question, when, as under a policy in ac- 
cident insurance, death follows after an injury, there being evi- 
dence tending to show death resulted from other cause, not within 
the poli<^.*' It also is often a question for the jury, whether death 
resulted from voluntary exposure to unnecessary danger — what is 
snch exposure being a mixed question of law and fact" And bo 
when the question is whether insured was in a condition of intoxi- 
eatiim at the time he was killed or in some situation of danger, such 
as would avoid the policy, are questions of fact." In dealing with 
the subject of proximate cause a recent case in Minnesota is very 
interesting. The policy contained a clause against loss or damage 
by cyclone, tornado or windstorm. Plaintiff's building was des- 
troyed by fire resulting from the wind blowing down upon it the 
unsupported wall of an adjacait building destroyed by fire. The 
court held that, if it might have been reasonably foreseen that such 
a wall might be blown over and fall upon the insured building, this 
was an element of the risk. The jury having before them evidence 
that such a wind was liable to occur during any month in any 
seanm of the year, their finding that the fire and not the wind was 
the proximate cause was held to be justified."' 

HLeman r. Manbattan L. Ine. App. 362, 98 & W. 880; Cary v. Ace. 

Co., 46 La. Ann. 1189, IG South, ft loa Co.. 12? Wla. 67, 106 N. W. 

38S, 24 L. R. A. GS9. 1056; Hfre. Ace. Ina. Co. r. Dorgan, 

i« Chicago Guar. P. L. Soc. v. W11- 5S Fed. US, 7 C. C. A. 6S1, 22 L. H. 

son, 55 111. App. 138; Sweezey v. A. 620. 

Prudential Life Ins. Co., 22 N. T. 8. '* Carpenter v. American Ace. Co., 

1054, 3 Misc. Rep. 608; Mut. L. Ins. 46 S. C. G41, 24 S. B. GOO; Traders' 

Co. V. Tillman, 84 Tes. 31, 19 S. W. * TravelerB' Ace. Co. v. Wagley, 74 

294; Johns v. NorthweBtern M. R. Fed. 457, 20 C. C. A. B88. 

Aasn., 90 Wis. 332, 63 N. W. 276, 41 "Anthony t. Mercantile Mut. 

L. R. A. GS7. Ace. Abso., 162 Mass. 314. 88 N. B. 

IT Travelers' Ina. Co. v. Melick, 973, 2S L. R. A. 406; FolIIs v. Mut. 

65 Fed. 178, 12 C. C. A. 644, 27 L. R. Ace. Aaan., 94 Iowa, 486, 62 N. W. 

A. 629; Prader v. National Masonic 807, 28 L. R.-A. 78. 

Ace. Assn., 95 Iowa, 149. 63 N. W. •»RuaaeIl T. Fire Ins. Co., 100 

601; Hail V. American Maaonlc Ace. Minn. 528, 111 N. W. 400, 10 L. R. A. 

Assn., 86 Wlfl. 618, 57 N. W. 366; (n. 8.) 826. 
Driskell T. Ace. * Ina. Co., 117 Mo. 



D.qitizeabyG00<^lc 



IN8XJBANCS. 1045 

S 1293. Whether Insnrecl wu Bane or Insane at Snicide. — 
Where an insurance policy became forfeitable for suicide by one 
not insane at the time of the commission of the act, the usual pre- 
sumption of sanity obtains and it becomes a question of fact whether 
that presumption is overcome. It is upon such an issue competent 
to snbmit evidence of insured being moody, nervous, melancholy 
and of his complaining of pain and looking haggard a short time 
before his death, and compare these manifestations with bis do- 
mestic relations, former genial disposition and favorable finandal 
circumstances, the jury to be the judges of their weight on the 
question of his being insane." Courts have diifered as to the con- 
struction to bo placed on such expressions in policies of insurance 
as provide for forfeiture when insured dies by his own hand 
"whether sane or insane." In a Vermont case it was held that 
sach a provision obviates oil inquiry into d^rees of insanity and 
makes the physical act of self-destmction fatal to recovery upim 
the policy.*' While the weight of authoriiy seems as above stated, 
it has been held that though insured intentionally takes his own 
life, yet if his mind is so far gcme as to render him unconscious 
that he ifi taking his life, the death will be r^arded as accidental 
and the policy not forfeited,'* As to whether there was such eon- 
diti(Hi of the mind could well be a question of fact. Accidental 
death by a person of sane mind, as in his unintentionally admin- 
istering to himself an oveixiose of morphine, has been held not within 
what the court calls a mere suicide clause, viz.: "If I die by my 
own band, vohmtarily or involuntarily, sane or insane."'* The 
question of this death being accidental was passed upon by a jury, 
and the verdict so finding was upheld, the evidence to show same 
being wholly circumstantiaL 

•> Blackfltone v. Standard L. ft S19. See also Sparks t. Knights 

Acc Co., 74 Mlcb. S92, 42 H. W. 166, Templars etc. Indem. Co., 61 Mo. 

t L. B. A. 4SS. App. 109. 

*>Bl]llngB V. Accident Ins. Co., AiBrlgnac v. Pacific Hut Lite 

C4 Tt. 78, 24 Atl. 656, 33 Am. St Ins. Co., 112 La. 574. 36 South. 595, 

Bflp. 913, 17 L. R. A. 89. Sea also 66 L. R. A. 322. See also aame lan- 

Scartti V. Security Mut. L. Ins. Co., guage construed In almllar way. 

76 Iowa, 346, 39 N. W. 6ES; Bigelow where Insured met death from bis 

r. BerkHbirs Life Ins. Co., 93 U. S. gun being discharged while he was 

284. 23 U Ed. 918: Moore t. Ins. Co., cleaning It, In case of KnlgbU 

192 Masa. 468, 78 N. K. 488. Templars etc. Indem. Co. t. Cray- 

•• Masonic L. Assn. v. Pollard's ton, 209 111. 650, 70 N. B. 1066. 
Gdn., S8 K7. Law Rep. 301, 89 a W. 



o.GoQi^lc 



1046 



PBOVINCB OP OOUBT AND JUBT. 



S 1294. Beaaonable Tims for giving Notice of Loss. — ^Where an 
insurance polii^ contained a dause requiring the assured to give 
notice of the loas "fortkmtk," whether notice was given forthwith, 
within the meaning of the instrument is, contrary to the general 
rale touching the exposition of written instruments, a question of 
fact for the jury.** The piocess of reasoning by which this conclu- 
sion ia reached is simple enough. The courts hold that such a con- 
dition ^ould he construed liberally in favor of the insured, and that 
he complies with it when he gives notice with due diligence, within 
a reasonable time, and without unnecesaary delay, under all the 
circmnstaneea of the case.'" While the question whether a party 
has used due diligence or uot in giving such notice has sometimes 
been held to be a questitoi of law, especially where the facts and 
circumstances were admitted, established, or, conceded by the plead- 
ings,'' — other courts have ruled that, upon a jury trial, where the 
facts are in issue, it shouhi be left, to the jury to determine what 
is a reasonable time as a question of faet.** 



w Donataue v. Windsor County 
etc Ins. Co., 56 Tt. 874; Hamden v. 
Milwaukee Hech. Ins. Co., 161 Mass. 
884, 41 N. E. 6ES; Care]r t. Farm- 
ers' Ins. Co., 27 Ore. 146, 40 Pac. 91. 
So In accident policy requiring "im- 
mediate" notice. L70D V. Railway 
PaBBQDg«r Assur. Co., 4S Iowa, 631; 
Lockwood T. Middlesex Hut Assur. 
Co., 47 Conn. G53. 

MSt. Louis Ins. Co. T. Kyle, 11 
Mo. 378; Inman r. Western Fire 
Ins. Co., 12 Wend. (N. T.) 452; 
Peoria etc. Ins. Co. v. Lewis, IS 111. 
663; Niagara Fire Ins. Co. v. Scam- 
' mon, 100 lU. S44, 11 Ins. L. J. 614; 
Fliillips y. Protection Ins. Co., 14 
Mo. £20; Edwards r. Baltimore Ins. 
Co., 8 0111 (Md.), 176. Upon the 
more general question whether rea- 
lonable ttme is a question of law or 
fact, see post, SS 1630, et seq. 

■T Columbian Ins. Co. t. Law- 
rence, 10 Pet (U. S.) 607. 

*» Donahue v. Windsor County 
etc. Ins. Co., 66 Vt. 374, 3S0. It la 
said that the courts ot Vermont 
tiave always adopted this rule la all 



Questions of doubt, depending upon 
a general Inference from a multi- 
plicity ol particular facts, and 
where the law has flzed no rnle. — 
such as questions of due diligence, 
reasonable time, prohable cause, etc 
Ibid. 3S0, per Taft, J.; citing Ses- 
sions V. Newport. 23 Tt 0. In a 
case in Connecticut It Is said: "Ex- 
treme cases either way may be 
easily determined. Between them 
there is a wide belt of debatalde 
ground, and cases falling within it 
are governed so much by the pecu- 
liar circumstances of each caaa, that 
it la much better to determine the 
matter aa a question of fact." Lock- 
wood V. Ins. Co., 47 Conn. 553; 
Western Assur. Co. v. Studebaker 
Bros. Mfg. Co., 124 Ind. 178, 23 N. B. 
113S. As to whether or not a notice 
was sent Is a question of fact and 
under circumstances this nay be 
tor the Jury. McParland v. U. S. 
Mut Ace. Assn., 124 Mo. 204, 87 
S. W. 436. The time within which 
an Insurer should Indicate its dis- 
satisfactlon with notice or proon 



Coo^^lc 



tNSDSANCe. 10:17 

S 1^6. Snfflciency of Preliminary Proofs of Lobs. — It haa been 
held that the question of the preliminary proofs of loss is for the 
jury, in the sense that the documents are to be laid before them for 
identification, leaving it to the judge to say whether th^ make a 
prima facte case ; " and that the jury must determine from the 
evidence the degree of particvlarity in the account of the loss sent 
to the insurance company, and whether it was as specific as the 
nature of the case admitted of,'" 

§ 1206. Waiver of Limitation for Bringing Action and Vexa- 
tions Defense. — Waiver of time within which suit must he brought 
is a question of fact for the jury,'^ And ao the question whether 
there is a vexatious delay in payment subjecting to the imposition 
of a penalty in the way of damages and counsel's fee.'* 

§ 1287. Waiver of a Condition against Transfer of Policy. — So, 
where, under a policy which, by ila terms, becomes void upon a 
sale or transfer of the property assured, without consent of the 
company indorsed on the policy, and a change in the title has taken 
place without any transfer regularly made, but the party in in- 
terest has continued to pay premiums for a number of years, it will 
be a question for the jury whether the state of the policy was not 
known to the company, there being evidence entitling them to draw 
such an inference. Consequently it was a question for the jury 
whether they had not waived the forfeiture, which had taken place 
by the alienation of the property without an assignment of the 
policy," 

S 1298. Pailnre to Mention Specific Articles of Herchandiae. — 

An insurance oa "merchandise," such as is usually kept in country 

prwents a qneHtlon of fact for the lent or an honest mistake Is a ques- 

Jnrr. DavlB Sboe Co. t. Klttannlng tlon of fact. German Ins. Co. r. 

Ins. Co.. 138 Pft. 73, 20 AU. 838. 21 Reed, 13 Ky. Law Rep. 207. 

Am. St. Rep. 304. ii Bonnert v. Pennsylvania Ina. 

■•Klein V. Franklin Ins. Co., 13 Co., 129 Ps. 5GS, IS Atl. 552, 15 Am. 

Pa. St. 247; Thomas v. Burlington St Rep. 739; Sample v. London & 

Ins. Co.. 47 Mo. App. 169; Henessy L. Fire Ina, Co., 42 S. C. 14. 19 

V. Niagara F. Ins. Co.. 8 Wash, 91. S. E. 1020; Lmchburg Cotton Mill 

35 Pac. 585, 40 Am. St. Rep. 892. Co. V. Travellers' Ins. Co., 149 Fed. 

" Franklin Fire Ins. Co. v. Upde- 064, 79 C. C. A. 464. 

graff, 43 Pa. St. 350; Bniger v. Ins. » Keller v. Home Life Ins. Co., 

Co., 129 Wis. 281, 109 N. W. 9B. 198 Mo. 440. 95 S. W. 903. 

Whether a talee atatement as to ar- i* Buckley v. Garrett, 47 Pa. St. 

tides claimed to be lost was traudu- 205. 



jcibyGoQi^lc 



1048 PBOTINCB OF OOUBT AM) JUBT. 

stores, is not void btMiause Lardware, cbina, glass, lookiDg-glasa, etc., 
are not specificftlly mentioued in the application. If the articles are ' 
aaeli as are usually kept in country stores ; and whether they are 
snch is a question of fact for the jury J* 

§ 1299. Identity of the Articles Destroyed.— As already seen " 
where the ambiguity is on the face of the instrument — that is where 
it is a patent ambiguity — ^it is for the judge to explain it; but an 
ambiguity in the contract arising cot of extrinsic evidence, which 
is necessary to be heard in dealing with the subject of the contract, 
must be solved by the jury. It was so held where there was a doubt 
as to the house in which the goods insured were ^tuated — whether 
they were situated in the house which was burned, or in another and 
adjacent house, which fact could not be determined by the language 
of the polity. In such a case it was said by Strong, J.: "There is 
some ambiguity, tiierefore, in the policy, arising from extrinsic 
widence. The construction of written papers is undoubtedly for 
the court, and it is a question of law. Even if there be an am- 
bignity on the face of a written or printed document, it is for the 
judge to explain it But if the ambiguity arise from extrinsic evi- 
dence, as it does in this case, it must be solved by the jury.^* It is 
for the court to decide what the instrument means; but the appli- 
cation of the meaning must be a question of fact, when it is rendered 
doubtful by parol evidence what was the identical subject respecting 
which the parties contracted. For this reason we hold there was 
error in the charge of the court It should have been submitted to 
the jury to find, not the meaning of the ^vritten application, bat 
whether the subject of it was goods in the Kephart House, or goods 
in the Western House, retained by the plaintiff after his sale of 
the other to Kephart"" It is obvious that the question whether 
the policy applies to particular articles will be a question of fact 
for the jur}'," on the general principle that questions of identity 

'* Franklin Fire Ina. Co. v, Upde- the Jury If benzine waa embraced 

graff, 43 Fa. St. 350; Southwest L. A In tbe written part Carrlgan v. 

Z. Co. r. Fboenlx Ina. Co., 27 Mo. Lycoming Fire Ins. Co., 53 Vt 403. 

App. 448; Niagara F. Ins. Co. v. 3S Am. Rep. 687. 

De GratT, 12 Mich. 124. Where the id Ante, g 1083. 

written part at s policy specified '» Citing Smith t. Thompeon, S 

"drugs and such other merchan- C. B. 44. 

dlse as is usually kept In a country ^^ Beatty T. Lycoming County 

store" and the printed part excepted Ins. Co., 52 Pa. St 4S3. 

benzine, It was held a queetlon for tb Home Idb. Co. v. Favorite, 46 
III. 263, 270. 



7crib;G00<^IC 



INaOBANCE. 1049 

are for the jary," and by analogy to the mte that the question what 
land is embraced in the descriptioii calls of a deed is for a jury."* 
It is for the jury to determine, as a question of fact from the evi- 
dence, whether the merchaodise insared was destroyed in the " build- 
ing" described in the policy; bat il a building contain several store 
rooms, and there be any uncertainty as to whether all the rooms 
were included, it is fatal to the insurers ; for the language of the 
policy is theirs, and is to be ctKistrued meet strongly against them." 
Where the insurance company had given permiasion to the assured 
to "enlarge the building" in which the merchandise insured was 
tb^i contained (the same in which it was subsequently burned), 
and, in the permission, had mentiuied the goods as insured in the 
building, requiring that no goods should be kept in the second 
story after the completion of the addition, — this was held sach 
evidence that the store-rocHns of the assured were in the building 
described in the policy, as to justify a aubmiasion of the queatioo 
to the jury.'" 

S 1300. Mutual Innmuice — Data for Correct Assessment. — In 
an actioii to recover an assessment upon a deposit note, given to a 
mutual fire insurance company, the question whether the books of 
the company furnish solBcient data for the making of a correct 
assessment, is a question of fact for the jury." 

S 1301. Habitnal Intemperance. — ^The question whether a per-. 
SOD whose life was insared was habitually intemperate, within the 
meaning of a claaae avsiding the policy on this ground, has been 
held a question for the jury on confiicting or doubtful evidence.** 

nPoBt. a 14G0, et aeq. tbe mlDUte books, tbe question of 
•■ Poat, II 1461, et seq. the call of tbe asseBsment or at due 
•1 Franklin F. Ins. Co. T. Opde- notice thereof being given becomes 
graff, 43 Pa. St. 3E0. a aaestlon of tact for the Jury. 
■■ Ibid. Stewart t. Supreme Council A. L. B. 
M Uarblehead M. F. Ins. Co. v. 36 Mo. App. 319; Hannum t. Wad- 
Underwood, 2 Orajr (Has^. 210, dell, 135 Mo. 163. 38 S. W. 616. See 
214. Is fraternal Insurance Rocle- also Globe Keeerre Mut It. Ins. Co. 
ties, the burden In claim of forfeltr v. Duffy, 76 Md. 293. 25 Atl. 227. 
nre for non-payment of an assesB- u Northwestern Life Ins. Co. v. 
ment being to sbow It was duly and Muskegon Bank, 122 V. S. 501. 
regularly called. If there Is any Where a Btlpulatlon tor forfeiture Is 
conflict of evidence or any failure Insured becoming bo far Intemper- 
ef data to show every step and con- ate as to impair his health serionaly 
dltlOD precedent, as evidenced by and permanently or Induce dellr- 



;aoyGoO<^lc 



1050 PBOVINCB OF OODBT AND JUBI. 

In such a case, where the insured had actually had an attack of 
delirium tremens, it was held proper to instruet the jury that, if 
the habits of the insured "in the usual, ordinary, and every-day 
routine of his life were temperate," the reprearaitations made, as 
to his habits being temperate, were not untrue, within the meaning 
of the policy, although he may have had an attack of deldrium 
tremens from an exceptional over-indulgence. The court reasons 
that it could not have been contemplated, from the language used 
in the policy, that it should have become void in consequence of an 
occasional excess by the insured, but only where such excess, by 
frequent repetitions, had become a habit" 

Abticlb II. — Marinb Iksubanob. 
Sccnon 

1318. Whether Evidence overcomes Freaumptlon ot Seaworthtnesi. 

1319. Whether Clrcum stances raise Presumption of UnseawortMnen. 

1320. Time wlthfn which a. Voyage sbould be Performed. 

1321. Termination ot the Voyage. 

1322. Facts which will Justify an AbandonmenL 

1323. Reasonable Time for Abandoning a Cargo to the Underwriters. 

1324. Reaaonable Time for Ascertaining whether Recover; and Repair 

Possible. 

1325. Whether Seizure of Vessel was an Act of War. 

1326. Barratiy: Misconduct In Doing an Act Prohibited b; Statntft 

§ 1318. Whether Evidence Overcomes Presnmption of Sea- 
• worthiness. — In an action upon a policy of marine insurance, the 
plaintiff goes to the jury with a presumpiion of law in his favor 
that t^e vessel was seaworthy, and whether the evidence is suffi- 
cient to remove this presumption is a question for the jury, and 
not for the court.** 

§ 1319. Whether OircamstanceB raise Prenunption of Unsea- 
wortbiness. — "Where the inability of a ship to perform its voyage 
becomes evident soon after leaving port, and it foundeis without 
stress of weather, or other adequate cause of injury, the presump- 
tion is that this inability existed before setting sail, and that it 
was due to some latent defect which rendered the vessel unsea- 

ium tremens this becomes a ques- Life Ins. Co. v. Muskegon Bank, 122 

tlon of fact for the Jury. Aetna L. U. S. GOl, G12. 

Ins. Co. V. Ward, 140 U. S. 76, 3S ■■ Field v. Ins. Co., 3 Md. 245. 260; 

L. Gd. 371. Western Assur. Co. v. Chesapeake L. 

u Insurance Co. v. Foley, 106 U. S. ft T. Co.. 106 Md. 232, 66 Atl. 637. 
360, 354; reafflrmed In Northwestern 



D.qitizeabyG00<^lc 



LNSURANCK. 



1051 



worthy.** In such caaea "the law will intend s want of seaworthi- 
ness, because no visible or rational cause, other than a latent and 
inherent defect in the vessel, can be assigned for the loss ; and in- 
surers do not insure agunst latent defects. "" This presumptioa 
does not belong to the class of presumptions which are termed pre- 
samptioDs of law. It is not in the nature of a presumptio juris et 
de jure. It is a mere pr6&impi\<m of fact, which shifts the onus 
probandi, and which prevails only where it is unrepelled by coun- 
tervwling proof. But, even to this extent, no presumption of un- 
seaworthiness arises, except from facte which exclude the rational 
inference of a loss attributable to the perils of the seas." Bnt 
where it satisfactorily appears that the vessel was seaworthy on 
leaving port, and that it encountered marine perils which might 
well disable a staunch and well manned ship, no such presumption 
can be invoked, for the purpose of overturning a verdict and ab- 
Bolring the insurers from liability. *° When, therefore, a ship sinks 
in port, very soon after commencing her voyage, without having 
met with any extraordinary gale of wind or other disturbing ele- 
ment, this fact is a circumstance from which the jury are authorized 



n Walsh T, Washington M. Int. 
Co., 82 N. Y. 427, *3S; Talcott v. 
Commercial Ids. Co., 2 Johaa. (N. 
Y.) 12<: Barnewall V. Church, 1 
Caioes (N. Y.), 317; Paddock t. 
Franklin Ins. Co., 11 Pick. (Mass.) 
337, 237; Watson v. Clarke, 1 Dow 
(Pari, Rep.), 336; Qartslde v. Or- 
phans' Beueat IDB. Co., 63 Mo. 322, 
325; Harcf v. Sun Mut Ins. Co., 
11 La. Add. 7<9; Harcy v. Sun Hut 
Ins. Co., 11 Id. 264; Parker v. 
Union Ins. Co., 16 Id. 688. The pre- 
anmptlon of unseaworthlnsBB iB re- 
hotted when the weight of evidence 
shows the ship was neither over- 
loaded nor top heavy, when she left' 
port and the loss is attributable 
rather to mlstakea In management 
after she started than to nneea- 
worthlness when she left port 
AJam (loolam Hassen Co. v. Union 
H. Ins. Co., 70 Law J. P. c. 34, 80 
Law T. 366. The springing of a 
leak under such clrcnmstancea Is 



not conclusive of uneeaworthlaeas 
but puts burden on insured and 
makes this a question for Jury. 
Palmer v. Great Weatem Ins. Co., 
116 N. Y. 599. 23 N. E. 6. See also 
Osborne v. N. Y. Mut las. Co., G3 
Hun, 633, 6 N. Y. S. 103. 127 
N. Y. 6G6, 2g N. E. 254; Paddock- 
Haw ley Iron Co. V. Washington Ids. 
Co., 118 Mo. App. S5, 93 S. W. 368. 

» Patrick V. Hallett, S Johns. Gas. 
(N. T.) 76; WaUh v. Washington 
Ins. Co., 32 N. T- 427, 437. 

■« Walsh V. Wssblngton Ins. Co., 
32 N. Y. 427, 436. 

>o Walsh V. Wasblngton Ins. Co., 
supra; 1 Marsh. Ins. IS8, 159; 1 Am. 
Ins. 662, } 245; Sherwood v. Rug- 
gles, 2 Sandf. S. C. (N. T.) 66; Pat- 
rick V. Hallett, 1 Johns. (N. Y.) 
241, 3 Johns. Caa. (N. Y.) 76; Mil. 
ler V. Ruesell, 1 Bay (3. C), 309; 
Parker v. PottB, 3 Dow (Pari. Rep.), 
23; Surges v. Wlckham, 10 Jur. 
(i». a) 98. 



7crib,G00l^lC 



1052 PBOTINCB OP OODBT AND JUBT. 

to liDd tliat it is miBe&wortb;, or, as the Louisiana oases term it. 
not portwortky ; and whether it is so or not, in an action oa a marine 
policy, where unseaworthiness is set up as a defense, is a question 
of fact for a jury.*' 

§ 1320. Time within which a Voyage shonld b« Peifonaed. — 
In an action upon a policy of marine insurance, the time within 
which a voyag? should be performed is a question of fact for the 
jury." 

§ 1321. Termination of tb« Voyage. — It is ohvious that, where 
a particular place is stated in the jmlicy as the termination of the 
voyage, tiie identification of the place and the question whether the 
ship had arrived at that place, are questions of fact. So held where 
the voyage was described, "from Swan River to Mauritius, and for 
thirty days after arrival," and according to custom, the ship an- 
chored at what was known as Bell Buoy, which was a buoy in the 
main ocean a few miles from the harbor itself, and, after having 
remuned there for fomteen days awaiting moaay to pay a bottomry 
bond, was wrecked. It was held a question for the jury whether 
she had arrived at Mauritias. More strictly, the question was 
whether she had arrived at the place at which ships of her character 
ordinarily anchor, when Mauritius is the termination of the voy- 



§ 1322. Facts which will Justify an Abandonment.— In an 
action on a policy of marine insurance, the facts which will justify 
an abandonment are for the jury.** 

§ 1323. Reasonable Time for Abandoning a Cargo to ths Un- 
derwriters. — In a ease of marine insurance, where the vessel was 
stranded and the cargo partly destroyed, it was held that the 
owners must ma^ their election to abandon the cargo to the under- 

«i Gartalde v. Orphans' Benefit 279, 79 Pac. 967. The burden Is on 

Ins. Co., 62 Mo. 32S, 326. • the Insured to show the conditions 

*i Charleston Ins. Co. v. Corner, t warranting sbandoamenL Searlea 

QUI (Md.), 410, 42G; post, E 1662. V. Western Assur. Co., SS MlBS. 260, 

** Lindsay t. Janson, 4 Hurl, ft N. 40 South. SS9. Acceptance of aban- 

699. donment mar be Jury Question. 

M Delaware Ins. Co. v. Winter, 3S KIchllen ft 0. N. Co. t. Ins. Co., 136 

Pa. St. 176, 187; Progresso S. S. Co. U. a 40S, 34 L. Bd. 398. 
V. SL Paul F. ft M. Ins, Co., 14G Cal. 



D.qitizeabyG00<^lc 



INSUBAKCB. 1058 

writers within a reasondhh time; and lioid Ellenborough concaved 
that it was the province of the judge to direct the jury as to what 
would be a reasonable time under the circumstances,*' though it ia 
doubtful whether it would be so held at the present time. 

§ 1324. BeaBonabltt Time for Ascertainio^ whether Kecovery 
and Kepair possible. — ^Where a vessel has been wrecked or sunk, 
and the policy of insurance recites that, "in no ease whatever shall 
the assured have the right to abandon, until it shall be ascertained 
that the recovery and repair of the said schooner are impracticable," 
— the court should expound to the jury the meaning of the clause; 
and it is not error to refuse an instruction which is merely drawn 
in the language of the clause itself, because that is tantamount to 
submitting ita meaning to the jury. The meaning was held to be 
that die owner was not bound to wait until it was demonstrated be- 
yond any contingency that the vessel could not possibly be got oK 
and repaired; else his right to abandon could sever arise until the 
vessel had actually gone to pieces ; for, until that time, some fortu- 
nate and unexpected event might deliver her from peril The 
recovery and repair of the vessel would be ascertained to be im- 
practicable, when, in the opinion of judicious ma), acquainted with 
the subject, there was no reasonable probability that she could 
be got off and repaired ; and if the on-ner was not bound to wait 
until it was absolntely certain that the vessel could not be got o£E 
and repaired, then he was entitied to abandon.** From this it 
would seem to follow that the question is one for a jury, under 
proper instruetitois from the court as to tiie meaning of the lan- 
guage of the policy. 

§ 1326. Whether Seimre of Vessel was an Act of War. — In an 
action on a policy of marine insurance, where the evidence showed 
that the insured vessel, while lying at a wharf in the port of Nor- 
folk, Virginia, for rep^rs, was, <m the twenty-first day of April, 
1861, seized by a lai^ body of men, professing to act by authority 
of the State of Virginia, filled with stones, towed out into the chan- 
nel, adffiidst the cheers of the populace, and sunk at the mouth of 
tlie channel, to prevent the ingress or egress of vessels of war; and 

•* Anderson v. Royal Exchange a valver of abandonment Hume v. 
Asmirance Co., 7 East, 38. Courts Frens, 160 Fed. 502, SO C. C. A. 320. 
will determine what acta conBtltnta •• Norton v. Ijeilogton etc Ins. 
Oa« IB m. US, 2«. 



7crib;G00l^lC 



J 



lOM FBOVINCS OF COUBT AMD JURY. 

that it was a time of such confusion and excit«meut that do relief 
could be had from the courts, and that the vessel was lost,— it was 
held, upon these facts, taken into connection with the history of the 
tiroes, which the court would notice judicially, that it should have 
been left to the jury as a question of fact, whether the seizure of 
the ves.«el was an act of war, on the part of those then engaged in 
hostilities with the United States, or in aiding or carrying out 
existing or contemplated acts of war by the State of Virginia, or 
whether it was the act of a mob simply." 

§ 1326. Barratry. Bliscoiiduct in Doing tat Act Prohibited by 
Statnto. — ^Where the master of a vessel, in order to increase the 
head of steam while racing with another vessel, brought a barrel 
of turpentine from the hold to the fumade, whereby the vessel was 
set on fire and destroyed, and there was an act of Congress pro- 
viding that turpentine must be secured upon steamboats in metallic 
s:ifes, or in apartments lined with metal, at a secure distance from 
any fire, — it was held that the question whether the wrongful act 
of the master, in thus using the turpentine, was misconduct, within 
the meaning of the role of law that a policy of inanrance will not 
protect a party against his own misconduct, was a question of lav- 
tot the court, and not a question of fact for the jury, for, though, 
ordinarily, questions of care, diligence and skill are to be decided 
by a jury, it is otherwise where the law defines the very act to be 
done under given circumstances. In such a case the jury havo only 
to decide whether the acts required or forbidden by the law have 
been done,"' 

•T Swlnaerton t. Columbian Ins. »» Citizens Ins. Co. t. Marsh, 41 

Co., 37 N. T. 174. Pa. St 387, 393; post, } 1672. 



D.qitizeabyG00<^lc 



CHAPTEBXLnL 

INTENT. 
SicnoiT 

1333. General Proposition. 

1334. Hzceptlon : Presumptlone of I>w. 

1335. Parol Gllte. 

1336. Landlord and Tenant — Intent to EMct. 

1338. Whether a Lease at Will was Expanded Itito on« from Year to 

Year. 

1339. Whether a Contract was Obtained by Duresa. 

1343. Whether a Husband acted as Tenant or Servant of lita Wife. 

1344. Whether an Improvement was made for Purposes of a Residence. 

1345. Purpose for which Written Instnimenta wera inad& 

1346. RsTocatlon of a Will. 

1347. Intent to Take Possession under a Will. 

1348. Redemption or Pnrchaae. 

1349. Purpose for which Declarations were made. 

1350. Whether a ConTeyance was Intended for the Pather or for the Son. 

1351. Whetlier an Offer was by Way of Compromise. 

1352. Tmst Created by Declarations and Acts. 

1364. Whether a Transfer waa meant as a Gift or mm t Bequest for 

Masses. 
1355. Dedication of Land to Public Uses. 
1368. Acceptance of Dedication, 

1357. Whether Highway Created by Parol Dedication and User. 
1359. Domicile and Residence. 

136Q. Occupancy and Abandonment under Homestead Laws. 
13S2. Another Precedent: Abandonment of Homestead and Desertion of 

Wife until after her Deatti. 
1363. Whether there was an Intent to Arrest. 

§ 1333. General Proposition. — ^Intent is always a question for 
the jury, except where it is to be gathered from the terms or an rni- 
ambi^oos writing, and then, upon principles already explained,* 
it is a mere matter of interpretatiwi, to be performed by the court. 
This prindple has been much illustrated in what has preceded, 
and will be mnch further illoBtrated in chapters in this title which 
are to follow. Some illustratiTe cases will also be given in this 
chapter. Even where the intent with which an agreemwt waa 
made or an act waa done is to be gathered in part from a writing 
1 Ante, Sf 1066. et seq. 

i:q,t,7c-rib;G00<^IC 



1056 FBOVINCE OF COUBT AND JDRIf. 

and in part from oral speech or extrinsic circumstances,* the well 
"expressed eonclusicHi is: "When the inteDtion of the writer is to be 
judged of by the writing, it is a qnestion for the court. Bat when 
the meaning is to be judged of by extrinsic facts, or wheu the writ- 
ing forms part of a transaction, the rest of which consists of words 
sp(^en or acts done ; or when, whatever its meaning, it is but si cir- 
cumatance tending to establish some other fact, — it is for the jury 
to say, whether the language was used in the sense imputed; or 
wbat is the character of the entire transaction, of which the writ- 
ing forms a part; or what is the truth of the ultimate fact which 
it tends to prove. In these cases the writing must go to the jury 
to be considered with the other evidence.* 

i 1334. Exception: Pmumptioii of Law. — To the foregoing 
an ezeeptioQ arises in a limited class of cases, generally arising in 
the criminal law, where the law eoocliuively imputes an intent 
to the doing of a certain act, — as, for instance, the intent to steal, 
from the recent unexplained possession of stolen goods, about which 
judicial authority is not uniform.* 

S 1335. Parol Gifts.— What the terms of a parol gift or grant 
of a chattel were, is a question of fact for the jury, to be gathered 
from all that was said and done, and not a question of law for the 
court* In a contest touching the title to a chattel, whether it was 
given or haned to one of the parties, is of courae a question of fact 
for a jury; and in such a case, the gift being by parol if it exist, 
the court sliould iustnict the jury as to what in law is necessary 
to the parol gift of a chattel.* The title to goods and chattels may 
pass by gift inter vivos, where there is a delivery of the property. 
Mere delivery of the property will not, in general, pass title. There 
must be an inteniion to give accompanying the act of delivery, in 

■ Aste, S j 10S3, 1086, 1098. 1113. * Post, it 2534, et seq. 

• Winter v. Norton, 1 Ore. 42, 45, iHalbert v. Halbert, 21 Mo. 277. 

opinion br Olney, J. So If tbe die- £83, 2S4; Hsrtman v. Hftrtman'e 

puts Is not as to the legal meanlns Admr., 16 K7. I^w Rep. S68; Bueb- 

of documents, but as to their tee- nell v. Fuller. 161 Mass. 220. S6 N. 

dency to prove one side or the B. 753; Jacques v. Fourtbman, 137 

other of an Issue of (act and where Pa. 428. 20 Atl. S02; Keeney v. Han- 

dftrerent Inferences may be fairly drick, 14S Fa. 223. 23 AU. 106S. 

drawn from them as to what the <Reapas3 v. Toung, 11 Oa. 114; 

tact Is. Carp v. Queen Ins. Co., 104 Hecht v. Shaffer. 16 Wyo. 34, 85 Pac. 

Ho. App. 503, 7B S. W. 767. 1056. If the parol evidence talU 



1 Goo^^lc 



INTENT. 1057 

order to OMisanunate the gift; or tbe arcomstances aathorizing 
Qie deli'very of the gooda must be soeh as ordinarily accompany 
a gift, inducing the donee to believe that a gift was intended. If 
that be the ease, the title to the goods will pass, althongli it may not 
be the secret intention of the donor to make the ^fU' When a 
son or daughter marries and is about setting up a separate estab- 
lie^iment, and the father provides the necessary outfit for boose- 
keeping, such as proper fnmitare for the dwellmg house, and de- 
livers the possession to the son or dangbter, without qualification 
(H- reservation made at the time, — the presumption arises that the 
transaction is a gift, prompted by natural affection for the daugh- 
ter, and t^is presumption should prevul. But it is a presumpti(Hi 
of fact for the jury, and not one of law for the coiirt, and is hence 
liable to be rebutted by other evidence showing that the donor did 
not so consider it It is said to be a presumption of fact, because 
such conduct is universally considered as denoting a gift of chat- 
tels.' Where an intestate promised to pay the plaintiff, who was 
his sister, after his death, a certain sum per year, for the tame dur- 
ing which she should live with him and keep house for him, and 
the consideration was understood by the parties to be in part for 
the services to be rendered by her, and in part a desire to make her 
a mortuary gift from motives of affection, — it was held that it was 
a questitm for the jury wliat portion of the stipulated sum was to 
be paid in consideration of her services, and what portion as a mere 
gratuity; that she was entitled to recover the former, but not the 
latter; since the right to the former rested upcm a good con^der- 
ation, but the recovery of the latter would contravene the poliig' 
of the statute of wills; and that the jury should have been speci- 
fically instructed to this effect.* 

to reaaoqablr Identify tba property dent'i daughter. Carpenter v. 

claimed, tbe court should declare It Coats, 183 Ho. 62, SI S. W. 1069. 
lufloOlcleDt Scott T. Reed, 163 Fa. i Frost v. Frost, 33 Vt. 639. In 

14, 26 JM. 604. KeUogg v. Adams, 61 Wta. 141, there 

T Betts V. Francis, 30 N. J. L. 152, la a Iodk series ot Instructions, ap- 

164; Porter t. Gardner, 60 Hun, 671, pllcable to a state of (acts where a 

16 N. T. Supp. 39S; Dixon v. Labrj', father gave a piano to his Infant 

16 Kf. Law Rep. 533, 29 S. W. 31. daughter and afterwards mortgaged 

■ Ibid., 165. This principle has it, and subsequent!; a contest arose 

been applied in a case ot land and with the mortgagee ss to the title. 

personal property given to a son-ln- In Washington State where a con- 

Itw npon the question whether it tract to sell real estate was placed 

was an advancement made to dece- In escrow along with tbe deed and 
Tbiais— 67 



o,Gooi;^lc 



1058 



PBOYINCE OP OOUBT AND JUST, 



§ 1336. Landlord and Teiuuit— Intent to Evict.— To oonBti- 
tute an eviction of a tenant by his landlord, such as will create a 
suspension of rent, it is not neceasary that there shonid be an actual 
physical expulsion from any part of the premises,*" but any act 
of a permanent character, done by the landlord, or with his pro- 
curement, with a view of depriving the tenant of the enjoyment of 
the premises demised, or any part of them, will operate as such an 
eviction ; and it is for the jury to say whether the act waa dime by 
the landlord, and whether It was d(me with the intention of de- 
priving the tenant of the enjoyment of the premises." 



the huBband being Mrlously 111 told 
blB wife at the time to place the 
pspers Id escrow In her own name. 
It was ruled there was no Infring- 
ing of the rule of a parol gift apply- 
ing oniT to pareonal property as the 
gift was the proceeds of the land. 
Davie T. Davie, 47 Wash. 231, SI 
Pac. 950. 

i« Hall T. Burgess, 5 Bam. & Crea. 
332; Upton r. Townend, 17 C. B. 
SO. 33 ETng. h. & Bq. 212; Uorse t. 
Goddard, 13 Mete. (Mass.) 177; 
Pfund T. Herllnger, 10 Phlla. 13; 
Rofce T. Guggenheim, 106 Hasa. 
201; Skally t. Shute, 132 Mass. 367; 
Pendleton v. Dyett, 4 Cow. (N. T.) 
581, S Cow. (N. Y.) 727; Cohen v. 
Dupont, 1 Sandt. S. C. (N. T.) 260; 
Rowbotham v. Pearce, 6 Houst. 
(Del.) 136. From these and other 
cases the question would seem to 
be, not 00 mnch whether the land- 
lord has done acts which deprive 
the tenant of the beneflclal enjoy- 
ment of the premises, as contem- 
plated by the contract, and which 
therefore canstitute a breach of 
contract on his part, which la tanta- 
mount to an eviction, — as whether 
the landlord has done such acts, In- 
consistent with the contract, as will 
Justify the tenant In abandoning 
the premises and refusing the paj'- 
ment of rent; for It Is conceded 
that, notwithstanding the unfrEend- 
ly or Injurious acts of the landlord. 



BO long as the tenant remains In 
possession, he must continue to pay 
rent See the following cases: 
Billot T. Aiken, 4S N. H. 3G; Qll- 
hooly T. Washington, 4 N. Y. 217; 
Wilson V. Smith, 6 Yerg. (Tenn.) 
379; Rogers t. Oatrom, 36 Barb. 
(N. Y.) 633; De Witt v. Plerson, 112 
Mass. S; Newby v. Sharps, 8 Cb. 
DlT. 39; Bum V. Phelps, 1 Stork. 
94; Lerltzky t. Canning, 33 CaL 
299; Greton v. Smith, 33 N. Y. 246; 
Grabbenhorst v. Nlcodemus, 42 Md. 
236; Scott v. Blmons, S4 N. H. 428; 
Boston etc. R. Co. v. Ripley, 13 Al- 
len (Maee.), 421; Jackson t. Eddy, 
12 Mo. 209; Peck v. Hller, 24 Barb. 
(N. Y.) 178; Lawrence v. French, 
26 Wend. (N. Y.) 443; Leadbeter r. 
Roth, 25 111. 6S7. Compare Halllgan 
V. Wade, 21 III. 470. It seems that 
anciently an eviction could only re- 
sult from the Judgment of a court 
of law In favor of the party claim- 
ing under a paramount title; but 
latterly the word "eviction" has 
come to be regarded as substantially 
synonymous with oiuter. Formerly 
the evidence was matter of record; 
now It may be shown by parol. 
Hamilton v. CutU, 4 Mass. 348; 
Morse v. Goddard, 13 Mete (Masi.) 
177. See Gore v. Brazier, 3 Mass. 
623; Smith v. Shepherd, 16 Pick. 
(Mass.) 147; Briggs v. Hall. 4 
Leigh (Va.). 484. 

11 Upton v- Townend, 17 C. B. 



Coo^^lc 



INTBNT. 1059 

S 1338. Whetlier a leiue at Will waa expanded into one from 
Year to Year. — Where, by an alleged lease, rent was payable an- 
aually, on the 4th of December, at a given rate in advance, and the 
possession taken nnder it was continued for a year and upwards, 
and the rent would seem to have been paid and accepted annually 
according to its terms, — it was held that, although within the letter 
of the statute of frauds, and therefore a lease at will only, yet it 
might be considered as having been expanded to a lease from year 
to year, and that, the question being one of intention, should have 
been submitted to the jury under proper inatruotiona." 

§ 1339. Whether a Contract was Obtained hj Daress.— 
Whether a contract has been obtained by duress of threats or other 
duress, is manifestly a question of fact for the jury, within certain 
limits, and is not to be decided as a question of law." A qualiGca- 



30, 33 Eng. L. ft Eq. 212, 221; Hen- 
derson V. Meara, 1 Fast, ft Fin. G36. 
The BtresB laid by tbe text on Intent 
SB &□ Ingredient of eviction Beems 
not In accord with decision, and to 
hold that It is appears opposed to 
principle. It Is a contractual rela- 
tion, which exists between landlord 
and tenant and to bold that Intent 
on either side not acquiesced In by 
the other could affect rights there- 
under Is a slngulsr doctrine. All 
of the cases cited by the author to 
section 1337, show that Instructions 
make no reference to Intent, but 
acts are Instanced, which authorise 
the Jury to find eviction inde- 
pendent of intent. The following 
cases also show that Intent is not 
r^arded, as they go upon the 
theory that the acts Instanced, of 
themselvea, operate as eviction. 
Brown T. Holyoke Water Co., 1E2 
Haas. 463, 25 N. B. 966, 23 Am. 
St. Rep. 844; Coulter v. Norton, 
100 Mich. 389, G9 N. W. 163, 43 Am. 
St. Rep. 458; Edmison t. Lowry, 3 S. 
D. 77. 53 N. W. 583, 17 L. R. A. 275, 
44 Am. St. Rep. 774; Krausi v. Fife, 
120 App. DiT. 490, lOB N. Y. 8. 384. 
The case of Skally t. Shute, 133 
Mass. 367 {cited by tbe author) rules 



that, if wrongful acts of a lessor 
are such as to deprive tbe lessee 
permanently of the beneflclal use of 
the premises, the Intent to evict Is 
conclusively presumed. Therefore, 
If there Is what amounts to an evic- 
tion, intent Is a presumption of law. 

11 Dunn V. Rotfaermel, 112 Pa. St. 
272. A later Pennsylvania case 
(Borough V. Phoenlxvllle, U7 Pa, 
501, 23 Atl. 7S) recognizes the rule 
above stated, but elsewhere it has 
been ruled that the landlord has tbe 
option to hold tbe tenant as one 
from rear to year or to regard him 
as a trespaBser. See Frost v. Akron 
Iron Co., 33 N. T. S. 654. 12 Misc. 
Rep. 348; Belding v. Texas Produce 
Co., 61 Ark. 377, 33 S. W. 421; 
Goldsborough v. Qable, 140 111. 269, 
29 N. E. 722; Kleespies v. McKenzle, 
12 Ind. App. 404, 40 N. E. 648; 
Wheat V. Brown, 3 Kan. App. 431, 
43 Pac 807; Crltchfleld v. Ramaley, 
21 Neb. 178, 31 N. W. 687. If there 
is unreasonable delay In the exer- 
cise of the option, tbe landlord Is 
deemed to accept tbe tenant as one 
from year to year. Providence 
County Sav. Bank v. Hall. 16 R. I. 
154. 13 Atl. 122. 

>■ Griffith V. Sitgreaves, 90 Pa. St 



Coo^^lc 



PHOTINCB OF COURT AND JURY, 



tioQ of tiie statetneat is that the act done, or laagiiage which the 
evidence tends to show was used, must be of a character which in 
law may amount to duress. 

§ 1343. Whether a Husband Acted as Tenant or SerTant of his 
Wife. — Whether a hosband, carrying on a. farm owned by his wife 
and held by her to her own use, occupying with her the dwelling 
house thereon, taking the crops annually, and having the general 
management of the premises, is tenant or servant of the wife, is a 
question of fact, on which there is no presumption of law changing 
the burden of proof." 

§ 1344. Whether an ImproTement waa Hade for the Porposes 
of a Residence. — Under pre-emption laws in Pennsylvania, it has 
been held a question of fact for a jury, whether an improvement 
upon land was made for the purposes of a ccmtinued residence, — 
the question involving the intent of the improver.^* 

§ 1S45. Parposfl for which Written Instrnments were made.— 
In an action upon a state of facts (which need not be set out), it 
was held a question for th« j-iry to decide the purpose for which 
an agreed statement of facts was made, — whether with the view to a 
reference, or as a statement to be laid before the insurers in respect 

Mo. App. 313, lOD S. W. 619. It has 
been held Uiat tbe fact that tlie wlte 
knew her huBband was causing ber 
land to be Improved, or that she 
gave her mere consent thereto 
raleed no preeumptlon of authority 
for bim to ao contract as to sub- 
ject It to a mechanic's Ilea. Hoff- 
man T. McFadden, ES Ark. 217. 19 
S. W. 7E3, 35 Am. 81, Rep. 101. Hla 
agency Is a question of fact for the 
Jury. Callahan v. Matthews, S7 
Hun. 527. 74 N. T. 8. 499; Barnett 
V. GluthlDg, 3 Ind. App. 416, 29 N. 
E. 227; Dyer v. Swift, 154 Mass. 
15», 28 N. E. S. 

It Jones v. Brownfleld, 2 Pa. St. 
55; Hazlett v. Babcock, 64 Minn. 
214, 66 N. W. 1344. And so whether 
there was Intent to abandon land 
after entry. Lindblom v. Rocks, 146 
Fed. 660, 77 C. C. A. 86. 



161; Vlcknalr r. Trosclair, 45 La. 
Ann. 373, 12 South. 486; Schoell- 
hamer v. Rometsch, 26 Ore. 394, 38 
Pac. 344; Bueter t. Bueter, 1 S. D, 
»4, 45 N. W. 20S, 8 L. R. A. 562. 

i« St. T. Hayes, 59 N. H. 450. The 
court say: "If the contrary rule Is 
laid down In Albln v. Lord (39 N. 
H. 196, 205), It cannot be sualalned." 
Compare Noyes v. Hemphill, 58 N. 
H. 636; Morse v. Mason. 103 Mass. 
560; Delano v. Goodwin, 48 N. H. 
203: Caswell t. Hill, 47 N. H. 407; 
Houston T. Clark, 50 N. H. 479. 
Similarly, ofency and authoritji are 
generally questions of fact. Post, 
ii 1368, et seq. Tbe Missouri Court 
of Appeals held as a matter of law, 
that under such circumstances the 
husband acquired no Interest In the 
crops which could be reached by 
his creditors. Fink t. McCue, 123 



o.GoQi^lc 



INTENT. 1061 

of a loss which had happened," — applying the general rule that 
questions of intent are for a juty. So, where the trustee of an 
insurance company made a note, bat not for the purpose tetensihly 
put forth, and there vas a lawful purpose for which it might have 
been ^ven, of the same character as that put forth, — it was held 
a question for a jury whether it was given for the lawful or for the 
unlawful and frandulent purpose.'^ So, where a paper was given 
to the common agent of two insurance companies, on the refusal 
of the agent to pay a thousand dollars, admitted to be due on a 
policy of one of the companies, unless plaintiff would sign the paper, 
it was held that the jury most determine whether it was supported 
by a eoDsiderati<»i as agwist the other company.** 

§ 1346. Rerocation of a WilL — Bevocatim is a question of ih- 
tention, and evidence is admissible to show that intention, by any 
act done or believed to have been done. The act done or aimed to 
be done, as well as the purpose at the time at which it was done, are 
matters of fact for a jury,'* and may be established as other facts, 
by me credible witness, or by convincing circumstances. It is also 
said, without the question being reasoned, and, it is suggested, with 
doubtful prc^rie^, that "what factd amount to a revocation is of 
coarse a question of law." ** From the statement of the rule that 
revocAtion is a qnestim of intention, — ^that some act must have 
been done clearly indicating an intention to revoke the existing 
will, Buch as cancellation, destruction, removal from the hands of 
the person vritb whom it may have been lodged, or the like," — it al- 
ia Knight ▼. New EnglBnd iTBrouner v. Hill, 1 Sandf. S. 0. 
Worsted Co., 2 Cush. (Mass.) 272. (N. T.) 630. 

PorpoM mar alwaya be ehown when i* Western MasBachusetts Ins. 

needful for Interpretation. Shen- Co. v. Dnfley, 2 Kan. 31S. 
andoah L. ft A. Co. t. Clarke, 106 i* Burns v. Bums, 4 Serg. ft R. 
Va. 100, 55 S. B. 361; D. S. Fidelity (Pa.) 295; Smiler v. Qamhill. i 
ft a. Co. T. Commissioners etc., 146 Head (Tenn.), 164, 168. 
Fed. 144; Wilson v. Wilson, 115 loSmile? v. Oamblll. 2 Head 
Mo. App. 641, 92 S. W. 145. This (Tenn.), 1S4. 1G8. 
has been done to ascertain whether n 1 Jarm. Wills (Randolph ft Tal- 
a penaltjr or liquidated damaKes cott's edition), 2S2; cltinK Man- v. 
were meaat U. 3. v. Bethlehem Marr, 2 Head (Tenn.), 303; Boylan 
Steel Co., 205 U. a. 105, 61 L. Ed. v. Meeker, 2S N. J. L. 274; Mundy 
711. And whether the contract t. Mundy. 16 N. J. Eq. 290; Wright 
was a sale or lease of machinery, t. Wright, 6 Ind. 3S9; Gains t. 
Lambert Hoisting M. Co. v. Car- Gains, 2 A. K. Marsh. (Ky.) 190; 
mody, 79 Conn. 419, 66 Atl. 141. Overall v. Orerall. Lit. Sel. Cas. 513; 

Coo^^lc 



1062 



PBOVINCE OF COUET AND JUBT, 



most conclusively follows that, whether there has heen a revoca- 
tion is a question of fact for a jury, onder proper instructions. 
Where a will was found, after the death of the testator and twaity- 
five years after it was made, in a barrel among waste paper, torn or 
worn into pieces, which pieces were scattered, — it was held that 
the questions whether the mutilation was done by the testator or hy 
other perscoa, and if by him, whether accidentally or intentionally, 
and for the purpose of revocation, were questiiHis of fact for the 
jury,** — a good illustration of the general doctrine on the subject. 
It may be added that parol evidence of the acts and declarations 
of the testator is admissible to determine whether the will, which 
was found torn or cut, was mutilat«d by the testator, and, if so, 
with the intention of rt^voking it.^ 

% 1347. Intent to take PoaseBaien onder a Will— A devisee who 
takes possession under a will is estopped from denying its validity; 
but, on an issue of devisavit vel non, it is for tke jury to say whether 
the acts of the devisee show an intention thus to take posses^<»i.** 



Smith V. Clark, 3( Barb. (N. T.) 
140; JobDEOD T. Brallsrord, 2 NoCt 
* MoC. (3. C.) 282; Means v. Moore, 
3 McCord (S. C), 2S2; Smith v. 
Dolby. 4 Herr. (Del.) 350; White 
v. Casten, 1 Jones L. (N. C.) 197; 
Barker t. Bell, 46 Ala. 216; Tlmon 
V. Claffey, 46 Barb. (N. Y.) 438; 
Burns V. Bums, 4 Serg. k R. (Pa.) 
295; CUngan t. Hitcheltree, 31 Pa. 
SL 26; Brown T. Tbomdike, 15 
Pick. (Mass.) 3SS; HiBe v. Fincher, 
10 Ired. L. (N. C.) 139; Sumner v. 
Snmner. 7 Harr. A J. (Md.) 388; 
HoIlingBbead t. Sturgis, 21 La. An. 
450; Belt T. Belt, 1 Harr. A McH. 
(Md.) 409; Spoonemore v. Cables, 
66 Mo. E79. 

"Lawrer t. Smith, 8 Mich. 411. 
And to where testator drew lines 
through certain clauses of hfs will. 
Home of the Aged etc. r. Bantz, 
107 Md. 543, 66 All. 701. 

21 Patterson v. HIckej, 32 Ga. 156; 
Dan v. Brown, 4 Cow. (N. T.) 483; 
Cotlagaa v. Burns, 57 Me. 449; Har- 
rlng T. Allen, 25 Mich. 505; Law- 



yer V. Smith, 8 Mich. 411. See also 
Durant v. Ashmore, 2 Rich. L. (S. 
0.) 184. Where it was alleged that 
a will was lost and those around 
testator during his last Illness were 
Interested In his Intestacy, It was 
permitted to show he was a man 
ot strong character and tenacity of 
purpose. In submittlns the ques- 
tion of revocation vel non to the 
Jury. In re Gardner's Estate, 164 
Fa. 420, 30 Atl. 300. 

i«LanillB V. Landls, 1 Grant Cas. 
(Pa.) 249. This Is true with the 
qualification that the estoppel must 
arise out of knowledge possessed 
by tbe devisee, and not where tboee 
urging the estoppel fraudulently 
concealed the facts. White v. May- 
hall (Ky.), 25 a W. 881 (not re- 
ported in state reports). But ignor- 
ance, In the absence o( fraud, im- 
position or misrepresentation will 
not prevent estoppel by acceptance 
of a benefit. If the situation cannot 
be restored and there has been ex- 
treme negligence tn attempting to 



IKTENT. 1063 

S 13^. B«demptioii or Pnrchase. — A piircbaser of laod at a 
treEunrer's sale for taxes in Pennsylvania may, after the eipiratioa 
of the two years prescribed by statute, consent to receive the re- 
demption mon^, though ho is not obliged to do so; and if he re- 
oaves it as such, the tranaactioD will be a redemption of the laud, 
and not a purchase of it; and whether it is a redemptiim or a pur- 
chase is a gue^ion of fad for a jury.** 

S 1349. Purpose for which Declarations were made. — It haa 
been ruled in Maine Uiat, where the title to a chattel depends upon 
whether a prior sale by (me of the parties to a third person was 
absolute or couditicmal, the declarations 'of that person, made 
against his own interest, and before he had disposed of his title, 
are admissible to show the character of the sale ; that a mortgagor 
of chattels has such an interest in the mortgaged property that his 
declarations, disparaging his title, may be proved by one who claims 
title against him and his vendee; and that, whether the declarationa 
of a former owner were made to prevent his creditors from attach- 
ing his property, or in good faith, is a question entirely for the 
jury." 

§ 1360. Whether a Oonveyanoe was Intended for th« father 
or for the Son. — In a recent case in 'Wisconsin, a conveyance of 
land, in which Amos W. Cross (then fifteen years old) was named 
as grantee, was taken by his father, Ansel A. Cross, who paid for 
the land, had the deed recorded, and thereafter retained posses- 
sion of the instrument until his death, twenty-four years later. 
The son did not know of the existence of a deed, in which he was 
named as grantee, until after his father's death. In an action of 
ejectment, upm evidence tending strongly to show that the father 
claimed that there was a mistake in the deed, in that he should 

dlacover tha facts. Utermehle v. acceptance, where the nlll kelvb her 
Norment, 197 U. S. 40, 49 L. Ed. S6S. leas than the dower or other In- 
And It la a queetlon for the Jury tereat Spratt v. Laweon, 176 Mo. 
whether there was knowledge from ITE, 76 S. W. 642. From all of 
wlilcb Intent mar be presumed. In which the concluBlon Is to be de- 
re Tharer'a Estate, 142 Cal. 4G3, 76 deduced that an estoppel does not 
Pbc. 41. To accept a legtiey under arise unleBs there la knowledge and 
protest that a will la Invalid does consl deration. 

not preclude the estoppel. Stone ibCoz v. Wolcott, 27 Pa. St. 1G4. 

V. Cook, 179 Mo. 634, 78 S. W. SOI. n Beedy v. Macomber, 47 Me. 4G1. 
A widow was held not eatopped by 



D.qitizeabyG00<^lc 



1064 PBOTINOB OF CODBT AKD JUBT, 

have been named as the gr&ntee, instead of his son; tliat he at- 
tempted to correct the mistake after the deed was recorded ; that 
he took possession of the land, paid the taxes, exercised many rights 
of ownership, claimed the land as his property, contracted to sell 
it, and finally conveyed it in his own name after having had posses- 
sion for more than twenty years; — it was held that it was a ques- 
tion for the jury, whether the original conveyance was intended 
by the parties thereto to run to the scm, and, if so, whether it was 
delivered to and accepted by the father for the benefit of the aoa. 
Such evidence waa aufficient to overcome the presumption from the 
record, that the deed was duly delivered to the grantee named 
therein.*' 

S 1351. Whether an Offer was hf way of OompromiM. — Apply- 
ing the mle that preliminary questions of fact, which are involved 
in the deci^on whether evidence is competent, must be decided by 
the court,*' it has been held that, in a proceeding before a sherifF's 
jury to assess damages for the taking of land for a railroad, the 
question whether an offer of a certain sum for the land was by way 
of compromise so as to prevent evidence of such offer being com- 
petent, was a question for the sheriff to decide, and not for the 
jury. He was to decide whether the offer was made by way of 
compromise or not, and to exclude or admit the evidence accord- 
ingly." 

S 1352. Trust created b7 De<danitiona and Acts.— A trust in 
personal property may be created by parol." Whether certain 
declarations and acts, tending to the c(Hie]usi<Hi that such a trust 
was intended, did in fact create such a trust, is, in a cas3 triable 
by a jury, a question of fact and intent, to be decided by them.*' 

fi Cross T. Baraett, 6G Wla. 431; 371; Dougherty v. SblUlngBbarg. 

dlBtingulshing Mcpherson v. Foath- 176 Pa. 56, 34 AU. 349. Notwith- 

erstone, 37 Wis. 632, and Allen v. standing that a trust In real ea- 

AUen, 58 Wis. 202; post, I 14E2. late cannot be created by parol, 

"Ante, ch. 13. yet If a grantes sells land undei 

M Davis V. Charles River etc. B. a parol agreement to convert Into 

Co., 11 Cush. (Mass.) 506. cash and pay grantor's debts, bis 

«> Bostwlck V. Hahaffy, 48 Utcb. subsequent acknowledgment of the 

342; Calder v. Moran, 49 Mich. 14. truat la binding. Cooper v. Thom- 

12 N. W. 892; Day v. Roth, 18 N. T. ssBon, 30 Oi* 161, 45 Pat 296. Bee 

448; Pitney t. Bolton. 45 N, J. Bq. also Davie v. Davie, 47 Wa^h. 231, 

639, 18 Atl. 211 : Wllllama v. Has- 91 Pac. 9B0. where tbe principle of 

kins' Estate, 66 Vt. 378, 29 Atl. parol trust was held to apply to 



LnOO»^lc 



IKTENT. 1065 

S 1S64. Whether a TnnKfer waa meant as a Oift or "£8 a Be- 
quest for Maaees. — ^Upcm a ground nmilar to that which makes the 
fact of a parol trust in chattels a qneBtion for the jury,*" it has been 
ruled, under cirmunstances, that the question whether, hy a traiiB- 
fer of notes, made hy a dying man to a priest, at the time of eze- 
cuting a will which was snbsequentiy found to be void by reason 
of deCeetive execution, in which will, drawn hy the priest, he had 
described himself as legatee, — the deceased intended to make a gift 
of the not«8 to the priest, or to transfer them to him for the pur- 
pose of p^dng his funeral expenses and having masses said tor 
the repose of his sonl, was a question of fact.** 

§ 1365. Dedication of Land to Pablio Uaea.— To constitnte a 
valid commtm-law dedication, there must be an intention to dedi- 
cate, an act of dedication, and an acceptance on the part of the puh- 
lic.** Whether the owner of the land intended to dedicate it, is, 
in general, a question of fact for the jnry.** In passing upon this 
point, the jniy will take into consideration the dedarations as well 
as the acts of the owner, with the view of determining his intention; 
and it has been held that subsequent decUrati<xis and acts are ad- 
missible, as tending to explain prior intent.** Evidence in pais, 
to show a dedication of a street, ediould be submitted to a jury in 
all cases ; bat the validly and sufficiency of a recorded plat, under 
which a dedication is olumed, are to be determined by the court 
So also, if the location, dimensions, and identity of a street can be 

future proceeds wbere deed was A H. T. R. Co. v. Roaevllle, 73 Ohio 

placed In escrow. St 108, SI N. B. 17S; Town of West 

■I WeBt V. WblU, 66 BUch. 126; Point v. Bland, 106 Ta. 792, 56 S. E. 

Summers v. Moore, 113 M. C. 394, 18 802; Healey v. City ot Atlanta, 12S 

B. a 712. Ga. T3S, 64 S. E. 74B. It bos been 

MAnte, I 1362. held, however, that secret Inten- 

tt Ualone t. Doyle, 66 HIch. 222. tlon not to dedicate a war 'b Im- 

M Irwin r. Dixon, 9 How. (IT. 8.) material, where conduct Is tanta- 

10, 30; Baractough t. Johnson, 8 mount to dedication. Indianapolis 

Ad. 4 ra. n, 101; Poole v. Huskin- v. Kingsbury, 101 Ind. 213. 

■on, 11 Mees. A W. 827, 829; Qreen m Wilder v. St. Paul, 12 Minn. 

V. Chelsea. 24 Pick. (Haas.) 71, 80; 192, 209; City of Cheney v. Antfer- 

Paol V. HcLeod, ! Uetc. (Ky.) 98, aon, 72 Kan. 696, 84 Pac. 137. 

104; Carpenter v. Qwynn, 36 Barb: ■•Proctor v. Lewleton, 25 III. 153; 

(N. T.) S95; Oswego t. Oswego Woodl)um t. Sterling, 184 ni. 208. 

Canal Co., 6 N. Y. 267; Baker v. St. E6 N. E. 37S; Pittsburg C, C. i St. 

FsDl. 8 Hlan. 491, 494; Wilder v. St L. a Co. v. Noftager, 148 Ind. 101, 

Paul. 12 Minn. 192. 200; Cincinnati 47 N. B. 332. 



7crib;G00<^IC 



1066 PBOTINGB OF COURT AND JUBT. 

aacertalDed from recorded plats alooe, those qnesboiis ma; prop- 
erly be decided hy the court ; but if they depend npoii evidence of 
oser and practical location, they should be submitted to the jury.'' 
Even where a dedication is claimed noder a recorded plat, the 
court cannot declare, from an inspection of the plat, whether or 
not there was a dedication, but must submit the question to the 
jury." 

§ 1356. Acceptance of Dedication. — On like grounds, it is held 
that the question whether there has been an acceptance by the pub- 
lie, is one of fact for the jury, in determining which the acts of a 
single individual, thoi^h unsatisfactory evidence, may be submitted 
to them." 

S 1367. Whether Highway created by Parol Dedication and 
User. — ^Whether there has been a parol dedication of land for a 
highway, and such a user by the public as creates a public right 
against the owner of the fee, is, on c<»iflicting testimony, a question 
of fact for a jury." So, in Pennsylvania it is held that, whether 
a right of way has been acquired or not, by an uninterrupted user 
for twenty-one years, is a question for a jury, in an aetiMi for dam- 
ages for obstructing a private way ; and that, where such user is 
proved, they will he justified in presuming it adverse, unless the 
presumption be rebutted by proof of license or agreement.** . Thwe- 
fore, on the trial of an indictment for obstructing a highway, it 
was held error for the court to chaise the jury, at the request of 
the State, where the evidence of the dedication was circumstantial 
merely, that "the evidence, if true, would authorize them to find that 
the street was a public road, dedicated to a public use." •* In.such 
a case it was said by Dixon, C. J.: "In order to constitute a dedi- 
cation, it should clearly appear that the highway had been used 

«f St. T. Schwin, K WlB. 207. Jackson, 30 Pa. St 331; Okeson T. 

■■Eastland v. Fogo, 58 Wig. 271; Patterson, 29 Pa. SL S2. See also 

citing Gardiner v. Tiadale, 2 Wis. Bagley v. New York, N. H. ft H. R, 

163. Co., 165 MasB. ISO, 42 N. E. STl; 

>■ Wilder T. St. Paul, 12 Minn. Moore v. Hawk, 57 Mo. App. 495. 
192, 211. "Sultzner t. St., 43 Ala. 24. If 

*o Danlela v. People, 21 111. 439. tbe claim rests on user, tbe burden 

•> Stefly T. Carpenter, 37 Pa. St Is on the state to show adverse pos- 

41, 44. Compare Worrall v. Rhoads, session tbe requisite time. St. v. 

2 Whart. (Pa.) 427; Camplwll v. Fisher. :17 N. C 733. 23 a B. 168. 
Wilson, 3 Bast, 294, 300; Qarrett v. 



;abyG00<^lc 



DJTENI. 1067 

as sach by the public witb the assent of the owner ^ and when this 
is shown the dedication is established. Lapse of time and long use 
by the public as snch, are not necesary to its existence; though, 
in the absence of more direct proof, they are circumstances of more 
or less force, according to the facts of each case, tending to estab- 
lish it. Acts of an onequivocal nature on the part of both the 
owner and the public, may establish it in a very short space of 
tim& It is always a question of fact, to be left to the jury, de- 
ddiDg upon the circumstances of each particnlar case." ** 

§ 1359. Domicile and Residence. — ^Domicile and residence are 
questions depending principally upon fact and intent, and there- 
fore they are generally guestiona of fact for the jury,** This prin- 
ciple applies in cases arising in actions for divorce.*' It has been 
held, onder circumstances, that the question of the residence of a 
man, which aroee under a idea in abatement in an attachment suit, 
grounded up<Hi an affidavit charging that he had absconded or ab- 
•ented himself from hia usual place of abode in the State, so that the 
ordinary process of law could not be served upon him, presented & 
question of fact for the jury.** 

§ 1360. Occupancy and Abandonment onder Homestead 
Iawi. — ^Under the homestead laws of various States, a house and 

M Connebui t. FOrd. 9 Wfa. S40, peated In a charge to tbe Jurr 

S44. Ktven br the Circuit 'Court of ths 

M PeniuylTania t. Ravenel, 21 United States tor tlie Eastern Die- 
How. (D. S.) 103, 110; Pulham v. trict of Pennerlvuila, In the case of 
Howe, es TL 3S6, SO Ati. 101; Tiles PennsylTanla v. Raveael, 31 How. 
T. Cl^ of Waltham, 157 Mass. 643, (U. S.) 103, 110, whlcli charKe was 
32 N. E. 901, 34 Am. St Rep. 311; approved by the Supreme Court. 
ChAM T. Chase, 66 N. H. GS8, 39 Atl. Mr. Justice Daniel dissenting. 
G68. See Sommera t. Franklin This Is a fact strictly Jurlsdlo- 
Bank, 108 Uo. App. 490, 83 S. W. Uonal to tw decided by the 
1035, where question of the right of court or Jury according to clrcum. 
public administrator to take charge stances and mode of procedure. As 
(tf astaU was Involved. Illustrative cases see Haddock v. 

uFoas V. Foae. GS N. H. 283. Haddock, 201 U. B. 662, GO L. Ed. 

For an elaborate charge on the snb S6T; Bechtel v. Bechtol, 101 Minn, 

jeet of domicile, see WUte v. Bll. 112 N. W. S83; Coulter v. 

Brown. 1 Wall. Jun. 317. 361. This Coulter. 124 Mo. App. 149, 100 8. W. 

charge was made br Mr. Justice 1134. 

Orisr; and, so far as It embodied uTUler T. Abernathy, 37 Uo. 

prapoaltlons applicable to the gen- 19S. 
eral subject of domicile. It was re 



D.qitizeabyG00<^lc 



1068 PROVINCE OF COUBT AND JVBT. 

land, occupied fiy a debtor and his family as thwr family home- 
stead, is exempt from execution. The question frequently arises 
whether the premises are occupied as a home. As this is both a 
Question of fact an<2 intent, it is supposed to be, in most cases, a 
question for a jury.*^ As the homestead, which is thus exempted 
from execution, is generally acquired by occupancy, so, in general, 
it may be lost by a permanent abandonment; though it is generally 
held that a temporary abandcmment, animo revertendi, will not 
work a forfeiture of the right. 'Whether there has been such an 
abandonment must, in most cases, be a questJon of fact for the jury, 
nnce it is largely involved in the question of intent ; and so it has 
been treated.*' 

§ 1362. Another Precedent: Abandonment of Homestead and 
Desertion of Wife until after her Death. — ^"If you believe from 
the evidence that the plaintiff abandoned his wife, and left her to 
^lift toe herself, and that he failed to support his wife, .and that 
he voluntarily and without cause left the premises used and oc- 
cupied as a homestead, and that he absented himself from said 
house and continued said abandonment up to the death of his said 
•Kite, — ^then and in that event you will find your verdict in favor 
of the defendant." *• 

S 1363. Whether there was an intent to arrest.— It is said : "To 
constitute a Jegal arrest, it is not necessary that the officer should 
touch the person of the individual against whom the precept is 
issued. It is sufficient if, upon being in his presence, he tells him 
he has such precept against him, and the person says, "I submit 
to your authority," — or uses language expressive of such submis- 
sion. But it is not very touching of the person that will constitute 

•f See the subject dlscuBsed In t. Davenport, 79 III. 46G, 459; Bren- 

Thomp. Homest., if 240, at seq.; nan v. Wallace, 26 Cal. lOS; Oook 

Tromans v. Mahlman, 111 Cal. 646, v. UcChrlstlan, 4 Cal. 23; Shepherd 

44 Pac. 327; Farr v. Newby, 73 Tex. v. Casaldar. 20 Tex. 24, 26. See 

468, 11 S. W. 490. The court will Thomp. Homeat., gS 266, et seq.; 

dedde wtaetber or not tbe evidence Caldwell v. Pollak, 91 Ala. 353, S 

Is Bufflclent to sbow Intent Bente South. 546; Feldea v. Duncan, 80 

r. Lange, 9 Tex. Civ. App. 32S, 29 III. App. 469; Moors v. Santord, 2 

S. W. 813; Lake v. Nolan, 81 Mich. Kan. App. 243, 41 Pac. 1084. 
112, 45 N. W. 376. «> Approved In Hector ▼. Knox, 

« Fytte V. Beers, 18 Iowa, 4, 7; 63 Tex. 616. 
Locke V. Rowell, 47 N. H. 46; Potts 



ovGoQi^lc 



1069 



an arrest. It must be a touching with such an intent. For in- 
sUnce, an officer has a ca. sa. against a defendant, whom he meets 
in company, and goes np and shakes hands with him, without ap- 
prising him that he has such a precept, — this would not amount to 
an arrest unless so intended and undeistood by the parties. So, if 
the officer meeta the defendant in a public ccmipany or on t^e high- 
way, and notifies him of his having the precept, and directs him to 
meet him at some particular place, this might be an arrest or not, 
88 the parties intended.""* This being bo, whether there was an 
actual arrest will in most cases be a question of fact for a jury,*' 



» Jonee t. Jones, 13 Ired. L. (N. 
C.) 448. See also Jones r. Jones. 
1 Jooea L. (N. G) 491. See gen- 
eral:]', as to what words or acta 
constitute an arrest: Oold t. Bls- 
aell, 1 Wend. (N. Y.) 210, 215; 
HunUugton r. Blaisdell. 3 N. H. 
31S; Huntington T. Sbultz, Harp. 
(S. C.) 453; United States v. Ban- 
ner. Baldw. (U. S.) 234. 239; Field 
T. Ireland, 21 Ala. 240; Emery r. 
Cbesley, IS N. H. 198; Wbitehead 
T. Keysa, 3 Allen (Mass.), 495; 
Strout V. Gooch, S He. 127; Courtoy 
T. Dozler, 20 Qa. 369; St. t. Mahon, 
3 Harr. (Del.) 568; Tracy ». Whip- 
pie, 8 Johns. (N. T.) 379. See also 
Goodell 7. Tower, 77 Vt. SI, E8 Atl. 
790. Where poMcenen go to a 
man's bouse and Induce lilm to ac- 
company them to the chief ot po- 
lice, who searches and incarcerates 
him, this constitutes an arrest by 



the officers. HcAleer t. Good, 21S 
Fa. 473, 66 Atl, ID. Were an officer to 
Invite one to the police BtatlcMi for 
the purpose of InterrogatinK and In- 
vestigating a charge against him, 
and the psrson accompanies the 
offlcer and consents to be searched, 
it la a queatlon tor the Jury whether 
there was an arrest or not Oun- 
derson v. Strueblng, 125 Wis. 173, 
104 N. W. 149. 

•■Jones V. Jones, 13 Ired. L. (N. 
C.) 448. For a shopkeeper though 
acting under an honest mistake to 
follow a woman into the street, af- 
ter she had left his store, falsely 
accuse her of not having paid for 
something she had bought and to 
say to her: "Yoa will have to go 
back to the store," the fright and 
fear thus Induced Justlfles a flndiog 
of arrest Dunlevy v. Wolferman, 
106 Mo. App. 46. 78 S. W. 1165. 



D.qitizeabyG00<^lc 



CHAPTER XLIV. 

ATJTHORITT: AGBNCY: RATIFICATION. 
SEcnoir 
13SS. When Relation of Principal and Agent E:xlBtB. 

1369. Character 1q Which a Person holds Money. 

1370. Scope of Agent's Authorltr- 

1371. Notice of a Limitation upon an Agent's Authority, 
137S. Whether a Factor obeyed tale InetmctlonB. 

13T3. Whether a Warehouseman received Goods as the Agent at the 
Carrier or as the Agent of the Vendee. 

1374. Authorltr to Give Notice on behalf of a Surety to Proceed against 

Principal Debtor. 

1375. Whether an Agent had the Implied Power to borrow Money. 
137S. Act of Street Commissioner In making Repairs. 

1377. Authority of Station Agent. 

13TS. General Authority of Bank Cashier. 

1379. Authority of Husband to employ Attorney for Wife. 

13S0. Whether the Act of a Copartner Is vlthln the Scope of the Busl- 

1381. Ratification Generally a Question of Fact 

1382. When a Question of Law and when of Fact. 

1383. An Illustration. 

S 1368. When Relation of Principal and Agent exlsta. — 
Whether the relation of principal and agent e^sts is a question of 
fact for a jury.* While this question is not concluded by the state- 
ment of the alleged agent,* yet evidence tending to show that he 

1 Schcelkopf T. Leonard, 8 Colo. ■ Barrett t. Indianapolis etc R. 

lG9l Robinson T. Walton, 58 Mo. 38; Co., 9 Mo. App. 226; Symons v. 

Mlddleton T. Kansas City etc R. Road Directors, 105 Md. 254, 66 Atl. 

Co., 62 Mo. 679, ESI; Barrett v. In- 1067; Weatheimer t. State Loan 

dlanapolts etc. R. Co., 9 Mo, App. Co., 195 Mass. 510, 81 N. B. 2S9; 

226; Watson t. Hoosac Tunnel Line Bernstein r. Koken B. S. Co., 1 Ga. 

Co., 13 Mo. App. 263; Schleslnger t. App. 446, 67 S. e:. 1017. Declara- 

Texas etc. R. Co., 13 Mo. App. 471, tlons only which may constitute a 

affirmed, 87 Mo. 146; Glenn t. part of the res gestae are adrols- 

Savage, 14 Ore. 6S7, 13 Pac. 442. slble, the agency being otherwlee 

But the sufflciency of the evidence shown. Van Doren t. Bailey, 48 

for the submission ol the question Minn. 305, 61 N. W. 375; Wright 

to the jury is for the court, v. Rensena, 133 N. T. 298. 31 N. B. 

Trimble v. Kean Merc. Agency, 5S 15; Mobile * B. R. Co. v. Worthtng- 

Mo. App. 683. ton, 96 Ala. 598, 10 South. S39. An- 



ATJTH0BIT7: AGSHOY: BA.IVIOATIOlf. 



1071 



held hirnaelf out, with tlie knowledge and consent of the assumed 
principal, aa having authority to act for him in the manner in 
which he did act, is sof&cient to take the question to the jury.* 

§ 1360. Character in which a Person holds Honey. — The dhar^ 
acter in which a person holds money, whether for himself or for 
another, or for which of two contending parties he holds it, is 
manifestly a question for a jury. Tliis is well illnstrated by an 
English case, where W., being indebted to the plaintiffs, and un- 
able to pay them, agreed with the defendants that they should dis- 
count bills, to be drawn by W. and accepted by tiie plaintiffs, for 
£2,500. The plaintiffs handed the acceptances to the defendants. 
The defendants' manager asked the plaintiffs when they required 
the money. Tho plaintifb said they did not want the money until 
the next day, but afterwards said they would take £2,000 that 
evening. The manager said be would not hand the check for that 
amqunt to the plaintiffs, but would give it to W.'s clerk, and that 
be should require W. 's order for the payment of the balance. W. 'a 
clerk got the check for £2,000, and handed it to the plaintiffs, and 
the plaintiffs, on the same evening, handed to the defendants an 
order by W. for payment of the balance to the plaintiffs. It was 
held that it was a question for a jary whether, at the time of lodg- 
ing the order, the defendants held the money for the plaintiffs and, 
not for W.* 



thorlty mast b« shown by erfdence 
aliunde tb« acta of the agent. Mc- 
Oraw y. O'Neill, 123 Mo. App. «»1, 
IQl S. W. 13S. 

■ Watson T. Hoosac Tunnel Line 
Co., 13 Mo. App. 263. The doing of 
a sertea ot similar things and all 
-being previously aatlsfled br the 
alleged principal la evidence ot a 
holding out of one as having an- 
tborlty to represent the principal, 
the weight and credlbtlfty of which 
la tor the Jnry. Rice v. James, 193 
Mass. 458. 77 N. E. SOT. See also 
First Natl. Bank v. Oober, 162 Ala. 
SIT, 14 South. 536. What are In- 
dicia of anttaorlty, upon which one 
may be JostlDed In assuming that 
one U agent tor another, may be a 



question for the Jury, Thus It woi 
held that where an alleged agent 
presented a bill for goods previously 
sold by him and at the same time 
a bill for goods sold by his princi- 
pal directly, It waa tor the Jury to 
say whether the alleged agent had 
apparent authority to collect. 
Luckle V. Johnston, B9 Oa. 321, 16 
S. B. 169. Custom of trade may 
supply proof of agency sufficient to 
carry the question to the Jury. 
Kaufman v. Farley, TS Iowa, 6T9, 43 
N. W. 812, 16 Am. St. Rep. 462. 

« Noble T. National Discount Co., 
6 Hurl. * N. 225. Compare Lllley 
V. Hays, 6 Ad. « EI. 548; Walker v. 
Rostron, fl Mees. Jl W. 411; Llver- 
eldga V. Broadbent, 4 Hurl, ft N. 



7crib;G00<^IC 



1072 raOVINCB OF ooubt akd jubt. 

8 1370.. Scope of Agent's Anibority.— The scope of an agent's 
authority, where such anthority is conferred in writing, is a ques- 
tion of law for the court.* In like manner it has been held that 
upon ascertained facts, the question whether auth<«i^ to receive 
notice is within the scope of the duties of an agent, is a questioQ of 
law for the court." "If the authority of an agent he by attor- 
ney, (H- other writing, the instrument itself must in general be 
produced, and, since the construction of writings belongs to the 
court, and not to the jury, the fact and the scope of the agency are, 
in such cases, questions of law, and are properly decided by the 
judge." But "in all instances where the authority, whether gen- 
eral or special, is to be implied from the conduct of the principal, 
or where the mediom.of proof of agency is per testes, the jury are 
to judge of the credibility of witnesses, and of the implications to 
be made from their testimony.'" Again, it ia said: "In moat 



e02. So a Jury questtoii haa been 
found aa to wlietber money was 
loaned to parties ae Individuals or 
to a corporation of which tbey 
were officers and stockholders. 
Boylngton t. Van Etter, 62 Ark. S3, 
35 S. W. 822; Morris t. DI»on Nat. 
Bank, 65 III. App. 23S. And 
whether one In flecuring a certain 
benefit was acting In an Individual 
or repreeentatlve capacity. Nortb- 
em Nat Bank v. Lewta, 7S Wle. 475, 
47 N. W. 834. 

• NotBinger t. Ring, 4 Mo. App. 
676; C^aflln r. Continental Jersey 
Works. 85 Ga. 27. 11 8. B. 721; 
Qlenn v. Savage, 14 Or. 567, 13 Pac 
442; South Bend Toy Mtg. Co. v. 
DakoU F. A M. Ins. Co., 3 S. D. 
206, 52 N. W. ess. It' was beld, 
however. In the case of a written 
contract between a borrower and a 
lending company, that, where tbe 
contract In one part states that 
tbe party through whom money was 
being loaned was borrower's agent 
and In another the agent Is to per- 
form certain duties solely for the 
lender and epeaki of the money be- 
ing obtained through the agent 



rn^on the usual tenna "exacted" by 
agents. It was for the jury to say 
whom the agent represented. 
St v. Bristol Sav, Bank, IDS Ala. 8, 
18 South. 583. 64 Am. St Rep. 141. 

* Mobile etc. R. Co. v. Thomas, 
42 Ala. 672; Orlffln v. Erakine, ISl 
Iowa. 444, 109 N. W. JS; Covington 
V. Newberger, 99 N. C. 523, 8 S. B. 
206. 

T London Savings Fund Soc. v. 
Hagerstown Savings Bank, 3S Fa. 
St 49S, 502, 503, opinion by Wood- 
ward, J.; QroBcup V. Downey, 105 
Md. 273, 65 AU. 930. It has been 
held that, whether, In committing 
a tort, an agent was acting within 
scope of his authority was a Ques- 
tion for the Jury. Century BIdg. 
Co. T. Lewkowltz, 1 Oa. App. 836, 
57 S. B. 1036. The Supreme Court 
of the United States has held, that 
statements made by a book-keeper 
of a mining company In the way of 
reasons for refusing to allow a 
contraclor to see and copy railroad 
nelght bills In his possession, 
which by tbe contract were made 
evidence of the contractor's com- 
pensation, were so far within the 



Coo^^lc 



AnrreoBiTT; aobnct: batipioation. 1073 

easea, if not in all, the question of ageney is a matter of fact, which 
it is the province of a jury to determine upon, under the instruC' 
tions of the conrt; and if the tesUmony tends to prove that the 
person acting aa a^nt had authority from his principal to do the 
act, then it is manifest that the coart cannot exclude from the jury 
the act itself, without overstepping the law cf its duty and aasuming 
to determine a matter which belongs to the jury, to wit: the author- 
ity of the agent to do the act The correct rule is this: If there 
is no proof whatever tending to prove the agency, the act may be 
excluded from the jury by the court; but if there is any evidence 
tending to prove the anthorily of the agent, then the act cannot be 
excluded from them, for they are the judges of the soffieieocy and 
weight of the testimony." * 

§ 1371. Notice of Limitation npon Agent's Authority. — Where 
an agent makes a ccmtraet within the apparent scope of his aathor- 
ity, he binda his principal, although in point of fact he may have 
exceeded his authority, — ^that is, acted contrary to his principal's 
instructitms. In snch a case, if the principal would escape Habili^ 
upon the ctmtract thus made by the agent, it is necessary for him 
to show that the other contracting party knew of the limitation 
upon the agent's authority; and whether the other contracting 
party had such knowledge or not, is a question of fact for a jury, 
to be submitted to them under proper instructions.' 

■cope of Uii authorlt]' as to be com- * GeWln v. Kanaaa City R. Co., 21 
petent evidence against his em- Mo. App. 273, 280. Or of Ite hav- 
plorer. Anvil Mln. Co. t. Humble, Ing been terminated. Wheeler v. 
163 n. S. 640, 38 L. Ed. S14. McQalre, 86 Ala. 398, 6 South. 190, 
• HcClung's Ezecnton v. Spotto- 2 L. R. A. SOS; Perrlne t. Jermyn, 
wood. IS Ala. I6S, 170, opinion by 163 Pa. 4S7, 30 Atl. 202. Though a 
DaiKon, C. J. To the game effect, note given by an agent In ordinary 
see Krebs v. O'Orody, 23 Ala. 732; course be presumptively the note 
Thiyer v. Boston, IS Pick. (Mass.) of his principal, yet, If It Is on Its 
511, 616; QUpatrlck v. Blddeford, face unusual In character, as that 
61 Hfl. ISS; Flaher t. Stevens, IE the principal Is payable at a re- 
lit. 397; Hart v. Oirard, 6S Pa. St. mote time In the future and Inter- 
23, 28; Cloran r. Houlehan, SS Me. eat periods annual, It U a question 
211. S3 AU. 9S6; Jensen v. Welde, for the Jury whether or not the 
42 Ulnn. 59. 43 N. W. 68S; Brad- party dealing with him ought to In- 
street Co. v. GUI. 72 Tex. 116, 9 S. quire as to any limitation upon his 
W. 753, 13 Am. St. Rep. 768, 2 L. R. authority. Conrae v. Case, 79 Wla. 
A 405; Baker -v. TIbbetU, 162 338, 48 N. W. 480. 
lUs8. 408. 39 N. E. 360. 
Tbiau — 68 



D.qitizeabyG00<^lc 



1074 FBOVINCB OF OOVBT AND JOBY. 

§ 1372. Whether a Factor Obeyed his InstinctioiiB. — A factor 
must strictly follow the instructions of his ptineipal, and any de- 
parture from them will be at his own risk. If, with proper care 
snd diligence and in good faith, he carries oat the orders of his 
principal, and a loss nevertheless occurs, it will fall upon the prin- 
cipal ; and whether he has obeyed or disobeyed the instructions of 
his principal, will be a question of fact for the jnry; " unless the 
instructicHis are embraced in a written instrument of miequivocal 
import, in which case its meaning must be declared by the court.^' 

5 1873. Whether Warehouseman Received Goods aa Agent of 
the Carrier or as Agent of the Vendee.— Where the question at 
issue was the right of stoppage in transitu, it was held that the jury 
should have been left free to determine, upon all the evidence, 
whether the warehouseman, into whose hands the goods had come 
when the vendor attempted to exercise the right, had received thn 
goods as thft agent of the carrier or as the agent of the vendee." 
The decision proceeds upon the well understood groimd, that the 
delivery of the goods to the vendee or to his agent would put an 
end to the transitua and determine the right of stt^page.** 

§ 1374. Anthority to CHre Notice on Behalf of » Surety to 
Proceed Against Principal Debtor.— So, where there was evidence 
that the son of a co-surety gave notice to the creditor to proceed 
against the principal debtor, it was not error to submit the ques- 
tion of his authority to give such notice, to tke jwry.** 

g 1376. Whether an Agent had the Implied Power to Borrow 
Money. — Under conflicting evidence as to the scope and limits of 
the power of an agent appointed to build up the business of his 
principal in a distant city, it has been thought proper to submit to 
the jury the question whether the agent had implied power to bw- 
row money on the credit of his principal, — the court saying: "The 
ease was not one whidi could be determined by the court. It de- 
pended very much upon probabilities and inferences, and those 

MSIegerBon v. Pomeror, 13 Mo. J. 218; Mottram v. Heyer, 1 Dealo 

620. (N. T.), 483; DodBon t. Wentworth, 

» Ante, ! 1065. 4 Man. ft O. 1080; Sawyer v. JoHlIn, 

i» Hoover v. Tibblts. 18 WIb. 79, 20 Vt. 172. 

84. '* Klingensmlth v. KllnEen smith's 

It Allan V. Qrlpper, 2 Cromp. ft Ex., 31 Pa. St 460. 



D.qitizeabyG00<^lc 



AUTHORITY: AGENCY: RATIFICATION. 1075 

were reqtiired to he disposed of by the jury. In both respects the 
case was one which could not be withheld from their consideration ; 
and their verdict on this disputed evidence must be accepted as a 
legal result, even though a different determination by them might 
have been regarded as more consistent with the entire weight and 
effect of the evidence," " 

§ 1376. Act of Street CotnmissioDer in Making Bepairs. — In an 
action for damages for an injury received in consequence of a defect 
in the street of a city, it has been held that the acts of the street 
commissioner, within the scope of the trust committed to him, are 
prima facie the acts of the city; and that, whether they are within 
the general authority conferred upon him, is a question for the 
jury." "'Whether a particular act," said Shaw, C. J., "operating 
injuriously to an individual, was authorized by the city, by any 
previous delegation of power, general or special, or by any sub- 
sequent adoption and ratification of particnlar acts, is a qnestion 
of fact, to be left to a jury, to be decided by all the evidence in 
the ease,"" 

§ 1377. Authority of Station Agent, — ^Following the general 
current of authority, it has been held that the question whether 
or not the station agent of a railway company has, as such agent, 
authority to bind the company by a contract to furnish cars to a 
shipper at his station at a particulai" time, is one of fad and not 
of law; and hence that it ia error to reject testimony offered by the 

i> BIckford V. Menler, 86 Hun drawn by the managing agent of a 
(N, T.), 446, 449. So where a for- mill, on owners living In another 
elgn corporation without any ofll- locality, and It was shown that 
cera resident at Its works employed simitar drafts Id favor of divers 
a principal foreman, who both persons had been drawn and paid, 
hired and discharged men. He had It nas held to be a Jury question 
no expre^B authority other th^n to whether the draft' discounted by 
bfre by the day, but many of the the bank was authorized. Its pro- 
men worked through the season ceeds or a part thereof being used 
and the foreman had used his own for drawee's beneflt. First Natl. 
discretion for a number of years. Bank v. Gobey, 152 Ala. 617, 41 
It waa held to be for the Jury. South, 535. 

whether an employment for the i«OIlpatrlck v. Blddeford, 61 Me. 

leaun was wltbln hla authority. 1S2, 190. 

Tnntaon v. Detroit t L. S. Copper it Thayer v. Boston, 18 Pick. 

Co.. 73 Hlch. 452, 41 N. W. 602. So (Mass.) 611, G16. 
where a bank discounted a draft. 



D.qitizeabyG00<^lc 



1076 



PSOVINCB OF OOUBT AHD JTTBr. 



railway company to prove that its agents had not sach aathorily, 
and to iostrnct the jniy <ki tlie theory that mdi agents had moh 
authority as matter of law." 

S 1378. Oeneral Aathority of Bank Oaahler. — ^The cashier of a 
bank is, however, an agent whose goieral dnties are so well estab- 
lighed by the usages of commerce, that eouria take judicial notics 
of them ; and it is held that the extmt of the general powers of the 
cashier of a bank is a qtustion of law." In the absence of proof to 
the contrary, he will be presumed to have authority to torn oot the 
notes and assets of the bank in payment of its indebtedness.** He 
binds the bank by his statements touching its ordinary bofdness in 
hand.** Under drcumstances, he binds the bank I^ giving false 
infonnatitHi to an inquirer,** tbot^h not where the iMrcumstanoes 
are such that it is not his official duty to give any information,** 
as where he is not at the bank att^iding to his ordinary duties.** 
The law ascribes to him power to indorse negotiable paper in the 
ordinary business of the bank ;** to sign stock certificates indcuwd 



KWood T. Chicago etc. R. Co., 
69 Iowa, 19S (Beck, J., diaMntlng). 
And so as to certain daflaea of 
freight, 6. E., Bhipmenta of cattle. 
Clark T. Ulster, 189 N. T. 93, 81 N. 
m. 766. 

'■Farmere' Bank v. Troy Cltr 
Bank, 1 Donsl. (Mich.) iG7; Penin- 
sular Bank v. Hanmer, 14 Mich. 
208. It has been held that, no no- 
tice of limitation In the articles Ol 
a bank to the contrary being 
brought to a lendei'B attention, and 
no reason for any Inquiry as to any 
limitation appearing, a cashier had 
authority to borrow for the bank 
and pledge Its notes to secure the 
loan. Citizens Bank t. Bank of 
Waddy's Receiver, 31 Ky, I«w Rep. 
365, 103 S. W. 249. 

MKlmbell T. Cleveland, 4 Mich. 
606; Peninsular Bank v. Hanmer, 
14 Mich. 243. Th« ordinary duties 
which the law ascribes to blm were 
stated by Mr. Justice Wayne in 
D. S. V. Caty Bank, 21 How. (U. S.) 
3E6, S«4. 

•iCocfaecho Bank v. Haskell, SI 



N. H. 116; Merchants' Bank t. Rn- 
dolf, E Neb. E27; Grant v. Cropser. 
8 Neb. 206; State Bank v. Wilson. 1 
Dev. (N. C.) 4S4; Hlckok v. Far- 
mers' etc. Bank, 3G Tt. 476. 

■> Manufacturers' Bonk v. Bco- 
fleld, 89 Tt. G90. See, contra, 
Franklin Bank v. Steward, 87 Me. 
619. 

■* Mapes V. Second Nat. Bank, SO 
Pa. St. 163; Swift t. Jewsbury, L. 
R. 9 Q. B. 301, 312 (reversing sub 
nom. Swift T. WInterbotham, L. R. 
8 Q. B. 244). See also Btting v. 
Commercial Bank, 7 Rob. (La.) 469. 
Compare Hackay v. Commercial 
Bank, L. IL 6 P. a 894. 48 L. J. (P. 
C.) 81; Barwick r. English Joint 
Stock Bank, L. R. 2 Exch. 269. 

» Merchants' Bank v. Rudolf. G 
Neb. 627; Bullard v. Randall, 1 
Cray (Mass.), 60S; Houghton v. 
First Nat. Bank, 26 Wla 663. But 
see Merchants' Bank v. State Bank, 
10 Wall. (U. B.) 604; Pendleton v. 
Bank of Kentucky, 1 T. B. Hour. 
(Ky.) 171, 182. 

■•Wild T. Bank 



Goo^^lc 



AUTHCffiITT: AQBNCT: BATIFICATION. 



1077 



in blank,'* bat not to indorse strictly non-negotiable paper," ev 
peeially his own note;*' to certify checks of the bank;" to accept 
bills drawn upon the bank;** to sell exchange belmiging to the 
bank ; •• and to indtwse the same for the purpose of passing title ;** 
and to guarantee the paper so sold.** But he has no implied power 
to compromise debts due the bank,** nor to give an indemnity to 
a sheriff,** nor to release indorsers or sureties,** nor to indorse for 
accommodation.'^ 



gnoddy, S Maaon (V. S.), EOS; 
Fleckner T. IT. S. Bank, 8 Wbeat 
(U. a) 838; Folger T. Chaae, 18 
Pick. (Hub.) 63; Hartford Bank 
V. Barrr, IT Mass. 93; Back o( 
OenesBeo T. Fstchin Bank, 19 N. T. 
313; Bverett r. V. S., 6 Porter 
(Ala.), 166: I^arette Bank t. SUt« 
Bank, 4 McLean (U. S.). 208; Bonk 
ot U. S. ▼. DaTiB, 4 Cranch C C 
(U. 8.) 633; Billot t. Abbot, 12 N. 
H. 649; Harper v. Calboun, 7 How. 
(Miss.) 203; West. St. Louis SaT. 
Bank T. Shawnee Co. Bank, 9G V. 
8. EST. 6 Rep. 33, 2 Cent L. J. 46; 
16 Alb. L. ]. 473; MerchanU' Ins. 
Co. r. Chanvln, 8 Rob. (La.) 49; 
Robb T. Robs Co. Bank, 41 Barb. 
(N. T.) E86; Blasell y. FIrat Nat 
Bank, 69 Pa. St. 415; Maiwell t. 
Planters' Bank, 10 Humpli. (Tenn.) 
507; State Bank t. Fox, 3 Blatch. 
(U. S.) 431; Farrar ▼. Gllman, 19 
He. 440; Crockett t. Toung, 1 Smed. 
Ic H. (Ulss.) 241; Holt t. Bacon, 
25 Hiss. 667; Cooper t. Curtis, 30 
Me. 4SS; St LonlB Perpetual Ids. 
Co. T. Cohen, 9 Mo. 421; Kimball y. 
Cleveland, 4 Mlcb. 606; Carej' v. 
McDout.Lld, 7 Ga. S4; Houghton v. 
Fint Nat Bank, 26 Wis. 663; Bank 
of N. Y. V. Bank ot Ohio, 29 N. 7. 
619 (overruling Bank ot State v. 
Fumera' Branch. 86 Barb. (N. T.) 
332); Cltf Bank v. Perkins, 29 N. 
T. 6S4. 

i« Mathews v. Mass. Nat Bank, 1 
Holmes (U. S.), 396. 

*r Barrlck t. Austin, 81 Barb. (N. 



T.) 241. Compare Elliot t. Abbot, 
12 N. H. 649. 

MWeat St. Louis Sav. Bank v. 
Shawnee Co. Bank, 96 U. S. G6T, B 
Rep. 33; 2 Cent. L. J. 46; 16 Alb. L. 
J. 473. 

i« Clarke Nat Bank v. Bank, 52 
Barb. (N. T.) 593; Cooke v. State 
Nat Bank, 63 N. Y. 96. See also 
Farmers' Bank t. Butchers' Bank. 
16 N. T. 126, 4 Duer (N. Y.), 219; 
14 N. T. 633, 28 N. Y. 425; Mer- 
chants' Bank v. State Bank, 10 
WaU. (U. S.) 604. 

wFannera' etc. Bank v. Troy 
Citr Bank, 1 Dougl. (Mlcb.) 4ST. 
But see Pendleton v. Bank of Kj., 

I T. B. Mon. (Ky.) 171. 1TB. 

*i Fleckner y. United States 
Bank, 8 Wheat (U. S.) 338, 360. 

•■Wild V. Bank of Pasaama- 
qnoddy, 8 Mason (U. 8.), 505; 
Farmers' etc. Bank v. Troy City 
Bank, 1 Dougl. (Mleh.) 467; Robb 
V. Ross Co. Bank, 41 Barb. (N. T.) 
686; Lafayette Bank v. State Bank, 
4 McLean (U. S.). 208; City Bank 
of New Haven v. Perkins, 4 Bosw. 
(N. Y.) 420. 

MSturges V. Bank of Circlevllle, 

II Ohio St 153. 

t* Chemical Nat. Bank v. lOihner, 
68 How. Pr. (N. Y.) 267. 8 Daly (N. 
Y.). 630. 

as Watson V. Bennett, 12 Barb. 
(N. y.) 196. 

•■Daviess Co. Sav. Asao. T. 
Sailor, 63 Ho. 24, 3 Cent L. J. 488; 
8 Chi. L. N. 332; Cochecho Nat. 



1078 PROVINCE OF COURT AND JURY. 

§ 1379. Authority of Hoaband to Employ Attorney for Wife.— 
On the principle upon whieh it is held that the fact of agency ia 
a question for a jury, it is also ruled that, where a husband employ:* 
an attorney to bring an action in his own name and that of his wife, 
in respect of her separate property, the question whether he had 
authority so to do for his wife, is to be tried in the same manner 
as the question of authority by any other person employing an 
attorney; but the jury may consider the situation and relation of 
the parties, in determining whether the husband acted as agent for 
his wife or for both, or in his own behalf alone ; and this is tanta- 
mount to saying that the question is one of fact for the jury.** 

S 1380. Whether the Act of a Copartner is Within the Scope 
of the Business. — A copartner is the general agent of the partner- 
ship for the purpose of conducting the partnership business in the 
usual way." Whether the act of tiie copartner is within the scope 
of the business of the partnership, or whether, in the doing of a 
contested act, he was conducting its business in the usual way, so 
as to bind the other membeis, is a question of fact for a jury.*" 

§ 1381. Katiflcation generally a Question of Fact. — ^The ques- 
tion whether a principal has ratified the unauthorized act of his 
agent, or whether a person has ratified or accepted the act of one 
who has assumed, without authority, to act as his agent, is gen- 
Bank T. Haekell, Bl N. H. 116; evidence of Boma arrajigement with 
Payne v. Com. Bank, 5 Sm. AM. an agent of an absconding debtor 
(Miss.) 24; Ryan t. Dunlap, IT 111, to transfer certain acconnts to tbe 
40; Eastman t. Coos Bank, 1 N. H. firm, tbe cashier agreeing In wrlt- 
23. Contra, Bank v. KUngensmlth, ing to apply the residue to plain- 
7 Watts (Pa.), G23. tiff's debt, but Instead of so doing 

•tEx parte Eatabrook, 2 Loweli he paid It over to tbe debtor, tbe 
(U. S.), G47. Compare Perkins T. question of the authority of tbe 
Bradley, S4 Yt S6. Nor to extend cashier to enter Into such arrange- 
a note without the consent of an- ment In behalf of the firm was held 
other one of the parties primarily to be properly left to tbe Jury, 
bound, claiming that tbe bank Shav y. Gllmore, 76 Mich. 127, 42 
payee knew he was surety. Van- N. W. 10S2. 

derford v. Farmers & Mech. Bank, m Comfort r. Sprague, 31 Minn. 

105 Md. 164, G6 All. 47, 10 L. R. A. 405. 18 N. W. 108. 
(R. B.) 129. It baa been held under .» Wlnshlp T. Bank ot U. 8., 6 Pet 
some circumstances a Jury question (V. S.) 561. 

as to authority of cashier. Thus m Loudon SaTings Fund Soc. t. 

where a cashier was also a partner Hagersiowa Savings Bk., 36 Pa. St 
In a banking firm, and there was 49S, 606. 

i:q,t,7c-rib;G00<^IC 



AUTHOKITT: AGENCY: RATIFICATION. 



1079 



erally a question of fact for a jury," This priDciple has been ap- 
plied to the case where a negotiable instrument has been altered 
subsequently to its execution and delivery. The maker may, by 
certain unequivocal acts done with a knowledge of the alteration, 
ratify the same, — as where, with such knowledge, he subsequently 
makes a part puyment; " and whether he has, by subsequent con- 
duct, ratified the alteration, has been said to be a question of fact 
for the jury.** 

§ 1382. When a QnestloD of Law and wbeD of Fact.— "Where 
the evidence is doubtful and may admit of different interpretations, 
there it seems proper to submit the question for.the decision of the 
jurj-. But where they can justly lead to no safe or satisfactory con- 
clusion, a ratification ought not to be presumed," ** In many cases 
the acts will be of such an unequivocal character that the question 
may be a mere question of law, — as where the principal, with full 
knowledge, accepts the fruits of the misconduct of the agent.** The 



*i HlddletoQ T. KauBaa Cltr etc 
R. Co., 62 Mo. 679; Fisher v. Stepb- 
eos, 16 III. 397; Palmer t. Sellg- 
man, 77 Mich. 306. 43 N. W. 974; 
Brand v. Newton, 82 Hun, 550, 31 
N. T. a. 70ft. 

11 Brans v. Foreman, 60 Mo. 449. 

"Iron Mountain Bank v. Mur> 
dock, 62 Mo, 70, 77. Compare Ger- 
man Bank T. Dunn, 62 Mo. 79; City 
of Plndley v. Pertz, 74 Fed. 781, 20 
C C. A. 662; Pohl t. Davenport 
Malt ft Grain Co., 46 ni. App. 613; 
Stokes T. Macker. 140 N. T. 640, 3G 
N. B. 786. Where a shipper made 
shipment to its factor, vith au- 
thority to sell and reconaign, and 
the factor going out ot business 
turned the shipment over to an- 
other, who sold and reconslgned. 
Bending bis own draft for pro eeds, 
which shipper accepted and after 
Its dishonor for Insolvency of 
drawer repudiated the transaction, 
the court held that, though there 
was no ratification In the mere ac- 
ceptance and sending on of the 
draft for collection, yet as there 
waa some evidence tending to show 



the shipper had some knowledge ot 
the condition of the drawer, It waa 
for the Jury to say whether or not 
there was a ratification in the send- 
ing on of the draft for collection. 
This case showed the third person 
drew against the re consignment 
and bis bank discounted bis paper 
and the suit waa against the bank 
lor the proceeds of the latter draft. 
See Smith v. Jefferson Bank, 120 
Mo. App. 527, 97 S. W, 247. 

** Story on Agency, S 253; Com- 
mercial Bank t. Jones, 18 Tex, 812, 
S28. 

«Crooker v. Appleton, 26 Me. 
131, 135; Bryant v. Moore. 26 Me. 
S4; Krollk v. Curry, 143 Mich. 214, 
111 N. W, 761; H. Goldschmldt ft 
Co. V. Wagner (Tei. Civ. App.), 
99 S. W. 737. One cannot shut his 
eyes to means of Information. Re 
Johnson. 102 Minn. 8, 113 N. W. 
894. If he brings suit to enforce 
rights prevIouHly unauthorized, this 
is ratification. J. F. Bailey Co. y. 
West Lumber Co., 1 Ga. App, 398. 
58 S. R 120. 



D.qitizeabyG00<^lc 



1080 PBOVINCE OF COURT AtlO JUBX. 

precautions which should be borne in mind in submitting this ques- 
tion to the jury are well illustrated by a leading case in Maryland, 
in which the trial court instructed the jury that, if the wmaideration 
for the contract had been received by the agent and paid over to 
the principal, who retained the same, these facts were in law an 
adoption of the contract, and as binding on the principal as if a 
previous authority had been given to an agent. This instruction 
was held erroneous, because the jury were not required to find 
(1) that the defendants knew on what account the mcmey was paid 
them, and (2) that they knew the terms of the contract oa which 
the money was received." Where the evidence which speaks upon 
the subject whether the principal received the fruits of the miscon- 
duct of the agent with fall knowledge of all the circumstances, is 
equivocal, the question whether there has been a ratification ought 
to be submitted to the jury under proper instructions as to the law/' 

g 1383. An Dlnstration. — An illustration of the doctrine that, 
whether there has been a ratification is a question of fact for a jury, 
is, perhaps, found in a case in New York, where the defendant, who 
was sued as indorser of two promissory notes, had written to the 
plaintiffs, agreeing to an arrangement giving further time of pay- 
ment to the makers, and that no act of the plaintiffs in so doing 
should exonerate the defejidant as indorser, and waiving notice of 
protest; upon which facts it was held, reversing the trial court, that 
the defendant was not estopped by the letter from setting up as 
a defense that the indorsements were forgeries, but that the letter 
was evidence to be submitted to the jury as to whether the defend- 
ant may have ratified and afi^med the indorsements, though not 
his own,** 

«• Pennsylvania etc. Go. v. Dan- (iHorton V. Townai, S Leigh 

dridge, 8 QUI & J. (Md.) 249. 311. (Va.), 47; Ladenburg. Thalman A 

Ab to necessity of fall knowledge Co. v. Beal-Doyle D. O. Co. (Ark.), 

to make a ratification binding, see 104 S. W. 145. 

Clement v. Young-McSbea Amuse- MTtaom v. Bell, Lalor Sapp. (N. 

ment Co., 70 N. J. Eq. 677. 67 Atl. T.) 430. It should be added that 

82; Suderman-DolBon Co. v. Rogers the propriety of the conclusion 

(Tex. Civ. App.), 104 S. W. 193. reached by the Supreme Court In 
this case Is very doubtful. 



D.qitizeabyG00<^lc 



CHAPTBR XLT. 



ALTERATION OF VBITTBN INSTRUHENTa. 



U»S. ract of AltenUlon. 

1193. Time ot tba Alteration. 

ISM. In tbe Case of Negotlablft InstmmentiL 

1S9G. Haterlalitr of tbe AlteraUon. 

1S96. Aatliortt7 for HaUng the Altontlon. 

1897. Bt whom Hade and wbeUier FrandnlenL 

139S. These Qaeatlone, bow Settled. 

U99. Wtadiher an Altentloa has been Hade In mob a Hannsr aa to «z- 

dto SuBpldon and FroToke Inqaliy. 
i4Mi [Cimtlnned.] An Oppoolns Tlew. 

{ USa. Tftot of Altention^-Wtiether then has htea in fact an 
iltaration in a written instmment ii a qv«stio» for a jury.^ 

S 1393. Tinu of the Altention.--If the jury find there ms an 
altovtion, then it is alw> for them to determine whether it was made 
before the instnuneDt passed frtm the hands of the maker or after- 
wards,* even when no explanatoty evidence is offered.* On tbe 



iPamnora T. LlndseT> SS Ho. 
SI; Belfast Nat Bank t. Hairlmau, 
U He. Mi; Wood t. Stede, 6 WalL 
(D. 8.) 80; Col« t. Hllla. 44 N. a. 
S2T, It there U a manifest a]t«rar 
tlon, which requires explanation 
before Instnuoeiit can be read to 
the JniT. the court may exclude It 
prlmarUr. StUlwell t. Patton, 108 
Ho. 852, 18 8. W. 107E. If Inspec- 
tion alone will not lulftce, then the 
qnestlon la for the Jnrr as arlalng 
npon the whole evidence. Horton 
T. Horton's SatAte, 71 Iowa, 448, 3S 
H. W. 461. 

• Belfast Nat. Bank t. Barrlmas, 
•8 He. G2i: Wilson t. Hotchklas, 81 
Web. 178, 45 N. W. 8S8; Martin v. 
Kllna. 1G7 Pa. 478, 37 AU. 763; 
WOaon T. Hares, 40 Ulnn. HI, 43 



N. W. 4117. 13 Am. 8t. Rep. 754, 4 U 
R. A. 198; Beach T. Heck, G4 Mo. 
App. 699; Cltliens' Bar. Bank T. 
Halstead, 43 Ind. App. 79, 84 N. B. 
1098. 

• Crabtree r. Clark, 20 He. 837. 
"When there are no Indications of 
falsltj npon tbe paper, the plalntUt 
la not bound to go further, and 
prove that it waa made on tbe dar 
It purport! to be." Belfast Nat 
Bank t. Harrlman, sapra; Pullen 
T. Hutchinson, SG Me. 249. In 
PetinsylTanla It baa been ruled not 
orrar to dlrsct a verdict for de- 
fendant obligor. If there Is no ex- 
planation. Bowers T. Rlneard, 209 
Pa. G4<G, 68 AU. 912. But In the ab- 
sence of Indications of falsity he 
wbo aaaalla the instrument must 



IC 



1062 



PROvmCB OF OOXJST AND JURY. 



one hand, it has been held that, in the absence of evidence ^)eakit 
directlr or inferentially upon the question, the law, following tl 
general presumption of right acting, presumes that the alteratic 
was made either before or at the time of the signing of the instr 
ment.* On the other hand, it has been held that there is no pr 
gumption of law that the alteration was made either before or aft 
delivery.* "If the alteration is noted in the attestation clause, 
having be^i made before the execution of the instrument, it is su 
ficiently accounted for, and the instrument is relieved from su 
picion; and if it appears in the same handwriting and ink wi 
the body of the instrument, it may suffice. In other words, 
nothing appear to the contrary, the alteration will be presumed 
be contemporaneous with the execution of the instrument But 
any ground of aospiciou is appar^it upon the face of the instr 
ment, the law presumes nothing, but leaves the question of the tii 
when it was done, as well as that of the person by whom, and t 
intent with which the alteration was made, as matters of fact, 
be ultimately found by the jury, upon proo& to be adduced by t 
party offering the insti-ument in evidence."* Bestating the d( 



ahow It was altered and wben. 
Shyfleld v. Wlllard, 43 Wash. 179, 
86 Fac. 892. See also Montgomery 
7. CroBflthwalte, 90 Ala. s&3, 8 
South. 498, 24 Am. St. Rep. 832, 12 
li. B. A. 140; Franklin t. Baker. 48 
Oblo St. 29S. 27 N. B. 650, 29 Am. 
St Rep. S47. 

iMattbews v. Coalter, B Mo. 705; 
Ballej' V, Taylor, 11 Conn. B31; Lub- 
bering r. Kohlbrecber, 22 Mo. B9fl; 
Paramore t. Lindsey, 63 Mo. 63, 06; 
Heard v. Tappan, 116 Ga. 930, 43 S. 
E. 376; Maldauer v. Smith, 102 
Wis. 30, TS N. W. 140; McKenzIe v. 
Barrett, 43 Tex. Cfv. App. 451, 98 
S. W. 229; Kenrlck v. Latham, 25 
Fla. 819, 6 South. 871. Upon whom- 
Boever attacks the Inetrument the 
burden Ilea and to Iowa tbta Beema 
not to shltt because the alteration 
Is apparent See Hogan v. Mer- 
chants' Ins. Co., SI Iowa, 321, 40 N. 
W. 1114; McGee ▼. Allison, 94 Id. 
527, 63 N. W. 323; Rambouaek v. 
Supreme Council, 119 Id. 263, 93 



N. W. 277. Where words of w 
did not alter disposition of pr< 
erty, presumption applied. Jert 
T. Jersey, 146 Mich. 906, 110 N. 
64. Where a material error in i 
Bcrlptlon of property waa called 
husband's attention and he pro 
ised to have same corrected, p 
Burned he called wife's attention 
same before execution. Houston 
Jordan, 82 Tex. 352. 18 S. W. 702 

■ Ely T. Ely, 6 Gray (Maaa), 4 
442; Consumers' Ice Co. t. J 
Hinge. 100 Va. 719, 42 S. K. 8 
The absence of such presumpt. 
puts on the party ofCerlag the b 
den as of afllrmattve matter. C 
llD Coal Co. v. Lloyd, ISO 111. 3 
54 N. B. 214; Nesbitt v. Turner, ; 
Pa. 436, 26 Atl. 750; Blewett 
Bash, 22 Wash. 636, 61 Pac. 7' 
Grand Lodge A. O. U. W. v. You 
123 111. App. 62S: MesBl v. Freche 
113 La. 679, 37 South. 600. 

<l Greenl. Elv., S 564. T 
statement of doctrine br PJ 



, GooqIc 



ALTERATION OP WRITTEK INSTRUMENTS. 



1083 



trine, the role is sud to be that, "if there be suspicioua circum- 
stances on the face of the instrnment, it is for the judge trying the 
case to determine, from an iuspectioQ, whether it be such as to re- 
quire the party offering it to explain the matter. When he submits 
the question, with the instrument itself and the proofs, to the jury, 
it is a question of fact for their determination ; and their finding, 
as on any other question of fact, is conclusive."' Where there 
are no such circumstances of suspicion, the presumption in the ab- 
sence of proof to the contrary, is that the apparent alteration was 
made before the final execution and delivery of the instrument.* 

§ 1394. Li the Case of Negotiable Instntments. — ^A holder of a 
promissory note, the dale of which appears, upon inspection, to 
have been altered, must explain the alteration and show it to have 
been lawfully made, before he can recover upon it* The maker 
of a negotiable instrument is always premmcd, in the absence of 
evidence to have issued it clear of all blemishes, erasures and alter- 
atitms, whether in the date or body of the instrument; and the 
burden of showing that it was defective when issued is upon the 



Greealeat bas been ^proved In tbe 
following cases: Matthews v. Coal- 
ter, 9 Ho. 70S; Lnbberlng v. Kohl- 
brecber, 22 Mo. 596; Paramore v. 
Lindser, 63 Mo. 63; Peugb v. 
Mitchell, 3 D. C. App. 321; Fole7- 
Wadsworth Co. t. Solomon, 9 8. D. 
511, 70 N. W. 639; Rogers v. Page, 
110 Fed. G96. In Kentnckr It was 
held that the dlBerent Ink In which 
tlie alteiatlon was made did not 
change the ordinary presumnUoii. 
Qnnbel v. Seibartb, 27 Kf. L. R. 
465, SG 8. W. 733. 

THolton T. Kemp, 31 Mo. 661, 
666; Brown v. Kennedy, 132 Mich. 
464, 93 N. W. 1073; St. t. Balrd, 13 
Idaho, 29, 89 Pac. 298; Wood v. Sket- 
ler, 186 Mass. 114, 81 N. B. 872. 
The conrt first decides whether at- 
tsratlons are apparent and suspic- 
ions clrcam stances are auOclenCly 
explained, prima facie at least 
Ward V. Cheney. 117 Ala. 238, 32 
South. 99S. 



• Ibid.; Matthews v. Coalter, 9 
Mo. 705; Paramore v. Llndsey, 63 
Mo. 63. Where certified copy of 
deed was objected to because of 
original being best evidence and 
that showed eraeures, it was held 
not error to overrule objection. 
Ming T. Olster. 196 Mo. 460, 92 S. 
W. 898. The rule as to preliminary 
showing of admlBslblllty is gov- 
erned by statute Id some Jurisdic- 
tions. The practitioner's attention 
Is directed to the statute of his own 
state. 

■ Simpson V. Stackhonse, 9 Pa. 
St. 186; Paine v. Edsell, 19 Pa. St. 
178; Milter v. Read, 27 Pa. St. 244; 
Wisdom V. Reetes, 110 Ala. 418, 18 
South. 13; Appeal of Hesa, 134 Pa. 
31, 19 Atl. 434. It has been decided 
that a like nite obtains as to a 
deed. Slsson v. Pearson, 44 III. 
App. 81. And a bond. Hodnett v. 
Pace, 84 Va. 873, 6 S. B. 217. 



D.qitizeabyG00<^lc 



1084 



PBOVINCE OP COXJHT AND JUBT, 



bolder, even thougli the alteration be beneficial to the maker. Snch 
evidence, it has been held, is for the jury, who are to say whether 
the alteration, if any, wag made before or after the defendant parted 
with the note.*' 



S 1395. HateriaUty of tiie Alteration.— But whether an alia&- 
tion is m&terial or not, is a guettion of law for the court." A ma- 
terial alteratiiHi of a written instniment, made after it is signed and 



ID HeOoer t. Wenrlch, 82 Pa. St 
423; Simpson v. StackbouBe, 9 Pa. 
St 186. Upon the queetlon what 
alteratfonB will avoid a written ob- 
ligation, see Bowers v. Jewell. 2 N. 
H. 643; Marshall v. Oougler, 10 
Serg. « R. (Pa.) 164; Master T. 
Miller, 4 T. R. 320. 323; Getty v. 
Shearer, 20 Fa. St U; Miller V. 
Glllaland, 19 Pa. St 119; Hunt v. 
Adame. 6 Mass. G19; Nevlns v. De 
Grand, 16 Mass. 436; Adams v. 
Frye, 3 Met. (Maas.) 103; Zouch v. 
Clay, 1 Vent. 185; Henmnn v. Dick- 
inson, S Blng. 183; Kntgbt T. Cle- 
menta, 8 Ad. A Bl. 21S, 231; Bishop 
V. Chambre, Mood, ft M 116; Clif- 
ford V. Parker, 2 Man. ft 0. 910; 
CarlsB T. Tattarsall, Id. 890. 
Thongh a note may be annnlled by 
alteration, this does not aSect en- 
forcement of mortgage securing 
the payment thereof. Bailey v. Qll- 
msn Bank, 99 Mo. App. 571, 74 S. 
W. 874. Where a note was altered 
by changing the rate of interest and 
then the alteration rubbed out and 
the note waa left to express no rate 
at fill, and the tnortgage did not 
specify any rale, It was held to be 
enforceable at the legal rate, the 
original and altered rate In the 
note calling for a higher rate than 
that. Edwards r. Sartor, 67 S. C. 
640, 48 S. E. 537. 

11 Belfast Nat. Bank v. Harrl- 
man, 68 Me. 522; Wood v. Steele, 6 
Wall. (U. 8.) SO; Overton v. Mat- 
thews. 35 Ark. 147; McKenzle v. 



Barrett, 43 Tex. Civ. App. 4S1. 98 
8. W. 229. The materiality ol an 
alteration depends, sometimes, 
upon the purpose for which the In- 
etrument is offered. If the purpose 
is collateral or incidental, If in Its 
altered state It shows or tends to 
show the relevant fact, the altera- 
tion Is Immaterial. Thus an altera 
tlon In an application fur gas, as 
tending to show possession of 
premises where the gas Is to be 
used. St. V. Schaeffer, 74 Ean. 390. 
86 Pac. 477, Where a vendor's lien 
note was altered by Inserting the 
word "West" after "South" In de- 
scription of the land this was held 
Immaterial, as the obligatory part 
was not afteeted. Nance v. Gray, 
143 Ala. 234, 38 South. 916. Where 
a blank space is to be filled so as 
to explain more definitely a oollat- 
erat matter, as in the case of a pre- 
mium note, in Men of cash pre- 
mium, on an Insurance policy, the 
condition of lapse of policy for non- 
payment at maturity twing stated 
on the face of the note, the filling 
of the blank with the number of the 
policy does not present even a sus- 
picion such as would make It a Jury 
question. Hipp v. Fidelity H. L. 
Ins. Co., 138 Qa. 491, G7 S. B. 892. 
Inserting In an Instrument what Is 
implied Is an Immaterial alteration 
— e. g. the words "with exohange." 
First Nat. Bank v. Nordstrom. 70 
Kan. 486, 78 Fac. 804. 



ovGoo<^lc 



AlmSAiTlON OF WBITTEN INSTBUUENTS. 



delivered, without the ctmseat of an obligor therein, will discbarge 
him from its obligaticm.** This rule holds good, although the alter- 
ation may be shown by evidence to have been in furtherance of the 



uEWans T. Foreman, GO Mo. 449; 
Hukell T. Champion, 30 Mo. 136; 
Medlln t. Platte Co., 8 Mo. 235; 
Harsball t. Gougler, 10 Serg. ft R. 
(Pa.) 164; Miller t. Ollleland, 10 
Pa. SL 119; Naff t. Horner, 63 Pa. 
St 327; Fulmer t. Seltz, 68 Pa. St. 
237; Kountz v. Kennedy, 63 Pa. St. 
187; Brown ▼. Feldwert, 46 Or. 363, 
86 Pac. 414; Price t. Stanbra. 46 
Wash. 143, 38 Pac. 116. The fol- 
lowing cases are lIlastratiTe a^pU- 
catioua of thlB rule: Wliere one 
altered hla dapllcate copy of a con- 
tract. Koons T. St. Louis Car Co., 
203 Mo. 227, 101 S. W. 49. Increas- 
ing the amount luTalldatea a note 
In Ita entirety. Smith v. Dany, 
124 lU. App. 399. A Mil of lading 
by alteration of date. Merchants 
Nat Bank v. Baltimore, C. ft R. S. 
Co.. 102 Md. 573, 63 AU. 108. A 
deed la avoided, or at least the title 
of the grantee U not affected by 
mch an alteration as erasure of 
«nch a word as "trustee" after 
grantee's name, the appearance be- 
ing saspicious. Flltcraft t. Com. 
TiUe Ins. ft T. Co., 211 Pa. 114, 60 
At]. 5S7. Decreasing the llabUitr 
on a note has been held to dis- 
cbarge tbe mafcer, as a punishment 
to the payee. Adams t, P^Ircloth, 
(Tex. Civ. App.), 97 a W. 607 
(not reported in state reports). 
Thns bj reducing the rats ot Inler- 
esL New York Life Ins. Co. y. 
Hartlndale, 75 Kan. 142. 88 Pac. 
559. Where statute requires desig- 
nation of a place of payment, to In- 
sert a place. Carrall v. Warren, 
142 Ala. 397. 37 Sooth. 687. To 
change maturity from a fixed to a 
contingent date; e. g.. one day after 
death of maker. Bowers v. Rlne- 
ard. 209 Pa. 545, 68 Atl. 912. The 



rule of discharge Is especially strict 
as respects sureties. Thus guaran- 
tors, whether alteration was made 
before or after maturity. John A. 
Tolman Co. y. Hunter, 113 Mo. App. 
671, 88 S. W. 636. If a name Is 
added this discharges. Hlggias y. 
Harrester Co., 181 Mo. 300, 79 S. W. 
959. The rigor of the invalidity 
mie Is mitigated by tbe Negotiable 
Instruments Law providing that 
the altered document taken in due 
course shall be valid according to 
Its original tenor. See Moskowltz 
y. Deutsch, 92 N. Y. 8. 721, 46 Misc. 
Rep. 603; Philip Carey Mfg. (3o. y. 
Watson, 68 W. Va. 1S9, 52 S. E. 615; 
Messachuaetts Nat. Bank y. Snow, 
187 Mass. 159, 72 N. R 959. Sse 
also Hecht y. ShennerB, 126 Wis. 
27, 105 N. W. 309. And also by 
rule of statute making Invalidity 
depend upon fraudulent intent. 
See Hayes v. Wagner, 220 111. 266. 
77 N. E. 211; Heard v. Toppan. 121 
Oa. 437, 49 8. E. 292, Such a stat- 
ute, hoireyer. does not take away 
from the court the right to presume 
fraud as a matter of law. where the 
facts are clear, e. g. as by Inserting 
additional property In a chattel 
mortgage. Bedgcod-Hcwell Co. v. 
Moore, 123 Qa. 336. 51 S. E. 420. 
An exceedingly harsh ruling Is dis- 
covered in a Texas case. In which 
the facts were the giving of a check 
on a tank, stoppage of payment, 
change of bank of deposit of drawer 
and the change of printed name of 
bank drawn on and payment of 
check by the other bank. Drawer 
brought suit against baok paying 
tbe check, which claimed such pay- 
ments as according to a legal cus- 
tom. The court held that such a 
custom could not validate a forgerr 



..LnOOt^lC 



1086 PBOVINCE OF COUBT AND JUBY. 

original latent of the parties; since, if the instrument does not 
express the real intent of the parties, the retaedy of the obligee is 
to go into a court of equity and have it reformed.^* "To tolerate 
an attempt to reform a security, by the rash, and it may be secret, 
act of the creditor, would change the position of the debtor and 
subject him to risk and trouble which ought not to be imposed on 
him. It would compel him to encounter the perils of parol proof, 
not only to establish the fact of alteration, but to show what tlie 
instrument was; and that done, to meet the creditor's proof of bona 
fides." " Cases are found which support the extreme doctrine that 
the most trifling alteration of a written instrument cannot be made 
after its execution and delivery, without the consent of all parties 
to it; " and that it is not at all material whether the alteration was 
done innocently or fraudulently, since the effect upon the rights 
of the obligor is the same in either case." But this rule has no 
just application to cases where the alteration was immaterial, that 
is, where it did not change the legal effect of the instrument, but 
merely added something which the law would imply ; " and whether 
an alteratitm is or is not material, within the meaning of this quali- 
fication of the rule, is a question of law tor the court** But there 
is a view that the question of the materiality of the alteration can 
have little application to a case where the alteration has been made 
by a party beneficially interested in the instrument, and who has 
it in his custody ; it being contrary to the policy of the law to per- 
mit the owner and custodian of an instrument to change it, and 
then, when charged with the fact, to claim that the alteration was 
immaterial.** 

and the bank was held. Morris v. ■•Warrington v. Early, 3 El. A 

Beaumont Nat Bank, 37 Tex. Ctv. B1. 763; Gardner r. Walsh, 6 El. ft 

App. 97, S3 S. W. 36. Bl. 82 (overruling Catton v. Simp- 

isEvana v. Foreman, suetb. - eon, 8 Ad. ft El. 136): Chappell v. 

This principle appears to be true Spencer, 23 Barb. (N. T.) 684; 

as to material aUeratiODS, la obll- Woodworth v. Bank of America, 19 

gatory reBponalblllty, but not to Johns. (N. T.) 391; Bvans v. Fore- 

such a change as Indicates the ca- man, 60 Mo. 449. 

paclty o( a party — thus to put n St. v. Dean, 40 Mo. 464; West- 

"Casbler" after Indorsee's name as em Building Asso. v. Fitzmauilce. 

Intended by the parties. Blrmlng- 7 Mo. App. 283; Hunt v. Adams, 6 

bam Tr. ft Sav. Co. v. Whitney, 183 Mass. 519; Miller t. Gllleland, 19 

N. T. 522. 76 N. E. 189. Pa. St. 119. 

"Miller V. Gllleland, 19 Pa. St. n St. v. Dean, supra; Western 

119. Bu'l'lng Abho. v. Fltzmaurice, 

18 Moore V. Blckham, 4 Blnn. supra- . 

(Pa.) 1. J«Hord r. Taubman. 79 Mo. 101; 

Coo^^lc 



AUTEHATION OF WRITTEN INSTBUUENTS, 



1087 



S 1396. Authority for HaUng the Alteration. — The question 
whether there wbb authority to alter a written instrument, as to 
fill up cert^n blanks which had been left therein at the time of its 
signature, or to alter it in any manner which the evidence shows, 
is matter for a jury to determine,** This question frequently 
arises upon evidence tending to show that the instrument was drawn 
in blank, signed, and then delivered as an escrow. It has been ruled 
that if an instrument, — as for instance a promissory note, — is made 
by A. for the accommodation of B., with the understanding that C. 
will aiso join therein, a blank being left for the name of the payee, 
and C. refuses to join, but afterwards the instrument, thus imper- 
fect, is delivered to a third perscm for value, upon a representation 
that the person so delivering it has authority thus to deal with it, 
and the name of such third person is inserted therein as payee, he 
eaonot recover upon it as against A.*^ But it is no objection to the 



First National Bank t. Frlcke, 7S 
Uo. 17S; Haskell r. Cbamplon, 30 
Mo. 13G; Mooro v. Hatchlnson, 69 
Ho. 429; 1 Qreenl. Ey., i 665. 

»>9t. T. Dean, 40 Mo. 464. See 
also Stohl ▼. Berger, 10 Se'rg. t R. 
{Pa.) 170; Smith v. Croocker. 5 
HasB. 638; Wooley r. Constant, 4 
Jcrims. (N. 7.) 5i; Ex parte Ker- 
wln. S Cow. (N. y.) 118. Belfast 
Nat Bank v. Harrlman, 68 Me. 522; 
Harrison t. Lakenan, 189 Mo. 681, 
88 S. W. G3; Jacobs v. GUreath, 45 
S. a U. 22 S. B. TE7. But the 
court must determine the suffi- 
ciency of the evidence as showing 
or tending to staon such authority. 
TbuB It has been held, that anttaor- 
Ity to change an unsealed Into a 
sealed Instrument cannot be con- 
ferred by parol. Thoraason v. Wil- 
son, 127 Qa. 141, 56 B. E. 302. See 
also Simmons Hdw. Co. v. Hargate, 
122 lU. App. 287. The burden ot 
showing authority tor the altera- 
tion or that It has been ratified Is 
on him who offers the Instrument. 
Dewees v. Bluntzer, 70 Tex. 406, 7 
8. W. 820; Sneed r. Sablnal. M. t 
H. Co., T3 Fed. 925, 20 C. C, A. 230; 
St. T. Flndley, 101 Ho. 368, 14 S. W. 
lU. 



»Awde V. Dlzon, 6 Ezch. 869. 
This Is not believed to be lo accord 
with the great weight of authority, 
but the rule tor negotiable as well 
as other tnstruments, Independent 
ot statute Is that ot reasonable oon- 
seqnences or negUsence, wbere 
blanks are left nnfilled. This was 
the test stated in Montague v. Per- 
kins, 22 L. J. C. P. 1ST, where de- 
fendant was held liable on an ac- 
ceptance blank filled up and nego- 
tiated twelve years later. He must 
be taken to have intended the na- 
tural consequence of his act. See 
also cases cited In Ames' Cases on 
Bills and Notes 1, 526, note. 
Where a grantor executed a deed 
with blank tor grantee's name and 
left It with M. to negotiate with a 
proposed grantee; M. Inserted his 
own name; recorded the deed and 
mortgaged the property, the mort- 
gagee was held protected. See St. 
V. Mattbews, 44 Kan. 598, 25 Pac. 
38. Similar holding, where mar- 
ried woman signed deed, upon false 
representations of her husband , 
leaving blank name of grantee and 
description of property, the court 
saying the wife showed "culpable 
negligence." See Dobbin v. Cordi- 



1088 PBOVINCI OF CODBT AKD JUBT. 

validity of a bill of exchaoge that the acceptance and indorseii 
were written before the bill was drawn, notwithstanding the 
doTsement was made by a stranger to the acceptor." 

§ 1397. By whom made and whether Fraudnlmit. — Other qi 
tions may likewise arise which will also be for the deterrmruUitn 
the jury, — as by whom the alteratiim was made, and whether it 
fraudulent or not** 



ner, 41 Minn. IBS, 43 N. W. 870. 
Negotiable InBtrutnent Law pro- 
vides tbat the leaving of an un- 
filled blank In respect of a ma- 
terial particular gives prima facie 
authority to fill same. First Nat 
Bank V. Grtdley, 112 App. Dlv. 398. 
9S N. Y. 8, 44E. The same pre- 
sumption bas been ruled to obtain 
as well to sealed as unsealed Instru- 
ments. Friend v, Yahr, 126 Wis. 
291. 104 N. W. 997. 1 L. R. A. (ir. B.) 
891. It the space filled Is a mere 
superfluous space the drawer or 
maker, upon its being considered not 
negllKence per se, but as viewed ac- 
oordlQK to the circumstances, has 
been beld responsible. Thus, chang- 
ing a check to read for a greater 
amount by prefixing words. See 
Young V. Grote, 4 Blng. 253; Hall- 
fax Union V. Wright, L, R. 10 
E:zcb. 183. For other examples of 
application of the rule of reason- 
able consequences to be foreseen, 
see Ingham v. Primrose, 7 C. B. N. 
S. 82; Walt v. Pomeroy, 20 Mich. 
576; Harvey v. Smith, 65 ill. 224. 
In some states It is provided by 
statute that leaving such blank 
gives prima facie authority for 
holder to fill same. Johnston v. 
Hoover, 139 Iowa, 143, 117 N. W. 
277. 

*i Schultc V. Aatley, 2 Bing. New 
Cas. 544. As to what will be suOl- 
clent evidence to authorlce the 
court to submit to the }ury the 
question whether an obligor in a 
written Instrument authorised or 



subsequently ratified an saaut 
Ized alteration of It, made i 
signing and delivering It, see I 
mers v. White Sewing Machine 
23 Mo. App. 471. As to the rati 
tlon of such an act by a cor) 
tlon, see First National Banl 
Frlcke, 75 Mo, 178. 

M Belfast Nat Bank t. H 
man, 68 Me. 522; Cole v. Hllli 
N. H. 237; Robertson v. Vasey, 
Iowa. 526, 101 N. W. 271. 
credibility of witnesses In this 
eicluBlvely for the Jury 
though wltne:aes are unco 
dieted, the tact of fraudulent t 
atlon may still be found. Mc 
aid V. Nalle, 41 Tex. Civ. App. 
91 S. W. 632. The question o 
whom the alteration Is made 
tains intimately to Its serious 
as where done by a stranger I 
fects In no way the writing si 
as prior parties thereto are 
cemed. the spoliation makln 
most a mere difficulty of proc 
gardlog Its original terms. 
Colby T. Foxitorthy, 72 Neb, 
100 N. W. 798; Paul v. Leepe 
Ho. App. 515. 72 S. W. T15. 
Tulane University v. O'Connor 
Mass. 428. 78 N. E. 494, nhe 
was held, that adding a seal 
third person did not destroj 
forceablllty as an unsealed Ii 
ment. See also, for an Instru 
case. Vanderford v. Farmei 
Mech. N. Bank, 105 Md. 164. «l 
47, 10 L. R. A. (N. B.) 129. 
deuce to show alteration mi 



AIVTEBATtON OF WBITTEN INSTBUHENT8. 1089 

S 1S88. These Qnertions, how Settled — These quesHona are to 
be settled by all the evidence in the ease, the stuTounding ciream- 
ataoces, and the nature, ch&racter and appearance of the altera- 



S 1309. Whether an Altentton hu beeB made In nusb a 1 
u to excite flnapicion and provoke Inqniiy, — Thia qnestiw bo- 
comes material in respect of the rights of an innocent parchaser for 
value, of a negoUable insirvmettt ; and here the general rule is that 
any alteration in the material part of a bill of exchange or promia- 
B0T7 note, aa in the date, som, time when payable, ctmsJcEeratiixi, or 
place of payment, will render the same invalid, as against any party 
thereto not consenting to auch alteration, even in the hands of an 
innocent kolder,** Nor is the applicati(m of this principle affected 
by the skillfiilness with which the alteration is made, or by the 
probability that the closest observer will fail to discover it,** unless 
the case fall^ within an excepiion to the role, which will now be 
stated. This exception is that, if a promissory note is so negligently 
dravm, as hy leaving blank spaces unfilled, as to easily admit of 
a fraudulent alteration, and such an alteration is subsequently 
nude, the loss will fall upon the or^pnal drawer, or npon one who 
indoned it in that condition, and not upon an innocent purchaser;** 
unless, although the instrument was negligently drawn, the alter- 
ation is made in such a manner as to excite suspicion and put a 
purchaser upon inquiry, whidi in legal contemplation is tantamount 
to actual knowledge; ** and whether the alteraticu, although not of 
a glaring nature, is of a character sufficient to excite suspicion and 

Stven under general Issue. Gaudy McGulre y'. Echmeler, 109 Iowa, 

T. Blssell'B Estate, 72 Neb. 366, 100 301, 80 N. W. 39E. 

N. W. 803. IS HaU v. Fuller, G Barn. « Crea. 

M Belfast Nat Bank v. Harrlman, 760; TrlgB ▼■ Taylor, supra; Dewey 

«8 He. 522; Ely v. Ely, S Oray v. Herrltt. 106 111. A.pp. 156. 

(Haas.), 439, 442. "Capital Bank v. Armstrong, 62 

u Edwards on Bills, 95; Chltty Ho. 60 (overruling Washington Sav- 
on BllU, 182; Woodwortb v. Bank Ings Bank v. Ecky, 51 Ho. 272); 
of America, 19 Johns. (N. T.) 391; Trigg t. Taylor, 27 Mo. 245; Toung 
Nasro t. Puller, 24 Wead. (N. Y.) v. Orote, 4 Blng. 253; Prim v. 
X74; Bruce v. Westcott, 3 Barb. (N. Hamm«l, 134 Ala. 652, 32 South. 
Y.) 374; Trigg v. Taylor, 27 Mo. 1006, 92 Am. St. Rep. 62; Porter 
246; Edwards v. Sartor, 69 S. a v. Hardy, 10 N. D. 651. SS N. W. 468. 
640, 48 S. E. 637; Hecht t. Sben- *• Capital Bank v. Armstrong, 
nera, 126 Wis. 27, 105 N, W. 809; supra; Taylor v. Sartorlous, 130 
Ho. App. 23, 108 a. W. 10S9. 
nouB — 99 



7crib;G00<^IC 



1090 PBOVINCK 0? COURT AMD JUBY. 

pDt a purcbaser upon inquiry, has been held a question of fact for 
a jury.** 

§ 14D0. [CoDtinaed.] An Opposing View. — Negotiable corporate 
bonds, whicb have been signed in blank by the proper officials, and 
thereafter fraudulently issued by the ministerial officers or agents 
of a corporation, will, it seems, be good in the hands of a bona fide 
purchaser for value. And whether there be sufficient evidence on 
the face of the Ixnids to put a purchaser upon inquiry as to their 
genuineness, will, it has been held in a particular instance, be a 
preliminary question for Ihe court, which the court will not submit 
to a jury, where their verdict for or against the rights of the pur- 
chaser, would be a verdict founded wholly upon conjecture.*" It 
is said that, in an action to recover possession of such fraudulent 
pieces of paper, by the persons who are really entitled to have them, 
two facts must be established by the plaintiffs: 1. That the bonds 
belong to them. 2. That the oireurastanees under which the de- 
fendant purchased them were not such as to protect his title. The 
court proceeded upon the idea that constructive notice is a legal in- 
ference from established facts; thai, when the facts are in contro- 
versy, or when the alleged defect or infirmity appears upon the face 
of an instrument in writing, and is a matter of occular inspection, 
the question is one for the court; and that whether, under a con- 
ceded state of facts, the law will impute notice of such infirmities, 
is not a question for the jury. Incidentally, the court ruled that the - 
purchaser of negotiable securities, upon the open market and in the 
usual course of business, is not bound to make a close and careful 
examination, in order to escape the imputation of bad faith in the 
purchase; that the rights of the purchaser of such a security are 
not to be affected by what is called constructive notice, unless it 
clearly appears that the inquiry, suggested by the facts disclosed 
at the time of the purchase, would, if fairly pursued, result in the 
disclosure of the defect existing but bidden at the time; and that 
there must be, in the nature of the case, such a connecti<m between 
the facta disclosed and the further facts to be discovered, that the 
former may be said to furnish a cine, — a reasonable and natural 
clue,— to the latter.*^ 

» Iron Mount&ia Bank r. Mur- m BIrdsal] v. Rasaell, 19 N. T. 

dock, 62 Mo. TO: Post, $ 1708; 220; Manhattan Sar. Ine't v. Bank. 

KooDB v. St. L. Car Co., 202 Mo. 170 N. Y. 58. 

227, 101 S, W, 49, »» Birdsall v, Russell, supra. 



D.qitizeabyG00<^lc 



CHAPTER XL VI. 



1407. PoBsessloii, wtaen ETvldence of Title. 

1108. Lode FosBesslon Relaxt>B atrlct Evidence of Title. 

1109. Tlew that PoEBessIon a Qnestfon of Law. 

1410. When a Question of Law and wtaen of Fact 

1411. Tbe Subject further Discussed and Illustrated. 

1412. Conclusion that It Is a Hiied Question of Law and Fact 

1413. Whether Actual or Constructive, 

1414. Whether of Duration and Character Necessary to sustain a Pre- 

scription. 

1415. How Juiy Inntnicted In such a Case. 

1416. Whether Common, Mixed or Bzcluslve. 

1417. Color of Title and Good Faith of Claimant under. 

1418. Territorial Extent ot an Adverse Poseesslon. 

1419. Ouster of one Cotenant by the Other. 

1420. Abandonment of a Prior Possession. 

1421. Surrender of Title to a Chattel acquired by Adverae Possession. 

1422. FnesesBloQ of Land sufficient to Affect Strangers with Notice. 

S 1407. Fossesaion, when Evidence of Title. — The importance 
of the qaestioii considered in this chapter lies in the fact that pos- 
Eession is, in certain circumstances, evidence of title. The hare 
pofismsioD of personal property, unexplained by surrounding cir- 
cumstances, raises a presumption of ownership in the possessor;' 
and under some sj-stems, in actiwis for the recovery of land, posses- 
sion is prima facie evidence of title, and it h!as been said that this 
principle is lirnily fixed in all common-law jurisprudence. It has 
been reasoned that, to depart from this rule in its directness and 
simplicity, tends to destroy its value, and that the question of 
possession and of the identity of the land in dispute, should be left 
to the jury,* Again, iinder the principles of the common law, after 
the lapse of a certain number of years, a deed of grant of title to the 
possessor is preaiimed* Moreover, atatntee of limitatitm exist, it 

1 1 Greenl. Ev., { 34. tlon of fact presenting a question 

■ Hicks T. Davis, 4 Cal. 67. for the Jury. Carlisle v. Gibbe, 44 

*1 Greenl. E^., fi 45. 46. It has Tex. Civ. App. 189, 9S a W. 193. 
been held that this to a presump- 



jcibyGoQi^lc 



1092 PBOTINCX OP OOUBT AMD JDBT. 

is pre^med, in all American jnrisdietions, under which a certain 
length of continuous adverse posseasiMi either clothes the possessor 
with inununity from ouster in an action of ejectment, by analt^y 
to the negative prescription of the <nvil law, (H* vests in him a Idtle 
which he can transfer to another, l^ analogy to the positive pre- 
scription of that law. It is not the purpose of this wortt to coa- 
sider these questions: they are alluded to merely for the purpose 
of showing the importance of the question under what circumstances 
possession is a question of law, and vmder what circumstances a 
question of fact. 

g 1408. Lonif FoBsession relaxes Strict Evidence of Title. — 
It has been reasoned that, where land is sold by parol, the price 
paid, the possession delivered, the assessment for taxes changed, the 
taxes paid, and the control of the land by fixed boundaries held by 
the vendee and thoee cluming under him for upwards of forty 
years, — thie possessor is not held, in ejectment against him by the 
holder of the l^al title, to the same strictness of proof of the con- 
tract which is required in the ease of a recent bar^in. The role 
requiring the proof to bring the contracting parties face to face, 
to hear them make or repeat the bargain, and precisely state its 
terms, must, after that lapse of time, be relaxed. Hence, in such 
a case it was held error to instruct the jury that the defendant 
must prove the contract, clearly and satisfactorily in all its parts, 
by witnesses who knew it, by having heard it made or repeated in 
the presence of both parties; that it must exhibit location, bonnd- 
aries, quantity, price, and manner of payment; that the description 
must be so accurate that a third person could find or run the lines; 
that there must be proof that possession was taken immediately, or 
soon after the contract was made, in purauance of it ; and that the 
possession must have been actual, notorious, exclusive, continuous, 
and accompanied by improvements. It is not necessary, in such 
a case, that the defendant's possession should have been the con- 
tinued, actual, resident, and hostile possession required of a tres- 
passer, to sustain a claim of title under the statute of limitations; 
but only that such a possession for such a lapse of time should be 
~ shown, as that the law would presume the release, satisfaction, or 
abandonment of the right or claim of him who held it, to the party 
by whom any duty under it may have been due. Such a presump- 
tion does arise in favor of a vendee in a parol contract and those 
claiming tmder bim, after the lapse of forty years from its date; 
the payment of purchase-money coeval with it, and the preceding 



1093 



possession delivered in pursaance therewitli; the change in assess- 
ment for taxes from vendor to vendee; the payment of taxes, and 
continued acta of ownership, evincing complete performance of the , 
duty owed to the v^idor, and, as such, acknowledged and acquiesced 
in by him. In snch a case it is the duty of the court to leave the 
jury to find the facto upon all the circumstance in the case ; and 
if satisfied of the fact of the sale, identity of the land, extent of 
the purchase, payment of the price, and delivery of possession in 
pursuance of the cuitract, this evidaiee should be held sufficient to 
support the defense.* 

S 1409. View that FoflseBsion ft Qnestion of Law. — In some juris- 
dictions the view is taken that, what state of facts, when established, 
will amount to possession, is a question of law.' Thus, in Missouri, 
what acta of ownership will amount to adverse possession is a 
question of law, and it is error to submit such a questicm to the 
decision of a jury.* Again, it has been said: "The question of 
actual possession is a question of fact ; what would constitute poe- 
sessioQ, a question of law.'" And again: "It is the province of 
the court to tell the jury what constitutes an advene possession, and 
the jury must determine from the evidence whether such facts 
exist, as, in the opinion of the court, constitute such adverse pos- 
Again, it is held that, in an action of forcible entry and 



'Richards v. Klwell, 48 Pa. St 
S61. 

(Bowie T. Brabe, 8 Dner (N. Y.), 
36. *4; Nona Mlila Co. v. Wright, 
101 Tex. H. 102 S. W. 1118; Atty. 
Oen. V. Ellis, 19S MasB. 91, S4 N. E. 
490, 15 L. R. A. (H. a.) 1120. Thua 
It baa been ruled that poaseaalon ot 
aorface tends In no way to bar min- 
eral rlKbta below. Manning v. Kan- 
sas * T. Coal Co., ISl Ho. S59, 81 
8. W. 140, Court will aar wbether 
land U "IncloBed" (under statute) 
BO as to constitute actual poBBeaalon. 
Weatem Pac R. Co. v. Soutbern 
I^c Co., 151 Fed. 376. 80 C. C. A. 
GOe. The statute does not run In 
tavor of an undeveloped mining 
claim. Newman v. Newman, 60 W. 
Va. 371, 65 B. B. 877, 7 L. R. A. 
(a. a.) 370. 

• Tanier T. Baker, 64 Ho. 218, 



245; KlQton v. Bull, 168 Ho. 623, 
68 B. W. 927. 

T Blackman v. Welsh, 44 Ho. 41, 
46, per BKes, J, See also Meyers v. 
Schucbman, 182 Ho. 1G9, 81 S. W. 
618; Calatro v. Chabut, 72 N. J. L. 
468, 63 Atl. 272. The court will de- 
clare whether or not possession can 
be of a character which coutd Inter- 
fere with proceedlnga In partition, 
Shepherd v. Fisher, 206 Ho. 208, 108 
8. W. 989. 

■ UacMot T. Dubreull, 9 Ho. 477, 
491, opinion by Napton, J, Where 
certain possessory acts, which are 
not BufDclent to constitute actual 
poBseBBlon. are enumerated, but 
these do not appear to be alt. and 
wltneaa states In general tenn 
part; was In posBeeslon. court may 
allow question to go to Jury. Ho- 
Creary v. Jackson Lumber Co., 148 
Ala. 847, 41 South. 822. 



1 GoQi^lc 



1094 PROVINCE OF COURT AND JURY. 

detaioer, the court may properly instruct the jury that a hypo- 
thetical state of facts, presented by the evidence, does or does not 
eonstitnte possession, and it is for the jury to find whether such 
a state of facts exbts.* And where, in an action of trespass for 
cutting and carrying away timber, the court declined to charge the 
jury "that the facto and circumstances proved on the part of the 
defendant could not establish for him any title by possession of the 
lands in controversy," — it was said in the reviewing court, that, 
"what constitutes adverse possession, is a question of iaw; aod if 
the evidence in the cause, admitting its truth, does not show such 
possession, it is the duty of the court so to declare."" And the 
court, proceeding to examine what constitutes adverse possession 
and what evidence is necessary to sustain it, held that the de- 
fendant's evidence failed to establish such possession, and that tlie 
trial court should so have instructed the jury." 

S 1410. When a Question of Law and When of Fact. — It is said 
that, what constitutes adverse possession is a question of law ; but, 
as the intention of the possessor must always be considered in de- 
terminiDg the question of adverse possession, that is a fact which 
could be ascertained alone by a jury; and in determining the quo 
animo, the jury must of course he governed by their own view of 
the effect of the evidence.*' Whether possession is adverse or 
friendly is always a question of intention. It is sullicient to pre- 
vent the possession being adverse that the party talcing posses8i(»i 
intends to occupy the lands, subject to the will of the owner." This 

» DeOraw t. Prior, GO Mo. 56. See U La. Ann. 849. A test of adverse 

also Morgan v. Pott, 124 Mo. App. posseBslon is, that It must be such 

371, 101 S. W. 717; Heckescher v. aa would subject the holder to a pos- 

Cooper. 203 Mo. 2TS, 101 S. W. 6&g. aessory action. Northern Pac R. 

10 Cornelius v. Olberson, 25 N. J. Co. t. Spokane, 45 Waah. 229, 88 

L. 1, 31. Pat 136. 

" Ibid., 39. Where an exception »» Magee v. Magee. 37 Miss. 138, 

to the petition to an action of stan- 154; Perkins Land Co. v. Irvln, 200 

der of title, or, u It Is called In Mo. 885, 98 S. W. 580; Ball t. 

the Civil Code of Louisiana, Jactl- Loughridge, 30 Ky. Law Rep. 1123, 

Utlon, on the gronnd that the plain- 100 S. W. 2TG; Sawbrldge r. Fergus 

US was not In posseaelon of the FaUa, 101 Minn. 378. 112 N. W. 3S5; 

land, filed In limine Utia, had been Lawrence v. Doe, 144 Ala. 524, 41 

dismissed b7 the court prevloualy South. 612. 

to the empaneling at the Jury, — tt liCriswell v. Altemua, 7 Watts 

was held that the question of pos- (Pa.), G81. So It has been held 

session was not before the Jurr that, whether the use of a right of 

for decision. Arrowsmith v. Durell, way over land attached to a hotel is 



1095 



iotention will generally be a question of fact for a jury.'* Thus, 
where a tenant in commoD mortgaged the whole estate and remained 
in actual po83es8i(m, it was held that, if her intention was not to 
hold adversely to her co-tenancy, the mortgage did not operate as 
& constmclave ouster; and, there being evidence that her intention 
was not to oust ber co-tenant, whether there was a constroctive 
ooster was a queslJMi for the juiy.** It ia stated by a modem 
writer of reputation that "the question whether an alleged pos- 
Bession is marked by the characteristics requisite to make it adverse, 
and the foundation for a title by occupancy, is not wholly a questicn 
of law, and is a question for the jury, under proper instructions 
from the court."'" Since the celebrated judgment of Lord Mans- 
field in Taylor t. Eords," it seems not to have been much doubted 
that disseitin is a fact to be found by a jury; and the general rule 
may be stated that ihe question whether a possession, under which 
a defendant claims, in order to perfect bis title under the statute 
of limitations, was an open, notorious and adverse possessicMi, is not 
exclusively a question of law, bnt one which ought to be submitted 
to the juiy under proper instructions." In many cases, in order to 
find this ultimate fact, it will be necessary to determine wbethw 
the alleged disseisor took or held possession with the intent to ex- 



adverse or permissive, Ib In an ac- 
tion of tort lor obstructing such a 
*rar> a qnestlon of fact for a Jury, 
under proper InstnictlonB from tbe 
court as to the nature of adverse 
poBBcssIon, and bow far the same 
would exist over land belonging 
to a public building. Putnam v. 
Bowker, II Cuah. (HasB.) G42. It 
amicable at the beginning, he who 
goes Into poBsesslon must repudiate 
the title be went in under and bring 
notice to the holder thereof. Shlrer 
V. Whitlow, 80 Art 444, 97 S. W. 
444. It be enters In tbe belief that 
he Is taking up government land, 
and ascert^nn It belongs to an In- 
dividual to whom he makes an 
otTer of purchase, tbe Individual 
most be notlOed of the occupant's 
hostile character, Hlssouri L. * 
M. Co. V. Jewell. ZOO Mo. 707, 98 
S. W. 578. In nUnols it must be 
"hostile" from the beginning and 



what Is "hostile" Is a question of 
law. Furtle v. Bell, 226 111. G23, 80 



N. I 



360. 



"Ante, Sg 1196, et aeq.: Wade 
V. McDougle, E9 W. Va. 113, GS 3. B. 
1026. Thus where It was claimed 
that defendant'e poesesalon was un* 
der an agreement to surrender 
when the true line was ascertained, 
and the testimony was not all In 
accord on this subjecL Crosby v. 
First Presbyterian Church, 46 Tex. 
Civ. App. 111. 99 S. W. 584. 

IB Moore v. Colllshaw, 10 Fa. St. 
225. 

'•Wood on Limitations, 25S: 
Laselter v. Oketee Club, 70 8. C. 
102, 49 S. B. 224; Thompson v. Da^ 
ton, 96 Tex. 206, 69 S. W. 996; 
JohnBon v. Brown, 33 Wash. 688, 74 
Pae. S77. 

II 1 Burr. 60, 113. 

la Webb v. Richardson, 42 Tt 466, 
472. 



7crib,G00l^lC 



1096 



PBOVINCB OP OOTJBT AND JDBY. 



clnde the rights of the prior owner or claimant. And it is now 
invariably held by American eonrtg that the question whether oc- 
cnpancy was with an intent adverse to the owner, w an intent to 
hold in sabordination to his rights, is a questitm of fact tor a jtuy." 
"The question," says M. Wood, "as to what constitates adverse 
possession, as well as what evidence is necessary to establish it, is 
for the court; but the question aa to whether the possession in a 
given case is adverse, or under the owner's title, is for the jury; 
and the person setting up the claim takes the burden of establishing 
all the requisites to make his title by occupancy complete.** But 
the court may decline to submit the question of adverse possession 
to the jury, where, from the ondispated facts, as a matter of law, 
no Bueh possession exists." " Id ord^ to bring a case within this 
definition, all the authorities concede that the possesion must be 
BO open, notorious and unequivocal as to impart notice to the world 
that it is onder an exclusive claim of right made by the possessor, 
and that the right of the prior owner or occupier is invaded and 
denied with an intention to assert a claim adverse to his." 



M Wood, Llm. g 2(tS. The follow- 
ing caseB, cited br Mr. Wood, sup- 
port the doctrine: PolgoarJ v. 
Smith, G Pick. (Mass.) 172; Hall v. 
Dewey, 10 Vt. 593; Jockaon v. Joj, 
9 Jobne. (N. T.) 102; Bradstreet v. 
Huntington, 6 Pet. (U. S.) 403; Kin- 
sell T. Daggett, 11 Me. 309; Jackasn 
V. St«plienB, 13 Johns. (N. T.) 195; 
Coburn t. HoIHb, 3 Met (Mua.) 
125; Qarette v. Bethune, 14 Haea. 
56; Hopkins v. Robinson, 3 WattB 
(Pa.), 205; Brandt t. Ogden, 1 
Johns. (N. T.) 156; Jackwn v. 
Sharpe, 9 Id. 163; Jackson v. Wheat, 
18 Id. 40; Jackson v. Waters, 12 
Id. 366; Ja^'kBOn v. Bills, 13 Id. 118; 
Smith 7. Bnrtis. 9 Id. 174; Jackson 
T, Newton, IS Id. 3G6; Jackson v. 
Thomas, 16 Id. 293; Jones t. Por- 
ter, 3 Pen. * W. (Pa.) 132; Mc- 
Clang V. Ross, 6 Wheat. (U. S.) 
124; Cummings v. Wyman. 10 Haas. 
464: Wallace v. Duffield, 2 Serg. A 
R. (Pa.) 621; Schwart* v. Kuhn, 10 
Me. 2T4; Atherton v. Johnson, 2 N. 
H. 31; Munshower v. Patton, 10 S. 
A B. (Pa.) 334; Orerfleld v. Chris- 



tie, 7 Id. 178; Bollng v. Pet«ra- 
hurgh, 3 Rand. (Va.) 663; Malaon v. 
Fry, 1 Watts (Pa.), 433; Bdl v. 
Hartley, 4 Watts k S. (Pa.) 33; 
McNair V. Hunt, 5 Mo. 300; Rogers 
V. Madden. 2 Balle? (S. C.) 321; 
Boston Mill Corp. v. Bulflnch, 6 
Mass, 229; Bracken v. Martin. 3 
Terg. (Tenn.) 55; Warren v. Ch!lds, 
11 Mass. 222; Read v. Qoodyear, 17 
Serg, t R. (Pa.) 360; Pray v. Pierce, 

7 Mass. 383; Stephens t. Dewing, 
2 Aik. (Vt.) 112. 

>o Herbert v. Henrlck, 16 Ala. 681; 
Runey v. Shoenberger, 2 Watts 
(Pa.), 23; Jones v. Porter, 3 Pen. 
A W. (Pa.) 132; Oil] r. Fauntleroy. 

8 B. Man. (Ky.) 177; Baker v. 
Swan, 32 Hd. 36G; Washburn t. 
Cutter, 17 Minn. 361; Connett T. 
Moore, 30 Ky. Law Rep. 2S0, 97 
S. W. 380, 

11 Wood on Limitations, S 25S; cit- 
ing on the laat point: Argotslnger 
T. Vines, 82 N, T. 308; Bowie v. 
Babe, 3 Dner (N. T.), 35; NearbofI 
V. Addleman, 31 Pa. St 279. 

"Beatty v. tfason, 30 Hd. 409; 



1097 

S 1411. The Subject ftirtber DiscusKd and Ulastnted. — Ex- 
tending, it would seem, this idea., it has been ruled that if, by the 
tnin cwistmction of a deed, a graat of land extends beycmd the 
eaves and to the walls of a house owned by the grantor, and the 
wat^* is allowed for more than twenty years thereafter to fall upon 
the granted land from the eaves of the boose, — it should, in an action 
tor damages for a breach of the covenants of warranty in the deed, 
be submitted as a question of fact, tor the jury to determine, 
whether the owner of the bouse thereby a<!quires a title by adverse 
enjoyment, or an easement, or no right at all, in the land under the 
esvea; and a verdiet was set aside because the judge ruled, as mat- 
ter of law, that the projection of the eaves of the ancient house over 
the land elumed by the plaintiff under his deed from the defendant, 
havii^ continoed over twenty years, was an adverse occnpati(«i of 
the land under the eaves, which matured into a right, bo that the ' 
land onder the eaves passed by defendant's deed to the plaintiff.** 
So, where the defendant in ejectment took another person upon the 
ground in dispute, rented the same to him, and, after nailing up 
a cabin, which was the only building thereon, they retired together, 
charging a witness who was present not to disdoee the facts, — it 
was held that the question wbetiier the possession was changed 
shoold have been submitted to the jury ; dnce, if the arrangement 
was colorable only, the possesdm was not changed, and this would 
be ft question of fact for the jury.** It has been reasoned that, in 
trespass quare clavsum with issue joined (m a plea of Uberum tens- 
menium, it is for the jury to ascertain the fact of adverse pos- 
sessicHi, from all the evidence in the case applicable to that questicm, 
embracing the intent with which Ibe entry was made, the nature 
of the possession, and the acts of owneiship, emduct and declara- 
tioaa of the party under whom title by possession may be claimed.** 
So, it has been held that, in ejectment, where there is evidence tend- 
ing to show Bosnt acts of ownership and possession, such as a survey, 
a marking of lines by blazing and felling trees, the erectim of 

Carroll v. aiUlon, 33 Ga. 639; uOIlver v. WIUiamB, 25 Qa. 217. 

Thomas t. Babb, 46 Mo. S84; Soule m Keener v. Eanffman, 1$ Md. 

T. Barlow. 49 Tt 829; Patne v. 296, 307. Th« court clto Helms t. 

Hntchlna. 49 Tt 314; Wade v. He- "Howard, S Harr. k UcH. (Md.) 76; 

Dongle, 59 W. Va. 113, 62 8. E. 1026. MatUiewa v. Ward, 10 Gill A J, 

nCarbrer v. WOlls, 7 Allen (Hd.) 443; Adams E^Jectm. 60S. 
{Uws.), 364. See slao Weeks v. 
Upton, 9> Hlnn. 410, 109 N. W. S28. 



D.qitizeabyG00<^lc 



1098 



PHOTINCK OP COUBT AND JUET. 



buildings, the cutting of timber, etc., whether this ia sufBdent to 
establish possession is a question for the jury, and not for the court." 
And, under any view of the question, it is the province of the jury 
to find, under proper instructions as to what constitutes possession, 
whether possession is proved ; and it has been added that their find- 
ing will not be disturbed on error, unless manifestly against the 
evidence." 

S 1412. Conclusion that it Ifl a Mixed Question of Law and 

Tact. — It has been said: "Adverse possession is a mixed question 
of law and fact, to be left to the jury under the instruction of the 
court. Whether a given state of facts exists which constitute ad- 
verse possession, the jury are to judge. But, assuming all the facts 
proven to be true, whether they amount to adverse possession, is un- 
questionably a matter of law for the court to decide."** 



M Sbaron t. Davidson, 4 Nev. 416. 
Bat occaslonnl acta ol timber cat- 
ting without actual occupation are 
held Inaufflclent aa matter of law. 
Aaxler v. Herald, 29 Ky. Law Rep. 
1093, 96 S. W. 916; St Paul t. Louis- 
iana Cfpreaa L. Co., 116 La. GS5, 40 
South. 906. So auch acta together 
with grazing of cattle. Wade t. 
McDougle, supra; Grain v. Peter- 
man, 200 Mo. 295, 98 8. W. 600. So 
plowing one or more furrows around 
prairie land which coutd not re- 
main visible or tend to give any 
substantia] notice of occupation are 
also Inaufflclent. Jonea v. Goss, 115 
La. 926, 40 South. 35G. 

n Truesdale v. Ford, 37 111. 210. 

iBPaxBOn V. Bailey, 17 Ga. 600. 
For a atate of facta where the court 
refused to charge the Jury that a 
poasesslon had been proved, but sub- 
mitted to them the question on all 
the evidence, see Gage v. Smith, 27 
Conn. TO. In an action of ejectment 
in Fennaylvanla, It appeared that 
one tenant In common waa indebted 
to his co-tenants, and apparently in- 
Bolvent; that tbe surviving owners 
and their representatives, during 



nearly forty years, paid the taxes 
and ground rent of the premlaea, 
mortgaged the property, and, at dif- 
ferent times, erected and re erected 
buildings thereon, suitable tor their 
business, and received the proflta. 
It was held that these tacts, though 
not conclusive evidence of an ouster 
of the heirs of the deceased co-ten- 
ant, should have been submitted to 
tbe Jury, n 1th the instruction that. 
If true and unexplained, they would 
Justify the finding of the ouater 
which was claimed to have taken 
place. Keyaer v. Bvans, 30 Pa. St. 
507. Tbe court Bald: "Considered 
separately, each of these facta may 
have been conelualve; together they 
bore powerfully on the result; for 
it 'Improving lands, and receiving 
the rents, issues, and profits 
thereof, are In all caaea the highest 
acta of ownership which can t>e ex- 
ercised over them, and the exerclae 
of these acts strongly marks the 
possession with excluslvenesa and 
hostility' {Dlkemanv.Parrlsh, 6pa. 
St. 211), the defendant's testimony 
ought to have given a preponderance 
to the scale." Ibid., 510, opinion 



7crib;G00<^IC 



% 1413. Whether Acttud or ConBtractire. — It has been said that 
"nhat is actual, and what is constructive possession, in many cases, 
must be a question of fact for the jury." "" In an action of eject- 
ment, brought against the defendants ss trustees of a church, it has 
been held proper to submit the question to the jury, whether the 
defendants were actually in possession, or only constructively in 
possession as trustees.*" So, in a case where & married woman, 
holding a farm to her sole and separate use, lived upon it with her 
husband and family, he managing and controlling it and talcing 
the rents, profits, etc., for a number of years as if he were the ab- 
Bolate owner, it was held that he must be presumed, prima facie, to 
have bad the rightful and beneficial possession of the land ; but if 
there was doubt on the question, it was for the jury, and not for 
the comt, to determine the character of his possession." 

§ 1414. Whether of Duration and Character Necessary to Stu- 
tain a Prescription. — ^"As a general rule, the possession necessary 
to sustain a prescription is founded upon facts, which it is the 
province of a jury to ascertain."" Where adverse possession is 
proved by parol testimony only, it is a mere question for the jury 
whether it is continuous." The length of time during which an 
adverse possession has continued, whether it has reached back be- 
yond the date of the possessor's deed, and if so, whether or not he 
held under snch a person, or by such a claim and color of title, as 
to render his possession adverBe,— have been held questions for a 

by Porter, J.; Kountze t. Hatfield, Roach, 27 Tex. 579, 6S1. But tbtB 

30 K7. Law Rep. 6S9. It bas twen concluBlon means nothlag; Blnce 

ruled error for the court to tell the there org many caaes where the 

ivrr, Uiat an offer to purchase, Facte would te so unequivocal that 

which was made tefore suit the Judge Id charging the Jury could 

brought but aFter expiration of the assume tbs fact of posEesBlon as es- 

statutory period In which title by tabUshed. 

poBseaston could be acquired, waa »> Lucas v. JohnsoD, 8 Barb. (N. 

a recogntUon of plaintiff's title, but T.) 244. 

the effect of such offer was tor the *i Albln t. Lord, 39 N. H. 196. 

Jury's consideration. Shlrey v. 205. 

WhlUow, SO Ark. 444. 97 S. W. 444. » Anderson v. Bock, IE How. (U. 

M (rCallaghan T. Booth, 6 Cal. S3, S.) 323; citing Ewlng v. Burnet, 

(5. Under circumstances, It waa 11 PeL (U. 8.) *1; Beyorly v. Burke, 

held In Texas that whether a party 9 Ga. 440. 

was In possession or not could not ■> Cunntngham v. Patton, 6 Pa. SC 

be assumed as a fact, by the court In 3GS. 
chargiDK tbe Jury. Patrick v. 



jcibyGoQi^lc 



1100 PBOVINCE or COUBT AND JURY. 

jury.'* In like maimer, it has been lield that the question whether 
OT not open and exclusive possession by a tenant, continued for 
thirty years, was adverse, is a question of fact for the jury, on the 
trial of a writ of entry, and the judge cannot.take it from them by 
directing a verdict.*" 

§ 1415. How Jury Instmcted In rach a Case. — In such a case it 
has been held proper to instruct the jury, "that a right by pre- 
scription could be acquired to a way over another's land by proof 
of twenty-one years' uninterrupted, adverse, or undisputed enjoy- 
ment or use of it, and that this was a question for the jury to df- 
termine from the evidence; that, if the plaintiff had proved this, he 
was entitled to recover; if not, their verdict should be for the de- 
fendant "•• 

§ 1416. Whether Common, Mixed, or Exclusive. — In an action 
of ejectment, it has been held proper to submit all tiie acts of the 
party claiming possession, to the jury, under a proper instruction, 
leaving it to them to say, fr(Hn the number, character and times of 
the entries shown in evidence, whether they exhibited a common or 
mixed possession, and thus evidenced to them that the possesion 
of the opposite part? was not exclusive, or whether they were purely 
casual and accidental, and not done in prosecution of his rights as 
an owner. "Any other doctrine," said the court, "would render 
the title of adjoining owners insecure, and liable to be divested by 
acts of which the owner may be wholly ignorant. Where tracts are 
large and woodlands extensive, an owner who sees an ax-mark per- 
haps in the middle of his woodland, may not for an instant dream 
of its being an ear-mark for a survey, to he connected with a distinct 
trespass by clearing .uptm the outskirts of his tract If his own 
ordinary \ise of his woodland, which in such a ease may be at very 
distant intervals, is to be denominated a trespass, unless it carries 
with it all the solemn acts to characterize an entry to toll the statute 
in a case of actual disseisin, he may, at a distant day, find himself 

««WlgrgjnB V. Holle?, 11 Ind. S; does authorize a court to ujr, as 

Bguttable Securities Co. v. Hat- matter of I&w, tbat there Is a mer- 

thews, 126 Ga. 231, 64 S. B. 1044. ch&atable UUe which a purchaser Is 

■B Eaton V. Jacobs, 62 Me. 445, 464. bound to accept Dlckerson v. Kirk, 

It has been held, however, that a 105 Md. 638, 66 Atl. 494. See also 

continued, notorloue and adverse Briel v. Jordan, 27 App. D. C. 202. 

poseeseloa for forty yeire, where *• Steffy v. Carpenter, 37 Fa, St. 

all the facts are clear and cogent 41, 44. 



7crib;G00<^IC 



1101 



deprived of bis valnable woodland by presnmpticms in favor of a 
trespasser, without the benefit of the natural presumption that flows 
from the acts of an owner, never rightfully excluded from his land, 
or prevented from thus using taia own."" 

S 1417. Color of Title and Oood Faith of Olaimaat thereunder. 

What constitutes coIot of .titl^ within the meaning of statutes t>t 
limitations, is a question of law; ** and, in instructing the jury in 
such a case, the court should tell them what constitutes color of 
tide.** Those claiming adversely imder color of title must enter 
and occupy the land in good faith, claiming the whole tract, and 
relying upon the instrument which constitutes color of title, as 
conv^ing to them the legal title.** And where there is a question 
whether the deeds which are relied on as constitnting color of title 
are taken in good faith, the court should submit that question to 
the jury." So, whether the claimant of land under legislative 
grants was in "occapati<Mi and actual poBsession, tona fide, and 
making improvements," is a qnesticsi of fact, in an action of tres- 
pass quare dausutn.** But, color of title being a question of law, 



■TD'Harra v. KIdiardBon, 46 Pa. 
St. 386, 391, oplntoQ by Agnew, J. 

M Woodward v. Blancbard, 16 IIL 
421. And also vhftt acts Uiereunder 
tonetltuto adToroe poBBesBlon. Hoi- 
laday-Klote L. ft L. Co. v. Markham, 
96 Mo. App. GI, 76 8. W. 1121. And 
what character ol writing will ex- 
tend actual posBesslon to the wliole 
ot the tract described. Brown v. 
HarUord, 173 Mo. 1S3. 73 S. W. 140. 
Thus a deed ander void foreclosnre 
sale may be color ot title. Brynjolf- 
Hon V. Dagner. IG N. D. 332, 109 N. 
W. 320. Or npoa a Told tax sale. 
Bradbury v. Dnmond, SO Ark. 82, 
96 S. W. 390; McCaah y. Penrod, 131 
Iowa, 631, 109 N. W. 180; Bower v. 
Cohen, 126 Ga. 35, M B. S. 918. A 
tax deed with Interlineations, where 
grantee Is an Igmorant man unable 
to read, and the clrcumstEmcea are 
sach as to Justify belief they were 
made by the otBcer esecutlog the 
deed may. If Jnrr Auds good faith. 



be taken as color of title. Rickey 
V. Smith, 118 La. 169, 42 South. 
762. A parol gift, ac(»mpanled by 
taking posaesalon and claim ot 
right, hoB been held color ot title 
against donor. Gillespie t. Gilles- 
pie. 149 Ala. 184, 43 South. 12. A 
quitclaim deed not under seal and 
acknowledged before a Justice of the 
peace out ot hiB county has also been 
deemed col<v of title. Perkins L. A 
L. Co. V. IiTlD, 200 Mo. 48S, 98 S. W. 
580. 

» Turner v. Hall, 60 Mo. 271. 

M Qalnes v. Saunders, 87 Mo. 657. 
In Oregon It has been held that good 
(alth Is not a necessary Ingredient. 
Gardner v. Wright, 49 Ore. 609. 91 
Pac. 286; Williams t. Fox, 152 Mich. 
215, 116 N. W. 710. 

"Turner v. Hall, SO Mo. 271; 
Qalnea v. Saunders. 87 Ho. 667; 
Woodward v. Blanchard. 16 111. 424. 

41 Merrill v. Hllliard, 59 N. H. 
481. 



D.qitizeabyG00<^lc 



1102 PBOVtNCE OF COUBT AND JUBY. 

it IB error to submit to the jury the aggregate qaestion what k 
color of title made in good faith. Accordingly, the following in- 
Btractitm has been held erroneoas: "That if the; are satisfied from 
the evidence that the defendant had color of title, made in good 
faith to, and paid all the taxes assessed on, the land in controversy, 
the same being vacant and unoccapied for seven successive years 
before the commencement of this suit, he shall be adjudged the 
legal owner thereof, to the extent and according to the purport of 
his paper title."** 

§ 1418. Territorial Extent of an Adverse Possession. — ^Where 
there is a deed, though the description of the land therein be in- 
delmite, which purports to convey a tract of land, and a survey 
made by the grantee and a recorded plat describing the exact tract 
claimed under the deed, and there is some evidence of constant, oon- 
tinuons acts of ownership over the whole tract, — the fact that the 
recorded plat subdivides the tract is not ecmclusive that the actual 
possession, maintained through one employed to warn trespassers 
off the whole tract, is possession only of the sobdivisicHi on which 
the house is situated. But, in such a case, it is for the jury to say 
whether he took possession of a part of the tract, intending to take 
possession of the whole, ouder that deed, and whether he exercised 
acts of ownership, openly and notoriously, claiming, under that 
deed, the entjre tract purporting to be conveyed thereby.** It has 

•* Shackelford v. Bailey, 3S HL v. Relnecke, 21 Mo. App. 478. Wbat 

387. &ctB of possession will enable a 

** McElhlDDey T. Krans, IQ Ho. claimant to maintain forcible entry 
App. 218. In determining' the ques- and detainer against a BobseQuent 
tlon of adverse posseselon, the pay- intruder. See SL Louis Asrlcul- 
ment of taxes, by the person assert- tural etc. Assocfation v. Relnecke, 
Ins title by sucb possession, Is a 21 Mo. App. 478; Henry t. Frollcb- 
fact which may, with other clrcum- stein, 149 Ala. 330, 43 South. 126. 
stances, be considered by the Jury. This Intent, however, Is restricted 
Draper v. Shoot. K Mo. 197. See under rule of law mora narrowly 
also Turner t. Hall, 60 Mo. S71; thu to the limits of the descrll>ed 
Oalnes v. Saunders, 87 Mo. 557, 664. tract. Thus where there are con- 
That an adverse possession of a fllctlng or overlapping deeds. It 
part may be considered as extend- yields to the superior title. See 
Ing to the whole of a tract of land, Harris v. Howard, 12S Ga. 326, 65 
see Pngste v. Pierce, 49 Mo. i\\; S. B. 59; Green v. Pennington, 105 
Turner v. Hall, 60 Mo. 271; Long Va. 80, 54 S. E. 877; Interstate lav. 
V. HIgglnbotham, 56 Mo. 245; St. Co. v. Bailey, 29 Ky. Law Rep. 468. 
Louis Agricnltural etc. Association 9S 8. W. S7S. It baa been held as 



jcibyGoOi^lc 



1103 



been ruled, as matter of law, that the mere dumping of some earth, 
or the piling and removiog of swne rock, on small fractions of a 
tea-acre tract of land, is not a taking possession of the entire tract, 
so as to entitle snch a possessor to maintain a possessory action there- 
for.** 



S 1419. Ouster of one Co-tenamt Igr Uie Other. — Where a co- 
tenant has been long in possession, receiving to his own use the 
rents aecming from the property, and this has been acquiesced in 
by tbe other co-tenant, it is a question for a jury under all the cir- 
cumstances, whether there has been an ouster by the one co-tenant 
of the other, and a possession by the former held adversely to the 
latter.** If a tenant in common, being in possession of the land, 



matter of law that aetaal adverse 
possession ot part of a tract of land 
by a person having a recorded deed 
win be construed to extend to all 
the land embraced within the de- 
scribed boundaries. See G. S. Bax- 
ter ft Co. V. Wetheringtoti, 12S Oa. 
SOI, 5B 5. E. 467; Van Etten T. 
Dangherty (Ark.), 103 S. W. 737. 

— Kennedy t. Prneltt. 24 Ho. App. 
414. Iq this case It was said by 
Rombaner, J., In gtvlng the opinion 
ot the court: "We can dearly see 
the dlfflcnlty under which the trial 
court labored In an attempt to dis- 
tinguish poBceasIon as a matter of 
lav, from possession as a matter of 
fact. In many cases the boundary 
between tbe two questions Is so In- 
distinct that It Is dlfflcult to decide, 
without a close analysis of the tes- 
timony, which tbe haste of a Jury 
trial does not admit of, on which 
side of the boundary the case lies. 
That analysis, which we were en- 
abled to make with care, has satis- 
lied us. that the plalntlD, under tbe 
erldence. Is not entitled to Judg- 
ment as a matter of law." Ibid., 
page 420. 

MRobldoui T. CasslleKl, 10 Mo. 
App. 516, 622. As to what will be 
erUmce of an ouster of one co- 



tenant by another, snfflclent to take 
tbe questJcHi to the Jury whether 
there has been an ouster and an 
adverse possession, see Warfleld v. 
Llndell. 30 Mo. 272, 38 Ho. 661; 
Lapeyre v. Paul, 47 Ho. 68G. It la 
said that the rule of law as to the 
nature and character of possession 
which would operate as a bar In 
favor of one tenant In common 
against another Is greatly more 
stringent than If such relation did 
not exist. Qolden y. Tyler. 180 
Mo. 196, 79 S. W. 113. Added to 
what wonid be sufllclent In other 
cases Is the necessity of notice of a 
hostile claim. Here silent posses- 
sion by one taking the revenues and 
profits does not show adverse pos- 
seEfllon. Reed v. Bachman, 61 W. 
Va. 4E2, S7 8. B. 769. That which 
might be elgnlficant to Inform the 
world generally Is not the test. 
Rich V. Victoria Copper Mln. Co., 147 
Fed. 380, 77 C. C. A. 558. But even 
the tacts In favor ot cotenant 
against cotenant may be so cogent 
and conclusive as to make the ad- 
verse possession a question of law. 
See, Gardener v. Stasdlfer, 31 Ky. 
Law Rep. 44, 101 S. W. 921; St. 
Peters Church v. Brogaw, 144 N. C. 
126. 44 S. E. 688. 19UR.A. (h. a.) 



7crib;G00l^lC 



IIM FBOTINCB or OODBT AND JUBT. 

conveys it with a covenant of warranty agunst all claims and de- 
mands, poesesdrai onder the deed will be advene to the title of 
the co-tenants of the grantor. In such a case, if the fact is found 
that the possession of the grantee is under a deed, it is the legal 
conclusi(m that bis poaseaaion is adverse, and the question ia not 
for the jury." 

§ 1420. Abandonment ci a Prior Possession. — In an acti<«i of 
unlawful detainer, in which the only qiie8ti<»i is wheth^ the de- 
fendant's conceded prior possession had been abandoned bafwe the 
plaintiff's entry uptHi the land, the qcestion of abuidraiment ia 
ont of fact.*' 

§ 1^1. Surrender of Title to a Chattel Acquired by Adverse 
PosBession. — On the same principle, it has been held that, if a 
husband, having acquired title to a chattel by adverse possession 
. against the true owner, verbally consents to the execution of a deed 
of gift by the latter, conveying the chattel to & trustee for the 
benefit of the husband's wife and children, it will be, in an action 
of detinue for the chattel, a qvettion for tho jury whether the 
husband's prescriptive title was thereby surrendered; and that 
an instmctioD, asserting that such cmisent would not divest the 
title acquired under the statute of limitations, was an invasion of 
the province of the jury." 

5 1422. Possession of Land SufScient to affect Strangers with 
Notice. — Where the possession under a deed is open, notorious and 
unequivocal, it will affect strangers to the deed with notice thereof, 
in like manner as would the recording of the deed under the opera- 
tion of the recording aets.'^ The reason of the rule is that, what- 
633; Hendricks v. Muagrove, 1S3 cleno' of evldencfl to Bbow Intent. 
Ho. 300, 81 S. W. 1265. Bobereon v. DowalnK Co., 136 Ga. 

*i Newmarket Han. Co. v. Pender- ITE, G4 S. E. 1020. 
gast, 24 N. H. 64, 69. The court «• Lucas v. DanlelB, 34 Ala. 18S. 
ctte: Klttredge v. Proprletore, IT Clrcumatancea under which the 
Pick. (Moaa.) 246; Parker v. Pro- question In whose poaeeselon per 
prletora, etc, 3 Hetc. (Maaa.) 91; tonal property was at the time of 
Stem T. Selleck, 136 Iowa, 291. Ill the lev?, was held a guetHon of fact 
N. W. 461. to be ]eft to the Jury. Ohlsen t. 

« Brown v. MeCormlck, 23 Mo. Handerfeld, 28 Minn. 390, 
App. 181; post, §S 1436, et seq. wjacquea v. Weeks, 7 Watts 

What facts constitute ahandonment (Pa.), 261, 276; Daulele v. Davison, 
ts a question of law. Bradbnrj v. IS Tes. 249, 17 Yes. 433; Kerr v. 
Dumond, 80 Ark. 82, 96 S. W. 390. Day, 14 Pa. St 112, 117; Hood v. 
And also whether there Is a suffl- Fahnestock, 1 Fa. St 470, 474; 



;cibyG00<^lc 



1105 

ever puis a person upon inquiry as to a fact is equivalent in law 
to actoal notice. But it is obvious that cases may arise within this 
rale, where the evidence as to the character of the possession may 
be 90 eooflicting and may leave the ctmclusion in so much donbt, 
that it will be the duty of the court to submit the question to the 
jiuy, whether the possession, with its surrounding facts, is of such 
a character as to put a prudent man upon inquiry as to the title 
of the alleged [ 



Sailor V. Hertsog, 4 Wbart <P>.) *> HotteaBtelo v. Lercb, 104 P>. 

259; Erfder v. I^lTerty, 1 Whart St. 4B4, 463. 
(Pa.) 303, 318; Qreen v. Drinker, 7 
Watts « S. (Pa.) 440. 
TKIAI.S— 70 



D.qitizeabyG00<^lc 



CHAPTER XLVII. 

WAITBR; ABANDONMEKr: LACHES: ACQUIBSCENCEI 

SEcnoN 

1435. Mixed Question of Law and Fact 

1436. Waiver of Conditions In Contracts. 

1437. Laclios. 

143S. Waiver In I^gul Proceadlnga a Hatter of Law. 

1439. Abandonment of a Contract. 

1440. Abandonment of Rlgbts. 

1441. Abandonment of Pre-emption or Claim of Public Landa. 

1442. The Same Subject Continued. 

1443. Waiver of Vendor's Lien. 

1444. Abandonment of a. Public OtBce. 

I44E. Waiver by Administrator of Copy of Claim agftlnet an Kal&te. 
144G. Waiver by a Creditor of bis Hlgbt t« Rescind a Composition Agree- 
ment 
1447. Waiver cannot Take Place vltbout Knowledge. 

% 1436. Mixed Question of Law and Fact.— It is said that the 
question what amounts to a waiver is, in all cases, a mixed question 
of law and fact, to be determined by the jury, under proper in- 
structions from the court;* but this is not strictly true, as will 
presently appear. Again, it is said: "It it be conceded that there 
may be cases where the declarations or acts of the parties to a 
contract are so express or unequivocal, that it would not only be 
practical and competent, but even the duty of the court to deter- 
mine, as a matter of law, that certain rights had been waived and 
could no longer be insisted on, those cases are very rare ; because 
a question of waiver is one of intention, and most usually depends 
on acts or declarations which, in regard to their character, are of 
an inconclusive or doubtful nature, and furnish only evidence of 
intention and grounds of inference and deduction, which it is the 
proper province of a jury to consider,"* On the contrary, it has 
been held that, where all the facta and circumstances upon which 
a waiver is predicated are admitted, a party has the right to ask 

» Traynor T. Johnaon. 1 Head ' Flteh v. Woodruff Iron Worka, 

(Tenn.), Gl, 65; Keet-Rountree D. 0. 29 Conn. S2, 61. That intent Is a 

Co, v. Mercantile Town Mut. Co., question for the Jury, Bee ante, 

100 Ho. App. 504, 74 S. W. 469. H 1333, et aeq. 



7crib;G00<^IC 



WAIVEK: ABANDONMtJIT ; LACHES: ACQUIESCENCE. 



the court to instruct the JU17 whether the evidence is sufficient to 
establish a waiver or not.* 



g 1436. Wairer of Conditions in Contracts. — ^Whether there has 
been a waiver of the conditions of a contract is, where the question 
depends upon declarations or conduct, a question of fact for a jury.* 
Sut when the question of waiver is to be determined by an in- 
spection of a writing, it is a question for the court.* Again, if 
the facts are established and are unequivocal in their character, the 
court may say whether there has been such a waiver, as a mere 
conclusion of law. Thus, where one stipulated, for a compensation 
to go to another State and take three slaves, supposed to be in tbe 
possession of tome person there, and deliver them to their owner in 
Mobile, no time for their delivery being ilxed, it was held it eould 
not be assumed as a legal conclusion that the acceptance by the 
owner of two of the slaves was a waiver of the entire fulfillment of 



* Spring Garden Mutual Ins. Co. 
V. BTans, 9 Md. I, 20. The law 
draws tbe conclusion o( waiver from 
silence. It there Is a duty to speak 
out Hooe A Herbert v. U. S., 41 
Ct, CI. 378. Whenever acquiescence 
amounta to estoppel the waiver ot 
an original right, pro tanto, results. 
Burgess v. HIxod, TS Kan. 2D1, S8 
Pac, 1076; Frederic t. Myers. SO 
Wis. 127. 43 South. 677; Pine Beach 
Inr. Cor[i. v. Columbia Amusement 
Co., lOS Va. SIO, SS S. E. S22. 
Waiver Is a question ot law so tar 
as concerns that of which waiver 
mar be Inferred. Thus It has been 
held that waiver did not result from 
a debtor ratifying alteration of a 
note, of which he was maker, the 
alteration amounting to torgery, 
Strlngfellow ft TannebUl v. Pelty 
(N. H.), S9 Pbc. 268 (not reported 
In state reports). 

* Chapman v. Colby, 17 Mich. 48, 
10 N. W. 74; Ha'e Man. Co. t. 
American Sa.-v Co., 43 Mich. 250, S 
N. W. 300; Sargeant v. Mason. 101 
Minn. 319, 112 N. W. 255; O'Keefe 
V. Corporation St. Frnucls Church, 



69 Conn. 6E1, 22 Atl. 325. This li 
subject to the principle, that there 
Is no waiver where there Is no es- 
toppel. Hampton Stave Co. v. Gard- 
ner, 154 Fed. 805, 83 C. C. A. 521. 
Conversely It may be said that, It 
there Is estoppel, there is waiver. 
See Matthis v. Harrell, 1 Ga. App. 
358, 58 S. E. 3SS; Bstey Organ Co. 
V. A. ft E. Lehman, 132 Wis. 144, 
111 N. W. 1097, 11 L. R. A. (K. s.) 
354. A new agreement Is not a 
waiver ot the old or Its conditions 
unless the former Is Itself valid. 
Trogden v. Williams, 144 N. 0. 192, 
58 S. E. 8S5, 10 L. R. A. (n. 9.) 867. 
Tbe dlatlnctlon between waiver and 
estoppel In their purely technical 
aspects Is that In the former an In- 
tention exists to abandon or relin- 
quish some right. Unconnected, 
therefore, with estonpel. It Is an 
act of the will and tbe result of an 
intention. Dezell v. Fidelity A 
Casualty Co.. 176 Mo. 253, 75 S. W. 
1102; Fairbanks v. Baskett, 9S Mo. 
App. 53, 73 3. W. 1113. 

• Mowry r. Wood, 12 Wis. 414. 



ovGoo<^lc 



1108 FBOTINCZ OF OODBT AMD JUBT. 

the c«itract, bot that it should be left to the jmy to deteimine 
whether, under the circumstances, such acceptance was intended 
as a waiver.* Cmtrary, it would seem, to the doctrine of the last 
case, it has been held in Illinois, in aa aetica) upcn a contract in- 
dorsed upon a lease, by which the defendant guaranteed t^e pay- 
ment of rent reserved thereunder, that whether a new agreemait, 
made daring the term of this lease, between the lessor and lessee, 
reg^arding the terms of renting the premises, ccxutituted a waiver 
or surrender of the original lease, — that is whether it was so in- 
tended by the parties, — ^was properly left to the jury/ 

S 1437. Laches. — This word is emplc^ed by courts of eqnity to 
designate that negligence in bringing an actitm or otherwise assert- 
ing one's right, which will preclude him from obtaining the aid 
of such a court. .As the ordinary procedure of such courts takes 
place without a jury, whether the party has been guilty of laches 
will, of coarse, be decided by the chancdlor, subject to review oa 
appeal. In courts of law, no delay in asserting <«ie's right by an 
action, unless it reach the period of the statute of limitations, will 
operate as a bar to his right though such delay may be an evidential 
fact against the plaintiff, vihen he asserts a stale and disputed 
claim. In a case in Michigan, which was an action at law £ar a de- 
ceit and wrongful conversion, it was said: "Delay alone, while it 
may have some bearing on the fraud as affecting the plaintiff's 
conduct, cannot be, in a court of law, a bar to suit, unless coming 
within the statute of limitations applicable to such cases. In all 
controversies not within the statute, waiver, if relied oa, is a gues- 
tion of fact and not of law."" Outside of cases calling for the 
application of the equitable doctrine in respect of laches, the ques- 
tion whether a party has lost his rights by bis laches, or by ac- 
quiescence in the conduct of another, m^, on the principle flist 
stated above, be a question of fact, the decision of which, where the 

■ Wolfe V. Parliam, 18 Ala. 442, J. When the qneatlon relates to 
4G0. So as to stipulatloa In coadl- tbe use of an eitraordinary remedy, 
tlonal sale contract br acceptance of e. g. mandamua. It would veem that 
negotiable note. Anderson Carriage tbe question Is regarded as one of 
Co. T. Bartley, 102 Me. 492, 6T AU. law. See Duke v. Turner, 204 D. B. 
EG7. 623, 51 L. Ed. 6E2; People v. Board 

T Wblte v. Walker, 31 III. 422. 423. of Education, 187 N. T. eSG, 80 N. 

■ Dayton v. Monroe, 47 Mich. I9S, B. IIIS. 
10 N. W. 196, opinion by Campbell, 



D.qitizeabyG00<^lc 



WAIVBB: ABAjnX}MMKNT : INCHES: ACQUIESCENCE. 1109 

evidence is conflictiiig, will not be a sabjeet ol review on error or 
appesL* 

§ 1438. Waiver in Legal ProceedinffB a Hatter of Law.— There 
are many cases where the doing of certain acts are held to amoimf, 
to a tooiver as a matter of law. A familiar ilinatration of this is in 
tbe case where the defendant in ao action, who bag not been duly 
served with proeeaa, appears and contests the merits. Here, by his 
volnntary appearance, he waives any defect in the process which 
was sued out for the purpose of bringing him before the court 
against his wilL*" In many other cases in legal proceedings the 
parties are held, by particular conduct or admissions, cODClusively 
to have waived rights, which otherwise they might have insisted 
upon.*' In general, it is said that, where jurisdiction or the power 
to act exists, and the only objection to its exercise is one intended 
for the benefit and protection of the party complaining thereof, 
such objection must be taken at the earliest practicable opportunity, 
after tbe par^ or his counsel is aware of its existence, or it will be 
regarded as waived by the omission or neglect to urge it as soon 



■ Combs V. Smltli, 78 Mo. 32, 40. 

10 Sttlelda V. Thomas, 18 How. (U. 
S.) 263; U. S. v. Yataa, G How. (U. 
a.) G05; Farrar v. tl. S., 8 Pet. (U. 
8.) 459; Oracle v. Palmer, 8 Wheat, 
(D. a.) 699; Pollard v. DwisM, 4 
Crancb (D. 8.), 421; Knox v. Sum- 
mers, 8 Cranch (U. B.). 49S; Leegee 
V. Tbomaa, 1 Blatchf. (U. S.) 11; 
Fields T. Glbbs, 1 Pet. C. C. (U. 8.) 
1S5; Carrington v. Brenta. 1 H& 
L«aa (U. S.), 174; Suydam v. 
Prttchor, 4 Cat. 280; Payne v. Farm- 
ers' Bank, 29 Conn. 415; Deputy v. 
Betta. 4 Harr. (Del.) 352; Crull v. 
Keener. 18 111. 65; Abbott v. Semple, 
25 111. 107; Crnlksbank v. Coggs- 
well, 20 III. 366; Roberts ▼. Tbomp- 
Boa, 28 111. 79; Mllea v. Qoodwln, 35 
III 53; BMredge v. Polwel, 3 
Blackr. (Ind.) 208; Brayton v. 
Freeae, 1 Ind. 121; LltUe v. Vance, 
14 Ind. 22; Bell r. Pleraon, 1 Iowa, 
21; Lorrlner r. Bank of Illinois. 1 
loira, 22S; Hall v. Blever, 1 Iowa, 
113; HarrlBB v. Onln, 10 Smed. * 



M. (Hlaa.) 563; Winchester v. Cox, 
3 Iowa, 675; Cbouteau v. Rice, 1 
Minn. 192; Lewis v. Nuckola, 20 Mo. 
Z7S: St ▼. Woolery, 39 Mo. 626; 
Ftn V. Reed, 3 Qrant (Pa.), 81; 
Anderson v. Morris, 12 Wis. 689; 
Btelllng T. Peddlcord, 7S Neb. 779. 
Ill N. W. 793; Parker T. People. 
133 ni. App. 118. 

II Illustrations of this will be 
found In the following cases: Ran- 
som V. City of New Yorh, 20 How. 
(U. S.) 681; Selby v. Hutchison, 9 
111. 319; Guna v. Gudebus, 16 B. 
Mon. (Ky.) 447; Cuahtng v. Bab- 
cock, 38 Me. 452; HIgley v. I^nt, 
3 Mich. 612; Warren v. Glynn, 37 
N. H. 340; Dale v. Radcllffe. 26 
Barb. (N. T.) 333; Gordon v. 
Inghram. 1 Grant Cas. (Pa.) 152; 
Belknap v. Godfrey, 23 Vt. 288; 
Pulling V. Supervisors, 3 Wis. 337; 
Clark V. Callahan. 105 Md. GOO, 
6G All. 618, 10 L. R. A. (n. s.) 616; 
Mississippi Lumber Co. v. Edgar ft 
Smith Co., 162 Ala. 637. 44 Sonth. 



1110 PROVINCB OF COURT AND JUBT. 

aa possible.*" Perhf^ the most frequent application of this prin- 
ciple la that pleas in ahatement must be filed in limine or they will 
be taken to have been waived.** In general, an appearance and 
pleading to the declaration amounts to a waiver of all precedent 
irregularities,'* and the defendant will not, under such circum- 
stances, be heard to say that he was not notified by service of 
process,'* or that irregularities existed in previous orders of con- 
tinuance." 

§ 1439. Abandonment of a Contract. — What amonnta to an 
abandonment of a contract is a. malter of law, and the court should 
instruct the jury as to the legal effect of the facts which they may 
find, bearing upon the question, and not leave it to them to say. 
without such instruction, whether a contract has been abandoned or 
not.*' In other words, where an act, or certain specific acts, are re- 
lied on to show an abandonment of a contract by one of the parties 
to it, it is proper for the court to declare whet^r such act or acts 
constitute an abandonment." The principle is said to be tiiiis: 
"Where a contract is entire, and not made divisible by its terms, 
one of the parties cannot take advantage of his own default, either 
from laches of willful refusal to perform his part, for the purpose of 
putting the contract out of the way, so as to enable him to maintain 
assumpsit on the common counts, and therefore evade the rule that, 
while the special contract is in force, general assumpsit will not lie ; 
and the cmtract is considered to remain in force until it is rfr- 

475; Fidelity A Caa. Co. v. Thomp- uel, 8 Porter (Ala.) iiZ; Pedgett v. 

son, IM Fed. 4S4, 83 C. C. A. 324, Smith, 206 Mo. 303, lOS S. W. 43; 

11 L. H. A. (M. 8) 1069; Phoeali Eau Qalre Nat Bank v. Jackman, 

Indem. Co. v. Qleger, 39 Colo. 193, 204 U. S. G22, Gl L. Eld. 596; Hough 

88 Pac. 1066; St. t. Stark. 202 Ho. v. Southern R. Co., 144 N. C. 692. 

210, 100 S. W. 64S; Citizens Sav. ST S. E. 469. 

Bauk V. Woods, 134 Iowa, 232, 111 " Crawford v. Branch Bank, T 

N. W. 929. Ala. 205; Ashby Brick Co. v. Ely * 

»» Warren v. Glynn, 37 N. H. 340; Walker D. G. Co.. 151 Ala. 373, 44 

Tanner v, Schaelfer (Tex. Civ. South. 90. 

App.), 101 S. W. 468. i« Stanley t. Bank of Mobile, 33 

" HarU T. Com., 1 Grant Cas. Ala. 653, 656. 

(Pa.) 359; Preston T. Simons, X » Henry v. Bassett. 75 Mo. 90. 95. 

Elch. L. {S. C.) 262; Morgan v. To the aame effect White t. Wright. 

Houston, 6 Yerg. (Tenn.) 314; 16 Mo. App. 651; Russell Blrdsall ft 

Pearce v. Young. Walk. (MtsB.) 269. Ward v. Excelsior Stove etc Co., 

14 SUnley v. Bank of Mobile. 33 120 III. App. 23. 

Ala. 662, 656; Moore v. Phillips, 8 '^ Chouteau v. Jupiter Iron 

Porter (Ala.) 467; Hobson t. Eman- Works, 88 Mo. 73, 82. 



Goo<^lc 



WAIVEB: ABANDONHENT ; LACHES: ACQUIESCENCE. IHl 

scinded by niutaal consent, or until the opposite party does somi; 
act inconsistent with the duty imposed apon him by the contract, 
which amounts to an abandomnent ; " and that, what amounts to 
an abandonment is a question of law, and it is error to submit such 
a question to a jury." In like manner, it has been said that "the 
abandonment of a daim may become and does become, when the 
facts of the cases are admitted, a conclusion of law from the facts, 
to be applied by the court, and not left to the discretion of the 
jury." *• 

$ 1440. Abandonment of Kghts. — ^The subject of the abandon- 
ment of a right stands on the same footing as the subject of the 
vxriver of a right In fact, in most cases the two words express 
the same idea. 'Whether a party has abandoned a right once 
possessed, — as, for instance, a right to an easement, — would seem 
to be always for the consideration of a jury, as a quettUm of fact 
and intention.** Thus, in an action of ejectment to recover a mt'tt- 
tn^ claim, it has been held a question for a jury, whether a location, 
which the evidence tended to show was made prior to the time of 
that attempted by the plaindS, had been forfeited or abandoned.--' 
Where a chattel was in the possession of a person, who made fre- 
quent declarations that he was the owner of it and offered to sell 
it, and another imputed owner lived but five miles away, and be 
neither objected to the use of the property by the actual possessor, 
nor made any interference with his use of it, — these circumstances 
were held evidence tending to show that he assented to the claim of 
right of the actual possessor, and it was a question for the jury to 
determine their weight, — ^in other words, whether sui^ person had 
not waived any claim of title.** 

S 1441, Abandonment of Pre-emption or claim of Public 
Lands, — ^What will constitute an abandonment, under a statute 

»• Dola V. CowIbb, 7 Jones L. (N. m Thomburgb v. Mastin, 83 N. C. 

C) 290, oplolon by PsBrson, C. J. 26S; Headen v. Womack, SS N. C. 

Compare B]ak« v. Lane, G Jonea Eq. 46S. 

(N. C.) 412; Brown v. Becknall, S •iParblns v. Dunbam, 3 Strobb. 

Jon«a Bq. (N. a] 423; Devereuz v. Lav (8. C), 224, 22S. 

Biirg07ne, B Ired. Eq. (N. C.) 351,— ** Taylor T. Mlddletoo, 67 Cat. 

rhere tbe gueetlon was considered S66, 8 Pac G91. 

Id cases In oqnltr, wbere tbe Judge >* Aveiy v, Qemona, 18 Conn. 

diipowd Ot tbe facU u w«U as tbe >0G, 810. 



7cnbyGoOi^lc 



1112 PROVINCB OF OOUET AND JUET. 

securing an interest in the public lands to actual Bettlera who con- 
tinuously reside on the land, znay, under some circumstances, be a 
question of law, and under others a question of fact. It is obvious 
that the question is distinctly analc^ous to the question of dom- 
icile;** and the question of the loss of the ngbt of a, homestead 
exemption in land by ceasing to reside upon it as a home." A num- 
ber of decisions upon this question w^re made by the Supreme Court 
of Pennsylvania, under the Act of Assembly of that State, of dale 
Dec 30, 1786, allowing pre-emptions of the public domain of the 
State, and defining what should constitute a settlement. It pro- 
vided among other things, "that, by a settlement, shall he under- 
stood an actual, personal, resident settlement, with a manifest in- 
tention of making it a place of abode, and the means of supporting 
a family, and continued from time to time, unless interrupted by 
the enemy, or by going into the niilitai7 service of the country dur- 
ing the war." The question under consideration, so far as it in- 
volved the interpretation of this statute, turned upon the meaning 
of the words "continued from time to time." The circumstances 
which give autitorltative value to the decisions under this statute, 
have, for the most part, passed away, and they are cited merely as 
having an analogous value in cases where the question arises under 
Acts of Congress, or in Texas under Acts of the State Legislature, 
touching dispositions of the public domain. In one case it was 
reasoned as follows by the conrt, speaking through Kennedy, J. : 
"Abandonment is not always a question of intention, and therefore 
a matter of fact, to be left exclusively to the juiy without any con- 
trolling instructions from the court; • • • because, when more 
than a reasonable time has elapsed for completing the settlement 
without its being done, after making a proper allowance for all de- 
lay occasioned by what the law may deem a sufficient excuse or 
cause for it, and the facts are not controverted, the law will pro- 
nounce the neglect or the failure of the party to perfect his settle- 
ment, an abandonment, whatever his intention in regard to it may 
have been." And therefore, where no excuse whatever was c^ered 
why the claimant had not prosecuted and perfected his improve- 
ments, by personal, resident settlement on the land, although mon; 
than six years had elapsed from the commencement of it, and this 
state of facts was shown by the evidence of both parties, it was held ' 
that the court below would clearly have been justified in chai^g 

i*Ante, E 1359. MAote, fi 1360. 

i:q,t,7c-rib;G00<^IC 



WAIVEE: ABANDONUENT : l^^CHES: AC<}UIESCENCE. 1113 

the jury that there had been an abandonment." This decision 
seems opposed to the previous decision of the same coart, to the ef- 
fect that whenever a question of abandonment arose from a lapse of 
time Less than seven years, accompanied by circumstances from 
which it might be inferred that the party intended to abandon, it 
was a mixed qnestion of law and tact, to be submitted to the juiy; 
but when the question arose from mere lapse of time, it was a ques- 
tion of law, to be determined by the court without regard to the in- 
tentifm of the party; and if the time exceeded seven years, it was a 
conclusive abandonment in law.*^ Still earlier, it was said by Tilgfa- 
man, C. J. : "Were the matter at all doubtful it should be left to 
the jury. But abandonment is not in all cases a matter of fact. 
It may be a concluslfxi of law from facts. Where a man makes a 
settlement and leaves it for a great length of time, it does not sig- 
nify for him that he keeps up his claim. The law declares that 
such verbal claims have no avail as against the act of relinquishing 
the possession. And in such case I consider it as the right of the 
judge to declare the conclusion of law." " In another case it was 
said by I>uncan, J.: "Abandonment is a term very often mis- 
applied, and I know nothing more destructive of the security of 
titles, than leaving it to a jury to presume an abandonment of such 
a title. * * * A man may abandon his settlement, and that 
abandonment may be of such a cast, as that the court may decide 
it as a matter of law, indepeitdent of the statutory provisions of 
limitation as to seven years; because continuity of actual residence 
and possession is the very vital principle of this right, and is a 
part of its l^al definiticm. Hence, it is determined that settle- 
ments must not have the smallest cast of abandonment. The 
abandonment then is not constructive, but absolute ; a dereliction 
of the possession, which amounts to a surrender of the pre-emption 
right, tinlesa this dereliction is accounted for by some extraotdinary 
occurrence, as being dispossessed by force, and an immediate pros- 
ecution of the tight, or prosecution within some reasonable time, 
or being driven off by the pablic enemy. Where a location, is not 
followed up by a survey in a reasonable time, this is the construc- 
tive abandwiment, and may be decided as matter of law by the 
court; and where there is an intervening right before the survey, 

MAtctalBon V. McCalloch. 6 Watt* »C1ugsage v. DuBcan, I Sers- 

(P».), 13. 15. ft R. (Pa.) Ill, ia«. 

n BrentllDger v. HuUbinsoD, 1 
Watla (Pa.), 48. 



D.qitizeabyG00<^lc 



1114 PBOVINCE OP OOUBT AND JDHT. 

this imperfect right and inception of title may be considered as 
relinquished, or in other words, abandoned." And it waa held 
that it was error to leave it to the jury to decide, in the particular 
case, whether an application on which a Burv^ had hsen made had 
been abandoned,** In another case, where an actual settler had 
resided on land for two years and had then left it unoccupied for 
five years, it was held proper for the court to instruct the jury that 
his absence for that length of time was a legal abandonment of his 
rights. Gibson, C. J., said: "It is certain that a question of aban- 
donment is not necessarily a question of intention. There are in- 
stances where the conclusion to be drawn from the evidence, taking 
the truth of it for granted, is not one of fact but law, and where 
an admitted intent to resume the settlement is immaterial. To 
substitute claim for residence, & convenience for prosecutim of 
title, would subvert the whole doctrine of improvement. An ap- 
propriator is not to be held off by an improver who has barely set 
his mark on the land, by the commeneement of a settlement, sus- 
pended, but intended to be resumed at a more convenient season. 
In such a case, the ammu8 revcrtendi goes for nothing. It is con- 
tinuance of residence, with such occasional exceptions of temporary 
but indispensable interruption of it, as circumstances may require, 
and of which it may be the province of the court to judge, which 
is the groundwork of the title."*** Finally, the conclusion has 
been reached that, where the question of abandonment depends 
upon mere lapse of time, not excused by any circumstance named 
in the statute or contemplated by it, and there is no dispute as to 
the length of time, it is a question of law, to be decided by the court 
without regard to the intention of the party; and it was held, in such 
a case, that relinqui^ment of actual residence for five years and 
nine months, without any circumstances to bring the case within 
the equity of the statutory excuses, was abandimment as matter of 
law, without regard to the intention of the claimant." In another 
case it was ruled that, if actual residence be discontinued for five 
years, and not accounted for, it is an abandimment in point of law.*' 
g 1442. The Same Subject Oontlnned. — ^Passing from these to 
another class of cases under the same statute, we find that it has 
been well decided that, in all cases where the eircumstancea leave 

M Watson v. QUday, 11 Serg. « R. *i Jacobs v. Flgard, 25 Pa. St. 46. 

(Pa.) 337. 340. uSmlUi t. Beck, 2& Pa. St. 10«. 

•a MoDoDBid V. Mulbotlan, S 
Watta (Pa.), 173. 



D.qitizeabyG00<^lc 



WAIVEH: ABANDONMENT: LACHES: ACQUIBSCENCS. 1115 

room for doubt whether there wag an abaudonment or not, tke jury 
ii the proper tribunal to decide.'* "Some cases," said Coulter J,, 
"may be so strongly and indelibly marked, either by continuous 
absence, and suffering the improvement to return to its wild state, 
or by the declarations and acts of the party, as to justify the court 
in deciding as a matter of law upon the questioD ; yet, in a large 
majority of the cases which occur, there is such a mixture of motive, 
intent and circumstances, as to make it a matter properly referable 
to the jury. It is not a mere length of absence for any reasonable 
time, which gives character to the act of quitting possession ; for a 
man may leave behind him unquestionable marks of the animus 
revertendi, such as grain growing, household utensils and farming 
implements. On the other hand, short absence may be marked as 
nnequivocally, by acts and declarations, with an intent to give up 
the right of settlement."** Accordingly, where the court submit- 
ted the qoestioD to the jury upon the following instruction, it was 
held no error: "When a single man bad an actual settlement, im- 
provement, and residence on a tract of land, with a cabin to live 
in, suitable to his circumstances in his single state, and married, 
his residing off the land, in a house of his father-in-law, or with 
his father-in-law until he could get accommodations for his wife 
and expected increasing family, for a reasonable time, during which 
time he still occupies it, would not be an abandonment. Whether 
the residence was changed for such temporary purpose, and whether 
the time of this absence of personal residence was a reasonable time 
to effect the object, and prosecuted with due diligence, especially 
when there was conflicting and contradictory evidence, would be 
facts to be determined by the jury."*' Again, where the court 
recapitulated the facts, instructed the jury what amounted to an 
abandonment, and gave them what might perhaps be an intimation 
of the court's opinion that there was an abandonment, but left th^ 
question to them, it was held that, while there might be evidence 
Buffieioitly clear to warrant the court in telling the jury, as matter 
of law, that there had been abandonment, no error was committed 
in the particular case." In another case it has been held that an 

•■ Foster T. HcDIvlt, 5 Watts A B. «■ Heatb v. BIddls, 9 Pa. St. 273, 
S59; Wilson T. Watteraon. 4 Pa. St. 271. 
!M. 219; Heath v. Blddle, 9 Pa. St. 
17S. 

u Wilson V. WatUrson, 4 Pa. Bt. 
m, 219. 



jcibyGoQi^lc 



1116 raOVlNCK Of COUBT AND JUBT. 

intemiption of occapanc; for a period of six montiis would not 
of itself amount to an abandoQinent, unless accompanied by acts 
or declarations indicative of sn intention to abandm the premises; 
and, under the circumstances, it was held proper for the court so 
to charge the jury, — the court conceding what is held in decisions 
already quoted, that in some cases it will be a mere question of 
law." Reviewing these decisions, it was held in a later ease that, 
being so far advanced from the period and policy which gave rise 
to the statutes, the court ought not to contract the rule in regard 
to actual residence more than their predecesors had Aoae ; and 
where the disccottinuance of the actual resident possession was but 
a few days over two years before the warrant of the subsequent 
claimant was issued, it was held that this was too short a time to 
give it the character of an abandonment in law from lapse of time, 
and that the trial court therefore erred in rejectiog evidence tend- 
ing to prove the animus revertendi. The court intimated that 
where the interruption of the settler's residence is for a less periotl 
than five years, it ought to be left to the jury to determine, under 
all the evidence in the case, whether there existed an intention to 
abandon." 

§ 1443. Waiver of Vendor's lien.— It has been ruled that, 
whether a vendor intended to waive his lien by taking a new note, 
is a question of law, and ought not to be submitted to a jury. It 
was argued, and the court admitted the position, that the abandon- 
ment of a vendor's lien is a question of intention; but Lumpkin, J., 
nevertheless said: "The law is that the wfuver may be actual or 
implied. But whether the uniting of other considerations in the 
same note is an implied waiver, is a question of law, just as much 
as whether taking other and additional security amounts to a 
waiver. The facta being admitted, the law arising out of any given 
state of facts is to be decided by the courts." " 

■iQoodmaii T. Louy, S Watta ft to a particular state o( facts; but 

S. (Pa.) 526. tbe general rule la certainly other- 

HWbttcomb V. H07t, 20 Pa. St wise. Ante, Si 1333, et seq.; Majors 

443. V. Maxwell. 120 Mo. App. 2S1. 96 

M Mtms V. Lockett, 28 Oa. 237. S. W. 731. So It h:ta been beld tbat 

Tbfl writer ma^ be permitted to tbe mere taking at a note tor aup- 

doubt the conclualoD of this case. piles furnished a man u fact u ring 

Where the question ts one of Inten- corporation does not waive tbe lien 

tlon, the law may Indeed oonclu- given by statute. There must be 

slvely annex a particular Intention other clrcumstancea from which 



Coo»^lc 



WAIVBB: ABAmWNHENT : INCHES: ACQUIESCENCE. 1117 

8 1444. Abandonment of a Public OfiSoe.— It has been said ttiat, 
"what amomita to an abandoninent of an office (if tme can be va- 
cated by abandonment, otherwise than in the msnaer prescribed 
hy the statute), is a qvcsiion of law, and the special facto should 
bo stated, in order that the court may determine whether those facta 
constitute an abandonment or not" ** 

§ 1445. Waiver by Administrator of copy of claim againxt an 
Estate. — ^Under the statutes of Ai^anses, the exeeuftr or adminis- 
trator of the estate of a deceased person is entitled to a copy of any 
claim which is presented to the probate court for allowance against 
the estate, — the object of the statute being to enable him to act 
advisedly in allowing or refuang it, and, in case of its allowance, 
to place in his possession accurate data tor the classiflcatioti of 
claims a^nst the estate.** This being the policy of the statute, 
where the executor or administrator has had a fair and convenient 
opportunity to examine the original claim, no violence is done to 
the spirit of the statute by the finding of a waiver of the copy by a 
jury, even upon slight grounds; and it is held that, whether or not 
the facts and circumstances shown in evidence amount to a waiver, 
is a matter of fact to be determined by a jury." 

§ 1446. Waiver hy a Creditor of his Eight to Keacind a Oompo- 
sition Agreement. — If a composition takes place between a debtor 
and bis creditors, whereby each creditor is to receive a certain 
amount, the legal effect of the contract is that it is not only a eon- 
tract between the debtor and each separate creditor, but it is a 
contract among the creditors themselves.** Hence, if one creditor 
consents to sign the agreement, upon a secret understanding with 

vMver Is to be Inferred. Plrat Nat Attj. Oen. v. Marburr, 141 Mich. 

Bank t. Trigg Co., 106 Va. 327. 58 31, 104 N. W. 324, 113 Am. 8t Rep. 

S. B. 168. See also Mlvelaz v. John- SIS. Evidence mar raise conclu- 

son, 30 K7. Law Rep. 3S9, 98 S. W. elve presumption of abandonment. 

1020. Cote V. Biddeford, 96 Me. 491, 63 

M St T. Sear, (4 Mo. as, 97. It AtL 1019, 90 Am. St. Rep. 417. 

Is said an abandonment cannot be *> Borden t. Fowler, 14 Ark. 471, 

Inferred from failure ot the In- 474. 

eambent after being superseded and *■ Grimes t. Bnsb, 16 Ark. 647. 

Us Buc^'^iBor Installed to keep up ** Solinger v. Earle, 83 N. T. 393, 

a clamor for reinstatement, or to 896; Sage t. Valentine, 23 Hlnu. 

take legal proceedings therefor. 102; Brack v. Cole, 4 Sandt. (N. T.) 

Selby r. Cltr of PorUand. 14 Or. 243, 79, 8S. 
12 Pac 377, 68 Am. Rep. 307. See, 



D.qitizeabyG00<^lc 



1118 PBOVINca OP OOUBT AND JUET. 

the debtor or with an agent or friend of the debtor, or even, it is 
held, with a mere volunteer, that he is to get a larger amount than 
the other creditors, the rest of them are cheated, and, on discoTering 
this fact, have the right to rescind the contract and sue for their 
full debt." But, while this and other circumstances which might 
be supposed, will give the right to any particular creditor to re- 
scind the composition agreement and sue for his full debt, this 
right, like any other, may be waived; and obviously it will be as- 
sumed in law to have been waived, if the creditor, with full knowl- 
edge of the circumstances which give him the right to rescind the 
agreement, accepts performance of it from the debtor according 
to its term/* But where there are facts from which the contrary 
infer^ice may be drawn, which will control the decision of this 
question, — as, for instance, whether the creditor accepted perform- 
ance from the debtor with full knowledge of the circumstances which 
gave him the right of rescission, — the question whether there has 
been a waiver must go to the jury.** Thus, where it appeared that, 
in the state of facts previously supposed, the creditor refused to 
surrender the promissory note by which his debt was evidenced, 
except upon the promise of the debtor to pay or secure the balance 
in full, — under these circumstances the acceptance of part per- 
formance from the debtor, according to the terms of the compo- 
sition agreement, would not be conclusive evidence of a waiver, 
and the question would remain a question for the jury." 

§ 1447. Waiver cannot take Place vnthont Knowledge^— It 

must in all cases appear that the party had a full knowledge of hh 
rights, in respect to the matter of which the waiver is predicated ; 
for, if ignorant thereof, of courae no intention to waive any 
thing can be implied." In this respect the doctrine of waiver rests 
upon very much the same footing as that of ratification. Indeed, 

*« Bank of Commerce v. Hoeber, tr ibid. Compar« Dauchr v. 

11 Mo. App. 47B; Putaforcl v. Rich- Goodrich, 20 Vt 137. 
ards, 22 L. J. (Ch.) 659, 19 Eng. L. "Tryanor ▼, JotmsoD, 1 Head 

ft Eq. 3ST: KntgM r. Hunt, 5 Blng. (Tenn.), 51, 55; Coblelgb v. Pierce. 

432; Re VThltney.K Nat. Bank. Reg. 32 Vt. 788. T9E; Graham v. Bell-Irv- 

1. 3; Robaon r. Calze. Dougl. 216; lag, 46 Wash. 607, 91 Paa 8; Cal- 

Holland T. Palmer, 1 Bob. A Pul. 95; lies t. Modern Woodmen, 98 Mo. 

Re Sawyer, 14 Nat. Bank. Reg. 241. App. S21, 72 8. W. 713; PhllilpB 

*i Coblelgb V. Pierce, 32 VU 788, 7. Hamilton, 17 Wyo. 41. 95 Pac. 

796. 846. 

«« Ibid. 



D.qitizeabyG00<^lc 



WAIVBB: abandonment: IiACHES: ACQUIESCENCE. 1119 

tiie two things are the same, thoagh one term is applied in one 
sitoatioD, and the other in another. To illustrate the foregoing; 
statement, take a case where the plaintiff hired a slave to the de- 
fendant, by an express contract, to be employed in a partii^ular 
service. The defendant, disregarding the contract, sub-hired the 
slave, to be employed in a totally different service. Pending the 
latter service, the slave was taken violently ill, and, at the sugges- 
tion of a physician, was taken to the house of the plaintiff to be 
nursed, where he died. It was held that the mere fact of the plain- 
tiff receiving the slave under the circumstances was not of itself 
a waiver of the conversion; that whether or not it was such a waiver 
depended upon the motive with which it was done, and that this 
was a question of fact tor a jury. If, with the knowledge of the 
fact wbicb in law constituted the conversion, the plaintiff took 
back the slave as oumer, and as if the outrage had not been com- 
mitted, this would be evidence of a waiver of the conversion.** 

uTryanor ▼. Jobnaon, suprB. padty to make a deed, Indured b; 

Compare Bell v. CummlngB, 3 Sneed traud and concealment o( material 

(Tenn.), 27G. Take also tbe case facta, accepts a reconveyance of a 

where a person old and Inflrm, part o[ the property. Tollej' v. Pc 

bat 7et wltb sufficient menUl ca- teet, 63 W. Va. 231, 57 9. E. Sll. 



D.qitizeabyG00<^lc 



CHAPTER XLVIII. 

IDEINTITT: RBSBMBLANGB. 

1450. Question for Jjiry, 

M61. Where there are Two Peraons of the Same Name. 

14E2. [11 lustrations.] Whether Father or Son the Orantee In a Deed. 

1453. Ideality of Pernonal Property. 

1464. Res Judicata — Identity of the Issues In a Former Proceeding. 

1466. Identity of a SlgnatUTe with the Name of k Firm. 

1466. DlIfereDce between t«o Machines. 

1467. Sufflclency ot Specifications of a Patent — Informality — Abandon- 

ment — Identity. 

§ 1460. Question for Jury. — Identify is a matter pecnliarly 
within the prorinca of the jury, to be determined by them in view 
of all the circnmataneea ; and the coort must not, in instmcttng 
them, intimate an opinion as to what inferences ohoald be drawn 
by them from the facts in evid^ico.* 

S 1451. Where there are Two Persons of Uie same Nanu. — 

Where it becomes a question which one of two peraons bearing the 
same name was int^ded to be the grantee in a deed, the question 
is one of fact for a jury. In so holding the Supreme Court of 
Wisconsin have lately said: "In a sense, ag to the real person in- 
tended, there is a latcul ambiguity in the deed, but more properly, 
perhaps, it is a question of identity; as in wills, 'where the words 
are neither ambiguous nor obsctire, and the devise on the faci! 
of it is perfect and intelligible, but, from some of the circumstances 
admitted in proof, an ambiguity arises as to which of two or more 
things, or which of two or more persons (each answering the words 
in the will) the testator intended." This is what Lord Bacon 
1 Miller V. Marks, SO Mo. App. > atlng 1 Greenl. Bv.. | 189. Bo 

869; Touns t. St., 36 Ore. 417, 59 It has been held not againat the 
Pac. SI2; Plttaburs Plate Glass Co. rule of a return not being subject 
T. Kerlln Broi. Co., 122 Fed. 414, to contradiction tor "Robert E. 
ES C. C. A. 648; Tbird Nat. Bank t. Morgan, defendant," to show that 
BlosBer, 66 Kan. S59, 7D Pac. 373; service on "R. E. Morgan" as re- 
Nehrlng t. McMurrlan, 94 Tex. 46, turned was on "RutDs E. Morgan," 
G7 S. W. 943; Craig t. St., 171 Ind. a resident of the same county. 
817. 86 N. E. 397. BUnglufl T. Qalner, 49 W. Va. 7, s: 



1 Goo^^lc 



ID£NTIT7: BESKMBL.ANCB. 



1121 



oalled 'an equivocation, that is, the words equally apply to two 
things or to two persons.' But it is clear that in any sense 
this qnestioa is not tme of coustmction or of law, to be decided 
by QiB court in an acticm at law, but one of fact, pure and mmple, 
to be passed upon by the jury ; as much so as the meaning of words 
Dsed in a written instrument, which this court held was a question 
for the jury ; * and, as the questioiis in the eases hereafter cited 
in analogy to this case."* 

S 1462. [XUnstrstioiiB]. Whether Father or Son the Grantee In 
a Deed. — A father and son both bore the name of David Pelker. 
They both resided in the same town. Tfae father purchased a piece 
of land, taking the deed to "David Felker, junior," describing him 
as of the town where they both resided. The father executed notes - 
for a part of the purchase-mon^, and gave a mortgage of the land 
to secure the same, by the name of "David Felker, junior," He 
said nothing at the time of his acting as agent for his son, and the 
grantor supposed that the father was in fact the purchaser, that 
his name was David Felker, junior, and that he was conveying the 
land to him. Some of the evidence tended to prove that the aoa 
had authorized the father to buy the land for him and in his name, 
and that he had paid either directJy or indirectly, the whole pur- 
chase price. Under Uiis evidence, it was held a guestion of fact 
for the jury whether the eon was or was not the real principal and 
purchaser of the land, under an. instmction that if they found he 
was, then the title vested in him, and not in the father.* The court 
S. B. 771. Where names reieinble ments; Thompson v. Jones, 4 Wis. 



each other but are not strictly Idem 
tonans, parol evidence may show 
they apply to tbe same person or 
are similarly pronounced. Nunkey 
T. SL, 87 Ala. 94. G Ekrntli. 357; Peo- 
ple V. Pick, 89 Cal. 144, 26 Pac 
759; Geer v. Missouri L. A M. Co, 
134 Ho. SS, 34 S. W. 1099, G6 Am. 
8t Rep. 489; Weltzell v. St., 2S Tex. 
App. 5Z3, 13 S. W. 864. 19 Am. St 
Rep. 855. 

> Citing Ganson v. Hadlgan. IB 
Wis. 145. 

*Besg V. BeEK. G6 Wis. 634, G37, 

14 N. W. 602. The court cited the 

Mlowlng analogona cases of parol 

evidence to explain written Instru- 

TaiALS— 71 



IflG; Atwater r. Schenck, 9 Wis. 160; 
Staak V. aigelkow, 12 Wis. 234; 
Sargeant v. Solberg, 22 Wis. 133; 
Bancron v. Grover, 23 Wis. 463; 
Harding ▼. Colbum, 12 Met. (Mass.1 
333. 

« Prentiss v. Blake, S4 Vt 460; 
ante, ) 13&ft. Where there was a 
dead to "h. Trlplett, Jr." as trustee 
and the acknowledgment In the 
body described the notary as "L. 
Trlplett, Jr." but It was signed "L. 
Trlplett, N. P. 2" It was held, how- 
ever, that this did not show the 
tmstee and the notary were the 
same person. Corey v. Moore, 86 
Va. 721. 11 a. E. 114. 



7crib;G00l^lC 



1122 PBOVINCS 07 COUBT AKD JUBT. 

disposed of the inference to be deriyed from the addition of 
"junior" to the name of David Felker in the deed, by saying: 
"The additi(m of 'junior' is in law no part of a person's name, 
but it is used as merely descripUve of the person ; and is assumed, 
applied, and discarded at wilL"' Another ease involving this 
carious question was an action of ejectment in New York; where 
the plaintiff claimed title under a sale, which had taken place 
under an execution, issued upon a judgment which had been recov- 
ered against one David Brown. The defendant claimed title by in- 
heritance from her son, David C. Brown. The premises in ques- 
tion were conveyed some years before the action, by a deed didy 
executed, acknowledged and recorded, in which the name of the 
grantee was stated to be David C. Brown, David C. Brown was 
the name of an infant son of l^e judgment debtor, through whom 
the plaintiff claimed, whose true name was David Addison Brown, 
but who was sometimes called David Brown. The plaintiff claimed 
that the father was intended to be the grantee in the deed, and gave 
evidence tending to show that he negotiated the sale and that at the 
time of the execution and delivery of the deed, he delivered to the 
grantor a bond for the purchase-money, secured by a mortgage of 
the premises, which bond and mortgage were, however, executed, in 
like manner with the deed, in the name of David C. Brown, It was 
also shown that the father went into possession of the premises and 
so remained until the time of his death. There was also evidence 
tending to show that, in important business transactions, the name 
of the father was written David A. Brown. It was held that it was 
for the jury to say which of the persons, the father or the son, was 
intended to be the grantee in the deed, and that it was error to 
direct a verdict for the plaintiff. The court said: "The defend- 
ant has the legal presumption in her favor that her son was intended 
as the grantee; and whether it has been overcome by parol proof, 
we think should have been left for the jury to determine."^ 

§ 1453. Identity of Personal Property, — In an action of re- 
plevin, the identity of personal property is peculiarly for the jury, 
and they should be left free to make their own deductions from the 

*Ibld. 466. citing BralDard v. TMcDuffle v. Qark, 39 Hun (N, 
Stilphln. 6 Vt. 9; Blake v. Tucker, Y.), 166; citing Padgett v. Law- 
12 VL 39; laaacs T. WUkey, 12 Vt rence, 10 Paige (N. Y.), 170. 



D.qitizeabyG00<^lc 



IDENTITT: BSSEUBLANCE. 



1123 



evidence. Upon the question of identity the teatimony of witneases 
who swear to the fact of identity is necessarily the statement of an 
opinion or conclusion; but it is nevertheless, from the nature of the 
case, to go to the jury.* So, what property is embraced in a levy 
which is described in the return in obscure terms, may be shown 
by parol evidence, and it is ccmsequently a question of fact to be 
determined by a jury.* So, whether certain goods delivered were 
delivered in pursuance of an oral contract of sale, was held a ques- 
tion of fact for the jury.'" The identity of property in chattel 
mortgage is always a question of fact for the jury. It was so held 
where the question was whether a certain engine, which had been 
seized and sold by the defendants, was included in the descrip- 
tion of "one portable saw mill," in such a mortgage.'* 

§ 1454. Res Judicata — Identity of the Issnes in i Former Pro. 
ceeding. — In order that a judgment may have the effect of barring 
a subsequent action, it must appear, either upon the face of the 
record or by extrinsic evidence, that the precise issue was raised and 
determined in the former suit. If this appears from the recomi 
of the former suit, apart from extrinsic evidence, then the ques- 
tion is a question of law, and is not to be submitted to a jury." 



• St. V. Babb, 76 Mo. G04; Com. 
T. Cimnlngliam, 104 Mass. 545. 

■ Scott T. Sheakly, 3 Watta 
(Pa.), 50. 

'» Stonewall Man. Co. v. Peek, 63 
HLbs. 342. 

11 Weber t. llUng, 86 Wla. 19, ST 
N. W. 843; Third Nat. Bank v. 
BloBser, 65 Ean. 859. 70 Pac. 373; 
Andregg v. Meisenhelmer, 61 Mo. 
App. 434; AndreSK t. Brunsklll, 87 
Iowa, 351. 54 N. W. 135. A chattel 
mortgage Is not void because In It- 
self It doea not accurately and 
fully describe, but It la effectual. If 
witb the aid of Inquiries suggested 
by the Instrument, the property 
may be identified. Such resort 
lets In parol evidence and this may 
make a Jury queatlon. See Jones 
Bros. Live Stock Com. Co. y. Long, 
90 Mo. App. 8. 
iiTntt V. Price, 7 Mo. App. 194; 



Palmer v. Sanger, 143 111. 34. 32 
N. E. 390; Lyon t. Perln ft Gaff 
Mfg. Co., 125 U. S. 698, 31 L, Ed. 
839; City of St. Joseph v. Union 
Ry. Co., lis Mo. 636, 22 S. W. 794. 
38 Am. St. Rep. 626. It was ruled 
in Mlaaonrl, that parol evidence Is 
admissible to show that Judgment 
of the probate court disallowing a 
claim was not on the merlta, It be- 
ing prima facie only such a Judg- 
ment Snodgrasfl t. Moore, 30 Mo. 
App. 232. In Montana It was 
ruled. In case of a demurrer upon 
several grounds being overruled 
generally, that the presumption is 
it was sustained, as to that which 
relates to form, and defendant 
pleading such a Judgment in bar 
may show otherwise. Klein- 
Bchmldt V. Blniel. 14 Mont. 31, 35 
Pac. 460, 43 Am. St. Rap. 604. 



D.qitizeabyG00<^lc 



1124 FBOTINCB OP OOUBT AND JUBT. 

Bat if it appears that several matters may hare been in issae, and 
that the judgment may have gone upon one or more, thns leaving 
the precise iasae in doubt, tbia uncertainty should be removed by 
extrinsic evidence.^* If such extrinsic evidence is presented in tbe 
form of parol testimony, it should be left to the jury, nnder proper 
instructions, to gay whether the issues, as defined by the court in 
the case at bar, were in point of fact passed upon at the previous 
trial." 

§ 144S. Identity of & Signainre with the name of a Firm. — 

It has been held that the Question whether "Chaa. O. Ramsey & 
Co." signed to a promissoiy note was the signature of the firm 
known as the firm of "Charles 0. Bamsey & Co." was a question of 
fact for the jury." 

9 14S6. DlfTerence between two Uaohlnes. — ^A branch of the 
rule that identity is peculiarly a question of fact for a jury, may 
be found in a holding which has been made in an action at law to 
recover damages for the infringement of letters -patent It is 
mled that, when the defendant in such an action sets up a prior 
publication of a machine, anticipating the patented invention, and 
it appears that there are obvious differences between the two ma- 
chines, in the arrangement of the separate parts, in the relation of 
the parts to each other, and in their connection with each other in 
performing the functions for whieh the machine is intended, and 
experts differ upon the question whether these differences are mate- 
rial to the result, and whether they require the facul^ of invention 
— those qnestiona are questions of fact, to be left to the jury under 
proper instructions." 

>»Tolt T. Price, 7 Mo. App. 194; "Tutt v. Price, 7 Mo. App. 194. 

Spr&dllDg V. CoDwar> El Mo. Gl; 197; Packet Co. t. Slcklsa, supra; 
Wright V. SallBbury, 46 Mo. 28; Le Montague t. T, W. Har»ay Lum- 
Packet Co. v. Sickles. G Wall. (U. ber Co., 84 Wis. 331, G4 N. W. 683. 
S.) G90; Russell t. Place, 94 U. S. » Tiltord v. Ramsey, 37 Mo. E63, 

606. la Maine It was ruled, tbat, G67; citing Kirk v. Blurton, 9 
where an action was brought on Mees. A W. 2S4; Kinsman v. Dul 
several notes, each descrlted In a lam, E T. B. Mon. (Ky.) 382, 
separate count, and on a reference >" Keyos v. Grant, 118 n. S, 25, 

there wao a general award, it could 3S; diatlngulBhlng Randall ▼, 
not be shown that one of such Baltimore etc. R. Co., 109 U. S. 
notes was not passed on by the 478; Coupe v. Royer, 155 U. S. 666, 
referee Blodgett r. Dow, 81 Me. 39 L Ed. 263; Hunt Bros. Fruit 
197 16 AU eeo P*8 ^- T- Caasldy. 68 Fed. 257, 8 



Goo^^lc 



IDENTirr: BESEHBLANCB. 1125 

I 1497. Snfflciencjr of Specificatioiu <rf a Fatent— Informality— 
Abandoniuent — Identity. — It seems th&t, in an action at law for 
the infringement of a pab^nt, it ia a question for the jury, to de- 
termine from the evidence in the case, whether the specifications, 
including the claim, npon which the pat^it was granted, were so 
predae aa to enable any person skilled in the construction of ma- 
chines, to make the (me desciibed; also whether the patent was 
possessed of norel^; also whether a renewed patent was for the 
same invention as the original patent; also whether the invcDtion 
had been abandoned to the public; as well as the identity of the 
mAchine naed by the defendant with that of ihe plaintiffs, or 
whether they have been constructed and operated upon the same 
principle.'* 

G C A. B2S. Wliere It Ib doubtfal FraDclsco Bridge Co. v. Keating, 

wbelber the patent eaed on dls- OS Fed. 351, 15 C. C. A. 476. 

dosed aii7 Invention, this carriee " Battia v. Taggert, IT How. (U. 

the quwUon to the jut7. San 8.) 74, SS. 



D.qitizeabyG00<^lc 



CHAPTER XLIX. 
PLACE; LOCALITY: BOUNDAHY: IDENTITY OP LAND. 

SECTI0!< 

1461. Court to CouBtrne b Deed: Jury to Apply Descrtptlon to the Land. 

1462. Whether the Courses and DtetanceB Ca,rT7 the Lines to a Certain 

Point 

1463. Whether a Qrant Includes the PremlBes In Controversy, 

1466. What Monuments eatls^ the Calls of a Deed. 

1467. No Presuibpllon of Law In such a Case. 

lies. Whether a Particular Monument was Intended to be Adopted hy a 
Deed. 

1469. Calls of a Survey. 

1470. [Illustration.] Conclusiveness of Harked Comers and Lines In a 

Survey. 
1171. Indefinite or Insufficient Calls Id a Deed. 

1472. Illuetratton of Foregoing. 

1473. Parol Evidence AdmlsBlble In such a Case. 

1474. Verdict of Jury of Vicinage Entitled to Great WetghL 

1475. Identity of Land and whether Assessed or Unseated. 

1476. Questions of Locality, Distance, eta, for the liirj, 

1477. [Illustration.] Appurtenances. 
147S. [ContlDned.1 Curtilage. 

1479. House-breaking: Whether the Place of Entry was a Part of the 

House. 

1480. Boundaries of Places. 

1481. Boundaries of Counties. 

1482. Boundaries of a State. 

§ 1461. Cotirt to Construe a Deed— Jnry to Apply Description 
of the Land. — "While it is the duty of the court to construe a deed, 
it is the dttty of the jury to apply its descriptive terms, when thus 
construed, to the land, and to ascertain whether the premises in 
question are within the description.' Stated in another way, " what 
are the boundaries of land conveyed by a deed, is a question of law; 
where the boundaries are, is a question of fact.'" Still another 

1 Reed V. Proprietors etc., 8 » St Louis '. Meyer, IS Mo. App. 

How. (U. S.) 274; Bell v. Wood- 367, 383, affirmed, 87 Mo. 3TS. 

ward. 46 N. H. 332; Naglee v. In- That the location of a disputed 

gersoll, 7 Pa. St. 183, 189; Flncm- boundary line Is always a question 

non V. Sudderth, 144 N. C. 587, 67 of fact for a Jury, or for a referee 

S. E. 738; South, ft P. R. Co. v. when acting as a Jury, see the fol- 

Maln, 108 Va. 557, 62 S. E. 354. lowing cases- Taskar v. Cllley, S* 



oGoo^^lc 



PUA.CB: liOCAUTY: BOUNDARY, EtC. 1127 

way of stating tbe same principle is to say that, while it is the 
peculiar province of the jury to find facts and to ascertain the true 
poBititHis of objects called for as monuments in a deed, from the 
eyidence submitted to them, it is nevertheless the duly of the court 
to determine, whether, or in what manner, a call in a deed or patent 
should be gratified.* "'When there is a latent ambiguity in the 
description contained in the deed, all the cases agree that evidenca 
aliunde is admissible. But it is not upon this principle alone that 
the evidence is received. It is admissible in all cases where there 
ia a doubt as to the true location of the survey, or a question as to 
the application of the grant to its proper subject-matter. It' must 
be constantly borne in mind that it is not a question of construction, 
but of location. A question of cwistniction is a pure question of 
law, to be decided by tiie court upon the terms of the instrument 
itself, to the exclusion of evidence aliunde, where no latent am- 
biguity exists. A question of location, or the application of the 
grant to its proper subject-matter, is a question of fact to be deter- 
mined by the jury by the aid of extrinsic evidence."* "It cannot 
be denied," said the Court of Appeals of Maryland, "that the jury 
are the proper tribunal to decide whether any, and what, variation 
ought to be allowed in the location of lands. But whether any and 
what degree of allowance for variation ought to be made are ques- 
tions of fact, to be determined by the jury on the testimony upon 
that subject, adduced to them in the trial of the cause. If no such 
testimony be offered, tbe jury are not autiiorized to depart from the 
courses and distances expressed in the conveyances, by making any 

N. a 675; Madden v. Tucker, it Md. 831, 831; WUtridge t. City of 

Me. 367: Abbott v. Abbott, SI Mb. Baltimore, 103 Md. 412, 63 AtL 808. 

S75; TeUietU T. Eetea, GZ He. 56S; «Opdyke v. Stephens, 28 N. J. L. 

WlUUton T. Morse, 10 Met (Mass.) 83, 90, opinion bj Green, C. J. See 

17,27; Brown v. Wilier, *2 Pa St. also Abbott t. Abbott. 61 Ma. 575. 

205. tm, opinion by Thompson, J.; 681; McKer v. Village at Hyde 

Herpel t. Halone, 66 Mich. 199; Park, 134 U. S. 84, 33 L. Ed. 860; 

BaiTTT. Otto, 5S Mo. 177; Turner V. Whitehead v. Ragan, 106 Mo. 231, 

AngM, 145 Mich. 679, 108 N. W. 17 B. W. 307; Roberta v. Preston, 

1100; Sullivan t. Hill, 33 Ky. Law 106 N. C, 411. 10 8. E. 727; Brown 

RW 363. 113 8. W. 66*. Thai v. Morrill. 91 Mich. 29, 51 N. W. 

Thether the bonndary on a river 700; Vanghan r. Knowlton, 112 Cal. 

tiid been changed. Stoner v. Royar, 151, 44 Pac 478; Dice v. McCauley, 

too Mo. 444, 98 9. W. 601. 2o Or. 469, 36 Pac. 530; LeCompte 

• Thomaa v. Godfrey, 3 Gill ft 1. v. Tondouze, 82 Tex. 208, IT S. W. 

(HI) 143; Friend V. Friend, 64 1047. 



jcibyGoQi^lc 



1128 PROVINCE OP COUET AND JURY. 

allowance for variation." * "The identical monument or boundary 
referred to in a deed is always a subject of parol evidence'; and when 
disputed, it is always left to the jury to say which was the aetoal 
monument intended. Thus, there may be two trees of a similar 
species and with similar marks ; two similar stakes not far distant 
from each other, or two rivers of the same name ; and which was 
intended by the deed would be settled by parol evidence, on the 
ground that it is a latent ambiguil?."* 

g 1462. Whether the Coimes and Dlstanceg Carry the Lines to 
a Certain Point. — Thus, in an action at law, where a boundary line 
is in dispute, and the land is described in the deed by which the 
question ia governed, by courses and distances, but no Sxed monu- 
ments or comers are mentioned, the question whether the courses 
and distances carry the lines to certain points claimed, by one of 
the parties, is a queation of fact for the jury, ivhich the judge can- 
not determine by an inBtrueti<»i peremptory in its nature.' 

g 146S. Whether a Grant Includes the PremiBes in Contro- 
versy. — 'Whether land in controversy is included within a particular 
grant, being a question of identity, is necessarily a question of fact 
for a jury.' In an action for damages for the breach of a (>ontract 
to convey land, where it is objected that the instrument sued on 
does not describe the land, the question of the sufficiency of the de- 
scription is for the jury to determine from the evidence, unless it 
is manifest from the instrument that it cannot be located.* So, 
it is the province of a jury to say whether a descriptive warrant has 
been located upon the land called for in it, or not. And whether a 
warrant has been shifted or properly located, is for them to de- 
termine.'" Where it was established, not only as a part of the 

• Wilson r. Inloas, 6 QUI (Md.), This case 1b a rmy apt UlaatratloD 

121, 163; Peterhfn v. Inloes, 4 Md. of tb« rule. 

17G. Wbere the evidence showed a *Opdyke v. Stephens, 28 N. 3. h. 

changing variation, hack and forth, S4. 

In the magnetic needle. It was lett » Ferrla v. Coover, 10 CaL G30, 

to the jnry to say at what varta- 6S2; Baynard v. Eddlngs, 2 

Won the line should he run to con- Strobb. Law (N. C), 374; Barry v. 

form to the survey applicable to Otto, E6 Mo. 177; Holland r. 

the deed. Battles v. Bamett (Tex. Thompson, 12 Tex. Civ. App. 471, 

Civ. App.), 100 S. W. 817 (not re- 35 S. W. 19. 

ported In slate reports.) • White V. Hermann, 51 III. 243. 

« Claremont v. Carlton, 2 N. H. lo Casaldy v. Conway, 25 Pa. St 

369. 373, opinion by Woodbury, J. 240. 244. 



7crib;G00<^IC 



PI^CB: L00ALIT7: BOUNDARY, ETC. 1129 

history of the country, but by evidence in a particular case, that 
many of the documents, relating to an impresario contract between 
tbe Mexican Qovemment and Martin de Leon, had been destroyed 
dTirii^ the Texas revolution, it waa beld that it was properly left 
to the jury to say whether the land in controversy was in this 
tr«4t» 

S 1466. What Bloiiimients Satisfy the Calls of a Deed— Where 
a deed calls for a partieolar object, and there is evidence as to the 
actual location of the object, it is the province of the jury to find 
vhere its location was.** Thus, where a survey called for two small 
treei of a certain kind, as a monument at the comer of the tract 
of land surveyed, and two small trees of the kind thus called for 
were found in the neighborhood, it was proper to refuse an in- 
Gtmetion to the jury to disregard them, on the theory that it was 
doubtful whether they were the trees called for. The questicm was 
one of fact for the exclusive determination of tlie jury.'* 

S 1467. No Presimiption of Law in snch a Case. — The identity 
of a particular monument as the one called for in a deed, involves 
a question of fact, and there is no presumption of law in snch a 
ease. Accordingly, it has been held proper to refuse the following 
instruction: "If they [the jury] found that there was an old stake 
standing at the end of the one hundred and fifty-six rods, the dis- 
tance named in the deed, bearing upon it surveyor's marks, and 
other indications of the character of the monument named in the 
deed, in the absence of all proof to the contrary, the presumption' 
would be that it was the stake referred to in the deed." The court 
■ays: "There was no presumption of law in the case. The various 
facts bearing upon the stake, tending to show the same to be the 
monument, were proper for the consideration of the jury; but the 

u Wlilte V. Bnrnle?, 20 How. (TT. biguitr In the fl«ld notes tbls 

8.) 135, 247. makes ailmlsslble parol evidence. 

uHawUns V. Nye, 59 Tex. 98; Warner v. Sapp (Tex. Civ. App,), 

SUob T. Hampton, 117 Tenn. 70S, 97 9. W. 1S6 (not reported In state 

101 a w. 776; Stryker v. Meagher, reports.) Where In the chain of 

7e Neb. 610, 107 N. W. 792. tlUe ope deed described the bound- 

"Ajers V. Watson, 113 U. S. 594, ary ss a creek and another a river, 

COS; Peabody v. Dewey, 153 111. 637, parol evidence as to the Identity 

n K. E. 977, 27 L. R. A. 322; Buck- of the two waa held admissible, 

ner v. Anderaon, 111 N. C. E72, 18 Sanscrainte v. Toronso, 87 Mich. 

S, E. 424. If there Is a latent am- 59. 49 K.W. 407. 



7crib;G00<^IC 



H30 PEOVIKCB OF COURT! AND JUBY. 

conrt could not, as requested, have given the iuatniction that there 
was any presumption of law binding on them. The evidence nas 
entirely for the consideration of the juiy.'*** 

3 1468. Whether a particular Uonnment was tntended to be 
Adopted by a Deed. — Closely allied to the forgoing is a rule which 
80 far lets in parol evidence to explain a deed, as to show that a 
particular monument, not called for in the deed by name, was in- 
tended to be adopted by it. This rule has been declared with ref- 
erence to public patents or grants.^' And, though it has been con- 
jectured that it may extend, ex necessitate, to old deeds, yet it has 
been doubted whether it extends to private deeds; and, as it is a 
violation of principle, it has been said that it ought not to be ex- 
tended." The rule has been thus stated: "Where it can be proved 
that there was a line actually run by the surveyor, which was 
marked and a comer made, the party claiming under the patent or 
deed shall bold accordingly, notwithstandii^ a mistaken description 
of the land in the patent or deed," " "This rule," said the same 
court in a subsequent case, "presupposes that the patent or deed 
ia made in pursuance of the survey, and that the line was marked, 
and that the comer that was made in making the surv^, was adopted 
and acted upon in making the patent or deed ; and, therefore, per- 
mits such line and comer to control the patent or deed, although 
they are not called for, and do not make a part of it. Parol evi- 
dence being thtis let in for the purpose of controlling the patent or 
deed, by establishing a line and corner not called for, as a matter 
of course, it is also let in for the purpose of showing that such line 
and comer were not adopted and acted on in the making of the 
patent or deed ; because the rule presupposes this to be the fact." " 
It necessarily follows that, whether the line or comer was adopted 
or acted upon in making the deed, is a question of fact for a jnry.** 

i«RoblDBon V. White. 42 Me. 209, iBCherrr v. Slade, 8 Hurph. (N. 

216. Wbere a long time has C.) 82. 

elapsed since the survey, the ques- "Safret v. Hartman, B Jones L. 

tlon of location waa le!t to the {N. C.) 18E. 

Jury, where running one line ac- it Cherry v. Slade, S Murph. (N. 

cording to supposed calls makes It C.) 82, 86; Anderson v. Richard- 

too long for the quantity of land son, 92 Cal. 623, 28 Pac. 679. 

intended to be embraced and fol- >* Safret t. Hartman, S Jones 

lowing other supposed calls makes Law (N. C), 18G, 1S9. 

another line too short. Ayers v. i* Ibid. 
Watson, 137 U. S. ES4, 34 L. Ed. 
803. 



ovGoo<^lc 



PLACE: LOCAUTT: BOCNDABT, ETa 1131 

S 1469. Calls of a Surrey. — "When the calls of a aorvey are all 
ascertained by the grant, and there is no necessity for reference to 
external evidence to ascertain op identify them, their construction 
IB a matter of law, and heloi^ exclusively to the court; but when 
parol evidence is introduced to ascertain or identify the calls, then 
it is a question of law and fact, the jury finding the fact, the court 
declaring the law."*" "In cases of boundary, which depend upon 
the swearing of witnesses, it would, no doubt, be incompetent for 
the court, by any sort of instructions that might be given, to with- 
draw trom the jury a decision upon the weight of the testimony, 
and the facts which the testimony conduces to establish. The actual 
position and identity of the boundary, in such a case, would be 
exclusively a question of fad for the consideration and determina- 
tion of the jury, and not the court."" "Where contradictory 
evidence is given of the location of a survey, or where, from the 
evidence, the true location is doubtful and uncertain, it most be 
referred to the jury to determine the land included in the survey ; 
but where there is no conflict in the evidence, and no room for 
doubt or hesitation in regard to the location, there is nothing to 
leave to the jury, and the questions of law are for the court." " 

§ 1470. [nitutration.] OoncliuiTeness of Marked Comers and 
Lines in a Surrey. — ^Where the closing line of a survey, starting 
from an admitted comer, did not, as marked on the ground, reach 
the boundary of the tract which it was intended to enclose, and 
there were no indications of a comer on the ground at that point, 
where it would intersect said boundary if extended ; but there was, 
near that point, a "marked comer" which could be reached by 
divei^:ing by an angle of 45 degrees from the extremity of the 

MOtt V. Sonl&rd, 9 Mo. GSl, 61M. 18G Kbm. 174, 69 N. B. 1083; Flncli 

iiCockrell v. HcQnlnii, 4 T. B. v. (ted«n, 17E Fed. 20. 

Hon. (Ey.) 63, opinion by Owsley. taRamage v. Peterman, 25 Pa. 

J. It Ifl said that, while ordinarily BL 349, opinion by Knox, 3. A 

the location of a disputed patent la processioning may be disputed by 

lOr the Jury, yet If the enforcement evidence, that the processloners 

of certain principles of law leaves did not proceed correctly. Catoosa 

no qaestlon about which contra- Springs Co. r. Webb, 123 Ga. 33, 

rtety of opinion conld reasonably 60 S. B. 942. And whether wit 

exist, the court will enforce them nessea making survey started from 

by a peremptory Instruction. Kerr right corners and correctly meaa- 

Y. De Laney, 28 Ky. Law Rep. 1140, ured Intervening street lines and 

n & W. 286; QravM v. Broughton, lots. Qreen v. WlUlami, 144 N. a 
60, 66 S. E. 649. 



7crib;G00<^IC 



1132 



PBOVINCX OP OOUHT AND JUBT. 



marked line, — it was held a question of fact for a jary, in an action 
of ejectment, whether the "marked comer" was or was not the 
original corner, and if so, whether the partial line on the groand 
had not been abandoned by the Borreyor and another one adopted, 
closing the survey by a straight line, running from the admitted 
comer to the marked comer,** 

S 1471. Indefinite or Insufficleiit Calls in a Deed.— Where the 
calls in a deed are so indefinite that the court cannot pronounce 
their meaning, the question what land was intended by the parties 
to be embraced in the deed, is a question depending both on law and 
fact, which should be submitted to a jury under the direction of 
the court as to such rules of construction as may be found ap- 
plicable.** 

S 1472. Olnstration of Foregoinff. — It was so held where land 
was described in different deeds as bounded "on the mountain," 
"by the mountain," and "at the foot of the mountain."" So, 
where a testator, in devising land, laid down as a line of division, 
"a post" and "a comer," and there were two such posts, and the 
language of the will pointed neither to the exclusion of the other. 



M Hunt T. HcFarland, 88 PL St 
89. 

HWIIIlston V. Morse, 10 Mete 
(MasB.) 17, 26; Murror t. Spencer, 
88 N. C 367; Cockrall ▼. Esser 
(Tex. CIt. App.), 99 S- W. BG8 (not 
reported In state reports.) It de- 
scription, read llterallr. would not 
close, and monuments, distances 
and courses are referred to, and 
tbe reverBlng ot these would en- 
able the land to be located, this 
presents a Question for tLe Jury- 
Calatro t. Chabut, 72 N. J. L. 4&S, 
63 AU. 272. Where the boundary 
calle majr be satlsfled b7 either ot 
two lines, the Jury must decide the 
one to be adopted. Cole v. Mnel- 
ler, 1S7 Mo. 638, SS 8. W. 193. If 
there Is conflict In the calls. It Is 
error for the court to give an In- 
struction embodying rules as to 
the relative dignity of calls, as tbla 



would be upon the weight of evi- 
dence. Huff V. Crawford, 89 Tex. 
214. 34 S. W. 896. Irreconcilable 
descriptions permit evidence ot the 
Intention of parties. Hornet v. 
Dumbach, 39 lud. App. 482, 78 N. 
K 691. 

»Wllllston V. Morse. 10 Met. 
(Mass.) 17, 26. And where the de- 
scription read "beginning at a pine 
on the east side of Oum Swamp," 
Bradwell v. Morgan, 142 N. C. 75, 
66 S, S. 340. A call for 'XIatakin 
Creek" as a bonndarr, where there 
Is evidence tending to show "Cat- 
ekln Swamp" is meant, carries the 
question to the Jury and along with 
It the question whether the call 
extends to the edge of the swamp 
or the run. Howe v. Cape Pear 
Lumber Co., 138 N. C. 46S, GO S. EL 
848. 



D.qitizeabyG00<^lc 



Eii&CE: liOCAUTY: BOUNDABT, ETC. 1133 

tboagh external cireumstanees might do so, — it was held that the 
question as to whieh of the posts was intended was a question of 
fact, which did not depend in any degree upon direction in matter 
of law. "Here," said Qibeon, C. J,, "there was no disagreement, — 
the name and the description answering in the same degree to each 
of the comer posts, so that nothing was to he determined but a pure 
question of fact." " So, where a deed called for "an old line down 
a bottom to a given point," and there was no evidence as to the old 
line, but there was conflicting evidence as to two bottoms, extending 
from the point reached to the one aimed at, — ^it was held proper 
for the judge to submit to the jury the question which of the two 
bottoms was the one called for.** So, where a lease described the 
demised premises as the lessor's "coal bank and the appurtenances 
thereunto belonging," and did not otherwise describe them, it was 
held, in an action for the rent, in which eviction was set up as a 
defense, that it was for the jary, and not for the court, to say what 
was the extent of the demised premises, — ^it being rather a latent 
ambieruity to be solved, than an instroment of writing to be eon- 
stroed. "Themeaningof the words used," said the conrt, "is plain 
enough ; but the extent and scope of their operation are where the 
ambiguity lurks. "Words enough were not put into the instrument 
to define the boondaries of the grant, and therefore it was for the 
jury to define them from evidence dehors the instrument."** So, 
in an early case in California it was held that, where the boundaries 
of a lot of land granted by an alcalde in Mexican times were un- 
certain, the true locatiwi of the tot was a question of fact within the 
peculiar province of a jury.** So, it has been held in Pennsylvania 
that, where it is uncertain from the language employed in a sheriff's 
retnrD, what land was in fact sold, the question may, in an action 
of ejectment, be submitted to the jury. The court said : "The eon- 
■traction of written instruments is undoubtedly the exclusive 
province of the court, and the giiantum of estate conveyed by a deed 
is referable to the judges alone. But where that estate is situate, 
what are its limits and contents, must frequently depend upon 
evidence dehors the writing; and thus it is often a pure question of 
fact, or of law and fact compounded, upmi which a jury must be 
called to pass. This is peculiarly true of loose written returns of 

MBrownfleld v. BrownOeld, 1^ >» Tiller ▼• Moyera, 43 Pa. St. 

Pa. at 13S. 144. 404. 411, opinion b7 Woodward, J. 

MHIll T. Mason, 7 Jones U (N. m Reynolds v. West, 1 Cat. 323. 

C.) 561. ISS. 



D.qitizeabyG00<^lc 



1134 PEOVINCB OF COURT AND JUBT. 

-writs of execution, which i^orance and caretessneBS combine to 
divest of every feature approaching to certainty. With ns, inac- 
curacy of description in these inceptions of title is so often indulged, 
that it has been found necessary to make a liberal use of assisting 
evidence, documentary and oral, in correcting mistakes, explaining 
ambiguities, and applying indeterminate delineations to disputed 
localities. Where a return is intelligible in itself, and ascertains 
with reasonable precision the particular tract taken in ezecuticoi, 
no room is afforded for the introduction of explanatory proof, and 
none will be received in contradiction of the official act. But 
where, either from the generality of the terms used, uncertainty of 
delineation, or seeming contradiction of description, a doubt is 
raised aifecting the boundaries of the levy, its particular locality 
or extent, recourse is necessarily had to evidence aliunde. In many, 
perhaps most of these instances, the difficulty proceeds from wide 
generalities of language, which fail to indicate any precise locality, 
though it also frequently springs from inability to fix a described 
line of division or boundary, without invoking the local knowledge 
of those acquainted with the subject of dispute. 'Where this hap- 
pens, while the right of construing the written return must be ccm- 
ceded to the court, the position and limits of the land and the quan- 
tity intended to be sold, become a legitimate object of investigation 
for a jury, A judge who evades to declare the meaning of a deed 
or other writing comnute an error; but if the instrument cannot 
be understood without reference to extraneous facts, the jury must 
judge of the whole." •" Where a sherifE advertised "all that tract 
of land and premises on which said William Todd now lives, sit^ 
uate," etc., "and containing two hundred acres, more or less," and 
made a sale, in pursuance of this advertisement, which was followed 
by his deed to the purchaser, upon a subsequent c<Hitrover^ as to 
whether a certain twenty-nine acres of land passed by the sale, the 
question was held to be a (Question of fact for the jury, and it was 
held that the court erred in directing a verdict for the defendant.^' 

§ 1473. Parol Evidence Admtesible in such a Case. — From what 
has preceded it will follow that, in order to enable the jury to dis- 
charge the office of applying the descriptive words of a deed to the 

»i> KoOman v. Daoner, 14 Pa. St, »i Todd t. Phllhower, 24 N. J. L. 
25, 2S, opinion by Bell, J. See 797, S07. 
ante. } 1083. 



D.qitizeabyG00<^lc 



PtACB: LOCAIJTT: BOUNDART, ETC. 1135 

land, parol evidence must frequently be heard." Such evidence, it 
hu been said, is always admissible.*^ 

§ 1474. Verdict of Jmy of Vicinage entitled to Great Weight. — 
It has been said, in an action for damages for cutting a ditch and 
making a l«vy, whereby water has been dive^rted from its previous 
channel and east upon the land of the plaintiff, that "the relative 
situation of the lands of the plaintiff and defendants, and the natural 
drainage of the soil, are matters peculiarly within the cog-nizance 
of a jury of the vicinage; and their verdict upon a subject so gen- 
erally interesting to the inhabitants of an alluvial region, is of the 
highest authority with us. " ** 

- % 1475. Identity of Land and Whether Assessed or Unseated. — 
Where, in an action of ejectmrat by one claiming under a treasurer's 
tax deed, there is a question about the validity of the deed, because 
of a doubt in regard to the identity of the land described in the writ 
and that set out in the deed, or because it is uncertain whether the 
land was really assessed as unseated, or whether it was in fact un- 
seated, — ^these questions, it has been held, are for the jury and not 
for the court; and this is so, although the defendant is a mere in- 
truder, not having even color of title. The reason is that the treas- 
urer's deed is good for nothing unless it is made to appear that the 
land tiierein described was assessed and taxed as unseated, and it is 
too clear for dispute that a question of identity of land is a question 
for the jury." 

HNaglee t. Inseraoll, 7 Pa. St. one Intended. Parker t. Smltb, IT 

1S3, 19S. Maes. 413; Clark v. Munyan, S3 

uAbbott V. Abbott, 51 Me. 576, Pick. (MasB.) 410; Slater t. Raw- 

581. Upon tlie admlaslbllltr of eon, 1 Met. (Mass.) 450." Tbat 

I>arol evidence, the court cited tbe acta and dec'iratlons of tbe 

Waterman v. Johnson, 13 Pick, grantor are Important In determln- 

(Mass.) 261; Wing v. BurglB, 13 Ing the Question of bonndarr, see 

Me. 111. "It lometlmes happens," Patten v. Ooldsborough, 9 Serg. A 

says Davis, J., In tbla last case, R. (Pa.) 47. That subsequent oc- 

'Hhat tbe monument found npon cupatlon by the parties 1b gener- 

tbe gronnd corresponds with the ally declBlve, see Stone v. Clark, 

description of the monument In the 1 Hot. (Mass.) 3TS; Newmelster v. 

deed in some particulars, and dlf- Qoddard, 125 Wis. 82, 103 N. W. 

fera from it In others. In such 241. 

case the whole description In tlie »W1IIlamH v. Bridge, 14 La. 

deed Is not to ba rejected, and pa- Ann. 721, opinion by Buchanan, J. 

rol evidence is admissible to show w Miller v. McCullougb, 104 Pa. 

whether the monument, partially St 624, 629, 
tiot erroneously described, was the 



D.qitizeabyG00<^lc 



1136 PBOVINCB OP COUBT AND JUBT. 

I 1476. Qneitioiu of Locality, Diitance, «tc., for the Jvrj.— 
The general role, then, ia that qnestions of locality, boundary, dis- 
tance, direetitm, identify of land are questions of fact, «id not of 
Uw. 

S 1477. [nitutntion.] Appnrtenuices.— Thos, it has heeo held, 
under circumstances which need not be set out, that the question 
whether lots of ground are appurtenant to a railway, and indis- 
pensably neceasary to the enjoyment by the railway company of its 
franchises, and, as such, included in a mortgage of the railway prop- 
erty, is a question which may properly be submitted to a jury.** 
So, under an indictment founded on a statute for selling liquor to 
be drank in the defendant's outhouse, yard, garden and appurte- 
■nonces thereto belonging, it has been held a question of fact, for the 
jury to detennine, whether the liquor was drunk upon the ap- 
purtenances of the premises of tho defendant.** 

S 1478. [Continued.] Curtilage.— So, it has been held, in a 
criminal prosecution for burning a bam, charged to be within the 
curtilage of a dwelling house, that the question whether the bam 
was within the curtilage of the dwelling house, as allied in the 
indictment, was a question for the jury upon the evidence, the court 
defining to them the meaning of the word "cartilage."** 

MSbamokln etc. R. Co. r. Urer- (Mass.) «0. The court deOned 
more, 47 Pa. St. 469. The court ' curtilage. Id law, as meanInK a 
commeiit upon tbe following cases, fence or enclomre of a email piece 
touching tbfl qnestlon what prop- of land around a dwelling house, 
ertr Is appurtenant to the property nsuallr Including the buildings oe- 
ot a ratlwa; company or other cor- cupled In connection with the 
poratlon: Lehigh Coal etc. Co. t. bouse, which enclosure may con- 
Northampton County, S Watts Jb S. alat wholly or a fence, or partly ot 
(Pa.) 334; Railroad v. Berks a fence and partly ot the exterior 
County, 6 Pa. St. 70; Wayne aide of buildings bo within the en- 
County T. Delaware etc R. Co., 16 closure. Ibid. So aa to burglary. 
Pa. St. 351; New Tork etc. R. Co. Walt r. St.. 99 Ala. 164, 13 South. 
T. Sabtn, 28 Pa. 9L 242; West- ES4; People v. Aften, 86 Mich. 393, 
cheater Qaa Co. v. County of Cbes- 49 N. W. 148. IF tbe lacts are nn- 
ter, 30 Pa. St. 232; Ammarat t. disputed, tbe court will generally 
Turnpike, 13 Serg. ft R. (Pa.) 210; Bay whether an outhouse la within 
Canal Co. v. Bonbam, 9 Watts ft S. the "curtilage." White v. Com.. 
(Pa.) B7. 88 Ky. 349, 11 S. W. 209; St. v. 

*T Stout T. St., 93 Ind. 150. Johnson, 45 S. C 183, 23 S.- E. 619. 

••Com. T. Barney, 10 Cuab. 



D.qitizeabyG00<^lc 



FI^CB: LOCAUTT; BOUNDARY, ETC. 1137 

§ 1479. Whether the Place of Entrjr was s part of the House.— 
Id cases of kovse-breakivg, which are analogous to- burglaries at 
commoD law, the question whether the place of ingress where thi) 
breaking took place was a part of the house which id.iiharged to 
have beea broken into, has been held, upon doubtful gi^iunds, a 
gvestion of law for the court, and not a question of fact for the jury. 
Thus, where the evidence showed that the defendant entei^ed the 
store-house, by removing a grate on the street which gave hiifl en- 
trance into the cellar thereunder, which connected with the store- 
house through a hatchway, and the court instructed the jury that, 
if they beUeved from the evidence that the grating removed by the 
accused was not a part of the store-house, they should acquit,~it' 
was held that the question was one of law; but, as the jury decided 
it rightly, by convicting the defendant, the judgment was ordered 
to stand." 

§ 1480. Boundaries of Places. — ^In New Hampshire it is laid 
down that the court cannot determine what are the limits, or whether 
there are any limits, of a place, not being a public corporation, 
described by its name only. "The court," aaid Bell, J., "are in 
no situation to decide that Fisherville is not a good and sufficient de- 
scription of a place in Concord and Boscawen, as alleged. Whether 
there is a place called by that name, where it is situated, what are 
its limits, if it has any, are matters of fact, to be determined by a 
jury upon such evidence aa the parties may lay before them. It is 
in no sense a matter of law, of which a court can take judicial cog- 
nizance. "What is included in a name descriptive of a place, not 
being a public corporation, is always matter- for a jury."*" 

§ 1481. Boundaries of Counties.— The boundaries of counties, 
established by public law, are to be determined as mailer of law by 
the court, unless in cases where the meaning of the fitatute is un- 
certain, in which cases, it has been held, the courts will not disturb 
a boundary fixed by common vaage and acquiescence. But where 
the boundary is not uncertain, the fact that particular land has 
been for twenty-eight years assessed in the wrong county, will not 
be sufficient to authorize a court to allow a jury to say that the land 
Ues within such county. The court must decide it as a matter of 
law." But in a later case in the same court, it was said: "The 

M Com. T. Bruce. 79 Ky. S60. <> Johns v. Davidson, 16 Pa. St 

MBlandlng v. Sargent, 33 N. H. 618. 
139, 24G. 

TK1A1.B — 72 



;abyG00<^lc 



1138 FBOylNOB OP OOUBT AMD JDBT. 

definition of c^finBiXj lines is, of course, matter of public law, and, 
as such, Drast'4)^''-iDterpreted by the court; but tlie jury alime can 
find the fatetK that give it a practical applicatioo, in actions of 
ejectment^'fQMhe trial of private rights." "When, therefore, in an 
actitm of .'ejectment, one of the parties claimed title to the land 
thropgb 'd 'judicial sale, the validity of which depended npon the 
qnesUba of fact whether the land lay in <Hie county m in another, 
itj>'^^f» beld that the court committed no error, after defining the 
^iraty line as established by statute, in leaving the qaestion in 
..colitrovetsy to the jury upon all the evidence.** It is added that, 
_ '-|n such a case, where the meaning of the law which fixed the line 
-. 'was long in doubt, the court was not bound to give it an interpre- 
tation derived from its language alone, withont reference to the 
actoal interpretation which it had received through the acquiescence 
of the public during three quarters of a century. "Long established 
public regulations," said the court, "ought not to be disturbed by 
the lexical or philological criticisms of original principles. The 
county line ought to be recognized as being where it was generally 
understood to be, and not where we would now place it, if we bad 
now to apply the law for the first time. We can best ascertain 
where the true line was, by looking to the public practice relative 
to it, in connection with the levying of taxes, selecting jnrors, serv- 
ing process by the sheriffs and etmstables, electitms, offidal surveys 
and such like matters. More of such evidence would have been 
better here."" 

S 1482. Boundary of a State. — ^In a case m the Supreme Court 
of the United States, it was said by Mr. Justice NeUon, in giving 
the opinion of the court : ' ' The boundary of a State, when a matfliial 
fact in the determination of the extent cf the jurisdiction of a 
court, is not a simple question of law. The description of a boun- 
dary may be a matter of construction, which belongs to the court; 
but the application of the evidence in the ascertainment of it, as 
thus described and interpreted, with a view to its location and set- 
tlement, belongs to iho jury. AH the testimony bearing npon tiiia 
question, whether of maps, surveys, practical location and the like, 
should be submitted to them under proper instructions to find the 
fact"** 

" Hacker v. SterllQg. 86 Pa. St «* U. 8. v. Jackalow, 1 Black (U. 

433, 4SS. S.), 484, 487. 

*■ Ibid., optniOD b7 Lowrle, C. J. 



D.qitizeabyG00<^lc 



CHAPTER L, 

NOTItJB: 
Sbctioit 

1487. Dlfltlnctlon between Actual anS "ConstrnctlTe Notice. 

1488. Actual Notice in Lieu of Registration. 

1489. Subsequent PurchaBer with Notice. 

1490. Notice of Non-Llablllt7 for Negligence. 

1491. Notice on Paasage Tlclteta as to Limit of Baggage. 

1492. Notice to Qneet of Ueage of Leaving Uonej or Valuables at the 

Bar. 
1193. Instruction aa to Scienter In the Owner of a Vicious Dog from a 
Previous Bite. 

1494. Llabllit7 of Partner Retiring without Notice of DisBolutlon. 

1496. Rule applies only In Favor of Peraons who have had Previous 

Dealings with the Firm. 

1495. But Retiring Partner may become Liable to Strangers by a "Hold- 

ing ouL" 

1497. Rule does not apply as against Dormant Partners. 

149S. Rule docs not apply to a Partnership Trading under a Corporate 
Name. 

1499. Rule Rests only on the Principle of Estoppel. 

1500. Kind of Notice Required: Actual Notice to Previoua Customers. 

1501. Reasonable Notice by Publication to the Public generally. 

1502. Not a Question of Actual Notice, but question of Diligence In giv- 

ing Notice. 

1503. General Notoriety. 

g 1487. Distinction between Actual and Constructive Notice. 
Actual notice is notice in fact; constructive notice ia notice in hw. 
Actual notice is purely a fact, and is proved aa a fact and found 
as s fact by a jury.' Constructive notice is the notice which the 

I Muljrow V. Robinson, 5S Mo. quired notice from an interview 

332, 350: Beatie v. Butler, Si Mo. which occurred between blm and 

313, 323; Vaughn v. Tracy. 22 Mo. tbe debtor, that the account had 

415; Eyerman v. Second National been transferred to a third person. 

Bank, 13 Mo. App. 2S9, alQrmed. S4 In such case, to have given an In- 

Mo. 408; Hill v. Tissier, 15 Mo. strnctlon which was requested, to 

App. 299; Masterson v. West End the effect that what occurred be- 

Xarrow Gauge R. Co., 6 Mo. App. tween the parties to the account 

64. It was so held, where the did not amount to notice, would 

question was whether the [larty have been an invasion of the prov- 

llable to pay an account had ac- Ince of the Jury. Saltmarsh v. 



1140 



PBOVIMOB 07 OaUSrt AND JUBY. 



law ecmcInaiTely aacribes to certain kinds of pnblicationa, sael) as 
the recording of a deed in the recording oflBce, or the pablieation 
of a legal notice to s non-resident or unknown party. Prom this 
it follows that actual notice is alwa^ a queition of fact for a jury, 
and that constructive notice, npoQ the fact of the statutory pab- 
lieation being found or established, is always a question of law for 
the coort. The only ezceptini to this rule which is recalled, ariaea 
in eases governed by the law merchant, and has been already cod- 
sidered.* It is said: "Actual notice does not require positive and 
certain knowledge, such as seeii^ the deed ; but that is sofficieut 
notice, if it be sneh as men nsoally act npon in the ordinaiy affain 
of life. When it is shown that purchasers are affected with a knowU 
edge of anch circumstances, then the foundation is laid fnHU which 
the inference of actnal notice may be drawn."* 



Bower, 22 Ala. S21, 232. The mle 
that notice of dishonor. It depos- 
ited at the proper time In the 
proper oflloe with the proper direc- 
tion, 1b conclaBlvelr preanmed to 
have reached the indorier, has 
been held to apply only to caaea 
governed by the law merchant; 
and it haa been held that. In other 
' cases, the qneBtlm of the snlB- 
dency ol the notice Is one of fact 
for « Jury. Therefore, It has been 
held that the anflicieiicy of a no- 
tice, Blven by the vendee of a diat- 
tel to the vendor, of the vendee's re- 
jection of the chattel because of do- 
fects In it, cannot be decided as 
matter of lav, although the notice 
may have been written, addressed 
and mailed under such clrmm- 
stancei as. In a case within the law 
merchant, would make a good no- 
tice to an Indorser as a mere con- 
clusion of law. Walworth v. Sea- 
ver, 30 Vt 728. Dental of knowl- 
edge li not conclusive In favor of a 
party making such denial. State 
Bank v. Hammond, 104 Mo. App. 
408, 79 8. W. as. Where one tes- 
Ufles he mailed to plaintiff at his 
bnslnen address a notice. In letter 



properly sealed, addressed and 
stamped, the denial of receipt by 
plaintiff, ralsei question for the 
Jury. Llehe T. Bellman Hach. 
Works, 38 Ind. App. S7, 77 N. B. 
300. Dvldence of general repatsr 
tlon of a fact tn the community is 
competent, as tending to show 
knowledge amounting to notice. 
Bush A Hattaway v. W. A. Mc- 
carty Co., 127 Oa. SOS, 56 S. B. 430. 
Whether the duties of a certain 
officer gave him authority to re- 
ceive a certain notice may some- 
times be a question for the Jury. 
Bee Edwards v. Sun Ina. Co., 101 
Mo. App. 45, 73 B. W. 8S6. 

■ AnU, t 1223, et saq. 

■ Ibid.; citing Cnrtls v. Muudy, S 
Met. (Mass.) 406. See also Pom- 
eroy v. Stephens, 11 Met. (Mass.) 
244; Spofford v. Weston, 29 Me. 140; 
Dey V. Danham, 2 Johns. (N. T.) 
182; JoIIand v. Stalnbrldge, 3 Ves. 
478; Wade, Notice, passim; Speck 
V. Rlggln, 40 Mo. 405; Haddoz v. 
Reynolds, 72 Ark. 440, 81 a W. 603; 
Kngel V. Knackles, 96 Mo. App. 670, 
69 S. W. &9G. It la a qnestton of law, 
whether actual knowledge oC a 
given fact is Bufflctent la its tsnd- 



Coo»^lc 



1141 



% 14SS. Actual Notice In Xien of B«glrtratioD. — Actaal notice 
of an assignment preferring other creditore, is equivalent to regis- 
tration-, and whether the particular creditor or his attorney had 
mch actual notice ia a question of fact for a jury in all cases.* 

S 1489. Subsequent Pnrchuer with Notice. — ^Whether or not 
the possession of a purchaser of real property, Trhose title is not 
recorded, is of such a character as to affect a subseqaent porchafier 
with notice, is a question of fact for a joiy.* So, in Penn^lvania, 
it was held that, whether or not a purchaser at sheriff's sale had 
actual notice of an unrecorded assignment of eontracta relating to 
the land purchased, was a question of fact for a jury.* 

$ 1490. Kotice of Non-liability for Negligence.— Where a per- 
son or corporation, exercising a public emplojoneat, gives receipts 
erty of the grantor, tbe premises 
covered by the deed, had at the 
time actual notice of the existence 
of such a deed hy ahowlDg th&t 
such person was bo told some years 
before the date of attachment and 
at a time when he had no Interest 
In a knowledge of the fact nor any 
motive for remembering It. Parker 
V. Freacott, 8S Me. 241, 29 Atl. 
1007. 

> Ponton V. Ballard. S4 Tex. 619; 
Derrott v. Britten, 35 Te«. Civ. 
App. 4S5. 80 8. W. 5G2: Blair v. 
Whltaker, 31 Ind. App. 664, 69 N. 
E. 182; Plerson v. Philadelphia, M. 
ft T. Co., 33 Wash. 464. 74 Pac. 585. 
It the poHsesBlon Is open, notorious 
and exclusive, the law draws the 
conclusion of notice of whatever, 
title one In possession may have. 
Barlow V. Cooper, 109 111. App. 375; 
Myers v. Scbuchman, 182 Mo. 159. 
81 S. W. 618. This prlncTpie wss 
held to apply to a wife's title under 
a parol gift, her husband living 
with her on the land, but making 
no claim thereto. Walker v. Neit, 
117 Ga. 733, 4E S. E. 357. 

■ Rhinea r. Balrd, 41 Pa. St 25S, 
2G4. 



ancy to show a connection between 
the known fact and that with 
which one Is sought to be charged 
with notice, that Is whether the 
former may be submitted to the 
Jury as tending to furnish a rea- 
sonable and natural clue of the 
latter. Johnson v. Brlandson, 14 
N. D. 61S, 105 N. W. 722. Other- 
wlae stated, tbe court may decide 
whether evidence of the former 
fact la admissible. See Edwards v. 
Carondelet HlDtng Co., 103 Mo. 
App. 275, 83 8. W. 764. The dis- 
tinction between actual and con- 
structive notice ia well illustrated 
in a case where an unrecorded con- 
veyance la filed among the papers 
la a suit, no constructive notice 
thna arising. Ward v. League 
(Tex. Civ. App.), 24 8. W. 986 
(not reported in state reports.) 
And to give notice of a claim to 
premtoes under a written Instru- 
ment does not, as matter of law, 
give notice of all It contains. 
Dickey V. Henarle, 16 Or. 361, 16 
Pac. 464. 

• Tan Hook t. Walton, 28 Tax. 
59. Bat a grantee In an unre- 
corded deed does not prove, that a 
person who attached, as the pro^ 



ovGoo<^lc 



1142 



PBOTINOB OP COUBT AND JUEY, 



to its costomers npon which is printed a Dotice that such person or 
corporatiOD will not be liable for the negligence of ila employes in 
the exercise of their employment, it is held a question for a jury, 
in an action for damages for such negligence, whether the reaeipt 
was a part of the contract between the parties, and it is not to be 
decided as a question of law.^ It was so decided in the following 
case: the master of a steam tug, of which the defendants were 
owners, was employed by the plaintiCF to tow his fishing smack out of 
a harbor. In so doing, the fishing smack was stranded through the 
alleged negligence of the master. The plaintiff had, on previous 
occasions, hired the defendant's steam tug to tow his smack, and, 
on paying the charge, had received receipts, on the back of which 
was printed a notice that the defendants would not be answerable 
for damages occasioned by any supposed negligence of their serv- 
ants. It was held that it was a question for tlie jury whether the 
contract in the particular case was made on the terms printed on 
the back of the receipts.* 

§ 1491. Notice on Passage Tickets as to Limit of B&ggage. — 
So, it has been held that a notice, printed on the back of a passage 
ticket of a railway company, that the company would not be liable 



I Symoada v. Palo, 6 Hurl, ft N. 
709; Brown v. Eastern R. Co., 11 
Cush. (Mas8.) 97. This question Is 
more usually stated In later an- 
thorlty, as being wbether or not 
the shipper gives bis assent and 
whether he does or not la a Jury 
quoBtlon, aesent being limited to 
yielding to sucb a requirement or 
stipulation as It Is lawful for a 
carrier to exact. If such a stipu- 
lation la contained In a bill of 
lading the burden la ordinarily on 
the carrier to show assent. Wabash 
R. Co. V. Thomas. 222 111. 337. 78 
N. B. 777, 7 L. R. A. (N. S.) 1041. 
And that It was voluntary. Hayes 
V. Adams Exp. Co., 74 N. J. L. 537, 
65 Atl. 1044. ir the question de- 
pends upon express assent, evidence 
as to carelessness In falling to reail 
a bill ol lading la fmmaiertal. 
Baltimore 4 0, R. Co. v. Doyle, 142 
Fed. 6G9. A stipulation on the 



back of a telegraph blank Imports 
no notice whatever. Walker v. 
Western U. T. Co., 76 8. C. 97, 55 
8. E. 129. But see ae contra West- 
ern U. T. Co. V. Prevatt, 149 Ala. 
617, 43 South. 106. A bill of ladlns 
or receipt for freight la different 
from a written contract which a 
shipper slgna; as to the latter the 
rule Is the game aa In signing other 
papers carelessly without reading 
same, at leaat as to those things as 
to which a carrier has the rigbt to 
limit lU liability. Houston ft T. C 
R. Co. V. Smith, 44 Tex. CIv. App. 
299, 97 S. W. 836; SL LoulB ft S. F. 
R, Co. T. Pearce (Ark.), 101 S. W. 
760; Central of Ga. Ry. Co. r. City 
Mills Co.. 12S Qa. S41. 58 S. E. 197; 
Johnstone v. Richmond ft D. R. Co., 
39 S. C. 66, 17 S. E. 512. 

» Symonds v. Pain, 6 Hurl, ft N. 
709. See post, gS 1862, 18G3. . 



D.qitizeabyG00<^lc 



NOTICE. 1143 

for the baggage of passengers beyoad a certain amount, unless 
freight on any addition thereto should be paid in advance, the 
notice stating that "this forms part of all contracts for transporta- 
tion of passengers and their effects," — does not raise a legal pre- 
tumption that the passenger, at the time of receiving the ticket and 
before the trtun leaves the station, has knowledge of the limits and 
conditions which the carrier thus attaches to the transportation of 
the baggage of passengera ; but, in an action for the loss of a pas- 
senger's baggage, it will be a question for the jury whether the 
plaintiff knew of the notice before commencing the journey.* In 
the concluding part of the opinion, Mr. Justice Dewey says: "I am 
aware that, in reference to ordinary merchandise transported by 
common carriers, it has been held in some cases in the English 
courts, that a ticket given to the owner of merchandise, containing 
on the face of it a condition or limitation of the liability of the 
carrier, was held to furnish evidence of the special contract of 
transportation, sufficient to affect the owner of the merchandise, and 
to limit the liability of the carrier,"* These cases obviously differ 
with the present, and fail to satisfy us of the sufficiency of the notice 
in the case before us," " 

§ 1482. Notice to Onest of Usage of Leaving Money or Tal- 

nables at the Bar. — The liability of an innkeeper for the loss of 

• Brown V. Eastern R. Co., 11 time, be Is deemed to have read tbe 

CDsb. (Mass.) 97; poet, IS 186S, conditions. Wheeler v. Oceanic S, 

1879. I( a passenger eigns a pur- N. Co., 72 Hun, 5, 25 N. Y. S. 578, 

chased tIcXet as evidence o( accept- Posting a notice In sleeping cars la 

ance. be la hound to a knowledge not effectual to guard against loss 

at Its terms. Hose v. Northern ot valuablee, unless passenger sees 

Pac R. Co., SS Hont. TO, 88 Pac or knows ot the notice. Lewis v 

757. N. Y, Sleeping Car Co., 143 Mass 

w Citing Anstin ▼. Manchester 267, S N. E, 615, 58 Am. Rep. 135, 

etc. R. Co., ID Com. Bench, 454; In Massachusetts It was held, that, 

Shaw T. York etc. R. Co,, 6 Rail, If conditions on back ot the ticket 

Cas. 87, 13 Ad. A Bl. (ir. s.) 347. are referred to on the face, they 

" Brown V. Eastern R. Co.. eupra. are binding on the passenger. Fon- 

Later decisions do not confine the seca v. Cunard S. 8. Co.. 153 Mass. 

qoestlon ot knowledge to cases SS3, 27 N, E, 665, 12 L. R. A. 340. 

where the atlpulatlon 1b printed on In Kansas the distinction between 

back of ticket and mere acceptance back and front seems not regarded. 

Is not sofflclent to show acceptance It Is a question ot actual knowl- 

o( conditions. Lechowltzer v. Ham- edge. Kansas City, St, J. A C. B. 

burg Am. Packet Co., 27 N. Y. S. R. Co. t, Rodebaugh, 38 Kan, 45, 16 

140, 6 Misc. R^. 236. If paaaen- Pac. 899. 
ger purchases a ticket ahead ot 



D.qitizeabyG00<^lc 



1144 PEOVINCB OP COURT AND JUET. 

goods of his guest is not varied by a osage at tlie particular inn, of 
guests to leave their money or valuables at the bar, unless the guest 
has actual knowledge or notice of such usage, and whether he has 
such knowledge or notice is a question of fact for the jury.** 

S 1493. Instrnotion as to Scienter, in the Owner of a Viciotu 

Dog, from a Previotu Bite. — In an action for damages for an injury 
Hojstained by the plaintiff, through the fact of his minor son being 
bitten by the defendant's dog, the court instructed the jury "that, 
to enable the plaintiff to recover, he must prove that the d(% was 
accustomed to bit« mankind, and that it must also be proved that 
the defendant had knowledge that be was so accustomed to bite; 
that, if a single instance of biting mankind previous to the act com- 
plained of in the declaration was fully and satssfactorily proved to 
the jury, and a knowledge of such act on the part of the defendant 
was proved in like manner, that had been held sufficient to warrant 
a jury in finding a verdict for the plaintiff in cases of this kind ; 
bnt that the force of such testimony would depend much upon the 
drcumstances attending the transaction, as, whether they indicated 
a disposition to bite without provocation, or the contrary," The 
Supreme Court held that, "as a guide to the jury in applying and 
weighing the evidence before them, this part of the chai^ waa un- 
objectionable, and adapted to the caae, and fully sustained by the 
authorities." " 

§ 1494. Liability of Partner Betirlng withoat NoUoe of Dis- 
solution. — 'Where an ostensible or known partner retires from the 
firm, he will still be liable for its debts and otmtracts, as to all per- 
il Berkshire Woolen Co. v. Proty question or owner's knowledge of 
tor, 7 CuBii. (Hasa.) 417, 42S. The bis vlclouaneBs. Hahnke v. Fried- 
court Instructed the Jurr that the erich, 140 N. T. iH, S5 N. B. 4S7. 
Innkeeper would be exonerated if In Louisiana the circnmstances of 
the gnest was "willfully IgnoTant" the attack bj a dog ma? even be of 
of the cufltom. Ibid; Shuli t. Wall, nnch an agKrarated character as to ' 
134 Pa. 262, IS AtL 742, 19 Am. make it unnecessarr for plalnUff to 
St. Rep. 86, 8 L. R. A. 97. submit other evidence of identer— 
!■ Arnold T. Norton, 25 Conn. 92. thns where plalntUt on a puUIc 
See also Hall v. Huber, 61 Mo. App. street waa attacked, thrown down 
3S4; McOarr7 v. New Tork A H. R, and bitten. Bents v. Page, 116 La. 
R. Co., 137 N. Y. 63G, 33 N. E. 74S; G60, 39 South. G99. Showing that 
Kennett v. Engle, 105 Mich. 693, 63 a wolf had been domesticated, bad 
N. W. 1009. Keeping a dog chained come In contact with many peiBons, 
and mnziled carries to the Jury the had not been known to attack any 

i:n,t-. b.CoOt^lc 



•otu who bave previously dealt with the firm and have no notice 
ol his retirement** 



§ 1^5. Bnle Applies only in Tarror of Persons who have had 
Prerioiu Dealings with the Finn. — The rule applies only in favor 
of persons who have had previous dealings with the firm. The ob- 
ject of requiring notice of the dissolution to be given is to remove 
the impressiou which has been created in the minds of such persons, 
tfaat certain persons continue to compose the partnership. So far 
as mere ttrangera are concerned, it is obvioos that no such im- 
pression can exist, and that they cannot be said to give credit to, 
or place reliance on a partner of whom they are-igiwrant." More- 
over, such persons must have dealt with the firm as cuatomeri. The 
role, it has been held, has no application to the clerks and salesmen 
of a customer with whom the firm had previous dealings. The 
benefit of the rule reaches the customer, bat it does not, through 
him, reach his own agents and servants." 



one and was believed hj owner to 
be fcamleaa was beld In Alabama 
to show no defenie. Hays v. Ull< 
l«r. 150 Ala. 621, 43 South. 81S. 

»*-Story, Part., | 160; Pope V. Rla- 
ley. 23 Mo. 185, 187. per Scott, J.; 
Uardner t. Tow^ey, 3 Llttell (Ky.), 
its, 426; Kennedy v. Bohannon, 11 
B. Hon. (Ky.) 118; Wejtern Bank 
of Scotland v. Needell, 1 Post ft 
Fin, 461; Mnlford V. Qrimn. 1 Foat 
A Pin. 145: Faldo r. Qriffln, 1 
Post, ft Fin. 147; Qrady v. Robtn- 
■on. 28 Ala. 289, 300; Bradley v. 
Camp, KIrbj (Conn.), 77. SS; Bux- 
ton V. Edwards, 134 Haas. G67; 
Joseph r. Southwark P. ft M. Co., 
99 Ala. 47, 10 Soatb. 827; Morris v. 
BIssell, 99 Hlch. 409, 5S N. W. 3S4; 
Blklnton v. Booth, 143 Mass. 479, 
10 N. VS. 460. A discharge under 
the H&ssachueetts Insolvency lav 
was held to constitute notice of the 
withdrawal of the iniolTent to one 
knowing of his Insolvency. Enstls 
T. bolles, 146 Mass. 413, 16 N. B. 
186. 4 Am. St. Rep. 3S7. The prior 
dealing must have been as a cred- 



itor, not a purchaser. Askew v. 
Sllman, 96 Qa. 678, 22 8. R 573. 
But, If parchasers pay to a retiring 
member while Ignorant o( the dis- 
solntlon, this is payment Moore 
V. Duckett, 91 Oa. 762. 17 S. E. 
1037; Lee v. Ryan, 104 Ala. 126. 16 
South. 2. 

i> Dowzelot V. Rawltngs, 68 Mo. 
76; Austin v. Appling. 88 Ga. G4, 13 
8. E. 955; Swlgert v. Apsden. 63 
Minn. 665, 54 N. W. 738. Reliance 
cannot rest on the statement of the 
seller of a note, the purcha^r be- 
ing otherwise Ignorant on the sub- 
ject. Blanks v. Halpin (Tex. Civ. 
App.), 30 8. W. 941 (not reported 
In state reports.) 

■•Ricbardson v. Solder, 72 lod. 
426, 37 Am. Rep. 16S. It has beeu 
ruled that, where there was a con- 
tract of employment with a Ann 
which was changed into a corpora- 
tion having a similar name, with- 
out employee having any knowl- 
edge of the fact, he could recover 
againet the partners Individually 
for service rendered the corpora- 



7,:rb;G00l^lc 



1146 PBOriKCB 07 OODBT AND JUBT. 

§ 1496. But Betiring Partner ma7 Become Liable to Strangen 
by a "Holding oot." — Bat a retiring partner (or any other per- 
boq) may become liable to strangers by holding himself ont, or by 
suffering himself to be held out, to the pablie or to particular per- 
sona, as a partner.*' Thus, if the retiring partner permits his name 
to remain over the door of the place of business of the partnership 
after he has retired, he mt^ become liable for the firm debts, al- 
though a notice of the dissolution has been given by publication.** 
At least, he will be liable to any one who has been misled by his 
conduct in this particular into giving credit to the firm.** It was 
therefore held, in &n action where a defendant was sued upon a 
liability as a partner, and he was shown to have been once a partner, 
that, even though it appeared that the partnership had boen dis- 
solved, if there had been no notice of the dissolution, any evidence 
that he had continued to give orders and bills in the name of the 
firm, and to act as if he were a partner with the same person, thongb 
in a different business, and notwithstanding that it was proved that 
he was in fact only a paid servant, — would be suEBcient to render 
him liable for goods ordered by him in the name of the snppose^l 
firm.*' In such a case, it will be a question for the jury whether 
the retiring partner has acted in such a way as would lead a reason- 
able man to suppose that he was still a partner, and whether the 
plaintiff in fact acted npon the faith that he was so and gave credit 
to the firm as such.'* It is obvious that, where a party is charged 
as a partner on the ground of bis having held himself out as such, he 
can only be affected by acta of holding out prior to the contract 
sued on ; since any subsequent holding out could not have induced 
the plaintiff to give the credit.** 

tion. Frankel v. Wathen, 68 Hun, contract, ho will be eatopped from 

643, 12 N. T. S. 591. claiming Bach dlssoIuUon. Cnrtia 

IT Multord T. Grlffln, 1 Fast, ft v. Sexton, SOI Mo. 217, 100 S. W. IT. 

Fin. 145; Gurney T. Evans, 27 L. J. MWUIlama v. KeKta, t Stark. 

Excb. 166; M'lver v. Humble, 16 290. 

East, 169, 174, 176; Kennedy v. Bo- i*DowuIot v. Rawllngs, E8 Mo. 

hannon, II B. Mon. (Ky.) IIS, 120; 76, per Sberwood, J. 

Adams T. Morrison, 113 N. T. 152, w Mulford v. Griffin. 1 Post, ft 

20 N. E. 829; Gamble v. Grether, Fin. 145. 

lOS Mo. App. 340, 83 S. W. 306. » Faldo V. Griffin, 1 FOBt. ft Fin. 

Thus where one contracts with two 147. 

u a partnership, having no notice ziBaird v. Planqne, 1 Fost ft 

ol a prior dlBBolution, and the one Fin. 344, 
retiring recoWes payments on the 



D.qitizeabyG00<^lc 



NOTICE. 1147 

S 1497. KTile does not Apply aa against Dormant Partnen.— > 
A very obvious suggestion to the mind will be, that the rule does 
not Apply so as to chai^ a dormant partner who is unknown as a 
partner to creditors, for the reason that he has never been held 
oat as a member of the !irm, and tbat credit has presumably never 
been given to the firm on the faith of his being individually answer- 
able for its debts." But the role has been extended to a dormant 
partner, where the creditor dealing with the supposed firm had 
previously known that such dormant partner was a member of the 
firm." If the fact of his being a dormant partner be unknown to 
all the creditors, no notice whatever of his retirement is necessary ; 
if it be known to a few, notice to them is necessary.*' 

§ 1498. Kale does not apply to a Partnership trading: under a 
Corporate Name. — The rule which exonerates dormant partners 
who retire without giving notice is held to have no application to 
a partnership which trades under a name which would be appro- 
priate to a corporation, in which the names of none of the partners 
are given, such as the "Titusville Savings Bank." The reason for 
this conclusion is thus stated: ""When a copartnership is formed 
and an artificial name, such as is usually employed to designate a 
corporation, is adopted, it must be regarded as an invitation to give 
credit, not to the empty name, but to the individuals who compose 
the association thns designated ; and hence none of the partners can 
properly claim to be dormant. They are all, presumptively at least, 
known partners and liable as such." ** 

§ 1499. Hole Eests only on the Principle of Estoppel. — Another 
obvious suggestion to the mind is that this role is nothing more than 

"Grady v. Hobinson, 28 Ala. "Clark v. FleUrLer, 9fi Pa. St. 

289, 300; Gorman t. Davis Gregory 416, 417. II a former partnership 

Co., 118 N. C. 370, 24 8. E. 770. becomes Incorporated, retalu.ng 

MFarrar t. Defllnne, 1 Car. A K. the same sign, place of business 

ESO; Park v. Woolen, 35 Ala. 242; and employees the managing part- 

Lleb T. Craddoch, ST Ky. 625, 9 S. ner becoming president of the cor- 

W. 838; Mllmo Nst. Bank r. Berg- poratlon, to a customer of the old 

Strom, 1 Tex. Civ. App. 161, 20 S. Arm the partners will be deemed to 

W. S36. be sucb, wbere he la Ignorant of 

M Kennedy v. Bohaanon. 11 B. the change- Metz v. Commercial 

Hon. (Ey.) 118, 120. See also De- Bank, 46 8. C. S16, 23 S. B. 13. See 

ford Y. Reynolds, 36 .Pa. St. 325; also Welse v. Gray's Harbor Com- 

Shamburg v. Buggies, 83 Pa. St merclal Co.. Ill III. App. S47. 
143; Brown v. Foster, 41 S. C. 118, 
1» a B. 299. 



jcibyGoQl^lc 

A 



1148 PBOYINCB OF COURT AMD JURY. 

an illustration of the general principle of estoppel by conduct,*' 
The rule as to such estoppels, is that where A., by acting ot failing 
to act in a given way, induces B. to believe in the trutb of a given 
state of facta, upon the faith of which B. does Bomething to his 
injury, A. will thereafter, as against B., be precluded from showing 
that in truth such a state of facts did not exist. The reason of the 
rule is that, having by his conduct or his silence assisted in deceiving 
B. as to the truth of the facts, it would operate as a fraud upcm B. 
to allow him afterwards to prove the truth. It is essential to the 
very idea of such an estoppel that B. must have done tlie act upon 
the faith of the existence of the 8tat« of facts, in the existence of 
which the conduct or the silence of A, induced him to believe. It 
is to be regretted that cases are found which, in dealing with the 
subject under consideration, ignore this nnderljang principle and 
hold that it is not necessary for the party seeking to hold such 
partner to show that he gave credit to the firm on account of such 
partner's financial ability." These cases proceed upon the naked 
ground that a person, who suffers himself to be placed before the 
world as a partner, precludes himself from aaserting, against third 
persons, that he was not in fact such.*' In so doing, they □eoessarily 
raise the question above the level of a question of estoppel or of 
fraud, to that of a question of public policy.'" They forget that 
jufitice is the highest public policy, and that public policy is not con- 
cerned in requiring a man to pay damages to another, for doing or 
omitting to do something which has wrought no injury to that other. 
They forget the cogent observation of Chancellor Walworth, that 
"the want of knowledge of the dissolution of the partnership can- 
not benefit a customer who loses nothing by his ignorance of the fact, 
and who is only to be placed in the same situation as he would have 
been if the fact had been communicated to him in season." *' The 
ground of estoppel is clearly that upon which the English courts 
have generally proceeded. They have ruled that the "bidding out" 

MLlnd. Part (4th ed.), 50; Lovft- C J., In Waagb t. Carver, 2 H. Bl. 

Joy T. SpaSord, &3 U. 3. 130, 4(0, 235, 24S, with the observation 

441: Thompson v. First Nat Bank, thereon of Sir N. Llndler (Llnd. 

Ill U. S. 629, 538; Pratt v. Page, Part. (4tb ed.) 48), and the reason- 

32 Vt. 13; Hefner v. Palmer, 67 111. Ing of Mr. Jostle* Qrar In Tbomp- 

ISl. son T. First Nat. Bank, 111 U. 8. 

MStrecker v. Conn., 90 Ind. 469. 529, ESS. 

M Uhl T. Harvey, TS Ind. 26. ii BrlBhan V. Bord, 4 Paige (N. 

MCompare the language of Eyre. T.), IT, 22. 



7crib;G00<^IC 



NOTICE. 1149 

of die defendant as a partner most be something more tban a 
holding oat "to the world," for that ia a h»ee expression, — bat to 
the plaintiff himself, or under such circnmstances of publicity as 
to satisfy a jury that the plaintiff knew of it and believed him to 
be a partner." "I told the jury," said an eminent English judge,** 
"that the defendant would be liable if the debt was contracted 
whilst he was actually a partner, or upon a representation by him- 
self as a partner to the pluntiff, or npcm snch a representation of 
himself in that character as to lead the jury to conclade that the 
plaintiff, knowing of that representation, and believing the de- 
fendant to be a partner, gav« him credit under that belief." ** In 
another case it was held that the person sought to be charged as 
a partner was not liable, because there was no evidence to show that 
credit was in fact given to him." In this country, as in England, 
it has been held necessary to prove that the plaintiff gave the credit 
with a knowledge that the defendant had so held himself out. It 
is added that this knowledge might be easily inferred, if the de- 
fendant bad thus held himself ont to the community.** The English 
doctrine is thus summed up by the Lord Justice Lindley, in his 
work on Partnership: "No person can be af^ed with liability on 
the ground that he has been held out as a partner, imless two things 
conear, viz. : first, the alleged act of holding out must have been 
done either by him or by bis consent, and, second, it must have 
been known to the peison seeking to avail himself of it In the 
absence of the first of these requisites, whatever may have been 
done cannot be imputed to the person sought to be made liable; and, 
in the absence of ttie second, the person seeking to make him liable 
has not, in any way, been misled."** The rule under this bead can- 
not be better sammed up than in the following propositions, found 
in an opinion of the Supreme Court of Vermont : It is necessar)' 
to show : 1. That such customer knew, at the time when the contract 

uDicfcinMn v. Talpr, 10 Barn. Wlllu express similar opinions: 

■ft Cres. 12S, I4D, per Mr. Jnstlce Hartyn t. Gray, 14 C. B. (ir. s.) 

Parka, afterirardB Baron Farke 821, S39, 843. The decision of tbe 

and Lord Wensleydale. Court of Exchequer lu Edmundaon 

** Baron Rolle, atterwarda Lord v. Thompion, 31 L. J. (Bxch.) ZOT, 

Cranwortb. Jur. (R. a.) 235, Is to the like effecL 

»• Ford V. WhltmarBb, Horl. ft See also Carter t. Wtaalley, 1 Barn. 

W. U, 65. ft Aid. 11. 

M Pott V. Eyton, 3 C. B. BS, 39. ■■ Hefner y. Palmer. 67 111. 16L 

In a cue In tbe same court. In 1863, ** Und. Fart (4tb «d.) 60. 

Chief Jnatke Erie and Mr. Justice 



D.qitizeabyG00<^lc 



3150 PROVINCE OP COUBT AND JURY. 

was made, that the partners whom be seeks to hold had hccn id 
partnerahip. 2. That he was ignorant of their dissolution. 3. Thai 
he made the contract supposing that he was contracting with all of 
them as partners, and in reliance on their joint liability." 

§ 1500. Kind of Notice Required: Actual Notice to Previous 
Customers. — Under this head, there is a distinction between tlii- 
kind of notice which is required to exonerate the retiring partnci- 
in respect of previous ciixtomers of the firm, and in respect of 
strangers or the general public. The principle is that, as to pre- 
vious customers, actual notice must be given, that is, specially com- 
municated to them." The rule is well established that publication 
of notice of the dissolution of a partnership in a newspaper, at the 
place where the business is carried on, is not sufficient to relieve a 
retiring partner from liability for subsequent transactions, in the 
firm name, with one having dealings with the firm prior to the 
dissolution. In such case notice must be brought home to the 
dealer, or it must appear that facts came to his knowledge sufficient 
to advise him, or to give him reason to believe, that a dissolution had 
taken place." It has been held that publication in a newspaper 
taken by the dealer at the time, is a fact from which the jury may 
infer actual notice to him, though they are not bound to draw such 
inference.*' But where there was some evidence that the plaintiff 
bad taken the paper off and on, in which the notice of dissolution 
was printed, but he positively testified that he had no knowledge 
of any dissolution of the firm, and his testimony was corroborated , 

M Pratt T. Page, 32 Vt. 13. vrin. <7 N. H. 324; Lyon v. John- 

•oGorbam t. TbompEoa, Peske, son. £8 Conn. I; Little T. Clarke, 

N. P. 42; Godfrey v. Turnbull. 1 3C Pa. St. 114; Kenney v. Alt- 

Esp. 371; GrRbam t. Hcpe. Peake. vater, TT Pa. St. 34; Jotansoa v. 

N. P. 154; Parkin v. Carruthera, 3 Totten, 3 Cal. 343; Banla v. WIU- 

Esp. 248; Mlnnltt v. Wbttney. IC ia:iii. 30 Ga. S91: Hutchins.v. Hud- 

Vin. Abr. 244, pi. 12; Kelcham v. ton. 8 Humph. (Tenn,) 426; Pren- 

Clirk, 8 Johna. (N. Y.) 144; Hunt tlss v. Sinclair, E Vt. 149; Dlckin- 

V, Colorado U. ft K. Co., 1 Colo, App. eon v. Dickinson. 25 Gratt. (Va.) 

120, 27 Pac. 873. It may be com- 321; Laird v. Ivena. 45 Tex. G22; 

muotcated orally by any re:iialnlng Bush A Hattaway t. McCarty Co.. 

member and to an asent of tbe 127 Ga. 303, EG S. E. 430; DuS v. 

creditor. Miller v. Pfelffer. 168 Baker, 78 Iowa. 642, 43 N- W. 463. 

Ind. 21B, 80 N. B. 409. •' Treidwell v. Wella, 4 Cal. 260; 

M Gilchrist v. Brande, 68 Wis. Fltlcy v. Parson. 93 Mleh. 538. 53 

184, 199, 15 N. W. 817; Austin v. N'. W. 783: Robinson t. Floyd, 159 

Holland, 69 N. Y. 571; Zollar v. Jan Fa. 16r>, 2S AU. 258. 



1 Goo<^lc 



NOTICK. 1151 

and the jur7 found in his favor, it was held that their finding was 
conclnrave upon the question of notice." It is not necessary, in or- 
der to exonerate the retiring partnw, that formal notice to the pre- 
'vioos dealer should be shown. Any notice which reached him in 
any way, so as to advise him of the fact of dissolution, or which 
was sufficient to put him upon his inqmry, is adequate." In all 
sneh cases the creditor must, in order to avail himself of this rule 
and hold the retiring partner, show that he did not have actual notice 
of the dissolution of the partnership. Whether be did have such 
notice or not is a question of fad for the jury j and the court com- 
mits no error, it has been held, in declining to instruct the jury 
that a certain course of dealing with the remaining partner is evi- 
dence from which the jury ought to infer actual notice of the dis- 
Bolutioo, — especially where there is some evidence of a want of 
notice.** 

S ISOl. Reasonable Notice hj Publication to the Pnblio Gen- 
erally. — In order to exonerate himself from liability for the future 
debts of his copartners, the retiring partner should see that a 
reasonable notice of his withdrawal from the firm is given to the 
public in some form, "One who has been a member of a partner- 
ship and has been so advertised to the world, owes it to the com- 
munity to give notice of bis withdrawal from the firm; failing in 
this, be stands bound to those who, in the belief that he is still a 
member of the partnership, give it credit. This duty to give gen- 
eral notice is due to the public ; it is not confined solely to former 
customers of tbe firm; former 'customers of the firm are entitled to 
actual notice."*' In what form this notice may be given was thus 
stated, upon a view of several authorities, by Mr. Justice Hunt: 
"We think it is not an absolute inflexible mle that there must be 
a publieati<Hi in a newspaper, in order to protect a retiring partner. 

uGUcbrlBt V, Brande, 68 Wis. *«Deford t. Reynolds, 36 Pa. St. 

184, 200, 16 N. W. 817. 325, 334; OBborn v. Wood, 136 Mo. 

** Qllctirlflt v. BraDds, 68 Wis. App. 260, 102 8. W. 680. 
184, 200, 16 N, W. 817; Young v. « Strecker v. Conn, 90 Ind. 4S9. 
Tlbbltts, 32 Wis. 79. Letter beads 471. To the same effect see Backus 
en wblcb Is printed the announce- V. Taylor, 84 Ind. 503; Ubl v. Har- 
ment, tbat tbe business la carried vey, 78 Ind. 28; Southwlck t. Mo- 
on by one partner under tbe old Govern, 28 Iowa, 533; Ketcham t. 
Una name and shown to have been Clark, 6 Jobns. (N. T.) 144, 6 Am. 
received by plaintiffB, are competent Dec. 197; fiibley v. Parson, 93 tUch. 
evidence. Swift v. Carr, 145 Mass. 638, 63 N. W. 786; Robinson v. 
552, 55 N. E. 146. Floyd. 159 Pa. 165, 28 AU. 2S8. 



1152 PROVINCB OF OODBT AND JUBT. 

That 13 one of the ciccmnatances cootributing to, or forming the 
general notice required. It is an important one; but it is not the 
only or indispensable one. Any meana that, in the language of Mr. 
Bell," are fair means, to publish as widely as possible the fact of 
dissolution ; or which, io the words of Judge Edmonds," are public 
or notorious, to put the public on its guard ; or, in the words of 
Judge Nelson,** notice in any other public or notorious manner; or, 
in the language of Mr. Verplanck," notice by advertisement or 
otherwise, or by withdrawing the external indications of partner- 
ship, and giving public notice in the manner usual in the comunity 
where be resides, — are means and circumstances proper to be con- 
sidered on the question of notice." '" It has been held that, where 
a person has served as a director in a joint stock partnership and 
]iis name has been published as such, the mere fact of dropping 
his name from the published list of directors is not sufficient." 

5 1502. Not a Question of Actual Notice, but of DQigance in 
Giving Notice. — In the case of those who have not been customers 
of the firm, the question is not whether actual notice was received, 
but, as in the case of the protest of commercial paper,** whether 
proper diligence was used in giving notice; since it would be im- 
possible for the retiring partner to give actual notice to every man 
who might by any possibility become a future creditor of the re- 
maining partner, and no man is held to impossibilities." "The 
question," said Mr. Justice Hunt, "is not exclusively whether the 
holders of the paper did in fact receive any information of the dis- 
solution ; if they did, they certainly cannot recover against a re- 

MBell Com. 640, 641. uAnte. g 1323, et eeq. 

"Wardwell v. Halgtat, 2 Barb. ■■Vernon t. Manhattan Co., SS 

(N. T.) 5«, B52. Wend. (N. T.) 183; Bristol t. 

" Bristol v. Sprague, 8 Wend. (N. Sprague, 8 Wend. (N. T.) 423; 

Y.) 423. Ketcham v. Clark, 6 Johns. (N. T.) 

"Senator Verplanck, In Vernon 144; Wardwell v. Halgbt, 2 Barb. 

T. Manhattan Co., 22 Wend. (N. T.) {N. T.) 549, 552; Lovejoy t. Spaf- 

183. ford, 93 U. S. 430. If the notice 

(0 Lovejoy v. Spafford, 93 U. S. was publtahed not In a prominent 

430, 440. See, for Illuatratlon, part of a paper, not abovn to be a 

Bradley v. Camp, Klrby (Conn.), paper of general circulation, this 

77, 83, where an oral declaration to la not enough to take the question 

several peraons was, under clrcum- to a jury. Ellison t. Sexton, lOt 

stances, held inaufflclent. N. C. 36G, 11 S. EL 180, 18 Am. St. 

»> Ctark v. Fletcher, 96 Pa. St. Bep. 907. 
418. 



D.qitizeabyG00<^lc 



NOTtOB. 1153 

tiring partner. But if they had no actual notice, tlie question ia 
still <Hie of duty aod diligence on the part of the withdrawing part- 
ner. If he did all that the law requires, he is exempt, although 
the notice did not reach the holders." ** 

§ 1503. General -Notoriety. — That the fact of the dissolution 
was a matter of general notorie^ ia not, aa a matter of law, equiv- 
alent to notice, in respect of the general public.** But, upon the 
question whether general notoriety is a fact from which, in con- 
necticm with other facta, the jury may infer knowledge, the au- 
thorities seem to be conflicting. It ahonld seem, upon principle, 
that evidence that the fact of the dissolution of the firm waa a 
matter of public notoriety is competent, for the purpose of showing 
that the person seeking to charge the retiring partner bad knowledge 
of the fact. It has, however, been held, by a court and judge of 
high authority, that such evidence is not even competent. "Mere 
notoriety," said Chief Justice Shaw, "may exist, and yet the party 
dealing with such firm may not be acquainted with it. And where 
it is in the power of one party, and his duty, to give public and 
explicit notice of a fact affecting the rights of others, and he does 
not do it, it ought not to be assiuned upon doubtful grounds of 
presumption."** In like manner, it was said by Mr. Justice El- 
liott: "The fact that the withdrawal waa generally known within 
the conunnnity may perhaps be considered, in conjunction with 
other evidence, as tending to charge those dealing with the partner- 
ship with notice of the withdrawal; but the mere fact that the with- 
drawal was a matter of general notoriety will not supply the place 
of public notice, where there is no visible change in the business, in 
the title of the firm, or in its advertisements."*' 

V. Thompson, 1 Puke, N. P. 48; 
Graliam t. Hope, 1 Peaks, N. P. 
1G4; Cltr Bank v. McChesner, 20 N. 
T. 240. It must be connected with 
otber facts sulBclent for a flndlng 
by the Juiy of actual knowledge by 
former dealers. Henry C. Werner 
« Oo. V. Calhoun, S5 W. Ta. S46, 4« 
8. B. 1024. 



•«LoTe]oy ▼. 


Spairord. 


93 U. B. 


430, 441. 






•sStrecker t. 


Conn. SO 


Tnd. 4S9, 


471. 






M Pitcher V. 


Barrows, 


17 Pick. 


(Haas.) Sei; Central Nat 


. Bank T. 


Pry. 148 HasB. 498. 20 N. ! 


E. 328. 


wStrecker v. 


Conn, 90 


Ind. 469, 


471. See alao 


Holdane v. Butter- 


worth, 6 BoBw. 


(N. T.) U 


; Oorham 


TaiALS — 73 





D.qilizMb,G00l^le 



CHAPTER LI. 

DESCRIPTION: QUALITY: CUARACTERIZATIOM. 

I(t07. QuestloDB ot Fact. 

1508. Eminent Domain: Whether a Use la a Public Use. 
1E09. Eminent Domsin: Whether an ADpropriation by the SUte was for 
Permanent or Temporary Use. 

1510. Utility or a Public Highway. 

1511. Whether a Place Is a "Public Place," within the Meaning of a 

Statute. 
1612. Whether a Perfion UnderUklng to Transport Qooda Is a CommoD 
or Private Carrier. 

1513. Whether a Stream Navigable for Logs. 

1514. The Uaea to which Demised Premises are Put 

1515. Whether a Particular Place of Business Is a Bank, 

1516. Whether a Wharf in a City is a Public Wharf. 

1517. Whether "Flash Boards" are Part of a Mlll-Dam. 
151S. What is an "Appurtenance" to a Steamboat. 

1519. Whether a Dwelling House is "Near" a Particular Place. 

1520. What Fixtures are Removable. 

1521. Whether Particular Property is Partnership or Individual Property. 

1522. Extent of Water Privilege set oft In Partition. 

1523. Continuance In Business. 

1524. The Question of Sanity. 

1626. Whether a Particular Game Is a Game of Chance^ 
1626. Name— Idem Sonans. 

§ 1507. Questions of Fact. — blatters of deacription, character 
or quality are closely allied to matters of identity. They are al- 
ways questions of fact for a jury. Instances of these will be given 
in the present chapter; several others will be given in the chapter 
relating to crimes,* 

t Post, f ! 2157, 2159, et seq. Am Jar." The seller claimed that these 
an UluEtration of descriptive terms words referred to its smooth run- 
carrying construction of contract to ning. thus avoiding "shock or Jar" 
the jury, see Reedy Elevator Co. v. to psssengers, while the buyer 
MerU ft Hale, 107 Mo. App. 28, 80 claimed, that what was to be 
S. W. 684. In that case the facta avoided, as agreed between the par- 
ehow the sale of a passenger ele- ties, was "water hammer" or 
vator with a guarantee that its ma- "shock or Jar" to the water pipes 
chlnery would not cause "shock or siirp'ying the levator, as ottaerwiae 

Coo»^lc 



DESCKIPTION: QUALITY: COABACTERIZATION. 



1155 



§ 1508. Eminent Domain: Whether a Use is a Pnblic Use. — 

Under American constitutions, which provide that private pr(q)erty 
shall not be taken for public use without just compensation, where 
the question relates to the validity of a statute authorizing the 
condemnation of private property for a particular purpose, the 
question whether the use prescribed in the statute is a public use. 
is, as between the judicial and legislative branches of the govern- 
ment, a jvdicial question* But, so far as the writer ia aware, thi» 
question has never been held a question of fact for the jury; siuee 
so to hold would present the anomaly of allowing juries to over- 
mle acts o£ the legislature. Under the constitution of Mis- 
souri,' the question whether the use for which private property 
is sought to be coudemni?d is a public use, so as to authorize its 
condemnatioD, is a question for the court, any legislative declar- 
ation to the contrarj- notwithstanding.' Prior to this constitu- 
tional provision, it was held that the legislative declaration that 
the use was a public use, was conclusive ; * and it is said that, if & 
legislature has declared the use or purpose to be a public one, its 

the water compatty would retuse to 
supply water. The conflicting con- 
Btructlona made a ^uestloa of tact 
for the Juiy. 

1 Concord Railroad v. Qreely, 17 
N. H. 47; Shasta Power Co. v. 
Walker, 149 Fed. GG8; Caretta Ry. 
Co. V. Vlrglnia-PocohontM Co., «3 
W. Va. 185, 57 a. B. 401; Call v. 
Town or Wllkasboro, 115 N. C. 337, 
20 3. E. 468; Shoemalter v. U. S.. 
147 U. S. 282, 37 L. Ed. 170. In 
Illinois It has been ruled that, 
whether a strip of land, sought to 
be taken In condemnation proceed- 
ings was necessary Tor the present 
or Immediate future use of a rail' 
road company so as to be snbject 
to condemnation, was a question of 
fact Chicago ft M. B. R. Co. v. 
Chicago * N. W. Ry. Co., 211 HI. 
352. 71 N. E. 1017. While In Ken- 
tucky, the converse was held as to 
a very similar question I. e. neces- 
sity for proper operation of a rail- 
road. Warden t. Madlsonvllle, H. 
* E. R. Co.. 31 Ky. Law Eep. 234. 



101 a W. 914. In Missouri, also. 
It was held to be a question for the 
court, whether use of a railroad's 
right of way by a telegraph com- 
pany for Its poles and wires would 
materially Interfere with the pub- 
lic use, to which it was already de- 
voted. Telephone A T. Co. v. St- 
Louts, I. H, « S. R. Co., 202 Mo. 
65S. 101 a. W. 256. While In Cali- 
fornia It was held, that the tacts 
may be such as to carry a like ques- 
tion to a Jury, Reclamation Dis- 
trict T. Superior Court, 161 Cal. 
263. SO Pac. G46. 

• Const. Mo., art. II., { 20. 

4 Savannah t. Hancock, 91 Mo. 
64, S S. W. 215; State ez rel. Cape 
Girardeau v. Houck, 127 Mo. 607, 
31 S. W. 933; Joplln Consol. MIn. 
Co. V. Joplln, 124 Mo. 129, 27 S. W. 
406. See also Welton v. Dickson, 
38 Neb. 767, 57 N. W. 589, 41 Am. 
St. Rep. 771, 22 L. R. A. 496. 

■ County Court v. Ortswold, 68 
Mo. 175; Dickey v. Tennlson, 27 
Mo. 373. 



7cnbyG00<^lc 



1156 pBoviNCE OP coxmT and jubt. 

jadgment will be respected by the coorta, imlesB tbe use be pal- 
pably private.* The court will decide this question, under the 
Miaaomi coDstitation, witliout the aid of a jury/ 

g lfi09. Eminent Domain: Whether an ^propriation hj the 
State waa for Permanent or Temporuy Use. — In Pennsylvania 
the right of the State to take and appropriate lands required in 
the constniction and operaticm of such public improvements as 
canals, is veil settled; but there ia a rec<^ized distinctitm between 
appropriations which are required for i>ermanent use and occupa- 
tion, and tluwe needed for temporary purposes only. As to the 
latter, the title of the owner is not divested, for bis enjoyment is 
only temporarily interrupted ; as to the former, the title acquired 
by the commonwealth is an absolute estate in perpetuity.' Where 
it becomes a question, in an actitm of ejectment, whether the com- 
monwealth acquired title to property which is appropriated, for 
temporaiy purposes or for permanent use and occupancy, it is a 
question of fact exclusively for th» jury* 

S 1010. Utility of a Public Highway.— In what are called "high- 
way cases," that is, proceedings to open a highway, the question 
whether the proposed highway is of public utility is a question of 
fact for the jury.'" 

§ IMl. Whether a Place is a "Public Place," within the Mean- 
ing of a Statute. — It has been held, under a statute providing for 
posting notices of sale for taxation of the lands of non-residents, 
which requires such notices to be posted in some "public place" 
in the town, that the question whether a particular pla«e is to be 
cousidered a public place, within the meaning of such a statate. 

• Din. Man. Corp. (3rd «d.), "Kyle v. MlUer, 108 Ind. 90; 
I 600; MUls, Bm. Dom., { 10. Moore t. Ange, 125 Ind. 662, 2S N. 

» Savanaftli v. Hancock, snpn. E. 816. Unier forcfl of eUtute, It 

I PennsylTaiila etc. R. Co. v. Bill- hae been held that the declBlon of a 

Ings, 94 Pa. St. 40, 44; Com. v. Mc- special tribunal, like a county 

AUlster, S WattB (Pa.), 190; Halde- court. Is not reviewable. Vedder 

man v. Railroad Co., GO Pa. St. 42E; t. Marlon County, 28 Or. 77, 36 Pac. 

Craig V. Mayor of Allegbeny, 53 Pa. E35. In HUae the practice allows 

St. 477; Robinson v. Weat Pa. R. BubmisBlon to a jury on appeal. 

Co., 72 Pa. St. 316. Bryant v. County Corara.. 79 Ma. 

• Pennaylvanla etc R. Ca T. BU- 12S, 8 Atl. 460. Qenerally It may 
UngB, 94 Pa. St. 40. be said tbls la a matter of aUtutory 

regulation. 



o.GoQi^lc 



DESCRIPTION: QUALITY! CHAEACTEaiZATION. 



1151 



is a question partly of fact and partly of law. The nature and 
sitnation of the places and the eases to which they are applied are 
matters of fact, to be settled by a jury. But when these are settled, 
whether the place ia to be considered a public place within the la- 
tent of the statute is purely a question of law; " and the like doc- 
trine was applied in the case of a statute providing for the posting 
of notices of the sale of an equity of redemption in land, which re- 
quired such notices to be posted up at "two of the most public 
places in the town in which the property is dtuated. ' ' ** 

§ 1512. Whether a Person Undertaking to Transport Goods is a 
Oominon or Private Carrier. — What constitutes a common carrier 
is said t« be a question of law. Whether a par^ comes within that 
definition, is a question of fact for a jury." It haa been hehi 
proper, in a doubtful ease, to leave it to the jury to decide, under 
proper definitions, what constitutes in law a comm<Hi carrier, and 
what constitutes one who undertakes to carry goods for hire, a 
private carrier merely, — whether a defendant, sued for a loss of 
goods, was a common or a private carrier.'* 



§ 1513. Whether a Stream Navigablft for Logs.— Whether a 
stream is navigable for logs haa been held a quettitm for a jury." 



"Tfdd T. Smili, 8 N. H. 178. 
For Illustrative decislooa see Bor- 
deaux v. St., 31 Tex. Cr. R. 37. 19 
S. W. 603; Mnrchison v. St.. 24 
Tax. App. 8, 5 S. W. SOS. Tbe ques- 
tion whether tbe postfDK was In » 
"consplcuouB place" has been held 
a queetton at fact. Davis v. Baker, 
88 Cal. 106. 2E Fac 1108. 

n Russell T. Dyer, 40 N. H. 173, 
187; Contra, Slsk v. St, 3E Tex. Cr. 
R. 4GS, 34 S. W. 277. A question 
of Cact for the Jury baa been known 
to arise In such matters. Thus 
where a hole was dug hy defendant 
In a path across the premises. It 
was held a question Iot the Jury, 
whether the path was known hy de- 
fendant to have gained an appear- 
ance which Invited people to use It 
M a public way. Phillips v. Li- 
brary Co.. 65 N. J. L. 307, 27 Atl. 



47S. Bo as to a gangway through 
which customers to a store were 
accustomed to go. Clark v. Bbode 
Island E. L. Co., 16 R. I. 463. And 
BO as to c(Hnmons accustomed to be 
traversed by stock, defendant plac- 
ing thereon a barbed wire fence. 
Brown v. Cooper, 10 Tex. Civ. App. 
G12, 31 S. W. 316. See also Holmes 
T. Drew, 151 Hsaa GT8, 25 N. B. 22. 

I* Pennewlll v. Cullen, 6 Harr. 
(Del.) 238, 241. Compare Mc- 
Henry v. Railroad Co., 4 Harr. 
(Del.) 44S. 

1* Haynle v, Baylor, IS Tex. 49S, 
507. 

uHalnee v. Welch. 14 Ore. 319. 
12 Pac. 602; Smith v. Fonda. 64 
Miss. GSl, 1 South. 767. See also 
Jones V. Johnson, S Tex. Civ. App. 
262, 25 S. W. 660. But navigability 
mar be judicially noticed. Eel- 



D.qitizeabyG00l^lc 



1158 PHOVINCB OF COURT AND JUEY. 

§ 1514. The uses to which Demised Premises are pot— Where 
premises were demised upon a condition that no intoxicating liqaors 
ehonid be sold thereon, an authorized sale by a third person upon 
the premises, Tvhere the lessee is chargeable with no fault or negli- 
gence, will not worh a forfeiture of the term, and the question of the 
lessee's knouiedge of eueh sales, and of his negUgcnce or diligence 
in relation thereto, is wholly one of fact for the jury," 

§ 151S. Whetiier a Particular Place of Bnsineu is a Bank. — 

Whether a place of business in a city called the Bank of the ^ietro- 
polis, and having that name over the door, the same being a place 
where notes are discounted and accounts are kept with depositors, 
IB a bank, is what ia frequently termed a mixed qnestion of law and 
fact. What is a bank is said to be a question of law, but the suffi- 
ciency of the evidence to prove that tlie particular place is a bank, 
is for the jury. It ia therefore held error for the court to instruct 
them that it was a bank, for this included a decision upon the truth 
of the evidence." 

§ 1516. Whether a Wharf in a Oit? Is a Public Wharf. — 
Whether a wharf in the city of Baltimore was a public wharf or 
not, has been held a question of fact, which the court cannot assume 
as established, although the testimony, if credited, might seem 
clearly to establish it." It has been held in Conneticut, after an 
extended discussion of the subject, that the mere fact that the owner 
of a landing in a highway has erected a wharf thereon, at a point 
of contact between the highway and navigable water, does not, 
ipso facto, make the wharf a public wharf, so as to exclude his pro- 
prietary interest; but that, "although a public landing at the 
locus in quo may have existed prima facie, at the time the plaintiff's 
ancestor erected the wharf, still, whether it was needed for the pur- 
pose, so that the wharf could not become the property of the plain- 
tiff, would depend upon circumstances, and is a question of fact 
to be determined by the jury." Alore generally stated, the ruling 
was that, where a highway is laid out to navigable water and there 
terminates, the terminus may presumably be regarded as a public 

berger v. Tel. Co., 113 Ho. App. 463. nell t. Com., 30 Ky. Law Rep. 491. 

113 S. W. 730. 99 S. W. 237. 

«Col1iDB Man. Co. v. Marcy, 25 "Way t. Butterworth, 106 Mua. 

Conn. 242. So where the statute 75. 

aald "suffer or permit," etc. Bun- i* Brown t. Elllcott, 3 Hd. 76, 81. 



7crib;G00<^IC 



DBSCEIPTION: (JUAUTT: CHARACTERIZATION. 1159 

lasdin^ incidental to the highway. Bat where a highway, nm- 
mog from place to place, is laid along the shore of a navigable 
ftream, and in immediate contaet with it for a considerable dis- 
tance, the reason for the presumption does not exist. The question 
m such a ease depends on the circumstances, and ia one of fact for 
the joiy.'* 

§1617. Whether "FhuhboardB" are part of a Mill-dam.— In 
an action againat the owner of a mill-dam for the Sowage of the 
plaintiff's meadow, it haa been held a question for the jury, whether 
"ftashioards" up(m the defendant's dam were or were not a part 
of the dam, or an appurtenance to it ; and that the court ought to 
instruct the jury that, if they should find them to be a part of the 
dam, then the defendants could not be sued for maintaining them, 
in the condition in which they were when purchased, without pre- 
Tioua notice that they had no right to use them. But if they found 
them to be no part of the dam, and only placed upon it for occa- 
nonsl use, as the stat« of the water might make them convenient 
oe necesaary, then the raising of the water by means of them to a 
greater height than the defendants had a lawful right to raise it, 
to the injury of the plaintiff, wonld render the defendants liable 
withoat any such notice, alUiough they originally purchased the 
dam with £ashboards upon it.** 

£ 1518. What is an "Appurtenance" to a Steamboat. — So, un- 
der a former statute of Missouri, known as the "Boat and Vessel 
Act," the question, what was and what was not an appurtenance of a 
steamboat, was r^arded as a question of fact, to be established b; 
evidence, and a fit snbjeet of inquiry by a jury ; since the statute 
nowhere defined what was meant by the term. It must therefore 
be referred to the intention of the defendant (the owner) and the 
general understanding of the community who are conversant with 
the business of steamboating." 

S 1B19. Whether a Dwelling: House is "near" a Particular 
Vla,c9. — A statute of New York** provides that "if any passenger 
ab^ refuse to pay his fare, it shall be lawful for the conductor 

t» Bnrrowa ▼. Gallup, 82 Conn. y. Peoples Steamboat Co., 153 Fed. 
49S. EOl. But If the fiwrts are clear 1022, 82 C. C. A. 216. 
and do not admit of a reannabla )« Nofes v. StlUman, 2i Conn. IB, 

dlfferenca of opinion, the court 27. 

mar decide the question aa a mat- ti Amis v. Steamboat Louisa, 9 

tVT of law. Weemi Steamboat Co. Mo. 629, 832. 



D.qitizeabyG00<^lc 



1160 PBOVINCB OF COURT AND JUBT. 

* * * to put him and bis baggage out of the cars, vitang no nn- 
necesaary force, at any usual stopping place, or near any dwelling 
bouse, as the conductor shall elect on stopping the train." In 
an action for damages Cor putting off a passenger in violation of 
this statute, the plaintiff testified that tben was no house or cross- 
ing near the place where he was put off, and the conductor testified 
that there was a farm house 25 rods from the crossing and 30 rods 
from the train, wMch testimony was corroborated by other testi- 
mony. The court submitted Hie questiim to the jury upon proper 
instructions, vhetber there was a dwelling bouse near the place 
where the plaintiff was put off, within the meaning of the statute, 
this mling was affirmed in General Term, — the court said: "We 
can hardly say, as matter of law, that a dwelling house twenty-five 
or thirty rods distant, upon another highway, is, within the con- 
templation of the statute, a near dwelling house in a dark night, 
its vicinity being unknown to the passenger." ** 

S 1620. What Tixtures are Removable.— The question as to 
whether a given article is removable by a tenant, as a fixture, has 
been held a question for the jury, imder proper instructions.*' 
The question whether the removal can be made so as to leave the 
freehold in as good a condition as before, is also a question for the 
jury." 

§ 1521. Whether Partionlar Property Is Partnership or Indi- 
vidual Property. — The question whether, under proceedings in in- 

** New Tork Laws 1S60, ch. 140, eltber u a fixture or a part at the 

i 3G. freehold, e. g. where tt has been 

wLoomls T. Jewett, 35 Hnn (N. vrongfullr seTered from the land. 

T.),313. Martin v. PerguBon, SI Ky. Law 

"Amba t. HIII, 13 Mo. App. 685; Rep. 590, 103 S. W. 257. Id New 

Hayford v. Wentworth, 97 Me. 347, Hampshire It haa been held that 

64 Atl. 940; Barlnger v. EvenBon, this being a Question of fact does 

127 Wis. 36, 106 N. W. 801; Bruns- not neceasarll; make It a Jury quea- 

wlck Const. Co. V. Burden, 118 tlon. Dame t. Wood, 7B N. H. 38, 

App. Dlv. 468, 101 N. T. 8. 716. 70 AU. lOSl. 

Whether' or not an article Is a fix- ■* Amba v. Hill, 10 Mo. App. 108. 

ture often depends on Intent and 6ee Tay. Land, ft T., ) 550; Ewell 

this may, of course, be a question on Fixtures, paaslm; Slocum t. 

of a tact. Hoye Coal Go. t. Colvln Caldwell, 12 Ky. Law Rep. 514, 18 

(Ark.), 104 S. W. S07. It ts also a. W. 1069. The qnesUon of what 

the right of a party to regard. In is a reasonable time within which 

some clrcumatances, an article remove! should be made Is one of 



Coo^^lc 



DBSCBIPTION : QUALITY i CHABACTEBIZATION. 



1161 



Bolvency iiiartitut«d by a sarriTing partner, money found apon the 
person of a deceased partner and mingled with other money which 
is admitted to be his own, is partnership property or private prop- 
erty, is a question of fact, which, if a dispute arises in refer^ce 
to it, most be aobmitted to the jury.** 

§ 1622. Extent of Water Frivil^:e set off in Partition.— The 
report of commissionera in a proceeding for a partition contained 
the following clanse, desciiptiTe of a portion of the estate set off 
to one of the parties: "Also a water privilege now occupied by the 
aaw-mill called Franklin." In an action by the proprietor of an- 
other mill, against the proprietor of the mill called Franklin, to 
recover damages for division of a portion of the water from the 
plaintiff's null and obstructing his race, it was held that the extent 
of the water privilege granted by the words quoted was a question 
of fact for the jury.** 

§ 1S23. Oontiniiance in Btuineu. — ^Where a servant agrees to 
work for a master at an advanced rate for the second year if the 
master continues in business, the question whether be does con- 
tinae in the business is, in an action for the servant's wages, 
a question for tke i^ry." 



Hd. 184, SI AU. 710. Whsre the 
facta are capable of dtHorent Inrer- 
encea, u to one of whicb the con- 
clusion at Insanttf may be drawn, 
It Is for tli« Jnry to decide. See 
Prentli t. Bates, 93 Mich. 234, G3 N. 
W. US; Hegney v. Bead, 12S Mo. 
619, 29 B. W. 687; Maddox v. Mad- 
dox. 114 Ho. 3S, 21 S. W. 499, 35 
Am. St Rep. T34. There Is noth- 
ing mandatory In Naw Tork Coda, 
which compels aubmlaalon to a Jury 
of a case npon Tslldity of a will. It 
the ovldencQ la Ineufflclent to war- 
rant a verdict against the will. 
H&ughlan ▼. Ckmlan, S6 App. Dlv. 
290, 88 N. T. S. 830; Mueller v. 
Power, 127 Wto. 288, 10< N. W. 840; 
Leach T. Bttrr, 18S U. B. 610, 47 L. 
Ed. G«7. 

tiHunroo T. Gates, 43 Me. 178, 
ISL 



fact. Berger v. Hoerner, IS IlL 
App. 380. 

MDngln T. Coolldga, 8 Allen 
(Mass.), 556. The courts lay down 
a etandard for the determining of 
mental capacity, and, if the evi- 
dence does not tend to show tbat It 
la non-exiBtent, the question of d» 
vlsavlt vel non will not be sub- 
mitted to a Jury. See Klnff v. QIl- 
aon, 206 Ho. 264. 104 B. W. 264; In 
re American Board of Commission- 
ers of Foreign Missions, 103 Me. 72, 
66 AU. 216. And what kind or dais 
of Influence or delusion may tend 
to undermine of destroy such ca- 
pacity. See 0-DeU t. Qolf. 149 
Hlcli. 1E2. 112 N. W. 736, U L. R. 
A. (If. s.) 989; Johnson t. Johnson, 
106 Md. SI, 66 Atl. 918. 6«e also 
Bener v. Sprangler, 03 Iowa, 576, 61 
N. V. 1072; Crookett v. Davla, U 



D.qitizeabyG00l^lc 



1162 PEOVINCE OF C»UKT AND JUBT. 

5 1524. The Qaertion of Sanity. — "The question of sanity," 
flaid Mellen, C, J., "depends on a multitude of circamstanees, 
rarions and minute, peculiar and contradictory, and where %hts 
and shades are sometimes almost lost in each otlier. Be^des, it 
is, perhaps, almost impossible for a judge to draw any certain 
divisional line, and present it beforehand for the regulation of the 
jury. The line of separation between the powers and provinces of 
court and jury, in the decision of such cases, we apprehend, it is 
also equally difficult to draw; and in those cases, cited by counsel 
for the appellunt, from the celebrated speeches of Erskine, to show 
the various manners in which insanity displays itself and operates 
on the powers of the mind, it appears that the subjects of investi- 
gation were then before the jury for decision." The court accord- 
ingly held that the trial court committed no error, on the trial of 
an issue of devisavit vel non, in refusing to give the following in- 
struction, requested by the objector: "That it an illusion was fixed 
upon the mind of tiie testator as & reality, for months before and 
up to the time of executing the will, and his conduct was at any 
time inlluenced by such illusion, he was i.ot of sane mind. That 
if the testator was under the continued delusion for months pre- 
vious to the time of the execution of the will, and during that 
time, that he believed an illusion of the imagination to be a reality, 
he was not of sane mind. That if he really, for months before and 
up to the time of executing the will, believed that he was repeat- 
edly visited by a superhuman being, whom he saw, felt, heard and 
conversed with, as some of the testimony tended to show, then he 
was not of sane mind." But, instead of giving this, the judge in- 
structed the jury that the law, upon the facts assumed by the coun- 
sel for the objector, had laid down no certain rules, and prescribed 
no deductions necessary to be made from them ; but that tliese facts, 
if proved, together with the testimony in the case, must be left to 
their sotmd discretion, as a matter of evidence, from which to de- 
termine the issue before them." It was held by the whole court 
that in these rulings there was no error. The court summed up its 
conclusions in the language of Starkie:** "The question of sanity 
is BO peculiarly a question of fact for the decision of a jury, that 
a will of real estate cannot be set aside in equity, without being first 
tried at law on an issue of devisavit vel non."*" In Kentucky 

*• Collett T. Smith. 143 Mass. 473. m Ware T. Ware, 8 Ma. 42, 46, 60. 

t»3 Stark. Ev. 1707. 



D.qitizeabyG00<^lc 



DESCBIPTION: QUALITY: CHABACTEEIZATIOH. 1163 

there ia a decision which seems to be quite out of line with authority. 
It was an appeal to the circuit court, from a decision of the probate 
court rejecting a will. A trial by jury had taken place in the cir- 
cuit court, resulting in a finding in favor of the will, on which find- 
ing a judgm^it had been rendered, from wbieh the heirs had ap- 
pealed. In the opinion of the Court of Appeals the following lan- 
guage was used by Stites, J.: "In all cases involving the capacity 
of a pereon to make a will, the inquiry is, was such person, at the 
time of making and publishing the paper offered as his will, of 
sound and disposing mind I The degree of capacity necessary to 
make a valid will must be determined by the courts of the coun- 
try; and, in ascertaining whether such capacity exists, they are 
to be governed, neccGsarily, by rules of evidence applicable to such 
cases, and deemed authoritative, because founded upon reason and 
experience, and so recognized by enlightened jurists." This con- 
clusion seems to be founded apon the following provision of a Ken- 
tacky statute, applicable to such cases: "The Circuit Court and 
Court of Appeals shall try both law and fact, but the Court of Ap- 
peals shall not hear or adjudge any matter of fact pertaining 
thereto, otiier than such as may be certified from the circuit court" 
The court therefore proceeded to examine the facta, and, being of 
opinitm thereon that the verdict of the jury was right, affirmed 
the judgment without considering the correctness of the instmc- 
tiona." The reporter cites in a footnote a manuscript opinion in 
the matter of Hooten's will, delivered by the same court in 1857, 
where the court decided such a contest upon the merits, irrespective 
of the verdict of the jury and the instructions of ^e circuit court. 

S 1626. Whether a Particular Game ia a Game of Chance.— 
It seems to be a question of fact for a jury whether a particular 
game, — as for instance, the game called rondeau, is a game of 
chance, within the meaning of a criminal statute against gaming.** 

g 1526. Name— Idem Sonans.— "Where there is a question whether 
two namea differently spelled, or two different spellings of the same 

u Overton v. Overton, IS B. Man. tlon of Intent controla, and thla li a 
61. question for the jury. Kuilman v. 

MGIascock v^ St, 10 Ho. 608. In Slmmens, 104 Cal. 696, 38 Pac 362; 
contracts where salea with future Pope v. Hawks, IGG III. 617, 40 N. 
deliveries are made, and the; are B. 839, 2SUR.iL- 668; Gaw v. Ben- 
attacked aa mere gambling In grain nett 153 Pa. 347. 25 AtL 1114, 84 
or other produce sold on margin. Am. St Rep. 699. 
U Is generally held that the que»- 



jcibyGoQi^lc 



1164 



PROVINCE OI" COURT AND JUBT. 



nnme, are idem aonana, it is said to be governed by the following 
rule: Tf two names, spelled differently, necessarily sound alike, 
the court may, as matter of law, pronounce tbem to be idem tonans; 
but if tbey do not necessarily sound alike, the question wbether 
they are idem sonans is a question of fact for the juiy.** Thus, it has 
been said that, as a matter of law, Darius and Trins are idem sonans, 
Coleridge, J., saying: "If th« question had been left to the jury, 
there can be no doubt that a Dorsetshire jury would have found 
that Darins and Tnus were the same name. " ** On the other hand, 
in a criminal case, where a witness testified that his name was 
spelled Malay or Maley and that he was called Maley, but never 
Mealy, — the court left it to the jury to say whether the name proved 
was idem sonans with the one in the indictment, and it was held 
that tiiis mling was right.*" In another case the court submittod 
to the jury the question whether the name Celestia and Celeste 
were usually and ordinarily pronounced alike, and it was held 
proper.** 



*>Com. T. Warren, 143 Mua. 668, 
10 N. B. 178; Reg. v. DavlB. 4 New 
SesB. Cbb. 611, 6 Coz C. C. 287. 2 
Den. C. C. 233. . 

*«ReK. T. Davta, Bupra. 

M Com. T. Donovan, 18 Allen 
(Mass.), 571. 

(■Com. v. Warren, 143 Maae. G68, 
10 N. B. 178. See also Com. v. Jen- 
nings, 131 MasB. 47. It has been 
Iield, as matter of law, that tbere 
Is no variance between "Davey" 
and "Darld," but this conclusion 
could not be on the principle of 
Idem sonans any more than "BUI" 
would be taken for "William" or 
"Jim" for "James" and tbe like, 
but It must be OB Judicial notice Of 



a custom or usage. See I^imb v. 
People, 219 III. 399, 76 N. E. 67G; 
Chrast v. O'Connor, 41 Waata. 860, 
83 Pac. 238. "SbeSey" liaa been 
held not to give record or construe- 
tlve notice of "Chetfer," though one 
may easily suppose them pro- 
nounced precisely alike. Boyd t. 
Boyd, 128 Iowa, GB9, 104 N. W. 798. 
It was ruled that "Sibert" and 
"Selbert" are practically the same 
nama and constructive notice was 
effectual. Green t. Meters, 98 Mo. 
App. 438, 72 8. W. 128. "Whoso" 
baa been taken for "Hosea." Tap- 
ley T. Herman, »6 Ho. App. 637. 69 
B. W. 482. 



ovGoo<^lc 



OHAPTEB.XiIL 

RBABONABIANBSa 



AmncLS L — ^Rbabomablb Tmm. 

ABTICLB n. — ^BXASONABLB TmNQS. 



'Ajenaa L— Beasokabli Tihb. 

lESO. Ofliieral Otaerratlons. 

1B31. Ueaolng of tbe Words '^RaBflonable Time." 

1S32. As a QneatlEHi of Interpretation: Meaning of Words whlcli Imply 

Immediate Action. 
16S3. Rosaonable Time for Forfonning a Contract: Tbe General Rule 

Stated. 
1684. For Delivery of Oooda tj Common Carrier, 
16SE. Other lUtutrationi. 
1S8S. Tot Uaklng Payments. 

1&37. 'Unreasonable aod Vexations Deltv of Paymsnt* 
IfiSS. Parol Evidence Admissible on the Question. 
1639. For Making a Tender: A Qneetlon of Law. 
lElO. Rule where the Tender Is to be Made at a Certain Place. 

1641. For the Rescission or DlaaOrmanca of a Contract obtained by 

Fraud. 

1642. For the Rescission of a Contract of Sale for a Breach of Warranty. 

1643. For the DIsafDrmanoe after Coming of Age of Contracts made 

during Infancy. 

1644. For the Dlsafllrmance of the Unautboriied Acts of an Agent. 

1546. For the Return of Money Received under Rescinded Contract 
1646. For the Retnm of Connterfelt Money. 

1547. For Objecting to an Account Rendered. 

1648. For tbe Acceptance of an Office. 

1649. For tbe Acceptance of Shares of Unpaid Stock by a Bankrupt As- 

signee. 
15G0. Reasonable Notice to Quit a Yearly Tenancy. 

1661. Reasonable Notice of Discontinuance ot Contract of Service, 

1662. For Applying for Letters of Administration. 

1663. For Removing Goods by Executor from Mansion of Testator. 

1664. For Removing Trespassing Cattle. 

1656. Consideration: Reasonable Time of Forbearance to bring Suit 
U66. PrlortUes among Creditors: Delay in Bxpostng Property to Judi- 
dal Bale. 



Goo^^lc 



1166 psoviNca OF court and jury. 

1B57. Time during which Member of Parliament prMlesed from Arrest. 
IB68. Whether a Settler on Public Land has followed up hlB Location 

with Reasonable Diligence. 
1559. In Matters arising tn the Course of Judicial Administration. 
1660. Reasonable Time for holding Prisoner for R&eiaminBtlon. 
166L For Passenger to call for and Receive his Baggage after Tnuisit 

Ended. 
1562. Reasonable Time for seliing after Distress. 
1B63. Delay in making Voyage Insured. 
1SG4. Time for returning Qooda sold by Sample^ 
1G6E. Time for Transmitting Inland Bill of Bichonge. 
15S6. Other Coses where Reasonable Time has been held ft Question for 

a Jury. 

§ 1630. General Observatloiui. — In one iurisdiction it is said: 
"■Where the facta are clearly established, or are tindisputed, or ad- 
mitted, reasonable time ia a qaestioa of law. But where, what is 
a reasonable time depends upon certain other controverted points, 
or wbere the motives of the parties enter into the question, the 
whole is neeeasai-ily to be submitted to a jury, before any judgment 
can be formed whether the time was or was not reasonable." * In 
another jurisdiction the question has been thus discussed: "It is 
a familiar rule, that all questions of law are to be determined by the 
court, and that questions of fact are within the exclusive province of 
the jury. Ordinarily, there is but little difficully in ascertaining 
what questions are for the court, and what for the jury; but there 
are cases in which it is somewhat difficult to determine whether the 
conclusion is one of fact or of law. This difficulty frequently 
arises when the inquiry is as to questions of reasonable time, rea- 
sonable cause, due diligence, probable cause, and others of like 
character. Abstractly, these are questions of law, just as the terms 
larceny, robbery, and assault and battery are; for 'it is a question 
of legal judgment and discretion, to pronounce whether the facts, 
as found by a jury, do or do not satisfy the legal expression.' But 
the latter terms, and others of the same class, are absolutely defined 
and det«rmined in the law by general rules applicable to aU cases ; 

1 Hill ▼. Hobart, 16 Me. 164, 16S, where the nncon trove rted evidence 
opinion by Shepley, J. It Is said so clearly proves the Issue that 
there are two well recognized ex- there Is really no question In re- 
ceptions to this being a question of spect to the fact to be submitted to 
fact. One, where there are fixed the jury. Dunn-Flato Com. Co. t. 
and certain rules for Its determina- Gerlacb Banic, 107 Ma App. 426. 
tioa by the court, and the other 81 S. W. 603. 



7crib;G00<^IC 



BEASONABLENESS. 1167 

K> that, DpOD tiie finding by the jury of tbe speeifie facts in each 
particular case, the lav draws th« conclusion that they do or do not 
constitcte the particular offenBC charged. In all such cases, there- 
fore, it IB for the court to determine as a question of law, the suffi- 
ciency or iDSufficiency of the facts to constitute the offense ; so, in 
some cases, the law determines whfit shall or shall not be reasonable 
time or cause, and the lilce. As, in the case of a bill of exchange, 
where the law requires notice of dishonor tA be given within a rea- 
sonable time, if it appears on the facts proved in evidence, that 
the case ia one falling within a rule by which the law itself pre- 
scribes, and defines what shall be considered to be a reasonable time, 
the question is a mere question of law ; for the law itself, from the 
mere res gestce, makes the inference that the time was reasonable. 
But in other instances questions of t^is character depend on such an 
infinite variety of circumstances that, by reason of the imprac- 
ticability of prescribing any general rule applicable to the facts 
of each particular case, the inference in law follows the inference 
in fact; and in such cases the time will be reasonable, or the cause 
probable in point of law, according as the one or the other is reason- 
able or probable in point of fact. 'Hence it follows that the test 
for deciding whether such general inference as to reasonable time, 
probable cause, etc., be one of law or fact, is this: if the court in the 
particular esse can draw the conclusion by the application of any 
legal rules or principles, the cimclusion is a legal one. But if, on 
the other hand, the circumstances be so numerous and complicated 
as to exclude the application of any general principle or definite 
rule of law, the further inference is neceraarily one of mere fact, 
to be made by the jurj'. In other words, the rules of ordinary prac- 
tice and convenience, become the legal measure and standard of 
right.' "* "The law," said Mr. Starhie, "cannot prescribe in gen- 
eral what shall be reasonable time by any defined combination of 
facts, BO much does the question depend upon the situation of the 
parties and the minute and peculiar circumstances incident to each 
case. If a man has a right, by contract or otherwise, to cut and 
take crops from the land of another, the law, it ia obvious, can lay 
dowD no rule as to the precise time when they shall be cut and re- 
moved; all that can be done is to direct or imply that this shall be 
done in a reasonable and convenient time; and this must obviously 

t Cochran T. Toiler, 14 Minn. S 



;abyCoO<^lc 



1168 PBOVINCB OP CWDBT AND JUBY. 

dep^d upoD the state of the weather, luid other circamstances 
which cannot, from their nature, form the basis of any legal rule 
or definition."* "The term reasonahle time," said Currey, C J., 
"ia a technical and legal ezpressioo which, in the abstract, involyes 
matter of law as well as matter of fact Whenever any rale or 
principle of law applies te the special facte proved in evidence 
and determincB their legal quality, ite application is matter 
of law. Bat whenever the special facte and cironmstances are 
such that the court cannot, by the aid of any legal role or principle, 
decide apon the legal quality of the facts, it is necessary that the 
jury should draw the inference in fact, with reference to the or- 
dinary course and practice of dealing and the general principles 
of morality and utility. Where the law itself prescribes what 
1^11 be considered to be reascmahle time in respect to a given sub- 
ject, the subject is one of law, and the duty of the jury is confined 
to finding the simple facts. Where, on the other hand, the law does 
not, by the operation of any principle or esteblisbed rule, decide 
upon the legal quality of the simple facte or res geata, it is for the 
jury to draw the general inference of reasonable or unreasonable 
[time] in point of fact. In such cases the legal conclusion follows 
the IbI erence of facte ; in other words, the question as to reasonable 
time, eto., is one of fact; and the time is reasonable or unreason- 
able in point of law, according to the finding of the jury in point 
of fact"* 

§ 1B31. meaning of the Words "Beasonable Time." — The 

words reasonable time would seem to be so easily understood as not 
to be capable of being made plainer by attempte at definition. The 
same may be said of the words "reasoriable doubt;" and yet, as 
hereafter seen,' there are hundreds of cases, many of them con- 
flicting and some of them fantastic in their absurdity, which under- 
take to prescribe in what maimer the judge shall, in chaining the 
jury in a criminal trial, define the words reaaonable doubt. If it 
is proper to attempt any definition of the words reasonable time, 
that given by Chief Baron Pollock may be suggested, namely, that 
"a reasonable time means, as soon as circumstances will permit."* 

g 1632. As a Questioik of iDterpretation.— Heaniosr of Words 
which Imply Immediate Action. — This question frequently arises 

I Stark. Et. (9tb Am. ed.) 769. ■ Foet, 1| 2463, et seq. 

* Lnckhart v. Osden, 30 Cal. 548, • Ooodwyn v. Cheveley, 4 Hurl, k 
5S8. N. 631. 633. 



7crib;G00<^IC 



REASONABLENESS. 1169 

in interpreting the meaning of worda in written instruments which 
ordinarily imply immediate action. Thus, in an old case it was 
ruled by Lord Hardwiek that the word "immediately" is not to be 
interpreted in a sense which excludes all intermediate time and 
action.* In another old case it was said: "Though the word im- 
mediately, in strictness, excludes all mesne time, yet to make good 
the deeds and evidence of parties, it shall be construed such con- 
venient time as is reasonably requisite for doing the thing."* 
Where, in another case, the governing statute required the judge 
before whom a cause should be tried to give the plaintiff a certiiicattt 
"immediately afterwards," where the action was brought to try a 
right," it was held that "immediately afterwards" did not mean 
the very instant afterwards, but that it meant within such reason- 
able time as would exclude the danger of iotervening facts operating 
upon the mind of tbe judge, so as to disturb the impression medo 
apon it by the evidence in the cause." In a case involving the 
interpretation of a coroner's inquest on a dead body, which, after 
reciting the accident, proceeded to state, "of which shock," etc., 
"the deceased instantly died," — it was said by Lord Denman, C. J., 
in giving the opiniw of the Court of Queen's Bench, that the word 
instantly wasnoteqnivalent to "then." " 'Then,"ffdiKnc,' "said 
the learned judge, "means the very time at which the other event 
happened ; it therefore involves the same day ; and such is the known 
sense ofthe term in pleading. But of 'instantly' the more natural 
and usual sense is, instautly after; we do not know what the pleader 
may mean by that allegation; possibly five minutes or an hour, 
some time oo the succeeding day, or even a longer time. By the 
course of precedents such words as instanter and incontinenter do 
not dispense with a direct allegation of time: we repeatedly find 
tbem associated with it. " " In a statute giving two justices of the 

T Rex ▼. Francis, CaE«s Temp. > Stat 3 ft 4 Vict., cb. 24. 
Hardw. (Lee) 114. So tbe worda 'oTbompGon v. Qlbson, S Mees. 
"at once" ore construed according A W. 281. Where Insured was re- 
ts circumstances and context. Be- Qutred to give "Immediate notice" 
mis V. J. A. Coates ft Sons, 29 Ry. of loss, It was left for tbe Jury to 
Iaw Hep. 97S, 96 S. W. 685. Tbe say wbether four months wba with- 
word "prompUy" bardly adds any- la time, where there was nothing 
thing to tbe meaning of reasonable to sbow it could have been given 
time. McClesky ft Wbitman v. sooner. Carey v. Famier's Ins. Co., 
Howell Cotton Co., 147 Ala. B73. 43 27 Or. 148, 10 Pac. 91. 
Soutb. 67. 11 Reg. J. Brownlow, U Ad. ft EH. 



• Pybns T. MltTord, 2 Leon. 77. 119, 127. 
TuALs — 7* 



7crib;G00l^lC 



1170 PEOTINCB OF OOUBT AND JUET. 

peace power to hear and determine causes of cwnmon assault, and 
providing that, when they should dismiss the complaint, they shoold 
"forthwith make out a certificate under their hiinds, Btatingr the 
fact of such dismissal," and "deliver such certificate to the part? 
against whom the complaint was preferred," and providing that 
the person receiving such certificate should not be prosecuted agun 
for the same offense, civilly or criminally, — the meaning of the word 
"forthwith" has been held to be, so soon that the facts connected 
with the question are still fresh in the minds of the justices ; and that 
a certificate granted several months after the dismissal is not 
granted "forthwith," so as to har a subsequent common-law proso- 
cution.^* Where a statute requires a thing to be done "forthwith," 
it is the duty of the judge to expound to the jury the meaning of 
the word forthwith ; but it hag been held that he may leave it to 
them to say, whether, under the circumstances, the thing had or 
bad not been done within a reasonable time, and therefore according 
to a reasonable construction of the word "forthwith."" It has 
been held that a contract by a manufacturer to furnish certain 
specified goods "aa soon as possible," means within a reasonable 
time, regard being had to the manufacturer's ability to produce 
them, and to orders which he may have on hand ; and that it doea 
not mean as soon as the gooda can be furnished by any possibility, 
laying aside all other orders which the promissor might have." 
Where a contract — as for instance to deliver goods — is by its terms 
to be performed "on or about" a date named, it is interpreted to 
mean that it must be performed within a reasonable time after such 
date; and what is a reasonable time in such a case, is a question of 
fact for the jury under all the circumstances," 

S 1533. BeasonaUe Time for Performing a Contract: The Gen- 
eral Rule Stated. — Where no time is specified in the contract, with- 
in which it is to be performed, as, in the case of a sale of gooda, 

11 Reg. V. Roblnaon, 12 Ad. & El. N. E. 668; Donahue v. Windsor 
872. See for the meaning of this Conntr M. F. Ids. Co., 66 Tt 374. 
word in a clause In a policy ol la- i*Atwood v. Broery, 1 Com. 

Burance respecting notice ot loss, Bencb (n. s.) 110. Sudt a phrase 
ante, S 1296. has a deflnlte legal meaning. Will- 

i*Tennant v. Bell, 9 Ad. * El. lama v. Gridley, 187 N. Y. B26, 79 N. 
(s. B.) 684. Thus It was left to the E. 1119; Looinia v. Prlntera' Supply 
Jury where statement of loaa by fire Co., SI Conn. 343, 71 Atl. 353. 
was required. Harden v. Mllnau- » Klpp v. Wiles, 3 Sandf. <S. C) 

kee M. Ina. Co.. 164 Mass. 332, 41 <N. T.) 685, 688. Compare Ellis v. 
Thompson, 3 M«eB. ft W. 445. 

IC 



1171 



within which delivery is to be made, — the Uw annexes to it the con- 
dition that it is to be performed within a reasonable tame, and what 
will be a reasonable time is a question for the jury, regard being hail 
to all the circumstances of the case," though it is conceded in some 
eases that the question may be ruled as a qvestion of law." "Where 
the parties have, by correspondence, extended the time within which 
an existing contract is to be performed, without mentioning the 
time, it has been held that the law will annex to the agreement the 
implication that it is to be performed within a reasonable time, and 
that what ia a reasonable time will be, under the circumstancea, a 
question of law for the court.'* 

§ 1534. for Delivery of Goods by a Oomtnon Carrier. — Thus, a 
common caiTier who receives goods and begins the transit is, in the 
absence of a special agreement, bound to deliver them within a 
reasonable time. What is a reasonable time is ordinarily a question 
of fact for the jury; and the usual course of delivery is, in most 
cases, prima fade evidence of what is a reasonable time.'* 



w Cocker t. Franklin etc Co., S 
Saaxa. (U. S.) 530; EUIb v. Tbomp- 
Bon, 3 Mees. ft W. 445; Evodb v. 
Hardeman, 15 Tex. 4S0; Green v. 
Haines. 1 Hilt. (N. T.) 254; Hays 
T. Haya, 10 Klch. U (S. C.) 419; 
Mullman T. D'Egulno, 2 H. Bl. 66G; 
Wilder T. Spraxue, 50 Me. 354; Mur- 
rell T. WbltiDE, 32 Ala. 55, 65; Stea- 
sall T. McKellar. 20 Tex, 2S5; Man- 
ley T. Crescent Novelty Mfg. Co., 
103 Mo. App. 13E, 77 S. W. 4S9; 
MorriBon v. Wells, 48 Kan, 494, 29 
Pac. 601; Elder v. Rourte, 27 Or. 
363, 41 Pac. 6; Boylngton v. 
Sweeney, 77 Wis. 55, 45 N. W. 938. 

iTHiU V. Hobart, 16 Me, 168. 
See also Atwood t. Clark, 3 Me. 
249; Klagsley v. Wallls, 14 Me. 67; 
Howe V, Huntloeiton, 15 Me. 350; 
Weaver ft Stames v. King (Tex. 
CiT. App.), 98 S. W. 902 (not re- 
ported in state reports); Hanna v. 
Bspalla, 148 Ala. 313, 42 South. 143. 
tr no time Is fixed In a contract be- 
tween a. broker and his employer 
and tlie employer C0Qsummat«a a 



negotiation Initiated by tils broker, 
be Ifl estopped to claim the matter 
was not brought about In a reason- 
able time. In a suit by the broker 
for his commission. Morgan v. 
Keller, 194 Mo. 663, 92 S. W; 75. 
Where the time Is fixed aa "at the 
earliest possible moment," party 
alleging non-performance must 
prove ability to perform. Rowlett 
v. Lane, 43 Tex. 274. 

■B Lnckhart v, Ogden, 30 Cal. 548, 
559. 

1* Schwab T. Union Line O., 13 Mo. 
App. 159, 162. Ab to what obstruc- 
tions will excuse delay, and conse- 
quently constitute circumstances 
to be considered by the Jury upou 
the question of reasonable time. Bee 
Railroad Co. v. Taylor, 35 L. J. (C. 
P.) 210; Railroad Co. v. Burrows, 
55 MKh. 6; Railroad Co. v. Burns. 
GO III. 284. That the carrier cannot 
set up BJi extraordinary Influx of 
business beyond Its carrying ca- 
par-lty as an excuse tor a delay be- 
yond the usual time, see Tucker v. 



o;Goo<^lc 



1172 PBOVINOB or OOUBT AND JOBT. 

§ 163B. other ninstratloiu. — ^It has been bo held where work is 
done uoder acoiitract, the gpeciflcations of which are departed fruD 
b; direction of the party for whom the work is done. Such de- 
parture excuses performance withiu the time limited hy the contract, 
and the obligation tiiere&fter ig to complete the tiork within a rea- 
s(Hiable time.*" It ia so ruled where the question is whether an 
action for ^e breach of a contract which fixes no time of perform- 
ance, is barred by limitation; since, until the lapse <d the reasonable 
lime which the law implies for performance in such a case, there 
is no breach of the contract such as will entitle the obligee to main- 
tain an action thereon, and such as will put the statute of limitatima 
in motion.*' It was so held where the time related to the delivery 
of certain com, which the defendant had sold to the plaintiff, and 
the evidence vma that the plaintiff was to call and get the com 
within two or three weeks after the contract, although no particular 
time was speciited.** In another case the plaintiff sold to the de- 
fendant three thousand bushels of wheat, to be delivered at (be 
defendant's mill. It was understood by the parties that the wheat 
had to be transported by a team a distance of twelve miles, It was 
held that the plaintiff w&s not required to deliver or offer to deliver 
the whole anioimt in one lot at one time, — such mode of delivery 
not having been in the minds of the parties, and not being reasonably 
practicable, in view of the character and situation of the property ; 
and, the vendee having brought an action for a breach of tie con- 
tract, it was held that, whether a reasonable time for a delivery 
had elapsed was a question for the jury.** It has been so held in 

Pacific R. Co., 50 Mo. 385; Faulknar Soutb. 471. And bo whether con- 

V. South. Pacific Railroad. 61 Mo. Bignee has delayed for an unreaaon- 

311. That the sudden and wrong- aUe time removal of hla gooda. 

ful reFueal of Its employees to work Adams Exp. Co. v. Tingle, 7 K7. 

win not excuse a railway company l^w Rep. 441. 

In falling to deliver In the ueual » Green v. Haines, 1 HIIL (N. 

time, see Read v. St. Louis etc. R. T.) 254. 

Co., 80 Mo. 199; Alexandre v. Allan- » Evans T. Hardeman, IE Tex. 

tic C. L. R. Co., 144 N. C. »3, 56 8. 480. 

E. G97 : Claua-Shear Co. t. Lee ■* Steagall v. HcKellar, 20 Tex. 

Hardware House, 140 N. C. 552, 53 266. 

S. E. 433. What conatltutes rea- h Roberta t. Maseppa Mill Co., 

aonable time after which liability 30 Minn. 413, IB N. W. 680; Cocker 

as carrier has ended and that of t, Franklin etc. Man. Co., 3 Samner 

warehouseman begins has been held (U. S.), 630; Coates v. SEuigstoQ, 6 

a queatlon of law. Columbus ft W. Md. 121. See also Cochran T. 

Ry. Co. T. Ludden, 89 Ala. 612, 7 Toher, 14 Mlna. 8S5; DeroslaT. Wi- 

Coo^^lc 



REASONABLENESS. 1173 

the case of a sale, where the contract is silent be to the time of 
payment; in which ease the law annexes to it the condition that pay- 
ment is to be made within a reasonable time.** So, where a contract 
is to be performed npon the happening of an event which the obligor 
nndcrtakes to bring about, the rule seems to be that he must bring 
the event about Within a reasonable time or he will be liable for non- 
performance, and that what ia a reasonable time is a question fov 
a jury. Thus, a party accepted an order for the payment of a sum 
of money "when he sold certain wharf logs." Three years after 
this acceptance, an action was brought upon it, and the acceptor 
was permitted to show his inability to effect a sale of the logs, not- 
withstanding he had used all the common and ordinary means of 
so doing. It was held that, whether there had been an unreasonable 
delay in effecting the sale was properly submitted to the jury.** 
So, where a chtrter party provided for two voyages from Mobile, 
one to Toulouse and the other to some Atlantic port in France, 
secured to the owners of the vessel the right to send her, after the 
termiDBtion of the first voyage, "to any other port in Europe to 
load for any port of the TTnited States, proceeding from such port 
to Mobile to commence the second voyage, ' ' — it was held a question 
for the jury whether an offer to perform the second voyage was made 
within a reasonable time after tbe termination of the first, and this, 
notwithstanding the written evidence in the case, consisting of the 
correspondence had between tbe parties showing the dates at which 
the vessel touched at her several ports.** 

5 1636. Tor Making Payment.— The question what is a reason- 
able time within which to pay a debt, under an agreement allowing 
a reasonable time, ia a question for the court.^^ 

§ 1637. "tTnreasonable and Vexations Delay of Payment. "— 
A statute of Illinois provides that certain demands shall bear in- 
terest where there bas been, "an unreasonable and vexatious delay 
of payment." It ia held that something more than mere delay of 

nooa etc. R. Co., IS Mian. 133; Pin- Compare Doe v. Ulpb, 66 Eng. 0. h. 

ney r. First DtviBion etc. R. Co , 19 208, 13 Q. B. 204. 

Ulnn. 251. Upon, tbe question of « Murrell v. Whiting, 32 Ala. G5, 

reasonable time generally, see Ellis 65. 

T. Thompson, 3 Hees. ft W. 145. )t Bottum t. Moore, 13 Daly (N. 

i*BAju V. H&ys, 10 Rlcb. Law Y.), 464; ante. 9} 1220. 1221; Bot- 

(S. C), 419. turn V. Moore. 13 Daly (N. Y.), 464. 

u Wilder v. Sprague, GO He. 8E4. 



D.qitizeabyG00<^lc 



1174 PROVINCE OP COUET AND JUBT. 

pajTneiit is necessary to bring a case within the operation ol this 
statute," and that whether the delay has been unreasonable and 
vexatious is a question of fact for the jury under the eireumstancea." 

§ 1638. Parol Evidence admissible on the QaMtion. — ^In deter- 
mining this question, parol evidence of the conversations of the 
parties may be admitted, since this evidence may tend to show wh:;t 
the parties themselves thoi^ht would be a reasonable time for per- 
forming it."* In cases of iailment, where the contract is indefinite 
as to the time of its continuance, the bailee has not the arbitrary 
and exclusive right to determine at what time it shall terminate. 
If the bailment is for any expressly declared purpose, it terminates 
whenever that purpose is accomplished. If the time be not fixed by 
t^reement, or by the nature of the object to be accomplished, then 
the bailee must return the property whenever called upon, after a 
reasonable time; and what time is reasonable must be determined 
by the circumstances of each particular case.** Accordingly, it is 
held that if the written contract does not, in its terms, specify the 
time of its continuance, parol evidence becomes necessary, in order 
to enable the joiy to determine what length of time is reasonable 
under the circumstances." 

S 1S39. For making a Tender: A Question of Law. — Contrary 
to the preceding holdings, the rule is that what is a reasonable time 
within which to make a tender is also a question of law.** "It is 
not," said Parke, B., "to be left to a jury, to be determined as a 
question of practical convenience or reasonableness in each case; 
but the law appears to have fixed the rule, and it is this: that a 
party, who is, by contract, to pay money, or to do a thing transitivy, 

wSamlfl V. Clark, 13 UI. 454; MCobb v. Wallace, S Coldw. 

Hltt V. Allen, Id. 692; Clement v. (Tenn.) 539, 545. 

McConnell, 14 III. 164; McCormlck "SUrtup t. MacDonald, 6 Han. 

T. ElBton, 16 III. 206; Aldrlch v. ft 0. 693, where It wM ruled In the 

Dunham, Id. 404. Exchequer Chamber (reversing the 

" Kennedy v. Qibbs, 15 111. 406; court of common pleas), that a tett- 
Davis V. Kenaga, 61 HI. 170. And der of goods by a vendor made at 
BO ander Missouri statute authoriz- halt past eight o'clock In the even- 
ing damages and attorney's fee. Ing wsa made wlthtn a reasonaUe 
Keller t. Home L. Ins. Co., 198 No. time, although the Jury had, by a 
440. 95 S. W. 903. special verdict, found that the time 

10 Cocker v. Franklin etc. Co., Z was unreasonable. Lord Penman, 

Sumn. (U. S.) 630. C. J, dissented. 

u See 3 Pars. Contr. 128, 139. 



D.qitizeabyG00<^lc 



REASONABLENESS. 1175 

to another, anywhere, on a certain day, has the whole of the day, 
and if on one of several days, the whole of the days, for the per- 
formance of his part of the contract; and until the whole day, or 
the whole of the last day, haa expired, no action will lie a^inst him 
for the breach of such contract. In snch a ease, the party bound 
most find the other, at his i>eril,** and within the time limited, if 
the other be within the foar aeas; and he must do all that, without 
the ccmcurrence of the other, he can do, to make the payment, or 
perform the act, and that at a coDveuient time before midnight, such, 
time varying according to the quantum of the payment, or nature 
of the act to be done. Therefore, if he is to pay a sum of money, 
he most tender it a sufficient time before midnight for the party to 
whom the tender is made, to receive and count; or if he is to deliver 
goods, he must tender them so as to allow s sufficient time for exam- 
ination and receipt This done, he has, so far as he could, paid or 
delivered within the time ; and it is by the fault of the other only, 
that the payment or delivery is not complete. ' ' " 

S 1540. Role where the Tender Is to be made at a Certain 
Place. — "But," continued Baron Parke, "where the thing to be 
done is to be performed at a certain place, on or before a certain 
day, to another party to a contract, there the tender must be to 
the other party at that place; and, as the attendance of the other 
is necessary at that place to complete the act, there the law, though 
it requires that other to be present, is not so unreasonable as to re- 
quire him to be present for the whole day, where the thing is to be 
done on -one day, or for the whole series of days, where it is to be 
done oa or before a day certain ; and, therefore, it fixes a particular 
part of the day for his presence ; and it is enough if he be at the 
place at such a convenient time before sunset on the last day, as 
that the act may be completed by daylight ; and if the party bound 
tender to the party there, if present, or, if absent, be ready at the 
place to perform the act within a convenient time before the sunset 
for its completion, it ia sufficient; and if the tender be made to tJ.e 
othgr party at the place at any time of the day, the contract is per- 
formed; and though the. law gives the uttermost convenient time 
on the last day, yet thia is solely for the convenience of both parties, 
that neither may give longer attendance than is necessary; and if 

M Kidwelly V. Brand, Plowd. 71. m startup v. MacEktnald, 9 Man. 
ft O. 5S3, 624. 



7crib;G00<^IC 



1176 



PBOVINCE OP OOUET AND JUEY. 



it happen that both parties meet at the place at any other time of 
the last day, or on any other day within the time limited, and a 
tender is made, the tender la good." This is the distinction which 
prevuls in all the cases: where a thing is to be done anywhere, a 
tender a convenient time before midnight is sufficient; where the 
thing is to be done at a particular place, and where the law implies 
a duty on the party to irfiora the thing is to he done to attend, that 
attendance is to be by daylight, and a convenient time before sun- 
set."" Mr. Baron Alderson in the same ease said: "The general 
rule, I conceive, is, that wherever, in cases not governed by partic- 
ular customs of trade, the parties oblige themselves to the perform- 
ance of duties within a certain number of days, they have until the 
last minute of the last day, to perform their obligation. The only 
qualification that I am aware of to this rule is, that in acts re- 
quiring time in order that they may be completely performed, the 
party most, at all events, tender to do the act, at such a period be- 
fore the end of the last day, as, if the tender he accepted, will leave 
him sufScient time to complete his performance before the end of 
that day. In the case of a mercantile contract, however, the c^- 



to a distress, if he tsntler any time 
before It tahea place. But as tbe 
rent Issuea out of th« land, It Is 
competent tor the tenant to protect 
himself bj being ready on the luid 
at the door of the mansion house, 
or the place moot notorious, a con- 
venient time, before eunaet, tor the 
rent to be counted over and re- 
ceived, and remaining there during 
that time, though the lessor be not 
there to receive It. TInckler v. 
Prentice, 4 Taunt. G49; Bro. Abr. 
tit. Tender, pi. 41; HUl T. Orange, 
Plowd. 173. And, on the other 
band, it the lessor wishes to en- 
force a clause of re entry tor non- 
payment of rent, he must be on the 
land at the time and place before 
mentioned, and there demand It. 
But If the parties meet at any time 
whatever on the last day, on or off 
the land [Cropp v. Hambleton, Cro. 
Bllz. 4S), and the tender Is made, 
the forfeiture 1b saved," 



u Citing Bac. Abr. Ut. Tender D. 
a; Co. LltL 202 a. 

w Startup V. MacEKinald, 6 Man. 
A O. 693, 624. 'This," continued 
Baron Parke, "la the meaning of 
[he distinction In Withers v. Drew, 
Cro. Ellz. 6TG, referred to in Vln. 
Abr. tit Night (citing Co. Litt. 202. 
211; 6 Co. Rep. 114; Cro. Ellz. 14), 
and cited on the argument,— that 
things done In the night where per- 
sonal attendance of another Is not 
necessary are good; as an award 
made in the night before twelve 
was held to be valid. The case of 
a reservation of rent with a cove- 
nant to pay It, affords a clear lUue- 
tratlOD of the principle above laid 
down. The tenant has until the 
last moment of the day to pay rent; 
and If he tender It to the lessor per- 
sonally on the land, if he can And 
him, a convenient time before mid- 
night, he la not liable to an action 
(Keating v. Irish, 1 Lutw. 227); or 



D.qitizeabyG00<^lc 



BEASONABLENESS. 1177 

posite parly is not bound to wMt for sncli tender of performance 
beyond the usual bours of mercantile bnsiness, or at any other tban 
tbe usual place at which the contract ought to be performed. The 
party, therefore, who does not make his tender at that usual place, 
or during those usual hoara, nuts a great risk of not being able to 
make it at all. In this case the plaintiffs have bad tbe good fortune 
to meet with the defendant, and to make a tender to him in suf- 
ficient time. And I think, under these circumstances, that tbe de- 
fendant was bound to accept the goods, and is liable in damages for 
not accepting them,"" 

§ 1541. For the Beidssion or DisafDnuance of a Contract ob< 
tained by Frsad. — ^It is well settled that where a party has been in- 
duced by fraud to enter into a contract, if be would rescind it, he 
must offer to do so within a reasonable time after discovering the 
fraud.** In an action at law, what will be a reasonable time has 
been said to be a mixed question of law and fact, proper to be sub- 
mitted to the jury.*' Where no facts are prejented, except the 
simple (me of the length of time which has elapsed between the 
making of the contract and the offer to rescind, tbe court must say, 
as matter of taw, whether th6 time was reasonable. But where there 
are disputed facts involving questions of excuse, of tbe discovery 
of the fraud, etc. ; whether the time was reasonable is a question of 
fact for the jury under all the eircumstanees," 

% 1642. ?or tbe Bescissioii of a Oontract of Sale for a Breach 
of Warranty. — ^It has been held that, where there has been a breach 
of warranty, the vendee of a chattel may return it to the vendor and 
rescind the contract vrithio a reasonable time.** It is also held that, 

Mlbld. 6S2. St Rep. 831; Warder t. Bowen, SI 

M GatUng T. Newell, 9 lad. 673, Minn. 33E, IT N. W. 943. 

S77: Cain v. Outtirle. 8 Blackf. tiQatlloK v. Newell. 9 Ind. 572, 

(Ind.) 409:-Tllton Safe Co. T. Tls- 677; Clark t. Wheeling Steel 

dale, 48 Tt S3; Appeal of Mo Works, 5S Fed. 494, 3 C. C A. 600. 

Dowell, 133 Pa. 381, 16 AU. 763; «* Brancon v. Turner. 77 Mo. 489; 

Rldiaidaon t. Love, 149 Fed. 626, Johnson v. Whitman Agr. Co., 20 

77 C. C. A. 317; Toung v. Amtze, 86 Mo. App. 100; overruling Walls v. 

Ala. 118, G South. 363. Gates, 4 Mo. App. 1, 6; Dodaworth 

<• Chamberlain v. Fuller, 59 Tt t. Herculea Iron Works, 66 Fed. 4S3, 

347, 252; Fox v. Table, 66 Conn. 13 C. C. A. 652; C. ft C. Electric 

397, 34 Atl. 101; Pleraon v. Crooka, Motor Co. v. Frlsble ft Co., 66 Conn. 

115 M. T. 539, 22 N. E. 349, 12 Am. 67, S3 Atl. 604; Dorrance v. Ponse 

Co., 233 111. S64, 84 N. B. 269. 



7,:rb;G00t^lc 



1178 PBOVINCB OF COUET AND JUBT. 

npon & tender of the property to the vendor within a reasonable 
time, the vendee may sue for and recover the purchase-money which 
be has paid for it/* It has been laid down that the time within 
which the vendee may choofie to retain the article before tendering 
it back, in the absence of any circumstances tending ta excuse the 
delay, may be so short that the court may declare it to be a reascm- 
abie time, or so long that the court may declare it to be an un- 
reasonable time, as matter of law; and it was intimated that two 
months and a half, in the absence of explanati(Hi or excuse, would 
be, as matter of law, an unreasonable time." 

§ 1543. For the Disaffirmance after coming of Age of Contracti 
made during Znftuicy. — The well known rule is that contracts of 
infants are not absolutely void, but voidable at t^eir election after 
arriving at their majority. Such a contract is eonfinned if, afte^" 
arriving at majority, the infant do no other act but fail to disaffirm 
it within a reasonable time. "What is a reas<mable time for such dis- 
afBrmance is held to be a Question of fact, as it necessarily depends 
upon the circumstances oE each particular case.** It is theref<H% 
error to instruct the jury that, if, inunediately on reaching full age, 
the infant had knowledge that he was not bound by the deed, but 
did not disafBnn for a period of ten months, the time was unreastsi- 
able.** But where a minor executes a deed of ctmveyance of land, 

u Johnson v. Whitman Agr. Co., ••Wilej v. Wilson, inpra. In 

20 Uo. App. 100. ScrantoQ t. Stewart, 62 Ind. 68, It 

-4* Johnson T. Whitman Agr. Co., was held that, In the case ol the 

supra; Manley v. Crescent Novelty conveyance of real estate by an tn- 

Mfg. Co., 103 Mo. App. 135, 77 S. W. fant, a disaffirmance within three 

489; Gamble v. Tr[pp, 99 Cal. 223, and a hall years after coming of 

33 Pac. SSI; Campbell Printing P. age waa within reasonable time. 

Co. V. Mar«h, 20 Colo. 22, 33 Pac. In Miles v. Lingerman, 24 Ind. 3S5, 

799. And the nature of the article it was held that a married wMnan 

Is often a determinative factor, could maintain an aiAlon ten years 

Jones V. Bloomgirden, 143 Mich, after she came of age tor lands con- 

326, 106 N. W. 891; Tower v. Panly, veyed white she waa a minor, al- 

51 Mo. App. TE. though they had passed into the 

4i Scott V. Buchanan, 11 Humph, hands of an Innocent purchaser. 

(Tenn.) 468, 476; Wiley v. Wilson, In Law v. Long, 41 Ind. 586, 699, it 

77 Ind. 696. But this is often de- was said: "The authorities all 

elded by the court as a question of agree that the contract must b6 dis- 

law, the tacts being clear. See affirmed within 'a reasonable time' 

Uacoi V. Oriffith, 76 Iowa. 89, 40 N. after the Infant arrives of age. but 

W. 109; Johnson v. Storle, 32 Keb. there is great diversity of opinion 

610, 49 N. W. 371, as to what Is 'reasonable tlma.' " 



Coo^^lc 



ttEASOlfABLENtSS. 



1179 



and, after attaining his majority, conveys the same land to a third 
person, the second deed is, as matter of law, a diaaffirmanee of the 
first; *' and it is error to submit to the jury whether, from the terms 
of the second dtied, s disaffirmance was intended.** 



§ 1M4. For the Disaffirnuuice of the Unauthorized Acts of an 
Accent. — Where an agent does an act which is unauthorized by the 
instructions of his principal, the latter has a reasonable time after 
knowledge of the acts done to disaffirm the same as between himself 
and his agent, and ^at will be such reasonable time will generally 
be a qveation of fact for a jury, under all the circumstances." 
Thus, where goods are consigned to a factor for sale, and the latter 
sells them in disregard of the instructions of the consignor, it is 
well settled that the consignor has a reasonable time within which to 
disaffirm the act of the factor, and that, what will be a reasonable 
time, is a question of fact for the jury.*" 



«Petereon t. Lalk, Zi Mo. 541; 
TouM V. Norcoma, 12 Ho. E49; Nor- 
ciuD T. Qaty, 19 Mo. 65; Tncker t. 
Moreland, 10 Pet. (U. S.) 12; Jack- 
Km T. Carpenter, 11 Johns. (N. T.) 
&S9; Jackson v. Burctaln, 14 Johns. 
(N. T.) 124. 

«• Pei^eraon t. lAlk, 24 Mo. 641. 

•• Uloor V. Hecbanlcs' Bank, 1 
P«t (U. S.) 48; Richmond Mtg. Co. 
V. St&rkB, 4 Maaon (U. S.), 296; 
Bevan r. Cullen, 7 Pa. St. 2S1; Ow- 
inss V. Hull, i Pet. (U. S.) 60S; 
Minnesota Linseed Ofl Co. T. Mon- 
tacue, 59 Iowa, 148, 452, IS N. W. 
438. Bee also Kramph v. HaU, 52 
Pa. St. 525; O'Brien t. Phrealx Ins. 
Co.. 7G N. Y. 469; Parkhlll t. Imlay, 
IB Wend. (N. Y.) 481; Porter t. 
Patterson. 15 Pa. St 229; Wilder t. 
Spracue, 50 Me. 354; Magee r. Car- 
mack, II 111. S89; D&Tls V. Kenaga, 
51 III. ITO; Mayer t. Smith. 3 Tex. 
ClT. App. 37. 21 S. W. 995. No con- 
cIdbIod <tf ratification Is to be 
drairn, as matter of law, except 
where silence operates to prejudice 
parties changing their position In 
some way. St Lonls Gunning Co. 



V. W&nnamaker ft Brown, 115 Mo. 
App. 270, 90 S. W. 737. 

so Porter v. Patterson, 16 Pa, St 
229, 23S; Loralne v. Cartwrlght, 8 
Wash. C. C. (U. S.) 151; Calmes t. 
Bleecker, 12 Johns, (tl. Y.) 300; 
Fowle T. Stevenson, 1 Johns. Cas. 
110; Parkhlll t. Imlay. 15 Wend. 
(N. Y.) 431; Laafear v. Sumner, 17 
Mass. 109; Balnbrldge v. Wilcox. 1 
Baldw. (U. S.) 536; Thompson T. 
Fisher, 13 Pa. St 310; Bevan y. Cul- 
len, 7 Pa. St. 281; Prince v. Clarke. 
S Eng. C. L. 54. In one case It was 
said by Olbson. C. J., that the prin- 
cipal 1b bound to disavow tt the first 
moment the fact comes to his 
knowledge. Breading t. Dubarry, 
14 Serg. ft R. 27. But H was 
pointed out by Rogers, J., In a sub- 
sequent case In the Bame court, 
that the case In which this remark 
was made was a case between the 
principal and a stranger, which, ot 
course, called for a more stringent 
rule than where the contest Is be- 
tween the principal and his agent; 
and Rogers, J., ssld: "In the latter 
certainly be Is not bound to act 



GoQi^lc 



1180 



PBOTINCK OF OODBT AND JUBY. 



§ 1546. For the Betnm of Honey Becdved Under Kescbided 
Contract. — ^Where a party has been induced by fraadnlent repre- 
sentati(m8 to sell goods to another, partly for cash and partly oit 
credit, and, upon discovering the fraud, electa to rescind the con- 
tract and claim the goods, he is not bound to tender back the money 
so received before bringing trover for the goods ; otherwise the knave 
mi^t accept the money and keep the goods, and thus place the 
defrauded vendor in a. worse situation than he was in before. Hi3 
obligation to restore what he has received from the vendee is based 
upon the obligation of the vendee to restorv at the same time what 
he has received under the contract to sell; and where the vendee 
has, by disposing of all his property and absconding, or otherwise, 
put it out of liis power to make such restoration, it may be ruled as 
a matter of law that the vendor is not bound, in order to maintain 
trover, to restore the money which he has received under the con- 
tract** In such a ease it was well said that the defrauded party 
Jias, "so entangled himself in the meshes of his knavish plot, that 
tbe party defrauded could not nnloose him; and the fault was his 



g 1S46. For the Return of Oonnterfeit Honey, Forged Paper, 
etc. — "Where a party receives in payment a worthless ** or spuri- 



unttl lie obtains the Information 
neceaear; to enable him to act 
underatandlDglj. Nor, although 
strong expresslona are used, which, 
be It remarked, the cue did not 
call tor, would a principal even 
aa to a stranger be bound to dls- 
KTOw the act until he had an oppor- 
tunity of Informing blmsell of all 
the factB and circumstances. Be- 
sides, wbether be acted promptly 
would be a fact for the Jury. But, 
however this may be aa between 
principal and stranger, no such rule 
exists between a consignor and hU 
factor or agent. For if there be 
any point settled It Is that, between 
them, the principal Is entitled to a 
reasonable time; be is not bound 
to aaawer until he baa obtained 
sufOclent Information as to the 
B'a'e of (be a^'counta between them. 



Tbe ratlQcatlon, to bind, must be 
made with a full knoAledge of all 
the facts and clrcumstancea" 
Porter v. PatterBon, 15 Pa. St. 229. 
S36; citing Story Contr., g 311; 
Story Ag., | 239; Owlngs v. Hull, 9 
Pet. (U. S.) 608. And so where an 
agent was merely authorized to buy 
a particular quality of goods. 
Tblele v. Chicago BHck Oo., 60 III 
App. SS9. 

•1 Ladd T. Moore, 8 Sandt. (S. C.) 
(N. T.) 639. So In replevin; but It 
Is sufficient to pay Into court what- 
ever o( cash has been received. 
Symns v. Eenner, 31 Neb. 693, 4S 
N. W. 472. See also SchoOeld t. 
Shlffer, ir,6 Pa. 59, 27 Atl. 67. 

"" Masaon v. BoTet, 1 Denlo (N. 
Y.), 69. 

" Magee v. Cannack, 13 111. 289. 



D.qitizeabyG00<^lc 



BSASONABIANSSS. 1181 

ooB** bank-note, he must return it to the party from whom he re- 
ceived it, within a reasonable time, or he will loose his recotirse upon 
the latter.*' "It would be a matter of regret," said Kent, C. J., 
"it the law obliged us to regard a payment in counterfeit, instead 
of genuine bank bills, aa a valid payment of a debt, merely beeaose 
the creditor did sot perceive and detect the false bills at the time 
of payment The reasonable doctrine, and one which ondoabtedly 
agrees with the common sense of mankind, is laid down by Paolus 
in the Digest, and has been incorporated in the French law. He 
says that, if a creditor receive by mistake anything in payment, 
different from what was due, and upon a suppontion that it was the 
thing actually due, — as if he receive brass instead of gold, — the 
debtor is not discharged, and the creditor upon offering to return 
that which he received, may demand that which is due by the con- 
tract." •• But this right to return most be exercised within a rea- 
sonable time after discovering the spurious character of the bank- 
note or coin received; and what will be a reasonable time is a ques- 
tion of fact, depending upon the cireumstances of the case." It 
was BO held where the pari? receiving the bill failed to bring it back 
until the lapse of thirteen or fourteen days.** 

S 1S47. For objectio; to an Acconnt Rendered. — ^Unless a cur- 
rent account, striking a balance due, which is rendered by a credi- 
tor to his debtor, is objected to by the latter within a reaaonable time 
after receiving it, it becomes an accoxmt stated, and, in view of some 
comts, cannot be impeached except for fraud or mistake, while 
otheTS hold that it is merely prima facte evidence that the balance 
is due as churned. What is a reasMiable time for objecting to it haa 

i« Slmms v. ClarkD, 11 lU. 137; National Bank v. Baldeawlck, 4G 
Colon NaL Bank v. Baldenwlek, 45 111. 3TS; Bord v. Mezloo SoutberD 
lU. 375. Bank. S7 Mo. 537, 541. In one ca.Be 
» Markle r. Hatfield, 2 Jolina. It was held that tlie duty of return- 
(N. T.) 4S8; Bo7d v. Mexico South- Ing forged paper must begin from 
era Bank, 67 Mo. 537, 539; Slmms the time that the holder has had 
T. Clarke, aopra; Union National what the Jury shall believe to be 
Bank v. Baldenwlek, Bupra. aatlaTactorr avldence of Its spur- 
ia Harkle v. Hatfield, Z Johns. louBDess, and that the question of 
(N. T.) 45S, quoted wltb approval ueKllgence or reasonable time In 
la Bord V. Mexico Southern Bank, such caaes Is for the Jury. Burrlll 
er Mo. 537, G39. criticised In At v. Watertown Bank, 51 Barb. (N. 
vood V. Cornwall, 28 Mlcb. 336, 342. T.) 105. 

"Magee y. Carmack, 13 III. 2g9; "Union Nat. Bank r. Baldsn- 

Slmms V. Clark, 11 lU. 137; Union wick, anpra. 



7crib;G00<^IC 



1183 PBOTINCE OF COUBT AND JUBT. 

been vaHously held a question of law for the court,** and also a 
queaiion of fact for the jury.** 

§ IMS. For the Acceptance of an Office, Trust or Agmcy.— 
It is assumed to be the law that one who is appointed to an office, 
trust or agency has a reasonable time within which to accept or de- 
cline the appointment. It has been held that the omission of a 
factor to acknowledge the receipt of an order and to signify bis 
acceptance of the commission, will not discharge the principal, where 
the order is complied with, and advice thereof given, within a rea- 
sonable time. "What will be a reasonable time for the acceptance of 
such a cOTimiissiOTi and the giving of advice thereof, is said to de- 
pend upon the course of the particular trade and the peculiar cir- 
cumstances of the case. It is, therefore, not a question of law, but 
of fact to be submitted to the jury.*' 

§ 15^. ?or tiie Acceptance of Shares of Unpaid Stock hy a 

stock company, which are fully paid up, are property depending in 
value upon the assets and prospects of the company. If they are 
partly paid up, they may be also possessed of value, notwithstanding 
the liability to pay what remains unpaid in respect of them. But 
where a small fraction only of such shares is paid and the rest un- 
paid, or where the assets or prospects of the company are very low, 
such shares may be a burden instead of a blessing ; they may incur a 
liability, without producing any benefit to the holder. In such a case 
it would seem that an assignee in bankruptcy of the holder of shares 
would have a right of election whether to accept the shares or not. 
This election he would be bound to exercise within a reasonable 
time; and it has been held that what would be a reasonable time is 
a question of fact for a jury under the circumstances of the case; 
and moreover, that a reasonable time for such an acceptance does 
not begin to run until some party interested in the shares, other 
than the assignee, has taken some steps respecting them." 

M 01] Co. T. Van Btton, 107 U. S. Co. v. Bond, 47 Fla. 136. S6 South. 

32S, 333. See also Perkins v. Hart, 445. 

11 Wheat (U. a.) 237; Toland v. 'tPeter v. ThlckBtun. El Mich. 

Sprague, 12 Pet. (U. S.) 300; Wig-' 590, 17 N. W. 6S; McMulItn v. Held, 

glna V. Burkhem, 10 Wall. (U. U.) 213 Pa. 338, 62 Atl. 924. 

129; Lockwood v. Tborne, 11 N. T. nParhhUl v. Imlar, 15 W«nd. 

170; CuBick T. Boyne. 1 Cal. App. (N. Y.) 431. 

642. 82 Pac. 985; Daytona Bridge sa Graham v. Van DIema&'a Land 



BEASONABLENBSS. 



1183 



g 1S60. SeoBonable Notice to quit a Yearly Tenancy. — This is 
stated with confidence to be everywhere a question of law. It was 
Bach in England under the principles of the common law, and is now 
sach by statnte in that country, and it is presumed that the same 
role obtains everywhere in this country, either in conformity with 
the rule of the common law, or more generally by statute. Pnor 
to the Agricultural Holdings Act, 1883 (England),** the law in 
England, established for centuries, bad been that a reasonable no- 
tice to quit a yearly tenancy was a notice of six calendar months, 
the same to terminate at the expiration of the current year.** ' ' The 
rale of law," said Lord EUenborough, C. J., "originally was that 
reaaonable notice to quit should be given, where notice was neces- 
esaary between landlord and tenant. What notice shall be deemed 
reascmable has received a construction so long ago as the reign of 
Henry VIII. in a case in the Year Books,'* that it shall be half a 
year's notice."*' And when the tenant held different portions 
of the premises from different d^s, it was further decided that the 
notice referred to tbe day of entry on the substantial subject of the 
holding.*' It seems also to be the law in England, that if the hiring 



Co.. 11 EH. 101, 30 Bng. L. ft Bq. 
674. 

uStat. 46 and 47 Vict, c 61, 
S 64. Under this statute If the 
holding be ellher agricultural or 
pastoral, or both, or be T^holly or In 
part, cnltlvated as a market garden, 
a rear'a notice, "expiring vlth a 
jear of tenancy," la necessary In 
every contract whether made be- 
fore or after the com men cement of 
the atatate, nnlesa the landlord and 
tenant shall have agreed in toriting 
that thla enactment shall not apply, 
In whlA case s six months' notice 
■hall contlnne to be safflclent. 
Ibid., I 33. See also Stat. 39 and 
40 TIct, c 63, as to a correspond- 
tog law of Ireland. 

•* Right T. Darby, 1 T. R. 159. 
This subject. It Is presumed, is now 
regulated by statute In moat Ameri- 
can Jurisdictions. 

w 13 Hen. VIII., IE b. 16. 

M Doe r. Spence. 6 Bast, 130, 123. 



« Doe V. Snowdon, supra; Doe v. 
Watklns, 7 Bast, 651; Doe v. 
Spence, supra; Doe v. Rhodes, 
supra. It la said by Judge Taylor 
to te still an open question In tbe 
superior courts In England, 
whether. In the absence of evidence 
of a contract or usage, a week's no- 
tice to quit Is necessary to deter- 
mine a weekly tenancy. In support 
OF which state me at he aske the 
reader to compare Jones v. Mills, 
10 Com. Bench (n. a.) 78S, 31 L. J. 
C. P. 66; HufTell v. Armltstead, 7 
Car. A P. 56, per Parke, B,; and 
Towne t. Campbell, 3 Com. Bench, 
921. But Judge Taylor, who was a 
county Judge, also statea that In the 
county courta this question liBS been 
settled In t'.ie affirmative for tbe 
last thirty years. 



D.qitizeabyG00<^lc 



11S4 PROVINCB OF COUBT AND JUKT. 

be from montli to month, a month's notice will be necessary and if 
it be by the quarter, a qaarter's notice will be necessary .•• 

§ l&Bl, Beasonable Kotice of Discontinnance of Contract of 
Service. — This, in like manner, is a question of law. It is a set- 
tled role of English law that, in the case of menial or domestic ser- 
vants, a hiring for a year is subject to the condition that either party 
may pnt an end to the relation upon giving tbe other a month's 
notice or a month's wages.** The reason of the rule, as stated by 
Erie, C. J., is that, "there are some contracts for services which 
bring parties into such close proximity and frequency of inter- 
course, — valuable if mntaally agreeable, but intolerably annoying 
should it be otherwise, — ^that it is highly desirable that either party 
should be at liberty to pnt an end to them if so minded. "Where 
the service is of such a domestic nature as to require the servant 
to be frequently about his master's person, or, as in the case of a 
gardener, about his grounds, if any ill feeling should arige between 
them, the constant presence of the servant would be a source of in- 
finite irritation and annoyance to the master. The law and the rea- 
aon of the law are mutual. The servant miiy have an exacting and 
dissatisfied master, ccmstantly finding or imagining faults or short- 
comings; in sndi a case, the sooner the servant can free himself 
from hia disagreeable po3iti(»i, the better for his comfort and hap- 
piness. It is therefore for the benefit of both that the ciHitract 
which binds two incompatible tempers together should be easily 
determinable."" This rule ia held to include head-gardeners'' 
and huntsmen; '* but it does not apply to farm servants," nor to 
governesses," nor to housekeepers in lai^ hotels,** and otiier like 
employes." In respect of all servants hired generally, without any 
stipulation as to time, according to the English rule, the law pre- 
sumes the hiring to have been for a year, unless there are circum- 
stances tending to rebut the presumption ; *' as, for instance, the 

M Towne v. Campbell, 3 Com. " Nluol] t. OreaveB, supra. 
Bencb, 921, per ColtmBD, X; Keup TtLllley v. Blwln, 11 Ad. * Bl. 
V. Derrett, 3 Camp. 510, (m. b.) H2. 

» Brie, C. J., In Ntcoll v. Qreaves, t« Todd t. K«rrlch, 8 Bxch. 151. 
17 Com. Bench (n. a.), 27. 33, 83 L. t« LAwIer v. Uoden, L. R. 10 C. 
J. (C. P.) 259. L. 188. 

TO Ibid., 17 Com. Bench (ti. a.), Tapawcett v. Casta, G Barn. A 

34. Adolph. 904. 

TiNowlan v. Ablett. S Cromp. iiLJUey v. Elwin, 11 Ad. 4 Bl. 
Mees. A R. 54, 5 Tyrwh. 709; Jobn- (F. s.) 742, 764; 1 Ta;l. Bv. (8tb 
stm V. Blenkeaaopp, 6 Jur. S70. Bbig. ed.), | 177. 

i:q,t,7c-rib;G00<^IC 



BEASONABL&mSS. 11S5 

existence of an agreement to pay weekly or monthly wages, coupled 
with the absence of any other stipnlatiim showing aa intention that 
the aervice should continue a longer period than a week or a month.'' 
This role applies to domestic, as well as to farm servants, but with 
the excepti(Ma already stated in respect of a month's notice or 
month's wages in the case of a domestic or menial aerraiit.^* 

§ 1662. For Applyis; for Letters of Administratioii.— A person 
who is entitled to precedence under a statute in having letters of 
administration upon the estate of a deceased i>ei«on granted to him, 
loses his right of preference, — not by delay merely, — but by an 
unreatonable delay.'' What will be an unreasonable delay has been 
held a guestioji of law." 

§ 16S3. For remoring Goods hj Ezecntor from Mandon of 
Testator. — ^In like manner, the question whether an executor has 
had reasonable time to remove goods from the testator's mansion 
is a question of law for the court.** 

S 1664. For removing Trespassing Cattle. — ^In England, the 
owner of land on the one hand is not bound to fence it; the owner 
of cattle, on the other hand, is not a trespasser until he refuses to 
remove his cattle which have strayed upon another's land, within 
a reasonable time after notice of the fact.** This rule would prob- 
ably have an application in those American jurisdictions which fol- 

111 Tayl. Bv. (Sth Eng. ed.), log. If poaslble. what nBage pre- 

I 177; Rex t. Worfield, S T. R. EOS; valla In the particular business or 

Rex T. St. Andrew, S Bam. ft Crea. employment to whicti the hlrlag 

679; Reg. v. PUklngton, 5 Ad. A El. reUtei." 1 Tayl. Ev. (Sth Eng. 

(n. a.) 6S2; Baxter r. Nur»e, 6 ed.), | 177, citing Baxter v. Nurse. 

Han. « G. 939. e Man. * G. 936, 1 Car. A K. 10; 

TtBeeaton t. CoUyer, 1 Blng. 309, Holcroft v. Barber, 1 Car. ft K. 4; 

S13; Turner r. Haaon, 14 Mees ft Todd v. Kerrlck, 8 Exeh. 151; 

W. 116. It la also said br Taylor: Parker v. Ibbetson, 4 Com. Bench 

"In the case of clerks, w&rehouae- (r. a.) 34S; Falrman v. Oaktord, S 

men, travelers, editors, reportere. Hurl, ft N, B36. 

actors, ushers, govemeases, and «> Stoker v. Kendall, Bueb. L. 

the like, the lav raises no Inflexible (S. C.) 243; Wallis v. Wallls, 

presumption of an Indeteaalble Wlnst. L. (N. C.) 7S. 

yearly hiring, from the mere fact " Hughes v. Pipkin, PhilL L. (N. 

of a hiring for an Indefinite period; C.) 4. 

but In all such cases the Jury must mCo. LItt. 56b. 

detennlne the question for them- uooodwyn v. Gheveleyi 4 Hurl, 

selves, after weighing all the dr- ft N. 631, 634, 
conutancee proved, and ascertain- 
TaiALB — 76 



D.qitizeabyG00<^lc 



11S6 FBOVINCE or OOUBT AKD JUBY. 

low the EDglish ruJe ot pxonerating the landowner from liability 
to fence and requiring the cattle-owner to restrain his cattle; but 
it would have no application in those States where cattle are allowed 
to run at large npon any unenclosed lands, and where the land* 
owners, in order to exclude trespassing cattle, are required to fence- 
Under the English rule it has been held •* that, whether the owner 
of the tre^assing cattle remove them within a reasonable time after 
notice, is a question not to be determined by the judge, but is a 
question for the jury, to be determined with reference to all the but- 
rounding circumstances.** 

S 1656. Consideration! Reasonable Time of Forbearance to 
bring Suit. — The question what is a reasonable time of forbearance, 
where there has been an agreement by a creditor to forbear bringing 
suit on his demand without stating the time of such forbearance, has 
arisen in connection with the question whether such an agreemmt 
is a good consideration to support the promise ot a third party to 
pay the debt. It is said that an agreement to forbear, either ab- 
solutely or for a certain time, to institute or prosecute legal or 
equitable proceedings to enforce a legal or equitable demand, is a 
snfBcient consideration to snpport the promise of a third person, as 
well as that of the person liable to suit.** In order to furnish the 
consideration of a contract of forbearance, the delay must be either 
for a certain time or for a reasonable time. A forbearance for a 
very brief length of time, as for an hour or a day, would not, it 
seems, furnish a good consideration.*' An agreement for an in- 
definite forbearance has been held good,** on the ground, it would 
seem from other cases ** that it is an agreement for a total for- 
bearance. But where the circumstances are such as to preclude the 
conclusion that the agreement was for a total forbearance, and it is 

•*Per Pollock, C. B.. Martin, B., 2S5; Qlenn ▼. ZeDOVltcb, 128 Oa. 

and Cbannen, B.; Bramwell, B., dls- B96, 68 S. B. 28. 

aenting. tT Mete Contr. 174. 

wGoodwyn v. Cheveley, * Hurl. ■« Philips t. Sackford, Cro. Ells, 

ft N. 631. 465; Traders' Nat. Bink T. Parker, 

««1 Cbit. Cod. 35, 36; Glasscock 130 N. T. 416, 29 K. B. 1094. 

T. Glasscock, 66 Mo. 627, 630; Har- ** Tbomo t. Fuller, Cro. Jac. 897; 

neSB V. McKee-Brown Lumber Co., Cowlin v. Cook. Latcb, 151; Lons- 

17 Okl. 624, 89 Pac. 1020; W. L. dale r. Brown, 4 Waah. C. C. (U. a.) 

Moody ft Co. T. Rowland, 46 Tex. 151; Hamaker v. Eberly, 2 Blnn. 

CIt. App. 412, 102 S. W. 911; Beebe (Pa.) 506; Clark T. Busael, S 

T. Wells. 163 Fed. 133, 82 C. C. A. Watts (Pa.). 213. 



7crib;G00<^IC 



REASON ABLEKBSS. 1187 

nevertheless an agreement for a forbearance for a length of time 
not slated, it will be intended Uiat it was an agreement to forbear 
for a reascmable length of time; and what is a reasonable length of 
time, is a qaestion of fact for the jury to determine according to 
the circumstances of each ease." 

§ 1566. Priorities among Oreditora; Delay in Exposing Prop- 
erty to Judicial Bale. — There is a principle, sanctioned by judicial 
decisions, that, where personal property is levied upon under an 
ezecntion, and the sheriff thereafter delays, with the consent of the 
plaintiff, for an nnrcasonable length of time, to sell the propertj', 
snch delay will have the effect pf releasing the lien of the execution 
and letting in the lien of a junior esecution, held by another cred- 
itor of the same debtor.*' In Ohio, the principle, applicable to the 
practice in that State, is said to be: "If there has been an un- 
reasonable delay in completing the ezecntion by a sale, at the in- 
stance and by the authority of the plaintiff, such nnreaaonable de- 
lay may have the effect of postponing hia, in a certain sense, dormant 
process, to that of a more vigilant, though junior execution creditor. 
Mere delay, if not unreasonably protracted, will not h&ve such effect ; 
but where the delay is unreasonable, in view of the rights of other 
creditors, the character and condition of the property levied on, and 
the uses to which it is in the meantime applied, it is just and propev 
that a limit should be placed upon the indulgence of the creditor 
holding such prior lien. The question whether such delay wan 
reasonable or unreasonable in a given case, depends upon its peculiar 
circumstances, and is, therefore, peculiarly a question for the jury 
under the instructions of the court. It is manifest that a delay 
which is unreasonable in one ease, by reason of the condition of the 
parties or the subject-matter of the levy, would, under other circum- 
stances, be altogether reasonable and proper." And the court held 
that where, in such a ease, there is evidence fairly tending to prove 
such unreasonable delay, it is error for the court to foreclose in- 
quiry, and withdraw the question from the jury, by instructing them 
that such prior levy was valid and subsisting at the time when the 
lien of the junior execution attached.** 

§ 1S57. Time daring which Member of Parliament privileged 
from Arrest. — Although it may possibly have aneientiy been the 

•• Althoft V. Transit Co., 204 Mo. »i Russell v. Gibbe, 6 Cow. (N. 
16«. 102 S. W. U2, and see Glass- T.) 39. 

cock T. QlBaacock, 66 Mo. 627, 631. •* Acton r. Knowles, 14 Ohio St. 
18, 2S, 30. 



Coo^^lc 



1188 FBOVINCE or COUBT AND JUBT. 

rule that a memher of Parliament was privileged from arrest on 
civil process, only for a convenient time before the assemhling and 
after the prorogation or dissolution of Parliament, — yet, on a re- 
view of the precedents, it has been found to be the undoubted law of 
England for two himdred yeare, that this privilege exists for forty 
days before and forty days after the meeting of Parliament, and that 
the rule is the same in the case of a dissolution as in the case of a 
prorogation.** 

5 1568. Whether a Settler on Public Land has followed np Us 
Location with Seasonable Diligence. — Jo Nevada there are two 
methods of acquiring title, sufficient to maintain ejectment in respect 
of public land not surveyed or brought into market by the general 
government: 1. By a compliance with the requirements of astatute 
of that State entitled "An Act Prescribing the Mode of Maintaining 
and Defending Possessory Actions for Public Lands in this State. " " 
2. By actual possession or occupation of such lands. In respect of 
the second question, it is laid down that, "the person first locating 
a tract of public lands should have a reasonable time after the 
loeatitm to enclose it, or to make such improvements as may be 
necessary to its enjoyment ; and, during that time, he must be pro- 
tected precisely the same as if he had perfected bis possessions b> 
enclosure or otherwise. But if ousted after the l^ise of such rea- 
sonable time, he can only recover by showing the actual, notorious 
prior possession.'* The question whether a settler on public -lands 
has proceeded with reasonable diligence to follow up his location with 
the necessary improvements, so as to recover in ejectment against a 
subsequent possessor, is a question of fact for a jury.** 

§ 1669. In letters arising in the Gourae of Judicial Adminis- 
tration. — ^In matters arising in the course of judicial administra- 
tion, the judge, from liis greater experience, would be better qual- 
ified to decide what is a reasonable time for the doing of an act, than 
would a jury. But even here no uniform rule can be stated, es- 
pecially in view of the fact, already seen, that the question of neg- 

NOoudr T. Duncombe, 1 E^xch. 4 Cal. 94; Coryell. t. Cala, 18 Cal. 

430; Re Anglo-French Co-operative 567; Lawrence t. Fulton, 19 CaJ. 

Society, 14 Oh. Div. 533. 690; Button v. Schnmaker, 31 Cal. 

HComp. L. Ner. (1900) Sf 3S14- 453; Polack t. McGrath. 33 Cal. IS. 

3821. >• Stalnlnger T. Andreve, 4 Nev. 

»' Slslnlnger v. Andrews, 4 Nev. E9, 70. 
59, 67. Compare Flume v. Seward, 



7crib;G00<^IC 



BBA80HABLB^nB8. 1189 

ligencB in an attorney or solicitor is generally regarded as a question 
of fact tor a jury/' So, where under a pecnliar agreement the 
qaestiwi was whether cotls bad been taxed within a reasonable time 
after the making of the agreement that they should he taxed, it was 
held that it was a question for the jury and not for the judge." So, 
whether an au-ard is made within a reasonable time, within the in- 
tention of the parties making the submission, hag been a question for 
Ike jury, in an action upon the award.** But where a plaintiff sue<1 
out a writ of capias ad respondendum, and caused his debtor to be 
arrested and committed to prison or held to bail, up<Hi the payment 
of the debt, it became hia duty to countermand the order of arrest 
within a reasonable time, and what was a reasonable time was for 
the decision of ike judge, and was not to be submitted to the jury, 
in an action for false impri8<mment.* So, under the old law, which 
made a aheriEF liable fts an escape, where he failed to take to prison 
a person whose body bad been taken in execution under a capias ad 
satisfaciendum, within a convenient time, it was held that what was 
a convenient time was a question for tke determination of tke judge, 
who would admit of all reasonable delay; "but if that be made use 
of by the officer, as a means of giving more liberty than he ought, be 
will be liable for an escape." * 

S 1L30. Beasonable Tim« for holding Prisoner for Be-exanrina- 
tion. — This question is liable to arise in actions for false imprison- 
meet. It is now, according to Taylor, regulated by statute in Eng- 
land and in Ireland — ^witb a single exception recognized in England.* 
It is presumed to he so r^olatad in most American jnrisdictions. 
Where it is so regulated, of coarse tJie question, when it arises, must 
be pronounced iy tke court upon an interpretation of tfae statute, 
and cannot be submitted to a jury. "Where there is no governing 
statate, or where the statute is flexible, leaving a latitude of discre- 
ti<Mi as to what is a reasonable time, then, it is supposed that what 
is a reasonable time will be a mixed question of law and fact, similar 
to the questifHi of reasonable cause in actions for malicious prose- 
cntion.* In two cases in England,* and one in Ireland,* which where 

•> Foot, 1 1700. > Benlon v. Satton, 1 Bob. A P. 24, 

M Borton V. Orlfflths, 11 Hew. A 28, per Heatli, J. 
W. 817, 824. ■Tayl. Ev. (Stfa Bog. ed.), j SG, 

•• HftTWood T. Harmon, 17 HI. and cases cited. 
477, 480. * See Davis v. Oapper, 10 Barn. A 

1 Scbelbel t. Fatrbaln, 1 Bos. A Cr. S8. E Man. A R7. &3, 4 Car. A P. 
Pal. 3S8. 134, 



7crib;G00l^lC 



2190 PROVINCS OF COXmT AND JUBT. 

actions againat the committing magistrate, this question was tui- 
mitted to the jury; but the propriety of these rulings may be ques- 
tioned. It seems to be a reversal of judicial conceptions to have 
the propriety of the discretionary action of a judicial officer passed 
upon by a jury, in an action for damages against the (^cer. 

§ 1561. For Passenger to call for and receive his baggage ^ter 
transit ended. — It has been said: "The carrier is bound to deliver 
safely to a passenger his baggage at the place of its destination, in a 
reasonable time and manner; and when it is thus delivered, or of- 
fered to be delivered, the passenger is bound to receive it and remove 
it in a reasonable time. If he refuses or neglect to do so, and the 
carrier thereafter retains it unclaimed by the owner, his liability is 
changed from that of an insurer to the responsibility of an ordinary 
bailee, liable only for losses occasioned by his own fault" ' "What 
is a reasonable time for the passenger to take away his baggage hag 
been regarded as a mixed question of fact and law. Where the 
testimony is conflicting and the facts are unsettled, the jury are to 
decide it, under the instructions of the court as to the law. Bat 
where there is no dispute as to the facts, the question is purely (me 
of law, and the court should decide it;^ and in such case it is error 
to submit the question to a jury.' 

g 1662. Seasonable Time for selling after DistresB. — Under Eng- 
lish statutes,^* it has been held that a landlord may remain up(m 
the premises for more than five days after a distress for the purpose 
of selling the goods distrained, since, by the statute, he could not 
sell until five days have expired -, and, that it is a question for tha 
jury to say what is a reasonable time after five days within which 
to sell the goods." 

§ 1663. Delay in making the Voyage Insured. — An unreasonable 
delay in performing the voyage insured will discharge a policy of 

I Davis r. Capper, supra; Cave v. t. Hudson River etc R. Co., 49 N. 
MouDtain. 1 Man. ft O. 260, 1 Scott T. 223. 
(N. R.), 132. 'Hodses v. Hudson River etc. R. 

• Gillman t. Connor, 2 Jebb ft Co., supra; post, i ISSl; Mortland 
SrmeB. 210. v. Philadelphia R. Co.. 81 Hun, 473, 

t Roth T. Buffa'o etc. R. Co., 34 30 R T. S. 1021. 
N. Y. 648. 558, opinion by Smith, J. " SUt 2 Wm. A M. Seas. 1, c 6, 

■ Roth V. Buffalo etc. R. Co.. 34 | 2; 11 Qeo. 2, c 19, S 10. 
N. T. E48 (where, under the cir- uPltt v. Shew, 4 Bam. A Aid. 

cumatanceB, the court held that the 206, 208. 
delay was unreasonable); Hedgaa 



ovGoo<^lc 



SEASON ABI^HESS. 



1191 



marine insurance.^* What ia an imreaaonable delay will be a ques- 
tion for a jury. In one case it was submitted to a jury with the 
evidence to find a special verdict and they found as a eonclusion that 
there was ' ' unreasonable and unjustifiable delay between the making 
of thj said policy of insurance and the commencement of the lisk 
intended to be insured against," and judgment was entered thereon 
fcr the defendant." 

§ 1664. Time for returning Ooodi sold by Sample. — So, it ia 
proper to submit it to the jury, whether goods sold by sample have 
been rejected and retomed within a reasonable time." 

§ 1666. Time for transmitting Inland Bill of Exchuige. — So, It 
has been held that the holder of an inluid bill, payable after sight, 
is not bound instantly to transmit it for acceptance. He may put 
it into circulation, or, though be do Dot circulate it, he may take a 
reasonable time to present it for acceptance ; and what is a reasonable 
time is a question for the jury." In determining this question, it 
has been held that the jury should be instructed to take into con- 
■ideration the interests, not only of the drawer, but of the holder 
ilso " The question of reasonable time does not arise in the case 



i:Chlttr T. Selwyn, 2 Atk. 369; 
Palmer t. Martthall, 8 Blng. ISl; 
OQgler T. JennlagB, 1 Camp. EOS; 
Smith T. Surrldge, 4 Eap. 2S; Hull 
T. Cooper, 14 Bast, 479; Monnt r. 
Urklns, 8 Blag. 122; Park Ids. 71, 
72; ante, | 1320. 

t( Mount V. Larklns, 8 Bliig. 108, 
I Moore tt S. 165. In nilllipB t, 
Irving. 1 y. 1. A a. 325, 32S, 329, 
tbe question wbb left to the de- 
cision of tfae court by conaent, and 
TIndal, C. J., ruled "that no cer- 
tain or flsed time could be Bald to 
be a reasonable time for seeking a 
cargo In a foreign port; but tbat 
the time allowed must vary witb 
the varring clrcumstaneeB, which 
ai«f render It more or less dlffl- 
cult to obtain Buch a cargo." 

I* Parker ▼. Palmer, 4 Barn, ft 
Aid. S87. 



M Pry V. Hill, 7 Taunt. 897; ante, 
i 1222 et seq.; Citizens Nat. Bank 
T. First Nat Bank, 135 Iowa, 605, 
113 N. W. 481. Many American 
cases bold this to be a question of 
law. See Grange t. Beigh, 93 Wis. 
552, 87 N. W, 1130; IndnBtrial Trust 
Title ft Sav. Co. v. Weakley, 103 
Ala. 4GS, IE South. 854; North- 
western Coal Co. v. Bowman, 69 
Iowa. 160, 28 N. W. 496; First Natl. 
Bank v. Miller, 43 Neb. 791, G2 N. 
W. 195. 

i*Mul11ck T. RadaklBsen, 9 
Moore P. C. 46, 63; Melllsb v. Raw- 
don, 9 Bing. 416. See also Char- 
tered ft Mercantile Bank of India 
T. Dickson, L. R. 3 P. C. 674, 
where the Privy Council, reviewing 
the evidence In a case wblch seems 
to have been tried without a Jury, 
determined that the lapse ot time 



Goo^^ Ic 



1192 PBOVINCS OF COUBT AND JUB7. 

of a hlaiiJt acceptance, when the bill is in the hands of a bona fido 
indorsee for valae without notice.** 

% 1666. Other Cases where Seasonable ^me has been held a 
Question for a Jury. — It has been held, in an action on the case for 
not carrying away tithes, that, whether the whole crop has been left 
on the ^und for a reafKmable time after the tithe has been set ont, 
in order that the tithe-owner may compare the tenth part with thn 
other ninth, is a question for the jury and not for the court, where 
the question depends on a variety of circumstances, such as the 
residence of the respective parties, the time when notice was given 
that the com should be tithed, the state of the weather, and other 
tbiogs most proper for the consideration of a jury." Nevertheless, 
it seems that such a question may sometimes be a question for tks 
judge, the facts having been first ascertained by the jury.*' The 
question what are "leasonable times" for doing an act, — which 
means the same thing as reasonable times, — has been held in sub- 
stance to be a question of fact Thus, in an action of trespass q. c, 
where the defendant justified by reason of the custom that the in- 
habitants of the town, time out of mind in every year, had, at all 
seasonable times in the year, the easement of passing over the land 
in question, it was held to be a mixed question of law and fact what 
times were to be deemed seasonable, and therefore this might be 
shown npcm a plea setting up such a defense.*" 

Article II. — Reasonable Thinos. 
SsonoK 
1667. RfgulatloDs of Railway Companies. 
1GG8. Bjr-Lavrs of Corporations. 
1669. Rules of Board of Trade. 

1G70. Whetber Flnea, Cuatome or Services are Reasonable. 
1G71. Re&BOnablenesa of Cborges of Boom Compantea for Driving Logs ot 
other Owners mingled with theirs, and ClrcumatanceB which 
Justify the Same. 

1672. ReaaoDableDess ot Contracts; General Observatloiis. 

1673. Contracts Limiting the Common-Law Liability of Carriers. 

from the 16th of February to the « Montague v. Perkins, 22 L. 3. 

14th of December of the same year, (C. P.) 1S7. 

In the case of a demand note, was i* P'acey v. Hurdam, 3 Barn. A 

not, under the circumstances, an Ores. 213. 

unreasonable time for presentlog I'Llttledale, J., In Facey v. Hur- 

[t. See further Van Dlemen's dam, 3 Barn. A Crea. 213, 217. 

Land Bank y. Victoria Bank, 40 L. *o Bell v. Wardell, WUlal, 201. 

J. (C. P.) 28. 



7crib;G00<^IC 



B£ASONABLENSSS. 1193 

1E74. Stlpnlatlon wltli a Common Carrier as to Time of Bringing Sull 

1576. Stipulations as to Notice of Loss In Case of Carriage of Live Stock. 
1676. Stipulations by Telegraph Company as to Time of Qivtng Notice of 

Claims for Damages tor Erroaeons Transmission of Uesssge. 

1577. SUpnIatfon In Inanrance Policy as to Time of Oivlng Notice of Loss. 
1678. What Sum of Money carried In a Passenger's Trunk Is a Reasonable 

1&T9. What Amount of Baggage for a Passenger 1b Bxceselve. 

1S80. What Is Baggage, a Hized Question of Law and Fact 

16SL The Same Rule Applicable to Baggage of a Guest IiOflt at a Public 

1582. Whether "Cash Letters" belong to the Class of Goods which the 

Owners of a Steamboat undertook to Carry for Hire. 

1583. Difference of Risk in the Carriage of Collected Parcels. 

1584. Reasonableness of a Qualified Refusal by a Common Carrier to Da- 

JlTcr OoodB. 

16S5. Necessaries Furnished to Infanta and Harried Women. 

lESS. Easement: Reaaonable Use of Right ot Way. 

16S7. Contest as to whether a Deed Passes a Right of Way as an Base- 
ment: Whether a New Way Can be made without Unreasonable 
I^bor and Expense. 

15S8. How Jury Instructed in such a Cass. 

S U67. Begnlations of Railway Companies. — Whether a T^gula- 
tion established by a railw^ company, or other public carrier, is a 
reasonable one, is a QQestion for the judge; *' but whether a certain 
regalation of a railway company is sufficient for the prevention 
of collisioiis, is a question for the jury.** Thus, it has been held 
that the reasonableness of the roles adopted by a common carrier, 
requiriBg passengers to surrender their tickets to the conductor 
when called for, — is a q^iesUon of law for the court, and that it is 
error to submit soeh a question to the jury; since if it were left to 
the varying discretion of juries there would be one rule to-day and 
another to-morrow, and neither passengers nor railway companies 
would know their rights and obligations.** Contrary to the pr&- 

*i Ante, g 1067. For an exhanst- should say whether psrtlcnlar par 

Its discussion of this subject see eels were within purview of the 

Standard Oil Co. t. U. 8., 218 D. S. rule. Morris v. Allintlc Are. R. 

1. 31 Sop. Ct 60S; D. S. t. Am. To- Co., 116 N. Y. 552, 22 N. B. 1097. 
bacGO Co., 221 V. S. 106, 31 Sup. CL » 111. Cent. R. Co. t. Whlttemore, 

632. 43 111. 420, 423; Vedder t. Fellows, 

M Chicago etc: R. Co. t. McLal- 20 N. T. 126. At the same time It 

lea, 84 111. 109, 116. So where rale ii held proper to admit testimony ' 

required payment of additional In regard to the necessity of such a 

fare for packages too large to be rule, llllools Central B. Co. t, 

carried on passenger's lap without Whlttemore, snpra. 
Inconvenience to others, the Jury ,- . 

i: , h LtOO^^Ic 



119-t PROVINCE OF COURT AND JDBT. 

ceding, it has been held in New Jersey that the reasonableDess of 
a regulation of a railway company which affects its euatomers, ds 
contradistinguished from a by-law which aSects its own membeni, 
as, for instance, a regulation requiring a receipt for all the goods 
which have been delivered to the company as a carrier before its 
agent is permitted to deliver any part of them, — is a question of fact 
for a jury.** So, it has been held that the reasonableness of rules 
prescribed by a railway company to its engineers for the running 
of their trains, would present a question for tk» decision of the 
jury.^* 

§ 1668. By-lawB of Oorporationa. — It has always been held that 
the reasonableness of the by-laws of corporations is a question ot 
law, and that such by-laws may be set aside when, in the opinion of 
the court, they are unreasonable.** It will be seen that this rule 
involves nothing more than the substitutdim of the opinion of the 
judge for that of the governing body of the corporation, in deter- 
mining whether a corporate by-law is to stand or fall. This rule 
applies to the by-laws, more usually called ordinances, of munici- 
pal corporations which impose penalties for prescribed offenses. 
Whether such a by-law is reasonable is a question of law for the 
court. If one party offer sacb an issue to tbe court, the other party 
may demur ; but it has been held, it he joins issue thereon, he cannot 
afterwards submit the question to the court ; it must, it seems, go to 
the jury.*' 

§ 1660. Boles of Boards of Trade. — The reasonableness of a rule 
of a board of trade touching tbe inspection of provisions in case of 
cash sales is, it seems, a gitestian of law for the court.** 

••MorriB etc. R. Co. T. Ayrea, 29 order for reparation. Western N. 

N. J. L. 393. See also St. v. Over- T. A P. R. Co. v. Penn Refining Co., 

ton, 24 N. J. L. 435, 441. Whether 137 Fed. S43. 

It was reasonable to charge extra *«Ante, | 1057. St Lonis t. 

fare for riding in a chair oar was Grafeman Dairy Co., 19ft Mo. 607, 

held to !:« a question of fact SS S. W. 627, 1 L. R. A. (n. a.) 926; 

Wright V. Central Ry. Co., 78 Cal. Jewett Bros, ft Jewett v. Small, 20 

360, 20 Pac 140. S. D. 244, 105 N. W. 736. 

u Quimby V. Vermont Central R. *t Common OouqcII of Alexandria 
Co.. 23 Vt. 387, 3ft5. Whether a v. Brockett, 8 Cranch C. C. (U. S.> 
dlacrlmlnatlng freight rate, aa to 13. Tbe reason ableneaa of a mn- 
which the Interstate Commerce nlcipal ordinance haa been sub- 
Commission makes an order tor mitted to a Jnry as a question ot 
separation, was unjust and nnrea- fact. White v. Pease, 16 Utah, 170, 
■enable was held to be a question 49 Pac. 416. 
of fact, in a suit to enforce such *• Chicago Packing eto. Cm t. 



Coo^^lc 



1195 

§ 1670. Whether Tinea, Castoms or Services are reaaonable. — 
These questiona are likewise to be decided by the judges.'" Whiln 
the existence of a custom of trade is generally a question of fact for 
a jury, yet the reasonableness of Kuch a custom is a question of law 
for the court; and hence the court will not leave it to the jury to 
find the existence of a custom which, if found, would be unreason- 
able, and which the court would, therefore, not allow to be applied 
in the" government of the rights of the parties." 

§ IVn. BeasonablenesB of the Ohargef of Boom Companies 
for drtTJng Logs of oUier Owners mingled with theirs, and Oir- 
CDmBtancei which Justify the Btune.~TTDder a rule of law which the 
Sopreme Court of Michigan were, prior to an adequate statutory 
enactment,** obliged to declare to meet the very peculiar and diffi- 
cult case of logs of an individual owner becoming mingled in driving 
them down a river with thoeo of the boom company created for the 
purpose of 1<^ driving under the statutes of that State, — ^where the 
logs of an individual owner became mingled with those in the 
chai^ of a boom company without the owner's consent, and with- 
out the fault of the company, the company acquires a lien for their 
services in driving them, wliich they do not waive by refusing to 
deliver them to the owner on demand unless he tenders, not only 
a reasonable compensation for the service, but enough to cover the 
cost of separating his logs from the rest. The court further held 
that, in an action involving the existence of a lien for such service, 
a fall showing should be had as to the items which go to the making 
up of the claim, and that a full cross-examination should be per- 
mitted ; and further, that the reasonableness of the claim is for the 
jury, and that they cannot be instructed aa to their conclusions 
thereon.'* In an aetJon by a boom company for running certain 

TUton, 87 111. G48; ante, S 1057; ** Co. Lltt Gflb, 596; Wilson v. 

Weatern U. T. Co. v. St., IGE Ind. Roare. 10 Ad. A EI. 23G; Bell t, 

192, 76 N. E. 100; Nelson v. Board WardeU, Wlllea, 202, 204; Mllroy v. 

o( Trade, 5S 111. App. 399. Wbera Chicago, U. A St. P. Ry. Co., 9S 

a contract Is not a mercantile con- Iowa, 188, G7 N. W. 27G. 

tract and no custom KOTerns the MBaurke v. James, 4 Mich. 33G: 

hour of ths day for delivery, ante, 9 1057. 

whether after night tegan It was •> Comp. L. Mich. (1897) IS 5082- 

resBonable to make an otFer of de- 609B. 

Uvery has been held a queation for h Hall v. Tittabawassee Boom 

the Jury. Coualns v. BowIlnE, 100 Co., 61 Hlch. 877, 409. 

Mo. App. 462, 74 S. W. 1S8. 



D.qitizeabyG00<^lc 



1196 PBOVINCB or COUKT AND JUBT. 

logs which have thus become mingled with those in their charge, 
it has been farther held that it ia for the jury to decide whether any 
of the various items of the account properly enter into it, and 
whether the chaises of the company are reasonable ; whether it was 
proper for the company to interfere to take care of the defendant's 
Ic^ or to detain them temporarily to prevent loss to their owners; 
and whether an artificial channel, provided hy tiie company, was 
useful for clearing the river and secoring the safe delivery of the 
logs." 

§ 16*^. BeftBOnablflness ot Oontracta; Qenaral Obtervatioiu. — 

Whether a contract is void as being an unreasonable restraint of 
trade may, it seems, under circumstances, be a question for the jury, 
though in general it is a question of law.** It is believed that it 
is generally, if not universally, decided as a question of law; and 
the writer may add that he has met with no cases in American 
jurisdictions whiefa submit to juries the question of the reasonable- 
ness of stipulations in contracts. The current of decisions runs en- 
tirely the other way. 

§ 1673. Contracts limiting the Common-Law Liability of Oar> 
rierB. — This ia seen in the manner in which the law deals with stip- 
ulations in contracts between carriers and shippers, by which the 
carrier undertakes to discharge himself of the liability imposed upon 
him by the common law as an insurer of the goods against all loss 
or damage happening from other causes than the act of God or the 
public enemy. The law holds such stipulations void and discharges 
them, in so far as they attempt to exonerate the carrier from lia* 
bility for loss or damage happening in consequence of the negli- 
gence, fraud, or other fault of himself, his agents or servants.** 

§ 1674. BtipnlatioQ with a Common Carrier as to Time of bring. 
ing Suit for Loss. — Among the stipulations which common carriers 
make for the purpose of evading the liability cast upon them by the 
common law, is one that, in case of loss or damage to the goods re- 
ceived by them for carriage, suit shall be brought within a speciQed 
time. It is held that such contracts do not contravene the policy of 
the law, provided the time limited is not so short aa to be unreason- 

MSturgeon River Boom Co. v. 151; ante |f lOSS, 1097; Carroll t. 

Nester, 55 Mich. 113, 16 N. W. TTO. Giles. 30 S. C. 412, 8 8. B. 413, 4 L. 

■•Tallls V. TalllB, 1 Bl. A B1. 391, R. A. 161. 

22 L. J. Q. B. 185, 18 EMg. L. Is Eq. «s Post. It 1861, et M^ 



GoQi^lc 



BEASONABLENESS. 



able; and it will b« a question of law for the court whether it ia 
reasonable or onreaaonable.** 



S 1676. Stipnlatioiu as to Notlc« of Low in Caae of the Oaniage 
of Live Stock. — ^It hag been held that a contract between a carrier 
of live stock and a shipper by which it is provided that no claim for 
loss or damage ^all be allowed or med for, onless written notice, 
verified by affidavit, shall be given to the carrier's general agent, at 
a designated place, within five days after the removal of the stock 
from its cais, is reasonable and valid," thus deciding it as a question 
of law. 

§ 1676. Stipulations by Telegfraph Oompany a> to Time of giv- 
ing Kotice of Olalms for Damagea for Erroneous Tranamiasion of 
Hessages. — It is held that it ia competent for a telegraph company 
to make a reasonable stipulation with its customers that claims for 
damages shall be made withiu a reasonable time. It is said that, 
"when a definite term is fixed, the question of its reasonableness is 
to be determined by the court;" but that, "where the only limita- 
tion is that a thing shall be dwie within a reasonable time, it is 
proper for the jury to say what is a reasonable time, in view of the 
circomstanees of the ease." ** Applying this principle, it has been 
held that thirty," and even twenty days" is not an unreasonable 
time, as matter of law.*' 



M Thompson v. Chicago etc. R. 
Co., 22 Ho. App. 331, 326; St Louli 
A S. W. R. Co. T. Butler (Ark.). 
lOS S. W. 378; contra Tezu » P. 
Ry. Co. T. Adams, 78 Tex. 372. 14 
S. W. GGG, 24 Am. St. Rep. E6. The 
limitation Is construed Btrlctl?- 
Tbos Bntt has teen held not to em- 
brace escape of stock from stock- 
yards of carrier, where the stock 
were placed to avalt transporta- 
tion. St. U)uls A S. F. R. Co. T. 
Beeta, 75 Kan. 295, 89 Pac. S83, 10 
L. R. A. (5. 8.) 571. 

" Dawson t. St. Louis etc. R. Co., 
7« ifo. 514; Brown t. Wabash etc 
R. Co., 18 Ho. App. 58S, 6TT. 
Within one day after delivery at 
destination has teen held reason- 
able. St. Louts A S. F. R. Co. T. 
Fearce (Ark.), 101 S. W. 760. la 



Texas the ruling Is otherwise and 
the qaestton Is h«ld to be one of 
fact International A O. N. R- Co. 
T. Qarrett, G Tex. Civ. App. 540, 24 
S. W. 354. 

«■ Maseengale v. Western Union 
Tel. Co., IT Mo. App. 257, 260. 

"Ibid. Western U. T. Co. t. 
Dunfleld, 11 Colo. 335, IS Fac. 34. 

"Helmanu v. Western Union 
Tel. Co., 57 Wis. 562. 

41 Compare Wolf ». Telegraph Co., 
62 Fa. St. 83; Whatever the ttme 
fixed Its operation will only be ef- 
fectual as to those cases. In which 
the limitation Is deemed reason- 
able, as matter of law. See Herron 
T. Western U. T. Co., 90 Iowa, 129, 
B7 N. W. 696; Conrad t, Western U, 
T. Co., 162 Fa. 204, 29 Atl. 8S8. 



jcibyGoQi^lc 



1198 PEOVINCB OF COUBT AND JUBY. 

% 1577. Btipalation In Iiuiirance Policy as to tim« of ^virgr 
Notice of Lou. — Stipulations in policies of fire inaurance requlriii}; 
the policy-holder to give notice of the loss within thirty days there 
after are upheld, though the courts are liberal in interpreting va- 
rious acts of the company as a waiver of such a Etipulatiou.^' 

§ 1578. What Bnm of Hon^ carried in a Passenger's Tnink 
is a Keasonable Sum. — ^It is held that the ba^^age which a passenger 
has entrusted to a carrier with whom the owner has taken passage, 
is under the same protection as goods which are entrusted to a com- 
mon carrier; that a proper gum of money for traveling expenses, 
contained in the trunk of a passenger, is to be considered as a part 
of his personal baggage, and, in case of its loss, the passenger may 
recover the value of the same ; that this amonnt must be measured, 
not alone by the requirements of the transit over a particular part 
of the entire route to which the line of one class of carriers extendi, 
but must embrace the whole of the contemplated journey; and that 
it includes such an allowance for expenses or uckness, and for eo- 
jouming by the way, as a reasonably prudent man would consider 
it necessary to make." Beyond a small amount snfiicient for trav- 
eling expenses merely, it is held that money, whether in bank-notes 
or in specie, is not properly baggage.'* Vfhile it has been held in 
some instances that even small amounts of money, taken along by 
a traveler to defray his traveling expenses, are not properly packed 

"Rosmll T. SUt« Ins. Co., G6 662; 84 L. J.'(C. P.) 369; 13 Week. 

Mo. 5S5; ante, I 1396; See Appel v. Hep. 7S£; 12 L. T. (h. 8.) 49S; 

Cooper Ins. Co., 76 Ohio St. 62, 80 Butcher v. London etc. R Co., IS C. 

N. E. 966. 10 L. R. A. (n. b.) 674; B. 13; 1 Jur. (n. b.) 437; 34 L. J. 

Storm V. Phoenix Ins. Co., ei Hon, <C. P.) 137; OrBot v. Newton, 1 K. 

G18, IE N. T. S. 281. D. Smith, 95; Whltmore r. Str. 

41 Merrill v. OrlDnell, SO N. T. Caroline, 20 Mo. G13; Merrill v. 
594. It bBB been held that mone7 Orlnnell, 30 N. T. 694; Bomar t. 
carried In a trunk to deposit at end Mazwell. 9 Humph. (Tenn.) 621; 
ol Journey Is not baggage. PSster Doyle v. KIser, 6 Ind. 243; Jordan 
T. Central Pao. Ry. Co., 70 Cal. 169. v. Fall River R. Co., G Gush. (Maaa.) 
11 Pac. ess, 69 Am. Rep. 401. Like- 69; Dunlap v. International Steam- 
wise ladles' Jewelry In the baggage boat Co., 9S Mass. 371; Dibble v. 
of a man traveling alone has been Brown, 12 Qa. 217; Hellman v. Hoi- 
held not properly baggage. Metz laday, Woolw. 365; Hutchlngs t. 
V. California South. K. Co., 86 Cal. Western R. Co., 26 Oa. Bl; HIckox 
329, 24 Pac. 610. 20 Am. St Kep. v. Naagatuck R. Co., 31 Conn. 381; 
22S, 9 L. R. A. 431. The Ionic, 6 Blatch. 638: Senet-al v. 

1* Phelps V. London etc R. Co., Richelieu Co.. 16 Lower Canada 

19 C. B. (N. B.) 321, II Jur. (n. a.) Jur. 1; Orange Co. Bank v. Brown, 



Coo»^lc 



BEA80NABLENESS. 1199 

in his b^gage,*' yet the weight of autiiority is to the contrary.** 
Several authorities also concur in holding that, what is a reasonable 
amonnt of money which a passenger may thus take with him in 
his trunk, so as to charge the carrier with liability therefor as an 
issurer, is a question of fact for a jtiry, to be determined upon the 
evid^ice touching the circomstancea of the traveler and of the 
journey.** 

§ 1670. What amount of Baffgage for a Pasaesger is Ezces- 
rive. — The same principles apply in respect of the quantity of bag- 
gage which a traveler is entitled to take as aueh." It has been laid 
down, in a case in the Supreme Court of the United States, that the 
liability of a carrier for the loss of passengers' baggage does not 
extend beyond ordinary baggage, or such ba^age as a traveler usu- 
ally carries with him for his personal convenience ; that the contract 
of carriage "only implies an undertaking to transport such a lim- 
ited quantity of articles as are ordinarily taken by travelers for their 
personal use and convenience, — such quantity depending, of course, 
upon the situation of the party, the object and length of his journey, 
and many other considerations."*' An English case has thus ex- 
pressed the role: ""Whatever the passenger takes with him for his 
personal ose or convenience, according to the habits or wants of the 
particular class to which he belongs, either with reference to the 
immediate necessities or to the ultimate purpose of the journey, must 

9 Wend. (N. T.) 86; Davis v. Lower Canada Rep. 169; Orange 

Michigan etc. R. Co., 22 111. 273. Co. Bank v. Brvwn, 9 Wend. (N. 

«< Grant v. Newton, 1 B. D. Smltb T.) 85. 

(N. T.), 95; Davis V. Mlcblgan etc « Merrill v. OrlnneU, supra; 

R. Co., 22 111. 278. JohnBon v. Stone, 11 Humpb. 

M Bomar v. Maxwell, 9 Hnmpb. (Tenn.) 419; Jordan v. Fall River 

(Tenn.) 821; Merrill v. QrlnneU, Co., 5 Cuah. (Mass.) 69; Duffy v. 

SO N. T. 694; Jotanson v. Stone. 11 ThompBon, 4 E. D. Smith (N. Y.), 

RnmptL (Tenn.) 419; Doyle v. 178; Weed v. Saratoga etc. R. Co.. 

Klser, 6 Ind. 242; Jordan v. Fall IB Wend. (N. Y.) 534; Grant v. 

River Co., 6 CuBli. (Mass.) 69; Newton, 1 E. D. Smith (N. Y.), 96. 

Dattj V. Tbompaon, 4 E. D. Smltb, MSee Angell on Carriers, f 115. 

178; Weed v. Saratoga etc. R. Co., «> Hannibal etc R. Co. v. Swift, 

19 Wend. (N. T.) 634; Cincinnati 12 Wall. (O. S.) 262; New York etc. 

etc. R. Co. V. MarcuB, 3S III. 219; B. Co. v. Fraloff. 100 U. 8. 24. 9 

Torpey v. WUliama. 3 Daly (N. Y.), Cent. K J. 432; 8 Rep. 301; 20 Alb. 

162; HIckoz v. Naugatuck etc. R. L. J. 409; Thomp. Garr. Fasfi. 602; 

Co., 31 Conn. 281; IHlnols etc. R. Coward v. East Tenn. Va. & 0. R. 

Co. V. Copeland, 24 HI. 332; Cad- Co.. 84 Tenn. 502, 9 S. W. 225, 66 

wallader v. Grand Trunk Co., 9 Am. Rep. 252. 



7crib;G00l^lC 



12C0 PEOVINCB OP COUBT AND JUBT. 

be considered as personal baggage." •• And whether the amount 
of ba^age which a passenger takes along with him on a particular 
journey is reasonable or excessive, within the foregoing rule, is a 
. question of fact for the jury. It was bo held where a Russian 
countess, of great wealth and high social position, traveling in 
America as she had traveled in many countries, put on board a 
railway six ordinary travel-worn trunks, one of which contained a 
large quantity of wearing apparel, inclading many elegant and 
costly dresses and also rare and valuable laees, which she bad been 
accustomed to wear upon different occasions when on visits or fre- 
quenting theaters or attending dinnera, balls or receptions, — a por- 
tion of which lace had been made by her ancestors upon their estates 
in Kussia. One of these trunks was broken open and rifled in the 
hands of the railway carrier, and two hundred yards of valuable 
lace stolen. She brought an action against the carrier for the value 
of the same, and recovered a verdict of $10,000. A judgment on 
this verdict was afBrmed by the Supreme Court of the United States. 
The court, speaking through Mr. Justice Harlan, said: "To the 
extent, therefore, that the articles carried by the passenger for his 
personal use exceed in quanti^ and value such as are ordinarily or 
usually carried by passengers of like stations and pursuing like 
journeys, they are not ba^age for which the carrier, by general 
law, is responsible as insurer. In cases of abuse by the passenger 
of the privilege which the law gives him, the carrier secures such 
exemption from responsibility, not, however, because the passenger, 
uninquired of, failed to disclose the character and value of the ar- 
ticles carried, but because the articles, being in excess of the amount 
usually or ordinarily carried under like circumstances, would not 
constitute baggage within the true meaning of the law. The laces 
in question confessedly constituted a part of the wearing apparel 
of the defendant in error. They were adapted to, and exclusively 
designed for personal use, according to her convenience, comfort, or 
tastes, during the extended journey upon which she had entered. 
They were not merchandise, nor is there any evidence that they were 
intended for sale, or for purposes of business. Whether they were 
such articles, in quantity and value, as passengers of like station, 
and under such circumstances ordinarily or usually carry for their 
personal use, and to subserve their convenience, gratification, or 
comfort while traveling, was not a pure question of law for the 

HMacrow v, Qreat Western R. Co., L. R. 6 Q. B. 612, per Lord 
Cockburn, C. J. 



7crib;G00<^IC 



BEASOKABLBNmS. 1201 

sole and final detertnioation of the court, bnt a question of fact for 
the jury, under the proper guidance from the court as to the law 
governing such cases. It was for the jury to say to what extent, if 
any, the baggrage of defendant in error exceeded in quantity and 
value that which was usually carried without extra compensation, 
asd to disallow any claim for gneh excess." '^ 

§ 1S80. What is Baggage a Blixed Question of Law and Fact.— 

It is frequently said that what is baggage ia a mixed question of law 
and fact, to be determined by the jury under proper instructions 
from the courf It cannot be decided as a question of law merely, 
upon any given state of facts, because no general role of law can 
be formulated as to what is or what is not a reasonable amount of 
baggage to be carried by a passenger in a particular case. It ia 
rather a question to be determined upon the aggregate experieuce of 
twelve men in the jury box, than by a single judge on the bench. 
The adjudications seem to justify the statement that anything may 
be carried as personal baggage which travelers usually carry for 
their personal use, comfort, instruction or amusement, having regard 
to the circumstances of each particular case.** No donbt there arc 
cases where the evidence, not being conflicting or doubtful, the ques- 
ti<m may be decided as a matter of law. Thus, it has been held, 
in a multitude of cases, that a passenger cannot carry merchandise 
in his personal ba^^e to avoid payment of freight upon it, and 
in case of its lees, bold the carrier to his liability as an insurer.** 

MNew York etc R. Co. v. Fra- Co., L. R. 6 Q. B. 612. 40 L. J. (C. 

toff, 100 U. B. 24, 29, 9 Cent. L. J. P.) 300; 24 L. T. (if. s.) 618; 19 

43S; 8 Rep. 801; 20 Alb. U J. 409; Week. Rep. 873; Mlasiseippl etc. R. 

Thomp. Carr. Pass. 502, 507. Co. T. Kennedy, 41 Miss. 671; To- 

** Brock T. Gale, 14 Fla. 523; ledo etc. R. Go. v. Hammond. 33 

Dibble V. Brown, 12 Qa. 217; Par* iDd. 379; Wilson t. Grand Trunk 

males t. Fischer, 22 111. 212. R. Co., 56 Me. 60; Walsh t. Str H. 

N Parmalee v. Fischer, 22 III. H. Wri^t, 1 Newb. Adm. 494; Cad- 

212; Dibble v. Brown, 12 Qa. 217; wallader v. Grand Trunk R. Co., 9 

American Contract Corp. v. Crou, Lower Can. 169; New Orleans etc. 

8 Bush. (Ky.) 472; Cincinnati etc. R. Co. v. Moore, 40 Mfs9. 39; Pardee 

R. Co. y. Marcus, 38 111. 219; Dex- v. DreW, 25 Wend. (N. Y.) 459. 
ter V. Syracuse etc R. Co., 42 N. Y. >« CahlU v. London etc. R. Co , 10 

326; GleasoD v. Goodrich Transp. C. B. (n. B.) 154, 7 Jur. (n. s.) 

Co-, 32 Wis. 85; Del Valle v. Str. 1164; 30 L. J. (C. P.) 289; 3 Week. 

Richmond, 27 La. Ann. 90; Hutch- Rep. 653; 4 L. T. (k. b.) 246; af- 

Ings V. Western etc. R Co., 26 Oa. firmed on appeal 13 C. B. (it. b.) 

Si; Haorow t. Great WesUm R. 813; 8 Jur. (n s.) inflS; 31 I* J. 
Tkials — 76 



Goo^^lc 



1202 PBOvmcE 07 ooubt and jubt. 

S 1681. The same Knle applicable to Bae^age of a Onest 
ItOBt at a FabUc Inn. — The liabili^ of an innkeeper for the goods 
of his guest is analogous to that of a conunon carrier."" Both had 
their origin in what was termed the custom of the realm. At com- 
mon law, the liability of an innkeeper seems to he larger than that 
of a common carrier, because it extended to the goods of the gaeat 
which the innkeeper reeeiyed, without reference to whether they 
were properly denominated ba^^age. Thus, it is said in an ancient 
and leading case in England; "Therefore, if one brings a bag or 
chest, etc., of evidence into an inn, or ohligatioTia, deeds or other 
speeitUties, and by default of the innkeeper they are taken away, 
the innkeeper shall answer for them, and the writ shall be bona «t 
catalla generally, and the declaraticm shall be special. These worde, 
bona et catalla, restrain the latter words to extend only to movables, 
• • • and these words aforesaid, absque subiractione seu amis- 
sione, extend to all movable goods. ' ' " There seems to have been 
a disposition in recent times to limit the liability to what is termed 
ordinary baggage, though, where the subject is not governed by 
statut«, as it now is in most of the States, the common-law rule no 
doubt still generally prevails. It has been supposed that, under 
the rule which would limit the liability t« what ia termed <HMiinaTily 
baggage, that is to such articles of necessity or personal eonvenienoe 
as are usually carried by travelers for their personal nse, it would 
be a question for a jury to determine what ia baggage nnder the 
circumstances of each particular case." 

§ 1682. Whether "Cash Letters" belong to the Class of Goods 
which the Owners of a Steamboat Undertook to Cany for Hire. — 

(C. P.) 271; 10 Week. Rep. 391; Oehm, G3 III. S93; Mich, etc R. Co. 

Beiraat etc. R. Co. v. Keys, 9 H. L. v. Carrow, 78 III. 848; RichanU v. 

Caa. 556, S Jur. (k. b.) 367; 9 Westcott. 2 Bosn. (N. T.) 689; 

Week. Rep. 793; 4 L. T. (w. a.) Robs v. Missouri ete. R. Co., 4 Uo. 

841; Great Nortbern R. Co. T. App. B83; Lee v, Gr&nd Trunk R. 

Shepherd. E Exch. 30. 7 Bng. R7. Co., 36 Upper Can. (Q. B.) 3G0; 

Caa. 310; 21 L,. J. (Exch.) 286; Mis- Beckmwi T. Shouae, E Rawle (Pa.), 

slsslppl etc. R. Co. V. Kennedy, 41 179; Blumantle T. Fltchburg R. Co., 

Miss. 6TI; Collios v. Boston etc. R. 127 Mass. 322, 20 Mb. L. J. 3E4; 

Co., 10 CuBh. <MaBa.) 506; Dibble Pennsylvania Co. v. Miller, 86 Ohio 

V. Brown, 12 Ga. 2'l7; Smith v. Bos- St. 541, 35 Am. Rep. G20. 

ton etc. R. Co.. 44 N. H. 325; Bell toPost, | 1843. 

T. Newton, 4 B. D. Smith, 59; Par- 'BColre's Caae, 8 Coke Rep. S3, 

dee V. Drew, 26 Wend. (N. T.) 459; See note to this caae In 1 SmIQi 

Hutchlngs T. Western etc. R. Co., Lead. Caa. 131. 

26 Qa. 61; Mich. etc. R. Co. v. " Saaaeen v. Clark, 81 Ga. 248. 

Coo^^lc 



REASONABLENESS. 1203 

It has been held, under circumstaQces, not improper for the court 
to submit to the jury the question whether cash letters belonged to 
that class or character of goods which the owners of a Bteamboat, — 
sned for the loss of bank bills inclosed in sealed letters, — undertook 
to carry for hire.*' 

5 1563. Difference of Bisk in the Carriage of Collected Par- 
cels. — It has been held a question for the jury whether there was 
a difference of risk to a carrier in carrying what was known as 
packed parcels, containing a number of parcels belonging to dif- 
ferent individuals, collected by a person who followed the trade of 
collecting parcels and transmitting them to his agent, in the country 
for distribution to their various owners, and other small parcels 
called "inclosures," — ^the question being one of fact, and not of 
Uw.w 

S 1584. SeasonablenesB of a Qoalifled Bonsai b^ a Common 
Carrier to Deliver Oooda. — In case of goods in the hands of a com- 
xaaa carrier, if delivery is demanded by the person entitled to re- 
aeive them, and the refusal of the carrier to deliver them is absolute 
and unqualified, this is sufficient evidence of a conversion; but if 
the refusal is qualified, the question then is, whether the qualification 
is reasonable, for if reasonable and made in good faith, it is no 
evidence of a conversion.*" In other words, if at the time of the 
demand, a reasonable excuse is made in good faith for the non- 
delivery, the goods being evidently kept with a view to deliver 
them to the true owner, there is no conversion.'* The reason of this 
role is that carriers are under an obligation to deliver the goods 
to the rightful owner ; they must see to it that the goods are delivered 
to the right person, for if the gooda are delivered to the wrong 
person, either by an innocent mistake or through fraud of third 
persons, as npon a foi^d order, the carrier will be responsible, and 
the wrongful delivery will be treated as a conversion.*' They will, 

MKnox V. Hlvea, H Ala. 249. Mount r. Derlck, G Hill (N. T.). 

■■Croucb V. Great Nortbern R. 455. 

Co., 11 Ex. 742, S4 Eng. L. ft Bq. <i McBntee r. New Jersof Steam- 

ST3. boat Co., supra. 

wMcE:nte« V. New Jersey Steam- •> Id.; Hawklna v. HofFman, t 

boat Co., 46 N. T. 34, 37; Alexander Hill (N. T.>, 5S6; Ponell t. Myers, 

». Bottthey, 5 Bam. ft Aid. 247; Hoi- 26 Wend. (N. T.) 591; Devereux v. 

brook V. Wlgbt, 24 Wend. (N. T.) Barclay, 2 Bam. ft Aid. 702; Qull- 

IM; Rogtn v. Weir, 34 N. Y. 463; laume v. Hamburgb etc Packet Go., 

Coo^^lc 



'i20i PBOVINOB or COURT AND JUBT, 

therefore, be protected in refusing to deliver, until reasonable evi- 
dence is famished tbem that the party claiming is the party en- 
titled, 80 long as they act in good faith and solely with a view to 
a proper delivery; and it has been held, under circumstances, tiiat 
whether their exeuae for refusing delivery, grounded upon the in- 
suiBcient identification of the claimant, was reasonable, is a question 
of fact for a jury,** and this would seem to be the rule in most cases. 

g 1586. Necessaries Furnished to Infants and Harried W'omen. 
It seems t^at, whether goods purchased by a minor are necessaries, 
is a question of law, and if necessaries, that their quaotily, quality 
and reasonable value are matters of fact.** It has been reasoned, 
in a suit of chancery against a married woman to charge a note, 
signed by herself and her husband, upon her separate realty, that 
it is a mixed question of law and fact, for a master to &nd, whether 
the articles for which the note was given were necessaries.** 

S 1686. Easement: Reasonable Use of Bight of Way. — Where 
premises are demised or conveyed, "with right of way thereto," it 
will be a question for a jury what is a reasonable use of such right 
of way. Thus, where a right of way was expressed to be "through 
the gate-way" of the plaintiff (which gate-way led to other premises 
of the plaintiff) , and at the time of the lease, carts could come ui 
to load and onload, and turn around and go out again, but, through 
alterations of the premises, could not do so now without slightly 
trending upon the plaintiff's premises, — it was held that, in the 
reasonable use of the right of way, the defendants had a right to 
do this, and that, what was a reasonable use was s question for the 
jury.** 

% 1587. Contest as to whether a Deed passes a Bight of Way 
as an Easement: Whether a New Way can be made without Un- 
reasonable Labor and Expense. — In an action to recover damages 

it N. T. 212; Duff v. Budd, 8 Brod. necessarlea. See Berry v. Hender- 

ft Bins. ITT; post, gg 1836, ISTS. son, 102 N. C. 6i5, 9 S. B. 456; 

•» McEntM T. New Jeraey Steam- Lynch v. Johnson, 109 Mich. 640. 67 

boat Co., 45 N. T. 34. N. W. 908, 

siPettlnglll V. Porter, 8 Allen wWinshlp t. Waterman. 66 Vt. 

Henderson t. Fox, 5 Ind. 489. 181; PhilHpa t. Sanchez 35 Fla. 

Though it has often held, that It 187, IT South. B63. 

ft-aa a question or facta whether a •« HawliiiiB t, CarhlneSi S Hurt, 

particular article, or articles or ft N. 911. 
seiTlceB c&me under the head at 



D.qitizeabyG00<^lc 



BSASONABLENESS. 1205 

for the obstruction of a way by erecting a fence across it, the plalntifl 
claiming the y/a^ as an easement, being appurtenant to land con- 
veyed to her hy a deed, it will be a qaestion for the jury on all the 
evidence, whether a new way could be made without unreasonable 
labor and expense. In such a case the applicatory rule of law has 
been held to be that a way over other land of a grantor in a deed 
luay paas as appurtenant to the land granted, although there are 
uo insaperable physical obstacles to prevent access by another way, 
if such other way cannot be made without unreasonable labor and 
expense ; and, in determining this question, a jury may coiisider the 
comparative value of the land and the probable coat of such a 
way.** 

n Pettlnglll v. Porter, 8 Allen ard v. Leonard, t Alien (Haaa.), 
(Mass.). 1. Compare Bwart t. 643; Carbray t. Willis, 7 Allen 
Cocbrane, 7 Jur. <h. a.) 925; Leon- (Mass.), 264. 



D.qitizeabyG00<^lc 



CHAPTER LIU. 

MALICIOUS PROSEKUTIOH. 

Abticlb I. — ^What Questions fob the Judqk and what for ths 

Jdbt. 
Abticlb II. — JuBT HOW Instbocted in such Aotions. 



Abticlb I. — ^What Questions fob the Judos and what for the 

JUE7, 
SBonon 
ie9G. EBsentlAl GrouDilB of tba Action. 
1G96. Distinction between Actions for Hallclons Prcneeatlon and Actions 

for Trespass or FbIm ImprlsODineiit. 
1697. Definition of Ezpreee Malice. 
160S. A Precedent of an [nstructlon on tbla Question. 
1599. Definition of Probable Cause. 
16 OD. How Defined. 
16D1. Defendant's Knowledge, how far an Ingredient. 

1602. Mar deDend upon Reasoi)able Qrounds of Belief. 

1603. How Jury Instructed as to Its Meaning. 

1604. Judge not to Submit each Particular Fact to Jurr- 

1605. Evidence of Malice: Inferred from Want of Probable Cause. 

1606. Conclusively Inferred from Criminal Prosecutions to effect some 

Collateral Purpose. 

1607. Evidence to Negative Malice: Acting under Advice of Counsel. 
160S. Etvldence of Want of Probable Cause: Probable Cause not Infer- 
able from Malice. 

1609. Evidence of Probable Cause: Binding over by a Magistrate. 

1610. When Conviction Conclusive Evidence of Probable Cause. 

1611. Malice a Question of Fact tor th« Jury. 
1613. Burden of Proof. 

1613. Probable Cause a QuestloD of I^w. 

1614. No Matter how Nomerous or Complicated the Facta may be. 
1616. Origin of the Rule. 

1616. DonbU as to the Rule. 

1617. No Definite Rule of Decision. 

1618. Sense in which It la a Question of Law. 

1619. Mixed Question of Law and Fact 

1620. Nonsuits, when granted In these Cases. 

16£1. Where the Question ariaea upon a Written Statement 
1622. Elfect ot the Rule upon Pleading. 

1628. When Error of Submitting Question ot Probable Canie to Jutt 
DO Cause of Reveraal. 



Coo^^lc 



UALtaOnS PROSECUTION, 1207 

§ 1696. Essential (}roimda of the Action. — In order to sustain a 
civil action to recover damages for the malicious prosecution of a 
prior criminal action, two things must concur : malice and the want 
of probahle cauae.' In other words, the plaintiff must show that 
the prosecution originated in the malice of the proeeentor and with- 
out probable cause.' Neither of these ingredients is sufficient with- 
out the other. It is not sufficient to prove express malice, unless the 
want of a probable cause is also shown.' The malice here spi^eu 
of is express malice, that is to say, malice in fact, as distinguished 
from maUee in law. "Actions of slander," it is said, "are some- 
times maintainable without proof of actual maXice,— constructive 
malice being sufficient. The reason for the distinction is this; 
Slander is always a^inst public policy, and very rarely, if ever, 
springs from other than malicious motives; but the prosecution of 
alleged criminals is not against public policy, and it is only occa- 
sionally that such a prosecution is commenced without probable 
cause. Hence, in aetions of slander, the falsity of the charge being 
shown, malice is established by a legal presumption, and proof of 
actual malice is not required ; but, in actions for malicious prosecu- 
tion, the law allows of no such presumption, and requires proof of 
actual malice to sustain thera.' In other words, the plaintiff must 
show that the defendaut acted from a malicious motive in prosecuting 
him, and that he had no sufficient reason to believe him guilty, A 
man may, from pure malice, prosecute another who is really guilty, 

I JohuBtone v. Sutton, 1 T. It 25 App. D. C. 155; Moore v. First 
544; Wade t. Walden, 23 III. 43E; Nat. Bank, 140 N. C. 293, 5i 8. E. 
Israel t. Brooka, 23 111. S75; Potter 944; Davis v. McMillan, 142 Mich. 
T. Seale, 8 Ca!. 217; Stone v. 391, 106 N. W. 862; Gabriel v. Mc- 
Crocker, 24 Pick. (Mass.) 81, 33; HuUId, 127 Iowa, 42S, 103 N. W. 
Jones V. Gwynn, 10 Mod. 214; * 3d5. It must also appear tbat the 
Fanner v. Darling, 4 Burr, 1971, prosecution has terminated. Pftta- 
1974; Gotdlng V. Crowle, Sayer, 1; burg, J. E. ft E, H. Co. v. Wake- 
Lyon T. Fox, 3 Brown (Pa,), Apx. field Hardware Co., 138 N. C, 174, 
69; Unnns v. Dupont, 3 Waah. C. C. 50 S. E- 571; Shaeter v. Cremer, IS 
31; Kelton v. Bevlns, Cooke ^. D. 656, 104 N. W. 468. 
(Tenn.), 90; MarBhall v. Bussard. "Center v. Spring, 2 Iowa, 393, 
Ollm. (Va.) 9; Bell v. Qrabam. 1 406; Jordan t. Cblcago ft A. R. Co., 
Vott ft McC. (S. C.) 278; Vanduzor 105 Mo, App. 446. 79 S. W. 1155. 
T. Llndennan, 10 Johns. (N. Y.) "Ibid.; Sbattuck v. Slmonds, 191 
106; White t. Dingier. * Maas, 435: Maaa. E06, 7S N. E. 122; Lacr v. 
Lindsay v. Larned, 17 Msss. 190; Porter, 103 Cal. 597, B7 Pac. 685. 
Brown v. Master, 104 Ala. 451, 16 * Humphreys t. Parker, 63 Me. 
SoDth. 443; Metleck v. Crump, 62 502, 506. 
Ho. App. SI; Staples v, Johnson, 



7crib;G00<^IC 



1208 paoviKCE OF cooht akd jury. 

or wbom he may, upon sufficient grounds, believe to be ^ilty, and 
thoogb the accused be in fact innocent, no action will lie against the 
proeecntor.' 

S 1596. Distinction between Actions for Halicions Prosecntioii 
and Actions for Trespass or False Imprisonment. — ^" There is," 
said Lord Mansfield, "no sitnilitade or analogy between an action 
of trespass, and this kind of action. An action of trespass is for the 
defendant's having done that which, upon the stating of it, is man- 
ifestly illegal. This kind of action is for a prosecation which, apon 
the stating of it, ia manifestly legal." ■ 

S 1S97. Definition of Express Malice. — Express malice or malice 
in fact is not necessarily envy, hatred or ill-will ; but in its legal 
sense it is that state of mind which prompts the doii^ of an act 
without just or legal provocation or exeose. "In a legal sense, 
malice has a meaning different from its popular signification. Acts 
willfully and designedly done, whit^ are unlawful, are malicious in 
respect to those to whom they are injurious. One may prosecute a 
laudable purpose with an honest intention, but in such a manner, 
and in such disregard of the rights of others, as to render hia acts 
unlawful. Prosecutions may be instituted and pursued with pure 
motives, to suppress crimes, but so regardless of established forms 
of law, and of judicial proceeding, as to render the transactions 
illegal and maUcious. The general motive may be upright and com- 
mendable, while the particular acts, in reference to others, m^ be 
malicious in the legal acceptation of the term; so tiiaX an act may 
be malicious in a legal sense, which ia not prompted or characterised 
by malevolence or corrupt design."* 

* Stone T. Crocker. !4 Pick, eon, 144 Fed. 678. In HlaMiari It 

(Hui.) SI, S3; Comer t. Wetmore, hu been eald that maliclons prow- 

110 App. DlT. 440, 9S N. Y. S. 999; cutlon Is widely different, and an 

Farmers MuL F. Ins. Co. v. Stewart, action for the tonner will not be 

167 Ind. G09, 79 N. E. 49D. snpported by evidence of the latter, 

■ Jobnstone v. Sutton, 1 T. R. 544. wbere the defendant did not par- 
Amending a complaint b; changing tlclpate In tbe prosecution and It 
the words "arrested on a warrant" was not on bli complaint, that a 
to "Arrested and held without a proseculoa was begun. Boden v. 
warrant" was held to convert an St. L. Transit Co., 108 Ho. App. 
action In case for malicious prose- 696, S4 S. W. ISl. See also Carp v. 
cation to one of trespass for false Queen Ins. Co., 203 Mo. 2K, 101 S. 
imprisonment under Alabama prac- W. S96. 
tlca. Western U. T. Co. v. Thomp- r Poge v. Cashing, S8 Ms. KSS, 



Coo^^lc 



lUUClOUa PBOGBCUTIOH. 1209 

§ 1698. ▲ Precedeat of an Instinction on tUa QnesUon.— It waa 
accordingly held that the following ioatruetion, in an action of 
trespass on the case for a conspiracy in commencing a prosecution, 
and an abuse of legal procecia, was correct: "It is not necessary, to 
maintain the action, that the defendants should have had any 
corrupt design, or that there should have been any moral torpitnde 
in the act complained of. That defendants might have acted from 
good motives, and probably did ; but if they intended to take liquors 
from the boat which they knew were there merely im freight, and 
combined and confederated for that purpose, tliey were not justified; 
and if, by such combination for such unlawful purpose, and the acta 
done by them in efFecting such purpose, they occasioned damage to 
the piainti^, they would be liable to pay such damage." * 

S 1S99. Definition of Probable Cause: Importance of nndsr- 
standing this Subject. — The importance of having a clear idea of 
the meaning of the term probable cause is seen in the fact that the 
want of probable cause, rather than the presence of malice, is the 
essential ground (rf the action, and, as hereafter seen, usually fur- 
nishes the evidence from which the malice is implied. "The es- 
sential ground of thia action," said Lord Mansfield, "is that a legal 
prosecution was carried on without a probable cause. We say this 
ia emphatically the essential ground, because every other allegation 
may be implied from thia ; but this must be substantively and ex- 
pressly proved, and cannot be implied. Prom the want of probable 
cause malice may be, and most commonly is, implied. The knowl- 
edge of the defendant ia also implied."* 

% 1600. How defined. — Probable cause has been variously de- 
fined as follows: "A suspicion, founded on circumstances suffi- 
ciently strong to warrant a reasonable man in the belief that the 
charge ia true."^' "A reasonable ground of suspicion, supported 

526, opinion by Howard, J.; Sban- tenttonally made againat an Inno- 
Don V. Jones, 76 Tex. 141, 13 S. W. cent party without probable cause, 
477. An inBtructEon tliat whatever authorizes a finding that it ie ma- 
le wrongfullr, vexatlonsly and pur- ItclouB. McFadden v. Lane, 71 N. 
poselr done Is in law maliciously J. L. 624, 60 AU. 366. 
done ha> been held correct. Rath- iFage v, Cushing, 38 Me. 623, 
erford v. Dyer, 146 Ala. 665, 40 624. 

Sontli. 974. In New Jersey It ts ■ Johnstone v. Sutton, 1 T. R. 644. 

■aid, that as accusation according »> Potter v. Seale, 8 Cal. 217, S21. 

to form of law in prosecution, In> It has been defined, as based upon 



Coo^^lc 



1210 PBOVINCE OF OOUBT AND JDBY. 

by oircaniataQcea, sufficiently strong in tbemselves to warrant :i 
cautious man in tiie belief that tbe person accused is guilty of the 
offense with which he is charged."" "Such facts and circuin- 
stances aa would induce an ingenuous and unprejudiced man, of 
common capacity, in the defendant's situation, to believe tlie plain- 
tiff to be guilty, would justify a criminal prosecuticm against him," '* 
"That apparent state of facts, found to exist upon reasonable in- 
quiry,^ — that is, such as the given case rendered convenient and 
proper, — which would induce a reasonable, intelligent and prudent 
man to believe that the accused person had committed, in a criminal 
case, tlie crime charged; or in a civil case, that a cause of action 
existed."'* 

S 1601. The Defendant's Knowledge, how far an Ingredient. — 
Among the facts which bear upon the question of probable cause 
are the defendant's knowledge of the alleged ground of the accu- 
sation at the time when he prosecuted, and his belief, at that time, 
that the conduct forming such groand of accusation amounted to 
the offense charged. If the defendant did not so believe, the want 
of probable cause is established, though the imputed offense ap- 
peared prima facie to have been committed by the plaintiff, and tho 
fact to have been known to the defendant, before the charge was 
made. The absence of belief must be proved by the plaintiff; and, 
if it be not proved, the defect is not supplied, for the purpose of 

Buch a state of facta, known to the (Mass.) 217; Foshay t. Ferguson. 

prosecutor, or on such intormatlon i Denlo (N. Y.), 817; Rlchey v. Mc- 

received by him from sources en- Bean, 17 III. 63; Carp v. Queen Ins. 

tltJed to credit as would and does Co., 203 Mo. 295, 101 S. W. .78. 
Induce a man of ordlnsj-y caution " Stone t. Crocker, 24 Pick. 

and prudence Co believe the accused (Maae.) 81, 86. 
Kullty. Whipple T. Oorsuch (Ark.), 'SLacy t. Mitchell, 23 Ind. 67. 

101 B. W. T3E, 10 L. R. A. (la. s.) These deflnittona appear to have 

1133. Probable cause has also been somethliiK ot a quallBcatlon In a 

said to be knowledge leading an or- holding that conduct, whicta Is suf- 

dlaarlly prudent peraon to believe flclent to excite a well grounded 

another guilty of the crime charged, suspicion In men unskilled In tecb- 

Klng T. Apple River Power Co., 131 nical rules ol law. Is not sufBcfent 

WIb. G76, 111 N. W. 668. to generate probatle caus«. nor Is 

11 Munna v. Dupont, 3 Wash. C. allo?an:e to te made for ezclte- 

C. 31; Center v. Spring, 2 Iowa 393, ment, partiality or prejudice, but 

407; Ash T. Marlow, 20 Ohio, 119. the standard Es what a reasonably 

129; Cole v. Curtis, 16 Minn. 182, prudent man would do. Reynolds 

195: Bacon v. Towne, 4 Cueb. v. Dunlap, 78 Kan. 763, 84 Pac. 710. 



ovGoQi^lc 



MAUCIOUS PBOBECUTION. 1211 

sliowiog want of probable cause, by evideoce that the defeodant 
made use of the chat^ as a meaoa of obtaining an unfair ad- 
vantage over the plaintiff." Accordingly, if, in auch an action, tbe 
evidence bearing upon this question ia conflicting, the jury, according 
to the English practice, may be asked by the judge whether or not 
the defendant, at the time when he prosecuted the prior action, knew 
of the existence of those circtunstanceg which tend to show probable 
cause, or believed that they amounted to the offense which he chatted 
against the plaintiff; and if the verdict of the jury negatives either 
of these facts, the judge will decide, as a point of law, that the de- 
fendant had no probable cause for instituting the prosecution.'* 
Thus, in an action for maliciously, and without reasonable or prob- 
able cause, prosecuting the plaintiff for perjiuy, it appeared that 
the statements alleged to he perjured had been made by the plaintiff 
when testifying as a witness in an action against tbe defendant, 
respecting facts known to the defendant only by the relation of 
others. There was evidence that the defendant had been told that 
the plaintiff's evidence was willfully false; but there was also evi- 
dence that the defendant had said that be had indicted the plaintiff 
merely to stop his mouth as a witness in another proceeding. The 
judge directed the jury that "if the plaintiff had, in fact, sworn 
falsely; or if the defendant, at the time he preferred end prosecuted 
the indictment, acting upon the information he had received, be- 
lieved and had reasonable grounds for befieving, that the plaintiff 
had sworn falsely, then there was reasonable and probable cause 
for preferring and prosecuting the indictment; but if the defendant, 
at the time he preferred and prosecuted the indictment, did not be- 
lieve the information he had received to be true, but in his own 
mind believed, and had reasonable grounds to believe, that the 

KTnmer v. Ambler, 10 Ad. ft Bl. fore they could find there was 

(K. s.) 252. There must be bellet probable cause. PrUe v. Dennison, 

of the guilt of the accused, and tbU 95 Minn. 106. 103 N. W. 723. In 

belief must be based on clrcum- Louisiana, however, it eeems that 

stances sufflelentl; strong for Its the Jury must find bad or hostile 

presence in the mind of a reason- teeliog coupled with knowledge of 

able and cautious man. Butcher v. no probable cause. See Brelet v. 

Hoffman, 99 Mo. App. 239, 73 S. W. Mullen, 44 La. Ann. 194, 10 South. 

266. Where intent was the gist of 865. 

the offense charged, it was held cor- " Ibid. See also Haddrick v. 

rect to Instruct that tbe Jury Healop, 12 Ad. * El. (n. s.) 267, 

should delermlne whether or uot ST4, 277; Broad t. Ham, 5 Bing. (N. 

defeodant knew or could not have C.) 722, 
known of plantlll'a good faith be- 



jel byGoO^^lc 



1212 PBOVINCE OF COUKT AND JUBT. 

plaiDtilf had not sworn falsely, or, still more, if he believed thai 
the plaintiff has spoken the truth, then there was no reascoiable 
or probable cause for preferring and prosecuting the indictment." 
It was held by the Court of Exchequer Chamber, that this direction 
was correct." 

g 1602. Blay depend apon Reasonable Gronnda of Belief. — 
This is illuatrated by an Ei^lish case, where the criminal prosecu- 
tion had been for sheep-stealing, and it appeared, at the trial of 
the action for malicious prosecution, that the plaintiff was possessed 
of a sheep, which the defendant claimed belonged to a lot of aheep 
which had been stolen from him; that the plaintiff had given an 
account of the way be became possessed of it, which, if it belonged 
to the defendant, must have been willfully false ; that the defendant 
took away the sheep from the plaintiff, wbereupwi plaintiff suetl 
htm for so doing, in the county court; that, to stop thiii action in 
the county court, the defendant procured the plaintiff to be indictal 
for larceny, of which charge he was afterwards acquitted. In sum- 
ming up to the jury, Baron Bramwell, assuming these facts to be 
true, asked them whether the defendant had reasonable grounds for 
his belief that the plaintiff had stolen the sheep. On their finding 
that be had, the learned judge ruled that there was reasonable and 
probable cause for the prosecution. On review, it was held by 
Coleridge and Cromptoh, JJ., that, under these eircumstancea, the 
finding of the jury on that one point, in addition to the facts which 
were beyond dispute, made out a complete case of reasonable and 
probable cause, and that the direction of the trial judge waa there- 
fore right." 

§ 1603. How Jury instructed as to its Meaning. — This subject 
depends upon the facts of each particular case, and therefore escapes 
definition. But it has been held in one case, where the prior crim- 
inal prosecution was for an aisault, that the judge rightly directed 
the jury that if the defendant preferred the indictment with the 
consciousness that he waa in ths wrong in the transaction which led 
to the assault upon him, there was no reastmable or probable cause 
for the indictment.'* An action for malicious prosecuticni for 

!■ Heelop V. Chapmao, 23 L. J. i* Hlnton v. Heatber, U Hms * 
(Q. B.) 49. W. IBL 

IT DouglOB T. Corbett. 6 El. * m. 
611. Erie, J., dissented. 



D.qitizeabyG00<^lc 



HALiaOUS FSOSECUnON. 1213 

perjury was fonnded on Qie following cinmmstaiices: — The plain- 
tiff's father had been tenant of a honae to the defendant, and was 
aaed in the Count? Court for rent in arrear. The defense was sor- 
roider before any rent due, and the plaintiff, as a witness, swore 
that he, at the defendant's request, gave him up the key on & par- 
ticular day. Upon this evidence perjury was assigned, and the 
plaintiff was indicted, tried and acquitted. He then brought an 
action for malicioua prosecution. In this action the judge directed 
the jury: 1. If they believed that the plwntiff did give up the key, 
and the defendant, knowing that he had done so, indicted him for 
perjury, they should find for the pl^ntiff. 2, If they did not be- 
lieve the plaintiff, they should find for the defendant 3. If they 
were in doubt as to which party was speaking the truth, they should 
find for the defendant, aa the plaintiff would not have made out bis 
case. 4. Alternatively, if they tbooght that the plaintiff did give 
ap the key, but that the defendant, having forgotten the fact, 
prosecuted him under an honest impression that he had corruptly 
sworn that he had done what he had not done, they would not be 
justified in finding that the defendant had maIi<uousIy and without 
reasouable and probable cause prosecuted the plaintiff, but might 
find for the defendant It was held that this was a right direction.** 

S 1804. Judge not to nibmit each Particular Fact to Jury.— 
The difficulty of applying this doctrine, under the English sya- 
tem, was thus stated by Lord Denman, <7. J., after r^^tting that 
the case of Panton v. WtUiams,'' had not been brought to the House 
of Lords: "That case, however, does not lay down, as a rule, that 
the judge ia to subimt each particular fact to the jury, but coily 
that he is to lofA at all bother, ask the jury which is proved, 
and decide, according to the result, whether probable cause is shown 
w not. As to single facts, what law can he resort to in directing 
the juryt How can he lay down, aa a general proposition of law, 
what particular fact shows probable cause, under the circumstances 
of an individual case! The fact which is probable cause in one 
ease is not in another. What general rale can there bet There 
is, on any view, a difficulty; but the Court of Exchequer Chamber 
having decided as they did, I have always endeavored to follow 
their ruling."** 

i» Hlck« v. Faulkner. 61 L. J. (a " Rowlands t. Samuel, 11 Ad. * 
B.) 168. El. (K. s.) 40, note. 

•■2 Ad. AEl. (N. B.) 169. 



7crib;G00<^IC 



11^14 FBOTINCE OF CUUBT AND JUBY. 

§ 1606. Evidence of Malice; Inferred from Want of Prob- 
aWe CauBc. — It is universally conceded that the want of probabli' 
cause, for instituting the prosecution is a cireumatanee from which 
the jury may infer that it was Instittiled from malicious motives.*" 
In other words, the want of probable cause is evidence of malice. 
It is competent evidence, and it may, in the opinion of the jury, 
be very strong evidence; but it is not conclusive evidence.** It is 
prima facie evidence of malice, or, in other words, evidence tend 
ing to show malice; but it does not necessarily establish the ex- 
istence of malice. That is to say, malice is not an inference of 
law from the want of probable cause. But it is an inference of 
fact, to be drawn by the jury or not, as to them seems right, under 
all the circumstances of the case. The rule means no more thau 
this: that malice need not be proved by direct and positive testi- 
mony, since this, in many cases, would be impossible; but it may 
be inferred from the facts which go to establish a want of prob- 
able cause." "Actual malice may fae inferred by the jury from 
the want of probable cause, or be proved by other circumstantial 
evidence, like ajiy other fact ; but it is a fact to be found by the 
jury, and not a fact to be established by a legal presumption."" 
The jury are a1 liberty, but are not bou}id to infer the existence of 
malice from the want of probable cause; ami consequently, where 
a state of facts arises upon indisputable evidence, which, if true, 
shows that there was no probable cause, the judge is not authorize-! 

MSavtl v. Roberts, 1 Salk. 14. 1 S. B. 777; Orefice v. Sararese, li:: 

Ld. Raym. 374; Johnstone v. Sut- N. Y. Eupp. 175. 61 Misc. Rep. SS 

ton, 1 T. R. E45; Purcell v. Mac- To show proae:utlon contlnue<I 

Namara, 9 East. 361; Incledon v. ulthout proba>ile cauze la sufBclent 

Berry, 1 Camp. 203, note; Kerr v. Christian v. Haana, SS Mo. App. 37 

Workman. Add. (Pa,) 270; Stewart is S'one v. Croclier, 24 Pick 

V. Sonnetorn, 98 U. S. 187; Center (Mass.) 87. 

V. Spring, 2 Iowa, 393, 407; Israel v. :« Sbarre v, Johnston, 76 Mo. 

Brooks, 23 III. 575; Grant v. Moore. S60; Sharpe v. Johnston, 59 Mo. 

29 Cal. 644, 648; Potter t. Seale. 3 557; Venslckle v. Brown. 68 Mo 

Cal. 220; Pangburn v. Bull, 1 629; McCarthy t. Weir, 113 App- 

Wend. (N. Y.) 345. 352; Stoiklex Div. 435, 99 N. Y. S. 372; Bvana v. 

V. Hornldee, 8 Car. & P. 11, 18; Atlantic C. L. R. Co., 105 Va. 72, 53 

HlckB T. Faulkner. 51 L. J. <Q. B.) S. E. 3; GuK C. ft 3. P. R. Co. v. 

268, 273, per Hawkins, J.; Pierre T. Jame3, 73 Tex. 12. 10 S. W. 744. 15 

DooIltUe. 130 Iowa, 333, lOG N. W. Am. St. Rep. 743. 

751; Southwestern R. Co. v. :? Humph rlea t, Parker, BS He 

Mitchell. SO Ga. 43S, 5 S. E. 490; £02, 506. 
Morrell v. Dudley, 139 N. C. 57, 51 



ovGoo^^lc 



MALICIOUS PBOSECUTION. 1215 

to tell the jniy that the only question for them is the qaestitm of 
damages; since it still remains for them to determine whether tlie 
prosecution, althongh without probable cause, was malicious.** 
On the other hand, the rule being that malice may be inferred 
from the want of probable cause, it follows that no other evi- 
dence of malice is necessary than to show a want of probable cause 
for bringiug the criminal action." It follows also that while, as 
hereafter seen, want of probable cause is a question of law, yet, 
"as evidence of malice, it is a question wholly for the jury, who, 
even if they should think there was want of probable cause, might 
nevertheless think that the defendant acted honestly and without 
ill will, or any other motive or denre than to do what he bona fide 
believed to be right in the interests of justice; in which case they 
ought not to find the existence of malice."** 

S 1607. OonclnsiTely inferred from Criminal Prosecutions to 
effect some Ccdlateral Purpose. — Criminal prosecutions, without 
a !^al canse, institated for the purpose of obtaining the payment 
of a debt, or the restitution of proper^, are in legal contemplation 
malicious.** Such conduct has been characterized as evidence of 
a "heart regardless of social daty, and fatally bent upon mis- 
chief;" and it has been said: "That evil quality of the heart which 
prompts a man to make a false chai^ against another, for the 
purpose of private gain or advantage, is legal malice."** Accord- 
ingly, where one was arrested on criminal process, in which he 
was fabely charged with fraud, for the purpose of coercing him 
to surrender to the proeeciit4>r certain promissory notes, of which 
each of them was a part owner, — the prosecution was held to be 
without probable cause and, in legal contemplation, malicious, and 
a verdict for the defendant was set aade.*' 

S 1607. Evidence to Negative Malice: Ac^g onder Advice 
of Counsel. — The fact that the defentlant, in instituting the crim- 
inal prosecution, acted under advice of counsel may be shown in 

wHltcbeU V. Jenkliuti. 5 B&m. * Iowa, 739. Ill N. W. 29; Carp v. 

Ad. ESS. (lueen Ins. Co., 203 Mo. 205, 101 S. 

tTHslUdar V. Sterling. 62 Mo. W. 295; Sebastian v. ChaneT, 86 

311. Tex. 97. 25 8. W. 691; Lueck v. 

M HIcka T. Faulkner. 51 L. J. (Q. Helater, 87 Wis. Mi. 58 N. W. 1101. 

a) 268, 273, per Hawkins, J. m KlmbaU v. Batea. EO Me. 308, 

MBrooka v. Warwick, 2 Stark. 309. 

393; IfcDonald v. Rooke, S Bins. »IbU. 
(N. a) 219; Potter v. Sims, 136 



7crib;G00<^IC 



1216 PBOTINCE OP OOUHT AND JUEY. 

evidence for the purpose of disproving inslice; but the fact thni 
he so acted does not exclusively disprove malice. It has accord- 
iDgly been held error to instruct the jury that, "if defendant 
acted under the advice of counsel, malice cannot be inferred from 
the want of probable cause." "He may," said Wright, C, J., 
"have misrepresented the facts; he may not have acted bona fide 
under the counsel given, or he may himself have known or be- 
lieved that there was no cause for the prosecution ; and if bo, he 
would not be protected; and malice might be inferred from the 
want of probable cause, though he did act under the advice nf 
counsel,"** 

S 1608. Evidence of want tit Probable Cause: Probable Oanae 
not inferable from HsUce. — 'While, as already seen, malice may 
be inferred from the want of probable cause, yet the converse of 
the rule is not true ; but the rule is that the want of probable cause 
cannot be inferred from the most express malice.** "A man," 
said Lord Mansfield, "from a. malicious motive, may take up a 
prosecution for real guilt, or he may, from circumstances which 
he really believes, proceed upon apparent guilt; in neither case 
is he liable to this kind of action."'* The obvious reason is that 
a man is not to be held liable in damages for doing a lawful act 
from au evil motive." 

g 1609. Evidence of Probable Cause: Binding over by a Magis- 
trate. — The fact that the plaintiff was, in a criminal prosecution, 
committed or held to bail by a magistrate is, in one view, con- 

■1 Center t. Sprlns, S Iowa, 393, N. W. 668; Slater v. Walter, 148 

405. 406; Brooke v. Bradford. 4 Mich. 650, 112 N. W. 682. 
Colo. App. 410, 86 Pac. 303; R. F. » Johnstone v. Sutton, 1 T. R. 

Srott Grocer Co. v. Kelly. 14 Tex. 544; Wade t. Walden. 23 111. 426; 

Civ. App. 136. 3S S. W. 140. But It Center v. Spring. 2 Iowa. 393. 407; 

la generally ruled, as matter of law, Israel v. Brooks. 23 111. 575; Qrant 

that to make a tuU diecloaure In v. Moore, 29 Col. 644, 64S; Potter v. 

perfect good faltb of all facts In Seale, 8 Gal. 220; Pangbum v. Bull, 

one's knowledge, and to be guided 1 Wend. (N. T.) 345, 352; Stockly 

in like faltb by competent counsel v. Hornldge, 8 Car. t P. IS; Stewart 

learned la tbe law, Is a complete v. Sonneborn. 98 U. S. 187, 25 L. Bd. 

defense. National L. ft A. Ins. Co. 116. 

V. Gibson, 31 Ky. Law Rep. 101. 101 (^Johnstone v. Sutton, 1 T. R. 

S. W. 895; Putnam t. Stalker. 50 644. 

Or. 210. 91 Pac 363; King v. Apple >« Sharpe v. Johnston, 71 Mo. 

River Power Co., 131 Wis. 676, 111 669. 



D.qitizeabyG00<^lc 



ICALICIOUa PBOSEOUTIOM. 1217- 

closive evidence of probable eaaae for commenciDg t2ie proceed- 
ings,** while ia another view it is prima fade evidenee only. Ac- 
cording to the latter view the judge goes far enoi^h when he ia- 
gtmcts the jury that, after the exhibition of the affidavit, war^ 
rant and transcript of tlie justice 'a docket, showing that the ac- 
cused was bouod over to court, it ia incumbent on the pluntiff to 
show afSrmatively that there was no reascniBble or probable cause 
for the prosecution.*' 

S 1610. Vhen Convictlcoi ConclnsiTfl ETidence of Probable 
Oaiue. — A conviction, even by a justice of the peace, if the case 
were within his jurisdictiouj is sufficient evidence of probable 
cause to defeat an action tor malicious prosecution, as matter of 
law. On this subject Chief Justice Shaw said: "When the plain- 
tiff had been convicted by a tribunal, constituted by law, with 
aathority to render a judgment which, if not appealed from, would 
have been conclo^ve of hia guilt, and such judgment is not im- 
peached (Ht the ground of fraud, conspiracy or subomataon in its 
procnrement, although afterwards reversed on another trial, it 
conatatatcs sufficient proof that the prosecutiim was not ground- 
le^ and to defeat an action for malicious prosecutirai."** 

S 1611. IbLllM a Question of Fact for the Jury.— In such 
actions the questiwi of malice ia always a question of fact for the 
jury.** This is merely an illustration of the broader rule that 

M Rltcbflj T. DavlB, 11 lows, 124; " Cloon T. Gerrr, IS Grai' 

3 Gre«nL Br. S 467, and autboil- (Hase.), 201. To tbe same twlnt 

ties cited. A convlctkm has been Is WhUney v. Peckbam, 16 Mass. 

ao held, thougb on appeal tbere la 243. See alen Cotton v. James, 1 

acquittal. Morrow v. Wbeeler * Bam. t AdI. 128; Fierce v. Thotnp- 

W. Hfg. Co., 165 Haaa. 349, 43 N. EL Bon, 6 Pick. (Mass.) 193; Wblppla 

105. Contra see Knight v. R. Co., v. Gorsucli (Ark.>, 101 S. W. 738. 

CI Ped. 87, 9 C. C. A. 376. 10 L. R. A. (n. a.) 1133; Lawrence 

MAah V. Marlow, 20 Ohio, 119, v. Cleary, S8 Wis. 473, 60 N. W. 

129. For cases, that it Is only 793; Brantley v. Rhodes FUr Co, 

prima facie evidence, see Cooper v. 131 Oa. 276, 62 S. E. 222. 

Hart, 147 Pa. 604, 23 Atl. 833; m Mitchell v. Jenkins, 5 Bam. * 

Fl&ckler V. Novak, 94 Iowa, 634, 63 Adl. 588; Anderson v. Kellar, <7 

N. W. 348; Robs v. HUon, 46 Kan. Oa. 58; Center v. Spring, 2 Iowa, 

550, 2S Pac. 965, 12 L. R. A. 760, 26 893, 407; Newel] v. Downs. 8 

Am. St Rep. 123; Flrer v. Lowery, Blackf. (Ind.) 623; Potter v. Seale, 

B9 Mo. App. 92; and thus eeema tbe 8 Cal. 217; Page v. Cuabing, 3S Me. 

welgbt ol aathority. 623, 626; RlUhey v. Davis, 11 Iowa. 
Tbiaia— 77 



7,rb,Goot5lc 



1218 PfiOVINCB 07 OOUBT AMD JUBT. 

express malice, like express fraud, its eoageDer, is a fact, to be 
proved as such, and as such to be established, if at all, by the find- 
ing of a jury. Except in a limited class of cases, which fall within 
the rule concerning what is called in the books implied malice,— 
cases in which the law conclusively presumes the existence of 
malice from the existence of some other establbhed or admitted 
fact, — the existence of malice is always s question of fact for the 
jury;*** and, as we have seen," the malice which is essential to 
support this action is express, and not implied malice. Such being 
the law, it is errar to instmct the jury that, when probable cause 
is not proved, the lajv implies malice, and that unless the jury are 
satisfied from the evidence that there was probable cause, thf^ 
should find for the plaintiff.*' 

§ 1612. Borden of Proof. — ^In general the burden of proof is 
on the plaiiitiff, to exhibit a state of facts which shew a concur- 
rence of the two grounds of recovery, a prosecution set on foot 
out of malice and without probable cause.** It devolves upon 
him to show affirmatively, by circumstances or otherwise, that the 
defendant had no grounds for the prosecution — no such reason- 
able grounds of suspicion, sufficiently strong in itself, as to war- 
rant a cautious man in believing that the person arrested was 
guilty of the offense with which he was charged.** Where the 
defendant pleads singly the truth of the facts involved in the prose- 
cution, this, it has been held, is an assumption of the burden of 
proving such facts by him, in which case the plaintiff need not, 
in the first instance, show the want of a probable cause.** As was 
weE said by Morton, J,: "The want of probable cause is the es- 

124; Von Latham v. Libby, 8S « Ante. % 1696. 

Barb. (N. T.) 339, 343; Humphries MRltcher v. Davis. 11 Iowa, 1S4, 

V. Parker, 52 Me. S02. SOG; Moodf 127; Schofleld v. Ferrors, 47 Pa. St. 

V. DeulBi*. 85 Mo. 237, 243; HalU- 194. 

day T. Sterling, 62 Mo. 321; Worn- <■ Pangbum v. Bull, 1 Wend. (N. 

ack V. Furblcker, 47 La. Ann. 33. Y.) 345, 352. 

16 South. 60?; Le Clear r. Perkins, <« Israel r. Brooke, 23 111. GTE. 

103 Mich. 131, 61 N. W. 357. 26 U. See also Jacks v. StlmpBOn, 13 HI. 

R. A. 627; Barber v. Scott, 92 Iowa, 701; Richer v. McBean, 17 III. 65; 

52, 60 N. W. 497; Ruth v. St. L. Kurd v. Shaw. 20 HI. 366; Davis v. 

Transit Co., 98 Mo. App. 1, 71 S. W. McMillan, 142 Mich. 391, 10& N. W. 

1055. B62. 

" Schofleld V. Ferrers, 47 Pa. SL « Morris v. Corson. 7 Cow. (N. 

194; U. S. V. Alden, Sprague (U. 7.) SSL 
S.), 9S: St V. Allen, 22 Mo. 318. 



7crib;G00<^IC 



MALICIOUS PBOSBCDTION. 



1219 



Bengal groond of this action. Other thingB may be inferred from 
this. But this cannot be inferred from anything elae. It must 
be established by positive and express proof. It is not enough to 
show that the plaintiff was acquitted of the charge preferred 
against him, or that the defendant abandoned the prosecutioD. 
But the onus probandi is upon the plaintiff to show afBrmatively, 
by cirentnstauees or otherwise, as be may be able, that the de- 
fendant had no ground for commencing the prosecution."" 

§ 1613. Probable Cause a Qaestion of Law. — No rule is bet- 
ter settled both in England " and in America," than that in civil 
actions for damages for the malicious prosecution of a criminal 
action, the question of probable cause is a question of law, which 
the judge must decide, upon established or ccmceded facts, and 
which it is error for him to submit to the jury.** 



w Stone V. Crocker, 24 Pick. 
(Mass.) 81, 84: citing Purcell v. 
McNaDoara, 1 Camp. 199, 9 Baat, 
361; Sykea v. Danbar, 1 Camp. 202, 
not»; Incledon v. Berrr. 1 Camp. 
303, note; WallU v. Alplue, 1 
Cunp. 204, note; Shock r. McChes- 
ner, 4 TeaUs (Pa.), 507; Canning- 
ham r. Moreno (Ariz.), SO Pac. 
327 (not reported In state re- 
ports); Young T, Ltndstrom, 116 
lU. App. 239; Pandjires v. Hart- 
man, 196 Mo. eS9, 94 3. W. 270. It 
haa been held that discharge by a 
magistrate Is prima facie proof of 
tbe want of probable cause. Bar- 
hlght T. Tammanr. 15S Pa. 545, 2S 
Atl. 135, 38 Am. St. Rep. S63. See 
also Smith v. Gastem B. ft L. 
Assn., 116 N. C. 73, 20 S. E. 9S3; 
Blgelow V. Sidles, SO Wis. SS, 49 
N. W. 106, 27 Am. St. Rep. 25. 

«T Sutton T. Johnstone, 1 T. R. 
493, 510, 644. 647, atTd In House of 
Lorda, Id. 7S4; Panton v. Williams, 
2 Ad. ft BI. (K. s.) 169, 1 Gale A 
Dav. 604: Mlchell t. Williams, 11 
Hees. ft W. 205; Halles v. Marks, 
30 L. J. Eich. 389, 7 Hurl, ft N. 56; 
Hlnton T. Heather, 14 Mees. ft W. 
131, 134; West v. Baxendale, 9 Com. 



Bench, 141; Turner v. Ambler, 10 
Ad. ft El. (v. 8.) 262; Douglas v. 
Corbett, 6 El. ft Bl. 511; Hill v. 
Tatee, 8 Taunt 182, 2 Moore, 80; 
Blaehrord v. Dod, 2 Bam. ft Adl. 
179; Lister t. Ferryman, L. R. 4 H. 
L. 621. 39 L. J. Esch. 177; Cox v. 
English Scottish ft Australian 
Bank. 74 Law J. P. C. 62. 92 Law T. 
483; Olsen v. Lantalum, 32 N. Br. 
G26. See i Wlgmore on Ev. 2664. 

"Lacy V. Mitchell, 23 Ind. 67, 
aemble; Cloon r. Carry, 13 Gray 
(Mass.), 201; Masten v. Dayo, 2 
Wend. (N. Y.) 424; Beaaon t. 
Southard. 10 N. T. 236. 240; Wald- 
helm T. Slchel, 1 Hilton (N. Y.), 
45; Von Latham v. Llbbe, 38 Barb. 
(N. T.) 339, 343; Gordon v. Dp- 
ham, 4 E. D. Smith (N. T.). 9. 10; 
Wade T. Walden. 23 111. 425; Page 
T. Gushing, 3S Me. 533, 626; Moore 
V. Ftrat Nat. Bank, 140 N. C. 293, 
62 S. E. 944; Hobson v. Koch, 115 
App. Dlv. 299, 100 N. Y. S. 893; 
Lewton v. Hower, 35 Fla. 68. 16 
South. 616; Leabey v. March, 166 
Pa. 45S, 26 Atl. 701; Seabrldge v. 
McAdam. 108 Cal. 345, 41 Pac. 409. 

"Hill V. Yates. 8 Taunt. 182; 
Pangbum v. Bull, 1 Wend. (N. Y.) 



Goo^^lc 



1220 PBOVINCB OF OOUST AND JUBT, 

§ 1614. No Matter how Knmerous or Complicated the Facta 

may be. — Said Tindal, C. J., in giving the opinion of the Court 
of Exchequer Chamber in the leading English case: "Snch being 
the rule of law where the facts are few and the case simple, we 
cannot hold it to be otherwise where the facta are more numerous 
and complicated. It is undoubtedly attended with greater diiS- 
colt? in the latter case, to bring before the jury all the combina- 
tions of which numerous facts are susceptible, and to place in a 
distinct point of view the application of the role of law, according 
as all or some only of the facts, and inferences from facta, are 
made ont to their satisfaction. But it is- equally certain that the 
task is not impracticable; and it rarely happens but that there 
are some leading facts in each case which presents a broad distinc- 
tion to their view, without having recourse to the less important 
circnmstances that have been bronght before them."*° On the 
contrary, it has been held in this country that, where the circum- 
stances which may have induced the belief in the defendant that 
the plaintiff had committed the crime for which he was charged, 
were numerous and complicated, the question whether the defend- 
ant had probable cause for believing that the crime had been com- 
mitted and that the plaintiff had committed it, is a question of fact 
toe the jury. The reason for tins conclusion has been stated thus: 
"The law does not and could not prescribe a definite' rule as to 
what particular facts shall constitute this reasonable ground of 
belief; the only rule which it can, or does prescribe is, that the 
facta in each particular case must be such as would reasonably 
produce such belief in the minds of ordinary men; but in such 
case it is for the jury to say, not only what specific facts are estab- 
lished, but to determine their effect as a fact within the rule men- 
tioned; and only upon such finding does the law pronounce its 
conclusion."'* There is other and high authori^ for the con- 
clusion that, where the facts are doubtful, the question of probable 

34E, S52: Richardson v. Powers accurately the facta to counsel wa« 

(Ariz.), 89 Pac. 542 (not reported held sufficient to carry the question 

in state reports) ; Whipple v. Gor- to the Jury. Daris t. McMillao. 

such (Ark.), 101 3. W. 735, 10 L. R. 142 Mtch. 391, 105 N. W. 862. 

A. (N. a.) 1133; Slater v. Walter, eoPanton t. Williams. 2 Ad. * 

148 Mich. 650, 112 N. W. SS2. On El. (R. b.) 169, 194, 1 Gale A Dav. 

conflicting evidence the question Ib 504. 

tor the jury. Healey v. Aapinwall, ■) Cochran v. Toher, 14 Hlnn. 

195 MoBB. 453, SI N. E. 256. A fail- 385, 391, opinion bj McHlUu, J. 
ure by detendant to state tuUy and 



D.qitizeabyG00<^lc 



UAUCIOUS PBOSBCUTIOH, 1221 

cause must be sabmitted to the jury. Thus, in an ecUon for mali- 
cious prosecutitm in tbe Engli^ Common Pleas, it appeared that 
the defendant, a constable, being told by A, that the plaintiff bad 
robbed her, and this information being supported by a letter which 
was shown him, supposed to be intercepted, apprehended the 
plaintiff, a respectable inhabitant of Cheltenham, at her lodgings, 
and to(J[ her from her bed at night to priscHi. The charge proved 
unfounded, and she, having sued the constable for the false im- 
prisonmoit, Gaselee, J., in charging the jury said that "if the 
ccmstable bad a ccKnplaint made to him imder snch circumstances 
as to induce him to believe it tme, he had a right to take into cus- 
tody the party complained against, provided the facts were such as 
to warrant an apprehension; and he desired the jury to consider 
whether the statement they had heard satisfied them, loc4cing at 
the letter and the other facts, that the constable had reasonable 
ground to suppose the plaintiff implicated in the felony with which 
she had been charged; and whether, standing in his place, they 
would have acted as he bad done." It was held that this direc- 
tion was right in substance, and afforded no ground for a new 
trial ; but a majority of the jadgea were carefnl to state that the 
question of probable cause in such actions is a question of law for 
the court. Thus, Best, C. J., said: "The question of probable 
cause is. no doubt, a question for the judge; bat the jury must 
first find the facts which are supposed to constitute the probable 
eause; and it is sometimes difficult to draw the line between 
the law and the fact * " ' On these facts the jn^e could 
not properly have directed a niHisait. It was necessary to leave 
to the jury whether, admitting the facts, the defendant acted 
honestly. • • • But the learned jadge tells them, 'If you 
believe the fact, and thence infer that the defendant was act- 
ing honestly, yon must find for him.' This was saying in sab- 
stance that, in his opinion, the facts, if believed, furnished a 
probable cause for the defendant's conduct. But if the direction 
to the jury were, on the whole, substantially right, a mere inac- 
curacy of expression will not render it necessary to have recourse 
to a new trial. This direction was substantially right. It was 
tor the jury to say whether they believed the facts ; and, if they 
believed them, whether the defendant were acting honestly; in 
other words, whether the jury under the same cirenmstances, would 
have done as he did." Park, J,, also said: "I do not impeach any 
of the cases that have been decided on this subject, nor had I ever 
a doubt that it is the province of the judge on snch occasions to 

IC 



1222 PBOVINCK OP OOUBT AMD JUET. 

determine the point of law; but, aa tbatmust be compouaded of 
the facts, and as the juiy must decide on them, my practice has 
been to say, 'You are to telt me whether you believe the facts 
stilted ou the part of the defendant, and if yon do, I am of opinion 
that they amount to a reasonable and probable cause for the atep 
be has taken.' I do not direct a nonsuit, because the fact is so 
closely connected with the law. The direction of the leameil 
judge in this case is conformable to that mode of proceeding." 
Gaselee, J., who gave the chai^ in question, also said: "I never 
meant to leave to them the question of legal probable cause; for 
I had the case of Beckwith v. Philby " before me, and I was re- 
quested to nonsuit the plaintiff. I could not do so upon the plain- 
tiff's case, though, in similar causes, I have occasionally done bo, 
after hearing the defendant's case; but when there is any doubt 
as to the facts, they most be found by the jury. By leaving them 
to the jury in this case, and also whether the defendant acted bona 
fide, I intended, in effect, that, if they were satisfied on that head, 
the defendant stood excused."" 

S 1616. Origin of the Bnle. — This rule seems to have had its 
origin from the circumstance that, in the early history of these 
actions it was customary to set forth the facts in the defendant's 
plea, and for the court, upon a demurrer to such plea, to determine, 
as a mere question of law, whether probable cause was exhibited 
or not."* 

S 1616. Doubts as to the Bnle. — The rule has not stood in 
England without the expression of grave doubts bs to its proprietj'. 
Mr. Justice Coleridge in one case said: "The Court of Exchequer 
Chamber, in Panton v. WiUiams," laid down a rule which, in 
theory, is perfect; but I believe no judge has sat long without 
finding himself embarrassed in its application to the special case^ 
before him," More recently the wisdom of the rule was doubted 
in the House of Lords, and its existence regretted by three judges 
as eminent as Lord Hatherley, Lord Westbury and Lord Colon- 
say." In one American jurisdiction it has b«en held that it is 

»e Barn. * Crea. 637. »«Tlndal, C. J., In Panton v. 

b)Dkt1s v. RusBell, 6 Bfng. SG4, Williams, 2 Ad. A El. (it. s.) 192. 

3S6, 363, 365, 367. In Beckwltb v. uZ Ad. ft El. (n. b.) 169. 

Philby. 6 Bam. A Cree. 635, Lord » Douglass v. Corbett, 6 BI. A Bl. 

Tenterden, C. J., sabmltted the 611, 614. 

question squarely to a Jury, but this " Lister r. Perrymau, L. R. 4 H. 

declBloa was pUlnly erroneous. L. 521, 39 L. J. Bxch. 177. 



Goo^^lc 



ICAUCIOaS PROSECUTION. 1223 

a, qaeetion, at least under 8(Hne circamstances, to be submitted to 
the jory." The doubts thns expressed in England as to the wis- 
dom of the mle find an amusing offset in an opinion of the Supreme 
Court of Penn^ylTania. "It is always the duty of the court," 
said Lowrie, J., "to prcmounce the law arising on a given atata 
of facts. And this again is oniy an exemplification of the prin- 
ciple of good sense that prevents us from applying to a school- 
master or a preacher to instruct us in the arts of tanning or glass- 
blowing, or to work at tbese trades for us." " 

S 1617. No Definite Rule of Deciaion. — Although the wisdom 
(^ the role was thus doubted and the existence of the rule regretted 
in the English House of Lords, yet it was agreed that it was the 
settled law of England that the jury must find the facts on which 
the qnestian of reasonable and probable cause depends, and that 
the ju^e must then determine whether the facts found do con- 
stitate reasonable and probable cause; and, as the facts will vary 
with each partieolar case, it is conceded that no rule can be laid 
down for the exercise of judgment by the judge.*** "No definite 
rule," said Lord Chelmsford, "can be laid down for the exercise 
of the judge's judgment. Each case most depend upon its own 
circamstances, and the result is a conclusion drawn by each judge 
for himself, whether the facts found by the jury, in his opinion, 
constitute a defense to the action. The verdict in cases of this 
description, therefore, is only nominally the verdict of a jury."" 
In the same case Lord Colonsay said: "Finding that I had to deal 
with this SB a matter of inference in law, I was desirous to ascer- 
tain what were the roles or principles of law by which the court 
ought to be guided in drawing that inference. I did not find that 
there were any. Neither in the very able atgument we heard from 
the bar, nor in the judgments set out in these papers, nor in the 
cases that have been referred to, are any sncb rules or principles 
enunciated. I think it is laid down by the learned Lord Chief Baron 
that it is a mere question of opinion, depending entirely on the view 

•■Anderson v. KhIIbt, 67 Ga. G8. L. E21, 39 L. J. Bxcb. 177. Prom 

Sea also tbe reasoning of Overton, tbe opinion of liOrd Colonaay in 

J., In Kelton v. B«vlaa, Cooke this case it would seem that, by the 

(Tenn.), 90, 107. law of Scotland, It la a queatlon of 

■•Langhlln r. Clawaon, 37 Pa. St. fact for the Jury, 

SZ8. 330. " lUd. SU. 

w Lister V. Perryman, K R. 4 H. 



7crib;G00<^IC 



1224 PBOVINCB OF OOUBT AND JDBY. 

which the judge may happen to take of the cdrcumstmces of each 
particular case. And, upon a careM conaideration of the decisdoss, 
it seems to me impassible to deduce any fixed and definite principle 
to gaide and assist the judge in any ease that may eome before him. 
Chief Justice Tindal's rule seems almost the only one that can be 
resorted to, namely, that there must have existed a state of circum- 
Btances upon which a reasonable and discreet person would have 
acted. Now, in the aystem to which 1 have already alluded,** it in 
thought that twelve reasonable and discreet men (as jurors are sup- 
posed to be), can judge of that matter for themselves, and that 
lawyers are not the only class of persons competent to determine 
whether the informatit a waa such as a reasonable and discreet man 
would have acted upon. For what is it that the judge would have 
to determine f lie would have to determine whether the circum- 
stances warranted a reasonable and discreet man to deal with the 
matter, tliat is to say, not what impression the circumstances would 
have made upon his own mind, he being a lawyer, but what im- 
pression they ought to have made on the mind of another person, 
probably not a lawyer."** 

§ 1618. Sense in which It ia a Question of Law. — ^The sense in 
which this question is a question of law is simply this : That upon 
any given state of facts, no matter bow numerous and complicated, 
conceded or established, the judge must say whether there waa or 
was not reasonable or probable cause for instituting the criminal 
prosecution. "Where the system of special verdicts is in effect, the 
jury will find the ultimate facts, and the judge will pronounce 
the law upon those facts, as in other eases. Where the practice of 
the jurisdiction allows the submission of special interri^atories to 
the jury, the necessary facts for the conclusion may be thus drawn 
out, and the conclusion then pronounced by the judge in rendering 
the judgment of Uie court, either in conformity with, or in disre- 
gard of, the general verdict, according to principles explained in 
another portion of this work.'* In other cases, the judge pro- 
nounces the conclusion of law, by instructions to the jury, based 
upon hypothetical states of fact which the evidence tends to prove, 
leaving it to them to say whether the evidence does or does not prove 
such facts, — their verdict being, of course, subject to be set aside 
by the judge on a motion for a new trial, if it is plainly in cmifliet 
MFoBt, IS 2667, et wo. 



ovGoo<^lc 



MALICIOUS PBOBBCUTION. 1225 

with the evidence, or contrary to the law as Qixa expounded hy him. 
The sense in which it is a question of law was thus stated by Chief 
Baron Pollock: "If the jury find certain facts to be true,' and the 
necessary consequence is that any person acquainted with those 
facts wtmld believe that the plaintiff bad committed felony, I do 
not think it necessary to ask the jury whether the defendant was 
bona fide acting under that belief. Tf a man found his own prop- 
erly in the possession of another, it would be absurd to ask the jury 
whether he bona fide believed it to be his property, and acted on 
that belief when he gave the other into custody." And he gave as 
a reason for holding that this is a question for the judge, and not 
for the juiy, that "if it were not so, the administration of justice 
would be uncertain; for the experience of most judges must have 
afforded them opportunities of observing that evidence which, in 
a criminal coart, would be sufficient for a conviction, when the party 
complains of a wrong, may have a different effect with a jury, when 
the same person seeks to vindicate a right. " ** In the Court of Ap- 
peals of New York it has been said ■."Jl the facts which are adduced 
as proof of a want of probable cause are not controverted, if con- 
dieting testimtmy is to be weighed, or if the credibility of witnesses 
is to be passed upon, the question of probable cause should go to 
the jury, with proper instructions as to the law. But where there 
is no dilute about the facts, it is the duty of the court, on the trial, 
to apply the law to them."** The same principle is expressed in 
many other cases with little variation. It is often s^d that if the 
facts are not disputed, the court must decide, as matter of law, 
whether they constitute probable cause; but where the' facts are 
disputed, the court must hypothetically state the material facta 
which there is evidence fairly tending to prove, and positively di- 
rect the jury as to the law thereon, leaving them to determine 
whether or not the facts exist.*^ In another case it is said: "It is 
often said in the books that, in actions for malicious prosecution, 
the question whether there was probable cause for instituting tiie 
prosecutico is a question of law for the court This proposition 

•■Hallea v. Harks, 7 Burl, t N. criminal prosecution. WlU&rd v. 

SG, 63, 64. Holmea Bootb ft Harden, 142 N. T. 

•* Besaon v. Southard, 10 N. T. 492, ST N. E. 480; Ferguson t. At- 

SU, 240, opinion br Jewett. J. now, 112 N. T. 680, 37 N. E. 626. 

And this principle applies as well it Pennaylvanla Co. v. Weddle, 

to cItU action or proceeding vex- 100 Ind. 139; Brown v. Connelly, 6 

atlOD8l7 brought, aa aUeged, as to a Blackf. (Ind.) 390. 

i:q,t,7c-rib;G00<^IC 



1226 FBOVINCB 01* OODBT AND JUBT. 

does not mean that it is the province of the court to decide, upon 
conflicting evidence, whether there was or was not snch probable 
cause, but that, where the evidence is not conflicting, or where the 
facts are conceded, it is the province of the court to tell the jury 
whether the facts do or do not afford such probable cause. 'Where, 
as in this case, the evidence as to the facts is conflicting, it is the 
duty of the court to tell the jury whether the hypothetical state of 
facts which the evidence of each party tends to prove, does or does 
not, if found by them to exist, afford such probable cause. As a 
general rule, it is error for the court, in instructing the jury, to 
submit a guestioD of law to them for determination; and hence, in 
an action for malicious prosecution, it is error for the court to sub- 
mit to the jury generally the question whether there was or was not 
probable cause for the prosecution, " •■ The Supreme Court of 
Vermont, speaking through Wheeler, J., said : "la practice a true 
amplication of the rule seems to require that, if none of the facts are 
in dispute, the question of probable cause arisidg upon them should 
be decided by the court as a question of law, without the intervra- 
tion of a jury at all; that, if some of the facts are imdisputed, and 
others are in controversy, and the question of probable cause cannot 
be determined upon the undisputed facts without determining the 
existence of those in dispute, then the case should be presented to 
the jury, by stating which of the disputed facts are to be passed 
upon and how ; so that, by determining the mere existence or non- 
existence of them, the question of probable cause, or the want of it, 
will be determined, according to the view of them in law taken by 
the court." ** Indeed, the judicial opinions abound in disquisitions 
upon this question ; " but they fdl amount to this : that where the 
facts are doubtful or disputed, tiie judge must submit the question 
to the jury to find the facts, instructing them aa to the law, and that 
he does this by informing them that certain states of fact, if found 
to exist, do or do not constitut« probable cause." 

<» Meysenberf: v. Ehigelke, IS Mo. Dod, 2 Bam. ft AO. 179, 182, 184, 

App. 346, 351. See also Hill v. and ot Littledate, J., In the same 

Palm, 38 Mo. Z2; Sharpe t. John- case. Ibid. 186. See also Bulkeler 

Bton, 76 Mo. 660; 2 Oreenl. Ev., v. Keteltu, 6 N. T. 387; Oraot T. 

i 454; Brennan t. Tracy, 2 Ho. Moore, 29 Cal. 644. 651. 
App. 540. '1 See Stone v. Crocker, 24 Pick. 

»DrlggB V. Burton, 44 Tt 124, (Mass.) 81, 85, and the observa- 

147. tlona of Morton, J.; Cloon v. Gerry, 

TO See the obserTitlons of Lord 13 Gray (Mass.), 201; Hlnton v. 

Tenterden. C. J., In Blaohford v. Heather, 14 Mees. « W. 131, 184; 

Coo^^lc 



ICAUCIOUS PROSECUTION. 



1227 



§[ 1619. Mixed Qnestiom of Law and Fact. — ^It ia in precisely 
this sense that the coorta use the term when they say that probable 
cauae presents a mixed question of law and fact.^* They use the 
expression precisely as Lord Mansfield used it when he said : "The 
question of probable cause is a mixed proposition of law and fact. 
V/hether the eircunistauces alleged to show it probable or not prob- 
able, are true and existed, is a matter of fact ; hot whether, sup- 
poednp them to be true, they amoont to a probable cause, is a ques- 
tion of law."" "It, therefore," according t» Mr, Broom, "falls 
within the legitimate province of the jury to investigate the truth 
of the facts offered in evidence, and the justice of the inferences to 
be drawn from such facts; whilst at the same time they receive the 
law &om the judge, that, according as they find the facts proved or 
not proved, and the inferences warranted or not, there was reason- 
able and probable ground for the prosecution, or the reverse ; and 
thia rule holds, boVever complicated and numerous the facts may 
be." " They mean that, where the facts are not disputed, it ia for 
the court, in instructing the jury, to declare their legal effect; and 
that, where they are disputed, it is for the jury to determine the 
question whether there was probable cause, under proper hypo- 
thetical instructions from the court." 



Kidder V. Parktaurat, 8 Allen 
(Mbbs.), S93, 395; Reynolds t. Ken- 
nedy, 1 Wlls. 232; HIU V. TeateB, 2 
3. B. Hoore, 80; laa&CB t. Brand, 2 
Stark. 167; Brooks v. Warwick, 2 
Stark. 389; Reed v. Taylor, i 
Taunt. 610; Leggett t. Blonnt, Tay- 
lor (N. C), 123; Manns v. Etapont, 
2 Browne <Pa.), A,px. 42, 3 Wash. 
C C 31; Crabtree y. Horton, 4 
Hunf. (Ta.) 69; Kelton v. Bevlns, 
Cooke (Tenn.), 90; Ulmer v. Le- 
land, 1 Me. 13G. 

mAs to the meaning ol this ex- 
pression, see ante, f 1031. 

Ti Johnstone v. Sutton, 1 T. R. 
5K, He said that upon this prin- 
ciple proceeded the case of Rey- 
nolds v. Ksnuedy, 1 Wlls. 232. See 
In Gonflrmatlon of the text Pang- 
tram V. Bull, 1 Wend. (N. Y.) 345, 
353; Center r. Spring. 2 Iowa, 393, 
407; Munns v. Dupont. 3 Wash. C. 



C. 31; Potter v. Seale, S Cal. 217; 
Ash T. Marlow, 20 Ohio, 119, 129; 
Hasten v. Deyo, 2 Wend. (N. T.) 
424, 427; McCormIck t. Slsson, < 
Cow. (N. 7.) 716; Bulkeley v. 
Smith, 3 Duer (N. T.), 271; Hum- 
phries V. Parker, 62 Me. 602, 601: 
Christian v. Hanna, 68 Mo. App. 37. 

"Broom's Leg. Max., p. 106. 
The learned author cites: John- 
stone T. Button, 1 T, R. 544; Blach- 
ford T. Dod, 2 Barn. & Ad. 179; 
Reynolds v. Kennedy, 1 Wlls. 232; 
James v. Phelps, 11 Ad. « BI. 433; 
Panton v. Wlltlame, 2 Q. B. 169, 
194; Peck v. Boyes, 7 Scott N. R. 
441; MIchell v. Williams, 11 Meea. 
ft W. 205; BuBhell's Case, Vaughan, 
147. 

Ts Moody V. Deutsch, SG Mo. 237; 
Sharpe v. Johnston, 59 Mo. 667; 
MeyEenberg v. Engelke, IS Mo. 
App. 346; Cole v. Curtis, 16 Minn. 



oGoo^^lc 



122S PROVINCE OT CODBT AND JDBT. 

§ 1620. Nouniita, when granted in these Cases. — "It may hap- 
pen," said Morton, J., "that this and other mixed qaestions need 
not and cannot properly be sent to the jury. When the facts are 
undisputed, or when all the facts which the plaintiff's evidence 
conduces to prove, do not show a want of probable cause, it becomes 
a mere question of law which the court must decide, and it would 
be oaeless and improper to take the opinion of a jury upon it; for i( 
they found for the plaintifF, the court would set aside the verdict, 
not so much because it was against evidence as because it was 
against law.'"* Perhaps the rule is more clearly stated, if it is 
said that, it being then the office of the judge to say whether a state 
of facts, if true, do or do not constitute probable cause; and, the 
burden being upon the plaintiff to show a want of probable cause, 
if the plaintiff in his action exhibits a state of facts upon which the 
legal conclusion is that there was no probable cause, the court 
should grant a nonsuit or direct a verdict for the' defendant, accord- 
ing to the practice in the particular junsdictifHi.** More difBculty 
will arise in applying this rule where the facts upon which the 
legal inference that there was probable cause, are exhibited by the 
defendant in his evidence ; since it will ordinarily be a question for 
the jury to say whether or not this evidence is to be believed. 

S 1621. Where the Question arises upon a Written Statement. — 

Gases may arise, however, where the evidence of the facts which 
show that there was probable cause may be presented by the de- 
fendant, and yet the court will, without invading the province of 
the jury, grant a nonsuit or direct a verdict for the defendant 
This will take place where the whole question is involved in the in- 
terpretation of a document which is introduced in evidence by the 
defendant. In such a case the court, in nonsuing the plaintiff or di- 
recting a verdict for the defendant, may do no more than exercise its 
peculiar office of declaring the legal effect of the inatmment. This 
view of the question was taken by Parke, J., where a letter had 
been sent by the plaintiff to the defendant, threatening him with 
criminal prosecution, whereupon the defendant had prosecuted 

182, 193; CoIllDs v. Mannlns, 67 Crowle, Sayer, 1. To the bum ef- 

Hon, 592, 10 N. T. S. 668; Jackstm feet Is Maston v. Deyo, ! Wend. (N. 

T. Ball, 9 S. D. 257, ES N. W. 671; Y.) 421, 426; Barllngame t. Bnrl- 

Ball T. Rawles, 93 Cal. 222, 28 Pac. iagame, 8 Gov. (N. T.), 142; Hur- 

»37, 27 Am. St. Hep. 174. ray t. Long, 1 Wend. (N. T.) 140. 

>* Stone V. Crocker, 24 Fkk. iTQraut v. Hoore, S9 Cal. 144, 

(H&S9.) 81, 85; citing Golding v. C45. 



7crib;G00<^IC 



lULICIOUS PB06ECUTI0N. 1229 

the plaintiff criminally for sending the threatening letter, which 
pro6ecuti<m had given rise to the civil action by the plaintiff against 
the defendant. Beferring to this feature of the question, the 
learned judge, in his separate opinion, said: "It having been proved 
that the plaintiff was the writer of the letter to the defendants, it 
became a question on the constmcticm of that document, whether 
there was a probable cause for preferring the indictment. I think 
that of itself was sufficient to justify the charge ; and it was for the 
judge to construe the written instrument, and to decide whether 
the letter did not import that the plaintiff was about to accuse the 
defendants of obtaining goods on false pretenses. I think the fair 
cmstruction of the letter is that the party by whom it was written, 
intended to make that charge against the defendants; for the writer 
speaks of circumstances which render it incumbent <m his clients 
to bring the matter under the notice of the public and of the serious 
consequences to the defendants if the money be not paid; and if so, 
it is also clear that the object in writing was to extort money from 
the defendants. The letter itself, therefore, afforded a reasonable 
ground for preferring the indictment." " 

§ 1622. Effect of tile Kale upon Pleading. — The mle that prob- 
able cause is a question of law has this effect upon pleading, at least 
under the common-law system, that a plea justifying an arrest by 
a private person, on suspicion of felony, must show the circum- 
stances, so that the court may judge from them, on demurrer, 
whether the suspicion were reasonable,** in other words, whether 
they amount to probable cause. Moreover, this being a question of 
law, it is not enou|^ for tiie plaintiff, in his declaration or com- 
plaint, to state that the criminal prosecutiiKi was commenced mali- 
ciously and without probable cause ; for whether it was commenced 
without probable cause, is a mere conclusion of law; but he most 
set out facts upon which the cdndusion of law is that it was com- 
menced without probable cause.'" 

§ 1623. When Error of Submitting Question of Probable Cause 
to Jury no Cause of fierersal. — ^Where the question of probable 
cause is thus erroneously submitted to the jury, still if, on a review 

fiBtacbford v. Dod, S Barn. * 890; AforrU t. Coraon, 7 Cow. (N. 
Adl. 17», ISe. T.) SSI. 

T* Hur« V. Kaye, 4 TannL 34; *•> Pangburn v. Bull, 1 Wend. (N. 

Browo v. Connelly, B Blackt (lod.) Y.) 345; Reynolds v. Kennedy, 1 
WllL S32. 



7crib;G00l^lC 



1230 PHOVINCB OF COUBT AMD JDEY. 

of the case on error or appeal, it should appear, from the facts Dot 
disputed at the trial, that there was evidently a want of probabK' 
cause, a verdict for the plaintiff will not be set aside; since it h 
competent for the reviewing court to pronounce the law upon the 
undisputed facts, and if they see that the jury have not erred in 
point of law, although the ebai^ woa erroneous, no injury has 
beeo done to the defendant of which he has a right to complain." 
But if the evidence as to any material fact is contradicted, or leaves 
the question doubtful whether the fact existed or not, then sncli 
an enor is good ground for a reversal ; inasmuch as the reviewing 
court cannot take upon itself the office of drawing inferences froiti 
conflicting testimony,— this being the exclusive province of the 
jury.** The foregoing is a good illustration of the general rule, 
that while it is error to submit questions of law to the jury, yet if 
this is done and the jury decide the questions rightly, it will be no 
ground for disturbing their verdict'* 

Abticlb II. — JuEY, HOW Insteuotbd in such Actions. 
Sectiok 

1627. Jury bow Instmcted In such Cases. 

1628. Wbat Facta JustK; a Per8<»i In Charglns Another with tbe Com- 

mission of s Qiven Crime. 

1629. Errors In iDStnictlnK Juries In these Cases. 

1630. Error to define Prob&lile Cange In general Terms, and to sabmlt 

the Question of the Want of It to the Jury. 

1631. [Continued.] A Contrary Practice In some Jurisdictions. 

1632. Example of an early Charge which was held to suhmit the whole 

Question twth of Iaw and Fact to the Jury, and to be hence 
Erroneous. 

§ 1627. Jury how instmcted In such Cases: Further sn^es- 
ttons. — It is said that, "if the facts are c<Hitested, the court must 
leave them to the jury, with instructions as to what is probable 
cause."" It is also said: "After the facts are given in evidence, 
it is for the court to say, in its instructions to the jury, whether or 
not they make up probable cause."*' The authorities generall>' 
concur in the view that the question must be submitted to the jury, 
where the facts are in dispute, upon Jiypothetical questions, whidi 
are so drawn as to inform the jury that & given state of facts which 

■iPangbum v. Bull, 1 Wend. (N. i^Asb v. Hsrlow, 20 Ohio, U». 

7.) 346, 352. m Israel v. Brooks, 23 tU. 67G, 

»* Ibid. { 363. GT7; citing Jacks v. Stlmpson, U 

MAate, I 1020. 111. 703. 



7crib;G00<^IC 



IIAUCIOUB PROSECUTION. 1231 

the evidence tends to establish, does or does not constitute probable 
cause, leaving the jury to determine whether or not such facts 
existed.** It follows from this that where, taking all the evidence 
tc^ether and giving full effect to all that it tends to prove, it does 
not show want of probable cause for the prosecution, the court 
may properly so instruct the juiy;*' although it would seem thar, 
as the want of probable cattse is essential to snatwn the action, the 
court ought, in such a case, to nonsuit the plaintiff or direct a ver- 
dict for the defendant.** While the court may inform the jury 
that certain facts do or do not ccmstitute probable cause for setting 
on foot a criminal prosecution, yet a request for an instruction 
which states the facts partially, omitting some which should be con- 
sidered in connection with those stated, and declaring that the facts 
stated do not constitute probable cause, — is properly refused.** 

§ 1^8. What facts jnrtlfy a Peraon in chai^g another witb 
the Oonimiaaioii tit a given Orime. — It was justiy observed, in a 
case in the Supreme Court of 'the District of Columbia, that "it is 
not everybody who is supposed to knoir, neither prosecutor nor 
jury, what facts make up a crime ; and therefore it is necessary 
that tiie court should tell the jury what facts justify a person in 
alleging crime.'*" Accordingly, we find that it is the frequent 
practice of the conrta, in instructing juries in actions for malicious 
prosecution, to explain to them what acts constitute the crime which 
the defendant charged against the pluntiff; for this, where the 
evidence is conflicting, is necessary to enable the jury, under the 
other instructions of the court, to say whether or not there was 
probable cause \ and even where the evidence is not conflicting, it 
is relevant on the question of malice. 

§ 1629. Errors in Instructing Jniies In these Oases. — ^In a case 
of this kind it has been held error for the judge to leave the ques- 
tion whether or not there was probable cause to the jury, without 
other instruction than the remark that be was inclined to helieva 
that there was evidence enough given of probable cause to protect 
the defendant. The jury ought to bo instructed \fj the judge as 

MCole V. Curtis, 1« Hlnn. 1S2, wBrennan v. Truer, 2 Mo. App. 

193. G40. 

» Stone V. Croaker, M Pick. "> Tolmaa T. Phelps, U Waah. L. 

(Mass.) SI, 86. Rep. 681. 

MAnle, I ISZO. 



D.qitizeabyG00<^lc 



1232 PBOVINCB OF OOUBT AND JUBT. 

to the law involved in the qaestion of probable cause, that is, what 
cooatitutea a legal excuse for the defendant, and whether the facts 
relied upon in the defense, cm the supposition of their being foood 
true bj' the jnry, made out a probable cause.'* Seemingly opposeil 
to the foregoing, bat not really so, is the decision in an elaborately 
considered case of this kind, where the following instracti(Hi was 
requested by the defendants and refosed; "If the jury believe the 
testimony and evidence produced by the defendants, the facts 
thereby proved show a probable cause for the procuring the issu- 
ance of the search warrant." It woa held that this instruction 
was properly refused, — the court, speaking through McMillan, J., 
aaid: "If the instruction under eonsideratioii had been giv^i, 
the court would have withdr&^m that question from the jury and 
determined for itself what facta were established, which would 
have been error. If the defendants believed their evidence estab- 
lished a state of facts which cmstitiited probable cause for the 
prosecution, they should have enucleated such facts from the evi- 
dence, and requested the court to charge that, if the jnry found 
such facts to be proved, they c(»istituted probable cause."** 

§ 1630. Error to define Probable Oaoie In General Termi, and 
to submit the Question of the Want of It to the Jmy. — Several 
courts have therefore reached the conclusion that, in instructing 
the jury in an action for malicious prosecution, it is error for the 
court, to define, in general terms, what constitutes probable cause, 
and then to tell the jury that it is a question for them to decide 
whether or not there was probable cause for the prosecution which 
ia the foundation of the action. Such a charge commits to the jxiry 
more than it is their legitimate province to determine. Concerning 
an instruction of this kind it was said by the Court of Appeals of 
New York : ' ' The jury are told that it is their province to determine 
whether the facts and circumstances proved in evidence do or do 
not, eBtabliah the want of probable cause. The judge does not de- 
cide whether these facts and circumstanccB are sufficient or not, 
provided the jury believe them to be proved, but leave the whole 

*i Maeten v. Deyo, 2 Wend. (N. rause was sbowD, whlcta decisions 

T.) 424. Compare Burllngame v. were npbeld In the appellate conrt. 

Burllnpune, 8 Cow. (N. Y.) 142, "Cole v, CurtlH, IG Minn. 182. 

and Murray v. Long, 1 Wend. (N. 198. The court cite: 

y.) 140, where the Judges at ctrcnlt Butsfa, 32 Ind. 338. 
granted nonsuit because probahls 



D.qitizeabyG00<^lc 



MALICIOUS PEOSECUTION. 1233 

matter to the determinatioii of tbe jory. If the iudge had sup' 
posed that the truth of the facts, as ewom to, admitted of a doubt, 
he should have expressed his opinion of the law arising upon those 
facts if proved, and then submitted to the jury the question whether 
they were credibly proved or not."** Concerning a siiuilar in- 
stractifHi, it was said by Currey, 0. J., in giving the opinion of the 
Supreme Court of California: "The law maies it the duty of a 
judge who tries an action for malicious prosecution, to instruct the 
jury that, as they may find and detcriuine certain questions of fact, 
properly aubmitted to them, to be true or untrue, so must be their 
verdiet for the plaintiff or for the defendant ; not that they should 
determine the question of the want of probable cause or the con- 
trary. It may sometimes be difScult to state to the jury what the 
testimony is, and what facts, if found to be true, establish tbe plain- 
tiff's allegation of want of probable cause; but, difficult as it may 
be, this duty is cast on t^e judge in these kinds of actions, because he 
is presumed to know, much better than the jury can, what facta 
show the existence of probable cause or the want of it"** 

g 1631. [Oontinned.] A Oontrsry Practice in some Jurisdic- 
tioiu. — Notwithstanding the foregoing, several cases are foond — 
and the list could no doubt be extended, — where the trial courts 
have, with the approval of the appellate courts, submitted the 
question of probable cause to the jury upon general definitions as 
to its meaning, leaving them to apply to the facts the general propo- 
sition of law thus communicated to them.*° It is not to be inferred 
that the courts which approve this practice deny the rule that the 
question whether or not there was probable cause, upon facts con- 
ceded or found, is a question of law for the court; they merely en- 
tertain a different conception of the meaning of the rule, or, more 
probably in some instances, they annex this meaning to the anal- 
ogous rule, already referred to,*" that the question of probable cause 
is a mixed question of law and fact. 

g 1632. Example of an early charge which was held to submit 
tbe Whole Qaestion, both of Law and Fact to tbe Jury and to be 

HBnlkeley v. Keteltae, 6 N. 7. 541, 619; Callaban ▼. Caffarata, 39 

184, 388. Ho. 136. Llcdeay v. Bates, S23 Mo. 

M Grant v. Moore, 39 Cal. Ml, 394, 122 8. W. 682; Int. Harvester 

653. Co. T. Iowa Hardware Co. (Iowa), 

n Humphries v. Parker. 52 Me. 132 N. W. 951. 

SOS; Green v. Cochran, 43 Iowa, ■< Ante, | 1619. 

"°'*^" „,„„.,Google 



1234 PBOTINCS OF COURT AND JUBY. 

hence Erroneona. — In the leading case of Panion v. WiMtonw •> the 
subject of the manner in which the question of the want of probable 
cause is to be decided, and the manner in which the jury are to be 
instructed in these actions in respect of such questions where the 
facts are complicated, was carefully considered in the Exchequer 
Chamber. The following charge, as described in the bill of ex- 
ceptions, given to the jaty by Lord Deuman, C. J., was held to have 
submitted to the jury both the law anU the fact in respect of this 
question, and to have been hence erroneous: — 

"And the counsel for the defendant having closed his case, the 
Lord Chief Justice directed the juiy that the question for them to 
consider was, whether the defendant had acted maliciously and with 
reasonable or probable cause ; that, as to the malice, that term did 
not imply personal ill-will; that if the defendant had acted from 
any indirect motive, this was sufficient proof of malice ; that, as to 
the probable cause, malice without probable cause would be insuffi- 
cient, beeanse frequently justice was set in motion by interested 
parties; that the action therefore could not succeed unless there 
was an absence of probable cause. And his Lordship proceeded to 
Rum up the evidence. And his Lordship having summed up the 
evidence, further directed the jury that, if they thought there was 
reasonable and probable cause for taking these steps against the 
young woman, their verdict must be for the defendant; that they 
were to take a dispassicmate view of the state of Mr. Barton Panton 's 
mind on the 12th of February, 183S ; that, if they thought there 
was a strong impresai(m against Mr. Thos. Williams and against 
any one who was concerned with him, then that was reasonable and 
probable cause ; that if, on the other hand, they Aonid think there 
was no reasonable or probable cause, then they must trace his mo- 
tives to some other matter, and consider whether the importance 
he might attach to ctmvicting Mr. Thomas Williams, and his anx- 
iety to place him in an tmfavorable position in Newgate, actuated 
him, — if so, they must find for the plaintiff. And the Lord Chief 
Justice further stated to the jury that, as to the advice of counsel, 
if there was no reasonable or probable canse, his Lordship thought 
that the ctmsulting counsel did not vary it ; that it appeared to his 
Ijordship that it was not a question of law in a case of this sort 
whether there was a reasonable or probable cause, but that it was 
altogether a question of fact for tlie jury, and that he should act 
wrong if he were to take the question from their consideration; 
that it also seemed clear to his Lordship that the question was not, 

•Tl Gale ft Dav. E04, Z Ad. ft El. (n. s.) 169, 193. ^ 



lUUCIOUS PBOSSCUTION. 1235 

as against Thomas 'Williams alone, but whetlier there was probable 
cause aa against the plaintiff; that otie circamstaace had been ob- 
served, that is, that the former wills had been properly prepared, 
that that did not appear to his Lordship very strong, bat that they 
were to consider it. Whereupon the counsel learned in the law for 
the said defenduit did then and there except to the aforesaid opin- 
ion and directitm of the Lord Chief Justice, and did insist that his 
Lordship was bound to direct the jury that if there was probable 
cause as against Thomas Williams, there was so as against the plain- 
tiff. And further, that his Lordship was bound to state to the jury 
what facts, if proved, would amount to probable cause, leaving to 
them only the question whether they believed the evidence adduced 
in order to prove such facts. And further, that bis Lordship was 
bound to direct the jury that the following facts, if they or any of 
them were proved, constituted, and each of them constituted, prob- 
able cause, that is to say [presenting a categoi? of seven proposi- 
tions of fact]. And the counsel for the defendant further excepted 
and objected that the Lord Chief Justice ought not to leave the 
question whether there was or was not probable cause for the prose- 
cution to the jury, as a question for them, withont telling them 
what would be probable cause." 

It is perceived that the substantial (juestion upon the bill of ex- 
ceptions was correctly stated by the counsel for the plaintiff in error, 
in arguing the case in the Exchequer Chamber,** to be whether the 
judges were bound to state to the jury, as a direction in point of 
law, that certain facts, if proved, amounted to pi-obable caose. 
After argujnant, the court took time to advise upon the question, 
and finally the judgment of the court was drawn up by Tlndal, C. J. 
He said: "Upon this bill of exceptions we take the broad question 
between the parties to be this : "Whether, in a case in which the ques- 
tion of reasonable and probable cause depends not upon a few simple 
facts, bat upon facts which are numerous and complicated, and 
upon inferences to be drawn therefrom, it is the duty of the judge 
to inform the jury, if they find the facts to be proved, and the in- 
ferences to be warranted by such facta, the same do or do not amoimt 
to reasonable or probable cause, so as thereby to leave the question 
of fact to the jury, and the abstract question of law to the judge; 
and we are all of opinion that it is the duty of the judge so to do. 
In the more simple cases, where the question of reasonable and 

•iTbe case was ar^ad before and Maule, JJ., Lord AblDger, C 
Tlndal, C. J-. BoaBnqu«t, Coltman B., Parke, Alderson and Holts, BB. 



1 Goo^^lc 



1236 PBOVINOB or OOUBT AND JDBT. 

probable cause depends entirely upon the proof of the facts and 
circumstanees which gave rise to and attended the proaecation, no 
doubt has ever existed, from the time of the earliest authorities, bui 
that such question is purely a question of law, to be decided by the 
judge. In Cox v. Wirrall,** and in Pain v. Rochester,^ each of 
which was an action on the case for falsely and maliciously pro- 
curing the plaintiff to be indicted for felony, the defendant in each 
action set forth in the plea the facts and cirenmstances that induced 
him to indict; and the plaintiff having in each instance demurred, 
it was the court which had to determine, as a matter of law, and 
not the jury, as a matter of fact, whether the statement in the plea 
did or did not form a sufficient excuse. And in the case last refer- 
red to the very distincti(m now under consideration was laid down 
by the court, npon the objection then taken, that the plea amounted 
to a general issue only, the court holding it to be a good plea ' per 
doubt del lay gents; for that the defendant confessed the procure- 
ment of the indictment, but avoided it by matter in law.' And al- 
though the practice which then obttuned has been altered for a great 
length of time, by introducing into the declaration not only the 
statement that the charge was false and malicious, but also that it 
was made without reasonable or probable cause, and thereby com- 
pelling the plaintiff to give some evidence thereof and enabling 
" the defendant to prove his case nnder the plea of not guil^, — yet 
the rule of law that this question belongs to the judge only, and not 
to the jury, is not, by such alteration in pleading, in any way im- 
paired. And, still further, the authorities collected in the ease 
Johnstone v. Sutton* and the authority of that case itself, and also 
the decision of BuUer, J., there cited, proves incontestably that it is 
a question for the jury, whether the facts brought forward in evi- 
dence be true or not, but that what is reasonable or probable cause 
is matter of law. There have been some cases in the later books, 
which appear at first sight to have somewhat relaxed the application 
of that rule, by seeming to leave more than the mere question of the 
facts proved to the jury ; but, upon further examination, it will be 
found that, although there has been an apparent, there has been no 
real departure from the rule. Thus, in some cases, the reasonable- 
ness &aA probability of the ground for the prosecution baa depended 
not merely upon the proof of certain facts, hut upon the questiwi 
whether other facts, which furnished an answer to the prosecution, 
•» Cro. Jac. 193. ■ 1 T. R. 610, 51>. 



D.qitizeabyG00<^lc 



MALICIOUS FBOSECUTION. 1237 

were known to the defendant at the time it waa instituted. Again, 
in other eases, the question has turned upon the inquiry whether the 
facta stated to the defendant at the time, and which formed the 
ground of prosecution, were believed by him or not; in other cases 
the inqairy has been whether, from the conduct of the defendant 
himself, the jury will infer that he was conscious that he had no 
reasonable or probable cause; but in these, and many other cases 
which might be suggested, it is obvious that the knowledge, the be- 
lief, and the conduct of the defendant, are really bo many additional 
facts tot the ctmsideration of the jury; so that, in effect, nothing 
is left to the jury but the truth of the facts proved and the justice 
of the inferences to be drawn from sucli facts, both which investiga- 
tions fall within the legitimate province of the jury j whilst, at the 
same time, they have received the law from the judge, that,*aceoTd- 
ing as they find the facts proved or not proved, and the iDterences 
warranted or not, there was reasonable and probable ground for the 
prosecution, or the reverse. And sucIi being the rule of law, where 
the facts are few and the case simple, we cannot hold it to be other- 
wise where the facts are more numerous and complicated. It is 
undoubtedly attended with greater difficulty in the latter case, to 
bring hefore the jury all the combinations of which numerous facts 
are snsceptible, and to place in a distinct point of view the ap- 
plication of the mle of law, according as all or some only of the facts 
and inferences from facts are made out to their satisfaction ; but it 
is equally certain that the task is not impracticable, and it rarely 
happens but that there are some leading facts in eacJi case which 
present a broad distinction to their view, without having recoune 
to the less important circumstances that have been brought before 
them. Up«i the whole, as the question both of law and of fact waa 
left in this ease entirely to the jury, we think the exception must be 
allowed and that there must be a venire de novo." * 

• Panton v. WlllUms, 1 Gate * so, before and at the time ot sucli 

Dav. 504, 520, i Ad. A El. (it. b.) prosecutlone, tbey ought to find 

169, 193. Whore the court charged d&mages for the plalatlB, otherwise 

the Jury that. It from the testimony they should find the defendant not 

before them, they Bhould be ot guilty.— It was held that the court 

opinion that the proflecutlona be- erred, because the Instruction sub- 

for« the Josttce were malicious, and mltted both the law and the fBcta 

without probable cauBo, and that to the Jury. Pangburn v. Bull, 1 

tlM defendant knew the facts to be Wend. (N. Y.) 345. 350, 352. 



D.qitizeabyG00<^lc 



CHAPTER LIV. 

NBGUGENCH. 



1S61. How this QuMtlon generally aiisei. 
isez. The Legal Idea of Negligence. 
1863. Queetlon of Law or ot FacL 

1664. When a Question for the Jui?: Where the Facte are Controverted. 
16C6. Where Fair-minded Men might draw DlHerent Inferences from 
Uncontrovarted Facts. 

1666. Where the Facta are C<»itroverted and the Inferences Doubtful. 

1667. When a Question tor the Judge. 

1668. There must be Evidence legally tending to prove Negligence. 

1669. What le Meant by E^^ldence tending to Ptots. 

16T0. Kule that there must be Reasonable Evidence of NegUgenoo. 
1671. DUncultles of Applying this Rule in Practice. 
1678. Violation of Statutory DuUes. 

1673. Violation ot a Duty Enjoined by the Common Law. 

1674. Where NegHgenco Is Clearly Defined and Palpable. 

167G. Where Inference of Negligence and ot Care are Equally Balanced. 

1676. Whether the Negligence was the Proximate or Remote Cause of 

the Injury: Oenersl Statement of Doctrine. 

1677. When a Question for the Judge and when for the Jury. 

1678. Evideace failing to connect the Negligence with the Accident 
167&. Whether the Plaintiff or the Person Injured was OuUty ot Con- 
tributory Negligence: In General. 

1680. Where an Unavoidable Inference ol Contributory Negligence arises 

out of the Plaintlir'B own Evidence. 
1G81. Where the Evidence leaves the Facts or Inferences In Doubt 
16S2. Where the Presumption ot Contributory Negligence arises upon 

Uncontradicted Teatlmony. 
168S. Where, notwithstanding the Contributory Negligence of the Plaln- 

tlD, the Defendant might have Avoided the Injury by the Eser- 

else ot Reasonable Care. 



D.qitizeabyG00<^lc 



NEQLIQENCB. I26V 

168<. Wbether Nesllgence to Attempt to Alight from b Moving Train, 
16SS. Passenger Guilty of Known Violation of Rules. 
IGSG. TraTelsr falling to Look and Listen on Approaching RallwaT 
Croralng. 

1687. In the Case of Injuries to Children. — a. General Observatlona. 

1688. &. Care Required of the Custodian of the Child. 

1689. IIluatratlTe Cases where Negligence declared as Matter of lM,w. 

1690. Presumption of Negligence In the Case of lojuriea to Passengora: 

General Rule. 

1691. Facts from which this Presumption Arises. 

1692. Whether this Presumption has been Repelled. 

1693. Instances ot other Questlona for the Jury. 

1694. In the Relation of Master and Servant: Who are Fellow- Servants 

in a Common Employment. 

1695. Whether the Servant knew that the Danger was Srxtra-hazardona. 

1696. In the Case of Injuries to Children from Dangerous Premises: 

Whether, under Circumstances, the Defendant owed a Duty to 
the Plaintiff. 

1697. Qnestlons for Art and Skill: Generally for the Jury. 

1698. Malpractice of a Physician and Surgeon. 

1699. Questions Relating to Legal Practice. 

1700. Negligence by an Attorney. 

1701. Whether the Work was done in a "Workmanlike Manner," 
1102. Good Husbandry. 

1703. Care required of a Bailee. 

1704. Negligence In an Agent 

1705. Negligence of a Municipal Corporation in Respect ot Its Highw^s. 

1706. NoUcfl of Defect In Hlghw^. 

1707. Chattel Mortgages: Due Diligence in lorecloelng. 

1708. Commercial Paper: Leaving Blanks which admit of Fraudulent 

Alterations. 

1709. Fraud: Prudence in Relying upon Fraudulent Representations. 

1710. Guaranty: Diligence In Proceeding against Principal Debtor in 

Order to Charge Guarantor. 

1711. Railways: Speed of a Railway Train In the Streets of a Town or 

City. 

1712. Sales: Diligence by the Purchaser of Goods In Obtaining Poa- 

sesslon. 

1713. How Jury Instmcted In Actions for Negligence, 

5 1661. How tbia Question generally arises. — In almost every 
aetiwi for damages for an injury happening through the alleged 
negligence of the defendant or his servants, the qnestion is com- 
plicated by the element of contributory negligence, and an effort 
is made to have the judge take the case from the jury, either upon 
the ground that the evidence, taking it most strongly in favor of 
the plaintiff, fails to disclose what is called evidettce of ne^igence, 
or up<m the ground that an inference of contributory negligence 



1240 PBOTINCS OF COUBT AND JUBT. 

ariBes, either out of the plaintiff's own evidence, or out of evident^ 
which stands undisputed in the case. In either of these cases it 
is conceded by all courts, as a general rule, that the judge ought to 
take the ease from the juTy, either by nonsuiting the plaintiff, or 
by directing the jury to return a verdict for the defendant, accord- 
ing to the mode of practice in vogue in the particular jurisdiction. 
As this species of litigation has grown to be very frequent of late 
years, in consequence of the extension of railway lines and the 
multiplication of railway accidents, it is thought proper to devote 
some space to the consideration of the question, under what cir- 
cumstances the judge, in such ao actiou, ought to take the case from 
the jury. 

§ 1662. The Legal Idea of Negligence. — ^The largest conceptimi 
of negligence is that it is a failure to perform some duty. But this 
falls short of a definition, because many other actionable wnnigs 
and all actitmable breaches of ctmtract consist of failures, either 
inadvertent, unavoidable or intentional, to perform some duty im- 
posed by the laws of the social state, or voluntarily assumed by 
compact. A more accurate idea of actionable negligence is that it is 
failure, through inadvertence, recklessness, or wantonness, to per- 
form some duty which the party owes to another. This duty may 
be a negative duty of avoiding injury to him or his property ; or it 
may be an afBrmative duty, assumed by contract, of caring for his 
person or his property. In either case it is the duty of taking care 
to avoid injury to another.* In either case the law exacts no more 
than that degree of care, skill, diligence and attention, which are 
reasonable under the circumstances of the case, or in view of the 
nature of the duty assumed. Negligence has accordingly been de- 

1 "Negligence U a violation at the nied permlBslon to stay over night 

obligation which enjoins care &nd but Is sent away In severe weather 

cantlon in what we do. But this and found the next morning nearly 

duty Is relative, and where It has froEen. It was held to be a Ques- 

no existence between partlcnlar tlon for the Jury, whether or not 

parties, there can be no such thing defendant appreciated plalntilTB 

aa negligence. In the legal sense of condition. It being ruled that de- 

the term." Tonawanda R. Co. v. fendant owed htm the duty, on dla- 

Hnnger, 6 Denlo (N. Y.). 266. covering hie Illness, not to expose 

'HiiB principle Is well Illustrated him to danger by Bending him 

In the case ot one calling at a resl- away. Depew v. Plateau, 100 Minn, 

deoce upon Invitation and in fur 299, 111 N. W. 1, 8 L. R. A. (R. a.) 

therance ot a business negotiation 486. 
and being taken suddenly 111, de- 



ovGoo<^lc 



NEQUQENCB. 



1241 



Sned to be "the omission to do sometliing which a reasonable man, 
guided upon those considerations which ordinarily regulate the con- 
duct of human affairs, would do, or doing something which a pru- 
dent and reasonable man would not do."* Is it for a technical 
legal scholar, sitting on the judicial bench, to decide what thia ideal 
reasonable man would or would not do under given circumstancea? 
or is it to be decided by twelve men, drawn from various walks of 
life, who may apply to its solution their average judgment and ex- 
perience t This is the question which we are now to consider. The 
careful reader will not fail to perceive that it is merely a branch of 
the lai^r question, elsewhere discussed, whether the question of 
reasOTuibleiicss is a question of law for the court or a question of fact 
for the jury.* 

§1663. Question of Law or of Fact: General Statement of 
Doctrine. — Whether a defendant or his servants have been negU- 
gent, or, on the other hand, whether the plaintiff was guilty of neg- 
ligence contributing to the injury, will generally be a question for 
the jury;' though, in the view of some courts, it is a question for 
the court, where there is no conflict as to the evidence.* In Illinoiii 
the question of comparative negligence — a peculiar rule prevailing 



* BlTth T. Blnnlngbam Water 
works, II Exch. 781. 
■ Ante, 1! 1&30, et seQ. 
«AJlender T. Chicago etc. R. Co., 
S7 Iowa, 264; Zemp v. Wllmlnston 
Btc R. Co., & Ricb. U (S. C.) 84; 
MempkU etc R. Co. v. Whttfleld, 
44 Miss. 467; Crlssey t. Heeton- 
TUle R. Co., 75 Pa. St 83; SuUi- 
ran r. Pblla. etc. R. Co., 30 Fa. St. 
S34; Thatcher T. Great Western R. 
Co., 4 Upper Canada C. P. 643; Sim- 
monB V. New Bedford etc. Steam- 
boat Co., 97 MaaB. 361; Brehm t. 
Great Westeni R Co., 34 Barb. (N. 
r.) 256; Smith t. New York etc. R. 
Co., 6 Dner (N. T.), 26; Ltncolo Ice 
Co. T. Johnson, 37 111. App. 453; 
Flske v. Porsrth Dyeing etc. Co., 

.67 Conn. 118, 17 Atl. 366. Ordinary 
care is a question for the Jury. 
WIIIlamB V. Sleepy Hollow Hlo. 
Co., 37 Colo. «2, 86 Pac. 337, Where 

-terms have Bomethlng of a relative 



significance this tends to make the 
question one for the Jury. Grand 
Trunk Ry. t. Ives, 144 U. S. 408, 
3S L. Ed. 485. 

« Halpin V. Third Avenue B. Co., 
8 Jones ft Sp. (N. T.) 176. See 
also Qagg v. Vetter, 41 Ind. 228, 
254; Louisville etc. R. Co. v. Mur- 
phy, 9 Busb (Ky.), 622; Coatello v. 
Landwebr, 28 Wis. 522, S29; Grlge- 
hy V. Chappell, 6 Rich. L. (S. C.) 
446; Pittsburgh etc R. Co. v. 
Ev&na, 63 Pa. St. 250; Flemmlug 
T. Western Pacific R. Co., 49 Cal. 
253; Van Lien v. Scovllle Man. Co., 
4 Daly, 554; Foot v. Wlswall, 14 
Johns. (N. T.) 304; Thring v. Cen- 
tral Park R. Co., 7 Robt. (N. T.) 
616; Biles v. Holmes, 11 Ired. L. 
(N. C.) 16; Doscomb T. Buffalo etc 
R. Co., 87 Barb. (N. Y.) 221; Dub- 
lin etc R, Co- V. Slattenr, 3 App. 
Cas. 11G5, 1201, per Lord Black- 
burn; Barton t. St Louis etc R. 



Coo^^lc 



1242 



tBOVtNCE OF OOVS/t AND JUBY. 



in that State, — is for the jury.* Accordingly, in that State an in- 
struction is properly refused which tells the jury, as a matter of 
law, that certain facts per ge conatitnte Diligence.' A better opin- 
ion is that, whether the faots are disputed or undiaputed, if differ- 
ent nw'ndi might honestly draw different conclusions from them, 
the case should properly be left to the jury, and that, in order to 
withdraw sncb a case from the jury, the facta ^ould not tmly be 
undisputed, but the inferences, in respect of the defendant's fail- 
ure of duty which arises upon those facts, should be indisputable.* 
This view conforms to the principle that inferences of fact from cir- 
cumstances or transactims of an ainbiguous character moat be 
drawn by the jury, and not by the court* Stated differently, 



Co., 62 Mo. 253, 258: Bell T. Hannl- 
b&] etc. R. Co.. 72 Mo. 60, 67; 
Owens T. Hannibal etc. R. Co., 68 
Mo. 336, 393: Farrta t. Hoberg, 134 
iDd. 269, 33 N. B. 102S, 80 Am. St 
Rep. 261. 

• Cblcago etc. R. Co. t. Bonl- 
fleld, 104 III. S23: PennsylTanla R. 
Co, V. Conlan. 101 III. 93; North 
Cblcaso Rolling HIU Co. v. Jobnaon, 
114 IlL 67, 29 N. E. 18S. See Wil- 
son T. I. a R.. 210 111. S03, 71 N. 
B. 398; Rowe T. Elec. Co., 213 111 
SIS, 72 K. E. 711. 

Tlbid.; Pennajlvania R. Co. v. 
Conlan, Bupra. See also Wabash 
R. Co. T. Elliott. 98 III. 4S1. Ex- 
cept In cases mentioned In S 1672, 
post. See C. ft B. I. R. Co. t. 
Croso, 214 111. 602. 73 N. E. 865, 105 
Am. St. Rep. 136. 

• Railroad Co. v. Stout, 17 WaH. 
(U. 8.) 6E7; Fernandez v, Sacra- 
mento City R. R., 4 Cent L J. 82; 
Detroit etc. R. Co. v. Van Stein- 
berg, 17 Mich. 99; St. T. Maa- 
chester etc. R. Co., 62 N. H. 629; 
Oarnor r. Old Colony etc. R. Co., 
100 Mass. 208. 212; McOrath t. 
Hudson River R. Co., 32 Barb. (N. 
Y.) 144. 19 How. Pr. (N. Y.) 211; 
Bridges v. North London R. Co., L. 
R. 7 H. L. 213; Beers v. Houasr 
tonic R. Co.. 19 Conn. 566; Vinton 
T. Schwab, 32 Tt 612; Pennsyl- 



vania Canal Co. r. Bentley, 6S nu 
St 80, 34; Wyatt v. ClUiens' R. 
Co., 56 Mo. 485; Norton t. Ittner. 
68 Mo. 351; Stoddard t. St. Lonhi 
ate R. Co., 6S Mo. 614; Jenklni ▼. 
LltUe Miami R. Co., 2 Disney 
(Ohio), 49; HcLaln v. Van Zandt, 
7 Jones k Sp. (N. T.) 347; Guild T. 
Prlngle. 146 Fed. 312; Cardinal t. 
County (Mich.), 130 N. W. 627; P. 
B. ft W. R. Co. ▼. Buchanan (Del.), 
78 AtL 776; M. ft N. A. Co. T. Clay- 
ton (Ark.), 133 S. W. 1124. 

• Conover r. Mlddletown, 42 N. J. 
L 382. "The true pOBttton Is this: 
Negligence (with the exception 
herearter to be noted) is always a 
logical inference, to be drawn by 
the Jury from all the circum- 
Btances of the case, under the in- 
structions of the court In all 
cases in which the eridence la ancA 
aa not to Justify the Inference of 
negligence, ao that a verdict ot 
negligence would be set aside by 
the court, then it is the duty of the 
court to instruct the Jury, to nega- 
tlre negligence. In all other cases, 
the qneation Is for the jury, sub- 
ject to such advice as may be 
given by the court as to the forc« 
of the inferences. The only ex- 
ception to this rule la that else- 
where diacnssed, where a statute 
declares that a party doing or 



NEQUGEHOlt. 



1243 



when, in snch an action, the circumstances onder which the parties 
have acted are complicated and the general knowledge and ex- 
perieoee of mankind would not at once condemn the act as careless, 
the question of negligence should be submitted to the jury.*' Thus, 
questions of contributory negligence in casea of persons run over 
in the highway," of the teama of traveler) coUiding \xpoa the bigh- 
wfly," of injuries to travelers from defects in the highway," whether 
in the day or the night time," including the question of the trav- 

Wllllama t. O'Keefe. 9 Bosw. <N. 
T.) 636; PendHl v. Second Avenue 
R. Co., 43 How. Pr. (N. T.) 399; Z 
Jones A Sp. (N. T.) 481; Johnson 
T. Hudson RUar R. Co., 20 N. Y. 66. 

" Welling T. Judge. 40 Barb. (N. 
r.) 193; Larrabee v. Sowall, 66 
Me. 8T8; Campbell t. Kearne}', 4B 
How. Pr. (N. Y.) 87; Smith v. 
Qark. 3 Lana. (N. Y.) 208; Park 
V. O'Brien, 23 Conn. 347; Orlgga v. 
Fleckenateln, 14 Minn. 81; poet. 
SS 1822-1824. 

"Woods v. Boston, 121 Masa. 
337; Baretow v. Berlin, 34 WU. 
367;. Welsenberg t. Appleton, 29 
Wis. E6; DrlscoU T. New York, 11 
Hud CN. Y.), 101 {with which 
compare Oilman t. Deerfleld, 16 
Gray (Mass.). B77); Cremer t. 
Portland, 36 Wis. 92; Spofford v. 
Harlow, 8 Allen (Mass.), 176; 
Sheehy T. Burger, 62 N. T. E58; 
Cox T. Westchester Turuplke Road, 
33 Barb. (N. Y.) 414; Conroy v. 
Twent7-thlrd Street R. Co.. S2 
How. Pr. (N. Y.) 39; Gillespie v. 
Newberg, 64 N. T. 408; post. S 1749 
et seq. 

i« MbId? t. New York etc. R. Co., 
B8 Barb. (N. T.) 182; Swltt v. 
Newbury, ES Vt 356; Rector v. 
Pierce, 8 Thomp. ft Cook (N. Y.), 
416; Durant v. Palmer, 29 N. J. L. 
644. 648; Wright v. Saunders, 68 
Barb. (N. Y.) 214; affirmed, 3 
Keyes (N. T.), 323; Vale v. Bifss, 
60 Bart). (N. Y.) 368; Bateman t. 
Ruth. 3 Dnly (N. T), 378; Barton 
V. Springfield, 110 Maes. 131; Per- 



omlttlng certain things li to be 
treated as negligent. In such cases 
all that the Jury has to decide Is 
whether the thing In question was 
done or omitted. If so, negli- 
gence Is Juridically Imputed, and 
this must be declared by the 
court." Whart Neg-. § *Z0. This 
statement of doctrine has been 
quoted with approval by the Su- 
preme Court ot Missouri (Bell r. 
Hannibal etc. R. Co., 72 Mo. 60. 
6S), — overlooking ttie tact that 
In that State the Judge does not 
give "advice" to the Jury "as to 
the force of the Inferences." Orr 
v. Bradley, 126 Mo. App. 146, 103 S. 
W. 1144. 

■"Qayuor v. Old (Tolony etc R. 
Co., 100 Mass. 20S; Patterson v. 
Wallace, 1 Hacq. H. U Cas. 748; 
Johnson V. Hudson etc. R. Co., 20 
N. Y. 66: Philadelphia etc. R. C:o. 
T. Spearen, 47 Pa. SL 800; Man- 
gam V. Brooklyn etc R. Co., 38 N. 
y. 455; West Chester etc R. Co. v. 
McElwee, 67 Pa. St 311; Seabrook 
r. Hecker, S Robt. (N. Y.) 291; 
HaycroK v. Lake Shore etc H. 
Co., 64 N. Y. 636; Omaha Water 
Co. T. Schamel, 147 Fed. 502, 78 a 
C. A. 668. 

u Williams V. Orealy, 112 Mass. 
79; Quirk v. Holt. 99 Mass. 164; 
Feniandet t. Sacramento City R. 
R.. 4 Cent L. J. 82; Belton v. 
Baxter, 58 N. Y. 411, 64 N. T. 245; 
Myers v. Dlzon, 46 How. Pr. (N. 
Y.) 48; Baxter v. Second Avenue 
B. R. Co., 3 Robt (N. Y.) 610; 



1244 



PBOVI^fCB OF COUBT AND JUET. 



eler's rate of speed '^ at the time of the injury, of the competency 
of his driver," and whether the traveller was making a reasonable or 
proper use of ike highway at the time," even where the particulai- 
use of the highway was prohibited by law;" questions of negli- 
gent injuries to persons through Hoxiovs agents which have been 
left exposed," through the use of other dangerous agents," through 



klDB V. Pond du Lac, 34 Wis. 436; 
Stier V. Oskaloosa, 41 Iowa. 363. 

■'Elgin T. Renwlck, S6 111. 49S; 
Oakland R. Co. v. Fielding. 4S Pa. 
St 320; PaJmer T, PortBinouth, 43 
N. H. 265; Bly v. Haverhll], 110 
Maae. E20; Stevens t. Boxford, 10 
Allen (Maae.), 25; R\gbj v. Hew- 
itt, 6 Excb. 240; Damon v. Scltuate 
119 Maaa. 66; Baker t. Portland, 
58 Me. 199; Whltne; T. Cumber- 
land, 64 Me, £41; Reed t. Deer- 
Seld. S Allen (Mase.), 522. But 
see Heland t. Lowell, 3 Allen 
(Maaa.), 407; Cooke Brewing Co. 
V. Ryan, 126 lU. App. GOT, 223 
111. 382, 79 N. E. 132. Or dan- 
gerous machine I? without warping 
signals. HeinmlUer t. Winston 
Bros., 131 Iowa, 32, 107 N. W. 1102. 

i«Cobb V. Standlsh. 94 Me, 198; 
BIgelow V. Rutland, 4 Cusb. (Maaa,) 
B47; Blood t. Tynesborougb, 103 
Mass. 609; Br.bson t. Rockport, 101 
Mass. 93; Bronson t. Souttibury, 
87 Conn. 1S9. 

I'Bi.tton T. Cunnlngton, 107 
Mass. 347; Babson t. Rockport, 
101 Maas. 93; BIgelow t. Reed, 51 
Me. 326; Cleveland v. Spier, 16 C. 
B. (v. a.) 399; Hunt T. Salem, 
121 Maas. 294; Ryerson v. Ablng- 
ton, 103 Mass. G26; Gregory t. 
Adams, 14 Gray (Mass.). 242; 
Armour A Co. t. Carlos, 147 Fed. 
721. 

i> Davies y. Mann, 10 Mees. ft 
W. 546; 2 Thomp. Neg. HOB; 
Steele v. Burkhardt, 104 Mass. 69; 
Keams v. Snowden, 104 Maaa. 63, 
note; Qreenwood t. Callahan, ill 
Ubbb. 298; Streett v. Laumler, 34 



Ho. 469; Qrlggs Y. Fleckenstein, 
14 Minn. 31; Albert t. Bleeher 
Street R. Co., 2 Daly (N. Y.), 389; 
Neanow y. Uttech, 46 Wis. 581, 1 
N. W. 221; Kllpper y. Coffey, 44 
Md. 117; Spoflord y. Harlow, 3 
Allen (Mass.), 176; 1 Thomp. Neg. 
383; Butterfleld y. Forrester, 11 
East, 60; 2 Tbomp. Neg. 1104; 
Welcb y. Wesson, 6 Gray (Mass.), 
606; 2 Tbomp. Neg. 1077; Rigby y. 
Hewitt, B Bich. 240; Baker y. 
Portland, 68 Me. 199, 206. In some 
of the New England courts this 
principle has been held not to ap- 
ply where the traveler was violat- 
ing the law by traveling on Sua 
day — a conclusion wblcb Is founded 
not In Judicial sense, but In reli- 
gious bigotry. Bosworth T. Swan- 
say, 10 Met. (Mass.) 363; Jones v. 
Andover, 10 Allen (Mafs.), IS; 
Connolly y. Boston, 117 Mass. 64; 
Lyons T. Deaotelle, 124 Mass. 387; 
Smith V. Boston etc R. R., 120 
Mass. 490; Hinckley y. Penobson, 
43 Me. 39; Johnson y. Irasburgh, 
47 Tt 28; Hamilton y. Boston, 14 
Allen (Mass.). 475. Contra, Sut- 
ton y. Wauwatoea, 29 Wis. 21; 
Oreer, J., In Philadelphia etc. R 
Co. y. Philadelphia etc. Tow Boat 
Co.. 23 How. (U. S.) 209, 218. 

"McKee-v. Bldwell, 74 Pa. 8L 
218; McNamara v. Northern Pa- 
cific R. Co., 50 Cal. 581; Clark T. 
Chambers, 3 Q. B. Dly. 327, 7 
Cent L. J. 11, 17 Alb. L. J. 606. 

toHanlon v. Ingram, 3 Iowa, 31: 
Frank ford etc. Turnpike Oo, t. 
Philadelphia etc. R. Co., S4 Pa. Bt. 
346; Lackawanna «ta. B. Go. v. 



NEQLiaBNCB. 



1245 



tiie exposure of person and property in situations only slightly dan- 
gerous i'^ or, in the case of injuries to employees through the use of 
defective tuachinery," or through the emplajruient of incompetent 
fellow workmen,*^ including in such cases the effect of orders given to 
gabordinates ; " — all these and many other cases Are ordinarily to 
be tubmitted to the jury. 

S 1664. When a question for the jury: Where the facts are 
OontroTerted. — The question of negligence is, then, a question of 
fact for the jury where the facts which, if true, would constitute 
"evidence of negligence," are controverted.** To illustrate: In 
Maryland, if it appear that the plaintiff was injured in consequence 
of having voluntarily put his arm out of tke vnndow of a railway 
coach, he cannot recover. Yet if there is a conflict of testimony la 
to how his arm came to be thus exposed, the case must go to the 
jury** 



Doak. 62 Pa. St 379; McCull7 ▼. 
Clarke, 40 Pa. SL 399; Crist v. 
Erie R. Co., 1 Thomp. ft C. (N. 
Y.) 435. Proper equipments being 
shown, however, by uncontradicted 
testimony, tor controlling the es- 
cape or fire, no question remains 
for the Jury. Read v. Horse, 34 
Wis. 315; Spanldlng v. Chicago etc 
R. Co., 33 Wto. 689. 

iiAckhart V. Lanstng, 48 How. 
Pr. 374; Patrick v. Pote. 117 Mass. 
!97; Clayards v. DettUck, 12 Q. B. 
439. 

n Norton v. Ittner. 6S Mo. 351; 
Camberland etc R. Co. v. St., nse 
of Hogan, 45 Md. 229; Cumber- 
land etc R. Co. V. St, use of Faa- 
enbaker, 37 Md. 166; Hayden v. 
Smlthvllle Man. Co., 29 Conn. &4S; 
Lake Shore etc R. Co. v. Fltz- 
patrlcfa, 31 Ohio St 479; Fort v. 
Whipple, 11 Hun (N. T.>, 588; 
Dorsey v. PhllUpa etc Co., 42 Wis. 
583. If tbe defect Is glaring, and 
the employer continues In the use 
Of the Instrument or machinery, he 
win be held to be guilty of negli- 
gence as a matter of law. Patter- 



son V. Pittsburgh etc R- Co., 78 
Pa. St 889; Conroy v. Vulcan Iron 
Works, 62 Uo. 36; Hehan v. Syra- 
cuse etc R. Co., 73 N, T. 6S6. See 
poet, fS 1738, 1739. 

ti Joch T. Dankwardt, 86 111. 881; 
post, S 1737. 

>« Locke T. Sioux etc R. Co., 46 
Iowa. 109. 

in s^tonstall V. Stockton, 1 
Taney'a Dec. 11; Pittsburgh etc. R. 
Co. T. Andrews, 39 Md. 329; Chi- 
cago City R. Co. V. Young, 62 HI. 
238; Bernhardt v. Rensnelaer etc. 
R. Co., 32 Barh. (N. Y.) 166; Whlte- 
boQse V. Edwards, 1S2 Fed. 72, 81 
C. C. A. 296. 

••Pittsburgh etc. R. Co. v. An- 
drews, 39 Md. S29. See post, I 1792. 
It has been reasoned that. In an ac- 
tion for negligence where the direct 
fact In Issue fs estahllshed by un- 
disputed evidence, and such fact Is 
decisive of the cause, tbe question Is 
a question of law for the court; and 
that the Jury has no ofllce to per- 
form. Dascomb V. Buffalo etc. R. Co,, 
27 Barb. (N. ?.) 222. But this Is 
true only where the facts are so nn- 



Coo^^lc 



1246 



tnOVlNCB OB" COURT AND JUET. 



S 1666. When Fftir-minded Men mi^ht draw Different Infer- 
ences from Uncontrorerted Facts. — The case must also go to tfu 
jury whore, although the facts are not controverted, fair minded 
mcQ might differ aa to whether the inference of n^Iigence should be 
drawn from them,'* 

§ 1666. Where the Facts are Controrerted and the Inference 
Donbtful. — The case must also go to the jury where, at the same 
time, the facts are in dispute and the inferences which fair-minded 
men would draw from them are donhtfol.** More briefly, the ques- 



eaui vocal tbat reaeonablo ml ads 
conld not draw different concluaions 
from tbem. 

w Oaynor v. Old Colony etc R. 
Co., 100 Mass. 208; Pateraon ▼. 
Wallace, 1 Macq. H. L. Cm. 743; 
Johnson t. Hudson etc R. Co., 20 
N. T. 83; Phila. etc. R. Co. ▼. 
Spearen, 47 Pa. 8t 300; Mangam t. 
Brcoklyn etc R. Co., 38 N. Y. 4SG; 
West Chester etc R. Co. t. Mc- 
Elwee, 67 Pa. St 311; Seabrook t. 
Hecker, 2 Robt (N. T.) 891; Hay- 
croft T. Lake Shore etc R. Co., S4 
N. T. 63G; McCarragher v. Oas- 
kell, 42 Hun <N. T.), 451; Thurher 
V. Harlem etc. R. Co., 60 N. T. 331; 
Stackua ▼. New York Central etc 
R. Co., 79 N. Y. 464; Wait ». Agri- 
cultural Ins. Co., 13 Hub (N. Y.), 
371; ante, S 1663; McLean t. Dow, 
125 111. App. 174; Hyatt v. Murray, 
101 Mian. 607. 112 N. W. 881; 
Oklahonw Gas * Elec Co. r. 
Lukert. 16 Okl. 397, 84 Pac. 1DT6; 
Herbert t. R. Co., 121 Gal. 227, 53 
Pac. S61; Young t. R. Co., 148 Ind. 
54, 47 N. E. 142; Blumentbal v. 
R. Co., 97 Me. 265, 54 AU. 747; 
Ooldstone t. R. Co., SO N. J. L. 49, 
37 Atl. 43S; Ward t. Odell Mfg. 
Co., 123 N. C. 248, 31 8. B. 495; 
Boyle T. Hahoney City, 187 Pa. I, 
40 Atl. 1093. When the court can- 
not Bay from all the evidence that 
but one Inference la deduclble 



therefrom, negligence la « qneo- 
tlon for the Jury. WalMsh R. Co. 
T. Matthew, 199 U. a 605, 50 L. 
Ed. 329; Mackowlk v. Kansas City 
St. J. * C. P. R Co., 19G Mo. 550. 
94 S. W. 256. It has also been said 
that. If the court can see testi- 
mony from which a prolnblllty 
can legitimately arise In favor of 
plaintiff aa to negligence, tbe qoes- 
tlon la for the jury. Powers v. 
Pere Marquette R. Co., 143 HIch. 
379, 106 N. W. 1117. 

>• NIcbola V. Sixth Avenue R 
Co., 38 N. Y. 131. See also Rail- 
road Co. T. Stout. 17 Wall. (TJ. S.) 
657; Fernandez v. Sacramento City 
R. Co., 4 Cent. L. J. 82; Detroit 
etc. R Co. v. Van Stelnburg, 17 
Mtcb. 99; State v. Railroad Co., 62 
N. H. 529; Gaynor r. Old Colony 
etc R. Co., 100 Mass. 208, 212; He- 
Grath V. Hudson River R. Co., 32 
Barb. {N. Y.) 144, 19 How. Pr. 
(N. Y.) 211; Bridges v. North 
London R. Co., L. R. 7 H. Ll 213: 
Beera v. Housatonlc R. Co., 19 
Conn. 666; Vinton v. Schwab. 32 
Vt. 612; Pennsylvania Canal Co. v. 
Bentley, 66 Pa. St. 30, 34; Wyatt v. 
Citizens' R. Co., 66 Mo. 435; Norton 
V. Ittner, 56 Mo. 361; Stoddard v. 
St. Louis etc R Co., 65 Mo. 614; 
Jenkins v. Little Miami R. Co., 2 
DIsnej (Oblo), 49; Mauennan v. 



D.qitizeabyG00<^lc 



1247 



tioD of negligence is said to be for the jury when there is a substan- 
tial douht as to the facta, or as to the inferences to he drawn from 
them,** and it is for the court only when the facta are undisputed 
and the inference of negligence ia clear.*** 

§ 1667. When a QuesUon for the Judge: General Rule Sng- 
ffestecL — Obviously the queation ia for the decision of the judge in 
cases which are the antitheses of those stated in the preceding sec- 
tion. Recurring to the principle that, upon a motion for a nonsuit 
or fw a peremptory instruction to find for the defendant, which 
motion is sometimes called a demurrer to the evidence, every fact 
which the evidence tends to prove is to be taken as having been 
proved in favor of the plaintiff,** — it may be said as a general mie, 



Slemerts, 71 Mo. 101, 104; Omaha 
* R. T. Ry. Co. V. Brady, S» Neb. 
!7, 57 N. W. 767; Switt v. Staten 
Island R. k T. R. Co., 123 N. T. 
US, 25 N. B. 378; Howett v. Fhlla- 
delpbla W. * B. R. Co., 166 Pa. 
607, 31 Atl. 336. 

n Crlsser V. Hestonvllle etc. R. 
Co., 7E Pa. St S3; Barton v. St 
Louis R. Co., S2 Mo. 253; Keller T. 
New York Central R. Co., 24 How. 
Pr. (N. T.) 172; Horton v. Forest 
City Telephone Co., 141 N. C. 465, 
54 S. B. 299. 

■oDIckeos T. New York etc. H. 
Cov, 1 Abb. App. Dec. 604; Texaa- 
Hexlcan R. Co. v. HlgKlns, 44 Tex. 
Civ. App. 523, 99 8. W. 200; Brown 
v. Northern Fac R. Co., 43 Wash. 
716, 86 Pac. 1053. That they are 
merely nndtsputed la generally not 
flufflctent to make negligence a 
qneetlon for the conn. Sharp v. 
Brie R. Co., 184 N. Y. 100, 76 N. E. 
923. It has been Eaid, that the 
rale, that nndtsputed facts present 
a qneatlon of law. Is more adapted 
to qoestlons of contract than to 
those of tort, and It only applies 
In negligence cases, when the facts 
are undisputed and the conclusion 
Is Indisputable by any difference 
In reasonable Interpretation ol 



the facta. Lasky v. Canadian Pac. 
Ry. Co., 83 He. 461, 22 Atl. 307. 
To take the question from the Jury, 
the conclusion from admitted facts 
must follow as a necessary result. 
Chicago City Ry. Co. v. Robinson, 
127 III. 9, 18 N. E. 772, 11 Am. St. 
Rep. S7, 4 L. R. A 12S. 

■I Post, {{ 2242, et seq.; Sealey v. 
Southern Ry. Co., 151 Fed. 736, SI 
C. C. A. 2SZ. This rule eeems 
necesearlly eonnd, Imcause the 
court alone has the duty to de- 
cide as to the quality and kind of 
care and Its opposite, negligence, 
to be considered according to the 
pleadings and the claim of llahll- 
Ity In each case, and the relations 
existing between the parties, 
whether servants, licensees, tres- 
passers, persons non tul )uri» and 
others. For Illustrative cases eeo 
West V. Poor, 196 Mass. 183, 81 N. 
B. 960^ 11 L. R. A. (if. B.) 93G: 
Beckham v. Seaboard Air Line R. 
Co., 127 Qa. 560. 56 S. G. 638; Col- 
Una v. Decker, 120 App. DIv. 645, 
105 N. Y. 8. 357; Seymour v. 
Stockyards A Transit Co., 224 111. 
579, 79 N. B. 950; Bell v. Central 
Nat Bank, 28 App. D. C. 580; 
Clark V. Tellhaber, 106 Va. 803, 66 
S. B. SIT. 



7,rb,G00t^lc 



1248 P80TINCK OF COURT AND JUET. 

tliat the judge is aatborized to nonsuit the plaintiff or to direct a 
verdict for the defendant, according to the mode of practice in the 
particnlar jurisdiction, in either of the two following cases: — 

(1.) "Where all the facta which the plaintiff's evidence fairly 
tends to prove, if admitted to be true, would not authorize a con- 
clusion that the defendant haa been guilty of negligence as matter 
of law. 

(2.) "Where, either upon the plaintiff's evidence, assuming it to 
be true, or upon the state of facts ahown by the evidence in the 
whole case, which stand ondisputed and which ought not therefore 
to be left to the decision of the jury, an inferraice unavoidably arises 
that the person injured was guilty of negligence, materially and 
directly contributing to produce the accident complained of. 

§ 1668. There must be Evidence legally tending to prove Neg- 
ligence. — It is often laid down that the preliminary function of the 
judge on such a motion is not to weigh the evidence, but is limited 
strictly to determining whether there is or is not evidence legally 
tending to prove the fact affirmed, — t. e., evidence from which, if 
credited, it may reasonably ie infetTed, in legal contemplation, 
that the fact affirmed exists, laying entirely out of view the effect 
of all modifying or countervailing evidence.'* Stated in another 
way, it is said that, "when the evidence given at the trial, with all 
the inferences that the jury could justifiably draw from it is so in- 
sufficient to support a verdict for the plaintiff, that such a verdict, 
if returned, must be set aside, the court is not bound to submit the 
case to the jury, but may direct a verdict for the defendant."** 
Nothing is gained by these statements in an accurate undeiistand- 
ing of the rule, since they leave undefined the question, what evi- 
dence is to be deemed evidence legally tending to prove n^ligence. 

§1669. What is meant by "Evidence tending to prove." — 

"It is apparent," said Scholfield, J., in a recent case in Illinois, 
"that evidence tending to prove means more than a scintilla of evi- 
dence, but evidence upon which the jury could, without acting nn- 

MFrazer v. Howe, 106 111. 563, ■iSlmmoDS t. Cbtcago etc R. 

673; Simmons v. Chicago etc. R. Co., 110 II]. 840; Lake Sbor« etc 

Co., 110 111. 340. See also Hubner R. Co. v. O'Connor, 116 ni. 2S5. 

V, Felge, 90 111. 208; Crowe v. Pw- 861; Paden v. Van BUrcom, 100 

pie, 92 III. 231; Pennsylvaala Co. Mo. App. 185. 74 S. W. 124; Hewett 

T. Stoelke, 104 111. 20L v. Woman-a Hospital Aid AasiL, 73 
H. H. &G8, 64 Atl. 190. 



Goo<^lc 



KEQUaENCB. 



1249 



reasonably in the eye of the law, decide in favor of the plaintiff, 
or the part? producii^ it. It is not intended by this practice that 
the function of the jiry to pass uptm questions of fact is to be in- 
vaded, any more than it is intended that such function is to be in- 
vaded by a motion to set adde a verdict and for a new trial, apon 
the ground of the want of evidence to sustain the verdict. In 
neither case is the court authorized to weigh the evidence and de- 
cide where the preponderance is."" The principle that the trial 
court will not*weigh evidence on a motion for a new trial, and grant 
a new trial where the verdict is manifestly against the preponder- 
ance of the evidence, is certainly not acceded to in all jurisdictions ; 
but the rule stated is in some jurisdictions applicable only to the 
procedure of appellate courts." 



M Bartelott t. International 
Bank. 119 111. 259, 272. Th« 
learned Judge cites: Hllllard New 
Tr., page 339, sec. 9, et Beq.; Jotin- 
Bon T. Moulton, 3 111. 632; Lowry 
V. Orr. 6 111. 70; Morgan t. Ryer- 
BOD, 20 111. 343. Tbe Bclntllla rule 
Is held In New Tork to have been 
superseded by modem decisions. 
Powera r. New Tork C. ft H. R, R. 
Co.. 138 N. T. 669, 29 N. B. 148. 

u la Johnson t. Houlton, supra, 
It is said to be a well settled rule 
of law that In trlale by Jury the 
weight o( the testlmonr Is a ques- 
tion to be decided by the Jury ex- 
clusively, and that their decision 
consequently cannot be assigned 
for error. In Lowry v. Orr, G 111. 
TO. 83, the rale of law is s&ld to be 
well established, "that, In cases 
where the verdict of the Jury has 
been given contrary to the evi- 
dence, or where there Is no evi- 
dence at all to support the verdict, 
the court will InterFere and relieve 
the party prejudiced by such flud- 
Ing, by the grant of a new trial. 
But where there Is a contrariety of 
evidence on both sides, and the 
facts and clrcumstancee, by fair 
and reasonable Intendment, will 
warrant the Inferences of the 
Trials — 79 



Jury, courts will reluctantly, It 
ever, disturb their verdict, not- 
withstanding It may appear to be 
against the strength and weight of 
the testimony. So, where the ver- 
dict depends upon the credibility 
of the witnesses. It Is the peculiar 
province of the jury to Jndge of 
that credibility, to attach such 
weight to the testimony of each as 
may seem to be proper, after a 
due consideration of all the clr- 
cnmstancea arising In the particu- 
lar case, such as the relationship 
of the witness to one or both of 
the parties In the controversy, his 
supposed Interest In the event of 
the suit, his means of hnowledgs 
In respect of the matters In dis- 
pute, hiB appearance upon the 
stand, his manner of testifying, hla 
general character (or veracity, and 
the like and to find their verdict 
accordingly." Ttese observations 
are no doubt made from the stand- 
point of the appellate court, and 
are nothing other than a more ex- 
tended way of stating the general 
proposition that, In actions at law, 
questions of fact will not be re- 
viewed on appeal or error. City 
of Mattoon v. Fallln, 113 111. 249. 
It Is a sound rule that, within the 



oGoo^^lc 



1250 PBOVINCB OF OOUBT AND JUBT, 

§ 1670. Sule Uiat there muMt be Reaaonsble Xvidence of Neg- 
ligence. — The English rule, established by the House of Lords in a 
recent case, uptm a full consideration of the prerioos decisions in 
that country, is that it is for the jadge to say whether any facts 
have been established by aofficient evidence, from which negligence 
can be reasonably and legitimately inferred; and it is for the jury 
to say whether, from those facts, when sabmitted to them, negli- 
gence ought to be inferred.*' The judge mfty decide the case by a 
peremptory instruction, or by directing a nonsuit, according to the 
practiee of the court, where, assaming all the evidence which works 
in favor of the plaintiff to be tme, no fair-minded man can draw 
from it the inference that the defendant was guilty of a want of 
that degree of care which he was bound to exercise under the eir^ 
cumstances. More broadly, the judge so decides when there has 
been no failure of duty on the part of the defendant, — as where 
the accident arose from something which the defendant was not 
bound to anticipate and guard ag^st." The English rule was 
thus expressed by Lord Cairns, L, 0.: "The judge has a certain 
dnty to discharge, and the jurors have another and a different duty. 
The judge has to say whether any facts have been established by 
evidence from which negligence may be reasonably inferred; the 
jurors have to say whether, from those facts, when submitted to 
them, negligence ought to be inferred. It is, in my opinion, of the 
greatest importance in the administration of justice that these sep- 
arate functions should he maintained, and should be maintained 
distinct. It would be a serious inroad on the province of the jury, 
if, in a ease where there are facts from which negligence may rea- 
sonably be inferred, the judge were to withdraw the case from the 
' jury, upon the ground that, in his opinion, negligence ought not to 
be inferred ; and it would, on the other hand, place in the hands of 

limits prescribed hj Btatutes, tbe ttona. The BtatutoTy limit In some 

gTBDtlng of new trials on the States 1b that the Judge cannot 

ground th&t the verdict Is against grant more than two new trials, on 

the oTldence, or agalnat the weight the ground that the Jnry have 

of the evidence, or rendered In dis- found against the weight of the 

regard of the evidence, Is a matter evidence. 

addreaaing Itselt to the sound dls- ■« Metropolitan R. Co. ▼. Jack- 

cretion of the trial judge, which son, 3 App. Cas. 193; Springs v. 

discretion, as a general rule, Is not Sonth Bound R. Co., 46 S. C. 104, 

reviewable In anr appellate pro- S4 S. E. 166. 

ceeding, though the contrary is *' Daniel y. Metropolitan etc R. 

the case In two or three Jurisdlo- Oo., L. R, 6 H. L. 46, 



7crib;G00<^IC 



NEOUQENCE. 1251 

the jurors a power which might be eiTciaed in the moat arbitrary 
manner, if they were at liberty to hold that negligence might ho 
inferred from any state of facts whatever. " *' The following rule, 
laid down in England, has been approved in America: "It is not 
enough to aay there was some evidence. A. tcintiUa of evidence, 
or a mere surmise that there may have been negligence on the part 
of the defendants, clearly wonld not justify the judge in leaving 
the case to the jury. There must have been evidence on which the 
jury might reasonably and properly conclude that there was negli- 
gence."" Another expression of the doctrine is that the court 
ought to direct a verdict for the defendant, where the jury cannot 
infer negligence from the facts in evidence without reasoning ir- 
rationally and contrary to common sense. "These facts and cir- 
cumstances," said Httoes, J., "must be such as would warrant 
a jury in inferring from them the fact of negligence by reasoning 
in the ordinary way, according to the natural and proper relation of 
things, and consistently with the common sense and experience 
of mankind.*" A jury is not to be left or permitted to act by rea- 
soning in any other way on such facts. Where it is plain that the 
jury could not find a verdict on the evidence offered without rea- 
soning irrationally against all ordinary common sense and against 
ftU proper notions of justice and right, or against law, or without 
being influenced by iindue sympathy, prejudice, groas misjudgment 
or mistaken impressions of the law and facta of the case, — the court 

■■Metropolitan R. Co. v. Jack- waa evidence on the part of tbe 
Bon, 3 App. CsB. 193, I9T, 47 L. J. company Is for tlie Jury, and not 
(C. P.) 303. The following ETng- for tbe court But this Is per- 
llah cas«3 mar be referred to aa haps merely another form of Ht&t- 
Uluatrating this doctrine and tbe Ing tbe same rule. For what is 
extreme difllculty of applying It la "eTldence of negligence," unless It 
practice: Bridges v. North London Is evldenca from which tbe Inter- 
It. Co., L. R. 7 H. L. 213, 43 L. J. ence of negllgenoe may be reason- 
Q. B. 151; Robson v. Northeastern ably drawn. See alao Rose v. 
R. Co., 46 L. J. Q. B. 50; In Ct of Northeastern H. Co., 2 Bicb. Dlv. 
App.. 2 Q. B. DlT. 86. These two 318, 46 L. J. (Ezch.) 374. 
cases, decided before tbe case first ■* Comman v. Eastern Counties 
cited, do not come np to tbe rule R. Co., 4 Hurl, k N. 781; Beaulleu 
tber« laid down, and must be un- v. Portland Co., 48 Me. 291, 296. 
derstood as qualified by It. They *•> Citing 1 Oreenl. Ev., SS 14, 48; 
aabetantially bold that, In all ac- Oundelswelller v. H. W. Jayne 
tlona against railroad companies Chem. Co., 161 Pa. 23, 28 Atl. 946; 
for personal injuries. If any evt- Chicago B. A Q. R. Co. v. Landauer, 
dence wliatever of negligence Is 36 Neb. G42, 64 N. W. 976, 
offered, the question whether there 



7crib;G00<^IC 



1252 PEOTINCB OP COUBT AND JUBT, 

will declare as a matter of law that there ia no competent eridenoe to 
be submitted to the jury." *' 

§ 1671. Difflcolties of Allying this Bnle in Practice.— In 
whatever frame of lan^a^ judges attempt to set this rule, it will 
be found that nothing is more difficult than the application of it 
in actual practice. A few circumstances exist where acts of care- 
lessness have so frequently recurred that the judges have fallen 
into a rule in dealing with them, which is that the law conclusively 
ascribes negligence to them, — such, for instance, as the act of a 
traveler who drives upon a railway without looking or listening for 
an approaching train.** On the other hand, the judges have held, 
in respect of certain acts frequently recurring before them for de- 
cision, that no negligence is to be imputed to such acts as matter 
of law, hut that it may be a question for the jury whether, under the 
circumstances, they afford evidence for the conclusion of negligence 
as a conclusion of fact Such, for instance, is held in respect of 
the speed at which a railway train may be driven, the rule being 
that no rate of speed can be held negligent as matter of law, unless 
it is a rate prohibited by statute. Between these lie a middle class 
of cases in which the judicial courts are divided in opinion as to 
whether a partictilar act of seeming or possible carelessness, which 
has resulted in injury in cases which have frequently come befor« 
them, ia to be deemed negligent as matter of law. Of this char- 
acter is the act of a passenger in nding with bis elbow out of the 
window of the coach. Outside of these three classes lies a fourth 
class, where, for the purpose of promoting the safe^ of person or 
property, the legislature has forbidden the doing of certain acts, — 
as, for instance, the driving of a locomotive or of a railway train 
at a greater rate of speed than a prescribed rate within the limits 
of an incorporated city ; the failure of a railway company to main- 
tain a fence of a certain description on its right of way for the 
purpose of excluding domestic animals from its track, and many 
other like eases. In all such cases, the statute having conclusively 
ascribed negligence to the act done or omitted, tiie only question 

41 Callahan v. W&rne, 40 Mo. 132, gence can be Inferred, but R Is for 

136. the Jnrr to say whether from the 

4* Post, IS 1686, ISOO, et aeq. It evidence there Is any negllgenoa 

Is for the court to nr whether and whose. Wilmington City Bj. 

there ie any evidence from which Co. v. White (Del.). 66 AtL 1009. 
negligence or contributory negll- 



D.qitizeabyG00<^lc 



VBOUQSSCa. 



1253 



for decinon will be whetlier there was a proximate causal connec- 
tion between sach act and the injury which happened; and this 
again will sometimea be a question for the court and sometimea for 
the jmy, depending npon the circumstances of the case. 

§ 1672. Yiolatioiu of Statntoiy Duties. — As a general rule, the 
violation of a duty enjoined by a statate, or by a valid municipal 
ordinance, enacted for the protection of person or property, is neg- 
ligence per se. In such cases, the courts, instmcting juries, as- 
sume that there was negligence as matter of law, provided the facts 
are undisputed, or charge them that the doing or omitting of the 
particular act was negligence.** 

§ 1873. Violation of a Duty Enjoined by the Oommon Zaw. — 
There is no ground for a distinction between cases of a violation 
of a duty enjoined by statute, and that of the violation of a duty 
enjoined in a particular situation by a positive rule of the common 
law,** especially where the statute is merely declaratory of the com- 
mon law.** And it may be said, as a general rule, where the cir- 
cumstances of a case are such that the standard of duty is fixed and 
defiiied by law and is the same under all circumstances, that the 
omission of this duty is negligence, and the court m^ bo declare to 
the jury.** 



•■Karle v. Kftnoas City etc. B. 
Co., 66 Mo. 476; Norton T. Ittn«r, 
66 Mo. 351, per Napton, J.; Gray v. 
Pnllen. 6 Best ft S. B70; Hala v. 
SlttliiglK>anie etc. R. Co., 6 Hurl. * 
N. 4SS. 30 L. J. (Exch.) 81, 9 
W«ek. Rep. 274, 8 L. T. (». a.) TEO; 
post, S 1719; VDoDnell v. Rlter- 
Conlej Utg. Co., 124 lU. App. 644; 
International ft O. N. R. Co. v. 
Wray, 43 Tex. Civ. App. 380, 96 8. 
W, 74. And provided auch vliria- 
tlon Is the proximate cause of In- 
Jury. Chrlatner v. Cnmberland ft 
Elk Uck Coal Co., 146 Pa. 67, 26 
Atl. 231. Violation ot «n ordi- 
nance has been niled to be rebut- 
table evidence ol negligence. 
Sbellebarger v. Flsber 143 Fed. 
937. Tbia question was ruled varl- 
OQBly In Hlssourl between the two 
divisions, until finally decided very 
much as In Pennsylvania. See 



Binder v. Transit Co., 189 Mo. 107, 
88 5. W. 648. This case discloses 
the curious anomaly of one divi- 
sion of a supreme court decldlnK 
one way and the other another, for 
a series of years, nntti the ques- 
tion was finally settled by the 
court In banc. 

M Thomas v. Western Union Tel. 
Co., 100 Mass. 166. 

*• Compare, on this point, Oray 
V. Pullen (6 Best ft B. 970), where 
the plaintiff recovered on the 
ground of a violation of a. duty de- 
clared by statute; and Saddler v. 
Henlock, 4 El. ft Bl. 670, where on 
similar facte. It was held that the 
plalntltFs could not recover, no 
such duty having been enjoined 
by statute. 

««West Chester etc. R. Co. v. 
McEIwoe, 67 Pa. Bt. 311, SIS; Ble- 
Cully V. Clark, 40 Pa. St 899. 



Coo^^lc 



1254 PROVINCE OP OOUET AND JDET. 

§ 1674. Where the Negligence Is Clearly Defined and Tal- 
pahle. — It is also said that, where the negligence is "clearly de- 
fined and palpable," such that no verdict of a jury could make 
it otherwise, it should be decided by the judge aa a question of 
law." Thia rule, more fully stated, is that, where "there is no 
controversy as to the facts, and from these it clearly appears what 
course a person of ordinary prudence would pursue under the dr- 
eumstauces, the question of negligence is purely one of law."** 
According to the current of judicial c^inion a quarter of a century 
ago, cases where the question of negligence could thus be withdrawn 
from the jury were comparatively rare." But the experience of 
courts in later years in actions of this kind, especially in railway 
damage suits, has been that, in almost every case where the ques- 
tion is submitted to the juiy, a verdict is returned for the plaintiflf, 
and manifestly with little consideration to the evidence or the jus- 
tice of the case. The courts have therefore developed a stroager 
tendency, in recent than in former times, toward withdrawing such 
questions from juries. 

S 1676. Where the Inference of Negligence and of Oare are - 
Eqnally Bfdanced. — An idea is fonnd in some of the cases to the 
effect that, in order to entitle the plaintiff to succeed in any kind of 
action, he must submit something in the nature of evidence suffi- 
cient to move the court. The proper conception of the law under 
this head is, that it is sufficient lor the plaintiff to submit some sub- 
stantial evidence, tending to show a right of recovery upon the 
ground laid in his declaration, petition or complaint In a leading 

« Rudolphy v, Pucha, 44 How. contributory aegllgence, the court 

Pr. (N. T.) 155, IGOi Houfe T. Ful- mny Instruct that defend&nt la 

ton, 29 Wis. 296. guilty of negligence. Union Pac. 

•» Feroanilez v. Sacramento Olty Hy. Co. v. McDonald, 152 U. S. 262. 

R. Co., 52 Cal. 45, 4 Cent. K J. 82. 3S L. Ed. 432. See also Southern 

Tn Missouri it la said, that, while Pac. Co. v. Pool, 160 U. S, 438, 40 

negligence la ordinarily a question U Ed. 485; Woolwlne's Admr. v. 

of tact. It cannot be aald that a Chesapeake ft O. R. Co., 36 W. Va. 

court can never Instruct a Jury 329, IE S. E. 81, 32 Am. St. Rep. 

that a cerUin line of conduct Is 859, 16 L. R. A. 271. 

negligent. Luckel y. Century "Detroit etc. R, Co. v. Van 

Building Co., 177 Mo. 603, 76 S. W. Stelnburg, 17 Mich. M; Rudolphy 

1035, If the undlsputeil facts show v. Fuchs. 44 How. Pr. (N. T.) IBB, 

negligence of defendant, as the 160; Railroad Ca T. Stott^ 17 Wall. 

primary subatantlal cause of In- 657. 
]ury and there Is nothing to show 



D.qitizeabyG00<^lc 



NEOUQEKCE. 1255 

English case this idea waa thus expressed by Erie, C. J.: "The 
plaintiff is cot entitled to succeed unless there be affirmative proof 
of negligence on the part of the defendant or his servants; and 
there can be no auch proof, unless it be shown that there existed some 
duty, owing from the defendant to the plaintiff, and that there has 
been a breach of that duty. • • • "Where it is a perfectly even 
balance, upon the evidence, whether the injury complained of ha^ 
resulted from the want of proper care on the one side or on the 
other, the par^ who founds his claim upon the imputation of neg- 
ligence fails to establish his case."** In the same case the doc- 
trine was thus expressed by Williams, J., in his concurring opin- 
ion: "I wish merely to add that there is another rule of the law 
of evidence, which is of the first importance, and is fully estab- 
lished in all the coorts, viz. : that where the evidence is equally coa- 
sstent with cither view, — with the existence or non-existence of 
negligence, — it is not competent to the judge to leave the matter 
to the jory. The party who affirms negligence has altogether failed 
to establish it This is a rule which ought never to'be lost sight 
of."" 

S 1676. Whether the Negligence was the Proximate or Remote 
Cause of the Injnry: Oeneral Statement of Doctrine. — It is only 
where the act of negligence proved is the proximate cause of the 
resulting damage, that the plaintiff can recover. In like manner 
it ia only where the act of contributory negligence, which has been 
established by the testimony, was the proximate cause of the result- 
ing damage, that it will bar a recovery. Another expression of 
this rule ia found in making use of the words prommate damage 
and remote damage, instead of the words proximate cause and re- 
mote cause. The two expressions embrace the same juridical idea. 
The meaning is that, if the connection between the imputed wrong- 
ful act, and the damage which happened in consequence of it, is 
remote and speealative, there can be no recovery. A better expres- 
sion of the rale is that proximate, immediate or direct damages are 
the ordinary and natural res^dts of the negligent or other wrong- 
ful act ; such as are usual, and such aa therefore might have been 
expected to flow from it, and therefore ought to have been foreseen 
and guarded against. This rule puts into the category of remote 

(•Cotton V. IVood, 8 C, B. {ir. a.) Lord B)«ckburn in Dublin etc H, 
ess. G7I. 1 Tbomp. Neg. 164. Co. T. Slattery, S App. Cas. 1165. 

■ilbld; see aJao the opinion ol 



7crib;G00<^IC 



1256 



PBOVINCB OP COUBT AND JUBT. 



damagea all which are the result of am accidental or mmgual com- 
bination of circnmstaDCCS, which would not he reasonably antici- 
pated, which the negligent party could not therefore be expected 
to provide against, and over which, in many cases, he would have 
no control.** Much space would be required to expound and illus- 
trate this doctrine, and therefore it will not be attempted." 

S 1677. When a Qaestion for the Judge and when for the 
Jury. — In actions for damage for negligence the general rule ia, 
within limits already indicated, that, whether the damage which 
accrued to the plaintiff is the proximate or the remote result of the 
negligence of the defendant, is a question of fact for the jury;** 
that is to say, when doubt arises as to whether the damages are 
direct and proximate, or speculative and remote, the question 
should be submitted to the jury, under proper instructions." But 



HHenrr r. Soutbem Pacific R. 
Co„ fiO Cal. 1S3; RIgby t. Hewitt, 
6 Exch. 240; F'afrbanlm t. Kerr, 70 
Fa. St. 86; Morrison v. Davis, 20 
Pa. St 171; McGraw v. Stone, 53 
Pa, St. 43S; Scott v. Hunter, 46 Pa. 
St 192; Lake r. MilUken, 6S Me. 
240; Stark v. Lancaster, 67 N. H. 
8S; Atcltlson etc, R. Co. v. Stan- 
ford, 12 Kan. 354; Marble v. Wor- 
cester, 4 Qrar (Maoa.), 39G; Ben- 
nett T. Lockwood, 2» Wend. (N. T.) 
223; Procter v. Jennings, 6 Nav. 
83; Doggett v. Richmond etc. R. 
Co., 78 N. 0. 305; PbllUpB v. Dlck- 
ereon, 85 111. 11; St. t. Manchester 
etc. R. R.. 62 N. H. 528, 562. See 
poet I! 1720, 1722, 1723. 1724. 

» See 2 Thomp. Nog. 1463 to 
1101. 

M Patten v. Chicago eta R. Co., 
32 Wis. 624; Oliver v. La Valle. 36 
Wis. 592; Poeppers v. Missouri etc. 
R. Co., 67 Mo. 716, 7 Cent L. J. 
252; Falrbanto v. Kerr. 70 Pa. 8t 
86; Sazton v. Bacon, 31 Tt 640; 
Littleton V. Richardson, 32 N. H. 
59; Cooke Brewing Co. v. Ryan, 125 
III. App. 697, 223 111. 382. 79 N. 
E. 132; Elgin J. & E. Ry. Co. v. 
Hoadley, 220 111. 462, 77 N. E. 161; 



Schultz T. La Crosse City R, Co., 
133 Wis. 420. 113 N. W. 658; Dun- 
can 7. SL Louis k a. r. R. Co., 
152 Ala. lis, 44 Soutb. 418; Houten 
T. FlelBchmann, 142 N. Y. 624, 37 
N. E. 565. 

M Clemens v. Hannibal etc. R. 
Co., 53 Mo. SGfi; Toledo etc. R. Co. 
T. Pindar. 53 111. 447; Patten v. 
Chicago etc. R. Co., 32 Wis. 624; 
Hoag V. Lake Shore etc. R. Co., 
36 Pa. St 298. 4 W. N. Cas. 652, 6 
Cent L. J. 95, 6 Reporter, 80; 
Scott T. Hunter, 46 Pa. St 192; 
Saxton T. Bacon, 31 Tt 644; Toff 
T. Warman, 2 C. B. (h. b.) 739; 
Lake v. MllUken, 62 Me. 240; Stark 
V. LancasUr. 67 N. H. 88, 91; Wil- 
ier V. BeifoBt 61 Me. 669; Per- 
nandez v. Sacramento City R. R., 
4 Cent L. J. 82. See also Bridge 
T. Grand Junction R. Co., 3 Mee. ft 
W. 248; Davles v. Mann. 10 Mee. ft 
W. 548. ! Thomp. Neg. 1105; Col- 
chester T. Brooke, 7 q. B. 337; 
Radley v. London etc. R. Co.. L. 
R. 9 Exch. 71. 1 App. Cas. 754; 
(reversing L. R. 10 E^cb. 100); 43 
L. J. (Bxch.) 73, t< L. J. (Exch.) 
73. 33 L. T. (n. b.) 209, i Thomp. 
Neg. 1108. 



o;Goo<^lc 



NBaUGBNCE. 



1257 



here, as in otlier cases, where the inference to be drawn from tlie 
facts proved is so plain that fair-mtnded men could not debate 
about it, the judge may properly decide it by a peremptory instnie- 
tion." 



; 1678. Evidence Failing to Connect the Negfligence wltb the 
Accident. — In an action for damages for Diligence, where the 
evidence entirely fails to connect the negligence with the fact of 
the accident, the court should direct the jury that the plaintiff can- 
not recover; " though in many cases the physical facts Burrounding 
the accident will be such as to create a probability that the accident 



MFor (nstancM where the qnea- 
tlon was held to be a quutloa for 
the JQiT, see S Thomp. Neg., p. 
1100, {18. It iB held In Missouri 
that "when there ts no conQlct In 
the testlmonir, and all causes con- 
trlbutlOK to pro dace an Injury are 
known and unquestioned, whether 
a given act In the chain of cansa- 
tion Is the remote or proximate 
cause of such tnjurj'. Is a question 
of law for the oonrt." Henry t. 
St Louts etc. R. Co., 76 Mo. 28S, 
293. In ench cases the court will 
decide the question as matter of 
law, either upon demurrer to a pe- 
tition, declaration or complaint 
(Bank of Commerce v. G-lnocchlo, 
27 Mo. App. 661), or upon clear 
and undisputed evidence presented 
at the Ulal. It is a rule In Penn- 
sylvania that, where, In actions for 
damages for negligence, there fs 
any dispute about the facts, the 
question of remote or proximate 
cauee Is (or the Jury. But where 
the facta are not ijlspuled, the 
court should determine the ques- 
tion aa a ntatter ot law. West 
Mahanoy Tp. v. Watson, 112 Pa. 
St B74. S Atl. 8S6. per Paxeon, J.; 
West Mahanoy Tp. v. Watson, 116 
Pa. St 344. 9 Atl. 430. 433; Sey- 
mour V. Union Stock Tarda * 
Transit Co.. 224 111. 579, 7» N. B. 



SGO. It Is, however, always a 
question tor the court, whether or 
not offered evidence would have a 
tendency towards showing proxim- 
ate cause. Claclnaatl 8t Ry. Co. 
V. Murray's Admr., E3 Ohio St 670, 
42 N. E. 696, 30 L. R. A. G08. 

'1 Htdman v. Chicago etc R. Co., 
63 Mo. 662; post, | 1720; Hoffmao 
V. Philadelphia Rapid Transit Co., 
214 Pa. 87, 63 AU. 409; Schell v. 
Chicago ft N. W. Ry. Co.. 13* Wla 
142, 113 N. W. 667. The toct, that 
an Inlerence that an accident la 
due to a cause other than the neg- 
ligence of defendant could be 
drawn as reasonably as the infe^ 
ence that It Is not does not pre- 
sent a case of re* ip»a loquitur. 
McGrath V. St Louis Transit Co., 
197 Mo. 97. 94 S. W. 873. See also 
Candle v. Klrkbrldge, 117 Mo. App. 
412, 93 S. W. 8GS. Where the 
cause of an accident la merely con- 
Jectaral, It should not go to the 
Jury. Powers v. Pere Marquette 
R. Co.. 143 Mleh. 379, 106 N. W. 
117; Atchison T, ft S. F. R. Co. v. 
Baumgartner, 74 Kan. 148, 86 Pac 
S22. Nor does the mere presump- 
tion, that a deceased would exer- 
cise due care In avnldlng danger 
supply connection with defendant 
Powers T. Pere Marquette R. Co., 
supra. 



jcibyGoQi^lc 



1258 



PROVINCE OF COU&T AND JUST. 



was the result of Degligence, in whieli case the physieal facts are 
themselves evidential, and furnish what the law terma evidence of 
Diligence, in conformity with the maxim res ipsa loquitur.** But 
the decisions do not apply this principle with uniform consistency. 
Thus, where, in an action against a railroad company for killing 
the plaintiff's cow, the only evidence was that the bell of the de- 
fendant's locomotive was not rung nor the whistle sounded, as it 
approached a public crossing where the cow was run over and 
killed, — it was held that the court ought to have directed a verdict 
for the defendant, because there was no evidence connecting thu 
negligence of the defendant with the fact of the accident** On 



** See 2 Tbomp. N«g., p 1227 «t 
aeq. niustrfttlona Ot this principle 
will be found in Keamer ▼■ Lon- 
don etc. R. Co., L. R. 6 Q. B. 411 
and L. R. < Q. B. 759, 2 Tbomp. 
Neg. 1220; Byrne v. Boadle, 2 
Hurl, ft Colt, 722, 33 L. J. (EzchO 
13; 9 L. T. Is. a.) 1B0; 12 Week. 
279; Brlgge T. Oliver, i Hurl. * 
Colt. 403, 35 L. J. (Ezcb.) 1S3; 14 
L. T. (N. B.) 412; 14 Week. 653; 
Mullen T. SL John, 57 N. T. 567: 
Vincett V. Cook, 4 Hun {N. T.), 
31S; Lyons v. Hosenthal, 11 Hun 
(N. Y.), 46; Warren v. Kaufman, 
S Phlla. (Pa.) 269; Hays v. Oalla^ 
gher, 72 Pa. SL 136; Thomaa t. 
Western Union Tel. Co., 100 Hase. 
15S; Bueschlns v. SL Loula Oas 
Llgbt Co., 73 Mo. 219, reversing < 
Mo. App. 85; 6 Cent L. J. 453. 
Compare Scott v. London etc. Dock 
Co., 10 3ur. (H. 8.) 1108; HIggs v. 
Maynard. 12 Jur. (w. a.) 705, 1 Harr. 
k Ruth. 681, 14 Week. Rep. 610, 14 
L. T. (H. a.) 332; Lane T. Salter, 4 
Rob. {N. Y.) 239; Worater v. Porty- 
second SL R. Co., 60 N. Y. 203; 
Magulre v. FItchburg R. Co.. 146 
Mobs. 379, 15 N. E. 904; Scharff v. 
Southern Hi. Const. Co., 115 Mo. 
App. 167, 92 S. W. 12G; ArkanBue 
Tel. Co. T. Ratteree, 67 Ark. 429, 
SI S. W. 1059; Kahn v. Trlest- 
Rosenberg Cap. Co., 139 Gal. 340, 



tt Pac. 681; Chenall t. Palmer B. 
Co., 117 Oa. 106, 43 S. E. 443; 
Donovan v. R. Co., 66 Conn. 201, 
32 AU. 352; Newark K L. ft P. Co. 
T. Ruddy, 32 N. J. L. 50G, 41 AU. 
712; Baron v. Reading Iron Co., 
202 Pa. 274, 51 AU. B7S. "Wher« 
the thing Ifl shown to be under 
. ouuia^ment of defendant or hla 
servants and the accident la such 
as In the ordinary couree of things 
does not happen, It those who bare 
the management use proper care, 
It affords reasonable evidence. In 
the absence of explanation by de- 
fendants, that the accident aroee 
from want of care. Erie, C. J., In 
Scott T. London ft SL E. Docks 
Co., 3 H. ft C 596. In Maryland 
It has been held that, If an Injury 
results from an event not only In 
Its very nature destructive of tbe 
safety ot persons or property, but 
also grossly wrongful In Its qual- 
ity, as for eiample leaning on a 
chimney ao as to dtsplaoe bricks 
and cause them to fall In a street, 
an inference of negligence may be 
deduced. Strasburg v. Vogel, 108 
Md. 85, G3 AU. 202. 

•* Holman v. Chicago etc. R. 
Co., 62 Mo. 662. Compon Stone- 
man T. Atlantic etc. R. Co., 68 Uo. 
603; Owens V. Hannibal ate R. Co., 
68 Mo. 886. 



7crib;G00<^IC 



NEQUaeNCIE. 



the other hand, where a corporation had left an nn^arded stair- 
way leading to a cellar way of his building, in the sidewalk of a 
public street in a populous city, and the plaintilT's husband was 
found dead in the excavation with its neet broken, it waa held that 
there was evidence of negligence to go to the jttry,** 

S 1679. Whether the PlaintifT or the Person Injured was Gnilty 
of Oontribntory Negligence: In General. — It is a general rule of 
law, except in cases in the admiralty courta relating to the collision 
of Teasels, that, in an action for damages for negligence, if it appear 
that the negligence, that is, the want of ordinal? care on the part 
of the pl^ntiff or the party killed or injured, contributed in any 
degree to produce the catastrophe, the plaintiff cannot recover ; •' 
and that, except in one or two jurisdictions where the so-called doc- 
trine of comparative negligence prevails, the law "has no scales 
to determine in such cases whose wrongdoing weighed most in the 
compound that occasioned the mischief."" There is a difference 

MBnescblng v. St LoulB Oas 
Light Co., 73 Ho. 219; reversliiK 6 
Ho. App. 85. 

■1 Lord Campbell, C. J., In Dowell 
Y. Gen. 8t«am Nav. Co., 6 El. ft 
Bl. 195; Wltberl; v. Regent's Canal 
Co.. IS C. B. (w. B.) 2, 6 L. T. 
(H. B.) 266; 3 Post, ft Fin. 61; 
Brownell T. Flagler, 5 Hill (N. Y.), 
282; RoMoaon v. Western Pacific 
R. Co., 48 Oal. 409, 421; Needliam 
V. San Francisco etc. R. Co., 37 
Cal. 409; Gay v. Winter, 34 Cal. 
163; Flemmtng T. Westeni Paclfle 
R. Co., 49 Cal. 253; Heame t. 
Sonthem Pacific R. Co., 60 Cal. 
482; Johnson v. Canal etc. R. Co., 
27 La. Ann. 63; Knight v. Pont- 
chartraln R. Co., 23 La. Ann. 462; 
lAlcher T. New Orleans etc. R. Co., 
23 La. Ann. 320; Coomha v. Par- 
[ngton, 42 Ue. 332; Munger ▼. 
Ton&wanda etc R. Co.. 4 N. 7. 
349; Thrlngs v. Central Park R. 
Co., 7 Robt 616; Morris ▼. Phelpa, 
2 HUt (N, T.) 38; Colling v. Al- 
bany etc. R. Co.. 12 Barb. <N. T.) 
492; Johnson v. Hudson River R. 
Co., 20 N. T. 78; W41d9 v. Hudson 



River R. Co., 24 N. T. 430 (revera 
Ing 33 Barb. {N. Y.) 603), 29 N. 
Y. 31E; Sheffield v. Syracuse etc R. 
Co., 21 Barb. (N. Y.) 839; Dougan 
V. Champlaln Transp. Co., S Lans. 
(N. Y.) 430; Baxter v. Second Ave, 
R. Co., 8 Robt. (N. y.) 510; Rail- 
road Co. v. Norton. 24 Pa. fit. 465; 
Stiles V. Oeeaer, 71 Pa. St 439; 
Catawlssa R. Co. r. Armstrong, 49 
Pa. St ISA; Hell v. Olandlng, 42 
Pa. St 493; O'Brien v. Phlla. etc 
H. Co., 3 Phila. (Pa) 76; WUlard 
V. Plnard. 44 Vt 34; Murphy v. 
Deane, 101 Mass. 466; HoCulIy v. 
Clarke, 40 Pa. St 399; Vander- 
plank T. Miller, 1 Mood, ft M. 169; 
Tennall v. Gamer. 1 Cromp. ft M. 
21; Lack T. Seward, 4 Car. ft P. 
106; Luxford v. Large, 6 Car. ft P. 
421; Wooir v. Beard, 8 Car. ft P. 
873; Kent v. Enstob. S East, 18; 
Broadwell v. Swigert. 7 B. Mon. 
(Kj.) 39. Instructions as to con- 
tributory negligence, post, t! 1721 
et seq.; 1739. 1762, 1764. 1765, 1791. 
1792. 1793, 1794, 1807, 1808. 

•■Railroad Co. v. Nort<Hi. 24 Pa. 
St 469; SUlee v. Geesey, 71 Pa. St. 



Coo^^lc 



PROVINCE OP COUET AND JDHT. 



of judicial opiaion upon the question whether, in such a case, th« 
burden resta on the plaintiff averring and proving that, at the time 
of the accident^ he or the person killed, or injured, was in the exer- 
cise of due care."" 



439; Wllds T. Hudson River R. Co., 
2* N. T. 432; Allen V. Hancock, 16 
Vt. 230; Northern Central R. Co. v. 
Oles, 81 Md. 867; Larkln v. Taylor. 
S Kan. 433, 44E; Northern Central 
R. Co: V. Price, Z9 Md. 420; Robin- 
Bon V. Huber {Del. Super.), 63 Atl. 
873 (not repotted In atate reports) ; 
Harrison T. Kansas City B. L. 
Co., 195 Mo. 60S, 93 S. W. 951. 

■3 The rule that ttie burden of 
proof Is upon the plalntltF to show 
the absence of contributory negli- 
gence on hlB part extats In the fol- 
lowing States: llatiachuiettt: Lane 
V. Croinble, 12 Pick. (Mass,) 177; 
Adams V. Carlisle, 21 Pick. (Maas.) 
146; BIgelow v, RuUand, 4 Cuib. 
(Mass.) 247; Bosnortb v. Svansey, 
10 Mete (Mass.) 363. 365; Parker 
V. Adame, 12 Mete. (Mass.) 416, 
417; Lucas v. New Bedford etc R. 
Co., 6 Gray (Mass.), 64; Robinson 
V. Fltchbarg etc. R. Co., 7 Gray 
(Mass.), 92; Callahan 7. Bean, 9 
Allen (Mass.). 401; HIckey v. Bos- 
ton etc. R. Co.. 14 Allen (Mass.), 
429, 431; Qaynor v. Old Colony R. 
Co., 100 Maflfl. 208; Mnrpby v. 
Deane, 101 Maes. 466; Allyn v. Bos- 
ton etc. R. Co., 105 Mass. 77; Lane 
V. AUantIc Works, 107 Mass. 104. 
Maine: Oleason v. Bremen, 60 Me. 
222, 224; Bnzzell v. Laconia Man. 
Co., 48 Me. 113. See also Dickey v. 
Maine Tel. Co.. 46 Me. 483; Per- 
kins V. Eastern etc. R. Co., 29 Me. 
307; Merrill v. Hampden, 26 Me. 
234; Kennard v. Burton,' 25 Me. 39, 
49. loKitt: Ruscb v. Davenport, 6 
Iowa, 443; Reynolds v. Hlndmao. 
32 Iowa, 146, 148; Plaster v. Illinois 
etc. R, Co., 35 Iowa, 449; Carlln v. 
Chicago etc R. Co., 87 Iowa, 316; 



Muldowney v. Illinois etc R. Co., 
S9 Iowa. 615, 36 Iowa, 462, 32 
Iowa, 176; Patterson v, Burlington 
etc, R, Co., 38 Iowa, 379; Way t. 
Illinois etc. R. Co., 40 Iowa, 341. 
Illinois: Aurora Branch, R. Co. v. 
Grimes, 13 111. 586; Dyer v. TalcoU, 
16 111. 300; Galena etc. R. Co. v. 
Fay, 16 111. ESS; Chicago v. Major, 
18 ni. 349; Galena etc. R. Co. v. 
Jacobs, 20 111. 478; Chicago etc. R. 
Co. V. Haziard, 26 ni. 373; Chi- 
cago etc. R. Co. T. Gregory, 58 111. 
272; Kepperly v. Ramaden, S3 111. 
354. Connecticut: Beers v. Housa- 
tonic R. Co., 19 Conn. 666; Park v. 
O'Brien, 23 (3onn. 339; Fox v. Olaa- 
tenbnry, 29 Conn. 204. Michigan: 
Detroit etc. R. Co. v. Van Stein- 
burg, 17 Mich. 99, 119. The con- 
trary rule, that contributory negli- 
gence Is matter of defense, in re- 
spect of which the burden of proof 
rests on the defendant. Is the rale 
In the following states: Miaii*- 
<ippi: Cent R. Co. v. Hardy, 88 Ulss. 
732, 41 South. 505. Indiana: Dia- 
mond Blick Coal C^., V. Cutbbert- 
son, 166 Ind. 290, 76 N. B. 116. Penit- 
tylvania: Beatty v. Gilmore, 16 Pa. 
St. 463; Erie v. Schwlngle. 22 Pa. St 
384; Fennaylvanta Canal Co. v. 
Bentley, 66 Fa. St. 30; Bush v. 
Johnston, 23 Pa. St 209; Hays v. - 
Oallager, 72 Pa. St. 136 (explain- 
ing Waters v. Wing, 69 Pa. St 
211); Allen v. Wlllard, 57 Pa. St 
374; Mallory v. Oritfey, 8G Pa. St 
276; Weiss v. Pennsylvania R. Co., 
79 Pa. St 387; Pennsylvania R. 
Co. V. Weber, 76 Pa. St 157, 78 
Pa. St 27. See Pennsylvania R. 
Co. V. McTlghe, 48 Pa. St 816; 
Coolbroth V. Penn. R. Co.. SOS Pa. 



Coo^^lc 



NEQUQENCE. 



1261 



433, G8 Atl. 803. MtttouH: Tborop- 
■on V. Nortb Mlseouri R. Co., 61 
Ho. 190; HlckB v. PaclDc R. R.. 65 
Mo. 34, 64 Mo. 430; Schnennui r. 
Ulaaouri R. Co., 3 Mo. App. 665; 
Baker T. R7. Co., 117 Mo. 140. 4S 
S. W. S38. WUoonain: Prldeaux 
T. Hlner&l Point, 43 Wis. 613, 624; 
Hort T. Hudson, 41 WIb. 105; 
Acbtenhftgen v. Watertowo. 18 Wia. 
331; PoHor t. Cblcago etc R. Co^ 
22 Wis. 615, 21 Wis. 372; MUw&n- 
lc«e etc. R. Co. v. Hunter, 11 Wis. 
160. Tbe above cases overrule the 
contrary doctrioe, bold In Dressier 
T. Davis, 7 Wis. 627; and Chamber- 
Un v. Ullwauhee etc. R. Co., 7 Wis. 
426, 431; Pfetffer T. Radke, 143 
Wis. 612. 125 N. W. 934. Ken- 
tuck)/: Padncab etc. R. Co. v. 
Hoehl, 13 Busb (Ky.), 41; Louis- 
ville etc. Canal Co. t. Murphy, 9 
Bnsb (Ky.) 522. Jraryland; Frecli 
T. Pblla. etc R. Co.. 39 Hd. 674. 
See Irwin v. Sprlss, 6 QUI (Md.), 
200, 206; Baltimore t. Harriott, 
9 Hd. 160; Anne Arundel County 
Comre. v. Carr, 111 Md. 141, 73 Atl. 
668. Eantai: Kansas etc. R. Co. v. 
Pointer, 14 Kan. 37, 9 Kan. S20. 
Alabama.- Smoot y. Wetumpka, 24 
Ala. 112; Pullman Car Co. v. Ad- 
ams, 120 Ala. 681, 24 South. 921, 
74 Am. St Rep. 53. Minjteiota: 
Hoeum v. Wutherlck, 22 Minn. 152. 
New Jertev: New Jersey Express 
Co. v. Nichols, 32 N. J. L. 166, 33 
N. J. Ia 434; Dnrant v. Palmer, 29 
N. J. L. 644; Moore v. Central B. 
Co, 24 N. J. L. 268; ConsoL Trac- 
tion Co. ▼. Behr. 59 N. J. l^ 477. 37 
AtL 142. Oalltornia: Oay y. Winter, 
34 Cal. 163, 164; Robinson v. West- 
ern Pacific R. Co., 48 Cftl. 409. 426; 
MeQullken t. Central Pacific R. 
Co., 50 Cal. 7. New York: the rule 
■ seems not to be settled. Warner v. 
New York etc. R Co., 44 N. T. 465 
(reversing 45 Barb. (N. T.) 299; 
Beslegel t. New Tork etc. R. Co., 
14 Abb. Pr. (K. B.) 29; Curren t. 



Warren etc. Man. Co., 36 N. T. 163; 
Suydam v. Grand Street etc. R. Co.. 
41 Barb. (N. T.) 376; De Benedettl 
T. Mauchin, 1 HUt. (N. T.) 213; 
Burke T. Broadway etc. R. Co., 34 
How. Pr. (N. T.) 239; Holbrook v. 
Utica etc. R. Co.. 12 N. T. 236, 16 
Barb. (N. T.) 113; Spencer t. Utica 
etc R. Co., G Barb. (N. T.) 337; 
Ryan v. Hudson etc. R. Co., 1 Jones 
ft Sp. (N. T.) 137; Qtlleaple v. New- 
bui^, 54 N. Y. 468. 471. But see 
Johnson V, Hudson River R. Co., 20 
N. Y. 65, 6 Duer (N. Y.), 633, 6 
Duer (N. Y.), 21; Robinson r. New 
York etc. R. Co., 66 Barb. (N. Y.) 
146; Hackford T. New York etc. R. 
Co., 6 Lans. {N. Y.) 381, 43 How. 
Pr. (N. Y.) 222; Squire v. Central 
Park etc R Co., 4 Jones k Sp. (N. 
Y.) 436; and Button v. Hudson 
River a Co., 18 N. Y. 248. But 
see Whalen v. Citizens' Gas Light 
Co., 161 N. Y. 70, 46 N. E. 363. 
Vermont, OMo, Loaisiana, and 
Texas; Lester t. Plttsford, 7 Vt 
158; Bar1>er v. Essex, 27 Vt. 62; 
Hyde v. Jamaica, 27 Vt. 443; Hill v. 
New Haven. 37 Vt 601; Walker t. 
Westfleld, 39 Vt 248; Mooro v. 
Shreveport, 3 La Ann. 646; Bu- 
chanan T. City of N. O., lis La. 
699, 36 South. 303, 66 L. R. A. 334, 
104 Am. St. Hep. 466: Walker t. 
Herron, 22 Tei. 65, 61; Tex. A P. 
R. Co. T. Mayfleld, 23 Tex. Civ. App. 
416, 66 S. W. 942; Little Miami 
R. Co. V. Stevens, 20 Ohio, 416, 
417; Gleeson v. Brummer, 152 N. 
Y. 363. 47 N. E. 1107. Even, bow- 
ever. In those Jurisdictions where 
the burden la held to be on de- 
fendant, this does not require he 
do this by his own witnesses, if 
it otherwise may appear. Murray 
T. Missouri Pac R. Co., 101 Mo. 
236, 13 B. W. 217. 20 Am. St Rep. 
6vl. See also Dowell v. Guthrie, 
116 Mo. 646, 22 B. W. 893. And 
where the burden rests on plaint- 
iff, yet where the evidence of con- 



1262 PBOviNCE or ooubt and juey. 

§ 1680. Where an Unavoidable Inference of Oontribntoir Nej- 
Ugence arises oat of tlie Plaintiff's own Evidence. — It is appre- 
hended that, under either rule, where an nnavoidable inference of 
ecniribulory negligence arises out of the plaintiff's own evidence, 
or out of other evidence which stands undisputed in the case, the 
plaintiff must be either nonsuited, a demurrer to the evidence sus- 
tained, or 8 peremptory instruction given to find for the defend- 
ant, according to the form of practice in the particular jurisdic- 
tion.'* In Missouri, where, as above seen, contributory negligence 
is ordinarily regarded as a matter of extrinsic defense, to be 
pleaded and proved by the defendant, the rale under this head has 
been stated thus: "That it is not incumbent on the plaintiff in thu 
firBt instance to show that he was free from negligence, or in the 
exercise of ordinary care at the time of receiving the injury com- 
plained of, but that the concurring negligence of the plaintiff is a 
matter of defense, and the burden of showing it is therefore upon 
the defendant. If, however, it appears, vrithout any conflict of 
evidence, from the plaintiff's own case, or from the cross-examina- 
tion of his witnesses, that he was guilty of negligence approximately 
contributing to produce the injury, it would be the duty of tho 
court to take the case from the jury, by declaring, as a matter of 
law, thai the pluntiff cannot recover."" 

duct of the respectlTS parties ii New Tork etc. R. Co., S7 Barb. <N. 

conflicting, the court may refuse Y.) E28; Jalle v. Cardinal, 35 Wis. 

to direct a. verdict on tlie srouud 118, 1S9; Selgel y. EUbod, 41 Cal. 

that plalDtfff bas not sbawn him- 109; Park v. O'Brien, 83 Conn. 339; 

self tree from contributory negU- Kansas Pacific R. Co. v. Brady, 17 

gence. Orr r. Cedar Rapids ft M. Kan. 3E0; Brown t. European etc. 

0. Co.. 94 Iowa, 423, 62 N. W. 8B1. R. Oo., 58 Me. 384; Tofsten T. 

Practlttoners will consult local ju- Brooklyn Heights R. Co., 184 N. T. 

risdlcUon on this subject 14S, 76 N. E. 1035; Ho<ves t. At- 

gt Davis T. Detroit etc. R. Co., 20 cblson T. ft S. F. R. Co., 72 Kan. 

Mich. 105, 120; Flamming v. Weal- 432, 83 Pac. 987; Butterto v. Mlflain 

em Pacific R. Co., 49 Cal. 2G3; Mc- ft Linden MIn. Co., 133 Wis. 343. 

Quilken v. Central Pacific R. Co.. 50 113 N. W. 642. 
Cal. 7; Donaldson T. Milwaukee etc. ttBneschlng v. St. Louis Oas 

R. Co.. 21 Minn. 233; Brown v. Mil- Light Co., 73 Mo. 219. 229; Zlm- 

waukee etc. R. Co., 22 Minn. 165; merman v. Hannibal etc. R. Co., 71 

Callahan v. Warne. 40 Mo. 131; Mo. 476, 491; Stephens t. City of 

Norton v. Ittner, 56 Mo. 351; New Macon, 83 Mo. 345, 355. See also 

Jersey Express Co. v. Nichols. 32 Milburn v. Kansas City etc. R. Co., 

N. J. L. 166; affirmed 38 N. J. L. 86 Mo. 104; Forrester v. Metropol- 

434; Owen t. Hudson River R. Co.. Kan St. R. Co.. 116 Mo. App. 37, 

35 N. Y. 516; Curran t. Warren 91 S. W. 401. A statute ol North 

Man. Co., 36 N. T. 153; Mackey V. Carolina of like purport haa been 



IfEQLIQENCE. 



1263 



§ 16S1. ¥nieT« Um Evidsnce leaves the Facts or Inferencea in 
Doubt. — The grounds on which coui'tfi proceed in determitiitig 
whether the question of the contributory negligence of the plaintiif 
or person injured is to be decided by the judge or by the jury, is 
substantially the same as those on which they proceed in determin- 
ing whether the question of the negligence of the defendant is to 
be decided by the judge or the jury. It is said that, if the plain- 
tiff's evidence leaves the facts in doubt or only tends to prove them, 
tile evidence of contributory negligence on both sides should go to 
the jury.** Again, it is said that usually the question of contribu- 
tory negligence is a question of fact, to be left to a jury under 
suitable instructions."^ But there arc many cases where the facta 
are undoubted and unequivocal, and where the inference of care- 
lessness arising thereupon is one which all fair-minded persons 
would draw; in all which cases the court may decide it as a question 
of law." It has been further reasoned that contributory negligence 

beld to require, tbat In everr caee 
the question of plalntltrs tmntrlbu- 
tory negligence Is to be Bnbmltted 
to the JU17. Ruffin v. Atlantic ft N. 
C. R. Co., 142 N. C. 120, 65 N. B. 
86. As following state conBtnic- 
Uon, Bee U. S. L«atber Co. r. Howell, 
161 Fed. 444, 80 C. 0. A. 671. In In- 
diana the exigency of the statute Is 
stated to be, tbat wltbdrawal of 
tbe question of contrtbntory negli- 
gence is forbidden, except tbat the 
court mar tell tbe iiirj, that tbe 
evidence does not tend to establlBh 
same, wben Buch appears to be the 
case. IntHanapolls fit. R. Co. v. 
Comer, 39 Ind. App. 510, 80 N. H. 



K8. 

MPrldeauz v. Mineral Point, 43 
Wis. 613: Hon V. Hudson, 41 Wis. 
105; Dougherty v. West Superior 1. 
ft S. Co., 88 Wis. 343. 60 N. W. 274; 
Leonard t. Minneapolis St. P. ft B. 
S. H. R. Co., 63 Minn. 489, 65 N. W. 
1084; Keng v. Balto. ft 0. R. Co.. 
16D Pa. 644. 28 Atl. 940. 

•T Beers V. HouMtonlc R. Co., 18 
Conn. 570; Smith t. Union R. Co., 
61 Mo. 691; North American Res- 
tanrant ft O. House v. HcEUlgott, 
32T 111. 317, SI y. E. 388; Gardner 



T. WKterloo Cream Separator Co, 
134 Iowa, 6. Ill N. W. 316; Smith 
T. Rio Grande A W. R7. Co., 9 Utah, 
141, 33 Pac. 626. It should never 
be taken away from the Jury, un- 
less the caaa ds so clear, that a 
verdict against defendant would not 
be allowed to stand. Selttn v. 
Alaska Treadwell Gold MId. Co., 2 
Alaska, 8. It must be eubmltted 
unless plaintiff Is guilty of negli- 
gence per ae. Dethrage v. City of 
Rome, 126 Ga. 802, 64 B. E. 654. 
If the question depends apon auch 
a tblng for example as the Intelli- 
gence of a cbUd, this is a Jury 
question. United Breweries Co. v. 
O'Donnell, 221 III. 334, 77 N. B- 647. 
•Demnrrer to evidence" and "di- 
rected verdict," distinguished. See 
Link V. Jackson (Mo. App.), 139 S. 
W. 588. And see also, Lawlor v. 
Lowe. 187 Fed. 522. 

** Butterfleld v. Forrester, 11 
East, 60; Cornelius v. ApiJeton, 23 
WU. 635; Fox t. Glastonbury, 29 
Conn. 205; Chicago ft A. Ry, Co. v. 
(yUary, 126 111. App. 311. It can- 
not be said of one who. in an emer- 
gency of real or apparent danger, 
resorts tp an aIt«raaUve, In the 



1264 



PHOVINCE OP COUET AND JUBT. 



ia to be decided by the eourt as a question of law, when the facts 
are clearly settled, and the conrse which common pmdenee dictates 
can be readily discerned; bnt when the facta are doubtful, or when 
they are such that it is doubtful whether the act imputed to the 
plaintiff as negligence was such as a person of ordinary prudence 
would have performed, it is to be submitted to the jury, under in- 
structions from the court. If it is a question to be decided, upon 
admitted facts, whether a man of common prudence would have 
acted as the plaintiff did, and the common knowledge and ^peri- 
ence of men do not require the court to determine whether the plain- 
tiff's conduct was negligence, the question of contributory negli- 
gence is to he submitted to the jury under proper instructions.*" 



hope at escape, which costa )iim 
hlB life, when the situation torclag 
hltn, ctf)parentl7 to a choice, Is 
brought about tbrough the negli- 
gence of another, that he le guiltf, 
as a matter of law, of contributory 
negligence. See Illinois Steel Co. v. 
ZiemkowsM, 220 ill. 324. 77 N. B. 
190; Weaton v. Pennsylvania R. 
Co., U N. J. L. 434, GG Atl. 1013; 
Omaha Water Co. v, Schamel, 147 
Fed. 602. 78 C. C. A. 6S; Hull v. 
Transfer Co., 135 Mo. App. 119, 115 
8. W. 1064. 

■* Femandes t. Sacramento etc. 
H. Co., 53 Cttl. 45; Doyle t. Eschen, 
6 Cal. App. 55, S9 Pac. 836; Lynch 
V. Lynn Bos Co., 194 Mass. 307, SO 
N. E. 580; Gray t. Siegel-Cooper 
Co.. 187 N. T. 376, 80 N. E. 201; 
Pennsylvania R. Co. r. Mlddleton, 
57 N. J. L. 1G4, 31 Atl. 616, 51 Am. 
St. Rep. 597; Washington A G. R. 
Co. V. Tobrlner. 147 U. S. 571, 87 
L. Ed. 281. It has been ruled, that 
there Is no fixed standard In the 
law. by which a court can arbi- 
trarily say In all cases what coa- 
dnct shall be considered reasonable 
and prudent, or what sball consti- 
tute ordinary care, and the Jury are 
free to fix the standard for reason- 
able, prudent and careful men, 
under the clrcumstanc^es of the case, 
as they find them, according to their 
Judgment and experience of what 



that class of men do under such 
circumstances, and they are to test 
the conduct Involved In the Issues 
by that standard, a statement of a 
mle apparently m broad that it 
would seem an exception might 
rarely, If ever be found. See South- 
ern Ry. Co. v. Stntle, 144 Fed. 948. 
In New Jersey It Is said that It Is 
only vhen established beyond fair 
debate, that plaintiff waa negligent 
and that hie negligence contributed 
to the Injury, that the court will 
take the question from the Jury. 
Turner v. Hall. 74 N. J. L. 214, 64 
Atl. 1060. It It is at all an open 
question, It Is tor the Jury. Ull- 
nola Central R Co. T. Turner, 71 
Hiss. 402, 14 South. 550. That the 
evidence of contributor}' negHgence 
is strong Is not suSclent to take ttae 
question from the Jury. Masteraon 
V. Chicago R. I. ft P. R. Co., 49 Ho. 
App. 6. See also Weller t. Chi- 
cago M. « St. P. R. Co., 120 Ho. 
635. 23 8. W. 1061. It Is only when 
fair minded men could draw bnt 
one conclusion from the undm>oted 
facts, that this Is a question for 
the court. See Chicago B. ft Q. R. 
Co. V. Wymore. 40 Neb. 645. 68 N. 
W. 1120; Brlckson t. Twenty-third 
St. Ry. Co., 71 Hun. 108. 24 N. Y. 
8. 603; Russell v. Carolina Cent 
Ry. Co.. 118 N. C. 1098. 24 8. B. 
612; Stelnhofel v. Chicago U. ft 



NXQuaBNCS. 1265 

TlitiH, where a person, driviDg recklessly at nightfall, rode his horse 
against a pole put up in a street to obstruct the passage ; '" where 
a person attempted to cross a bridge across which a plank a foot in 
height had been fastened to indicate that the bridge was impass- 
able ; *' where a person attempted to pass over a causeway which 
was overflowed with water;'* — in these and many like cases, con- 
tributory ncgligciice haa been decl&red as matter of law, 

§ 1682. Where the PresnmptiOQ of Contributory Ke^ffence 
Arises upon Uncontradicted Testimony. — The rule of the fore- 
going cases rests upon the clearest principles; but there is more 
difficulty in upholding the rule which has been declared in one 
State, that it is the duty of the court to direct a verdict for the de- 
fendant, where the inference of contrihutory r.egligence neceasarily 
arises upon uncontradicted testimony in the case ; " since testimony 
may be uncontradicted, and yet the jury may be at liberty to dis- 
credit it. The general rule is that the credibility of witnesses ia 
for the jury. The question how far jurors are to be indulged in 
disbelieving testimony which is apparently credible and not sur- 
rounded with circumstances of suspicion, may be a difficult one; 
but it is believed that the sound rule is that, where the inference 
of contributory negligence necessarily arises upon such testimony, 
the court ought not to submit the case to the jury, because it would 
be bound to grant a new trial if they should find in disregard of 
the testimony.'* 

§ 1683. Where, notwithstanding the Contributory Negligence 
of the Plaintiff, the Defendant might have avoided the Injury 
by the Exercise of Reasonable Care. — It does not follow in all 

St P. Ry. Co., 93 WiB. 133, 65 N. " Butte rfleld v. Fmreflter, 11 

W. 853. Aa stated wltb a little Eut, 60, Z Tbamp. Neg. 1104. 

more emphaslB, If It ia poBsible to 'iCornellUB v. Appleton, 23 WIb. 

draw another inference, then the 635. 

Question Is for the Jury. Clark » Fox v. Glastonbury, 29 Conn. 

Thread Co. t. Bennett, 58 N. J. L. 205. 

404, 33 Atl. 404. Where the nature i* Maher t. Atlantic etc. R. Co., 

and attrlhutea of the act, relied on 64 Mo. 267. 275; Fletcher v. Atlan- 

to show contributory negligence, tic etc. R. Co., 64 Mo. 484, 488. See 

can only be determined correctly also Mlaeourl Pac. R. Co. t, Moaely, 

by oonaldering all the clrcumsUn- 57 Fed. 921, 6 C. C. A. 641; Apsey 

CCS of the tranaactlon, the Jury v. Detroit L. Jt N. H. Co., 83 Mich. 

must pass upon and characterize it 440, 47 N, W. 513; Chaffee v. Old 

BalUraore ft O. R. Co. T. St, 104 Colony R. Co,, 17 R. I. 658, 24 Atl. 

Ud. 76, 64 AU. 304. 641. 

t*Aute, I 1668. 



7crib;G00<^IC 



1266 



PBOVINCB OP COURT AND JUET. 



cases, even though an unavoidable inference of contributory negli- 
gence arises out of the plaintiff's evidence, that the case is nof to be 
submitted to the jury; since there is another rule, invented by the 
courts to mitigate the severe injustice of the earlier doctrine of 
contributory negligence, which is this: That, notwithstanding the 
plaintiff may have been negligent in exposing himself or his prop- 
erty to the injury which happened, yet if the defendant or his ser- 
vants saw the exposed situation of the person injured, or of the 
thing which received the injury, or (as some courts extend the rule) 
might, by the exercise of ordinary care, have seen it, in time tu 
have prevented the injury, by the exercise of the like care, but 
nevertheless proceeded n^Iigently forward and inflicted the in- 
jury, — the plaintiff will not be precluded from a recovery, but the 
question must go to the jury/* 

§ 1684. Whether Negligence to attempt to Alight from a Hot. 
ing Train. — Whetber it is negligence in a passenger to attempt to 
alight from a railway train while in motion is a question of fact 



TB DavleB T. Mann, 10 Moea. ft W. 
546, 6 Jur. 954, 12 L. J. (Excli.) 
10; 2 Thomp. Neg. 1106; Ostertag 
V. Paclflc R. Co., 64 Mo. 421; Bad- 
ley T. London etc R. Co., L. R. B 
EJxch. 71, 43 L. J. (Exch.) 73, 1 
App. Cos. 7G4 (reversing K R. 10 
Bxch. 100, 44 L. J. Bxch. 73, 33 L. 
T. (N. B.) 209); 2 Tbomp. Neg. HOB 
Tuff T. Warman. B C. B. (n. s.) 
573; Northern Central R. Co. v, 
Geis, 31 Md. 3E7; Northern Cent. R. 
Co. V. Price, 29 Md. 420; Hassa v, 
Junger, 15 Wis. 598; Scott v. Dub- 
lin etc. R, Co.. 11 Ir. Rep. C. L. (n. 
a.) 377; Donaldson V. Mlsslsaippl 
etc. R. Co., IS Iowa, 280, 283; Cum- 
mins T. Presley, 4 Harr. (Del.) 316. 
Contra, Pittsburgh v. Greer, 22 Pa. 
St 54; Atlantic etc. R. Co. v. Ayres, 
63 Ga. 12; Western R. Co. v. John- 
eon, 38 Ga. 409; Wblrley T. Wbtte- 
man, 1 Head (Tennl, «10; Nash- 
ville etc. R. Co. T. Carroll. 6 Helsk, 
(Tenn.) 367; SUlea v. Geeeey, 71 
Pa. St. 439; LoulavlUe A N. R. Co. 
v. Taylor, 31 Ky. Law Rep. 1142. 
104 S. W. 7T6; IlliuolB Cent R. Co. 



V. Ackerman, 114 Fed. 969; Bom t. 
Sibley, lie La. TS9, 41 Soutb. 93; 
Sltea V. Knott, 107 Mo. 684, » S. 
W. 206; Mann v. Missouri E. A T. 
R. Co., 123 Mo. App. 486, 100 S. W. 
666. This doctrine has been called 
"the humanitarian doctrine," aa see 
Missouri decisions, and in principle 
It proceeds on the theory of pun- 
ishing reckless disregard of lite, 
whether manllested by failure to 
avoid Injury from a discovered 
peril, when this can be done, or 
which could have been avoided un- 
less a culpable negligence In failing 
to discover It bad prevented. See 
Roenfelt v. St Louis ft S. R. Co., 
180 Mo. 554, 79 8. W. 706; Klocken- 
brlnh v. St Lonls ft M. R. Co., 173 
Mo. 678. 72 S. W. 900; Moore v. 
LIndell R. Co., 176 Mo. 628, 75 S. 
W. 672; Mats v. Ry. Co., 217 Mo. 
276, 117 3. W. 684. It is the last 
omission of duty contributing ap- 
proximately to the injury vbtch de- 
termines the llablUtr or non-lla- 
bllity for it Bensllk v. Transit 
Co.. 126 Mo. App. 121. 102 S. W. 687. 



Coo^^lc 



NEOLIGENCE, 



1267 



for the jury J* For stronger reasons, it is a qui^stion for the jury 
uhether a person is guilty of negligence in attempting to alight 
from a street railway car while in motion; and where this ia the 
only negligence which appears, it is error to direct a verdict for 
the defendant/* This doctrine has heen modified in Missouri, so 
as to hold that, if the party leaps from a train in rapid motion to 
avoid being carried beyond the stopping place, this is negligence." 



»• Waller t. H&nnlbal etc R. Co., 
S3 Mo. 60S; Doss t. Mo. etc. R. Co., 
69 Mo. 27, 37; Loyd v. HannllMl etc. 
R. Co., B3 Mo. 509. For an instruc- 
tion on this subject, see poet, 
1 1794; Lear7 r. Fitcbburg R. Co., 
173 Mass. S73, 63 N. E. S17; Trues- 
dell T. Erie R. Co.. 119 App. Dlv. 
371. 104 N. Y. S. 243; Turley v. At- 
lanU K- * N, Ry. Co.. 127 Ga. 694, 
56 S. B. 74S. S L. R. A. (K. 8.) 696; 
Louisville ft N. R. Co. v. Crunk, 
119 lod. 642, 21 N. E. 31, 12 Am. 
St. Rep. 443; AtchlBon T. ft S. F. 
R. Co. V. Hughes. 65 Kan. 491, 40 
Pac. 919; Unfon Pac. R. Co. v. Por- 
ter, 3S Neb. 226, 66 N. W. SOS. As 
contraiT boldlngs. see Whelan t. 
Georgia M. ft G. R. Co., 84 Ga. 606, 
10 S. E. 1091; Louisville N. A. ft C. 
R. Co. V. Johnaon, 44 111. App. 56; 
Louisville ft N. R. Co. t. Constan- 
tlne, 14 Ky. Law Rep. 432; New 
York L. E. ft W. R. Co. v. Encbee, 
137 Pa. 316. 17 Atl. 991. 14 Am. St. 
Rep. S4S, 4 L. R. A. 432. 

iiWyatt V. CtClzens R. Co.. 55 
Mo. 485; Omaha St. Ry. Co. t. 
Craig. 39 Neb. 601, 58 N. W. 209. 
A ratber curious ruling about step- 
ping from a moving car Is found 
from Texas, where the Injury re- 
sulted from the manner of stepping. 
1. e. straight out from the car In- 
stead oD at an acute angle vltb Its 
forward motion. The conrt held 
that, nnleea platntllt knew this was 
a dangerous method, he could not 
be held guilty of contributory neg- 
ligence, and thus we see that one 
la not presumed to be acquainted 



with a simple natural law, though 
his ignorance of human law may 
not be shown In hla excuse. See 
St. Louis ft S. W. R. Co. v. Bryant, 
46 Tex. Civ. App. 601, 103 S. W. 
237. 

"Nelson v. Atlantic etc. R. Co., 
68 Mo. 693; Price v. St Louis etc. 
R. Co., 72 Mo. 414, 418. Compare 
R. R. Co. r. Aspell, 23 Pa. St. 147; 
Abel r. 111. Cent R, R.. 59 111. 131; 
Chicago etc. R. Co. r. Randolph, 63 
HI. 610; Gavet v. R. Co., 16 Gray 
(Mass.). EOl; FUer v. New York 
Cent R. Co., 49 N. Y. 47. See also 
Ohio T. Metropolitan St Ry. Co., 
126 Mo. App. 710, 103 S. W. 142; 
Hunter v. Louleville A N, R. Co.. 
150 Ala. 594, 43 South. 802, 9 L. R. 
A. (M. s,) S48; Louisville ft N. R. 
Co. T. Wilson, 30 Ky. Law Rep. 
1055, 100 S. W. 390, S L. R: A. (s. 
B.) 1020; Farrell v. Great Northern 
Ry. Co., 100 Minn. 361, 111 N. W. 
388. 9 L. R. A. (n. 8.) 1113; Hoehn 
V. Chicago, P. ft St. L. R. Co., 152 
111. 233, 38 N. B. 649; Rothsteln v. 
Pennsylvania R. Co., 171 Pa 620, 33 
AU. 379; Brown v. Chicago M. ft 
St. P. E. Co.. 80 WlB. 162. 49 N. W. 
S07. Other acts constituting negli- 
gence ver se are protruding the 
arm beyond the outer edge of the 
car window. Georgia PaclQc Ry. 
Co. V. Underwood. 90 Ala. 49; 8 
South, lie. 24 Am. St. R. 766; 
Faure v. Louisville ft N. R. Co.. 91 
Ky. E41, 16 8. W. 370. Or head 
out of street car window so that It 
Is struck by electric light pole. 
Moore T. Edison Elec. Ilium. Co,. 

IC 



PfiOVINCE OF COUBT AJJD JUBT. 



$ 1686. Passenger Onilty of known Violation of Rules.— It has 
been held that, where the injury ariucs from a known violati(Hi of 
the rules of l^e carrier by the passenger, the question ii for tks 
court and there can be no recovery .'• 

§ 1686. Traveler failing to look and listen on approaching 
Rulway Crossing. — A mass of cases m^ be cited to the effect that 
a traveler who approaches a railway crossing and advances upon 
the track without looking or listening for an approaching train, 
is guilty of contributory negligence at a matter of law, and cannot 
recover damages from the railway company if he is hurt by a col- 
lision with the train," But even this principle is not universally 
adhered to. In Illinois it is said that "it is always a gwslion of 
fact, for the jury to determine from the evidence, whether the per- 

43 Lb. Ann. T9Z, 9 South. 463. Sit- 
ting upon ptfttform wUti kneefl ex- 
tending beyond the aide ol the car. 
Carries t. West Virginia Cent, k P. 
R. Co., 35 W. Va. 389, 14 S. B. 12. 
" Bait. etc. H. Co. t. WilkinBOn, 

80 Md. 224, 232; post, ! 1791; Soutb- 
ern R. Co. t. Chatman, 124 Qa. 102S, 
63 S. E. 692; Mleaourl K. A T. R. 
Co. V. Smith, 152 Fed. 608, 81 C. C. 
A. 5SS; McCaule? v. Tennessee Coal 
1. 1 B. Co., S3 Ala. 356, S South. 611. 

■0 Chicago etc. R. Co. v. Damerell, 

81 111. 4E0, 3 Cent L. J. 768; Rock- 
toTd etc. R. Co. T. Byam, 80 ni. 
62S; BellefonUIne etc. R. Co. y. 
Hunter. 33 Ind. 335; Allyn v. Boa- 
ton etc. R. Co., 106 Mass. 77; Morea 
V. Erie etc. E. Co.. 65 Barb. (N. Y.) 
490; Hartng v. New York etc. B. 
Co., 13 Barb. <N. T.) 9; Mitchell v. 
New York etc. R. Co., 2 Hun (N. 
y.). 636, 6 N. Y. S. C. (T. ft C) 1; 
Benton v. Central R. R., 42 Iowa, 
192; New Orleans etc, R. Co. v. 
Mitchell, 62 Miss. 808; Gorton t. 
Brie etc R. Co., 46 N. Y. 660; Rer- 
nolda T. New York etc. R. Co., 68 
N, T. 248, 2 N. Y. S. C. (T. ft C.) 
614; Cleveland etc R. Co. v. Etltot, 
28 Ohio St. 840; Railroad Co. v. 
Houaton, 95 U, S. 697, 6 Cent. I.-. J, 
132; Lake Shore e4c. R, Co, t. Sun- 



derland, 2 Bradw. (Dk) 307; 
Fletcher t. Atlantic etc R. Co., 64 
Mo. 484; Leduke v. St. LouIb etc. 
R. Co., 4 Mo. App. 485; Den Blak- 
er'B Executrix v. New Jeraer etc. R. 
Cq., 7 Reporter, 625; Oordell v. New 
York etc. R. Co., 19 Alb. L. J. 134; 
North Pennslrmnla R, Co. v. Helle- 
man, 49 Pa. St SO; Lalie Shore etc. 
R. Co. V. Miller, 26 Mich. 274. Case 
where there waa evidence aufflclent 
to take the qnestion to the Jury, 
where the action wu against & rail- 
way company to recover damages 
for an injury received at a road 
crosBlng: Byrne t. New York etc. 
R. Co.. 104 N. Y. 674, 10 N. E. 539; 
amrmlng 36 Hun (N. Y.), 647; on 
former appeal, S3 N. Y. 620; post, 
SE 1800 et seq.; Sims v. St Lonla ft 
S. R. Co., 116 Mo. App. 5T2, 92 S. 
W, 909; Kenna v, Alebanu, ft V. R. 
Co., 87 Mlas. 6G2, 40 South. 426; 
Hoffman t. Pennsylvania R. Co. 
216 Pa. 62, 64 Atl. 331; HcLeod v. 
Craven, 73 Fed, 627, 19 C. C. A. 
616; Jensen v. Michigan Cent R. 
Co., 102 Mich. 176. 60 N. W, 67; 
Seefeld v. Chlrago M. ft St P. R. 
Co.. 70 Wis. 216, 86 N. W. 278, 6 
Am. St. Rep. 168; Ellis v. Lake 
Shore ft H. S, R. Co., 18S Pa. 606. 
21 AU. 140, 21 Am. St Rep. 914. 



Goo^^lc 



MBQUQENCl, 



Bon injured has ext>rcised proper caro and cantion in crossing a 
railroad track, and not a question of law. It was the province of 
the jury to determine whether the plaintiff waa gailty of negli- 
gence."" In the same jurisdicticm it is further said: "It is un- 
doubtedly the duty of a person approaching a place of danger to 
do so eautioosly, and with due and proper care for his safety, and 
the law requires that he should exercise such care as ordinarily 
prudent and cautions men would observe under tiie circumstancei 
stuTounding hiin. But the degree of care he is required to exer< 
cise cannot be formulated as a rule of conduct; far it is manifest 
that the conduct of ordinarily caations and prudent men would 
vary as the circumstances presented might be varied." ** And it is 
to be borne in mind that auch a ease is an apt one for the operation 
of the principle already stated, " that, although the traveler may 
negligently expose himself in such a situation, yet if the servants 
of the railway company in charge of the train either saw, or might, 
by the exercise of reasonable care, have seen him in his exposed 
ntuation, — ^he will not be precluded fay his contributory negligence 
from recovering damages, but there will be a ease to go to the jur^'. 



•' P«nns7lTaDla R. Go. v. Fraaa, 
112 111. 405; Chicago etc. B. Co. v. 
Hutchinson, 120 111. GS7.~ 11 N. B. 
865; Toledo P. ft W. R. Co. t. Ham- 
mett. 220 HI. 9, 77 N. E. 72; Long t. 
MiBBOurl P&c. R. Co., 116 Mo. App. 
489, 91 S. W. 1012; Hopson v. Kan- 
Baa City H. A B. R. Co., S7 Mln. TBS, 
40 South. 872; Illlnola Cent R. Co. 
v. Johnson, 221 01. 42, 77 N. E. 592. 
It has beea held, that the approadi- 
Ing traveller ta bound only to the 
ezerclse ot ordlnarr care, and where 
unial signals ot a traJa running 
through a town are not given, Mi- 
nn on his part to look and listen 
until So near a track as to occupy 
a place ot danger so as to constitute 
an enaergency, leaves hla attempt 
to croBB the track a question tor 
tbe Jury. Louisville A N. R. Co. v. 
Taylor. 31 Ky. Law Rep. 1142, 104 
8. W. 776. So It haa been held in 
the case of an accident, resulting 
In death, and n^ one witnessed Its 
occurrence, and the evidence being 
conflicting as to whether signals 



were glyen, that the matter la for 
the Jury. See Kraemer v. Perklo- 
men R. Co., 214 Pa. 219, 63 Atl. 
697; Intomational ft a. N. R. Co. t. 
Edwards, 100 Tex. 22. 93 S. W, 106. 

»3 Chicago etc. R. Co. v. Hutcbln- 
Bon, supra. Courts will eay whether 
the time, manner and place ot look- 
ing Is sufficient to prevent the 
necessary Inference of negligence 
per le and. It other inference may 
be drawn, there arlaea a questloo 
for the Jury, See Hlnken v. Iowa 
Gent R. Co., 97 Iowa, 608, 66 N. W. 
8!I2; Jobe v. Memphis ft C. R. Co., 
71 MiBS. 734, IB South. 129; Shutelt 
T. Flint ft P. M. R. Co., 96 Mich. 327, 
E6 N. W. 10J3; Kelaay v. Mlseourl 
Pac. R. Co.. 129 Mo. 362, 30 S. W. 
339. This principle Is carried, pos- 
sibly, to a greater length In Penn- 
Bylvanla than elsewhere. See Derk 
V. Northern Cent. R. Co., 164 Pa. 
243, 30 AU. 231; Plummer v. New 
York C. ft H. R. R. Co., 168 Pa. 62, 
31 Atl. 887. 

Bt Ante. 1 1S83. 



7crib;G00l^lC 



1270 



PROVINCE OF CODET AND JUET. 



§ 1687. In the Case of Injuries to Children.— (a.) General Ob- 
BervatlODS. — ^A doctrine formerly obtained in some courts of this 
country called imputed vcgligence, under the operation of which, 
if & child, of such tender age as not to be capable of caring for its 
own safety, was negligently espoaed to danger by its parent or 
guardian and injured, the negligence of the parent or guardian 
would be imputed to the child, and the child could not recover dam- 
ages for the injury.'* This rule, though approved at one time in 
several American jurisdictions," has been denied in others," and 
seems fast going by the board. Notwithstanding this rule, if it 
can be shown that the child, at the time of the injury, was gui jurit, 
capable of caring for its own safety, the parents are justified in 
allowing it a certain degree of freedom of action, and it is then in- 
cumbent upon it to exercise care for its own protection, but only 
such care as can reasonably be expected of a child of its maturity 
and capaci^'.'^ la view of this rule two questions arise: 1. At 



"A type of the cases thue hold- 
ing Is H&rtfield r. Roper, 21 Wend. 
N. Y. 815, 2 Ttomp. Neg. 1121: 
M^nKam v. Brooklyn R. Co., 3S N. 
Y. 45E, 469; Walte v. Northeaatern 
R. Co., El., Bl. k El 719 (&f- 
flrmed In Excbequer Chamber, Bl., 
BL A Bl. 728). Levlna v. Met. St 
Ry. Co., 177 N. T. 623. 69 N. B. 
1126; Cotter v. Lynn t B. R. Co., 
180 MasB. 146, 61 N. E. SIS. 91 Am. 
St Rep. 667. And not only of 
rarent or guardian but also of & 
mere caretaker or person in charge. 
Thus where & child three years of 
age was left In charge of her elder 
slater, the sister leaving her tor a 
little while, she waa killed by & 
street car. It was aald that the 
negligence of the older child was 
Imputable to the younger, but the 
parents were not barred of their 
recovery, aa the older cbild was of 
a competent age to care for the 
younger. Jooat v. Brooklyn Heights 
E. Co.. 113 App. Dlv. 49fl. 99 N. Y. 
S. 409. 

8.12 Tbomp. Neg 1184, } 33. and 
pases rtted- Well v. Dry Dock E. 
B. ft B. R, Co., 119 N. Y. 147, 23 



N. E. 487; Collins r. South Boston 
R. Co.. 142 Mass. 801, 7 N. E. 866, 
66 Am. R. 405. 

»«Id. 1185, et seq; post, i 1728. 
Herrington v. City of Macon, 125 
Ca. 58. 64 S. E. 71; Roaenkrantz v. 
Linden R. Co., 108 Mo. 9. 18 S. W. 
890, 32 Am. St Rep. 5SB; Mataon 
V. Minn, ft N. W. R. Co., 95 Minn. 
477, 104 N. W. 443, 70 L. R. A. 603. 
Ill Am. St. Rep. 4S3. 

■T Lynch T. Nurdln, 1 Q. B. 29. 
4 Per. ft Dav. 672; 2 Thomp. Neg. 
1140; Railroad Co. v. QIadmon, 16 
Wall. (U. S.) 401; Railroad Co. v. 
Stout, 17 Wall. (U. S.) 667; Balti- 
more etc. R. Co. V. Fryer, 30 Md. 47; 
St T. Baltimore etc. R. Co.. 24 Md. 
84; Baltimore etc, R. Co, v, McDon- 
nell, 43 Md. 534 ; McMahon v. N6rth- 
em Cent R. Co.. 39 Md. 438; East 
Saginaw City R. Co. v. Bohn, 27 Mich. 
503. 514; Robinson V. Cone, 22 Vt. 
213; 2 Thomp. Neg., p. 1129; BIrge 
V. Gardiner, 19 Conn. 507; Bronson 
T. Southbury, 37 Conn. 199; Ranch 
V. Lloyd, 31 Pa. St 358; Smith v. 
O'Connor, 48 Pa. St 218; Pennsyl- 
vania R. Co. V. Kelly, 31 Pa. St 372; 
Oakland R. Co. v. Fielding, 4S Pa 



KEQLiaENCB. 



1271 



what age or period of a child 's development shall it be held sui juris 
for the purpose of the decision of cases of this kindt 3. Whether 
this is a question of law or of fact. Where the age of the child ad- 
mits of DO doubt as to its capacity to avoid danger, the court will 
decide this question as a matter of law. Th\is, it has been held, as a 
matter of law, that a child three yeai-s and seven months old is not 
tut juris;** and likewise in the case of children of the age of two 
years," one year and five months,"" two years and four months," 
two years and nine months," three years,** under five years,** five 



St 320; Howrey v. Central Park R. 
Co., 51 N. Y. 667; Coatello T. Syra- 
cuse etc R. Co., G5 Barb. N. Y. 92; 
Pendrlll v. Second Ave. R. Co., 2 
Jouea ft Sp. (N. Y. Snp.) 481; Man- 
gam V. Brooklyn R, Co., 38 N. T, 
461; Thurber v. Harlem etc R. Co., 
60 N. Y. 326; O'Mara v. Hudson etc 
R. Co.. 38 N. Y. 445; Sheridan v. 
Brooklyn etc R. Co., 36 N. Y. 39; 
PalloQ V, Central Park R. Co., 61 
N, Y. 13; Casey r. New York etc 
R. Co.. 6 Abb. N. C. (N. Y.) 104; 
Reynolds v. New York etc R. Co., 
ES N. Y. 248; McQovem v. New 
York etc R, Co., 67 N. Y. 417; Maker 
V. Central Park R. Co.. 67 N. Y. 53; 
Ilnycrott v. Lake Store etc R. Co.. 
2 Hun (N. Y.), 489; Pblladelphla 
etc R. Co. V. Spearen, 47 Pa. St. 
300. 304; Plttsburgk etc R. Co. v. 
Caldwell, 74 Pa. St. 431; Brown v. 
European etc. R. Co., 68 Me. 3S4; 
Paducab etc R. Co. v. Hoehl. 12 
Busb. (Ky.) 41; Lawler v. North- 
ampton Qaa Co., 2 Allen (Maaa.), 
307; Lyncb v. Smith, 104 Masa. 53; 
Mullieaa V. CurtlH. 100 Mass. 512; 
McMillan v. Burlington etc R. Co., 
46 Iowa. 231; Chicago etc R. Co. v. 
Becker, 76 111. 25, 84 111. 4S3; Welck 
T. Lander, 75 111. 93; Kerr v. 
Forgue. 64 111. 482; Chicago etc R. 
Co. V. Murray. 71 111. 601; Chicago 
etc R. Co. v. StumpB, 69 III. 409; 
Toledo etc. R. Co. v. Miller. 76 111. 
27S; Boland v. Missouri etc R. Co.. 
36 Mo. 4S4; Kemplnger v. St. Louis 



etc R. Co.. S Mo. App. 5S1; Coleman 
V. Southeastern R. Co., 4 Hurl, ft 
Colt 699; Ewen v. Chicago etc. R. 
Co.. 38 Wis. 613. Contra. Honegs- 
berger v. Second Ave. R, Co., 1 
Keyes (N. Y.), 570, 33 How. Pr. (N. 
Y.) 195; 2 Abb. App. Dec (N. Y.) 
378 (reverBlng 1 Daly (N. Y.), 89); 
Burke V. Broadway etc. R. Co., 19 
Barb. (N. Y.) 529, and Squire v. 
Central Park R. Co.. 4 Jones ft Sp. 
(N. Y. Super.) 436, ore not the law; 
poBt, S 1733; Consol. Trac. Co. v, 
Scott, 58 N. J. L. 682, S4 Atl. 1094. 
65 Am. St Rep. 620. 33 L. R. A. 122; 
L^fferty v. Third Ave. R. Co., 176 
N. T. 594. 68 N. E. 1118, 85 App. 
Dlv. 592. 

MMangan v. Brooklyn R. Co., 38 
N. Y. 455. 36 Barb. (N. Y.) 330; 
Pink V. City of Des Molnee, 115 
Iowa. 601, 89 N. W. 28. 

8»Hartfleld v. Roper. 21 Wend. 
(N. Y.) 615; Wright v. Maiden etc. 
R. Co.. 4 Allen (Mass.), 283; In- 
dianapoltB St. L. R. Co. v. Borden- 
ohecker, 23 Ind. App. 138. 70 N. E. 
995. 

»o Krleg V. Welle, 1 E. D. Smith, 
78. 

*> Callahan v. Bean, 9 Allen 
(Mass.). 401; Toledo etc R. Co. v. 
Grable. 88 111. 441. 

»BvanBvllIe etc. R. Co. v. Wolf, 
B9 Ind. 89; OTlaherty v. Union R. 
Co.. 45 Mo. 70. 

*» Mascbeck v. St Loula R. Co., 
3 Mo. App. 600. 



7crib;G00<^IC 



1272 



PBOVINCE OF COURT AKD JUHT. 



yeare," four yeara,** nearly four years.** six years,** and it would 
seem, in the case of a child seven years of age,** For the same rea- 
son, a boy nearly eleven years old, aetive and intelligent, has been 
pronounced by conrt not incap'able of taking care of himself upon 
the street; ' and so of a boy thirteen years of age.* In Downs v. 
New York etc. Railroad Company* the plaintiff, an infant twelve 
years of age, traveling with his mother upon the defendant's cars, 
being unable to find a seat in the car with her, by permissiiHi, went 
into another, and there remained until the train reached a station. 
In attempting to leave the car and return to Ms mother, he received 
an injury. The court held, that it was not negligence per m for 
the mother to permit him to go from one car to another, under the 
circumstances. If there is any doubt of the child being of the age 
and capacity' that in law constitutes one svi juris, it should be sub- 
mitted to the jury, to say by their verdict whether he is ao or not. 
Such was held to be the proper course in the ease of a child betwe^i 
six and seven years,* ten years,* eight years,* nearly seven years,* 
six years,* five and one-half years,' five years,'" and four years and 
seven months old." Similarly, courts have refused to declare it 
negligence, as a matter of law, to send out a child two years and 
»« Lafayette «tc. R. Co. v. Huff- 661, SB N. B. 887: Stone v. Dry 
man, E8 Ind. 289. Pock B. B. ft B. Ry. Co., HE N. Y. 



II JeSeraonvUle etc B. Co. v. 
Bowen, 40 Ind. MS. 49 Ind. 1E4; 
McGariT v. Loomls, 63 N. Y. 104; 
Plttetmrgb etc. Co. v. Caldwell, 74 
Pa. St. 421. 

>* Lehman v. Brooklyn, 29 Barb. 
(N. T.) 234; Nmth Pennsylvania 
R. Co. V. Uaboney. 67 Fa. St. 137. 

»' McLaln V. Van Zaadt, 7 Jones 
ft Sp. 347; Cbambera v. Miller 
Coal Co., 143 Ala. 265, 89 Sonth. 170. 

»s Chicago T. Starr's Administra- 
tor, 42 111. 174; Meeks v. Southern 
Pac. R. Co., 62 CbI. 603. 

••Pittsburgh etc. H. Co. v. VI- 
ulng'B Administrator, 27 Ind. 613. 

I HcMabon v. New York. 33 N. 
Y. 642, 647. See also Nagle v. Al- 
legbeny etc R. Co. (Sup. Ct. Pa. 
1879). B W. N. G 610, 8 Cent L. J. 
307. 

> A<^t«nbagen v. Watertown, 18 
Wis. 321. See also Louisville N. A. 
ft C R. Co. T. Sears, 11 Ind. App. 



104, 21 N. B. 713; Central R. ft Bkg. 
Co. V. Ryles, 87 Oa. 491, 18 & B. 
584, 13 L. R. A. 834. 

»47 N. Y. 83. 

* Honegsberger r. Second Avenue 
R. Co., 1 Keyee (N. Y.), 670. 33 
How. Pr. 196, 8 Abb. App. Dec 378; 
Chambers v. Hlller Coal Co., 148 
Ala. 255, 39 South. 170. 

■Lovett T. Salem etc R. Co., 9 
Allen (Mass.), 567; Kair v. Parks, 
40 Cal. 188. BuBcher v. N. T. Tr. 
Co., 99 N. T. Supp. 673, 114 App. 
Dlv. 86. 

■ Drew T. Sixth Avenue R. Co., 
36 N. Y. 49. 

roidfield V. Harlem R. Co., 14 
N. Y. 310. 8 B. D. Smith, 103. 

■ CoBgrove v. Ogden, 49 N. Y. 226. 

■ Barksdull v. New Orleans etc 
R. Co., 28 lA. Ann. 180. 

1* Karr v. Parks, 40 Cal. 188. 
n Lynch v. Smith, 104 Uass. 68; 
St. Paul V. Kuby, 8 Minn. 164. 



e^'^ 



NBQUQBNCB. 



1278 



eight months old, under the care of auotlier eight years of age ; *' 
one three and oDe-half years old in company with another nine 
year* of age ;" one a little over three years old in company with 
another between nine and ten ; ** <me four years and five months 
old in company with another twelve years and six months; " and 
one BIX years of age in company with another of ten," Much, how- 
ever, in the foregoing cases depends upon the character of the place 
where tiie cihild is permitted to be, — whether a busy or an unfre- 
quented street, or whether other circumstances of danger are or- 
dinarily present." When the age of the child is such that he is 
close upon the dividing Ime between that class of children whom 
the court will pronounce non nti jvrts and that which is rel^iated 
to the decision of the jury, and the question relates to the negli- 
gence of his parents in suffering him to go at large unattended, it 
is not surprising to find testimony that the child is one of more than 
ordinary intelligence and activity,** or possessed of discretion in ad- 
vance of his years and size.** 

S 1688. (b.) Can r«4aired of the Otutodlan of the OhUd.— The 
care which the parents or custodians of children are obliged to talie 
of them, in order to enable them to recover damages for a hurt re- 
ceived while in such custody where the doctrine of imputed negli- 



» VFlahertT v. Untra B. Co., 46 
HO. TO. 

oHnlligan v. Curtis, 100 Hasa. 
613. 

" Ihl T. Fort7-aecond Street B, 
Co., 47 N. Y. 817. 

"Bast Saginaw City R. Co. v. 
Bobn, S7 Hleh. G03; Ebrmann t. 
Nassau Blec. Co., 4S N. Y. Supp. 
379, Z3 App. DiT. 21. 

i« Chicago etc R. Co. v. Becker, 
7« III. 2&, 84 111. 483. 

II Karr v. Parks, 40 Cal. 18S; Cbl' 
cago etc. B. Co. v. Starr's Admlnls- 
ttator, 42 III. 174; Pitteborgh etc 
R. Co. T. VlntDg'S Admlnlatrator, 
27 Ind. 613. 

'•Oldfleld V. Harlem B. Co., 14 
N. Y. 310 ; BarkadnU v. New Orleans 
etc. R. Co., 23 La. Ann. 180. 

uLrnch V. Smith, 104 Mass. GS. 
At what age not Incapable of con- 
tributory negligence as matter of 



law, see Brldger t. AahviUe etc. R, 
Co.. 27 S. C 43S, 3 S. B. 860. Con- 
verBeljr it may be thought, that, 
when there Is a question, of the 
child, who Is tut Juris, being barred 
of bla actloo because of contrlbutorr 
negligence, as to which there Is a 
question for the jury, generally evi- 
dence might show him possessed of 
len than ordlnarr Intelligence and 
capacity, and of less discretion than 
children of hts age and site usually 
have. Fm cases where the child's 
responsibility in this regard was 
left to the Jnry, see Sailer t. Fried- 
man Bros. Shoe Co., 130 Mo. App. 
712, 109 S. W. 794; Savannah F. A 
W. B. Co. V. Smith, 93 Ga. 742, 21 
S. E. 157; ODlchard v. New, 84 Hun, 
G4, 81 N. Y. S. 1080; Cock v. Hous- 
ton Direct Nav. Co., 76 Tez. 3S3, 
13 S. W. 476, 18 Am. St Rap. 52. 



7,:rb;G00l^lc 



PBOVINCB OF OODBT AND JUBT. 



gence, which renders the child responsible for the negligence of 
the parent or other custodian, prevails, is, in general, a qaesti<Ni for 
the juiy.** 

{ 1689. niuBtratiVfl Oaaes where Neglijrence Declared as Mat- 
ter of Iaw. — Examples of contributory negligence aa a matter of 
law may be found in the act of persons walking upon railw^ tracks 
without taking adequate precaations to discover approaching 
trains;*' crawling under or through railway cars, while stopped 
temporarily upon the track ; " riding upon the platform of a rail- 
way passenger car; *• riding with the arm or a portion of the body 
protruding from window of railway car;*' leaping from a train of 



i» MaDgam r. Brooklyn etc. R. Co., 
38 N. y. 155; Kay v. PennaylvanU 
R. Co., 66 Pa. St. 269; Phila. etc. 
R. Co. V. Long, 76 Pa. St. 267; Pitta- 
bureh etc. R. Co. t. Pearson, 72 Pa. 
St. 169; Crarlen v. McGllocliy, 88 
Me. 552. Compare Hfde v. Scyaeor, 
Cro. Jac. 63S; 3 Bla. Comm. 140; 
Brockbaok v. Whitehaven etc R. 
Co., 7 Hurl. & N. 834; Whltcomb v. 
Barre, 87 Vt. 148; Laughlln v, 
EatOD, 64 Me. 166; Kavanaugh v. 
JaneHTllle. 24 Wis. 618; Smith v. 
St. Joseph, 66 Uo. 466; McKlnney 
v. Western Stage Co., 4 Iowa, 420; 
Rogers v. Smith, IT Ind. 323; Long 
V. Morrison, 11 Ind. 696; Southern 
R. Co. v. Obatman, 124 Qa. 1026, 63 
S. E. 693. 

*■ Carroll v. Minnesota etc. R. Co., 
13 Minn. 930; Green v. Erie R. Co., 
11 Hun (N. Y.), 833; Herring v. 
Wilmington etc. R. Co., 10 Ired. (N. 
C.) 402; Kenyon v. New York etc. 
R. Co., 5 Hun (N. Y.). 479; Donald- 
son V. Milwaukee etc. R. Co., 21 
Minn. 293. See also Elwood t. New 
York etc. R. Ca, 4 Hun (N. Y.), 
808; Ocnialea v. New York etc. R. 
Co.. 60 How. Pr. (N. Y.) 126; Poole 
V. North Carolina etc. R. Co., 8 
Jones U (N. C.) 340; IlllnolB etc. 
R. Co. V. Hall, 72 111. 222; Illinois 
etc. R. Co. T. Hetherlngton, 83 HI. 
CIO; Harlan v. St Louis etc. R. Co., 



U Mo. 480, 2 Tbomp. Neg. 439; 
Carlln v, Chicago etc R. Co., 3T 
Iowa, 316; Morpby T. Chicago etc. 
R. Co., 46 Iowa, 661, 38 Iowa, 639; 
Lalcber v. New Orleans R. Co., 28 
La. Ann. 320; Bancroft v. Boston 
etc. R. Co.. 11 Allen (Maas.}, 34, 
97 Mass. 275; Mlchlgaji etc R. Co. 
V. Campau, 34 Mich. 463; Carroll v. 
Minnesota etc R. Co., 13 Minn. 30; 
Donaldson v. Milwaukee etc R. Co., 
21 Minn. 293; Lake Shore etc R. Co. 
V. Hart, 87 III. 629; Rothe r. Mil- 
waukee etc. R. Co., 21 Wis. 266; 
O'Donnell v. Missouri etc. R, Co., 
8 Cent. L. J. 414; Morgan v. Nash- 
ville etc R. Co., 58 Tenn. 379; Phil- 
adelphia etc R. Co. V. Speoren. 47 
Fa. St 300; post. E 1803. 

t! Ostertag v. Pacific etc R. Co.. 
64 Mo. 421; Central etc. R. Co. v. 
Dl£On, 42 Ga. 327; Chicago etc. R. 
Co. V. Dewey, 26 III. 265; Chicago 
etc. R. Co. V. CosB. 73 111. 394; Oa- 
hagan v. Boston etc R. Co.. I Allen 
(Mass.), 187, 7 Cent L. J. 107; 
StlllBon T. Hannibal etc. R. Co., S7 
Mo. 671; McMahon v. Northern etc. 
R. Co., 39 Md. 438; Lewis v. Balti- 
more etc. R. Co., 38 Md. ess. 

" Hickey v. Boston etc R. Co., 14 
Alien (Mass.). 29; Qulnn v. lUlnols 
etc. R. Co., 61 III. 49B. 

:« Todd V. Old Colony etc R. Co.. 
3 Allen (Mass.), IS. 7 Allen (Mau.), 



Coo^^lc 



MEOLIQENCE. 



1275 



cars while the SBine is in motion," or laadiog at a place obviously 
DOt desigued for the reception of passengers. In all these casea, 
onlesB there are special circumstances tending to exonerate the 
plaintiff from the imputation of eontributoiy negligence, the qnes- 
tiou is to be decided by the court, and not by the jury. 

§ 1690. PreBomption of Negligence in the Oaae of Injuries to 
Pasaens^ers: General Role. — It is a general rule, in actinis fw 
damages against carriers of passengers, that, where the injury ia 
shown to have proceeded from something under the control of the 
carrier, whether it relate to the character of vehicle or other means 
of transporation, or to the conduct of his servanta, and where it is 
not conclusively shown to have proceeded from some accidental 
source beyond his control, a presumption arises that he has been 
negligent in tiie discharge of the high degree of care which the law 
imposes upon him.** 



207; PltUburgh etc R. Co. v. An- 
drews, 39 Md. 329; IndlanapoJlB etc 
R. Co. V. Rutherford, 29 Ind. 32; 
Horel T. Mlselfislppt Ins. Co., 4 Busb 
(Ky.), 636; Pltteburgh etc R. Co. 
T. HcClurg. 66 Pa. St. 294; LouIb- 
vtlle etc R. Co. v. Slcklngs, 6 Busb 
(Ky.), 1; Holbrook v, Utlea etc R. 
Co., 12 N. T. 236. Contra, however, 
Spencer v. Milwaukee etc. R. Co., 
17 Wis. 487: Chicago etc R. Co. v. 
Pondrom, El III. 333; Wintere v. 
Haonlbal etc R. Co., 39 Mo. 488; 
Barton v. St LonlB etc. R. Co., 63 
Mo. 253; post, t 1TS3. 

u Railroad Co. v. Aspell, 23 Pa. 
St 147; JefferaonvlUe etc R. Co. T. 
Hendrlck'a Administrator, 26 lod. 
228; HorrlBOn T. Erie R. Co., 53 
N. y. 302; BurrowB v. Brie R, Co., 

63 N. Y. 5E6: Damont v. New Or- 
leana etc R. Co., 9 La. Ann. 441; 
Dougherty v. Chtc^o etc. R, Co., 
S6 ni. 467; Qavett r. Manchester 
etc R Co.. 16 Gray (Maaa.), 501; 
LncBB V. New Bedford etc. R. Co., 
< Qray (Haas.), 64; QIddoq v. New 
York etc R. Co., 3 Robt (N. Y.) 
25; IIIlnolB etc R. Co. v. Slatton. 

64 ill. 139: Ohio etc R. Co. v. 



Bcblebe, 44 Rl. 460; Ohio etc R. Co. 
T. Stratton, 7S III. 88, 3 Cent L. J. 
416; post, i 1794. 

IB Bowen v. New York etc, R. Co., 
18 N. Y. 408; Christie v. OrigES, 2 
Camp. 79, Thomp. Carr. Pass. 181; 
Baltimore etc R. Co. v. Wlghtman, 
29 Gratt (Va.) 431, 444; Great 
WeBtem R. Co. v. Braid, 1 Moo. P. 
C. C. 101, 9 Jur. (N. a.) 339, 11 
Week. Rep. 444; Carpus v. London 
etc. R. Co„ G Q. B. 749, per Lord 
Denham, C. J., at nisi print; Skin- 
ner V. London etc. R. Co., G Ezcb. 
786; Meier v. Pennsylvania R. Co., 
64 Pa. St. 226; Laing v. Colder, 8 
Pa. St 479, 483, per Bell, J.; Sul- 
ItTsn V. Philadelphia etc. R. Co., 30 
Pa. St 234, 239; Parish v. Relgle, 
11 Gratt (Va.) 697; Wllkle v. Bol- 
ster, 3 E. D. Smith (N. Y.}, 327; 
Stokes T. Saltonstall, 13 Pet (U. 
S.) 181, Thomp. Carr. Pass., p. 183; 
Railroad Co. v. Pollard, 22 Wall, 
(U. S.) 341; Holbrook v. Utica etc 
R. Co., 18 Barb. (N. Y.) 113 (af- 
firmed 12 N. Y. 236) ; Toledo etc R. 
Co. V. BeggB, 86 III. 80; Pittsburgh 
etc. R. Co. V. Thompson, 66 111. 138; 
McKinaey v. Nell, 1 McLean (U. S.). 



Goo^^lc 



1276 



PEOVINCB OP COUBT AND JUEY. 



% 1691. Facts from which this Presnmption arises. — This pre- 
Bumptjou arises in cases where it is shown, without more, that the 
injury to the passenger occurred in eonsequenoe of the defendant's 
stage breaking down," or overtiiming ; ** or of the horse hitched 
to his omnibus kicking through the front panel of the vehicle ; ** or 
of the horses starting up while the passenger was alighting ; ** or 



UO; Stockton t. Frer, i QUI (Md.). 
406; Palrchlld t. Calltornla SUge 
Co., 13 CaL 599; Ware v. Qajt U 
Pick. (Hasa.) 106; Yonge t. Klnnoj, 
2S Qa. Ill; Brebm T. Gr«at Western 
R. Co., Zt Barb. (N. T.) 256; CurUi 
T. Kocheater etc. H. Co., IS N. Y. 
534; Tbomp. Curr. Psbb., p. ISB; 
Q&lena etc E. Co. v. Yarwood, 15 
111. 46S, 17 HI. 609; McLean T. Bur- 
bank, 11 Mian. STT; Sawyor v. Han- 
nibal etc. R. Co., ST Mo. 240, 260'; 
poBt, ( 1776; Keban r. Washington 
Rr. £ E. Co., 28 App. D. C. lOS; 
Bgan T. Old Colony R Co., 196 Maw. 
169, SO N. E. 696; Steele v. R. Co., 
56 S. C. 3S9, 38 S. H. 609; St Loula 
ft a F. R. Co. T. Bnrrows, 62 Kan. 
89, 61 Pac 439. Tbls applies also to 
street railway and elevator car pas- 
sengers. Foerat T. KfllBO, 131 Cal. 
876, 68 Pac 681; Bndd ▼. Carriage 
Co., 25 Ore. 314, 86 Paix 660, 27 
L. R. A. 279; Grlffln t. Manlce, 166 
N. T. 188, 59 N. B. 926. The rule U 
not conflnod to iniurles to passen- 
gers, but it applies vbererer cli^ 
cumstances impose a duty of special 
care, having no application where 
an Injured party and an alleged 
wrongdoer are In the exercise of 
an equal right and each chargeable 
as to care In the same war — for 
example, travellers on a highway. 
Saner t. Eagle Brewing Co., 3 Cal. 
App. 127, 84 Pac 425. The mie tn- 
Btanced by the author Is well diatln- 
guished in a case from Pennsyl- 
vania, where a passenger was killed 
In a railway accident, cauEed by a 
boulder becoming detached from a 



hillBlde and falling on the train. 
It was said that prima facte the ac- 
cident was disconnected with the 
appliances and operation Of the 
road, and, therefore, did not embrace 
the principle of res Ipsa loquitur. 
Fleming t. Pittsburg C. C. ft St L. 
R. Co., 1G8 Pa. 130, 27 AU. 868, 38 
Am. St Rep. 836, 2! U E. A. 3S1. 
See also Bradley t. PL Wayne ft B. 
Ry. Co., 94 Mich. 36, 63 N. W. 916. 

IT Christie t. Orlggs, 8 Camp. 79, 
Thomp. Carr. Pass. 181; Ware v. 
Oar, 11 Pick. (Masa) 106. 

la FariBh v. Reigle, 11 Gratt (Va.) 
697; Stokes v. Saltonstall, 13 Pet. 
(U. S.) 181. Thomp. Carr. Pass. 
183; McKInney ▼. Neil, 1 McLean 
(U. S.), 640; Stockton v. Frey, 4 
QUI (Md.], 406; Falrchlld t. Cali- 
fornia Stage Co., IS Cal. 699; Bush 
V. Burnett, 96 Cal. 202, 31 Pac. 2; 
Anderson t. Scholey, 114 Ind. 663, 
17 N. B. 12S. 

IB Slmson v. London etc^ Omulbns 
Co., L. R. 8 C. P. 890, 42 L. J. {C. 
P.) 112, 21 Week. Rsp. 696, 28 
L. T. (H. 8.) 660. 

•0 Roberta t. Johnson, G8 N. T. 
618 (affirming S Jones ft Sp. 167), 
Or car starting onddenly. Miller 
■r. Metropolitan St Ry. Co., 126 Mo. 
App. 414, I<»2 a W. 692; Kansas 
City Street R. Co. t. Davis (Ark.), 
103 S. W. 603; Birmingham Union 
Ry. Co. V. Hale, 90 Ala. 8, 8 South. 
142, 24 Am. St Rep. 748; Lavla v. 
WlsconBln Cent R. Co., 64 111. App. 
S36. So a sudden stopping may be 
prima faeU proof of negligence, 
where It causes | 



1 Goo^^lc 



NEQLIQENCB. 



1277 



of the embankment of a railway giving way; '* or of a railway train 
numing off the tradk,'* or colliding with another train," or with 
an object projecting from a car of a train coming in the opposite 
direction upon another track of the defendant ; ** or by a r^lway 
car breaking down ; ** or by the exploraon of a steam -boiler on the 
carrier's vessel," or by some nnknown object striking the car in- 
jnring the passenger," or by the passenger being thrown down 
while standing in the car in conseqnence of its being violently 
struck by another car in switching." In these and many other like 
cases, the mere fact that the accident happened under .the circum- 
stances named, creates a presumption of negligence against the car- 
rier which he must overcome by evidence on his part, or he must 
suffer a judgment for damages.** 



Clow T. PtttabnrKli Tractlim Co., 
158 Pa. 410. 27 AU. lOM. 

*i Great Weatem R. Co. T. Braid, 
1 Moo. P. C. C. (IT. B.) 101, 9 Jur. 
(K. a) 339. 11 Week. R«p. 444; 
Brehm v. Great Western R. Co., 14 
Barb. (N. T.) 256. Contra. Withers 
V. North Kent E. Co., 27 L. J. 
(EAccb.) 417; nlBl prios, sub nom. 
Kent T. Great Northern R. Co., 1 
Fost A Fin. 165. 

■I Carpue t. London etc. B. Ca, 
fi Q. B. 749, per Lord Denham, C. J., 
at nlfll piiua; SulllTan v. Philadel- 
phia etc R. Co., 30 Pa. St 234; 
PittAbnrgh etc R. Co. v. Thompgoa, 
K m. 138, 4 Ch. Leg. N. 9; Yonge 
V. KInne7. 28 Oa. Ill; Edgerton v. 
New York etc R. Co., 85 Barb. (N. 
T.) 3S9: Zemp y. Wilmington etc 
R. Co., 9 Rich. L. 84; Dawson v. 
Hanchester etc. R. Co.. 7 Hurl, ft N. 
1037. Contra, Bird v. Great North- 
ern R Co., 28 L. J. (Exch.) 3; 
(roara t. Transit Co., 204 Ho. 724, 
103 B. W. 64; Alabama Q. S. R. Co. 
r. Hill, 93 Ala. 614, 9 South. 722; 
Rio Grande W. R. Co. r. Kabensteln, 
6 Colo. App. 121, 38 Pac 78; Speh- 
nBD V. Lincoln Rap. Transit Co., 36 
Neb. 890, 65 N. W. 270, 20 L. R. A. 



•* Skinner v. London etc R. Co., 
S BIzch. 786, a Bng. Law ft Bq. 860, 
16 Jar. 299; New Orleans etc R. Co. 
T. Allbrltton, 38 Hlas. 242, 274; 
Hunt V. Metropolitan St R. Co., 126 
Mo. App. 79, 103 S. W. 10S8; Slmone 
V. Rhode Island Co., 23 R. I. 186, 66 
AtL 202, 9 L. R. A. (K. a) 740. So 
with cattle on track, where railroad 
Is required to fence right of way. 
Louisville N. A. ft L. R. Co. T. Hend- 
rlckB, 128 Ind. 462, 28 N. E. 68. 
Where freight train carrlee pasBen- 
ger caboose, bumping cars against 
It may constitute negligence. 
Georgia Pacific R. Co. v. Love, 91 
Ala. 432, 8 South. 714, 34 Am. St 
Rep. 927. 

** Walker t. Erie R. Co., 63 Barb. 
CN. Y.) 260. 

u Meier T. Pennsylvania R. Co., 
64 Pa. St 225; Toledo etc. R. Co. v. 
Beggs, 86 III. 80. 

te Caldwell t. New Jersey Steam- 
boat Co., 47 N. Y. 282. 293. 

■THolbrook v. Utiea etc. R. Co., 
16 Barb. (N. T.) 113 (affirmed 12 
N. Y. 236). 

u Railroad C^>. t. Pollard, 22 Wall. 
(U. S.) 341. 

»See further on this subject 
Thomp. Carr. Pass. 209 et >eq. 



Goo^^lc 



1278 PEOVINCB OF COURT AND JUHT, 

§ 1692. VChcllier this Presumption has been repelled. — 
Wbetber the defeDdant has succeeded in showing a state of facts 
which repels this presumption, is a question for the jury.*" 

§ 1693. Instances of other Questiots for the Jury. — In actions 
of this kind, the following matters have also been held questions 
for the jury : Whether a railway comjiany has been guilty of negli- 
gence in not ascertaining the utility of the latest improvements 
which have been devised for the protection of passengers, and in 
not adopting them;*' whether the act which occasioned the injury 
was willful and malicious, in such a sense as to be beyond the scope 
of the servant's authority, or wiiethcr it was mistakenly conceived 
to be a necessary use of force to effti^t a removal of the passenger 
from the train;" and whether a passenger, injured while standing 
on the platform of a railway passenger eoacJi, knew that it waa a 
prohibited place, and, if so, whether under the circumstances bis act 
so contributed to the injury as to exonerate the carrier.** 

g 1694. In the Relation of Master and Servant: Who are Fel- 
low-Servants in a Oommon EmploTment. — According to a well- 
known rule of law, in force in most American jurisdictions, a ser- 
vant who receives a hurt in consequence of the negligence of a fel- 
low-servant, engaged in the same common employment with him, 
cannot recover damages of the master. The rule of respondeat 
superior does not apply to such a case. In an action by a servant 
against his master for damages arising from the negligence of n 
person whose relatioo to the plaintiff depends upon a state of 
facts which is ttot disptitcd, the question whether or not such per- 
son was a fellow-servant of the plaintiff, within the meaning of 
this rule, is a question of law for the court;** but if the facts are 

MSulltvBn V, Pbitadelpbla R. Co., « Hegeman v. Western R. Corp., 

30 Pa. at 234; Brehm v. Great 13 N. Y. 9. Thomp. Carr. Pass. 160; 

WcBtern R. Co., 34 Barb. (N. Y.) post. H 1777, 1779. 1780. 

256; pcBt, i 1776; Oalveston H. A ^^JacheoD v. Second Ave. R. Co.. 

St J. Ry. Co. V. Garrett. 44 Tei. Civ. 47 N. Y. 274; post. SB 1784, 1785. 

App. 406, 9S S. W. 932; Illinois Cent 1TS6, 

R. Co. V. Sandusky, 14 Kj. Law *» Zemp v. Wllmtngton etc. R. Co.. 

Hep. 767. Being met by uncon- 9 RIcb. L. (S. C.) 84. 

tradlcted testimony may atlli leave " Marsball v. Scbrlcker, S3 Mo. 

the credibility of witnesses as a 202; McGowan v. St Louis etc. R. 

question ol fact Lander v. Cur- Co., 61 Mo. 528, 532; Cook v. Han- 

rier, 3 Cal. App. 28, 84 Pac. 217. n'.bai etc. R. Co., G3 Mo. 397; Wba- 



Coo^^lc 



NEQUQENCB. 



1279 



disputed, the law governing those relations should be declared, 
upon the alternatives presented by the testimony.** If a servant 
is injured by the breaking of a rope Tised in hoisting goods, in con- 
sequence of the neglect of a fellow-servant, who knew of the de- 
fective condition of the rope, to supply a new one, in accordance 
with a duty which the master has imposed upon him, the questi(m 
whether the fellow-servant acted as a fellow-aervaut merely, or as 
a representative of the master, is a question of law, and it is error 
t« submit it to a jury. What the servant was employed to do is a 
question of fact; the ci^acity in which he did it is tm inference of 
law. In auch a case, where there is any question as to the facts, 
they should be left to the jury, with instructions as to the legal 
inferences to be drawn from the facts which should be found. But 
where the facts are not disputed, the question is one of pure law, 
and the error of submitting it to the jury will require a new trial, 
unless the jury decide it correctly.'* On the other hand, in an 
action against a railway company to recover damages for negligence 
resulting in the death of a section foreman, who had charge and 
oversight of repairs upon a certain part of the defendant's road- 
way, it has been held error to instruct the jury that such foreman 
was not engaged in the same line of duty with an engineer and 

Brooklyn Lead MIn. Co., 4 Utah, 
460, 11 Pac. S12; St. havla ft S. F. 
Ry. Co. T, Weaver, S5 Kan. 412, 11 
Pac. 40S; Rodgerg v. Central Pac. R. 
Co., 67 Cal. 607, 8 Pac 877: Han- 
tUbal ft St J. R. Co. V. Fox, 31 Kan. 
ESS, 3 Pac. 320; Wilson v. Denver, 
S. P. « P. R. Co., 7 Colo. 101, 2 Pac 
1; Brown v. Atchison, T. ft 8. F. R. 
Co., 31 Kan. 1. 1 Pac SOE; ault, G. 
A B. F. Ry. Co. v. Redeker, 67 Tex. 
ISO, 2 S. W. E27; BogenBCbuti 
v. Smith, 84 Ky. 330. 1 S. W. 578; 
Illinois Steel Co. v. Zlemkowalcl, 
220 lU. 324, 77 N. E. 190; BriBbocti 
V. Plilladelpbla H. ft P. R. Co., 169 
Pa. 592, 32 AU. ESS; St Louis A. ft 
T. R. Co. V. Lemon. 83 Tex. 143, 18 
8. W. 331. 

^•Jobntoa v. Boston Tow-boat 
Co., 135 Mass. 209; O'Leary v. War- 
baab B. Ca, 63 111. A^- 64t 



len T. Centennary, 62 Ho. 326; Com- 
pare Potter V. Cblcaco etc. R. Co., 
46 Iowa, 399; Phlppln v. MlsBOurl 
Pac. R. Co., 196 Mo. 321. 93 S. W. 
410; Grsndin v. Southern Pac Co., 
30 Utah, 360, SB Pac. 367; Wemona 
Coal Co. ▼. HolmqulBt, 162 III. ESI, 
3S N. K 946: Tbelman v. Moeller, 
73 Iowa, lOS, 34 N. W. 766, 6 Am. 
St Rep. 663. 

4>Hanhall v. Schrlcker. supra. 
Duty of master to provide reason' 
ably safe working place and ma- 
chinery for servant: Armour v. 
Hahn, 4 Sup. Ct Rep. <U. a) 433; 
CoUyer v. Pennsylvania R. Co., 49 
N. J. L. 69, « Atl. 437; Campbell v. 
Pennsylvania R. Co. (Pa.), 2 AtL 
489 (not reported in state reports] ; 
PittBbursb C. ft St L. By. Co. v. 
Adams, lOE Ind. 151. B N. E. 187; 
Smith V. Peninsular Car-works, 60 
Mich. 501, 27 N. W. 662; Trihay v. 



D.qitizeabyG00<^lc 



1280 



PBOVINCE OF COnST AND JUBY. 



fireijan running with the defendant's locomotive engine, and there- 
fore not within the rule which exempts the common employer from 
liability to one of bis employees for damages resulting from the 
negligence of a fellow^flervant, "Whether such persons were so 
t>perating or consociating, is a question of fact for the jury, and not 
a question of law for the court.*' It is said that "the definition of 
fellow-aervant may be a question of law ; but it is always a question 
of fact, to be determined from the eridenee, whether the particular 
case falls within the definition."** 



§ 1696. Whether the Servant knew that the Danger was Extra 
Hazardous. — One who contracts to perform labor, or render ser- 
vices for another, takes upon himself those risks, and only those, 
which are usually incident to the employment engaged in. "Where 
the master places one employee under the control and direction of 
another, and the latter, in the exercise of the authority so conferred, 
orders the former into a place of unusual danger and thus exposes 
him to extraordinary peril, of the existcDCe and extent of which hi; 
is not advised, the emloyer is liable. In such a case it is a question 
of fact for the jury, whether, under the circumstances shown by the 
evidence, the servant knew, ae in the exercise of ordinary care and 
prudence might have known, that the danger was extraordinary." 



f CblcaEo etc. R. Co. v. Momndft, 
108 111. G77; IndlanapollB etc R. Co. 
V. Morgenstem, IDG 111. 21G. TbuB 
whether a foreman, wbo directed 
one of the men to tamp earth In a 
trench dug for a gas main, was fel- 
low-servant Johnson t. St. Paul 
Gas L. Co.. 98 Minn. 512, lOS N. W. 
816. 

« Indianapolis etc. R. Co. v. iior- 
eenstem, supra; Chicago etc R. Co. 
V. Moranda, supra. 

» Thompson v. Chicago etc. R. 
Co., 14 Fed. 664; Anderson v. North- 
ern Pac. R. Co., 34 Mont. 181, 8G 
Pac 884; Snyer v. New York ft N. J. 
Tel. Co., 73 N. J. L. 535, 64 Atl. 122; 
Sllva T. Davis, 191 Mass. 7, 77 N. B. 
626; Bonner v. Wbltcomb. 80 Tex. 
178, IE S. W. 879; Wagner v. Jaynes 
Chem, Co., 147 Pa. 476, 23 Atl. 772, 
SO Am. St Rep. 46. Case where. 



on the evidence, it was held that 
there was room for the Jury 
to find that the eervant, when he 
entered upon the service, did not 
know or appreciate the risk attend- 
ing the work upon which be bad en- 
tered, and that in the exercise of 
due care he was not, as matter of 
law, iMuad to know or appreciate 
the same: Ferren v. Old Colony R. 
Co., 6 N. B. 608. The court cite: 
Haley v. Case, 143 Mass. S16, 7 
N. E. 877; Russell v. TUoteon, 
140 Mass. 201, 4 N. B. 231; 
Taylor v. Carew Manf. Co., 140 
MasB. 160, S N. E. Zl; Leary v. Bos- 
ton A A. R. Co., 139 Maaa 580, 
8 N. E. 115; Lawless v. Connecticut 
R. R. Co., 136 Mass. 1; post, j 1739; 
Anderson t. Northern Pac, R Co., 
supra; Williams v. Sleepy Hollow 
Mln. Co., 37 Colo. 62, 86 Pac 837; 



Coo^^lc 



NBGUGENCa. 12S1 

The doctrine of assumption of risk is very closely allied to that of 
contributory negligence, and also it cannot be clearly understood, 
in its narrower meaning, without keeping in mind the duty of the 
master toward the servant, of furnishing him a safe place to work 
and safe appliances and tools with which to work, neither duty being 
more than that he sball exercise care towards doing this, and not 
guaranteeing that he will, in the sense that he insurea safety in re- 
spect to place or appliances. The assumption rests upon the pre- 
sumption, that the master has complied with his duty so far as 
reasonable prudence and foresight could enable bim so to do. 
Whether he has or not may often be a question of fact, for if 
he has not his default estops bim from ui^ing against the servant 
assumption of risk. 

g 1696. In the Oase of InJurleB to Ohildren from Dangerous 
Premises; Whether, nnder Oircnmstances, the Defendfuit owed 
a duty to the Plaintiff. — In Pennsylvania it has been said that cir- 
conistances may beget duties which, under ordinary circumstances 
cannot be implied, and that, when such circumstances are shown to 
exist, the question arising therefrom is not for Uie court, but for 
the jury.'" Accordingly, where a child entered the defendant's 
premisea, without even an implied permission, and through a gate 
which had been bat casually left open, it was held that, as the cc»n- 
pany maintained so dangerous a trap, in a place near to a highway, 
where children were wont to congregate for their own amusement, 
the jury musi determine, in view of oil the circumstances, whether 
it was bound to provide against a contingency such as that which 
happened." The same rule was applied where a child was injured 
on the defendant's premises by the falling of a privy wall, in a 
ease where the child was permisaively upon the premises.'* 

St. Louis ft B. F. H. Co. v. Burgess, on thla subject, but which does not 

72 Kan. 454. S3 Pac. 791. appear to differentiate a child from 

M Hydraulic Works Co. v. Orr, Sa an adult, anT more than those cited 

Pa. St. 332; BchlUIng t. Abemathy, by our author appear to, Ii that 

112 Pa. St 437, 442. Of Hablna v. Twin City Oen. Elec 

"Hydraulic Works Co. r. Orr, Co., IGO Mich. 41, lis N. W. 6SG, and 

aupra. the authorities are dlacusaed aa to 

*3 Schilling V. Abemathy, supra, what extent a quaal-publlc use of 

See Oreen r. Chicago etc R. Co., premises Interferes with reasonable 

110 Mich. 648, 61 N. W. 988; Rear- use In the conduct of a business, 

don T. Thompeon, 149 Mass. 267, 21 The facts show a ditch had been 

N. E. 369. A very instructive case recently dug for the conveying away 
TaiALB— 81 



Coo»^lc 



PBOVINCE OF COURT AND JUBT. 



S 1697. Qaestions of Art and Skill: Generally for tiie Jury.— • 
The judge will not instruct the jury upon questions relating to a 
partiealar art, as to which he could not give an opinion witiioul 
consulting a person skilled in such i-istters." The reason of this 
ia very plain. Such questions involve matters of fact, which are 
generally proved by the testimony of persons expert in the particu- 
lar art or science, and, being matters of fact, not of law, they are 
to be passed upon by the jury." Thus, it is a questirai for a jury 
whether a municipal corporation used due care and fikill in con- 
stmcting a sewer.'' 

S 1698. Malpractice of a Physiciim and Sni^eon. — Heasoning 
obiter, to the conclusion that such a question must ordinarily be 
one of fact, Mr. Justice Taunton said: "Take the ease of an action 
against a surgeon, for negligence in the treatment of his patient. 
What law can there possibly be in the questicm, whether such and 
such conduct amounts to uegl^ence t That must be determined en- 
tirely by the jury,"" 

of bot water from defendant's plant 
In tbe day time this was not a 
menace and resort liad been prin- 
cipally during the day by people, 
who wanted bot water from th« 
premlees, an uninclosed square In 
a. city. Plaintiff, a child, was on 
this lot at night. The ditch was 
reasonably necessary and only dark- 
nesH concealed the danger. No re- 
covery was allowed. The question 
of attractive lures to children has 
created a well-defined line of deci- 
sion, and the cases considering the 
origin of tie cases or their fre- 
quency, aa related to a particular 
kind of machinery, have been called 
"Turntable cases." The principle 
they announce Is, that the ten- 
dency tn a child to be attracted to 
dangerous machiaery must be taken 
notice of and provided against, or 
for Injnrr from auch machinery, 
left exposed to a cblld following 
the disposition of a child, the owner 
or person having charge of such 
machinery will Incur liability. See 
l,ake Brie ft W. R. Cki. v. Kllnkrath, 



327 in. <39, 81 N. B. 877; O'Uary 
». Michigan St Tel. Co., 1*6 Mich. 
243, 109 N. W. 430: McAllBt«r v. 
Seattle Brewing ft MalUng Co., 44 
Wash. 179, 87 Fac 68. 

HHowland v. Marine Ins, Co., 2 
Cranch C. C. (U. S.) 474. 

•*SiIverthom v. Fowle, 4 Jones 
L. (N. C.) 862. 

•> McClure v. Red Wing, 28 Minn. 
186, 9 N. W. 767. Or whether the 
manager of a manufacturing plant 
exercised proper skill In preparing 
the material tor a finished product 
AJpaugh V. Wood, E3 N. J. L. 638, 
23 AU. S61. 

la Doorman v. Jenkins, E Ad. ft 
El. 261. For a case where It was 
held error, under the peculiar cir- 
cumstances, to submit to the Jury 
the question what was proper for 
an orcftllect to do, see Vlgeant v. 
Scully, 20 Bradw. (III.) 437; Van- 
hoover V. Berghoff, 90 Mo. 487, 3 S. 
W. 72; Grlawold v. Hutchinson, 47 
Neb. 727. 66 N. W. 819; Link v. 
Sheldon, 132 N. Y. 1, 32 N. B. 696. 



D.qitizeabyG00<^lc 



NEGLIQENCE. 1283 

§ 1699. Questions relatiiig to J^agai Practice.— "In some 
cases," says the late Judge Taylor, "where the question relates to 
matters of legal practice, as, for instance, if a sheriS be chai^^ 
with neglect of duty in not executing a writ, or if a solicitor be sued 
for negligence in conducting an action, — the judges would seem to 
be more competent than a jury to decide whether the facts proved 
amount to a want of reasonable care ; but even in such cases it seems 
that the province of the judge is merely to inform the jury for 
what species or degree of negligence the defendant is answerable, 
and what duty in the particular case devolved upon him, either by 
the statute or common law, or the practice of the court; and then, 
having done this, he will leave the jury to consider the circum- 
stances in evidence, and to decide, fimt, whether the defendant has 
performed his duty ; and next, whether, in case of non-performance, 
the neglect was of that sort or degree which waa venial or culpable, 
in the sense of not sustaining or sustaining an action."" 

g 1700. Nejfljfence by an Attoni«y. — The early English cases 
laid down the rule that an attorney was liable only for gross negli- 
gence, called by the judges crassa negligeniia or lata ctdpa." But 
why ordinary bailees or agents should be liable tor ordinary negli- 
gence, and a member of the legal profession should be excused from 
liability except for gross negligence, was never satisfactorily shown, 
and the real rea8(Hi must be ascribed to the partiality of the judges 
for members of their own profession. In a later case, it was laid 
down by Baron Alderson, in charging a jury, that the question to be 
considered was whether the attorney had used "reasonable skill and 
reasonable care," and, under the facte in evidence, he left it for 
them to decide the question.'^ While this question has been de- 
cided as a question of law upon established facts,'" yet it has been 
the more common practice in England to submit it, as a question of 
fact, to the jury, under the judge's direction as to the law. This 
was done where the question was whether an attorney had been 
negligent in not complying with the practice of the court.*^ So, 
where an attorney for the plaintiff suffered the cause to be called 

(T Tarl. Bt. (Sth Bng. ed.) f 37. m Qodefroy v. Dalton, 6 Blng. 460; 

«« Balkle T. ChandlesB, 3 Camp. King v. Fourchr. 17 I^ Ann. S54, 16 
19, per Lord EUenborough; Qode- Soutb. S14; Wain v. Beaver, 161 Pa. 
froy T. Dalton, 6 Blng. 460, 468. 467, HOS, 29 Atl. 114. 
per Tlndal, C. J. " Hunter v. Caldwell, ID Ad. ft 

» Sbllcock T, Fassmon, 7 Car. A El. (n. b.) 69. 
P. 289. 



7crib;G00l^lC 

A 



1281 PBOVINOK 07 COXIBT AND JUKT. 

for trial, without previon^y ascertaimng whether a material w!t- 
Qess, whom the plaintifE had undertaken to bring into court, bad 
arrived, in consequence of which the plaintiff was nonsuited, — it 
was held, in an acticm against him by his client, grounded upon 
negligence, that it was properly left to the JTIT7 to say whether he 
had used reasonable care in conducting the cause; and the jury hav- 
ing found that he had not, the court refused to disturb the ver- 
dict.** On the other band, it was ruled, as matter of law, that the 
conduct of an attorney who had charge of the defense of the plain- 
tiff's action, in not producing the proper evidence of the entry of a 
judgment, whereby his client was nonsuited, was not actionable 
negligence." The court proceeded upon the ground that what 
had been Aoae might be attributable to an error of judgment 
mere^, not involving a want of professional skill. Tindal, C. J., 
aaid: "^t would be extremely difBcuIt to define the exact limit by 
which the skill and diligence which an attorney undertakes to fur- 
nish in the conduct of a cause is bounded ; or to trace precisely the 
dividing line between that reasonable skill and diligence which i^- 
. pears to satisfy his undertaking and that crassa negligentia or lata 
culpa, mentioned in some of the cases, for which he is undoubtedly 
responsible. The cases, however, which have been cited and com- 
mented oa at the bar,** appear to establish, in general, that he is 
liable for the consequences of ignorance or non-observance of the 
rules of practice of this court ; for the want of care in the prepara- 
tion of the cause for trial, or of attendance thereon with his wit- 
nesses ; and for the mismanagement of so much of the conduct of a 
cause as is usually and ordinarily allotted to his department of the 
profession ; whilst, on the other hand, he is not answerable for error 
in judgment upon points of new occurrence, or of nice or doubtful 
construction, or of such as are usually entrusted to men in the 
higher branch of the profession of the law,"** 

; 1701. Whether Work Is dons In a "Worbmanlilce Hao- 

ner." — What constitutes the doing of work in a plain, substantial 
workmanlike manner is a question exclusively for the jury. 

MReeca v. Rlshr, 4 Bam. A Aid. cited 3 Camp. 19; Balkl« v. Cand- 

EOa. leoB, 3 Camp. 19. 

MOodefror T. Dalton, C Bins. •* Godetro7 v. Dalton, fl Bios. 460, 

460. 467; Horriioii v. Burnett, 66 111. 

■* These were: Pitt v, Talden, 4 App. 129; Babbitt T. Bnmpue, 73 

Burr. 2060; ComptoD T, Candless, Mich. 331, 41 N. W. 417, 16 Am. St 
Bep. GSe. 



7crib;G00<^IC 



MBQLIOENOB. l^S 

"Where, in an actjoo apon a building contract, it appeared by the 
terms of the contract that the work waa to be done "in a plain, 
substantial and workmanlike manner, ' ' and it was pleaded as a de- 
fense that it was not so done, it was held error for the court to give, 
at the plaintiff's request, the following inatmetion: "By the plain- 
tiff's undertaking to do defendant a plain, Bubstantial and work- 
manlike job, he did not undertake to do a perfect one; and in de- 
termining the fact as to whether it was, when finished, a plain, 
Bubstantial and workmanlike job, they can consider the material 
to be usfld, the kind of work to be done, as well as aJI other circum- 
stances in the ease." "This instruction," said Wagner, J., "is 
certainly wrong, What amounted to doing the work in a plain, 
substantial and workmanlike manner, was a question exclusively for 
the jury. But the instruction undertakes to withdraw the ques- 
tion from the jury, and, as a matter of law, define what the terms 
mean, and, as we think, it gives an entirely incorrect definition. 
To do a thing in a plain, substantial and workmanlike manner, 
would imply that it should be perfectly done for the character of 
the job contemplated. Surely au imperfect execution of the work, 
as the instmction implies, wonld not be a performance of the con- 
tract. Had the question been left where it properly belonged, ex- 
clusively to the determination of the jury, this error would have 
been avoided. As it is, the instruction was erroneous, and it was 
well calculated and had a direct tendency to mislead, and the judg- 
ment must be reversed." " 

S 1702. Oood Husbandry, — The question whether good hus- 
bandry requires the whole of the hay raised upon a farm to be fed 
out upon it, is a qvettion of fact for the juiy.** 

§ 1703. Bailment: Can required of a Bailee.— Thia will ordi- 
narily be, in like manner, a question for a jury, and the mere fact 
that a gratuitous bailee loses his own money, under like circum- 
Btances, will not necessarily relieve him from the imputation of 
gross negligence, or take the question from the jury.** Thus, 
whether an agister has been negligent in the care of the animal 

MSmlUi T. Gl&rk, 68 Mo. 1<6; Co., 188 Pa. 646, 21 AU. S31, 31 Am. 

Colclough T. Carpeles, 89 Wli. 239, St Rep. .919. 

81 N. W. 836; Murpliy T. SUckley- wwing v. Gray, 86 Vt 261, 266. 

SImmonds Co., 82 Hon, 158, 31 N. •* Doorman t. Jenklna, 2 Ad. A 

Y. S. 296; Holmes v. Ghartlers OU El. 266; poet, } 1S32, et seq. 



Goo^^lc 



1286 PBOTINCB OP COURT AND JURY. 

placed in bis otiarge, is ordinarily a question of fact."* In assump- 
Bit against a bailee, it was proved that the defendant, a coffee-house- 
keeper, having custody of money without reward, lost it, and 
stated that he had unfortiuiatcly pat it, with a latter sum of money 
belonging to himself, into his cash-bo:;, which was kept in his tap- 
room; that the tap-room had a bar in it, and was open oa Sun- 
day, but that the rest of bis house, which was inhabited, was not 
open on Sunday ; and that the cash-box, with bis own and the plain- 
tilf 'a money, bad been stolen on that day. It was held, under these 
facts, that it was properly left to the jury to say whether or not 
the defendant had been guilty of gross negligence, that being the 
degree of negligence required to charge a gratuitous bailee, and also 
to tell them that the loss of the deft^ndant's own money did not 
necessarily prove that he had taken such care of the plaintiff's 
money as a reasonable man would ordinarily take of his own.'" 

g 1704. Negli^fence in an A^ent. — The same may be said in re- 
spect of the question of gross negligence or bad faith in an agent, 
in failing to discharge a commission entriLsted to him by his prin- 
cipal; this must ordinarily be a question of fact for a jury." The 
question has, however, in some cases been decided as a question of 
law. Thus, where a person gratuitously undertook for another to 
make an entry in the custom house, and made it in a wrong name, 
it was held that there was no evidence to support a vei-dict for the 
plaintiff, and a new trial was ordered.'* 

S 1706. Negligence of Hanicipal Corporation in respect of Ita 
HighwayE. — In such cases, as in other cases where the right of re- 
covery is predicated upon the defendant's negligence, the question 

«> Kemp V. Phillips. 55 Vt. 69. " Btatells v. Blackburna, 1 H. Bl. 

)» Daorman v. Jenkins, 2 Ad. A IGS. TIi« authority of this case, If 

El. 2&C. Where either of two In- tt la an autborlti', for the proposl- 

ferences might be drawn, that Is, tlon that such a question is to be 

whether the bailment was general decided by the judge, is more than 

or Bpeclal, bailee not being liable doubtful. In the Bubsequent case 

under the former, It Is a question of of Doorman ▼. Jenkins, 2 Ad. ft El. 

fact, Citroen v. Adam, 63 Hun, G29, 266, 262 et seq., It was distinguished 

6 N. Y. S. 669. by each of the Judges, and was not 

11 Moore v. Morgue, Cowp. 479; regarded aa an authority that the 

Watson T. Walker, 33 N. H. 132; question of negligence In a gratul- 

Pboenlz Ins. Co. v. Frlssell, 142 tous bailee is not a question for a 

Mass. 513; Harve? v. Sparks Bros., Jury. 
45 Wash. 578, B8 Pac. 1108. 



D.qitizeabyG00<^lc 



NEGLIGENCE. 



1287 



of liability depends upon a want of ordinary care in the reparation 
of the highway ; '* and whether the defendant has been guilty of 
Bueh a want of ordinary care is in general a question of fact for 
the jury under proper instructions;^* although there are eases so 



T*Tbla la th« collected result of 
tbe folIowlnE cases: Beecher t. 
Der1>y Bridge Co., 24 Conn. 491; 
Rapbo T. Moore, 68 Pa. St. 404; 
Vlckaburg t, Henneaey, G4 Htaa. 
S&l. 396; Hlcka v. Chaffee, 13 Hun 
(N. T.), 293; Ward t. Jefferson, 24 
Wta. 842; Centralla y. Krouse, 64 
lU. 19; Hume v. New York, 47 N. Y. 
<39; Miwre t. Mobile, 1 Stew. (Ala.) 
284; Welgbtman t. Wasblngton, 1 
Black (U. S.), 39; Jobnatoa v. 
Cbarteaton, S S. C. 232, 241; Winn 
T. Lowell, 1 Allen (Mass.), 177; 
Raymond v. Lowell, 6 Cusb. (Mass.) 
S24; McDonough v. Virginia City, 
6 Nov. 93; Wheeler t. Westport, 30 
Wla. 392 (citing Jobnson t. Haver- 
hill, 86 N. H. 52; Graves T. Shattuck, 
35 N. H. 267; Wlnahlp t. En&eld, 

42 N. H. 74; Palmer v. Portsmouth, 

43 N. H. 265); Blake T. St Louie. 
40 Mo. 569, per Wagner, J.; Oriffln 
T. Wllliamstown, 6 W. Va. 312, fol- 
lowing Wendell v. Tray, 39 Barb. 
<N- Y.) 335 (affirmed 4 Keyea (N. 
T.), 261); Chicago t. McGlven, 78 
111. 847; Chicago t. Blxby. 84 111. 
82; Hen-Ill v. Hampden, 26 Me. 234; 
Lombard t. Chicago, 4 Blsa. (U.S.) 
460; Dewey t. Detroit. 15 Mich. 307; 
Chicago T. Crooker, 2 Bradw, (III.) 
279; Bloomlngton t. Read, 2 Bradw. 
(IIL) 642; Perkins T. Fayette. 68 
Me. 152; EH Paao v. Causey, 1 Bradw. 
(111.) 531; Ring t. Cohoes (N. Y. Ct 
App. 18T9), 7 Reporter, 726, 19 Alb. 
U J. 472 (reversing 3 Hun (N. Y.), 
76); Chicago t. Gavin, 1 Bradw. 
(m.) 802; GrayvlUe T. WhUaker, 
86 Dl. 439; Holmes v. Hamburg, 47 
Iowa, 848; post, S 1750, et seq; City 
of Grand Forks t. Allman, 153 Fed. 
532. S3 C. C. A. 654; City of Chicago 



T. Bork, 227 IIL SO, 81 N. E. 27; La- 
tonia T. Hall, 31 Ky. Law Rep. 721, 
103 S. W. 354; Svendsen v. Alden. 
101 Minn. 168, 112 N. W. 10; Muncy 
T. Bevier, 124 Mo. App. lO, 101 S. W. 
157; Corcoran v. New York, 188 N. 
Y. 131, SO N. E. 660; Moore v. 
Wllkesbarre, 218 Pa. 302, 6? Atl. 
619. 

"GrayvUle t, Whltaker, 85 111. 
439, 6 Cent. L. J. 97; Draper t. 
Ironton. 42 Wis. 696, 6 Rep. 223; 
Benedict v. Fond du Lac, 44 Wis. 
496, 7 Cent. L J. 258, 6 Rep. 799; 
McMaugh v. Milwaukee, 32 Wis. 
200; Bryant v. Blddeford. 39 Me. 
1S3; Dowd v. Chlcopee, 116 Mass. 
93; Ghenn v. Provlncetown, 105 
Mass. 313; Brooks v. Somerville, 
106 Mass. 2T1; Cassedy T. Stock- 
bridge. 21 VL 391; Wlllard T. New- 
bury, 22 Vt. 458; Kelsey v. Glover, 
16 Vt 708; Sessions v. Newport, 23 
Vt 9; Leicester v. Plttsford, 6 Vt 
24E; Wheeler v. Westport, 30 Wis. 
892; Merrill t. Hampden, 26 Me. 234; 
Craig V. Sedalia, 63 Mo. 417; John- 
son V. HaTerhin, 36 N. H. 74; Hume 
T. New York, 47 N. Y. 639; Bagley 
T. Ludlow, 41 Vt. 425; Hull v. Rich- 
mond. 2 Woodb. A M. (U. S.) 337; 
Perry v. John. 79 Pa. St 412; Stark 
T. Lancaster, 57 N. H. 88; Stack v. 
Portsmouth, 62 N. H. 224; Rice v. 
Montpeller, 19 Vt 470; Independ- 
ence v. Jeckel. 38 Iowa. 427; Hall v, 
Lowell, 10 Cush. 260; Green v. 
Danby, 12 Vt 333; Bums v. Elba, 
82 Wis. 606; Barstow v. Berlin, 34 
Wis. 367; Cremer v. Portland, 36 
Wis. 92; Hammond v. Mukwa, 40 
Wis. 86; WiUey v. Belfast. 61 Me. 
569; Champaign v. Jones, 132 III. 
304, 23 N. B. 1126; Hlchey v. Wal- 



Goo^^lc 



128S PBOVINCB OP COUHT AND JUET. 

plain in their character that, under the operation of principles else- 
where stated, the court is authorized tc withdraw the questicm from 
the jory and to declare that the highway was unsafe as matter oi 
law," The obvious reason of the rule which favors submitting 
this question to the jury is, that it is a question which addresses 
itself to the experience of practical men, and which is, in most cases, 
best solved by a jury. 

5 1706. Notice of Defect In Highway. — It follows from the fore- 
going rule that, unless the obstruction or defect in the highway, 
which was the occasion of the injury, was produced by the muni- 
cipal corporatiou itself, or by some one in privity with it," it will 
□ot be liable for damages produced by the defect, unless it had no- 
tice thereof, for a sufficient length of time before the happening 
of the accident, to have enabled it, by the exercise of reasonable 
diligence, to make the necessary repairs. It also seems settled that 
this notice may be express or implied,^^ but this statement does not 
convey to the mind a very accurate eoncepti(Hi of a legal principle. 
The true rule is that the municipal corporation is under a continuing 
affirmative duty of inspection and therefore, after the lapse of a 
certain length of time, the court or the jury will be authorized to 
infer, either that it bad notice and nevertheless neglected te make 
the repair, or that it was ignorant of the defect through negligence. 
Now, as negligent ignorance has the same effect in law, in actions 
for damages for negligence, as actual knowledge," in either of these 

tham, 169 Mass. 460. S4 N. E. 681; 109 S..W. 817; Sbaw ▼. Pblladelpbla. 

Patterson T. Oonndl Blutta, 91 Iowa, 169 Pa. 4S7. 2S AU. 364. 

732, 59 N. W. 63; Fugate v. Somer- '« Brooks t, Somervllle, 106 Ha«. 

set, 97 Kr. 48, 29 S. W. 910; Cleve- 271; Monies v. Ltuh. 119 Mass. 273, 

land T. Bangor, 87 Me. 269, 32 Atl. 121 Mass. 442; Alexander T. Mount 

S72, 47 Am. St. Rep. 326; Kansas SteDtng, 71 111. 366; Sprlosfleld v. 

City r. Bradbury, 46 Kan. 881, 26 Le Claire, 49 1)1. 476; Chicago v. 

Pac 889, 23 Am. SL Rep. 731. Johnson, 63 111. SI; Crosby t. Bob- 

»• Schmidt T. Chicago etc. R. Co., ton, 118 Maw. 71, 74; Rowe v. Porto- 

83 111. 406; Benedict v. Fond du Lac, mouth, 66 N. H. 291; Fort Wayne T. 

45 Wis. 496. 7 Cent. L. J. 258, 6 Rep. De Witt, 47 Ind. 391; Yeager v. 

7S9; Prldeaui v. Mineral Point, 43 Bewick Borough, 218 Pa. 266. 67 Atl. 

Wla. 613, 6 Cent. L. J. 428; Holleyv. 347; Brlssell v. DUt Columbia. 28 

Wlnooshl Turnpike Co., 1 Aik. (Vt) App. Dec. 38. 

74; Kelsey t. Glover, 16 Vt 708. " Fort Wayne v. De Witt. 47 Ind. 

But see Seaslona t. Newport, 23 Vt 391; post, j 1764. 

9; Smith v. Haytt, 130 Mo. App. 321, ix Mersey Docks' Trustees t. 
Qlbba, L. B. 1 H. L. 91. 



Goo<^lc 



eases, in the absence of contributory negligence on the part of the 
plaintiff or person killed or injured, the musicipal corpwation will 
be liable. The rule under this head is believed to be correctly 
stated thns: The municipal corporation will not be answerable for 
damages caused by a defective condition of its highways, bridges, 
or approaches produced by some act not its own, — as by the act of 
a wrong-doer, by a sudden flood or other casualty, — unless (1) act- 
ual notice hod come to it of such defect, and a reasonable time bad 
elapsed before the accident to enable it to repair the same, by the 
exercise of reasonable diligence; or (2) unless sufSeient time had 
elapsed between the happening of the defect and the happening of 
the accident to enable the corporation, by the exercise of reasonable 
diligence, to discover the defect and repair it If sufBi^ent time has 
thus elapsed, tbe jury will be authorized to infer, either that the 
municipal corporation had notice of the defect, or that it was guilty 
of negligence in not knowing it.'* And this question, whether the 



T* Barrett v. St Jowpb, 6S Mo. 
2W; Schwelckbardt v. St Louie, 2 
Ho. App. STl; Dohertir v. Wattham, 
4 Qrar (MasK.), 696; Harper v. Mil- 
waukee, 30 WIb. 366; Prldeaux v. 
Mineral Point 43 Wla. E13, « Cent 
h. J. 428; Mack v. Salem, « Ore. 
275; Dorlon v. BrooklTB. 46 Barb. 
(N. 7.) 604; Sweet v. GloTeravllle, 
12 Hun (N. Y.), 302; Wilson t. Wa- 
tartown, 3 Hun (N. Y.), G08; Todd 
V. Troy, 61 N. Y. 606; McQInltr v. 
New York. 5 Duer (N. Y.), 674; 
Hart V. Brooklyn, 36 Barb. (N. Y.) 
226; Seaman T. New York, 3 Dalf 
<N. Y.), 147; Bnab ▼. Qoneva. 3 N. 
T. S. C. (T. ft C.) 408; Chicago v. 
LaDKl&sB, 66 lU. 361; Fern v. 
Prencb. 66 IIL 317; Reed v. North- 
fleld, 13 Pick. (Maea.) 94; Doulon 
▼. Clinton, 33 Iowa, 397; Rowell T. 
Willlama, 29 Iowa, 210; Boucher v. 
New Haven, 40 Conn. 466; BUI v. 
Norwich, 39 Conn. 222; Rice v. Dei 
Moines, 40 tows, 641; Clark v. Cor- 
iDtb. 41 Vt 449; Otler ▼. Hlnee- 
bnrgb, 44 Tt 220; Hume t. New 
York, 47 N. T. 639; Jsnsen t. Atcbl- 
un, IS Kan. 36S; Chicago t. Mur- 



phy, S4 111. 224; Fahey r. Harvard. 
62 111. 28; Lobdell ▼. New Bedford, 

1 Mass. 1E3; Harrlmen v. Boston, 
114 Mass. 241; Howe v. Flalnfleld, 
41 N. H. 135; Hubbard T. Concord, 
85 N. H. 52; Ward t. Jefferson, 24 
Wis. 342; Colby t. Beaver Dam, 34 
Wis. 285; Ooodnough v, Oshkosh, 
24 Wis. 649, sab nom. Ooodno t. 
OshkoBb, 28 Wis. 300; Hall v. Fond 
du Lac, 42 Wis. 274; Mosey v. Troy, 
61 Barb. (N. Y.) 581; Relnhard v. 
New York. 2 Daly (N. Y.), 243; 
Manchester t. Hartford, 30 Conn. 
118;: Towneend t. Dee Moines, 42 
Iowa, 657; Schmidt v. Chicago etc 
R. Co.. S3 ni. 406; Chicago v. Mc- 
Carty, 76 lU. 602; Cuelck v. Nor- 
wich, 40 Conn. 375; Chicsgo t. Fow- 
ler, 60 III. 322; Chicago t. Crooker, 

2 Bradw. (lU.) 279; Welgbtman t. 
Washtnston, 1 Black (U. S.), 39; 
Noble T. Richmond (Ta. Ct. App. 
1879), 7 Reporter. 478; AUanta v. 
Perdae, 63 Qa 608 ; Port Wayne v. 
De Witt ^^ IniL S91; Vance v. Kan- 
sas City, 123 Ito. App. 641, 100 S. W. 
1101; Hoswell v. Davenport (N. M.), 
89 Pac 256 (not reported in state 



Coo»^lc 



1290 



PBOVIKCB OP COUBT AKD JUBT. 



municipal corporation thus bad notice or was negligently ignorant, 
is, in general, a question for the jury*" Such notice may be in- 
ferred by the jurj'i '' the defect in the street or sidewalk had exiated 
for a considerable length of time,** or so long aa to render it notwi- 



§ 1707. Chattel Mortgage: Dne Diligence in Foreclosing. — ^In 
Illinois it has been ruled, in a contest between a mortg^ee of chat- 
tels and a creditor of the mortgager, that, whether due diligence 
has been used by the mortgagee in foreclosing the mortgage after 
it has matured, is a mixed question of law and fact, not wholly 
within the province of the jury. "It is for the court to determine 
what time, under the circumstances, is reasonable, and then tlia 
jury will aay whether the mortgage was foreclosed within that 
time."" 



reports); Davis t. Adrian. 147 
Mich. 800, 110 N. W. 10S4; Jones r. 
Ogden Citr, tZ Utah, 221, SB P&c 
1006. 

M Howe T. Plainfleld, 41 N. H. 135; 
Springer t. Bovdolnbam, T Me. 442; 
Bradbury t. Falmouth, IS Me. 181; 
Btnsham v. Boston, 161 Mass. 3, 36 
N. K. 473; Strudgeon t. Ssnd Beach, 
107 Mich. 496, 66 N. W. 616; Fltx- 
Kerald t. Troy. 126 N. Y. 761, 27 
N. a. 40S; Scovllle v. Salt Lake 
City, 11 Dtah, 60, 89 Pac. 481. 

81 Undholm t. 8L Paul, 19 Minn. 
346; Reed t. KortbBeld, 13 Pick. 
(Mass.) 94; Harrlman v. Boston, 
114 Maaa. 241; Howe v. Lowell, 101 
Mass. 99; Donaldson T. Boston, 16 
Oraf (Mass.), 608; Hume v. New 
York, 47 N. T. 639; McLaughlin t. 
Corry, 77 Pa. St, 109; Goodno t, Osh- 
koBh, 38 Wis. 300; Holt V. Penobscot, 
E6 Me. 16; Springfield r. Doyle, 76 
111, 202; Rockjord v. Hildebrand, 61 
HI. 166; BUI T. Norwich. 39 Conn. 
222; Manchester v. Hmrttord. 30 
Conn. 118; Galeaburg t, HIgley, 61 
HI. 287; Crosby v. Boston, 118 Mass. 
73; Rowe t. Portsmouth, 66 N. H. 
291; poBt, i 1754; Jollet v. Pltiger- 
ald, SS 111. App. 483; Hasard t. 



Council Blutts, 87 Iowa, 61. 63 N. W. 
1083. Court may Instruct that the 
city's duty to discover defects li 
greater than that of an ordinary 
observer. Lyman t. Oreen Bay, SI 
Wis. 488, 66 N. W. 167. And that a 
street commissioner, being shown 
to have examined a walk, the city 
had notice of whatsoever delect then 
existing and apparent to one ex- 
amining with ordinary care. Fee v. 
Borough of Columbus. 168 Pa. SS3, 
31 Atl. 1076. 

*iRequa V. Rochester, 4E N. Y. 
129; Hart v. Brooklyn, 36 Barb. (N. 
Y.) 226, 229; Todd v. Troy, 61 N, T. 
506; Doulon v. Clinton, S3 Iowa, 
397. Some exceptions have been ad- 
mitted to this rule. Barnes v. New- 
ton, 46 Iowa, 667; Cleveland v. St 
Paul, 18 Minn. 279. Compare Ward 
v. Jetterson, 24 Wis. 342; McCabe v. 
Hammond, 34 Wis. 690; OrlfQn v. 
New York, 9 N. Y. 456, Selden's 
Notes, 223; Wallace v. New York, 
2 HIIL (N. Y.) 440. 18 How. Pr. 169. 
See further 2 Thomp. Neg. 762, et 
seq. 

"Woolej v. Fry, SO 111. 1B8, 162; 
Brereton v. Burnett, 16 Colo. 254, S5 
Pac 810; Allen t. Stelger, 17 Colo. 



Coo^^lc 



MBOLIQENCE. 1291 

§ 1708. Commercial Paper: Leaving Blanks which Admit of 
Trandnlent Alterations. — ^There is a role of law, applied within 
narrow limits, that, when ODe of two innocent persons must suffer 
through the fraud of a third, the loss must rather fall on the one 
whose negligence rendered possible the commission of the fraud. 
It is frequently applied in cases of Fraudulent alterations of com- 
mercial paper. In snch cases, if tJie maker or drawer has been 
negligent in so drawing the instrument as to leave unfilled blanks 
which easily admit of alterations, and if, after being so executed 
and delivered, the instrument is altered, and is, so altered, passed 
to the hands of a boria fide purchaser, the original' maker will be 
liable to the bona fide purchaser for the amount of the instrument 
Bg thus altered. But in such cases the question whether the maker 
was negligent in leaving unfilled blanks in the instrument, has been 
held to be a question of fact for a jury." 

§ 1709. fraud: Prudence in relying npon Fraadnleni Sepre- 
sentations. — ^Where the question related to fraud in obtaining a 
judgment, it was held proper to leave to the jury the question 
whether the defendants should have relied upon certain representa- 
tions which were made to them, and whether they omitted reason- 
able prudence and caution in acting upon the plaintiff's assurances 
and advice." 

% 1710. Qnaranty: Diligence in Proceeding against Principal 
Debtor in order to Charge Guarantor. — In some jurisdic- 
tions it is held that a contract, by which one guarantees the pay- 
ment of the debt of another, is conditioned upon the creditor's 
diligent use of the means within his power to collect the debt of 
the pnncipal debtor; that it creates only a contingent liability, 
which becomes absolute only after the use of due and unsuccessful 
diligence to obtain satisfaction from the principal, or after the 
intervention of circnmstances which excuse diligence.** And 

568, SI Pac. 226; Hay ▼. W. W. fllltns out a promlseorr not« dellv- 

Klmball Co., EG 111. App. 263. ered in blank: Temple v. PuUen, 8 

M Brown v. Reed, 79 Pa. St. 870, Ezcb. SS9; Mulhall v. Neville, Id. 

21 Am. Rep. 76; Leas v. Walls, 101 390. 

Pa. St. 67, 47 Am. Rep. 699. Com- «> Oreena v. Hallendeck, 24 Hun 

pore Phelan t. Mass, S7 Pa. St. 59, (N. Y.), 116. 

5 Am. Rep. 40Z; Oerard v. Haddan, ** Gilbert v. Henck, 6 Casey (Pa.), 

67 Pa. St. S2, 5 Am. Rep. 412; ante, 205; Miller v. Borkey, 3 Casey 

St 1399, 1400. Reaaonable time for (Pa.), 217; IseU v. Hose, I Watts 



Coo^^lc 



1292 FBOVINOX 07 CODBT AMD JUBT. 

whether the creditor has uaed due diligence to collect the debt of 
the principal debtor, is a question for a jury, under all the circum- 
stances of the case." 

S 1711. BailwaTs: 8p«od of a Bailway Train In th« Streeti of 
a Town or City. — Whether a railway train is nmning at an im- 
proper rate of speed, is a question of fact for the jury, where the 
rate of speed allowed by an ordinance of the town or city on the 
streets of which the train is ran, is not exceeded.** 

§ 1712. Saleg: Diligence by the Purchaser of goodi In obtain- 
ing Poasession. — ^Whether a purchaser of goods has used dili- 
gence in acquiring poesesajon so as to protect his title against that 
of a subaequent purchaser, is a question of fact which cannot be 
withdrawn from the jury by an instruction.'* 

9 1713. How Jury instructed in Actions for Negligence. — In 

some cases the courts are able to do little more than to give to the 
jury an abstract rule or definition of negligence, leaving them to 
apply it to the facts, which they judge to be proved by the evidence 
of the particular case, — as for instance, to instruct them that, "neg- 
ligence is the omiasion to do something which a reasonable man, 
guided by those considerations which ordinarily regulate the con- 
duct of human affairs, should do, or the doing something which a 
prudent and reasonable man would not do."** With sut^ an in- 
struction for their guidance, it is for the juiy to determine whether 
the parties in the particular case have so acted as to absolve them- 
selves from the imputation of negligence, — a conclosion to be de- 
duced by evidence of what it is customary for persona to do in simi- 
lar cirenmstances, and by the estimate of the jurors as to what a 
person of ordinary prudence, similarly situated, ought to do. 

(Pa.), 12S; Kramph v. Hats, E2 Fa. HlBflonrl Padflc R. Co„ 197 Mo. 16, 

St. 625, 629. 93 S. W. 112D. 

>t Krampli v. Hatz, supra. Mead u Qradle v. Keni, 109 IIL CGS. 

V. Parker, 111 N. Y. 259, S N. Q. MAlderson, B., In Blyth t. Blr- 

727. mlngham Waterworks Co., 11 Excb. 

M McGrath v. New York «tc R. 781. 784. 
Co., 1 Thomp. ft C. 21S; Haler V. 



7crib;G00<^IC 



CHAPTER LV. 

OARRIBRS OP GOODS AND OTHER 

Saonm 
183Q. An ApologT. 

1831. Distinctions concerning tlie Bnrden of Proof. 
1S32. Proof of Delivery by tbe Bailor and Non-DeUverr, or Re-DellT«ry 

In a Damaged Condition, casts upon the Bailee tbs Burden ot 

Explaining. 
1833. Reason ot the Role. 

1854. A Middle Rule adopted by tbe Kngllah Judges. 
1S3E. American Declalona ApproTlng the English Rule. 
1S38. As to Non-Delivery: Demand and Refusal a Conversion. 

1837. Delivery to the Wrong Person a Conversion. 

1838. Some Evidence of Non-Delivery Necessary to Shift Burden ot Proof. 

1839. Strength of such Elvldence. 

1840. As to Loss by Thea 

1S41. [Continued.] When Circumstances carry Presumption ot Negli- 
gence. 
1842. [Continued.] No Defense to a Common Carrier. 

1543. Burden on Innkeeper to show Manner ot Loss or Pay Damages. 

1544. As to Brealcage, Leakage or Damage. 

1S4G. Exception In case of Goods having Inherent DetectiL 

1545. Such as Perishable Fruit 
1847. And Live Animals. 

1S48. Breakage ot Fragile Articles. 

184». Leakage of Wtne. 

ISGO. Application of the Foregoing Principles in the Case ot Common 
Carriers: A Division of Judicial Opinion Stated. 

18S1. Source of this Divergence ot Opinion: Whether the Special Con- 
tract Redness the Carrier to the Status of an Ordluary Bailee 
for Hire. 

1855. Inconsistency of the Courts In Respect of tbla Question. 

18EB. Reasoning of thoae Courts which Deny this Effect to the Contract 
ISM. Views on this Question of the Supreme Court of the United SUtes. 
ISGG. Reasons given for the Opposing Tlewa In Case of Loss by Fire, 



Coo^^lc 



1294 PROVINCE OF COURT AND JUBT. 

1856. What excepted Perils are within the Rule. 

1857. Defense of Lose by Perils of NaTlgatlon. 
1868. Defense of Lobs by Fire. 

1859. Kttect of Stipulations as to Talus. 

1860. What Presumption In Case of Loss or Injury by Connecting Car- 

riers: (O.) The English Hule. 

1861. (&,) The American Hule. 

1862. Assent of Shipper to Conditions In Receipt 

1863. Burden on Carrier to bring Notice Home to Shipper. 
186*. Where there Is a Special Exemption and then a Deviation. 
18CE. Strength of the Evidence to Excuse. 

1866. Effect of Recital In Bill of Lading that Goods were received In 

Good Condition. 

1867. Burden to shov Compliance with Kngagement to Present Cl^m 

within a Limited Time. 

§ 1830. An Apologjr. — The writer may offer, as an apo1<^y for 
troubling the profession with a discussion of this question, that in 
his researches he has diseoTered no subject in respect of which the 
decisions are in a greater state of confusion. Decisions in the same 
State upon this question contradict each other in such a manner, 
that the same court occupies the spectacle of swinging back and 
forth like the oscillations of a pendulum.* The same eases even 
contradict themselves. As great a writer as Dr. Greenleaf stated 
one doctrine in one section of his work oa evidence, and the con- 
trary doctrine in the very next section. Thus, after stating the 
effect of a notice brought home to the shipper limiting the conunon- 
law liability of the carrier, he saya: "But in all such cases of notice, 
the burden of proof of negligence, malfeasance, or misfeasance, or 
of the waiver, is on the party who sent the goods."* Towards the 
close of the next section of his text be &ays: "And if the acceptance 

■ Compare with each other the Co., 52 Ho. S90; Wolf v. American 

following cases In New York: Read Exp. Co., 43 Ho. 421; Read v. RaJl- 

T. Spaulding, 30 N. Y. 630, 645; HI- way Co., 60 Ho. 199; Davis v. Wa 

chaels v. New York etc. R. Co., 30 bash etc. R. Co., 89 Ho. 349, 3E2; 

N. Y. 564, 578, and Colling v. Ben- Levering v. Railway Co., 42 Ho. 88; 

nstt, 46 N. Y. 490, with Lamb v. Drew v. Red Line Transit Co., 3 

Camden etc R. Co., 46 N. Y. 271, Ho. App. 495. 

and Wbltworth v. Erie R. Co., 87 * 2 Greenl. Ev., S 218. To this 

N. T. 413. In Pennsylvania: Hays statement he cites Harris v. Pack- 

T. Kennedy, 41 Pa. St. 37S, 384, with wood, 3 TaunL 264, and Uarsh v. 

Farnham y. Camden etc. R. Co., 55 Home. 6 Bam. A C 322, both of 

Pa. St. S3. And make what sense which are generally regarded as au- 

you can out of the following Jumble thority for the doctrine of his text 
In Missouri: Ketchum v. Express 



D.qitizeabyG00<^lc 



CABBIEBS OF GOODS AND OTHEB BAILEES. 1295 

of tlie goods was special, the bordeii of proof is still on the carrier, 
to show, not only that the cause of the loss was within the terms of 
the exception, bat also that t^ere was on his part no negligence or 
want of due c&re."* Confusion has been added to this subject 
by the fact that some courts have quoted and relied upon the state- 
ment of the law made by Dr. Greenleaf in section 218, while other 
courts have quoted and relied upon the same doctrine made by him 
in section 219. 

§ 1831. DistiDCtloiui concerning the Burden of Proof. — Much 
of the confusion among the adjudications upon the subject which 
it is proposed to consider, grows out of loose and unscientific con- 
ceptions concerning what is called the burden of proof. Many 
judges seem to use the term as a sort of jargon, without any definite 
conception of its real meaning. Those who have some definite con- 
ception of its meiuiing aj-e unfortunately divided in opinion upcxi 
the two following propositions: 1. The first is that so long as the 
evidence is directed to a single issue, or, more properly speakiug, 
to a single proposition of fact, the burden of proof never shifts, no 
matter how little evidence la adduced by the party sustaining the 
burden, or how much is adduced by the opposing party* 2, The 
other is that, although the evidence may be directed to the same 
issue or proposition of fact, yet when the party who in the be- 
ginning sustains the burden in respect of such issue or proposition 
of fact, introduces such evidence as, if believed, makes out what is 
frequently called a prima facie case, that ia, shows that the propo- 
sition which he aiSrms is true, — the burden of proof shifts upon the 
other party to rebut or to avoid the so-called prima facie case thus 
made.* This conception of the burden of proof, aa it loosely floats 

*2 Qreenl. Et., g 219. To tbla he leading case on this subject), opln- 

dtes Swindler v. Hilllard, 2 Rlcb. L. Ion by Chief Justice Shaw; Tourtel- 

(S. C.) 286, — a decision which In- tot v. Rosebrook, 11 Mete (Mass.) 

troducee ns to a claes ot American 460; Morrison v. Clark, 7 Cusb. 

cases which dlstlnctl7 denr the doc- (Mase.) 213; "ifarboz v. Eastern 

trine of th« BtOgUsh cases cited In Steamboat Co., GO Me. 346: Central 

support of the preceding dictum of Bridge Corp. v. Butler, 2 Orar 

the learned author. (Mass.), 130, 13S; Speerr v. Wllcoz, 

'See the following cases, where 1 Mete. (Mass.) 270; St. v. Fly«, 

the dietlnction between the ahlftlog 26 Me. 312: Broomfleld v. Smith, 1 

of the burden of proof and the shift- Mees. A W. 542. 
Ing of the ioeight of evidence, la ° Many cases, invoIrlDg this con 

itated and Illustrated: Powers t. ceptlon of the nature of the burden 

Busiell, 13 Pick. (Mass.) 6S, 76 (the of proof and applying It to the snb- 



Coo^^lc 



1296 PEOVINOB OF OOXmT AND JUST. 

in the minds of many jiidg^, is, that the burden of proof shifts 
from side to side, in the course of a trial, in respect of a single prop- 
osition of feet, accordingly aa the evidence adduced by either party, 
in support of or in opposition to the proposition, preponderates over 
that adduced by the other, — ^more briclly, that the burden of proof 
shifts with the shifting of the weight of evidence. This conception 
might possibly not be entirely inaccurate and destitute of practical 
value in cases in equity or admiralty, where the judge sits as the 
trier of the fact, as well as the exponent of the law. In such a case, 
he could notify the defendant whether the plaintiff, in his opinion, 
had made out what is called a prima facie caae ; and, having heard 
the defendant's countervailing evidence, he could notify the plain- 
tiff whether, in his opinion, it preponderated over tlie plaintiff's 
evidence, and whether the plainUff, in order to a recovery, must 
assume the burden of rebutting it But in jury trials, where, ex- 
cept when it comes to the question of granting a nonsuit or direct- 
ing a verdict, the judge has nothing to do with the probative force 
of the evidence, but it is matter to be dealt with exclusively by the 
jniy, this conception of the shifting of the harden of proof is at 
once destitute of practical value and of juridical sense. But 
whether we adopt the conception of Chief Justice Shaw and other 
New England judges, that the burden of proof never shifts with the 
shifting of the weight of evidence, so long as the evidence is directed 
to the same proposition of fact, or whether we adopt the more 
prevalent conception that it does shift whenever the party having 
the affirmative of the issue ma&ea out what is called a prima fade 
case, — our first inquiry must be, "What evidence is of suE&cient pro- 
bative value to make out the so-called prima fade case and entitle 
the plaintiff to recover unless it is rebutted! 

§ 1832. Proof of Delivery by the Bailor and Non-Delivery, or 
Re-Delivery in a Damaged Condition, Oasts upon the Bailee the 
Burden of Explaimng. — The broadest proposition which can be 
stated in respect of the question under discussion is, that proof 
of delivery of the goods to the bailee and of non-delivery by him,* 

jBct ander discussion, are berenfter v. Pollock, 8E Pa. St. 391; Brown v. 

considered. Post, { 1B50, et seq. Waterman, 10 Cueb. (Mass.) 117; 

« Boles v. Hartford etc R. Co., 37 Ooodtellow v. Meegan, 33 Ho. 2S0; 

Conn. Z7Z; Cass v. Boston etc. R. McDanlels v. Robinson, 26 Tt SIT, 

Co., 14 Alien (Mass.), 448 (Bleelow. 839; Fairfax v. New York etc. R. 

C. J., dissenting) ; Safe Deposit Co. Co., 67 N. T. 11 (reversing G Jones 



D.qitizeabyG00<^lc 



CARRIERS OF GOODS AND OTHER BAILEES. 



1297 



A Sp. G16) ; Steers t. Liverpool etc. 
Steamship Co., ET N. Y. 1; Buraell 
T. New Tork etc. R. Co., 45 N. Y. 
IM; aaflin t. Meyer, 75 N. Y. 260; 
WlLson T. Southern PactQc R. Co., 
62 Cal. 164; Beardslee t. Rlchard- 
Boa, 11 Wend. (N. Y.) 26; Wlllard 
V. Bridge, 4 Barb. (N. Y.) 361, 367; 
Lockwood T. Bull, 1 Cow. (N. Y.) 
322; BuBh t. Miller, 13 Barb. (N. Y.) 
481; Riley t. Horne, 5 Blng. 217. 
226; MagDlD t. Dinsmore, 66 N. Y. 
16S; Cumina v. Wood, 44 III. 416, 
121; Llchtentielin t. Boston etc. R. 
Co., 11 Cush. (Mbbb.) 70; Stuart t. 
Blgler, 98 Fa. St. 80; Piatt v. Hlb- 
banl, 7 Cow. (N. Y.) 501; Golden 
T. Romer, 20 Hun (N. Y.). 438; 
Fennsflvaata R. Co. v. Miller, 87 
Pa. St. 395, 898; Ruayan v. Cald- 
well, 7 Humph. (Tens.) 134; South- 
ern Exp. Co. T. Heea, B3 Ala. 19; 
Tarboz v. Eastern Steamboat Co., 
60 Me. 339, 343; Beckman t. Shouee, 
5 Rawie (Pa.), 179. 189; Hawkes ▼. 
Smith, 1 Car. k M. 72; Tucker y. 
Cracklln, 2 Stark. 385; Day v. Rid- 
ley, 16 VL 48; Van Winkle v. South 
Carolina R. Co., 38 Ga. 32; Little T. 
Boston etc Railroad, 66 He. 239; 
AdaroB Exp. Co. v. Stettaners, 61 
lU. 184, 187; Fairfax t. New York 
etc H. Co., 73 N. Y. 167, 170; Turn- 
bull T. Cttlsens' Bank, 16 Fed. 
145, 148; United States t. Pacific 
Express Co., 15 Fed. 867; Tumey 
V. Wilson, 7 Yerg. (Tenn.) 340; 
Camden etc. R. Co. t. Baldauf, IS 
Pa. St. 67, 77; Clark y. Spence, 10 
Watts (Pa.), 335; Verner v. Swelt- 
zer, 32 Pa. St 208, 214; South, etc 
R. Co. T. Henleln, 62 Ala. 606, 612; 
Swindler v. Hilllard, 2 Rich. L. (S. 
C.) 286, 306; United States Ezp. Co. 
V. Backman, 28 Ohio St. 144; Berry 
T. Cooper, 28 Oa. 643; HIU v. Stur- 
geon, 28 Mo. 223; Qrogan v. Adams 
Exp. Co., 6 Cent Rep. 298; Davidson 
v. Graham, 2 Ohio St 131, 141; 
TxiALB — 82 



Whttesldea t. Russell, S Watts. A 
S. (Pa.) 44, 49; Alden t. Pearson, 
3 Cray (Maes), 342; Clark v. Bam- 
well, 12 How. (U. S.) 273; King V. 
Shepherd, 3 Story (U. S.), 349; 
Gray r. Mobile Trade Co., 65 Ala. 
SS7, 399; Shaw v. Gardner, 12 Gray 
(Mass.), 488; Celton v. Cleveland 
etc. H. Co., 67 Pa. St 211; Wert- 
heimer t. Pennaylvanta R. Co. 17 
Blatcbf. (U. S.) 421; Graham v. Da- 
vis, 4 Ohio St 362; Chicago etc R. 
Co. T. Moss, 60 MIbb. 1003, 45 Am. 
Rep. 428; Chicago etc. R. Co. v. 
Abels, 60 Mlsa. 1017, 1023; Patter- 
son T. Clyde, 67 Pa. St 600, 506; 
Little Rock etc. R. Co. v. Talbot 39 
Ark. 523, 529; Hunt v. Propeller 
Cleveland, 6 McLean (U. S.), 76; 
Brown V. Adame Exp. Co., 16 W. Va. 
812, 818; Dunaeth v. Wade, 8 111. 
285, 288; Smyrl v. Niolon, 2 Bailey 
(S. C), 421; Dale v. Hall, 1 WHb. 
2S1; Mitchell v. United States Exp. 
Co., 46 Iowa, 214; Hays v. Kennedy, 
41 Pa, St 378, 384; Humphreys v. 
Reed, 6 Whart (Pa.) 43G, 444; Kirk 
V. Folsom, 23 La. Ann. 584; Price v. 
Ship Uriel, 10 La. Ann. 413; First 
Nat Bank v. Graham, 86 Pa. St 91; 
Hussey v. Saragossa, 3 Woods (U. 
S.), 380; Choate v. Crownin shield, 
3 Cliff. (U. S.) 1S4; Rich v. Lam- 
bert, 12 How. (U. S.) 347; Propeller 
Niagara v. Cordes, 21 How. (U. S.) 
26; Chouteaui T. Leech, 18 Pa. St. 
224; Hooper v. Rathbone, Taney (U. 
S.), 619; Bell v. Reed, 4 Blnn. (Pa.) 
127, 136; The Mohler, 21 Wall. 
(U. S.) 230; The Ocean Wave, 3 
BlBs. (U. S.) 317; Levering v. Union 
etc. Co., 42 Mo. 88, 95; Ang. Carr,, 
S 202; Story Ballm., S 629; 2 Kent 
Com. 587. Contra, Lamb v. Camden 
etc R. Co., 46 N. Y. 271 (two of the 
Qve Judges dissenting). First NatL 
Bank of B. V. First Natl, of N., 116 
Ala. 520, 22 South. 97G; Buehwell v. 
Fuller, 89 Ue. 600, 36 AU. 10&9; 



Coo^^lc 



1298 PBoviNCB or ooubt akd jubt. 

OP of delivery to the bailee in good condition and of re-delivery 
of them by him in a broken, deficient or damaged condition/ 
or of a delivery of them to him for carriage and of hia failore to 
re-deliver them according to his undertaking within a reasonable 
time,* withoat more, — easts upon him the burden of showing 
that the loss happened notwithstanding the exercise of due care 
on his part to prevent the same; 

I 1833. Season of the Rule. — The reastm of the rule has been 
restated and dilated upon in many judicial opinions. It ifl bnefly 
this: that, the bailee being in possession of the goods, the circum- 
stances under which they were lost or damaged are peculiarly 
within hia knowledge or the knowledge of his servants, and not 
within the knowledge of the bailor; or at least, more probably 
within the knowledge of the bailee and his servants than within 



KnlsbtB V. Plella, 111 Mlcb. 9, 119 
N. W. 92; Donlan t. Clark, 23 Nev. 
203. 15 Pac. 1; Hlldebrand v. Col- 
lins, 106 Wia. 824, 82 N. W. 146. 

1 Collins V. Beanett, 4S N. T. 4S0; 
Log&ti v. Mathews, 6 Pa. St. 417; 
FuDkbouser T. Wagner, 62 111. G9; 
Bennett v. O'Brien, 37 111. 2G0; Mer- 
rlman v. Brig May Qneen, 1 Newb. 
<U. 5.) 464, 474; Montgomory etc 
R. Co. V. Moore, 61 Alt 396; Hall 
V. Cbener, 36 N. H. 26, 30; American 
Dxp. Co. V. Sands. 65 Pa. Bt 140; 
Hastlnes y. Pepper, 11 Pick. (Maas.) 
41, 44; Steele v. Townsend, ST Ala. 
241, 263; Sbrlver v. Sioux City etc 
R. Co., 24 Minn. 606; Tardos T. Ship 
Toulon, 14 lA. Ann. 429; Rocbereau 
T. Bark Hausa, 14 La. Ana. 431; 
HuBsey v. Saragosea. 3 Woods {U. 
a). 380; Hurpby t. Staton, 3 Munf. 
( Va.) 239 ; Tarbox v. Bastera 
Steamboat Co., GO Me. 339, 343; 
Davis V. Wabash etc R. Co., 89 Mo. 
340, 1 8. W. 327; Buddy v. Wabasb 
etc R. Co., 20 Mo. App. 206; Baker 
v. Brlnaon. 9 Rich. L. (S. C.) 201; 
Union Exp. Co. T. Qraham. 26 Ohio 
St G95; Singleton v. HllUard, 1 
Strobb. L. rs f.) 203. 218; Fara- 



bam V. Camden etc. R. Co., EG Pa. 
8L 63; Clark v. Barnwell. 12 How. 
(D. a) 272; Spyer v. Tbe Mary 
Belle Roberte, t Sawy. (U. 8.) 1; 
Hunt V. Tbe Cleveland, 6 Mclean 
(U. a), 76, 79; Roberts v. Riley, 16 
lia. Ann. 103: Turney v. Wilson. 7 
Terg. (Tenn.) 340. 343; Ewart v. 
Street, 2 Bailey (S. C), 167, 161; 
Scboooer Emma Johnson, 1 Sprague 
(U. a), 627; Bearse t. Ropes. 1 
Sprague (U. 8.), 831; Letcbford v. 
Golden Elagle, 17 La. Ann. 9. It has 
been said that. In the absence of 
proof of bad order on delivery to 
bailee, It will be preanmed tbe goods 
were In good order. Oblen v. At- 
lanta ft W. P. R. Co., S Ga. App. 
323, GS a E. 611. 

a Nettles V. South Carolina R. Co.. 
7 Rlcb. I,. (8. C.) 190; Hann T. 
Btrcbard, 40 Vt. 326, 338; Chesa- 
peake ft O. Ry. Co. T. RadtMunLB, 
G2 III. App. 203; Adams Bxp. Co. v. 
Holmes <Pa.), 9 Atl. 166 (not re- 
ported in state reports); Missouri 
Pac. R. Co. T. Scott, 4 Tej. Civ. App, 
76, 26 8. W. 239; Plynn T. St Louis 
* a r. R. Co., 48 Mo. Asp. 421. 



7crib;G00<^IC 



CASBIEBS 07 GOODS AND OTHEB BAlLBEa 1299 

that of the bailor; or, if not within his knowledge, or that of h'm 
servants, his or their want of knowlcd^ is blame-worthy, because 
from the nature of his undertaking, ha has assumed the duty of care 
and supervision, the performance of which would enable him to 
know the circumstances attending any accidental or inevitable loss 
or damage ; — ^upon either of which views he ought to be required 
to disclose to the bailor the circumstances attending the loss or 
damage, and to establish them in a court of justice; because (1) 
good faith demands that he make such a disclosure ; and (2) be- 
cause t^e law, on grounds of sound policy and necessity, ordinarily 
requires that party to produce evidence who, from his situatim and 
the nature of the case, can more easily produce it than the other 

In a case very much cited, which was held aver for consideraticn 
during the Long Vacation, and which must therefore be regarded 
as a well-considered case, the reason for the role, as applicable to 
the case of a common carrier, was thus stated by Best, C. J. : "When 
goods are delivered to a carrier, they are usually no longer under 
the eye of the owner; he seldom follows or sends any servant with 
them to the place of their destination. If they should be lost or 
injured by the grossest negligence of the carrier or his servants, 
or stolen by them, or by thieves in collusion with them, the owner 
would be unable to prove either of these causes of loss; his wit- 
nesses must be the carrier's servante, and they, knowing that they 
could not be contradicted, would excuse their masters and them- 
selves."* 

A similar reason was given by Lawrence, J., speaking for the 
court, with reference to the liability of a warehotiseman to whom 
goods had been intrusted for storage, some of which had been re- 
turned in a broken condition and others not returned at all: "In 
eases of this sort it would be very difQcult for the plaintiff to show 
in what way the injury or loss had occurred, or that they had oc- 
corred by the actual negligence of the defendants, or their em- 
ployees. The plaintiff would not know what persons had been 
engaged in the defendant's warehouse, nor where to find the testi- 
mony necessary to support his action. On the other hand, tiie de- 
fendants would know, or ought to know, what persons had had ac- 

■ Riley V. Home. 5 Blng. 217, 220. gence, that "a loss, the cause of 
In tbiB case the court laid down tbe which Is not shown, Is aufflclent evi- 
rate, as applicable to a case where deuce ol timple neoHoence, although 
tlte plalntm alleses a loss by uegU- not of gross neoligence," 



1300 PBOVINOB OF OODET AND JUET. 

cess to tile goods, and could easily show that proper care had been 
exercised in regard to them, if snch was the fact For this reason 
we hold it the more reascmable rule, when the bailor has Bhowu he 
stored the goods in good condition, and they were returned to hitn 
in a damaged state, or not returned at all, that the law will pre- 
sume negligence on the part of the bailee and impose on bim the 
burden of showing he has exercised such care as was required by 
the nature of the bailment." '■" 

"All persons," said Coulter, J., speaking with reference to a 
case of hiring, "who stand in lidnciary relations to others, are 
bound by the observance of good faith and candor. The bailor 
commits his property to the bailee, for reward, in the case of hiring, 
it is true ; bnt upon the implied undertaking that he will observe 
due care in its use. The propertyis in the possession and under 
the oversight of the bailee, whilst the bailor is at a distance. Under 
these circumstances, good faith requires that, if the property is 
returned in a damaged condition, some account should be given of 
the time, place and manner of t^e occurrence of tlie injury, so that 
the bailor may be enabled to test the accuracy of the bailee's re- 
port, by suitable inquiries in the neighborhood and locality of 
the injury. If the bailee returns the buggy (which was the prop- 
erty hired in this case), and merely says, 'Here is your property 
broken to pieces,' what would be the legal and just presumptiffli f 
If stolen property is found in the possession of an individual, and 
he will give no manner of account as to the means by whidi he 
became possessed of it, the presumption is that he stole it himself. 
This is a much harsher presumption than the one indicated by the 
court in this case. The bearing of the law is always gainst him 
who rei lains silent when justice and honesty require him to speak. 
It has been ruled that negligence is not to be inferred unless the 
state of facts cannot otherwise be explained ; but how can they be 
explained, if he in whose knowledge they rest will not disclose 
themt And does not the refusal to disclose them justify the infer- 
ence of negligence." '^ 

The rile was thus aptly stated by Peekham, J., in a case in New 
York, where the owner of a korse hired it to another, received it 
back foimdered, and brought an action against the bailee for its 
conversion: "Here, it will be observed, this horse was in the ex- 

10 Cummlna v. Wood, 44 111. 416, ii Loeho v. Uathews, 6 Pa. SL 

421; TeafSrmlng Bennett v. O'Brien, 41T, 419. 
87 111. 250. 



7crib;G00<^IC 



■ CAmtlRfa OF GOODS AND OTHEB BAILEB3. 1301 

elusive possession of the defendant. He had charge and care of 
him for hire. During that chai^ he ia injured in a way that or- 
dinarily does not occur without negligence; usually not without 
the horse has been used and then neglected. This may be safely 
said on the evidence and upon human experience. In such case the 
burden rests with the custodian, to show how the injury occurred, 
and he was not guilty of the negligence that caused it. This rests 
upon the defendant for two reasons. First, because the facts are 
within the defendant's peculiar knowledge, and he should, there- 
fore, prove them. Second, such an injuiy does not usually occur 
without negligence on the part of the custodian of the animal." '* 

§ 1834. A BSiddle Bnle adopted by the English Jndges.— The 
decision last cited in the preceding section leads me to the state- 
ment of the principle now acted upon by the English judges, which 
principle, the reader must already have perceived, is very sparingly 
admitted, and often denied, in American jurisdictions. This prin- 
ciple has been often quoted, in the lungua^ of Erie, G. J., in de- 
livering the opinion of the Court of Exchequer Chamber, in an 
action for damages for a personal injury grounded upon an allega- 
tion of negligence: "There must be reasonable evidence of negli- 
gence. But where the thing is shown to be under the management 
of the defendant or his servants, and the accident is such as, in the 
ordinary course of things, does not happen if those who have the* 
management used proper care, it affords reasonable evidence, in the 
absence of explanation by the defendants, that the accident arose 
from want of care."" In view of this principle, the English 
judges have concluded that the question whether the mere fact that 
the goods were damaged in transit will be evidence of negligence 
to charge a carrier, whose liability is limited by contract, unless ho 
explains the dami^e in a manner consistent with the exercise of 
reasonable care on bis part, will depend upon the nature of the 
damage in reference to the circumstances of the case. Those 
judges seem to agree that it is not sufHcient, as a general rule, to 
charge the carrier, for the plaintiff merely to prove damage,'* In 
such a case Wiiles, J., explained his view by the following illustra- 
tion: "If a shipment of sugar took place under a bill of lading, 

M CoUIdb T. Bennett, 46 N. T. 490, i« BovUI, C. J., In Czecb v. Oeneral 
494. Bte&m Nav. Co., L. R. 3 & P. 14, 18. 

>■ Scott T. LoDdon etc. Docks Co* 
3 Hurl, k Colt. E96, 60L 



D.qitizeabyG00l^lc 



1302 PROVINCE OF COURT AND JURT. 

such as the present one [exempting the carrier from liability for 
'breakage, leakage or damage'], and it was proved that the sugar 
was sound when put on hoard, and had beeome converted into syrup 
before the end of the voyage, — if that was put as an abstract case, 
I think the ship owTier would not be liable, because there may have 
been storins which occasioned the injury, without any want of ca*e 
on the part of the captain or crew; {be injuiy alcme, therefore, 
would be no evidence of negligence on their part. But if it was 
proved that the sugar was damaged by fresh water, then thert; 
would be a strong probability that the hatches had been negligentiy 
left open, and the rain had so come in and done the injury; and, 
though it would be possible that some one bad willfully poured fresh 
water down into the hold, this would be so improbable that a jury 
would be justified in finding that the injury had been occasioned by 
negligence in the management of the ship."" The English viewu 
also well illustrated by what was decided and stdd by the judges 
in a case where goods were shipped on board a steamer, under a bill 
of lading which contained an exemption from liability tor "break- 
age, leakage, or damage," and were found, at the end of the voyage, 
to be injured by oil It was proved that there was no (hI in the 
cargo, but that there were two donkey engines on deck, near the 
place where the goods were stored, in lubricating which, oil was 
used ; bat there was no direct evidence to show the manner in which 
■the injuiy occured. It was held that these facts constituted evi- 
dence of negligence to go to the jury. Boville, C. J., said: "The 
evidence, in ever}' case, must vary acccH^ding to its peculiar circnm- 
Btances; but if the goods are damaged, and no reasonable explana- 
tion of the damage can be given except the negligence of the de- 
fendants, the juiy are justified in finding that such negligence ia 
proved." Bylea, J., alao said: "It might not have been suflicient 
to prove that the injury occurred on board the vessel ; but it was 
shown that the goods were injured by oil, and that they were in 
close proximity to engines, in lubricating which, oil must have been 
used, and that no other oil was near thom. It was also shown that 
there was no defect in the engines, and no accidents on the voyage. 
If all this did not amount to conclusive evidence, it certainly was 
stnwg prima facie evidence, that the injury occurred through tiie 
negligence of the defendants."'* 

!■ Czech V. Oeneral Steam NaT. "Czech ▼. Oeneral Steam Nav. 

Co.. L. R. 8 C. P. 14, 19. Co., L. B. 3 C. P. 14, IS. 20. 



D.qitizeabyG00<^lc 



or OOODS AND OTEEB BAIIjEEa 1303 

5 1836. American DeciBions Approving the Engllsli Knie.— 
I'he priaoiple affirmed by Erie, C. J., in the language above quoted, 
was qnoted with approval by Mr. Justice Field in giving the opinion 
of the Supreme Court of the United States upon the question of 
what ia sufficient evidence of uegligence to charge a carrier, and the 
learned justice added the following observation : " A presumption of 
negligence from the simple occurrence of an accident seldom arises, 
except where the acoident proceeds from an act of such a character 
that, when due care is talceu in its performance, no injury ordinarily 
ensues from it in similar cases, or where it is caused by the mis- 
management or misconstruction of a thing over which the defendant 
has immediate control, and for the management or constructiou of 
which he is rcsi»nsible. " " A case in the Supreme Court of New 
York proceeded upon a similar conception of the law. The plaintiff 
brought an action on the case against one who had hired his horse, 
for negligently taldi^ care of the horse, so that it became of no 
value. It WHS ruled that the burden cf proof lay upon the plaintiff ; 
that it was not enough for him to show that the horse became dis- 
abled, but that it was incumbent upon him to show that it became 
disabled by the fault of the defendant.'* While it may be doubted 
whether the rule thus stated is the law in New Tork at the present 
time, — it should be stated that an early English nisi prius case sup- 
ports the same view. The action was assumpsit for not taking care 
of a horse hired by the defendant of the plaintiff. The plaintiff 
proved the hiring of the horse; that it was returned to him with 
its knees broken in consequence of a fall whilst used by the de- 
fendant; and that it had, before that time, been let out to hire, and 
had never fallen down. It was said by Le Blanc, J. : " The plaintiff 
must give some evidence of negligence, and as he had given none 
in this case, the plaintiff roust be nonsuited."" The same view 
was taken by the Supreme Court of Michigan, in a case where the 
circumstances of the injury were furnished by the evidence adduced 
to prove the bailment. A man loaned a flag to his employer, helped 
hSm hoist it, left it flying, and then went away. It was afterwards 
damaged by a hailstornt. It was held that the employer was not 
liable for the damage, without proof that he had failed to take due 
care of it.'" If the flag had been redelivered in an injured con- 

iT TransportfttloD Go. v. Downer, >• Cooper v. Barton, 8 Camp. G, 

II Wall. (U. S.) 129. 134. note. 

1* Harrington v. Snrder, 3 Barb. m> Beller v. Sctinltz, 44 Mich. 429, 

(N. ¥.) 380; citing Newton v. Pope, 38 Am. Rep. 280. But see Knlghta 

1 Cow, (N. Y.) 109. V. Plella, 111 Mich. », 69 N. W. 93, 

66 Am. 8t Rep. 875. Similarly It 



1301 



PBOVINCE OF COUBT AND JUBT. 



dition, and tliere hod been no evidence as to how it had become in- 
jured, it is craiceived by the writer that the case might have been 
different. The same view has been taken in two American courts 
in respect of the liability of a livery-stable keeper for an injurj- 
to a horse committed to his care. Such a bailee, it need scarcely be 
said, is not an insurer, but is liable only for the failnre ta use or- 
dinary care ; but these courts have gone further and hare held that, 
in such a case, the burden of proving the absence of this ordinary 
care, and the presence of that negligence which makes the bailee 
liable, is ordinarily upon the bailor.*^ 

§ 1836. As to Non-delivery: Demand and BefoBal a OonTW- 
sion. — It is merely another way of stating the prt^osition embodied 
in a preceding section, to say that, as a general rule, a demand by 
the bailor or owner, upon the bailee, for the redelivery of the thing 
bailed, after the arrival of the tame when, by the terms of the bail- 
ment, the latter is required to redeliver it, and a refusal by the 
bailee to redeliver it, is, without more, evidence of a tortious con- 
version of it, unless the cireumstancea of the case in themselves 
negative such a ccaiclusion.'* Mr, Justice Story states this to be the 
rule of the civil law in the case of a pledge or pavm, and he 



was held In a Texas case, tbat prov- 
tog a deliver? of tents In good con- 
dition and tbelr return In damaged 
condition did not make a prima 
facie case. Baker ft Lockwood Mtg. 
Co. T, Cla7toD, 46 Tex, GIt, App, 
3S4, 103 S. W. 197. See contra, 
Hlldebrand v. Carroll, lOS Wla. 3S4, 
82 N. W. 145, 80 Am. St Rep. 29. 

«i Carrier v. Dorrance, 19 S. C. 
30; DennU v. Hnyck, 48 Mich. 620, 
42 Am. Rep. 479. In the Michigan 
case the plalntlD himselt tied the 
horse In the stall, and it got loose 
and was Injured through eating 
from a hag of com on the barn floor; 
and a Judgment tor the platntllt was 
reversed because the court rotused 
to give a aerlea of Instructions to 
the effect that the plaintiff must 
shot' negligence on the part of tbe 
defendant and a freedom from neg- 
ligence on his own part, and that 
"the negligence of the defendant 
must be made out and estahtlsbed 



by proof, sad not left to be inferred 
from circumstances." The decision 
on its facts Is unquestionably right, 
since a reasonable Inference of neg- 
ligence could not be predicated upon 
the fact that the platntire horse 
got loose after being tied br himself, 
nnless it should be held negligence 
to leave a bag of com In a stable In 
such a place that a horse, getting 
loose, could eat from it,-^which, 
upon ordinary experleDce, could 
hardl.' be afOrmed. Contra, Free- 
man V. Foreman, 141 Mo. App, 869, 
125 S. W. 624. 

» Phllpott V. Keller, 3 Ad. A EH. 
106; Cranch r. White, 1 Blng. (New 
Cas.) 414; Ang. Carr., J 38; Story 
Ballm., S 339; Vaugban T. Webster, 
5 Harr. (Del.) 266; Lockwood v. 
Bull. 1 Cow. (N. Y.) 322; ante. 
g 1832 ; Arnold v. Sedalia Nat Bank, 
100 Mo. App. 474, 74 S. W. 1038; 
Philip Best Brewing Co, v. Elevator 
Co.. S Dak. 62, 27 N. W. 761. 



Goo^^lc 



CABBIEBS OF GOODS AND OTHEB BAIUB3. 



1305 



conceives it to be also the rule of the common law, hut with this 
qualification, — that "if a suit should be brought againat the 
pawnee for a oefrUgent loss of the pawn, there it would be incum- 
bent on the plaintiff to support the allegations of his declaration 
by the proper proo&, and the onus probandi, in respect to negli- 
gence, would be thrown on him."** 

§ 1837. DeliTeiy to tite Wrong Pergon a Oonverrion.— Deliv- 
ery of the property by the bailee to a person not entitled thereto, 
is in law a conversion of the property, and renders the bailee liable, 
irrespective of the question of negligence or bad faith in maiing 
such delivery,*' This is especially true in respect of carriers. "No 



n story Ballm., f S39. This la 
probably the meSDlng of the deci- 
sion In an old nlel prlus case before 
Trevor, C. J., In tie third year of 
Ann, wherein It was ruled that 
"trover lies not a^lnst a carrier for 
DeKligence, ae for losing a box, but 
It does for an actual wrong, aa U 
he break It to take out gooda or 
eell It And therefore denial la no 
evidence of a conversion. If the 
thins appears to have bean really 
loet by negligence; but If that doei 
not appear, or If the carrier had It 
In custody when he denied to d» 
liver It, It la good evidence of a oon- 
verelon." Anon., t Salk. SEE. Tn 
another old case It was ruled that 
trover would not lie against a vrhar 
Dnger from whose poaaesslon goods 
had been atolen or loet. Ross v. 
Johnson, 6 Burr. ZS2&. Though It 
was held that It would lie agafnat 
the captain of a ship for delivering 
goods, against an express direction, 
to a wharfinger, on account of a 
claim for wharfage which was not 
made ont. Sreda v. Hay, 4 T. R. 
260. For a precedent of an Instruc- 
tion aubmittfog the case to the Jury 
on the theory of coDvereloD, where 
the plalntlfTa trunk was lost In the 
handa of an omnibus line, see Ver- 
ner v. Sweitzer, 32 Pa. St. 208, 209. 



MWlIlard v. Bridge, 4 Barb. (N. 
Y.) 361, 367; Hawklna v. HofCman, 
6 Hill (N. T.), B88; Lubbock v. Ing- 
lis, 1 Stark, R. 104; Clark v. Spence, 
10 Watta (Pa.), 33B, 337, per Rogers, 
J; Hubbell v. Blandy, 87 Mich. 209, 
49 N. W. e02, 24 Am. St Rep. 154; 
Wear v. Oleaaon, 62 Ark. 364, 12 
S. W. 768, 2 Am. St Rep. 186. If 
property la demanded by a third 
peraon, under color of process, the 
bailee must see, If It U of a kind 
that requires a surrender thereof, 
and, If It is taken by force, he must 
take such steps to regain possession 
as a prudent man would take were 
his own property wrongfully taken. 
Morris Storage ft Transfer Co. r, 
Morris, 1 Oa. App. 761, 58 S. &. 232, 
This rule of delivery to wrong per- 
son rendering bailee liable, at all 
events, la no more stringent, than 
the rule which forbida the uae of an 
article bailed for one purpoae being 
used for another, aa regards any 
damage from such mlause. See 
Farkoi v. Powell, S6 Qa. SOO, 13 S. 
B. 200, 12 L. R. A. 397; Haloney v. 
Taft, 60 Tt 571. 15 Ati. 326, G Am. 
St Rep. 185; DeVolgn v. Michigan 
Lumber Co., 64 Wis. 616, 25 N. W. 
562, 44 Am. Rep. 619. But Bee Doo- 
little V. Shaw, 92 Iowa, 34S, 60 N. 
W. 321, 26 L. R. A. 366, Where, tm 



7crib;G00<^IC 



1306 PBOTINCE OF COUBT AND JUBT. 

obligaUoD of the carrier," says Peckham, J., "is more t^ronaly 
enforced than that which requires delivery to the proper person; 
and the law will allow, in fact, of no excuse for a wrong dflivery, 
except the fault of the shipper himself; and when there is any 
doubt, and it can be determined by documentary evidence, its pro- 
duction should be required."" 

I 1838. Some Evidence of Non-delivery Necessary to Shift 
Burden of Proof. — ^It is a general, though not an universal rule, 
that, where the law presumes the afErmative of any matter in issue, 
it is incumbent on the party who avers the contrary in his plead- 
ing, to prove it, alUwugh this may require him to prove a nega- 
tive. Thus, where any act is required to be done by a person, tie 
omission of which would make Mm guilty of a criminal neglect of 
duly, the law, it has been held, presumes the afSrmative, and throws 
the burden of proving the negative upon the part? who insists 
upon it. Therefore, where the plaintiff declared that the defend- 
ants, who had chartered his ship, put oa board a dangerous e<Hn- 
modity, by which a loss happened, without due notice to the cap- 
tain, or to any other person employed in the navigation, it lay 
upon him to prove such negative averment** So, in a suit f<n- 
tithes in a spiritual court, the defendant pleaded that the plaintiff 
had not read the Thirty-Nine Articles, and the court put the de- 
fendant to prove it, though a negative; whereupon he moved the 
King's Bench for a prohibition, which was denied, on the ground 
that in such a case the law will presume that a parson has read 
the Articles; for otherwise he would lose his benefice. "And when 
the law presumes the affirmative, then the negative is to be 
proved."" So, upon an information against Lord Halifax for 
refusing to deliver up the rolls of the auditor of the Court of Ex- 

orrest of crlmfnal, goods of another transports goods to another tlian 
are found In blB poasesslon, the ar- the destined point, bo as to avoid 
restlnK oOcer Ifi liable to owner, glv- their coming to tbe hands Of the 
Ing him notice, for converelos. If consignee, he has hie action for con- 
he turns tbem back to the party ar- vereion. Baltimore k O. R. Co. v. 
rested. Loeftel v. P<rftlman, 47 Mo. O'Donnell, 49 Ohio St 489, 32 N. Bt. 
App. 674. 476, 21 L. R. A. 117. 

M Purman V. Union Pacific R. Co., *• Williams v. East India Co., 

106 K. Y. 67a, 686. 9 Cent. Rep. 286; t East, 192. 

citing Hutch. Carr., i 130, Ang. it Monke v. Butler. 1 Rolle Rep. 

Carr., S 324; Wilson v. Adams Exp. 83. 
Co., 43 Mo. App. 659. If a carrier 



D.qitizeabyG00<^lc 



cahbiehs op iiooDs akd otheb bailees. 1307 

chequer, that court put upon the plaintiff the burden of proving 
a negative, namuly, tliat Lord Halifax did not deliver them-, for 
"a person shall be presumed duly to ezecate his office until the 
contrary appear." •" Applying this principle to the subject under 
consideration, we find that the following statement, from the text 
of Qreenleaf, has been often quoted with approval; "If the loss 
or non-delivery of the goods is alleged, the plaintiff must give some 
evidence in support of the allegation, notwithstanding its n^a- 
tive character.'"* The same principle is thus expressed by the 
late Mr. HntehinsfHi: "Although the claim of the plaintiff, in an 
action for the loss of the goods, may rest upon negligence or non- 
feasance, and not upon a positive misfeasance, and would there- 
fore seem to require proof of a negative character, the burden of 
showing the loss is unquestionably upon him, and be must give 
some proof of the allegation of the loss, notwithstanding its nega- 
tive character ; and if it be out of his power to show positively the 
lopi of the goods, he must, at least, prove such circumstances as 
would create the inference against the defendant that they hatl 
been lost; as, for instance, that they had been bailed to the carrier 
a sufficient length of time to be transported to their destination, 
and had not been there received or delivered to the person en- 
titled to them, to whom tiiey were consigned," As thus stated, 
the law casts on the plaintiff the duty of proving non-delivery." 

§ 1839. Strength of Such Evidence.— But it is said that sUght 
evidence of no?i-delivery will be sufficient.*' It has been held not 
necessary that the plaintiff should prove the fact by a preponder- 

wHalirai'B CMC, Bull. N. P. 7th 643; Anchor Line v. Dater, 68 HI. 

ed. 298. For anotber ancient ca^e, 369; Cliicago etc. R. Co. v. Northern 

decidad upon subatantlallj the same Line Packet Co., 70 111. S17; Da; v. 

principle, see Rex v. Coombs. Comb. Ridley, 16 Vt. 4S, 61; Roberta v. 

57. Crittenden, 88 N. Y. 83. 

IB 2 QreeoL Et., t 218. The same ■(> Hutch. Carr., S 764; Quoted 

language Is found In Angell on Car- with approval In South etc. R. Co. 

rlerv, i 470, and is approved In v. Wood, 71 Ala. 216, 46 Am. Rep. 

Woodbury v. Frink, 14 111. 279, and 809, on former appeal, 66 Ala. 167, 

In Sooth etc R. Co. v. Wood, 71 Ala. 41 Am. Rep. 749; Strawn v. Mis- 

!15, 46 Am. Rep. 809. See also 3 eourl K. ft T. R. Co., 120 Mo. App, 

Phlll. Ev. 820; Griffiths v. Lee, 1 135, 96 S. W. 488. 

Car. A P. 110; Tucker v. Cracklla, *i Woodbury t. Frlnk, H III. 279; 

2 Stark. Rep. 386; Midland R. Co. v. CblcaKo etc. R. Co. v. SlcUnBon, 74 

Bromley. 17 C. B. 872, 83 Eng. L. ft III. 24S. 
Bq. 23&; OUbart t. Dale, 6 Ad. ft BL 



D.qitizeabyG00<^lc 



1308 FBOVINCE OF COURT JlND JUET. 

once of evidence.*- Accordingly, the mere beUef of a witness, who 
was in a position to know the fact of delivery if it had taken place, 
that it had not taken place, has been held sufficient to shift the 
burden of proof. Thus: In assumpsit for negligence against car- 
riers in losing a parcel, delivery to the carrier was shown, and, 
then, to show that it was never redelivered, the plaintiff's shop- 
man was called, who gave evidence to the effect that he did not 
know of its delivery by the carrier, but believed that it could not 
have been delivered without bis knowledge. Baron Hullock was of 
opinion that this evidence was sufficient to call upon the defend- 
ants to prove a delivery by their porter or some other witness; 
because the plaintiff could not be expected to prove a non-delivery 
better than he had done," But this is quite eontrary to the pre- 
vailing English view, which is that the general rule must obtain 
here which applies in other cases,'* that where the evidence which ' 
the plaintiff produces is equally consistent with the ctmclusion of 
a delivery or of a non-delivery, he cannot recover; since the bur- 
den is upon him, and there is nothing in hia evidence to move the 
court.*' Accordingly, where a parcel is to be delivered by the de- 
fendant to another carrier for transportation, proof that it was 
not received at the end of the transit from such other carrier, is 
not evidence tending to show that it was not deUvered by the de- 
fendant to such carrier." Precisely the contrary has been ruled 
in Vermont. In that State it has been held that, where the goods 
are delivered to a carrier, under a contract that be will deliver 
them to the connecting carrier, for shipment by the latter to a des- 
tination named, evidence of such delivery and of the failure of the 

M Accordingly, It was beld proper plalotlff bad sent bU servant to tbe 

to refuse tbe foIlowlnK Instruction detendant'a warebouse tor tbe 

requested by the carrier: "Before goods, and that tbe servant bad 

tbe plalntltFs can recover In this brought back word that tbe defend- 

case, they must prove, by a. pre- ant'e agent said tbat the warehouse 

ponder&nce of testimony, that the had been broken Into and the goods 

broom-corn In question was not de- stolen, was no legal evidence of the 

Uvered to them by placing the car loss of the goods. Lamb v. Western 

containing the broom-corn upon the R. Corp., 7 Allen (Mass.), 98. 

track adjacent to plalntlfTa ware- ** Doe d. Welsh v. Langfield, 16 

house." Chicago etc R. Co. v. Dick- Mees. * W. 497. 

Inson, supra. " Midland R. Co. v. Bromley, 17 

»QrlffithB T. Lee. 1 Car. A P. 110, C. B. 372, 33 Eng. L. ft E!g. 236; 

11 Eng. C L. 333. Contrary to this, Qtlbart v. Dale, G Ad. ft B1-. 643. 

It was ruled. In a case In M&asa- *< Qllbart T, Dale, ■upra. 
ctinaettB, that evidence that tbe 



D.qitizeabyG00<^lc 



CABRIEBS OF GOODS AND OTUEB BAILEKa 1309 

goods to arrive at the destination named ia sufficient to chaise the 
first carrier. The court reascHi that, in the usual course of things, 
goods forwarded arrive at their destination; and therefore, the 
fact that goods do not arrive at one end of the line is some evidence 
that tJiey were not sent from the other. It seemed just and reasixi- 
able to the court that the carrier receiving the goods, or any other 
into whose bauds it was proved to have come, should, in case of 
ultimate loss, shown by the owner, "be required to show it out of 
their hands."*' I» a case of this kind, where the judgment waa 
affirmed on error, the following instruction was given in the trial 
eourt: "The burden of proof of the non-delivery of the trunk, at 
the place of delivery, ia m the plaiiitifF; and unless the pUuntiS 
has shown some evidence that the trunk waa not delivered, the de- 
fendant is not required to produce any evidence that it was so de- 
livered, in order to sustain his defense."" On the other hand, 
it was held error, where a car load of com had been transported 
by a railway company, and was left at a flag station on a side track 
where it had stood seven or eight days, after which, on unload- 
ing it, it was found that a considerable portion of it was missing, 
to ctiarge the jury tliat, "in the case of goods delivered to common 
carriers for carriage, when there is a loss or damage of the goods, 
the burden of proof is always on the carrier to show that his liabil- 
ity terminated before the loss or damage in question occurred."" 
The Alabama court also found it necessary to apologize for a seem- 
ing discrepancy between their present ruling and their ruling on 
a former appeal io the same ease. "The principle there stated," 
aaid Stone, J., referring to the former opinion, "is strictly appli- 
cable to a case where freight is delivered, but is found in a broken 
or damaged condition. In such case, the onus is evidently on the 
carrier to exculpate itself from all blame in the matter of the break 
or damage. But in this case the question rests on different prin- 

BT Brlntnall v. Saratoga etc. R. appeal, 66 Ala. IG7, 41 Am. Rep. 749. 

Co., 32 Tt 665, 675; Cote v. N. T., The court quote fram and ap- 

N. H. A H. R. Co., 182 MasB, 290, prove the decialon of the English 

63 N. E. 400, 94 Am. St. Rep. 656; CommoD Fleas In Midland R. Co. v. 

BL L. etc. R. Co. v. Coolldge, 73 Ark. Bromley, 17 C. B. 372, 33 Eng. U & 

il!, 108 Am. St. Rep. 21. Case Eq.. 235, which, as above seen, Is 

holding burden on initial carrier, opposed to some ol the American 

see Meredith v. Seaboard Air Une authorities. In that it requires the 

R. Co., 137 N. C. 478, 50 S. E. 1. owner to prove the negative fact ot 

"•Woodbury v. Frlnk, 14 111. 279. non-delivery by a preponderance of 

** South, etc. R. Co. V. Wood, 71 evidence. 
Ala. 215, 46 Am. Rep. 309, on former 

liq,t,7c-rib;G00<^IC 



1310 PEIOVINCE OP COURT HtD JfRT. 

ciples. The question is the non-delivery of the com, not the con- 
dition in which it waa delivered. On this question, as we have 
shown ahove, the onus is on the plaintiff primarily to make some 
proof of lhe non-delivery. This question, as we have shown, being 
s subordinate one, and of easy proof when the freight is delivered 
at a depot, becomes very material when tlie freight is delivered at 
a private siding, as in this case.'"" The language in the former 
opinion, thus explained, was the following, in the opinion of the 
court on the former appeal, given by Somerville, J.; "The first 
charge requested by appellant waa properly refused. It waa vi- 
cious, in assuming that tho liability of the rculway company de- 
pended on its negligence, or that of its ^ents. Being a common 
carrier, the road, in the absence of a special contract limiting its 
common-law liability, was an insurer against every loss or damage 
czcept that occasioned by the a;ct of God or the public oiemy. It 
is obnoxious to the further objection that it f^ls to recognize thu 
duty of exculpation which is always cast on common carriers, whero 
a damage or injury is shown in the case of goods delivered to them 
for carriage. In such cases, the general rule is that the onus of 
proof is always on the carrier to show that his liability terminated 
before the loss or damage in question occurred." 

§ 1840. As to Loss by Theft. — ^In the eaae of a gratuitous bailee 
this question does not present much difficulty, for he is liable only 
for slight care and answerable only for gross negligence ; and it will 
ordinarily be a good defense on his part, to show that he took as 
good care of the plaintiff's goods as he did of his own.*' On clearer 
grounds, the rule would be the same in a case where the defendant 
has furnished warehouse room merely for a rental or reward, with- 
out undertaking any duty of watchfulness or care.** But in an 
ordinary bailment for hire, the bailee unquestionably does assume 
the duty of exercising reasonable watchfulness and care, to prevent 
theft as well as to prevent other loasea of or injuries to the thintf 
bailed. Is it not, then, a reasonable conclusion that, where the thing 
is lost and he fails to give any better account of the loss than that 
it was stolen from him, he ought to be required to make good the 
damage! The courts, it is to be confessed, do not generally so hold. 

«• South, etc. R. Co. T. Wood, 71 he took as good care of the goods 

Ala. 219, 46 Am. Rep. 313. as he did of his own. nnucane v. 

41 In an oM case where the ball- Small, 1 Eap. 31S. 
ment was for reward. It was ruled " See Schmidt v. Blood, B Wend. 

br Lord Kenyon that the defendant (N. Y.) 268, 271; Flancane v. Small, 

exonerated himself tv showing that 1 Esp. 315. 

LnOO»^lc 



CASBIEBS OF GOODS AND OTHER BAILEES. 1311 

They generally agree that it is not enongb in such a case for tho 
bailor to rest upon the evidence that the goods were stolen from tho 
bailee, bat that be most give other evidence tending to show negli* 
gence on the part of the latter or bis servants.** It will be easier 
in reason to uphold this rule in the ease of private bailees than in 
the case of bailees who cany on a public business, such as ware- 
hoDsemen, carriers, safe deposit companies and innkeepers. The 
necessity of preventing tbeft by tbe carrier's servants is well known 
to have been the principal foundation of tbe ancient rule of tbe 
common law which placed the eanier under the onerous liability 
of an insurer in respect of all losses happening through other causes 
than the act of Ood or tbe king's enemies. It is not perceived why 
the same consideration should not operate to require public bailees 
of whatever character to show, in tbe case of loss by theft, that the 
tbeft happened notwithstanding tbe exercise of reasonable care on 
their part. Tbe following reasoning of Mr. Circuit Judge (after- 
wards Chancellor) Walworth, to a jury, in an action against a 
warehouseman for the value of certain goods stored with him and 
lost, where the defense was that the store had been entered by 
thieves or incendiaries, who had set fire to it, in which fire the loss 
had happened, remains, althoagh the decision has been overruled 
in tbe State in which it was pronounced, of much force: "In alt 
cases of bailment of property to a person who carries on a public 
business of receiving it into his custody or under his care for re- 
ward, it is necessary that a strict rule should be enforced against 
the bailee, to prevent fraud. Hence, when property entrusted to a 
warehouseman, wbariinger, or storing and forwarding merchant, 
in the ordinary course of business, is lost, injured, or destroyed, the 
weight of proof is with the bailee, to show a want pf fault or negli- 
gence on his part; or in other words, to show tbe injury did not 
happen in consequence of his neglect to use all that care and dili- 
gence on bis part, that a prudent or careful man would exercise in 
relation to his own property."" 

ui^amb V. Western R. Corp., 7 the reporter, Eeek Cowen (afUr- 

AUen (Hasa.), 98; Mayo v. Preetcm, wards a dlstingulsbed judge ol the 

131 HasB. SM; ClafUn v. Merer, 75 Supreme Court of New York), ex- 

N. T. 260; reTerelng: 11 Jones A Sp. preaaea a doubt of the aoundnesB of 

1 (overruling. It seems, Piatt v. Hlb- the language above quoted, citing 

bard, 7 Cow. (N. T.) 4S7, GOO); gome Ernglieh decisions, elsewhere 

Madan v. Covert, 13 Jones ft Sp. considered: Harris v. Fackwood, 3 

(N. Y.) 24G. Taunt. 264; Marsh v. Home, G Barn. 

"Piatt V. Hibbard, 7 Cow. (N. ft C. 322; Clay v. Wlllan, 1 H. Bl. 

Y.) 497. GOO. In a note to this case 29S. He concludes thus: 'Tbe dis- 



1312 PROVINCB OP OOXJBT AND JUEY. 

S 1841. [OoDtinaed.] When Circumstances Oarry Prenimption 
of STegligence, — The duty of watcbfulneas on Uie one hand, and the 
physical circuinstanceB attending the theft on the other, may, how- 
ever, be such that the fact of the theft will carry with it a presmnp- 
tion of negligence. This is well illustrated by an interesting case 
in Pennsylvania, where an action was sustained against a safe de- 
posit company for the value of some government bonds which bad 
been intrusted to tbem by the plaintiff for safe-keeping, and which 
had been stolen from the safe in which they were kept. The cir- 
cumstances of the theft were unknown, but there was no evidence 
that the safe had been broken or that the lock had been tampered 
with. "These facts," said Mercur, J., "being unquestioned, and 
the bonds having been taken from the safe, it necessarily follows 
that it had been opened with a key suited to the lock. In order to 
get access to the safe, a person would be obliged to step into the 
vault If he entered duiing business hours, one key would enable 
him to procure the bonds; if at other hours, it would require two 
keys to reach them from the office. The fact that the bonds were 
taken under these circumstances, was certainly some evidence that 
the company had not kept *a constant and adequate guard and 
watch over and upon the safe,' as by its agreement it was bound to 
do. It further agreed to prevent the access of any other renter to 
the safe of the defendant in error, and to protect his safe and its 
contents from any dishonesty of the company's employees. If any 
third peraons were given access to the vault, under circumstances 
that would have enabled them to unlock the safe and remove the 
bonds, and they had so done, although a contingency not provided 
for in the agreement, yet it cannot be pretended that it would not 
be evidence of a want of ordinary care. So, if the bonds were 
purloined by either renter or employee, it was certainly evidence 
to go to the jury of an omission on the part of the company to ezer- 

tlnctlon would eeem to be that, upon the plaintiff. In the case of 

when there la a total default to a common carrier, however, the rule 

deliver the goods balled, on demand. Is dltFerent The law presumes 

the onut ot accounting for the de- against him In all cases, even of 

fault lies with the bailee; otherwise accident, until he ahows the loaa or 

tie shall be deemed to have con- Injur? to have arleen from the 

verted the goods to his own use, and enemies of the State, or the act of 

trover will lie; but when be has Ood." This language has been 

shown a. loss, or where the goods are Quoted with approval In subsequent 

Injured, the law will not Intend neg- cases. For Instance, Claflln v, 

Ugence. The onuf ie then shifted Meyer, 75 N. Y. 260. SGS. 



Goo^^lc 



CABKIEBS OF UOODS AND OTHEfi BAILBBS. 1313 

dse that ordinary care and Tig;ilaiice whiclL men ordinarily exer- 
cise and ought to exercise ander such eircmnstances in the pro- 
tection of their own property. The vault and the safe were in the 
possession and under the protection of the company. The manner' 
in which the bonds were most probably taken sliifted the burden 
of proof. It threw upon the company the necessity of making 
some explanation to rebut its prima facie negligence."** In a 
ease where the goods of a guest had been lost in the custody of an 
innkeeper and the defense was that the loss had happened in con- 
sequence of a bui^larious entry, it was held that proof of the mere 
fact that the goods had been stolen while in the custody of the inn- 
keeper, would not exonerate him, without proof of some of the 
circumstances which ordinarily attend the breaking of a honse 
securely fastened, inasmuch as the majority of. such burglaries 
may be fairly supposed to result from negligence on the part of the 
iokeeper or his servants, or the inmates of the house, in which case 
the innkeeper is liable.** 

§ 1842. [Oontinned.] No Defense to a Oommon Carrier.— The 
writer has in his searches met with no case where a common car- 
rier has attempted to exonerate himself on the ground that the goods 
were stolen from him, though it is possible that such cases may be 
found. It is scarcely possible tJiat the courts will, in view of the 
fact that the ancient stringency of the rule against carriers was 
gronnded on the necessity of preventing their own frauds and the 
thefts of their servants, allow such a defense to prevail, even if 
the carrier should attempt by contract to limit his liability for such 
a loss. If, however, the carrier completes the transit, so that his 
liability becomes merely that of a warehouseman, the courts will 
no doubt apply to him the rule which they would apply in the case 
of any other warehouseman, which, as above seen, exonerates him 
unless negligence, in addition to tiie mere fact of theft, is shown. 

% 1843. Burden on Innkeeper to Show Manner of Loss or Fay 
Damages. — It has been well said concerning the liability of an inn- 
keeper: "He is bound to take all possible care of the goods, money 
and ba^age of his guests, deposited in his house, or entrusted to the 
care of his family or servants; and he is responsible for their acts, 
as well as for the acts of other guests. If the goods of the guests 

u Safe Deposit Co. v. Pollock, 86 «• McDantels v. Robloson, SS Tt 
Pa. St 191. S17, 319. See ante, i ISM. 

TrWa— 83 



Goo<^lc 



1314 PEOVINCB OB" OOUHT AND JUET. 

are damaged in tio inn, or are stolen from it hy Ihe servants car 
domestics, or by a stranger guest, he is bound to make restitntjcm ; 
for it is his doty to pro\'ide honest servante, and to exercise an exact 
vigilance over all persons coming into his house, as gnests or other- 
wise. His responsibility extends to all his servants and domestics, 
and to all the goods and moneys of his guests which are placed within 
the inn ; and be is bound in every event to pay for them if stolen, 
unless they were stolen by a servant or compani<m of the gneat."" 
"And by the better authorities," adds the Supreme Court of Ne- 
braska, "such seems to be the extent of the rule, where the goocl^ 
are stolen from the inn, and, as in this case, there is no evidence to 
show how it was done, or by whom ; the only exceptions being those 
losses arising from the n^ligence of the guest himself, the act of a 
companion guest or superior, or, as many of the cases put it, 'ir- 
resistible force.' "*• From this statement it follows that, in order 
to discharge the innkeeper, it is not enough to show that the loss 
or damage did not happen through his negligence or that of his 
servants.** Qualifying this doctrine, it has been said in Texas that 
the innkeeper may diachai^e himself by showing that he has used 
extreme care and diligence.** And the Nebraska court hold that, 
when it is established that the loss occurred within the inn, to prove 
which devolves upon the guest, the burden of showing it to be within 
one of these exceptions is cast upon the innkeeper; " for, "from the 
nature of the case, s guest cannot be presumed to have the means 
of knowing who is the guilty party, nor of establishii^ the fact of 

"HouBBf v. Tulley, 62 Pa. St 98, ley v. Aldrioh, SS N. H. BBS; Piper 

1 Am. Rep. 390; Dunbler v. Day, v. Manny, 21 Wend. (N. T.) 282. 

12 Neb. E96, 60S, 12 N. W. 109, 41 h Howth v. Franklin, 20 Tex. 798, 

Am. Rep. 772, 77B. 802. Where statute maae Inn 

*• Dunbler t. Day, aupra, 607, keeper liable, except the loss was 
opinion by Lake, J. The learned from "an Irresistible superhuman 
judge cftes Redf. Carr., J 696; Pink- cause," a Dre originating In the bat- 
erton t. Woodward, 33 Cal. 657; 81b- tery room of the hotel was held not 
ley T. Aldricb, 33 N. H. 6B3, 668; within the exception. Foy t. Pa- 
Shaw T. Berry, 31 Me. 478; McDsn- cl&c Improvement Co., 93 Cal. 263, 
lels T. Robinson. 26 Vt 316; Piper v. 28 Pac 943, 27 Am. St Rep. 198, 16 
Manny, 21 Wend. (N. Y.) 282; L. R. A. ISS. 

Howth V. Franklin, 20 Tex. 798; e> Dunbler v. Day, 12 Neb. C9G, 

Johnson v. Richardson, 17 111. 302; 607, 12 N. W. 109. So held in Nor 

Mason v. Tbompsou, 9 Pick. 280, 20 cross t. Norcrosa, 63 Me. 1G3; 

Am. Dec. 471. Scbnltz v. Wall, 134 Pa. 262, 19 Atl. 

M Shaw V. Berry. 31 Ma. 478; Sib- 742, 10 Am. St Rep. 686, 8 L. R. A. 
US. 



D.qitizeabyG00<^lc 



CARRIERS OF OOODS AND OTHER BAILEES. 



1315 



delinqnency on the part of the inokeeper."** From this it neces- 
sarily follows that an innkeeper is liable for money Btoleu from his 
guest, tlie gu€st himself not being negligent, and there being no evi- 
dence to show how, by whom, or why it was stolen.'' But this rule, 
it seems, applies only in the ease of the loss or damage of the goods 
of guests, and not to the loss or damage of the goods of permanent 
hoarders at the inn. It is a rule established by the common law for 
the protection of travelers and passengers ; it does not apply in the 
ease of a party who comes cm a special contract to board.'* In a 
case where a boarder seeks to charge the innkeeper with liability for 
loss or damage of his goods, it is incumbent upon him to prove 
negligence." 

§ 1844. As to Breakage, LealEage or Damage. — As intimated in 
a preceding section,'^ the role is precisely the same in the case of a 
total loss, i. e., non-deliverj', as in the case of damage, breakage or 
leakage with an exception hereafter stated. The obligation of the 
bailee to redeliver the thing bailed, in as good condition as that 
as which it was when he received it, with the exception hereafter 
stated, is co-extensive with his obligation to redeliver it at all, and 
rests upon the same grounds. With this exception he has under- 



■1 JobDBOQ V. Rlcbardson, IT III. 
302, 305. Tbe baggage of a depart- 
ing guest, paying up to the time of 
his departure, lelt merely for safe- 
keeping, fs not the baggage of a 
gueat, though the ordiaary check Is 
given therefor. Olenn v. Jackson. 
93 Ala, 342, 9 South. 259, IS L. R. 
A. 382. 

■■Dunbier v. Day, Bwpra. A de- 
posit of money by a regular boarder 
m a hotel safe, makes of the inn- 
keeper, at most, but a bailee for 
hire, not responsible for theft there- 
of by bis night clerk, where there 
1b no proof of want of ordinary care 
Id employing him. Taylor v. Dow- 
ney, 104 Mich. 532, 62 N. W. 716, 63 
Am. St Rep. 472, 29 L. R. A. 92. 

■« Chamberlain v. Masterson, 26 
Ala. 3T6; Manning v. Wells, 9 
HninplL (Tenu.) 746; Wlllard v. 



Reinhardt. 2 E. D. Smith (N. T.), 
148. 

"Story Ballm,, J 475; Chamber- 
lain T. Masterson, supra; Manning 
V. Wells, supra; JeOorda v. Crump, 
Bupra. See, further, as to the lia- 
bility of boarding-house keepers, 
Dansey v. Rlchardaon, 3 El. & Bl. 
144, 2G Eng. L. ft Bq. 76; Holder v. 
Soulby, S C. B. (n. s.) 264; Johnson 
V. Reynolds. 3 Kan. 257; Wiser v. 
Chesley, £3 Mo. 6J7. 

"Ante, g 832. Witting T. St 
LoulB ft S. F. R. Co., 101 Mo. 631, 
14 8. W. 743, 20 Am. St. Rep. 636, 
10 L. R. A. 602. It has been ruled, 
however, that. If a carrier accepts 
goods so Improperly packed as to 
be apparent to ordinary obBervatlon, 
he Is liable for injury thereto. Mc- 
Carthy T. Louisville ft N. R. Co., 
102 Ala. 193, 14 South. 870. 48 Am. 
St Rep. 20. 



7crib;G00<^IC 



1316 PBOVINCB OF OODBT AND JDBT. 

taken not only the duty to redeliver, but to redeliver in as good a 
condition aa when received. Accordingly, we find that, in statiBg 
the rule which casts the burden of proof upon the bailee, the courts 
are in the constant habit of using the words "loss or damage" ic 
the same sentence, — the juridical conception being that there is or- 
dinarily no distinction between the two cases. 

I 1845. Exception in Case of Qoods having Inherent Defects. — 
The exception to this rule is this: "Where the nature of the thing 
bailed is such as to render it as probable that the damage may have 
arisen through its own inherent defects as through negligence 
of the bulee, then, in the opinion of some judges, the law will not 
presume negligence from the mere happening of the damage, but 
will require some additional proof of it on the part of the plaintiff. 
This rule has been thus stated: ""When the damage to the thing 
shipped is apparently the result of its inherent nature or inherent 
defects, the shipper must show something more than it^ damaged 
condition before the carrier can be called on to explain. He 
must show some injuiy to the thing shipped which cannot be the 
result of its inherent nature or defects, before the burden is cast 
upon the carrier to show that he is not in fault." *' 

§ 1846. Such as Perishable Fruit. — On this principle, proof of 
the decay of perishable fruit committed to a common carrier is not 
of itself sufficient evidence of negligence to charge him with liabil- 
ity for its deterioration.*' The same principle exonerates a carrier 

«i Hueeey v. The SaragoBsa, 3 carrier Ib not renponslble for nat- 
WoodB (U. S.), 380, per Woods, J.; ural decay and deterioration. As 
Fentiman v. Atchison T. A B. F. R. to burden of proof, under the mod- 
Co., 44 Tex. Civ. App. 465, 9S 8. W. em method of shipments of perish- 
939. able freigbt, tbe authorities eeem 

M StoTT Balim., i 492a; Howard not to be In barmonr. Thus in 

v. WisHman, 18 How. (U. S.) 2Z1; Minnesota it is held to place the 

Brig Coilenbers, 1 Black (U. S.), shipment, under the ordlnarr nile, 

170. Compare Boyce v. Anderson, that Is delivery In sound condition 

2 Pet. (U. 8.) IGO. The rule tbe and damage at destination presumes 

antbor refers to has not tbe place negligence by carrier. Fockens v. 

It held prior to the use of refrlger- U. S. Eip. Co., 99 Minn. 404, 109 N. 

ator cars for the transportation of W. 834. And so seems the ruling 

perisbable freight, but the fact. In tbe caaes of St. Louia I. M. ft 

that an extra charge can be made S. Ry. Co. v. Renfroe (Ark.), 100 

for service of this kind, is a recog- S. W. S89, 10 L.. R. A. (r. b.) 

nltlon of tbe old principle, that tha SIT, and Orem Fruit A P. Co. V. 



o.GoQi^lc 



f-^aarniw OF GOODS AND OTHEB BAlLEBa. 



from responsibility for leakage arising from an imperfection in the 
cask, and not caused by any negligence or omission on his part.'* 

S 1847. And Live ATi^malg — Where a horse, in apparent good 
health and condition, was ediipped on board a steamer, and was deliv- 
ered at the end of the Toyage in a cdck und dying condition, but with- 
cat any fraeluree, wounds, or any external or visible injury, it waa 
held that some negligence or carelessness on the part of the carrier 
which would account for the condition in which the horse was deliv- 
ered, must be shown by the shipper, before he could put the earner 
in fault and recover damages for injury to the horse.** The mle as 



Northern Cent. Ry. Co., 106 Md. 1, 
66 AU. 436, the theory of such 
knowledge being within Its power 
being applied. In Iowa, however. 
It is said plalDtlB muet ebow fallare 
to refrigerate. C. C Taft Co. v. 
American EUpress Co., 133 Iowa, 
522, 110 N. W. 897. There 1b a con- 
flict. In decision, as to whether or 
not more than ordinary care Is put 
upon the carrier for refrigerator 
service. The Iowa mle eeems to 
be, that It la not a common carrier 
service proper and, therefore, not 
accompanied with the obligation of 
a high degree of care, but only or- 
dinary care. See C. C. Taft Co. v. 
American Express Co., supra; Beard 
V. IlllnoU Cent R. Co., 79 Iowa, 51S, 
44 N. W. 800. In nUnois an ap- 
pliance of this kind Is regarded as 
one for safe transportation, the 
same as good rails, etc Chicago A 
A. R. Co. T. Davis, 169 III. 63, 42 
N. E. 382. 

MHndson V. Baxendale, 3 Hurl. 
* N. 676. At least the carrier Is 
not responsible for the leakage of 
a liquid occasioned by the peculiar 
nature of the liquid Itself, or by 
secret detects existing In the casks, 
unknown to the carrier, when he 
received them for shipment; nor Is 
he responsible tor a diminution or 
leakage from barrels, though they 



he such as are commonly used for 
Btmilar purpoaes, If the barrels have 
become unfitted to hold their con- 
tents by causes connected with the 
nature and condition of the article, 
which the carrier could not control. 
Thus, hop's lard having certain 
qualities which make Its leakage 
from ordinary barrels or wooden 
casks unavoidable In hot weather, 
it has been held that one who ships 
It In that condition from a southern 
port for a long voyage, through low 
latitudes In midsummer, takes upon 
himself the risk of all losses which 
necessarily proceed from that cause. 
Nelson V. Woodruff, 1 Black (U. S.), 
1E6, 160. 

MHuaeey V, The Sar^ossa, t 
Woods (U. S.), S80. In so holding, 
Ur. Circuit Judge Woods said: "As 
well might a passenger who em- 
barks in good health claim to sup- 
port an action for damages again at 
the common carrier, by simply 
showing that, when he disembarked 
at the end of his voyage, he was 
In a sick and debilitated condition. 
The liability of a common carrier 
of animals Is not, in all respects, the 
same as that of a carrier of Inan- 
imate property. For Instance, he Is 
not an Insurer against Injuries aris- 
ing from the nature and propen- 
sities of the animals, and which 



7crib;G00<^IC 



1318 



PEOVINCB OF COUBT AND JUBT, 



to carriage of live anitruUs, is, that the carrier is not an insurer 
agaioKt injuries arising from the nature aod propen^ties of the 
animals and w'lich diligence and care cannot prevent;*' and where 
the owner aeeompanies them, the burden of proof, in an action for 
their injury grounded upon negligencCj is upon the owner, and not 
upon the carrier."* And so, in the ease of a hired slave who had 
disappeared while in the defendant's employment, but whether he 
had died or had escaped was not clear from the evidence, it was 
ruled that the burden was on the plaintiff to show that his loss wan 



diligent care could not prevent Hs 
ta, not liable for Injuries Itj disease 
contracted wttbout hlfl fault after 
tbe stock te delivered to him." Illi- 
nois Cent R. Co. v. Da.vlB ft Levy 
(HlSB.). 43 South. 674 (not reported 
in state reports); Wente V. Chi- 
cago B. A Q. R. Co., 79 Neb. 176, 112 
N. W. 300; Pullbrlght v. Wabaah R. 
Co., 118 Mo. App. 482, 94 S. W. 992. 
TblB rule BeemB not altogether ap- 
plicable to the Bhlpment In cars of 
live stock In great numbers to a 
distant market or slaugbter house, 
as to whicta statutory regulations 
are found, as called for by modern 
conditions. The theory of shipment, 
that precautions are to Insure, as 
far as possible against shrlakage In 
weight and tbe statutory regulation 
Is also upon a humane theory. 
Shrlnk^e, unusual In degree, vlth 
a large body of cattle or horses 
would Indicate as deflnltely negli- 
gence or carelessness, and perhaps 
more so than fractures and wounds 
of a single animal. On this subject 
see Teias ft PaclBc R. Co. r. Slator 
(Tex. ClT. App.}, 1D2 S. W. 1B6 (not 
reported In state reports ) . And 
then there is care to be observed In 
not exposing such shipments In In- 
fected districts. See Council v. St 
Louis ft S. F. R. Co., 123 Mo. App. 
432, 100 8. W. 57. In the case of a 
single horse it has been held, that 



carrier need not show the specific 
cause of death, but ought to submit 
proof to exclude the Idea of death 
from some other cause, which as 
perceived recognizes the Idea of bur- 
den being on the carrier the same 
as In ordinary cases. Adams V. 
Wells Fargo Bxp. Co. (Tex. Civ. 
App.), 95 8. W. 723 (not reported 
la state reports). 

■1 Clarke v. Rochester etc R. Co., 
14 N. Y. 670; Smith v. New Haven 
etc R. Co., 12 Allen (Mass.), 631; 
Hall V. Renfro. 3 Mete (Kj.) 61; 
Coupland v. Housatonie R. Co., 61 
Conn. G3I, 23 Atl. 870, IG L. R. A. 
634; Heller T. Chicago ft Q. T. R. 
Co., 109 Mich. 63, 66 N. W. 667; 
lIllnolB Cent R. Co. v. Scruggs, 69 
Miss. 418. 13 South. 698; Missouri 
Pac. R. Co. V. Fagan, 72 Tex. 127, 
9 8. W. 749. 13 Am. St Rep. 776. 
2 L. R. A. 76. 

"Clark V. St Lonls etc B. Co., 
64 Mo. 440; Elizabeth etc. R. Co. t. 
Wedger (Ky.). 13 Am. Law Reg. 
(IT. a.) 46, 49; McBeath t. Wabash 
etc R. Co.. 20 Mo. App. 446. Com- 
pare White T. Winnlslmmet Co., 7 
Cusb. (Mass.) 166; Ohio etc R. Co. 
r. Dunbar. 20 III. 623; HarHs v. 
North Ind. R. Co., 20 N. Y. 232; 
Kimball t. Rutland etc R. Co., 26 
Vt 247; Cincinnati. N. O. ft T. P. 
R. (^. V. Qrover, 11 Ky, Law Rap. 
236. 



D.qitizeabyG00<^lc 



CARRIKBS OF QOODg AND OTHEB BAILEES. 1319 

occasioned by the want of ordinary care on the part of the defend- 
ant." 

g 1848. Breakage of FragOe Articles. — But it cannot escape 
observation that this exception to the general rule has been very 
sparingly admitted by the American judges. In the case of the 
breakage in the hands of a carrier of the most fragile articles, such 
as plate glass,"* or other glass goods,*' or glaas counter cases,*' or 
marble slabs packed in a box," or a liquid put up in a glass ves- 
sel,*' — it has been held that the burden is cm the carrier to show that 
the injury happened under circumstances which exonerated hira 
from paying the damages; ** and the same rule has been iqiphed in 
the case of the leakage of wine from casks.'* 

S 1649. Leakage of Wine. — But where the exception was against 
liability for leakage or breakage, and the goods cim^sted of some 
casks of wine, it was held that the fact that the casks were of an 
inferior quality, threw upon the claimant the burden of proving 
that the injury to the casks was caused by the negligence of those 
navigating the ship, and that the leakage was greater than the aver- 
age in such casks.^* 

g 1860. Application of the Foregoing PrincipleB in the Case of 
Common Carriers: A Division of Judicial C^inion Stated. — A 
common carrier is liable at conmum law, as an insurer, for any loss 
or damage of the goods entrusted to him for carriage, except such 
as happens tiirough the act of God, the enemies of the State,'* the 

"Caldwell t. Ruoyao, 7 Humph. H. 20, SO; American Bxp. Co. v. 

(Tenn.) 1S4. Sands, 66 Pa. St. 140; Steele v. 

•« Drew V. Red Line Transit Co., TowDsend, 87 Ala. 147, 263. 

3 Mo. App. 496. TO Rocbereau T. Bark Hauaa, 14 

uTardoB v. Sblp Touloa, 14 La, La. Ann. 431. 

Ana. 4S9; Degge v. American Bx- " 630 Quarter Casks, 14 Blatchf. 

press Co., 64 Mo. App. 102. <U. S.) 617; Yaugban v. 60S Caahs, 

"Merrlman t. The May Queen, 7 Ben. (U. S.) 606; The GlaTerbum, 

1 Newb. (U. S.) 464, 474. 147 Fed. 860. 

"T Shriver v. Sloui Cttj etc. R. " Forward v. Pittard, 1 T. R. 37; 

Co., Z4 Minn. 606. Read V. Spanldlng. 30 N. T. 630; 

*» HastingB T. Pepper, 11 Flok. Nugent r. Bmltb, 1 G. P. DIv. 42S. 

(MaSB.) 41, 44. He Is called an Insurer as to all 

w Other cases nhere the same perils arialng out of the use of de- 
rule has been applied In the case of fective or Inadequate Instruments 
breakage are Hall t. Cbener, 36 N. of carriage and the employment ot 



D.qitizeabyG00<^lc 



1320 



PBOVINCE OF COURT AND JUBT. 



owner of the goods/* or from inherent defects in the goods them- 
selves.'* He may also, by special contract with the shipper, further 
restrict his liability, except for loss or damage happening throngh 
the negligence or fraud of himself or his servants; but such a con- 
tract, in so far as it undertakes to exonerate bim from liability for 
Ices or damage caused by such negligence or fraud is void, as being 
inconsistent with his undertaking and contrary to public policy.'* 
Whether his liability rests as at common law, or is thus further re- 
stricted by the terms of a special contract with the shipper, the 
owner of the goods ordinarily makes out a prima fade case to charge 
him, by proving the fact of delivery to him, and of non-delivery 
by him after the lapse of a reasonable time, or of delivery to him in 
a good condition and of redelivery by him in a damaged condition, 
according to the principle stated in a preceding section." This 



Incompetent, negligent or criminal 
servantB. NlUock v. PenneylTanla 
R. Co., 1G6 P&. 1S4, 30 AU. 94g, 45 
Am. 8t. Rep. 674, 27 L. R. A. 228. 

'■Murphy v. Staton, S Uunt. 
(Va.) 239. 

T4 Ante, i 1845, et aeq. 

Ti Swindler v. HllUard, 2 Rich. L. 
(8. C.) 286; United SUtes Bip. Co. 
V. Backman. 28 Ohio St 144, 16E; 
anion Exp. Go. v. Graham. 26 Otato 
St. 595; Qraham v. Davis, 4 Ohio St. 
362: Welsh V. Ralhoad Co.. 10 Ohio 
St. 66; Railroad Co. v. Curran, 19 
Ohio St 1; Berry v. Cooper, 28 Oa. 
543; Farnham v. Camden etc. R. Co., 
5S Pa. St. 53; Orogan v. Adams EUp. 
Co. (Pa.), 6 Cent. Rep. 298; Lamb 
V. Camden etc. R. Co., 46 N. Y. 271; 
American Exp. Co. v. Sands. 55 Pa. 
St 140; Southern Exp. Co. v. Moon, 
89 Mlas. 822; The City of Norwich, 
4 Ben. (U. S.) S71; Black v. Good- 
rich TranaporUtlon Co., EB Wis. 318. 
13 N. W. 244; Chicago etc. R. Co. 
V. Abels, 60 Mtsa. 1017; Kansas City 
etc R. Co. T. Simpson, 30 Kan. 64&, 
2 Pac 831; Moulton T. St Paul etc 
R. Co.. 31 Minn. S5, 16 N. W. 497; 
Hazel V. Chicago M. A St. P. R. Co., 
82 Iowa, 477, 48 N. W. 926; South- 



ern Pac. R. Co. V. Maddoi, 76 Tex, 
300, 12 S. W. 815; Georgia P&c. R. 
Co. V. Hughart, 90 Ala. 3G. 8 South. 
62; Georgia R. ft Bkg. Co. v. Keener, 
93 Ga. SOS, 21 S. E. 287, 44 Am. St 
Rep. 197; Adams Exp. Co. v. Harris, 
120 Ind. 73, 21 N. E. 340, 16 Am. St 
Rep. 315, 7 L. R. A. 214. 

'•Ante, ! 1832; Hussey r. Sara- 
gossa, 3 Woods, 380; Ang. Carr., 
t 202; Cboate v. Crownlnahleld, 3 
Cliff. 184, opinion by Mr. Justice 
Clifford; Clark v. Barnwell, 12 
How. (U. S.) 272; Rich v. Lambert, 
Id. 347; Chltty on Carr. 161; Story 
on Bailments, H 628, 529; 3 Kent 
Com. 213; 1 Smith's Leading Caa. 
313; Smith, Merc Law, S4S; Pro- 
peller Niagara v. Cordes, 21 How. 
(U. S.) 726; Chouteaux v. Leech, 
18 Pa. St 224; Fland. on Ship., 
I 257; Marv. on Wrks. Sal. 21; Par- 
son, Merc. Law, 348; Hooper v. 
Rathbone, Taney (U. S.), 519; Bell 
V. Reed, 4 Btnn. (Pa.) 127. 136; 
Tarbox v. Eastern Steamboat Co.. 
60 Me. 339, 343; Beckman v. Shonae, 
S Rawle (Pa.), 179, 189; Tucker v. 
Cracklln. 2 Stark. 385; Hawkes t. 
Smith, 1 C^r. ft M. 72; Day V. Rid- 
ley, 16 VL 48; Van Winkle v. Sonth 



D.qitizeabyG00<^lc 



CA&RIEBS OF GOODS AND OTHBB n*"4B t S i 



1321 



Carolloa. R. Co., 38 Oa. 32; Uttle v. 
Boston etc. R. Co., 66 Me. 239; Davla 
T. W&baah etc. R. Co., 89 Mo. 310, 
13 Mo. App. 449, 1 S. W. 327; Adanu 
T. Stetuuers. 61 III. 184, 187; Fair- 
fas V. New York Ceutral etc., R. Co., 
71 N. r. 167, 170; Tunibull v. ClU- 
Bena' Bank, 16 Fed. 14E, 148; United 
States T. Pacific Exp. Co., 16 Fed. 
867; Buddy v. Wabasb etc. R. Co., 
20 Mo. App. 206; Turaey t. WIIbod. 
7 Yerg. (Tenn.) 340; Camden etc. 
R. Co. V. Baldauf. IS Pa. St. 67, 77; 
Clark T. Spence, 10 Watts (Pa.), 
836: Terner t. Sweltier, S2 Pa. St. 
a08, 214; Sontli etc R. Co. v. Hea- 
leln, 63 Ala. SD6, 612; Fairfax T. 
New Tort etc. R. Co., 67 N. Y. 11 
(revenlng S Jones A Sp. 616); 
Steers t. Liverpool etc. Steamship 
Co., 67 N. Y. 1 (distlngnlstilng Coch- 
ran T. Dinsmore. 49 N. T. 249); 
Swindler v. HUUard, 2 Rich. L. (S. 
C.) 286, 306; United States Exp. Co. 
T. Backman, 28 Ohio St. 144; Berry 
V. Cooper. 28 Oa. 643; Hill ▼. Stur- 
geon, 28 Mo. 2S3; Baker v. Brlnaon, 
i Rich. L. (S. C.) 201; Union Bzp. 
Co. T. Orabam, 26 Ohio St. 695; 
Singleton v. HfUIard, 1 Strobh. L. 
(S. C.) 203, 218; American Exp. Co. 
V. Sands, 66 Pa. St. 140; Fambam 
V, Camden etc. R Co., 66 Pa. St 
68; Bnmeli t. New York etc R. Co., 
4G N. Y. 184; Orogan ▼. Adams Exp. 
Co. (Ps.), 6 Cent. Rep. 298; Riley 
T. Home, 6 Blng. 217, 226; Spyer 
▼, The Mary Belle Roberts, 2 Sawy. 
(U. 8.) 1; Hunt t. The Cleveland, 
6 McLean (U. &), 76, 79; The 
Mohler, 21 Wall. (U. &) 230; The 
Ocean Ware, 3 bIbb. (U. S.) 317; 
Werthelmer t. Pennsylvania R. Co., 
n BlatcM. (U. 8.) 421; The Nep- 
tune, 6 Blatcbf. <U. S.) 194; David- 
son T. Qraham, 2 Ohio St. 131, 141; 
Whitesidea v. Rnwell, 8 Watts ft S. 
(Pa.) 44; Alden v. Pearson, 3 Qray 
(Mass.), 842; Levering t. Union eto. 



Co., 42 Mo. 88, 96 ; King v. Shepherd, 
3 Story (U. S.), 349; Steele v. Town- 
send, 37 Ala. 247; Gray v. Uohlle 
Trade Co., 66 Ala. 387, 399, 400; 
Mobile etc. R. Co. v. Hopkins, 41 
Ala. 486; Mobile etc R. Co. v. Jar- 
boe, 41 Ala. 644; Shaw v. Gardner, 
12 Gray (Mass.), 488, 490; Mann v. 
Birchard, 40 Vt. 326; Colton v. 
Cleveland etc R. Co., 67 Pa. St. 211 ; 
Graham v. Davis, 4 Ohio St 362; 
Roberta t. Riley, 16 La. Ann. 103; 
Chicago etc R. Co. v. Moss, 60 Miss. 
1003, 46 Am, Rep. 42S; Chicago etc. 
R. Co. T. Abels, SO MIbs. 1017; Pat- 
terson V. Clyde, 67 Pa. St 600, 606; 
Little Rock etc. H. Co. v. Talbot, 39 
Ark. 623. 629; Railroad Co. v. Ix>ck- 
wood. 17 Wail. (U, S.) 367, 376, 377; 
Brown v. Adame Bip. Co.. 16 W. Va. 
812, 818; Dunseth v. Wade, 3 III. 
286, 288; Bwart T. Street, 2 Bailey 
(S. C), 167, 161; Atwood v. Re- 
liance Transportation Co., 9 Watts 
(Pa.) 87; Smyrl v. NIolon, 2 Bailey 
(8. C), 421; Schooner Emma John- 
eon, 1 Bprague (U. S.), 627; Bearae 
Mitchell V. United States Exp. Co., 46 
V. Ropes. 1 Spraeue (U. S.), 331; 
Iowa, 214; Whltworth v. Erie R. Ca, 
87 N. Y. 413. 419; Lamb v. Camden 
etc R. Co., 46 N. y. 271; CaldweU 
T. New Jersey Steamboat Co., 4? 
N. Y. 282; Haye v. Kennedy, 41 Pa. 
St 378, 384; Humphreys v. Reed. 6 
Whart (Pa.) 435, 444; Letchtord v. 
Golden Eagle, 17 La. Ann. 9; Kirk 
V. Folsom, 23 La. Ann. 684; Price v. 
Ship Uriel, 10 La. Ann. 413. The 
following Is the oelebrated passage 
of Lord Hansfleld on this question, 
often quoted In modem opinions: 
"To prevent litigation, collusion, and 
the necessity of going Into circum- 
stances impoBBlbie to In unravelled, 
the law presumes agalnat the car- 
rier, unless he shows It was done by 
the king's enemies, or by such act 
as could not happen b^ the inter- 



D.qitizeabyG00<^lc 



1322 



PBOVINCB OP OOUBT AND JUBT. 



done, the carrier must exonerate himself or pay damagca. At this 
point there is a divergence in the judicial conception of what is 
necessary on his part to exonerate himself. According to one con- 
ception, it is sufficient for him to present proof which, according 
to the usual formula of judicial speech, "brings the case within the 
excepted peril; " which means that be must produce evidence show- 
ing that, at the time of the happening of the loss or damage, the 
excepted peril, — whether it be a peril excepted by tie rule of the 
common law or by the terms of a special contract with the shipper, — 
was present and operating as an efficient cause of the loss or dam- 
age. By showing this, according to this conception, he rebuts the 
presumption of negligence created by the naked proof of the fact 
of the loss or damage, as above stated, and Che burden of proof then 
$hifts upon the plaintii^ to prove that, notwithstanding the pres- 
ence of the excepted peril and its operation as an efficient cause in 
producing tJie loss or damage, the carrier was guilty of negligence or 
fault.^^ The other conception is that it is not enough for the car- 
rier to show that, at the time of the happening of the loss or dam- 
age, the excepted p:!rU was present and oi^erating to produce it, 
but that he mnst also show that he and bis servants were not guilt}' 
of negligence or fault in the premises, — in other words tiat the ex- 
cepted peril was the sole cause of the loss or damage.'* 



ventlon of man, ae Btorms, llgbtnlng 
and tempests." Forward v, Plttard, 
1 T. R. 27, 38. In cases where there 
1b do contract limiting tlie llEtblUty 
of the carrier, this poaltton 1b be- 
yond all controverBy, "Blnce every- 
thlns Ib negligence whlcb the law 
does not excuse." Dale v. Halt, 1 
WllB. ZSl; Central Of Georgia Ry. 
Co. V. City MUla Co., 128 Ga. S41, 
68 a. B. 197. - 

" Clark V. Barnwell, 12 How. (U. 
S.) 272; Spyer v. The Mary Belle 
Roberts, 2 Sawyr. (U. S.) 1; Hunt 
V. The Cleveland, 6 McL«an (U. S.), 
76, 79; Wertbelmer t. Peonsylvanla 
R. Co., 17 Blatchf. (U. S.) 131; The 
Neptune, 6 Blatchf. (U. 9.) 194; 
Kelbam v. The Kensington, 24 La. 
Ann. 100; Kirk t. Folsom, 23 La. 
Ann. eS4; Price v. Ship Uriel, 10 La. 
Ann. 413; Colton v. Cleveland etc 



R. Co., 67 Pa. St. 211; Patterson v. 
Clyde, 67 Pa. St 600, 506; UtUa 
Rock etc. R. Co. v. Corcoran, 40 Ark. 
37B; Little Rock etc. R. Co. t. Tal- 
bot, 39 Ark. G23, 630; Little Rock 
etc. R. Co. r. Harper, 44 Ark. 208; 
Mitchell V. United States Eip. Co., 
4C Iowa, 214; Whitworth v. Brie R. 
Co., 87 N. Y. 413, 419; Lamb t. Cam- 
den etc. R. Co., 46 N. T. 271 (two 
of the five Judges dissenting) ; Fam- 
hsjn T. Camden etc. R. Co., 65 Pa. 
St 63; Read t. St. Louis etc R, Co.. 
60 Mo. 199; DavlB v. Wabash etc R. 
Co.. 89 Mo. 340. 362 (reversing 13 
Mc App. 449); McFall v. Wabash 
R. Co., 117 Mo. App. 477, 94 a W. 
670. 

I* Swindler v. HtlU&rd, 2 Rich. L. 
(S. C.) 286; Baker v. Brinson, 9 
Rich. L. (9. C.) 201; Singleton v. 
HlUlard, 1 Strobh. U (a C) 203; 



7crib;G00<^IC 



CABBIERS OF GOODS AND OTHBB BAILEB3. 



1323 



S 1851. Source of this Divergence of Opinion: Whether the 
Special Contract BednooB the Carrier to the Statos of an Ordi- 
narjr Bailee for Hire. — In searching for the source of this differ- 
ence of opinion, it is found that the viewa of the courts have di- 
vei^d upon the question of the effect of the special contract with 
the shipper, by which the carrier attempts to discharge hiinself from 
his liability as an insurer at common law. All the American courts 
agree to the conclusion stated in the preceding section, that such 
a contract cannot be allowed to have the effect of discharging the 
carrier frtan liability for losses or injuries happening through the 
negligence, fraud, or other fault of himself or his servants. Upon 
this point there is now no substantial difference of opinion, and the 
subject may be laid entirely out of view. But the divergence of 
opinion commences at the point where some of the courts concede 
to such a contract the effect of reducing the liability of the common 
carrier to that of a mere private carrier or ordinary bailee for hire, 
so as to make him liable only for the exercise of ordinary care, dili- 
gence and skill ; ** while others deny this effect to it, and hold that 
the law will not, on grounds of public policy, permit the carrier 
thus to east off entirely the liability imposed upon him by the com- 
mon law, but that he still remains, though to a modified degree, a 
public carrier and subject to the obligations attaching to that office.*" 



United States Exp. Co. v. BaclimaD, 
28 Ohio Bt 144; Union Bxp. Co. t. 
Qrahrnn, 26 Ohio St. 695; Berry v. 
Cooper, 28 Qb.. 643; Davidson t. Ora- 
ham, 2 Ohio St. 131, 111; Qraham v. 
Davis, 4 Ohio St. 362; Whltealdes t. 
Russell, S WatU A 9. (Pa.) 44; Lev- 
ering V. Union Transp. etc Co., 42 
Uo. 88, 06, 96 (overruled, It Beeme, 
by RoiA v. St. Louis etc R. Co., 80 
Mo. 199); Chicago etc R. Co. v. 
Moss, 60 MlBB. 1003, 4G Am. Rep. 
42S; Chicago etc. R. Co. v. Abels, 
60 Mlaa. 1017; Brown T. Adams Bxp. 
Co., 16 W. Va. 812, 818; Hays v. 
KennedT, 41 Pa. St. 378, 381; 
Humphreya v. Reed, 6 Whart. (Pa.) 
435, 444 (overruled. It aeems, hy 
PattOTSon T. Clyde, 67 Pa. St. 600. 
606; and Famham v. Camden etc. 
R. Co., 66 Pa. St 63) ; South, etc. R. 
Co. V. Henlelo, 52 Ala. 606, 612; 



Read V. Spauldlng. 30 N. T. 630. 646; 
Michaels v. New York etc. R. Co., 
30 N. Y. 664, 6TS (overruled by 
Whltworth V. Erie R. Co., 87 N. Y. 
413, 419, and Lamb v. Camden etc. 
R. Co., 46 N. Y. 271). 

"York Co. v. Central Railroad, 
8 Wall. (U. S.) 107; MerrJman v. 
Brig May Queen, 1 Newb. (U. S.) 
461; Colton T. Cleveland etc. R. Co., 
67 Pa. St. 211; Sager v. Portsmouth 
etc R. Co.. 81 Me. 228, 238; Camden 
etc. R. Co. T. Baldauf, 16 Pa. St. 67, 
77; Vemer v, Sweltser, 32 Pa. St 
208; Goldey v. Pennsylvania R. Co., 
SO Pa. St S12, 246; Dorr v. New 
Jersey Steam Nav. Co., 11 N. Y. 185, 
493; Lamb v. Camden etc. R. Co., 
46 N. Y. 271, 278. 

so Davidson v. Graham, 2 Ohio St. 
131, 140; Graham v. Davis, 4 Ohio 
St. 862; Levering v. Union etc Co., 



;aoyGoO<^lc 



1824 



PBOVINCB OF OOIIBT AND JUBT. 



§ 1852. Inconaistenoy of the Coorta in Kespeet of this Qnes- 
Uon. — ^But some of the courts have not been consistent in adopting 
and applying one or the other of these conclusions. Both conclu- 
sions have been announced in decisions of the same court." The 



ti Mo. 88, 95; Steele y. Towneend, 
17 Ala. 247, 253; Swindler t. HIl- 
llard. 2 Rich. L. (8. C.) 2gS; Baker 
V. Brlnaon, 9 Id. 201; Railroad Go. 
V. Lockwood, 17 Wall. (U. 8.) 357, 
376; Brown v. Adams Eip. Co., 15 
W. Va. 812, 818; Atchison etc. R. 
Co. y. Waebbum, 6 Neb. 117, 121; 
Bank of Kentucky y. Adama Ezp. 
CO., 93 U. a. 174, 180, 185. 

11 Compare York Co. v. Central 
Eftllroad, 3 Wall. (U. S.) 107, with 
Railroad Co. y. Lockwood, 17 Wall. 
(U. 8.) 367, 376, and Bank of Ken- 
tucky V. Adams Exp. Co., 93 U. S. 
174, 185. In Railroad Co. v. Lock- 
wood, Bupra, Mr. Justice Bradley, In 
giving tbe opinion of the court, cites 
Davidson v. Graham, 2 Ohio St. 131; 
Qraham v. Davis, 4 Ohio St. 362; 
Swindler v. Hllllard, 2 Rich. L. (S. 
C.) 286; Baker v. Brlnaon, 9 Id. 
201; Steele v. Townsend, 37 Ala. 
247.— all of which hold that, where 
there is a special contract limiting 
the liability of the carrier, the bur- 
den Is upon the carrier, not only to 
bring the loss within the exception 
of the contract, but also of showing 
that he was guilty ot no negligence 
contributing thereto. Now, It Is to 
be observed that this doctrine had 
been denied by the Supreme Court 
cl tbe United States In Clark v. 
Barnwell, 12 How. (U. S.) 272, 
which Is the leading case In favor 
of the opposing doctrine, that where 
the carrier brings the case within 
tbe excepted peril, tbe burden la 
shifted upon the owner, of showing 
negligence or fault In one of the 
caaea above cited by Mr. justice 
Bradley (Qraham v. State, 4 Ohio 



St 362), the decision In Clark v. 
Barnwell was severely criticised bj 
Ranney, J. The Supreme Court of 
the United States in Railroad Ca 
v. Reeves (lt> Wall. (U. S.) 176, 
189), had reaffirmed the doctrine of 
Clark v. Barnwell, eupra. So that 
the announcement of the principle 
In Railroad Co. v. Lockwood, eupra, 
baa not bad any apparent practical 
influence upon the decisions of that 
court, but remains a mere abstract 
theory. So, In Missouri, where the 
doctrine that a carrier cannot, by 
contract, reduce himself to the 
status of an ordinary bailee tor hire, 
was asserted in a vigorous opinion 
by Wagner, J. (Levering v. Union 
etc. Co., 42 Mo. 88, 95, 96), tbe same 
court, in a subsequent case (Read 
V. St. Louis etc. R. Co., 60 Mo. 199), 
In which the opinion was delivered 
by the same Judge, entirely Ignor- 
ing or forgetting Its previous ruling, 
announced Its adherence to the doc- 
trine of Railroad Co. y. Reeves, and 
then decided the case on another 
ground ; and the same court, la Da- 
vis V. Wabash etc R. Co. <89 Mo. 
340, 354), baa recently reaffirmed Its 
adherence to the same Idea, — ^wblch 
ia, that tbe carrier exonerates him- 
self by showing the presence ot the 
excepted peril, and that the shipper 
must then show negligence or fault. 
In New York, Pennsylvania and 
Missouri, tbe courts have swung 
back and forth upon this question 
like the oscillations of a pendulum, 
and the writer Is Justlflad In saying 
that some of their decisions have 
been loosely and feebly considered. 



D.qitizeabyG00<^lc 



OABRIEBS 07 GOODS AND OTHER BAILEEa 1325 

courts which adopt the f^nrmer view reaBon that "this neither 
changes nor interferes with any established rule of law; it tmly 
makes a ease to be governed by a different rule ; " ** and that ' ' the 
most that it can do is to relieve them from those conclusive pre- 
sumptions of negligence which arise when the accident is not in- 
evitable, even by the highest care, and to require that negligence 
be actually proved against them.'* 

g 1S&3. Seasoning of those Courts which deny this Effect to 
the Contract. — On the other hand, those courts which have denied 
that it is within the power of the common carrier, by a mere con- 
tract with the shipper, to reduce his status to that of a private 
carrier or bailee for hire, have placed their conclusions upon such 
unanswerable reasoning as this: "It is not true that the character 
of the employment is changed by such wmtract, and the carrier 
is not, and cannot in fact be regarded as a mere private bailee for 
hire. He is still a common carrier, and not at liberty to refuse 
to perform his duties as such, even in regard to the particular 
transaction to which the contract relates. In consequence of the 
nature of his empIojTuent and its connection with the public in- 
terests, the common carrier is held to a higher degree of diligence 
than the private carrier; and he cannot be allowed, with proper 
regard for the public safety, to relieve himself to any extent from 
that care and diligence which have been enjoined upon him from 
considerations of great public interest. We are onanimons in 
holding that the common carrier cannot relieve himself to any ex- 
tent by special contract, from losses occasioned by his own neglect; 
and that, although he may, by contract, restrict his liability as an 
insurer, yet that he cannot stipulate for a less degree of care and 
diligence, in the discharge of his duty, than that which pertains 
to bis peculiar trust as a bailee."'* "The taking of reasonable 
care, and the furnishing of cars reasonably safe and Huitable for 
. the business- -these seem to be the very things required by law; 
and unless the carrier shows satisfactorily that he has come up to 
the.% requirements, he will he responsible for loss without regard 
to his special contract for exemption," •* "It is a mistake to sup- 

" Dorr V. Now Jersey Steam Nav. »* Davidson v. Grabam, 2 Ohio St 

Co., 11 N. Y. *85, 493. opinion by 131, 140, opinion by Bartley, J. 

Parker, J. " Levering t. Union etc. Co., 42 

•> Ooldey T. Pennsylvania R. Co., Mo. 88, 96, opinion by Wagner, J. 
30 Pa. St 242, 246. 



D.qitizeabyG00<^lc 



1326 PROVINCE OF OOUET ANO JUET. 

pose that, by the insertion of such an exception as is found in this 
bill of lading, the character of the employment is changed. The 
party receiving the goods still remains, notwithstanding this fea- 
ture of the contract, a common carrier; his liability only to the ex- 
tent of the exception is diminished. 'In all things else, the very 
same principles apply. C&re and diligence are still elements of 
the contract, and strict proof is properly required before any ex- 
emption may be claimed.'"" "The trae view is that common 
carriers are such by virtue of their occupation, pot by virtue of 
the responsibilities under which they rest. These respwisibilities 
may vary in different countries and at different times, or by reason 
of special contracts, but this does not change the character of the 
employment; and they are stlU common carriers, it may be with 
enlarged exempticHis from responsibility." " 

S 1864. Views of the Supreme Oonxt of the United States on 
this Question. — The reasoning by which the same conclusion was 
enforced in the Supreme Court of the United States, deserves, in 
view of the eminent character of that court, the extent of its juris- 
diction, and the great inSuence of its decisions on questions of com- 
merce, no less than in view of the standing of the judges who pro- 
nounced the opinions quoted from, a separate statement. This 
view was first announced by Mr. Justice Bradley in that tribunal, 
in what has since come to be r^arded as a leading case, in the fol- 
lowing language: "It is argued that a common carrier, by entering 
into a special contract with a party for carrying his goods or per- 
son on modified terms, drops his character and becomes an ordinary 
bailee for hire, and, therefore, may make any contract he pleases. 
That is, he liiay make any contract whatever because he is an or- 
dinary bailee ; and he is an ordinary bailee because he has made 
the contract. We are unable to see ihe soundness of this reason- 
ing. It seems to us more accurate to say that common carriers 
are such by virtue of their occupation, not by virtue of the respon- 
siblities under which they rest. Those responsibilities may varj- 
iu different countries, and at different times, without changing the 
character of the employment The common law subjects the com- 
mon carrier to insurance of the goods, except as against the act of 

•B Steele v. Townsend, 37 Ala. 247, w Brown v, Adams Bxp. Co.. 15 W, 

253, opinion br R. W. Walker, J.; Ta. 812, 818, opinion by Green, 

citing Bftker t. Brlnson, 9 Rlcb. L. PresIdeDt, 
(S. C-) 201, 203. 



D.qitizeabyG00<^lc 



CAEBIBR3 OP QOODG AKD OTHEB BAILEES. 1327 

God or public enemies. The civil law excepts also losses by means 
of any superior force, and any inevitable! accident. Yet the em- 
ployment is the same in both cases. And if, by special agreement, 
tlie carrier is exempted from still other responsibilities, it does not 
follow that his employment is changed, but only that his respon- 
sibilities are changed. The theory occasionally announced, that a 
special contract as to the terms and responsibilities of carriage 
changes the nature of the employment, is calcnlated to mislead. 
The responsibilities of a common carrier may be reduced to those 
of an ordinary bailee for hire, whilst the nature of his business 
renders him a common carrier still. Is there any good sense in 
holding that a railroad company, whose mly bu^ness is to carry 
passengers and goods, and which was created and established for 
that purpose alone, is changed to a private carrier for hire by a 
mere contract with a customer, whereby the latter assumes the risk 
of inevitable accidents in the carriage of hi& goodsT Suppose the 
contract relates to a simple crate of glass or crockery, whilst at the 
same time the carrier receives from the same person twenty other 
parcels, respecting which no such contract is made. Is the company 
a public carrier as to the twenty parcels, and a private carrier as 
to the one! On this point there are several authorities which sup- 
port our view, some of which are noted in the margin."** A com- 
mon carrier may, undoubtedly become a private carrier, or a bailee 
for hire, when, as a matter of accommodation or special engagement, 
be undertakes to carry something which it is not his business to 
carry. For example, if a carrier of produce running a track boat 
between New York City and Norfolk, should be requested to carry 
a keg of specie, or a load of expensive faraiture, which he could 
justly refuse to take, such agreement might be made, in reference 
to his taking and carrying the same, as the parties chose to make, 
not involving any stipulation contrary to law or public policy. But 
when a carrier has a regularly established business for carrying 
all or certain articles, and especially if that carrier be a corporation 
created for the purpose of the carrying trade, and the carriage of 

MThe learned Judge bere cited 1b a spetial contract limiting the 
DaTldsonv. Orabam, ZOhloSL 131; Uabllltr ot tbe carrier, tbe burden 
arabam t. Davie, 4 Ohio St. 362; is upon the carrlernot only to bring 
Swindler t. HilUard, t Rich. L. (8. tbe loss within tbe exemption ot the 
C) 286; Baker v. Brinson, 9 Id. 201; contract, but also to show that he 
Steele t. Townsend, 37 Ala. 247, — was gailty of no negllgenca con- 
all ot which hold that, where there trlbuUng thereto. 



7crib;G00<^IC 



1328 PROVINCB OP COURT AND JURY. 

flie articles is embraced withju the scope of its chartered powers, 
it is a common carrier, and a special contract about its responsibitity 
does not divest it of the character."" In a anbsequent ease, in 
certain actions against the Adams Express Company, to recover for 
the loss of certain money debvered to them for carriai^ which 
money was lost in s fire caused by the wreck of the railway train 
on which the safe of the company was carried, the circuit court 
instructed the jury, in substance, that, under the modified contract 
of hutment which was shown to have been made in this case, the 
defendants were liable for loss by fire only to the extent to which 
mere bailees for hire, not conmuMi carriers, were liable ; that is, that 
they were responsible only for the want of ordinary care exercised 
by them or those who were under their control. "With this," said 
Mr. Justice Strong, in giving the opinion of the Supreme Court, 
"we cannot concur, though we are not unmindful of the ability with 
which the learned judge had defended his opinion. Vfe have al- 
ready remarked, the defendants were common carriers. They were 
not the less such because they had stipulated for s more restricted 
liability than would have been theirs had their receipt contained 
only a contract to carry and deliver, What they were, is to be 
determined by the nature of their business, not by the contract they 
made respecting the liabilities which should attend it Having taken 
up the occupation, Its fixed legal character could not be thrown (^ 
by any declaration or stipulation that they should not be considered 
such carriers. ' ' •* Further mi in the opinion, the learned juatiee 
says : ' ' We cannot close onr eyes to the well known course of bnsineas 
in the country. Over very many of our railroads the contracts for 

■•Railroad Cki. T. Lockwood, 17 the carrier la not changed by tbe 

Wall. (U. a) 3B7, 376, 377. In an- contract, but that he ie a common 

other part or the same opinion, the carrier still, with enlarged ezemp- 

leamed Justice adverted to a conse- tlans from responsibility within 

quence ot this view, In the lollowlng which the burden of proof Is on him 

language: "The Penneylvaola and to show that an Injury occurs. The 

Ohio decisions dlSer mainly In this, effect of this difference la to shift 

that the fonner give to a special the burden of proof from one party 

contract (when the same Is admis- to the other. It is unnecessary to 

alble) the effect of converting the adjudicate that point In this case, 

common carrier Into a special bailee aa the Judge on the trial charged the 

for hire, whose duties are governed Jury, aa requested by the defendants, 

by hla contract, and against whom, that the burden of proof was on the 

if negligence la charged, It must be plaintiff." Ibid. 370, 

proved by the party injured; whilst » Bank of Kentucky v. Adami 

the latter bold that the character of Exp. Co., 03 U. S. 174, 180. 



1 Goo^^lc 



OUtBlEBS or GOODS AND OTBKB BAILEES. 1329 

trfinsportatioti of goods are made, not -Kitii the owners of the roads, 
nor with the railroad companies themselves, bat with transportation 
agenciea or companies which have arrangements with the railroad 
companies for the carriage. In this manner some of the re^ouw- 
bilities of common carriage are often sooght to be evaded, hat in 
vain. Public polity demands that the right of the owners to ahao- 
Inte security, against the n^ligence of the carrier, and of all per- 
sons engaged in performing the carrier's duty, shall not be taken 
away by any reservation in the carrier's receipt, or by any ar- 
rangement between him and the performing company."*' 

S 1865. Beasons given for the Opposing Views in Case of Loss 
hy Fire.— The conclusion, sustained by the numerical weight of au- 
thority, as stated in the preceding sub-section, seems to proceed upon 
the conception, supported to a considerable extent by experience, 
that the mere fact of the happening of a fire may foe as consistent 
with the inference of mere casualty as with ttie inference of neg- 
ligence, and that the former inference is consequently to be pre- 
ferred. The view of the courts which so hold has nowhere, perhaps, 
been thrown into a stronger light than in the following reasoning 
of Mr, Justice Agnew; "The burthen of the proof of the loss whi<^ 
brings the carrier wit^n the restriction in his contract lies on him 
but when he has proved such a loss, unattended by circumstances 
indicating negligence, the onus of tlte proof of negligence is cast 
upon the plaintiff. The effect is that the carrier must begin the 
proof, and, if he cannot make it without showing negligence, or cir- 
cumstances from which it will be inferred, he is not exonerated. 
But when be has sliown a loss within the restriction, to require more 
of him is to limit the restriction, and destroy its chief purpose. It 
is the great risk of tire, not compensated by the ordinary compen* 
sation of the carriage, and the difficulty of preventing it even with 
great care, oa well as the impossibility oftentimes of proving the 
att«nding circimistances, which constitute the great reason for the 
limitations of liabilit)^ from this cause. When vessel and cargo 
have both been consumed, and the sailors have gone to the bottom, 
or have been scattered over the seas in other service, no evidence 
remains of the attending circumstances; and the limitation is use- 
less, if, in addition, the carrier must prove due care and diligence 
affirmatively. When he has shown the loss within the exceptJwi of 
his oontract, without apparent negligence, he has brought himself 

n Ibid, 18G. 
Tbulb— 84 

liq,t,7c-rib;G00<^IC 



1330 PBOVINOB 07 OOUBT AND JUBY. 

wilJun the ternia of bia bargain. On wliat principle w tliat bai^ain 
to be nullified, by requiring of him the production of that eYidence, 
the loBa or difSeultj of obtaining which was the very reason for 
limiting his responsibility f He may well say to the shipper, 'If this 
be the rule you would put me under, pay me the extra hire for the 
Beirice, for I might as well omit the restriction if I am held to a 
measure of evidence I probably cannot furnish.' To load down his 
contract with this measure of proof is simply to hold that he cannot 
limit his responsib'lity. It is surely enough to say to him, 'If your 
own evidence shows your negligence, you have not acqiutted your- 
self of liability.' The presumption of self interest, as well as- of 
hcmesty, forbids the idea of a voluntary or a negligent fire, which 
must cause so much loss to the owner and so much danger to his 
servants. That the onus of establishing negligence should rest upon 
tine plaintiff ia therefore a proper consequence of the power to limit 
liability by special contract."** This reasoning overlooks the con- 
sideration that the difficultj' of producing proof of negligence would 
be even greater in the shipper, than that of producing proof of 
diligence in the carrier. It is at least poaEoble for the latter, on 
notice to the shipper, knowing from the books of his agent in port 
who the shipper is, to take the depositions of the sailors de bene esse, 
before they scattered on other voyages. Aside from this, the diip- 
per, from the nature of the case, can never prove the circumstances 
attending a loss, even by fire at sea, such as the one under oonfdd- 
eration in the above ease, unless he actually accompanies his goods 
on the voyage and watches them all the time. He must, in most of 
cnieh cases, resort for his evidence to the carrier's servants, which 
is tantamount to excluding the possibility of his proving negligence. 
The other view was thus clearly stated by Mr. Justice St(sie: 
"The shipper makes a prima facie case against the carrier, when 
he shows the goods were not delivered. This casts the onus on the 
carrier, to show that the loss occurred from a danger of the river, 
or from fire ; and he must also prove a prima facie case of diligence 
on his part. This, of courae, implies a river-worthy vessel, properly 
furnished and appointed, competent and sufScient .officers and crew, 
and care and vigilance to prevent danger, and to avert it when im- 
pending. Any deficiency in the skill or watchfulness of the officers 
or crew, in the matter of their special function, in the apparatus to 
extinguish fire, or in its whereabouts or readiness for prompt present 
uae, or in prompt and vigorous effort to extingiush a fire when it 

•1 FatterBon r. Clyde, 67 Pa. St 500, 60&. 

Google 



(UBBIEBS OF OOODS AND OTHEB BAIUaS. 



originates, would fall short of proving a prima facie case of diligence. 
Beycmd these two shjftirig stages, our deci^ons have declared do 
role in the matter of the burden of proof." "* 

§ 1856. What Excepted Perils are witUn the Bnle.— The rule, 
which exonerates a carrier from liability, who adduces evidence 
which, so to speak, "brings the case within the excepted peril," 
has been applied in the ease of dangers of navigation,** perils of 
the seas,** "accident of maehinerj', boilers, or dangers of the sea 
of any kind," " fire,*' dangers of the river,'" "unavoidable dangers 
of river navigation" — sinking of the vessel in a collision," "acci- 
doital and uncontrollable events, " under the Louisiana Code,' theft,* 
and an extraordinary flood, ascribed to the "act of God." • 

§ 1857. Defense of Loss by Perils of Navigation. — Coming now 
to the question what the carrier must prove in order to exonerate 



■■Orar T. Mobile Trade Co., 56 
Ala. 387, 399, opEolon by Stone, J. 

MThe Mohler, 21 Wall. CU. 8.) 
230; Hunt t. The Clevelanii, 6 Mc- 
Lean (U. S.), 76. 79; Clark v. Bam- 
well, IZ How. (U. 8.) 272; TraiiB- 
portation Co. v. Downer, 11 Wall. 
(U. a.) 129, 134; The Neptune, G 
Blatcbf. <U. S.) ISl. 

*> Speyer v. The Mary Bell Rob- 
erta, 2 Sftwy. (U. S.) 1; Schooner 
Emma v. Johneon, 1 Sprague (U. 
S.), 627; Bearae v. Ropes, 1 Sprague 
(U. S.), 331. 

M Kelham v. The Kenslugton, 24 
La. Ann. 100. 

•I Coltoa V. Cleveland etc. R. Co., 
67 Pa. St. 211; Wertheimer v. Penn- 
arlvania R. Co., 17 Blatcbr, tU. S.) 
421; Pattereon v. Clyde. 67 Pa. St. 
&00, 606; Little Rock etc. R. Co. v. 
Corcoran. 40 Ark. 376; Little Rock 
etc. R. Co. T. Talbott, 39 Ark. 623, 
530; Little Rock etc. R. Co. r. Har- 
per, 44 Ark. £08; Wbltworth v. Brie 
R. Co., 87 N. Y. 413. 419; Railroad 
Co. V. Reeves, 10 Wall. (U. 3.) 176; 
nDion Ins. Co, t. Sbaw, 2 Dill. (U. 
S.) 14, 21; Mime v. Mitchell. I Tes. 
44), 463; Denton v. Chicago etc, R. 



Co., 62 Iowa, IGl, 134; Farnham v. 
Camden etc. R. Co., 55 Pa. St. 53. 

"Turney v. Wilson, 7 Terg. 
(Tenn.) 340. 343; Dunaeth v. Wade, 
3 III. 2Se, 288. 

•• Hays T. Kennedy. 41 Pa. St 
37S, 384. 

1 Kirk T. Folaom, 23 La. Ann. 684; 
Price v. Ship Uriel, 10 La. Ann. 413. 

"Claflln V. Meyer, 76 N. Y. 260, 
2G3. 

■ Davis y. Wabash etc R. Co.. 89 
Mo. 340. 352. But whether or not 
Huch was the proximate cause at 
loss or negligent delay, espoaing 
shipment to such a flood as ehould 
hare been foreseen, has been held a 
question for the Jury. Southern R. 
Co. V. Smith, 31 Ky. Law Rep. 243. 
102 S. W. 232; Atchison T. ft S. P. 
R. Co. T. Madden, Sykea ft Co., 46 
Tex. Civ App. E97. 103 3. W. 1193. 
Mere delay, though it be negligent, 
where no such disaster could be 
reasonably anticipated, will not 
make the carrier responsible, 
though but for such the goods would 
not have been exposed to the flood. 
Rodgera v. Missouri Pac. R. Co.. 7S 
Kan. 222, 88 Pac. 885. 



Goo^^lc 



1332 PBOVINOB OF COUBT XND JUBT. 

himself in the case of particular exemptions in the cimtract of car- 
riage, let us first consider the usual clause in marine bills of lading 
which exonerates the carrier from liability for loaa or dama^ hap- 
pening through "perils of the seas," "dangers of navigatiwi," and 
the lite, couched in varying forms of expression. Here, remember- 
ing the principle that the carrier must make out a prima facie case 
of exoneration, and that the shipper will not be required to prove 
a negative — that is, that the loss did not happen by perils of the 
sea,* and that, notwithstanding the exemption, he remains resptm- 
sible for losses which could not have been prevented by ordinary 
skill and foresight,' — it is a reasonable conclusion that the carrier 
does not complete his excuse by merely showing the presence of a 
sea-peril, Euch as a violent storm. He must also show that his ves- 
sel was sea-worthy, at least unless it appears that the storm was 
of such violence that a sear-worthy ship might have gone down in 
it. This is equivalent to saying that, whether the onus probemdi 
as to aea-worthinesa lies upon the carrier or upon the shipper will 
depend upon the facts of the particular case ; and in a ease of marine 
insurance, the rule has been said to be: "If a ship, within a day or 
two after her departure, become leakj' and foimder at sea, or be 
obliged to put back, without any visible or adequate cause to produce 
such an effect, the uatural presumption is that she was not aca- 
iviorthy when she sailed; and it will be then incumbent on the as- 
sured to show the state ^e was in at the time. But if it appears 
from the facta of the case that the loss may be fairly attributed to 
sea damage, or any other unforeseen misfortune, but yet the in- 
surers mean to allege that the ship at her departure was not sea- 
worthy, the emus probatidi will lie oa them. This seems to be the 
simplest rule, and simple rules are always best in matters of eom- 
merce. ' ' * Upon parallel reasoning he ought to be required, in order 
to make out a prima fade exoneration, to show a vessel well manned 
by competent seamen, not overloaded, the cargo properly stowed, 
and a display of good seamanship and good conduct on the part of 
the officers and crew in the face of the storm. Until he adduces 
evidence establishing such a predicate, he does not, in a case where 
the burden of proof is uptm him, presumptively show that the 
proximate cause of the loss or injury was the fury of the elements 

* Shaw V. Gardner, 12 Oray ■ Bell v. Reed, 4 Blnn. (Pa.) 1S7, 
(Mass), 488, 490. 186. See ante, S 18E0; 

• Tumey v. Wilson, 7 T«rg. 
(TenD.) 340. 343. 



ovGoo<^lc 



OABBIBBS or GOODS AND OTHEB BA l I JgBS. 



1333 



instead of the negligence of himself or servants ; if his evidence leaves 
the questioD equally balanced, he fails to exonerate himBelf. "It 
is importaDt," said Lowrie, C. J., "to have a dear idea of this. 
The carrier is bound to cany safely, and if he fail to do so, the 
hord^i of proof of a valid excuse is east uprai him. If he show a 
cause which the law admits to he sniEciently serious to bo called 
inevitable, he has merely prepared the way for showing that he has 
used all possible care. At this stage of the ease, the law does not 
presume any fault on his part, but simply demands that he shall 
oomplete his ezcnse by showing that, in the midst of the danger, he 
exercised all the skill and care he could to avoid it. If this be made 
out, theu he stands entirely without fault before the law, having 
performed bis whole duty under his contract, as it is interpreted by 
law, according to the dutoma of merchants and carriers." ' 

§ 1868. Defense of Lou by Fire.— The divergence of judicial 
opinion, .already pointed out,* appears to scnne extent in cases where 
the defense set up by the carrier is that the goods were lost by fire, 
and where there is a special contract exempting the carrier from 



r Hays r. Kennedy. 41 Fa. St. 378, 
384. S«e also Hompbreys v. Reed, 
6 Whart (Pa.) 43B, 444; LetcUord 
T. Golden Eagle, 17 La. Ann. B, 
Isnorlng this principle, as It would 
seem, It was Iield In one case tbat, 
where the vessel encountered a 
severe storm, sufficient to account 
for the damage in the exception of 
the bin of lading, this shifted the 
burden of proving negligence to the 
shipper. The Neptune, 6 Blatchf. 
(U. S.) Ifi4. In another case It was 
rnled that "a peril of navigation 
having been shown to exist, and to 
have occasioned the loss which Is 
the subject of complaint, the de- 
fendant was prima facte relieved 
from liability, for the loss was thus 
brought within the exceptions of 
the bill of lading. There waa no 
presumption, from the simple fact 
of a loss occurring In this way. that 
there was any negligence on the 
part of the company." Transporta- 
tion Co. V. Downer, 11 Wall. (U. S.) 
129, 134. This case was severely 



criUdzed by Mr. District Judge Mil- 
ler, in a subseauent case In the Olr- 
cuit Couri of the United States, in 
which he used the following lan- 
guage: "If that case, as reported, la 
adhered to as law, all that the own- 
ers of steamboats are required, la 
order to bring themaelTes within the 
exception, is to show that they en* 
countered shallow water and stuck. 
Before a shipper should be put to 
prove negligence on the part of the 
carrier, the carrier should furnish 
evidence tending to show that the 
accident was unavoidable." The 
Ocean Wave. 8 Blss. (U. S.) 317. 
It has been ruled In Alabama, that, 
after a bailor shows tbe loss, the 
bailee may show tHi major or the 
like, and then the bailor may show 
negligence in not avoiding the vi$ 
major. HIgman v. Camody, 112 
Ala. 267, 20 Boutb. 480. See also 
The Majestic, 166 U. S. 37G; Shea 
V. R. Co.. S3 Minn. 228, 66 N. W. 4S8. 
• Ante. S 18G0. 



7crib;G00l^lC 



133i 



PROVINCa OP COUET AND JUEY. 



liability in the case of such a loss. The prevailing opioioo in these 
eases has been possibly influenced to some extent (unconsciously no 
doubt on the part of the judges) , by the rule in cases of fire in- 
surance, vhieh prohibits the insurer from proving, as a defense, that 
the loss happened through the negligence of the insured or his ser- 
vants. A very great numerical preponderance of authority is to 
the effect that a carrier whose liability is governed by such a con- 
tract, extmerates himself by showing a loss from a fire happening 
from some unknown cause, and that it is therefore incumbent upon 
the plaintiff, in order to sustain a recovery, to show negligence on 
the part of the carrier or his servants, either in the happening 
of the fire or in failing to rescue the goods from it.* Only 
three cases are now recalled by the writer which apply, in the case 
of loss by fire, the rule that it is not only incumbent upon the carrier 
to prove that such was the cause of the loss, but also to prove that 
there was no negligence or fault on the part of himself or his 
servants." 



§ 1869. Effect of Stipnlations as to Value.— It is next to be 
considered how the principles here discussed apply in cases where 



• Eelham v. The KenjsinEton, 24 
La. Ann. 100: New Orleans Mutual 
iDSurancQ Co. T. New Orleans etc. 
R. Co., 20 La. Ann. 302; Colton t. 
Cleveland etc. R. Co., 67 Pa. St, 211; 
Wertbeimer v, PennsylTanla. R. Co., 
17 Blatcbf. (U. S.) 4Z1; Cocbran y. 
Dlnsmore, 49 N. T. 249, 252; Fat- 
toraon T. Clyde, 67 Pa. St. 600, 606; 
Wbltworth T. Brie B. Co., 87 N. Y. 
413, 419; Farnbam v. CamdeD etc 
R. Co., 55 Pa. St 63; Railroad Co. 
v. Reeves, 10 Wall. (U. S.) 176; 
Union Ina. Co. v. Shaw, 2 Dill. CU. 
S.) 14, 21; Mtms v. Mitchell, 1 Tex. 
443, 453; Wilson v. Southern Pacific 
R. Co., 62 Cal. 134, 172; Steamboat 
Emily T. Camey, 5 Kaa. 645; Den- 
ton V. Chicago etc. R. Co., 52 Iowa. 
161, 164, 2 N. W. 1093; Arthur v, 
Texas A P. R. Co., 204 U S. 505, 51 
L. Ed. 590; Otis Co. v. Missouri Pac 
R, Co., 112 Mo. 622, 20 S. W, 676. 

"Grey v. Mobile Trade Co., 55 
Ala. 387, 399; Ryan v. Misaourt etc 



R. Co. (Tex.), 23 Am. ft Bng. Re Cas. 
703. Wardlaw v. Soutb Carolina R. 
Co., 11 Rich. L. (8. C.) 837. 341. 
In this last case the court sustained 
an instruction "that. It was right to 
require the company to show how 
the fire occurred; In the absence of 
such proof it might be that the Jury 
would think them liable." Where 
the petition charges that tbe goods 
were, through the neetioence of the 
defendant, allowed to be destroyed 
by fire, the plaintiff must not only 
prove the destmctlon by fire, but 
that tbe fire originated, or the goods 
were not reacued therefrom. In con- 
sequence of tbe defendant's neeil- 
gence. Denton v. Chicago etc. R. 
Co., 62 Iowa, 161. 164, 2 N. W. 1093. 
In Texas it has been ruled that, if 
the evidence does not show that fire 
did not occur without fault of the 
carrier, it is liable. Missouri Pac. 
R. Co. v. China Mfg. Co-, 79 Tex. 
26. 11 S. W. 785. 



1 Goo<^lc 



CARSISBS 07 GOODS AND OTHEB BAILEES. 



1335 



the carrier stipulates for a limited liability as to value; and here 
the authorities are in direct conJlict. The better opinion, supported 
by the wei.,ht of adjudicated cases, is that a common carrier eaniiot 
stipulate for a limited liability as to value in case of loss, where the 
less is occasioned by his own negligence." Another class of cases 
hold that, where contracts restricting the liability of the carrier, 
in respect of the limit of value which he shall be compelled to pay 
in case of loss, are signed by the shipper and fairly made, with a 
v&te of freight based on the condition that the carrier assumes lia- 
bility only to the extent of the agreed valuation, the contract will 
be npheld, even in case of loss or damage by the negligence of the 
carrier, as a proper and lawful mode of securing a due proportion 
between the amount for which the carrier may be responsible and 
the freight he receives, and of protecting himself against extravagant 
ant fanciful valuations.'* The courts which adopt the former rule 
have generally held that, where the carrier would exonerate himself 
from the payment of damages beyond the amount stipulated, ib case 
the loss is proved to have been in fact greater, the burden is upon 
him to show that he was not guilty of negligence." On the other 



II Southern Exp. Co. v. Hoon, 39 
MisB. S2Z; The City of Norwich. 4 
Ben. (U. S.) 211; United States 
ETxp. Co. 7. Backman, 2S Ohio St. 
144; Black v. Goodrlcb Tranep. Co., 
56 Wis. 31S, 18 N. W. 244; Ghlcaso 
etc R. Co. V. Ab«lB, 60 Hies. 1017; 
Kansas City etc. R. Co. v. Simpson, 
30 Ran, 645, 2 Pac. S21; Moulton t. 
St Paul etc. R. Co., 31 Minn. 85. 16 
N. W. 497; Galveston H. * 8. A. R. 
Co. V. Ball, 80 Tex. 602, 16 S. W. 
441; Hazel v. Chicago, M. * St P. 
R. Co., 82 Iowa. 477, 48 N. W. 926; 
P. R, Co. T. Vandeventer. 26 Neb. 
222. 41 N. W. 998, 3 L. R. A. 129; 
Baughman T. Lonlsvitle B. A St. L. 
R, Co., 94 Ky. l&O, 21 8. W. 767. 

I* Hart v. Pennsylvania R. Co.. 112 
U- S. 331; Squire v. New York Cen- 
tral R. Co., 98 Mass. 239; Newburger 
V. Howard. 6 Phlla. 174; Hopkins v. 
Westcott 6 Blatchl. (U, S.) 64; Bel- 
ger V. Dlnsmore. 51 N. Y. 16G; Mag- 
nin V. Dlnamore, 66 N. Y. lOS, 62 Id. 
36. 70 Id. 410; Oppenheimer v. Uni- 



ted SUtes Exp. Co.. 69 III, 62; Earn- 
est V. Express Co., 1 Woods (U. S.), 
673; Elklns v. Empire Transporta- 
tion Co., 81 Pa. St (32 P. F, Smith) 
816; South etc. R Co. v. Henlein, 52 
Ala. 606, 66 Ala. 368; Muser v. Hol- 
iand, 17 Btatchf. (U. S.) 412; Har- 
vey V, Terre Haute R Co., 74 Mo, 
638; Graves v. Lake Store R. Co., 
137 H'-'ss. 33; St. Louis A S. F. R. 
Co. V. Pearce (Ark.), 101 S. W. 
760; Gratiot Street Warehouse Co, 
T. Missouri K. ft T. R Co., 124 Mo. 
App. 645, 102 S. W. 11: Durgin v. 
American Exp. Co., 66 N. H. 277, 
20 Atl. 328, 9 L. R A. 453; Calderon 
V. Atlas S. 8. Co., 69 Fed. 574, 16 C. 
C. A. 332; Pacific Exp. Co. v. Foley. 
46 Kan. 457, 26 Pac. 666. 12 L. R. A. 
799; Zlmmer v. New York C. ft H. 
R R. Co.. 137 N. Y. 460, 33 N. B. 
642. 

1* Grogan v. Adams Exp. Co., 114 
Pa. St 523, 6 Cent Rep. 298; Amer- 
ican Exp. Co, V. Sands, 66 Pa. St 



7crib;G00<^IC 



1336 



PBOVIKCB OF COURT AND JUBT, 



band, the eases which allow the carrier, by a contract vith the ship- 
per, to fix a limit of valuation in consideraticm of the rate of freight 
received, which shall prevail even in case of loss or damage by his 
neglect, generally take the view that, in the case of a lose or damage, 
the shipper must prove that it happened through negligence, and 
the carrier is not required in the fitgt instance to disprore neg- 
ligence." 

§ 1860. What Prssnmption In Ohm of Loss or Injniy by Con- 
necting Oarrien; (a.) The English finle. — On this question there 
is a divisi(Hi of judicial opinion. One rule, conimim^ known as the 
English rule,'* adopted in Illinois,'" and possibly in some other 
American jurisdictions, is that, where a carrier receives goods con- 
signed to a point beyond the terminus of its own line, it impliedly 
engages to carry them to their destination, and becomes liable tor 
any neglect of duty by the other carriers in whose hands the goods 
are placed for the completion of the transit. This rule is founded 
<xi the ctmception, stated by Bartm Bolfe in charging a jury and 



t*The doctrine, perbaps, takes 
root In an earljr cae% where, &ccord- 
laK to the eyllabuB, ft was ruled 
that "IC a carrier gives notice that 
he win not be accountable for goods 
above the value of £Z0, unless en- 
tered and an Insurance paid over 
and above the price charged for car- 
riage, according to their value, a 
person wbo enters silk exceeding; 
the value of £20 and does not pay 
the Insurance, cannot recover any 
part Of the value of the goods, If 
lost; although the price be agreea 
to pay for the carriage of the silk 
Is, on account of Its superior value, 
higher than tbe ordinary price 
charged for the carriage even of 
bulky articles; and although the 
carrier does not prove that the loss 
happened by any of those accidents 
against which the law makes him 
an insurer. The carrier Is not 
bound to prove tiiat he used reason- 
able care." Harris ▼. Packwood, 3 
Taunt. 264. In an old case (anno 
1789), a carrier gave notice by 



printed proposals that he would not 
be answerable for certain valuable 
goods If lost, of more than the value 
of a certain sum, to the extent of 
mora than £G value, nnless entered 
as such, and a penny insurance paid 
for each pound value. Ooods of that 
description were delivered to him 
by one who knew the conditions of 
the notice, but who concealed the 
value of the goods and paid no more 
than the ordinary price of carriage 
and booking. The goods liavlng 
been lost, and the owner having 
brought an action against the car- 
rier, it was held that he was not 
liable to the extent of tbe sum ape- 
cifled, nor even to rep^ the price 
actually paid for the carriage or 
booking. Clay t. WUlan, 1 H. BI. 
298. 

■■MuBChamp V. lAncaster etc R. 
Co., S Mees. ft W. 421. 

i» Illinois Central H. Co. v. Fraak- 
enberg, G4 111. 88, 98; Chicago etc 
R Co. y. Northern Line Packet Co., 
70 111. 217. 



7crib;G00<^IC 



CABBIW HS OF GOODS AND OTH£B BAILEES. 1337 

afterwards approved by the whole Court of Eichequerj that, where 
a common carrier takes into his care a parcel directed to a particular 
place, and does not, by positive agreement, limit his responsibility 
to a part only of the distance, that is prima fade evidence of an 
nndertaking on his part to carry the parcel to the place to which 
it is directed; and that the same rule applies, although that place 
is beyond the limits within which he generally professes to carry 
on his trade of a carrier.** The reason given for the rale by the 
Supreme Court of Illinois is that, where goods are lost by one car- 
rier, in a line of carriers composed of several, it is more just to 
hold the carrier liable to whom the goods are delivered by the con- 
signor, than to require the consignor to spend time and money in 
searching for the carrier in whose hands they were lost, and to bring 
suit for the injury, possibly in a distant State. The intermediate 
carriers are therefore considered the agents of the first carrier; 
and, as the first carrier has facilities which the consignor cannot 
have for tracing out the loss, he can locate it upon the carrier who 
committed it, and have an action over agtunst him.** 

§ 1861. (b) The American Sole.— The American rule which, 
under the same circomstancea, holds the last cfurier prima fade 
liable, proceeds to some extent upon the policy of relieving the owner 
from the necessity of doing what, in most cases, would be a prac- 
tical impoasibility, tracing the goods and discovering the carrier 
in whose hands they were lost. It is thus stated : Where goods are 
delivered to the first carrier, in a line of several connecting carriers, 
to be tnuLSport«d over the entire line, and they are lost in transit, 
or are delivered at the end of the transit in a damaged condition, 
if there ia no direct evidence to show where they were lost or in- 
jured, the jury may, if there is nothing in the evidence to render 
the presumption improbable, presume that they reached the hands 
of the last carrier in the same condition as when delivered to the 
first ; and consequently the last carrier will be charged with the loss 
or damage, unless he exonerates himself by proving that the goods 

IT UuBchamp v. Lancaater etc R. tbe Injuiy occurs. St. L, S. W. R. 

Co.. 8 Meea. ft W. <21. Co. v. KUberry (Ark.). lOB S. W. 

i» IlUaolH Central R. Co. t. Frank- S94. An Initial carrier can br con- 

enburg, eupra; Cblcago etc R. Co. tract limit hiB liability to loss on 

V. Northern Line Packet Co., aupra. bis own line. Micblgan Cent. R. 

Where there Ib no reetrlctloa of Ua- Co. v. Vehicle Co., 124 111. App. 153; 

bllity, the Initial carrier Is liable, McOulre v. Great N. R. Co., 1S3 

and also any carrier on wboae line Fed. 434. 



o.GoQi^lc 



PBOVINCI OF CODBT AJTD JOBT, 



did not come into his hands, in the case of loss, or &&1 he delivered 
them in the condition in whidi he received them from the next eon- 
Deeting carrier, in the case of damage." In ao holding it was said : 
"It must be confessed that, separate from any qaestion of public 
or judicial policy, this is about as weak a presumption as the law 
conld well raise upon any state of facta; for the mere fact that 
B. delivers a thing tA C. in a broken condition does not, when con- 
sidered as a mere qaestion of moral evidence, raise any presumption 
one way or the other as to whether the thing was broken or whole 
when it came into the hands of B. But it must be remembered that 
this is not a mere question what concloaon is morally deducible 
from the facts; it is a quesUon which concerns the burden of proof. 
The burden of proof is the necessi^- of proof. In general, the 
evidence to sustain the allegation must be produced by tiie party 
making it; but when, from the eircamstancea of the case, the other 



»SbrlTer v. Sioux City etc. R. 
Co., 24 Mlna. 506, 612; Smith v. New 
York etc E. Co., 43 Barb. (N. T.) 
225 <afflrmed, see Index, 41 N. T. 
620) ; Laughlln v. Cblcago etc. R. 
Co., 28 Wis. 2D4; Southern Bzp. Co. 
T. Hesa, 63 Ala. 19, 24; Lin v, Terre 
Haute etc R. Co., 10 Mo. App. 125. 
131; Connelly t. 111. Cent. R. Co., 
133 Mo. App. 810, 113 S. W. 233; 
Walker v. Southern R. Co., 76 S. C 
30S, 56 S. B. 952; Jones v. St Loufs 
A S. P. R. Co., 115 Mo. App. 232. 91 
S. W. 168; St. U I. M. ft S. R. Co. 
T. Rentroe (Ark.). 100 S. W. 889, 10 
L. R A. (R. 8.) 317; Cane Hill Cold 
Storage ft Orchard Co. v. San An- 
tonio ft A. P. R. Co. (Tei. Civ. 
App.), 95 S. W. 751 (not reported 
In state reports). In Mississippi 
the last carrier may be required by 
statute to furnish consignee, oa de- 
mand, true copies of all notations 
and records respecting a shipment 
and upon failure to do so is to be 
deemed liable. Tbreetoot Bros, ft 
Co. T. N. 0. ft N. B. R. Co., 89 MIbs. 
192. 43 South. 303. In South Caro- 
lina a Blmilsr statute applies to Drst 
carrier. Janes vUle MIg. Co. r. 
Southern H. Co., 77 S. G. 480. 58 B. 



B. 480. In Maryland the first car- 
rier may exonerate himself by show- 
ing delivery to connecting carrier 
In good order. Orem Fruit ft P. Co. 
v. Northern Cent. Ry., 106 Md. 1, 
66 Atl. 436. So Is the burden in 
(Georgia, even as against a contract 
limiting liability to carrier's own 
line. Southern R. Co. v. Montag, 
1 Ga. App. C4S, 57 S. E. 933. But in 
Illinois It was held that such a con- 
tract put this burden on the shipper. 
Michigan Cent Co. v. Vehicle Co., 
Bupra. In Arkansas It was ruled 
that if suit Is brought against any 
other than last carrier, the burden 
is on the shipper. St L. ft S. F. R. 
Co. V. Pearce (Ark.), 101 S. W. 760. 
The New York rule la upon the 
theory of knowledge being within 
the possession of the carriers and 
puts the burden of proving the neg- 
ative ot no loss on the line of which- 
soever is sued, and no notation 
made by any other au-rler as to 
condition of goods when received by 
It Is competent evidence against the 
defendant Hlrech v. New York 
Central ft H. R. R. Co., 99 N. Y. 8. 
431. 60 Misc Reit. 668. 



D.qitizeabyG00<^lc 



OABRIERS OF GOODS AKD OTHER BAILEES. 1339 

party can alone produM this evidence, there are many cases in 
which the law, to prevent a failore of justice, compels him to pro- 
duce it; and it compels him to do this by making such slight cir- 
cnmstances against him as the party maJcing the all^ation may 
be able to show, conclosive against him tmles he does produce it. ' ' 
And the court after quoting in favor of the rule the decisions in 
other jurisdictions last cited, concluded by saying: "These de- 
cisions do not rest for support merely upon the piinciple <^ neces- 
sity. They are supported by the rule that, when a certain state 
of facts is shown to exist, it is (at least, within certain limits) 
presumed to continue till the contrary appears.'"' 

S 18^. Assent of Shipper to Conditions in Eteceipt. — If a ship- 
per takes a receipt for his goods from a common carrier, whii^ cfoi- 
tains condititms limiting his liability of the carrier, with a full 
understanding of such conditions, and an intention to assent to 
them, it becomes his contract as fully as if he had signed it, and 
these are questions for the jury." 

§ 1863. Burden on Carrier to bring Notice Home to Shipper. — 
Where the carrier relies upon a printed or written notice exempting 
him from his common-law liability, the burden is upon him of show- 
ing that the shipper had notice or actual knowledge of the terms 
expressed in such notice, before the delivery of the goods or cattle 
to him for shipment, and that they were assented to by him; and 
whether he had such notice or knowledge and assented thereto, is 
a question of fact for a jury.** 

M Lin V. Terra Hante etc. R. Co., u Baltimore etc R. Co. v. Bradj, 

10 Mo. App. 12M30. 32 Md. 333; Kallmon v. United 

"Anchor Line v. Dater, 68 111. States Exp.. Co., 3 Kan. 206; Ang. 

S69; Hercbants' Dispatch v. Theil- Car., S 876. "In every case of puh- 

bar, 86 111. 71; Adama Exp. Co. v. lie notice," says Prof. Oreenleaf, 

Elng, 3 111. App. 816; Field v. Chi- "the burden ot proot la on the car- 

cago etc R- Co., 71 III. 168. Com- rier, to show that the pereon with 

pare Adatna BJxp. Co. v. Haiuea, 42 whom be deals is fully Informed of 

111.89; Illinois etc. R. Co. T. Frank- Ita tenor and extent" 2 Oreenl. 

enburg, 51 III. 88; Louisville etc. R. Ev., | 216. The learned author cites 

Co. r. Brownlee, 14 Bush (Ky), 690; BuUer v. Heane, 2 Campb. 416, per 

HoniBon v. Phillips etc. Co., 44 WIb. Lord EUenborough; Kerr v. Wlllan, 

40G; White v. Goodrich Tranap. Co., 2 SUrk. 58; Mackllu y. Watertaouae, 

4G Wis. 493, 1 N. W. 76; Merchants' 5 Blng. 212. But If the shipper take 

Dlapatch v. Cornforth, 3 Colo. 280; a receipt, the terma of which limit 

Hays V. Adama Exp. Co., 74 N. J. L. the liability of the carrier to a 

.>37, 65 Atl. 1044. Bpeclfled amount, unleaa the valve 

Coo^^lc 



1840 



PBOVINOB OP OOXIBT AMD JUBT. 



S 1864. Where there ii a Special Exonption and then a Devis- 
tUOL — ^Where a carrier accepts goods to be carried, with a directitai 
on the part of the owner to carry them in a particular way, or by 
a psrtiQiilar route, as "all rail," he is boimd to obey saeh instmc- 
, tions-, and if he attempts to perform his contract in a mumer differ- 
(mt from hia undertaking, he becomes an insurer, and cannot avail 
himself of any exception in the contract.** But if it be abowii in 
such a case that tho loss must certainly have occoired friHn the same 



of the package be specially atated 
In the receipt, be will. It bas been 
held, be jtretunted to know Its con- 
tents and to aaaent thereto. Op- 
penhelmer v. United Statee Exp. 
Co., 69 III. 62; Belter v. Dlnamore, 
51 N. Y. IGS; Grace v. Adams, 100 
Mass. 505; Mulligan v. lUinolB Cen- 
tral R. Co., 36 Iowa, 181. So, It has 
been held a passenger will be pre- 
sumed to know the conditions 
printed upon the ticket which he 
receives. Steers v. LlTerpool etc. 
Co., 57 N. Y. 1. But this Is a very 
unjust rule, and the contrary has 
been decided In tbe House of Lords. 
Henderson v. Stevenson, L. R. 2 H. 
L. (Sc.) 470. See further on this 
presumption of assent In the case 
of contracts of attrelgbtment, ex- 
press receipts, etc., Adams Exp. Co. 
T. Stettanera, 61 III. 184; Gott r. 
Dlnsmore, 111 Mass. 46; Buckland 
y. Adams Exp. Co., 97 Mass. 12S; 
Blossom V. Dodd, 43 N. Y. 264; 
Illinois Central B. Co. v. Franken- 
burg, G4 111. S8. And In the case of 
passenger tickets: Rawson T. Penn- 
sylvania R. Co,, 48 N. Y. 212; Par- 
ker T. Southeastern R. Co., 2 C. P. 
DIv. 416; Brown v. Eastern Rail- 
road, 11 Cush. (Haas.) 97. A notice 
in the English language to a Ger- 
man, Ignorant o( that language. Is 
not sufficient Camden etc R. Co. 
T. Baldauf, 16 Fa, St. 67. Evidence 
that a notice that baggage sent or 
carried on the so-calted Telegraph 
Line would be at the risk of the 



owner, printed on a large sheet, 
placarded In most of the stage offices 
from Albany to Buffalo (the route 
of the coach), and particularly at 
Utica, where the plaintiff had re- 
sided for three years immediately 
preceding the loss of his trunk, 
which was the occasion of the 
action, was held not sufficient to 
authorise the Jury to infer knowl- 
edge on the part of the plaintiff of 
the terms on which tbe coach pro- 
prietor Intended to transact bis 
baslness. Hollister t. Nowlen, 19 
Wend. <N, Y.) 234. Compare Cole 
T. Goodwin, 19 Wend. <N. Y.) 261. 
14 Mogbee V. Camden etc R. Co., 
45 N. Y. 514, 622; Duuseth v. Wade, 
8 111. S85; HaaUnga T. Pepper, 11 
Pick. (Mass.) 41; Steel v. Plssg, 
6 Bam. ft Aid. 342; Coleman v. New 
York Central R. Co.. 81 N. Y. 610; 
Story, Ballm., 9 609; Brown ft Hay- 
wood Co. V. Pennsylvania Co., 63 
Minn. 646. 66 N. W. 961. If a cai^ 
rier becomea disabled through sn 
act of God to carry by a particular 
route, OS directed, another carrier, 
whom it secures to fulfill as beet 
It can Its contract. Is sgent of tbe 
former. Adams Exp. Co. v, Jack- 
son, 92 Tenu. 326. 21 S. W. 666. 
And except that the goods be perish- 
able in their nature, thus prevent- 
ing notifying shipper, the contract- 
ing carrier is liable for their loss by 
tbe substitute carrier. L. ft N. R. 
Co. V. Odil, 96 Tenn. 61. 83 8. W. 
611. 



7crib;G00<^IC 



OAP t'lftS OF GOODS HfD OTHER BAILEES. 1341 

cause, if there had been do default, misetHiduct or deviation, the 
carrier will be excused ; bat the burden of proving this fact is upon 

§ 186K. Strength of the Evidence to Excuse. — It has been 
reasoned that, in an action against a common carrier for damage 
to goods, ihe proof which will relieve him from liabiliiy must be 
clear and certain, to the effect that the damage did not arise while 
the goods were in his hands ; for the presumption is against him, 
not only frmn the terms of the bill of lading, but from the policy 
of -the law; and the testimony of his servants must be received 
with great caution.^ But while this may be true, it has been 
reasoned that, in sustaining the burden which is thus cast upon 
him, it is not necessary for the carrier to show the precise manner 
in -which the loss of the goods occurred; it will be sufiBcient for 
him to show clearly that he exercised ordinary care respecting 
the goods, and that the loss did not happen from any n^ligenee 
or want of care on Ms part.*' The extent to which the courts 
have swung backward and forward on this question, will be seen 
in the statement of as great a judge as Chief Justice Shaw, that 
the evidence to exonerate the carrier ought to dear him of fault 
beyond a reaxonable doubt;** while, on the other hand, Lord 
Denman, in directing a jury in such a ease, where the defense was 
damage by peril of the sea, told thorn that if the injury might as 
well be attributable to a peril of the sea as to negligence, th^ 
should find the former, and that, if, on the whole, it was left in 
doubt what the cause of the damage was, the defendants would 
be entitled to the verdict." 

§ 1866. Effect of Recital in Bill of Lading that Goods were 
Beceived in Qood Condition. — The following statement of legal 
doctrine by Chief Justice Shaw has been often cited in subsequent 
cases with approval: "It may be taken to be perfectly well es- 
tablished that the signing of a bill of lading acknowledging to 
have received the goods in question in good order and well con- 

" Maghee v. Camden etc. R. Co., it Llchtenheln t. Boston etc. R. 

45 N. Y. 514, 623; Davla r. Garrett, Co., 11 Custa. (Maac.) TO, 72. 

6 Blnf, 716; Duasetb v. Wade, 3 »» Hastings v. Pepper, 11 Pick. 

111. 285; Abbott on Sbipplng, 362; (Mass.) 41, 44. 

Story, Ballm. g 509. 2« Mudd1« v. Stnide, 9 Car. A P. 

» Bond T. Frost, $ La. Ann. 297, 8S0. 



D.qitizeabyG00<^lc 



1342 PEOVINCB OF COURT AND JUET. 

ditioned, is prima facie evidence tliat, as to all circumstances 
which wei-e open to iuspectioo and visible, the goods were in good 
order; but it does not preclude the carrier from showing, in case 
of loss or damage, tliat the loss proceeded from some cause which 
existed, but was not apparent, when he received the goods, and 
which, if shown satisfactorily, will discharge the carrier from 
liability. Bat, in case of loss or damage, the presumption of law 
is, that it was occasioned by the act or default of the carrier, and, 
of course, the burden of proof is upon him to show t^at it arose 
from a cause existing before his receipt of the goods for carriage, 
and for which he is not responsible."** Like a receipt, it may 
be explained or contradicted by parol. The reason of the rule 
that it does not estop the carrier from showing that in point of 
fact the goods were not in the condition therein described, is that, 
if the carrier were bound absolutely by the statement of the bill 
of lading as to the condition of the goods, he could never safely 
sign a bill of lading, especially in the form now universally in 
use, without subjecting the goods to an examination which would 
be detrimental to sliippers and more injurious in its general 
operation than the rule of law which lets in the very truth of the 
case and exonerates him from liability, when, in fact, be is guilty 
of no wrong." 

§ 1S67. Burden to Show Compliance with Engagement to 
Present Clatm within a Limited Time. — Alany of the contracts 
imposed upon shippers by carriers contain the stipulation that, 
in case of loss or damage, the owner shall present his claim for 
reimbursement within a specified time, otherwise the carrier will 
be exempt from liability. In such a case, where the shipper brings 
the action, not upon the carrier's common-law duty, but upon the 
special contract, it has been reasoned that, as in other cases of 

M Hastings v. Pepper, 11 Pick. Barb. (N. Y.) 6S6; Dickereoa ▼. 

(Mass.) i3; quoted and reafflrmed Seelye, 12 Barb. (N. Y.) 99; Blesell 

in Nelson v. Woodruff, 1 Black (U. T. Price, 16 III. 408. 418: Ang. C&rr., 

S.>, 15G; Tarbox t. Eastern Steam- S 231; International ft O. N. R. Co. 

boat Co., 60 Me. 339, 34G. See also v. Shanda (Tex. Civ. App.), 93 S. 

Tbe Invincible, 1 Lowell (U. 8.), W, 1105 (not reported In etate re- 

225; Howard v. WlBsman, 18 How. ports). 

(U. S.) 189; Bates V. Todd. 1 Mood. >i Blseetl v. Price, sttpra. Thia 

ft R. 106; Warden T. Green, 6 Watta exception la sometimes provided tor 

(Pa.), 424; Meyer v. Peck, 28 N. Y. by statute. See Russell v. M. ft O. 

690: Canfleld v. Northern R. Co., IS R. Co., 87 Miss. 806, 40 South, lOlB. 



Coo^^lc 



CABRIEBS OF GOODS AMD OTHEB BAILEES. 1343 

action ap(m express contracts, the burden is upon the plaintiff 
to show compliance with all the obligations which the contract 
imposes upon him, including the obligation tA present his claim 
within the stipulated time,'* But where there were two oontraot^ 
and the one which contained this clause was not counted up<Hi 
by the shipper in his action against the earner, but was pat in 
evidence to prove the fact and date of the delivery of the package 
to the carrier and its destination, it was held that this role did 
Dot apply to it. The court said: "It does not, therefore, seem 
that, because the plaintiff may have been compelled to put this 
agreement in evidence for the purpose of proving the facts named, 
the burden was east upon him of showing, as a condition precedent 
to his right to recover upon another contract, that he had complied 
with the special conditi<ai in thU contract."** 

•>McNfcho] V. PaclOc Bzpreu Co., IS Mo. App. 668, 677; Dawson 

Co., 12 Mo. App. 101; citing Byer- v. R&llway Co., 76 Mo. 611; Brown 

man v. Cemetery ABsoctation, 61 v. SL K ft S. F. R. Co., 136 Ho. 

Mo. 489. So held In McBeatlt v. App. 624, 117 S. W. 112. 
Wabaah etc. R. Co., 20 Mo. App. 446. " McNlchol r. Pacific Blip. Co., II 

Compare Brown v. Wabash etc R. Mo. App. 401, 40S. 



D.qitizeaOyGoOl^lc 



CHAPTER LVI. 

NUISANCE AND OBSTRUCTION. 

188S. Closing of Public Street 

1S87. Wlietber a Given Object is &n Obstnictloii of a Street 

1888. [Continued.] Trees Growing upon Hfgliway. 

18B9. [Continued.] In Actions for Injurleg sustained by TnTeleiS. 

1890. Whether eji Obstruction of Street la Unreasonable. 

1891. Existence of a PrfTate Road. 

1892. Proper Use of a Water-course. 

1SS3. MUl-Dam and Flowage of Adjacent Land. 
1894. PrescrlptlTe Right to Divert Water. 

1896. Whether Drains vere made In Furtherance of Good Agricultural 
Usage. 

1896. Whether k Stream is Navigable. 

1897. What would Constitute an Interference with an Basement CouTeyei] 

by Deed. 
1S98. Prescriptive Right to Carry on a Business Which otherwise would 
be a Nuisance. 

1899. Noise alone may Constitute a Nuisance. 

1900. Noises, when Indictable as a Public Nuisance. 

1901. Whether Nuisance must be Getabllshed by a Verdict at Law. 
19D2. Noises which render Dwelling Houses Uncomfortable. 

1903. Noises ordinarily Incident to Certain Situations. 

1904. Necessary Noiees In Cities. 
1906. Useless Noises In Cities. 

1906. Noisy Trades located la Neighborhoods devoted to Residences. 

1907. Noises proceeding from a Business Carried on at Unreasonable 

1908. Doctrine that In order to Constitute a Nuisance the Noise muet be 

"Unusual, Ill-Tlmed, or Deafening." 
19D9. The Question said to be a Question of Degree. 

1910. Whether a Right to Perpetuate Dls^reeable Noises may be acquired 

1911. Effect of Expectant Attention. 

1915. Effect of ConBlctlng Evidence aa to whether Sounds are Disturbing. 

1913. Stables. 

1914. Factory Bell rung early In the Morning. 

1916. Church Bells. 

1916. Continued. 

1917. Continued. 

1918. Railroad ETnglnes In the Neighborhood of Churches. 

1919. Noisee Frightening Horses. 



D.qitizeabyG00<^lc 



NUISANCE AND OfiSTBUCTION. 1345 

1920. Steam WUsUes. 

1&21. How (ar Plaintiff under Obligation to arold Conseauences Of Buch 
a Nuisance. 

1922. Injuries Produced by Vibration. 

1923. VlbraUon ol Steam Hammers In a Rolling MllL 

1924. Action by Whom Brought 

1926. loetnictlOD as to Nuisance Caused by Running ft MllL 

S 1886. CloEicg of Public Street. — In an action for damagca 
against a municipal corporation for an injury sustained by reason 
of its street or highway being in a detective condition, whether 
the street or highway was closed from public travel at the time 
of the injury, is a question of fact for the jury.' 

§ 1887. Whether a Qiven Object is an Obstruction of a 
Street. — It was held that, whether the driving of piles in Front 
Street, in the City of San Francisco (the street being laid oat 
over tbe waters of the bay), was an obstruction to the free use 
of the street by the public, was a question of fact for a jury, in an 
action to enjoin the defendants from driving piles in that street; 
and because the question was not submitted to a jury, a new trial 
was ordered.* But where the obstruction in a street which caused 
an injury to the plaintiff's son, a small boy, conadst^d of a railway 
train of tbe defendant standing so as to block the street, and the 
boy was injured while trying to effect a passage along the street 
by creeping under tbe cars, and it appeared that the conductM* 
stopped the train on the crossing of the street and absented him- 
self from it, and that a servant of tiie defendant attached the 
horses to it and moved it, from whieb act the injury ensued, — ^it 
was held error to submit the question to the jury whether the 
obstruction of the street was inevitable, since it plainly appeared 
that it could have been avoided by the exercise of proper care and 
diligence on tbe part of the c<Hidactor. It was the duty of tbe 
eourt to instruct the jury, as tnaiier of law, that the obstruction 
was tinaathorized and unlawful.* 

1 White V. City of Boston, 122 duced Jury trial Into equity cases. 

Mass. 491; Steptiens ti City of See edso Sctaelske v. Orange Tp., 147 

Macon, S3 Ho. 34B, 356. Mich. 135, 110 N. W. EOe. 

' San Francisco v. Clark, 1 Cal. > Rauch v. Lloyd, 31 Pa. St 358. 
386. This must have been under a See also Brown v. Town of Carroll- 
practice peculiar to that State, or ton. 122 Mo. App. 276, 99 S. W. 37. 
else under a conception of practice But whether It was negligence tp 
peculiar to that period, wblch Intro- leave a car, which had run oC the 
Tmam— 55 



Coo^^lc 



1346 PEOVINCB OF COURT AND JUBT. 

8 1888. [Continued] Trees Growing apon Higbwa^^— 'He 
trees upon a highway belong to the o^'oers of the fee, except under 
statutory regulationa which vest the tiUe to the fee of the high- 
way ia a muDicipal corporation, whieh ia the ease in some American 
cities. Where trees, thua standing and belonging to the owner 
of the fee, constitute an obstruction of the highway, the oreiwer 
of the highway may cut them down and remove them; but if they 
do not obstruct the highway, and he nevertheless cuta them down, 
he commits a trespass, and if he does it maliciously he is liable 
to exemplary damages. "Whether, in such a case, a tree cut down 
by the overseer of highways did obstruct the public in the use 
of the highway, or whether it was cut down maliciously, has been 
held a question of fact for a jury, in an action of trespass against 
the overseer.* 

§ 1889. [Continued.] ta Actions for Injuries sustained by 
Travelers. — In general, it is a qvesiion of fact for a jury, in an 
action against a town for damages for an injury trustained by a 
traveler through an alleged defect in the highway, whether a given 
object, on or near the traveled part of the highway, constitutes an 
incumbrance in the highway, within the meaning of a statute 
giving such a right of action." The question whether the highway, 
at the time and place of the accident, was obatructed, insufScient, 
or out of repair, is one of fact for the jury, under the instructions 
of the court as to what is meant by those terms as used in the 
statute.* It has also been said that "the law justifies obstructioBs 

end of a spur track Into a street, tor the court Pemberton v, Doo- 
■tandins across a street at night le7, 43 Mo. App. 176. 
with no light on same to Indicate » Ch&mberlain T. Bnfleld, 43 N. H. 
its belDE there, was held to be a SE6, 862; Carpvllle T. Westford, 16S 
question for the Jury. Davis v. Mass. 540, 40 N, B. S93; Malloy r. 
Oregon Short Line R. Co.. 31 Utah, Walker Tp., 77 Mich. 448, 43 N. W. 
807, S8 I>ac. 2. Semble, as to mor- 1012, 6 L. R. A. 696. But see Wake- 
tar box and barrels used In street ham v. St Cairo Tp., 91 Mlcb. 15, 
work and left at night so near the 51 N. W. 693. Contra, see Schaelter 
highway as to frighten a horse, v. Jackson Tp., lEO Pa. 146, 24 Atl. 
Carlon v. Town of Greenfleld. 130 629, 30 Am. St. Rep. 792. 18 L. R. A. 
Wis. 242, 110 N. W. 208. 100; Mcaoskey v. Moles, 19 R. I. 

» Winter v. Peterson. 24 N. J. U E97, 23 AU. 236. 

624. But whether an adjoining ■Johnson r. Haverhill, 36 N. H. 

landowner makes a reasonable and 74, 82; Hubbard v. Concord, 36 N. 

proper use of a highway has been H. 62, S6; Carlton v. Bath, 22 N. H. 

held to be a question exclusively 669; Zoffl v. Postal Tel. Cable Co., 



oyGooi^lc 



NUISANCE AND OBSTBUCTION. 1347 

of a partial and temporary character, from tbe necessity of the 
case and for the eoDvenieDce of mankind, when those obstnicticna 
occnr in the customary or contemplated iiae of the highway, and 
that the question of their necessity and reasonableness, and of 
the enstomary or contemplated use, is one for the consideration 
and determination of the jury, under all tbe circumstances of 
each particular case,'" 

g 1890. WheUier an Obstraction of a Street is Unreasonabla. — 

It has been ruled that an adjacent owner may be entitled to main- 
.tain an action for damages against a municipal corporation, for 
an obstruction in the street, where the obstruction, taking into 
view the nature of the work to be done, and the rights of adjacent 
ownera, situated as he is, to the free use of the street, is unnecessary 
and unreasonable, or where it creates a nuisance more noxious and 
ofiEensive than is ordinarily incident to the work to be done (in 
tbe particular case, tbe repairing of a market), or where the ob- 
struction continues beyond a reasonable time; but whether, upon 
all or any of these grounds, the plaintiff is entitled to recover, is 
&_q}iestion of fact for the jury, and it is error for the judge to 
withdraw it from them and to direct a verdict for the plaintiff tor 
the damages claimed.* So, in an action by an abutting land- 
owner against the defendant, for obstructing tbe highway so as 
to interfere with tbe free use and enjoyment of tbe plaintiff's 
property, the question whether such obstructions amount to a 
nuisance is a question of fact for the jury.* It has been held that, 
60 Fed. 987, 9 C. C. A. 308; Rowe T. t Graves T. Sbattuck, SG N. H. 257, 
BaltUDore & 0. R. Co., S2 Md. 493, 268. 

3S Atl. TGI; Hayes v. Tovn ot Hyde * St. John v. New York, 6 Doer 

Parh, 153 Mass. 14, 27 N. E. 522, 12 (N. T.), 316; Frazler v. BuUer, 172 
L. R. A. 249; Sllvltokl v. Town of Pa. 407. 33 Atl. 691. Bl Am. 8t 
Wlen. 93 Wle. 460, 67 N. W. 730; Rep. 739. But the court will de- 
Baker V. BorouKli oF North East, cide, as a matter o( law, whether a 
161 Pa. 234, 24 Atl. 1079. So also permanent structure In a street mar 
as to [allure to erect barriers at a be an Improper use of a street and a 
particular point Wood r. Town of deprivation of tbe rights ot abut- 
OUboB, 76 Hun, 175, 27 N. T. S. S8S; ting owners thereon, where tbe facts 
Trexler v. Greenwich Tp., 16S Pa. are clear and undisputed. Mcll- 
214, 31 Atl. 1090. But, If danger is hlnnv v. Village ot Trenton, 148 
eo apparent by reason of such fall- Mich. 380, 111 N. W. 1088, 10 L. R. 
ure as to admit of no reasonable A. (k. b.) 628. 
contention to tbe contrary, a court ■ Blanc v. Klumpke, 29 Cal. 1G6, 
mar so Instruct a Jury. Schluenke 159. Compare Qunter v. Geary, 2 
V. Town of Pine River, 84 Wis. 669, Cal, 462; Griffith v. McCullum, 46 
54 N. W. 1007. Barb. (N. Y.) 561. 



7crib;G00^IC 



1348 PBOVINCB OP COUBT AMD JDBT. 

uriiere highways haye been comnioiily used for moving huildingt 
tbroT^h them, it is no nuisance to use them for that pnrpoee, 
selecting suitable streets, using proper expedition, and cansii^ no 
unnecessary obstruction ; and the reasonableness of such use, under 
all the circumstances of the case, is a question for a jury." So, in 
an action against a town for damages sustained hy a traveler who 
has been injured by reason of obstructions in the highway, it is 
a qoeation for a jury whether timber, wood, lumber, or other 
materials, placed within the limits of the highway by any person, 
are, under the circumstances, to be regarded as obetrnctions and. 
incumbrances in such highway.'^ So, it haa been held, in an ap- 
plication for an injunction, that the annoyances arising from the 
necessary use of a railroad do not constitute a nuisance per se, but 
tliat the fact of nuisance must be determined by a jury, before the 
court will interfere by injunction.** A statute of Massachusetts 
provides that "a person owning or occupying lands adjoining a 
highway or road in a town, m&y construct a sidewalk within such 
highway or road, and along the line of such land, indicating the 
width of such sidewalk by trees, posts or curbstones, set at reason- 
able distances apart, or by a railing. " ** This statute gives to an 
abutter the privilege of appropriating a part of the highway for 
the purpose of a sidewalk, but the privilege is limited and quali- 
fied by provisions that the section "shall not diminish or interfere 

10 QraveB v. Stiattuck, 8G N. H. tion makes a street or blghwi^r nn- 

25S, 268. ThouEb a court ma; safe (or travel la ordinarily for the 

sometimes decide this qnestlon aa Jury. Cleveland v. Bangor, S7 He. 

a. matter of law. ladlana Rf. Co. v. 25S, 32 Atl. 892, 41 Am. St. Hep. 

Calvert. 168 Ind. 321, 80 N. B. 961, 326; Patterson v. City of Conncll 

10 L. R. A. (N. s.) 780. Bluffs. 91 lova. 732, 57 N. W. 63; 

i> WlDshlp V. EnSeld, 42 N. H. Scbrader v. Port Huron, 106 Mich. 

197; City of Grand Forks V. Allman. 173, 68 N. W. 9G4; Hein v. Fair- 

163 Fed. 632, 83 C. C. A. SS4; Har- child, 87 Wis. 268, 68 N. W. 413. 

rell V. city of Macon, 1 Oa. App. And whether it was dangerous to 

413, 68 S. B. 161; Crandall v. City omit guards, barriers or lights, 

of Dubuque, 136 Iowa, 663, 112 N. Pfelfer v. Town of Lake, 37 111. 

W, 167; City of Latonle v. Hall, 31 App. 367; Llcbtenberger v. Merlden, 

Ky. Law Rep. 721, 103 S. W. 364; 91 Iowa, 46, 68 N. W. 1068; Wienke 

Mason v. Inhabitants Town of Win- v. North Tonawanda, 66 Hun, 626, 

throp, 196 Mass. 18, 81 N. E. 641; 20 N. V. S- 390, 148 N. Y. 726, 12 N. 

Muncy v. City of Bevler, 124 Mo. E. 726; Mayor v. Everson, 18 R. 1. 

App. 10, 101 S. W. 167; Parks v. 718, 30 Atl. 626. 

City c; New York. 98 N. Y. S. 94. "Bell v. Ohio etc. R. Co.. 26 Pa. 

Ill App. Dlv. 836. 1S7 N. Y. 666, 80 St. 161, 182; post, i 1918. 

N. B. 1116. Whether an obstruc- i*Gen. Stats. Mass., cb. 16, | 6. 



Coo^^lc 



NUISANCE AND OBSTRUCTION. 1349 

with the authority of gurveyore of higbwaj-s, or any other authority 
that can be legally exercised over highways or roads ; nor shall it 
io any manner diminish the liability of any person for unreaaon- 
ably obstmcting highways or roads.*' Whether a sidewalk, built 
in a particular w^, unressonably obstructs the highway, is, under 
an indictment for obstructing the highway, a question of fact tor 
the jury.'* 

5 1891. Existeoce of a PrlTate Boad^ — ^Where the defendant, 
in an action of trespass, seta up the defense that the way over 
which he passed was a private or by-road, whether it was auoh 
road or not, is a question of fact for the jury.^* 

§ 1892. Proper use of a Water-cotirae. — ^In an action by a ri- 
parian owner to recover damages from a sapericff proprietor for 
a pollution of the stream by maintaining there on a hog-pen, thus 
converting its margins into a hog-wallow, the question whether 
the superior proprietor has made a proper use of the stream, is a 
question for a jury, under proper instructions." In such a ease 
the court properly directs the jury that each proprietor is entitled 
to the use and enjoyment of the stream in its natural flow, subject 
to its reasonable use by other proprietors; that each has an equal 
right to the use of it for the ordinary purposes of hia house and 
farm, and for the purpose of watering his stock, even though such 
use might, in some degree, lessen the volume of the stream or affect 
the purity of the water; that the lower proprietor has no superior 
right in this regard over the upper proprietor; that if, in its 
natural Btat«, the^ stream was useful both for domestic purposes 
and for watering stock, but the use for ordinary atodt purposes 
was more valuable or beneficial for all the owners along the stream 
than the use for domestic purposes, then the less valuable must 
yield to tiie more valuable use ; but that its reasonable use f <H* all 
purposes should be preferred if possible; and that the jury must 
determine from all the facts, taking into account the size, nature 
and cmditiou of the stream, whether the defendant made a reason- 
able and proper use of it.'* 

"Com. T. rr&nklln, 133 Mass. i«VaD Blarcom ▼. Frlke, 29 N. J. 

SS9. Compare, u to tbe sUtuta, L. E16. 

Hacomber v. Taunton, 100 Mass. >« Hazeltlne T. Caae, 46 Wis. 332. 

355; Appleton t. Nantuck^ 121 "Hazeltlne v. Case, supra. See 

Hum. 161. also Alabama Consol. Coal ft Iron 



Coo^^lc 



1350 



PBOVINCB OP OOVST AND JUBT. 



§ 1893. Hni-Dam and Flowage of Adjacent I>and. — ^Id an 
action for injury to the plaintiff's laud, alleged to have been caused 
by a mill-dam owned by the defendant, but which injury was, 
according to the contention of the defendants, occasioned by an 
older dam erected about thirty years before, the coiirt mbmitted 



Co. V. Vines, 161 Ala 39S, 44 Soath. 
377; Parker t. American Woolen 
Co., 195 Maes. 591, 81 N. E. 468, 10 
L. R. A. (N. s.) 6S4: HcFarlatn T. 
JeunlDga-Hayward Oil Syndicate, 
118 La. 537, 43 South. ISG; H. B. 
Bowling Coal Co. T. RuSner, 117 
Tenn. 180. 100 B. W. 116, 9 L. R. A. 
(M. 8.) 923; Piatt Bros. etc. v. City 
ot Waterbury, 80 Conn. 179, B7 Atl. 
608; Markwardt v. City of QuthrlB, 
IS Okl. 32, 90 Pac. 26, 9 L. H. A. 
(N. a.) IIEO; Mason v. Whitney, 193 
MasB. 152, 78 N. E. 881, 7 L. R. A. 
(it. s.) 289. The common law as to 
riparian rights. It should he remem- 
bered, van the law of a hnmid conn- 
try, where conditions In no wise 
resembled those in a rast part of 
the U. S., where water rights are 
not limited to Uie uses stated In the 
text of our author regarded from 
one point ot view, nor are they bo 
Inviolable from another point In 
the arid resfons and mining dis- 
tricts tbe common law maxim ot- 
agua currere deDet ut carrere sole- 
bat and that only ri par las proprie- 
tors sbould have right of user in 
the water ot a stream are princi- 
ples, which would Ignore Its chief 
bene&t. The doctrine of prior ap- 
propriation for irrigation and min- 
ing carries the expectation, that a 
stream may not only be lesEened In 
volume but absolutely exhausted 
BS to Its lower flow, an experience 
the exact reverse, quite universally, 
of that met with by the English 
riparian right theory, which only 
knew of streams gathering In vol- 
ume the more extended their course. 
Diversion by change of course 



might always be a practical qaes- 
tlon under the English theory, and 
so might pollution, but that the or- 
dinary purposes of house and farm 
and watering stock would seriously 
interfere with lower proprietors 
would rarely be true. For Irriga- 
tion and mining diversion, by ap- 
propriation, and not for what may 
be rigbtly called domestic use 1b the 
eaaentlal principle — the very an- 
tithesis of the common law theory. 
Conatltutlons and statutes have 
been adopted and enacted on the w- 
proprlatlon or diversion theory. 
See Wyatt v. Larrlmer ft Weld Irr. 
Co., 1 Colo. App. 480, 29 Pac. 906; 
Wheeler v. Northern Colo. Irr. Co., 
10 Colo. 682, 17 Pac. 487, 3 Am. St. 
Rep. 603; Merrill v. Soutbslde Irr. 
Co., 112 Cal. 426, 44 Pa^. 720; White 
V. Farmers' High Line Canal A 
Reservoir Co., 22 Colo. 191, 43 Pac 
1023. 31 L. R. A. 828. And Instead 
of the common law principle of 
water from a stream not being an 
article of merchandise, great Irri- 
gation enterprises designed to sup- 
ply water, upon tolls and charge 
paid, have been clothed with the 
power of eminent domain, and com. 
panles. thus organ Ued are consid- 
ered public utilities regulated by 
law and subject to mandamus. It 
Is apparent, that. In this distinct 
branch of the law, numberless ques- 
tions of fact may arise resolvable 
by a Jury, both because there may 
be conflicting testimony and be- 
cause also there may be those In- 
ferences from Indisputable facts, as 
to which fair minded men would 
disagree. It is perhaps sufficient to 



NUISANCE AKD OBSTBUCTION. 



1351 



to the jury whether the dam last erected waa a nuisance, and 
whether the notice to remove it was reasonable.'* So, on the trial 
of an indictment for a public nuisance alleged to have been pro- 
daced by the erection and maictfinance of a mill-dam, the govern- 
ing principle haa been held to be that such a dam becomes a 
nuisance when it causes the waters to overflow the banks of the 
atream and the sarroimding country, and to become stagnant, 
whereby the water on the highways and around the dwellings be- 
comes noxious and unwholesome, and the health of the community 
sensibly impaired, and whether or not the dam produced auch 
mischievous consequences, ia a question of fact for the jury.'* In 
an action for damages due to the flowage of the plaintiff's land, in 
consequence of the maintenance of a certain dam by the defendant, 
it has been held error for the court to instruct the jury that, if 
the dam had been maintained at a uniform height and head for 
tKeniy years, and had not flowed the plaintiff's land for the first 
ten years of that time, and afterwards said lands were overflowed, 
the pregiin^iion would be that the flowage had been produced Iqf 



notice here, that ftpproprlatlon of 
water 1b a fact as phrslcal In Ita 
nature as tbe taking poasesalon of 
land, and so Its adverse user or 
abandon ment, as the adveree poe- 
B«SBfon or abandonment of land. 
This subject of appropriation of 
water to lands further up a stream 
to the detriment of approprlators 
lower down has very recently come 
before the federal Supreme Court by 
virtue of Its original JnTlsdtctlon of 
a suit by one state against another, 
and a careful readlog of the great 
opinion of Justice Brewer in the 
case of State of Kansas v. State of 
Colorado, 206 U. S. 49S, 51 L. BTd. 
1156, win give to the student an ap- 
preciation of the vastness of tbe 
subject of Irrigation, as a distinct 
branch of modem law. Similarly 
It may be said that artesian, gaa 
and oil wells give a greatly mora 
practical Interwt to tbe common 
law principle with respect to sub- 
terranean streams. Among late 
cases is found a ruling, that the 



common law doctrine should be 
adapted to the enforcement of rela- 
tive Justice In districts, where 
waters are drawn from artesian 
basins. See Erickson v. Crookston 
Waterworks Power ft Light Co., 100 
Minn. 481, 111 N. W. 391, 8 L. R. A. 
(M. B.) 1250, this case holding that 
circumstances may make it Illegal 
for one landowner to make mer- 
chandise of such water. Oil by rea- 
son of its BuIdltT, and gas, because 
of its equal or greater mobility, 
ought to be under the same prin- 
ciple as artesian supply. Again it 
Is suggested tliat questions of fact 
ought to be numberless, as to the 
tablng of subterranean fluids and 
gases, and It can reasonably be 
Imagined, that varying inferences 
might be reasonably drawn from all 
ascertainable facts in regard there' 
to. 

i*Kemmerer v. Edelman, 23 Pa. 
St 143. 

1* Douglass V. St., 4 Wis. 387. 



ovGoo^^lc 



1852 PBOVINCS OF OOUBT AND JUBT. 

other causes than the dam, aod the defendants would not be liable. 
Whether the aabsequent flowage of the land, though not flowed 
during the first ten years of the ezietence of the dam, was caused 
by the maintenatioe of the dam, was a qxiestion of fact for tlie 
jury." 

§ 1894. Frescriptiv* Right to Divert Water.— Where, m an 
action for damages for obatructing a water-course and diverting 
water from the plaintiff's mill, it was admitted that the defendants 
had acquired a prescriptive right to divert a certain portion of 
the water from a stream, by means of a dam which was in existence 
many years before, — the question whether they did divert water 
to a greater extent than was done by the dam, as it existed prior 
to a date named, was nibmitted to the jury.'^ 

§ 1896. Whether Draina were Hade in Tnrtherance of Good 
Agricultural Usage. — In an action by one land-owner against a 
cotenninoas land-owner for raising an embankment and casting 
back the surface water upon the land of the plaintiff, it has been 
held that where it is not clear from admitted or established facta, 
it is generally a question of fact for the jury to determine what 
work may be done in furtherance of good agricultural usage, for 
the purpose of raising crops, so as to exonerate the defendant, from 
s liability for such a tort.** 

§ 1806. Whether a Stream is Navigable.— -Whether a stream is 
navigable or not, is a mixed question of law and fact; but when 
the facta are ascertained it becomes a question of law." The 
courts will sometimes dewde the question of fact by taking judidtU 
notice of it Thus, in Alabama, the court will judicially notice 

*o Smltb V. Ruas, IT Wis. 227. tlon of law, whether tbe use of a 
*i Whetstone v. Bowser, 29 Fa. St. dltcb by a landowner la reaeooable. 
65. Tbe test of & preBcriptlTe right Bxler v. Southern Cotton Oil Co., 
to direct coDslsta of proof of the use 161 Fed, 101. Bo whether a alough 
of exceBB water adversely and con- la a natural water course. Webb 
tlnuoualy for twenty years and to V. Carter, 131 Mo. App. 147, 98 S. 
have occsaloaed during that time W. 776. Though according to an- 
actionable Injury. Oakland Woolen other general rule, the court will 
Co. V. Union Gas ft Electric Co., 101 decide thla question as a matter «t 
Me. 19S, 68 Atl. 916. See also Heyl- law. If the facts are clear. Cedar- 
man V. Dlat Columbia, 27 App. D. burg v. Dutra, 3 Cal. App. 672, 86 
C. 663. Pac. 838. 

"KnollT. Mayer, 13 Bradw. (III.) »» Walker v. Allen, 72 Ala. 466; 

203. It has been beld to be a ques- Rhodes t. Otis, 33 Ala. E7S. 



Goo<^lc 



jnnSANOE AND OBSTBUCTIOK. 1S^3 

that there are do tidul streams in Jackson county, ic that State; 
from whence the conclusion follows that Paint Rock Biver in that 
State is, prima facte, not a public navigable stream ; " the govern- 
ing principle being that all tidal streams are, prima facie, public 
and navigable, and that all streams above tide water, if, in the 
survey of the public lands by the United States, they have not been 
treated as navigable, if fractional sections have been made upon 
their margin and the bed reserved from grant or sale, are prima 
facie private, not navigable and not subject to a public right of 
floatage. Accordingly, in the case of such a stream the onus of 
proving that it is navigable rests upon the party averring it*' 

§ 1897. What would OonstitTita an Interference vith an Ease- 
ment Oonreyed by Deed. — The construction of a deed conveying 
certain grist ndll privileges is, of couiw, a matter of law, but 
whether a gate constructed by the plaintiff in the stream would 
interfere with the use of the grist mill privileges granted in a par- 
ticular deed^ is a question of fact, to be determined by a jury 
under proper instnictiooa, in a case properly before them for such 
determinatiwj.** 

§ 1898. Prescriptive Right to Carry on a BnalnesB which other- 
wise would tw a Ntdsaooe. — In an action on the case for damages 
from a nuisance, which consisted of a mill established and operated 
so near the public highway as to frighten horses, the defendant 
requested the coort to charge the jury that, if his mill had been 
run for thirty yeart next before the accident, in the same condition 
in which it was at that time, he had a right so to run it, and was 
not liable for such accident The court declined so to charge, and 
it was held that the ruling was correct. "There is no doubt," 
said Sanford, J., "that less than thirty years' enjoyment <^ an 
easement in the land of another, or thirty yeats' continuance of 
a private nuisance, affords evidence from which the jury may pre- 
siune and find, as a fact, the existence of the right, derived from 
the owner of the properly named, by grant or otherwise. But the 
evidence arising from such enjoyment or continuance may be 

■« Walker v. Allen, supra, Peten v. New Orleans etc R. Co., 

M Walker v. Allen, mpra. See 66 Ala. 6!8. 

also BnUock ▼. WUbixi, 2 Fort. *■ Douglass v. Whlttemore, 32 Tt 

(Ala.) 4S6; Ellis v. Carey. 30 Ala. 68S. 690. 
T2S; Rhodes v. OUa, S3 Ala. 678; 



D.qitizeabyG00l^lc 



1864 PROVINCE OF COURT AND JUBT. 

rebutted; and the court caauot decide as 8 matter of law, that such 
enjoymeut or continuance confers the right. And if, in like man- 
ner, Uiirty years' continuance of a public nuisance affords similar 
evidence (a point which it is not now our intentioD to decide), that 
evidence must be submitted to the jury, for them to make the 
proper inference, and decide the question whether the right has 
been acquired or not. The qudstion is (me, not of law, but of fact, 
and the court could not determine it. Upon this ground, there- 
fore, the omis^on of the judge to give the instruction prayed for 
was not erroneous. ' ' *' 

§ 1899. Noise alone may Constitute a Nuisance. — Since the de< 
cision of EUiotson v. Feetkam," it has not been doubted, so far 
as the writer knows, that noise alone may constitute an actionable 
nuisance, such as may form the basis of a recovery of damages 
at law, or such as a court of equity will restrain by an injuncticm,*' 
"There is," said Lord Romilly, "I apprehend, no distincticm be- 
tween any of the cases, whether it be smoke, smell, noise, vapor 
or water, or any gas or fluid. An owner of one tenement cannot 
cause or permit to pass over or flow into his neighbor's tenement 



n House v. Hetcalf, 27 Conn. 631, 
639. See also Hayes v. Brewer, 194 
Mass 43&, 80 N. B. G03. A pnrpres- 
ture In a street of a town can ac- 
quire no prescriptive right against 
the state, though It originate in a 
permit by the municipal council, 
St ex rel. Detlenne v. Ctty ot 
Vandalla, 119 Uo. App. 406. 94 S. 
W. 1009. 

" 2 Blng. N. C. 134. 

MSoltau V. De Held. S Sim. 
(it. 8.) 133; Crump v. Lambert, L. 
R. 3 Eq. 400; Fish v. Dodge, 4 Denlo 
(N. Y.), 311; Harrison v. St Marie's 
Church, 12 Fhlla. (Pa.) 259; Wal- 
lace V. Aner, 10 Id. 356; Incbbald 
T. Robinson, L. R. 4 Ch. App. 388. 
In New Jersey the Court of Chan- 
cery, In a very elaborate opinion 
with much citation ot authority, 
held a roller skating rink an abat- 
able nuisance, though conducted in 
an orderly way, because ot the noise 



tberefrom rendering almost impos- 
sible the holding of services in a 
church In proximity thereto. First 
M. B. Church v. Cape May Qraln 
& C. Co. (N. J. Eq.), 67 AU. 
613, See also Snyaer v. Cabell, S9 
W. Va. 46, 1 S. B. 241. Similarly 
other things may be nuisances, 
which are lawful and even encour- 
aged, but for the comfort and health 
ot others and the annoyance they 
cause. Thus it has been held of a 
business, established In an open 
common, that It cannot be contin- 
ued In a populous community, where 
Its operation causes smoke and soot 
ot a noxious character, produces 
headache, nausea and vomiting and 
taints the food of inhabitants. See 
People V. Detroit White LeadWorks, 
82 Mich. 471, 46 N. W. T3E, 9 L. B. 
A. 723. See also City of Portland 
V. Cook, 48 Or. G50, 87 Pac 722. M 
to slaughter house. 



1 Goo<^lc 



NUISANCE AND OBSTBUCTION. 1355 

any one or more of these things, in sneh a way as materially to 
interfere with the ordinary c<Hnfort of the occupier of the neigh- 
boring tenement, or so as to injure his property."** So, it is 
said in a case in New Jersey; "There may be circumstances where 
even the noise of a steam engine may become a private nuisance, 
and its ose, on that account, be restrained by the court. The 
anthoriliea are abundant to sustain the position that an individual 
cannot erect, in a densely settled portion of a city or town, oc- 
cupied by private dwellings, any kind of manufacturing estab- 
lishment, and so use the machinery and carry on the business as 
to render living in the neighborhood uncomfortable, either on ac- 
count of the noise it occasions, or of ita smoke and oifenaive smells.*' 
In like manner it was laid down by the Supreme Court of Penn- 
sylvania that the courts have power to restrain by injunction 
noises which disturb rest and prevent sleep,'* "Noise which txm- 
stitutes an annoyance to a person of ordinary Bensibility to sound, 
such as materially to interfere willi the ordinary comfort of life 
and impair the reasonable enjc^ment of his babitati(»i, is a nui- 
sance to him."** 

S 1900, Noises, when Indictable as a Public Nuisance. — ^It may 
be premised that, to render an act indictable as a nuisance, it is 
not Boilicient that it should annoy particular persons only, but it 
must be so inconvenient and troublesome as to annoy the whole 
commumly.** Beating a drum is not a nuisance; to blow a fife 
is not; neither is a procession through the street with these ac- 
companiments a crime. To constitute them such, the exceptional 
facts and circumstances which make acts, otherwise innocent, a 
crime, must be set forth particularly, bo that the court can see that, 
from their very nature, if proved, th^ are a nuisance to the whole 
conununity.** Accordingly, where there was an indictment con- 
tuning three counts, the first for a riot, the second for a commtm 
nuisance by the beating of drums, the blowing of fifes and shouting 
in the streets of a town, and the third for obstructing the streets, 

•0 Crump T. Lambert, L. R. 8 BSq. opinion br Allen, Jr. See olao Wes- 

409, 413. son v. Waahburn Iron Co., 13 Allen 

••Davldeon v. iBham, g N. J, Eq. (Maas.), 96; Fuj v. Wtaltman, 100 

(1 Stock.) 186, 190. Mass. 76. 

>i Rhodes T. Dunbar, 67 Pa. St "St&te v. Baldwin, 1 Dev. A 

374. To the same effect see Ross Batt. (N. C.) 197; State v. Hugbea, 

T. Butler, 19 N. J. Eq. 294. 7! N. C. 35. 

M DavtB V. Sanger, 133 Mass. 2S9, u St. v. HugheB, BupT& 

Google 



1356 PBOVtNCE OF COURT AND JUBT. 

and it appeared tbat the defendants, who were persons of color, 
were celebrating emancipation day, ajid that there was no fartiier 
irregularity than usually accompanies any promiscuoua mass-meet- 
ing and parade, it was held, on a special verdict, that the defend- 
ants most be discharged.^ 

g 1901. Whether Nuisance must be EstabliBbed by a Verdict 
at Law. — Courts of equity are reluctant, in these cases, to enjoin 
an otherwise lawful trade which produces disturbing noises, until 
the parties complaining have established that it is a nuisance iy 
a judgment at law. Thus, where a bill was brought to enjoin a 
glass factory, on ihs ground that the carrying of it on produced 
noises which disturbed the plaintiff and several other persons in 
the neighborhood, Viee-Chancelior KJndersley refused relief <hi 
this ground; but the view which he took of it seems to be untenable. 
It is to be gathered from what he is reported to have said, t^t he 
did not place his refusal cm the ground that the thing complained 
of was no nuisance in point of law, but aa the ground that it was 
remediable in an action at law for damages. Among other things 
he said: "In a case where the only questions are mere inconvenience 
to the parties by the alleged noise, disturbing more or leas their 
sleep, or in reference to the diminution of the value of the plain- 
tiff's property: in either case the injury is not irremediable, but 
is capable of compensation in damages."" A learned judge in 
Pennsylvania took tlie opposite and only tenable view of this qoes- 
tion, when he said: "I cannot doubt that a constant annoyance, 
which at law cannot be abated, ia never remedied by damages. 
The loss of health and sleep, the enjoyment of quiet and repose, 
and the comforts of home cannot be restored or compensated in 
money. It may afford consolation, but it does not remedy the evil, 
if that goes on, to be paid for by installments. The law operates 
upon the past only, while equity can and will act (m the present 
and future, will abate the nuisance itself, and restore the injured 
party to his rights." •* This was a case where there was no sub- 
stantial conflict in the evidence. It is said that, where the thing 
sought to be enjoined is lawful, and there is a conflict of testimcmy 
as to whether it is a nuisance, the question of fact must be deter- 
mined at law before equity will enjoin.*" 

■•Ibid. w Dennis v. Bckbardt, S Qrant 

nwhite T. Coban, 1 Drewrr, S12, Cu. (Pa.) 890. 
SIS, « D&Tldson V. Isbam, 9 H, J. Bq. 



Coo^^lc 



NUISANOE AND OBSTRUCTION. 1357 

§ 1903. NoiwB which render Dwelling Homes TTncomfort- 

able. — The groonds on which courts of equity interfere to restrain 
occupations or things which produce such noisea as to render peo- 
ple uncomfortable in their adjacent dwelling-houses, have been 
thus stated by an eminent judge: "If there were no authority on 
the question, I should have felt do difficulty about it, because I 
take it the law is this, that a man is entitled to the comfortable 
enjoyment of his dwelling-house. If his neighbor make such a 
noise as to interfere with the ordinary use and enjoyment of his 
dwelling-house, so as to cause serious annoyance and disturbance, 
the occupier of the dwelling-house is entitled to be protected from 
it. It is no answer to say that the defendant is only makii^ a 
reasonable use of his property, because there are many trades and 
many occupations which are not only reasonable, but necessary to 
be followed, and which still cannot be allowed to be followed in 
the proximity of dwelling-houses so as to interfere with the comfort 
of their inhabitants. I suppose a blacksmith's trade is as neces- 
sary as most trades in this kingdom; or I might take instances of 
many noisy and offensive trades, some of which are absolutely nec- 
essary, and some of which no doubt may not only be reasonably 
followed, but to which it is absolutely and indispensably necessary 
for the welfare of mankind that some houses and some pieces of 
land should be devoted; therefore, I think, that is not the teat."*' 

(1 Stoclc.) 1S6. Tbe general trend law, which Is still pending &ad the 

of oplnltm appears to be not to re- alleged nuisance is such In com- 

sard as of great moment the es- binatlon with and aa part of other 

tabllshment, \tj Judgment of law, ot causes, equity will, at least, await 

the tact of a nuisance, but to paake events. Powell t. Bentley * Ger- 

Independent of that, the determln- wig Fur. Co., 34 W. Ta. S04, 12 S. B. 

ative Uflt, whether the remedy at 1D8E, 12 L. R. A. 63. 

law— compensation In damages — Is wBroder t. Salllard, 2 Ch. Dlv. 

adequate. If the damage la a con- 692, 701, per Jesael, M. R. So, as 

stantly recurring grievance, and. In between restdenta of the same 

Its nature Insusceptible of adequate neighborhood. It has been held, that 

compensation In damages, equity one boaaeholder may not locate tale 

win Interfere. See Wendlandt v. barn and horses so near as to be 

Cavanaugh, 86 Wis. 25S, && N. W. offensive to an adjoining owner, 

408; Royce v. Carpenter, 80 Vt. 37, when, with but little more Incon- 

6S Atl. 888; Whltmore V. Brown, 102 venience to himself, this result can 

He. 47, 65 Atl. 616. It Is. too, a be avoided. Glllord v. Hulett, 62 

question largely In discretion. Vt 342, 19 Atl. 230. It a district 

Mountain Copper M. Co. v. U. 8., has become devoted to residential 

142 Fed. 626, 73 C. C. A. G21. It re- purposes, It has been ruled that a 

sort has been had to an action at noisy trade may be enjoined from 

Coo^^lc 



1358 PROVINCE OF COUKT AND JURY. 

S 1903. Nobes ordinarily Incident to Certain Situations.— 

Those who live in cities, in Jiotels, or in tenemertt houses, cannot 
claim the aid of a court of equity to gain for themselves immunity 
from thoee noises which are customary and usual, and which are 
the ordinarj' incidents of the place in whiiA such persons may 
choose to take up their abode. Thug, a man living in a tenement 
house was denied on injunction to prevent his neighbor, who lived 
on the floor immediately above him, from tnmdling a baby car- 
riage back and forth over his carpet at night, in order to appease 
a child which was teething and fretfuL Good neighborship, might, 
indeed, suggest that a noiseless cradle, or some other appliance 
shonld be used; but in such a case the law would not interfere. 
"As a matter of law," the court said, "if the plaintiff himself was 
taken sick and obliged to walk the floor all night throi^h pain, the 
defendant would have no right to insist that be should put on 
India rubbers. • • • Where people indulge their mclination 
to be gregarious they must not expect the quiet that belongs to 
solitude." " 

§ 1904. Necessary Noises in CHties. — In determinii^ the ques- 
tion of nuisance from smoke or noxious vapor, or from noise or 
vibration, it has been well laid down that reference most always be 
had to the locality^ the nature of the trade, the character of the 
machinery, and the manner of using the property producing the 
annoyance and injury complained of. "A party dwelling in the 
midst of a crowded commercial and manufacturing city cannot 
claim to have the same quiet and freedom from annoyance that he 

being tbere located. McMorran v. Supreme Court has ruled, tbat peo- 

Fltzgerald. 106 Mich. B49, 64 N. W. pie who IWe In clUee ore enUtled 

G69, 68 Am. St Rep. 511. But, It to enjoy tbelr homea tree trom dam- 

the residence feature succeedB the sglns smoke, soot and clndets, saf- 

other. It has been held It cannot flclent to depreciate their property, 

drive the other aw&y. Ballentlne v. In addition to rendering their occu- 

Webb, 84 Mich. 38, 47 N. W. 485. 13 pancy uncomfortable. King v. Vidcs- 

L. R. A. 321. Where a restrlcUon In burg Ry. A Light Co., 88 Miss. 456. 

deeds for a residential district was 4S Sontb. 304, S L. B. A. (it. b.) 349. 

against bueinesB "offensive to the See also an to opening saloon In 

neighborhood for dwelling houses" quiet neighborhood. Haggart v. 

this was held to exclude an auto- Stehlln, 137 Ind. 48, 36 N. E. 997, 23 

mobile garage as evidence showed L. R. A. 677. 

It would be conducted. Evans t. *i Fool v. Higglneon, 8 Daly (N. 

Foss, 194 Mass. 613, 80 N. B. 687, ¥.). 113, 7 Cent. L. J. 102. 
9 L. R. A. (:i. a.) 1039. Mississippi 



D.qitizeabyG00<^lc 



NUISANCE AlTD OBSTEUOTION. ItfOS 

might rightfully claim if he were dwelling in the country. Every 
one taking ap his abode in a ci^ mtist expect to encounter the 
iueonveniences and annoyances incident to such community, and 
he mnst be taken to have conseoted to endure such annoyances to 
a certain extent." " Or, as was said by Lord Westbuxy, L. C, in 
a leading case: "If a man lives in a town it is necessary that he 
should subject hitnself to the consequences of those operations of 
trade which may be carried on in his immediate locality, which are 
actually necessary for trade and conmicrce, and also for the enjoy- 
ment of property and for tlie benefit of the inhabitants of the town 
and of the public at \B3rge. If a man lives in a street where there 
are numerous shops, and a shop is opened next door to him which 
is carried on in a fair and reasonable way, he haa do ground for 
complaint because, to himself individually, there may arise much 
discomfort from the trade carried on in that shop." And Lord 
Cranworth also said: "You roust look at it, not with a view to the 
question whether abstractly that kind of smoke was a nuisance, 
but whether it was a nuisance to a person living in the town, of 
Shields."" 

S 190S. Useless Noises in Cities. — On the other hand, the courts 
have not dealt leniently with vselfss noises in cities or in public 
places. Thus, outcries uttered in a public street, although th^ 
disturb but a single person, if they are accompanied with the other 
circumstances necesAary to constitute the offense, are indictable as 
8 public nuisance." In like manner, a drcws has been enjoined as 
a nuisance, where the performances were carried on for eight weeks 
every evening, from about half-past seven until half-past ten, con- 
sisting of music and shouting, which could be distinctly heard ali 
over plainti(T's house and in his dining room, even above the sounds 
of conversation, when the windows wore closed and several persons 
were talking.*' So, the striking of a clock in the night time, upon 

*t Dlttman v. Repp, 60 Md. 513, * HaBslacher Chem. Co. r. Dorle. 

623. It has been held that the 73 N. J. L. 376 or 521, 64 Atl. IG6. 
maintaining of a hualnesa, from *» Tipping v. St. Helen's Smelting 

which foul odors and loud noises Co., 4 Best ft S. 60S, 11 H, L. Cas. 

emanate, mar be a nuisance to one 642, 650, 

whose dwelling Is In the neighbor- ** Com. v. Oaks, 113 Mass. 8; Com. 

hood of factories, but the character v. Smith, 6 Cush. (Mass.) 80; Com. 

of the neighborhood is to be con- v. Harris, 101 Mass. 29. 
sidered In detennlnloB the kind and " Inchbald v. RoblDson. I* R. 4 

degree of annoyance, which will be Cb. App. 388. 
regarded aa a nuisance. Roeasler 



7crib;G00l^lC 



1360 PBOviNCB or coubt and jtjby. 

a bell that weighed 3060 pounds, was enjoined npon the testimony 
of the two plaintifb and four others, to the effect that it disturbed 
their rest, although more than a htmdred witnesses living at various 
distances from it, many of them as near to it as the plaintiffs and 
the pluntiffs' witnesses, testified Utat it bad no unpleasant effect 
upon them.** 

§ 1906. Noisy Trades located In Neighborhoods devoted to 
Residences. — In like manner, the business of a gold or s^er heater, 
set up in a quiet neighborhood occupied by dwellings, the noise 
and concussion of which unreasonably interfere with the comfort 
of the inhabitants in their dwellings, and perhaps also with the 
B&fety of neighboring property, was held such a nuisance as equity 
would restrain. In giving his judgment in this case AUistm, P. J,, 
referred to a decision of the late Chief Justice Thompson of Penn- 
sylvania, granting an injunction against a iinsnuth, at the suit of 
a householder disturbed by the noise of his business. He also 
said: "Everything that disturbs, in an unreasonable degree, the 
quiet enjoyment of home or dwelling-house, is a nuisance. A man 
is to be protected in the enjoyment of his property against all un- 
lawful disturbances, if he does not, by such enjoyment, invade the 
rights of others. • • • The defendant has no right to com- 
plain if the injunction presses hard on him. He intruded bis 
business into one of the most quiet neighborhoods in the city — a 
neighborhood rendered desirable as a home, in which quiet and 
rest could be found. This was wholly unnecessary on his part, 
many portions of the city being given up to business and its at- 
tendant noise and turmoil; other portions affording isolation in 
which business could be earned on causing discomfort to no one. 
While business is to be fostered and protected against onreasonable 
objection, the horae of the citizen, under the law, has an equal right 
to be defended against the wanbHi intrusi«i that destroys or un- 
reasonably impairs its enjoyment,"*' 

«« Leete v. Pll^m Cong. Church, Va. 171, es S. B. G46, T L. R. A. 

It Mo. App. 690. The howling of (n. s.) 349. And so as to ttselesa 

dogs and the barking of puppfea &t Btnicturea built for spite — lor ez- 

nlght was enjoined by a Vtrglnla ample an unsightly fence on a boun- 

court, where the adjoining bouse- dary line may be enjolneil. Kirk- 

bolder and his family had their rest wood v. Flnnegan, 95 Hlch. 648, 66 

broken, and the annoyance wu so N. W. 467; Hunt t. Coggln, 6S N. H. 

continuous as to interfere seriously 140, 20 Atl. 250. 

with the reasonable enjoyment of " Wallace v. Auer, 10 Pblla. (Pa.) 

his home. Ueirlng v. Wilson, 106 366. 



7crib;G00<^IC 



NUISANCE AND OBSTRUCTION. 1361 

§ 1907. Noisea proceediig from a Business carried on at Us- 
reasonable Hours. — A lawful trade may be enjoined as a nuisance, 
on the ground that it ia carried mi at unreasonable boura. Thus, 
where the defendant erected a tin-^op some eighty feet from the 
back building and sleeping room of the complainant, and there 
carried on work, generally beginning in the morning before day- 
light, and resuming it again in the evening at or about 6 o'clock 
p. m., and keeping it up until 11 o'clock at night, having general 
employment elsewhere during the day; and the afiidavits showed 
that the uoiaea which proceeded therefrom were intolerable, so as 
almost to drown conversation in the plaintiff's house, and to com- 
pel them to abandon their chambers next to the shop, and to de- 
prive them of their rest, — the court saw in the case no disputed 
question which required a trial at Iaw, and had no difficulty in ■ 
granting an injunction." 

§ 1908. Doctrine that in order to constitute a Nuisance the 
Noise must be "Unmual, ni-timed, or Deafening." — In a ease in 
the Superior Couri: of New York it was said by Sandford, J.; 
"Noise is usually incident to the motion of machinery and to 
mechanical pursuits, especially those which are carried on through 
the agency of steam. But noises are not, ex necessitate, nuisances, 
even when disagreeable ; and it is only when they are of a character 
80 objectionable as fairly to come within the meaning of Uiat sig- 
nificant term that a court of equity will interfere to repress or 
restrain them."" In another case in the same State it was said: 
"Mere noise, perhaps, unl^s vnusudl, iU-ttmed, or deafening, may 
not be such a nuisance as to authorize the entertainment of an 
action therefor, even when it interferes with another peison's 
avocation or pursuits;" and the decision, which was in favor of 
the plaintiff, proceeded on the ground that something more pal- 
pable than discomfort by noise was established by the evidwice." 
Where, upon the examination of the evidence, it appeared that the 
noise produced by machinery, operated hy steam, in a marble- 
cutting establishment adjacent to a property owned by the plaintifF 
and occupied as residences, was not unusual, — ^that is, was such a 
noise as ia ordinarily incident to the use of similar machinery; was 

u Dennis v. Eckhardt, S Qrant L. R. A. 983; Hill v. McBurner Oil 

Caa. (Pa.) 390. . and Fertiliser Co., 112 Oa. 78S, 38 S. 

<« Butterfield v. Klaber, 62 How. E. 42, 52 L. R. A. 398. 

Pr. (N. T.) 2EE, 262; Baed v. Edna m HcKeon v. See, 4 Rob. (N. T.) 

Hills, 136 N. C. 34S, 48 S. E. 761, 67 449. 
Tmals — 86 

i:q,t7,:-rb;G00l^lc 



1362 PHOVINCB OP COUET AND JUBT, 

not Ul'timed, — that is, was produced only in the ordinary working 
hours of the d&y; and was not even loud, though it was audible 
from some of the residences near by, — the oourt refused an in- 
junction on the ground of these noises.** 

§ 1909. The Question said to be a Question of Decree.— "A 

nuisance of this kind," said Lord Selbome, L. C, "is much more 
difReult to prove, than when the injury complained of is the de- 
monstrable effect of a visible or tangible cause, as when waters are 
fouled by sewage, or when the fumes of mineral acids pass from 
the chimneys of factories or other woriis, over land or houses, 
producing deleterious physical changes which science can trace 
and explain. A nuisance by noise, supposing malice to be out of 
the questicm, is emphatically a question of degree. If my neighbor 
builds a house agaiust a party wall next to my own, and I hear 
through the wall more than is agreeable to me of the sounds from 
bis nursery, or his music room, it does not follow, even if I am 
nervously sensitive or in infirm health, that I can bring an aotiim 
or obtain an injunction. Such things, to offend against the law, 
must be done in a manner which, beyond fair controversy, ought 
to be regarded as exceptive and unreasonable." ** 

§ 1910. Whether a Bight to Perpetuate Disagreeable Noises 
may be acquired by User. — ^The earrj-ing on of a trade which pro- 
duced certain injurious noises for ten years was held not to be 
such a user as gave the defendant a prescriptive right to continue 
the same, though possibly a user of iroenty years, if pleaded and 
proved, would have been a good defense.'* It is said by Lord 
Romilly: "It is true that, by lapse of time, if an owner of the 
adjoining tenement, which, in case of light or water, is usually 
called the servient tenement, has not resisted for a period of tweiity 

■1 Butterfleld ▼. Klaber, 53 How. full period or the statute of limlt- 

' Pr. (N. Y.) 266, 263. atlons he has violated the law to tbe 

" Qaunt V. Fynney, Lk R. 8 Ch. extent and with the results charged 

App. S, 11. It has been ruled that against him, with the practical ac- 

exceptlons cannot be made to meet quiescence of the person Injured 

cases of pronounced Idlosrncraales and to the extent that during the 

or Infirm health. Herlfan v. Dls- whole time an action would lie 

trlct of Columbia, 27 App. D. C. 563. against him. See Stamm v. Cltr of 

M Elllotson V. Feetham, 2 Blng. Albuiiuerque, 10 N. M. 491, 62 Pac 

(N. C) 184. The rule aa to acqul- 973; Ducktown Sulphur A Iron Co. 

sltlon of right to maintain a private v. Barnes (Tenn.), 60 S. W. 693 (not 

nuleance Is. that the burden in on reported In state cases)* 
the malntainer to show that for the 



Goo<^lc 



NTJISAKOE AND OBSTBUCTIOM. 1363 

years, then the owner of the dominant tenement has acquired the 
right of discharging the gases or fluid, or sending smoke or noiae, 
from his tenement over the tenement of his neighbor; but, until 
that time has elapsed, the owner of the adjoining or neighboring 
tenement, whether he has or has not previously occupied it, — in 
other words, whether he comes to the nuisance, or the nuisance 
comes to him, — retains his right to have the air that passes over 
his land pure and unpolluted, and the soil and produce of it un- 
injured l^ the passage of gases, by the deposit of deleterious sub- 
stances, or by the flow of water.'"* A later English case goes far 
against the doctrine that the right to perpetuat« a nuisance can 
be acquired by user. The defendant, a confectioner in Wigmore 
street, London, had, for more than twenty yeaxs, used, without in- 
terruption, a pesile and mortar in a hack shop, built on what had 
been the garden of his house. Subsequently, the plaintiff, who was 
a physician, built a consulting room in his garden, abutting on the 
defendant's back shop, and sought to restrain the use of the de- 
fendant's pestle and mortar, which had now become a nuisance, 
though formerly it had not been notieedL It was held that the 
defendant had not acquired by user a right to make the noise com- 
plained of, which was neither physically capable of being pre- 
vented, nor actionable by the servient owner. This principle was 
held applicable both to affirmative and negative easements.*' 

§ 1911. Effect of Expectant Attention, — In estimating the 
value of evidence in these cases, as juries and courts of equity are 
called upon to do, science has offered valuable aid in explaining 
what is "expectant attention." This is shown to produce effects 
something like these: If, for any reason, or from any cause, the 
attention of a person is specially dlrawn to a sound, which under 
ordinary circumstances would not disturb him at all, it may there- 
after becfnne disturbing and a source of serious annoyance. This 
is perhaps well illustrated by a case before Lord Selbome, where 
it was sought to enjoin tlie noises and vibrations produced by the 
machinery in a silk factory. It appeared to the satisfaction of his 
lordship that ttae noises complained of had gone on for live years, 
just as they were going on at the time of the complaint, during all 
which tifloe the plaintiffs, who were unmarried ladies, did not re- 
gard tbem as nuisances. It also appeared that, at the time when 

*« Crump T. Lambert, L. R. 3 Bq. » Sturgls v. Brtdgmaa. 11 Cta. 

40i. Dlv. 852, 2S Weekly Rep. 200. 



Goo^^lc 



1364 PBoriNCB or oodbx and jubt. 

tiie n(HBea began to be a source of annoyance to tbem, a snddm 
noise bad alarmed tbeir servants, since ivhich time the plainti& 
had entertained an idea of some danger from the bmlers nsed by 
defendant, and that, from that tame, the noises of his machinery 
became a source of constant irritatim and uneasiness to them — 
a fact which was obviously attributed hy his hirdship to the cause 
named. The noises now seemed to them to be very much louder 
and more disturbing than before, and they testified to this as a 
fact, though the undoubted evidence was to the contrary.'* Xjord 
Selbome quoted from a recent scientific worfc"^ "that the thought 
uppermost in the mind, the predominant idea or ezpectaticHi, makes 
a real sensation from without assume a different character." 
There is little doubt that nervous persons, after commencing a 
legal action in respect of a nuisance, are conscious of being very 
seriously annoyed by it, when, under ordinary circumstances, they 
might not notice it. 

g 1912. Effect of Conflicting Evidence as to whether SoundB 
are Distorting. — In cases in equity the court will frequently be 
called upon to dischai^ the painful responsibility of deciding, 
upon conBicting evidence, the question whether the sounds e(Hn- 
plained of are really disturbing. It has been pointed out that, 
in such caaes, a useful principle for the government of the court 
is the rule which regards the testimony of a credible witness, 
swearing positively to an affirmative fact, and which disregards 
that of another witnesB, equally credible and standing in a similar 
situation, who swears that he is not aware of the same fact. Ap- 
plying this test, it has been said that, where the witnesses in a 
certain bouse say that they were pleasurably affected by sounds 
which the witnesses in other houses agree is a cause of pain, it will 
appear that such testimony is not necessarily confiieting, and that 
the court is not reduced to the disagreeable necessity of supposing 
that either statement is inaccurate. "The similarity which exists 
among mankind, while they are well, and which authorizes us to 
infer that like causes will produce the same result, is replaced un- 
der the influence of ill-health, by divergences, which not only 
render the sufferer unlike his fellows, but may, for the time being, 
seem to render him the denizen of some other world. The senses 
of one patient may be dulled by his malady, while those of another 

" Gaunt V. Fynney, L. H. 8 Cb. 8, " Tuke on the InflneaM of tlie 
18. Hind on the Body. 



Coo^^lc 



NUISANCE AND OBSTRUCTION. 



become preternaturally acate, and are tortured by that which 
brings pleasing reminiscences to the first."** 

§ 1913. Stables. — Livery stables are not nuisances per se, thoagh 
they may manifestly be so conducted as to become such. A court 
of equity will not therefore enjoin the establishment of a livery 
stable, although in a neighborhood occupied by elegant residences 
in a city; since this would be exerting the extraordinary powei^ of 
such a court against the establishment of an occupation which 
nught or might not become a nuisance, according to circum- 
stances.** But stables erected in the immediate proximity of 
dwelling-houses, so t^at the inmates of the same were disturbed 
and kept awalte by the stamping of the horses, have been enjoined 
as nuisances.** Thus, where the occupier of a house in a street in 
London had, many years ago, converted the ground floor into a 
stable, and, in 1871, a new occupier altered the stable, so that the 
noise of the horses was an annoyance to the next door neighbor and 
prevented him from letting his house as a lodging, it was held, in 



■■HarriBDn v. SL Mark's Cburch, 
12 PhUa. (Pa.) 2B9, opinion bjr 
Hare, P. 3. In a case In VirElnla, 
tbe nuleance complained of was a 
tJaughter^ouse, and tbe annorance 
and discomfort whlcb tbe complain- 
ant alleged, was bearing tlie groans 
and cries of tbe animals when be- 
ing slaugbtered, and more eepeclallr 
tbe offensive odors. Many witnesses 
were introduced by \he defendants, 
wbose testimony, as we Infer, wa« 
to the effect that tbey were not In- 
commoded by the slaugbter-houBe 
In tbe manner In whlcb the plaintiff 
claimed to bave been Incommoded. 
Concerning this testimony, tbe 
court said: "1. Many of the wit- 
nesses do not live In the Immediate 
Ttcinlty of tbe Blaughter-bouse, and 
none of them, except perhaps one or 
two, as near as the residence of Mrs. 
Pendleton (tbe plaintiff), and some 
of them only occasionally Tialted the 
■laugbter-house. S. The testimony 
or the moat of It, in Its relation to 
the grounds of tbe complaint. Is 



negative In its character, and not 
necesBarily InconalBtent wltb the 
testimony on behalf of the appellee 
(the plaintiff). On the other band, 
tbe witnessee for Mrs. Pendleton 
speak positively of matters that 
came directly under their personal 
ohi^ervatlon — facts within their own 
knowledge — tacts which constitute 
the nuisance charged, and they had 
the best opportunity to be informed 
and to know whereof they spoke." 
A decree restraining the nuisance 
was afflrmed. Pruner v. Pendleton, 
7G Va. 516. 

M Flint V. Russell, G Dill. (U. S.) 
151. See also Aldrich v. Howard, 7 
R. I. ST, g Id. 246; Burditt v. Swen- 
son, 17 Tex. 4S9; Dargan v. Waddlll, 
9 Ired. Law (N. C.) 2*4; Klrkman 
V. Handy, 11 Humph. (Tenn.) M6; 
Coker v. Birge, 10 Ga. 336; Harri- 
son V. Brooks, 20 Id. 63T; Horrls 
v. Brower, 1 Anth. <N. V.) 368. 

•oBall V. Hay, L. R. 8 Ch. 467; 
Broder v. Saillard, 2 Ch. Div. 692. 



D.qitizeabyG00<^lc 



1366 FBOTINOB 07 OODBT AND JUBT. 

1873, that the fact of horses having been previonsly kept in the 
stable, bnt not so as to be an annoyance, did not deprive the neigh- 
bor of hia right to have the nuisaaoe restrained.*^ In euch a case, 
the following i&ngnage was used by an eminent jndge:** "A man 
has a right to torn his dwelling-hoase into a stable, or his stable 
into a dwelling-hoose. That is not the question." The learned 
jndge then quoted the language of Lord Justice Mellish in a pre- 
vioufl case as follows: "When, in a street like Green street, the 
ground floor of a neighboring house is turned into a stable, we 
are not to consider the noise of horses from that stable like the 
noise of a piano-forte from a neighbor's house, or the noiae of a 
neighbor's children in their nursery, which are noises we must 
reasonably expect, and must, to a considerable extent, put up with 
A noise of this kind, if it raat^ally distorbs the comfort of the 
plaintiff's dwelling-house, and prevents people from sleeping at 
night, and still more, if it does rea% and seriously interfere with 
the plaintiff's trade as a lodging-bouse keeper, beyond all guesticm 
constitutes an actionable nuisance."** "The test," continued Sir 
Qeorge Jessel, "therefore, is, whether the stables are unluckily 
Bo situated, as that the noise from the horses, not being nncomnuMi 
horses in any way, materially disturbs the comfort of the plaintiff's 
dwelling-house, and prevents the people from sleeping at night."** 
And he accordingly concluded that, "if a stable is built as this 
stable is, not as stables usually are, at some distance from dwelling- 
houses, but next to the wall of plaintiff's dwelling-house, in such 
a position that the noise would actually prevent the neighbors' 
sleeping, and would frighten them out of their sleep, and would 
prevent their ordinary and comfortable enjojment of their dwel- 
lings, — all I can say is that is not a proper place to keep horses 
in, although the horses m^ be ordinarily quiet."** 

S 1914 factory Bell Bong early in the Morning.— A bell 
weighing 2128 pounds was placed by the ownere of a factory upwi 
their mill, and was rung every working day, once at five o'clock 
and twice between six and six and a half o'clock in the morning, 
and at other times during the day, except that the five o'clock bell 
was discontinued during the summer months. The plaintiffs re- 
sided respectively 1090 and 295 feet from the bell tower. Upon 

<i Boll r. Ray, L. R. S Gh. 467. » Ball v. Ray. L. R. 8 Cb. 467, 471. 

wSlr George Jessel, M. R., In MBroder v. S^Uard, supra. 
Broder v. Salllara, supra. •' Ibid. 



7crib;G00<^IC 



NtnSAKCB AND OB3TBUOTI0N. 1367 

& bill brought by them, the ringing of this bell vras restrained as & 
nuisance, although a large majority of persons, living nearer U> 
the bell than the plaintifEs, Tvere not annoyed by it, and although 
some penons may have had such associations with Uie sound that 
it may have been to them a pleasure rather than an annoyance; 
whilst the sensibilities of others to the sound may have become so 
deadened that it did not disturb them. As the ringing of the bell 
was not essential to the defendant's business, and was nothing 
more than a convenience, while it interfered with the rights of the 
plaintiffs, it was held that they were entitled to an injunction 
without having obtained a previous judgment at law." 

§ 1916. Obnrch Bells. — ^Where a chnrch was built upon a side 
of a street, at about the center of one side of a block, in a neigh- 
borhood compactly built up by residences, many of them four and 
five stories high, so that it stood in a sort of court with its belfry 
not more than sixty feet from the windo^ra of some of the sur- 
rounding residences, in which belfry its bells were suspended at a 
height of sixty-seven feet from the ground, and nearly on a level 
with the roofs of the nearest bouses, and the chime consisted of 
four lai^e bells, which were rung at various times during the week 
and on Sundays, producing sounds wbich disturbed a large number 
of perstms residing in the immediate neighborhood, and which 
were, according to competent medical testimony, injurious to the 
sick and productive of disease, a provisional order was entered 
restraining the defendant from ringing the bells or otherwise 
using the same, so as to cause nuisance or annoyance, by sound or 
noise, to the complainants, or any of them, within their respective 
homes." This was afiirmed, in a modified form, by the Supreme 

*> Davis T. Sawyer, 113 Moss. 2S9. Lord Hale on such an Information, 

la an old case o( an Information for that the noise of It disturbed 

for erecting and continuing a loap tbe neighbors and shook the adja- 

hoilery In Wood Street, In London, cent houaes; and the caee of Ttae 

to the anno;tuice of the neighbor- King v, Jordan for a brewhouse on 

hood, tbe trial wew before Jeffreys, Ludgate Hill, about a rear and a 

G. J., at QuUdhall— a Judge whose half since; and be was forced to 

name Is more unsavorr to posterltj' prostrate tbe same and direct It to 

than any soap bollerj. Tbe de- another use; tor that such trade 

tendant was found guilty, and the ought not to be In tbe principal 

reporter has put down the following parts of the city, but In the out- 

statementi "In this case was re- skirts." Rex v. Pierce, 2 Shower, 

membered tbe case of a calendar 337. 

man bere In London, In Bread 't Harrison t. St Mark's Church, 

Street, who was convicted before 12 Phlla. (Fa.) 259. 



Coo»^lc 



1368 PBOVINCB OP COUBT AND JUBT. 

Court of P^Dsylvania, three of the judges, Mercur, Paxson and 
Sterrett, dissenting, on the ground that it was not a proper case 
for a preliminary injunction. The restraining order, as entered 
in the Supreme Court, compelled the cessation of the ringing at 
seven o'clock in the morning, and limited the ringing for the 
ordinary serricea to five minutes before each service. 

§ 1916. Oontiiiiied. — ^A still earlier precedent is found for this 
relief. In 1851, Vice-Chancellor Kindersley enjoined the ringing 
of a church bell under the following ciremnstances : A Catholic 
order called the Redemptorist Fathers took a lease of a house ad* 
joining the plaintiCb, and on it caused a wooden frame to be 
erected, in which a bell was bung which was rung five times on 
Monday, Tuesday, Wednesday, Thursday and Friday, six times 
on Saturday, and oftener on Sund^, in every week. The rin^g 
ordinarily commenced at five o'clock in the morning and continoed 
for ten minutes, to the great discfmifort and annoyance of tiie 
plaintiff and his funily. Subsequently a Roman Catholic church 
was erected on the ground adjoining the chapel, with a steeple in 
which was placed a peal of six bells, which were rung at intervals 
during every day, commencing at five o'clock in the morning, and 
vei7 frequently <hi Sunday. This peal of bells was suspended but 
sixty feet from the plaintiff's bedroom window. An injunction 
was granted "to restrain the defendant and all persons acting 
under his direction or by his authority, from tolling or ringing the 
bells in the plaintiff's bill mentioned, or any of them, so as to 
occasicm any nuisance, disturbance and annoyance to the plaintiff 
and his family residing in the dwelling-house in the bill men- 
tioned."" The learned judge thought that it was possible that 
some of those bells might be rung so as not to occasion any nuisance 
or annoyance to the plaintiff, and therefore he did not think it 
right to say that none of the bells should be rung again. At that 
time the feeling against Roman Catholics in England waa much 
stronger than at present. It was boldly urged in behalf of the 
plaintiff thiit Roman Catholics had no r^ht to keep and rii^ bells 
in connection with their places of worship. The vice-chancellor 
carefully refrained from deciding this question; but he was equally 
careful to point out that this was not a "church" within the mean- 
ing of the English law, but that it waa a Btmian Catholic "chapel," 
and that his decision would not accordingly affect the ruling <rf 

w Soltau V. De Held, i Sim. (n. s.) 13S. 

i:q,t,7c-rib;G00<^IC 



NUISANCE AND OBSTRUCTION, 1369 

bells in 1107 parish cliurch established under that law. Another 
very important feature of this case was that the plaintiff had pre- 
Tionsly established the fact that thia was a noisance, by a* reeoTery 
of damages at law. 

§ 1917. Odttinned. — Ooing back to 1724 we find a case where 
the plaintiffis' house {they were hosband and wife) being so near 
a pariah chnrch that the five o'clock bell greatly disturbed the 
wife, who was sickly, they purchased their peac£ by agreeing in 
writing with the chorchwardena and inhabitaDts at a vestry, that 
they would erect a cupola and clock at the church, and that, in 
consideration thereof, the five o'clock bell should not be rung dur- 
ing their lives or that of the survivor of them. In pursuance of 
the agreement the plaintiffs erected a cupola, clock and bell, and 
the five o'clock bell remained silent tor abont two years, until "the 
defendant, an ale-house keeper, being chosen churchwarden, a new 
order of vestry was obtained for the ringing of the five o'clock 
bell." Upon a bill filed to enjoin this ringing, it was held that 
this was a good contract, and the court enjoined the ringing of the 
five o'clock bell during the livea of the plaintiffs or the survivor 
of them, according to its terms. Among other things, the lords' 
cominissionera are reported to have said that the ringing of the 
five o'clock bell did not seem to be "of any use to the parish, 
though of very ill ctmsequence to the plaintiff, the Lady How- 
ard. "•• 

S 1918. Baflway Engines in the Neighborhood of Ohurchea.— 
It has been held and denied that an action on the case lies against 
a railroad company fen* nuisance in running their cars and engines, 
ringing bells, blowing off steam, and making other noises in the 
neighborhood of a church or meeting-house on the Sabbatb, and 
during public worship, which so Kmoy and molest the congregation 
worshiping there, as greatly to depreciate the value of the house 
and render the same unfit for a place of religious worship." The 
Supreme Court of Pennsylvania refused to enjoin the running of 
street railway cars on Sunday, on the ground that, if it were a 
nuisance at all, it was a public nuisance, to be redressed at a suit 

MUartln v. Nutkln, 2 P. Wms. an action would ll«. First Baptist 

!G6. Church v. Utlca etc. lUllroad Co., 6 

'■First Baptist Church v. Sche- Barb. (N. Y.) 813, where the con- 

nectady etc. Railroad Co., S Barh. (N. tiaiT was held. 
Y.) 79, nhere It was held that such 



7crib;G00<^IC 



1370 PBOTINCX OF OOUBT AlfO JUBY. 

of the CommoQ wealth." It was also held that an action for sach 
an injury is properly brought against the railroad company, in its 
corporate character, by the church in its corporate character.'* 

§ 1919. Noisea Fijghteninflr Horses^ — It ia not every occasional 
and accidental noise which might frighten a horae in a stable on 
a particular day, that would entitle the plaintiff to an injunction, 
if the general case or habitual nuisance allied in the bill were 
not aatisfactorily proved.'* Accordingly, where the bill sought 
to enjoin the noise and vibration produced 1^ machineiy in a 
silk factory, witnesses for the plaintiff stated that, on one occasion, 
the horse of a visitor, when put in the adjoining stahle, suffered 
tremors, — ' ' as to which his lordship said that this evidence did not 
make a powerful impresssion on his mind."" The governing 
principle here was, that effects which are only occasional or ac- 
cidental, and which do not necessarily flow from the thing cchd- 
plained of,' are not ground of injunctim, although they may afford 
ground of an action at law.'* 

§ 1920. Steam Whistles.— It is said that a steam whistle ia not 
per se a nuisance, but those who make use of it are bound to 
use it in such a place and in such a manner that it shall not be- 
come a nuisance.'* "Such whistles are necessary upon railroad 
engines to frighten horses and cattle that may stray upon the road 
in front of the engine, and drive them from the track. They are 
also necessary to give notice of the approach of a train to persona 
about to cross the track, at such a distance that the bell cannot 
be heard. In this and other cases, their use upon railroads ia im- 
portant and valuable, and both sanctioned and required by law; 

(1 Sparfaawk v. Union Passenger etc. Co., 88 Conn. 488. Tbla suna 

Railroad Co., 64 Fa. St. 401. ruling has been applied to an auto- 

t* First Baptist Church v. Sche- mobile. It being held that the owner 

nectadT etc Railroad Co., supra. See Is charged wltb notice, that horses 

also Baltimore etc R. Co. v. Fifth may be frightened br the noises 

Baptist Church, 103 U. S. Rep. 317, ' Incident to Its operaUon, and where 

2 Sup. Ct. 719. there are explosions from Its gaso- 

n Qaunt ▼. Frnney, L. R. 8 Ch. 8, line engine, which can be stopped, 

14, per Lord Selborne, L. C such owner must exercise ordlnarr 

It Ihid. care In not allowing them to 

Ti Cooke T. Forbes, L. R. 6 Bq. frighten a team. House v. Cramer, 

166. 134 Iowa, 874, US N. W. Z. 10 L 

T* Parker v. Union Woolen Works, R. A. (n. b.) 665. 
42 Conn. 399; Knight v. Goodrear 



7crib;G00<^IC 



NUISANCE AND OBSTRUCTION. 1371 

and iD such cases, the usefulness of the whistle depends apon the 
alarming and frightening character of the noise it makea ; and (me 
of the purposes for which it is used is to frighten and alarm. 
This is well nnderstood, and ttie owners of animals, which have 
not become accustomed to whistle^ are bound to submit to the 
necessities of the case, and if they drive them where locomotive 
whistles are liable to be blown, they lake the risk upon themselves, 
and, if any injury results, they can have no redress. But the rule 
should be and is different in respect to whistles used upon fac- 
tories. Their use is not necessary at all, but, if used, there is no 
necessity for constructing them in such a way, and using them in 
such a manner, as to alarm or frighten any person or animal. 
All the purposes to be attained from their use npoa factories can 
be attained without constructing and udng them in an alarming 
manner. It follows that an unnecessary alarming or frightening 
use of them, if productive of injury to another, is wrongful, and 
the proprietors should be holden responsible for the injury."*^ 
It was accordingly held that proprietors of factories are not en* 
titled to use steam whistles on their factories so located, of such 
a character, and used in such a manner, as to frighten horses of 
ordinary gentleness, when passing upon the highway adjoining 
their land ; and that they are responsible for an injury caused 
by an unnecessary, alarming, or frightening use of them." 

§ 1921. How far Plaintiff under Obligation to avoid Conse- 
quencea of such a Nuisaiice: Contributory Negligence. — Every 
person is ordinarily bound to take reasonable precaution to guard 
against known dangers, and cannot make the negligence or fault 
of another a ground of recovering damages for injuries which he 
himself might have avoided by the exercise of ordinary care. But 
contributory negligence cannot be attributed to a person for driv- 
ing a well-broken and ordinarly gentle horse upon the highway, 
in the course of his business, in good faith, although in the vicinity 
of a factory where a steam whistle is kept and where it may be 
imneeessarily blown;** but where the plaintiff's horse which, 
otherwise gentle, had the vicious habit of pulling when tied to a 
post, was fastened by a stout rope on the side of a public street 
near a factory, which had a steam whistle upon it which was used 

n Knlgbt V. Ooodyear etc. Co, S8 t* Knfgbt v. Ooodyear etc. Co., iS 
Conn. 438, 141. Conn. 438. 

18 Ibid. 



D.qitizeabyG00<^lc 



1372 PROVINCB OF COUET AND JUET. 

for the purpose of calling its operatives, the sound of which was 
shrill and calculated to frighten ordinary horses; and while the 
plaintiff's horse was so tied, the whistle was hlown, whereat the 
horse became frightened and pulled -violently at the rope, which 
broke and he was killed, it was held that the plaintiff could not 
recover damages, although it was found as a fact that if the whistle 
had not sounded, the horse would not have been killed, it having 
been also found that, if the horse had been free from the habit of 
pulling, he would not have been killed.^ 

^ 1822. Irjnties Produced by Tibration. — Courts of equity 
have, in a number of cases, either interposed to restrain nuisances 
produced by machinery which results in the vibration of adjoining 
buildings or residences, or have otherwise rec<^ni2ed the principle 
that such nuisances may, in proper cases, be abated by an in- 
joDCtion.** Thus, in a well-considered case, the complainant and 
defendant occupied adjoining buildings, the walla of which touched 
each other in places. The defendant carried on, in his place of 
business, a printing and book-binding establishment He had 
there a twelve-horse power engine with boiler attached, and six 
printing presses, four operated by steam and two by hand. This 
machinery was so placed that its power was exerted in lines run- 
ning east and west; in other words, across the building, and not 
longitudinally, so that the west wall of complainant's building was 
compelled to receive whatever shock was produced by this vibratoiy 
force. The defendant carried on, in the adjoining building, a 
saddlery manufactory. The evidence tended to show that the 
vibrations received from the plaintiff's building were so great at 

•• Parker v. Woolen Co., 42 Conn, sourt, It was held, as to blasting In 

399. a quarrj. that It Is a nuisance, witb- 

■1 See Wood on Nuisances, G58- out respect to Its being properly or 
568. In a case trom North Carolina Improperly done, and would be re- 
It was held, that, where a railroad lleved against, unless Injury which 
used a spur track and there was would result to defendant would be 
noise, amoke and vibration, injur- bo exorbitant to defendant, that the 
Ing property, that the Inquiry court. In Ita discretion ought not to 
should be whether the manner of enjoin same. Schauta v. Ferklnoon 
use was reasonable. Wanton acts Bros. Const. Co,, 103 Mo. App. 122, 
and negligent disregard of rights 84 S. W. 1094. See also St. Louis 
causing constant apprehension of Safe Dep. ft S. Bank v. Kennett Es- 
Injury could be enjoined. Thomp- tate, 101 Mo. App. 370, 74 3. W. 
son V. Seaboard Air Line R. Co., 474. 
142 N. C. 31S, 65 S. E. 205. In MIs- 



D.qitizeabyG00<^lc 



NUISANCE AND OBSTRUCTION. 137S 

times 88 to render it impossible to do certain kinds of work in the 
defendant's building. One witness said tbat, when tbe Tibraticm 
was greatest, the door seemed to creep under his feet, and he could 
not write at all. Tbe defendant's book-keeper said that it pre- 
vented him at tlmca from making marks with his pen that he ought 
to make. Several of the defendant's employees swore tbat they 
were more or less disturbed by the vibration. It gave a headache 
to some, or produced a dizsiy sensation; in others it produced 
nausea closely resembling sea-sickness. Others testified that, when 
the motion was strongest, they found it impossible to do such parts 
of their work as required a steady hand and dear eye, sudi as 
delicate stitching and exact cutting in curved or irregular lines. 
One swore that od several occasions be had been compelled, in con- 
sequence of the vibration, to take his work to his dwelling and do 
it there. Everything pendant about the building oscillated like 
the pendulum of a clock. The actual deflection of the walls, how- 
ever, was not shown to be over tme-eighth to tbree-siztcentha of an 
inch. The court found it difficult to believe that so much dis- 
turbance could be produced by so alight a deflection. The learned 
judge, however, said: "I am not at liberty to decide the case on a 
theory or deduction based on a single fact, but must find the fact 
according to the truth as established by the evidence as a whole. 
Unless complainants' witnesses, without exception, have exagger- 
ated tbe effect of the vibration to such an extent as to render their 
stones downright falsehoods, it must be taken, as an established 
fact in the case, that the vibration very sensibly and materially 
interferes with the complainants in the prosecution of their busi- 
ness. My judgment is tbat the defendant is guilty of a nuisance 
which it is the duty of this court to redress. But this conclusicm 
docs not necessarily involve tbe destruction of the defendant's 
business. The injury to the complainants, in my judgment, is 
caused solely by the position of the machinery. As already stated, 
it is now placed so that its whole force is expended across the de- 
fendant's building and directly against tbat occupied by the com- 
plainants. To me it seems very plain that, if it is changed so that 
its force shall' be expended longitudinally with the building, and 
not transversely, tbe injury the complainants now suffer will be 
remedied, and all caus^ of complaint removed. Tbat is the unani- 
mous opinion of all the experts who have spoken on the subject. 
A decree will be advised directing the defendant to change the 
position cf his machinery iu accordance with the view above in- 

Coo^^lc 



1374 PEOVINCB OF COUBT AND JUBY. 

dicated, and that an injimction shall iaane, restraining him from 
operating any machinery in the building occupied by him, to such 
an extent as shall produce a vibrati<Hi in the complainants' build- 
ing sufficient to annoy or distorb them in the conduct of their 



§ 1923. Vibration of Steam-hammeni in a BolIing-mill.— In an 
action At law for damages, caused by the cracking of certain cot- 
tage walls belonging to the plaintiff, by the vibration caused by 
steam-hammers in a rolling-mill (^crated by the defendant, Black- 
bum, J., in summing up to the jury, said: "The question is, 
whether this is a case of nuisance, that is, an actionable wrong. 
If the defendant, in the coiirse of using these hammers, produced, 
not merely a nominal, bat such a sensible and real damage, as a 
sensible person occupying the cottage would find injurious, that 
is a nuisance; but that which is a sensible and real inconvenience 
to property situated in one place or occupied in one way, will be 
none to property situated in another place or occupied in an- 
other way. If you are of opinion that the vibration caused 
by the hammeis has shaken and cracked the walls of the cottages, 
you will probably consider that to be a substantial and real 
mischief. If, on the other hand, you think the damage was caused 
1^ the removal of the adjoining cottages, whether that was 
justiiiable or not, you ought to find a verdict for the defendant 
on that part of the case. So, with regard to the cottages stand- 
ing empty; if that was caused by the hammering, you will find 
a verdict for the plaintiff; if by the want of repair, for the de- 
fendant A further point has been raised by the plea that the 
grievances complained of were caused by the defendant in a 
reasonable and proper exercise of his trade in a reasonable 
and pr<^er place. My c^inicm is, that in law that is no answer to 
the action. I think that that cannot be a reasonable and proper 
exercise of a trade which has caused such injury to the plaintiff 
as she complains of."" 

§ 1924. Action, by Vbom Brought. — ^Injuries which fiow from 
noises are not permanent in their nature, and an action to redress 
them can wily be brought by those who are presently injured by 
them. Such an action, accordingly, cannot be brought by the 

»i Demarest v. Hardham, 34 M. J. ■> Scott v. Plrtli, 4 Foat A Fin. 

Eq. 469, 176. 477. 349. 



7crib;G00<^IC 



NUISANCE AND OBSTEUCTION. 1375 

reversioner; it must be brought, if at all, by the tenant.'* The 
rule is otherwise where the injury is not to the use merely, but to 
the prc^erty itself, — as in the caso of the obstruction of light.** 
The mle is familiar that several complaiuaotB may imite in the 
bill to enjoin a nuisance, where the injury complained of is com- 
mon to ail, — as in case of a noise or stench, common to a neighbor- 
hood.'* But where the injury is not common at all, as where it 
consists in part of vibration produced by machinery, which affects 
the buildings of some of the complainants, and not those of the 
rest of them, there iff a misjoinder of parties.*^ 

** Humford T. Oxford etc Kallroad ** DavIdsoD v. Iflbam, S N. J. Eq. 

Co., 1 Hurl. * N. S4. (1 Stock.) 186; CatUn v. Valentine, 

"Tucker v. Newman, 11 Ad. ft S P&lge (N. T.), 675. 

EI. 40. See DobBon ▼. Bl&ckmore, " DavldeoQ t. Isbam, supra. 
9 Ad. ft El. (N. a) 991; Shadwell v. 
Hutchinson, M. A U. 350. 



jcibyGoQl^lc 



CHAPTER LVn. 



Article I. — ^In Gknebal. 

AbTICLB II. — ^MtSKBPBBSEMTATIOH AND DbCETT, 
AbTICLB III. — FRAUDULENT CONVXTANOBS. 

Abticle I. — ^In General. 
Segtioh 

1930. DIbUhcUod betweoi Fraud In F&ct and Fraud In Iaw, 

1931. Court Adjudgeg when Self-BMd«nt. 

1932. And where Facts are Indisputable. 

1933. Unless Depending upon a Variety at ClrcumBtances InTolvtng 

Motive or Intent. 

1934. Or upon Conflicting Brldence. 

1936. Whether there la EWIdence tending to show Fraod a Question of 
Law. 

1936. Situations In which the Law Presumes Fraud. 

1937. When Declared as a Qaestlos of InterpreUtlon of Writings. 

1938. Fraud In Fact not Preeumed, but must be Proved. 
1910. Fraud In Fact Always a Question for the Jury. 
1941. lUastraUons. 

I 1930. Distinction between Fraud in Fact and Fraud in Law. 

Fraud in law differs from fraud in fact, in that in the former the 
tvtent of the party charged with the fraud is immaterial, and it ia 
determined by the court regardless of such intent; while in the 
latter, the fraud depends upon the fraudulent intent of the party, 
and the facta, establishing such intent, are for the jury.* It has 
been said that "fraud and fraudulent intent is always a question 

1 Hllne T. Henrr, 40 Pa. St 362; If be were actuated by a desire to do 

Campbell t. Flerlein, 134 111. App. wrong. Peoples Nat Bank t. Cen- 

207; Kempe v. Bennett * Blntord, tral Trust Co., 179 Mo. 648, 78 a 

184 Iowa, 247, 111 N. W. 926. W. 618. In Georgia It was said that 

Though the law will sometimes Im- fraud in law, or constructlTe fraud, 

ply fraud without proof of an actual differs from actual fraud, In that 

evil purpose, thia Is only where one the latter Implies moral guilt while 

Is so careless of bla duty and shows the former may be cansistent with 

such disregard for the rights of Innocanoa. Conyers t. Oraham, 81 

othen, that his conduct la aa bad, aa Qa. 615, 8 S. B. 621. 



Goo^^lc 



PttAOD. 1877 

ot fact for the jary; and although there are cases where it is said 
the hiw presumes fraud from certain acts, yet that presnmpticm 
is <Hil7 the coBcInsioQ of the l&w upon the facts as they are 
proven.'" 

§ 1931. Court adjudges when Setf-Svident. — When fraud in 
fact k self-evident, aa in the case of deceitful misrepresentaticHia, 
found or admitted, it is the duty of the court to adjudge upon 
it without submitting it to the jury.* ' 

S 1932. And Where Facta are Indisputable. — "Fraud," said 
Kent, C. J., "is a question of law, and especially, when there is 
no dispute about the facta It is the judgment of law on facts and 
intents, as has been frequently observed by judges of the greatest 
eminence."* "Whether a trnnsaction be fair or fraudulent," 
said Lord Mansfield, "is often a question of law: it is the judg- 
ment of law, upon facts and intents."* It is said that fraud is 
a question of law, when the facte on which it depends are well 
pleaded on one side and admitted by demurrer on the other.* 

S 1933. Unless depending on a Variety of Oircunistancea in- 
T<dvuig Motive or Intent. — Tt is aaid by a recent vnriter of reputa^ 
tion: "In some cases, fraud is self-evident; and, when so, it is the 
proper province of the court to adjudge upon it, without sub- 
mitting its existence to the decision of the jury. Cases of dis- 
honest misrepresentation and deceitful attempts to mislead are 
examples. Indeed, the whole law of deceit is an illustration of 
this proposition. Certain elements of deceit being found or ad- 
mitted, t^ court rules that they constitute fraud. In other case^ 
the existence of fraud depends upon a variety of circumstances, 
arising from motive and intent, and inferences from circumstantial 
evidence ; and, in such cases, the courts should submit to the jury 
the question of fraud, under proper instructions concerning the 
tests of fraud." * "What constitntes fraud is a question of law," 

■ Wakemanv. Dal1e7.44 Barb. (N. ■ Woraelj t. DeMattos, 1 Borr. 

T.) 198, 603. 467, 174. 

(Williams T. Hartfiborn, 30 Ala. ■ Qerrlsb t. Mace, 9 Orar (Mass.), 

211; Hardy t. Simpson, 13 Ired. L. 235; Warner Qlove Co. t. Jeimliiev, 

(N. C) 132, 139; Cbase t. Bougbton, E8 Conn. 74, 19 Atl. 239. 

It Hlcb. 285, 54 N. W. 44; Qoodwln t Blgelow on Fraud (let ed.), 468. 

V. Fall, 102 Me. 3B3, 06 Atl. 727. New York Store Merc. Co. v. West, 

* Sturtevant v. Ballard, 9 Jobns. lOT Mo. App. 254, SO S. W. 923. 
(N. Y.) 337, 342. 

Tbiai.8 — 87 



D.qitizeaOyGoOl^lc 



1378 PEOVINCB OF OODBT AND JUET. 

says Pearaon, J. "In some cases, the fraud is sdf-evident: when 
it is the province of the court so to adjudge, and the jury haa 
nothing to do with it. In other cases, it depends upon a variety 
of circumstances, arising from the motive and intent ; then it must 
be left as an open question of fact to the jury, with instmctiMia 
as to what, in law, constitutes fraud. And, in other cases, there 
is a preemption of fraud, which may be rebutted. Then, if there 
Ul any evidence tending to rebut it, that must be submitted to 
the jory; but if there is no such evidence, it is the dufy of the 
court so to adjudge and to act upon the presumptiMi. Fraud is 
very subtile and frequently eludes the grasp, both of the court 
and jury. When, therefore, the court has hold of It, there is no 
reason for passing it over to the jury, unless there is some evidence 
that will justify them in coming to the conclusion that the pre-' 
sumption is rebutted."* Qnesti<His of motive or intent are al- 
ways questions of fact for the jury,* except in cases where the 
facts are admitted, or tlie evidence is unequivocal and involves no 
question of the credibility of testimony, in which case it is sup- 
posed that the court may make the deduction.** 

5 1934. Or Upon Conflicting Evidence. — Where the question 
of fraud or no fraud is directly in issue, and the evidence ia con- 
flicting, the jury must decide the question, and it will be errw for 
the court to instruct them that if they believe the evidence, they 
must find for the plaintiff." It is said in other cases that, although 
fraud vel mm is, where the facts are clear and undisputed, a pure 
qnestion of law," yet where there is a coufUct of evidence upon the 
question of fraud, depending upon the weight of evidence and the 
credibilily of witnesses, it is error to withdraw the qnestion tvom 
the jury.'* 

■ Hardr v. SlmpBon, 13 Ired. t^ MAnte, H 1333, <t seq. ThnB, 
(K. C.) 13S, 139. Where part ot a from tbe wrongful use ot a trade- 
tranuctfon Is fraudulent, the wtaole mark. Galoea v. Wbytfl Orocer; F. 
mar tw presumed to be eo. If full * W. Co., 107 Ho. App. 507, SI 8. W. 
explanation Is not made. Shields 648. 

V. Hobart, 172 Mo. 491, 72 S. W. » Wllllama v. Rartahorn, SO Ala. 

669; Bates Count? Bank ▼. Gailer, 211. 

177 Ho. 181, 7S S. W. 646. iiSwIft v. litthugb.S Port (Ala.) 

■ Western Stage Co. t. Walker, S S9; Upson v. Raiford, S9 Ala. 188, 
Iowa, G06; Colvln v. Peck, 62 Conn. 199. See also Horn v. Amicable etc. 
les, 2S Atl. 3G5; Schumaker v. Hat- Co., 64 Barb. 81, 3 Big. Ins. Cas. 712. 
ther, 60 Hun, 670, 14 N. Y. 8. 411; ■» Henderson v. Habey, 18 Ala. 
Carey v. Hart, 63 Vt. 424, 21 AU. 71S: Boyd v. Hclvor, 11 Ala. S22; 
637. - Upson T. Raiford, eupra; Warner v. 



o.GoQi^lc 



FRAUD. 1379 

; 1936. Whetbtr there Is Evidence tendingr to ahem Fraud a 
Qoestion of Law, — It has been observed, with the most obvious pro- 
priety, that, while fraud ia a question of fact for a jmy, or for 
the court where there is no JQiy, yet it ia a question of law whether 
the evidence before the court or jury tends in any respect to es- 
tablish fraud ; if fraud is found, as a conclusion of fact, where there 
is uo evidence tending to such conclusion, it is the duly of the court 
to set the finding aside." 

§ 1936. Situations in which the Law presumes Fraud. — There 
are cases where the law, from the situation or relation of the par- 
ties, presumes fraud, — examples of which are found in transactions 
had between superiors and inferiors in a fiduciary relation, as attor- 
ney and client, guardian and ward, physician and patient, pastor and 
parishioner, etc., iu which the superior obtains a gift or advantage 
from the inferior. In such cases the law, od grounds of public 
policy, presumes fraud, or, what is tantamount to fraud, undue 
influence, sufficient to avoid the contract, gift, devise or legacy, and 
casts the burden upon the party acquiring the benefit, of showing 
that it was acquired without undue influence, and generally, that 
the inferior had independent advice. In many such cases, certain 
facts being established, it becomes the duty of the court to declare 
what is called constructive fraud, to exist.*' "For the sake of 
protecting parties in such dependent situations," s^s Dr. Bige- 
low, "the law wisely requires the party in the superior position to 
overcome the positive presumption against the fairness of the par- 
ticular transaction. But, if there be evidence tending to overturn 

Benjamin, 89 Wis. 290, 62 N. W. 179. Pla. 23, 19 Sontb. ITG; Bums t. 

Such conflict mar be between In- Docferay, 156 Mass. 135, 30 N. E. 

ference from clrcumatances on the B51; Caaker v. EftirIgM, 64 Vt i88, 

one aide and direct evidence on tbe 21 Atl. 249, 33 Am. St. Rep. 938. 

otber, as well ae between direct evl- >> Hardf v. Simpson, 13 Ired. L. 

dence on each side. Anderson v. (N. C.) 133. On the trial o( contest 

Webe, 62 Wla. 401, 22 N. W. 684; of a will the question ot the exlat- 

Montreal River Lumber Co. v. Ml- ence of undue Influence at the time 

h:ile, SO Wis. B40, 60 N. W. SOT. of the execution of a will, U a ques- 

" Oage V. Parker, 25 Barb. (N. tlon of fact for the ]ur;, and If the 

T.) 141, 145; Brwln v. Voorhees, 26 evidence la such that a rational 

Barb. (N. Y.) 127; Bowe v. Gage, mind might reasonably and fairly 

127 Wla. 245, 106 N. W. 1074; Wood- draw the conclusion reached by the 

man v. Bine Qrass Land Co., 101 Jury, the court, on appeal, will not 

Minn. 606, 112 N. W. 1033; West disturb the verdict. Moore v. Mc- 

Florlda Land Co. v. Studebaker, 37 Donald. SS Md. 321, 12 AU. 117. 



7crib;G00l^lC 



13S0 PBOVINCB OF COUBT AIH) JUBT. 

the presumption, it must, in most cases at least, be submitted to 
the jaiy, and their decision of the existence ol fraud invoked; or 
rather their decision must be invoked to determine whether the 
presampti<Hi is rebutted. If no rebutting evidence be offered, it is 
the duty of tiie court to adjudge the existence of fraud as matter 
of law." " Although matters of this kind generally arise in suits 
in equity, the object of which is to impeach deeds as well as other 
instruments of conveyance, by which property is passed from an 
inferior to s superior in some confidential relation, yet the prin- 
ciple stated by the above writer is one of universal recognition, and 
applies equally in proceedings at law and in equity. Transacticais 
of this kind, taking place between attorney and client, spiritual 
ad^'iser and advisee, trustee and cestui que trust, parent and child, 
guardian and ward, physician and patient, and parties in other 
like relations, are watched by the courts with the most scrutinizing 
jealousy, and are generally held to be presumptively void.** 

§ 1037. When Declared as a QuesUon of ZnterpretaUon of 
Writings. — In many eases the presvmption of fraud will arise on 
the face of a deed or other instrument of writing, which presump- 
tion will be rebuttable; and, if it be an action at law, it will in 
fueh a case be for the jury to say whether it has been rebutted." 
The interpretation of written statements of fact, in connection vfitb 

HBlgelow on Fraud (let ed.), 161 Ind. 376. 50 N. E. 389; Good t. 

469. Zook. 116 Iowa, 582, 88 N. W. 376; 

It ThlB doctrine will be found. In Bush v. Delano, 113 Mich. 321, 71 

various fanuB of expression, In the N. W. 628; Dobeny v. Lacy, 1G3 N. 

following and many other caeee: T. 213, 61 N. E. 2E5. 
Gasparf T. First German Church. 12 >■ Hardy v. Simpson, 18 Ired. L. 

Mo. App. 293; Garvin v. Williams, (N. C.) 132; Johnson v. McAHlster. 

a Mo. 465, 469, SO Mo. 206; Harvey 30 Mo. 327, 330; Weber v. Arm- 

V. SuIIens, 46 Mo. 147; YosU v. strong, 70 Mo. 217, 220; Hewson v. 

Laughran, 49 Mo. 594; Street v. Tootle, 72 Mo. 632, 636; American 

Gobs, 63 Mo. 226; Rankin v. Patton, Exchange Bank v. Inloes, 7 Md. 380, 

65 Mo. 378, 411; Bradshaw v. Yates, 393; Gates r. Labeaume, 19 Mo. 

67 Mo. 221, 228; Ford V. Hennessey, 17; Wtfie v. Wimer, 23 Mo. 237; 

70 Mo, 580; Tyrrell v. Palnton Prob. Oliver v. Eaton. 7 Mich. 108, 113. 

161 (Bng.); Adams v. McBeath 3 Compare Hardy v. Skinner, 9 Ired. 

Br. Col. 613; Collins v. Kllroy, 1 L. (N. C.) 191; Burke v. Taylor, 94 

Ont. L. R. 603; Harraway v. Har- Ala 630, 10 South. 129; Creamer v. 

raway, 136 Ala. 499, 34 South. 836; Ingalla, 89 Wis. 112, 61 N. W. 83; 

Richmond's Appeal, 59 Conn. 226, 22 Reese v. Shutte, 13S Iowa, 681, lOS 

Atl. 82; Michael v. Marshall, 201 111. N. W. G2&. 
TO, 66 N. E. 273; Slsyback v. Witt, 



D.qitizeabyG00<^lc 



nuuD. 1881 

the qnestion whether they are false or not, seeins to belong to the 
court." "Whether facts not disclosed or falsely stated, are material, 
is for the juiy to det«nnine ; *' unless it appear, either directly or 
by plain inference from the contract, that they are deemed ma- 
terial,*' or Tinless they are of an evident and glaring character,** 

§ 1938. Fraud in Fact not Presumed, bat Most be Proved: 
Statement of the Rule. — An initial doctrine is that fraud is never 
to be presumed, bat that, on the contrary, honesty and right acting 
are always presumed in the absence of evidence to the contrary; 
from whence it follows that fraud must be clearly proved by the 
party alleging it.** The law presumes in favor of innocence until 
the oppo^te is shown, — ^will never infer evil intentions and dis- 
honest purposes from language or cimdact which is susceptible of 
upholding intentions and purposes which are good and honest, — 
its maxim being: " Odiosa et inhoTiesta non sunt in lege prtrsumenda, 
at in facto quod' in se habet et bonum, et malum, magis de bono, 
quam de nuUo, prasumendum est."** 

S 1940. Fraud in Fact E^ways a Question for the Jury.— What ia 
called fraud in fact is, as the term implies, always a question of fact, 
and, in cases tried by a jury, must be established to the aatisfaction 
of the jury; and whether it is proved or not, is a question for the 
jury, subject, of course, to the power of the judge, on principles 
elsewhere discussed, to withdraw the question from them, on the 
ground that there is no evidence tending to show fraud.*' It may 
be said, as a general rule, that, in every ease where the law does, not, 
on grounds of public policy, impute fraud to a particular transao- 

u Swift V. Mass. Life Ins. Co., S3 Tt 283. 62 Atl. lOlE; Raymond v. 

N. T. 186. See further authorities, McKenna, 147 Mich. 36, 110 N. W. 

Bfgelow on Fraud, 470. 121. Mere ausplclouB are IneufB- 

wRawIltiB T. Desbrough, I Hood, ctent to eatabllata the exlBtence of 

A R. 328. fraud. State SaT. Bank v. Slmge 

11 Campbell v. New England Life (lova), lOS N. W. E30 (not reported 

Ins. Co., 98 Haas. 381, 1 Big. L. Ine. ln«tate reports). See also Redpath 

Cab. 229. v. Laveon, 48 Ho. App. 427. 

uBiif« T. Turner, < Taunt 338; >«Norton v. Kearney, 10 Wis. 443, 

ante, | 1284. 451. 

u Stewart v. English, t Ind. 176; *> Hanca v. Phillips, 1 Grant Caa. 

Breanx v. Bronasard, 116 La. 216, 40 (Pa.) 263. It may be established 

South. 639; Serrano v. Miller & by proof of collateral circumstances 

Teasdale Com. Co., 117 Mo. App. 186, as well as directly. Redwood v. 

93 S. W. 810; Colston T. Baan, 78 Rogers, 105 Va. 165, 63 8. B. 6. 



GoQi^lc 



1382 PBOVINCS OP COUBT AKD JDBY. 

tion, it becomes a question of fact for the jury, whether it was 
fraudulent or not. In every case vhere the question is one of 
motive or intent, it is manifestly so.** 

§ IMl. niustrations. — By a statute of Missouri," a landltffd is 
allowed an attackment against his tenant, if the latter intends to 
remove, or ia removing, or haa within thirty days removed his prop- 
erty from the leased premises, or shall in any manner dispose of 
such crop or attempt to dispose of the same, so as to endanger, hin- 
der or delay the landlord from the eollection of his rent, ete. It 
is held not to be the sense of this statute that the tenant shall not 
remove any portion of the crop, but only that he shall not remove 
or dispose of it so as to endanger or hinder the landlord's collection 
of the rent ; and this is a question for the jury.*' So, in Texaa it has 
been held that when a judgment is offered in evidence in an action 
to try title to land, it cannot be objected to its admissibility that it 
was obtained by fraud ; for the reason that the question of fraud 
in obtaining a judgment depends upcm extrinsic evidence and raises 
a question for the jury, and not for the court to dedde.** And it 
should be added that this question can only be tried in a direct pro- 
ceeding in equity, or in a proceeding of that nature, the object of 
which is to impeach the judgment for fraud. It cannot be tried 
collaterally, when the judgment is offered in evidence for some other 
purpose. "Whether an award is void by reason of fraud in the 
party, or corruption, gross partiality or prejudice on the part of the 
arbitrators, is not a question of law to be determined upon a de- 
murrer to a plea, but a question of fact to be submitted, if the par- 
ties desire it, to a jury, with an opportunity to the party whose 
award is impeached, to explain by testimony any circumstances on 
the face of the proceedings that might tend to excite suspicion of 
unfair practices,"** So, on a questi<m of the right to receive a 
bounty, voted by a town for volunteers enlisting to serve in the late 
war, it was held a question for the jury, under all the circumstances 

■« Buckley v. Artcher, 21 Barb. 410. The Question is not, however. 

(N. Y.) SSEi; Rogers v. Virginia- to be determiiied wUb reference to 

Carolina Cbem. Co., 149 Fed. 1, 78 anj property wblch the tenant may 

0. C A. 615; Colvln t. Peck, 62 have elsewhere. Ibid. 

Conn. IGE, 25 Atl. 355; Williams v. ■• Maverick v. Salinas, 15 Tex. 

McFaddea, 23 Fla. 143, 1 South. 61S, 67; Hart V. Hunter, 62 Tex. Civ. 

11 Am. St. Hep. 315; Carey t. Hart, App. 75, SI, 114 S. W. 882. 

63 Vt. 424, 21 Atl. E37. wDuren v. Getcbell, 56 Me. 241, 

"Eev. Stat Mo. 1909. 1 7896. 251. 

*■ Haseltlne v. Ausberman, ST Mo. 



7crib;G00<^IC 



ftiiub. 1383 

of the case, whether the claimant, in the true sense of the law, en- 
gaged to serve for the term of nine months, either as a private or 
an officer, in such a manner that he might be reckoned as one of the 
nine months' quota for the town ; and included in this was the quea- 
tion whether the enlixtment was a bona fide contract to serve in some 
capacity for a stipulated term of nine months, or was a colorable 
engagement for the purpose of obtaining the bounty.*^ So, where a 
will ia written on several sheets of paper, fastened together by 8 
string, the question whether all the sheets were attached at the Ume 
of the signing, or whether there has been a subsequent fraudulent 
additi(Hi to the instniment, has been held under circumstances a 
question for the jury.** So, in an action of ejectment, whether an 
entry of land was fraudulent or not, should be submitted to the jury 
as 8 question of fact. In other words, whether an entry was pro- 
cured from the United Slates by fraudulent means or not, in a 
contest between two claimants from the United States, is a question 
which must be submitted to the jury.*" So, where lands were sold 
by a deed which described it by courses and distances, and stated 
the contents to be thirty-two acres, and a subsequent purchaser, 
finding marks on the ground and adjoiners, as described in the deed, 
embracing about thirty acres more, claimed to hold these additional 
acres, it was held in ejectment to be a question for the jury whether 
the surveyor had not run the lines by fraud or mistake." So, 
where a husband can-ies on his wife's farm as her agent, it ia a que»- 
tion for a jury, in cases open to suspicion, whether the business is 
being carried on in good faith by the wife as her enterprise, at her 
expense and for her benefit, or is being transacted by her husband 
in her name as a cover to protect the product fnan his creditors.** 

•1 Ston« T. Danburr. 46 N. H. 139. St 2S1. Gomparo McCall t, DavlB, 

H Olnder v. Farnum, 10 Pa. fit. 98. 66 Fa. St 431. 

■■ Waller r. Von Pfaul, 14 Mo. S4. >« Hasofeldt t. IMll. 28 Minn. 469, 

(« BenUe) t. Rlcbabaugh, 62 Pa. 10 N. W. 781. 



ovGoo<^lc 



FBOTINCB OF COURT AND JUBX. 



Abticle n. — &I1SRBPBBSBHTAT10N Aim Dkcbit. 

Sectiok 

1945. a«nerall7 a Question far lbs Jnrr. 

1946. Statement of Fact or of Opinion. 

1947. Whether the FlalnUC acted upon th« False Repreeentatlons or 

upon hie own Knowledge, 

1948. Character and Design of the Representations. 

1949. Province of Jury in Respect of Parta ot an Extended Conversation. 

1960. Materiality ot False Statements. 

1961. Purchasing Goods with the Intent not to pay (or them. 
1952. In Applications for Insurance. 

1SG3. At Auction Bales. 
19G4. Br-Bldding at such Salea 

1956. Knowledge of a Want of Authority of an Agent to make certain 
Representations. 

1956. Sale of Chattels without Poeseesion. 

1957. Latent Defects In a Chattel Sold. 
196S. How Jury Instructed In aoch Caaea. 

. § 1946. Gfinerally a question for the J1117. — In a very nnroerona 
claas of cases which arise in the legal fomin, actions upon con^acte 
are defended upon the ground that the contract was procured by the 
fraudulent misrepresentations, concealments, or contrivances of the 
plaintiff or the party through whom he claims. The fraud involved 
in these cases is positive fraud — deceit — otherwise termed fraud in 
fact. The question is very largely a question of motive and intent; 
and the question of fraud or no fraud will, therefcov, in most eases, 
be a question of fact for the jury.* 

I Laldlow V. Organ, 2 Wheat (U. Rector, 44 Ma S89. SS2. Whether 

S.) ITS, 196; Prescott v. Wright, 4 a person wbo has suffered damagoj 

Gray (Mass.), 461; Crump v. United through neffliaence was Induced to 

States Mining Co., 7 Qratt (Va.) sign a releaie of Oamagei through 

862, 369; Graham v. HolUger, 46 Pa. traud or deceit, Is a question of fact 

St 56; Tates v. Alden, 41 Barb. (N. for the Jury (Ryan v. Gross (Ud.), 

r.) 172; Burr T. Todd, 41 Pa. St. 12 AU. Rep. 116), assuming, ot 

207; Matthews t. Rice, 31 N. T. 457; course, that there Is evidence tend- 

Griffith V. Eniy, 12 Ho. 617 ; Owens v. Ing to show fraud In obtaining anch 



LnOC^Ie 



5 1946. Statement of Fact or of Opinion. — Fraudulent repre- 
sentations, in order to avoid a eontracl, mnst be representations of 
facts susceptible of knowledge, as distinguished from matters of 
mere belief or opiniim.* Where the language was, "I want to tell 
yon how I stand. I could pay every dollar of indebtedness of mine, 
including the mortgages on my real estate, and not owe on that real 
estate more than $15,000 to $20,000,"— it was held that whether 
this was the statement of a fact, or the expression of an opinion, 
was a question for the jury* 

§ 1947. Whether the Plaintiff acted upon the False Bepresenta- 
tions or upon his own Knowledge. — In such an actitm, it has also 
been held to be a question for the jury whether the plaintiff, al- 
though he had some general knowledge of the character and respon- 
Bibility of the corporation, was governed by the representations of 
the defendant, who was its financial agent, and had been connected 
with its management and bad an intimate knowledge of its affairs.* 



Benjamin, 8» Wis. SSO, 62 N. W. 
179; Powers v. Fowler, 1S7 Mass. 
315, 32 N. B. 166. But representa- 
tlons. tbough only statementa of 
opinion, mar be actionable. It made 
to deceive and ttaey Induce action 
and accomplish their purpose to the 
damage of another. See Nash t. 
MlnneaoU TlUe Co.. 159 Mass. 437, 
34 N. E. 62G. And tbe Jury are to 
mj whether such statementB of 
opinion were Bucti as the one so 
damaged had a right to relj' on, 
or If he acted wfth reasonable pru- 
dence In doing so. Ingalla v. Miller, 
121 Ind. 188, 22 N. E. S95; Oee v. 
Mosa, 63 Iowa, 318, 27 N. W. 268. 

* Morse v. Shaw, eupra. 

«TateB V. Alden, 41 Barb. (N. Y.) 
172; Kobat v. Moore, iS Or. 191, S6 
Pac 606; Flandera v. Cobb, 88 Me. 
48S, S4 AU. 277; Taupel v. Mulball, 
(Iowa), 118 N. W. 272. It is not 
required, however, that the repre- 
sentatlonH be the sole cause of re- 
liance. Sioux Nat. Bank v. Norfolk 
Nat. Bank, E6 Fed. 139, 6 C. C. A. 
448; Saundera v. McCUntock, 46 Mo. 



release. It has been laid down that, 
whether there waa fraud and mis- 
representation in the concoction of 
« contract, or in the performance or 
offer to perform its terms, are ques- 
tions to be decided by the Jury, 
where there 1b any evidence on thoae 
points. So held In Pennsylvania, 
fn an action to enforce the tpectflo 
performance of a contract for the 
Bale of land. WUllamB v. Bentler, 
29 Pa. St 27S, 276; Farley v. Wleaa, 
76 Neb. 402. 107 N. W. G61; Palmer 
V. Goldberg, 128 Wis. 103, 107 N. W. 
478; McDonougb v. Williams, 77 
Ark. 261, 92 S. W. 783; Flret Nat 
Bank v. GoIIandet. 122 N. Y. 656, 2B 
N. B. 909; Cook v. QUI. 83 Md. 177, 
34 AU. 848; HeUand v. Blletad. 140 
Iowa, 411, 118 N. W. 42a., 

*SatFord v. Qrout, 120 Ma£s. 20; 
Lttcbfleld V. HutchlUBon, 117 Mass. 
196; Morse v. Shaw, 124 Mass. 59. 
For a corresponding nfle ae to vxir- 
natliet, see ante, 1 1198. L. J. Muel- 
ler Fur. Co. T. Cascade Foundry Co., 
14E F«d. 596; Fanner v. Lynch. 
(R. I.),. 67 AtL 449; Warner v. 



. Goo^^lc 



1386 fBOTlKcB Of COtKT AKD JuSir. 

§ 1948. Character and Design ot the Representatioiu. — ^It was 
also held to be a question for the jury, whether representadcms made 
by the defendant on the same day and <»il7 a short time beftwv the 
agreement was executed, were designed to influence and did influence 
the plaintiff, and aiao whether they were made in reference to the 
contract* 

S 1949. Prorince of Jury in Bespect of Parts of an Extended 

Conversation. — In mich an action, where much evidence was given 
as to the conversations which led up to the sale and purchase, it has 
been held to be the province of the jury to decide npon the c«i- 
nection and effect of the parU of an extended convetsatiuL* 

S 1950. Materiality of False Statements. — In iostnictii^ the 
jury in such an action, it has been held improper to leave them to 
conjecture what were "material false 8tatement&"' 

§ 1961. Porchasing Goods with the Intent not to pay for them. 

Where a person pm-chases goods with the intent not to pay for them, 
or, aa some courts have formulated the rule, with the intent never 
to pay for them, the vendor may rescind the contract of sale and re- 
claim the goods.' In such a case the fraudulent intent is of course 
a question of fact to be found by the jury, and the difficulty which 
will arise in most cases will be that of determining whether the evi- 
dence is Boflieieut to take the case to them. In such a case the 

App. 216; Strong v. Strong, 102 N. of insurance, see ante, | 12S4. Lel- 

Y. 69, e N. E. 799; Lebby v. Ahrena. cher v. Keener, 98 Ho. App. 391, 72 

26 8. C. 275, 2 N. B. 3S7. S. W, 145. 

« Yates T. Alden. 41 Barb. (N. Y.) > BIdauIt v. Wales, 19 Mo. 36, SO 

172. Tbere being no relation of Mo. 650; Fox v. Webster, 46 Mo. 

trust and conOdence between the 181; Tbomaa v. Freligh, 9 Mo. App. 

parties, a blind negligent reliance, 151; Davla v. Stewart, 8 Fad. 803, 

contrary to ordlnaiy diligence, will 3 HcCrair, (U. 3,) 174. For a case 

bar relief. McNealey v. Baldrldge, where the clrcumatanceB wen saf- 

106 Mo. App. 11, 78 8. W. 1031. And flclent to take tbe case to the Jury, 

courts will Bometlmea decide, as see King v. Phillips, 8 Boaw. (N. Y.) 

matter of law, this question. If tbe 603; Pelham v. Ghattah[>ochee Qro- 

negligence la plainly culpable. Mo- eery Co., 14G Ala. 216, 41 Soutb. 12; 

Qhee V. Bell, 170 Mo. 21, 70 B. W. Murray v. Stern, lOB Mich. B23, 63 

493, 69 L. R, A. 76L N. W. 613, 66 Am. St. Rep. 468, 29 

• Peck V, Bacon, 18 Conn. 377, L. R. A. 869. It one falsely per- 
387; ante i 1105. Bonate another, reaclEsion Is not 

* Anderson v. McPlke, 86 Mo. 293, necessary to retake the lOods. 
299. For a contrary rule in tbe law Loeffel v. Fohlman, 47 Ho. App. 674. 



Coo^^lc 



FBAUD. 1387 

eTidence is necessarily eircamstazitial, and the jory are to determine 
whetlier there was sncli an intent, from a view of the aurroondingB 
of the person at Hie time when he made the purchase. If he was a 
merchant aod in such a state of embarrassment that no reasoDable 
man, posssessdng bis knowledge of hia affairs, would regard payment 
as poesible, then a jury may infer that payment was not iotended,' 
§ 1962. Id Applicationa for Inatirance. — It has been held a gu«s- 
iion of fact for a jury, whether a fact not communicated by the ap- 
plicant for a policy of insurance was, under the circumstances, one 
which the assured ought to have communicated.^" Where, in an 
application on a policy of life insurance, in answer to the question, 
""Who is your usual medical attendantt" the applicant replied, 
"C. D.," — it was held that it was a question for the jury upon the 
evidence whether C. D. was the usual medical attendant of the ap- 
plicant.** So, where the assured misdeseribed her residence by 
stating tliat she lived at a certain place, when, in point of fact, she 
was a prisoner in the county jail at the place named, — it waa held 
a question for the jury whether the imprisonment was s material 
fact which ought to have been communicated.** 

S 1963. At AnctioQ Sales. — ^Fraud at auction sales, by which bid- 
ding is suppressed, seems to be a gvestion of fact for a jury." 
Where, at a judicial sale of personal property, the only bid offered 
was by the auctioneer, who cried the sale by the direction and in 
the presence of the officer entrusted with it, and the properly was 

• Hanbelmer v. Harrington, 20 Bols, 7 Colo. App. 214, 44 Pao. 756; 

Ho. App. 297; Whlttln v. Fltzwater, Penna. Mut L. Ids. Co. v. Mecb. 8. 

SS Hun, 601, 11 N. Y. S. 297; re- Bank ft Trust Co.. 7B Fed. 413, 19 

versed, but on another question. In C. C. A. 286; Mut. !>. Ins. Co. v. 

129 N. T. 626, 26 M. B. 298. Baker, 10 T«z. Clv. App. Gig, 31 B. 

10 Rawlins T. DeBborouch, 2 Mood. W. 1072; Pollard v. Fidelity Fire 

ft R. 328. Compare Swete v. Fair- Ins. Co., 1 8. D. GTO, 47 N. W, 1060. 

He, 6 Car. ft P. 1; Swift v. Mass. Life » Huckman v. Fernle, 3 Mees. ft 

Ina. Co., 63 N. T. 186, B Big. Ids. W. 605. 

Caa. 392; Smith v. Aetna Llt« Ins. itBuKenIn v. Rayler, 6 Taunt. 

Co., 49 N. Y. 211, 8 Big. Ins. Cas. 186, 2 Big. Ins. Caa. 208. See also 

708; Hntchlnaon v. National Asauf Bute v. Turner, S Taunt. 338. Com- 

ance Soc. 3 Big. Ina Caa. 444; Case- pare Campbell v. New England Ina 

nove V. BrlUeh Ina. Co., Id. 202; Co., 98 Maaa. 381, 1 Big. Ins. Caa. 229. 

Fowkea V. Manchester etc. Abb. Soc., >■ Walter v. Oemant, 13 Pa. St. 

8 Best ft Smith, 917. 2 Big. Ins. Cos. 51S; Crook v. Wllllama, 8 Ibid. 34S; 

631; Perrlns v. Marine etc. Soc, 2 Abbey v. Dewey, 25 Pa, SL 413; 

En. ft El. 317, 2 Big. Ins. Cas. 661; Hogg v. Wllklns. 1 Grant (Pa.), 67: 

ante, | 1284. State Ins. Co. v. Du Brotberllne v. Swires. 48 Pa. St 68. 

lie 



1388 PROVINCE OF COUBT AND JUBT. 

stnick down at a price much below its actual value, in consequence 
of false representations alleged to have been made by him, which de- 
terred others frwn bidding, — it was held that the fraudulent intent 
of the buyer was a question of fact for the jury, and that it was 
error for the court to direct them that the sale was fraudulent'* 

§ 1964. By-bidding at each Sales. — The vendor at such a sale, 
may, with a boTia fide intention of preventing a sacriiice of such 
property, and not with the purpose of enhancing the price above its 
real value, employ a by-bidder without avoiding the sale;'* and 
whether the employment of the by-bidder ia bona fide, or for the 
frandnlent purpose of enhancing the price by a pretended compe- 
tition, is a qveslion of fact for a jury," 

S 1966. Knowledge of the Want of Authority of an Agent to 
make certain BepresentatiosB. — ^Where the question at issue is 
whether a sale procured by the representations of an agent of the 
vendor was fraudulent, it h&s been said: "That an agent to sell is 
restricted in the delegation of his authority by his principal, from 
making any representations of the subject of the contract, whether 
true or false, has, it is true, a bearing upon the obligatory force of 
the contract j but it ia a question of fact, and not a question of law. 
It may be used in evidence as tending to prove that the representa- 
tions of the agent, though false and fraudulent, had not the effect 
of deceiving the purchaser. But this presupposes that the restraint 
upon the authority of the agent was known to the purchaser; and 
whether he knew it, and the effect of such knowledge in preventing 
him from being deluded, deceived nnd defrauded, are also questions 
of fact for the consideration of the jury. " " 

S 1956. Sale of Chattels without PossessioD.— In Pennsylvania 
a sale of personal chattels, unaccorapauied by possession, is fraudu- 
lent in law and void as to creditois of the vendor; and the question 
is one of law for the court, and not of fact for the jury." 

1* Brotherline v. Swires, 48 Pa. St » Crump r. Unltad States Iflnlng 

68. Co.. 7 Oratt (Va.) 862, 369, opinion 

II Smith V. Clarke, 12 Vea. 477, b? Baldwin, J. 

482. Elsewhere It has heen held to li Dewart v. Clement, 48 Pa. St 

entitle the highest bidder to retuse 413; post, f 2005; ante, f 1409, et 

to carry out his bid, whether it be oeq. The mle as stated In tbe test 

sbown such bid was or not unreas- has been modified and In Keyatone 

onable. Peck t. List, 23 W. Va. 338, Watch Case Co. v. Bank, 194 Pa. 

4S Am. Hep. 398. 535. 45 Atl. 328. It la said: "Wbero 

■« Reynolds v. Descbaums, 24 Tex. tbe purpose of the contracting par- 

174. ties, vas, as between tbemwlves. 



g 1957. Latent Defects in s Chattel sold. — ^Wbere the evidence 
tended to show a latent defect in the chattel sold, known to the 
vendors and unknown to the vendees, which would greatly impair 
the value of the chattel in the hands ot the vendees, it was held that 
the judge properly refused to charge the jury that, if these facta 
should be found by them, the defendants would be guilty of prac- 
ticing a fraud ; since whether lliey would or not would be a con- 
chti'on of fact, and not of law. Aftor reviewing a number of cases, 
some of which .are confessedly opposed to the court's conclusion," 
the Ohio court say: "We have expressed these views to show, first, 
that the court properly refused the charge as asked, the facts on 
which the charge was predicated not constituting fraud as matter 
of law, but only evidence tending to establish fraud ; and, secondly, 
to strengthen the conclusion before stated, that the charge given was 
calculated to mislead the jury, and draw their minds from the points 
really in contest, as shown by the statoments of the evidence." *' 

g 1958. How Jury Instmcted in such Cases. — The jury must, of 
course, he instructed as to the law of fraud in its relations to the 
facts presented by the evidence in each particolar case. "Where the 
law imputes fraud to certain acta, the eourt must, if the case goes 
to the jury, instruct the jury as to the acta which constitute fraud." 



to sustain this ruling upon principle. 
Upon sucb a state of facts the ex- 
istence of fraud would seem to be 
Bn unavoidable conclusion of law, 
and not a queetlott to be submitted 
to the loose discretion of a Jury. 
Tbe sound principle Is that, where 
the chattel hu a latent delect ot 
such a character that. If tbe vendor 
knows that tbe vendee had knowl- 
edge of It, he would not buy It, the 
selling of the chattel to him, with- 
out communicating to him tbe fact 
of the defect, la a fraud. No honest 
man can eay, under such circum- 
stances, that the vendee Is not 
cheated. As there can be no room 
for a Just difference of opinion, the 
law should, in such a case, pro- 
nounce the conclusion. 
11 See Flack v. Neill, 22 Tex. 253. 



an honest one, and there was no 
concealment as to creditors ot Its 
true nature- the contract Is not con- 
stroctivelr fraudulent." 

IB Hoe V. Sanborn, 21 N. Y. 652; 
Early v. Qarrett, 9 Bam. A Cres. 
928; Wilde v. Gibson, 1 H. L. Cas. 
G06; Tbom v. Blgland, 3 Bxch, 726; 
Bvans v. Edmunds, 13 G. B. 777; 
Otis V. Raymond, 3 Conn. 413; Fol- 
hlll V. Walter, 8 Bam. A Adolph. 
114; Collins v. Evans, 6 Ad. ft El. 
(IT. B.) 804, 820; Ormod v. Ruth, 14 
Mees. ft W. 651: Sallton v. Mat- 
thews. 10 01. ft Fin. 934, 994; Bly- 
denburg v. Welsh, Baldw. (U. 8.) 
331, 337; Cornelius T. Molloy, 7 Pa. 
St. 293, 299; Downing v. Dearborn, 
79 Me. 457. 1 Atl. 407. 

10 Hadley v. Clinton County Im- 
porting Co., 13 Ohio St. 502, 513, 
opinion by Gholson, J. It Is dlfllcult 



7crib;G00<^IC 



PROVINCE 07 OOITBT AND JUBT. 



'AsTicLBin. — Fraudulent Convbtances. 

2006. When a Ctmvej&am Fraodulent In I^aw. 

2007. When Question of Fraud submitted to Jurr. 

2008. Caeee where Dila Rule Applied. 

2000. Doctrine that Agreement that Qrantor remain In Poesetielon ot 
Chattel renders Sale Fraudulent per te. 

2010. Doctrine that Non-delivery la only Prima Foe* Ortdence ot Fraud. 

2011. iDHtances under thla Rule. 

2012. How Jury Instructed In such a case. 

2013. Voluntary Conveyances. 

2011. Whether Poaseesion has been Delivered: Wlien ft Qnaation of Law 

and when ot Fact 
2D1S. Badges of Fraud. 

S 2005. When a GoiiTeTaitce Tnmdulent in Law. — ^It being the 
office of the court to interpret written instnunents,** in a limited 
class of caees, where a conclusion of fraud arises aa the face of ttie 
instrument, of snch a. nature as to be incapable of explanation upon 
any hypothesis consistent with an hcmest or lawful purpose, the court 
will declare the deed fraudulent and void aa a conclusion of law." 
This happens where the instrument contravenes the express terms 
of the statute ; ** or where' the conveyance is void on its face, as 
where the deed fails to vest in the grantee any certain, direct or ab- 
solute interest in the property; " or where there is no such descrip- 
tion of the property, by schedules or otherwise, as that it can be 
identified ; *" or where it contains on its face a reservation of an 
interest, advantage or benefit to tixe grantor, inconsistent with the 
ostensible object of the ocaiveyance,"- — as where it is made in trust 
for the maker " or his family, and upon no valid consideration ; ** 

"Ante, i 1065. »Unn v. Wright, 18 Tex. S17; 

*> American Exchange Bank v. In- Swlnney V. Merchants Nat Bank, 

toes. 7 Md. 330, 393; Oliver t. Eaton, 95 Mo. App. 13G, 68 S. W. 960. 

7 Mlcb. lOS. 113. "Baldwin t. Peet, supra; Hall v. 

1* Baldwin v. Peet, 22 Tex. 708, Feeney, 22 S. D. 641, 118 N. W. 1038; 

719. Compare Linn v. Wright, 18 Smith v. Hall, 103 Ala. 236, 16 South. 

Tez. 317; Qazzam v. Poyntz, 1 Ala. 626. Or if contemporaneous oral 

374; Gates v. Labeaume, 19 Mo. 17; agreement for such. Johnson v. 

Wise T. Wlmer, 23 Mo. 237; Zelgler Sage. 4 Idaho, 768, 44 Pac. 641. 

V. Maddox, 26 Mo. 576; Johnson v. »ZeIgler v. Maddoz, 26 Mo. 576; 

McAllister, 30 Mo. 327; Robinson v. Ghormley v. Smith, 139 Pa. 684, 21 

Robards, 16 Mo. 469. AU. 136. 23 Am. St. Rep. 816, 11 

1° Gazzam v. Poyntz, supra; Bui- L. R. A. 676; Bostwlck v. Blake, 146 

ger V. Rosa, 118 N. T. 469, 24 N. E. Ill, 86. 34 N. E. 38; Roberts v. 

163. Barnes, 127 Mo. 405, 80 S. W. 113, 



LiOoqIc 



numi. 



1391 



or where tlie instrument (Hmveys s stock of goods, nndertaking to 
cover future accretions and allowing the grantor to remain in pos- 
session with power to sell ; " or where its necessary effect is to hinder, 
delay or defraud creditors, as where '* (in the view of some courts) 
an assignment ostensibly for the benefit of creditors, but with power 
to the assignee to sell on credit ; ** or, in general, where the deed is 
wanting in some of the qualities whidi, when wanting in any deed, 
render it inoperative and invalid as a legal conveyance of property."* 

§ 2007. When Question of Fraud submitted to Jniy.— Outside 
of the limited class of cases which fall within the preceding section, 
there is a large class of cases where the deed, though valid on its face, 
is assailed upon grounds supported by extrinsic evidence in which 
cases, on grounds already stated," the question of its validity goes 
to the jury." This happens where extrinsic evidence is adduced to 
show that a deed was made in pursuance of a fraudvlent intent," — 
the principle being that, although the conveyance on its face may be 
lawful, as where a good consideration is stated, and actual possession 



48 Am. St. Rep. 640. So also where 
mortgagor retains poBsessioii upon 
an nnderatandlng, tbat he may aell, 
for tlie purpose of paylnR other debts 
than tbe mortgage debt. Bank of 
Liberal t. Anderson, 100 Mo. App. 
EST, 76 S. W. ISS. 

MStordlvant v. Davis, 9 Ired. I* 
(N. C.) 366; Goodrich v. Downs, 6 
Hill (N. Y.), 438 (denying Murray 
V, RlKB. IB Johns. (N. Y.), 671). 
See Foster v. Woodfln, 11 Ired. L. 
(N. C.) 339, 344; Gregory v. Per- 
kins, 4 Dev. Ii. (N. C.) GO. 

wBdgell V. Hart, 9 N. T. 213 
(Gardiner, Mason and Johnson, J J., 
dlasentlng) ; Weber t. Armstrong, 
70 Mo. 217; Stanley v. Bunce, 27 Mo. 
2G9; BiningBley v. Bunce, £8 Mo. 
647; SUte V. Taaker, 31 Mo. 416; 
Voorhls V. Langsdorf, 31 Mo. 451; 
State V. D'Oench, 31 Mo. 463; Rice 
7. Sally. 176 Mo. 107, 76 8. W. 898; 
Gee V. Van Natta Lynds Drug Co., 
105 Mo. App. 27, 78 S. W. S88. 

II Gere v. Murray, 6 Minn. SOG, 
316 (voluntary aasignment). See 
also Greenleaf v. Bdes, 2 Minn. 264- 



*i Hutchinson v. Lord, 1 Wis. 287; 
Hungerford v. Greengard, 96 Mo. 
App. 663, 69 8. W. 602. 

MBaJdwln v. Peet, 22 Tex. 708, 
719, per Roberts. J. 

"Ante, !I 1933, 1096, 1097, 1188, 
1139. Citizens Bank v. Bolen, 121 
Ind. 801, 23 N. EL 146; Bedford v. 
Penney, 66 Mich. 6S7, 32 N. W. 888; 
State etc. v. Mason, 112 Mo. 874, 20 
S. W. 629, 84 Am. St. Rep. 890; 
Goldsmith v. Brlcbaon, 48 Neb. 48, 
66 N. W. 1029. 

wJobnsim T, McAllister, 80 Mo. 
827, 830; reaffirmed In Weber v. 
Armstrong, 70 Ho. 217, 220; Hew- 
son T. Tootle, 72 Mo. 632, 688; Oliver 
V. Eaton, 7 Mich. 108, 113. 

s* See, for instance. Gates v. La- 
beaume, 19 Mo. 17, where this was 
tacitly assumed throughout the 
opinion; also Wise v. Wtmer, 23 Mo. 
287; Clark v. Lewis, 215 Mo. 178. 
114 S. W. 601. Whether there was 
fraud In the declaring of preferen- 
tial Intent Is a question for the Jury. 
Hewitt T. Commercial Banking Co., 
40 Neb. 620, 59 N. W. 683. 



7crib;G00<^IC 



1392 PEOVINCB OP COCJBT AND JOBT. 

is taken by the vendee, in tbe case of a chattel, yet if the sale were 
made to defraud the creditors of the vendor, and the vendee par- 
ticipated in sach fraudulent purpose, then the sale is void as to 
creditors;" and numerous cases emphasize the role that the ex- 
istence of this fraudulent intent is, in all cases, a question of fact, 
for the jury." Excluding, then, the limited class of cases where 
the law, on grounds of public polity, annexes to a certain kind of 
conveyance, or to certain acts, a conclosive presumption of fraud, 
the rule is that fraud is a qucstitm of fact, not to be presumed, but 
to be atrintmtiYely proved, and, in cases at law, to be submitted to 
the decision of the jury.'' This rule exists und'er statutes in Cali- 
fomia,*° llichigan," Indiana,** and, it is presumed, in other States. 

' § 2008. Cases where this Rule Applied. — This is the role in re- 
spect of voluntary conveyances. Thus, although a conveyance by a 
husband to his wife is made before the debts in respect of which 
the conveyance is challenged were contracted, yet if not made bona 
fide and for the benefit of the wife, but with a fraudulent intent, 
it will be void under the New Jersey insolvent law, and also by the 
common law; and whether it was so made is a question of fact fw a 
jury," So, the question whether a mortgage, given for a greater 
Bum than was due, was given in good faith, either for a present in- 
debtedness or to secure future advances, is, in an action in which 
such mortgage is assailed as a fraud upon the creditors of the mort- 
gager, a question for the jury, under proper instructions from the 
court.** So, the law permits a debtor in failing eircumstaocea to 

« Forsyth v. Matthews, 14 Pa. St Civ. Code, Cal. 1909, { 1674; Uoore 

100; McClo7 A Trotter v. Robertson t. Copp, 119 CaL 429. 

(Ark.), 102 S. W. 386. « Bagg v. Jerome, 7 Mich. 146, 

uMlller T. Stewart, 24 Cat. 602; 167; Oliver t. Eaton, 7 Hlcb. 108. 

Bwlng V. Gray, 12 Ind. 64, 67; 113. Compare Jackson v. Dean, 1 

Ehrlaman v. RoberU, 68 Fa. SL 308; Doagl. (Mich.) 619; Smith v. Acker, 

Oliver V. Reading Iron Co., 170 Pa. 23 Wend. (N. T.) 6B3; Warner v. 

396, 32 Ml. 1088; Jackson v. CItt- Llttlefleld, 89 Mich. SZ9. 

nns' Bank k Trust Co., 53 Fla. 266, " Stewart v. English, 6 Ind. 176; 

44 South. 616. Hnbbfl v. Bancroft, 4 Ind. S88; 

MHuntzlnger v. Harper, 44 Pa. Maple v. Bumslde, 22 Ind. 139; 

St 201; De Leon v. White, 9 Tex. Wynne v. QUdewell, 17 Ind. 446, 

698; Billings v. Billlnga, 2 Cal. 107; 449; MUbnm v. Phillips, 136 ind. 

Bagg V. Jerome, T Mich. 146; Mat- 680. 

thews V. Rice, 31 N. Y, 467; Foster «tRetord v. Cramer, 30 N. J. L. 

V. Berker. 8 Minn. 351; Carroll v. 2S0; Crosby v. Wells (N. J. L.), 

Salisbury. 28 R. I. 16. 66 Atl. 274. S? Atl. 295. 

'0 BtUlngs V. Billings, 2 Csl. 107, «• Tully v. Harloe, S6 Cal. 803, 

113; Pico V. Stevens, 18 Cal. 376; 809. 

i:q,t,7c-rib;G00<^IC 



make an assigntnent of bis property for the benefit of his creditors; 
and if fairly and bona fide made, it passes the title in such property 
to his assignee for their benefit. The question of fairness and bona 
jides of the transaction ia a question of fact for a jury, and in gen- 
eral the qaestion is properly left to the jury^ under all the circum- 
Btaneea disclosed by the evidence." So, it was held in Texas that, in 
HD action impeaching a conveyance as fraudulent against creditors, 
the specific, malicious, covinous, guileful intention to hinder, delay, 
or defraud creditors, is a question of fact, to be ascertained upon 
evidence, as other facts which are submitted to a jury.** So, in 
Texas, whilst, as already saen,*^ it is conceded that a deed may in 
some cases be declared fraudulent and void on its face, yet it is also 
held that the court cannot declare a deed of assignment void, as 
a matter of law, without the aid of a jury, merely because it author- 
izes the trustee to sell the property, in his discretion, for cash or 
upon a credit, at public or private sale, names the attorneys to be 
employed in ezecnting the trust, and provides t^at the trustee shall 
not be answerable for the negligence or misdoings of other persons. 
These, the court reason, are facts which may tend to establish a 
fraudulent intent. They are badges of fraud, rather than fraud 
per se." In a case of this kind it is said that, under the system 
which obtains in Texas, the only means of upholding the principles 
of equity in respect of these alignments ia by setting aside verdicts 
when they arc found contrary to them.** So also, where the pro- 
visions of such an instrument are, in their nature or under the cir- 
cumstances of the particular case, equivocal, that is, may have been 

« T^laon V. Pearson, 20 111. 81, 87; « Ante. { 2005. 
Baak ot Commerce v. Eureka, etc *' Ibid. To tbls same doctrine Is 
Co., lOJ Ala. 89, 18 South. 600. Carlton v. Baldwin, 2S Tei. 724, 731. 
Tbat a grantee falls to take tbe See also Barney v. Orlfflii, 2 N. Y. 
stand In his own bebalt, when 3S6; Abercromble v. Bradford, 16 
cbarged with a knowledge of tbe Ala. BEO; Kellogg v. Muller, 68 Tex. 
fraudulent character and Intent of 182; Cunningham v. Freeborn, 11 
the conveyance, bos been bald to Wend. (N. T.) 240; Aahurst v. Mar- 
be a cIrcuniBtance the Jury might tin, 9 Fort. (Ala.) EGO, 676; Howell 
take into consideration. Mason v. v. Carden, S9 Ala, 100. 
Perkins, 180 Mo. 702, 79 S. W. 633. » Carlton v. Baldwin, 22 Tex. 724, 

M Baldwin v. Peet, 22 Tex, 708; 730. For a case where the evidence 

citing Linn v. Wright. IS Tex. 317; was held sufficient to establlBh fraud 

following the New York doctrine aa In obtaining a release In consldera- 

announced In Seward t, Jackson, 8 tlon of an assignment tor the benefit 

Cow. (N. Y.) 406, and Goodrich v. of creditors, Bee Steward V. Strlpple- 

Downs, 6 Hill (N. Y.), 438. man, 16 Tei. 173. 
Trials — SS. 



7crib;G00l^lC 



1394 



PBOVIKCK OP OOXntT AND JUBT. 



introduced for good or bad ends, then the law cannot justly infer a 
dishonest intent, in order to avoid the instrument, but ooght rather 
to presume good faith ; and hence, in auch cases, the actual intent 
is a snbject of inquiry by a jury, and not tfx the decisi<Hi of the 
court" 

S 2009. Doctrine that Agreement that Orantor remain in Pos- 
Beasion of Chattel Benders Sale Frandnlent per Be. — Another very 
numerous class of cases may be cited, to the effect that the fact of 
pennitting the vendor of the goods to remain in possession renders 
the sale fraudvlent in law, whether such permission is inserted in 
the deed as a condition of the contract, or not.*^ In some joris- 
dictions the same rule exists under statutes." 



w Young T. Booe, 11 Ired. L. (N. 
G.) S4T, 350; Cannon v. Peebles, 4 
Ir«d. L. (N. C.) 204. 

Bi Edwards v. Harben, 2 T. R. B87 
(leading case); Hamilton T. Ruh- 
Bell, 1 Cranch (U, S.), 309; WordeU 
V. Smith, 1 Camp. 332; Paget v. 
Percb&rd, 1 Eap. 20S; Woraely t. De 
Hottos, 1 Burr. 467, 475; Ti&t v. 
Barton, 4 Denlo (N. Y.), 171. 174; 
Hantord v. Artcher, 4 Hill (N. Y.), 
276; F^ink t. Staata, 24 III. 633. 646 
(mortgagor remaining In posseBBlOD 
contrary to the terms of the deed). 
Ciller Justice Kent, In a learned 
opinion, In which he reviewed many 
authorities, reached the result that 
eucb a circumstance avoids the 
deed, unless in rectal caiet ani for 
tpecial reason*. Sturtevant r. Bal- 
lard, S Johns. (N. Y.) 336. Among 
the cases where such deeds have 
been upheld for special reasons, as 
Chief Justice Kent understood them, 
be cited the following: Stone v. 
Grubbam, 2 Bulst. 225; Ryall v. 
Rowles, 1 Atk. 165, 1 Tea. 359; 
Bucknal v. Roiston, Free la Chan. 
2S5; Cole v. Davles, 1 Ld. Raym. 
724; Kidd r. RawUnson, 2 Bos. A 
P. 68; Maggott v. Mills, 1 Ld. Raym. 
286; ■Waters v. McClellan. 4 Da!l. 
(U. S.) EOS; HasellntoD v. Gill, 3 
T. R. 620, note; Cadogan v. Kenuett, 
Cowp. 432. It was beld. In the 



same state, that If a debtor ex* 
ecnte a bill of sale of personal prop- 
erty, and there Is neither a change 
of possession nor any evidence of a 
consideration paid, the lato aSjttiget 
the sale fraudulent and void against 
the creditors; and, In an action by 
the vendee against the sheriff for 
seizing the property In execution, 
there Is no question to be left to 
the jury. Tlftt v. Barton, 4 Denlo 
(N. Y.), 171, 174; Haaford v. Art- 
cher. 4 Hill (N. Y.), 276. Compare 
Baaklns v. Shannon, 8 N. Y. 310. 
Ditman v. Raule, 124 Pa. 226, 16 Atl. 
S19; Ooddard v. Well, 166 Pa. 419, 
30 AU. 1000. The New York rule 
now 1b that the absence of chuige 
of possession le only presumptive 
evidence of fraud. Manken v. 
Baker, 166 N. T. 628, 60 N. E. 1116. 
II R. S. Mo. 1909. { 2887; St. ex 
rel. V. Stone, 111 Mo. App. 364; 
Zelgler v. Maddoz, 26 Mo. 576; 
Brooks T. Wlmer, 20 Mo. 503; Rob- 
inson T. Robards, 16 Ho. 469; Claf- 
lln V. Rosenberg, 42 Mo. 439, 449; 
Kuykendall v. McDonald, 15 Mo. 
416; St V. Smith, 31 Mo. 566; St 
V. Rosenfeld, 36 Mo. 472; Lesem v. 
Herriford, 44 Mo. 323; Bishop V. 
O'Connell, 66 Mo. 158; Burgert v. 
Borchert, 69 Mo. 80; Wright v. Mc- 
Cormlck, 67 Mo. 426; Stem v. Hen- 
ley, 68 Mo. 262; Mills T. Thompson, 



§ 2010. Doctrine that Non-Delivery Is only Prima Fade Evi- 
dence of Ftand. — A mass of authority may be accumulated in favor 
of the proposition that, in the case of absolute sales, non-delivery of 
the goods is only prima facie evidence of fraud, changing the bur- 
den of proof, and requiring explanation," or creating a presumption 
of fraud, which, udUbs explained by circumstatices, becomes con- 
* leaving it for the jury to say whether the circumstances 

Gregory v. Ferkins, i Dev. H. {N. 
C.) GO; Young v. Booe, 11 Ired. L. 
(K. C.) S4T. Nature of tbls pre- 
Bumptton under the a(a(u(e of "Sevi 
York: Randall v. Parher, 3 Sandt. 
(N. Y.) 69; Allen t. Cowan. 28 Barb. 
(N. Y.) 99; Colllna v. Brush, 9 . 
Wand. {N. Y.) 198; Doane v. Eddy, 
16 Id. 623; Randall t. Cook, 17 Id. 
66. With which compare Smtth v. 
Acker, 23 Wend. (N. Y.) 653; Cole 
V. White. 26 Wend. (N. Y.) Ell; 
Hanford t. Artcher, 4 Hill (N. Y.), 
273. The Mickigan statute, as orig- 
inally .adopted, was a literal trans- 
cript of the statute of New York. 
The latter statute received, la a 
leading case In the Court of Errors 
of that State, the following exposi- 
tion, given by Lleut.-Gov. Bradlsh, 
then president of that tribunal, after 
an elaborate opinion, and this was 
quoted and concurred In In an earl7 
cose In Michigan, and seems to have 
been the ruling doctrine In that 
state to the present time: "1. It has 
abolished the distinction sometimes 
attempted to be drawn between ab- 
solute sales and conditional aaalgn- 
ments, and thus avoided the ques- 
tion whether continued possesalon 
in the vendor or assignor be con- 
sistent or incon si stent with the 
deed. 2. It declares what shall re- 
but the evidence of fraud raised by 
the statute from a want of change 
of possession, vli.: good faith and 
absence of Intent to defraud. 3. It 
throws the burden of proof of such 
good faith and absence of Intent to 
defraud, upon the party claiming 



72 Uo. 367; Stewart v. Nelson, 79 
Mo. 622; Crane T. TImberlake, SI 
Mo. 431; State t. Donnelly. 9 Mo. 
App, 619; Winn v. Madden, 18 Mo. 
App. 281, 286; Worley v. Watson, 22 
Mo. App. G48, 663; Knoop v. Nelson 
Distilling Co., 26 Mo. App. 303 ; King 
V. Bailey, 6 Mo. G75; Rocheblave v. 
Potter, 1 Mo. 661; Slbly t. Hood, 3 
Mo. 290; Foster v. Wallace, 2 Mo. 
231. The later of these decisions 
overrule HItbum v. Waugb, 11 Mo. 
389, where It was held that such a 
circumstance is only prima facie 
evidence of fraud. Elarller and con- 
fusing decisions in the same Juris- 
diction are Shepherd v. Trigg, 7 Mo. 
151; King v. Bailey, 8 Mo. 332, and 
Ross T. CniUlnger, 7 Mo. 246. 

» Kldd V. Rawllnson, 2 Bos. ft P. 
59; Latimer v. Batson, 4 Barn. & 
Cres. 862. There Is no such pre- 
sumption. In the case of a sale of 
land without delivery of possession. 
Steward v. Tliomaa, 35 Mo. 202, 
208. There are numerous cases that 
hold that the grantor's retention la 
a question of tact, If there Is any 
evidence of good faith. Mercantile 
Trust Co. v. Wood, 80 Fed. 348, 8 
C. C. A. 658; South Branch Lumber 
Co. T. Stearns, 2 Ind. App. T, 23 N. 
E. 17; Prentiss Tool ft Supply Co, 
V. Sohlrmer, 136 N. Y. 305, 33 N. B. 
849. 32 Am. SL Rep. 737. 

tt Bryant v. Kelton. 1 Tez. 415, 
429; Gibson v. Hill, 21 Tez. 226; 
Thompson v. Blanchard, 4 N. Y. 303, 
306; Foster v. Woodfln. 11 Ired. L. 
(N. C.) 339. See also Askew v. 
Reynolds, 1 De*. ft Bat. (N. C.) 367; 



Coo»^lc 



1396 PBOviNCB or coubt and jubt. 

were consistent with good faith in the transaction.*' The great 
authority of Lord Elden, when he held the (^ce of Lord Chancellor, 
may be invoked in support of this proposition. In a greatly cited 
caae, it was mled by him, that a purchase by a married uroman frwn 
her husband, through the medium of trusteea, for her separate nse 
and appointment, may be sustained against creditors, if bona fide, 
though the husband is indebted at the time, and even though the 
object is to preserve from his creditors for the family the subject 
of the purchase, — in the particular instance, ancient family pictures, 
fumitore, and other articles of a peculiar nature and value. He 
also ruled that the circumstances of the comparative value of the 
consideration, the continued possession (which necessarily existed in 
the case of husband and wife dwelling together), the degree of 
notoriety, the want of an inventory, the satisfaction of some debts 
out of the property, though circumstances of evidence, were not 
conclusive as to the nature of the transaction.'* In a not« to this 
case. Dr. Perkins, the American editor, says that, upon the question 
whether omtinued possession in the vendor or mortgager after a sale 
or mortgage of chattels, is to be deemed fraudulent per se, or is to 
be taken only aa prima fade evidence of fraud, subject to be ex- 
plained by circumstances showing fairness in the transaction, there 
appears to be a great conflict of opinion in the decisions of different 
States, and he cites many authorities as illustrative of this c<mflict, 
but does not undertake to specify what they hold." 

under tbe sale or aaslgnment. It 145; Eldd v. RawlInBon, S Boa. ft 

declares the question of fraudulent P. 59; Craig v. Ward, 9 Johns. (N. 

Intent to be a question of tact, and Y.) 197, 201; FarrlQEton v. CaeweU, 

not ot law." Hanford v. Artcher, 15 Johns. (N. Y.) 430; Dickenson 

4 Hill (N. Y.), 271. Recognlied v. Cook, 17 Jofana. (N. Y.) 832; 

as a correct construction of tta« Parker v. Barker, 2 Mete. (Mass.) 

same BUtute in Michigan In Jack- 423, 432; Blssell v. Hopkins, 3 Cow. 

Boa T. Dean, 1 Doug. (Mich.) 619, (N. Y.) 1G6, IBS; Brlggs t. Park- 

636. See Mich. Comp. L. 1897, man, 2 Met (Mass.) 268; Cadogan 

} 9520. It was ruled In Smith v. v. Kennett, Cowp. 43E; Brooks t. 

Acker, 23 Wend. (N. Y.) 663, that Powers, 15 Mass. 244; Benton v. 

fraud under the statute was a ques- Thomhlll, 7 Taunt. 149; Run;on v. 

tion of fact for the jur; and not an QroBhou, 12 N. J. Eq. S6; Badlam v. 

Inference of law for the court, and Tucker, 1 Pick. (Mass.) 3S9; Miller 

this ruling has been steadily ad- v. Pancoast, 29 N. J. L. 260; Brown 

hered to in that state. Vance v. v. Riley, 22 111. 45, 62; Neece v. 

PhUllpa, S Hill (N. Y.), 433; Peck Haley. 23 111. 416. 

V. Grouse, 46 Barb. {N. Y.) 151, 167. •« Arundel t. Phlpps, 10 Ves. 146. 

»» Beals V. Quernsey, 8 Johns. < N. *» Notes to Twyne's Case, 1 Sm. L. 

Y.) 446; Arundell T. Phlpps, 10 Ves. C. 1, et seq.; note 1 to Wli«elar T. 



Coo»^lc 



ruuD, 1397 

% 2011. InstancM under this Bole. — This role has been applied 
in the case of a bill of sale, absolute on its face, shown to have been 
intended as a mortgage merely ; ** where goods were purchased at 
an execution sale and redelivered to the debtor the circimistaiices 
being notorious;'* where the mortgager of chattels has remained 
in possession ; *° where an assignment has been made, ostensibly for 
creditors, and the assignor has thereafter continued in possession ; " 
and where the mortgager of goods in course of trade is left in 
posssession, with power to sell in the nsual course of business for 
cash or on credit, and apply the proceeds of the sale to the purchase 
of other goods to keep up the stock, to the support of himself, and to 
the payment of debts other than that secured by the mortgage.** 
Nor, under this view of the law, does the fact that some of the 
goods embraced in the chattel mortgage are perishable avoid it as 
matter of law, Uiougb this is a circumstance to be considered by the 
jury in determining whether it is fraudulent or not." Nor, under 



Train, S Pick. (Mass.) 256, 257, and 
cases tbere collected; Homes T. 
Crane. 2 Pick. (Mass.) 607, note 1; 
Ash V. Savage, 5 N. H. 54S; Lunt v. 
Whltaker. 10 Me. 310; Ulmer v. 
HlIlB, 8 Me. 326; Robbing v. Parker, 

8 Met. (Mass.) 117; Summervllle v. 
Horton, 4 Yerg. (Tenn.) 641; Bank 
of Alabama v. M'Dade, 4 Port 
(Ala.) 262; (JouW T. Ward, 4 Pick. 
(Mass.) 104; Adama v. Wheeler, 10 
Pick. (Mass.) 199; 2 Kent, Com. 
(eth ed.) G18, 632, and notes and 
cases tbere cited. 

w Hunter v. Corbett, 7 Up. Can. 
Q. B. 76. Compare Horn v. Baker, 

9 East, 216; Barrow v. Paiton, 5 
Johns. (N. Y.) 268, 2S1. See alao 
Cadogan v. Kennett, Cowp. 432; Mo- 
Cormlck HarveBtlng Macb. Co. v. 
CltlsenB Bank, 16 N. D. 132, 106 N. 
W. 122. 

u Leonard v. Baker, 1 Maule A S. 
2S1; Kidd r. Rawllnaon, 2 Bos. ft P. 
69; Watklns v. Birch, 4 Taunt. 823; 
Jeieph T. Ingram, 8 Taunt. 838; Lat- 
imer V. Batson. 4 Bam. A Cres. 662. 
Where a deed of trust for the benefit 
of creditors conveyed a cotton (aty 



tory, machinery, materials, etc, 
wttb the provision that the maker 
of the deed should remain In poa- 
eeealon for eleven months, and tbat, 
during this time, his famllr should 
be supported out of the proceeds of 
the factory, — It was held that these 
provisions did not make the deed 
fraudulent in law, but, as they 
might have been lor the benefit of 
tbe creditors as well as of the 
debtor, the question of fraudulent 
intent was to be submitted to a 
Jury under all the evidence. Young 
V. Booe, 11 Ired. L. (N. C.) 847. 

•oGoogina v. Qllmore, 47 Me. 9; 
Pierce v. Stevens, 80 Me. 184; Mel- 
ody T. Chandler, 12 Me. 282; Olea- 
Bon V. Drew, 9 Me. 79; Holbrook V. 
Baker, 6 Me. 809; Steward v. Lomtte, 
1 Brod. ft B. 606; Torbert V. Hay- 
den, 11 Iowa, 435, 440. 

u Wilson V. Forsyth, 24 Barb. (N. 
Y.) 106. 

"Oliver T. Eaton, 7 Mich. 108; 
Brlggs T. Parkman, 2 Mete (Mass.) 
268. 

M Qoogina T. Oilmore, 47 He. 9, 16. 



7crib;G00l^lC 



1398 PBOVI^fCE of coubt and jury. 

this view, does the graDtiDg of a power to sell on credit, in a deed 
of assignment, ostensibly for creditors, avoid the deed as matter 
of law, although it is evidence to be considered by the jury on the 
question of fraud.'* Nor is a deed of personal property fraudulent 
in law, because it is conditioned to take effect at some future time, 
the grantor in the meantime retaining possession.*' 

§ 2012. How Jury Instructed in Buch a Case. — It has been 
held proper, under circumstances, to instruct the jury that if they be 
lieve from the evidence that the goods assigned were never delivered 
to the assignee, they must find for the defendant, he being the party 
assailing the assignment." In a case in Pennsylvania, where the 
judgment was afBrmed, the jury were thus directed : " To constitute 
a valid sale of personal property, the possession must pass at the 
'time of the sale. If there is no change of possession, any creditor 
may levy upon and sell it. Thus, if I sell any one of you a horse, 
and you p^' me the price agreed upon, if the hoise is left in my 
possession, any one of my creditors may levy upon and sell him, and 
the purchaser at the sale would hold the horse, because, no possession 
having been delivered, the sale is deemed fraudulent in law."" 
According to a view expressed in the New York Court of Appeals, 
where a sale of chattels is challenged for fraud on the ground that 
the seller was to remain in possession and there was some evidence, 
in the form of a good consideration, tending to show good faith, it 
was proper to refuse to instruct the jury that the transaction was 
fraudulent and void as against the plaintiff because not accompanied 
with a delivery and an actual and continued change of possession. 
The learned judge said: "In reference to the question of fraud, 
arising upon that ground, it would have been proper to have charged, 
that the law presumed the transfer of the property, unaccompanied 
by delivery and continued change of possession, to be fraudulent 
and void as against the creditors and subsequent porcbasers in good 
faith of the vendor, mortgager, or assignor; that is, that the law, 
under such circumstances presumed that the transfer was vrithout 
consideration, or witliout a sufficient one, and also that there was 

■« Baldwin v. Peet, 22 Tex. 708; uDawea ▼. Copa, 4 Binn. (Pa.) 

CftTlton V. Baldwin, 22 Tez. 731. 2E8. 

Contra, Hutchinson v. Lord, 1 Wis. m Howerton v. Holt, 23 Tex. 62. 

287. See also Barney v. OTiffln, 2 n Cbase t. Ralston, SO Pa. 8t 

N. Y. 365; LeRoy v. Beard, 8 How. 639. 
(U. S.) *51. 



;abyG00<^lc 



FRAUD. 1399 

some secret trust or an intent to defraud purchasers or creditors; 
and that the plaintiff could not recover on that ground unless he 
had rebutted that presumption by proof, satisfactory to them, that 
the transfer was made, not only in good faith, but that it was with- 
ont any intent to defraud purchasere or creditors."'* In another 
jurisdiction, the question for decision, where this rule prevails, is 
said to be, what was the intention of the parties at the time of the 
sale! Was it fair and bona fide, or was it fraudulent! And it is 
for the jury determine, from the facta and circumstances developed 
by the testimony, whether it was the one or the other. It is also 
held to be the duty of the judge to instruct the jury, what acta create 
a legal presumption of fraud ; but the office of the jury to determine, 
whether or not those acts, if proved to exist, have been fairly ex- 
plained, and the presumptions created by them removed." 

§ 2018. Voluntary ConveyaaiceB. — A well defined distinction 
exists in respect of voluntary conveyances — that is, conveyances 
which are made without the passing of a valuable consideration — 
in respect of the rights of prior and subsequent creditors or pur- 
chasers. Such & conveyance is void only as to antecedent, and not as 
to subsequent creditors, unless made with a fraudulent intent,'" It 
is not void, even as against existiiig creditors, on the ground that the 
grantor 1b indebted at the time, if it be shonTi that the residue of 
his property is amply sufficient to pay his debts. '^ In other words, 
it is not, aa to such debts, fraudulent in law.'* In all such cases, 

M Thompson v. Blancbard, 4 N. Y. It seema. Reader v. Llvlngetoa, 3 

303, 307. Johns. Ch. (N. Y.) 500, and Bayard 

"•Bryant v. Kelton, 1 Tex. 416, v. Hoffman, i Johna. Ch. (N. Y.) 

429. 450). So, under a later Nev York 

le Sexton V. Wbeaton, 8 Wheat sUtute (2 Rev. SUt N. Y., part 2, 

(U. S.) 242; Hinde'B Leaeeev. Long- chap. 1, S 137); Thus, where a 

worth, 11 Wheat. (TJ. S.) 199, 211; conveyance U made to 'a chili in 

Boatmen's Savings Bank v. Overall, consideration of love and affection, 

16 Mo. App. 610; Payne v. Stanton, without any fraudnleut Intent, at 

69 Mo. 159; Hurley v. Taylor, 7S a time when the grantor 1b free 

Mo. S3S; Flaher v. Lewis, 59 Mo. from embarrassment, the gift con- 

629; Salmon V. Bennett, 1 Conn. 525. atltutlng but a small part of his 

ti Jackson v. Post, 15 Wend. (N. estate and being a reasonable pro- 

Y.) 5SS; Hinds's Lessee v. Long- vision for a child, — It 1> valid 

worth, 11 Wheat (U. S.) 199. against his existing creditors. Sal- 

TiVerpIanck v. Sterry, 12 Johns, mon v. Bennett, 1 Conn. 526 (doc- 

(N. Y.) 666, 667; Jackson v. Town, trine discussed and reasons stated 

4 Cow. (N. Y.) 599; Seward t. Jack- at length by Swift, C. J.). Aa to 

son, S Cow. (N. Y.) 406 (overruling, the effect of such a deed upon tlu 

Coo^^lc 



PBOVINCB OF COUBT AND JUBT. 



the fact of the cooveyance being voluntary, is at most presamptive 
evidence of fraud, and the question of fraudulent intent is, in 
actions at law, a question of fact for the jury." 

§ 2014. Whether Possession has been Delivered: When a Qnes- 
tlon of Law and when of Fact. — The decisions justify the con- 
clusion that the question whether there has been a delivery of 
possefision m^ be decided as a question of law, where the faets are 
undisputed and the inferences deducible therefrom indisputable;'* 
but where the facts are in dispute, or where the inferences to be 
drawn from them are doubtful, it is a question for the jury." Where 
the question of the bona fides of the change of possessicHi is involved, 
it will generally be a question of fact for the jury, on the principle, 
already e^lained,'* that intent and motive are qneatious of fact** 

% 2016. Badges of Trand. — Certain evidentiary facts, which tend 
to characterize the transaction aa fraudulent, have received, in I^al 
parlance, the designation of badges of fraud. Among these may be 
noted the following, upon which the courts have frequently dwelt : — 



rlgbts of tuHeitttent pwrchatert, see 
Stiles V. Llghtfoot, 26 Ala. 44S: 
Gardner v. Bootber, 31 Ala. 187, 
189. 

*• Dygert v. Remerscbnlder, 32 H, 
T. 629; Babcock v. Eckler, 24 N. T. 
623, G3S; Hlnde's Leaaee ▼. Long- 
worth, 11 Wheat. (U. S.) 199; Walt 
V. Day, 4 Den. (N. T.) 439; Qrabam 
V. Smith, 26 Pa. St. 323; Pomeray v. 
Bailey, 43 N. H. 118, 122. See also 
Smltb V. Parker, 41 Me. 462; Rob- 
inson T. Stewart, 10 N. Y. 190; Creed 
V. Lancaster Bank, 1 Ohio St 1: 
Holllster v. Loud, S Hicb. 312. 
Compare G«re v. Mnrrar, 6 Minn. 
305 ; Oreenleaf v. Edes, 2 Minn. 264. 
It iB, therefore, error to exclude evi- 
dence to rebut tba presumption ot 
frand by Bbowtng that the grantor 
hnd other meant Bufflclent to pay 
his debts at the time. Hlnde's 
Lessee v. Longworth, 11 Wheat (U. 
S.) 198, 213. Dorwin v. Patton, 101 
Minn. 344, 112 N. W. 366. The pur- 
ported date of a voluntary deed be- 



ing prior to the time of the credit- 
or's debt, the burden was held to 
be on him to show Its actual execn- 
tlon was at a sabseqnent date. Al- 
len V. Caldwell Ward ft Co., 119 Ala. 
293, 42 South. 866. 

>« Burrows v. Stebblns, 26 Vt 069, 
663 (explaining Stephenson T. 
Clark, 20 Vt. 624. and Hall v. Par- 
sons, IT Tt 271) ; Hodgklnsv. Hook, 
28 Cal. 681, 684; Knoop v. Nelson 
DlBUIllng Co., 26 Mo. App. 803, 810; 
Chase V. Ralston, 80 Pa. St B30, 
641; Jaubert v. Qatlter, 48 La. Ann. 
244. 19 South. 279; Crymble v. Mul- 
vaney, 21 Colo. 203, tO Pac. 499. 

Ti Forsyth v. Matthews, 14 Pa. St 
TOO; Burrows v. Stebblns, 26 Tt 669, 
663 (ruled as a matter of law); 
Howe V. Keeler, 2T Conn. 6S8; Por- 
ter V. Bucher, 98 Cal. 464, 33 Pac 
336; Buffalo Hdw. Co. T. Hacken- 
berg, 144 Pa. lOT, 22 AU. STB. 

t* Ante, t 1333 et seq. 

n HaU V. Wheeler, IS Ind. STL 



D.qitizeabyG00<^lc 



H'SAITO. 1401 

A traiafer of property, made by a debtor, upon a secret trust, is 
prima facie fr&udulcut as agaiDst creditors, such as casta the burden 
of proof upon the party claiming under the transfer, to show ade- 
quacy of consider ati on and good faith in the transaction.** AnoUier 
badge of fraud is inadequacy in the purchase price in the case of 
a sale, or a deficiency in the sum professedly secured in the case of 
a mortgage. Thus, the circnmstance that the actual amount paid 
under a mortgage and secured by it is far less than' the sum men- 
tioned as the consideraticm in the mortgage deed, is presumptive 
evidence of fraud. But it is presumptive evidence only; it may be 
rebutted, and whether it ia rebutted in a given case, ia a question for 
the jury," If this were not the correct rule, as was well said by 
Walker, J., "the slightest mistake, however honest the purposes of 
the parties, if made in favor of the mortgagee, would be attended 
with all the consequences of the grossest fraud, deliberately perpe- 
trated, with the design to hinder and delay creditors." Whereas, 
it is a rule of almost uniform application, that, in order to constitute 
a fraud such as the law recognizes, the act producing the wrong 
must have been intentiwially dcHie.*" Another badge of fraud con- 
sists in the transfer, by a debtor in failing circumstuices, of all or 
most of his property, to his near relatives. But such a transfer can- 
not be pronounced fraudulent as matter of law; whether it is so or 
not, is a question of fact for a jury." 



t* FergnsoD v. Gilbert, 16 Ohio St. 
SS,-9G. See also Langley v. Berry, . 
U N. H. 8S; Kimball v. Fenner, 12 
N. H. 2*8; Clapp v. TIrrell, 20 Picli. 
(Mass.) £47. If badges at fraud, 
other than relationablp, appear, the 
tranaactlon Is to be cloeelr scruti- 
nized. Hicks V. Sbarp, 89 Oa. Sll. 
le a B. 314. 

TB Parker t. Barker, ! Mete 
(Mass.) 423. See Stern Auction Co. 
T. MasoD, IG Ho. App. 473; Robin- 
son T. Robarda, 15 Mo. tSS; Curd v. 
I«ckland. 4S Mo. 454; Ames v. QU- 
more, 69 Mo. 649; Ross v. Cnitr 
singer, ? Mo. 249. 

M Wooley v. Fry, 30 111. 168, 160, 



■1 TbuB, It bas been beld that the 
transfer by a son In falling clrcnm- 
stances, of bis personal propert]' to 
hie father, may excite suspicion of 
fraud, but it is not fraudulent per 
se; and whether fraudulent or not 
Is to be determined by the Jury. 
Forsyth v. MatthewB, 14 Pa. St 100; 
post, fl 2018; St ex reL v. True, 
20 Mo. App. ITS, 181. Federal Su- 
preme Court holds mere relation- 
ship ts not a badge of fraud, but it 
Invites scrutiny. Shaner v. Alter- 
ton, 161 U. S. 607. 38 L. Ed. 286. 
See also Smith v. Collins, 94 Ala. 
394, 10 South. 334; MelUnger v. 
Hunt, 84 lows. 361, 62 N. W. 813. 



D.qitizeabyG00<^lc 



CHAPTER LVIII. 

LIBEL AND SLANDER. 

Section 
2026. Queatlon of Libel or no Libal: Influence of Fox's Libel Act 
20S6. Fox's Libel Act not In Force In Harrlnnd. 
2037. Statutory Rule In Geor^a: Jury to determine Meaning of tb« 

Words. 
202S. Sense In which Juries are Judges of the Law, etc 

2029. Words Actionable per te, or as Matter of Law. 

2030. If Words AmblsuouB, their Sense a Question tor the Jury, 
20S1. /nnuendo presents Question ot Fact for a Jury. 

208i!. Question not one of Intent bnt of Tendency, 

2033. Illustrations: Questions for Jury. 

2034. Meaning of the Words on Demurrer. 

2035. Doctrine ot Implied Malice. 

2036. Malice la Fact. 

2037. Whether the