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Lawyers Reports 




The Latttibs' C^o-opbkatiyb PusuaHue Cokpabt. 


Digitized by VjOOQIC 


Entered acoordlog to Act of Coogrrees, In the year nineteen handred five, by 


In the Office of the Librarian of Conirress, at Washington, D. G. 

Entered according- to Act of Cong-ress, In the year nineteen handred six, by 
In the Office of the Librarian of Congresa, at Washlngrton, D. C. 

B. R.*AvDaBWB PBiMTiiro Company, Rochester, N. Y. 

Digitized by 







Albright y. Sufiaex. Coanty Lake k Park 

Commiasioii (N. J. Err. k 

App.) 768 

Allegheny Nat. Bank, YougMogheny 

River Coal Co. v. (Pa.) .... 637 

Allen V. Com. (Masa.) 699 

y. North Des Moines M. E. 

Churoh (Iowa) 255 

American Tobacco Co. v. Strickling 

(Md.) 909 

Andis, Doyle v. (Iowa) 953 

Asheville Electric Co., Brown y. (N. C.) 631 
Atchison, T. & S. F. R. Co., Bibb Broom 

Com Co. V. (Minn.) 509 

Atlanta, K. & N. R. Co., Kinzel y. 

(C. C. A. 6th C.) 757 

Augusta y. Reynolds (Ga.) 564 

Augusta Brokerage Co., Central of Ga. 

R. Co. V. (Ga.) 119 


Bade, SUte ex rel. Morton y. (Neb.) . . 447 
Bank, Allegheny Nat., Youghiogheny 

Riyer Coal Co. y. (Pa.) 637 

Buffalo Say., Kelley v. (N. Y.) . . 317 

Citizens', Langdale y. (Ga.) . . 341 
Citizens' Nat., y. Greene & W. 

Teleph. Co. (Iowa) 968 

Exchange, Wilson y. (Ga.) 97 

Security, y. Greene k W. Teleph. 

Co. (Iowa) 968 

WaAerburyBav., Chase v. ( Conn. ) 329 

Barker, Clancy y. (Neb.) 642 

Clancy y. (C. C. A. 8th C.) 663 

Bannon, Howes y. (Idalio) 668 

'^mom y. Le Master (Tenn.) 353 

Beare y. Wright (N. D.) 409 

Beaaon y. State (Tex. Crlm. App.) 193 

•^LR. A. 

Bibb Broom Com C6. y. Atchison, T. k 

8. F. R. Co. (Minn.) 609 

Bingham y. Weller (Tenn.) 370 

Biasell, De Witt y. ((>)nn.) 933 

Blackwater Boom k Lumber Co., Grif- 
fith y. (W. Va.) 124 

Thompson y. ( W. Va.) 124 

Blanks, Three States Lumber Co. y. (C. 

C. A. 6th C.) 283 

Blue y. Guam (Tenn.) 892 

Board of Inspectors, People ex rel. De- 
troit y. (Mich. ) 184 

Board of Trade v. L. A. Kinney Co. (C. 

C. A. 7th C.) 59 

Bonsai y. Yollott (Md.) 914 

Boone Surburban R. Co., Octant y. 

(Iowa) 982 

Boston Advertising Co., Com. v.(Mas8.) 817 
Boston Ins. Co., CollinAville Sav. Soc. v. 

(Conn.) 924 

Bowles, State y. (Kan.) 170 

Brannon y. Curtia (Tenn.) 760 

Brooksyille Graded School Di.^t., Hack- 

ett y. (Ky.) 692 

Brown y. Asheyille Electric Co. (N. C.) 631 
Buffalo Say. Bank, Kelley y. (N. Y.) . . 317 
Busell Trimmer Co. v. Coburn (Mass.) 821 
Byme y. Werner (Mich.) 900 

Campbell y. Justices of Superior Court. 

(Maos.) 311 

Cannon y. Mathews (Ark.) 827 

Cappier, Union P. R. Co. y. (Kan.) .... 513 
Central of Ga. R. Co. y. Augusta Brok- 
erage Co. (Ga.) 119 

Chaoe, Ex parte (R. I.) 493 

OharUon y. Columbia Real Estate Co. 

(N. J. Err. k App.) 394 

Chase y. Waterbury Say. Bank (Conn.) 329 

Digitized by VjOOQK 

Cabbs Rbpoktkd. 

Citizens' Bank, Jjangdale t. (Ga.) 341 

Citizens' Nat. Bank v. Greene k W. 

Teleph. Oo. (Iowa) 968 

Clancy v. Bafker (C. C. A. 8th C.) 653 

V. Barker (Neb.) 642 

Clark, Wheeler v. (Tenn.) 732 

Coburn, Busell Trimmer Co. v. (Mass.) 821 

Cohn V. May (Pa.) 800 

Coleman, State v. (Mo.) 381 

Collinsville Sav. Soc. v. Boston Ins. Co. 

(Conn.) 924 

Columbia Real Estate Co., Charlton v. 

(N. J. Err. k App.) 394 

Com., Allen v. (Mass.) 699 

v. Boston Advertising Co. (Mass) 817 
Congregation of the Sons of Abraham, 

Gerbert v. (N. J. Err. k 

App.) 764 

Corder, Stephenson v. (Kan.) 246 

Cotant V. Boone Suburban R. Co (Iowa) 982 

Cowper V. Weaver (Ky.) 33 

Cramer v. Southern Ohio Loan k T. Co. 

(Ohio) 415 

Crawford, Taylor v. (Ohio) 805 

Crowley v. Ellsworth (La.) 276 

Currie, State v. (N. D.) 405 

Curtis, Brannon v. (Tenn.) 760 

Dana, Smith v. (Conn.) 76 

Daniels, Usher v. (N. H.) 629 

Darling, Hunt v. (R. I.) 497 

Davis V. Fry (Okla.) 460 

DaviB Calyx Drill Co. v. Mallory (C. C. 

A. 8th C.) 973 

Deneen, People ex rel., v. Gilmore (111.) 701 
Detroit, People ex rel., v. Board of In- 
spectors ( Mich. ) 184 

Detroit Bd. of Assessors, Duluth k A. 

Transp. Co. v. (Mich.) 431 

Teagan Transp. Co. v. (Mich.) . . 431 

Wolverine S. S. Co. v. (Mich.) . 431 

Dewey, Whitney v. (Idaho) 572 

De Witt V. Bissell (Conn.) 933 

Dickey, Morrison v. ( Ga. ) 87 

Dill v. Marmon (Ind.) 163 

Dillard, Louisville k N. R. Co. v. 

(Tenn.) 746 

District of Columbia, Wolff v. (D. C. 

App.) 83 

Doctor Blosser Co., Employing Printers' 

Club v. (Ga.) 90 

Doust, McDonald v, (Idaho) 220 

Doyle V. Andis (Iowa) 953 

Draper v. Medlock (Ga.) 483 

Dreyfus v. Roberts (Ark. ) 82.1 

Duluth k A. Transp. Co. v. Detroit Bd. 

of Assessors (Mich.) 431 


Edwards, State v. (Minn.) . 
69 L. R. A. 


Ellsworth, Crowley v. ( Ja.) 270 

Employing Printers' Club v. Doctor 

Blosser C^. (Ga.) 00 

Evans, Taylor v. (Pa.) 790 

Exchange Bank, Wilson v. ( Ga. ) 97 

Ex parte Chace (R. I.) 493 


French v. Senate (Cal.) 556 

Fry, Davis v. (Okla.) 460 


Garrigue v. Keller (Ind.) 870 

Gerbert v. Congregation of the Sons of 

Abraham (N. J. Err. • k 

App.) 764 

Gilmore, People ex rel. Deneen v. (111.) 701 
Ginter v. St. Mark's Church (Minn.) . . 621 

Gloucester, Souther ▼. (Mass.) 309 

Gordon v. Richardson (Mass.) 867 

Greene k W. Teleph. Co., Citizens' Kat. 

Bank y. (lo^a) 968 

Security Bank v. (Iowa) 968 

Wisconsin Lumber Co. y.(Iowa) 968 

Grice v. Woodworth (Ida^o) 584 

Griffith v. Blackwater Boom k Lumber 

Co. (W. Va.) 124 

Guglielmo, State v. (Or.) 466 

Gunn, Blue v. (Tenn.) 892 

Hackett v. Brooksville Graded School 

Dist. (Ky.) 592 

Hancock v. Western U. Teleg. Oa.(N. 

C.) 403 

Hargis v. Parker (Ky.) 270 

Hastings, Memphis v. (Tenn.) 760 

Hellen v. Medford (Mass.) 314 

Holmes v. Marshall (Cal.) 67 

Ush^r V. (N. H.) 629 

Hopkins v. State (Ga.) 117 

Howes v. Barraon (Idaho) 668 

Hunt V. Darling (R. I.) 497 

Insurance Co., Boston, Collinsville Sav. 

Soc. V. (Conn.) 924 

New England L., Pavesich v. 

(Ga.) 101 

Springfield F. k M., Richard v. 

(La.) 278 

Union Cent. L., v. Spinks (Ky) 264 

Irwin V. Jacques ( Ohio j 422 

Ishpeming, Temby v. (Mich. ) 618 

Jacques, Irwin v. (Ohio)OOQl£ 422 

Cases Rbportsd. 

John J. O'Brien Contracting Co., Rin- 

dcotti V. ( Conn. ) 930 

Jones, Re (Pa.) 940 

Justices of Superior Court, Campbell v. 

(Biass.) 311 

K&nsas City, Ft. S. & M. R. Co. v. 

Washington (Ark.) 65 

Keller, (}arrigue v. (Ind.) 870 

Kelley v. Buffa<p Sav. Bank (N. Y.) . . 317 

Kerr v. Murphy (S. D.) 490 

Kiibey, L. A., Co., Board of Trade v. 

(C. C. A. 7th C.) 59 

Kintcl T. Atlanta, K. & N. R. Co. (C. 

C. A. 6th C.) 757 

Kleis T. McGrath (Iowa) 260 

Knickerbocker loe Co., Maginnis v. 

(Wis.) 833 

Kurtz, New Castle v. (Pa.) 488 

liidd ▼. Weiskopf (Minn.) 785 

L. A, Kinsey Co., Board of Trade v. (C. 

C. A. 7th C. ) 59 

Laniidale v. Citizens' Bank (Ga.) .... 341 

le Master, Bamum y. (Tenn. ) 353 

Linthicum, Polk v. (Md.) 920 

Uppincott, Supreme Council A. L. of 

H. V. (C. C. A. 3d C.) .... 803 
Lone Acre Oil Co., Swayne v. (Tex.) . . 986 

Ixwiais V. Wallblom (Minn.) 771 

IxHiisville Sl N. R, Co. v. Dillard 

(Tenn.) 746 

T. Sawyer (Tenn.) 662 

MeBeath V. Rawle (111.) 697 

M?Donald v. Doust (Idaho) 220 

MrFall, St Louis & S. F. R. Co. v. 

(Ark.) 217 

McOrath, Kleis v. ( Iowa) 260 

McKell, State ex rel., v. Robins (Ohio) 427 

MfPbee, People v. (Midi.) 505 

Maginnis v. Knickerbocker Ice Co. 

(Wis.) 833 

>Wl<»ry, Davis Calyx Drill Co. v. (C. C. 

A.8thC.) 973 

"'an^hesiter AASur. Co. v. Oregon R. & 

Xav. Co. (Or.) 475 

'■'Wiien V. Portsmouth, K. & Y. Street 

R Co. (Me.) 300 

-Viowitz T. Metropolitan Street R. Co. 

(Mo.) 389 

•^nnon. Dill V. (Ind.) 163 

itir^iall, Holmes V. (Cal.) 67 

V-itiMfwa, Cannon v. (Ark.) 827 

^ly. Cohn V. (Pa.) : 800 

^'•^ford. Hellen ▼. (Mass.) 314 


Medlock, Draper V. (Ga.) ...j g^ 

Memphis v. Hastings (Tenn.) '^^t* V. 
Merrill, Watson v. (C. C. A. ' ^j 

Metropolitan Street R. Co., Ma't^' *^' 

V. (Mo.) ; 96g 

Miller, Snyder v. (Kan.) «. 

Wade V. (Mass.) ^.^ 

Montgomery, Pittsburgh, C. C. & St. L. 

R. Co. V. (Ind.) 87 

Morris & C. Dredging Co. v. Nelson (C. 

C. A. 1st C.) 293 

Morrison v. Dickey ( Ga. ) 87 

Morton, State ex rel., v. Back (Neb.) 447 

Mumford y. Starmont (Midi.) 350 

Murphy, Kerr v. (S. D.) 499 


Nahant v. United States (C. C. A. 1st 

C.) 723 

Neely, Williams v. (C. C. A. 8th C.) 232 
Nelson, Morris & C. Dredging Co. y. 

(C. 0. A. 1st C.) 293 

New Caatle v. Kurtz (Pa.) 488 

New England L. Ins. Co., Pavesich y. 

(Ga.) 101 

New York, N. H. & H. R. Co., Richards 

V. (Conn.) 929 

North Des Moines M. E. Church, Allen 

V. (Iowa) 265 

Oregon R. & Nay. Ck>. Manchester As- 

sur. Co. y. (Or.) 476 

Padflc Mail S. S. Co., Re (CO. A. 

A. 9th C.) 71 

Parker, Hargis v. (Ky.) 270 

Payesich y. New England L. Ins. Co. 

(Ga.) 101 

Peirce y. Van Dusen (C. C. A. 6bh C.) 705 

People V. McPhee (Mich.) 505 

y. Schneider (Mich.) 345 

People ex rel. Detroit y. Board of In- 
spectors (Mich.) 184 

Deneen y. Gilmore (111.) 701 

Pittsburgh, C. C. & St. L. R. Co. y. 

Montgomery ( Ind.) 875 

Polk y. Linthicum (Md.) 920 

Portsmouth, K. & Y. Street R. Co., Mar- 
den V. (Me.) 300 

Powers-Simpson Co., Schus v. (Minn.) 887 

Pressly y. Stote (Tenn.) 291 

Proctor y. Proctor (111.) 673 


Railroad Co., Kansas City, Ft. S. & M., 
V. Washington (Ark.) .. 

Digitized by 

jTF* 65 T 



^ouisville & N., v. Dillard 

Citizens' Bank, inn. ) 746 

Citisenfi' Nat. He & N., v. Sawver 

Ty enn.) \ . . 662 

Clancy v. F ork, N. H. & H., Richards 

V, . (Conn.) 929 

Clark, : i^uis & S. F., v. McFall 

Cobv (Ark.) 217 

Col Co., Atchiaon, T. & S. F., Bibb 

CV Broom Corn Co. v. (Minn.) 509 

.^ Atlanta, K. & N., Kinzel w (C. 

C. A. 6th C); 757 

Boone Suburban, Ootent v. 

(Iowa) 982 

Central of Ga., v. Augusta 

Brokerage Co. (Ga.) 119 

Metropolitan Street, Markowitz 

V. (Mo.) 389 

Pittsburgh, C. C. & St. L., v. 

Montgomery (Ind.) ....... 875 

Portsmouth, K. & Y. Street, 

Marden v. (Me.) 300 

Union P., v. Cappier (Kan.) 513 

Union, Kuckman v. (Or.) .... 480 

Rawle, McBeath v. (111.) 697 

Re Jones (Pa.) 940 

Pacific Mail S. S. Co. (C. C. A. 

9th C.) 71 

Rees, Slack v. (N. J. Err. & App.) 393 

Reynolds, Augusta v. (Ga.) 564 

Rhode Island Co., Vizacchero v. (R. I.) 188 
Richard v. Springfield F. & M. Ins. Co. 

(La.) 278 

Richards v. New York, N. H. & H. R. 

Co. (Conn.) 929 

Richardson, Gordon v. (Mass.) 867 

V. Stuesser (Wis.) 829 

Rideout v. Winnebago Traction Co. 

(WiA.) 601 

Rincic-otti v. John J. O'Brien Contract- 
ing Co. (Conn.) 936 

Roberts, Dreyfus V. (Ark.) 823 

Robins, State ex rel. McKell v. (Ohio) 427 
Ruckman v. Union R. Co. (Or.) 480 

St. Louis & S. F. R. Co. v. McFall 

(Ark.) 217 

St. Mark's Church, Ginter v. (Minn.) 621 
Sawj'er, Louisville & N. R. Co. v. 

(Tenn.) 652 

Schneider, People v. (Mich.) 345 

Schus V. Powers- Simpson Co. (Minn.) 887 
Security Bank v. Greene & W. Teleph. 

Co. (Iowa) 968 

Senate, French v. (Cal.) 5.')G 

Service v. Shonemnn (Pa.) 702 

Shoneinan. Service v. (Pa.) 702 

Slack V. Kcos ( X. J. Krr. & App.) .... 303 

Smith V. Dana (Conn.) 7(» 

V. Supreme Tent K. of M. ( Iowa ) 1 74 

Snyder v. ^Miller (Kan.) 250 

<J9 L. R. A. 


Souther \\ Gloucester ( Mass. ) SOI 

Southern Ohio Loan & T, Co., Cramer 

V. (Ohio.) 41 

Spinks, Union Cent. L. Ins. Co. v. (Ky.) 2* 
Springfield F. & M. Ins. Co., Richard v. 


Stanley v. Steele ( Conn. ) ol 

Starmont, Muinford v. (Mich.) 33 

State, Beaiton v. (Tex. Crim. App.) .. 19 

V. Bowles < Kan. ) 17 

V.Coleman (Mo.) .! 38 

V. Cunie (N. D.) 4« 

V. Edwards ( Minn. ) ^ 

V. Guglielmo (Or.) 4fl 

Hopkins v. (Ga.) U 

Pressly v. ( Tenn. ) 29 

V. Yegge (S. D.) M 

State ex rel. Morton v. Back (Neb.).. 44 

McKell V. Robins (Ohio) ...42 

Steam Dredge No. 1 (C. C. A. 1st r.» 2! 

Steele, Stanley v. (Conn.) ^^ 

Stephenson v. Corder (Kan.) i^ 

Strickling, American Tobacco Co. v 

(Md.) » 

Stuesser, Richardson v. ( Wis. ) Si 

Supreme Council A. L. of H. v. Lippin- 

cott (C. C. A. 3d C.) ^ 

Supreme Tent, K. of M., Smith v. 

(Iowa) 1 

Sussex County Lake & Park Commis- 
sion, Albright v. (N. J. Err. 

& App. ) 7 

Swayne v. Lone Acre Oil Co. (Tex.) 9 


Taylor v. Crawford (Ohio) 

V. Evans ( Pa. ) 

Teagan Transp. Co. v. Detroit Bd. of 
Assessors ( Mich. ) 4 

Temby v. Ishpeming (Mich.) ^ 

Thompson v. Blackwater Boom ft Lum- 
ber Co. (W. Va.) I 

Three States Lumber Co. v. Blanks (C. 
C. A. 6th C.) i 


Union Cent. L. Ins. Co. v. Spinks ^Ky.- 
Union P. R. Co. v. Cappier (Kan.) .. 
Union R. Co., Ruckman v . ( Or. ) .... 
United States, Nahant v. (C. C. A. Ut 


Usher v. Danief-s (N. H.) 

Usher V. Holmes (N. IL) 

Van Duspn 
Vi/.acchero v. 

Peircc V. (C. C. A. 
Rliode Island Co. 

Gth C) 

(R. I.) 

Digitized by 




de T. Miller (Mass.) 820 

Iblom, Loomis ir. (Aflnn.) 771 

in^rton, KAnsas City, Ft. S. k M. 

R, Co. V. (Ark.) 66 

terbury S&v. Bank, Chase v. (Conn.) 329 
nson V. 'Watkinson (N. J. Err. & 

App.) 397 

"VVa^^scm ▼. Merrill ( C. C. A. 8th C.).. 719 

^«=^Ter, Cowper V. (Ky.) 33 

^«^;akopf , I^add V. (Minn.) 785 

*V^^Jer. Bingham V. (Tenn.) .^ 370 

,BjTnev. (Mich.) 900 

^^m U. Teleg". Co., Hancock v. (N. 

C.) 403 

lerv. Clark (Tenn.) 732 

■**^ev V. Dewey (Idaho) 572 

*^^ianwv. Xeely (C. C. A. 8th C.) .. 232 

Wilson T. Exchange Bank (Ga.) 97 

Winnebago Traction Co., Rideout v. 

(Wis.) 601 

Wisconsin lAimber CJo, v, Greene & W. 

Teleph. Co. (Iowa) 968 

Wolff V. District of Ck)lumbia (D. C. 

App.) 8;^ 

Wolverine 8. S. Co. v. Detroit Bd. of 

Assessors (Mich.) 431 

Woodworth, Grice v. ( Idaho) 584 

Wright, Beare v. (N. D.) 409 

Yegge, State v. (S. D.) .....504 

Yellott, Bonsai v. (Md.) 914 

Youghiogheny River Coal Co. v. Alle- 
gheny Nat. Bank (Pa.) 637 


Digitized by 


Digitized by 





Ibbott T. AlleD. 14 JohoB. 252.... 762 

kUfDetby T. Hutchinson. [1825] 3 L. J. 

Ch. 209 109 

iborn r. Bathbone, 54 Conn. 444, 8 Atl. 

677 825 

kcklen T. Hickman. 63 Ala. 494. 35 Am. 

B€p. 54 478 

kdtms Connty t. Kanaas City & O. R. Co. 

(Neb.), 99 N. W. 245 456 

l^ms Exp. Co. T. Walker. 26 Ky. L. Rep. 
1025. 67 L. R. A. 412. 83 S. W. 

106 269 

Ukins ▼. Com. 98 Ky. 539, 32 L. R. A. 

108. 33 S. W. 948 273 

I4*r T. Whitbeck, 44 Ohio St. 539. 9 N. B. 

672 349, 716. 814 

crat L. Ids. Co. ▼. Mil ward, 26 Ky. L. 

Rep. 589. 68 L. R. A. 285, 81 

S W 3fl4 ..... 270 

lllriffht T. Cortrlght, 64 N. J. ll 330, 48 

L. R. A. 616. 81 Am. St. Rep. 

504. 45 Atl. 634 769 

iMen T. Minneapolis, 24 Minn. 254 629 

Ueunder r. SUte, 99 Ind. 450 118 

kliTsbenj ▼. Zimmerman, 95 Pa. 295, 40 

Am. Rep. 649 248 

i to T. Craft, 109 Ind. 476. 58 Am. Rep. 

425. 9 N. E. 919 957 

T. Flood [1898J A. C. 1 95 

T. Georgia, 166 U. S. 138, 41 U ed. 

949. 17 Hup. Ct. Rep. 525 313 

T. Looislana. 103 U. S. 80, 26 L. 

ed. 318 229 

T. Wllllamsbargh SaT. Bank, 69 N. 

Y. 314 325 

up.^ Checkrower Co. v. Bradley, 105 

Iowa, 537. 75 N. W. 369 976 

^rica. The. 92 U. 8. 432, 23 L. ed 724. . 299 
^« T. People, 26 Colo. 83, 56 Pac 656. . 457 


T. Union P. R. Co. 60 Fed. 966 721 

Uderson t. East, 117 Ind. 128, 2 L. R. A. 
712, 10 Am. St. Rep. 35, 19 N. 

B. 726 621 

r. Bapler, 34 111. 436, 85 Am. Dec. 

318 739, 746 

T. Minneapolis Street R. Co. 42 
Minn. 490, 18 Am. St. Rep. 525, 

44 N. W. 518 305 

T. Thunder Bay RlTer Boom Co. 57 

Mich. 216, 23 N. W. 776 582 

Atdrevs, Be, 162 N. Y. 1, 48 L. R. A. 662, 
76 Am. St. Rep. 294, 56 N. B. 

529 427 

T. Andrews. 188 U. 8. 14, 47 L. ed. 

366, S3 Sap. Ct. Rep. 237 495 

T. Senter, 32 Me. 894 860 

A'>l«r T. Bay State DlstUIIng Co. 178 

Mass. 163, 59 N. B. 630 499 

^K* r. Chicago, St. P. M. & O. R. Co. 
151U. S. 1, 38 L. ed. 55, 14 

Sup. Ct. Rep. 240 96 

^v.«iea T. Rageley, 6 Q. B. 107 291 

^^i«i Y. Miner, 81 Pa. 212 943, 950 

i*»^ T. Wilson, 60 Ga. 421 95 

^99-^ T. Brie Connty Bar. Bank, 62 N. 

Y. 12 324,836 

-ijpititte ▼. Dowell. 15 Or. 613, 16 Pac 

651 482 

^^tt T. Baltimore Bldg. & L. Asso. 46 

W. Va. 37, 30 S. E. 241 421 

T. Jacobs, 125 Iowa, 467. 101 N. W. 

• LE.^^'' »'* 

Armonr ▼. Braseaa, 191 111. 117, 60 N.'B. 

904 938 

Armstrong ▼. LawsonV 73* ind! 498! ! ! ! ! ! 828 
Arnold, Ez parte, 128 Mo. 260, S3 L. R. A. 

£b6, 49 Am. St. Rep. 557, 30 S. 

W. 769 187 

▼. Shields, 5 Dana, 18, 30 Am. Dec. 

669 272 

Ashley ▼. Hendee, 56 Vt. 209 825 

▼. Sioux City (Iowa) 93 N. W. 303. 986 

Atchison T. State, 13 Lea, 275 293 

Atchison, T. & S. P. R. Co. v. Clark, 60 

Kan. 826, 47 L. R. A. 77, 68 

Pac. 477 440 

Y. Jennison, 60 Mich. 232, 27 N. 

W. 6 313 

T. Stanford. 12 Kan. 377, 15 Am. 

Rep. 362 248 

Atkins T. Chilson, 11 Met. 112 868 

▼. Wilcox, 53 L. R. A. 118. 44 C. 

C. A. 626, 3 N. B. N. Rep. 

497, 105 Fed. 595 721 

Atkinson v. .John E. Doherty & Co. 121 

Mich. 372, 46 h. R. A. 219, 80 

Am. St. Rep. 507, 80 N. W. 

285 Ill, 115 

Atlee ▼. Northwestern Packet Co. 21 Wall. 

389. 22 L. ed. 619 299 

Atty. Gen. v. Chicago & N. W. R. Co. 35 

Wis. 425 881 

T. Williams. 174 Mass. 476, 47 L. 

R. A. 314, 55 N. E. 77 819 

Auglr T. Ryan, 63 Minn. 373, 65 N. W. 640 487 

Auman r. Auman. 21 Pa. 343 966 

Avery t. Brown, ^^1 Conn. 398 237 

Aylet Y. Hill. 2 Dick. 551 498 


Bach Y. Parmely, .35 Wis. 238 ' 832 

Backus v. Detroit, 49 Mich. 110. 43 Am. 

Rep. 447. 13 N. W. 380 932 

Y. McCoy, 3 Ohio, 211, 17 Am. Dec. 

585 762 

Baer Bros. y. Terry, 105 La. 479, 29 So. 

886 872. 875 

Bageard y. Consolidated Traction iCo. 64 
N. J. L. 316, 49 L. R. A. 424, 
81 Am. St. Rep. 498. 45 Atl. 

020 192 

Bailey y. Centervllle, 108 Iowa, 20, 78 N. 

W. 831 985 

Y. Clark, 21 Wall. 284, 22 L. ed. 

651 81 

Y. Massey, 2 Swan. 168 744 

Y. Rome, W. & O. R. Co. 139 N. Y. 

302, 34 N, E. 918 938 

Bain Y. Potherglll, L. R. 7 H. L. 158. .766, 767 

Balrd Y. Goodrich, 5 Ilelsk. 23 762 

Baker y. Baker, 51 Ohio St. 217, 37 N. E. 

126 425 

Y. Helskell, 1 Coldw, 641 379 

Y. Howell, 6 Serg. & R. 476 739 

Y. Hunt, 40 111. 264, 89 Am. Dec. 

346 762 

Baker's Appeal, 107 Pa. 381, 52 Am. Rep. 

478 ..427 

Baker Transfer Co. y. Merchants' Refrig- 
erator & Ice Mfg. Co. 12 App. 
DlY. 260, 42 N. Y. Supp. 76. . . 157 
Baldwin y. Douglas County. 37 Neb. 283, 

20 L. R. A. 850, 55 N. W. 875. . 832 
Y. Phoenix Ins. Co. 60 N. H. 164. . 923 

Ballinger y. Tarbell, 16 Iowa, 491, 85 Am. 

Dec. 527 501, 502 

Ballock Y. State, 73 Md. 1, 8 L. R. A. 671, 
26 Am. St. Rep. 559, 20 AtU^ 

'Digitized by v1jXj53Q IC 



Baltimore & n. R. Co. v. Alglre, 65 Md. 

337, 4 Atl. 2t)3 570 

Baltimore & O. R. Co. v. Andrews. 17 L. R. 
A. 191. 1 C. C. A. 636, 6 U. S. 

App. 75, 50 Fed. 7j28 748 

V. Baueh. 149 IT. S. 368, 37 L. ed. 

772, 13 Sup. Ct. Rep. 914 171 

289, 912 
▼. Camp, 13 C. C. A. 233. 31 U. S. 

App. 213, 65 Fed. 052 712 

V. Keedy, 75 Md. 320, 23 Atl. 643. . 512 
Baltimore County v. Wilson. 97 Md. 207, 

54 Atl 71. 50 Atl. 596 917, 920 

Bamford v. Creasy, 3 Giff. 675 869 

Bangor v. Brookner, 25 Hun. 621 832 

y. Lansil, 61 Me. 521 629 

V. Wlscasset, 71 Me. 535 832 

Bank of State t. New Albany, 11 Ind. 

139 883 

Banks y. Pike, 15 ' Me*. 268 .* .'!*.*.*.!!!'.!'.! ! 99 
Barbour v. Tompkins, 81 W. Va. 410, 7 S. 

R. 17 264 

Bargent y. Thomson, 4 Giff. 473 869 

Barnes y. McMurtry, 29 Neb. 184, 45 N. 

W. 285 270 

Barnett y. Harsbbarger, 105 Ind. 410, 5 

N. E. 718 883 

y. McCree, 76 Hun, 610, 27 N. 

Y. Supp. 820 396 

Barney y. Keokuk, 94 U. S. 324, 24 L. ed. 

224 634 

Barnum y. Boughton, 55 Conn. 117, 10 

Atl. 514 70 

y. LeMaster, 110 Tenn. 638, 69 L. 

R. A. 353, 75 S. W. 1045... 379 

Barrett v. Carden, 65 Vt. 431, 36 Am. St. 

Rep. 870, 20 Atl. 530 884 

y. Dodge, 16 R. I. 740, 27 Am. St. 

Rep. 777, 19 Atl. 530 874 

y. Falling, 8 Or. 152 482 

Barrlcklow v. Stewai-t, 163 Ind. 438, 72 N. 

E. 128 874 

Barron y. Baltimore, 7 Pet. 243, 8 L. ed. 

672 729 

y. Collins, 49 Ga. 580 96 

Barry y. Page, 10 Gray, 398 630 

Bass v. Chicago & N. W. R. Co. 36 Wis. 

459, 17 Am. Rep. 495 647 

655, 657, 660 

Bateman y. Phillips, 15 East, 272 396 

Bates y. People's Suv. & L. Asso. 42 Ohio 

St. 655 419 

y. Santa Barbara County, 90 Cal. 

543, 27 Pac. 438 498 

Batterson's Appeal. 72 Conn. 374, 44 Atl. 

• 546 81 

Baxter y. Chicago & N. W. R. Co. 104 Wis. 

. 307. 80 N. W. 644 617 

Beard y. Connecticut & P. Rivers R. Co. 

48 Vt. 101 986 

Beason y. State, 2 Tex. CX Ren. 921, 63 

S. W. 633 196 

Beayers* Case, 58 Ind. 531 204 

Beazley v. Reld, 68 Ga. 380 116 

Beckham v. Drake, 2 II. L. Cas. 579 869 

Beckwlth y. Carleton, 14 Gn. 693 98 

Bedford Belt R. Co. v. Brown, 142 Ind. 

659. 42 N. E. 359 170 

Beecher y. Baldwin, 55 Conn. 419, 3 Am. 

St. Rep. 57, 12 Atl. 401 237 

y. Detroit, 114 Mich. 228, 72 N. W. 

206 439 

Beers y. Hanlln, 3 N. B. N. Rep. 749, 99 

Fed. 695 721 

Behre v. National Cash Register Co. 100 
Ga. 213, 62 Am. St. Rep. 320, 

27 S. E. 986 116 

Bell V. Morrison, 1 Pet. 362, 7 L. ed. 179 262 
V. Packard. 69 Me. 105, 81 Am. 

Rep. 251 872 

V. Smalley. 45 N. J. Eq. 478, 18 

Atl. 70 950 

Belle V. Brown, 37 Or. 588. 61 Pac. 1024 482 
Bellevue Water Co. v. Stocksla^er, 4 Ida- 
ho, 630, 43 Pac. oGS 222 


Belslay v. Engel, 107 111. 182 963 

Bender v. Fromberger. 4 Dall. 442, 1 L. ed. 

901 763 

Benjamin v. Ilolyoke St. R. (^o. 160 Mass. 
3. 39 Am. St. Rep. 446, 35 N. 

K. 95 302 

80 L. R. A. 

Benson y. Christian, 129 Ind. 535, 29 X. 

B. 26 879 

Benton V. Hamilton, 110 Ind. 294. 11 X. 

E. 238 885 

Bergman v. Comfnerclal Assur. Co. 92 Ky. 

494, 15 U R. A. 270. 18 S. W. 

122 927 

Berliner y. State, 6 Tex. App. 181 197 

Berwind v. Barnes, 13 W. N. C. 541 642 

Bethel v. Cincinnati Street R. Co. 15 Ohio, 

C. C. 381, 8 Ohio, C, D. 310.. 190 

Bethel, Re, L. R. 38 Ch. l>lv. 220 4tt:» 

Betts V. Baxter, 58 Miss. 334 .j02 

Bibb V. Freeman, 59 Ala. 612 1^ 

BJckford v. Page. 2 Mass. 455 762 

Blddeford Sav. Bank v. Dwelllng-House 

Ins. Co. 81 Me. 566, 18 Atl. 

298 92.'. 

Bierce v. Sharon Electric Light Co. 73 

Conn. 300, 47 Atl. 324 935 

Billings y. Aspen Mln. ft Smelting Co. 2 

C. C. A. 252. 10 U. S. App. 

1. 51 Fed. 338 242 

BIrdsall y. Kewaunee County (Wis.) 103 

N. W. 1 :......:.... 831 

Birmingham R. & Electric Co. v. City 

Stable Co. 119 Ala. 615, 72 Am. 

St. Rep. 957, 24 So. 558 306 

Bitters V. Fulton County, 81 Ind. 125 879 

Black V. Sharkey, 104 Cal. 279, 37 Pac. 

939 580, 581 

Black Case. See Supreme Colwhil, a. L. 

H. V. Black. 

Blackburn v. Smith, 2 Kxch. 783 763 

Blackmore v. Fairbanks, M. & Co. 79 Iowa, 

289. 44 N. W. 548 976 

Blackshire t. Iowa Homestead Co. 39 Iowa. 

625 971 

Blaine County v. Heard, 5 Idaho, 6, 45 

Pac. 890 222. 227 

Blake v. Stone, 27 Vt. 475 963 

Blakely Twp. v. Devlne, 36 Minn. 53, 29 

N. W. 342 629 

Blewett y. State, 34 Mls«. 606 118 

Blewltt V. Boorim, 142 N. Y. 351, 40 Am. 

St. Rep. 600, 37 N. K. 120 580 

Blossom V. Negus, 182 Mass. 515, 65 N. K. 

846 869 

Blumenthal v. Boston & M. R. Co. 97 Mc. 

255, 54 Atl. 747 30;i 

Board of Education y. Minor, 23 Ohio St. 

211, 13 Am. Rep. 233 598 

Board of Trade y. Donovan Commission 

Vo. 121 Fed. 1012 67. 

V. Ellis. 122 Fed. 319 «."» 

V. O'Dell Commission Co. 115 Fed. 

574 65 

Board of Trade Teleu. Co. v. Barnett, 107 

111. 507, 47 Am. Rep, 453 635 

Bobo V. Patton, 6 Helsk. 172, IS) Am. Rep. 

593 289. 290 

Bogan T. Edinburgh American Land Mortg. 

Co. 11 C. C. A. 128, 27 U. S. 

App. 346, 63 Fed. 192 242 

Bolin V. Chlca^fo, St. I». M. & O. R. Co. 108 

Wis. 333. 81 Am. St. Rep. 911, 

84 N. W. 446 609, 610, 610 

Bolln Case. See Boi.ix v. Chicago, St 

P. M. & O. R. Co. 
Bolln y. Nebraska. 176 V. S. 83, 44 L. ed. 

382. 20 Sup. Ct. Rep. 287 46!> 

471. 47:s 

Bolt V. Keyhoe, 30 Hun, 619 i^\\ 

Bonnlwell v. Madison. 107 Iowa, 85, 77 X. 

W. 530 8«o 

Booth V. Booth, 2 Atk. 343 40,S 

Boothby v. Bennett, 73 Me. 117 '2K\\\ 

Bordman v. OslM)rn, 23 Pick. 295 Tli 1 

Boreham v. Bignall, 8 Hare, 131 94 7 

Boston & M. R. Co. v. (iraham. 179 Mass. 

62, 60 X. E. 405 87*1 

Boston Water Power c'o. v. Boston & W. R. 

Corp. 23 Pick. 360 7i!> 

Bostwlck V. Leach. 3 Day. 476 H'2> 

Bouch V. Sproule, L. R. 12 App. Cas. 38.5 S'. 
Boudreau y. Eastman. 59 X. H. 467.... 6;i< 

Boulter, Re, 5 Wyo. 329. 40 Par. 520 4*51 

Boweu V. Hall, L. R. 6 Q. B. Dlv. 333.. u: 


Bowles V. Field. 78 Fed. 742 87i 

Bowman v. Venice & C. R. Co. 102 III. 

472 5oa 

Bowser y. Colby, 1 Hare, 109.^ s«j 

Boyce y. Grundy, 3 Pet. 24Ojv0lped. 655 24 < 



Boyd T. Bartlett, 36 Vt. 240 

T. Heinzelman, 1 Ves. & B. 381.. 498 

Bn«»bridge y. Buckley, 2 Price. 200 869 

Bradford t. Bradford. 19 Ohio St. 546, 2 

Am. Rep. 419 426 

Bradify t. Johnson, 49 Ga. 412 485 

BriJDfln T. Bingham. 26 N. Y. 492 580, 581 

Brammell t. Hart, 12 Helsk. 366 739 

Brandt T. Foster, 5 Iowa, 287 762 

::ninisan r. 8 III. 123 499 

I{r4.vb<»ar v. West, "i Pet. 608. 8 L. ed. 801 237 
Bra«)itlcld T. Buricess, 10 Ky. L. Rep. 660, 

10 S. W. 122 37 

Bray T. Cobb, 3 Am. Bankr. Rep. 788, 100 

Fed. 27<) 720, 722 

Brazil Block Coal Co. v. Hoodiet, 129 Ind. 

327. 27 N. E. 741 886 

Br*^ V. MoraJi, 31 Minn. 525. 53 N. W. 

755 976 

Br<>anaD v. Swasey. 16 Cal. 140. 76 Am. 

D^^ 5Q7 499 

BMron T. DaVls. 8 Bl'aVk'f.'sis,* 44"Am. 

Dec. 769 976 

Brwll, Ex parte. L. R. 16 Ch. DIv. 484 . . 600 
Br«»ir»ier v. KItchln. 1 lA. Raym. 317. . 291 
Brick Presby. Church y. New York, 5 Cow. 

KQ^ ^ ^ 291 

Bri2o» y. I^wlston ib A. Ilorse R. Co. 79 
Me. 367, 1 Am. St. Rep. 816, 

10 Atl. 48 302 

y. Titus. 13 R. I. 136 498 

Br.^'ht y. Western V. Telea. Co. 132 N. C. 

326. 43 8. B. 844 405 

i:r:Dkley y. Brinkley. 47 X. Y. 40 313 

firinley y. Grou, 50 Conn. 66. 47 Am. Rep. 

618 80 

B:i*bln y. Cleary, 26 Minn. 107, 1 N. W. 

825 187 

BrUblne y. 8t. Paul & S. City R. Co. 23 

Minn. 114 932 

Brodbead y. Relnbold, 200 Pa. 618. 86 Am. 

St. Rep. 735. 50 Atl. 229 631 

BT..«den y. Marriott. .2 Scott, 703 132 

nn>l;ilr y. Marquis. 80 Iowa, 49, 45 N. W. 

395 960 

Brook V. Brook, 9 H. L. Cas. 193. 494, 495, 497 
Bnjokljn Park y. Armstroni;. 45 N. Y. 234, 

6 Ato- Rep. 70 754 

B^JOks y. Cooper. .'>0 N. J. Eq. 761, 21 L. 
R. A. 617. 35 Am. St. Rep. 795, 

26 Atl. 978 267, 884 

y. Stackpole, 168 Mass. 537, 47 N. 

E. 419 99 

y. Wentx. 61 N. J. Bq. 474, 49 Atl. 

147 396 

Bnjoffle y. Xew York & N. J. Teleph. Co. 

42 N. J. Eq. 141. 7 Atl. 851.. 635 
BnTelll y. Bianachl, l36 Cal. 612, 69 Pac. 

416 576 

BrovB y. Ancient Order of IT. W. 208 Pa. 

101, 57 Atl. 176.944, 947, 948, 950 
y. Arnold, 67 C. C. A. 125, 131 Fed. 

723 240 

T. Balfour, 46 Minn. 68, 12 L. R. A. 

373. 48 X. W. 604 69 

y. Brown. 125 Iowa, 218, 67 L. R. 

A. eiO, 101 N. W. 81 960 

V. Brown, 174 Mass. 197, 75 Am. St. 

Rep. 303, 54 X. E. 532 869 

y. Brown. 33 X. J. Eq. 650 397 

y. Caldwell. 10 Serg. i R. 114, 13 

Am. Dec. 660 739, 740 

y. Hartford Ins. Co. 5 R. 1. 308.. 927 
V. Jacobs* Pharmacy Co. 115 Ga. 
429. 57 L. R. A. 547, 90 Am. St. 

Rep. 126, 41 S. E. 553 93 

T. Jones. 125 Ind. 375. 21 Am. St. 

Rep. 227, 25 N. E. 452 873 

y. Merrimack RWer Sav. Bank, 67 
X. H. 549. 68 Am. St. Rep. 

700, 39 Atl. 336 33i . 330 

y. Vailes. 16 Colo. 462, 14 L. R. A. 

120. 27 Pac. 945 914 

y. Volkenlng;. 64 X. Y. 80 741 

V. Whipple. 58 X. H. 229 631 

y. White. 202 Pa. 297. 58 L. R. A. 

321. 51 Atl. 962 402 

T. Winona A S. W. R. Co. 53 Minn. 
259. 39 Am. St. Rep. 603. 55 

X. W. 123 625. 628 

▼. Witter, 10 Ohio, 142 763 

T Worden. 39 Wis. 432 832 

Bf^vnlnir y. Merritt. 01 Ind. 425 873 

Bfaff«tt y. Great Western R. Co. 25 111. 
^, ^ 353 250 

Bnink y. Means. 11 B. Mon. 214 274 

Bryan. Re. 2 Sim. N. S. 103 947 

V. Western U. Teleg. Co. 133 X. C. 

607, 45 S. E. 938 404 

Bryant y. Rich. 106 Mass. 188. 8 Am. Rep. 

311 647, 661 

V. W>ll8, 56 X. H. 152 630 

Bryce, Re, 194 Pa. 135. 44 Atl. 1076 945 

Buchanan y. Alwell, 8 Humph. 516 239 

y. Berkshire L. Ins. Co. 96 Ind. 

510 253 

Buck V. PeopleH* Street R. & Electric Light 

& Power Co. 108 Mo. 186. 18 

S. W. 1090 306 

Bucklew T. Central Iowa R. Co. 64 Iowa. 

611, 21 X. W. 103 880,881 

Bugbee v. Union R. Co. (R. I.) 59 Atl. 

165 192 

Buhrens y. Dry Dock, E. B. & B. R. Co. 53 

Hun. 571, 6 X. Y. Supp. 234. 

Affirmed in 125 X. Y. 702, 26 

\ F 752 ^05 

Bullmore y.* Wynter. 48* L.'t.* X.* S, SOO.*.' 944 
Bullock V. Zilley, 1 X. J. Eq. 489.943. 947, 950 
Bunn V. Stuart, 183 Mo. 375, 81 S. W. 

1091 580, 581 

Buntaln Case. 15 Tex. App. 515 202 

Burges y. Thompson, 13 R. I. 712 966 

Burguleres y. Sanders, 111 La. 109, 35 So. 

478 277 

Burke y. Stlllwell, 23 Ark. 294 100 

Burlington y. Baumgardner. 42 Iowa. 673 349 
Burnett y. Com. 169 Mass. 417, 48 X. E. 

758 316 

y. Great Xorthern R. Co. 76 Minn. 

461, 79 X. W. 523 626 

Burns y. Bradford, 137 Pa. 361, 11 L. R. 

A. 726, 20 Atl. 997 492 

y. Sennett, 99 Cal. 363. 33 Pac. 916 938 

Burnside v. Twltchell, 43 X. II. 390 897 

Burr V. Knickerbocker Steam Towage Co. 

65 C. C. A. 554, 132 Fed. 248 296 
Burrlll y. Dollar Say. Bank, 92 Pa. 134. 37 

Am. Rep. 669 344 

Burton y. Plummer, 2 Ad. & El. 341 478 

y. Sturgeon, 34 L. T. X. S. 706. . . . 944 

Butler V. Myer, 17 Ind. 77 873 

y. Peck, 16 Ohio St. 336, 88 Am. 

Dec. 452 465 

T. Thompson, 52 W. Va. 311, 43 S. 

E. 174 163 

T. Tifton, T. & G. R. Co. 121 Ga. 

817, 49 S. B. 763 488 

T. Wagner. 35 Wis. 54 831 

Butte Hardware Co. y. Frank, 25 Mont. 

344, 65 Pac. 4 682 

Butterfleld v. Forrester. 11 East, 60 208 

Byrne T. Kansas City, Ft. S. & M. R. Co. 

24 L. R. A. 693, 9 C. C. A. 666, 

22 U. S. App. 220, 61 Fed. 605 289 

Cadwalader v. Howell, 18 X. J. L. 1.38.. 400 
Cagle y. Lane, 40 Ark. 465, 5 S. W. 790 . . 244 

Cain y. McGulre, 13 B. Mon. 340 828 

Caldwell y. Bowen, 80 Mich. 382, 45 X. 

W. 185 478 

y. State, 12 Tex. App. 302 210 

V. West, 21 X. J. L. 411 289 

(^alcdonian Ins. Co. v. Cooke, 101 Ky. 412, 

41 S. W. 279 268 

Callahan y. Houston, 78 Tex. 494, 14 S. 

W. 1027 366 

Calye's Case, 8 Coke, 32a, 33b 649 

654. 658, 661 

Camden v. Werninger, 7 W. Va. 528 160 

Camp V. Sturdevant, 16 Xeb. 693, 21 X. W. 

449 241 

Campbell y. Camplfcll. 118 Iowa, 131. 91 

N. W. 894 263 

V. Cook, 8« Tex. 030, 40 Am. St. 

Rep. 878, 26 H. W. 486 711 

V. Morse. Harp. L. 468 512 

y. Pullman Palace Car Co. 42 Fed. 

485 657 

Canton Female Academy v. (iilman. 55 

.MlsH. 148 263 

Card V, Alexander, 48 Conn. 492, 40 Am. 

Hep. 1 87 952 

Carkin v. Babbitt, 58 X. H. 579 S06. 904 

Carleton v. Jenks. 26 C. C. A. 265. 47 V. 

S. App. 734. 8(1 Fed. 1»37 976 

Carlin v. ChapptM. 101 Va. 34S, 47 A^ ,^^^]^ 

Rep. 722 DJgiUzed.b^3i4l7HWtL)y IC 



Carpenter y. Franklin, 89 Tenn. 142, 14 S. 

W. 484 360 

▼. Stevens, 12 Wend. 589 132 


Carr v. Porter, 1 McCord, Eq. 60 958 

Carrington v. Com. 78 Ky. 83 274 

Carry's Appeal, 75 Pa. 201 045 

Carson v. Barnes, 1 Ala. 93 100 

V. Browder. 2 Lea. 701 828 

y. Prater, 6 Coldw. 565 739 

Carter. Re, 141 Cal. 319, 74 Pac. 997 560 

y. Dale. 3 Lea, 710, 31 Am. Rep. 

666 379, 381 

Cartwright v. Smith, 104 Tenn. 689, 58 S. 

W. 331 738 

Case y. Johnson, 91 Ind. 477 885 

Caseday y. Llndstrom, 44 Or. 309, 75 Pac. 

222 482 

Cason y. Ottumwa, 102 Iowa. 99, 71 N. 

W. 192 620 

Cass y. Dillon. 2 Ohio St. 007 716 

Cassaday y. American Ins. Co. 72 Ind. 95 885 
Cassllay y. Young. 4 B. Mon. 265, 39 Am. 

Dec. 505 512 

Cattell y. Simons, 5 Beay. 396 313 

C. Aultman & Co. y. Torrey, 55 Minn. 492, 

57 N. W. 211 242 

Caupfleld y. Cook, 92 Mich. 626, 52 N. W. 

1031 914 

Cayaness y. Ross, 33 Ark. 572 826 

Central Bridge Corp. y. Lowell, 4 Gray, 

474 728 

Central Loan & T. Co. y. Campbell Com- 
mission Co. 173 U. S. 84, 4a L. 
ed. 623, 19 Sun. Ct. Rep. 346 816 

Central Park, Re.. 50 N. Y. 493 754 

Re. 63 Barb. 282 754 

Central R. Co. y. Keegan, 160 V. S. 259, 
40 L. ed. 418, 16 Sup. Ct. Rep. 

269 716, 717 

y. New Jersey West Line R. Co. 32 

N. J. Eq. 67 498 

T. Sheftall, 118 Ga. 865. 45 S. E. 

687 116 

Central Trust Co. y. Wabash. St. u & P. 

R. Co. 26 Fed. 12 711 

Chamberlain y. Chandler. 3 Mason, 245, 

Fed. Cas. No. 2,575 647 

Chambers v. Payne, 59 N. C. (6 Jones Eq.) 

276 965 

y. St. I^uis, 29 Mo. 543 753 

Chandler y. Coe. 54 N. H. 561 630, 631 

Channon y. Sanford Co. 70 Conn. 573. 41 
L. R. A. 200, 66 Am. St. Rep. 

133, 40 Atl. 462 700 

Chapman y. Western U. Teleg. Co. 88 Ga. 
763, 17 L. R. A. 430, 30 Am. 

St. Rep. 183. 15 S. K. 901 109 

Chariton Plow Co. v. Davidson, 16 Neb. 

374, 20 N. W. 256 240 

Charlotte, C. & A. R. Co. v. Giblwa. 142 
U. S. 386, 35 L. ed. 1051, 12 

Sup. Ct, Rep. 255 880 

Charlton v. Miller. 27 Ohio St. 298, 22 Am. 

Rep. 307 944. 947 

Charnley y, Wlnalanley, 5 East. 206 132 

Charouleau v. Shields (Ariz. 4 76 I*ar. 821 576 
Chase v. Kaynor. 78 Iowa, 449, 43 N. W. 

269 970 

Chaterton v. Thomas, 36 L. J. Ch. N. S. 

592 313 

Chattanooga v. Nashvllk», C. & St. L. R. 

Co. 7 Lea. 501 456 

Chattanooga Electric R. Co. v. I^nwson, 

101 Tenn. 408. 47 S. W. 489.. 746 
Chesapeake & O. R. Co. v. IlennosKey. 38 
C. C. A. 307, 314n, JM> Fed. 

713 760 

Chesapeake & P. Teleph. Co. v. I^Iackenzle, 
74 Md. 36, 28 Am. St. Rep. 219, 

21 Atl. 690 633. 035 

Chesman v. Cummlngs, 142 Mass. 65. 7 

N. E. 13 790 

Chester Glass Co. v. r)ew«\v. 16 Mass. 94, 

8 Am. Deo. 128 973 

Chicago V. Banker, 112 III. App. 94 349 

v. Collins, 175 III. 445. 49 L. R. 
A. 408, 67 Am. St. Hop. 224, 51 

N. E. 907 349 

v. Robbins, 2 Black, 418, 17 L. ed. 

298 289 

ChI(?iiRO & A. R. Co. v. Dillon, 123 111. 
570. 5 Am. St. Rep. 559, 15 

N. E. 181 664 

y. Maroney, 170 111. 520, 62 Am. 

I St. Rep. 396, 48 N. E. 953 700 

' A. 

Chicago & E. R. Co. y. Flexman, 103 Til. 

548, 42 Am. Rep. 33. .647, 657, 6Gt 
v. I^ln (Ind. App.) 72 N. E. 539. . 874 
Chicago & N. W. R. Co. v. Morehouse. 112 
Wis. 1, 56 L. R. A. 240. 88 
Am. St. Rep. 918, 87 N. W. 

849 86$^ 

Chicago, B. & Q. R. Co. v. Avery, 109 111. 

314 : 700 

y. Richardson County (Neb.) 100 

N. W. 950 460 

y. Richardson County, 61 Neb. 519. 

85 N. W. 532 45G 

Chicago Cltv R. Co. y. Lewis, 5 111. App. 

242 . 192 

y. Young, * 62* 111*. * 238*. *. *.*.'.*.!!!!!! 303 
Chicago, K. & W. R. Co. v. Bell. 1 Kan. 

App. 71. 41 Pac. 209 248 

Chicago Terminal Transfer Co. v. Walton, 

(Ind.) 72 N. E. 646 874 

Childerston y. Mammon, 9 Serg. A R. 68 . . 100 
Chlnn y. State, 47 Ohio St. 575. 11 L. R. 

A. 630. 26 N. E. 986 175 

Choen v. State, 85 Ind. 209 179, 180. 472. 

Christie Grain & Stock Co. v. Board of 
Trade, 61 C. C. A. 11, 125 

Fed. 161 65 

Chrlstensen y. Eno. 106 N. Y. 97, 60 Am. 

Rep. 429, 12 N. E. 648 81 

Christianson v. Chicago, St. P. M. & O. R. 

Co. 67 Minn. 94, 69 N. W. 640 892 
Cincinnati v. Fleischer, 63 Ohio St. 229, 58 

N. E. 568 ST 

Cincinnati Street R. Co. v. Whitcomb, 14 
C. C. A. 183. 31 U. S. App, 

374. 66 Fed. 915 305 

City Bank v. Bruce, 17 N. Y. 510 972 

Clancy v. Barker, 69 L. R. A. 653, 66 C. 

C. A. 469, 131 Fed. 161 648 

649, 651, 658, 6t>2 

Clark y. Dew, 1 Riiss. & M. 103 313 

v. Drake, 3 Pinney (Wis.) 228.. 866 
y. Glldden, 60 Vt. 702, 15 Atl. 358. 570 

y. Likens. 26 N. J. L. 209 4UO 

Clarke v. Hardgrove, 7 Gratt. 399 237. 239 

Clayton v. Clark, 74 Miss. 499, 37 L. R. A. 
771, 60 Am. St. Rep. 521, 21 So. 

565. 22 So. 189 825 

Cleghorn y. Thompson, 62 Kan. 727, 54 

L. R. A. 402, 64 Pac. 605.... 24S 

Clement y. Bank of Rutland. 61 Vt. 298. 

4 L. R. A. 425, 17 Atl. 717. . . 762 
y. National Bank. See Clemknt v. 
Bank op Rutland. 

y. Wright, 40 Pa. 250 743 

Cleveland, C. C. & St. L. R. Co. v. Miller. 

149 Ind. 490. 49 N. E. 445... 612 
Cllft v. Cllft, 72 Tex. 144, 10 S. W. 338 992 
C lough v. Ixjndon & X. W. R. Co. L. R. 

7 Exch. 26 805 

Cloyd V. Trotter, 118 111. 391. 9 N. E. 507 675 
Coal Creek Mln. Co. v, Davis, 90 Tenn. 

711, 18 S. W. 387 747 

Coape V. Arnold, 31 Eng. U & p:q. 133. . 966- 
Coates V. Chapman, 195 Pa. 109. 45 Atl. 

67tf 802 

Cobb V. Davenport. 32 N. J. L. 369. 33 

N. J. L. 223. 97 Am. Dec. 718 769 

Coffee V. Ruffln, 4 Coldw. 516 763 

, Coffey V. Sullivan. 63 N. J. Eq. 302, 49 

I Atl. 520 394 

Cohen y. Virginia, 6 Wheat. 264, 5 L. ed. 

257 658 

Cole V. Cunningham. 133 U. S. 112. 33 L. 

ed. .»n. lO .sup. i\. Ufp. ::6il. 274 
Colemau v. Chadwick, NO l»a. 81, 21 Am. 

Hep. 93 039 

Coleman CaHo. See Pkoplk ex bel. Dk- 


Coles V. Central ». & Bkg. Co. 86 Ga. 

2.-.I. J2 S. E. 749 121 

Collier V. Yoarwood, 5 Baxt. 581 743 

ColllKnon. Ke. 4 Am. Bank. Rep. 250.... 721 
Collins V, State, 46 Neb. 37. 64 N. W. 432. 648 
V. Toledo. A. A. & S. M. R. Co. 80 

Mich. 390, 45 N. W. 178 984 

Columbus V. JacqueK, 30 Ga. 506 567 

, Columbus & I. C. R. Co. v, Arnold, 31 Ind. 

! 174. 99 Am. Dec. 615 168 

Columbus Southern R. ( o. v. Wright. 151 
r. S. 470, 38 L. ed. 238, 14 

Sup. Ct. Rep. 396 451>- 

Colvard v. Mlack. llol^Sa, 643, 36 S. E. 

Digitized by VjOOvlI 



CoBinf, Re. 107 Cal. 1, 28 L. R. A. 414, 

40 Pac. 15 

Comben r. Belleville Stone Co. 69 N. J. L. 

22«, 36 Atl. 473 

Commerciftl Bulletin Co., Re, 2 Woods, 

220, Fed. Ca». No. 3.060 

Commercial Nat. Bank v. Brill, 37 Neb. 

626. 56 N. W. 382 

Com. T. Charlottesville Perpetual BIdg. 
k L. Co. 90 Va. i90, 44 Am. 

St. Kep. 950. 20 S. £. 364 

T. Dftscom, 111 Mass. 404 

T. Davidson, 91 Ky. 162, 15 S. W. 


T. Flagg. 135 Mass. 545 

y. Ford. 130 Mass. 64, 39 Am. Rep. 

426 , 

V. Harrington, 3 Pick. 26 

V. Interstate Consol. Street. R. Co. 

Ibl Mass. 436. 73 N. £. 530. . 

T. Jones, 26 Ky. L. Rep. 867, 82 S. 

W. 643 .: 

T. Lane, 113 Mass. 458, 18 Am. Rep. 


T. MGin, Addison (Pa.) 21 

T. Packard, 185 Mass. 64, 69 N. E. 


T. Parker, 108 Ky. 673, 57 S. W. 


T. Perry, 139 Mass. 198. 29 N. B. 


T. Power, 7 Met. 601, 41 Am. Dec. 

^465 646, 647. 650. 657, 

T. Rngiples, 6 Allen, 588 

T. Temple, 14 Gray, 69 302, 

Com. ex rel. Springfield v. Highway Comrs. 

, 6 Pick. 501 : 

Computing Scale Co. v. Churchill, 109 Wis. 

. ^. 303. 85 N. W. 337 

toadict T. Grand Trunk R. Co. 54 N. Y. 


Conklln T. Parsons, 1 Chand. (Wis.) 140. 
lonaer t. Henderson, 15 Mass. 319, 8 Am. 

Dec. 103 

,, ,.▼• Smith. 88 Ala. 300, 7 So. 150.. 
ConK>lidated Traction Co. v. Scott, 58 N. 
J. L. 682, 33 L. R. A. 122. 55 
r.n.1 * .^P- St. Rep. 629, 34 Atl. 1094. 
lontinental Ins. Co. v. Ruckman, 127 111. 
364, H Am. St. Rep. 121, 20 N. 

Continental Trust' Co. * v.* Toledo ' St. ' L. 'i 

r.^ « ^' C- "• Co. 72 Fed. 92 

Cooiray, Be, 124 N. Y.^455. 11 L. R. A. 

., ^ i96, 26 N. E. 1()28 

*^ook T. Stearns, 11 Mass. 533 

T. Whiting, 16 111. 480 

Cool: Coontv v. Industrial School for Girls, 

8 Am. St. Rep. 386n. 125 111. 

540. 1 L. R. A. 437, 18 N. B. 

'-ooley V. Cook. V25 Maw' 406* '//.', '/.\y, 
V. Port Wardens, 12 How. 209, 13 L. 

- „^ ed. 996 

' wlidge T. Brigham. 1 Met. 547 

' wper T. Portner Brewing Co. 112 Ga. 

894, 38 S. E. 91 

. V. Watson, 73 Ala. 252 739, 

' opelaod v. Draper. 157 Mass. 558. 19 L. 

R. A. 283, 34 Am. St. Kep. 314, 

, ^ 32 N. K. 944 

•>rbett V. Hughes, 75 Iowa, 282, 39 N. W. 


' t'l-Wn V. Winona h St. P. R. Co. 64 Minn. 

185. 60 N. W. 271 

' ire T. Faupel. 24 W. Va. 245 

trJiss T. K. W. Walker Co. 31 L. R. A. 

283, 57 Fed. 434, 64 Fed. 280 

' "^groTe T. Bennett, 32 Minn. 371, 20 N. 

W. :«60 

V. Provident Inst, for .Savings, 64 N. 

J. U 653, 4« Atl. 617 

'wello v. Wyoming. 40 Ohio St. 202, 30 

N. E. 613 

'*'iting ▼. Godard. See Cottixo v. Kan- 

HAH CiTT Stock Yards Co. 
T. Kansas City Stock Yards Co. 183 

U. S. 79, 46 L. ed. 92, 104 Sup. 

rt. Rep. 30 

' '^Ifpr V. Clark. 66 N. E. 739 

'iinty Court v. Griswold, 58 Mo. 175 

'r-ns X. Acworth I^. R. 8 Eq. Cas. 558.. 

« T. People. 82 III. 191 

••? T. lK»wnle, 14 Fla. 544 237, 
































C raker t. Chicago. & N. W. R. Co. 36 Wis. 

657, 17 Am. Rep. 504 657. 661 

Crenshaw v. Smith. 5 Munf. 415..'. 237 

Crater v. Blnnlnger, 33 N. J. L. 513, 97 

Am. Dec. 737 412,413 

Crawford v. Bj-num, 7 Yerg. 381 739 

v. Linn County, 11 Or. 482, 5 Pac. 

738 443, 444, 445 

T. Taylor, 27 Ohio C. C. 245 815 

Crawfordsville & S. W. Turnp. Co. v. 

Fletcher, 104 Ind. 9t, 2 N. B. 

243 879, 883 

Crlner v. Pike, 2 Head. 398 739 

Criswell's Appeal, 41 Pa. 299 965 

Cronin v. Gore, 38 Mich. 381 908 

Cronkhite v. Cronkhite, 94 N. Y. 323 571 

Crosdale v. Lanl)?an, 129 N. Y. 604, 26 Am. 

St. Kep. 551, 29 N. E. 824.. •.. 571 
Cross T. Lake Shore & M. S. R. Co. 69 

Mich. 303, 13 Am. St. Rep. 399, 

37 N. W. 361 984 

V. Noble, 67 Pa. 74 237, 238 

Crow v. State, 6 Tex. 334 206 

Crowley v. Chiistensen, 137 U. S. 86, 34 

L. ed. 620. 11 Sup. Ct. Rep. 13. 819 

Cumber v. Wane, 1 Strange, 420 825 

Cunningham v. Mnhan, 112 Mass. 68.... 914 
Curran v. Olson, 88 Minn. 307. 60 L. R. A. 

733, 97 Am. St. Rep. 517. 92 N. 

W. 1124 ^ 650 

Currier r. Elliot, 141 Ind. 394, 39 N. E. 

554 882 

Curtis, Re, 109 IjA. 171. 9 Am. Bankr. Rep. 

286, 94 Am. St. Rep. 445. 33 

So. 125 721. 722^ 

T. Dlnneen. 4 Dak. 245, 30 N. W. 

148 649, 652, 6.->.3, 659. 662 

T. Leasia, 78 Mich. 480, 44 N. W. 

500 903. 905, 909 

T. Woodward, 68 Wis. 499, 46 Am. 

Rep. 647, 17 N. W. 328 782 

Cashing r. Boston, 124 Mass. 434 87 

v. The John Fraser, 21 How. 184, 

16 L. ed. 106 299 

Cutler T. Pope, 13 Me. 377.... 828 

Dalbeattie S. S. Co. v. Card. 59 Fed. 159. 157 

Dale v. Shively, 8 Knn. 276 762 

Daly T. Morgan, 69 Md. 467, 1 L. R. A. 

7l>7, 16 Atl. 287. 917,920 

Daniel t. Chesnpeake & O. R. Co. 36 W. 
Va. 397, 16 L. R. A. 383, 32 
Am. St. Rep. 870, 15 S. E. 

162 748 

V. Weaver, 5 I^a, 393 897 

V. Whartenby, 17 Wall. 639, 21 L. 

ed. 061 962 

Daniels v. Barney, 22 Ind. 207 885 

V. Hart, 118 MasH. 543 890 

Dankel v. Hunter, 61 Pa. 382, 100 Am. 

Deo. 651 238 

Darling v. Butler, 10 L. R. A. 469, 45 Fed. 

332 580 

Darrow v. ScuIIIn, 19 Kan. 59 252 

Dartmouth CuUoge Cane, 4 Wheat. 518, 

4 L. ed. 029 729 

Davenport v. Buchanan. 6 S. D. 376, 61 N. 

W. 47 414 

Davidson v. New Orleans, 96 U. S. 97. 24 

L. od. 616 814, 815 

V. Phillips, 9 i'erg. 95, 30 Am. Dec. 

393 745 

Davles v. Davles, L. R. 36 Ch. DIv. 364 . . 267 

V. Mann, 10 Mees. & W. 546 191 

298. 299, 300 

Davis T. Bank of Fulton, 31 Ga. 69 98 

V. Bean. 114 Mass. 358 237 

V. Belford, 70 Mich. 120, 37 N. W. 

919 902 

V. Davis. 08 Me. 13.'.. .->6 Atl. 588.. 203 

V. Easily. 13 111. 192 7AU 

V. Field, 56 Vt. 426 47» 

V. Fogle, 124 lud. 41, 7 L. R. A. 

485, 23 N. E. 860 952 

V. Garrett, 6 BIng, 716 512 

V. Mllburu, 3 Iowa, 163 239 

V. St. Vincent's Inst, for Insane, 9 
C. C. A. 501, 15 U. S. App, 

432. 61 Fed. 277 832 

T. Sawyer, 133 Mass. 289, 43 Am. 1^ 

Rep. 519 830lC 



Davla y. Wakelee. 1R6 U. S. 680, 30 I., ed. 

578. 15 8up. C't. Rep. 555 240 

▼. Western U. Teleg. Co. 107 Kt. 

527, 92 Am. St. Kep. »71. .'>4 

S: \V. 849 268 

V. WhWden, 117 Tal. iV2l\. 49 Pac. 

766 559 

Davison v. Mure, 3 Dous;!. 28 132 

Davison's Appeal, 95 Fa. 394 947 

I>ay V. Boston, & M. R. Co. 97 Me. 528. 

55 Atl. 420 303 

Deane v. Caldwell, 127 Mass. 242 721 

Dearborn v. No rtli western Sav. Hank. 42 

Ohio St. 617, 51 Am. Itep. 851. 418 
Decker v. McSorlev, 116 Wis. 643, 93 N. 

W. 808 610 

Delahay v. Clement, 4 III. 20 1 499 

Delaplalne v. (^hlcaco & N. \V. R. Co. 42 

Wis. 214. 24 Am. Itep. 386.. 932 
Delaware Oniinty v. McDonald. 46 lowu, 

170 832 

Delaware, T.. & W. R. Vo. v. Trantweln, 

52 X. .T. L. 169. 7 L. R. A. 435. 

19 Am. St. Rep. 442, 19 Atl. 

178 984 

Deloraine v. Browne. 3 Bro. Ch, 633 402 

DeminK v. Booster, 42 N. 11. 165 976 

V. Grand Trunk R. ("o. 48 N. H. 455, 

2 Am. Rep. 267 512 

▼. Williams, 26 Conn. 231. 68 Am. 

Dec. 386 365 

De Mott V. H«iferman. 8 Cow. 220, 18 Am. 

Dec. 443 . 739 

Den ex dem. Creswlck v. Ilobson. 2 W. HI. 

695 966 

Wooden v. Shotwell, 23 N. J. L. 465 508 

Denman v. Johnston, 85 Mich. 387, 48 N. 

W. 565 613 

De Pew V. Robinson, 95 Ind. 109 88« 

Derwort v. Isomer, 21 Conn. 245 563 

De Sollar v. llanscome, 158 IT. S. 221, 39 

L. ed. 959, 15 Sup. Ct. Rep. 

816 486 

Detroit V. Board of Assessors, 91 Mich. 

78. 16 I*. R. A. 59, 51 X. W. 

787 445 

T. Lothrop Kstatc Co. 11 Det. L. N. 

6. 99 N. W. 9 436 

▼. Osborne. 135 V. S. 492. 34 L. e<i. 

260. 10 Sup. Ct. Rep. 1012.. 290 
▼. RentK. See Dktkoit v. Boakd 


Detroit Citizens' Street R. Co. v. Detroit, 

125 Mich. 673. 84 .\m. St. Rei). 

589. 85 X. W. 96, 86 X. W. 

809 440, 457 

Detroit Transp. Co. v. Board of Assessors, 

91 Mich. 382, 51 X. W. 978.. 439 
DeVaufiTlm v. Hutchinson. 165 U. S. 566. 41 

L. ed. 827. 17 Sup. C^t. Rep. 

461 959. 966 

Dewald v. Kansas City. Kt. S. & G. R. Co. 

44 Kan. 586, 24 Pac. 1101.. 249 
Dexter v. Arnold. 5 Mason, 310, Fed. Cas. 

No. 3,856 398 

Dlckerson v. (^jlgrove. 100 U. S. 578. 25 

L. ed. 618 582 

Dickinson v. Todd, 172 Mnss. 184. 51 X. 

K. 976' 860 

Dickson V. Wnldron, 135 Ind. 507. 24 L. R. 

A. 48.3. 41 Am. St. Rep. 440. 34 

X. I']. 510, 35 X. K. 1 647 

6.50. 657. (560 
Dlezl V. G. H. Hammond Co. 156 Ind. 583, 

60 N. K. 353 174 

DlnpTlev V. Boston, 100 Mmks. 544 316 

Dlsbrow V. Dlsbrow, 46 App. l>lv. 115. 61 

N. Y. Supp. 614. Attirmed In 

167 X. Y. 606. 60 X. K. 1110. . 923 
Dltberner v. Chicago. M. & St. V. R. Co. 

47 Wis. '138. 2 X. W. 69 881 

Division of Howard County, Re, 15 Kan. 

194 225 

Dixon's Appenl. 55 Pa. 424 94;; 

Doan V. Lojfan County. 3 Idaho, 38, 26 Psc. 

167 222, 227 

Doans v. State. 36 Tox. Crlm. Rep. 468. 

37 S. W. 751 206 

Dodge. Kx ijarte. 7 Cow. 147 914 

I>oe ex dem. Thonjj v. Bedford. 4 Maule 

& S. 363 959. 961 

Cock v. Cooper, 1 Kast. 229 966 

.Tones v. Davles, 4 Barn. & Ad. 43 966 
Illtchlnjjs v, Lewis, 1 Burr. 614.. 869 
Church V. Perkins, 3 T. R. 749.. 478 
■69 L. R. A. 

Donaboe v. Richards, 38 Me. 379, 01 Am. 

Dec. 256 595 

I>onaId V. Chicago, B. & Q. R. Co. 93 Iowa, 

284, 33 L. R. A. 492, 61 N. W. 

971 • 883 

Donlan v. Provident Inst, for Savings. 127 

Mass. 183. 34 Am. Rep. 358... 330 

Donnally v. llearndon. 41 W. Va. 519, 23 

S. K. 646 259 

Donnelly v. Eastes, 94 Wis. .390, 69 N. W. 

157 848. 851, 852 

D'Ooge V. lieeds, 176 Mass. 558, 57 N. E. 

1025 79 

Doremus v. Hennessy. 176 111. 608. 43 L- R. 

A. 797, 68 Am. St. Rep. 203, 

52 N. E. 924. 54 X. K. 524.. 96 

Dorr V. Fisher. 1 Cush. 271 237 

Dougherty v. llorseheads, 159 X. Y. 154, 

53 X. K. 799 87 

Doughty V. Penobscot I^og Driving Co. 76 

Me. 143 172 

Doullng v. lilckmon, 4 Hayw. (Tenn.) 170 744 
Douthltt V. Farrell, 60 Kan. 195. 56 Pac. 

9 252, 253. 254 

Douthltt Case. See Doi'tiiitt v. Fab- 


Downing v. Elliott, 182 Mass. 28, 64 N. E. 

201 821 

Drake v. Baker. 34 N. J. !.. 358 766. 767 

V. Ix)well, 13 Met. 292 620 

DrlscoU V. West End Strwt R. Co. 159 

Mass. 145, 34 X. E. 172 302 

303. 305. 308 
Dubois V. Kingston, 102 X. Y. 219, 55 Am. 

Rep. 804. 6 X. E. 273 86, 87 

Dunkley v. Van Biiren, 3 Johns. Ch. 330. 498 

Dunn V. West, 5 B. Mon. 377 100 

Dunson v. Xew York C. R. Co. 3 Lans. 

265 511 

Dupre V. Boulard, 10 I/a. Ann. 411 494 

Durham v. State, 89 Tenn; 723. 18 S. W. 


Dushane v. Benedict. 120 V. S. 630. ;W L. 

ed. 810. 7 Sup. Ct. Rep. 696. . 
Dwlnelle v. Xew York C. & II. R. Co. 120 

X. Y. 12'i. 8 L. R. A. 224, 17 

Am. St. Rep. 611, 24 N. E. 

319 647, 656, 



Eads V. Brnxelton, 22 Ark. 499, 79 Am. 
Dec. 88 

Earie v. Com. 180 Mass. 579, 57 L. R. A. 
292. 91 Am. St. Rep. 326, 63 N. 
E. 10 

Earp's Appeal. 28 Pit. 368 

East Tennessee ft W. X. C. R. Co. v. Col- 
lins, 85 Tenn. 227, 1 8. W. 

East Tennessee, V. & G. R. Co. v. De Ar- 
roond. K6 Tenn. 73, 6 Am. St. 

Rep. 816, 5 S. W, 600 

V. Watson. 94 Ala. 634. 10 So. 228. . 
V. Wright, 100 Tenn. 56, 42 8. W. 


Eaton V. Southby, Wllles. 131 

Eaves v. People's Sav. Bank, 27 Conn. 

229. 71 Am. Dec. 59 336, 

Eckford v. Evans, 56 Miss. 18 

Eddy V. I^fayette. 163 I'. 8. 456. 41 L. 
e<i. 2'J5, 16 Sup. Ct. Rep. 


Edmlnson v. Baxter. 4 Havw. (Tenn.) 112, 

9 Am. Dec. 751 

Eels V. American Teleph. & Teleg. Co. 143 
X. Y. 133. 25 L. R. A. 640. 38 

X. E. 202 63.5. 

Khrlsman v. East Harrlsburg City Pass. 
R. Co. 150 Pa. 180, 17 L. R. A. 

44S. 24 Atl, .596 

Elklns V. BoMton & M. R. Co. 19 X. H. 337, 

51 Am. Dec. 184 

) Elliott v. Cumberland Coal * Coke Co. 109 

1 Tenn. 745. 71 S. W. 749 

I V. Felton, 56 C. C. A. 75, 119 Fed. 

I 270 

V. Thompson. 4 Humph. 99, 40 Am. 

I Dec. 630 

Ellis V. Andrews, 56 X. Y. 83, 15 Am. Rep. 


V. Mills. 99 Ga. 490. 27 S. E. 740. . 
Ells, Re, 2 X. B. X. Rep. 360, 98 Fed. 

967 721. 

Ellwood V. Wolcott, 32 Kan. 526. 4 l»ac. 
1056 ^ 








Digitized by VjOOQ^IC 









J-Iirood T. Bollock, 13 T.. J. Q. B. X. S. 330 567 

Kngel T. Fitch, I^. K. 3 Q. H. 315 768. 767 

>Aiultable Life Assur. Hoc. v. McElroy. 28 

(\ (\ A. 3Hr>. 40 i;. 8. App. 

:>48, S3 Fed. 631 240 

KquiUble l.oan Sc Securltv Co. v. Warini?. 

117 (;a. r»9ft. «J I>. R. A. 93. 

!»7 Am. St. U«»p. 177. 44 S. K. 

320 r.08 

F.rickson v. Barl»er Bros. 83 Iowa. 367. 40 

.V. W. 8.38 ."ies 

iTMgTllle Street K. (^o. v. (;enlry. 147 

Ind. 40S, 37 L. R. A. 378. 62 

Am. St. Rep. 423, 44 N. K. 

311 304. 30.'i 

Krerett t. Ix>k Anseles ConHol. Klectric R. 

Co. ll.> ral. lO.'i. 34 L. R. A. 

3r»0, 46 Par. 880. 43 Pap. 207. . 102 
Krers r. Pblladelnhia Traction Co. 176 Pa. 

376. .■>3 Am. St. Rep. 674. 3.' 

Atl. 140 305 

ETeremano t. Schraltt. r>:i Ohio St. 174. 20 

L. K. A. 184, .')3 Am. St. Rep. 

632. 41 N. K. 130 '419 

Ewing T. CoddlDg. 5 Blaekf. 433 



Fthy T. North, 19 Barb. 341 132 

Fairbanks v. llaentzMche. 73 111. 236 913 

Kairbaoks r. Baneror. (>. it O. R. Co. 95 Me. 

78. 49 Atl. 421 303 

Fairbanks, M. A Co. r. BaKkelt. 08 Mo. 

App. ."»;$. 71 S. \V. 1113 976 

Fairchlld t. McMahon, 139. N. Y. 290. .36 

Am. St. Rep. 701. .34 N. K. 

TT9 414 

Falk, Ex parte. 42 Ohio St. 638 715. 716 

Farjco Gas & Coke Co. v. Farjro dan & 

Klectric Co. 4 X. I). 210, 37 L. 

R. A. .'.93. .W N. W. 1066 411 

r . 412, 413, 414 

Farley r. Harris, 186 Pa. 440. 40 Atl. 

„ 708 666 

Farmers' Bank v. Groves, 12 How. 31. 13 

L. «1. 889 763 

tanners' Loan Sc T. Co. v. Denver. U A 

a. R. < o. 60 CCA. 588, 126 

Fed. 46 242 

Farrfll v. State, 45 Ind. 371 883 

Farrow t. Wilson. U R. 4 C. P. 744 132 

faTor T. Boston ft L, R. Corp. 114 Mass. 

^ ^ 3.-.O. 10 Am. Rep. 'Mi4 66,{. 666 

F. B. Hauck Clothing Co. v. Sharpe, 83 

Mo. App. 385 872 

Penton v. Clark. 11 Vt. 5.-.7 132 

ferpison v. Harlem Sav. Bank. 43 Misc. 

w^,.. « '0' ^** ^- Y. »»PP. 825 337 

Fidelity Safe Deposit ft .T. Co. v. Arm- 

ri .J ,. "trone. 35 Fed. 567 721 

Field T. Eastern BIdjf. ft L. Ahso. 117 Iowa. 

p. 185. 00 N. W. 717 971. 973 

firemen's (*harltable Asso. v. Ross. 9 <'. 

C. A. 70. 13 U. S. App. 643, 60 

„, Fed. 4.-»6 200 

Hr«t Nat. Bank v. How, 65 Minn. 187, 

67 N. W. 004 69 

▼. Mltrholl, 34 C. C. A. 542. 92 Fed. 

565 872 

▼. Peck. 8 Kan. 663 251,252. 253 

▼. Woodman, 93 Iowa. 671. 57 Am. 
_, ^ ^ St. Rep. 287. 62 .\. W. 28. ... 263 
rlrttt 8oc. of M. R. Church v. Brownell, 

p, . 5 Iliin. 464 258 

'isher T. Oregon Short IJne ft T*. N. R. Co. 

22 f)r. .533, 16 I.. R. A. 519. 30 

... ^ Pac. 425 750 

JJ'ch V. .Sutton. 5 Fast. 230 826 

••iiXKerald v. Chapman. .33 U T. N. S. 

p.. ^ ^ 587 944 

ntrhnph t. Crophan. 2 .r. J. Marsh. 420, 

... 19 Am. Dec. 1.30 762 

y««r T. Worcester. i:i (?rav. 601 620 

Finders v. McVlckar, 7 \VIh. 372 614 

Hfmlnjr V. Way. 48 C. C. A. 748. 109 Fed. 

,,,. 0.1-j 290 

Mint T. Steadman* 36 Vt. 210 762 

Hory V. Becker. 2 J*a. St. 470. 45 Am, 

-,, I>er. 610 946 

Flurean t. Thornhlll. 2 W. BI. 1078.. 766. 767 
"ynn T. Camnt>ell, 160 Mass. 128, 35 N. 

p ^ E. '453 1-2. 173 

(.flakes V. Beer. 1.. R. Ann. C;is. 605.. 824 
*"«-? T. Middlesex Mut. F. Ins. Co. 10 

*9LR.Ar""'- '•'' "" 

Folsom V. Apple River Loc-Drlvlne Co. 

41 Wis. 602 478 

Forbes v. I'ooper, 88 Ky. 285, 11 S. W. 

24 239 

Ford v. FItthburg R, Co, 110 Mass. 240, 14 

Am. Rep. 598 938 

Fordyce v. Nelson, 01 Ind. 447 873 

Ft. Payne Rolllnjr Mill v. Hill. 174 Mass. 

224. 54 N. K. 532 142 

Ft. Smith v. Ayers. 43 Ark. 82 340 

Foster v. Davlea, 4 DeO. F. ft J. 130, 922, 92.3 

T. Park Comrs. 1.33 Mass. 321 754 

Fobs v. Ilarbottle. 2 Hare, 461 148 

Foust v. Territory, 8 Okla. 541, 58^ Pac. 

728 741 

Frankford ft I». Pass. R. Co. v. Philadelphia, 

58 Pa. 119, 98 Am. Dec. 242. . 348 
Franklin Coal Co. v. McMillan. 49 Md. 

549. .33 Am. Rep. 280 991 

Franklin Sav. Inst. v. Central Mut. F. 

Ins. Co. 119 Mass. 240. .025, 927 
Fraser t. Red River Lumber Co. 45 Minn. 

2.35. 47 N. W. 785 938 

Frasser v. Illghtower, 12 Helsk. 94 379 

380, 381 
T. Peoria County, 74 111. 282.. 762. 763 
Fredenburg vl Lyon Lake M. E. Church, 

37 Mich. 476 008 

Frederick L. Grant Shoe Co., Re, 66 C. C. 

A. 78. 1.30 Fed. 881 720, 723 

Freeman v. Illinois C. R. Co. 107 Tenn. 

340. 64 S. W. 1 747 

Fremont Carriage Mfg. Co. v. Thomsen, 

65 Neb. 370. 91 N. W. 378.. 973 
French v. Taunton Branch R. Co. 116 

Mass. 537 304 

Freund. Re. 1 Am. Bankr. Rep. 31 782 

Frlck ▼. White, 57 N. Y. 103 237 

Friend v. Burleigh, 53 Neb. 677, 74 N. W. 

50 648 

Friendly v. Lee, 20 Dr. 202, 25 Pac. 396.. 478 
Frost v. IfelfTer, 26 Colo. 338, 58 Pac. 

147 232 

Fry V. Dubuque ft S. W. R. Co. 45 Iowa, 

416 985 

Fuller y. Berger, 65 L. R. A. 381, 56 C. C. 

A. ,''.88. 120 Fed. 274 65 

T. Brown, 11 Met. 440 132 

v. Stelglltx, 27 Ohio St. 3.5.5, 22 Am. 

Rep. 312 237 

Funk V. St. Paul City R. Co. 61 Minn. 
435, 29 L. R. A. 208. 52 Am. St. 

Rep. 608, 63 N. W. 1000 890 

Furlow ▼. State, 41 Tex. Crlm. Rep. 12, 

51 S. W. 9.38 210 


(lalnes v. Green Pond Iron MIn. Co. 32 N. 

J. Eq. 86 991 

(jalbralth v. Lunsford, 87 Tenn. 89, 1 h. R. 

A. 522, H. W. 365 588 

Gale Sulky Harrow Co. v. I^aughlln, 31 

Neb. 10.3, 47 N. W. 638 648 

(»allup V. Tracy. 2.i Conn. 10 932 

(iarland v. Pamplln. 32 (Jratt. 314 364 

(Jarratt v. NIblock, 1 Russ. ft M. 620 047 

(}arth V. Caldwell. 72 Mo. 622 828 

(;artrell v. Linn, 70 (;a. 700, 4 S. K. 918. . 263 
(Jates v. Buckl, 4 C. C. A. 116. 12 V. S. 

App. 60, 53 Fed. 061 243 

V. Parmly. 03 Wis. 204. 60 N. W. 

253. 67 N. W. 730 852, 854 

(Jay v. Alter, 102 V. S. 70. 2<1 L. d. 48. . 763 
v. Fair. 175 521, 56 N. K. 

708 142 

(Javlp V. Fattle. 14 Md. 60 240 

Geitelsohn v. CltlxouB' Sav. Bank. 17 Misc. 

574. 40 N. Y. Supi). 662 330 

Gentleman, The, Olcott. 115, Fed. Cas. No. 

5.324 75 

Gentry v. Pacific Live Stock Co. (Or.) 

77 Pac. 115 482 

(Jeorge v. Hewlett. 70 Miss. 2. .35 Am. St. 

Rep. 626, 12 So. 8.55 280 

George Case. See Pkopi.b ex rkl. Li.v- 

I'OLX COI'.XTY V. (iKOltr.K. 

(fcorgia MaKonIc Ins. Co. v. Davis, 63 Ga. 

471 270 

German Ins. Co. r. (Sray. 43 Kan. 407. 8 

L. R. A. 70, 10 Am. St. ReF>. 

l.-iO. 23 Pac. 637 282 

German Sav. ft L. Soc, v. Dormltzer. 102 T'. 

S. 125. 48 L. ed. 373. 24 Sup. 

Digitized by VjOOQIC 



Tierrish t. New llaven Ice Co. 63 Codd. 

16. 27 Atl. 235 938. 939 

(iibbons v. Mahon, 136 U. 8. 549, 34 L. ed. 

525, 10 Sup. Ct. Rep. 1057 79 

80 82 
Glfford v. Rutland Say. Bank, 63 Vt. 108*, 
11 L. R. A. 704, 25 Am. St. 

Rep. 744, 21 Atl. 340 337 

v. Thompson, 115 Mass. 478 83 

Gilbert v. Bulkle.v. 5 Conn. 262, 13 Am. 

Dee. 57 762 

y. Hoffman, 66 Iowa, 206. 55 Am. 

Rep. 263, 23 N. W. 632.. 650, 655 
(Jllchrist y. Foxen, 95 Wis. 428, 70 N. W. 

585 847 

Giles y. Austin, 62 N. Y. 486 869 

Gllflllan V. Schmidt. 64 Minn. 29. 31 L. R. 
A. 547, 58 Am. St. Rep. 515, 66 

N. W. 126 626 

Gllman y. I^conla, 55 N. H. 130, 20 Am. 

Rep. Ii5 629 

Gllmore y. Federal Street & P. Valley 
Pass. R. Co. 153 Pa. 31, 34 Am. 

St. Rep. 682. 25 Atl. 651 192 

y. Philadelphia & R. R. Co. 154 Pa. 

375, 2o Atl. 774 986 

(;iancy y. Glancy, 17 Ohio St. 185 427 

<ilascock y. Rand, 14 Mo. 550 241, 244 

Globe Mut. L. Ins. Co. v. Wolff, 95 U. S. 

326, 24 L. ed. 387 240 

Glovpr V. Ilolmnn, 3 Helsk. 519 502 

Goddard y. Chaffee. 2 Allen, 395, 79 Am. 

Dec. 796 600 

▼. Grand Trunk R. Co. 57 Me. 214, 

2 Am. Rep. 39 647, 657, 661 

Godden v. Klmmell, 90 U. S. 201, 25 L. ed. 

431 242 

Goldrlck y. Rrlstol County Sav. Bank, 123 

Mass. 320 344 

Goodale y. Brockner. 25 Hun. 621 832 

y. Lawrence. 88 N. Y. 513, 42 Am. 

Rep. 259 832 

Gordon y. Gordon, 141 111. 160, 21 L. R. A. 
387. 33 Am. St. Rep. 294, 30 N. 

E. 448 313 

y. Moore, 44 Ark. 349, 51 Am. Rep. 

606 826 

y. Swift, 40 Ind. 208 99 

Gorley y. Loulsyllle, 104 Ky. 372, 47 S. 

W. 263 269 

Goulds V. Brophy. 42 Minn. 109, 6 L. R. A. 

392, 43 N. W. 834 976, 978 

<«owen y. Klous, 101 Mass. 449 631 

^Grafton y. Cummlngs, 99 U. S. 100, 25 L. 

ed. 306 631 

Graham y. Houston, 16 N. C. (4 Dey. L.) 

232 741 

y. Tllford, 1 Met. (Ky.> 112 237 

Grand y. Livlngfston, 4 Anp. Dly. 589, 38 

N. Y. Supp. 490 872 

Grand Aye. Hotel Co. v. Wharton, 24 C. C. 
A. 441. 49 U. S. App. 108, 79 

Fed. 43 976, 978, 980 

Grand Chute y. Wlnegar, 15 Wall. 373, 21 

L. ed. 174 503 

Grand Lodge of Masons y. Knox, 20 Mo. 

433 238 

(iiannls v. Hooker. 31 Wis. 474 411 

Gray v. Blanchard. 8 Pick. 284 861 

V. McWllllamR. 98 Cnl. 157, 21 L. R. 
A. 503, 35 Am. St. Rep. 163. 32 

Par, 976 404 

y. State. 72 Ind. 567 873 

(ireat Falls Mfg. Co. v. Atty. Gen. 124 U, 
S. 581, 31 L. ed. o27, 8 Sup. Ct. 

Rep. (KH 731 

y. Garland. See Grkat Falls Mfg. 
Co. V. Atty. Gen. 
Great Falls Waterworks Co. y. Great 
Northern R. Co. 21 Mont. 487, 

.-.4 Pac. 003 570 

Green v. Bridges. 4 Sim. 96 869 

V. Campbell, 55 N. C. (2 Jones Eq.) 

440 230 

▼. Chicago & N. W. R. Co. 35 C. C. 

A. 68. 92 Fed. 873 978 

V. Coos Bay Wagon Road Co. 10 

Sawy. 625. 23 Fed. 67 267 

V. Cumberland Coal & Coke Co. 110 

Tenn. 35, 72 S. W. 459 737 

742, 745 

y. Goble, 7 Kan. 297 2ii2 

V. Itlchards. 23 N. .1. Kq. 32 396 

Greene v. Merchants' & Planters' Bank. 73 

Miss. 542, 19 So. 350 487 

69 L. R. A. 

Greenwood y. Murray, 26 Minn. 259, 2 N. 

W. 945 788- 

Grewar y. AUoway. 3 Tenn. Ch. 584 .... 899 
Grlffln y. State, 109 Ttenn, 17, 70 S. W. 

61 293 

Grigg T. Landls, 21 N. J. Eq. 494 856 

860, 861 
Grlgmon y. Astor, 2 How. 319, 11 L. ed. 

283 274 

Grimes y. Shirk. 169 Pa. 83, 32 Atl. 113.. 966 
Grosvenor y. Atlantic F. Ins. Co. 17 N. Y. 

391, Overruling 6 Duer. 517.. 926 

y. Bethell, 93 Tenn. 579, 26 S. W. 

1096 899 

Groye y. Ft. Wayne, 45 Ind. 429, 15 Am. 

Rep. 262 620 

Gudf elder y. Pittsburg, C. C. & St. L. R. 

Co. 207 Pa. 629, 57 Atl. 70.. 802 

Guild y. Richards, 16 Gray. 309 860 

Gulf C. & S. F. R. Co. y. Ellis, 165 U. S. 

150, 41 L. ed. 666, 17 Sup. Ct 

Rep. 255 881 

* y. Glenk, 9 Tex. Ciy. App. 599. 30 

S. W. 278 986 

Gunning System y. Buffalo, 75 App. Diy. 

31, 77 N. Y. Supp. 987 820 

Gutherle y. Nix, 5 Okla. 555, 49 Pac. 917 629 
Guthrie y. loulsyllle & N. R. Co. 11 Lea, 

372, 47 Am. Rep. 286 746 

Guyette T. Bolton, 46 Vt. 2^8 825 


Haas y. Pueblo County, 6 Colo. 125 576 

Hackett v. Amsden, 57 Vt. 432 903 

Hadley y. Cross, 34 Vt. 586. 80 Am. Dec. 

699 562, 563 

Hagar y. Reclamation Dlst. No. 108, 111 
U. S. 701, 28 L. ed. 669, 4 Sup. 

Ct. Rep. 663 814 

Hagood y. Hutton, 33 Mo. 244 753 

Hague y. Hague, 161 Pa. 643. 41 Am. St. 

Rep. 900, 20 Atl. 261 947 

Haines y. Cadwell, 40 Or. 229, 66 Pac. 910 47S 

y. Halne«. 54 111. 77 366 

Hale y. Mechanics' Mut. F. Ins. Co. 6 

Gray, 169, 66 Am. Dec. 410.. 927 
y. Wilson. 70 Iowa, 312, 30 N. W. 

739 263 

Hall y. American Masonic Acci. Asao. 86 

Wis. 518, 57 N. W. 366 616 

y. Fire Asso. 64 N. H. 405, 13 Atl. 

648 927 

y. Ogden City Street K. Co. 13 

Utah, 243. 57 Am. St. Rep. 

729, 44 Pac. 1046.. 303. 304, 806 

y. Olterson, 52 N. J. Eq. 528, 28 Atl. 

907, on appeal 53 N. J. Eq. 

695, 35 Atl. 1130 393 

y. Rising (Ala.) 37 So. 586 62S 

y. State (Tex. Crlm. App.) 84 S. 

W. 122 :.. 118 

y. West End Street R. Co. 168 Mass. 

461, 47 N. E. 124 303 

Halleck y. Mixer, 16 Cal. 579 740 

Halley y. Alloway, 10 Lea, 523 899 

Hambel y. Hambel, 109 Iowa, 459, 80 N. 

W. 528 958 

Hamilton v. State. 75 Ind. 586 118 

y. WllKon, 61 Kan. 511, 48 L. R. A. 

238. 59 Pac. 1069 442 

Hammond v. Wilder, 25 Vt. 343 502 

Hancock v. Butler. 21 Tex. 804 990 

V. Carlton. 6 Gray. 39 868 

Hanks Case, 56 S. W. 922 203 

Hanna y. Hawes. 45 Iowa, 437 959, 960 

llanuaman y. State (Tex. Crlm. App.) 33 

S. W. 538 210 

Hanover F. Ins. Co. y. Shrader, 89 Tex. 
35, 30 L. R. A. 498. 59 Am. 
St. Rep. 25, 32 S. W. 872. 33 

S. W. 112 913, 914 

llarbaugh v. People. 40 III. 204 118 

Harral v. Ilarral, 39 N. J. Eq. 279, 51 Am. 

Rep. 17 400 

Harrencourt v. Merrltt, 29 Iowa, 71 263 

Harrington v. Berkshire Countj'. 22 Pick. 

263. :U Am. Dec. i41 316, 317 

y. Fltchbiirg Mut. F. Ins. Co. 124 

Mass. 126 927 

Harris y. Ryding, 5 Mees. & W. 60 6.39 

641, 642 
▼. Scovel, 85 Mlch^32, 48 N. W. 

1'^ Droitr^tiw'^' ••■«»«' »«^'0<>^ 



Harrison t. TTpnd^Tfion. 4 rSn. in« JOl 

T. Middleton, 11 Gratt. 527 478 

lUrrisiou jiaucu. >\ork8 v. liclipor, 64 Tex. 

j^g _ ^ 251 

Htrt T. Vinsant/ V HelVk. ' sie*. !! !!!!!! ! 740 

743, 74jl, 746 
Hartford ft S. Ore. Co. t. Miller, 41 Conn. 

113 763 

Hartford F. Ins. Co. v. Bourbon County 

Court, 24 Ky. L. Rep. 1850, 

72 S. W. 739 268 

▼. Olcott, 97 111. 439 926 

Harwood ▼. Mulry, 8 Gray 250 478 

T. Wentworth. 162 U. S. 547, 40 

U ed. 1069, 16 Sup. Ct. Rep. 

890 716 

HaaUns ▼. Royster. 70 N. C. 601, 16 Am. 

Hep. 780 96 

Hastings t. LoTeJoy, 140 Mass. 261. 54 

Am. Rep. 462, 2 N. B. 776 825 

T. Vaugfan, 5 C<il. 315 580, 581 

T. Westchester F. Ins. Co. 73 N. 

Y. 141 926 

Hathaway ▼. Orient Ins. Co. 134 N. Y. 

409. 17 L. R. A. 514. 32 N. 

E. 40 927 

Hatton ▼. Gray. 2 Ch. Cas. 164 396 

Hank t. Bn>wnell, 120 111. 161, 11 N. B. 

416 414 

Uawralty r. Warren, 18 N. J. Eq. 124, 90 

Am. Dec. 613 396 

Hay T. Com. 183 Mass. 294, 67 N. E. 384 315 
Harden ▼. Fair Haven ft W. R. Co. 76 

Coon. 355. 56 Atl. 613 3.')5 

▼. Hozle, 27 111. App. 533 478 

Haydock t. Haydock, 34 N. J. Bq. 575, 38 

Am. Rep. 385 394 

Haynts t. East Tennessee ft G. R. Co. 3 

Coldw. 222 747 

Haja, F. ft W. Co. Re, 117 Fed. 879.. 720, 722 

Haxard t. Durant, 11 R. I. 195 313 

Heam y. Boston ft M. R. Co. 67 N. H. 

320. 29 Atl. 970 487 

Hcaslett v. Spratlln, 54 Ark. 185, 15 8. 

W 461 826 

Hebard t. Scott, 95*TennV467,* 32 8.' w'. 

890 741, 742 

Heioafnrter, Re, 97 Fed. 198 721 

HeUe T. Helse, 31 Pa. 246 943 

HelmeUg t. Frank, 61 Ala. 69 363 

Hematite Min. Co. v. East Tennessee V. 

ft G. R. Co. 92 Ga. 268. 18 S. 

E. 24 479 

Uemenway t. Hemenway. 181 Mass. 406, 

63 N. E. 919 81 

Hemner v. Cooper. 8 Allen. 334 414 

Hemp T. Garland, 4 Q. B. 519 251 

Henderson ▼. Fox. 80 Ga. 479. 6 8. E. 164. 486 
Y. State, 137 Ind. 552, 24 L. R. A. 

469, 36 N. E. 2o7 882 

T. Walker, 55 Ga. 481 711 

HeadenoB BIdg. ft L. Asso. t. Johnson, 

88 Ky. 191. 3 L. R. A. 289, 

10 S. W. 787 422 

Bennington v. Geor^rla, 163 U. 8. 299, 41 

L. ed. 166, 16 Sup. Ct. Rep. 

1086 713 

Henry r. Davis, 13 W. Va. 230 . . . : 160 

y. Tnpper. 29 Vt. 358 856 

Ileaahaw ▼. Bissell, 18 Wall. 271, 21 L. 

ed. 840 591 

T. Foster, 9 Pick 312 187, 188 

Herbert t. Wren, 7 Cranch. 380, 3 L. ed. 

37g 992 

Hercules Mur. LiVeAssur.* Soc. V. Blinker, 

„ ^ 77 N. Y. 435 182 

Hemdon r. Harrison, 34 Miss. 486, 69 Am. 

Dec. 399 762 

Hemsbelm Bros. r. Newport News ft M. 

Valley Co. 18 Ky. L. Hep. 227, 

3.1 8. W. 1115 512 

Herrick t. Minneapolis ft St. h. R. Co. 31 

Minn. 11. 47 Am. Rep. 771, 16 

X. W. 41.% 32 Minn. 435, 21 

„ , N. W. 471 881 

Herring t. i'besapeake ft W. R. Co. 101 Va. 

778. 45 S. E. 322 511 

llerrod t. BlaoMMirn, 56 Pa. 103. 94 Am. 

j}^ 49 238 

Hertep t. Mullen. 159' N. V. 34.' '4*4' L. 'r.' A*. 

703. 70 Am. St. Hep. 517, 53 

„ . N. E. 700 962 

He«e1toa v. Lister, Cooke. C. P. 88 181 

ll«« V. Rosenthal, 160 III. 621, 43 N. B. 

,, 743 700 

IW«or, Re, 144 N. Y. 271, 39 N. E. 393. 721 
»L.R. A. 

nexter ▼. United States L. Ins. Co. 91 Ky. 

356, 15 8. W. 863 268 * 

HIbernia Sav. ft L. Soc. v. San Francisco, 
139 Cal. 205, 96 Am. St. Rep. 

100, 72 Pac. 920 70 

Illchens v. Congreve. 4 Russ. Ch. 562 149 

Hicks T. Com. 86 Va. 223, 19 Am. St. Rep. 

891. 9 8. E. 1024 182 

V. Trederlcks. 9 Lea, 491 741 

HIggins V. Senior, 8 Mees. ft W. 834 630 

HIgglnson v. Nahant, 11 Allen, 530.. 754, 810 
Illffh V. Berret, 148 Pa. 261, 23 Atl. 1004. 412 
Highland Ave. ft Belt R. Co, v. Winn, 93 

Ala. 306, 9 So. 509 612 

nigh School Dlst. No. 137 v. Lancaster 
County, 60 Neb. 147, 49 L. R. 
A. 343, 83 Am. St. Rep. 625, 

• 82 N. W. 380 453 

Ulleman v. Bouslaugh, 13 Pa. 344. 53 Am. 

Dec. 474 958. 960, 961 

Hill T. Barclay, 16 Ves. Jr. 402, 18 Ves. 

Jr. 56 868, 869 

V. Freeman, 7 Ga. 211 484 

V. Harrimauj 95 Tenn. 305, 32 8. 

W. 202 763 

y. Morgan (Idaho) 76 Pac. 323.. 229 
y. State, 17 Wis. 675, 86 Am. Dec. 

736 478 

y. West End Street R. Co. 158 

Mass. 458. 33 N. E. 582 307 

HIndman v. Toney, 97 Ky. 413. 30 8. W. 

1006 272 

HIrth y. Graham. 50 Ohio St. 57, 19 L. R. 
A. 721, 40 Am. St. Rep. 641, 33 

N. B. 90 828 

Hiss y. Bartlett, 3 Gray, 473, 63 Am. Dec. 

768 558 

Hlxon y. Lowell, 13 Gray, 61 619 

Hochster v. De La Tour, 2 El. ft Bl. 678 804 

Hodges y. Eddy, 38 Vt. 327 741 

y. Standard Wheel Co. 152 Ind. 

680. 52 N. E. 391, 54 N. E. 383 170 
y. Western U. Teleg. Co. 133 N. C. 

225, 45 8. E. 572 634 

Hoffman v. Muscatine, 113 Iowa. 332, 85 

N. W. 17 629 

Hofnagle y. New York C. ft H. R. R. Co. 55 

N. Y. 608 172 

Holhrook v. Blodget, 5 Vt. 520 825 

Hollehbeck v. Missouri P. R. Co. 141 Mo. 

97, 38 8. W. 723, 41 8. W. 887 383 
Hollis y. Burgess, 37 Kan. 487, 15 Pac. 

536 396 

Holman, Ex parte. 28 Iowa, 88, 4 Am. 

Rep. 159 962 

Holmes y. Clisby, 118 Ga. 823, 45 S. E. 

684 116 

y. Clisby, 121 Gn. 241. 104 Am. St. 

Rep. 103. 48 8. E. 934 116 

y. Reynolds, 55 Vt. 39 872 

V. Sinnickson. 15 N. J. L. 313 766 

V. Smythe, 100 III. 413 422 

Holt V. People. 23 Colo. 1. 45 Pac. 374,. 475 
Holyoke Water-Power Co. v. Lyman, 15 

Wall. 500. 21 L. ed. 1.S3 935 

Hooper v. Great Northern R. Co. 80 Minn. 

400, 83 N. W. 440 891 

Hoosier Stone Co. v. McCain, 133 Ind. 231. 

31 N. E. 956 168, 169, 170 

Hopkins y. Grazebrook, 6 Barn, ft C. 31.. 766 


Hopper y. Moore. 42 Iowa, 563 258 

Horn V. Ludlngton. 28 Wis. 81 614 

V. Perry. 11 W. Va. 694 160 

Home y. Lyeth, 4 Harr. ft J. 435 959. 960 

Horner v. Philadelphia, 194 Pa. 542, 45 

Atl. 330 87 

y. Watson. 79 Pa. 242, 21 Am. Rep. 

55 640 

Hornsby v. Eddy, 5 C. C. A. 560. 12 U. 8. 

App, 404. 56 Fed. 461 711 

Hotchkiss V. National Shoe ft Leather 
Bank, 21 Wall. 354, 22 L. ed. 

645 245 

Houghton, Ex parte, 1 Ix)w. Dec. 554, Fed. 

Cas. No. 6.725 721 

y. Huron Copper Min. Co. 57 Mich. 

547. 24 N. W. 820 753 

Hourigan v. Norwich. 77 Conn. 358, 59 

Atl, 487 031 

House Bill No. 1.291, Re. 178 Mass, 605, 

54 L. R. A. 430. 60 N. E. 129. 187 
Hovey y. Elliott, 167 U. S. 409, 42 L. ed. 

215. 17 Sup. Ct. Rep. 841 813 

Howard v. Denver ft R. G. R. Co. 26 Fed. 

837 171, 749^ 

Digitized by ' 

. . .XII, 14V 

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Howard v. Fanshawe [1895] 2 Ch. 580, 

8«8, 86» 

V. McDonough. 77 N. Y. 592 478 

V. Whetstone Twp. 10 Ohio, 365.. H:\2 

Howe V. Batchelder. 49 N. H. 204 828 

Howes v. District of Columbia, 2 App. D. 

p ] gu ^ ^ ' JHQ 

Howland v. Bradley.' 38 ' N. j'.* Rq. '288! '.! ! 390 
Hoyle V. IMattsburuh ft M. R. Co. 34 N. Y. 

3ir». 13 Am. Kep. 595 897 

Hoyt V. Hudson, 27 Wis. 656, 9 Am. Rep. 

473 629 

V. Spraunie, 103 I'. S. 013, 26 L. ed. 

585 407 

Hubl)ard v. (Jreeley. 84 Me. 340, 17 L. R. 

A. 511, 24 Atl. 799 580, 581 

y. Hubbard. 97 Mass. 188, 93 Am. 

Dec. 75 86(lt 861 

T. Taunton, 140 Mass. 467, 5 N. 

E. 157 819 

Hubbell V. Meigs, 50 N. Y. 480 414 

Huddleston v. Askey. 56 Ala. 218 100 

Hugerty v. White, 69 Wis. 317, 34 N. W. 

92 866 

Humphries ▼. Brogden, 1 Eng. L. & Eg. 

241 639, 641 

Hungerford v. Redford, 29 Wis. 345 744 

Hunt T. Lake Shore & M. S. R. Co. 112 

Ind. 69. 13 N. E. 263 883 

▼. Standart, 15 Ind. 33, 77 Am. 

Dec. 79 873 

Hunter v. Bills, 3 Tenn. Cas. 97 741 

V. Burnsville Twp. Co. 66 Ind. 213 883 

T. Davis, 19 Ga, 413 485,486 

V. Western U. Teleg. Co. 135 N. C. 

469, 47 8. E. 745 404, 405 

Hunter's Case. See Huntbk v. Wkstbrn 

U. TULEQ. Co. 

Huntington v. Knox, 7 Cush. 371 630 

Huntsman t. Hooper, 32 Minn. 163. 20 

N W 12 1 . . ... 789 

Hurtado v. California," VlO U.' 8. ' 516! 28 

L. ed. 232, 4 Sup. Ct. Rep. Ill 469 


Hutchinson v. State, 36 Tex. 293 183 

Hyman y. State, 87 Tenn. 109, 1 L. R. A. 

497, 9 S. W. 372 737 

Ide T. Lelser. 10 Mont. 5. 24 Am. St. Rep. 

17, 24 Pac. 696 396 

Illinois C. R. Co. V. Bentz. 108 Tenn. 670, 

68 L. R. A. 690, 91 Am. St. 

Rep. 763, 69 S. W. 317 747 

V. Illinois, 146 IT. S. 445, 36 L. ed. 

1039^ 13 Sup. Ct. Rep. 110 932 

y. Spence, 93 Tenn. 173. 42 Am. St. 

Rep. 907. 23 S. W. 211 747 

Illinois Commission Co. v. Cleveland 

Teleg. Co. 56 C. C. A. 205, 

119 Fed. 301 59 

Indiana. B. & W. R. Co. v. Dalley. 110 Ind. 

75. 10 X. E. 631 887 

Indiana Car Co. y. Parker, 100 Ind. 181 . . 168 

170. 172, 938 
Indianapolis v. Huegele, 115 Ind. 581, 18 

N. E. 172 883 

Indianapolis & St. L. R. Co. y. Johnson, 

102 Ind. 352. 26 N. E. 200. . . . 170 
Indianapolis, B. & W. R. Co. v. Hartley, 67 

111. 439. 16 Am. Rep. 624 636 

Indianapolis. C. & L. R. Co. y. Hamilton, 

44 Ind. 76 665 

Ingalls y. Bills, 9 Met. 1, 43 Am. Dec. 

346 563 

Inland & Seaboard Coasting Co. y. Tolson. 

139 U. S. 551. 35 L. ed. 270, 

11 Sup. Ct. Rep. 653 290 

InternatlonnI BIdR. & L. Asso. No. 2 y. 

Wall. 153 Ind. 554, 55 N. E. 

431 421 

Iowa Lumber Co. v. Foster, 49 Iowa. 25, 31 

Am. Rep. 140 971 

Iowa Sav. & L. .\sso. v. Heldt. 107 Iowa. 

207. 43 L. R. A. (>S0. 70 Am. 

St. Rep. 107, 77 N. \\. 1050.. 421 
Iowa State Sav. Bank v. Burllnpton, 08 

Iowa, 7.'^9. 01 N. W. 851 81 

Irish y. Smith, 8 Serg. & R. 573, 11 Am. 

Doc. 648 050 

Iron R. (?o. V. I^wrence I'^nrnace Co. 49 

Ohio St. 102, 30 N. K. 616 81 

69 L. R. A. 

Isaacs y. Price. 2 Dill. 351. Fed. Cas. No. 

7.097 501 

Isbell y. New York & N. H. R. Co. 27 Conn. 

39;j. 71 Am. Dec. 78 191 

Island Coal Co. v. Swaggerty. 159 Ind. 

664. 62 N. E. 1103. 65 N. E. 

1026 168. 17(> 

Ives y. Van lOpps. 22 Wend. 155 236. 23>i 


Jackson v. Staurteld. 137 Ind. 592. 23 L. 
R. A. ,->88. 36 N. E. 345. 37 N. 

E. 14 97 

v. State. 104 Ind. 516, 3 N. E. 863. .%<)2 
y. State. 87 Md. 194. .39 Atl. .'iOS . . 916 
JackKou ex dem. Ireland v. Hull. 10 Johns. 

481 498 

Jackson County v. State. 147 Ind. 476, 46 

N. E. 908 871> 

Jacobus V. (Congregation of Children of 
Israel. 107 Oa. 518, 73 Am. St. 

Rep. 141. 33 S. E. 853 Ill 

Jaffray v. Davis. 124 N. Y. 164. 11 L. R. 

A. 710, 26 N. B. 351 82.'> 

Jamea County v. Hamilton County, 89 

Tenn. 237. 14 S. W. 601 22:i 

225. 228 
James D. I^ary. The, 110 Fed. 685. 51 

C. C. A. 620. 113 Fed. 1019.. 2J>9 

Jaques y. Esler. 4 N. J. Eq. 461 237. 23» 

Jarecki Mfg. Co. v. McEIwalne. 5 Am. 

Bankr. Rep. 751, 107 Fed. 249 782 
Jebaen y. East & West India Dock Co. L. R. 

. 10 r. P. 300 157 

Jefferson, Re, 2 Am. Bankr. Ren. 206. 93 

Fed. 948 720. 722 

Jeffrey y, Owen. 41 N. J. L. 260 741 

Jencks y. Coleman, 2 Sumn. 221. Fed. 

Cas. No. 7,258. .646. 650. 657.660 
Jenson y. Chicago, St. P. M. & O. R. Co. 
86 Wis. 589. 22 I,. R. A. 680. 

57 N. W. 359 664 

Jesson y. Doe. 2 Rligh. 1. 10 English Rul- 
ing Cases. 714 956. 957. 966 

J. I. Case Plow Works y. Nlles & S. Co. 90 

Wis. 590. 63 N. W. 1013 976 

Johnson v. Buck. 35 N. J. L. 338, 10 Am. 

Rep. 243 .S06 

y. Elwood, 53 N. Y. 431 744 

v. Gere, 2 Johns, Ch. .546 237 

y. Jackson. 27 Miss. 498. 61 Am. 

Dec. 522 70,^ 

y. Mehaffev. 43 Pa. 308. 82 Am. 

Dec. .lOS 903. 904, 905. 909 

y. Meyers. 4 C. C. A. 309. 12 U. S. 

App. 220. .54 rVd. 417 014 

v. Philadelphia & R. R. Co. 163 Pa. 

127, 29 Atl. 854 HHll 

y. St. Paul & D. R. Co. 43 Minn. 222. 

8 L. R. A. 419, 45 .\. W. 156. 889 
y. Skillman, 29 Minn. 05, 43 Am. 

Ren. 102. 12 N. W. 149. ..570. 57t 
y. Southern Mut. L. Ins. Co. 79 Ky. 

406 266 

y. State. .59 N. J. L. 535. 38 L. R. 
A. 37.3, 37 Atl. O^il. 39 Atl. 

646 771 

V. State, 39 Tex. Crim. Rep. 625. 

48 .S. W, 70 197 

Johnson County v. Thayer. 94 IT. S. 631. 

24 L. ed. i'.V,\ 972 

Johnston v. Farmers' F. Ins. Co. 106 

Mich. 06. 64 N. W. 5 907 

Johnstone v. Milling. L. R. 16 Q, B. Dlv. 

460 804 

Jones y. Conde. 6 Johns. Ch. 77 408 

y. (iilreath. 28 N. C. (6 Ired. L.) 

33S 99 

y. MInneapoH.^ & .St. L. R. Co. 91 
Minn. 220, 103 .\m. St. Rep. 

.".07. 07 N. W. S03 512 

y. Morgan. 1 <'h. 'J'JO 0.">7 

V. Hohbitis. s cJray. 32J) 47.'^ 

V. Stanly. 76 N. C. 3.'>5 9(? 

y. StntP. 34 Tex. CrIm. Ron. 402. 30 

S. W. 10.".5K 31 S. W. <M;4 20.*l 

V. Wnjfn«>r. (>ii i'a. 42!>, 5 Am. Rep. 

3S5 (142 

Jordan v. Ad:ini.s, C. B. N. S. 4 S3 05R 

Juugblum y. Mlnnon noils. N. T, & S. W. U. 

<'o. TO MIt'm. 1 ".:»,. — ' > *~i i\'2i* 

Justice y. Pennsylvania Co. i:?0 Ind. 321, 

30 N. E. 303..^-., ^... 170 

Digitized by VjOOQIC 



Kalleck v. Deerlns, 161 Mass. 409, 42 Am. 

St. Itep. 421. 37 N. K. 450 172 

KaoMS City Land Co. v. Hill, 87 Tenn. 

i»89. 5 L. R. A. 45, 11 8. W. 

797 76.3 

Kanns P. R. Co. v. Peavey. 29 Kan. 169, 

44 Am. Rep. 6:{0 881 

A'eates r. Cadogan, 2 Rnf?. L. ft Kq. 320, 

lU C. B. 591 976, 977 

Keegao Case. See Central R. Co. v. 


AeeaaD t. Union Traction Co. 202 Pa. 107, 

58 I^ R. A. 217, 51 All. 742 192 

T. Waters. J 81 Pa. 247, 37 Atl. 342 799 
Kelley r. Boettcher. 29 C. C. A.. 14, 56 

r. S. App. 363. 85 Fed. 55 . . 242 
Kfllny T. Missouri P. R. Co. 101 Mo. 67, 

8 L. U. A. 783, 13 8. W. 806. . 392 
Kellogg V. Dickinson, 147 Mass. 432, 1 L. 

R. A. 346, 18 N. K. 223..^... 267 
Kellogg Brld|;e Co. y. Ilamtiton. 110 U. 

S. 108, 28 L. ed. 86, 8 8ap. Ct. 

Rep. .'537 9i«. 977, 980 

Kelly T. Deefi^an. Ill Ala. 152. 20 So. 378. 992 
T. PittBbnrjrh, 104 U. 8. 79, 26 L. 

ed. 659 814 

Kendall v. J. I. Porter Lumber Co. 69 Ark. 

442, 64 S. W. 220 828 

Kendrick t. Beard, 90 Mich. 589, 51 N. W. 

645 907 

Kpnnedy v. c;ihson, 68 Kan. 612, 75 Par. 

1044 252. 253 

K<>nney t. Hannibal k St. J. R. Co. 70 

yio. 252 520 

Ki>Q!ilngton Bank t. Patton. 14 Pa. 481, 53 

Am. Dec. 564 262 

Kentucky Mut. Security Fund Co. t. Tur- 
ner, 89 Ky. 605, 13 ». W. 104. 269 
KfTJIn y. Chicago. I*. & St. L. R. Co. 50 

vn.i is« ♦ 748 

Kemer t. Baltimore & O. S. W. R. Co. 149 

.u^. .1. 4« N. K. 364 170 

K^ves V. Cyrus, 100 (*al. 322, 38 Am. St. 

Rep. 29($. 34 Par. 722 70 

Keyl y. Peuchter. 56 Ohio St. 424. 47 N. 

E. 140 427 

Klene y. Gmehle, 85 Iowa, 312, 52 N. W. 

'S^'2 958. imt. 961 

Kllboum y. Thompson, 103 U. S. 182, 26 

L. ed. 384 814 

Kllgore y. Brtire, 106 Mass. 136. 44 N. R. 

108 414 

KUnbrougb y. Klmbrouyh, 99 Ga. 134. 25 

8, R. 176 363 

Klncald y. Brittalu. 5 Sneed. 119 762, 763 

KiDcblow y. Midland RIeyator Co. 67 Kan. 

ST.'i. 46 Pac. 703 913 

King y. Hlerlns. 2 Kast. 5 181 

T. JoUlffe, 4 T. R. 285 470. 474 

y. St. Asaph, 3 T. R. 428 107 

y. Sewer Comrs. 8 Barn. & C. 355. . 464 

y. Smith. 4 Esp. 109 567 

y. State Mut. F. Ins. Co. 7 Cush. 6, 

.54 Am. Der. 683 927 

y. Welcome. 5 CJray, 41 158 

Ktagsley v. 8lehre<ht. J»2 Me. .10. 69 Am. 

St. Rep. 486, 42 Atl. 249 631 

Klnne v. Webb. 4 C. (\ A. 170. 12 U. 8. 

App. 137. 54 Fed. .34 242 

KlQoey y. Com. 30 Oratt. 858, 32 Am. Rep. 

690 494 

Kirk T. Furgerson. 6 Coldw. 483 377 

Kittrell y. State. 104 Tenn. 522, 58 8. W. 

120 293 

KUlse y. State. 27 Wis. 462 831 

Klein y. New York L. Ins. Co. 104 V. S. 

88. 26 L. e<l. 602 853. 855 

Kline y. Klectric Tra'-tlon Co. 181 Pa. 

276. 37 Atl. .")22 190 

Klockenbrink y. St. lx>uiB & M. River R. 

Co. 172 Mo. 078. 72 S. W. 900 392 

Klopfpr y. B rem me. 20 WI.h. 372 124 

Knapp y. Lee. 3 Pick. 4.V2 2 40 

Koauss y. Brnn, 107 Pa. 85 402 

Knljjht y. Bean. 22 Me. 531 132 

Knowlton V. WllllaniM. See Atty. (;e.n. v. 


Koser y. Kane. ."» I.ei>5h. 606 239 

Kohl T. Unlt'd Sffttt-s. 91 U. 8. 367. 23 L. 

ed. 449 720 

Koontz y. Orccfin R. &. Nav. Co. 20 Or. 3, 

23 Par. 820 479 

Kopeike y. Kopelke. 112 Ind. 435, 13 N. 

E. U*J5 873 

«9 L. R. A. 

Krom y. Levy. 1 Hun. 171 478 

Kummel y. Oerroania Say. Bank. 127 N. 

Y. 488. 13 L. R. A. 786. 28 N. 

E. 398 324. 33T 

Ladd y. AndrosoofTRln County Say. Bank, 

96 Me. 520. 52 Atl. 1016 339 

y. Augusta Say. Bank. 96 Me. 510, 

58 L. R. A. 288, JS2 Atl. 1012. .337 


y. Boston. 170 Mass. .332. 40 L. R. 

A. 171, 49 N. K. 627 311 

I^fayette y. Alien, 81 Ind. 166 886 

I^flln V. Chicago, W. & N. R. Co. 33 Fed. 

415 731 

IJiFolIett V. Mitchell. 42 Or. 465, 95 Am. 

St. Rep. 780. 69 Pac. 916 482 

Laird v. Chicago, R. 1. & P. R. l^o. 100 

Iowa, 336, 69 N. W. 414 98i^ 

I^ke Erie & W. R. Co. v. McFall (Ind.) 

72 N. K. 552.-. 874 

Lake Shore A M. 8. R. Co. y. Richards, 30 

L. R. A. 33, n. 44, 152 III. 

Ii9, 38 N. E. 773 76a 

I^mar y. Cottle, 27 lia. 265 98 

Lamb v. State. 67 Md. 524. 10 Atl. 208.. 1814 
Lumson Consol. Store Service Co. v. Bow- 
land, .'.2 C. C. A. .33.5. 114 

Fed. 6.39 721 

r^ndon y. White. 101 Ind. 249 887 

liang y. Henry, .•.4 N. H. 57 630 

Langan v. Atchlnon. 35 Kan. 322, 57 Am. 

Rep. 16.^, 11 Pac. ,38 621 

r^Anslng y. Hrtynes. 95 Mich. 16, 35 Am. 

St. Rep. 645, 54 N. W. 699 942 

946. 947, 948, 950 

I^rge y. Dennis. 6 Sneed, 597 744 

Latham v. Shipley, 86 Iowa, 543. 53 N. 

W. .342 97« 

lAundry License Case, 22 Fed. 703 349 

lAvallee v. St. Paul. M. & M. R. Co. 40 

Minn. ::49, 41 N. W. 974 889 

Law y. DougiitsH, 107 Iowa, 606, 78 N. W. 

2^2 , 958 

XAwe y. Hyde. 39 wis".' 345. '.!!!!;!!!!.* ! 866 
I>awrence v. .Montgomery. 37 Cai. 183.... 762 
v. Springer, 49 N. .7. Kq. 289, 31 

Am. St. Rep. 702. 24 Atl. 933 571 

Lawton y. Sager, 11 Barb. 349 580 

Laythoarp v. Bryant, 2 Bine. N. C. 744.. 396 

I>each y. I^mlieth, 14 Ark. 668 lOO 

I.eake y. Benxon. 29 (}ratt. 156 365 

Ijease v. Pennnylvania Co. 10 Ind. App. 47, 

37 N. K. 423 88.^ 

licathcrs y. Oray. 96 N. C. 548, 2 8. E. 

455 96T 

Leavenworth County y. Chicago, R. I. & P. 

R. Co. 134 11. S. 6H8, .33 L. 

ed. 1064, 10 Sup. Ct. Rep. 708. 142 

Leavitt y. CxiUer. 37 Wis. 46 123 

Ix?e V. Cherry, 85 Tenn, 707, 4 Am. St. 

Rep. 800. 4 S. W. 835 396 

T. J. B. Sickles Saddlery Co. .38 Mo. 

App. 201 976 

y. Minneapolis. 22 Minn. 13 629 

y. Richmond. 90 Iowa, 695. 57 N. 

W. 613 580. 581 

y. Union Cent. L. Ins. Co. 22 Ky. L. 

Rep. 1712, 56 S. W. 724.. 269, 270 
I^e's Estate, 207 Pa. 218, 56 Atl. 425... 945 
Leeper y. State. 29 Tex. App. 154, 15 8. 

W. 411 205 

I>»es v. Mosley, 1 Younge Sc C. Kxch. 589. 906 
l^ehman v. McBrlde. 15 Ohio St. 573. .715, 71ft 

y. Mahler. .34 La. Ann. 319 263 

Iceland v. Isenbeck. 1 Idaho, 469 582 

Lemon y. Stevenson. 36 111. 49 99 

Leonard v. Ilughlett. 41 Md. 380 263 

y. Sparks. 117 Mo. 103. .38 Am. St. 

Kep. 6 10, 22 S. W. S99 ,'502 

I^eopold v. VanKlrk. 27 Wis. 152 976 

Lerned v. Johns. 9 Allen. 419 631 

Lerov v. Beard. S IIow. 451. 12 L. ed. 1151 762 
Ix'atcr y. .Tnckson, 09 MIhh. SS7. 11 So. 

114 753 

Levin y. MemphlH & C. R. Co. 109 Ala. 332, 

19 So. .395 612 

Levy v. Franklin Sav. Bank. 117 Mass. 

44S 34 1 

I>ewl8 v. Lewis. 5.S Kan. 501. 50 Pac. 4.'»4 . 252 
v. State, 148 Ind. 3 Hi, 47 N. K. 

075 S70 

Lexington v McOnlllon 9 D.ihii. 513. :i5 

Am. Dec. 159 4 42 

Digitized by VjOOQIC 



Licking County Sav. Loan ft Bldg. Asso. 

y. Bebout, 20 Ohio St. 252 419 

Linch Y. Saffamore Mfg. Co. 143 Mass. 

206, 9 N. K. 728 760 

Little y. Hackett, 116 U. 8. 366, 29 L. ed. 

652. 6 Sup. Ct. Rep. 391 219 

Xlttlewood y. Smith, 1 Ld. Raym. 182 828 

Llylngston y. McDonald, 21 Iowa, 160, 89 

Am. Dec. 564 466 

Xloyd. Re, 51 Kan. 501, 33 Pac. 307 182 

y. Farrell, 48 Pa. 73, 86 Am. Dec. 

563 238 

Xocke y. Locke, 67 Ala. 475 100 

Lofton y. Collins, 117 Ga. 434, 61 L. R. A. 

150, 43 8. E. 708 567 

Losan T. Moulder, 1 Ark. 313, 33 Am. Dec. 

338 762 

Lohr y. PhlllDsburg, 156 Pa. 246, 27 Atl. 

133 492 

Xioring y. Manufacturers' Ins. Co. 8 Gray, 

28 927 

Loughran y. RosV. * 45 N.' Y.* 792, * 6* Am. 

Rep. 173 767 

Louisyllle y. KudIk. 104 Ky. 584, 47 S. 

W. 592 269 

liOUisyille ft N. R. Co. y. Bowler, 9 Heisk. 

866 746 

T. Edmund, 23 Ky. L. Rep. 1049, 

64 S. VV. 727 748 

T. Gidley, 119 Ala. 523, 24 So. 

753 612 

y. Jackson, 106 Tenn. 438, 61 S. 

W. 771 747 

T. Johnston, 79 Ala. 436 612 

y. Lahr, 86 Tenn. 335, 6 S. W. 663. 746 
y. Martin, 87 Tenn. 398, 3 L. R. A. 

282, 10 S. W. 772 747 

T. North ington, 91 Tenn. 56, 16 L. 

R. A. 268, 17 S. W. 880 746 

T. Roberston, 9 Heisk. 276 747 

lK>ulsyllle, E. ft St. L, Consol. R. Co. y. 

Hannlng, 131 Ind. 528, 31 Am. 

St. Rep. 443, 31 N. E. 187 168 

169. 170 
y. Utz, 133 Ind. 265, 32 N. B. 881. 938 
Louisyllle, N. A. ft C. R. Co. y. Bryan, 

107 Ind. 61. 7 N. B. 807 611 

T. Heck. 151 Ind. 292. 50 N. E. 988 170 

Lowry y. Hurd, 7 Minn. 356, Gil. 282 237 

Lucas y. Pennsylvania Co. 120 Ind. 205, 16 

Am. St. Rep. 323, 21 N. E. 

972 ... ..... 984 

Ludlow y. New York'* H.'r! Co.* 1*2* Barb. 

440 860, 861 

Lumley y. Gye, 2 El. ft Bl. 216 95, 96 

Lundin t. Schceffel. 167 Mass. 465, 45 N. 

B. 933 869 

X^ydla A. Haryey. The, 84 Fed. 1000 290 

Lyman y. Pratt. 183 Mass. 61. 66 N. E. 

423 79 

Lyne. Re. L. R. 8 Eq. 65 947 

Lynn y. Sentel, 183 111. 882, 75 Am. St. 

Rep. 110, 55 N. E. 838 676 

Lyon y. Bertram. 20 How. 149, 15 L. ed. 

847 237 

T. Fishmongers' Co. L. R. 1 Aop. 

Cas. 662 932 

Lytton y. Lytton. 4 Bro. Ch. 441 402 


McAdams y. State, 8 I^ea, 456 408 

M'Allister y. Reab, 4 Wend. 485 238 

McAunich y. Mississippi ft M. R. Co. 20 

Iowa, 338. 879, 881.. 890 

McCampbell y. McCampbell. 2 Lea, 664, 31 

Am. Rep. 023 359 

McCasIin y. State, 44 Ind. 151 883 

McClellan y. Chippewa Valley FJIectrIc Co. 

110 Wis. 326, 85 N. W. 1018.. 615 

McCllntock's Appeal, 71 Pa. 305 828 

M'Colman y. wTlkes, 3 Strobh. L. 471, 51 

Am. Dec. 637 . 741, 742 

McConaughy v. WIlBey, 115 Iowa, 589. 88 

N. W. 1101 263 

McCormick y. Burt. 95 III. 263, 35 Am. 

Rep. 163 596 

McCray Refrigerating ft Cold Storage Co. 

y. Woods. 99 Mich. 269, 41 Am. 

St. Rep. 599. 58 X. W. 320 976 

McDade y. People, 29 Mich. 50 183 

McDaniel y. Cummings, 83 Cal. 515, 8 L. 

R. A. 575, 23 Pac. 795 464 

McDonald y. Chicago ft N. W. R. Co. 26 

Iowa, 124, 95 Am. Dec. 114.. 986 
69 L. IL A. 

McDonald y. Femald, 68 N. H. 171, 38 Atl. 

729 • 631 

y. United States, 12 C. C. A. 339. 24 

U. S. App. 25, 63 Fed. 426 508 

McElllgott V. Randolph, 61 Conn. 157. 29 

Am. St. Rep. 181. 22 Atl. 1004 938 

McFeely y. Moore, 5 Ohio. 465. 24 Am. 

Dec. 314 966 

McFerrIn y. Perry, 1 Sneed, 316 743, 745 

McGlU y. State, 34 Ohio St 238 715, 716 

McGovern v. Hern. 153 Mass. 308. 10 L. 

R. A. 815, 25 Am. St. B«p. 632. 

26 N. E. 861 631 

McIIhinny v. Mcllhinny. 137 Ind. 411, 24 

L. R. A. 489. 45 Am. St. Rep. 

186. 37 N. B. 147 963 

Mclntlre y. Evans, 59 N. H. 237 630 

Mclntyre y. Mclntyre, 16 S. C. 290 960 

McKelgue y. JanesyiUe, 68 Wis. 50, 31 N. 

W. 298 616 

McKenzie y. Harrison. 120 N. Y. 260, 8 

L. R. A. 257, 17 Am. St. Rep. 

638, 24 N. E. 458 825 

y. Soden Mineral Springs Co. 27 

Abb. N. C. 402, 18 N. Y. Supp. 

240 109 

McKlnley y. Williams, 20 C. C. A. 312. 

36 U. S. App. 749, 74 Fed. 94 978 
McKlttrlck y. Cahoon, 89 Minn. 383. 62 

L. R. A. 7o7, 99 Am. St. Rep. 

606, 95 N. W. 223 781 

McLaughlin y. Johnson, 46 111. 163 903 

McLoughlin y. Philadelphia, 142 Pa. 80. 21 

Atl. 754 621 

McManus, Re. 87 Cal. 294, 10 L. R. A. 

567. 22 Am. St. Rep. 250. 25 

Pac. 413 69 

McMaster y. Illinois C. R. Co. 65 Miss. 

264. 7 Am. St. Rep. 654, 4 So. 

69 748 

McMillan y. Peacock. 57 Ala. 127 362 

McMillen y. Andreison. 95 U. S. 37. 24 L. 

ed. 335 814 

McNarra y. Chicago ft N. W. R. Co. 41 

Wis. 69 744. 74r» 

McNeill y. Hallmark, 28 Tex. 157 502 

McNulta y. Lochridge, 141 U. S. 327, 35 

L. ed. 796, 12 Sup. Ct. Rep. 11 711 

Macomber y. Taunton, 100 Siass. 25o 87 

Macon y. Dannenberg. 113 Ga. 1111. 39 

S. E. 446 629 

McQuade y. Metropolitan Street R. Co. 17 

Misc. lo4, 39 N. Y. Supp. 335. 190 
McQueen y. Turner, 91 Ala. 273, 8 So. 

863 992 

Macrum y. Marshall, 129 Pa. 506, 15 Am. 

St. Rep. 730, 18 AU. 640 262 

Mactier y. Osborn, 146 Mass. 399. 4 Am. 

St. Rep. 323. 15 N. E. 641.. 868 

Madden y. Chesapeake ft O. R. Co. 28 W. 

Va. 617, 57 Am. Rep. 695 748 

Magoun y. Fireman's Fund Ins. Co. 86 

Minn. 486, 91 Am. St. Rep. 

370, 91 N. W. 5 925. 926 

Mahler, Re, 3 N. B. X. Rep. 39, 105 Fed. 

428 721 

Mahogany y. Ward, 16 R. I. 479, 27 Am. 

St. Rep. 753, 17 Atl. 860 191 

Mahon y. South Brooklyn Sav. Inst. 175 

N. Y. 69, 96 Am. St. Rep. 603, 

67 N. E. 118 325, 32S 

Mahoning County y. Young, 8 C. C. A. 27, 

16 IT. S. App. 263. 69 Fed. 96. 291 
Makemson v. Braun, 100 Ky. 88, 18 Ky. L. 

Rep. 584, 37 S. W. 495 35 

Malcolm y. Allen, 49 N. Y. 148 253 

Mallach y. Ridley, 24 Abb. N. C. 181, 9 N. 

Y. Supp. 922 653 

Manchester ft L. R. Co. v. Concord R. 

Corp. 66 N. II. 100, 9 L. R. A. 

689, 3 Inters. Com. Rep. 319, 

49 Am. St. Rep. 582, 20 Atl. 

383 9T3 

Manhattan L. Ins. Co. y. Patterson. 109 

Ky. 024, 53 L. R. A. 378, )J5 

Am. St. Rep. .393, 60 S. W. 

„383 26S 

y. Savage. 23 Ky. L. Rep. 483, 63 

S. W. 278 268 

Manola y. Stevens ios> 

Mansfield v. Northrut, 112 Tenn. 536, 80 

S. VV. 437 738, 742, 74.% 

Maraman y. Maraman. 4 Met. (Ky.) 84.. 366 

Digitized by VjOOQIC 



Marten t. Dorthy. 1«0 N. Y. 30. 46 Ij. R. 

A. 604. 54 N. K. 726 322 

iftrine Ins. Co. v. Hodj^son, 7 C ranch, 

332, 3 L. ed. 362 243 

Jhrfcs T. Jaffa. 6 Misc. 2(H^ 26 N. Y. Supp. 

008 ...110 

Marshall t. Gr«en, L. R. 1 C. P. Div. 35. . 828 

r. Manhali. 11 Pa. 430 04o, 951 

T. Western North Carolina R. Co. 

92 N. C. 322 259 

Mareball Coanty t. Burk^y, 1 Ind. A pp. 

563. 27 N. E. 1108 832 

UArtia r. Franklin F. Ins. Co. 38 N. J. L. 

146. 20 Am. Rep. 372 926 

T. SUte. 1 Tex. App. 525 205 

Mj*«ie V. Com. 90 Ky. 485. 14 S. W. 419. 273 

Mi« V. Kern. 75 Am. 8t. Rep. 580 171 

Matber v. Chapman. 40 Conn. 382, 16 Am. 

Rep. 46 932 

V. Trinity Church. 3 Serf?. & R. 509. 

8 Am. Dec. 663 739 

JIarlcwk ▼. Fry. 15 Ind. 483 828 

Matthews ▼. State. 92 Ala. 89. 9 So. 740. . 914 
V. Warner. 29 Gratt. 570, 26 Am. 

Rep. 396 612 

ilaurh ▼. Hartford. 112 Wis. 40, 87 N. 

W. 816 617 

>bxweU T. Bay City Bridi^e Co. 41 Mich. 

45.1. 2 l»f. W. 639 908 

M«y T. May. 167 U. S. 320. 42 L. ed. 184, 

17 Sup. Ct. Rep. 828 923 

M^yr^rry y. Cllff^. 7 Coldw. 117 291 

Mi}o V. SUte <Tex. Crim. App.) 82 S. W. 

515 118 

Herklem v. Blake. 22 Wis. 495, 99 Am. 

Dec. 68, 73 d 762, 763, 764 

ilHlbury T. Wataon. 6 Met. 246, 30 Am. 

Deo. 726 414 

Medvay T. Needham. 16 Mans. 157. 8 Am. 

Dec 131 494. 495, 497 

ii*tk y. Pierce, 19 Wis. 300 832 

-U-Ktdce T. Boston Iron (^o. 5 Cush. 158, 

51 Am. Dec. 59 971 

iltUro T. McMannia, (Idaho) 75 Pac. 98. . 587 

MfllonM Kstate. 28 W. X. C. 120 944. 950 

UmiihU SaT. Bank ▼. Houchena, 52 C. C. 

A. 176. 115 Fed. 96 243 

M^^pliis Water Co. v. Ma^ens, 15 I^a, 

„ , 37 258 

Mf^Qdenball ▼. Gately. 18 Ind. 149 872 

i«'nger t. iJiur. r^7^ X. J. L. 205. 20 L. R. 

A. 61, 26 Atl. 180 613 

M^ntzer t. Western C. ieleg. Co. 93 Iowa, 

757. 28 1.. R. A. 72, 57 Am. 

St. Rep. 294. 62 N. W. 1 962 

M^frnr, Re. 58 C. C. A. 472, 122 Fed. 389. 783 
MrrWen SaT. Bank ▼. Home Mnt. F. Ins. 

Co. 50 Conn. 396 925, 926 

i«*rrill ▼. Ithaca & O. R. Co. 16 Wend. 

586. 30 Am. Dec. 130 478 

▼. Merrill. 53 Wis. 522, 10 N. W. 

684 614 

T. Suffolk Bank. 31 Me. 57, 50 Am. 

„ ^ Dec. 649 132 

Hsliodist Episcopal Church Home t. 

Thompson. 108 N. Y. 618, 15 

X. E. 103 789 

^T^T. Re. 74 Fed. 885 75 

r. Graeher. 19 Knn. 165 252 

T. Vicksbaric. S. & P. R. Co. 41 1a. 

Abo. 639. 17 Am. St. Rep. 408, 

6 So. 218 512 

T. Weller, 121 Iowa. 51, 95 N. W. 

254 ; 958 

*^yer». Re. 96 Fed. 408 783 

T. Anderson. 1 Strobh. Kq. 344, 47 

Am, Dec. 537 960 

>» Sj«H* v. Xew York C. R. Co, 30 X. Y. 

564. 86 Am. Dec. 415 511 

': ^.cth i\ R. Co. v. Curtis, 80 111. 324. . 512 
-"S-J^-x Co. T. McCue. 149 Majw. 103, 

14 Am. St. Rep. 402. 21 X. E. 

230 629 

^ iHon T. Smith. 1 Coldw. 144 377 

«<4«d Steel Co. T. CltlaenM* Nat. Bank, 

find. App.) 72 N. K. 290 873 

^'UM-on T. Truesdale. 6.{ Minn. 137. 65 

X. W. 260 889. 890 

* ''Td T. Worct^ster. 7 Mass. 48 495 

" -r. Be. 121 Cal. 353, 53 Par. 906 70 

T. AT^ry. 2 Barb. Ch. 582 240 

r. Barber, 66 X. Y. .ISS 414 

r. Bayer, 94 Wis. 123, 68 N. W. 
^, 860 614 

Miller T. Beardsley, 81 Iowa, 720, 45 N. W. 

756 263 

V. Boone County, 95 Iowa, 6, 63 N. 

W. 352 985 

T. Chicago, B. & Q. R. Co. 65 Fed. 

305 884 

V. Crawford County, 106 Wis. 210, 

82 X. W. 175 831 

V. Engrlish, 21 N. J. L. 317 258 

T. Fletcher. 27 Gratt. 403. 21 Am. 

Rep. 359 580 

V. Krelter, 76 Pa. 78 100 

V. Ottaway, 81 Mich. 196, 8 L. R. A. 
428. 21 Am. St. Rep. 513, 45 

X. W. 665 245 

T. Shay, 145 Mass. 162, 1 Am. St. 

Rep. 449, 16 X. E. 468 478 

T. Wilson, 104 111. Add. 557 628 

T. Wilson, 146 111. 523, 37 Am. St. 

Rep. 186, 34 X. K. 1111 872 

V. Wilson, 71 Iowa, 610, 33 X. W. 

128 897 

Mllliken y. Pratt, 125 Mass. 374, 28 Am. 

« Uep. 241 496. 872 

Mills V. Brltfon, 64 Conn. 4, 24 L. R. A. 

536, 29 Atl. 231 80 

V. Kvansvllle Seminary. 47 Wis. 
354, 2 X. W. 550, o2 Wis. 669, 
9 X. W. 925, 58 Wis. 135, 16 

X. W. 133 866 

V. Thore, 95 X. C. 362 966 

Milner ▼. Field, 5 Exch. 829 132 

Milwaukee Boiler Co. v. Duncan, 87 Wis. 
120, 41 Am. St. R«p. 33. 58 X. 

W. 232 976, 978 

Miner v. Atherton, ,S5 Pa. 528 947 

▼. Gllmour, 33 L. T. 98 935 

Minneapolis & St. L. R. Co. y. Herrlck, 
127 U. S. 210, 32 L. ed. 109, 

8 Sup. Ct. Rep. 1176 881 

Minot ▼. Paine, 99 Mass. 101, 96 Am. Dec. 

. 705 79, 80, 81 

Missouri & K. Teleph. Co. ▼. Vanderyort 

(Kan.) 79 Pac. 1068 247 

Missouri K. & T. R. Co. y. lAbette County, 

9 Kan. App. 545, 59 Pac. 383 469 
y. McFadden Bros. 89 Tex. 138, 33 

8. W. 853 612 

Missouri P. R. Co. y. Columbia, 65 Kan. 
390. 58 L. R. A. 399, 69 Pac. 

838 249 

V. Humes, 115 U. S. 512, 29 L. ed. 

463. 6 Sup. Ct. Rep. 110.. 711. 881 
y. Mackey, 33 Kan. 298, 6 Pac 

291 881 

y. Mackey, 127 U. S. 205. 32 L. ed. 

107, 8 Sup. Ct. Rep. 1161.. 713 
880 881 
Mitchell y. Brldgers, 113 X. C. 63, 18 S. E*. 

91 741 

y. Xashyllle, C. & St. L. R. Co. 100 
Tenn. 329, 40 L. R. A. 426, 45 

S. W. 337 663 

y. People's Say. Bank. 20 R. I. 600, 

40 Atl. 502 496 

Mode y. Beasley, 143 Ind. 306. 42 X. B. 

727 879 

Monongahela Case. See Mononoahela 

Xav, Co. y. United States. 
MonoDgahela Xav. (?o. v. United States, 
148 IT. 8. 312. 37 L. ed. 463. 

13 Sup. r.t. Rep. 622 727, 728 

729. 730, 731, 732 
Monroe County v. Budlong, 51 Barb. 493. 832 
Montgomery y. Montgomery, 3 Jones ft 

j^^ 47 ^5 

y. Phoenix Mut. L. Ins. Co.' 1*4* Bush*. 

51 ^ 268 

Montpelier v. East Montpeller, 29 Vt. 12, 

67 Am. Dec. 748 730 

Moody y. Plamilton Mfg. Co. 159 Mass. 70, 

38 Am. St. Rep. 396, 34 X. K. 

11^5 172 

Moore y. First Rutbven Circuit M. K. 

Church. 117 Iowa, 33, 90 X. 

W. 492 971 

y. Hanover F. Ins. (^o. 141 X. Y. 

210. 36 X. E. 191 926 

y. Monroe, 04 Iowa, 367. 52 Am. 

Hep. 444. 20 X. W. 475 596 

y. Mountcastle. 61 Mo. 424 396 

V. Parker, 1 Ld. Raym. 37 966 

y. Sanford. 151 Mass. 285. 7 L. R. 

A. 151, 24 X. K. 323 870 

y. Sargent, 112 Ind. 484. 14 X. E. 

466 253, 254 

Digitized by VjOOQIC 



Moore t. Wabash. St. L. ft P. B. Co. 85 

MoL 588 938 

V. Williams, 115 N. Y. 586, 5 L. R. 

A. 654. 12 Am. St. Rep. 844, 

22 N. E. 233 789 

Moots T. SUte, 21 Ohio St. 653 478 

Moran t. Dunphy. 177 Mass. 485. 52 L. 

R. A. 115, 83 Am. St. Rep. 289, 

59 N. E. 125 96 

Moreland ▼. Union Cent. L. Ins. Co. 104 

Ky. 129, 46 S. W. 516 266 

Morgan y. Blrnie, 9 Blng. 672 132 

V. Farrel, 58 Conn. 413, 18 Am. St. 

Rep. 282. 20 Ati. 614 340 

T. Potter, 157 U. S. 195. 39 L. ed. 

670, 15 Sup. Ct. Rep. 590 497 

V. Wabash R. Co. 159 Mo. 202, 60 

S. W. 195 392 

Morgan's L. ft T. R. ft S. S. Co. v. Board 

of Health, 118 V. S. 455, 30 L. 

ed. 237, 6 Sup. Ct. Rep. 1114. . 712 
Morgenroth v. Spencer (Wis.) 102 N. W. 

1086 832 

Morrill T. Morrill, 20 Or. 96. 11 L. R. A. 

155, 23 Am. St. Rep. 95. 25 Pac. 

362 482 

Morris v. Bradley FertiUsser Co. 12 C. C. 

A. 34, 28 U. S. App. 87, 64 Fed. 

55 976 

T. Council Bluffs, 67 Iowa. 343. 56 

Am. Rep. 343, 25 N. W. 274 . . 629 
▼, Lowe, 97 Tenn. 243, 36 S. W. 

209g ^ . . . 738 

V. Rowan, .17 N." ' J.* L. ' 304 '. '. *. '. '. *. *. ". 766 

V. Whitehead, 65 N. C. 637 314 

Morrison y. Wilson. 13 Cal. 405, 73 Am. 

Dec. 593 587. 588 

Morse v. Garner, 47 Am. Dec. 570n, 1 

Strobh, L. 514 762 

T. Gilman, 16 Wis. 505 614 

T. Minneapolis ft St. L. R. Co. 30 

Minn. 465, 16 N. W. '.ioH 627 

T, Union Stock Yard Co. 21 Or. 289, 

14 L. R. A. 157, 28 Pac. 2 976 

Moss T. Atkinson, 44 Cai. 3 396 

Mount T. State. 7 Ind. 654 118 

Mt. Hope Cemetery v. RoHton. 158 Mass. 

509, 35 Am. St. Rep. 515, 33 N. 

E. 695 730 

Mt. Washin^rton Road Co.'s Petition, 35 N. 

H. 134 754 

Mosseau, Re, 30 Minn. 202, 14 N. W. 887 
Mowry v. Henry, 86 Cal. 471, 25 Pac. 17. . 581 
Moxley v. Ragan, 10 Bush, 156, 19 Am. 

Rep. 61 268 

Mallan v. State, 114 Cal. 581, ,34 L. R. A. 

262, 46 Pac. 670 559 

Mullen y. Old Colony R. Co. 127 Mass. 

86, 34 Am. Ren. a49 892 

Mumford y. Whitney, 15 Wend. 380, 30 

Am. Dec. 60 570 

Mumma y. Potomac Co. 8 Pet. 280, 8 L. 

ed. 947 132 

Munch y. Great Northern R. ('o. 75 Minn. 

61, 77 N. W. 541 938 

Mundy v. Whittemore, 15 Neb. 650, 19 N. 

W. 60 1 498 

Munroe v. Bordler. 8 C. B. 862 245 

Murdock y. Memphis ft O. R. Co. 7 Baxt. 

572 366 

Murmutt y. State (Tex. Crlm. App.) 67 S. 

W. 508 196, 197 

Murmutt Case. See Mukmutt v. Statk. 

Murphy y. Price, 48 Mo. 247 762 

V. Upgers, 151 MasH. 118, 24 N. R. 

35 118 

V. Royal Ins. Co. 52 La. Ann. 775, 

27 So. 143 281.282 

V. Suliote, 5 Fed. 99 i»90 

Murray v. Oast Lithographic ft Engraving 

Co. 8 Misc. 36, 28 N. Y. Supp. 

271 110 

V. Lardner, 2 Wall. 110. 17 L. ed. 

857 245 

T. Forty-Second Street, M. ft St. N. 

Ave. R. Co. 9 App. Div. 610, 41 

N. Y. Supp. 620 101 

Mutual L. Ins. Co. v. Jarboe. 102 Kv. HO, 

89 L. R. A. 504, KO Am. St Rep. 

343, 42 S. W. 1097 268 

v. ONell. 25 Ky. L. Rep. 983. 76 S. 

W. 839 268 

69 L. R. A. 


Nail y. Ix)ulsvllle. N. A. ft C. R. Oo. 129 

Ind. 260, 28 N. B. 183 168. 

169, 170 
Nashville ft C. R. Co. y. Carroll, 6 Helsk. 

347 747 

Nashville, C. ft St. L. R. Co. v. Alabama. 

128 I. S. 96, 32 L. ed. 352. 2 

Inters. Com. Rep. 238, 9 Sup. 

Ct. Rep. 28 712 

V. Franklin County. 12 Lea, 521 . . 456- 

V. Handman. 13 Lea. 423 746 

Nashville Trust Co. v. Fourth Nat. Bank, 

91 Tenn. 336, 15 L. R. A. 710. 

18 S. W. 822 236 

National Docks R. Co. v. Central R. Co. 

32 N. .L Eq. 755 769 

National Foundry ft Pipe Works v. 

Oconto City Water Supply Co. 

105 Wis. 48, 81 N. W. 125 258- 

National Surety Co. v. State Bank. 61 I^. 

R. A. 3§4. 56 C. C. A. 657, 120 

Fed. 593 243 

National Ulster County Bank y. Madden, 

114 N. Y. 280. 11 Am. St. Rep. 

6.33, 21 N. E. 408 478 

Nebraska, The, 21 C. C. A. 448. 24 U. S. 

App. .559. 75 Fed. 598 290 

Neil y. Tolman. 12 Or. 289. 7 Pac. 103 . . 482 

Nelson v. Becker, 14 Kan. 509 5U2 

V. Fehd, 104 III. App. 114 628 

y. Hanson. 92 Iowa, 356, 54 Am. St. 

Rep. 568. 60 N. W. 655 r 263 

y. Stephens. 107 Wis. 136, 82 N. W. 

163 852. 8.54 

y. Trigg, 2 Tenn. Cas. 645 r*i\\ 

Neptune. The, 1 Hagg. Adm. 227 290 

Newark Pass. R. Co. v. Block. 55 N. J. L. 

605. 22 L. R. A. 374. 27 Atl. 

1067 .302. 306, 307 

Newcome v. (^rews, '98 Ky. 339, 32 S. W. 

947 741 

New Haven S. B. Co. v. Sargent. 50 Conn. 

199. 47 Am. Rep. 632 ft32 

Newman y. Ashe, 9 Baxt. 380 753 

New Orleans. M. ft T. R. (^o. v. Kllerman, 

105 r. S. 166. 26 L. ed. 1015. 073 
New Pittsburgh Coal ft Coke Co. y. Peter- 
son, 136 Ind. 398, 43 Am. St. 

Rep. .327, .35 N. E. 7 170, 172 

New York, Re, 34 Hun, 444 T.IU 

Re. 99 N. Y. 569, 2 N. E. 642. .754, 7r»a 
y. Second Ave. R. <'o. 102 N. Y. 5«l, 

55 Am. Rep. 8,30, 7 N. E. 905. . 478 
New York, The, 175 V. S. 187. 44 L, ed. 

126, 20 Sup. Ct. Rep. 67 291> 

New York C. ft H. R. Co. v. Fraloff, 100 

V. S. 24. 25 L. ed. .531 717 

New York Coudonsed-Mtlk Co. v. Nassau 

Electric R. Co. 29 Misc. 127. 

60 N. Y. Snpp. 234 192 

New York, L. E. ft W. li. Co. v. Steln- 

breuner. 47 N. J. L. 161, 54 Am. 

Rep. 126 21» 

New York L. Ins. Co. v. McKollar, 68 N. 

H. .326. 44 Atl. 516 87a 

V. Warren Deposit Bank, 25 Ky. L. 

Rep. 326. 75 S. W. 234 2«.S 

Noble y. People, 23 Colo. 9. 45 Pac. .376.. 4 7,% 
Noble County v. Scbmoke, 51 Ind. 416. . . . SrJli 

Noell y. Gaines, 68 Mo. 649 i>.-j i 

Noonan v. Pardee. 200 Pa. 474. 55 L. R. A. 

410. 86 Am. St. Rep. 722. .50 

Atl. 2."»5 639, 042 

Norcross v. Norcross. 53 Me. 169 647. Gt»0 

Norma, The. 15 C. C. A. 553. 35 IT. S. 

App. 421. 68 Fed. .^09 4 7P 

Norrls v. Showerroan. 2 Dougl. (Mich.) 16 OO:' 
North Bloorafleld CJravel MIn. <'o.. Re. 11 

Sawy. 590, 27 Fed. 705 a 1 -^ 

North Chicago Rolling Mill Co. v. St. Ix)nlR 

Ore ft Steel To. 152 V. S. .596, 

:»8 L. ed. 565, 14 Sup. Ct. Rep. 

710 lizii 

Northern Ansur. To. v. (traud View BUlff. 

AR80. 183 r. S. 308. 46 L. ed. 

213. 22 Sup. Ct. Uep. 1.X3 1*.%^ 

Northern C. R. Co. v. State. 29 Md. 420. 

96 \m. Dec. 545 r>X' 

Northern P. R. Co. v. Hambly, 1.54 U. S. 

349. 38 L. ed. 1009. 14 Sup. Ct. 

Rep. 983 a 71 

y. Mase, 11 ('. c\ A. 6.3. 27 h. S. 

App. 238, 63 Fed. 114 T-ftj 

Digitized by VjOOQIC j 



Northern P. R. Co. ▼. Peteraon, 102 U. S. 

346. 40 L. ed. 994. 16 Sup. Ct. 

Hep. 843 171 

^ortli Western Bank v. Hays. 37 W. Va. 

475. 16 8. E. 561 160 

Icrihwestern Mut. I^ los. Co. v. Barboar, 

92 Ky. 427, 15 L. R. A. 449, 

17 S. W. 796 268 

iortbwe^tern Tnlon Packet Co. t. C lough, 

20 Wall. 328, 22 L. ed. 406 717 

•vrtoD T. Brookllne. 181 Mass. 360, 63 

X. E. 930 311 

loyw T. Southworth, 53 Mich. 173. 54 Am. 

Rep. 359. 20 N. W. 891 952 

ibfiall T. Bracewell. L. R. 2 Exch. 1 935 

tik Harbor ▼. Kallagher, 52 Ohio St. 183, 

39 N. K. 144 620 

Bri^n r. McGllnchy. 68 Me. 552 191 

'Bri»>n Cane. See Vicksbubo ft M. R. 

Co. ▼. 0*Bbibn. 
tkerhangen v. Tyson, 71 Conn. 31, 40 Atl. 

]0^2 932 

fielle T. Uammondi 78 Minn.' 275.* 80* N. 

W. 1123 626, 629 

Hbam T. Connor, 46 Gal. 346, 13 Am. Rep. 

213 464 

bk> k M. R. Co. V. Weber. 96 111. 443. . 81 
ilo RiTer & C. B. Co, y. Edwards, 111 

Tenn. 31, 76 8. W. 897 746 

Is T. Sao Francisco, 92 Cai. 449, 28 Pac. 

580 559 

«m*ted T. MorrU Aqueduct, 47 N. J. L. 

.311 760 

»;•• n T. O'Malia, 75 111. App. 387 499 

'ci^iia Coal, Coke, & Lime Co. t. Fay, 37 

Xeb. 68, 55 N. W. 211 976 

I^NriJ, Re. 91 N. Y. 516 427 

T. Dry Dock E. B. ft B. R. Co. 129 

:?. Y. 125, 26 Am. St Rep. 512, 

29 N. E. 84 302, 303. 305 

^picluD of Justices, 7 Me. 495, Appx 187 

<rd T. Ruspinl, 2 Esp. 569 242 

frffi-bee V. Boston ft P. R. Corp. 14 R. I. 

104, 51 Am. Rep. 354 192 

^fbr T. Phenlz Ins. Co. 5 8. D. 72, 58 

X. W. 301 926 

^ T. Ward, 73 111. 318 132 

•n-n T. Noonan. 29 Wis. 541 832 

•*>! r. U Page, 21 Eng. L. ft Eq. 640.. 497 
^••Tio Starch Factory v. Dolloway, 21 N. 

Y. 449... 439 

*«ntr«t T. Moser, 88 Mo. App. 72.. 650, 655 

*€a r. Hancock, 1 Head. 56S 377 

T. Howard Ins. Co. 87 Ky. 671, 10 

S. W. 119 269, 270 

k|t T. Fowler, 28 Cal. 603 740, 746 

V. Parker. 43 N. H. 363, 80 Am. 

l>ec. 172 412 

r. OToole, 144 Mass. 303, 10 N. E. 

851 316 

Mine Ins. Co. v. Weiss, 109 Ky. 464, 59 

•. 8. W. 509 268 

W«r T. Forbes, 23 III. 301 903 

L^ T. Huphes. 84 Md. 652, 36 Atl. 431 . 913 

•«in V. RUey. 4 Coldw. 5 743 

I T. Cheek. 4 Coldw. 26 762, 763 

*^r T. Com. 12 Bush. 191 273 

T. Maron, 39 Ga. 725, 99 Am. Dec. 

4gA 021 

▼. PenttsyivanUi' Co/ '134 Ind.' 673*, 
^ 23 U R. A. 552, 34 N. E. 504. 612 

»* T Newburyport, 10 Gray, 28 629 

^** T. Carey, 28 Iowa, 436 262, 263 

■ T. Empire Transp. Co. 49 C. C. A. 

fc, 302, 111 red. 202 75 

^n Band Cutter ft Self Feeder Co. 
{ T. Malllnser, 122 Iowa, 703, 98 

N. W. 5& 976 

'"'' t. Henrey, 1 Gray. 119.. 494. 495. 496 
►-1- T. Westenhaver, 114 Wis. 460, 90 

X. W. 467 617 

^r^ t. Wold, 33 Fed. 791 482 

^a ». Taylor, 7 How. 133. 12 L. ed. 

e,18 239 

i«». Halitead, 44 III. App. 97 ."Ses 

py » Somerset, 1 Straage, 447.. 868, 860 

Peck T. Batcbelder, 40 Vt. 233. 04 Am. Dec. 

392 897, 904 

y. Valentine, 94 N. Y. 569 478 

V. Vandemark, 99 N. Y. 30, 1 N. B. 

41 .396 

Peek T. Derry, L. R. 37 Ch. DIv. 541 413 

Pelican t. Rock Falls, 81 WIh. 428, 51 N. 

W. 871. 52 N. W. 1049 832 

Pembina Consol. Silver Mln. ft Mill Co. t. 

Pennsylvania, 123 U. S. 187, 

2 Inters, com. Rep. 24, 81 L. 

ed. 630, 8 Sup. Ct, Rep. 737.. 880 

Pendleton v. Klngsley, 3 Cliff. 417. Fed. 

Can. No. 10,922 647,657,661 

Penley ▼. Waterhouse. 3 Iowa, 418 262 

Pennegar v. State. 87 Tenn. 244, 2 L. R. A. 
703. 10 Am. St. Rep. 648, 10 

8. W. 305 494 

PenneweM, Re, 55 c\ C. A. 371, 9 Am. 

Bankr. Hep. 400, 119 Fed. 139. 722 
Penn Mut. L. Ins. Co. v. NorcrosH, 163 Ind. 

379, 72 N. E. 132 874 

Pennoyer v. Neff, 95 U. S. 727, 24 L. ed. 

570 676 

Pennsylyania Co. v. Krick. 47 Ind. 368.. 664 
Pennsylvania R. Co. v. Barnett. 59 Pa. 

239, 98 Am. Dec. 346 665, 666 

People y. Bush. 4 Hill. 133 182 

y. Croswell. 3 Johns. Cas. 337 108 

y. Elliott, 74 Mich. 204. 3 L. R. A. 
403, 16 Am. St. Rep. 640, 41 N. 

W. 916 508 

y. Ettlng, 99 Cal. 577, 34 Par. 237. . 473 
y. Globe. Mut. L. Ins. Co. 91 N. Y. 

174 130. 133, 137 

y. Green. 83 App. Diy. 400, 83 N. Y. 

Supp. 460 820 

y. Hammond. 182 Mich. 422. 93 N. 

W. 1084 183 

y. Hanselman. 76 Cal. 460. 9 Am. 

St. Rep. 238. 18 Pac. 425 408 

y. Hawkins. 157 N. Y. 12. 42 L. R. 
A. 490. 68 Am. St. Rep. 736, 51 

N. K. 257 267 

y. Mclaughlin. 150 N. Y. 365. 44 

N. E. 1017 478 

y. Manning'. 8 Cow. 297. 18 Am. 

Dec. 451 132 

y. New York C. R. Co. 13 N. Y. 78 663 
y. Roby, 52 Mich. 577. 50 Am. Rep. 

270, 18 N. W. 363 672 

y. Sergeant, 8 Cow. 139 118 

People ex rel. Bolton v. Albertson, 55 N. 

Y. 50 231. 232 

Atty. Gen. y. Alturas County, 6 
Idaho, 418. 44 L. R. A. 122. 

53 Pac. 1007 222, 227 

Manhattan R. Co. y. Barker, 152 

N. Y. 417, 46 N. B. 875 322 

WiUiams v. Clcott, 16 Mich. 283, 97 

Am. Dec. 141 188 

Deneen v. Coleman, 210 111. 79. 71 

N. B. 093 703. 704 

Union Trust Co. v. Coleman, 126 
N. Y. 433, 12 L. R. A. 762, 

27 N. K. 818 81 

Lemmon v. Feltner. 50 App. Div. 

280, 67 N. Y. Supp. 893 81 

Healey v. Forbes, 32 11 un, 30, 4 N. 

Y. Supp. 757 118 

Johnson v. George, 186 III. 122. 57 

N. B. 804 702 

Lincoln County v. George. 3 Idaho. 

72, 26 Pac. 983 222 

224, 226, 227, 232 
Seayer v. Green. 52 How. Pr. 440. . 756 
Crymble y. Horton, 46 III. App. 434 313 
Drake v. Mahaney. 13 Mich. 481. . 559 
Stephenson v. Marshall, 12 III. 391 225 
WHson V. Salomon, 51 111. 37.... 754 
Chicago v. State Board, 205 III. 206, 

68 N. E. 943 • 457 

Metropolitan Street R. Co v. State 
Tax Comrs. 174 N. Y. 417, 63 

L. R. A. 884, 67 N. K. 69 326 

Granger y. Wayne Circuit .Tudge, 27 

Mich. 406, 15 Am. Rep. 195 498 

People's Bldg. ft L. Assu. v. Billing. 104 

Mich. 186, 62 N. W. 373 422 

People's Say. Bank v. Alexander. 2 Sadler 

. (Pa.) 287. 3 Atl. 821 791, 792 

V. Cuppa. 91 Pa. 315 339 

Peppin V. Blckford, 3 Ves. Jr. 570 947 

Perrln y. Blake, 4 Burr. 2579, 10 English 

Ruling 689 955 

936, 037^005 
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ViStr ▼. Br»«^ 4; W. Tj 41-1 4j* U B. A. 

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-'-5 P« 91 Am- \^^. rJ4.. 

P'>:/**T T. Mo-n>. :: E^ 4 B.. *^« 

Fv,* ¥. F*r,*. » ^«Tg. !*»•$•. ;;«.• Ab. Der. 

^iii% i»55*, 

T. H#-=,'>-rw>o. & Y«-r.:- olO 

Pollard V. lfM.4s.\, 4 4 raii-n, 4J1. 2 L. ed. 

^ *»i 

T. ^i^'>'*t%x^i>^\* \'t*. ll^S*l U B. 

4^^ < &. Djt. G4r. 

P<^p* T. T'jc-'a... 2 Ark. 1'<.»1« 

jp«/ri«'^^ T. >f<#Df|;oui«rrj i'ounjy. ri2 IflCL 

I"/:;i.-*M T. r ,. >r, 17 r. B. «>0«» 

F««e.j T. I^WJi. 9 H-imph. 4M; 357. 

T, Hni.'iii. 2 Watts. 126 

!''/»#•:: TaM". S** I'o»LLL v. IViwELL. 

I'f*«t r. Pr»ft. :;:; <*oon. 446 

I'*.'*- T. l>#-a. 5^» \. i'. L'^Hi 

I'i.'i4f r. ii»n*^<^fk. M Va. C7 

l'/ii.'.« A.»/«-rt r. >-raD^e il?>4t»i 2 De G. 

it J*. ♦;-.!' 

fr'.u^s' AJ'^rt'w < ^>*'. 1 Ma^n. k. H. 2r»... 
yntix" *. ^«-*'a « 'Mj To. 17:^ Fa. 438. 33 

.%• . «;'#<i 639. 

I'r'/i ^'•ft'.-'. J'.-, -;s C. *". A. «70. 98 Fed. 

r ;:j 

I'fo* r. .Wn >'irl. I', it B. R. To. 18 B. I. 

;i<Wi. -Jl All. 4.'^^ 

Fruin r. H^r,^.«/ji i^ Si. J, R. To. 62 Ifo. 

|''^i:»'ti r n^'j'kin*. 1 I>'a. 741 

J" /A-#fj i'n.sif*- i HT i o. T. I>»»-e. 28 Neb. 

^.'/.♦. ti L R. A. «M»I«. 26 Am. 8t. 

H'-u '*-''' 44 X. \V. 226 

%' t. tu»u'% l'it,H*f iar i'o. T. Ilarkias. 5 

t i A. :yj^>. 17 r. s. App. 22. 

.%:, iv<r 't'.-2 

T, M^if'/i^'..'* «ii Str*'<'t R. <;o. 157 
I , H '.*i. M* L. t*<J. 6:J2, lo Sup. 

<'i, j:«-i» .vm 























IJ WalL 1«L a* L ed. 557... TS 

SfenL 1 MaksL *1< 571 

X liti. 1» lad. 162. 16 Am. 
5S- BiA. 31». ^ N K. 1099... K^ 

B-k^CSblL I^ Wia 3Xt M 

$ AroL ISi. 24 Pac Si'O 57 
* Ffc*- 433 41 


•^±3»cm ft X. W. B. to 48 

Was. 5i:X. S3 Am Bep. S21. 4 

X W. t^S 611 

K* C?«m?y T. TalboC Coanty. 99 

lid. 13. 5T All. 1 »ll», « 

^j* T. !«■■■ 1 «5 111. 57S a 

^-U'diiek CaL t. C^afee. 13 B. I. 367.... 4f 
guAiCT Mm C«L T. Kitts^ 4:1 llkrh. 34. 3 

X W. 24* IT 

T. iMtfcf :i9i*ll A. C. 495 I 


T. f.Miii ft X. W. B. Co. L. R. 1 

Cm. 7W 9 

«3 X. H. 54 tt 

142 Cat. 6«l. 6.-» L 
B. A. S«v 100 Am St. Bep. IM. ^ 

76 P»c- €3» tr..:,«S 

T. Bx^te-:. lis Ham. 461. 15 Am. 

B«fL 121 ? 

Bnftti: T. rxMS B. C«L tB. I.I 59 At: ^ 
165 : II 

>■■■■■ T. r^ici«BL St. p. M. ft o. R. <^> 

«2 WisL ITS, 51 Am Rep. Tl^ ^ 

22 X. W. 147 U 

Batcliff T. PMfMC 22 Coloc 75. 43 Pic . 

5J^ 41 

BarMts^kelL r. BImIl 80 X. T. 478 ^ 

T. HrAIimr. 8 WewL 109 P 

T. Frukfor: Buk. 23 Me. 321 .... U 
T. Spauidm^ 30 X. T. 630. $6 Am 

r*fr. 426 a 

B«al T. Bo..^ter. 2» XefcL 112, 29 X. W. ^ 

15^ 2 

B«am» T. Siai^. 23 Imd. Ill ^ 

Rec\<hs T. Yooar^Tie, 8 Baxt. 3'^7 T6'J. •< 

~ ■ T. Moocvsw 63 Xe<>L 219. 55 U R. A. 

74V. 93 Am *l, Bep. 431. ^^ ^ 

N- W. 243 'T> V 

X. BedB^ld. 110 X. Y. 671. IS >• ^ 

R 373 3J 

T. MciVrd, 160 X. T. 330. 54 X. K , 

737 Si 

T. W«^»tera r. Teles. Co. 13r. U<*. 
«i61. 34 L. B. A. 492. 58 Am 
St. Bep- 600. 37 SL W. 9»^4 . * 
Bees T. BiigcTDs. 9 Kaa. Apf». 832. 61 Pa«' j 

.•-•i :4<». •* 

Beeres t. Boicfc^^r .IS^ll 2 Q. B. :>«X» * 
Befeld t. Wowifolk. 22 How. 31 S. !•? I- . 

ed. 37«> 'Itf. 3 

Beit. T. Harris. 10 Cox C. C. 3.'>2 * 

BelibeiiK t. Grebvr. 24 Moat. '4S7. 62 Pa^ ,. 

820. 63 Pac 41 -• 

Beld T. Eatoatoa Mf|e. Co. 40 Ga. 103. ^ , 

Am. Bep. 563 < 

Beinias t. Xew York, I^ ft W. R. Co li'J 
X. r. 168. 14 L. B, A. 153. i* , 

X. E- 64V H-M * 

Reuss T. Picksler. L. B, I Excb. 342. 3-' 

1^ J. Kx<*. X. a. 2l!i ; 

Bex T. Carllle, 6 Car. ft P. 636 ] 

T. Daris. 4 Barr. 2^k'<* \ 

X. I*tii:ippsH 3 Barr. l."*64 i 

T. Wt:k<^ 4 Barr. 2r»27 ^ 

Reyaokb t. Fraaklta. 44 Mina. 3rt. 2i« Xa. 
St. Rep. 546. 46 X. W. ISl* i 
T. OXeil. 26 X, J. Bq. 223 . 
T. I*itt, 19 VesL Jr. 134.. . '^N - 
T. Reyaolda. 55 Ark. 369. is S. ^- . 

377 J 

Rhoadabeck t. Blair Totb Lot k Land 
Co. 62 Iowa, 36&. 17 X W 

5S2 ' 

Rhodes T. Forwood, U B. 1 App Ca^ . 

256 I 

Rice T. FIdelliy ft D. Co. 43 C C. A. 2T«». , 

103 Fed. 427 : 

Rich T. Baker. 3 Deaio. 79 ^. ' 

Richards T. Hares, 17 App. JMx, 422. 4.' N J 

1% Sappr^234 .•«.. ' 

Digitized by VjOOQIC 



Ri.bArdec^ii t. Hellish. 2 Blng. 229 884 

T. Kiobardf«on, 75 Me. 570, 46 Am. 

Rep. 428 79. 80 

U^*h!aDd <''ouDty v. I^wrence . County, 12 

111. 1 729 

KicbfflObd V. Dubuque 4b S. C. K. Co. 26 

Iowa. lUl 884 

T. Iforford. 4 Wash. 337, 30 Pac. 

242, 31 Pac. 513 680 

Sicbmond * D. K. (*o. t. Burnett, 88 Ya. 

538, 14 S. E. 372 928 

lldunoDd R. k Electric Co. v. Garthrigbt, 

92 Va. 627, 32 L. R. A. 220, 

53 Am. St. Rep. 844, 24 S. E. 

267 305 

tlckfttR ▼. Mornlngton. 7 Sim. 200 313 

Uddlesbarger ▼. Hartford F. Ins. Co. 7 

Wall. 386, 19 L. ed. *.>57 266 

269, 270 
Uddlcsbarirer Case. See Riddlrsbauokr 


Udj^ewaj ▼. I^amphear, 99 lod. 253.. 963, 967 
Ujney ▼. Rijoiey, 127 N. Y. 413, 24 Am. 

St. Uep. 462, 28 N. B. 405... 676 

lIlfT T, i^tallwortb, 56 Ala. 481 100 

tlBgle T. l*ennsylvanla B. Co. Iu4 Pa. 529, 
44 Am. St. Rep. 628, 30 Atl. 
492 • • . • . . . 883 

llpi*y ▼. Paige. 12* Vt.' 354 WWW]'.'.]'.'.'. 903 
Utchie V. Rlcbarda. 14 Utah, 345, 47 Pac. 

670 187 

lobbiDg T. HoUey, 1 T. B. Mon. 191 239 

▼. Sprlngfleld St. R. Co. 165 Mass. 

30. 42 N. K. 334 303 

lobeno ▼. Marlatt, 136 Pa. 35, 20 Atl. 

512 950 

loberBon t. Rochester Folding Box Co. 
niH)li 64 App. DiT. 30, 71 N. 
Y. 8npp. 876, reyeraed In 171 N. 
Y. 540, 59 L. R. A. 478, 89 Am. 

St. Kep. 828, 64 N. E. 442 111 

112, 114, 115 
lOMrsoB Case. See Robcsson t. Uoci^es- 

TKn B^OLDiNO Box Co. 
hben T. Powell. 168 N. Y. 414. 55 L. R. 
A. 775. 85 Am. St. Rep. 673, 61 

N. E. 699 86 

loberts t. Donovan, 70 Cal. 108, 9 Pac. 

180. 11 Pac. 599 99 

T. Ilammon, 29 Iowa, 128 263 

T. WUcoxRon. 36 Atk. 356 499 

Kobertion ▼. Chicago & B. R. Co. 146 

Ind. 486. 45 N. E. 655 170, 172 

▼. Ptafliipfi, 3 G. Greene. 220 896 

lobinson Y. Beall. H Yeates. 267 100 

T. Coulter. 90 Tenn. 707, 25 Am. St. 

Rep. 708, 18 8. W. 250... 762, 763 
T. George F. Blake Mfg. Co. 143 

Mai«. 528, 10 N. E. 314 938 

▼. Barman, 1 Excb. 850 766 

T. Hang, 71 Mich. 38. .38 N. W. 668 349 

▼. Owen, 46 N. H. 387 313 

▼. RoMnaon. 1 Burr. 38 966 

V. State, 2 Coldw. 181 293 

•Kbtnter V. Weat. 164 N. Y. 510, 53 L. R. 
A. 548. 79 Am. St. Rep. 659, 

58 N. B. 673 820 

Mckiand Water Co. v. Adams, 84 Me. 
472, 30 Am. St. Rep. 368, 24 

D^. Atl. 840 311 

mWt v. Fitzgerald, 6 H. L. Caa. 823 ... 956 

957, 966 
Mg^n V. NIIe», 11 Ohio «t. 53, 78 Am. 

Dec. 290 976 

•othm V. Horst. 178 U. S. 1, 44 L. ed. 

9r»3. 20 Sup. Ct, Rep. 780 804 

MFeri T. Elliott, 146 Maaa. 349, 4 Am. 

St. Rep. 316. 15 N. E. 768 821 

_ ▼. l'iiterM>n. 4 Paige, 450 313 

{•land T. Miller. ? Watts & S. 390 238 

»illn« y. Hhaver Wagon A, Carriage Co. 
KO Iowa, 390. 20 Am. St. Rep. 

427, 45 N. W. 1037 971 

S*Bl<k ▼. rhicago. K. I. & P. R. Co. 62 

Jowa. 167, 17 N. W. 458 891 

^mXy V. Jame«. 6 Taunt. 263 789 

R«ia«r T. Schamtiacber, 120 Pa. 579. 6 

Am. St. Kep. 732, 11 Atl. 779. 646 
650, 657 

J^'i* (UH-, 77 Pa. 276 754 

*"*? V D*'8 MolnpK Valley R. Co. 39 

^ Iowa, 246 881 

K9*-t:.jn. T. rnlted States Credit System 
To. 61 N. J. L. 543, 40 Atl. 

^, ^ 591 133 

• L K. A. 

Rose V. Walker, 139 Pa. 42, 23 Am. St. 

Rep. 160. 21 Atl. 167 172. 173 

Rowan t. Portland. 8 11. Mon. 232 754 

Royle y. Wynne, Craig & V. 252 497 

Rublee v. Davis, 33 Neb. 771). 29 Am. St. 

Rep. 500. r.l X. W. 135 245 

Rugan V. Sabln. 3 C. C. A. ."»78, 10 U. S. 

App. 519. 5.1 Fed. 415 242 

Ruhe T. Buck, 124 Mo. 178, 25 L. R. A. 178, 

46 Am. St. Uep. 439, 27 S. W. 

412 I 872 

Rupard v. Chesapeake A O. R. Co. 88 Ky. 

280, 7 1.. R. A. 316, 11 S. W. 

70 665 

Russell y. Alvarez, 5 Cal. 48 498 

V. Fagan. 7 Houst. (Del.) 396, 8 

Atl. 258 647 

V. Place, U4 U. S. 006, 24 L. ed. 

214 486 

Rnssellville v. White, 41 Ark. 485 349 

Ruter V. Foy, 46 Iowa, 132 612 

Ryan v. Barger, 10 III. 28 99 

V. Cafdwell, 106 Ky. 543, 50 S. W. 

966 252 

V. Dayton. 25 Conn. 188, 65 Am. 

Dec. 560 132 

V. Pennsylvania R. Co. 132 Pa. 

304, 19 Atl. 81 664 

T. United States. 13H T^ S. 68, 34 L. 

ed. 447, 10 Sup. Ct. Rep. 913.. 397 

Saddler v. White, 14 Tji. Ann. 173 241 

St. Johnsbury v. Thompson, 59 Vt. 300, 

59 Am. Rep. 731, 9 Atl. 571.. 349 
St. Louis V. Western U, Teleg. Co. 148 U. 

S. 92, 37 Jj. ed. 380, 13 Sup. 

Ct. Rep. 485 730 

St. LoulB, I. M. ft S. R. Co. V. Needham, 

25 L. R. A. S37, 11 C. C. A. 56, 

27 U. S. App. 227, 63 Fed. 

107 748 

T. Worthem, 52 Ark. 529, 7 L. R. A. 

874, 13 S. W. 254 459 

St. Louis Nat. Stockyards ▼. Wiggins B^rry 

Co. 112 111. 884, 54 Am. Rep. 

243 671 

St. Paul k D. R. Co. Y. Duluth. 56 Minn. 

494, 23 L. R. A. 88, 45 Am. 

St. Rep. 491, 58 N. W. 159... 629 
Salmon Falls. Mfg. Co. v. Goddard, 14 How. 

446, 14 L. ed. 493..; 631 

Salter v. Howard, 43 Ga. 601 96 

Salt Lake Lithographing Co. v. Ibex Mine 

k Smelting Co. 15 Utah, 440, 

62 Am. St. Rep. 944, 49 Pac. 

7Qg ^9Q 

San Antonio Real Estate Bldg. & L. Asso. 

T. Stewart, 94 Tex. 441, 86 

Am. St. Rep. 864, 61 S. W. 

886 253, 254 

Sanborn v. Flagler, 9 Allen, 474...* 631 

V. Woodman, 5 Cush. 36 868 

Blandage v. Studabaker Bros. Mfg. Co. 

142 Ind. 148, 34 L. R. A. 363. 

51 Am. St. Rep. 165, 41 N. E. 

350 _ gg5 

Sandburg v. Paplnean', * si ill! * 446 . . . . '. . 71 
Sanders v. l*ope, 12 Ves. Jr. 282 .... 858, 869 

Sandford v. Handy, 28 Wend. 260 414 

San Diego Land ft Town Co. v. National 

City, 174 V. S. 739, 43 L. ed. 

1154, 19 Sup. Ct. Ren. 804.. 311 
Sandys v. Florence, 47 L. J. C. P. N. S. 

598 649. 654, 656. «r>8, 662 

Santa Clara County v. Southern P. R. Co. 

118 U. S. 394, 30 L. ed. 118, 6 

Sup. Ct. Ren. 1132 880 

Sasseen v. Hammond, 18 R. Mon. 673 272 

Savage v. Fox, 60 X. H. 17 873 

Sayers v. Wall, 26 Gratt. 373, 21 Am. Rep. 

303 ,364 

Scantlln v. Allison, 12 Kan. 85 237 

Scheftel v. Hays, 7 C. C. A. 308. 19 U. S. 

App. 220. 5S Fed. 457 242 

Schllllnger v. Boes, 85 Ky. 357, 3 S. W. 427 69 
Schleider v. DIelman, 44 La. Ann. 463, 

10 So. 934 134 

Schmidt v. Northern Life Asso. 112 Iowa, 

41, 51 L. R. A. 141, 84 Am. 

St. Rep. 323. S3 N. W. 800 176 

Schoenwald v. Metropolitan Sav. Bank, 

57 N. Y. 418 324, 344 

Schoole V. Sail, 1 Sch. ft Lef. 176 498' 




Perry t. Barker, IS Ves. Jr. 205 4M 

▼. Barker. 13 Vee. Jr. 198 498 

V. State (Tex. Crlm. App.) 45 S. W. 

567 210 

I'eters y. Bowman, 98 U. S. 58, 25 L. ed. 

91 762 

PfelCfer v. Board of Education. 118 Mich. 

560, 42 L. R. A. 536, 77 N. W. 

250 596 

Pharr v. Bachelor, 3 Ala. 245 763 

l*henlx Ins. Co. t. Omaha lioan & T. Co. 

41 Neb. 834, 25 L. R. A. 679, 60 

N. W. 133 926 

Philadelphia, W. ft B. R. Co. v. Howard, 

13 How. 307, 14 L. ed. 157.. 971 
Philips V. Taylor, 93 Minn. 28, 100 N. W. 

649 625, 628 

Philips Case. See Philips t. Taylor. 
Phillips V. Postal Teleg. Cable Co. 130 N. 

C. 513, 89 Am. St. Rep. 868, 

41 8. E. 1022 634 

T. Waterhouse, 69 Iowa, 109, 58 

Am. Rep. 220, 28 N. W. 539.. 628 
Pickett y. Ferguson, 45 Ark. 177, 55 Am. 

Rep. 545 313 

Pierce, Re, 44 Wis. 411 314 

T. Merrill, 128 Cal. 473, 79 Am. 

St. Rep. 63, 61 Pac. 67 262 

PiersQii T. Lane, 60 Iowa, 60. 14 N. W. 

90 958. 9.%9, 961, 962 

Pifer T. Brown, 43 W. Va. 412. 49 L. R. A. 

497n, 27 S. E. 399 570 

Pllcher Y. Smith, 2 Head, 208 588 

Pingree t. Auditor General. 120 Mich. 

95, 44 L. R. A. 679, 78 N. W. 

1026 440 

Plnkerton ▼. Woodward. 33 Cal. 585, 91 

Am, Dec. 657 647, 660 

Plnnel's Case, 5 Coke, 117a 824 

825. 826, 827 
Pitcher Y. Livingston, 4 Johns. 1, 4 Am. 

Dec. 229 768 

T. Patrick, Minor (Ala.) 321, 12 

Am. Dec. 54 100 

Pitkin Y. Springfield. 112 Mass. 509 869 

Pittsburg, C. C. & St. L. H- Co. v. Cox, 

65 Ohio St. 497, 35 L. R. A. 

507. 45 N. K. 641 716 

Pittsburg, Pt. W. & C. R. Co. V. Deyinney, 

17 Ohio St. 197 748 

Pittsburgh V. Grier, 22 Pa. 54, 60 Am. 

Dec. 65 892 

Pittsburgh, C. k St. L. R. (^o. v. Adams, 

105 Ind. 151, 5 N. R. 187 170 

Pittsburgh, Ft. W. & C. R. Co. v. Hinds, 

53 Pa. 515, 01 Am. Dec. 224 . . 647 

Poirier y. Morris, 2 £1. & Bl. 89 245 

Polk Y. B'aris, 9 Yerg. 209, 30 Am. Dec. 

400 959, 963 

Y. Henderson. 9 Yeri;. 310 744 

Pollard Y. Dwight, 4 C ranch, 421, 2 L.. ed. 

_666 762 

Y. Photographic Co. (1888) U R. 

40 Ch. Dlv. 345 109 

Pope Y. Tuastall, 2 Ark. 209 826 

Popp Case. See Wkknkr v. Popp. 
Portwood Y. Montgomery County. 52 Miss. 

523 225 

Pounsett Y. Fuller, 17 C. B. 660 766 

Powell Y. Powell, 9 Humph. 486 357, 359 

Y. Smith. 2 Watts, 126 739 

Powell Case. See Powell v. Pow^ell. 

Pratt Y. Pratt, 33 Conn. 446 82 

Price Y. Deal, 90 N. C. 290 762 

Priddy y. Hartsook, 81 Va. 67 498 

Prince Albert t. Strange (1849) 2 De G. 

& S. 652 109 

Prince Albert's Case, 1 Macn. & G. 25... 109 
Pringle y. Ve«ta Coal Co. 172 Pa. 438, 33 

All. 690 639, 640 

Providence, The, 38 C. C. A. 670, 98 B'ed. 

13.1 299 

Prue v. New York, P. & B. R. Co. 18 R. I. 

360, 2i Atl. 450 191 

Pruitt v. Hannibal k St. J. R. Co. 62 Mo. 

.->27 512 

Pullen V. Hopkins. 1 l^a, 741 741 

Pullman Palace Car Co. v. Ix>wp. 28 Neb. 

239. 6 L. R. A. 809. 26 Am. St. 

Rep. 32,-., 44 N. W. 226 647 

Pullman's Palace Car Co. v. Harkins. 5 

i\ C. A. 326. 17 U. S. App. 22, 

55 Fed. 932 913 

Y. Metropolitan Street R. Co. 157 

IJ. S. 94. 39 L. ed. 632, 15 Sup. 

Ct. Rep. 503 981 

69 L. R. A. 

Pumpelly y. Green Bay k M. Canal C». 

18 Wall. 166, 20 L. ed. 557... 731 

Purdy Y. Steel, 1 Idaho. 216 57« 

Pnrvlance v. Jones, 120 Ind. 162, 16 Am. 

St. Rep. 319, 21 N. E. 1099.... S74 

Putnam y. Bicknell, 18 Wis. 333 361 

Y. Putnam, 3 Ariz. 182, 24 Pac. 320 57< 
V. Putnam, 8 Pick. 433 49^ 


Quaife Y. Chicago, k N. W. R. Co. 48 
Wis. 513, 33 Am. Rep. 821, 4 

N. W. 6^8 61« 

Queen Anne's County v. Talbot County. 99 

Md. 13, 57 Atl. 1 919, »» 

Quick Y. I^mon, 105 111. 578 2S 

Quidnick Co. v. Chafee, 13 R. I. 367.... «: 
Quhicy MIn. Co. v. Kitts, 42 Mich. 34. 3 

N. w. 240 m 

Qulnn Y. Leathern [1901] A. C. 495 91 

Radley y. London k N. W. R. Co. L. R. 1 

App. Cas. 754 

Rafferty y. Lougee, 63 N. H. 54 

Rahmef v. Lehndorff, 142 Cal. 681. 65 L. 

R. A. 88, 100 Am. St. Rep. 154. 

76 Pac. 659 652, 

Rand y. Hubbell« 115 Mass. 461, 15 Am. 

Rep. 121 

Randall y. Union R. Co. (R. I.) 59 Atl. 


Ransom y. Chicago, St P. M. k O. R. Co. 

62 Wis. 178, 51 Am. Rep. 718, 

22 N. W. 147 

Ratcliif Y. People, 22 Colo. 75, 43 Pac. 


Raubltschek v. Blank, 80 N. Y. 478 

Reab v. MrA lister, 8 Wend. 109 

Read y. Frankfort Bank, 23 Me. 321 

Y. Spaulding, 30 N. Y. 630, 86 Am. 

Real Y. Holllster, 20*Neb. iii* 29 N.' W. 


Reams v. State. 23 Ind. Ill 

Recohs V. Younglove, 8 Baxt. .387 762, 

Redell v. Moores, 63 Neb. 219. 55 L. R. A. 

740, 93 Am. St. Rep. 431, S>» 

N. W. 243 • 22:*. 

Redfleld y. Redlleld, 110 N. Y. 671. 18 N- 

K. 373 

Reed Y. McCord, 160 N. Y. 330. 54 N. B. 


Y. Western U. Teleg. Co. 1,15 Mo. 

661. 34 L. R. A. 492, 58 Am. 

St. Rep. 609, 37 S. W. 904. .. . 
Rees Y. Hlggins, 9 Kan. App. 832, 61 Pac. 

500 : 740. 

Reeves v. Butcher [1891] 2 Q. B. 509... 
Refeld y. Woodfolk, 22 How. 318. 16 L. 

ed. 370 23», 

Reg. Y. Harris, 10 Cox C. C. 352 

Rehberg v. Grelser. 24 Mont. 487, 62 Pac 

820, 63 Pac. 41 

Reld Y. Eatonton Mfg. Co. 40 Ga. 103. '.: 

Am. Rep. 563 

Reining v. New York, L. k W. R. Co. 12" 

N. Y. 168. 14 L. R. A. 133. 2J< 

N. E. 640 on:;. 

Reuss Y. Picksley, L. R. 1 Kxch. 342, 3:» 

L. J. Exch. N. 8. 218 

Rex Y. Carllle. 6 Car. & P. 636 

Y. Davis, 4 Burr, 2089 

V. Phllipps, 3 Burr. l.'»«4 

Y. Wilkes, 4 Burr. 2527 

Reynolds v. Franklin, 44 Minn. 30, 20 .\m. 
St. Rep. 540, 46 N. W. 1.S9.... 

Y. ONell, 26 N. J. Eq. 223 

V. Pitt, 19 Ves. Jr. l.U »«><. 

v. Reynolds, 55 Ark. 369. 18 S. W. 


Rhoadabeck v. Blair Town I^t k Laad 
Co. 62 Iowa, 368, 17 N. W 


Rhodes v. Forwood, L. R. 1 App. Ca« 


Rice Y. Fidelity k D. Co. 43 C. C. A. 270. 

103 Fed. 427 

Rich V. Baker, 3 Denio, 79 

Richards y. Hayes, 17 App. Dlv. 422. 4.' N 

Digitized by VjOO'QIC 




XkbardMD T. M^nisb. 2 Binic. 220 884 

▼. Kicbard8on, 75 Me. 570, 46 Am. 

Rep. 428 79. 80 

Richland rounty v. I^awrence . County. 12 

111. 1 .....729 

BichiDODd V. Dubuque ft S. C. R. Co. 26 

Iowa, 191 884 

V. Iforford. 4 Wash. 337« 30 Fac. 

242. 31 Pac. 513 580 

Bicbmond k D. R. (*o. v. Burnett, 88 Va. 

538, 14 8. E. 372 928 

Richmond R. k Klectrlc Co. t. Garthriirbt. 
92 Va. 627, 32 L. R. A. 220, 
53 Am. St. Rep. 844. 24 S. E. 

267 305 

RlckettB ▼. Mornington. 7 Sim. 200 313 

RlddJesbaxger 7. Hartford F. Ins. Co. 7 

Wall. 386. 19 L. ed. 257 266 

269. 270 
RlddJcsbar«er Case. See Riddlkrbakoke 

V. Habtfobd p. Ins. Co. 
Rldseway v. I^mpbear. 99 Ind. 2o3. .963, 967 
Risnej V. Rifoiey. 127 N. Y. 413, 24 Am. 

St. Rep. 462, 28 N. E. 405... 676 

RUey ▼. Stailwortb. 56 Ala. 481 100 

RiBffle V. I'ennsylvanla R. Co. 164 Pa. 629, 
44 Am. St. Rep. 628, 30 Atl. 

492 883 

Ripley t. Palie. 12 Vt. 354 903 

Ritchie ▼. Richards, 14 UUh, 345, 47 Pac. 

670 187 

RobbiDs T. HoUey. 1 T. B. Mon. 191 239 

T. Sprlni^field St. R. Co. 165 Mass. 

30. 42 N. E. 334 303 

Sobeoo T. Marlatt. 136 Pa. 35, 20 Atl. 

512 950 

Roberson t. Rochester Folding Box Co. 
(1901 » 64 App. DlT. 30, 71 N. 
Y. Supp. 876, reyeraed in 171 N. 
Y. 540. 59 L. R. A. 478, 89 Am. 

St. Rep. 828, 64 N. E. 442 111 

112, 114, 115 
RobersoB Case. See Robbbson t. Roci^bs- 

TER Folding Box Co. 
Robert T. Powell. 168 N. Y. 414, 55 L. R. 
A. 773. 85 Am. St. Rep. 673. 61 

N. E. 099 86 

Roberts ▼. Donovan, 70 Cal. 108, 9 Pac. 

180, 11 Pac. 599 99 

▼. Hammon, 29 Iowa. 128 263 

T. Wilcoxson, 36 Atk. 356 499 

BobertBon ▼. Chicago k E. R. Co. 146 

Ind. 486. 45 N. E. 655 170, 172 

T. Phillips. 3 G. Greene. 220 896 

KobinBon ▼. Beall. 3 Yeates. 267 100 

▼. Coulter, 90 Tenn. 707, 25 Am. St. 

Kep. 708. 18 8. W. 250... 762, 763 
▼. George F. Blake Mfg. Co. 143 

Mans. 528, 10 N. B. 314 938 

▼. Harman, 1 Exch. 850 766 

▼. Hang, 71 Mich. 38. 38 N. W. 668 349 

▼. Owen, 46 N. H. 387 313 

▼. Robinson, 1 Burr. 38 966 

_ ▼. State. 2 Coldw. 181 293 

ft«cbcffter ▼. West. 164 N. Y. 510. 53 L. R. 
A. 548. 79 Am. St. Rep. 659. 

_ 58 N. E. 673 . 820 

■•ckland Water t!o. v. Adams, 84 Me. 
472, 30 Am. St. Rep. 368, 24 

Atl. 840 311 

Boddj T. Fitzgerald, 6 H. L. Cas. 823... 956 
* . . »57, 966 

Badgers ▼. Nlles, 11 Ohio «t. 53, 78 Am. 

Dec. 290 976 

RochiD T. Horst. 178 U. S. 1, 44 L. ed. 

a-iS, 20 Sup. Ct. Rep. 780 804 

Sogera t. Elliott, 146 Mass. 349, 4 Am. 

St. Rep. 316. 15 N. E. 768 821 

▼. Pstpr>!on. 4 Paige, 450 313 

Bolaad t. Miller, ;< Watts A S. 390 238 

Rrilins ▼. Sharer Wagon k Carriage Co. 
80 Iowa, .390, 20 Am. St. Rep. 

427, 45 N. W. 1037 971 

Roaick ▼. Cblcago. It. I. k P. R. Co. 62 

Iowa. 167, 17 N. W. 458 891 

Emminy v. .Iaine«. 6 Taunt. 263 789 

R^aamel ▼. Srhambacher. 120 Pa. 579. 6 

Am. St. Rep. 732, 11 Atl. 779. 646 
650, 657 

aeoig Case. 77 Pa. 276 754 

B«Be T. I>e8 Moines Valley R. Co. 39 

Iowa. 246 881 

e^eats'im v. I'nlted States Credit System 
Co. 61 N. J. L. 543, 40 Atl. 

^, 591 133 

• LR. A. 

Ross T. Walker, 1.19 Pa. 42, 23 Am. St. 

Rep. 100. 21 Atl. 157 172, 173 

Rowan t. Portland. 8 B. Mon. 23:^ 754 

Royle y. Wynne, (^raip k V. 252 497 

Rublee V. Davis. 33 Nel). 779. 29 Am. St. 

Ren. .'MM). .^»1 N. W. 135 245 

Rugan V. Sabin, 3 c\ C. A. 578, 10 U, S. 

App. 519. .VJ Fed. 415 242 

Ruhe V. Buck, 124 Mo. 178, 25 L. R. A. 178, 

46 Am. St. Hep. 439, 27 S. W. 

412 872 

Rupard v. Chesapeake k O. R. Co. 88 Ky. 

280, 7 L. R. A. 316, 11 S. W. 

70 665 

Russell T. Alvarez, 5 (^al. 48 498 

T. Fagan. 7 Uonst. (Del.) 396. 8 

Atl. 258 647 

▼. Place, 94 U. S. 006, 24 L. ed. 

214 486 

Rnssellville v. White. 41 Ark. 485 349 

Ruter V. Foy, 46 Iowa, 132 612 

Ryan v. Barger. 16 III. 28 99 

T. Caldwell, 106 Ky. 543, 50 S. W. 

966 252 

T. Dayton. 25 Conn. 188, 65 Am. 

Dec. ,-»60 132 

V. Pennsylvania R. I'o. 132 Pa. 

304, 19 Atl. 81 664 

T. United States, 13H T'. S. 68, 34 L. 

ed. 447, 10 Sup. Ct Rep. 913.. 397 

Saddler ▼. White, 14 La. Ann. 173 241 

St. Johnsbury v. Thompson, 59 Vt. 300, 

59 Am. Rep. 731, 9 Atl. 671. . 349 
St. Louis v. Western l^. Teleg. <'o. 148 U. 

S. 92. 37 Ti. ed. 380, 13 Sup. 

Ct. Rep. 485 730 

St. LoQlB, I. M. k S. U. Co. V. Needham, 

25 L. R. A. .S37, 11 C. C. A. 56, 

27 U. S. App. 227, 63 Fed. 

107 748 

T. Worthem. 52 Ark. 529, 7 L. R. A. 

374. 13 S. W. 254 459 

St. Loulfl Kat. Stockyards ▼. WIggius Ferry 

Co. 112 111. 884, 54 Am. Rep. 

243 671 

St. Paul k D. R. Co. y. Duluth, 56 Minn. 

494, 23 L. R. A. 88, 45 Am. 

St. Rep. 491, 58 N. W. 159... 629 
Salmon Falls. Mtg, Co. v. Goddard, 14 How. 

446, 14 L. ed. 493..^ 631 

Salter ▼. Howard, 43 Ga. 601 96 

Salt Lake Lithographing Co. v. Ibex Mine 

k Smelting Co. 15 Utah. 440, 

62 Am. St. Rep. 944, 49 Pac. 

•ygg ^ ^^ 

San Antonio Real' Estate Bldg. kh. Asbo'. 

V. Stewart, 94 Tex. 441, 86 

Am. St. Rep. 864, 61 S. W. 

886 263, 254 

Sanborn y. Flagler. 9 Allen. 474... « 631 

y. Woodman, 5 Cush. 36 868 

Slandage y. Studabaker Bros. Mfg. Co. 

142 Ind. 148. 34 L. R. A. 363. 

51 Am. St. Rep. 165, 41 N. B. 

380 885 

Sandburg y. Paplnoan, 81 111. 446 71 

Sanders y. Pope, 12 Ves. Jr. 282 .... 858, 869 

Sandford y. Handy, 23 Wend. 260 414 

San Diego liand k Town Co. y. National 

City, 174 IT. S. 739. 43 L. ed. 

1154, 19 Sup. Ct. Ren. 804.. 311 
Sandys y. Florence, 47 L. J. C. P. N. S. 

59N 649. 654, 656. tr.S, 662 

Santa Clara County y. Southern P. R. Co. 

118 U. S. 394, 30 L. ed. 118, 6 

Sup. Ct. Ren. 1132 880 

Sasseen v. Hammond, 18 B. Mon. 673.... 272 

Savage y. Fox. 60 N. II. 17 873 

Sayers v. Wall, 26 CSratt. 373, 21 Am. Rep. 

303 364 

Scantlln y. Allison, 12 Kan. 85 237 

Scheftel v. Hays, 7 C. C. A. ."JOS. 19 U. S. 

App. 220. 5S Fed. 457 242 

Schlllinger v. Hoes, 85 Ky. 357, 3 S. W. 427 09 
Schleider v. Dlelman. 44 La. Ann. 463, 

10 .So. 934 134 

Schmidt v. Northern Life A.sso. 112 Iowa, 

41, 51 L. U. A. 141, 84 Am. 

St. Rep. 323, S3 N. W. 800 176 

Schoenwald v. Mrtropolitau Sav. Bank, 

57 N. y. 418 324, 344 

Schoole y. Sail, 1 Sch. k Let. 176 498 


Schroeder v. Schmidt, 74 Cal. 450, 16 Pac. 

243 577 

Schuchmann t. Knoebel, 27 111. 175 237 

Schurman, Re, 40 Kan. 533, 20 Pac. 277 . . 183 
Schuyler v. CurtiB, 27 Abb. N. O. 387, 15 

N. Y. Supp. 787 109, 110, 111 

Scorell y. Bozall, 1 Younge & J. 306 828 

Scott T. Rand, 118 MasB. 215 923 

Scranton t. Wheeler, 170 U. S. 141, 45 L. 

ed. 126, 21 Sup. Ct. Rep. 48.. 032 
Scrimshlre v. Scrim shire, 2 Utigg. Consist. 

Rep, 305 404 

Scudder y. Trenton Delaware Falls Co. 1 

N. J. Eq. 604, 23 Am. Dec. 

756 760 

y. Union Nat. Bank, 01 U. S. 406, 

23 L. ed. 245 872 

Seager y. McCabe, 02 Mich. 186, 16 L. R. 

A. 247, 52 N. W. 200 001 

Seayer y. Bradley, 170 Mass. 320, 88 Am. 

St. Rep. 384. 60 N. E. 705 563 

Second Universal 1st Church v. Colegrove, 

74 Conn. 83. 49 Atl. 002 83 

Security Co. y. Hartfoid, 61 Conn. 80, 

23 Atl. 609 81 

Secarlty Say. k L. Asso. y. Elbert, 153 

Ind. 108, 54 N. E. 753 421 

Seeman y. Biemann, 108 Wis. 305, 84 N. 

W. 400 850 

Selffert & W. Lumber Co. y. Hartwell, 04 

Iowa, 576. 58 Am. St. Rep. 

413, 63 N. W. 333 070 

Selta y. Brewers' RefrlRerating Mach. Co. 

141 U. S. 510, 35 L. ed. 837. 

12 Sup. Ct. Rep. 46 076 

077 070 080 
Seltz Case, See Skitz v. Brewers' Re- 
frigerating Mach. Co. 
Semayne's Case, 5 Coke, 01, 1 Smith, Lead. 

Cas. 228 105 

Senft y. Carpenter, 18 R. I. 545, 28 Atl. 

063 832 

Senior y. Ratterman, 44 Ohio St. 661, 11 

N. E. 321 716 

Senter y. Hill. 5 Sneed, 505 240 

Sentner v. Tees, 132 Pa. 216. 18 Atl. 1114 628 
Sessions y. Crunkliton, 20 Ohio St. 340.. 811 
Sewell y. Moore, 106 Pa. 570, 31 Atl. 370. 802 
Shaddon y. Knott, 2 Swan, 358, 58 Am. 

Dec. 63 .' 730 

Shany y. Androscoggin Mills, 66 Me. 420 038 

iihapleigh v. Wyman. 134 Mass. 118 304 

Sharon Iron Co. v. Erie, 41 Pa. 341 860 

Sharpe's Estate, 15 W. N. C. 419 944 

Shayer y. Pennsylvania Co. 71 Fed. 031 . . 714 

Shaver's Case. See Shaver y. Pennszl- 


Sheehan v. Flynn. 59 Minn. 436, 26 L. R. 

A. 632, 61 N. W. 462 

464, 625, 626, 628 

Sheffer y. Wllloughby, 163 111. 518, 34 L. 

R. A. 464, 54 Am. St. Rep. 483, 

- 45 N. E. 253 049, 655, 658 

Shelley's Case 954, 9.55, 056, 957, 058 

000. 901, 062, 063, 064 
065. 066, 067. 068, 000 
Shepherd v. Thompson. 122 U. S. 236, 30 

L. ed. 1157, 7 Sup. Ct. Rep. 

1220 262 

Sherburne v. Shaw, 1 N. U. 157, 8 Am. 

Dec. 47 631 

Sherlock y. Ailing, 03 U. S. 00, 23 L. ed. 

810 712 

Sherron y. Hall. 4 Lea, 500 350 

Shields V. Dodge, 14 Lea, 3.'>G 730 

Shimer y. Mann, 00 Ind. 100, 50 Am. Rep. 

82 065 

Shirley v. Shewmaker. 23 Ky. L. Rep. 452, 

63 S. W. 11 37 

Shively y. Semi-Tropic Land & W. Co. 00 

Cal. 2:>9, 33 Pac. 848 763 

Shoemaker v. Smith, 37 Ind. 122 883 

y. United States, 147 U. S. 282, 37 

L, ed. 170, 13 Sup. Ct. Rep. 

361 "•*>^ 

Shreve v. Bhreve. 43 Md. 382 066 

Shurtieff y. United States. 180 U. S. 317, 

47 L. ed. 832, 23 Sup. Ct. Rep. ^ 

535 ?,*>0 

Sibley y. Smith. 2 Mich. 486. --Ml 

Slceloff y. Redman. 26 Ind. 063 

Slegrlst y. Arnot, 86 Mo. 200, 56 Am. Rep. 

424 • •*"** 

69 L. R. A. 

SIgafus y. Porter, 170 U. S. 116, 45 L. ed. 

113, 21 Sup. Ct. Rep. 34. .412, 41) 
Simcoke v. Grand Lodge, A. O. U. W. 84 
Iowa. 383, 15 L. R. A. 114. 51 

N. W. 8 175 

Simmonds v. Holmes, 61 Conn. 1, 15 L. R. 

A. 253, 23 Atl. 702 335 

Simon v. Myers, 68 Ga. 76 101 

Simpers v. Slmpei-s, 15 Md. 160 1^ 

Simpson y. Jennings, 15 Neb. 671, 19 N. 

W. 473 , . . . 237 

y. Keokuk, 34 Iowa, 568 6J0 

Sims y. Bond. 5 Bam. ft Ad. 380 6$0 

y. RlckeUs, 35 Ind. 181, Am. Rep. 

679 S66 

Singleton y. Hill, 91 Wis. 51, 51 Am. St. 

Rep. 868, 64 N. W. 588 396 

Slater. Ex parte. 72 Mo. 102 3s7 

Sisters of Charity y. Kelly, 67 N. Y. 409. 4::7 
S. K. Edwards Hall Co. v. Dresser. 168 

Mass. 136. 46 N. E. 420 S»50 

Sledge y. Swift, 53 Ala. 110 IW 

Slemmer y. Crampton, 50 Iowa 303.. .959, 9iil 
Slide & S. Gold Mines v. Seymour, 15.H U. S. 
509, 38 L. ed. 802, 14 Sup. Ct. 

Rep. 842 239 

Slocum V. Seymour, 36 N. J. L. 138, 13 Am. 

Rep. 432 828 

Sloggy y. Dillworth, 38 Minn. 179, 8 Am. 

St. Rep. 656, 36 N. W. 451... 629 
Smalley y. Ranken, 85 Iowa, 612, 52 N. 

W. 507 252.253 

Smalley Case. See Smalley v. Ranken. 

Smart v. Wolfe, 3 T. R. 342 4a< 

Smith y. Agawan Canal Co. 2 Allen, 356.. 935 
y. Alabama, 124 U. S. 465, 31 L.. ed. 
508, 1 Inters. Com. Rep. 804. 

8 Sup. Ct. Rep. 564 712 

y. Applegate, 23 N. J. L. 357 761^ 

y. BoIIes, 132 U. S. 125, 33 L. ed. 

279, 10 Sup. Cl. Itep. 39 412 

▼. Brady. 17 N. Y, 173. 72 Am. Dec. 

442 132 

y. Bryan, 5 Md. 151, 59 Am. Dec. 

104 82S 

y. Com. 54 Pa. 209, 93 Am. Deo. 

686 1<^ 

y. Com. 108 Ky. 53, 55 S. W. 718. . 273 

y. Countryman, 30 N. Y. 650 414 

y. Fly, 24 Tex. 353, 76 Am. Dec. 

lt)9 262 

y. Hastings, 29 Vt. 240 960. IHlJ 

y. Herd, flO Ky. 56, 60 S. W. 841. 2»U» 

y. St. Paul ft D. R. Co. 44 Minn. 

17, 46 N. W. 149 S^0 

V. Seiberling, 35 Fed. 677 30»J 

y. Sioux City, 119 Iowa, 50, 03 N. 

W. 81 0S'» 

y. Smith, 28 N. J. L. 208, 78 Am. 

Dec. 49 7CT 

y. Valence. 1 Rep. in Ch. 169 {>T'> 

Smith's Estate, 140 Pa. 344. 23 Am. St 

Rep. 237, 21 Atl. 438 ^3 

Smock y. Smock, 37 Mo. App. .56 82Jj 

Smyth v. Ames, 169 U. S. 466, 42 L. ed. 

819, 18 Sup. Ct. Rep. 418 311 

Sneed y. Moorehead, 70 Miss. 690. 13 So. 

235 050. 6.'ri 

Snoddy y. Kreutch, 3 Head. 303 744 

Snodgrass v. Ilyder, 95 Tenn. 575. 32 S. 

W. 764 361 

Snow y. Sheldon, 126 Mass. 332, 30 Am. 

Rep. 684 60»J 

Snyder y. Vaux, 2 Rawie, 427, 21 Am. Dec. 

466 739 

Sons of Abraham v. Gerbert. 57 N. J. I^ 

395, 31 Atl. 383 76T 

South Bend Chilled Plow Co. y. George C. 
Crlbb Co. 97 Wis. 230, i2 N. 

W. 749 614 

South Boston Iron Co. y. Brown, 63 Mo. 

139 214 

Southern Indiana R. Co. y. Ilarrell. 101 
Ind. 689, 63 L. R. A. 400, US 

N. E. 262 170. 172 

y. Martin, 100 Ind. 280, 60 N. K. 

886 170, 172 

Southern Kansas R. Co. v. Rice, 38 Kan. 
398, 5 Am. St. Rep. 766, 16 Pac. 

817 64T 

Southern R. Co. v. Hall, 107 Tenn. 512, 64 

S. W. 481 739 

Spader y. Mural Decoration Mfsr. Co. 47 N. 

J. Eq. 18, 20 Atl, 378 134 



SpaldlDs T. Rosa. 71 N. Y. 40, 27 Am. 

Rep. 7 132 

Speakoian ▼. Forepausb* 44 Pa. 374 791 

Spence r. Smith. 121 Oal. 536. 66 Am. St. 

Rep. 62, 53 Par. 653 69 

Spacer t. Johnston, 58 Neb. 44, 78 N. 

W. 482 237 

Spies, Ex parte. See Spibs v. Illinois 

T. llliDOlM, 123 IT. S. 131, 31 I^. ed. 

80. 8 Sup. Ct. Rep. 21 471 

Splller T. Woburn. 12 Allen. 127 596 

SpohD r. Missouri P. R. Co. 87 Mo. 74 661 

Springfield t. Connecticut River R. Co. 4 

CuRh. 63 729 

Springfleld Mill Co. v. Barnard ft L. Mfg. 
Co. 26 O. C. A. 389. 49 U. S. 

App. 438, 81 Fed. 261 240 

Sprlnufield Twp. v. Demott, 13 Ohio, 104. . 832 
SparJock 7. Brown, 91 Tenn. 241, 18 8. W. 

868 360 

SUatB T. Ten Eyck, 3 Calnes, 111, 2 Am. 

Dec, 254 763 

Stancllft T. Norton, 11 Kan. 218 252 

^UDdard Life ft Accl. Ins. Co. t. Board 
of Assessors, 95 Mich. 466, 55 

N. W. 112 440 

>fMhope T. Ha worth, 3 Times L. R. 34 . . 869 
i^tanley t. Bircher, 78 Mo. 245. .650, 655, 658 
^ute 7. Adams, 115 N. C. 775. 20 8. E. 

722 408 

T. Adams, 76 Mo. 357 383 

T. Ah Ijte, 18 Or. 540. 23 Par. 424 . . 469 
T. ATery, 7 Conn. 267, 18 Am. Dec. 

105 181. 182 

T. Bailer, 26 W. Va. 90, 63 Am. Rep. 

66 182 

▼. Belding, 43 Or. 95, 71 Pac. 330. . 473 

T. Book, 41 Iowa. 550, 20 Am. Rep. 

609 118 

T. Brown, 7 Or. 186 469 

T. Butler, 8 Wash. 194. 25 L. R. A. 
434, 40 Am. St. Rep. 900, 35 

Pac. 1093 182 

T. Oalder, 23 Mont. 504, 59 Pac. 

909 205 

T. Cantlln, 118 Mo. 100, 23 8. W. 

1091 385 

T. Colvin, 11 Humph. 599, 54 Am. 

l>ec. 60 275 

T. Dlerberger. 96 Mo. 666, 9 Am. 8t. 

Rep. 380. 10 «. W. 168.. 384, 385 

T. Dodson, 4 Or. 64 469 

T. r>oon. R. M. Charlt. ((}a.) 1 119 

T. Dongiaa County Road Co. 10 

Or. 198 471 

T. Fletchall. 31 Mo. App. 296 472 

v. Fuller. 96 Mo. 165, 9 8. W. 

583 385 

T. Furgerson, 162 Mo. 668, 63 8. W. 

101 385 

T. Furserson, 152 Mo. 92, 53 8. W. 

427 385 

v. Glahn, 97 Mo. 679, 11 8. W. 260 383 
V. Grant. 79 Mo. 137, 49 Am. Rep. 

218 383 

▼. Hall, 32 *n! "jV il*i6.V '.'.'.'.'.'.'.]'. 118 
T. Harney. 101 Mo. 470, 14 8. W. 

657 182 

T. Harris. 121 Mo. 446, 26 8. W. 

558 913 

T. Heck, 23 Minn. 549 672 

T. Howery, 41 Tex, 506 118 

V. Jansen, 22 Kan. 498 408 

r. Keeton, 9 Baxt. 559 293 

V. Kelly, 77 Conn. 266, 58 Atl. 705 939 

▼. Kelm. 79 Mo. 515, 386, 387, 388 

T. Kennedy. 76 N. C. 251, 22 Am. 

Rep. 683 494 

▼. Kinney. 81 Mo. 101 180 

T. Kyle. 166 Mo. 303. 50 L. R. A. 

115, 65 S. W. 763 387 

' 388. 471, 472 
T. Lane. 158 Mo. 572, 59 8. W. 965 384 

T. Uverack. 34 N. J. L. 204 567 

T. Lawrence, 12 Or. 207, 7 Pac. 

116 409 

▼. Lee Yan Yan, 10 Or. 365 469 

V. Uighton. 23 N. H. 167 117 

T. Lorry, 7 Baxt. 95, 32 Am. Rep. 

555 293 

T. McNally, 87 Mo. 644 383,385 

T. Magera. 36 Or. 38, 58 Pac. 892. . 478 

V. Mans. 6 Coldw. 557 293 

^ ▼. Maze, 6 Uumph. 17 293 

State Y. Meyers, 99 Mo. 107, 12 8. W. 

Jfl6 385. 386, 388 

r. Miller, 53 Iowa, 154, 4 N. W. 

900 118 

T. Moren, 48 Minn. 555, 51 N. W. 

618 508 

Y. Mumford. 73 Mo. 647, 39 Am. 

Rep. 532 508 

T. Nelson, 52 Ohio St. 88, 26 L. R. 

A. 317, 39 N. E. 22 715 

T. Norwich ft W. R. Co. 80 Conn. 

290 81 

▼. Nulf. 15 Kan. 404 178, 180 

T. O'Connor, 58 Minn. 193, 69 N. 

W. 999 672 

▼. Parker, 39 Mo. App. 116 ... 472 

V. Pohl, 170 Mo. 422, 70 8. W. 695 472 
T. Portsmouth ft C. Turnp. R. Co. 

87 Ohio St. 481 716 

▼. Quald. 43 La. Ann. 1076. 26 

Am. St Rep. 207, 10 So. 183.. 118 
▼. Ransberger, 106 Mo. 135, 17 8. W. 

290 388, 471 

T. Records. 4 llarr. (Del.) 554 117 

T. Robinson, 55 Minn. 169, 66 N. W. 

694 672 

r. Rose, 142 Mo. 418, 44 8. W. 329 384 


T. Seaton, 106 Mo. 198, 17 8. W. 

109 914 

▼. Shaw. 9 8. C. N. S. 94 186, 187 

V. Sickle. Bray ton (Vt.) 132 388 

T. Simpson. 28 Minn. 66, 41 Am. 

Rep. 270, 9 N. W. 78 275 

T. Sncff, 22 Neb. 481, 35 N. W. 219 408 
T. Spellmire, 67 Ohio St. 86, 65 N. 

E. 622 420 

T. Spencer. 6 Or. 152 s 469 

V. Stacy, 103 Mo. 11, 15 S. W. 147. . 385 
T. Stickncy, 53 Kan. 308, 42 Am. 

St. Rep. 284. 36 Pac. 714 408 

T. Sunapce Dam Co. 70 N. H. 458, 

.59 L. R. A. 55, 5« Atl. 108... 935 

y. Tannahlll. 4 Kan. 117 180 

V. Tucker. 36 Or. 291, 61 L. R. A. 

246, 61 Pac. 894 469 

T. Waters, 156 Mo. 132, 56 8. W. 

734 385 

y. Wllkson. 36 Mo. App. 373 472 

T. Wisnewski, 13 N. D.— , 102 N. 

W. 883 409 

y. Wrightsviiie ft T. R. Co. 104 Oa. 

437, 30 8. K. 891 122 

y. Young. 55 Kan. 849, 40 Pac. 

650 183 

State ex rel. Prout y. Aitken. 62 Neb. 428, 

27 N. W. 153 452 

Runge y. Anderson, 100 Wis. 523. 42 

L. R. A. 239, 76 N. W. 482.186, 188 
Smith y. Anderson, 26 Fla. 240, 8 

So. 1 187 

Milwaukee Street R. Co. y. Ander- 
son, 90 Wis. 550, 63 N. W. 

746 459 

Weiss y. District Board, 76 Wis. 

177, 7 L. R. A. 330, 20 Am. 8t. 

Rep. 41. 44 N. W. 967 597, 698 

Nolan V. District Court, 22 Mont. 

25, 55 Pac. 910 179 

Breckenridge v. Fleming (Neb.) 

97 X. \V. 1063 452 

Matthews v. Forsythe. 147 Ind. 466, 

33 L. R. A. 221, 44 N. K. 593. . 885 
Atty. Gen, v. Greenville Bldg. ft 

Sav. AsHo. 29 Ohio St. 92 419 

Bradford y. Hamilton, 40 Kan. 323, 

19 I*ac. 723 225 

Atty. Gen. y. Interstate Sav. In- 
vest. Co. 64 Ohio St. 283, 52 

L. R. A. 530, 83 Am. St. Rep. 

754. 60 N. E. 220 508 

Poe V. Jones, 51 Ohio St. 492, 37 

N. E. 945 814 

Kellogg V. Kansas Mercantile Asso. 

45 Kan. 351, 11 L. R. A. 430, 

23 Am. St. Rep. 727, 25 Pac. 

984 507 

Shriver v. Karr. 04 Neb. 514, 90 N. 

W. 298 453 

Robb V. Kiowa County, 41 Kan. 

630. 21 Pac. 6(»1 225 

Terre Haute v. Kolsem, 1.30 Ind. 

434, 14 L. R. A. 566, 29 K. E. 

505 879, 883 

Batz y. Lewis, 118 Wis. 432, 95 N.^^^^^^^T^ 

W. 388 .Ofi)glC 



State ex rel. Lanning v. Lonsdale, 48 Wis. 

348, 4 N. W. 390 314 

Taylor v. Lord, 28 Or. 498, 31 L. 

R. A. 473, 43 Pac. 471 471 

Colburn v. Oberiin Bldg. & L. Asso. 

35 Ohio St. 258 419 

Young ▼. Osborn, 60 Neb. 415, 83 

N. W. 357 453 

Cornell v. Poynter, 59 Neb. 417, 

81 N. W. 431 453 

Duensinr t. Kobj, 142 Ind. 168. 33 
L. R. A. 213, 51 Am. St. Rep. 

174, 41 N. E. 145 879,882 

Bee BIdg. Co. t. Savage, 65 Neb. 

714, 91 N. W. 716 454 

Freeman y. Scbere, 65 Neb. 853, 59 
L. R. A. 927, 91 N. W. 846, 93 

N. W. 169 597 

Stlngley v. Sulllyan, 74 Ind. 121 . . 883 
Beek v. Wagener, 77 Minn. 483. 46 
L. R. A. 442, 77 Am. St. Rep. 

681, 80 N. W. 633 672 

State, Menger, Prosecutor, t. Laur. See 

Mengeb v. Laub. 
State, Vanatta, Prosecutor t. Runyon, 41 

N. J. U 98 443 

State use of Meidling v. United Railways ft 
Electric Co. 97 Md. 73, 54 Atl. 

612 192 

State Bank v. Coquillard. 6 ind. 232 885 

State Park v. Henry, 38 Minn. 2G6, 36 N. 

W. 874 754 

Steadwell v. Morris, 01 Ga. 97 241 

Steel V. Miller, 40 Iowa, 403 .-»K0. .'.«! 

▼. Steel. 'M\ N. (?. (1 Ir**^. Kn.> 4.v» HOC 
Steger v. Arctic Refrlg. Co. 89 Tenn. 453, 

11 L. K. A. 580, 14 S. \V. 108 1 899 
Stelk V. McNulta, 40 C. C. A. 357, 99 Ked. 

138 190. 191 

Steinhauer v. Wltman. 1 Serir, A R. 438.. 238 

Stephens v. Thompson. 28 Vt. 77 H25 

Sterling ▼. Baldwin, 42 Vt. 306 828 

Stern, Re, 54 C.«C. A. 60, 116 Fed. 604.. 720 

Stevens v. Chamberlln, 51 L. R. A. 513.. 171 
Stewart v. Brooklyn & C. T. R. Co. 90 N. 

y. 588, 43 Am. Rep. 185.. 656, G61 

V. Clinton. 79 Mo. 003 620 

V. Drake, 9 N. J. h. 139 766 

V. Lehigh Valley R. Co. 38 N. J. L. 

50o 149 

V. Wilson, 23 Minn. 449 116 

V. Loring, 5 Allen, 306, 81 Am. Dec. 

747 132 

Stockmeyer v. Reed, 55 Fed. 259 717 

Stockwell V. Phelps. 34 N. Y. 363, 90 Am. 

Dec. 710 739. 746 

Stokes V. Saltonstall, 13 Pet. 181, 10 L. ed. 

115 583 

Stoltman v. I>ake (Wis.) 102 N. W. 920.. 831 

Stone V. Ellis. 9 Cuah. 95 868 

V. Mississippi. 101 U. S. 814, 25 L. 

ed. lOtO 507 

Story V. Marshall, 24 Tex. 305, 76 Am. 

Dec. 106 366 

V. New York Kiev. R. Co. 90 N. Y. 

122, 43 Am. Rep. 146 634. 635 

Stott V. Churchill, 15 Misc. 80. 36 N. Y. 

Supp. 477 650, 655 

Stout V. Grant County, 107 Ind. 343, 8 N. 

E. 222 231 

T. Marshall, 75 Iowa, 498, 39 N. W. 

808 203 

Stoutenburgh v. Tompkins, 9 N. J. Eq. 332 396 
Stowers v. Postal Teleg. Cable Co. 68 
Miss. 559, 12 L. R. A. 864. 24 
Am. St. Reo. 290. 9 So. 356.. 636 
Stuart T. New Albany Mfg. Co. 15 Ind. 

App. 184, 43 N. E. 961 172 

Stull'8 Estate, 183 Pa. 625, 39 L. R. A. 539, 

39 Atl. 16 494 

Sturges V. Vanderbllt, 73 N. Y. 390 132 

Sturtevant v. Starln, 19 Wis. 268 832 

Sullivan v. Lewiston Inst, of Savings, 56 

Me. 507, 96 Am. Dec. 500.. 337 

V. Postal Teleg. Cable Co. 61 C. C. 

A. 1, 123 Fed. 411 50 

V. State, 121 Ind. 342, 23 N. K. 

150 885 

V. Sullivan, 66 N. Y. 37 741 

Supreme Council A. L. H. v. Black. 59 ('. 

C. A. 414, 123 Fed. 0.-)O..S03. 804 
V. Daix, 64 C. C. A. 435, 130 Fed. 

101 804 

Snydam v. Jenkins, 3 Sandf. 643 289 

69 L. R. A. 

Swafford v. Whipple. 3 G. Greene, 261. 54 

Am. Dec. 498 762" 

Swearlngen v. I^hner, 93 Iowa, 147. 26 L. 
R. A. 765, 57 Am. St. Rep. 261, 
61 N. W. 431 25:; 

Swift, Re, 50 CCA. 264, 112 Fed. 315. 72o 

V. State, 63 Ind. 81 314 

V. Tyson. 16 Pet. 1. 10 L. ed. 865. . 289- 
Switzerland County v. Hildebrand, 1 Ind. 

555 83^ 

V. Reeves, 148 Ind. 467, 46 N. E. 

otkj SS*"^ 

Syndicate Ins. Co. v. Bohn, ' 27 L. ' R. * A. 
614, 12 C. C. A. 531. 27 U. 
S. App. 564, 65 Fed. 165 92& 

Ta inter v. Lombard, 53 Me. 369, 87 Am. 

Dec. 552 630- 

Tait v. Levi, 14 East, 482 7.~» 

Talbott V. Todd, 5 Dana, 190 274 

Taltarum's Case 95!^ 

Tanner v. Taylor 478 

Tasker v. Shepherd. 6 Murlst. & N. 575.. 13*2 
Tate v. Greensboro, 114 X. C. 392. 24 L. R. 

A. 671, 19 S. E. 767 633, 6.1« 

Taylor v. Caldwell, 3 Best & S. 826 132 

v. Cleary. 29 Gratt. 453 9t>« 

v. Evansville & T. 11. R. Co. 121 
Ind. 124, 6 L. R. A. 584. 16 Am. 

St. Rep. 372, 22 N. E. 876 1«S 

169. 170 
v. Louisville & N. R. Co. 93 Tenn. 

307. 27 S. W. 663 747 

v. Peckham. 8 R. I. 349, 91 Am. 

Dec. 235, 5 Am. Rep. 578 G21 

V. Ross County, 23 Ohio St. 22 23:1 

V. Sharp, 3 P. Wans. 371 398, 40O 

V. Sharoe, 108 N. C. 377, 13 S. E. 

138 872 

V. Stowell, 4 Met. (Ky.) 175 l!39 

Teachout v. Van Hoesen, 76 Iowa. 113. 1 
L. R. A. 664, 14 Am. St. Rep. 

206. 40 N. W. 96 414 

Temperton v. Russell 1 1893 J 1 Q. B. Div. 

715 n,% 

Temple v. Mead, 4 Vt. 535 187 

Templeton v. Brown, 86 Tenn. 55, 5 S. W. 

441 3r>o 

Terre Haute & I. R. Co. v. GrahaiB, 46 

Ind. 239 190 

V. .Tackson, 81 Ind. 19 657, G«i 

Territory v. Cutlnola, 4 N. M. 305, 14 Pac. 

809 388, 471 

V. Harding, 6 Mont. 323, 12 Pac. 

750 17»- 

Texas State Fair & D. Exposition Asso. 
V. Caruthers, 8 Tex. Civ. App. 

474. 29 S. W. 48 25J> 

Thacker v. Chicago. I. & L. R. Co. 159 Ind. 
82. 59 L. R. A. 792, 64 N. E. 

605 1 72 

Thayer v. Luce. 22 Ohio St. 62 031 

The America v. Camden & A. R. Transp. 

Co. See Amkkica, The. 
The James (Jray v. The .iohn Eraser. See 
CUSHINO V. Thb .Tohx Fraskr. 
Thomas v. Brockenbrough, 10 Wheat. 147, 

6 L. ed. 288 40-* 

Thomason v. Townsend, 10 Bush, 114.. i*«;i» 

Thomasson v. State, 15 Ind. 449 88;i 

Thompson v. Emery. 27 N. H. 269. .240. •>4i 
V. Moran, 44 Mich. 605. 7 N. W. 

180 75:i 

V. N. T. Bushnell Co. 80 Fed. 332. 4ST 
▼. State, 18 Ind. 386, 81 Am. Dec. - 

364 40H 

V. State, 105 Tenn. 177. 51 L. R. A. 
883, 80 Am. St. Rep. 875, 58 

S. W, 213 20ri 

Threlkeld v. Dobbins. 45 Ga. 144.. OS. H>0. loi 
Thurlnglu Ins. Co. v. Malott. Ill Ky. 917. 

55 L. R. A. 277, 64 S. W. 991 . . :>or 
Thurnell v. Ball)ernle. 2 Mces. & W. 780. . I :i'> 

Thweat v. Stamps. 67 Ala. 96 80t> 

Tierney v. Minneapolis & St. L. K. (^o. 33 
Minn. .311. 53 Am. Rep. 35. 23 

N. W. 229 0:^53: 

Tlllinpbast v. Ilolbrook. 7 R. I. 2:',0.... 4i>ii 
Titus V. Boston, 161 Mass, 209. 36 N. K. 

793 ;iH5 

V. Bradford, B. & K. R. Co. 130 Pa. 
618. 20 Am. St. Rep. 944. 20 

Atl. 517 7aa 


ToomcT r. Eureka Iron ft Steel Works, 80 

Mich. 2.49, 50 N. W. 850 760 

Towniend t. State, 147 Ind. 624, 37 L. R. 

A. 294, 62 Am. St. Rep. 477, 47 

X. E. 19 BSl 

Trainer t. Seymour, 10 Tex. Civ. App. 674, 

32 S. Vv. 154 263 

Tnmmell t. Harrell. 4 Ark. 602 99, 100 

Trask T. Weeks, 81 Me. 323, 17 Atl. 162. . 267 

TraemaD T. Loder. 11 Ad. ft El. 589 630 

TuckT. Priester [1887 J L. R. 19 Q. B. Dlv. 

639 109 

TuffT. Warman, 5 C. B. N. S. 573.. 298, 299 

TuU; T. Com. 13 Bush, 142 275 

Tarmtn t. White, 14 B. Mod. 560 960 

Tumage t. Kenton, 102 Tenn. 328, 52 S. 

W. 174 741 

Turner t. Goodrich, 26 Vt. 707 240 

T. Revere Water Co. 171 Mass. 329, 

40 L. R. A. 657, 68 Am. St. 

Rep. 432, 50 N. E. 634 311 

Tuttle V. State, 1 Tex. App. 364 118 

Twin-Lick Oil Co. v. Marburj, 91 U. S. 

587, 23 L. ed. 328.. 141, 147, 149 
Tyler T. Guthrie. 17 Ky. L. Rep. 1193, 33 

a W. 934 37 

Union Bank ft T. Co. v. Fred. W. Wolf 

Co. (Tenn.) 86 S. W. 310 896 

Union Cent. L. Ins. Co. v. Duvail, 20 

Ky. L. Rep. 441; 46 S. W. {S18. 266 
Union Nat. Bank t. Chapman. 169 N. Y. 

538, 57 L. R. A. 513, 88 Am. 

St. Rep. 614, 62 N. E. 672 872 

▼. Matthews, 98 U. S. 621, 25 L. ed. 

188 973 

T. Pinner, 25 N. J. Eq, 495. .237, 239 
Union P. R. Co. t. Daniels. 152 U. S. 684, 

38 L. ed. 597, 14 Sup. Ct. Rep. 

756 938 

T. O'Brien, 161 U. S. 451, 40 L. ed. 

766, 16 Sup. Ct. Rep. 618 759 

Union Selllnir Co. v. Jones, 63 C. C. A. 224, 

128 Fed. 672 976,978 

Union Street R. Co. y. First Nat. Bank, 

42 Or. 606, 72 Pac. 586. 73 

Pac. 341 480. 483 

United Firemen's Ins. Co. r. Thomas, 47 

L. R. A. 450, 27 C. C. A. 42, 

53 U. S. App. 517, 82 Fed. 

406 240 

United States y. Alexander, 148 U. S. 186, 

37 L. ed. 415, 13 Sup. Ct. Rep. 

529 731 

y. Behan, 110 U. S. 338, 28 L. ed. 

168. 4 Sup. Ct. Rep. 81.. 150, 157 
y. Califortlia ft O. Land Co. 192 U. 

S. 355, 48 L. ed. 476, 24 Sup. 

Ct. Rep. 266 482 

y. Cooper, 9 Mackey, 104 754 

y. Gettysburg Electric R. Co. 160 

r. S. 668, 40 h, ed. 576, 16 

Sup. Ct. Rep. 427 726 

727, 729. 731, 764 
V. Great Falls Mfg. Co. 112 U. S. 

645, 28 li. ed. 846, 5 Sup. Ct. 

Rep. 306 731 

r. Nagle, 17 Blatchf. 258, Fed. Cas. 

No. IS.M.W 473 

T. OIney. 1 Abb. (U. S.) 275, Fed. 

Cas. No. 15,918 608 

y. Throckmorton, 98 U. S. 68, 25 L. 

ed. 96 274 

y. Tldball. 3 Ariz. 384, 29 Pac. 385. . 576 
y. Truesdell. 148 U. S. 106, 37 L. ed. 

419, 13 Sup. C*t. Rep. 532 731 

y. Tureand, 20 Fed. 621 469. 471 

y. Union P. 11. Co. 01 U. S. 72, 23 

L. ed. 224 ,.. 231 

y. Weld, 1 Kan. Dassler's ed., 21 

Appx 178. 179 

y. Worrall. 2 Dall, 384. 1 L. ed. 426, 

Fed. <:a8. No. 10.766 181 

United States ex rel. I>. ft N. O. H. Co. y. 

Atchison. T. ft S. F. R. Co. 16 

Fed. 853 314 

•^fiited States Nat. Bank v. Floss. 38 Or. 

68. 84 Am. St. Rep. 752, 62 

Pac. 751 245 

lulled States Steel Corp. v. HodRe. 64 N. 

J. Eq. 807, tfO L. R. A. 742. 54 

Atl. 1 142, 150 

Ua^eii y. Hartford IJfe ft Annuity Ins. Co, 

32 Fed. 443 240 


Vallo T. United States Exp. Co. 147 Pa. 

404, 14 L. R. A. 743, 30 Am. 

St. Rep. 741, 23 Atl. 594 802 

Van Bnren y. Dlgges, 11 How. 461, 13 L. 

ed. 771 238 

y. St. Joseph County Village F. Ins. 

Co. 28 Mich. 398 926 

Van Busklrk y. Day, 32 III. 260 241 

Vand«rwiele y. Taylor, 65 N. Y. 341 62& 

Van Epps y. Harrison, 5 Hill, 63, 40 Am. 

Dec. 314 412. 414 

Van Grutten y. Foxwell [1897] A. C. 668 965 
Van Voorhlss y. Brintnall. 86 N. Y. 18, 40 

Am. Rep. 505 494 

Varner y. State. 72 Ga. 745 408 

Vausse y. Russel, 2 M'Cord, L. 329 73» 

Venice v. Murdock, 92 U. S. 494, 23 L. ed. 

roQ 289 

Vermont Loan ft T.'co* V, 'whithed,'2 N.D. 

83, 49 N. W. 318 422 

Vernon y. Wright 7 H. L. Cas. 35 966 

Vlck T. Gower, 92 Tenn. 391, 21 S. W. 

677 366 

y. Percy, 7 Smedes ft M^ 256, 45 Am. 

Dec. 303 23» 

Vlcksburg ft M. R. Co. y. O'Brien. 119 U. S. 

99, 30 L. ed. 299, 7 Sup. Ct. 

Rep. 118 717. 71S 

Vldal V. Philadelphia, 2 How. 127, 11 L. 

ed. 20o 695 

VInal ▼. Dorchester, 7 Gray, 421 620 

Vinson y. Piatt, 21 Ga. 135 98 

Vinton y. Baldwin, 95 Ind. 433 886 

Vogel V. Lelchner, 102 Ind. 55, 1 N. E. 

654 873 

Vorce y. Rosenbury, 12 Neb. 448, 11 N. 

W. 879 241 

Voting Machine. Re, 19 R. T. 729, 36 L. R. 

A. 547, 36 Atl. 716 187 

Vuliceyich y. Skinner, 77 Cal. 239, 19 Pac. 

424 82S 

Wabash ft W. R. Co. y. Morgan, 132 Ind. 

438, 31 N. E. 663, 32 N. E. 

85 886, 

Wabash R. Co. y. Speer, 166 111. 244, 40 

N E 83o 
Wadleigh y.'janvrin. 4i'N.'H.' 603,'77 Am. 

Dec. 780 

y. Marathon County Bank, 68 Wis. 

646, 17 N. W. 314 

Wafer v. Mocato. 9 Mod. 112 

Wagner y. Baii'd, 7 How. 234, 12 L. ed. 


y. Bissell, 3 Iowa, 396 958, 

y. "Ziegler, 44 Ohio St. 69, 4 N. E. 


Wald y. Pittsburg, C. C. ft St. L. R. Co. 

162 in. 545, 36 L. R. A. 356, 

63 Am. St. Rep. 332, 44 N. E. 

Walker, Re, 110 Cal.' hsV! 30 L.'r. A. 460, 
62 Am. St. Rep. 104, 42 Pac. 


Walker y. Cronln, 107 Mass. 555 

y. Dunham, 17 Ind. 483 

T. Hall, 34 Pa. 483 943, 

y. Tucker, 70 111. 527 

V. Vincent, 19 Pa. 369 

y. Walker, 82 N. Y. 200 

V. Wilson, 13 Wifl. 522 237, 

Wall y. Piatt, 169 Mass.. 398, 48 N. E. 


Wallace y. Georgia. C. ft N. R. Co. 94 Ga. 

732. 22 S. E. 579 

Walla Walla v. Walla Walla Water Co. 172 
U. S. 1, 43 L. ed. 341, 19 Sup. 

Ct. Rep. 77 

Walls y. Home Ins. Co. 24 Ky. L. Rep. 

1452. 71 S. W. 650 

Walsh y. Fussell, 6 Bing. 169 

Wamslev v. Hunter, 21) La. Ann. 028 

Warburton v. White. 176 U. S. 484. 44 L. 
ed. 555, 20 Sup. Ct. Rep. 404. . 

Ward y. State, 17 Ohio St. 32 

Ware v. City Bank. 50 Ga. 844 

Warner v. (JunniKon, 2 Colo. App. 430, 31 

Pac. 238 

y. HHden, 28 Wis. 517, 9 Am. Rep. 
515 DJgi1^^3cL 






















Warren y. Bangor. O. ft O. R. Co. 95 Me. 

115. 40 Ati. 609 303 

V. Britten. 84 Ind. 14 882 

V. Crane, 50 Mich. 300, 15 N. W. 465 240 

▼. Wella. 1 Met. 80 99 

Washington County Abstract Co. v. Stew- 
art (Idaho) 74 Pac. 955 229 

Washington Ice Co. v. Webster, 68 Me. 

449 291 

Washington L. Ins. Co. v. Miles, 112 Ky. 

743, 66 S. W. 740 268 

Washington Park, Re. 52 N. Y. 137.... 754 
Watauga Water Co. v. Scott. Ill Tenn. 

321, 76 S. W. 889 754 

Waterhouse v. Martin, Peck (Tenn.) 374.. 175 
Watermolen v. Fox River Electric R. & 

Power Co. 110 Wis. 153, 85 N. 

W. 663 610 

Waters-Pierce Oil Co. v. New Iberia, 47 

La. Ann. 863, 17 So. 343 278 

Watkins y. State, 68 Ind. 427. 34 Am. Rep. 

273 275 

Watson y. Oxanna Land Co. 92 Ala. 320, 

8 So. 770 986 

Watt y. Smith, 89 Cal. 602, 26 Pac. 1071. . 832 
Watts y. Camors, 115 V. S. 353, 29 L. ed. 

406, 6 Sup. Ct. Rep. 91 157 

y. Crelght6n, 85 Iowa, lo4. 52 N. W. 

12 252 

y. Equitable Mut. Life Asso. Ill 

Iowa, 90, 82 N. W. 441 973 

Way y. Bragaw, 16 N. J. Eq. 214, 84 Am. 

Dec. 147 498 

Weakland y. IIofTman, 50 Pa. 513, 88 Am. 

Dec. 560 238 

Weed y. London ft L. F. Ins. Co. 116 N. Y. 

106, 22 N. B. 229 282 

Weeks y. McNulty, 101 Tenn. 499, 43 L. R. 
A. 185, 70 Am. St. Rep. 693. 48 

S. W. 809 649.654,658 

AVegner y. Second Ward Sav. Bank, 76 Wis. 

242, 44 N. W. 1096 337 

Wells y. Hill, 118 N. C. 900, 24 S. B. 771 263 
Wells, F. ft Co. V. Oregon R. ft Nav. Co. 9 

Sawy. 601, 19 Fed. 20 314 

Wendell y. New York. C. ft H. R. R. Co. 

91 N. Y. 429 304 

Werner y. Popp" (Minn.)' 102* N.'w." 306'. * 625 

Wescott y. Binford. 104 Iowa, 645. 65 Am. 

St. Rep. 530, 74 N. W. 18. .960, 961 
West y. Ayerlll Grocery Co. 109 Iowa, 488, 

80 N. W. 555 971 

y. Flemmlng, 18 111. 248, 68 Am. 

Dec. 639 498 

y. Lanier, 9 Humph. 771 744 

West Cambridge v. Lexington, 1 Pick. 506, 

11 Am. Dec. 231 494 

West Chicago Park v. Western U. Teleg. 

Co. 103 111. 33 754 

West Chicago Street R. Co. y. Schwartz, 93 

111. App. 387 190 

Western Paving ft Supply Co. v. Citizen's 

Street R. Co. 25 Am. St. Rep. 

477 305 

Western Transp. Co. v. Scheu, 19 N. Y. 408 439 
Western U. Teleg. Co. v. Kubanks. 100 Kv. 

604, 36 L. R. A. 711. 66 Am. St. 

Rep. .361, :^S S. W. 1068 268 

y. James, 162 U. S. 650. 40 L. ed. 

1105, 16 Sup. Ct. Rep. 9,34 713 

Westminster v. Shipley, 68 Md. 610, 13 

Atl. 365 913 

Westmoreland Coal Co.'s Appeal, 85 Pa. 

344 991 

West River Bridge Co. v. DIx, 6 How. 507, 

12 L. ed. .'i.'iS 728 

Wetastein v. Largey, 27 Mont. 212, 70 Pac. 

717 ..*. 582 

Wheat V. Dotson, 12 Ark. 699 236 

Wheatley v. Baugli, 25 Pa. 528, 64 Am. 

Dec. 721 466 

Wheaton Roller-Mill Co. v. John T. Noye 

Mfg. Co. 66 Minn. 156. 68 N. 

W. 854 976 

Wheelahan v. Philadelphia Traction Co. 

150 Pa. 187. 24 Atl. 688 102 

Wheeler v. Reynolds. 60 N. Y. 227 570. 571 

Wheeler ft W. Mfg. Co. v. Howard, 28 Fed. 

741 252 

White y. Adams, 77 Iowa, 29.j, 42 N. W. 

199 976 

y. Grlfflng. 44 Conn. 437 722 

y. liadd, 41 Or. 324. 93 Am. St. 

Rep. 732, 68 Pac. 739 482 

69 L. R. A. 

White y. Northwestern North Carolina R, 

Co. 113 N. C. 610, 22 L. R. A. 

627, 37 Am. St Rep. 639, 18 S. 

„E. .330 634, 6.35 

y. Stretch, 22 N. J. En. 76 237. 239 

y. Worcester Consol. Street R. Co. 

^^^7 Mass. 43. 44 N. E. 10,52 .304 

Whitfield V. Whitfield. 44 Miss. 2.54 289 

Whitten V. Tomllnson, 160 IT. S. 231. 40 

L. ed. 406, 1^ Sup. Ct. Rep. 

297 41)6 

V. Whltlen, 3 Cush. 199 364 

whittler V. Cocheco Mfg. Co. 9 X. H. 454. 

^^ ,^ .32 Am. Dec. ,382 9.35 

Wickham, Re, L. R. 35 Ch. Div. 272 313 

^^_ v. State, 7 Coldw. 525 293 

W kes y. King. 4 Bro. P. C. 360 469. 472 

vMlkins V. Hogue, .55 N. C. (2 Jones, Eq.) 

479 239 

Wilkinson v. Parish. 3 Paige, 653 .398 

Wlliett V. People. 27 Hun. 469 409 

Wm. Glenny Glass Co. v. Taylor, 99 Ky 24. 

Ttr.n. ^J ^- ^^'- "^ll .'872 874 

Williams y. Bacon, 2 Gray. 387 630 

y. Bemls, 108 Mass. 91, 11 Am. 

Rep. 318 158 

y. Greene, Cro. KHz. pt. 2 P. 884.. 580 
y. Pullman Palace Car Co. 40 Ija. 
Ann. 421, 8 Am. St. Rep. 538, 

4 So. 8o .657 

y. Stein, 38 Ind. 90. 10 Am. Rep. 97 1S7 

,,..... ^- Triplett, 3 Iowa, 518 973 

l^illlamson v. Michigan F. ft M. Ins. Co. 
86 Wis. 393, 39 Am. St. Rep. 

906, 57 N. W. 46 . 926 

y. New Jersey Southern R. Co. 29 

N. J. Eq. 311 897 

wnilngton y. West Boylston. 4 Pick. 101. . 132 
Willis y. Erie Teleg. ft Teleph. Co. 37 

Minn. .34f 34 N. W. 337 6.36 

Wilson y. Bates, 3 Myl. ft C. 197 313 

y. Chippewa Valley Electric R. Co. 
120 Wis. 636, 66 L. R. A. 912, 

98 N. W. 536 609, 611. 614 

▼. Cochran, 46 Pa. 229.. 237, 238, 762 

y. Hakes, 36 111. App. 547 927 

y. Hart, 7 Taunt. 295 6.30 

y. McQueen. 1 Head. 17 739 

y. New United States Cattle Ranch 
Co. 20 C. C. A. 244, 36 U. S. 

App. 634, 73 Fed. 994 978 

▼. Pennsylvania Trust Co. 52 C. C. 

A. 374. 114 Fed. 742 721 

T. Perrln, 11 C. C. A. 66, 22 U. S. 

App. 514, 62 Fed. 629.. 289, 290 
y. Wlllfmantlc Linen Co. 50 Conn. 

_433, 47 Am. Rep. 653 939 

y. Wilson, 145 Mass. 492, 1 Am. St. 

^Itahlre Iron Co., Re. L. R. 3 Ch. 443.. 1.34 
Wlmberg y. Schwegeman, 97 Ind. 529.... 239 

Winchester v. Hinsdale. 12 Conn. 88 175 

y. Howard, 97 Mass. 303, 93 Am 

Dec. 93 630 

Winder v. Caldwell, 14 How. 434, 14 L. ed. 

487 237 

WInstanley v. Chicago. M. ft St. P. R. Co. 

72 Wis. 375, ,39 N. W. 856 664 

WIneland's Appeal, 118 Pa. 37. 4 Am. St. 

«r. . ^ ,?^P- ^"^1' ^2 Atl. .301 427 

WInstead, Ex parte. 92 N. C. 703 9»>2 

Winter v. Central Iowa R. Co. 80 Iowa. 

44,3. 45 N. W. 737 985 

Winters v. Duluth, 82 Minn. 127, 84 N. W. 

788 390 

v. Halner, 107 Tenn. 337, 64 S. W. 

44 741 

Winston y. Salem, 131 N. C. 404, 42 S. E2 

889 44;^; 444 

Wisconsin Red Pres.sed Brick Co. v. Hood. 

54 Minn. 54,'i, .no N. W. 105. . 970 

^^ Ise V. Adair, 50 Iowa. 104 ^63 

Wiseman y. Luckslnger. 84 X. Y. 31, 38 

Am. Rep. 470 570 

Wiser V. Blachly. 2 John.s. Ch. 489.... 398 
Wistows Case of (iary's Inn. 14 Hen. VIII, 

cited In 1 1 « 'oke .'lOb 903 

Withers v. cjreene, 9 How. 214, 13 L. ed 

101) O-^o 

Witherspoou v. Musselman. 14 Bush, 214*. 

29 Am. Hep. 404 *>69 

Wltthaus V. Zimmerman. 91 App. Dlv. 202, 

11 Am. Bankr. Rep. 314, 86 X. 

Y. Sunn. 315 -*>*> 

Wogan V. Small, 11 Serg. ft R. 141 051 



¥olf T. American Exp, Co. 43 Mo. 421, 97 

Am. 1 Hfv. 4<m Till 

Wolfe V. Howes, 24 Barb. 174 132 

Vood r. Carpenter, 101 1'. S. ia5, 25 L. ed. 

807 242 

T. Leadbitter, 13 Mees. & W. 838, 

16 Knslish Ruling Cases. 54.. 570 
?. Micblsan Air Line R. Co. 90 

Mich. 334, 51 N. W. 263 571 

Woodbury Sav. Bank & Bldg. Asso. v. Char- 
ter Oak F. AM. Ins. Co. 29 

Conn. 374 925 

Woodford ▼. Hamilton, 139 Ind. 481, 39 N. 

E. 47 885 

Woodman V. Pease. 17 X. H. 282 897, 904 

Woods X. Harris. .-> Blackf. 5Sr. 99 

T. McCay. 144 Ind. 316, 33 I^ R. A. 

97. 43 X. E. 269 879 

Woodworth v. Spring. 4 Allen. 321 496 

ITooldrldge v. State, 13 Tex. A pp. 443, 44 

Am. Rep, 708 205 

Worsley t. Wood. 6 T. R. 710 132 

Worth T. Carmichael, 114 Ga. 699. 40 S. 

E. 7!J7 484 

Worthlni^ton t. >Yarrlng1on. 8 C. B. 134.. 707 

Wray t. Wray, ■ 33 Ala. 187 832 

Wright T. Chicago. & N. W. R. Co. 27 111. 

App. 212 248 

V. Gaiuner. W8 Ky. 454, 33 8. W. 

622, 3.") S. W. 1116 268 

T. Kelley. 4 Idaho, 624. 43 Pac. 565 222 

T. Pipe Line Co. 101 Pa. 204, 47 

Am. Rep. 701 973 

T. Remington. 41 X. J. L. 48. 32 Am. 

Rep. 180 872, 875 

▼nesthoff v. Germs nia I^. Ins. Co. 107 N. 

Y. 580, 14 N. E. 811 497 

Wyhddon's Case, Cro. KHz. pt. 2. p. 620.. 580 
Wyman v. Hallowell & A. Bank, 14 Mass. 

58. 7 Am. Dec. 194 258 

Wynne v. Wynne, 9 Helsk. 309 377 

Yates T. Milwaukee. 10 Wall. 497, 19 L. 

ed. 9S4 932 

Yerrlngton v. Greene. 7 R. I. 589, 84 Am. 

Dec. 578 132 

Young V. Hart. 101 Va. 480. 44 S. E. 703. . 873 

▼. r^eedon, 67 P». 351 628 

T. Western C. Teleg. Co. 107 N. C. 

370, 9 L. R. A. 609, 22 Am. 

St. Rep. 883. 11 S. 1^:. 1044 . . 404 
Young's Appeal, 39 Pa. 115. 80 Am. Dec. 

ol3 942, 945, 946, 951 

Youngman v. Linn, 52 Pa. 413 237 

Yovatt V. Wlngard (1820) 1 Jac. ft W. 

394 109 

Zabrlskie v. Flackensack & N. Y. R. Co. 

18 N. J. Eq. 178, 90 Am. Dec. 

617 469 

Zacher v. Fidelity Trust & S. V. Co. 45 

C. C. A. 480, 106 Fed. 593... 289 

Zavitx V. Preston, 96 Iowa. 62, 64 N. W. 

668 960, 961 

Zenith Bldg. & L. Asso. v. Ileimbach, 77 

Minn. 97, 79 X. W. 609 421 

Zimmerman v. So Relle, 25 C. C. A. 518, 

49 U. S. App. 387, 80 Fed. 

417 243 

Zuver y. Lyons, 40 Iowa, 510 959 


« A 9 Wm. III. chap. 11, { 8. Forfeiture 

,^ „ , of bonds 869 

^3 Edw. L chap. 2. { 3. Replevin 289 

V Hen. VII . chap. 1. Jurisdiction of court 

,, „ of star chamber . . . 470 

a Hen. TIL chap. 3. Olfenses against 

statutes 470 

^I Jac. L chap. 16. Statute of limitations 251 
^45 Wm. & Mary, chaps. 11, 18. Infor- 
mation 470 

- Geo. n. chap. 27, S I'A. Set-off 98 

« <i«o. II. chap. 28. Y <indlord and ten- 

,., ^ ,^ ant 869 

-- * 23 Vict. chap. .,.. 1 4. Relief for 
breach of covenant 

,. , to insure 860 

<^ * 43 Vict. chap. 41. S 14. Relief for 

breach of covenant. 869 

United States. 

^>rt 1, { 10. Impairment of obligation 

of contracts 660 

Aej^d 4. Searches and seizures 278. 470 

'*2veiid. 5. Comi>ensation for proi>erty 

tak»»n 278. 729 

Aoi«id. 14. Equal protection of the laws, 278 

468, 473, 560, 672, 751 
814, 880 
^"^T, March 3. Management of property 

by receivers 713 

'V^\ Aog. 1, chap. 728. Condemnation of 

land for building 

sites 725 

•5?S, Ang. 13, chap. 866. Management of 

property by receiv- 

^j ^ ers 713 

*L.R. A« 

1898, July 1, chap. 541. Bankruptcy act 726 

1893, Feb. 13, chap. 105. p. 445. Bills of 

lading 72 

Revised Statutes. 

i 721. Laws of states to be rules of deci- 
sions 712 

I 4463. Officers and crew of passenger 

steamers 75 

i 4493. Liability of master for damages to 

passenger 75 

Statutes at Large. • 

Vol. 24, p. 654. Management of property 

by receivers 713 

Vol. 25, p. 357. Condemnation of land 

,r , «• .«« ,, for building sites . . 723 

Vol. 26, p. 433. Management of prop- 

.. . erty by receivers . , 713 

Vol. 30, pp. 644, 547. Bankruptcy 780 

Vol. 30, p. 550. Bankruptcy act 779 

Vol. 30, FP. 662, 663. Bankruptcy act ... 720 

Compiled Statutes, 1901. 
r. 581. Laws of states to be rules of de- 
cision 712 

P. 582. Management of property by re- 
ceivers 713 

P. 2516. Condemnation of land for build- 
ing sites 725 

P. 3045. Officers and crew of passenger 

steamers 75 

P. 3058. Liability of master for damage 

to passenger 75 

PP. 3418-3424. Bankruptcy 7«o 

I'P. 3427, 3428. Bankruptcy act 771> 

P. 3447. Bankruptcy act 721 


Constitution^ 181 k^ Schedule. 

S 1. Distinction betweem sealed and un- t 

sealed instruments 82CT[^ 




Revised Statutes. 
Chap. 139, p. 726. Setoff 



Art. 1, I 16. Impairment of obligation of 

contracts r>60 

*\rt. 3. Distribution of powers O.^S 

Art. 4, S '2. Time for sessions of legisla- 
ture 559 

Art. 4, { 9. Kxpulsion of member of legis- 
lature 558 

Art. 4, i 35. BrilM^ry of member of legis- 
lature 560 

Art. 5, i 9. Call for extra sessions of 

legislature 559 

Code of Civil Procedure. 

§ 556. Discharge of attachment 71 

S690, subdlv. 18. Property exempt from 

execution 68 

§ 1465. Exempt property set apart for use 

of wife 68 

i 1875, subdiy. 3. Judicial knowledge . . . 559 


General Statutes, 1902. 

{ 797. Evidence and rulings part of record 562 
f 802. Action of supreme court on appeals 335 

District of Columbia. 

Revised Statutes. 

I 222. Prohibiting occupation of streets . . 85 
I 225. Setting aalde portions of streets as 

parks 85 

1 226. Removal of obstructions from 

S 227. Institution of suits ..'.'.'.'. I '. I '. ! .' I 85 
1 229. Penalty for obstruction 85 


Art 6, i 6. Voting by ballot 186 



131. Charter of Augusta 567 

Princess Digest. 

1898, p. 
P. 426. 

Set-off 100 

Code, 1863. 

1 2842. Set-off 101 

Code, 180S. 

f 2850. Set-off 100 

H 3746. 3747, Set-off of mutual demands 

and debts 98 

{ 3754. Effect of dismissal after filing set- 
off 101 

« 3807. Defining torts 107 

5 4929. For every right a remedy 103 

« 4970. Dismissal of petition 101 

i 5712. Liberty of speech 107 

S 5713. Searches and warrants 106 

i 0014. Freedom- of the press 107 

S U017. Searches and seizures 106 

Political Code. 

i 743. Use of streets 506 

Penal Code. 

1401. Gaming 118 



1, « 

1. SI 

Art. 18. 
Art. 1«, 
Art. IN, 
Art. 18, 

69 L. R. A. 


Jnalienablo rljrlits of people 223 
Special privth'jics iind Im- 

ninnitit's '2'2') 

County's of stat«' I'lii* 

Keniovnl of count v seat . . 1!'-."J 

l)ivlslon of counties 2:^2 

Kstablislinieut of new coun- 
ty 222 

Art. IS, i 5. County goTernments under 

legislative control.. 21S 

Session Ijaics. 

1891. March 3. Creation of Alta and Lin- 
coln counties 2i$ 

1903, p. 346. Control of separate property 

by wife "i*^*^ 

1905, Feb. 28. Alwlishment of county .. r:l 

Revised Statutes, 1H87. 

H 2921, 2922. Protection of homesteads >7 

11 3040. Conveyance of homestead .>T 

1.3041. Abandonment of homestead T'^T 

jl 4427. lOxceptions .'.77 

« 6007. Statute of frauds 570, 7^^ 

I GOOS. Statute of frauds 5Sj 


Hurd's Revised Statutes, 190S. 

Cbap. 38, p. 670. § 273. Punishment for 
attempt to commie 
offense ISS 

Chap. 68, { 6. Contracts of married wo- 
men STl 



Art. 1, I 23. Exclusive privileges forbid- 
den 421. S'N) 

Art, 4, i 19. Act to embrace but one sub- _^ 
ject S^ 

Art. 4, I 22. Prohibiting pa.ssage of special 

ln^D 421, '*7** 

Art. 4, { 23. Laws to be uniform '.*.*.*.. 7. . !>7 * 

§1 5206 52O61;. Employers* liability act.. STS 
Revised Statutes, 1S81. 

I 3407. Building associations 4:1 

Bums's Revised Statutes, 190 i. 

II 7083-7087. Employers' liability act . . S7S 

Horner's Revised Statutes, 1891!. 
II 5206-5206t;. Employers' llabllitv act.. STS 

Burns*s Annotated Statutes, 1901. 
16904. Contracts of married women .... ti^l 



I 1.307. Employer's liability act *^\l 

I 1824. Keguialion of insurance company l7-< 
I 2901. Suspension of power of controlling 

property '>♦»■ 

I 3061. Written tender of stock '-*'' 

I 3450. Revivor of causes of action .... -'^- 



1857-58, chap. 13, p. 195. Local prosecu- 

1801, chap. .'>8, p. 216. Duty of attorney 

1809, chap. 43. p. 128. Bribery statutes .. 

Ucncral Statutes, ISiJS. 


PP. 28.') 

8 ({ST.3. 

$ 2LM2. 

S .").-) 40. 
S 7271. 

284. H 135-137. Prosecuting at- 

General Statutes, 18S9. 

Taxation oU railway projjorty ... 

Grvrrnl Statutes, 1901 

PunlslinnMit for accepting bribe . . 

Attempt to bribe 

.Sijiniu.^ Iinllct^noDts 

Du»y oi uuorney general .. 





f 5. Compulsory worship 592 

i IL Rights of accused in criminal pros- 
ecutions 273 

t59. Forbidding passage of special acts 269 
1 110. jQrisdlction of court of appeals . . 272 

USO. Tax for educational purpoiies f>92 

1 196. Common carriers' liability 268 


1796 (1 SUt Laws, 530). * Trial of acces- 
sory to murder . . . 275 

Statutes, J90S. 

fTOO. Liability of Insurer 268 

I112S. Crimes and punishments 275 

i 1147. Prosecution of offense 273 

J 2514. Statute of limitations 270 

{4368. L'se of sectarian book in common 

schools 592 

Criminal Code of Practice. 

4 X Repeal of laws 275 

}{ 21, 24. Jurisdiction of offense 27:< 


Constitution, ]898, 

Art 1. Origin and end of goTernment 278 

Art. 2, Due process of law 278 

-Art 166. Prohibiting ex poMt facto laws 278 
Art. 167. Compensation for property 

taken 278 


IH'^S, No. 1C6, p. 232. Powers of mayor 

and aldermen 278 

Civil Code. 

Art 407. Ownership of property 278 


Constitution, ISof. 

Art. 3, { 22. Forblddlnir the loaning of 

credit of state 916 

Art. 3, § 42. Transfer of fitork In im- 
provement company 919 

Constitution, 1867. 

Art. 3, i 34. State not to give or loan 

crodit 915 

Art. 3, { 54. County not to give or loan 

credit 018 

Art. 7, 1 1. Powers of county commis- 
sioners 917 

Art. 12, f 3. Sale of state's Interest by 
board of public 
works 919 


1'74, chap. 21. Money loaned for public 

roads 916 

1842. 1843, chap. 301. Sale of sUte's in- 
terest In internal 
Improvement com- 
panies 916 

1S68. chap. 454. p. 880. Aid for construc- 
tion of Internal im- 
provements 918 

1^7$. chap. 158, p. 256. Repair of na- 
tional road by coun- 
ties 920 

lKf>6. chap. 51. State commission 915 

l^m, chap. 225, p. 388. State aid for 
the construction of 
roads 915 

Code of Public Local Laws. 

Art. 4, 1 170. Time of signing bills of ex- 
ception 909 

Art 5, I 6. Appeals from orders of orphans* 

courts 914 

-Art 5. I 7. Appeals under insolvent laws 914 

Art 66, i 8. Notice of sales 914 

Code of Public General I^atcs. 

Art 25. Powers of county commissioners 917 



Declaration of Rights, 

Art. 10. Compensation for property taken 820 


1882, chap. 154, pp. 111113. Damages for 

land taken 315 

1891, chap. 370, p. 949. Establishment of 
gas and electric 
plants 79 

1895, chap. 488, p. 573. Compensation 

for destruction of 
established business 599 

1896, chap. 450, p. 444. Compensation to 

employees 600 

1897, chap. 445, p. 429. Compensation for 

damages 600 

1898, chap. 551, p. 666. Comoensation for 

damages 600 

1900, chap. 196, p. 138. Abandonment of 

land taken 315 

1901, chap. 505, p. 451. Compensation for 

damages 600 

1902, chap. 373, p. 289. Approval of ac- 

quisition of land by 
TTnlte<l States 725 

1903, chap. 158, p. 121. Rules of park 

commission 818 

Public Statutes, 1882. 

Chap. 150, I 8. Reservation of questions 

of law 313 

Chap. 191, i 46. Mechanic's Hen 499 

Revised Statutes. 

Chap. 25, i 1. Highways 619 

Revised Laws. 

Chap. 156, { 7. Reservation of questions 

of law 313 

Chap. 203, i 11. Payment of costs before 

second suit 313 



Art. 4. {11. Voting at elections 186 

Art. 6, i 26. Forbidding unreasonable 

searches 840 

Art. 6, i 32. Testimony of i^erson against 

himself 340 

Art. 7, I 2. Voting by ballot 185 

Art. 14, §11. Uniform taxation 430 


1803, No. 206. p. 3.->8. Tax law 434 

1895, No. 2'J9, p. 520. Taxation of cor- 

))orato property . . . 435 

1897, No. 61, p. 71. rse of voting ma- 
chine 186 

1903, No. 2:i4, p. 383. Tse of voting ma- 
chine 186 

Compiled Lairs, 1897. 

1 3441. Duty of municipality to keep 

Rlr*»ets safe 619 

Si 3750-37.'8. TTse of voting machine .... 186 

13834. Taxation of corporate property . . 434 
111, 344, chnp. 316. Lotteries 507 
ill, 795. Punishment of common law 

offenses 183 



Art 1,12. Rights of citizens 672 

Art. 1, i 7. Rights of accused 672 


1887. chap. 13. Fellow-servant act 889 

1899, chap. 225, p. 246. Returns by com- 

mission merchants 670 

General Statutes, 189^. 

i 2701. Fellow-servant act 889 

Constitution, 1875. 

Art 2, 1 11. Issuance of warrant without 

probable cause ••• 471 

Digitized by ' 

, Google 




3899, p. .'182. Prosecution of felonlea 471 

Revised Htatutcs, 1879. 

Rape jgo 

Attt»iiij)t to commit offense'.*.'.'.'.' 182 

Revised Statutes, 1899. 

{ 1253. 
fi 1(545. 


I 2477. 
S 2481. 

IPM' ri"?f**;^"^'o° hyli'firmation'::::: .386 
l^uJo. Indictments when not Invalid .W .?R7 




8, I 11. Sectarian Instruction In 

ft- % V. Taxation fS'brSnIform' .' .' .' .' .' ttl 
Art. 9, § 6. Taxation for corporate pur- 

poses 454 

Compiled Statutes, 1901. 

-rt 1.,. , . railway property .. 451 

Cohhey's Annotated States, 1903 

fhf^.V%'e"ve^,^*^ie%^' *" commissioner 451 
if l5,484-10,486?"Revenue a'cV ! ! ! ! ! ! ! ! '. ! ^^J 

New Hampshire, 


Art. 1 


i. Reimlatlon of con- 
tracts for sale of 

Ed. 1815, p. 191, { 

^and 031 

Public Statutes, 1901. 
Chap. 213, S 1. Regulation of contracts for 

sale of land 631 

New Jersey. 

Art. 1, Par. 16. Compensation for proD- 

erty taken . . .*7 769 



1. Inalienable rights 4J0 

A-t 1 £ ^2* 2^Ject of government .. 420,431 

xll' J' f JS- ^ourts to be open 8H 

Art. 1, I 19. Compensation for property 

taken Ki? 

Art. 2, S 26. General laws to be* uniform 

Art. 10, S 7. Exercise of police powers'.! SIX 

1867, Feb. 21 (64 Ohio I^ws, p. 18). 
BuIIdlnfT and loan 

association 41'* 

Building' and loan associa- 
tions 419 

Building and loan associa- 

1890, April 2 (87 Ohio L2wg,'p.'i49).* "Prol ^^^ 

tection of railroad 
icQt >r .. ,«« _ employees T0» 

1891, May 3 (88 Ohio I^ws, p. 469). 

Building and loan 

c%A t\x.t r associations 41D^ 

94 Ohio Laws, p. 142. Cleansing of dniln- 

ift«o A ., .« age ditches 81:: 

19t)2, April 15 (05 Ohio Laws. p. ir,r.). 

Cleansing of drain- 

i^snil^.P^l^ ^^J Ohlf Laws'! i82);GiV- ^ 

ion? f • 9,*^*>^^ °' ®"'*®^y ^nds 42» 

1904, April 22 (97 Ohio Iaws, p. 2«2>. 
Contracts for clean- 
ing ditch 812 

1868, May 5. 
1868, May 9. 

{ 3641c. 
« 4401. 
I 4500. 
S 5848. 

Revised Statutes, 1892, 

I 5916. 

1901, chap. 161 

(P. L. p. 333). 

. Right of 
, , - in private 
»ake 7^ 

General Statutes. 
Vol. 2. p. 1603, 15. Memorandum of 

agreement for lease 396 

New Yorh. 

Art. 3, S 10. 

1850, chap. 140, 
1884, chap. 522, 


Bills to embrace but one 

sa»>J«'ct 75e 


p. 232. Duty to signal at 

p. Q2o. Park act 75(3 

(Jlying of surety bonds 429 

Ditch laws S14 

Public water course '.'.'.'.'. SH> 

Jurisdiction of courts to enjoin 

win, ".'!*".*"?!.:::::: 5» 

Bates's Annotated Statutes. 
if 3836-3, p. 2130. Power of buildlnif and 

loan associations .. 417 


Wilson's Revised Annotated Statute*. 
II 4052-4062. Easements and servitudes 465 

Art. 1, I 9. 

7, i 17. 

7, S 18. 

15. 1 3. 




Issuance of warrant -wlth- 

out probable cause 46*> 
Prosecuting attorneys 47;: 

Jurors ifto 

Oath of office 1 1 1 1 ! ". 473 

Session Laics. 

1899, Feb. 17, p. »9. 

I as.-io. 

« :W48. 

« 30.14. 
« 3!)42. 
I 49;)6. 

I 41)97. 

« 500.? 
i •}<>04. 
I .»014. 

6» L. R.X 

North Dakota. 

Revised Codes, 1899, 

HeqnlMlteH of contract 411 

.S44. Consent ro c».»ntract 411 

"Actual fraud'' dellned 411 

Atnrmauce of contract 411 

Liability for wilful deceit 411 

Actionable deceit 411 

Damages for breach of promise of 

^ marriage 414 

Measure of damages for breach of 

obligation 411 

I>amagp.s for seduction 414 

Damages for Injury to animals . , 414 
Recovery of damages 414 

Proceedings by in- 
formation ..... ... 474 

1903, Dec. 28, 

Special Laws. 

32. Appointment of 
deputies by district 
attorney 47.. 

Bellinger and Cotton's Annotated Code^ and 


i 788, subdiv. 15 

^' h'"'?,*;"'*"^^ <>^ ollicial 

Ji 848. 


Memorandum to be 'made' bV wiV. 


^'-'^-'^i. ^r^'Tj^^^^i^^ 1^ 

i 1304. 
I 1581. 
I 1584. 
fi 1585. 
» 2502. 
I 2927. 

Form/ofTndlcTm?S"'! ^^^'"^ .... ^ 

Defining -information- P, 

Lxaminatlon of Informant i-i 

/wif"«7 ""i warrant of arVeii* " Jfi 

t)ath of office required *'^'^'** •- '*i\ 

Appointment of demities'by 'dlV ' 

trict attorney . . *. , 47;> 

Digitized by 






1794. AprU 19 [3 Smith's I^ws, p. 1481. 

Revocation of wills 
is;>l. April 3 (P. L. 327). Opening of 


1S79, Jane 4 (P. L. 88) . Wills 

Rhode IsUuid. 

Public Laws. 
1809, chap. 549. p. 40. 


of iniardlan to mar- 

General Laws, 1896. 

Thap. 106, f 7. Appointmeati'of guardian 
rbap. 190, S 16. Invalidity of ward's 


Chap. 279, f 65. Observation of street 

railway tracks . . , . 

Soutli Carolina. 


Art, 2. S 24. 

Elections by general as- 

Soutli Dakota. 


Ifxi.:. chap. 176. p. 202. Board of Medi- 
cal examiners .... 

Revised Justices^ Code. 

H 14, 15. 8ervlce of summons 



Art. 1. { 21. Compenisatlon for propertv 


Art. *.\ { 17. Bills to embrace but one 



:^t;i. chap. 11. p. 15. Rstabllshment of 
taxing district 

I'^it'i. chap. 142, p. 2.'>0. (Vmdemnation 
of land for park 

Shannon's Code. 








I 1M4. 
f 1V57. 

Taking land for internal im- 
provement 755 

I'etltlon for appropriation of land 755 

Notice of petition 755 

AsseAsment of damages 755 

Kxaminatlon of ground; assess- 
ment 755 

Kstlmation of damages 755 

i 1850. Conflrmatlon of report 755. 

S 1865. Prepayment of damages 755 

I 1866. Suit for damages 755 

I 3ft31. Mechanic's lien 808 

I 35.30. Continuance of lien 808 

S 4456. Estate vests In seven years 738 

I 4470. Actions for Injuries to property. . 7.'18 

f 5006. Forcible entry and detainer 738 

f 510.3. Merits of title not inquired into 745 

i 5131. Replevin 286 

{ 6144. Judgment for defendant 286 

I 6437. Misdemeanor 293 

116786, 6787. Furnishing liquors to 

minors 202^ 

S 6780. Punishment for giving liquors to 

minors 20*.: 

I 7202. Sentence to penitentiary 293 

i 7212. Assessment of fine 203 



1840, Jan. 20. Adoption of common law. . OOO 

PaschaVs Digest. 

Art. 1870. Indictment for bribery 183 

Revised Statutes, 1805. 

Art. 1680. Descent and distribution 000 

Art. 32.58. Adoption of common law 000 

\Vhite*s Annotated Code of Criminal 

I 766. Practice as to improper argument 200- 

West Virsinla. 

Code, 1899'. 

Chap. 53, i 50. Dis.solntion of corpora- 
tion 13r 

Chap. 54. i 26. Building associations.. 421 
Chap. 75, S 8. Men 120^ 



1890, chap. 245, p. 407. Trustees of coun- 
ty poor 831 

Revised Statutes, 1878. 

H 104.5, 1046. 

Entries on 



Revised Statutes, 1898. 

% 600. Collection of cost of support of 

Insane persons 8.30 

I 600e. Rendition of accounts 831 

f 604q. Collection of cost of support from 

estate 830 

H 1500-1505. Relief and support of poor 831 

i 2668. Pleading 614 

I 2820. Error or defect In pleading 61 fk 

I 2858. Special verdict 617 

Digitized by 


Digitized by 


LAWYERS' Reports 



R. B. COWPER, Appt., 






A coart order iinnalllnfic a Judicial niile, 

and directing a of the pvoperty. with- 
out accepting the bid. or directing any pro- 
reedJngB against the bidder, or any confirma- 
tion of the sale, relieves htm from all liabil- 
ity upon bis bid. 

(January 10. 1005. > 

APPEAL by defendant from a jud^ent of 
tlie Circuit Court for Livinj^ton Coun- 
ty holding him responsible for a bid made at 
a judicial sale. Reversed. 

The facts are stated in the opinion. 
Messrs. Headrick Sb Miller and J. C. 
Hodse for appellant. 

Messrs. Bush St WiUoa and C« O. 
Grassliam for appellee. 

Hobson, J., delivered tlie opinion of the 
court : 

D. B. Weaver died a resident of Living- 


-Htiicf of purchaser upon annuUiny ju- 
dicial or execution sale. 

T- Rflramr from bid. 33. 
II. Release from hid and return of deposit, 36. 

III. Relief by reimburnvMent or Hubroyation. 

a. ftcnrrally, 39. 

b. Reimbursement, 39. 
c Subroyatio'n. 

1. Generally, 42. 

2. Out of proceeds of renale. 44. 

d. Probate, yuardians', and administra- 
tors' sales. 

1. Ouardians' sales, 45. 

2. Administrators' sales. 47. 
e. Statutory relief. HI. 

f. Proeecdinys against nonresidents, 52. 

g. Fraudulent sales, 53. 

IV. Relief by action against the debtor, 55. 
V. Relief by action ayainst the creditor, 56, 

VI. Relief by action ayainst the sheriff, 58. 
TIL nummary, 58. 

I. Release from bid. 

It is a neceflsary result that a purchaser is 
r«°;eafied froon his bid on the sale being set aside. 
<fi the converse is also true, and a release from 
tlie bid will, in effect, set the sale aside. This 
i-ite is only Intended to Include such cases as 
--^ow. In effect^ that the sales were set aside or 
>!>ared as Invalid, in many cases a resale was 
bad because the purchaser failed to comply 
«ith bis t»!d. and proper steps were taken to 
bold btm for a deficiency where the sale was not 
^i aj»lde. The reason for holding him liable 
i* on the theory that his purchase is binding, 
a&d he haa caused loss by his delinquency. The 
r.i* Is that where proper steps are not taken to 
*:i the pnrcbaser's liability, and a resale Is had, 
ise will be released; and It may be stated that 
vii^re be is led to believe that the first sale 
^.« been abandoned, and another sale is had, 
Wvlil not be liable. This was the rule adopted 
^.a L. R. A. 

in C'owpKU V. Wkavku's Admb. As to whether 
or not he may clsim release If the sale is not 
confirmed, the case of Cowper v. Weavek's 
Admb. holds that he Is released, saying: "The 
purchaser at the first sale was only a preferred 
bidder until his bid was accepted by the court 
routirming the sale." But In a case in the 
United States Supreme Court (Camden v. May- 
hew. 120 I'. S. 73. 32 i.. ed. 608, 9 Sup. Ct. Rep. 
240). he wos held not released; but the court 
offered to confirm the sale if he would pay, and 
an order was made to fix his liability when the 
subsequent sale was ordered. Judicial sales 
differ from execution sales. In that In the 
former a confirmation is necessary to fix the 
liability of the purchaser. Some states have 
a statutory provision for the confirmation of all 
hales. The purchaser will be released if the 
conditions In the second sale vary from those 
in the first sale. If the sale is void the pur- 
chaser will be released from his bid (see subdiv. 
III.). lie will be released by the court in 
Judicial sales which are set aside on the ground 
that the title is doubtful (see subdiv. II.). He 
has been released on the ground of poverty. 

So. where no notice was given or rule taken 
against the purchaser at a sheriff's sale, that a 
resale would be at his risk, he was held Justi- 
fied in regarding his purchase as abandoned. 
Galpln V. Lamb. 29 Ohio St. 529. 

The same was held in Glrard L. Ins. Co. v. 
Young, 8 Phlla. 1«. the court saying: "Surely 
if, after such a sale, the property is again put 
up without any demand on the part of the 
sheriff or anyone else for the performance of 
the contract, and without any notice or intima- 
tion that the purchaser is to be held respon- 
sible for the loss, on a resale, he may fairly 
Infer that his bid Is not insisted on. that his 
compliance with it has been waived." 

In Makemson t. Braun, 100 Ky. 88, 37 S. W. 
405. the purchaser refused to execute bonds, 
and the commissioner, without reporting to therl/^ 
3 3^'*- 




ston count/, and his administrator brought 
this suit to sell the land owned by him for 
the payment of debts, and for the settlement 
of his estate. At the April term, 1903, a 
judgment was entered directing a sale of 
the real estate. The sale was made on June 
1st, and at it appellant, R. B. Cowper. bid 
in lots 67, 68, 69, 70, and a part of lot 17, 
for $265. After the sale he seems to have 
concluded that the title of the intestate to 
the land was not good, and refused to ex- 
ecute a bond for the price. The commis- 
sioner on September 9th filed his report of 
sale, stating that Cowper liad purchased 
the property at the sale, and had refused to 
execute a sale bond. On this report on Sep- 
tember 25th the court, without taking any 
proceedings against Cowper or confirming 
the sale, entered the following order: **it 

court, readvertlgpd and sold the property, which 
sale was conflrmed. SubHeqiiently a rule was 
issued a;;alD8t the first purchaser to show oauHo 
why he should not be required to pay a de 
liciency arlnliiK botwopu the sales. It was held 
that, as the commisHloner had ele<'ted to treat 
the first purchase as a nullity, and reported all 
his acts to the court, and no steiw were taken 
to compel the purchaser to comply with his pur- 
chase, but. Instead, the last sale was conHrnied, 
the rule was taken too late, and the purchaser 
was released. 

And in Stout v. Phllippi Mfg. & M. Co. 41 
W. Va. 339, 5« Am. St. Uep. 843, '2:\ S. K. r.71. 
where, by consent of the parties. It was agretMi 
that there should be a resale, and the same 
purchaser purchased at the second sale at a less 
price, and the first sale was not confirmed, or 
reported until after the second .sale, it was held 
that he was not liable for the detlciency. In 
this case tlte property was injured by a freshet 
between the sales, althoui^h this was not plead- 
ed in the proceedinpt to hold the purchaser 
liable. The court said : "But. without report 
of this bid, or its acceptance by the court, or 
intimation of a purpose to hold him to his bid. 
the property Is resold, by mere act of the at- 
torneys of the parties, without advertisement. 
As all parties consented to a resale. Dotiplass 
could fairly infer that they recopnlzed the in- 
justice of confirming the sale, and agreed to dis 
regard it." 

In Mississippi It was held that no liability 
attaches to the first purchase until after the sale 
Is confirmed ; that, if the purchaser refuses to 
pay, and the commissioners advertise and resell 
at a lower price, without reporting to the court 
until after a second sale, which is confirmed, 
the purchaser will not be held liable for the 
deficiency. Campe v. Saucier, 68 Miss. 27S, 24 
Am. St. Rep. 273. 8 So. 846. 

In regard to the necessity of a confirmatlcm 
to hold the purchaser, in Virginia F. & M. Ins. 
Co. V. Cottrell, 85 Va. 8.'>7, 17 Am. St. Rep. lOS. 
S. E. 132, the court said: "Until the sale 
has been confirmed the proceeding is in fieri: 
the l)Idder is not considered as a purchaser, and 
ho Is therefore not liable for loss to the prop- 
erty, by fine or otherwise. In tlie Interim ; nor 
is he compellable, before con/lrmation, to c-oni 
plete his purchase." 

So, in Neal v. Andrews. 53 Ark. 445, 14 S. W. 
I (Ur,. the court said: "In a judicial sale the 
iV.) L. R. A. 

a])pearing to the court by report of the mas- 
ter commissioner, W. I. Clarke, that he sold 
to R. B. Cowper lots 67, 68, 69, 70. and 71, 
and a part of outlot No. 17, as appears on 
the town plat of Smithland, Kentucky, and 
said Cowper having failed and refused to ex- 
ecute bonds therefor, and said fact being 
made known to this court as aforesaid, the 
said commissioner is here directed to treat 
said sale to Cowper a.n if it had not been 
made, and readvertise said property for sale, 
and sell same in the full way and manner 
set out and directed in the judgment filed 
herein, and will in all respects comply with 
said judgment in tiiking bond, making re- 
port, and so forth and so on, as herein set 
out; and this cause is continued." The re- 
sale was made on Xoveml)er 2, 189.3, and at 
it the property brought the sum of $32. 

court 1m the vendor, and there is no comploted 
sale until confirmation by the court, which Is 
the acceptance of the bidder's offer." 

.\nd a motion that a person reported best 
purchaser should complete his purchase by a 
certain day was refused; the report not belnsi 
a1»solute!y confirmed. Anonymous, 2 Ves. .Tr. 
335. The lord chancellor said : "He felt a 
difficulty : as until confirmation, the purchaser 
is always liable to have the biddings opened: 
until that, non constat that he is the pur- 

And in rampT)ell v. .Tohnston. 4 Dana. 17S. 
the court said: "Although in general the pur- 
chaser under an erroneous decree In chancery 
may not be alTected by the reversal of the de 
cree, yet. as was determined by this court in the 
case of Torman v. Hunt, at the last spring term. 
3 I>ana, (514, such sales are not complete until 
they are sanctioned by the court." 

So, In Ilnrwood v. Cox, 26 III. App. 374. the 
court said : "The accepted bidder at a niasti-r's 
sale acquires no Independent right to have hl< 
purchase completed, but is nothing mor<' than a 
preferred bidder, who proposes for the purchasi' 
of the property, depending upon the sound, 
etiullable discretion of the chancellor for a t^tn- 
flrmatlon of the sale by his ministerial ni^ent." 
And iu Cowan v. .Tones, 10 Smedes & M. 104, 
the court said : "In chancery. s(»me re|)orts an- 
conclusive, and others require contirmailon 
Among the latter, is the report allowing tin 
highest bidder at a sale under a decree to bt 
the purchaser." 

So. In Melmne v. Mebane. 80 N. C .'^,4. tb( 
court said: "The bid is but a proposition t' 
buy. and. until accepted and sanctIone<] hy tli 
court, confers no right whatever upon tlie jmi 
chaser. The snle Is consummated when tUa 
sanction Is given and an ord(*r for title mad 
and exe»'uted." 

In l''ornian v. Hunt, 3 Dana. 014. tho cninml' 

I sloiur in a roroclosure sale, su^jposiuR: that il 

I eslah* would be subject to redenijjtion, hiul d 

I estate valiu'd. which depressed the sal«\ and \\ 

, pn>i)er(y did not bring Its fair viihu*. 'i'; 

I eo\nt s«»t the sale aside on condition that tl 

]>urc!i:is«r ue paiti costs aud expcn-NO.-!. -y] 

t«»nrl v;;. 1(1 : '•'! lio«<e who piir<'li;ise :it a <h.i 

(•fllui's <aU' piiiri.a^e Miltji'-t to this ro\i-,;] 

powiT ami control, exorci-ed by the chai\« o \ 

over tlie sale; and tU^r right jo the i>vMiHia 

Digitized by VjOOQIC 

CowFEB V. Weaver's Administrator. 


^reupon, at the December term of the 

^irt, the court aMrarded a rule against 

-•wper to show cause, if any he could, why 

should not pay the difference between 

^ bid made by him and the bid nmde at 

^ second sale, which the court tlien con- 

^»d. Appellant, Cowper, in response to 

^ ^ rule, set out that the intestate had no 

, 5« to the property, and also relied on va- 

yds irregularities in the proceedings. He 

^ set up the order above quoted, by which 

t sale to him was ordered to be treated as 

Vdlity, and pleaded it in bar of the rule, 

eonnection with the subsequent orders of 

I court confirming the second sale, and 

^eving the property to the purcliaser 


fa J/aA-emson v. Braun, 100 Ky. 8S, 18 
f. L Rep. 584, 37 S. W. 495, the commis- 

sioner sold a tract of land, and, the pur- 
chaser failing to execute bond, readvertised 
the property, and made a second sale at the 
next county court. He then reported to the 
court both the sales. The court confirmed 
the second sale, and ordered the property 
conveyed to the purchaser. After this a 
rule was taken out against the purchaser at 
the first sale to show cause why he should 
not pay the deficiency, it was held that 
he was not liable. The court said: "While 
an accepted bidder at a judicial sale who 
fails to comply with his bid may, by proper 
proceedings, be required to pay the damage 
resulting from sucli failure, which would in- 
clude the difference between the bid, if any, 
and the amount realized on the final sale, 
if the prop(»i-ty sold for less on that sale 
[than at the former sale], yet, where the 

knds apon and awaits his saDction and con- 

lot in Camden v. Mayliew. 129 IT. S. 73, 32 
M. miS, 9 Sup. Ct. Kep. 246, the purchaser 
%i*l to pay bis cash bid. A rule was awarded 
llast the purchaser to show cause why he 
told not pay tlie 8um bid by him for the 
wperty, or why the sale should not be set 
k" And a resale had at his rlslc and costs, 

the exceptions to the report of the sale 
tt ^diiitalned. The sale was set aside, and the 
kml9>loD«>rs were directed to resell the prop- 
ty, at the cost of the purchaser, for cash, 
K-rrittf; for future ''determination in this case 
e (jaes>tlon whether the said Camden will be 
«tiir««l to pay the deficiency.** He was held 
ble for the deficiency on a proceeding; by rule, 
je setting aside of fhe sale in this case was 
•l-aMr because of noncompliance with the bid, 
!k'*c7jpli ^iie reasons are not given, and the 
ffljiser "was not released, because the same 
tf provided for his liability being retained. 
^•ni4>f Question d)8cu.ssed was the right to 
<«rf^-fi by rule or attachment without the sale 
»{r-^ b«^xi confirmed. On ordering the resale, 
^ (Minrt liad offered the first purchaser the 
^. ^'^^ of paying his bid. which was held 
■^n-i^.^^ot. to a confirmation. 

A:.:irf liji«er will be discharged from liability 
>ir^-«Ale where proper steps to fix his liabll- 
'ire not taken. 

^- a piirchas«»r was held released from the 
'i" n''y <*anM»d'by a resale, where such resale 
* ad *>o different terms from those on which 
»I;r. ija»e<l. Hay t. Adams. 28 Misc. 004, oi) 

1 Supp. 1047; Riggs v. Pursell, 74 N. Y. 
^ I'-ine* ▼. Gordon, 9 Pa. 420 ; Weast ▼. Der- 
H. 1«M> r*a. 509 : ▼. Mc<^abe, 34 La. 
^ : <:\ : Zlmnoerman v. Kckert, 2 Pennyp. 221 ; 
^.an V. Husband, 77 Pa. 380; Paul v. 
^ r .-s 2 Ra^le. 320; Hare v. Bedell, 98 

' 1 Tl <^ same was held in Ilcndrick v. Davis, 
• I'-.T. 73 Am- I>ec. 720, holding, also, that 
'•rr- ;T'»f*<iTf r must be resold, and resold 
' »- ; r"i*'rty of the identical defendant, as 
•» i". MiJ-r.i-ty it had Ijecn bid off to the first 
' . ■ ' r- 

i I»iii^er was lield released from 11a- 

. T a ijeticiency on second sale where 

-,T, on a Tfturn of the execution, made 

. ; n fit t:)** dj-faulting bidder. The court 

-;^1 i'.ixit it was tlie duty of the sheriff 

'... iL A. 

at execution sale to make a necessary memo- 
randum in writing. Linn Boyd Tobacco Ware- 
house Co. V. TerriU. 13 Bush, 403. 

In Harvey v. Adams, 9 Lea, 289, it was held 
that the purchaser at the first sale, where there 
had been a resale, could not be held liable by 
the judgment creditor for the difference in the 
first and last bid. the court saying : "There is 
no privity of contract between the complainants 
and the defendant. The defendant's contract 
was with the sheriff, and the liability to him." 

In Grier v. Yontz, 50 N. C. (5 Jones. L.) 371. 
a purchaser was held released from liability 
for a deficiency on a resale where a new process 
was issued to sell the land. The court said : 
"By suing out the venditioni exponas, the cred- 
itor treats the debtor as still the owner of the 
land, and he relies upon that for the payment 
of his debt." 

Under S. C. act 1839, $ 58, providing that, 
if the purchaser at sheriff's sale shall fall to 
comply with the terms, the sheriff shall pro- 
ceed to resell at the risk of the defaulting pur- 
chaser, either on the same or some subsequent 
sale day. as the plaintiff may direct, and, in 
the absence of any directions, shall resell on the 
same day if practicable, and, if not, on the next 
succeeding sale day, making In every such case 
proclamation that he is reselling at the risk of 
such defaulting former purchaser, — it was held. 
In Yongue v. (^athcart, 2 Strobh. L. 221, that 
the purchaser was released where the sheriff 
failed at the resale to make the proclamation 
required by the statute. On a subsequent trial 
of this case (3 Strobh. L. 304) it was held 
that, if the sheriff did not sell on the same 
day, or the succeeding sale day, the purchaser 
would be released from a deficiency unless the 
sheriff showed that the second sale was by the 
direction of the plaintiff. 

And where the sheriff before the return day 
returned on his writ that the purchaser had 
not paid, and the property was unsold for want 
of lililders. and made no demand, it was licid 
ihat the bidder was not liable for the difTcreuce 
In the price, lloldship v. Doran, 2 I'eiir. & 
\V. 0. There seems to be some dinTereme in 
the ])raf(ice in such cases. In tliis case tlw* 
court siiy^iosted that the sheriff sliould sih* if 
the money was not rea«ly at the return day. 
without tendering a deed, or he miMJit make a 
special return "that the property was lc^nocl<od 
down to A B for so much, — that said 
Digitized by ^ 



Kentucky Coubt of Appeals. 


commissioner has elected to treat the bid 
as a nullity, and has proceeded to advertise 
and sell again, and the second sale has 
been confirmed without objection, it is then 
too late to proceed against the first pur- 
chaser for failure to comply with the terms 
of the sale." The commissioner, in making 
the sale, is the agent of the court. His 
powers are limited by the orders of the 
court. He has no power to treat a sale as 
a nullity, and in the case cited the judg- 
ment of the court turned, not on the action 
of the commissioner, but on the order of 
the court confirming the action of the com- 
missioner, for the act of the agent amounted 
to nothing until it was ratified by the court. 
The commissioner is simply ordered to sell 

the property. He is without power to re- 
lease the purchaser from his obligation. 
The liability of the purchaser depends upon 
the action of the court. In the case at bar 
the court ordered the sale to be treated as a 
nullity. He directed the land to be resold, 
and, when that sale was made, he confirmed 
it, and directed the property to be conveyed 
to the purchaser. The purchaser at the first 
sale was only a preferred bidder until his 
bid was accepted by the court by confirming 
the sale. The contract was not complete, 
and, when the court decided not to confirm 
the sale, but to treat it as though it had not 
been made, the purchaser stood simply as 
any other person who makes a proposition 
which is not accepted. When the purchaser 

not paid the purchase money, and that, there- 
fore, the property remains unsold." But that 
the sheriff could not, unless the purchaser was 
notoriously insolvent, return that the pur- 
•ohaser has not paid long before the return 
day, and that the property was, therefore, un- 
sold for want of bidding: and "where he does 
so, and has made no demand, and no evidence 
to Justify him in so doing, the bidder is not 
liable for the difference in prices." 
' In Miller v. C'ollyer. 'AG Barb. 27)0. it was 
held that the purchaser was not liable to the 
assignee of the sheriff under a foreclosure sal«^ 
where the terms of sale were that, if any jmr- 
chaser shall full to comply with the conditions, 
the premises so struck down will be put up for 
sale upon the same terms without notice to the 
purchaser, and such purchaser shall be held 
liable for any deficiency ; that the remedy 
against a purchaser was Ijy application to the 
<rourt to compel him to complete it, or to re- 
tfcU, and hold him liable for the loss. 

Purchasers have been released from liability 
•on the ground of mistake, or want of authority 
in their agent to bid, or defects in the prop- 
erty or title. 

So, in Clay v. Kagelmacher. 08 Ga. 140. 26 
8. K. 40:i, it was held that a bidder would be 
released from liability on a resale, where he had 
refused to comply with his bid by reason of the 
««tatemeuts of the auctioneer causing him to 
make a mistake as to the identity of the lot 

In Harder v. Sayle-Stegall Commission Co. 
«l Ark. 00. 31 S. W. 070, it was held that, if 
a second sale was made because an alleged pur- 
<*haser refused to ratify a bid made by his 
agent, and the authority of the agent was 
limited, and the sheriff knew that he was ex- 
ceeding his authority, the purchaser would be 
released from the deQclency arising from the 
second sale. 

Executors of a mortgagor were misled and 
Induced to believe that a sale of the premises 
would not take place. It was held that the 
«ale should be set aside on the ground of sur- 
prise, on their paying to the purchaser his costs 
and expenses ; and, if this was not complied 
with, the plaintiff could cause the property to 
be exposed again for sale. Williamson v. Dale, 
3 .lohns. Ch. 200. 

And where an administrator's sale was void. 
It was held that an action for specific per- 
formance could not be maintained by the heir 
against the purchaser. Kertchem ▼. George, 78 
Cal. 597. 21 Pac. 372. 
69 L. R. A. 

And wliere a sheriff's sale was set aside and 
quashed. It was held that the sale bond also was 
properly quashed, and the purchaser released. 
Wilson V. Percival, 1 Dana, 410. 

8o, a bidder was held released from his pur- 
chase as adjudlcatee of a succession, where it 
appeared that there was probability of litiga- 
tion on the title. Kogge v. Municipal Improv. 
Co. 49 La. Ann. 37. 21 So. 170; Bachino v. 
(!o8te. 35 La. Ann. 570; Nash's Succession, 48 
La. Ann. ir»73. 21 So. 254. 

And in Dunscomb v. Hoist, 13 Fed. 11. where 
the title was such that the purchaser was not 
bound to accept, an order was made relle%'lns 
him from complying with his bid, and directing; 
a resale. 

A sale was void where the vendor, having a 
purchase-money lien, had an execution sale 
thereon of the land without having his deed 
securing such lien put oir record. It was held 
that the purchaser should be released from his 
bid. McCord v. McGinty, 00 Ga. 307. 25 S. E. 
067. This sale was void under a statute. (See 
Upchurch v. i^cwls, 53 Ga. 621. subdlv. III. b.> 

So, where an administrator fraudulently rep- 
resented that the laud sold was the property 
of bis intestate by virtue of the location of a 
head right, where he knew that It had been 
located upon another tract, It was held that 
the Judgment u^ton the sale note for the pur< 
chase money should be enjoined. Coombs v. 
Lane. 17 Tex. 280. 

In Deaver v. Ueyuolds, 1 Bland, Ch, 50. a pur 
chaser In partition sale was released by ordei 
of court, where he was unable to comply witli 
the requirements of the sale in regard to exe 
cuting bonds, and asked that the sale be se 
aside; but he was held chargeable with th< 
costs and expenses of the first sale, to be re 
talned out of any share coming to him. 

For other cases where the purchaser at i 
Judicial sale was released on account of th 
title, see next subdlv., where sales were se 
aside and deposit returned. 

II. Release from hid and return of deposit. 

In England, Ireland, and Canada the prnctlc 
Is that on a report of sale the purchaser ma 
suggest doubts upon the title, whereupon 
reference Is had to ascertain and report, an< 
If the master reports that there Is n cloud o 
the title, the purchaser is released, and is ent 
tied to a return of the purchase money pal< 
and is usually allowed interest and costs. Tti 
question of practice Is^stated ta be as followi 
Digitized by VjOOQIC 




ah to execute his bond, it may be that 
se parties prefer another sale, thinking 
lit the property will sell for more, and in 
li^ e^ent the court may so order without 
ikintr any proceedings against the purchas- 
*. But if it is desired to hold the pur- 
)i^T. then his bid must be accepted by 
« wurt, and, if he still refuses to give 
be Umd. a resale may be ordered, pr the 
DT.'n^r may be dealt with as in cases of 
m:Hnipt: and, in this state of case, if the 
D<1 on the second sale sells for more than 
1 t. (' first, the surplus will belong to the 
ir«iia-er. The court cannot, however, 
rjt the sale as a nullity, and thus keep 
le Niirphis. if the land on the second sale 
iU tnr more than on the first, and at the 

same time hold the purchaser responsible for 
the deficiency if on the second sale it sells 
for less. In Shirley v. Shewmakery 23 Ky. 
L. Rep. 452, 63 S. W. 11, the first sale was 
confirmed by the court and a rule was taken 
against the purchaser to show cause why he 
should not give bond, which was made ab- 
solute. Brass field v. Burgess ^ 10 Ky. L. 
Rep. 660, 10 S. W. 122, is in effect tlie same,, 
and so is Tyler v. Guthrie, 17 Ky. L. Rep. 
1193, 33 S. VV. 934. But in none of the 
cases is the court allowed to treat the sale 
as a nullity, and still proceed to hold the 
purchaser liable. 

Judgment reversed and cause remanded, 
with directions to discharge the rule against 

iKiruan ▼. Hlnke. 1 HoKan. 151 : First, that 
» Mijding binds the bidder, while it is open to 
» " nrT lo receive an out bid and order a re- 
I'* nn'il the conditional order of conflrmatlon al«H>Iute : second, that the condition- 
I • rVr caDDot be entered until the bidder has 
Jp"*'Ml one fourth of the purchase money: 
iiri. That the order to confirm absolutely can- 
« '* ijone antll the remaining three fourths 
f • .e pMrrliase money is paid ; fourth, if. the 
' e IS not jrood, the purchaser will be paid 
Ik !ii«« purchase money at 6 per cent wlth- 
r '<'in^ iiiTolved in any of the consequences 
( Uif lu vestment or disposition of the funds 
i-\%{-»'n the parties; fifth, that the purchaser 
«* » ri„»ljt to have his purchase money in- 
'^ -l i; tln> stocks at his own risk, or to trans- 
V - ■• k at hU own risk to the amoun': of th« 
ir- .1^ mooey. but in that case he will b« 
^''1 > make gooil the full amount of the pur- 
u«« r.i< uvy when the transaction is completed, 
tc '•• .:ain or lose the difterence himself. 
I- \i.f followlni? cases, on the sale being set 
^M»- iiii> purchaser was held entitled to a re- 
tra if his deposit with costs. There is not 
fc ~!i lifferencc in the facts in these cases to 
I* » ><»ttlnK them out in full: Ward v. 

* -1. M Sim. «2 ; Reynolds v. Blake, 2 Sim. 
' ^" HT: ('alTert v. Godfrey. Beav. 97. 
f^* • ■■■••Mt interest : Feely ▼. Kilkenny, Flan. 
'*^ 4'. ; : Lachlan v. Reynolds. Kay, 52 ; M'Cul- 

A y «.:p-,'.iry. 1 Kay & .1. 28<5. 

\Ti nil, re a purchaser under a decree was 

*' 'i i-xause the title was encumbered by a 

■- ' i<» ctit timber, it was held that the pur- 
''• ' wa«{ justified in withholdinf? payment 
S' ; :- oljectlon was removed, and, if it could 
' '• " :• moved, the purchaser would be entitled 

* • '.i-< iiarjred from his purchase and to have 
I • . -'* ,it refunded, or to an allowance of an 

'T't Iq the purcbaBe money. Street v. 
f « Ont. Pr. Rep. 312. The court did 
' «>v^' costs because the application was 

f -. 

' ■'•' following cases the purchaser was 

"•' 'hf retnm of bis purchase money with 

'^ "' • and costs: Linebam v. Cotter, 8 Ir. Eq. 

: •"<: Oower v. nill. Hayes & J. 127; 

' i'«v. Roberts. 2 Molloy, 507. 

'•' 1 purchaser under a decree was dls- 
1^ -n tii,on a report of bad title, and It was 
J^^ -atf his deposit should be paid back with 

♦* !••, idlo* to his applying for Interest and 
' •'' '^Un tbere should be a fund in court. 
^ '■ :'^ «leath a fund was realized from which 
;* '*'^"°*' reprewsntative was held entitled to 
* • u Ji. A. 

l)e paid Interest and costs. Mackay v. Orr, 3 Ir. 
Eq. Rep. 499. 

In Hill V. Klrwan, 1 Hogan. 173, where the 
purchaser was dlschnrfced because a good title 
could not be made, and there was no fund In 
court to pay his Interest and costs, the purchase 
money haying already been paid back, it was 
held that he was entitled to have a receiver 
appointed over the lands, with direction to 
apply the rents In the discharge of his Interest 
and costs. 

A person who had made a deposit as the 
highest bidder under a decree, and who wa» 
outbid at a subsequent sale, was held entitled 
to have his deposit paid back Immediately ; but 
as to his interest and costs he was required to 
wait until the sale was completed. Archdall v. 
Montgomery, Vern. & S. ,^02. 

And where the title to land sold under a de- 
cree was defective, and the purchaser was dis- 
charged, he was held entitled to the full amouut 
of hfa purchase money. Interest and costs. It 
was further held that, where such interest and 
costs were to be paid out of a fund .charges l)ie 
with the usher's poundage, the loss should be 
borne by the funds In the cause, and not by the 
discharged purchaser. Johnson v. Reardon, S 
Ir. Kq. Rep. 200. 

A sale In partition was invalid l)ecause It 
took place before the certitloate In answer to 
the inquiries directed by the decree was made. 
It was held that the purchaser was entitled to 
his costs arising from the deposit, which had 
l)een paid into court and Invested, with the 
dividends thereon, or the actual amount of 
deposit and produce, with costs, charges, and 
expenses. I*owell v. l*owell. L. R. 10 Kq.*422. 
The court said : If he Insisted upon the return 
of the money Itself, he was entitled to It and 
all the dividends which have arisen from Its 

But where the purchaser lodged stock Instead 
of money in court, and the sale was set aside 
by the House of Ix>rds for want of title, on a 
motion by the purcha.ser to have the stock re- 
lumed in specie, and not merely the money 
ordered deposited with 6 per cent Interest, as 
the funds had risen in the Interim, It was held 
that, as It was not shown that he undertook 
the risk of a fall In the prices, be was not 
entitled to the benefit of the advance : and his 
money, with Interest, was returned. Klrwan v. 
Blake, 2 Molloy, liOG. 

In New York the practice Is for the purch.nser 
to have the title examined before confirmation, 
and, if bis objection to the proceedings, or->to 

Digitized by LjOOQIC 


Kjcntuckt Coxtbt or Appeals. 


the title, are snstalned, the sale will be Mt 
aside, and the deposit or purchase money paid 
will be refunded to him, with the expenses of 
examining the title and costs. 

So, a purchaser was held entitled to be re-' 
lleved from his purchase, and to be repaid his 
deposit upon the sale with Interest, and all his 
proper expenses of examining the title, with 
costs, where there was a question affecting the 
title as against heirs who were not made par- 
ties in n partition sale. Toole v. Toole, 112 
N. Y. 333, 2 L. B. A. 466. 8 Am. St. Rep. 750, 
19 N. E. 682. 

And purchasers were held entitled to have 
the amount paid on their bids refunded, and the 
auctioneer's fees and costs, where the sale was 
made In partition,. and there was a question as 
to the lien of legatees, which could not be de- 
termined, as they were not parties. Jordan ▼. 
Poillon, 77 N. Y. 518. 

In Campbell's Esthte, Tucker, 240, the surro- 
gate held that a sale was so irregular that It 
should be set aside, and that the purchaser was 
entitled to be paid his deposit and the auction- 
eer's fees. But he further held that a surrogate 
had no power to allow counsel fees on this pro- 
ceeding, or on examining the title. 

And under N. Y. Code Civ. i'roc. if 2752 and 
2754, providing, in a petition to sell decedent's 
real estate to pay debts, that the petition 
should state the names of the heirs and 
devisees, and that they should be cited, where 
the petition omitted the name, and the heirs 
were not cited, a purchaser was held entitled 
to a return of the purchase money paid, and 
the auctioneer's fees, and the expenses incurred 
in the examination of the title, in an applica- 
tion to be relieved from sale. John's Estate, 
21 N. Y. Civ. I'roc. Kep. 326. 

So, it was held that the purchaser was en- 
titled to have the purchase price refunded, with 
the expenses. Including searching of title, and 
this was apportioned between the parties pro- 
curing the sale. Muller v. Struppman, 6 Abb. 
N. C. 343. In this case u partition sale was 
held invalid on the gro\ind that the supreme 
court had no inherent original authority to 
order a sale of the real estate of an Infant. 

And in an action for partition a sale was 
held to pass an insufficient title, and the pur- 
chaser was held entitled to be discharged from 
his bid, and to the return of his deposit of 
10 per cent, and to interest, out of the rents 
and profits In the hands of the receiver, and 
expenses of investigating the title. Itogers v. 
McLean, 10 Abb. Pr. 306. In this case an in- 
fant lunatic, who was a necessary party, was 
not served with summons. 

And a purchaser under a sale to pay debts 
under an order oC surrogate's court was held 
released, and the return of his deposit granted, 
and costs of examining the title, where the pro- 
ceedings were invalid, and creditors were not 
parties, and the title was doubtful. Mahoney 
v. Allen. 18 Misc. 134, 42 N. Y. Supp. 1127. In 
tikis case the referee moved to compel the pur- 
chaser to comply witli his bid, and the pur- 
chaser moved to be released from his bid, and to 
have his deposit returned, and to be reimbursed 
expenses, and to set aside the final Judgment 
and order confirming the sale. 

And a sale under a mechanic's lien was set 
aside because the purchaser was ignorant that 
the defendant's wife had an Interest in the 
property. It was held that the court had power 
to set aside the sale, and to reimburse the pur- 
chaser from the proceeds. It was held that the 
69 L. R. A. 

■ale was properly set aside, and the purchaser 
was allowed ^50 expenses for examination of 
title, to be paid from the proceeds of the sale. 
Rogers v. Menton, 21 Misc. 535, 47 N. Y. Supp. 
1147. This evidently was to be refunded from 
a second sale, but the case does not show this. 

So, a purchaser at a mortgage foreclosure 
was held entitled to have his bid canceled, and 
to a return of the purchase money paid, with 
|102, the expense of examining the title, where 
the sale was made subject to a mortgage hav- 
ing eighteen months to run, when In fact such 
other mortgage was already in process of fore- 
closure. Bradley v. Leahy, 54 Hun, 390, 7 N. Y. 
Supp. 461. 

And a purchaser was held entitled to be re- 
lieved from his bid, and to have the 10 per 
cent deposit refunded, and the costs and ex- 
penses of searching the title paid to him, where 
the sale was made by the receiver of an in- 
surance company on a foreclosure, and hifant 
owners were not made parties to the action. 
People V. Globe Mut. L. Ins. Co. 33 Hun. 3»:{. 

In the following cases, where the sale was 
set aside, a return of the deposit was allowed : 
Re Whitlock. 32 Barb. 48 ; Hlrsch v. Livingstoo. 
3 Hun, ; Beckeubaugh v. Nally. 32 Hun, 160 ; 
Collier V. Whipple, 13 Wend. 224. 

And a sale of a decedent's estate in an 
action for partition was objected to on the 
;;round that there was a mortgage on the prem- 
ises, and that there were no advertisements for 
creditors, and that the administrator could 
have a resale to pay debts. It was held that 
the purchaser could not be compelled to take 
the property, but was entitled to be refunded 
his 10 per cent deposit with Interest. Hall 
V. Partridge, 10 How. Pr. 188. 

On a bill against devisees to subject property 
In their hands to a debt of the testator, Judg- 
ment creditors were not made parties. The 
sale was set aside, and it was held that the 
purchaser should be discharged from his pur- 
chase and the deposit returned to him, and 
that he was also entitled to the Interest on his 
deposit, and to the costs to which he had been 
subjected. Morris v. Mowatt, 2 Paige. 586, '22 
Am. Dec. 061. The court said: "At present, 
there is no fund under the control of the court 
out of which the interest and costs can be paid ; 
and, as all the parties have acted in perfect 
good faith in relation to this sale, the expenses 
must be paid out of the fund hereafter to be 
raised. If a second sale takes place. If no sale 
of the property Is had. and no other way is 
provided for the payment, the charge must fall 
on the complainants personally.*' 

And where a plaintiff guardian of an infant 
in a foreclosure action was also appointed 
guardian ad litem without disclosing that he 
was guardian, the sale was held voidable, so 
that the purchaser was entitled to be relieved 
from the purchase and to have the money paid 
in refunded, with costs. Hecker v. Sextan, 4<( 
Hun, 593. 

So, a purchaser at a partition sale was held 
entitled to he released, and to have the monoy 
paid returned, with his disbursements, where 
the property was encumbered by a condition 
limiting the buildings to be erected at a certain 
cost, which was not disclosed at the sale. Knee 
v. Kuykendail, 6 N. Y. 8. R. 1. 

So, where the complainant in a partition suit 
waa a feme covert, and her husband was not 
Joined as 'a party, it was held to be fatal to the 
title of the purchaser; and it was held that, 
if the title could n0^ be pertected, the pur- 
Digitized by VjOCDQIC 


Ck>wPEB y. Weayeb's Administbatoe. 


chasers were to be discharged and their deiMslts 
reiaroed, including costs, out of the proceeds 
'Of tbe lots directed to be sold. Spring v. Sand- 
tord, 7 Paige, 660. 

In Aspinwall ▼. Balch, A Abb. N. C 193, It 
was held that. If the property bought at a 
foreclosure sale was materially damaged by fire 
l«fore the deed was delivered, the purchaser 
voald not be obliged to accept It In this case 
tbe damage was not material, but it was held 
that, if the plaintiffs in the foreclosure action 
did not repair the building within a reasonable 
tune, or give adequate compensation, the pur- 
chaser could renew his motion to be discharged, 
and for a return of his deposit. 

And a purchaser was relieved from his bid 
In a sale under partition instituted under tbe 
GeTised Statutes, when such proceedings had 
b«en abolished by the Code. It was held that 
The purchaser was entitled to have his deposit 
repaid, and to an order directing the petition- 
ers to pay costs and expenses, to be a charge 
upon the petitioners* interest in the land. Re 
ravanagh, 14 Abb. Pr. 258. 

In other states, where tbe sale Is set aside 
the practice Is to direct the return to the pur- 
chaser ol the purchase money paid, where it 
hA» not been distributed. This was held in 
the following cases : Levy v. Riley, 4 Or. 392 ; 
I>ala V. Seagle, 98 N. C. 458, 4 S. E. 540; 
Shields t. Allen, 77 N. C. 375 ; Smith v. Brit 
tain, 38 N. C. (3 Ired. Eq.) 347, 42 Am. Dec. 
17.%: Dume8tre*s Succession. 40 La. Ann. 571, 
4 So. 328 : I-ee v. Texas & N. O. R. Co. 22 Tex. 
i:iv. App. 501, 55 8. W. 976 ; Uyman v. Smith, 
13 W. Va- 744 ; Edney v. Edney, 80 N. C. 81 ; 
Slate Bank t. Green. 10 Neb. 130, 4 N. W. 942 ; 
Preston v. Fryer, 38 Md. 221. 

After a decretal sale a deficiency execution 
^as issued without authority of law, because 
there was on file a supersedeas bond staying 
proceedings, and the execution was invalid. 
The purchasers of tbe property were held en- 
titled to a return of the purchase money paid, 
virb legal interest. State Bank v. Green, 10 
JVeb, 130, 4 N. W. 942. 

And a purchaser at a master's sale which was 
fon&rmed appealed from the order of confirma- 
tion. The sale was set aside on appeal, and 
tbe purchaser in the meantime had paid her 
tood. It was held that she was entitled to have 
the purchase money returned with interest, and 
That she was not liable for the fees of the ap- 
l*^ilunV» attorneys, the commissioner and the 
e<erk. IJall ▼. Dlneen, 26 Ky. L. Rep. 1017, 83 
S- W. 120. 

<>n a bill to enforce a mechanic's lien against 
tbe separate real estate of a woman, a decree 
or sale was made. The decree was reversed on 
tte ground that against a separate estate it 
ebould have provided for the application of 
r^nta and profits, and not for a sale of the cor- 
PQ^ and the sale set aside. It was held that 
':k purchaser should receive back her bonds 
*x«raied for the purchase money, and the cash 
laraienc should be refunded, but that she should 
be ebarged with the rents and profits, less taxes 
paid, and. If the rents and profits should exceed 
the cash puyment, a personal execution should 
b« rendered against her for the balance. 
<'baHeston 1^ ft M. Co. T. Brockmeyer, 23 W. 
Vs. 635. 

in. Relief hy reitnhursement or subrogation, 

a. aenerahy. 
The general rule, according to the weight of 
59 L. B. A. 

authority. Is that a judicial or execution sale 
will not be set aside at the instance of the debt- 
or, or the purchaser will not be ousted from 
possession without refunding to him his pur- 
chase money which has been applied to the 
benefit of the debtor. This Is on the ground 
that "he who seeks equity must do equity.*' 
And the same relief has been had in common- 
law cases where the distinction between com- 
mon law and equity has been abolished. This 
principle is derived from the Roman law, as 
shown by Justice Story in the case of Bright 
V. Boyd, 1 Story, 478, Fed. Cas. No. 1,875. say- 
ing : "Where a bona fide possessor or purchas- 
er of real estate pays money to discharge any 
existing encumbrance or charge upon the estate 
having no notice of any Infirmity in his title, 
he is entitled to be repaid the amount of such 
payment by the true owner, seeking to recover 
tbe estate from him. Dig. lib. 6, title, 1, L. 65 ; 
Pothler Pand. lib. 6, title 1, note 48. 

So, the purchaser losing title is allowed by 
subrogation a lien on the interest of the debtor 
in the land, on the principle that equity will 
subrogate the party extinguishing the lien to 
the rights of the Hen holder, and will protect 
him to that extent. The question of reimburse- 
ment or subrogation arises from the nature of 
the relief sought, the pleadings in the case, and 
the possession of the land. 

The exceptional cases in regard to the resti- 
tution to the purchaser of the purchase money, 
or his right to subrogation, occur in probate or 
guardian sales, where the purchase money was 
not used to extinguish liens, in some cases ap- 
plying tbe principle of caveat emptor where 
subrogation was denied. 

In some cases relief was denied where the 
proceedings were void, as in attachment pro- 
ceedings, or a personal judgment on publication 
ouly. and there was no Judgment to support the 

There were other cases where relief was de- 
nted on account of the pleadings or parties, or 
where another remedy was suggested. 

b. Reimhursemeni, 

The weight of authority is that reimburse- 
ment to the purchaser will be imposed as a con- 
dition precedent in actions to set aside execu- 
tion and Judicial sales, and in actions of eject- 
ment in states allowing equitable defenses, 
where tlie money of the purchaser has extin- 
guished debts which were a charge on the land. 
This is ou the principle that he who seeks equity 
must do equity, or on the principle of compen- 
sation, or on what is known as an equitable lien 
allowed the purchaser to secure his advances. 
Keeping these principles in view, the courts 
have established a broad equitable principle that 
the purchaser will not be compelled to restore 
the property under a void sale, where he Is not 
in fault, without being compensated for his 
purchase money. 

This was held where a mistake was made by 
the auctioneer in confusing the numbers of two 
lots, thereby sacrificing a valuable lot for a 
small amount. The purchaser was held entitled 
to the amount paid and interest and taxes, sub- 
ject to rental value. Howlett v. Garner, 50 S. 
C. 1, 27 S. B. 533. 

So where a sheriff's sale under execution of 
an iudeiiuite interest in an estate was held 
void. I'enu v. Spencer, 17 Gratt. 85, 91 Am. 
Dec. 375. 

A purchaser under a title bond brought suit 

Digitized by 



Kentucky Court of Appeals. 


against the purchaser of the same land under 
execution sale for the deferred payments where 
the deed had not been put upon record. This 
execution sale was void under 6a. act 1847, i 3, 
providing that when any Judgment shall be 
given on a purchase-money note, where titles 
have not been made, but bond for titles has 
been given, the obligor of the bond may file a 
deed of conveyance, and thereupon the same 
may be levied on and sold under said Judgment. 
It was held that the purchase should be set 
aside on complainant paying to the purchaser 
the amount paid by him. Upchurch v. Lewis, 
53 Ga. 621. 

In another case arising under this statute, a 
vendor of a title bond, where part of the money 
was paid, obtained a Judgment against the ven- 
dee on his purchase-money notes, although the 
purchaser was willing to pay provided he could 
obtain the title that he had contracted for. An 
execution sale was had of the property to a 
purchaser, combining with the vendor to de- 
fraud the holder of the title bond. In an action 
by the holder of the title bond to set aside the 
sale, and for a specilic performance, the court 
said : **lt the purchaser has paid his bid, and 
'.t has been appropriated to the payment of the 
debt due by complainant to his vendor, be is en- 
tUlcl to be reimbursed, and he should be pro- 
tected to that extent In any decree that may be 
rendered." Brunson v. Grant, 48 Ga. 304. 

So, on the principle that "he who seeks equity 
mu6t do equity," it was held that the com- 
plainants would be required, as a condition 
precedent, to refund to the purchaser so much 
of the purchase money as came Into their 
hands. This was a suit by heirs against the 
purchaser to set aside a sale made in parti- 
tion under a decree by a court having no Juris- 
diction of their persons, and for an accounting 
of rents. It was also held that the purchaser 
was entitled to be refunded taxes paid by him. 
Chambers v. Jones, 72 111. 275. The court said : 
"They are seeking relief against defendant, and, 
if they have his money In their posMCsslou, aris- 
ing out of the same transaction. It is but Just 
they should restore it to him. The court wlil 
not assist them to recover the possession of 
their land, and give them an oocount of the 
rents and profits, while they still retain in their 
bunds the purchase money. The case of Kinney 
v. Knoebel, 51 111. 112, is an authority for this 
view of the law, and the principle of that case 
would authorize the imposition of conditions 
upon which relief will be granted. ... If 
it shall appear that either of the heirs has re- 
ceived any portion of the proceeds of the sale, 
the court, with great Justness, may decree a 
restoration of the amount before adjusting the 
equities between the parties. The same may be 
said of the taxes." 

So, an offei' to reimburse was held to be a 
condition precedent In an action by heirs to 
have a sal<9 made in partition set aside, where 
the money had been distributed. Byars v. 
Spencer, 101 111. 429, 40 Am. Uep. 212. 

And the defendant in the execution was held 
entitled to relief only on condition that within 
thirty days he pay Into court for the benetlt of 
the purchaser the amount of the Judgment, 
costs, and interest, where a sale on execution of 
a homestead was held void for failure to follow 
the requirements of the statute, and conveyed 
no title. Bullen v. Dawson, i:S9 111. 633, 20 
N. E. 1038. 

And a sheriff's deed to ttfe purchaser, and the 
deed from the purchaser to his wife, were set 
«9 L. R. A. 

aside on condition that the debtor pay to the 
purchaser the amount of the bid with 8 per cent 
interest, and the money which the purchaser 
paid, and the interest on an existing mortgage, 
and Improvements, taxes, and insurance, less 
the rents. Lurton v. Rodgers, 139 111. 554, 3*^ 
Am. St. Uep. 214, 29 N. E. 866. This was an 
action to set aside and redeem because lots 
valued at $2,000 were sold on execution sale 
for $G0, and because sold en ma»$e. 

And where a levy was void for uncertainty, 
and the sale passed no title, it was held that« 
If the defendant was Incompetent to consent to 
the sale, and was not thereby estopped, his 
administrator could not cancel the sheriff's 
deed and recover the land without account inic 
for so much of the purchase money as the in- 
testate had the benefit of, with interest. 
OKelley v. Gholston, 89 Ga. 1, 15 S. E. 123. 

So, reimbursement was made a condition 
precedent in a suit against the purchaser under 
execution to enforce liens. It was held that, 
as no Judgment sustaining the execution was 
produced, on account of a mistake in the exe- 
cution reciting a different Judgment, the sale 
should be set aside; but, as the proceeds arlH- 
Ing from the sale of slaves were applied to the 
discharge of the Judgment debts of the plaln> 
tiff. It was held that he could not recover until 
he had repaid that money. Dufour v. Cam- 
franc, 11 Mart. (lA.) 607, 13 Am. Dec. 360. 

The same was held in a similar case. Don- 
aldson V. Kouzan, 8 Mart. N. S. 162. 

And a purchaser in good faith, who paid the 
money In discharge of the Judgment, was helci 
entitled to reimbursement l)efore the relief 
sought by the bill would be granted^ In an ac- 
tion by an Infant to set aside a sale under 
execution Issued after the death of the defend- 
ant ^Itliout revivor, Cook v. Toumbs, 36 Miss. 
G85. The court said: "But this Is rather a 
matter of defense, than a part of the complain- 
ant's cabe; and It would be entirely competent 
for the court, under the bill as now framed, to 
decree that the deed of the sheriff to Cook be 
set aside and delivered up to be canceled, upon 
the appellant pacing to him the sum of money 
paid by him In discharge of the Judgment. 
Such a course is not inconsistent with the scope 
and prayer of the bill, and the court, in grant- 
ing the relief sought, is competent to do so 
upon such equitable terms as may be shown 
to be Just and proper." 

And In a suit In equity to avoid a Judgment 
and sale on the ground of false claims by cred- 
itors and an Irregular sale, there being no 
fraud charged against the purchaser, it was 
held that relief would not be granted where the 
complainants did not offer to refund the money 
that had been paid for the property by inno- 
cent purchasers. Wilson v. Bellows, 30 N. J. 
Eq. 2S2. 

An order granted a new trial on payment of 
costs. An execution for costs and a sale there- 
under was void. In a suit by the defendant 
aRainst the purchaser to cancel the deed as a 
cloud on the title, it was held that he shouia 
pay the purchaser the money appropriated for 
his benefit. Ilcrndon v. Rice, 21 Tex. 455. In 
this case the court draws a distinction between 
an action by the purchaser to cancel his deed 
and recover the purchase money, and an action 
by the defendant to remove the ground of possi- 
ble attack upon his title. The court said the 
latter "is a remedy ex gratia, dependent upon, 
the sound discretion of the court, and will never- 

Digitized by 



CowPEB V. Weaver's Administrator. 


!ie exercised without doing ample Justice to both 
•ides, so far as It is practicable." 

A sale was made of the equity of redemption, 
iDd the Iiolder of the first mortgaji^e became the 
parchaser. The sale was set aside on account 
of the Ignorance and age of the defendant, who 
tendered the purchaser all the money due on 
iii< decree, and the costs. Campbell v. Gardner, 
11 N. J. Kq. 423, 69 Am. Dec. 598. 

The same rale was held to apply in actions to 
eojuin a judgment in ejectment where the re- 
cuTery was had by reason of a void sale. 

A purchaser at an execution sale was defeated 
In an action of ejectment by the debtor, the 
sheriffs deed being void. It was held, in an 
action to enjoin this Judgment, that the pur- 
chaser had an equitable right to retain posses- 
sion of the land as security for his purchase 
money, and the injunction should not be dis- 
solved until be was reimbursed. Shepherd v. 
Melatire, 5 Dana, 574. 

So, in an action to enjoin a Judgment in 
ejectment, it was held that the defendant should 
be required to refund to the purchaser the 
amount paid. Henderson t. Overton, 2 Yerg. 
3M, 24 Am. Dec. 492. In this case after the 
kvy of an attachment the defendant died. A 
»cl. la. was run against the executor, and Judg- 
ment was tal&en by default. A sci. fa. was run 
a^lnst heirs without naming them, and a Judg- 
ment rendered against the heirs. The land was 
i«)ld to this purchaser. The plaintiff in the 
original proceedings acquired the title of the 
heirv, and then brought ejectment against the 
purchaser. The court said : **It is said de- 
fendant did not receive from the sherifT the 
whole amount. It is his misfortune. Had he 
let his void judgment rest it would not have 

In Andrews v. Richardson, 21 Tex. 287, the 
purchaser at Judicial sale brought suit to enjoin 
a writ of possession against his tenant, issued 
by a Justice, and the defendants sought to avoid 
the sale on the ground that there had l)een no 
appraisal. The plaintiff in replication asked 
that, if the sale was invalid, he should be rein- 
»»tated in his original decree of foreclosure, and 
have execution. The court held the sale was 
valid, but said that, if it was not, the plaintiff 
would be entitled to the relief sought if he was 
The owner of the Judgment, and, if not, be 
would he entitled to be reimbursed the money 
he had paid. 

In some states the practice is to administer 
equitable relief in common- law courts ; and so 
it is held in Missouri and Texas that a recovery 
of the property from the purchaser on a void 
sale will be granted only on condition that the 
purchaser is reimbursed the purchase money ap- 
plied to plaintiff's debt. 

An execution sale was made after the execu- 
tion became dead and no vend. exp. issued. In 
an action of trespass to try title, by the pur- 
chaser, the equitable doctrine was applied, and 
it was held that he was entitled to recover tne 
purchase money paid, in the absence of fraud. 
Johnson v. Caldwell, 38 Tex, 217. The court 
held that the equitable doctrine that a pur- 
c'hai»er should not be compelled to restore prop- 
erty without being reimbursed was applicable, 
and should have been applied when the sheriff's 
deed was ruled out in evidence. 

So, in an action by the heir the defendant was 
allowed possession until the payments could be 
apcertained by a reference. French v. Grenet, 
57 Tex. 273. In this case, after a meml>er of a 
firm died, and his estate was t>eing administered 
69 L. R, A. 

by executors, a bankruptcy court having no Ju- 
risdiction ordered the sale of the individual 
property of the deceased •meml>er. The pur- 
chaser acquired no title. He had paid the as- 
signee, who applied the purchase money to the 
Judgment lien. 

In an action by heirs to recover land sold at 
a sheriff's sale, the court said : "The sale, if 
valid, devested the title of their ancestor, and 
they cannot recover. But, whether valid or 
not, it was averred in the answer, and appears 
in proof, that the ancestor of the plaintiffs re- 
ceived the benellt of the proceeds of the sale, 
applied to the satisfaction of the execution 
against him. And, under the decision of this 
court in the case of Howard v. North, 5 Tex. 
290, 51 Am. Kep. 769, the plaintiffs cannot re- 
cover the property without reimbursing the 
purchase money paid, which went to the satis- 
faction of the Judgment against their ancestor. 
This is according to the plainest dictates of rea- 
son and natural Justice; and this they have not 
done, nor offered to do." Morton v. Wellwrn, 
21 Tex. 772. 

In Henry v. McKerlie, 78 Mo. 416. holding 
that the purchaser acquired title, the court 
said : "When the sale has not been approved, 
no title, either legal or equitable, passes to the 
purchaser. The equity open to him proceeds 
upon the assumption of a void sale, and Is for 
a return of the purchase money, and reimburse- 
ment for the benettts received by the heirs, and 
for improvements which enhance the value of 
their land ; the extent of this equity to be ascer- 
tained by an account of his expenditures and 
receipts. This equity suspends the right of 
recovery until the amount coming to him shall 
be ascertained and paid. It is administered 
upon the theory that the title has not passed 
to the purchaser, but that he hns a charge or 
lien for his outlays and Improvements incurred 
by him in good faith." 

And reimbursement to the purchaser was held 
a condition precedent in an action by an admin- 
istrator of one partner against the purchaser 
to recover the property, where there was a valid 
Judgment against partners and after the death 
of one of the partners there were an execution 
levied upon the estate of the deceased partner 
and a sale, lialley v. White, 13 Tex. 114. The 
court said : "Under the circumstances of this 
case, the court, on general equity principles and 
in the discharge of equity Jurisdiction, clearly 
had a right to make the decree, and could have 
prescribed the time within which it should be 
paid, and that plaintiff should not have execu- 
tion of his writ of possession until It was paid." 

But reimbursement was denied In the fol- 
lowing cases on account of the pleadings, or 
the failure to follow the proper practice: 

Executors made a mortgage without procur- 
ing an order of the probate court, and a fore- 
closure sale failed to pass title. In an action 
against the vendee of the purchasers to recover 
the property the court said: **lf the money 
bid for the land on sale made on foreclosure was 
actually paid, and a valid debt of the estate 
til us satislled, appellants cannot be permitted 
to recover the land without refunding the- 
money, although the sale was null. No ques- 
tion as to the right of appellee to have such 
money as may have been so paid was made by 
pleadings or the evidence, and, as the Judg- 
ment will be reversed, and the cause remanded, 
on account of matters before referred to, stich 
pleadings may hereafter be tiled, and such an. 
issue tried as will enable the court^below to ad- 
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Just any equities that may exist between the 
parties." Smlthwlck v. Kelly, 70 Tex. 564, 15 
S. W. 486. 

Three execatlons of different priority were In 
the sheriff's hands, and be sold the property 
levied upon to the third execution creditor, who 
paid off the first Judgment and credited his debt, 
«nd the sheriff returned the execution unsatis- 
fied for failure to pay the bid. A sale was then 
iiad on the second execution, and it was held 
that the first purchaser was entitled to an in- 
junction to restrain a deed until reimbursed 
what he had paid on the first execution. Carn- 
«han y. Yerkes, 87 Ind. 62. The court said: 
**The payment of the Potts Judgment operated 
for the benefit of the appellees. It removed a 
lien which was prior to the Cook Judgment, un< 
•der which they purchased, and, had it not been 
so removed, they would have been compelled to 
pay it. Under the circumstances, equity would, 
perhaps, keep this Judgment and its lien on 
the land alive for the benefit and security of the 
appellant. But the pleadings and record are 
not in such a condition as that the appellees 
•can in this action be compelled to pay the sum 
80 advanced by the appellant for their benefit, 
■as the condition upon which the deed to the ap- 
pellant for said land should be enjoined. It 
would be granting to the api>ellant relief which 
he has not asked, and which the facts set up 
in the answer would not Justify. Had the ap- 
pellant dlsclalmeil any right to the land by 
virtue of the sale made by the sheriff to him. 
■and asked that the money advanced by him for 
the purpose of paying off the Putts Judgment 
should be refunded, he might, perhaps, have 
been entitled to affirmative relief." 

So. in Kuddell v. Sparks, 70 Tex. 308, 15 S. 
W. 2.S9, it was said that, if the purchaser had 
•a claim for purchase money which had been ap- 
plied to the payment of the Judgment, and there- 
after lost his property In un ejectment suit be- 
<*ause the levy was on a homeKtead, he should 
have set up his claim there for reimbursement. 
It was held that he could not thereafter set it 
up as a set-off against an execution for officer's 
•<*osts in a suit to try title, as they have no con- 

A sale of land under execution eight years 
.after the death of the defendant was void be- 
•cause there was no administrator. In an ac- 
tion of trespass to try title, where no equitable 
relief was asked by either of the parties, it 
was held that the rule that the purchase money 
paid for the land at the void sale must be re- 
paid before title will be decreed to the heirs 
did not apply. Fleming v. Ball, 25 Tex. Civ. 
App. 209, 60 8. W. 085. The court said: 
"Whoever showed the superior legal title to the 
land was entitled to a Judgment, notwithstand- 
ing facts may have existed which, if properly 
pleaded and proved, would have entitled plain- 
tiffs to some affirmative equitable relief should 
It appear that appellee held the superior legal 

A tract of land wus levied on under execu- 
tion, and only part was sold, sufficient to satisfy 
the execution. It was held that the sale was 
-\'oId, as the statute authorizing a sale of less 
than the whole tract levied on had been re- 
pealed. In an action of ejectment against the 
purcha.*ier the court said: "We have repeated- 
ly determined that the legal and equitable 
•rights of parties litigant, in relation to the sub- 
ject-matter of a controversy, should, as far as 
practicable, be set up and determined in a single 
suit. In the due order of pleading, under our 
lid L. R. A. 

blended system, the plaintiffs should have 
averred their willingness to pay the amount of 
the execution, with interest thereon; or the 
defendant should have claimed, provided his 
title were declared invalid, that he should not 
be compelled to restore possession until the pur- 
chase money which he had paid for the benefit 
of the plaintiffs, and by which the Judgment 
against them had been discharged, should l)e 
reimbursed, and he indemnified." Howard v. 
North, 5 Tex. 290. 51 Am. Dec. 769. 

So, where an advance bid on a master's sale 
was made, and a resale was ordered, it was 
held that the purchaser was entitled to have his 
original bid canceled, and the cash paid re- 
funded, and his notes given up and canceled, 
and he should have taken an order to that ef- 
fect ; but where he allowed the money to remain 
in the hands of the commissioner, and it was 
lost by the death of the commissioner and in- 
solvency of his estate, he must bear the loss and 
look to that estate for reimbursement. Head 
V. Moore, 96 Tenn. 358, 34 S. W. 518. 

The exceptional cases 'where restitution wss 
denied are those relating to probate sales, pro- 
ceedings against nonresidents, and fraudulent 
sales, for which see infra. 

e. SubrogaUoH. 

1. Generally. 

The weight of authority Is that a purchaser 
at a void Judicial sale is entitled to be subro- 
gated to the lien of the creditor where the sale 
is set aside. The doctrine of subrogation is also 
derived from the civil law. See Domat, Civil 
Law, pt, 1, book 3, { 6, art. 1785 : '^The pur- 
chaser of an estate, employing the price of bis 
purchase for the payment of the creditors to 
whom the estate was mortgaged, is substituted 
to their right to the value of what he pays 
them. Fur, by paying them with the price of 
their pledge in order to secure It to himself, 
he preserves it to himself for the value of what 
he pays them, against other subsequent credit- 
ors, although they be prior to his purchase." 

So, a sale of property of an insolvent cor- 
poration to a reorganized corporation under a 
decree in equity was held void because there 
was no service on any officer of the corpora- 
tion. St. Louis & S. Coal ft MIn. Co. v. Sandov- 
al Coal ft MIn. Co. Ill 111. 32. 

After this decision a bill was filed (116 111. 
170, 5 N. E. 370), alleging that the new com- 
pany had advanced money to pay off the debts 
of the old/ and asking that the ejectment sult.s 
be enjoined, and that equitable claims of the 
new company be adjusted. It was held that 
the new company was entitled to be subrogated 
to the rights of creditors notwithstanding its 
deed was void. 

Attention is here called to Milwaukee ft M. 
R. Co. V. Soutter, 13 Wall. 517. 20 L. ed. 543. 
which was a trustee's sale, and therefore not 
within the scope of this note, and which was 
a similar case, except that the purchase by the 
new corporation was held fraudulent as to cred- 
itors, and It was denied subrogation which it 
claimed for having paid $450,000 on a prior 

In Bruschke v. Wright, 166 111. 188, 57 Am. 
St. Rep. 125, 46 N. E. 813, a foreclosure sale 
was set aside at the instance of heirs, and a 
resale was ordered. It was held that a pur- 
chaser at foreclosure sale and his assignee 
would be subrogated to the rights of the mort- 
gagee. ^ T 

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Subrosatlon Is also allowed on the ground 
that the purchaser has paid a debt under a 
colorable obligation, and that he should be pro- 
tected. This was held where a mortgage sale 
by school commissioners was Totd for want of 
notice, and the heirs of the mortgagor recovered 
from the snbvendee. who recovered on his war- 
ranty from the purchaser. Muir v. Berkshire, 
^2 Ind. 149. 

So, on the ground that it was the policy of 
the law to protect bidders at public sales, a 
purchaser was held entitled to be subrogated to 
the rights of the state in the mortgage, where 
a sale made by an auditor under a school-fund 
mortgage was set aside. Wlllson y. Brown, 
S2 Ind. 471. The court said: "The principal 
objection urged against the sufficiency of the 
complaint, which is that the plaintiffs were vol- 
unteers, occupying no such relation either to 
the mortgage debt or the property sold as to 
entitle them to be subrogated to the rights of 
the state, may be regarded as fully answered 
by the case of Muir v. Berkshire, 52 Ind. 149. 
We are not disposed to restrict the scope of the 
decision In that case. A sound public policy 
forbids that a purchaser at a public sale, who 
)ias in good faith paid the amount of his bid, 
in discharge of the decree, Judgment, or other 
lien by Tirtue of which the sale was made, 
should be deemed a mere volunteer, and should 
be denied any equitable relief in case the sale 
proved to be Invalid, merely because he had no 
personal interest to protect, and made the pur- 
chase for the sake of the investment only. Bid- 
ding should be encouraged, to the end that prop- 
trty may not be sacrificed for less than its 

So, subrogation was allowed on the ground 
thai the bidding was itself a meritorious act, 
and created an equity, and it was the policy 
of the law to give the greatest security to bld- 
<1er8 at Judicial sales compatible with the equi- 
ties of the parties, where a purchaser was held 
to have a prior Hen on the land for the pur- 
•chase money paid by him before an appeal, and 
the judgment thereafter was appealed from and 
reversed, and the sale set aside. Miller v. Hall, 
1 Bush, 229. 

So. under the principle that the policy of the 
law and the rules of equity will protect the 
purchaser, he was held entitled to be subrogated 
to the mortgagee to the extent of the purchase 
money applied to the mortgage debt, where, un- 
■der a decree of foreclosure, the mortgaged prop- 
erty was sold and the sale confirmed, and the de- 
<*ree was subsequently vacated for defects in 
Che order of publication. Johnson v. Kobertson, 
34 Md. 105. The court said : "The purchaser 
should be protected so far that, if he has paid 
the purchase money, and it has been applied to 
the paj-ment of the mortgage debt, or so far as 
he has paid and applied the purchase money, 
he should be subrogated to the mortgagee, and 
the mortgage, to the extent of such payment, 
treated as assigned to him. This plain justice 
and equity would seem to require." 

And a purchaser was held entitled to be sub- 
ctitnted to the lien of the plaintiff to the ex- 
tent and for the amount he had paid to the 
plaintiff on his deed, subject to a credit of rents 
and profits, where a decree enforcing a vendor's 
lien was void because the debtor resided within 
the Confederate lines, and the creditor within 
tbe Federal lines, and a sale thereunder was 
void. Raymond v. Camden, 22 W. Va. 180. 

And it Is held that the purchaser on execu- 
tion sales which are void, is entitled to be subro- 
€9 L. R. A. 

gated to the lien of the Judgment paid with the 
purchase money. 

So, the assignee of- the purchaser was held en- 
titled to subrogation where the defendant in an 
execution sale on Hens died on the day of sale, 
and the sale was held void because the revivor 
was premature. The executrix of the defendant 
became the assignee of the purchaser, and paid 
the Judgment and debts, and in a suit by the 
heirs the sale was held void. Forst y. Davis, 
101 Ky. 343, 41 S. W. 27. 

▲ sheriff represented that land would be sold 
subject to redemption, under Indiana act 1861 
(which was afterwards held inoperative), and 
the land only brought one third of its value. 
It was held that the sale should be set aside at 
the Instance of the execution defendant, and 
the purchaser was allowed a lien upon the land 
to be enforced by execution. Seller v. Linger- 
man, 24 Ind. 264. The court said : "The case 
of Banks v. Bales, 16 Ind. 423, cited by the ap- 
pellee, is not in conflict with this authority. 
The power possessed by the court to secure to 
the purchaser the return of his money, by de- 
creeing a lien for the same upon the land struck 
off by the sheriff, would seem to render a tender 
of repayment of the sum by the execution de- 
fendant unnecessary." 

In Banks v. Bales, 16 Ind. 423, land worth 
|500 was sold under an execution not exceeding 
$35. In an action to set aside a sheriff's sale 
because the entire tract was sold without being 
offered in parcels, the complainant had tendered 
the amount paid by the purchaser before he 
commenced his suit, but he failed to bring the 
money into court. It was held that a tender 
was not necessary in a suit lo set aside a 
sheriff's sale. This was because the court had 
the power to decree a Hen In favor of the pur- 
chaser. See Seller v. Lingerman. 24 Ind. 264, 

And where a sheriff's sale was set aside be- 
cause of sale en manse. It was held thi^t the pur- 
chaser satisfying tbe Judgment was entitled In 
equity to be subrogated to the Hen of the Judg- 
ment. Me U any v. Schenk, 88 111. 357. 

An execution sale was made after appeal bond 
was (lied. The Judgment was valid, but the ex- 
ecution and sale were invalid. The purchaser, 
who was attorney for the plaintiff in the pro- 
ceedings, and who was guilty of no fraud, was 
held not entitled to hold the property until re- 
imbursed, but was held entitled to subrogation. 
Burns v. l^dbetter, 54 Tex. 374. The court 
said : **Owing to the manner in which Ledbet- 
ter came into the poHNession of the property, 
and the fact that he was attorney of record 
for the plaintiff, in the Judgment, and the 
further fact that the money paid by him only 
liquidated the Judgment in part, we are of the 
opinion that he is not entitled to hold posses- 
sion of the property until he is reimbursed. It 
is more consonant with Justice and right to sub- 
rogate him to the Hen of the original Judgment, 
with order of sale, for the amount he Is en- 
titled to recover of appellee Burns on account 
of the payment on the Judgment made with his 

On a subsequent appeal in this case (66 Tex. 
282) the court said: "Ledbetter was the at- 
torney of the Judgment plaintiff, but was not 
for that reason precluded from recovering back 
money paid without consideration. His posi- 
tion can scarcely be such as to give him less 
rights than the plaintiff. The cases are numer- 
ous in this state In which equitable relief, pred- 
icated on these rights of the Judgment ^lal|i-_ 
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tiff or the purchaser, has been liberally extend- 

And in an action to try title, the purchaser 
of the land at sheriff's sale under a valid Jud^r- 
ment which was a Hen on the land was held 
entitled to be subrogated to the lien of the 
original Judgment where the sale was ineffec- 
tive for want of proper description. Jones v. 
Smith. 55 Tex. 383. In this case the purchaser 
was liable on his warranty to the defendant. 
The court said : "Under such circumstances, 
Rmith had the right to be subrogated to the lien 
of the original judgment upon the land, for the 
amount he had paid in the discharge of the 
same. Nor were his rights materially affected 
by the fact that he did not get possession of 
the land under his purchase. If he or his ven- 
dee was in possession, the appellants could not 
disturb that possession until they had refunded 
the money paid by him in discharging the judg- 
ment ; and, if not in possession, he would be 
entitled to be subrogated to the lien of that 

And the purchaser was allowed the money 
and a lien on the Innd where the execution was 
irregular because issued on a judgment which 
had been destroyed by tire without substitution, 
and the property brought but a small propor- 
tion of its value, and the sale was set aside. 
Herkham v. Wedlock, 10 Tex. Civ. App. 61, 4tl 
S. W. 402. 

So, where a jndi?ment was reversed on appeal, 
and the debtor recovered the land from the pur- 
chaser's grantee, it was held that the latter was 
entitled to a lien upon the land for the amount 
paid to the sheriff, with interest. O'Brieo v. 
Harrison, ."♦O Iowa, 080, 12 N. W. 2.16, 13 N. 
W. 764. In this case the plaintiff liad tendered 
the defendant this sum. Iowa Code, |f 3109, 
provided that property acquired by a purchaser 
in good faith under a Judgment subsequently 
reversed shall not be affected by such reversal ; 
but it was held that the purchaser, not having 
paid the full amount of his purchase money, 
was not a purchaser in good faith. 

But subrogation was denied where suit was 
not brought by the proper party. 

A receiver of a firm had a Judgment against a 
member of the firm. A levy was made on land 
notwithstanding he had conveyed the same. The 
purchaser's heirs brought a suit to set aside 
the conveyance as fraudulent. The same was 
set aside, and also the sheriff's sale to the pur- 
chaser. It was held, on a prayer for subroga- 
tion, that the voluntary purchase discharged 
the creditor's Judgment, and there could be no 
substitution. It was held, also, that the admin- 
istrator could not be subrogated to the lien, 
but that the heirs might, on proper procedure, 
obtain relief. Richmond v. Marston, 15 Ind. 

In Muir V. Berkshire, 52 Ind. 149, the court 
said : **\Ve are aware that there are some dicta 
in the of Kichmond v. Marston, 15 Ind. 
134, which would seem to take a narrower view 
of the right of subrogation than we have ex- 
pressed in this opinion ; but that case differed 
in its premises from this : besides it was decided 
upon another ground. Subsequent decisions of 
this court, however, fully support, as we think, 
the principles governing us in this opinion." 

See Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. 
501 ; Abadle v. I^bero, 36 Cal. 300,— subdiv. V. 

The exceptional cases where subrogation was 
denied are those relating to probate sales, pro- 
ceedings against nonresidents, and fraudulent 
sales, for which cases see infra, 
CO L. R. A. 

2. Out of proceeds of resale. 

In some cases the sale was set aside. an<f 
the purchaser was protected, by simply direct- 
ing that out of the proceeds of the second sale 
his purchase money be returned to him. This 
was under the general principle that equity 
will afford relief, and will protect the purchaser. 
But it must have been upon the theory that: 
the purchaser Is subrogated to the lien of the 
creditor for his advances, although this equi- 
table principle is only noticed In one of tbe- 
cases explaining a prior decision in the same^ 

A sale was void because made without notice- 
to occupants as required by Iowa Rev. 183(>. 
I 3318. providing that, if a defendant is in 
possession of part of land levied on. the officer 
having execution shall serve the defendant with 
written notice mentioning time and place of 
sale, and sales made without the notice may l>e 
set aside. It w^as held that a resale should be 
ordered, and, if an advance bid was made, the 
property should be resold, and the amount paid 
by the first purchaser refunded to him. Jen- 
sen V. Woodbury, 36 Iowa, 515. 

In Fleming v. Maddox. 32 Iowa, 403, re- 
ferring to the case oi .Tensen v. Woodbury, 1ft 
Iowa, 515, It was said: "This order can be- 
explained and Justified only upon the theory 
that the purchasers had acquired an interest in 
the Judgment, and been subrogated to the rights 
of the creditor. And this doctrine is Just and 
reasonable, and to our minds entirely applicable 
to this case." 

Applying the doctrine of subrogation, a pur- 
chaser was held entitled to have the credit on 
the Judgment set aside to the extent of his bid, 
and a resale of the land for the purpose or 
indemnifying him. where an execution debtor 
after a sale paid off the Judgment, and then had 
the sale set aside on the ground of Irregularity. 
Fleming v. Maddox, 32 Iowa. 493. The court 
said: "It is said by the counsel that defendant 
had a right to pay off the judgment, and pre- 
vent a further sale of his property. This we- 
concede. But he should have paid to the pur- 
chasers the amount of their bids, and not to- 
the plaintiff, who already had received satis- 

And in a foreclosure Judgment an Interpleafl- 
er was adjudged to have a prior lien. An order 
of sale was issued by him without notice to 
plaintiff. A new sale was ordered, and it was 
held that out of the proceeds of that sale there 
be paid to the prior purchaser the amount paid 
by him as purchase money of the land, and that 
the balance due the interveners be flien satis- 
fied, and the remainder be paid to plaintiff in 
the Judgment below. IClam v. Donald, 58 Tex. 

A Judicial sale was set aside where the mas- 
ter withdrew the land from sale and readver- 
tlsed without order of the court or consent of 
the parties. It was held that, the purchase 
money having been appropriated to pay charges 
on the land, the purchaser should be protected, 
and that a second sale should not be had unless 
a greater bid was made, and, if so. he should be 
repaid what he had paid in, and his deed, bond, 
and mortgage should be canceled. Tompkins v. 
Tompkins. 39 S. C. 537. 18 8. E. 233. The court 
said: "The purchaser has paid Into court $1.- 
625 of his money, a large part of which ha.s. 
been appropriated to the purposes of the action 
under the decree of court. Now, if there is one 
thing over others in our systisn^ of Jurisprudence- 
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that merits the commendation of all, It must be 
the flexibility of the principles adopted by 
courts of eqaity, by which they are made to sub- 
•erve the needs of each particular case. Ought 
not those principles to be applied here? It 
seems so to us. Under our law, William R. 
Parks, by being a successful bidder at the sale 
provided for by a decree in this cause, has, to 
a certain extent, become a party to this action. 
His money has been paid into court and used 
for the purpose of the action, under an honest 
mistake. It is true. Only one party to the action 
seeks any relief against him. The circuit Judge 
orderti a new sale, without any provision being 
made for his (Parks') protection. This is error, 
and must be rectified.** 

Property of infants was sold under foreclo- 
sure for half of Its value. It was held that a 
resale should be ordered upon security that the 
property should produce 50 per cent advance, 
and that the purchaser would be entitled to be 
paid out of the amount of such advance the in- 
terest of his deposit and of the whole purchase 
moni'j which he had kept on hand, together 
with all reasonable costs and expenses. Dun- 
can V. r»odd. 2 Paige, 99. 

And a sale was set aside on the ground of 
material errors which, if allowed to stand, 
would permit the purchaser to enjoy "an un- 
conscionable advantage" by the sacrifice of the 
property through the mistake of the receiver as 
to the number of cattle and the value thereof 
that were ho\([. A resale was ordered, and it 
was held that out of the purchase money the 
former purchaser should be repaid the pur- 
chase price, with Interest at 6 per cent and ex- 
penses. Horse Springs Cattle Co. v. Schofield, 
9 N. M. 130, 49 Pac. 954. 

So, in an action by Infants claiming that a 
sale was for $10,000, and was reported only for 
$0,000, the sale was set aside, and the asHlgnee 
of a purchaser at mortgage foreclosure was held 
entitled to be subrogated to the lien of the 
mortgage paid by his money. But the decree 
was that a resale l)e had, and the holder of the 
purchasers certificate at the first sale be paid 
his purchase money. Bruschke v. Wright, 160 
III. 183, 57 Am. 8t. Rep. 125, 46 N. E. 813. 

But where the confirmation was set aside, and 
the officer did not pay into court all of the pro- 
ceeds, relief out of the proceeds of a second sale 
was denied the purchaser. In this case a sale of 
real estate was confirmed, and afterwards, on 
proof of fraud, was vacated, and the trustee 
was removed and required to pay into court the 
proceeds, but had defaulted to the extent of 
^1.04M). It was held that the purchaser, who 
had paid his money to the trustee, and received 
only a pan of it back, was not entitled to have 
the balance due him paid from the proceeds of 
a fcecond sale made by another trustee. Kenaday 
V. WaKgaman. 3 App. D. C. 412. The court 
f«ld : " 'As to Kenaday, the decree denies his 
right to property of which he claims to be 
owner, and which is of the value of $11,000. 
He paid that sum for it In cash to Green as 
trustee. It Is true that there are funds in the 
registry of the court below, which, In the event 
of the affirmance of the decree, can be paid over 
to him. and be be thus far reimbursed for what 
be paid to Green on the purchase of the prop- 
erty.* Kenaday v. Edwards. 134 U. 8. 123, 33 L. 
ed. 8.'»0, 10 Sup. Ct. Rep. 523. The decree of the 
general term having been afllrmed, the appel- 
lant did receive the money that was In the reg- 
istry of the court, and was to that extent re- 
69 L. B. A. 

Imbursed. And. if the balance of the $11,000 
could be reached and made subject to the direc- 
tion of the court, the appellant would be en- 
titled to receive that also. But clearly he has 
no enforceable claim whatever against the fund 
realized on the last sale of the property, and 
now in the hands of the present trustees to 
serve the purposes of the trust under the will 
of Mrs. Macpherson.** 

See Elchell>erger v. Hawthorne. .33 Md. 588, 
and Re Dickerson, 111 N. C. 108. 15 S. K. 1025, 
subdiv. III. d, 1 ; Martin v. Turner, 2 Helsk. 
384, subdiv. III. d, 2. 

d. Prohalej guardians' and administrators' sales. 

1. Guardian* 8 sales. 

The weight of authority is that the purchaser 
at a guardian's or partition sale of Infant's 
land, where the sale Is set aside as void, is en- 
titled to be reimbursed or subrogated to the 
amount of the purchase money paid. 

So, in an action by a ward to set aside a 
guardian's sale It was held that the minors 
were bound by the acts of the guardian, and 
that it would be inequitable to set the sale 
aside unless the consideration paid should be 
refunded. Kendriek v. Wheeler. 85 Tex. 247, 
20 S. W. 44. The court said : "The acts of the 
guardian in dealing with innocent purchasers, 
under lawful orders of the court, are binding up- 
on the minors, in so far as they affect the rights 
of such purchasers. Dancy v. Strlckllnge. 15 
Tex. 557, 05 Am. Dec. 179 ; Clayton v. McKln- 
non, 54 Tex. 211. The purchaser at the guard- 
ian's sale is not required to see to a proper 
application of the purchase money, or that the 
guardian executes his trust in a legal way in 
dealing with the fund after it goes into his 

A sale made in orphans' court was ratified by 
an order nisi, but never by final order. The 
executors made a deed, and charged them- 
selves with the purchase money, and distributed 
the surplus. Subsequently one of the distribu- 
tees had the sale set aside on the ground that 
the executor was interested in the purchase. It 
was held that the original purchaser was en- 
titled to be reimbursed out of the purchase 
money arising from the second sale to the full 
amount he had paid the executors on the orig- 
inal purchase. KIchelberger v. Hawthorne, 33 
Md. 588. The court said : "There is certainly 
nothing to be found In this record tending to 
induce a court of equity to deny to this com- 
plainant and purchaser the benefit of these 
equitable doctrines, or those of like character 
announced In Jones v. Jone», 4 Gill, 87, and in 
the more recent case of Mcl^aughlln v. Barnum, 
31 Md. 425. He purchased at a public sale for 
a fair price, has paid the purchase money, and 
made improvements under the Impression he 
had obtained a good title, and the sale has been 
vacated for no other conceivable reason than 
because he agreed at the time, the executors, or 
one of them, should become interested in the 
purchase, or have some part of the land.** 

A sale of an Infant's land in partition was 
made ex parte instead of publicly. A resale was 
ordered, and the purchaser having conveyed bis 
Interest, it was held that an account should be 
taken of the amount paid to the guardian by 
the purchaser, and of the rents and profits 
since the attempted sale and the possession of 
the purchaser and those claiming under him, 
and that the balance of the sum j 
Digitized by ^ 



Kentucky Coubt of Appeals. 


deducting the rents and profits, be a charg^e 
upon the fund arising from the second sale 
then ordered. Re Dickerson, 111 N. C. 108, 
15 S. B. 1025. 

And ihe purchaser was held entitled to have 
such sum as was paid to the mother as guard- 
ian of the children repaid to him In an ac- 
tion brought against him to set aside the sale, 
where a guardian's sale was void, under Tenn. 
Code, I 3339, providing that no guardian, next 
friend, or witness, sbail purchase at adminis- 
trator's sale, and, if they purchase, the sale 
shall be void, and the infant or married woman 
may bring ejectment as if no sale had been 
made. 8tarlcey v. Hammer, 1 Baxt. 438. In this 
case the purchaser was one of the witnesses to 
show that it was for the interest of the minors 
that the land should be sold. 

See Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 
71)6, and Douglas v. Bennett, 51 Miss. 680, 
infra^ holding that the purchaser must show 
that the guardian has made a proper applfca- 
tlon of the fund. 

Some cases grant relief to the purchaser on 
a void sale, where it is shown that the ward 
was benetited. 

So, the purchaser was held entitled to reim- 
bursement where a life tenant and guardian of 
an infant remainderman obtained an order of 
sale for a part of the property to improve the 
remainder. The remainderman, who was not a 
party, after the death of the life tenant, 
brought a suit to recover. The sale was void 
because the chancellor had only Jurisdiction to 
sell for reinvestment. Hays v. Bradley, 15 Ky. 
li. Rep. 387, 23 S. W. 372. This was on the 
ground of benefiting the remalndeimuu's estate. 

A guardian's sale was void, and the heirs 
brought ejectment, and the purchaser filed a 
bill to restrain the prosecution of the ejectment 
until the purchase money and improvements 
were paid for. It was held that the complainant 
in equity hud the burden of tracing the fund to 
some appropriation or use beneficial to the 
wards. Douglas v. Bennett, 51 Miss. 0«0. The 
court said : "The doctrine of a court of equity 
is, that the heir, who has received the price 
of his real estate, sold by his guardian, cannot 
hold on to the money and at the same time re- 
cover the land on account of some defect In the 
Judicial proceeding under which It was sold. 
The circumstances put him under an equitable 
estoppef, and he must come to a fair account 
with the purchaser respecting the inpney. If 
he will refund the money, he may recover the 
land, or the chancellor may treat the money as 
an equitable charge upon the land. Short v. 
Porter, 44 Miss. 534 ; Ja^'ne v. Bolsgerard, 39 
Miss. 799." 

And the purchaser was held entitled to reim- 
bursement where the proceeds were applied to 
the payment of proper debts. 

In an action by a widow and heirs to set aside 
n guardian's sale of real estate belonging to the 
children, where the sale was set aside because 
<'ompctitlon had l»een prevented, and the pur- 
chaser had paid olT the mortgaj;e bearing 10 per 
cent interest, It was held that the purchaser 
was only entitled to 6 per ceut. Devlne v. Ilark- 
ncs8, 117 111, 14.'.. 7 N. E. r/2. In (his case the 
court said: "I'ayintr the rnortgMKO debt to the 
mort.u.'i.m'o Nvas no niuiM tlinn pnyin.i; the amount 
of IL to the minidian. t\iu\ was hut paying appel- 
lant's bid for the (and. Tlie payment was one 
niadr in wioutc, in \hv tairyin;,' out of a wronjr 
III! inir( liase, and piet.onis no cube 1". r the up- 
Ui) L. K. A. 

plication of the equitable doctrine of subroga- 

So it was held that the minors were entltle<l 
to recover, subject to the purchaser's claim for 
reimbursement, where a guardian's sale of shee(>- 
under an order of the county court was invalid 
because not confirmed, and the purchase money 
was applied to the payment of estabilshecl 
claims. Harrison v. ligner, 74 Tex. 86, US. W. 

And a sale of real estate of a w^ard was made 
while she was Insane, and when there was suffi- 
cient personal property. On leave obtained by 
the ward to redeem, it was held that the vendee- 
of the purchaser should be reimbursed by the- 
rcdemptioner the amounts paid by the pur- 
chaser to satisfy Judgments which were claims 
against the Judgment debtor. Cosgrove v. Merx 
(R. I.) 37 Atl. 704. It was also held that the 
vendee was entitled to be reimbursed for re- 
pairs and Improvements. 

Guardians refunded the purchase money oa 
the heirs recovering from the purchaser in eject- 
ment because the sale was void, and then the- 
guardians sought to hold the heirs responsible 
for the purchase money for which they had ac- 
counted on a settlement. It was held that the 
heirs could not retain the property and hold 
the guardians liable on a settlement, and, if the 
new guardian refused to ratify the sale, the 
former guardians might recover their money. 
Burleigh v. Bennett, 9 N. H. 15, 31 Am. Dot-. 

And the purchaser at a guardian's sale whicb 
was void was held entitled to relief where the 
ward had received his full share. Summers v. 
Howard, 33 Ark. 490 ; Hatcher v. Brings. ^ 
Or. 31. 

So, a subvendee was held entitled to malntaiti 
a suit in equity against the plaintiff in eject- 
ment fur so much of the purchase-money fund 
as came to her hands, and to hold the guardijiu 
personally resiionslble for the residue If the salt* 
was set aside. Trousdale v. Maxwell, 6 lien. 
161. In this case a guardian's sale of infant's 
land was void because the county court oraer- 
ing the sale had no Jurisdiction. After the in- 
fant became of age she brought an action of 
ejectment against the sul>ven<lee. The court 
said: "The party ejected by the Infant would 
be entitled, by right of suhro^ration, to the ex- 
tent of the purchase money paid by him. witl* 
interest, to the original purchase money, and to 
have the amount used for the infant's benefit, or 
paid to the infant, declared a lien upon the 

But in guardians' sales which are void some 
ca.sea hold that the purchaser is not entitled ta 
relief where the sale is unnecessary, or the 
guardian has wasted the proceeds ; and others 
refuse relief where the money is not used for 
the benefit of the ward. It is held in Illinois 
that there is a dllTerence in a suit in equity by 
an heir to set aside a sale and a suit in eject- 
ment, as in the former the maxim that he who 
seeks equity must do equity Is applied. This 
equitable doctrine Is applied In Texas in com- 
mon-law cases If the purchaser asserts an equi- 
table lien. 

So, In Reynolds v. Mcl'lurry. 100 111. :^M^, 
where a guardian, under a void decree of parti- 
tion, sold the land of his ward and appropriated 
the money to his own use, It was hold that the 
ward could maintain an action to set the sale 
aside without returning the purchase money. 
In this case there were ample assists to pay all 
the debts out of the persoualiy,^ and thare was 

Digitized by ^OOQIC 


CowPEK v. Waaveb's Admin I8TBAT0B. 


DO occasion for selling the land. The court 
nid : 'The Jand Is sold, and the proceeds dlvld- 
H between the mother and guardian, and the 
.-lardian has Ions since squandered his share 
i'i ibe spoils. Not a cent of the money now re- 
Qains to be returned to appellees, and no part 
or it was erer expended for appellant's benefit, 
aod jet It Is insisted that, unless this money is 
;<>:irDed by appellant, equity will afford him 
U" relief." 

Aod it was held that the purchaser could not 
r>^^>ver the purchase price In an action of eject- 
iDcDt brought by the ward, as It was not shown 
tiat the purchase money was used for the bene- 
:: of the ward, where a guardian's sale was 
v'ld because It was not approved by the court. 
line V. Tyrrell, 113 Mo. 175, 20 8. W. 796. 

( uaubers t. Jones, 72 111. 275, held that an 
infant defendant in partition, who received a 
I^rt of the proceeds, seeking to set aside a sale, 
La^.^t tender to the purchaser the purchase 
hi 'HP J, on the ground that he who seeks equity 
m i-^t do equity. Referring to the purchaser, the 
-"irt said: "On the failure of the title, as in 
I'^.-i case, he would have no right to relief, as 
against the heirs; nor could he have a decree 
.:.p:n!it the land itself for the purchase money. 
Iris is settled by Bishop v. O'Conner, 69 III. 
4.1. aod need not now be discussed as a new 
. :^rion : but the defendant is asking no relief 

• ■.-"»? bill or otherwise.** 

At the suit of the holder of a life estate, a 
• :cTT ctmrt ordered the sale of the remainder 
-' i>. The Judgment was void for want of Ju- 
..^M'^tion, and the infant remainderman re- 
f.ved no benefit. After coming of age, the In- 
: rit recovered in ejectment, it was held that 
tbe purchaser could not maintain a bill in 
»',n:fy for the purchase money, and for a lien, 

• .-re the infants had received no benefit. Aber- 

• f^i.v T l»hiilips. 82 Va. 769, 1 S. E. 113. The 

• ri Kjid: -The record clearly shows that 
'•■ ^'T W. H. Phillips, who was only seven 
. .:r& old when the land was sold under the 
iTt^ of the county court, nor the then unborn 
>' ie B. rhilllps, ever made any contract, di- 
r* :;y or indirectly, with either of the appel- 

'k> in reference to the land in question, or 

'*T received even one cent of the price paid. 

> y cannot, therefore, on any principle of Jus- 

' ■»- or equity, be called on to make restitution." 

And a purchaser was denied a lien where he 

('-'y pleaded estoppel against the wards. 

A .aidfdlan's sale was void because the record 

"<1 to show that be had taken the required 

^ M itnry oath, and no title passed by the deed. 

•• *as contended that the words, who were In- 

''i» at the time of the sale, and for whose 

* '^'t it ^as claimed the land was sold by the 

> :..'i;an and the proceeds applied for their 

'..;:e and education, were estopped from 

-r.j.nlng the title. The appellate court af- 

'f^l the Jud(?ment of ejectment. The chief 

M noiod that since the opinion there were 

^•ns found that minors could be estopped. 

^i..'>n V. Filby. 24 Wis. 441. 

:. rrinjr to this case In Blodgett v. Illtt, 29 

' l»il». the court said : "The defendant of- 

. t«i <;lif,w that the purchase money, paid 

■ 'i- land to the Kiiardian, was expended by 

• '■ r the ben<»fit of the plaintiffs. ... It 

' ' "iif-d tb.nt. if such purchase money was 

' -'^r their benefit, the plaintiffs were es- 

^I to deny the validity of such sale and 

Mnce. This court held, and In my opinion 

' f'^rrertly, that Buch fact would not, of it- 

' um»tltute an estoppel upon the plaintiffs. 

•- L. K A. 

The principle to be gathered from the cases 
on the subject seems to be that some act of the 
ward after he reaches majority, such as receiv- 
ing the purchase money or a portion of it, or 
the like, is essential to create an estoppel 
against him. This is the extent of the decision 
of this court in that case. No question wa» 
raised, considered, or decided, as to the right of 
a purchaser In good faith at a guardian's sale, 
which is void by reason of omissions or defects 
in the preliminary proceedings, to have the pur- 
chase money, paid to the guardian and used by 
him for the benefit of the ward, adjudged an 
equitable charge on the land, to be paid before 
the purchaser shall be dispossessed thereof. Had 
this question been made, we cannot say how it 
would have been decided." 

Where a recovery was had by heirs in eject- 
ment because a partition sale brought by their 
guardian was void, the court said : ''Neither 
would the fact that he purchased the property 
for himself at the partition sale, and paid into 
the estates of these minors the full purchase 
money, effect a transfer of title to him. The 
equity which is administered by the courts upon 
void sales of this character is not that of de- 
creeing them valid. The most tuat it can do is 
to decree a return of the purchase money, and 
order an account of rents, profits, and improve- 
ments, and adjudge the land subject to a lien 
for the difference ; and this is done only when 
such equity is pleaded." Campbell v. Laclede 
Gaslight Co. 84 Mo. 352. 

In Wichita Land & Cattle Co. v. Ward, .1 
Tex. Civ. App. 307, 21 S. W. 128, where a * 
vendor's Hen was enforced against a guardian, 
and the ward had the sale set aside, it was held 
that the rents and profits were a proper offset 
against the amount paid by tae purchaser. 

A ^lardlan's sale was void because of no 
notice given to the heirs, and the court had no 
Jurisdiction. A petition by the heirs against the 
purchaser to quiet title was held sufficient, al- 
though the purchase money was not shown to 
have been tendered. Washburn v. Carmlchael. 
32 Iowa, 475. This was on the ground that the 
defendant might have received more than suffi- 
cient rents to reimburse him. 

2. Administraiora* sales. 

The weight of authority hoius that, if an ad- 
ministrator's or probate saie is void, in a pro- 
ceeding to sell the land to pay debts, the pur- 
chaser is entitled to restitution or subrogation 
for the purchase money, where the same is used 
to pay debts against the estate. Neel v. Carson. 
47 Ark. 421, 2 S. W. 107 ; Daquin v. Coiron. 6 
Mart. N. 8. 674; Donaldson v. Winter. 1 La. 
137; McGec v. Wallls, 57 Miss. 638, 34 Am. 
Rep. 484 ; Carey v. West. 139 Mo. 146. 40 S. W. 
661 ; Cunningham v. Anderson, 107 Mo. 371, 28 
Am. St. Rep. 417, 17 S. W. 972; Sharkey v. 
Bankslon. 30 La. Ann. 891 ; Wllle v. Brooks. 
45 Miss. 542. 

So purchasers were hold entitled to maintain a 
bill against tlie administrator. In the nature of a 
creditor's bill, and wore entitled to substitution 
f(»r the debts which ^^el•e paid by the nmncy oL 
the purchaser under a void decree. Hull v. 
Hull, 35 W. Va. 1;")."), 29 Am. St. Rep. Suo. i;; 
S. K. 41). The court said : "Principles of justice 
demnnd this, nnd courts of equity have raised 
up this i)rliielj)le, a beinc: of their creation, 
called *suliKi itution,' unknown to coniinon-luw 
forums, to accomplish the ends of justice; and 
I know of no more signal iuytauce to exijiiiplily 

Digitized by VjOOQIC 


Kentucky Court of Appeals. 


the disposition, as well as the power, of equity 
to adopt means to accomplish rl^rht, than this 
of substitution, accorded purchasers under void 
proceedings, whose money has gone to satisfy 
liens good against the debtor.'* 

80, restitution was allowed the purchaser in 
■an action brought by heirs to set aside and re- 
deem from an execution sale because the ex- 
ecutor, not having power to sell certain lands, 
u»ed a Judgment to effect their sale, and sold 
them vn masse for less than their value. It was 
held that, ns complainants were seeking relief 
in equity, and the purchase relieved the estate 
from an indebtedness, and gave a surplus to the 
executor for the benefit of the heirs, they were 
compelled to refund the purchase price as a con- 
dition precedent to their redeeming. Kinney v. 
Knoebel, 51 111. 112. 

In Bishop V. O'Conner, 69 III. 431, tne case 
of Kinney y. Knoel)el, 51 III. 112, was dis- 
tlL>^',ul8hed, as subrogation in that case was 
pl&ccd on the ground that it was a bill filed to 
set aside a sale and to l>e permitted to redeem, 
and when equity was sought, relief would only 
he granted upon doing full equity. Also in 
that case the purchase was upon condition that 
he could use the debts against the estate for 
paying his bid. 

' In Smith V. Knoebel. 82 111. 392, which was a 
subsequent appeal of Kinney v. Knoebel, 51 111. 
112, where the Hame doctrine was isiffirmed, it 
was held that the executor held the land as se- 
<.'urity for the debts, that the land sold for more 
than the debts, and that the heirs must pay the 
whole purchase money in a suit to redeem. 

So it was held that the purchaser was en- 
titled to im er^ulty which would prevent a re- 
•covery in ejectment until reimbursed, where the 
record of the probate court failed to show an 
<trder authorizing the sale which had been made, 
but the land had been sold above its appraisal 
value, tnd the proceeds were applied to the re- 
lief of other lands of the heirs. Evans v. Sny- 
der, 04 Mo. 510. 

Heirs brought suit to recover land where the 
I)roperty of their ancestor was sold by the reg- 
istrar of wills, but not under the order or by 
the direction of the Judge. This sale was in- 
valid, under La. 'Old Code, p. 174, art. 127," 
providing that the Judge shall cause the prop- 
erty to be sold. It was held that the plaintiff 
could recover, but should not have possession 
until the rents, profits, and improvements were 
determined. Elliott v. Labarre, 2 I^u. 320. 

In a later report of this case (3 La. 541) it 
was held that, if the sum paid for the land by 
the party evicted extinguished a debt of the 
owner of the laud, the latter must allow it, 
without interest, as this was compensated for 
by fruits. 

And a purchaser was held entitled to a Hen 
before he could be ejected, where the notice of 
administrator's sale failed to give time or place. 
Theie was no notice given of the petition to 
sell, and the sale was void. The purchase money 
paid was applied to the payment of mortgages, 
debts, and administration. Blodgeit v. Hltt, 29 
Wis. 169. 

A sale to pay debts of an Intestate, and for 
distribution, was held void for want of Juris- 
diction of the county court, as no process was 
served on the minors, or answer filed In their 
behalf. It was held that the purchaser, whose 
mbney was used by the administrator to pay 
debts, was entitled to have the value of the 
payment made by him refunded and, if not paid 
in a reasonable time, to be paid by a resale, es- 
•til) L. R. A. 

timatlng the value of Confederate money at the 
time of the payment, with interest, after char- 
ging him with rents and allowing for Improve- 
ments and repairs. Martin v. Turner, 2 Heisk.. 

An administrator's sale was void, and the 
proceeds were applied to the debts, removing; 
them as charges upon the personal estate, and 
maintaining an infant heir. Where restitution 
to the purchaser was not tendered, an action 
of ejectment by the heir was enjoined. Robert- 
son V. Bradford, 73 Ala. 116. 

In Bland v. Bowie, 53 Ala. 152, the court 
said : **We do not doubt that It Is competent for 
the purchaser, at any time after he discovers 
that the proceedings for the sale are void, to 
resort to a court of equity to compel the heir 
or devisee to elect the ratification or the re- 
scission of the contract of purchase. If the pur- 
chase money has been paid and distributed to 
the heirs, or applied by the personal represent- 
ative to the payment of debts, a court of equity- 
would compel a conveyance of title from the 
heirs, If they could not successfully Impeach the 
fairness of the sale. Bell v. Craig, 52 Ala. 21."». 
It is impossible that injury can result to the 
vigilant purchaser, and it cannot be allowed him 
to rescind at pleasure the contract of purchase, 
which the heirs may be willing to confirm.'* 

In Dorman v. Lane, 6 111. 143, it was saUl 
that a sale under a void authority was also 
void, and the purchaser could recover back the 
purchase money. In this case, it was held that 
an application by an administrator to sell lan<l 
could not be allowed where fifteen years had 
elapsed after an order allowing his claim, and 
the land had previously been sold under an act 
of the legislature to pay the same debt, and the 
proceeds had been received by him, but the act 
had been declared unconstitutional, and that 
sale was void. 

In Woodstock Iron Co. ▼. Fullenwlder, 87 
Ala. 584, 13 Am. St. Rep. 73, 6 So. 197, It was 
said : "Where land of a decedent is sold by the 
probate court for the payment of debts, or for 
distribution, and the proceeding is void for 
want of Jurisdiction, or otherwise, and the pur- 
chase money, being paid to the administrator, is 
applied by him to the payment of the debts of 
the decedent's estate, or is distributed to the 
heirs, — while the sale is so far void as to con- 
vey no title at law, the purchaser nevertheless 
acquires an equitable title to the lands, whicb 
will be recognized In a court of equity. And he 
may resort to a court of equity to compel the 
heirs or devisee to elect a ratification or rescis- 
sion of the contract of purchase. It Is deemed 
unconscionable that the heirs or devisees should 
reap the fruits of the purchaser's payment of 
money, appropriated to the discharge of debts, 
which were a charge on the lands, and at the 
same time recover the lands."- 

In Brandon v. Brown, 100 111. 519, the ex- 
ecutor made a sale under an order of the county 
court to pay debts, and before the money was 
used the heirs recovered the property in eject- 
ment on the ground of want of Jurisdiction of 
the county court, and the executor refunded the 
money to the purchaser, but refused to charge 
himself with the same in the county court. It 
was held that, if the heirs disaffirmed the sale, 
they must return the purchase money. 

An administrator's deed was supposed to be 
void in an action of ejectment brought by heirs. 
The defense was that the purchase money was 
used to pay debts. It was held that the answer 
should contain a prayer that an account be 


Digitized by VjOOQIC 


CowpER V. We-web's Administbatoe, 


taken, and that the sum found to be due tho 
defendant should be declared to he a Hen upon 
the land ; and the Judgment of the court should 
be that the plaintiff should have possession 
upon paying the defendant the sum so found 
to be due. Thia was not done In the present 
rage, and In this particular the answer of the 
defendant was defective. Sims ▼. Gray, 66 Mo. 

It is a general rule that where the debts paid 
from the proceeds of the sale were a charge on 
tbe land, and the administrator's sale is void, 
the purchaser will be held entitled to restitution 
or subrogation. McDonough v. Cross, 40 Tex. 
*J51 ; Caldwell v. Palmer, Lea, 652 ; Fisher v. 
Hugh. IXi i&d. 315, 32 N. E. 924; Galveston, 
!!. &. 8. A. It. Co. V. Blakeney, 73 Tex. 180, 11 
S. W. 174; Merselis v. Vreeland, 8 N. J. Eq. 

So, where an administrator's sale was void, 
aUhough one parcel of land sold for enough to 
dischar^se all debts, the purchaser was held en- 
titled to a vendee's lien for money which he had 
paid on bis bid, and which bad gone to release 
land from the burden of the intestate's debts. 
Jones V. French, 92 Ind. 138. 

So, the purchaser at an administrator's sale 
was held entitled to be subrogated to the extent 
of the purchase money applied In the extin- 
guishment of a mortgage on the property. ValI4 
v. Fleming. 29 Mo, 152. 77 Am. Dec. 5.'>7. This 
W2S an action of ejectment by heirs. The court 
;^a«d : ''It is immaterial under what form the 
t^ulty in such cases is administered, — whether 
noder the name of compensation, as it was done 
in the case of Bright v. Boyd, 1 Story. 478. Fed. 
<'as. No. 1.875. or under the name of substitu- 
tion, as in the case of Hudgln v. Hudgin, 6 
<;r8tt. 320, 52 Am. Dec. 124, or, as it is some- 
times more conveniently effected, by reviving 
Thi> encumbrance, which the purchase money 
hiis extinguished in permitting it to be used as 
a shield against a recovery at law. Peltz v. 
Oarke, 5 Pet. 482, 8 L. ed. 199." 

And in an action of ejectment by heirs to re- 
ctfvcr from the purchaser at an administrator's 
5(ale on the ground that it was void, it was held 
error to strike out the defendant's answer, 
pleading, as In Yall6 v. Fleming, 29 Mo. 152, 
77 Am. Dec. 557, his equitable claim. Jones v. 
Manly. 58 Mo. 559. 

In BfKhop V. O'Conner, 69 111. 431, it was 
<cild that in the case of Vall^ v. Fleming, 29 Mo. 
1.'2, 77 Am. Dec. 557, the purchase at 
administrator's sale was subject to a mortgage, 
and tlie purchase money was applied to the 
sath^f action, and the purchaser was subrogated 
to the rights of the mortgagee. The correct- 
uesm of the decision was dcjubted. 

A sale was void because the administrator 
failed to give bond. The purchaser had paid 
one third In cash, which was used to pay a Judg- 
ment lien. There was no formal rescission, but 
a resale, and the first purchaser bought part 
of the land. In a suit by him to obtain a 
preference, it was held that the purchaser was 
entitled to be reimbursed, out of the estate, the 
sum of money which he had advanced and could 
recover by bill In equity. Short v. Porter, 44 
Miss. 5SZ. The court said : "But the equity of 
the complainant rests upon the further impreg- 
nable ground that he, supposing that he was 
acquiring the title of the heirs of intestate, at 
the sale made uy the administrator, made a cash 

payment of dollars, which was actually 

a»ed and applied by the administrator to 
discharge a. preferred lien on the land. As to 
«9 r-. R. A. 

the heirs, that application of the money ex- 
onerated their property pro tanto. It went to 
relieve an encumbrance on the land. They 
would not be permitted to recover back the land 
for the reason that the probate decree and sale 
were Invalid, ond, therefore, did not devest their 
title, except upon the condition that they re- 
store to the purchaser his money, or, rather, to 
the extent of the cash payment." 

Aud a purchaser of property under execution 
was hold to have the right In equity, on the vo 
covery of the property from him by a superior 
title, to be substituted for the creditor, and to 
have his purchase money refunded by the de 
fendaut In the execution, where the execution 
was against administrators, out of the assets of 
the estate. McLaughlin v. Daniel, 8 Dana, 182. 
The court said : "According to the principle re- 
peatedly recognized by this court, he has an 
equitable right to be substituted in the place of 
the creditor, and to have the omount so paid 
refunded to him out of the estate. His equity 
rests not upon the ground of his want of knowl- 
edge as to the title of the slave, but on the 
ground of his having discharged a Judgment 
against the estate, for which it stood charge- 
able, by a purchase of property made under the 
coercive process of the law ; and, therefore, has 
equitable right to be reimbursed out of the es- 

And subrogation was allowed the purchaser 
where a guardian filed a bill against an. ex- 
ecutor to subject land devised to the payment 
of his debt, without making devisees parties. 
The sale did not puss a legal title. Hudgin v. 
Hudgln, 6 Gratt. 320, 52 Am. Dec. 124. This 
was on the equitable ground that the purchaser, 
on disafRrmnnce of the sale, was entitled to be 
substituted to the rights of the creditor, and 
that the land should be charged with the 
amount of the debt paid by him. 

In Bishop V. O'Conner, 09 111. 431. the case 
of Hudgln V. Hudgln, Grutt. 320. 52 Am. Dec. 
124, was distingulHhed, as there the testator ex- 
pressly charged the land with the payment of 
debts, and, the debts having been paid by the 
purchaser from funds arising from the sale by 
the executors, the heirs were required to refund 
to the purchaser the money he had paid the 
executor, and which had been applied to the 

And the purchaser is held entitled to relief 
where it is shown that the purchase money had 
been applied for the beneflt of the estate and 
heirs, and the sale was set aside. 

An administrator, under an order of the pro 
bate court, made a void sale of the horoeHtead 
to pay debts. Jt was held that the heirs. In an 
actiun against the purchaser to recover the 
laud, should offer to reHtore the purchase money 
which they had recoivcd. and which had been 
applied for their benefit. Stephenson v. Mar- 
sal is, 11 Tex. Civ. App. 162, 33 S. W. 383. 

In Stults V. Brown, 112 Ind. 370, 2 Am. St, 
Rep. 190, 14 N. B. 230, It was said that a 
purchaser at an administrat9r's sale which had 
been set oside was held entitled to enforce a 
vendee's lien against the land for the amount 
of the purchase money which had been used for 
the beneflt of the estate, and to an order re- 
quiring the administrator to resell the land for 
the payment of his debt. But relief was de- 
nied in this action, which was a suit for specific 
performance. The administrator then filed his 
claim against the estate for the amount paid, 
and was defeated. Thereafter he brought an- 
other suit on the same matter against the heirs. 

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Kentucky Court of Appeals. 


The disallowance of his claim was held to be 
res judicata. Stiilts v. Forst, 135 Ind. 297, 84 
N. B. 1125. 

And the defendants in ejectment were held 
entitled to an equitable counterclaim to the ex- 
tent of the purchane money and taxes. Schafer 
V. Causey, 76 Mo. 365. This was an action of 
ejectment by hel^s against the purchaser at an 
administrator's sale, void because the notice 
was published In a German newspaper, and be- 
cause the sale was approved at the term of 
court at which it was made. It was pleaded 
that a small part, only, of the purchase money 
had been used to pay the debts of the estate, 
and that the greater part had been paid oyer 
to the plaintiffs' guardian for their benefit. 

But some cases hold that the purchaser is not 
entitled to relief where the sale was unneces- 
sary, and where the purchaser had notice of the 
want of authority to make the sale, and where 
the sale was not confirmed. So where it was not 
shown that the proceeds of the sale were used 
to pay debts of the estate, and the adminis- 
trator was the purchaser. In Illinois, Michigan, 
and Ohio It is held that if the debts paid are not 
a charge upon the land the purchaser^ is not 
entitled to reimbursement or subrogation on set- 
ting aside the sale. In the last state a statute 
has since provided relief in probate sales. 

In Aronstein v. Irvine, 48 La. Ann. 301, 19 
So. 131, where the natural tutor as adminis- 
trator, unnecessarily caused the property in the 
succession to be sold to pay debts, and became 
the purchaser, It was held that the minors 
could maintain a suit against the purchaser un- 
der a mortgage made by the tutor, without 
tendering the purchase price. The court said : 
"But in a case like the Instant one there is no 
requirement of antecedent legal tender, as 'there 
is no principle of equity requiring plaintiffs to 
tender to defendants before asserting their ab- 
solute title to property belonging to them and 
held by defendant as a mere possessor without 
title. All that equity could possibly require 
would be to permit him to set up his claim in 
reconvention, which would not be denied.' '* 

So. where an administrator's sale was void, 
and there were assets in the hands of the ad- 
ministrator sufllcient to pay the claim of the 
purchaser. It was held that the purchaser was 
not entitled to a lien on the property for his 
purchase money in setting the sale aside. Ben- 
nett V. Coldwell, 8 Baxt. 483. The court said : 
''The law does not make the heirs securities for 
the administrator, nor make their rights de- 
pendent upon the integrity or negligence of the 
administrator. Hence, we are of the opinion 
that the decree of the chancellor declaring a 
lien, and ordering a sale of house and lot, was 

And a purchaser of personalty at an admin- 
istrator's sale, having notice of the want of au- 
thority of the administrator to make the sale, 
where the sale was held void, was held not en- 
titled to recover the price from an adminis- 
trator de bonis nan, and the payment was held 
to be voluntary. Beene v. Collenberger, 88 Ala. 

In Pool V. Ellis, 64 Miss. 555, 1 So. 725, 
where an administrator's sale was never con- 
firmed, it was held the purchaser was under no 
obligation to pay to the administrator any por- 
tion of his bid before confirmation, and such 
payment was not binding upon the estate or the 
heirs at law. The court said : "The administra- 
tor held the money as a mere depository of the 
purchaser, and if it was wasted or misappro- 
09 L. R, A. 

priated by him the loss must be borne by the 
purchaser. . . . The chancellor, by subro- 
gating the appellant to the righte of the cred- 
itor, to the payment of whose debt against the 
estate a part of the purchase money was ap- 
plied, extended to him the full measure of re- 
lief to which he was entitled." 

A purchaser of land at an administrator's 
sale, where the purchaser was one of the ad- 
ministrators and the sale was void for that 
reason, was held to have no equity against the 
land, where it was not shown that the purchase 
money had been applied to the debts of the es- 
tate. Jayne v. Boisgerard, 39 Miss. 796. 

In Illinois, Michigan, and Ohio the purchaser 
at a void administrator's sale was denied relief 
where the money was not used to pay debts 
which were a charge on the land. 

In Bishop V. O'Conner, 69 111. 431, which was 
an action by the assignee of the purchaser for 
subrogation, it was held that a purchaser at an 
administrator's sale to pay debts, which was 
void for lack of service, would not be sub- 
rogated to the extent that money was paid for 
support of heirs or payment of debts. It was 
also held that, if it was an action against heirs. 
it was barred by limitation. But it is said that 
a volunteer is not entitled to subrogation, and 
that there is no implied agreement on the part 
of the heirs to refund. 

After land was given to the devisee with the 
executor's consent, and she had conveyed it. the 
executor sold the land under an order of the 
probate court to pay debts. The sale was held 
void, the executor having no power to sell the 
land. On a bill to declare the purchase money 
a lien because the money paid the executor was 
used for the estate, it was held that the pur- 
chaser had no lien. Frost v. At wood, 73 Mich. 
67, 16 Am. St. Rep. 560, 41 N. W. 96. The court 
said : "It is difficult to see bow the case can be 
affected by the use which the executor made of 
the money. In all probate sales, valid or in- 
valid, the officer making the sale receives the 
money, and usually appropriates it. But it never 
has been supposed, and It is not legally true, 
that such use creates any lien on the premises 
unlawfully sold. What he receives without law- 
ful authority does not concern the estate, and 
he can no more create a lien by spending that 
money than by spending any other. If the es- 
tate owes him, he must pursue his remedy as 
the law gives It, and his claim must first bo 
established before he can get any remedy. The 
use, if made, is not made for the benefit of the 
particular piece of land that he attempted to 
sell, but for the whole estate; and, if it be- 
comes a claim, it is a claim against the whole 
estate, and not against a part of It." 

In the above case the executor had no power 
to dispose of the land under the will, and the 
action of the probate court in assessing and en- 
larging the amounts to be contributed by the 
devisee was without Jurisdiction as there was 
no personal service. IIow. Stat. (Mich.) ($ 
5818-5820, providing for issuing executions 
against the devisees in settling the amount of 
their liabilities, were held to be the on'y rem- 
edy, and they did not declare a lien, and would 
not bind any specific property. In this case 
there was no claim against the estate open to 
subrogation, and no money lent to the executor 
or to the estate. The court said : "In the pres- 
ent case, the record does not show that, if the 
executor ha'd done his duty, the debts would not 
have been fully paid within the proper stat- 
utory period, without js^y deficiency arising. 

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And when he sees fit to allow all parties to rest 
on tlie Idea that they can do what they will 
vith their legacies and devises, the statute 
gives him uo power to recall them." 

So, in Nowler v. Colt, 1 Ohio, 519, 13 Am. 
Dec. 640. It was held that purchase money paid 
to an administrator upon a sale of intestate's 
land was not a charge upon the land where the 
sale was void and the heirs recovered the land. 
Tbe court said : *'The lands of the deceased 
were never legally char;;ed with the payment. 
Tbe administrator, from whom the defendant 
purchased, had no power over them, lie paid 
his money upon a mistake as to the considera- 
tion. The present complainants are not the 
parties to whom he paid it, or with whom he 
made the contract ; and his right to recover 
Uack his money cannot be litigated with them, 
neither at law nor in equity. We can therefore 
make no decree with respect to the purchase 

So it was held that a purchaser could not 
set up an equity in the estate of the decedent 
by reason of the payment of the decedent's 
debts from his purchase, where a court in Vir- 
jrinia directed a sale of Ohio land to pay the 
debts of the estate in Virginia, and the sale was 
void as the court had no Jurisdiction. Beall v. 
Price, in Ohio. 3C8, 42 Am. Dec. 204. The court 
Mid : "But no privity exists between the cred- 
itors of Duval and the estate of Price, which 
will Justify them in reachhig his assets, except 
as general creditors of Duval, pursuing his 
credits. Neither does the advance of money by 
a stranger, upon a defective sale of a decedent's 
lands, create an equity against his estate, al- 
though the money goes to pay his debts. It has 
lieen held by this court that the rule of caveat 
emptor operates on the purchaser at Judicial 
sales, and cuts off all right to indemnity, except 
auch as may arise from express warranty." 

8o in a suit In equity by the purchaser 
against heirs it was held that no lien was ac- 
quired by the purchaser, and that, if he had a 
right to recover, the administrator must be 
made a. party. This was in Lieby ▼. Ludlow, 4 
Ohio, 469, where a probate sale to pay debts 
was void because it was proved that the land 
Nold was in a city, and the order to sell to pay 
debts related to land outside the city, and a 
recovery from the purchaser was had in eject- 
ment. A subsefiuent statute now provides re- 
llet See snbdlv. III. e, Statutory relief, 

e. Statutory relief. 

In some states statutory relief for the pur- 
cbasser Is provided. The decisions under the 
Indiana statutes have all affirmed the pur- 
chaser's right under a void sale to reimburse- 
ment, and the same was held in many cases 
before the statute recognizing this right was 
passed, and some decisions since the statute 
affirm tbe rule without noticing the statute. 
In New York the Code providing for redemption, 
and that the title shall pass to the grantee un- 
less the money is paid to him in twenty days 
from tbe time the sale is adjudged void, is held 

In Stevens v. Durrett, 49 Miss. 411, where a 
aale was Toid because made by an administrator 
without any order of court, it was said that 
Miss, act February 11, 1873, provides that 
where real estate has been sold under probate 
or chancery decrees for debts or distribution, 
and the money has been paid in good faith, and 
has been applied In ^ood faith for debts or dis- 
«0 U 'R. A. 

tribution, and such sales are void, the heirs or 
distributees recovering the same in ejectment 
shall hold such real estate subject to the pay- 
ment of said purchase money to said purchaser 
or any party holding under him. 

So a purchaser at a guardian's sale that was 
void was held entitled to an injunction against 
a judgment in ejectment obtained by the heirs, 
where the money was paid to the guardian, and 
the heirs who had become of age had received 
their shares. This was held to be on principles 
of equity and estoppel, as well as under Miss, 
act P'ebruary 11, 1873, Pamph. 41, supra. 
Gaines v. Kennedy, 53 Miss. 103. 

In an action of ejectment by heirs of the in- 
testate to recover land sold at a void probate 
sale, it was held, uuder this statute, that the 
purchaser was entitled to an injunction to stay 
the ejectment suit until the purchase money was 
refunded, where it was shown to have been ap- 
plied to the payment of the debts of the estate. 
Cole V. Johnson, 53 Miss. 94. The court said : 
**Certalnly, the most appropriate, if not the 
only adequate, method of securing it would be 
by a chancery proceeding. Independently of 
this statute, however, a court of equity has the 
right to charge tbe purchase money on the land 
where It is shown to have been applied in exon- 
eration of the liabilities of the estate, as was 
decided, before the enactment of the statute, 
In Short v. Porter, 44 Miss. .'iSS : and it is well 
settled that the bestowal of jurisdiction on a 
common-law court does not devest the Jurisdic- 
tion of ii court of equity, unless it is expressly 
so enacted.'* 

In Montour v. Purdy. 11 Minn. 384. 88 Am. 
Dec. 88, Gil. 278, where a guardian's sale was 
attacked by the ward by an action of eject- 
ment, it was held that a tender of the purchase 
money was not a condition precedent, as pos- 
session might be surrendered, and the lien al- 
lowed, under Minn, act March 3, 1864. protect- 
ing purchasers at executors', administrators', 
and guardians' sales, and providing that, if the 
sale shall be void or Irregular, the purchaser 
shall have a lien on the real estate sold for the 
purchase money, taxes, and interest. 

In Kelly v. Burtou, 71 Ind. 118, which was 
an action to recover possession of land where 
the sale was held not void because of defect in 
nunc pro tunc entry directing the sale withou- 
relief from appraisement laws, it was said that 
the Judgment debtor could not recover posses- 
sion until the purchase money had l)een refund- 
ed with interest, deducting the rents, under the 
Indiana Code (2 Rev. Stat. 1876. p. 257. X 625). 
providing that, when land sold by an executor, 
guardian, sheriff, or commissioner, is recovered 
by any person liable to pay the judgment, the 
plaintiff shall not be entitled to a writ of pes 
session without having paid the amount Justly 

And under this statute a purchaser at an 
execution sale, where the property was mls- 
descrlbed and the sale was void, was held en- 
titled to be stibrogated to the rights of a 
Judgment creditor. Ray v. Detchon, 79 Ind. 56. 
In this case the foreclosure suit was commenced 
by publication, and the notice was void for want 
of sufficient affidavit, and the land was mis 
described in the decree, and the court had no 
Jurisdiction over the person of one of the de- 

And the same was held in Short v. Sears. 93 
Ind. 505. In this case it was said that there 
was no warranty in Judicial sales. "But this 
rule has no application to cases whe|-e the pi 

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Kentucky Court of Appeals. 


chaser Is asserting his rights against the execu- 
tion debtor or his property. It was framed for 
and applies to a very different class of cases." 

And In Walton v. Cox, 67 Ind. 104, which was 
an action on a covenant of warranty, It was 
said that the grantee holding under a void ad- 
ministrator's sale in a suit for eviction should 
have set up his claim under this statute. 

A purchaser of school land defaulted, and the 
mortgage was foreclosed, and the land sold In 
187G to Sterne, against whom there was a Judj;- 
ment In 1875, on which an execution sale was 
had In September, 1877. Sterne had made a 
mortgage of this land In the Interim. The 
grantee of the original purchaser redeemed from 
the sale under the school-fund mortgage. It was 
then held that the Hen of the purchaser under 
the Jiidgmeut related back to the time of the 
Judgment, and was prior to the lien of the 
mortgage made In 1876 as against the redemp- 
tion fund. Puxton y. Sterne, 127 Ind. 289, 26 
N. E. 5rM. The court said : "That a purchaser 
at a sheriff's sale acquires by subrogation the 
rights of the Judgment plaintiff, in the event 
that the sale is ineffective to convey title. Is af- 
flrmed by our statute and asserted by our de- 

And a purcliaser at a sheriff's sale on fore- 
closure was held entitled to be subrogated to 
the right of the mortgagee, where the sheriff 
did not make sulDcicut written memorandum 
of sale, and the purchaser failed in a mandamus 
Hult to ac(iulre a deed. Bodkin v. Merit, 102 
ind. 21»8. 1 N. E. 025. The court said: "It is 
a familiar principle of equity, and is one fully 
recognized by our statute and decisions, that 
payment of ii debt by a purchaser at an invalid 
alierilT's sale subrogates the purchaser to the 
rights of the creditor." 

In Short v. Sears. 03 Ind. 505, It was said : 
"A purchaser at u sherilfs sale, who buys In 
g( od faith, and pays money which goes to the 
discharge of a Judgment lien on the execution 
defendant's land, is entitled to be subrogated 
to the Hen of the Judgment creditor. This is a 
general principle of equity, and is not dependent 
alone upon statutory law. Our cases very early 
held that a purchaser might recover in equity 
from the execution defendant the amount paid 
on his bid. and a long line of decLsions has 
maintained this doctrine. . . . The rule 
has not been confined to a right to a personal 
Judgment against the debtor, but has l)een ex- 
rendi'd. as in justice and equity it should be, to 
a right to the Hen of the judgment paid by the 
bid. . . . The statute declares In very 
broad terms this general rule. Ilev. Stat. 1881, 
S 1084. ... As the statute Is a remedial 
one, and In furtherance of a salutary and long- 
recoguized rule, it ought to receive a liberal con- 

I'ndor Bates's Ohio Stat, ff 5410. 5411, pro- 
viding that the purchaser at execution, execu- 
tors*, guardians,' and assignees' sales, which are 
set aside, should be subrogated to the rights of 
the creditor, and shall have a Hen, it was held 
that a purchaser at an executor's sale under an 
order of the probate court, which was void, was 
entitled to be subrogated to the creditor's rights 
when the purchase money was used to pay 
debts, and the property should be sold to re- 
imburse him. Wehrle v. Wehrle, 30 Ohio St. 

But In Oilman v. Tucker. 128 N. Y. 100. 13 
L. R. A. 304, 20 Am. St. Rep. 404, 28 N. B. 
1040, N. Y. Code Civ. Proc. S 1440 (Amended 
Laws 1881, chap. OSl), providing for redemp- 
1)9 L. 11. A. 

tlon, and that. If the title of the sheriff's 
grantee in sales under execution Is adjudged 
void in an action brought by the Judgment debt- 
or, such Judgment shall have no force unless 
within twenty days the plaintiff pay to such 
grantee the money paid on the sale with Inter 
est and costs; and that, if not paid, the title 
shall vest in the grantee, — was held to be un- 
constitutional. The court said : "The obvious 
intention of the act Is to take away from the 
owner all remedy for the recovery of his prop 
erty, except upon the payment by him to his 
adversary of a sum of money which must fre- 
quently be greater than the value of the proper- 
ty itself. If he remains in possession of the 
property, he is deprived of any remedy to pro- 
tect his possession, and If his adversary has 
succeeded in obtaining possession, he is de 
prived of any remedy to recover it, except upon 
the condition that he pays as much, or more, 
than it Is probably worth. An owner may, there- 
fore, under this law, be stripped of his prop 
erty under a void proceeding; be turned out of 
possession, and denied any affirmative relief in 
the courts, unless upon the condition that he 
pays for the property Its value, as deterniiued 
by a Judicial sale, and. In addition thereto, a 
sum for costs and expenses, the amount of 
which he has no means of ascertaining, and 
which may also exceed the value of the prop 
erty In litigation." This was an action by the 
Judgment debtor to have the sale declared void 
because of void execution. After Judgment In 
favor of the debtor the purchaser moved to set 
this asi'Ic because he had not been tendered the 
purchase money under the statute. See Meyer 
V. Farmer, 30 La. Ann. 785 ; Mclntyre v. San- 
ford, 80 N. Y. 634 : Lefevre v. Laraway. 2*J 
Barb. 1G7, — subdiv. III. g ; EHIng to Ilarrintftnn. 
17 Mont. 322. 42 Pac. 851, subdiv. V. : Holt v. 
Baaon, 72 N. C. 308, and Wood v. Genet, 8 
I»alge, 137, subdiv. V. 

f. Proceedings against nonreaftfrntB. 

The purchaser was held not entitled to relief 
where there was no Hen, and the court had no 
Jurisdiction, and the proceedings were by pub- 
lication against nonresidents. 

A Judgment was rendered against a nonresl 
dent without service, appearance, or attach- 
ment, and no Hen was asserted. A sale there- 
under was void, and it was held that the pur- 
chaser under such sale did not acquire a Hen for 
the amount of the debt paid by the sale. Grigs- 
by V. Barr, 14 Bush, 330. 

In an action oi attachment against a non- 
resident no notice was given to defendant, and 
the papers contained a misnomer by transposing 
the initial letters of the Christian name. The 
conveyance was In the proper name. It was 
held that the proceedings were void, that the 
court had no Jurisdiction, and the sale was 
void, of which the purchaser should have taken 
notice from the record. It was also held that 
the purchaser was not entitled, in eqyity. to re 
tain possession of the land until he had been re 
Imbursed. Buchanan v. Edmlsien, 1 lierdman 
tXcb.) 420, 05 N. W. 620. The court said: 
"But it Is insisted, . . . that Is to say. 
conceding, for the sake of discussion, that t\w 
attachment proceedings are void from their be- 
ginning to their conclusion, that the threshing- 
machine company never had any Hen, and that 
no title passed pursuant to the pretended Judi- 
cial sale, still, by reason of this void proceed 
ing, void sale, and void deed, the purchaser has 

Digitized by 



CowPEB V. Weaveb's Administbatob. 


Kiiulred the riKht to take and retain poBses- 
ftion of the premises until he shall be repaid 
riie amount of his bid. In other words, that 
the unliquidated debt of the appellant has, by 
the means mentioned, been converted into an 
rquitable mortgage upon his lands, and the pur- 
i-bsiser has attained a position superior to that 
of a mortgagee in possession. Appellee cites 
DO authority in support of this contention, 
vblch Is indefensibl^i in reason." 

So it was held that, a Judgment being void, 
the sherlflTs sale did not devest the defendant 
of bis title, and he was not bound to refund 
the purchase money paid to the sheriff. Stegall 
T. Huff, 54 Tex. 193. This was an action by the 
detendant In execution against the purchaser 
to recover land the purchaser held under an 
execution sale based on a Judgment by publica- 
tion, where the court had no Jurisdiction. The 
d-urt said: "Otherwise he might indirectly be 
forred to pay an indebtedness which he did not 

This case followed Edrlngton v. Allsbrooks, 
21 Tex. 1S6, which was an action for an injunc- 
tion against a garnishment Judgment, and It 
was held that a debtor who seeks an injunction 
against a void Judgment la not obliged to bring 
the money Into court before he can claim Its 

In Northcraft v. Oliver, 74 Tex. 162, US. 
H'. 1121, where the purchaser bought at an exe- 
cution sale on a Judgment void because ren- 
dered on publication against a nonrctsident, the 
holrs brought ejectment. The defendant plead- 
e<l that he should be reimbursed before losing 
the land, and also pleaded that the heirs could 
not maintain this action, as the right of action 
was in the administrator. This latter defense 
was sustained. As to his lien, the court said: 
'■The right of the creditor of the estate Is good 
to defend against the heirs taking and appro- 
priating the property, but this right is no bet- 
ter to appropriate It exclusively to his own use 
r.'ian is that of the heirs to do the same thing. 
The creditor protects himself, and at the same 
time all other creditors and claimants of the 
«tate. by surrendering the estate's property 
• nly to an administrator of the estate In who»e 
hands oar laws are so framed as to provide for 
Its proper distribution." 

See Uoggs V. Fowler, 10 Cal. 559, 76 Am. 
iK-c. 561, subdlv. V. 

g. Fraudulent tales. 

A large number of cases hold that a purchas- 
er who was a participant in a fraudulent sale by 
^^ocu^ing the property at a sacrifice, where 
«•« mpetltion was prevented, or who was a party 
to a fraudulent Judgment, was not entitled to 
r»?iief on the ground that "he that bath com- 
mitted iniquity shall have no equity." Re- 
Hef has been denied where an administrator 
purchased at bis own sale. There are cases 
where relief was granted without discussing the 
quesition w^hether or not preventing bidding, or 
fraudulently co-operating in the sale, Is suffl- 
clrtit to defeat his right. In some of these re- 
ii-f was granted because the sale was attacked 
m equity, and the complainant was required to 
do e'lulty. 

A bidder procured a purchase by fraudulently 
preventing other bids. It was held that he ac- 
Tiired no title, and the court refused to relm- 
I'lrse him, on the maxim that "he that hath 
mmmltted iniquity shall have no equity." Gnble 
V- O'Connor, 43 Neb. 49, 61 N. W. 131. The 
^0 L K. A. 

court said : *'The sale to appellant was void 
because of his wrongful and fraudulent acts at 
the time of the sale, and he acquired no title as 
against appellees, and is not entitled to have the 
money paid out by him refunded ; and this last, 
not by way of punishment, and not that the 
court would help or desire to aid appellees be- 
yond the demands of Justice and equity, but be- 
cause, by his own wrong, the appellant has 
placed himself In such a* position that the court 
is unable to grant him relief 

An administrator purchased land of an Intes- 
tate at sheriff's sale on a Judgment recovered 
for an alleged debt of the intestate. In eject- 
ment brought hy heirs of the intestate alleging 
the Judgment to be fraudulent, it was held that, 
if the debt was not shown to be bona tide, and 
if the admtnlKtrator had assets to pay it, the 
heirs could recover the land ag:iinst the admin- 
istrator on the ground of fraud, without ten- 
dering the money paid or the value of the im- 
provements. Kiddie v. Murphy, 7 Serg. & R. 

So, In an action of ejectment by devisees 
against the purchaser at sheriff's sale, where 
the purchaser had fraudulently misrepresented 
the land at the sale so as to acquire it at a low 
price. It was held that the plaintiff did not 
have to tender to the purchaser the money paid 
In order to recover. Gilbert v. Hoffman, 2 
Watts, 06, 26 Am. Dec. 103. In this case the 
court said : "In the case at bar, Daniel Gilbert 
has a title to the land, as the devisee of his 
father Leonard, which Is not In the slightest 
degree Impaired by the deed of the sheriff, 
which is ab initio void, by reason of the fraud 
practised at the sale. . . . This oplAion. 
It must be observed. Is grounded on the assump- 
tion that the purchaser was guilty of such fraud 
as avoids the sheriff's sale. Whether there was 
actual fraud will be for the Jury to decide on 
another trial." 

So it was held that the purchaser could not 
hold the title ns security for the purchase 
money advanced, or anything else, where he 
prevented bidding by fraudulently representing 
that he was buying the property for the family 
of the defendant In execution, and that the 
purchaser would take It charged with liens 
which he knew the sale would devest. McCan- 
key V. Graff, 23 Pa. 321, 62 Am. Dec. 336. It 
was also held that the plaintiff In ejectment 
was not bound to tender the purchase money 
before trial, nor to take a conditional verdict 
by which he would be compelled to pay it after- 

Two lots amounting to 446 acres were struck 
off for $13. The sale was set aside as fraudu- 
lent on the part of the sheriff. The purchaser 
had assigned his bid, and the sheriff had con- 
veyed to the a&Hignec. It wos held that he was 
not entitled to any protection in his purchase. 
'I'lernan v. Wilson. 6 Johns. I'h. 411. The court 
made no disposition as regards the purchase 
money. The sheriff was decreed to pay the 

A sale was set aside for fraud. It was held 
that the purchaser was not entitled to equitable 
relief for the purchase money paid. Teas v. 
McDonald, 13 Tex. 349, 65 Am. Dec. 60, The 
court said : "But in this case. If Teas, the 
purchaser of the property, was chargeable with 
notice of the facts, as we think he was, he Is 
to be deemed to have purchased with a knowl 
eilge of the fact that the Judgment debtor, 
whose property he purchased, though legally 
liable to the plaintiff in executlon|r^$(et, as be- 
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Kentucky Couet of Appeals. 


tween blni and hla codefendant Cotton, was not 
equitably liable; for that he had paid his pro- 
portion of the debt, and really owed nothing-; 
and that his codefendant Cotton, who pointed 
out the property, was the sole debtor, out of 
whose property the debt should have been col- 
lected ; and that he was held so liable by the 
plaintiff in execution, who did not desire the 
property of the plaintiff in this suit to be sold 
in satisfaction of his Judgment." 

An administrator in a mortgage foreclosure 
was the purchaser. The purchaser had pre- 
viously contracted to sell the land, and his ven- 
dee was to abstain from bidding, and his vendee 
subsequently paid him for the land. It was 
held that the combination not to bid rendered 
the sale void, and that the vendee could not 
claim a return of the price on setting aside the 
sale under La. Rev. Civ. Code, ft 2505, provid- 
ing that the seller, in case of eviction, was en- 
titled to restitution of the price, except that 
this shall not be the case where the buyer, at 
the time of sale, was aware of the danger of 
eviction, and purchased at his peril. Meyer v. 
Farmer, 36 La. Ann. 785. 

In Fornlquet v. Forstall, 34 Miss. 87, where 
an administrator at his own sale had made a 
fraudulent combination with the purchaser to 
buy for the benefit of the administrator, and 
had sacrificed the property, and had colluded 
with subvendees to dispose of the same, it was 
held, in an action by the administrator de bonis 
non to recover the property, that he did not 
have to tender the purchase mouej', as such 
purchasers could not require that before the 
party entitled shall recover his just rights he 
shouVd be compelled to pay them what they 
have knowingly seen fit to pay in order to de- 
prive him of his property. 

In Hampton t. Hampton, 9 Tex. Civ. App. 
407, 29 S. W. 423, where a guardian's sale to 
his wife was set aside, under Tex. Rev. Stat I 
2582, providing that. If a guardian is the pur- 
chaser, directly or indirectly, the sale shall be 
void, and shall be set aside, as to whether or 
not the purchaser was entitled to a return of 
the purchase money was not decided. The 
court said : "Whether, under the terms of 
this statute, that character of decree could be 
entered, we need not decide. But it is not be- 
lieved that such conditions should be imposed 
where the sale is one forbidden by law, and 
those who have become interested were in- 
formed of the fact when they purchased ; and 
it does not appear that, assuming the gruardian 
had received the purchase money, the minors 
derived any benefit from the sale. Conceding 
that plaintiffs may have had recourse on the 
guardian and his sureties, we conclude that this 
fact would not interfere with their prosecution 
of this remedy, if they so elected." 

In other cases where bidding was prevented 
the purchaser was allowed a lien for his pur- 
chase money, without discusslnp the effect of 
fraud on the right of subrogation. 

An assignee of a rent note went to a tax- 
foreclosure sale to procure the title for one of 
the heirs. A lessee was present, and made ar- 
rangements to buy the pr()i)erty and protect the 
assignee, and he procured the title, but failed 
to carry out his contract for the heirs. The 
lessee purchased a 140-acre lease for a period 
of seven years, fairly worth $1,500, for which 
he paid but $455. The sale was set aside, and 
the lessee who had paid the purchase price of 
the renin 1 was held entitled to the equitable lien 
of a vendee to the extent of the sum he had paid. 
Gi) L. R. A. 

Stuart V. Brown, 135 Ind. 232, 34 N. R. 076. 
The court held that he was bound by his con- 
tract to purchase for the benefit of the heir, 
made with the heir's agent at the sale. This 
was a suit by the heirs to set aside the sale, 
and the purchaser contended that plaint ifTs 
were not entitled to equity by reason of their 
frauduJent agreement to prevent competition, 
and he claimed, in the event of the sale bein^ 
set aside, the right of subrogation. The court 
characterizes his purchase as fraudulent, but 
does not discuss the effect of that fraud upon 
his right of subrogation. 

So, where a bidder prevented competition by 
his agent representing that the purchase was 
for a home for an aged and dependent mother 
of the purchaser, and the property was sacri- 
ficed, the sale was held void, and was set aside 
as fraudulent, because such a purchase was con- 
trary to public policy. It was held that the 
purchaser was entitled to have tte purchase 
money refunded which had been applied to pay 
on complainant's debt, and that a lien should 
be allowed on the land for the same. Bunts 
V. Cole, 7 Blackf. 265, 41 Am. Dec. 226. The 
court does not discuss the effect of such conduct 
on the right of the purchaser to subrogation. 

So where an administrator bought real es- 
tate at his own sale, and a suit to set aside the 
sale was brought at the instance of the heirs, 
it was said that, where the administrator had 
been allowed to make lasting improvements 
without objection, "It may be good ground in 
equity for reimbursing him therefor out of the 
first moneys arising from resale of the property 
as was ordered by the court, but when this Is 
done he cannot equitably claim anything more." 
Potter V. Smith, 36 Ind. 231. 

A bill was filed by minors to set aside a 
guardian's sale where the purchaser had pre- 
vented bidding. The sale was set aside. It 
was held that the purchaser should be reim- 
bursed the payment made, which had been ap- 
plied to an existing mortgage and 6 per cent 
interest, but he was denied the right of subro- 
gatiou to the mortgage bearing 10 per cent 
interest. Devlne v. IJarkness, 117 III. 145. 7 
N. E. 52. The court said : 'Taying the mort- 
gage debt to the mortgagee was no more than 
paying the amount of It to the guardian, and 
was but paying appellant's bid for the land. 
The payment was one made in wrong, in the car- 
rying out of a wrongful purchase, and presents 
no rase for the application of the equitable 
doctrine of subrogation." The court does not 
discuss further than is stated above the effect 
on Subrogation of the fraud of the purchaser ; 
but the case seems to turn only on the proposi- 
tion as to whether he was to get 6 per cent, or 
whether he was entitled to the 10 per cent 
called for In the mortgage. ^ 

A sale under attachment .f four lots in a 
body, which were divisible and worth eight 
times the amount of the debt, was held to be 
fraudulent and a breach of trust on the part of 
the auditors, who were authorized to sell only 
so much of the land as was necessary to satisfy 
the debts of the plaintiff. It was held that the 
sale should be set aside with liberty to the own- 
ers to apply for an injunction in case the plain- 
tiff in attachment, who was the purchaser, upon 
being tendered the amount, refused to acknowl- 
edge satisfaction. Johuson y. Garrett, 16 N. 
J. Eq. 31. 

A purchase by an executor at an orphans* 
court sale for the payment of debts was held 
voidable by the heir, and the^^rchaserywas held 

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CowpEB V. Weaver's Aoministbatob. 


«DtitIed to be repaid the purchase money, which 
was applied to the payment of Judgments 
against the cestui que trust, who was an habit- 
aai drunkard, where these payments were as- 
ft^'Dtpd to bj his committee. And this also ap- 
plied to payments dut of the purchase money, 
made by oi*der of tlie orphans* court after the 
suit brought to set aside the sale. Beeson v. 
Beeson. l*a. 279. 

In Mclntyre v. Sanford, 89 N. Y. 634, it was 
held that N. Y. Code Civ. Proc. I 1440, as 
amended by Laws 1881, chap. 681, I 2, providing 
that. If the title of one claiming under a sher- 
ilTs deed sold on execution Is adjudged void, a 
Jndionent shall have no force unless the plain- 
tiff «hall pay the amount paid on the sale, did 
not apply where the purchaser and the sheriff 
had fraudulently colluded ; but in an equitable 
action to set aside the sale it was held that the 
plaintiff should refund to the purchaser the 
amount of the Judgment with interest. 

Under 2 N. Y. Uev. Stat. 326, i 62, provid- 
ing that no guardian of any infant party to the 
suit shall purchase any lands except for the 
beneiit of such Infant, and that all sales con- 
trary to this provision shall be void, a purchase 
<if infant's property at a partition sale was 
held void, and the purchaser was held entitled 
to the purchase money paid and interest, but 
was denied costs or expenses and damages, as 
thp purchase was void. Lefevre v. Laraway, 22 
Barb. 167. 

And in Mulford v. Bo wen, 9 N. J. Eq. 797, 
where an administrator was a purchaser at his 
own sale through another party, and the heirs 
brought ejectment, it was held that the pur- 
cba^r could maintain a bill in equity to restrain 
the ejectment suit until the equitable rights of 
th% purchaser could be ascertained. 

So, where an heir had recovered in eject- 
ment property sold by an administrator under 
a decree of the orphans' court for the payment 
of debts, and the administrator was the pur- 
chaser through another party, and the sale was 
fraudulent and void as against the heir, and the 
heir brought a bill for an accounting and par- 
tition, it was held that the purchaser had no 
ground of complaint where he was allowed his 
advances with interest. Obert v. Obert, 12 N. 
J. Eq. 423. 

In Barbour ▼. Morris, 6 B. Mon. 120, where 
land was sold under executions against the heirH 
and administrator, and the administrator col- 
luded with the purchaser to prevent competi- 
tion and to acquire the tract for their Joint 
benefit, and the sale was set aside as fraudulent, 
in a suit in equity it was held that the com- 
;>iainant should only be- granted equity upon 
rhe terms of doing equity, and that the pur- 
'.baser should be reimbursed the amount of the 
judgments extingul$<hed by the sale, deducting 
the amount of rents received. 

A purchase by an administrator of a head 
rii>ht, under nn order of the probate court al- 
lowing the administrator to .take the land for 
bis claim, was void, but it was held that tbo 
heirs must reimburse the purchaser before thoy 
*:• Did recover the land. Halscy v. Jones, 86 
Tex. 48«, 25 S. \V. 606. 

Purchase by guardian, see Campbell v. Lac- 
lede Gaslight Co. 84 Mo. 352, subdiv. III., d, 
1; purchase by administrator, see Jayne y. 
Bolsgerardp 39 Miss. 796, subdiv. III. d, 2. 

IV. Relief hy action 'against the debtor. 

The weight of authority holds that the pur- 
«9 L- R. A. 

chaser whose money has been used to extin- 
guish the debt of the defendant may maintain 
against the latter a suit in equity in the nature 
of assumpsit, and may recover from him the 
money paid, on the sale being set aside. This 
rule is applied notwithstanding the purchaser 
may have paid the money under a mistake of 
law. But relief was denied In a purchase of 
chattels where the purchaser failed to obtain 
possession, and It was not shown that the sher- 
ilT had paid out the money. 

So it was held that the purchaser could re- 
cover from the defendant in execution for 
whose benefit the purchase money had been 
paid, where property of defendant was sold at 
sheriff's sale, and the sale was invalid because 
the property was exempt as a homestead. It 
was further held that the purchaser had not 
waived his right by falling to plead In the 
ejectment suit, wherein he lost the property. 
Stone V. Darnell, 25 Tex. Supp. 430, 78 Am. 
Dec. 582. The court said : "Though a party 
may plead a demand in reconvention, he is not 
obliged to do so, nor is he precluded of his ac- 
tion by his failure so to plead." 

In an action by a purchaser at a sheriff's sale 
against the defendant for failure of considera- 
tion. It w^as held that the purchaser was en- 
titled to recover of the defendant the purchase 
money, where the sheriff had misdescribed the 
land, and the purchase mi.ney had been ap- 
plied to the payment of the Judgment. McLean 
V. Martin, 45 Mo. 393. The court said : "The 
plaintiff bought at a fair sale, and paid his 
money ; that money was regularly paid to the 
creditor, and went to extinguish the Judgment 
against the debtor. It was, then, so much 
paid for the use and benefit of the debtor. The 
debtor supposed that his land was sold, and sur- 
rendered it to the purchaser, who moved on it 
and made Improvements. Afterwards, ascer- 
taining the misdescription and finding the mis 
take, the debtor regains possession and now 
claims the land, and refuses to refund the 
money which the purchaser paid for his use. 
and which wns applied to the discbarge of his 
debts. In other words, he avails himself of the 
beneiits of the payment, and holds onto the land 
besides. The claim is grossly inequitable and 
unjust, and ought not to be allowed, and I see 
no reason why the action is not maintainable." 

So it was held that the purchaser could plead 
as an cqultnhle set-off for damages the purchase 
money paid by him, where a purchaser under a 
void execution sale was sued In trespass by the 
defendant, who was Insolvent. Geoghegan v. 
Ditto, 2 Met. (Ky.) 433, 74 Am. Dec. 413. 

And it was held that the purchaser was en- 
titled in equity to maintain an action against 
the Judgment debtor for the amount of his pur- 
chase. Hawkins v. Miller, 26 Ind. 173. In 
this case a mortgage foreclosure was held void. 
The court said : "The Judgment defendant was 
guilty of a wrong In refusing to pay his debt, 
lie persisted in that wrong by allowing process 
to Issue on the Judgment against him. He 
stood by and took no steps to have the process 
set aside, and allowed the sheriff's sale to take 
plate. The plaintiff in good faith paid his 
money. It Is true, under a mistake of law, but 
the defendant got the beneilt of that mistake ; 
he remained In the pos.«iessIon of the land sold, 
and finally defeated the plaintiff In the suit to 
recover possession of the premises. L'nder such 
circumslauces. this court is not Inclined to look 
after fancied distinctions which have no founda- 
tion in reason." 

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Kentucky Court of Appeals. 


A receiyer of a partnership sued one of a firm, 
but before levy the property was fraudulently 
conveyed. Execution was levied upon the prop- 
erty, and the other partner became the pur- 
chaser. In a suit by him to set aside the 
fraudulent conveyance a decree was had setting 
It aside, and also the sheriff's sale to the plain- 
tiff. On the question of subrogation, it was 
held that the purchaser was an ordinary vendee 
at sheriff's sale, and that the amount which be 
paid to the sheriff operated as a discharge pro 
tanto of the judgment, and that, the Judgment 
being satisfied, there could be no substitution. 
It was further held that, as the money advanced 
on the void sale was paid to the use of the exe- 
cution defendant, the administrator, and not 
the heir of plaintiff, was entitled to recover it. 
Itlchmond v. Marston, 15 Ind. 134. The court 
said : "The sheriff's sale being a nullity, the 
administrator of Marston may have the right, 
by suit against Uichmond [the defendant], to 
recover the money paid to the sheriff on the 
void sale." 

But a purchaser was held not entitled to 
maintain a suit against the debtor for the 
amount paid, where an execution levy was made 
on the interest of the defendant in slaves, and 
the sale was void because the property was not 
in the possession of the sheriff. Brown v. 
Lane, li) Tex. 203. This was because the pur- 
chaser did not get such possession or title as 
ever could have been matured into a good right, 
and it was not shown that the sheriff had paid 
the money, and it did not appear whether the 
purchaser gave a fair value, or b(<ught on specu- 
lation at an unconscionable price. This was an 
action by a purcha.ser to recover an undivided 
interest in certain slaves. The validity of the 
sale was attacked, and ihe plaintiff then 
claimed Judgment against the defendant for the 
amount he had pa*d, and which he alleged bad 
gone to discharge the indebtedness of the defend- 
ant in the execution. The court said : '*The 
extent to which our decisions go, so far, is that 
a bona tide purchaser, who has been sued to va- 
cate his title, will not be required to abandon 
his possession and title, until his purchase 
money Is refunded to him. It is necessarily Im- 
plied in this, that the sale is such as to vest 
the possession, either actually or constructively, 
in the purchaser ; that he paid money which 
was applied to the use of defendant ; that he 
paid a fair price. — such as would constitute a 
consideration in good con.sdence ; and generally 
that he should not be a participant in any fraud 
connected with the sale." 

Cases where the purchaser failed to secure 
the property because it was owned by a third 
person, and the purchaser sued the debtor, are 
not included in this note. 

V. Relief by action against the creditor. 

The weight of authority is that, in the event 
of the sale being set aside, and in the absence 
of other relief given by statute, the purchaser 
may recoeer the purchase money in an equitable 
action for money had and received against the 
creditor procuring the sale, on the ground of 
mistake and failure of consideration, and im- 
plied promise to return the same. The remedy 
against the creditor is also given in some states 
by statute. So where the creditor held another 
prior Hen, and did not disclose it at the sale, 
the purchaser was held entitled to have the 
sale set aside, and the creditor was compelled to 
kuh.u ol release his lieu. Uelief was refused 
Gl) L. K. A. 

where the remedy of subrogation was sufficient. 

So, the purchaser at a void execution sale 
was held entitled to recover, in an equitable ac- 
tion for money had and received, the amount of 
his purchase money from t)\e party who pro- 
cured the sale. Schwinger v. Ilickok, 53 N. Y. 
280. In this case on a foreclosure of a mort- 
gage by publication a personal deficiency jung- 
ment was taken without Jurisdiction. The 
court said that knowledge of the invalidity of 
process "will not be imputed to the purchaser 
at such sale in order to make out that the pay- 
ment was voluntary." 

And in Chapman v. Brooklyn, 40 N. T. 372. 
which was a suit by the purchaser against the 
city under a Judicial sale for taxes, which was 
void because the lots sold were not owned by 
the persons named as the owners, it was held 
that the purchaser could recover, applying the 
principle that, when the consideration appears 
to be valuable and sufHclent, but turns out to 1><^ 
wholly false, then a promise resting on this 
consideration is no longer obligatory, and the 
party paying money can recover it back. 

And In Ward v. Southerland, Peck (Tenn. I 
Appx., where the sale was void, the purchaser 
was held entitled to maintain a bill In equity 
against the plaintiff In execution to recover the 
purchase money on the ground of misstatements 
of the plaintiff In execution, and that the money 
was paid under a mistake. In this case the 
creditor obtained a Judgment, and after the 
death of the debtor issued a scI. fa. against the 
heirs without any executor, and on return of 
the s<'l. fa. had the execution awarded against 
the heirs, and then sold the Judgment to the 
purchaser on the representation that they ac- 
quired a good title, and the plaintiffs then pur- 
chased at the execution sale. 

And where a sale was had in partition, and 
no guardian ad litem had been appointed for 
an infant defendant, the purchaser was dis- 
charged from his bid, and held entitled to bis 
costs, as there was no fund out of which he 
could be paid. It was held to be proper prac- 
tice to compel the complainants to pay them in 
the tirst instance. Kohler v. Kohler, 2 Edw. 
Ch. 60. 

So a purchaser of land having paid the pur- 
chase money, and the sale having been set aside, 
was held entitled to a return of the money frook 
the parties by whom It was received. Salter v. 
Dunn, 1 Bush, 311. The court said: "But In 
the case of Bowman v. Melton, 2 Bibb, 151, tliis 
court held, where a mortgagee obtained a juiX^- 
ment of foreclosure and sale of the mortgaged 
property, and it was afterwards ascertained that 
the mortgagor did not own the property and the 
purchaser lost it, that the mortgagee was bound 
to refund the money to the purchaser. In such 
cases the property Is sold at the instance and 
by the procurement of the plaintiff, and by hts 
proceedings for that specific purpose, which is 
not the case under execution, when the levy and 
sale is the act of the officer of the law." 

After an administrator's sale the purchaser 
learned for the first time that a building on 
the land was partially on other land, and did 
not belong to the estate. The administrator 
retained $100, the first payment, and resold the 
land after acquiring a quitclaim deed for the 
land covered by the building. In an action by 
the purchaser against the administrator it was 
held to be no defense that the defendant had 
accounted for the money to the probate court' 
as belonging to the estate where he had knowl- 
edge of plaintiff's claim. This was on the 

Digitized by VjOOQIC 


CowpEB V. Weaver's Admizvistbatob. 


round of mutual mistake. McKay v. Coleman, 
S5 Mich. 60, 48 N. W. 203. Tbe court said : 
- Inder this state of facts, the plaintiff cannot. 
In the lan^age of the announcement made by 
the defendant, be held to be ^llty of default 
in not paylni; his bid. It Is clear that, under 
these circumstances, the defendant could not 
hflfe enforced payment, because he could not 
bimself fuliil the conditions of the sale as they 
vere mutually understood between them. The 
forfeiture of the money paid must be determined 
Ij the ability of the defendant to perform the 
contract as mutually understood. The Inabil- 
itj of the defendant to perform relieyed the 
plaintiff from the forfeiture.** 

A sale under execution was made of the 
«<iuity of redemption ;' but the fact that the 
judgment creditor held a mortgage also was not 
disclosed, although he was present at the sher- 
ilTs sale. It was held that tbe purchaser had 
t right to maintain an action to set aside the 
Mle. and to require the creditor to refund the 
purchase money or release his mortgage. Wol- 
fi rd V. I'helps, 2 J. J. Marsh. 31. 

And where the court required a bond condi- 
tioned for the repayment into court of the pur- 
chase money In the event of the confirmation of 
the Kale being reversed, and on the execution 
uf the bond the marshal paid the complainant 
from the purchase money received, and the case 
was reversed, it was held that the purchaser 
whose money had been wrongfully appropriated 
to the satisfaction of the judgment could main- 
tain an action upon the bond. Lamb v. Ewing, 
4 C C. A- 320, 12 U. 8. App. 11, 54 Fed. 269. 
In thiB case the Judgment creditors were non- 
residents, and the court said : "When, under 
thetie circumstances, the court was asked to pay 
out the money in its hands, It was at once ap- 
parent that by so doing the court, in the event 
the Judgment was held void, would be deprived 
of the power to cause restitution to be made 
to the proper parties, because both the fund 
and the parties might be beyond its control. 
To avoid this the court required the parties to 
execute the bond in question, whereby they be- 
came bound to repay the money in case the 
jadjmient against I^araaster should be held to 
be void, and thus the court continued its power 
to compel restitution to be made in case the 
Tl^ht thereto should arise. We find nothing 
in the action of the circuit court in this par- 
tii'uiar which was illegal in itself, or which Im- 
posed upon the Judgment creditors burdens of 
^iich a nature as to render the bond of no ef- 

And where the order of confirmation was va- 
rated the court said that, if the Judgment cred- 
itor received $30 from the purchaser, respect- 
ing which there was no finding, he became the 
debtor to the purchaser to that amount, and the 
purchaser might have a right to be compensated 
uiit of the money collected upon the Judgment. 
m*putron T. Young, 1.S4 U. S. 241, 33 L. ed. 
UJZ, 10 Sup. Ct. Rep. 530. 

A judgment and execution were declared void 
In proceedings instituted by the judgment cred- 
itor. It was held that the purchaser under 
sfich execution sale could maintain an action 
a^inst the creditor for the purchase money, 
under Mont Comp. Stat. 1887, Code Civ. Proc. 
f 347, providing that, if a purchaser of real 
pr< perty sold under execution be evicted in con- 
:Hn]ueDce of Irregularity in the proceeding con- 
.-c-rniDg tbe sale, he may recover the purchase 
trrice paid, with interest, from the Judgment 
creditor. Elling v. Harrington, 17 Mont. 322, 
»iy L. R. A. 

42 Pac. 851. The court also held that the pur- 
chaser was entitled to recover irrespective of 
the statute. 

W^here a purchaser brought suit to rescind 
the sale, and ten years had elapsed in endeavor- 
ing to perfect the title, it was held that the sale 
should be set aside, and the purchaser relieved ; 
and the case was remanded to the court below 
that an accounting be had and talcen between 
the parties, of the sums due and chargeable to 
each on account of the said sale, and for every 
proceeding according to the principles of equity. 
Myers v. Nourse, 5 Fla. 516. 

But in Holt V. Bason. 72 N. C. 308, a sale was 
made under an execution levied on lands of the 
testator on a judgment against an executor. A 
creditor by a prior Judgment against the tes> 
tator was the competing bidder. Thereafter an 
administrator de bonis noti, by order of the 
court, sold the land for a.ssets, and realized an 
Insufficient amount to pay the prior Judgment. 
The first purchaser sued the first Judgment 
creditor for inducing a void purchase of land by 
his bidding. It was held that It was a ques- 
tion for the Jury. The court said : "The plain- 
tiff does not aslK to be subrogated to the rights 
of Swepson, who has his money and is the only 
party benefited, for the obvious reason that 
prior Judgments will exhaust the fund before 
the Swepson judgment is reached. Scott v. 
Dunn. 21 N. C. (1 Dev. & B. Eq.) 42.-), 30 Am. 
Dec. 174. Nor does he bring his action under 
Rev. Code, chap. 4r,, | 27, against the defendant 
in the execution, because the estate is Insolvent, 
and can afford him no relief. I^ws v. Thomp- 
son, 49 N. C. (4 Jones, L.) 104. Nor yet can 
he bring his case within Saunderson v. Hal lance, 
55 N. C. (2 Jones, Eq.) 322, 67 Am. Dec. 218. 
where the part owner of land stands by and 
sees it sold by a trustee as the land of another, 
and permits the purchaser to pay for it and 
talie a deed, under the belief that he is getting 
a good title. But Holt is a purchaser at execu- 
tion sale. The rule there is that the sheriff 
sells only the interest of the defendant in the 
execution, if the defendant has an interest, 
well and good ; if he has none, it Is the purchas- 
er's own loolc out. for he buys at his peril, and, 
as a general rule, he Is entitled to no relief as 
against creditors. In this case It would seem 
that the plaintiff, by his own showing, was 
gtiilty of gross neglect of h plain duty." 

A foreclosure was had, to which the grantee 
owning the legal title was not a party, and a 
personal judgment was rendered against the 
mortgagor by publication. The sale was void, 
and it was held that the purchaser could not 
maintain an independent action against the 
plaintiffs In the forecloHure for money had and 
received, but that he must seeic relief In the 
foreclosure suit, and on his application the 
court could direct the sale to l)e set aside, and 
satisfaction canceled, and authorize a supple- 
mental bill for a resale to be tiled and condnctod 
In the names of the complainants In that suit 
for the plaintiff's l)eneflt. Boggs v. Fowler, 16 
Cal. 550, 76 Am. Dec. 561. 

In Abadie v. Ix)bero. 36 Cal. 390, where It 
was held that a purchaser at a sheriff's sale 
was not entitled upon his own motion, made in 
his own name, to have the judgment upon which 
the order of sale was issued vacated, and him 
self substituted as plaintiff, It was said : "It 
IS true a dictum Is found in Boggs v. Fowler, 16 
Col. 566. 70 Am. Dec. 561, to the effect that, 
upon the application of a purchaser, the court 
may not only direct the sale to be set aside and 

Digitized by 



Kentucky Court of AppEAUi. 


the satisfaction canceled, but also 'authorize a 
supplemental bill for a resale of the premises to 
be tiled and conducted in the names of the com- 
plainants In that suit,' for the benefit of the 
purchaser ; but no authority is cited for the lat- 
ter proposition, and none, f?olng so far, has fall- 
en under our observation." 

In Wood V. (ienet. 8 Paige, 137, which was 
an action by a purchaser against a feme covert 
for the surplus money received by her husband 
on a sale on a Judgment against her as heir, 
and where it was held that she could not be 
made personally liable although the sale was 
found to be invalid, It was said that the bill was 
not framed to obtain relief under 1 N. Y. Rev. 
Laws 1813, p. 504, providing that. If any pur- 
chaser of lands upon any execution shall be 
evicted on account of any Irregularity in the 
procpodings, such person may have a writ out of 
chancery to the supreme court, who shall warn 
the party or parties at whose suit, or for whose 
benefit, the lands were sold, as the party 
against whom the execution issued, or their 
heirs, executors, or admin istrntors. to show 
cause, and may award the plaintiff judgment in 
execution against him who ougm to repay the 
name. And the court further said that 2 N, Y. 
Rev. Stat. 376, ff (G8) 72, which was In force 
at this time, gave to the purchaser, who was 
evicted by reason of the reversal of the judg- 
ment upon which the real estate was sold, a 
remedy against the party for whose benefit the 
same was sold. In a suit at law to recover back 
the purchase money with Interest. 

VI. Relief by action against the sheriff. 

It seems that the sherKT is liable to any party 
Injured in consequence of a breach of any of the 
the duties connected with his office. This is ap- 
plied to the right of the purchaser, and it Is 
held that he may recover from the sherifT the 
purchase money where the sale Is avoided by 
reason of irregularities of the officer conducting 
the same : but, where the purchaser had actual 
knowledge of the irregularities, it Is held that 
he cannot maintain the action. 

In Ilighiower v. llandlln, 27 Ark. 20. a sale 
was set aside because the execution was void, 
and (he sale was made six days after the execu- 
tion should have been returned. The court 
said : "While It is not incumbent upon bid- 
ders and purchasers, at Judicial sales, to In- 
quire Into any Irregularity which may have 
been permitted by the court rendering the j«ul>;- 
ment, or the clerk In Issuing the execution, if It 
Is regular upon its face, yet. If for any cause 
the proceedings of either should be declared 
void, by competent authority, he could not take 
anything by reason of such sale, but would have 
recourse upon the sheriff, who made the sale, 
for the money he paid at It." 

So, where property was not seized at all, and 
the purchaser wa.s evicted on the ground that 
the sheriffs sale was a nullity, It was held that 
the sheriff must Indemnify the purchaser. 
Frie.llander v. Bell, 17 La. Ann. 42. 

And a purchaser of a runaway slave sold by 
a sheriff was held entitled to recover damages 
where? the sale was invalid because not adver- 
tised as required by law. Fleming v. Lockhart, 
.10 Mart. (La.) 3U8. 

.\ i)urchasor al an execution sale under a 
j'ldLrriu'nt void because rendered against a de- 
rojiMMl jiarty was held entitled to recover from 
the sheriff so much of the purchase money as 
00 L. 11. A. 

had not been paid to the plaintiff In the exe 
cation. Bragg v, Thompson, 19 S. C. 572. 

A sheriff under execution sold real estate, and 
the purchaser paid into the sheriff's hands 5;«20. 
and then refused to complete the purchase on 
the ground that the sale was irregular, and the 
sheriff resold the property to another party. 
The tirst sale having l)een set aside as Irregular, 
an action was brought by the purchaser against 
the sheriff. This was held to be an action fur 
the nonpayment of money collected upon execu 
tlon, within N. Y. act 1871, chap. 733, f 2, ex 
cepting such actions from the operation of that 
statute which required actions against sheriffs 
to be brought within one year from the time the 
cause of action accrued. It was further held 
that the sheriff could not retain the expenses 
of the sale. Bowne v. O'Brien, 5 Daly, 474. 

But where the purchaser had notice of the Ir- 
regularities of the sale he was refused relief 
against the sheriff. 

A sheriff held several executions of different 
priorities, and sold the property under the prior 
execution for enough to satisfy the first two 
executions, but, Instead of satisfying the second 
execution, applied the money to a junior execu- 
tion, and resold another piece of land under 
the execution which should have been satisfied. 
This sale was vacated In a suit brought by the 
execution defendant against the purchaser, and 
It was held that the purchaser could not main- 
tain an action on the sheriff's bond to recover 
the purchase money of such second sale. State 
ex rel. Sage v. Prime, 54 Ind. 450. In this case 
the court said : "But In the case at bar the 
purchaser under the execution Issued on the 
next to the oldest judgment, which was next to 
the oldest lien on the real estate of the Judg 
ment defendant, had actual and constructive 
notice of all the facts. He was the purchaser 
at the sales made by the sheriff under the exe^ 
cutlon Issued on the oldest judgment, which 
was the oldest Hen on said real estate. He 
knew, therefore, or had the means of knowing, 
and was bound to know, that the proceeds of 
such sale were sufficient to satisfy, not only 
the said oldest judgment, but also the said next 
oldest judgment. He knew, also, or had the 
means of knowing, and was bound to know, 
that the surplus of the said proceeds of sncn 
sales were in law applicable to, and by law sat- 
isfied, the said next oldest judgment. When, 
therefore, at the sheriff's sale under the execu- 
tion Issued on the said next oldest judgment, 
the said purchaser bid off and paid for the said 
parcel of said real estate sold thereunder, he 
knew, or had the means of knowing, and was 
hound to know, that the said next oldest Judg- 
ment had been by law paid off and satisfied, and 
the said sale thereunder was an absolute nul- 
lity. In such a case as this. It Is very clear to 
our minds that the purchaser cannot, nor can 
the assignee of his certificate of purchase, by 
any possibility, have any cause of action 
against the sheriff or his sureties, on his official 
bond, for the recovery of the purchase money. 
This conclusion Is in entire harmony with the 
doctrine or the case of State ex rel. Wllber v. 
Salyers, 19 Ind. 432. although the facts of the 
two cases are somewhat dissimilar." 

Cases where the purchase is by the creditor 
are not Intended to be Included In this note. 

VII. Summary. 

The purchaser Is released from liability on 
the sale being set aside, and will be released 

Digitized by 



CowPEB V. Weaveb's Abministbatob. 


where there Is a resale to hold him liable for a 
<!''>:ioieDcy od failure to comply with his bid, 
if be has been led to belleTe that the first sale 
«a9 abandoned, or where proper steps are not 
uken to hold him liable. In Enj;land, Ireland, 
<^aDada, and in New York and some other states, 
'be practice In Judicial sales is to allow the pur- 
>'hri>t?r to show before confirmation that the 
title if: defective, and thereupon his deposit will 
V returned and the sale set aside. On setting 
a .«ale aside, or on a recovery in ejectment from 
tbe purchaser at a void sale, he is generally al' 
• wfil reimbursement or subrogation. This Is on 
The broad equitable principle that, having ad- 
Tanrod money under a colorable right to pay the 
•Hit of another, he is entitled to be recom- 
(i«as4>d : and In working this out other equitable 
prlnclplea are applied. — "that he who seeks 
'^julty must do equity." and what is called the 
doctrine of "compensation,** and "substitution," 
«hich is commonly known as subrogation. In 
stares which keep common-law and chancery 
practice distinct, the remedy Is for the pur- 
chaser to have the Judgment in ejectment en- 
:otned until reimbursed. But where the relief 
is ;?ranted In common-law courts he should set 
np and claim a lien for the purchase money in 
tbe event of eviction. The remedy of relroburse- 
tQ«*Dt or sabrogation is also usually allowed In 
r-:iM.'« where guardians' and administrators' 
>aie» are held void. Some states deny relief In 
This class of cases, unless the purchase money 
-*as used to pay claims which were a charge on 
The land, as In Illinois. Michigan, and Ohio. So 
relief is dented in some cases where the money 

is not traced to a use beneficial for the estate : 
but In others it is held that the purchaser is 
secure if the money Is paid to the guardian. In 
some states relief Is provided by statiite ; but in 
New York such a btatute attempting to transfer 
the title to the purchaser on tbe nonreturn of 
the purchase money was held unconstitutional. 
It seems that where sales are had on personal 
Judgments taken against nonresidents on pub- 
lication service the purchaser Is not entitled to 
restitution or subrogation. So where the pur- 
chaser Is a party to a fraudulent coml)inaiion 
to procure the property at a sacrifice by pre- 
venting bidding. But In the latter case relief 
has been granted in some cases without dlscus.s- 
Ing the question of fraud, and without noti- 
cing the cases that refuse relief. The purchaser 
is held entitled to maintain an action In equity 
in the nature of assumpsit against the debtor 
where the purchase money was used to extin- 
guish a debt of the defendant, and the sale is 
held void. And in the absence of statutory re- 
lief It seems that the purchaser may maintain 
an equitable action for money had and received, 
against the creditor procuring the sale. This 
remedy Is given by statute In some cases. Where 
the sale Is invalid by reason of negligence on the 
part of the sherilT, and the purchaser had no 
notice of the same, the sheriff may be liable to 
him in damages for the purchase money. 

<"asea where the creditor Is the purchaser, 
and cases of ordinary tax sales, are not intended 
to be included in this note. I. T. 


BOARD OF TRADE of the City of Chicago, 


(G4 C. C. A. 669, 130 Fed. 507.) 

1. A property rl^ht In prlee Quotations 
nratliered by n board of trade Is not 
destroyed by the facts that a large per- 
centage of the business done under its aus- 
pices consists of gambling transactions, or 
that the news is susceptible of bad, as well 
a.u good. uses. 

2. Tbe fact that a board of trade per- 
Btlta icanibllnflr transactions within Its 
exchange hall does not deprive it of the 
riuht to resort to equity to prevent wrongful 
di.^r<eminatIon of the quotations of prices ut 
which sales are made, gathered and sent out 
by !t. 

(April 12. 1904.) 

\ PPEAL. by plaintifT from a decree of the 
-tA Circuit Court of the United States for 

the District of Indiana dismissing a bill 
filed to enjoin defendants from making use 
of complainant's stock quotations. Re- 

Statement by Baker, Circuit .Tudnre: 

On final hearing, appellant's bill to en- 
join appellees from purloining its contin- 
uous quotations was dismissed for want of 

Appellees discuss the questions whetlior 
the quotations are property, and whether, if 
80, appellant lost its proprietary rijjht by its 
method of giving them out: but that part 
of the case is ruled in this court by the do 
cisions in Illinois Commission Co. v. Cleve- 
land Telcg. Co. .56 C. C. A. 205, 119 Fed. 
301, and Sullivan v. Postal Telcg. Cable Co. 
61 C. C. A. 1, 123 Fed. 411. 

There is, however, one further matter 
that requires presentation and decision. It 
pertains to the defense that appellant has 
no standing in a court of equity for either 

Note. — As to property right in market quo- 
*atk>tui. see also. In this series. National Tele- 
graph News Co. V. Western U. Teleg. Co. 60 
r^ R. A- 805. I 

As to property right in compilation of facts | 
Vuh reference to contemplated buildings and | 
jnpn^vements made for use of contractors, see i 
♦;'♦ L- R. A. 

F. W. Dodge Co. v. Construction Information 
Co. 60 L. R. A. 810. 

As to property right in article capable of be- 
ing used for gnmbliug purposes, see also, in this 
series, Gulf, C. & S. F. R. Co. v. Johnson. 1 L. 
U. A. 730, and Edwards v. American Exp. Co. 
03 L. R. A. 467. 

Digitized by 



United States Circuit CJoubt of Appeals. 


or both of two reasons : That the quotations 
are contraband, and may be seized by anyone 
with impunity; that appellant, even if the 
quotations themselves are not contraband, 
comes into court with unclean hands, in 
this: That it seeks to exclude all others 
from using property (the quotations) which 
might be put to good uses, in order that it 
may aid its members in maintaining the 
gambling in grains and provisions which 
it permits to be carried on in its exchange 

Respecting the facts of this defense, the 
master found as follows: 

"The transactions conducted in the 'pits' 
of the complainant association, while they 
are of the same general character, are di- 
visible into two classes, which are described 
by the members of the Board of Trade as 
'hedging' transactions and 'speculating' 
transactions, respectively. Of the members 
of the complainant association who are en- 
gaged in business in the exchange hall, the 
number conducting speculative transactions 
is between one third and one half of the 
total, and practically all of such members 
conduct a hedging business. 

••The principals who are engaged in hedg- 
ing transactions are, generally speaking, 
cither grain merchants, millers, or manu- 
facturers of grain products. The method of 
Huch principals is this: When they have 
bought grain in the country, or in city 
warehouses, which they propose to hold for 
future sales to domestic or foreign pur- 
chasers, they at once sell in the pits of the 
complainant association an equal amount of 
grain; or, on the other hand, if they have 
sold to domestic or foreign purchasers grain 
or grain products for future delivery, they 
at once buy in the pits of the complainant 
association an equal amount of grain for 
future delivery at times corresponding with 
the times of their selling contracts. And 
thus, when they have contracts of purchase, 
they have contracts of sale, for future de- 
livery in the pits, practically even with 
their purchases; and, if they have contracts 
of sale with domestic or foreign purchasers, 
they have contracts of purchase, for future 
delivery in the pits, practically even with 
such contracts of sale. The object of such 
hedging is to insure against loss by fluc- 
tuation in the market in tlie commodity 
which the principal is carrying, or which 
he has sold in advance of purchase and man- 
ufacture upon a time contract. A hedge 
must always be against a cash commodity. 

'*A speculative transaction is not based 
upon a cash commodity primarily. In ef- 
fect, it is based upon the confidence which, 
on the one hand, the seller of the commod- 
ity for future delivery has in his |)ersonal 
opinion that the price of the commodity sold 
G!) L. R. A. 

will by the time of delivery have so declined 
that he can purchase the commodity for 
less than his selling price, and thus make a 
profit, and which, on the other hand, the 
buyer has in his personal opinion that the 
price of the commodity bought will so ad- 
vance by the time of delivery that the com- 
modity bought will be worth more at th«* 
time of delivery than it was at the time of 
purchase, and that he will thus have a prof- 
it. It is possible, under the rules, usages, and 
practice of the complainant association, ior 
the seller and the buyer, respectively, it" 
either changes his opinion, to buy or sell 
in the 'pits' the commodity which he has 
previously sold or bought, as the case may 
be, for the same time of delivery. \VhiI«' 
this procedure is in form the same as hedg- 
ing, it is not designated as *hedging,' but is 
styled 'spreading.' It is also possible, un- 
der the rules, usages, and practices of tin- 
complainant association, for a member of 
the complainant association to make such 
counter contract of purchase or sale dur- 
ing the same day that he has made an origi- 
nal contract of sale or purchase, and thus, 
within the day or within a few days, to 
have his advantage of profit or to adju>t 
his disadvantage of loss. Such a course of 
business is designated 'scalping.' 

"The evidence does not contain sufficient 
data upon which to predicate an estimate 
of the aggregate volume of business con- 
ducted in said pits daily, monthly, or yearly. 
It does appear, however, that the volume of 
such business is enormous; one firm con- 
ducted transactions in wheat dally aggr*»- 
gating 1,500,000 to 2,000,000 bushels, and in 
com 1,000,000 bushels daily; another firm'?% 
transactions in wheat daily amounted to 
0,000,000 bushels; a third* firm's transac- 
tions in wheat daily amounted to 4,000.000 
bushels; a fourth firm's transaction*^ 
amounted to 1,000,000 bushels daily; a fiftli 
firm's transactions in all grain amounted 
to 1,800,000 bushels daily; and a sixth 
firm's transactions in all grain amounted to 
•2,000,000 bushels daily. While it is true 
that the business of these six firms in the 
pits is much larger than the business of any 
other six firms conducting transactions in 
the pits, and that it would not be proper to 
say that the average business is a proper 
average of each of the persons conducting 
transactions in the pits, it is nevertheless 
true that it is fairly deducible from the 
evidence that the aggregate business t^an^- 
action in grain was largely in excess of th«» 
total wheat and corn production of the en- 
tire United States during either of the year^ 
1900 and 1901, and was many times over the 
entire receipts in Chicago of grain during 
each of said two years of 1900 and 1901. 
and, of such receipts in Chicago, less than 

Digitized by VjOOQIC 


BoASD OF Trade v. L. A. Kinsey Ck>. 


20 per cent inspected up to grades of grain 
which could be delivered upon time con- 
tracts made by said sales and purchases in 
the pits. It is also true that a decrease in 
the total grain productions of the United 
Sutes does not cause a proportionate de- 
crease in the volume of business done in the 
pits' of the complainant association, but, 
on the contrary, such business is larger dur- 
ing a year in which there is a shortage in 
the grain crop. 

''Under the rules, usages, and practice of 
the complainant association, all time con- 
tracts made in the 'pits' are carried until 
it is possible to close them as between mem- 
IxTs of the complainant association by either 
i»no of three methods of settlement, namely, 
the method called 'direct settlement,* the 
method called 'rings* or 'ringing out,* and 
the method of delivery by delivering ware- 
house receipts physically or 'by notice.' 

-Most time contracts made in the 'pits* 
are adjusted as between members of the 
<i>mplainant association, before the speci- 
Hed time of delivery arrives, by either the 
first or the second of the above-named meth- 
fHla. Direct settlements are effected by off- 
^•tting similar contracts at the close of the 
ImsinesB hours of each day in the following 
manner: As soon as is practicable after 
the close of business in the 'pits,' each brok- 
<*r (individual, firm, or corporation) con- 
ducting business in the 'pits' takes from the 
day's transactions on his books the contracts 
similar as to amount and time of delivery to 
iTiunter contracts made with other members 
of the complainant association, and ascer- 
t.iins therefrom the difference of the aggre- 
irate prices of such similar contracts, and, 
if the difference be in his favor, the amount 
of such difference is charged to the other 
party in such counter contracts, and, if the 
difference is against him, such difference is 
<»redited to the other party to such counter 
<i>ntract. The following is a simple illus- 
tration: If, during the day, broker A. has 
sold to broker B 5,000 bushels of December 
wlieat at 75 cents per bushel, and broker B 
has sold to broker A 5,000 bushels of Decem- 
\t^r wheat at 76 cents per bushel, after off- 
-^tting the contracts at 75 cents per bushel, 
there is a difference in B*s favor of 1 cent 
on each bushel, or $50. This offsetting dif- 
ference in cash is placed as a debit or credit, 
a.H the case may be, upon the clearing-house 
*heet, hereinafter de8cril)ed, of the respec- 
tive brokers, parties to said counter or off- 
^tting contracts. 

'*The 'ring* method of settlement is as 
follow: Each broker (person, firm, or cor- 
poration) conducting business in the 'pits' 
has an employee who is called a 'settlement 
-olerk,* who keeps a record of all his em- 
ployer's transactions in the^'pits.' The com- 
«y*L. R. A. 

plainant association furnishes a room 
wherein all of such settlement clerks meet 
at stated hours each day and compare their 
respective books, called 'settlement books,* 
which are required by the complainant asso- 
ciation to be kept by each broker. Upon 
comparing their respective books, said set- 
tlement clerks ascertain what, if any, out- 
standing time contracts may be offset by 
some other corresponding time contract 
made by the parties with other members of 
the association, and which of such contracts 
are, by consent of the parties thereto, per- 
mitted to be offset, and thereupon, under 
the rules of the complainant association, are 
deemed to have been settled, provided the 
requirements of §§ 6, 7, 8, and 9 of rule 22 
of the complain«int association are met, as 
therein provided, with reference to the clear- 
ing-house sheet and other details of settle- 
ment therein specified. . . . 

"Theoretically, and in bare outline, an il- 
lustration of the 'ringing out' method is ns 
follows: Broker A sells to broker B 5,000 
bushels May wheat; broker B sells to broker 
C the same amount ; broker C sells to broker 
D the same amount; and broker D sells to 
broker A the same amount; by consent of 
brokers A, B, C, and D, all of these time 
contracts are deemed discharged, and by no- 
vation there is substituted a contract where- 
in broker A, the initial seller in the series 
of discharged contracts, sells to broker D, 
the last buyer in the series of discharged 
contracts. The clearing-house sheets of the 
complainant association in evidence in this 
suit show that the actual process of 'ringing 
out* time contracts by elimination and sub- 
stitution is much more complicated than 
the outline illustration, but that illustra- 
tion exhibits the principle of the process. 
Among the daily transactions in complain- 
ant*s 'pits' there are 'hedging' contracts, 
'spreads,' and 'scalping' contracts, and all 
of these forms of time contracts are adjust- 
ed by both the 'direct' method and the 'ring* 
method of settlement. Upon the question 
what part of all the transactions in tlie pits 
are adjusted by the 'direct' method and the 
'ring' method of settlement, the evidence is 
not very satisfactory. It tends to show, 
however, and I accordingly so find, that at 
least three fourths of the total transactions 
in the pits are adjusted by the 'direct' and 
'ring' method of settlement. 

"In the event that said time contracts 
cannot be settled by either the 'direct' meth- 
od or the 'ring' method, they are and must 
be closed by a third method, namely, de- 
livery under the rules and usages of the 
complainant association. Said rules are as 

" 'Rule 21 — Section 1. All deliveries upon 
contracts for grain or flaxseed unjess other- 
Digitized by VjOOQIC 


United States Cikcuit Coubt of Appeals. 


wise expressly provided, shall be made by 
tender of regular warehouse receipts.' . . . 

"The rules orf the complainant association 
do not permit any persons other than mem- 
bers of said association to make 'time* con- 
tracts upon the floor of the exchange hall, 
and all 'time' contracts made in the pits are 
contracts between the members of the com- 
plainant association, who are in said trans- 
actions respectively sellers and buyers. The 
rules of the complainant association permit 
meml)ers of said association, as between 
themselves and nonmembers, to act as brok- 
ers in 'time* contracts made in the pits. In 
case a member of the complainant associa- 
tion, in making a 'time' contract in the pits, 
acts as a broker for an undisclosed princi- 
pal, if such contract is settled by either the 
'direct' method or the 'ring' method, such 
settlement does not discharge it, so far as 
such undisclosed principal is concerned, as 
between him and his broker, but the latter 
is required under complainant's rules to sub- 
stitute a duplicate 'time' contract with the 
two elements of identity, namely, like 
amount of grain or other commodity, and 
like date of delivery, but not like price. If 
such substituted contract is not a duplicate, 
but differs from the original in price, the 
broker becomes principal as to difference in 
the prices between the original and the sub- 
stituted contract, and, if it is impossible for 
«uch broker to substitute either a duplicate 
or a similar time contract, the broker be- 
comes principal as to the entire time con- 
tract, instead of the original principal with 
whom he as broker, in behalf of his own 
undisclosed principal, entered into said orig- 
inal contract. 

"The system of 'hedging' in the pits has 
a commercial influence which is favorable 
both to the interest of the producer and the 
consumer, in that the large cash grain 
houses, which conduct transactions in com- 
plainant's enchange hall, by reason of 
the risk to them from market fluctuations 
being decreased through 'hedges,' are able 
to take, and do take, a smaller margin of 
profit, and thus they pay to the producer 
a higher price and sell to the consumer at 
a lower price. The person taking the side 
of such hedging contract opposite of that 
to such grain house is the person who as- 
sumes the risk. 

"The 'direct' method of settlement and 
the 'ring' method of settlement is not only 
an advantage to the members of the com- 
plainant association, in that it relieves them 
from the responsibility of carrying their 
contracts with other members of the com- 
plainant association, but they have, added 
to this advantage, the benefit of the margins 
deposited with them by the undisclosed prin- 
cipals for whom they act as brokers. • • • 
69 L. R, A. 

"Section 8 of rule 4 of the complainant 
association is as follows: 

" 'Sec. 8. Any member of the association 
who shall be interested or associated in busi- 
ness with, or who shall act as the repre- 
sentative of, or who shall knowingly execute 
any order or orders for the account of, any 
organization, firm, or individual engaged in 
the business of dealing in differences on the 
iluctuations in the market price of any com- 
modity, — without a bona fide purchase and 
sale of property for an actual delivery, — 
shall be deemed guilty of unmercantile con- 
duct, which renders him unworthy to be a 
member of the association; and upon com- 
plaint to and conviction thereof by the 
board of directors, he shall be expelled from 
membership in the association.' , . . 

"The complainant association has pro- 
scribed no method or means which shall 
be employed by members of said association 
for the purpose of ascertaining the intent 
of their respective customers with respect 
to the delivery or nondelivery of the com- 
modity covered by any time contract. 

"Every member of the complainant asso- 
ciation acting in the pits as a broker for a 
nonmember customer requires from such cus- 
tomer a deposit as security in each trans- 
action conducted by him, and this fact is 
within the knowledge of the directors and 
executive officers of the complainant asso- 
ciation. The rules of the complainant asso- 
ciation authorize the members of said asso- 
ciation who act as brokers to charge brok- 
er's commissions in amounts fixed by sucli 
rules. One of such commission charges is 
expressed in part as follows: 

" 'For the purchase or sale and for the 
purchase and sale of property for future de- 
livery, whether the contract for purchase or 
for sale be first made as follows: . . .' 

"Using a member of the complainant as- 
sociation as his broker, a nonmember there- 
of may become a party to a time contract 
as buyer or seller, and at any time before 
the date of required delivery he may become 
a party to another contract in which he 
takes the opposite side to that held by him 
in the first-mentioned contract. Such coun- 
ter or reverse time contract may be author- 
ized in the same order which authorizes the 
first contract, by including in said order a 
so-called 'stop-loss' order. When such con- 
tracts are made they may be settled, and are 
often so settled, as between the member of 
the complainant association who acted as 
broker and his nonmember customer, by the 
payment of the difference between the con- 
tract prices. The fact that such is the cus- 
tom is a fact well known to the directors 
and executive officers of the complainant 

"The rules of the complainant aaaociation 
Digitized by VjX3C 


BoABD OF Trade v. L. A. Kinset Co. 


provide for settlements of time contracts 
made in the pits when the seller does not 
deliver the property on the last day of the 
month of the stipulated delivery — the rules 
and usages of the complainant association 
fix such last day of the month as final day 
of delivery — by allowing the purchasers the 
privilege of electing: BMrst, to consider the 
contract forfeited; second, to purchase the 
property on the market for account of the 
seller at 1:15 o'clock of the next business 
day: or, third, by requiring a settlement 
with the seller at the average market price 
of the property sold on the last day of the 
month of delivery." 

The master drew conclusions favorable to 
appellant, and recommended a decree in ac- 
cordance with the prayer of the bill. 

The court, reviewing the matter on ex- 
ceptions, sustained the master's findings of 
fact, except that the percentage of trans- 
actions in which no actual deliveries were 
made was nearer 95 than 76; but disagreed 
with the ma8ter*s conclusions (125 Fed. 
72), and dismissed the bill for want of 

Argued before Jenkins, Orosscup, and 
Baker, Circuit Judges. 

Mr, B. P. TXTilliams, with Mr, Henrj 
S. Robbii&fl, for appellant: 

The doctrine of clean hands is not appli- 

Fuller V. Berger, 65 L. R. A. 381, 56 C. C. 
A- .588, 120 Fed. 274; Chicago v. Union 
i^iork Yards d Transit Co. 164 111. 224, 35 
L. R. A. 281, 45 N. E. 430; Bateman v. 
Fargason, 2 Flipp. 660, 4 Fed. 32; Anslcy 
T. Wilson, 50 Ga. 421 ; Langdon v. Temple- 
ton, 66 Vt. 173, 28 Atl. 866; 1 Pom. Eq. 
Jar. § 399. 

A court of equity cannot justify its re- 
fusal to protect appellant's property in its 
quotations upon the ground merely that it 
is violating a criminal statute by permit- 
ting illegal transactions to be made within 
iu exchange hall. The stock quotations 
were property. 

Xational Teleg. Netcs Co. v. Western U. 
Teieg. Co. 60 L. R. A. 805, 56 C. C. A. 198, 
119 Fed. 294; Vew York d C. Grain d 
i^tock Exchange v. Board of Trade, 127 111. 
153, 2 L. R. A. 411, 11 Am. St. Rep. 107, 
10 N. E. 855. 

Messrs. Jaeob J. Kern, John A. 
Bro^m, £• D. Cniin.paoker, Peter 
Crampacker, A. G. Smitli, Bernard 
Kotrhljt and Smiley N. Clianibers, with 
Ifr. Cliarle* B. Fnllen, for appellees: 

The quotations in controversy immediate- 
ly cease to be the property of the Board of 
Trade upon the publication thereof in the 
manner and form in which the same is 
»hown to have been done. 
69 L. R. A. 

The Board of Trade has no property in- 
terest in the quotations made up of trans- 
actions in its pits when said transactions 
are not based upon actual bona fide con- 
tracts of purchase and sale of the com- 
modity dealt in. 

Counsel man v. Reichart, 103 Iowa, 430, 
72 N. W. 490 ; First Nat. Bank v. Oskaloosa 
Packing Co. 66 Iowa, 41, 23 N. VV. 255. 

After the trades are rung out or settled 
upon the Board of Trade, the customer of 
the member has no particular person to 
whom he can look for fulfilment of his con- 
tract, even if he has actually made a gen- . 
nine, bona fide contract. 

Higgins v. McCrea, 116 U. S. 671, 29 L. 
ed. 764, 6 Sup. Ct. Rep. 557. 

It makes no diflference that a bet or wager 
is made to assume the form of a contract. 
Gambling is none the less such because it 
is carried on in the form or guise of legiti- 
mate trade. 

Irjcin V. Williar, 110 U. S. 499, 28 L. ed. 
225. 4 Sup. Ct. Rep. 160; Melchert v. Amer- 
ican U. Tcleg. Co. 3 McCrary, 521, 11 Fed. 
193; Barnard v. Backhaus, 52 Wis. 593, 
6 N. W. 252, 9 N. W. 595; Dows v. Glas- 
peU 4 N. D. 251, 60 N. W. 60; Whitesides 
v. Hunt, 97 Tnd. 191, 49 Am. Rep. 441; Ed- 
wards V. Horffmghoff, 38 Fed. 639; Emhrey 
V. Jemison, 131 U. S. 336, 33 L. ed. 172, 9 
Sup. Ct. Rep. 776; Mohr v. Miesem, 47 
Minn. 228, 49 X. W. 862 ; Pickering v. Cease, 
79 111. 328: Counsclman v. Reichart, 103 
Iowa, 430. 72 N. W. 490. 

The Board of Trade in itself, in connec- 
tion with its quotations, does not present 
such a party, or such a subject-matter, to 
the court as can appeal to the conscience of 
the chancellor. 

8ohy V. People, 134 111. 68, 25 N. E. 109 ; 
Liverpool d L. d O. Ins. Co. v. Clunie, 88 
Fed. 160; Woodward v. Woodward, 41 N. J. 
Eq. 224, 4 Atl. 424 ; 1 Pom. Eq. Jur. 399. 

It is the evil practice and wrong con- 
duct of the ap])ellant in permitting and pro- 
moting transactions which go to make up its 
quotations, which is involved in this case. 

Delaware, L. d W. R. Co. v. Frank, 110 
Fed. 689 : Manhattan Medicine Co. v. Wood, 
108 U. S. 18, 27 L. ed. 706, 2 Sup. Ct. Rep. 
436; Lawrence Mfg Co. v. Tennessee Mfg. 
Co. 31 Fed. 776; Krauss v. Jos. R. Peebles* 
Sons Co. 58 Fed. 585; Symonds v. Jones, 82 
Me. 302, 8 L. R. A. 570, 17 Am. St. Rep. 
485, 19 Atl. 820; Joseph v. Macowsky, 96 
Cal. 518, 19 L. R. A. 53, 31 Pac. 914. 

Ex turpi causa non oritur a^tio. 

Holman v. Johnson, 1 Cowp. 341; Fet- 
ridge v. Wells, 4 Abb. Pr. 144; Coppell v. 
Hall, 7 Wall. 542, 19 L. ed. 244. 

The contentions of the appellees have 
been sustained in — 

Board of Trade v. 0*Dell Comniission Co* 

Digitized by VjOOQIC 


United States Cibcuit Coubt or Appeals. 


115 Fed. 574; Board of Trade v. Donovan 
Commission Co, 121 Fed. 1012; Board of 
Trade v. Ellis, 122 Fed. 319; Board of 
Trade v. Consolidated titocJc Exchange, 121 
Fed. 433; Board of Trade v. L. A, Kinseif 
Co. 125 Fed. 72; Christie Grain d Stock 
Co. V. Board' of Trade, 61 C. C. A. 11, 125 
Fed. 161. 

Baker, Circuit Judge, delivered the 
opinion of the court: 

1. We deem it unneeossary to determine 
from the evidence whether the percentage 
of trades in which actual deliveries were 
made was 5 or 25. The finding of the one 
figure or the other would not prove what 
proportion of tlie remaining no-delivery 
transactions were gambling. Of these, an 
indeterminate number were "hedging con- 
tracts." If we felt called upon by the neces- 
sities of this decision to give a definite 
opinion of hedging, the record might well 
lead us to find that hedging is a manu- 
facturer's or merchant's insurance against 
price fluctuation of materials, and no more 
damnatory than insurances of property and 
life, which in one sense are wagers that the 
property will not be destroyed during the 
term, and that the life will not fail in less 
than the expectancy in the actuaries* tables. 
The remninder of the no-delivery trans- 
actions were/'Mpcculntive." lUit speculation 
is not unlawful. One may buy any sort of 
]»roperty to hold for a rise, one may con- 
tract to buy or sell property not in pos- 
.scssion or in existonci' at the time, and law- 
ful contracts may lawfully be canceled and 
s<'ttled in advance of the time of perform- 
anc«. If a contract, lawful in form, is 
entered into, it is lawful in fact, even 
though one of the parties never intended to 
perform his part of it; that is, the intent 
that the lawful form shall cover a sham 
must be mutual to make it a sham. We 
think the court's conclusion that, because in 
1)5 per cent of the trades no deliveries were 
in fact made, it was intended that in those 
cases deliveries should not be made, and 
that the parties in ninetoen instances out of 
twenty were using the forms of lawful con- 
tracts to cover mere wagers on the future 
prices of commodities, is not warranted by 
the facts in the record. The "direct'* and 
**ring" methods of settlement between mem- 
bers might cancel out nine tenths of. the 
bids back and forth between the members 
as agents, and yet every contract may have 
been perfectly legal and enforceable between 
the principals, and every principal satisfied 
by receiving a "subHtitiite" contract. If a 
seller intended not to deliver, but to settle 
on differences if prices rose, the buyer who 
entered into the contract in good faith, and 
who desired to receive the property, could 
69 L. R. A. 

not force the seller to deliver. In every 
such case there would be no delivery, but 
the buyer would have a valid cause of 
iiction. Undoubtedly gambling was going on 
in the exchange hall, but it was contrary to 
appellant's by-lawa. Appellant was char- 
tered by Illinois for a lawful and us<'fiil pur- 
pose, and the association adopted and 
promulgated suitable by-laws and rules. 
We think the record fails to show that tlie 
dominant feature of the members' dealin^rs 
was unlawful, much less that appellant, as a 
creature of the state, was violating its 
charter, or was pariiceps criwinis in wliat 
•gambling the members carried on. 

We do not, however, attach very much im- 
portance to the prep(»i»derating character of 
the transactions in the exchange hall, be- 
cause, in our opinion: 

2. The real subject-matter of the suit is 
the property right in the news, in the re- 
ports of prices. Even if it were true that 95 
per cent of the dealings in the exchange 
hall were wagers, the prices are the same 
for the transactions that are not wagers, and 
the quotations sent out show the figures at 
which honest dealers may secure contracts. 
Millers, grain buyers, elevator companies, 
govern their dealings by the market prices 
nmde in appellant's exchange hall. Tlie 
news therefore serves, or, at least, is capable 
of serving, a useful purpose. So it seems to 
us imnmterial what proportion of the trans- 
actions are wagers, since the prices made in 
the transactions are the prices that fann- 
ers and shippers can get. and since the n<"\Ns 
of the prices and the dissemination thereof 
are valuable to the community. News may 
be an object of lawful ownership thoii«:'.i 
nine tenths of the things reported be unlaw- 

3. Nor should the property in this cas<» 
(the news, the continuous quotation of 
prices) be adjudged contraband because it is 
susceptible of bad uses as well as good. 
Gamblers in Indiana may settle their bets 
on prices according to appellant's quotations 
and this quite irrespective of the fact, if it 
were the fact, that 95 per cent of the trans- 
acticms in appellant's exchange hall were 
lawful ; just as Indiana grain dealers uuiy 
make and settle their honest contracts on 
the basis of appellant's quotations, regard- 
less of the fact, if it were the fact, that 05 
per cent of transactions reported were gam- 
bling. It seems to us, therefore, that the 
news, as news, is not without the pale of 
protection, and that the moral quality is 
chargeable solely to the user. 

4. The property concerned in this suit not 
being contraband, should appellant be de- 
nied the writ of injunction, even if it wore 
true that appellant permits gambling in its 
exchange hall? We think not. Suppose this 

Digitized by VjOOQIC 


BoABD OF Trade v. L. A. Kinset Co. 


noncontraband news were collected and dis- 
fcminated by the Associated Press. If that 
company were complainant and "clean-hand- 
ed/' its right to an injunction, the case 
l>ein<r pro'>er in other respects, would not be 
doubted. But if complainant were a gam- 
bler or a thief, what then ? We think our an- 
swer has been sufficiently stated in Fuller 
r. Berger, 65 L. R. A. 381, 56 C. C. A. 688, 
120 Fed. 274: "Equity is not concerned 
with the general morals of a complainant; 
the taint that is regarded must affect the 
particular rights asserted in his suit. 
... If the defendant can do no more 
than show that the complainant has com- 
Tiiitted some legal or moral offense which af- 
fects the defendant only as it does the public 
at large, the court must grant the equitable 
remedy and leave the punishment of the of- 
fender to other forums." 

In this case the appellees, citizens of 
Indiana, have never had any dealings with 
appellant respecting the quotations; they 
have not been misled or deceived by appel- 
lant in any way: and they certainly are no 
more concerned with or affected by appel- 

lant's violations of the common law or of 
the penal laws of Illinois than the general 

In reaching our conclusion, we have given 
respectful consideration to the cases of 
Board of Trade v. O'Dell Commission Co. 
115 Fed. 574; Board of Trade v. Donovan 
Commission^Co. 121 Fed. 1012; Board of 
Trade v. Ellis, 122 Fed. 319; Christie Orain 
d Stock Co. v. Board of Trade, 61 C. C. A. 
11, 125 Fed. 161, — ^and regret that we are 
unable to concur therein. We have been aid- 
ed by the opinion of Judge Hook at circuit 
(116 Fed. 944) in support of his decree in 
the Christie Case, which was reversed in 61 
C. C. A. 11, 125 Fed. 161. 

The decree herein is reversed, with the 
direction to enter a decree in appellant's 
favor in conformity to the prayer of the bill. 

Petition for rehearing denied May 27, 

Affirmed by Supreme Court of United 
States May 8, 1905. 








Tke cKecktnK of baffffa«e to destina- 
tloa opon a tbroufrh ticket to transport the 
paxseof^r over roads of initial and connect- 
Ing carriers will render the initial carrier 
liable for its loss on a connecting line. 

(January 21. 1905.) 

APPEAL by defendant from a judgment of 
the Circuit Court for Crittenden 
County in favor of plaintiff in an action 
brought to recover for the loss of baggage 
delivered to defendant for transportation. 
The facts are stated in the opinion. 

i/r. C. H. Trimble, for appellant: 

The initial carrier is only liable for loss 
on its own line. 

Mauri tz v. New York, L. E, d W. R. Co. 
23 Fed. 765 ; Green v. New York C. R. Co. 4 
Daly, 553 ; Milnor v. New York d N. H. R. 
Co. 53 N. Y. 363 ; Michigan C. R. Co. v. 
Mineral Springs Mfg. Co. 16 Wall. 318, 21 
L. ed. 297; Myrick v. Michigan C. R. Co. 
107 IT; S. 106, 27 L. ed. 326, 1 Sup. Ct. Rep. 
425; Ray, Negligence of Imposed Duties, p. 

A through ticket on three distinct lines of 
transportation on one piece of paper is to 
be regarded as a distinct ticket for each 

Ray, Negligence of Imposed Duties, p. 
525; Nashville d C. R. Co. v. Sprayberry, 9 
Heisk. 852; Taylor v. Little Rock, M. R. d 
T. R. Co. 32 Ark. 393, 29 Am. Rep. 1 ; Pack- 
ard V. Taylor, 35 Ark. 410, 37 Am. Rep. 37; 

Note. — As to liability of Initial carrier gen- 
erally for goods carried beyond its own line, 
se^ cases In notes to Fox v. Boston & M. R. Co. 
1 L. U. A. 703 : Crossan v. New Yorlt & N. B, R. 
Co. Z U K. A. TOG, and Richmond & D. R. Co. 
T. I'ayne. I^. R. A. 849 ; also the later cases 
iu litis Heries of McCarn v. International &. G. 
X. R. Co. 16 I.. R. A 39 ; McCann v. Eddy, .35 
I^ IL A. 110; Illinois C. R. Co. v. Carter, 30 
I- R, A. 027 ; Colfax Mountain Fruit Co. v. 
Southern V. Co. 40 L. R. A. 78 ; Richmond & A. 
€9 L. R. A. 

R. Co. .V. R. A. Patterson Tobacco Co. 41 h. R. 
A. 511 ; Illinois C. R. Co. v. Southern Seating 
& Cabinet Co. 50 L. R. A. 729 ; Courteon v. 
Kanawha Despatch, 55 L. R. A. 182; and Taffe 
V. Oregon R. & Nav. Co. 58 L. R. A. 187. 

As to rights of passengers generally on con- 
necting roads, and liability of initial carrier, 
see Harris v. Howe, 5 Ia R. A. 777 ; Gulf, (\ & 
S. F. R. Co. V. Looney, 16 L. R. A. 471 ; Atty. 
Gen. V. Old Colony R. Co. 22 L. R. A. 112 ; Chi- 
cago & A. R. Co. V. Mulford, 35 L^. A. 599. 
& Digitized by VjOOQIC 


Abka:9Sas Suprebcb Ck)UBT. 


TAttle Rock d Ft. 8. R. Co, v. Odom, 63 Ark. 
326, 38 S. W. 339. 

Mr. J. T. Coston, for appellee: 
If the receiving carrier collects full fare 
from the passenger, issues a through ticket 
to hini; and checks his baggage to his desti- 
nation, it thereby contracts to deliver the 
passenger and his baggage to the place of 
his destination, and is liable for loss or 
damage to baggage occurring on its own, or 
connecting, lines. 

4 Elliott, Railroads, § 1658; Schouler, 
Bailments & Carriers, 2d ed. § 696 ; Hairley 
V. Screven, 62 Ga. 347, 35 Am. Rep. 127; 
Baltimore d O, R. Co. v. Camphelly 36 Ohio 
St. 647, 38 Am. Rep. 617; Carter v. Peck, 4 
Sneod, 203, 67 Am. Dec. 604; Louisville d 
Y. R. Co. V. Weaver, 9 Lea, 38, 42 Am. Rep. 
057 ; Coward v. East Tennessee. V. d G. R. 
Co. 16 Lea, 225, 57 Am. Rep. 227; Candee 
V. Pennsylvania R. Co. 21 Wis. 582, 94 Am. 
Dec. 567; Nashua Lock Co. v. Worcester d 
N. R. Co. 48 N. H. 339, 2 Am. Rep. 242; 
Illinois C. R. Co. v. Copeland, 24 111. 332, 
76 Am. Dec. 749 : Illinois C. H. Co. v. John- 
son, 34 111. 389 ; Foy v. Troy d B. R. Co. 24 
Barb. 382; East Tennessee d V. R. Co. v. 
Rogers, 6 Hcisk. 143, 19 Am. Rep. 589; 
Western d A. R. Co. v. McElicee, 6 Heisk. 
208; Mobile d G. R. Co. v. Copeland, 63 Ala. 
219, 35 Am. Rep. 13; Ht. John v. Southern 
Exp. Co. 1 Woods, 612, Fed. Cas. No. 12,228; 
Condict V. Grand Trunk R. Co. 54 N. Y. 
500 ; Peet v. Chicago d X. W. R. Co. 19 Wis. 
119; Ogdenshurg d L. C. R. Co. v. Pratt, 22 
Wall. 132, 22 L. ed. 830. 

Battle, J., delivered the opinion of the 
court : 

Josie Washington, in her own right and 
as next friend of her daughter, Nora Brown, 
brought this action against the Kansas City, 
Ft. Scott & Memphis Railroad Company to 
recover the value of a trunk and its con- 
tents. The defendant sold to Nora Brown a 
ticket over its railroad from Deckerville, 
Arkansas, by way of Memphis, and thence 
by a connecting railroad to Argenta, in this 
state, and checked her trunk over the same 
route to the same destination. She took 
passage on its train, and was transported as 
indicated by her ticket to Argenta, but her 
trunk was lost on the connecting railroad 
between Memphis and the place to which it 
was checked. 

The question in the case is. Is the receiv- 
ing carrier, in the absence of an express con- 
tract, liable for the loss of baggage by a 
connecting carrier; the receiving carrier 
having sold the passenger a through ticket, 
and cliooked her bngjjiige tlirough to her 
de*<i illation? The trial court held the form- 
er liable. 

Courts differ as to what is sufficient to 
69 L. R. A. 

constitute a contract. by a common carrier 
to transport property delivered to it to it> 
destination, when that place is beyond its 
route. Some courts hold that, "when a car- 
rier receives goods directed to a place be- 
yond his line, he, in the absence of a stipu- 
lation to the contrary, by the very act of 
acceptance, engages to deliver them at their 
destination, wherever that may be. Other 
courts hold that the acceptance of the goods 
for shipment, so directed, implies nothing 
more than an agreement on the part of th(» 
carrier to transport them to the end of their 
route, and there deliver them to a connecting 
carrier to complete the carriage. The first 
of these views is sustained by the Englisli 
courts and a few of the American states, and 
is known as the "English doctrine." The 
other is adopted by the decided weicrht of 
American authorities. As this court has 
not adopted either view, we are at liberty to 
adopt that which in our opinion is more 

Mr. Lawson, in his treaties on the Con- 
tracts of Common Carriers, gives the reason 
for the two views as follows: "In support 
of the first doctrine, it is argued that a dif- 
ferent rule would work a great incon- 
venience. A person delivering his goods to a 
carrier, to be sent to a certain place, will 
generally rely on him alone to perform tlio 
service. He cannot be supposed to know 
the particular portion of the transit which 
the first carrier controls, much less, the 
other owners or proprietors of the con- 
tinuous line. He intends to make one con- 
tract, but not two or three or half a dozen. 
When he places his property in the hands of 
the carrier, he at once loses all control over 
it. If it is not delivered, how is he to dis- 
cover at what particular portion of the 
route it was lost? He would be forced to 
rely on the statements of the carriers them- 
selves, who would be little likely to aid him 
in his search. If }ie did succeed in fixing the 
responsibility, he might find himself obliged 
to assert his claim against a party hundreds 
of miles away, and under circumstances 
which might well discourage a prudent man, 
and induce him to bear his loss rather than 
incur the expense and trouble of pursuing 
his remedy against so distant a defendant. 
The first carrier, on the contrary, ha«? 
facilities for tracing the loss not possessed 
by the public. He is in constant communi- 
cation with his associates in the business. 
He has their receipts for the property de- 
livered to them, and with no inconvenience 
at all could charge the loss to his negligent 
M^'cnt. In support of the second doctrine, it 
is simply answered that the extraordinary 
' liabilities of commcm^ carriers cjinnot in 
Digitized by VjOOQIC 


Kaivsas City, F. S. & M. R. Co. v. Washington. 


justice be extended beyond their own routes, 
where alone they have an opportunity of 
choosing for themselves their servants, and 
of guarding the property intrusted to their 
eare." Lawson, Contracts of Carr. §§ 

238-242, and cases cited. Hutchinson, Carr. 
2d ed. §§ 145a, 149&, and cases cited. 

We think the English doctrine more rea- 
sonable, and adopt it. 

Judgment affirmed 


W. H. HOLMES, Appt^ 


N. A. MARSHALL et al. 

Annie J. JENKINS, Respt. 

(145 Cal, 777.) 

1. The e:Keiiiptlon from execution of 
tbe proceeds of Inanranee policies 1« 
not limited to claims asalnst tlie In- 
■ared, but extends to those against tbe 
^eflciary, under a statute providing that all 
moneys, beoeflts, prlTlleges, or immunities ac- 
cralng, or In any manner growing out of, life 
Insurance, are exempt from execution ; and 
the same rule applies where the policy is pay- 
able to the estate of the assured, and, being 
exempt from his debts, the proceeds are dis- 
tributed to his widow under the statute as 
hU next of kin. 

2. The deposit by the benellclary of 
the proceeds of a life-insurance pol- 
iey, which are exempt from execution for 
her debts, in a bank, does not destroy the 

3. The court may set aside the levy of 
am attacliment upon exempt property. 

(January 17, 1905.) 

\ PPEAL by plaintiff from an order of the 
^ Superior Court for Los Angeles County 
setting aside an attachment of the proceeds 
of a life-insurance policy. Affirmed. 

The facta are stated in the Commission- 
er's opinion. 

Messrs. Powers A Holland, for appel- 

As the statute of this state has prescribed 
a mode of procedure, and pointed out the 
circumstances under which an attachment 
ir.ay be dissolved, the statutory remedy is 
ttie length and breadth of the respondent's 
rights in the premises. 

Waples, Attachm. p. 427. 

Tlie statutes of exemption are in deroga- 
tion of the common-law principle that a 
man's property should be taken in payment 
and satisfaction of his indebtedness, and the 
exemption laws should not be expanded or 
'^inrs:ed to include persons not therein 
specifically mentioned. 

2 Freeman, Executions, 3d ed. § 234 &; 

XfiTE. — \b to exemption of proceeds of Hfe- 
»n>urancc policy, see also. In this series. Brown 
r. Balfour, 12 U R. A. 373. 
*'•• L. R. A. 

Bolt V. Keyhoe, 30 Hun, 619; Crosby v. 
Stephan, 32 Hun, 478 ; Millington v. Fox, 13 
N. Y. Supp. 334; Commercial Travelers' 
Asso. V. Newkirk, 16 N. Y. Supp.. 177; Re 
Brotcn, 123 Cal. 399, 69 Am. St. Rep. 74, 55 
Pac. 1055. 

Had the statute applied to the heirs or 
beneficiaries it would have so declared, and, 
in the absence of such designation, it would 
be giving the statute a broader scope than 
was intended by the legislature, by constru- 
ing it to read in favor of persons not therein 

Only money, and not a debt, is exempt 
from execution. 

Phoenix Bank v. Risley, 111 U. S. 125, 28 
L. ed. 374, 4 Sup. Ct. Rep. 322; Janin v. 
London d 8. F. Bank, 92 Cal. 14, 14 L. R. A. 
320, 27 Am. St. Rep. 82, 27 Pac. 1100; 
Pullen v. Placer County Bank, 138 Cal. 169, 
94 Am. St. Rep. 19, 66 Pac. 740, 71 Pac. 83. 

Where the debtor voluntarily parts with 
the ownership of exempt property, and ac- 
quires in lieu thereof property not exempt, 
he waives his right to the benefit of the 
exemption law. 

2 Freeman, Executions, 3d ed. § 235 ; Bar- 
rier v. Fassett, 56 Iowa, 264, 9 N. W. 217; 
Connetl v. Fisk, 54 Vt. 381; Dortch v. Ben- 
ton, 98 N. C. 190, 2 Am. St. Rep. 331, 3 S. E. 
638; Knahh v. Drake, 23 Pa. 489, 62 Am. 
Dec. 352; Drake, Attnchm. § 244a; Cram 
v. White, 27 Kan. 319, 41 Am. Rep. 408: 
State, Jardain, Prosecutor, v. Fairton 8aD. 
Fund d Bldg, Asso. 44 N. J. L. 376; Rozelle 
V. Rhodes, 116 Pa. 129, 2 Am. St. Rep. 591, 
9 Atl. 160 ; Martin v. Hurlburt, 60 Vt. 364, 
14 Atl. 649 ; Mcintosh v. Aubrey, 185 U. S. 
122, 46 L. ed. 834, 22 Sup. Ct. Rep. 5G1. 

The statute says "money accruing" out of 
life insurance, etc., shall be exempt. The 
word "money" has a well-defined meaning. 

15 Am. & Eng. Enc. Law, p. 701. 

The word "accruing** does not apply to 
money already in hand. 

Cross V. Partenheimer, 159 Pa. 556, 28 
Atl. 370: Johnson v. Humboldt Ins. Co. 91 
111. 95, 33 Am. Rep. 47; Kennedy v. BurHer, 
36 Mo. 128; Cutcliff v. McAnally, 88 Ala. 
509, 7 So. 331; Jones v. Thompson, 27 L, J. 
Q. B. N. S. 234; Dresser v. Johns, 6 C. B. 
N. S. 434. 

Petition for rehearing in banc. 

The legislature has no power to^ncreasej 

Digitized by VjOOQIC 


California Supbeme Coubt. 


the amount of property which a debtor may 
claim as exempt, so as to aflfect existing 

Ounn V. Barry, 15 Wall. 610, 21 L. ed. 
212; Edicards v. Kearzey, 96 U. S. 595, 24 
L. ed. 793; Skinner v. Holt, 9 S. D. 435, 62 
Am. St. Rep. 883, 69 N. W. 597 ; Johnson v. 
Fletcher, 54 Miss. 629, 28 Am. Rep. 388. 

The law existing when a contract is made 
enters into and forms a part of it; and this 
is applicable as well to the remedy as to the 
right, so that the impairment or taking 
away of the remedy is an impairment of the 
obligations of a contract. 

12 Am. & £ng. Enc. Law, *2d ed. p. 167. 

The burden of proof of showing that 
money claimed to be exempt under h life- 
insurance policy is so rests upon the party 
making such claim. 

Brigga v. McCullough, 36 Cal. 542. 

Messrs. Morton, Honaer, A Jones, for 
respondent : 

The power of the court over its process is 
essential to the administration of justice, 
and is coeval with the common-law courts, 
tind does not by any means depend upon 
statutory enactments. 

Sandburg v. Papineau, 81 111, 446; 8 Enc. 
PI. & Pr. p. 679; Blair v. Compton, 33 Mich. 
414; Palmer v. Oardiner, 77 III. 143: Jojics 
V. Williams, 2 Swan, 105: Bryan v. Bridge, 
6 Tex. 137. 

If an execution is levied upon exempt 
property the levy may be quashed or vacated 
on motion in the court from which the exe- 
cution issued. 

12 Am. & Eng. Enc. Law, 2d ed, p. 255; 
Totten V. Sale, 72 Ala. 488; Catron v. La- 
fayette County, 125 Mo. 67, 28 S. W. 331; 
Jacks v. Bigham, 36 Ark. 481; Farrell v. 
McKee, 36 111. 225; Finke v. Craig, 57 Mo. 
App. 393; Wilson v. Stripe, 4 G. Greene, 
551, 61 Am. Dec. 138. 

The money was exempt from the debts of 
the beneficiary. 

Schillinger v. Boes, 85 Ky. 357, 3 S. W. 
427; Bromn v. Balfour, 46 Minn. 68, 12 L. 
R. A. 373, 48 N. W. 604: Re How, 01 Minn. 
217, 03 N. W. 627 : First Nat. Bank v. Hon\ 
65 Minn. 187, 67 N. W. 994: Minn. Gen. 
Stat. 1894, §3312. 

The estate of the deceased is held in 
trust only, by the executor or administrator 
for a limited period for purposes of admin- 
istration ; and the court in such cases will not 
H'^^ard the estate, or administrator, or 
executor, as the actual owner, but will look 
through and beyond this, limited and 
temporary right of possession of the ad- 
mi ni.strator or executor to ascertain the 
real and intended beneficiary of the deceased. 

Pace v. Pace, 19 Fla. 438.' 

Exemption statutes should be liberally 
(iS> L. R. A. 

12 Am. & Eng. Enc. Law, 2d ed. pp. 75, 76. 
and notes; Re McMamus, 87 Cal. 294, 10 L. 
R. A. 567, 22 Am. St. Rep. 250, 25 Pac. 413. 

When a statute does not exempt specific 
articles, but exempts money within certain 
limits, property purchased with the exempt 
money is exempt. 

Yates County Nat. Bank v. Carpenter, 119 
N. Y. 550, 7 L. R. A. 557, 16 Am, St. Rep. 
855, 23 N, E. 1108; Pool v. Reid, 15 Ala. 
826 ; 2 Freeman, Executions, 3d ed. § 235, p. 

Cooper, C, filed the following opinion : 

This action is upon a promissory note for 
$1,000, dated October 5, 1899, signed by J. 
F. Jenkins and his wife, Annie J. Jenkins. 
J. F. Jenkins died intestate, and respondent, 
Annie J. Jenkins, is his surviving widow. 
After the action had been commenced, a writ 
of attachment was issued and levied upon 
$1,020.57 on deposit in the Citizens* National 
Bank of Los Angeles to the credit of respond- 
ent, Annie J. Jenkins. The court made an 
order, after notice, and on motion of respond- 
ents, setting aside the levy of said vnrit, and 
dissolving it as to the money so on deposit 
with said bank. This appeal is from the order 
so made. 

The principal question is as to whether or 
not the said money was subject to the debts 
of respondent, Annie J, Jenkins, or exempt 
from execution against her. At the time of 
his death, J. F. Jenkins was the owner and 
holder of three full paid-up life-insurance 
policies upon his own life, two of which 
(one for $99 and one for $1,385) were pay- 
able to respondent. Annie J. Jenkins, and 
one of which (for $982.50) was payable to 
the estate of deceased, his administrators, 
or executors. The estate of said deceased 
was duly probateii, and the $082.50 in- 
surance collected, which constituted the en- 
tire estate, and of which there remained 
i{?r)39.45 after paying costs and expenses of 
idministration. This was set apart to the 
-urviving widow. Annie J. Jenkins, as ex- 
empt from execution, under § 1465, Code 
Civ. Proc. Tlie proceeds of all said policies 
were deposited by respondent, Annie J. 
Jenkins, in one account, to her credit in said 
Citizens' National Bank of Los Angeles. 
She drew against this account from time to 
time until the date of the levy of the attach- 
ment, when there remained the sum of $1,- 
020.27 to her credit in said bank. 

"All moneys, benefits, privileges, or im- 
munities accruing, or in any manner grow- 
ing, out of any life insurance, if the annual 
premiums paid do not exceed $500." are 
exempt from execution. Code Civ. Proc. 
•^ubdiv. 18, § 690. The main contention of 
appellant is that the exemption extends only 
against the debts of tl^e person whose life 
Digitized by VjOOQIC 



was inBured, and who paid the premiums 
re^juisite to procure the insurance and keep 
it in force; and that such exemption does 
not continue after his death, in favor of the 
beneficiary. In construing this statute, as 
in the construction of all statutes, it is the 
duty of the court to arrive at the intent of 
the le^slature, if it can be done, from the 
language used in the statute. Statutes ex- 
empting property from execution are enact- 
ed on the ground of public policy, for the 
benevolent purpose of saving debtors and 
their families from want by reason of mis- 
fortune or improvidence. The general rule 
now is to construe such statutes liberally, 
im as to carry out the intention of the legis- 
lature and the humane purpose designed by 
the lawmakers. 12 Am. & Eng. Enc. Law, 
2d ed. pp. 75, 76, and cases cited; Re Mo 
Manus, 87 Cal. 294, 10 L. R. A. 567, 22 Am. 
St. Rep. 250, 25 Pac. 413; Spence v. Smith, 
121 Cal. 536, 66 Am. St. Rep. 62, 53 Pac. 
653. Bearing this rule in mind, let us see 
what the legislature has said as to this mat- 
ter. It has said that, where the annual 
premiums do not exceed $500, the insurance 
mone3rs shall be exempt from execution. 
Here the annual premium did not exceed 
$.'»00. It has said that all moneys accruing, 
or in any manner growing, out of any life 
1 insurance shall be exempt from execution. 
f The money here accrued and grew out of life 
insurance upon the life of deceased. After 
hi9» death no execution could issue against 
him. The words "exempt from execution" 
were ctearly intended to apply to the moneys 
coming' from the life insurance to the hands 
of the beneficiary. It is exempt from 
pxecution as to all strangers or parties who 
have no claim to it, without any provision 
of statute. It was intended to exempt it 
from the debts of the party to whom it was 
payable, and who procured title to it by the 
death of the insured. It was not the inten- 
tion that the insured might die, leaving a 
imall insurance and a dependent family, 
and that the insurance money should be sub- 
ject to execution for the debts of the wife, 
even if she iti the beneficiary named in the 
policy. The words "exempt from execution" 
mean exempt from any execution. The 
l^rgislature mentioned no class of executions, 
and we are not at^ liberty to judicially in- 
fert a class. "Exempt from execution" in- 
eludes the defendant, Annie J. Jenkins, and 
applies to plaintiff. We have no decision of 
thi^ court upon the question, and the de- 
eisions of other courts do not furnish much 
assistance, because the statute under which 
each decision was made is different from 
ours. In Kentucky and Minnesota the stat- 
utes declare, in effect, that certain insurance 
bmefita, reliefs, etc., "shall be exempt from 
t <^secation, and shall not be liable to be 
G9L.R. A. 

seized, taken, or appropriated, by any legal 
or equitable process, to pay any debt or 
liability of a member.'* In both these states 
the fund or relief is held to be exempt from 
execution, whether against the original 
member, or against any beneficiary who has 
been paid, or is entitled to be paid, any 
benefit falling within the class described in 
the statute. Schillinger v. Boe8, 85 Ky. 
357, 3 S. W. 427; Broton v. Balfour, 46 
Minn. 68, 12 L. R. A. 373, 48 N. W. 604; 
First Nat. Bank v. How, 65 Minn. 187, 67 N. 
W. 994. It seems at least doubtful as to 
whether or not these decisions properly oon- 
strue the statutes of these states. The de- 
cisions in other states — particularly in New 
York — hold similar language to create an 
exemption only as to the member or in- 
sured. In New York the language of the 
statute is that such funds shall be exempt 
"from execution, and shall not be liable to 
be seized, taken, or appropriated by any 
legal or equitable process to pay any debt 
or liability of such deceased member." Bolt 
V. Key hoe, 30 Hun, 619. The Kentucky and 
^linnesota cases are criticised by Freeman 
in his work on Executions, 3d ed. vol. 2, $ 
2346. But the author says, in speaking of 
the language of the statutes in those states : 
"If these statutes stopped with the words 
'exempt from execution,' there would be no 
doubt of the exemption in favor, of the 
beneficiary; but the additional words in the 
statute indicate that the legislature had in 
mind merely the debts or other liabilities of 
members of the association in question, and 
hence that, after the benefit was received 
by a person other than a member, it would 
be subject to the usual laws relating to ex- 
ecutions." In our Code the statute stops 
with the words "exempt from execution." 
Under our statute, necessary household and 
kitchen furniture is exempt from execution ; 
and, if the wife succeeds to such furniture, 
it is equally exempt as to her debts. The 
farming utensils or implements of husband- 
ry of the judgment debtor are exempt, and, 
if the son should take them under the will 
of his father, following his father's occu- 
pation, they would still be exempt as to the 
son's debts. Equally true as to the insur- 
ance money in controversy herein. If it had 
come to J. F. Jenkins in his lifetime, it is 
conceded that it would have been exempt as 
to his debts. It came to his wife as his 
beneficiary, and is equally exempt as to her 

As to the policy payable to and collected 
by the estate, the estate was the beneficiary, 
and the money was, for the reasons before 
stated, exempt from execution. It was there- 
fore assets of the deceased exempt from exe- 
cution, and was properly set apart to the 
widow as being so exempt. Code Civ. Proc. 

Digitized by VjOOQIC 


Califobnia Supreme Court. 


S 1465; Re Miller, 121 Cal. 353, 63 Pac. «06. 
The administrator or executor is not the 
owner of any part of the estate. He, in his 
official character, only holds it in trust for 
the parties entitled to it, subject to the pur- 
poses of administration. The title to the in- 
surance money came to respondent, Annie J. 
Jenkins, through the estate, and under the 
order setting it apart, and vested the title 
in her as effectually as if she had been 
named as the beneficiary of the policy. We 
can see no reason why the insurance money 
coming to her directly as beneficiary should 
be exempt from execution, and not that 
coming to her indirectly through the estate 
and the order setting it apart. In either 
case it is exempt from execution. In one 
case the instrument of life insurance gives 
her the title; in the other^ the law gives it 
to her. The statute provides that all prop- 
erty exempt from execution shall be set 
apart for the use of the surviving husband 
or wife. Code Civ. Proc. $ 1465. If it is ex- 
empt from execution before being set apart, 
it does not cease to be so the moment it is 
set apart. The widow takes the family al- 
lowance by order of the court. After it is 
paid to her, it cannot be seized on execution 
for her prior debts and diverted from the 
support of the family. The principle is ful- 
ly discussed in regard to a homestead set 
apart for the family in Keyes v. Cyrus, 100 
Cal. 322, 38 Am. St. Rep. 296, 34 Pac. 722. 
It was there held that the provision for set- 
ting apart exempt property, including a 
homestead, was for the protection and sup- 
port of the family. The court said: "The 
authority given to the court in the first part 
of § 1465 to set apart for the family 'all 
the property exempt from execution, includ- 
ing the homestead selected,* implies that the 
property, when set apart, is exempt from 
execution. ... A homestead may be 
set apart to the widow, even though the 
estate be insolvent, and the property so set 
apart constitute the entire estate of the de- 
cedent; but, if the homestead thus set apart 
to her could be immediately taken in exe- 
cution by one of her creditors, it would fail 
to be available for her use or support, and 
it might happen that her creditor would fare 
better than a creditor of the decedent whose 
money had perhaps been used to purchase 
the very property so set apart." In Barnum 
v. Boughton, 55 Conn. 117, 10 Atl. 514, it 
was held that money paid to the widow, as 
an allowance for her support, through the 
probate court, could not be taken or attached 
by one of her creditors. The court said: 
"She could neitlier ask nor receive it for the 
payment of her debts. The probate court 
could not grant it for that purpose. . . . 
If one allowance can be intercepted, so can 
every other, for, if the door is opened for 
69 L. R. A. 

one creditor, it cannot be closed against any, 
and the entire estate might thus be diverted 
from its legal destination. The law will not 
permit the instant necessities of the widow 
and the ultimate rights of the creditors of 
the estate to be postponed, in its name, to 
the demands of her creditors." So in this 
case the court will not allow the insurance 
money wliich is exempt from execution as 
to the creditors of the estate to be taken by 
the creditors of the widow. It is equally 
exempt as to them. 

Appellant contends that by the deposit of 
the money in the bank the money lost its 
identity, and that thereafter the bank owed 
Annie J. Jenkins the money; that the debtor 
thus voluntarily parted with the money 
which was exempt, and acquired in lieu 
thereof a credit due by the bank. Such con- 
struction would seem to be unreasonable, 
and no authority is cited which supports it. 
It is true that, in one sense, by the deposit 
the relation of debtor and creditor was cre- 
ated as between the bank and Mrs. Jenkins: 
but she put the exempt money in the bank. 
She regarded it as money in the bank. She 
expected to, and did, draw it as she needed 
it. The bank did not give her the identical 
pieces of money that .she deposited, but it 
.i^ave her, as she drew upon it, money equal 
in value and kind. She was not required to 
keep the money buried, or in her stocking, 
in order to have it remain exempt. If the 
apjwllant's theory is correct, she could not 
luive paid a $5 grocery bill with a $20 piece, 
receiving $15 in change, without the risk of 
having the $15 attached. The law does not 
require such absurdity. The cases cited by 
appellant arose under the United States 
pension laws, and are not in point. The 
section of the Revised Statutes construed 
provides: "No sum of money due, or to be- 
come due, to any pensioner, shall be liable 
to attachment," etc. The courts have cor- 
rectly held that the section only protected 
the money while due or in course of trans- 
mission to the pensioner. 3kloney due, or to 
become due, is designed to protect the 
amount of the pension until it reaches the 
hands of the pensioner. It is then no longer 
money due, or to become due. Our statute 
exempts the money, and, although deposited 
in the bank, it is stili money and protected. 
It has not lost its identity because of the 
fact that the identical coins or bills de- 
posited a^^e not to be returned. Respondent 
probably never saw any coins or bills, but 
took the checks which the insurance com- 
pany gave her as evidence that it had ttie 
money for her, and deposited them with ilie 
bank; having the amounts credited in her 
bankbook as evidence that she had the 
money in the bank. In Hihernia Sav. cC- L. 
Soo. v. San Francisco, 139 Cal. 205, 96 Am. 

Digitized by 



Holmes ▼. Mabshall. 


8t Rep. 100, 72 Pac. 920, it was held that 
the checks or orders drawn upon the 
Treasurer or Assistant Treasurer of the 
United States, payable on demand, are not 
merely obligations of the United States, but 
<K)lveDt credits, subject to tfixation. The 
court said: "The orders were simply a con- 
venient mode of payment of the obligation. 
They were, for all practical purposes, the 
money itself." So in the case at bar the 
qredit in the bank is, for all practical pur- 
poses, under the exemption laws, to be re- 
garded as the money itself. Respondent had 
the right to have the levy set aside upon the 
exempt property. Section 656, Code Civ. 
Proc., provides that the writ may be dis- 
charged when the same was improperly or 
irregularly issued. This was not a dis- 
^lution of the writ of attachment, but an 
order setting aside the levy as to the ex- 
empt property. It would be strange if a 
court were so impotent that it could not set 
aside the erroneous levy of its own writ 
upon exempt property. Any other rule 

would compel the injured party to bring a 
suit for damages, which not only would lead 
to delay, but might in the end prove futile. 
Courts have power over their own process, 
and to set aside a levy of a writ of attach- 
ment or execution upon exempt property. 2 
Freeman, Executions, § 271; 8 Enc. PL & 
Pr. p. 579, and cases cited; Sandburg v. 
Papineau, 81 111. 446. 

It follows that the order should be af- 

We concur: Gray, C; Smith, C. 

Per Curiam: 

For reasons given in the foregoing opin- 
ion, the order ia affirmed. 

MoFarland, Hensliaw, and Lorisan, 

JJ., concur. 

Petition for rehearing in banc denied 
February 16, 1905. 


SHIP COMPANY for Limitation of Lia- 
bility Arising out of Loss of the City of 
Rio de Janeiro. 

(64 C. C. A. 410, 130 Fed. 76.) 

1. A stcamalilii company 1« not entitled 
to a limitation of Itn liability for 
loss of passenflfers and bagrffaipe 

through the sinking of its vessel, where its 
crew coald not understand the language of 
its officers, and were not drilled in the launch- 
Ine of the boats, so ttiat after the accident 
but one boat was successfully launched, al- 
though there was time enough to launch them 
oil had proper orders been given and obeyed, 
and the statute provides that no steamer 
carrying passengers shall depart from any 
port unless she shall have in her service a 
full complement of licensed 'ofBcers, and a 
full crew sufficient at all times to manage the 

2. The dcKstrine of fello-«T service x^lll 
not defeat tlie liability of a steam- 
Khip company for death of a member of 
the crew through the sinking of the vessel, al- 
though the cause of the accident was the neg- 
Hsence of the master and pilot, where the 
ioMs of life was due to inability to launch 
the boats because of Insufficiency of the 
crew in that they could not understand the 
language of the .officers, and had not been 
drilled in lowering the boats. 

(May 2, 1904.) 

Note. — For another case In this series as to 
when steamship company cannot take advan- 
tage of statute permitting limitation of liabil- 
ity, flee Weisshaar v. Kimball R. 8. Co. 65 L. R. 
A. 84. 

«5J L. R. A. 

CROSS-APPEALS from a decree of the 
District Court of the United States for 
the Northern District of California limiting 
the liability of petitioner for loss of life 
through the sinking of one of its steam- 
ships; the petitioner excepting to so much 
of the decree as held it liable for a greater 
sum than it contended for; and persons 
claiming damages excepting to so much as 
permitted a limitation of liability. Reversed 
on appeal of passengers. 

The facts are stated in the opinion. 

Argued before Gilbert and Ross, Circuit 
Judges, and Hawley^ District Judge. 

Mr, William. Demnan, for passengers, 

In order to limit its liability, the peti- 
tioner has resting upon it the burden of 
proving that the "damage or injury done, 
occasioned, or incurred," shall be done with- 
out the privity or knowledge of such owner 
or owners. 

U. S. Rev. Stat. § 4283, U. S. Comp. Stat. 
1901, p. 2943. 

The words "sufficient at all times to 
manage the vessel" include the time when 
the lifeboats should be launched to save the 
passengers at the wrecking of the vessel; 
and the owners failed to supply a crew suf- 
ficient for such an occasion. 

Kimball v. Tucker, 10 Mass. 196; The 
Lady Pike (Oermania Ins. Co. v. The Ladv 
Pike) 21 Wall. 12, 22 L.ed. 602; The Gentle- 
man, Olcott, 116, Fed. Cas. No. 6,324; Tait 
v. Levi, 14 East, 482; Parsons v. Empire 
Transp. Co. 49 C. C. A. 302, 111 Fed. 208. 

Digitized by 



United States Cibcuit Coubt of Appeals. 


The burden of proof is on the owners to 
show that the loss of life could not possibly 
arise from the insufficiency of the crew. 

The Pennsylvania {The Pennsylvania v. 
Troop) 19 Wall. 136, 22 L. ed. 151; Riche- 
lieu d O, Nav. Co. V. Boston Marine Ins. 
Co. 136 U. S. 415, 34 L. ed. 401, 10 Sup. Ct. 
Rep. 934; The Ouildhall, 58 Fed. 800; The 
Annie Faxon, 21 C. C. A. 366, 44 U. S. App. 
591, 75 Fed. 319. 

Messrs. GaTin MoKab, TImohum A 
Crerstle, W. P. Hnmplirej, R. H. Coun- 
tryman, W. H. WilUtt, CUokerins A 
Gregory, R. H. Cross> Bien A Jaokson, 
A. Morsenthal, Corset A Goodwin, 
Charles E. Snook, and Ro^er Johnson 
also for passengers, appellants. 

Messrs, Charles Pa«e and Ward Mo- 
Allister for Pacific Mail Steamship Com- 
pany. ^ 

Ross, Circuit Judge, delivered the opin- 
ion of the court: 

The steamship City of Rio de Janeiro, 
whose home port was San Francisco, on en- 
tering the Bay of San Francisco on the 22d 
<lay of February, 1901, on one of her return 
trips from Hong ivong and intermediate 
ports, struck a reef of rocks near the Gold- 
en Gate, and within twenty minutes sank 
beneath the waters, carrying down a large 
number of her passengers and crew and all 
of her cargo. Shortly thereafter, to wit, 
March 19, 1901, the Pacific Mail Steamship 
Company, owner of the ship, filed in the 
court below its petition for limitation of 
liability, alleging therein that the sinking 
of the ship occurred by reason of the perils 
of the sea, and praying for a limitation of 
liability, and for the privilege of contest- 
ing any liability for the losses that occurred. 
The court below directed a reference to its 
commissioner to ascertain and report the 
value of the ship and freight pending. Evi- 
dence was taken showing the amounts col- 
lected by the petitioner on the ship's out- 
ward voyage for passage money and freight 
and the amount received and agreed to be 
paid upon the return voyage. In respect 
to the question of freight pending, it was 
shown that all goods lost had been shipped 
under bills of lading containing these pro- 
visions: "Freight for the same to be paid 
in United States gold coin, said freight to 
be considered earned, steamer or goods lost 
or not lost at any stage of the entire trans- 
it. .. . The foregoing bill of lading is 
issued subject to the terms and conditions 
of an act of Congress of the United States 
of America, approved February 13, 1893, 
• entitled *An Act Relating to Navigation of 
Vessels, Bills of Lading, and to Certain Ob- 
ligations, Duties, and Rights in Connection 
with the Carriage of Property' (Acts of 
69 L. R. A. 

52d Congress, 2d Session, page 445, chap. 
105), the provisions of which are hereby 
made a part hereof, and are deemed to con- 
trol and express the contract of the parties 
hereto in all cases where there may be {if 
there be any such cases) a difference be- 
tween the expressed provisions of the bill of 
lading and the terms of 8uc\^ act of Con- 

Based upon evidence introduced before the 
commissioner, that officer reported to the 
court findings to the effect that the peti- 
tioner was, and still is, the sole owner of 
the steamship, the value of which, in its 
wrecked condition, was $150; that the voy- 
age which terminated in the wreck and loss 
of the ship began at Hong Kong, China, on 
the 22d day of January, 1901; that the 
freight money collected at Hong Kong and 
way ports for the voyage to San Francisco, 
and that which was to have been collected at 
the latter place, "is earned and the freight 
pending in this cause," and appraising the 
value of the ship and her freight pending as 
follows : 

Steamship City of Rio de Ja- 
neiro, and her tackle, apparel, 
machinery, and furniture $ 150 00 

Freight and passage money pend- 
ing 24,827 93 

. ToUl $24,977 93 

The commissioner took no account of the 
freight or passenger money collected on the 
outward voyage of the ship. 

To his report the claimant, Sarah Guyon, 
administratrix of the estate of Henry Guy- 
on, deceased, filed these exceptions: 

''(I.) Claimant excepts to the following 
finding of said report and appraisement: 
'1 do further find that the voyage which 
terminated in the wreck and loss of the 
aforesaid steamship at the entrance to San 
Francisco harbor on the 22d day of Febru- 
ary, 1901, began at Hong Kong on the 22d 
day of January, 1901,* on the grounds: (a) 
That there is no evidence before the commis- 
sioner to show that the said voyage began 
at Hong Kong, China, (b) That the evidence 
conclusively established that the voyage for 
which the freight was pending at the time 
of the said wreck began at San Francisco 
on or about December 14, 1900, and extended 
through the ports of Honolulu, Yokohama, 
Kob^, Nagasaki, Shanghai, to Hong Kong, 
and return to San Francisco, touching at 
the same ports in the reverse order. 

"(II.) Claimant excepts to the following 
finding: 'I do further find the freight and 
passage money pending for the aforesaid 
voyage to be the sum of $24,827.93,' on the 
grounds: (a) That the term 'aforesaid voy- 

Digitized by VjOOQIC 


Re Pacific Mail Steamship Co. 


age' is ambiguous, and that it cani>ot be 
determined therefrom whether the said term 
applies to the voyage on which the City of 
Rio de Janeiro was wrecked, or whether it 
refers to the portion of the voyage begin- 
ning at Hong Kong January 22, 1901 ; claim- 
ant admitting the said sum to be the freight 
pending for the latter, but excepting to the 
said sum as a finding of the freight for the 
entire voyage, (b) That the evidence con- 
clusively shows the freight pending for the 
voyage on which the City of Rio de Ja- 
neiro was wrecked to have been $55,412.95. 
"(III.) Claimant excepts to the follow- 
ing finding and appraisement: *I do fur- 
ther appraise the value of the said steam- 
ship and her freight pending as follows: 

••Steam.<jhip City of Rio de Ja- 
neiro, her tackle, apparel, and 
furniture $ 150 00 

Freight and pa.ssage money 
pending 24,827 93 

Total $24,977 93 

" — On the grounds: (a) That the evidence 
conclusively shows that the venture in 
which claimant was interested was the send- 
ing of the City of Rio de Janeiro on a voy- 
age from San Francisco to Asiatic ports 
\, and return to carry for hire passengers, 
freight, and mails, and that the freight 
pending for the portion of the voyage from 
San Francisco to Hong Kong, amounting to 
$30^02.11, should be added to the $24,827.- 
97 earned on the homeward trip of the voy- 
age; making the total appraisement for the 
freight pending $55,040.04. (b) That the 
evidence shows conclusively that the value 
of the ship after the wreck was $500, and 
that this sum should be included in the 
:^id appraisement, (c) That the appraise- 
ment of the said vessel should be amended 
as follows: 

"Freight pending for venture.. $55,040 04 
Wreck $500.00; boats $150.00.. 650 00 

ToUl $55,690 04 

"Wherefore claimant prays that the said 
exceptions to the said report and appraise- 
ment be allowed, and that the said appraise- 
ment be recommitted to the said commis- 
sioner, with instructions to amend the same 
by adding thereto the item of $30,212.11 as 
for freight pending for the outward trip of 
the voyage on which the said steamship 
*^Ank, and the item of $500 as for the value 
of the ship after the wreck." 

The petitioners filed the following: "Pe- 
ritioners except to the follcn^'ing finding of 
^ said report and appraisement: 'And that 
m L.JL A. 

which was to have been collected at San 
Francisco.' Wherefore petitioners pray that 
the said appraisement be recommitted to the 
said commissioner, with instructions to 
amend the same by deducting the sum of 
$13,729.17 for freight which was to have 
been collected at San Francisco." 

All of the exceptions were overruled. 

Various claims having been filed for dam- 
age by reason of loss of life and for loss of 
goods, baggage, etc., the cause came on for 
trial before the court upon its merits. The 
court found and held that the sinking of 
the ship was not due to any peril of the 
sea, but to the gross negligence of her mas- 
ter and pilot; after which the petitioner 
moved for a reduction of the bond so far as 
it represented freight pending, which motion 
was denied. 

In and by its final decree the court below 
awarded damages to various of the claim- 
ants who were representatives of lost pas- 
sengers, or who had themselves suffered in- 
jury, in amounts vaggregating $35,125, but 
limited the liability of the petitioner for 
such damages to the sum of $24,977.93, with 
interest thereon from March 19, 1901, which 
sum, with interest, was directed to be paid 
into the registry of the court within ten 
days, and to be apportioned among the va- 
rious claimants to whom damages were so 
awarded after the payment out of such fund 
of all the costs of the proceeding except the 
cost incurred in the proceedings relating to 
the appraisement of the steamship and her 
freight pending, which the petitioner was 
directed to pay. The court held against the 
claims of Clara Barwick, and Ruth Miller 
as executrix of the estate of Sarah Wake- 
field, deceased. 

From the decree various of the claimants, 
as also the petitioner, have appealed. The 
ground of the petitioner's appeal is that, 
inasmuch as the court below found and held 
that the loss occurred solely by reason of 
the negligence of the ship's officers, and not 
by reason of any peril of the sea, it erred 
in holding that pending freight included 
either any prepaid freight or prepaid pas- 
sage money, or any uncollected and uncol- 
lectible or unearned freight, and that, in- 
stead of limiting the liability of the ship 
to $24,977.93, it should have been limited 
to the sum of $4,483.53, which latter sum, 
it is contended on the part of the petitioner, 
is the aggregate amount of the value of the 
ship and her freight pending. The main 
ground of the appeal of those of the claim- 
ants whose appeal is from that portion of 
the final decree adjudging "that the liabil- 
ity of the Pacific Mail Steamship Company 
for said damages be and hereby is limited 
to the sum of $24,977.93 and interest there- 
on from March 19, 1901," is that^he crew. 

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United States Cibcuit Coubt of Appeals. 


of the lost steamship "spoke and understood 
only the language of a race and nation dif- 
ferent from the officers immediately in com- 
mand over them in the launching of the life- 
boats on said vessel, and that they could 
not speak or understand the commands of 
said officers, and that they had never been 
drilled in the launching of the lifeboats to 
train them to launch the same without com- 
mands, and that the said crew was there- 
fore not sufficient at all times to man said 
steam vessel carrying passengers, and that 
the injury to claimants arose from said in- 
sufficiency," and *^that the officers of said 
City of Rio de Janeiro in command of her 
eleven lifeboats could not speak any lan- 
guage which the members of the crew im- 
mediately under their command in launcli- 
ing said boats could understand, which said 
erew had not been trained in launching said 
boats, and therefore that said Pacific Mail 
Steamship Company has not supplied a full 
complement of officers sufficient at all times 
to manage a steam vessel carrying passen- 
gers, and that the injuries to the claimants 
arose through said insufficiency." 

It 18 apparent that, if this position of the 
claimants is well founded, the petitioner is 
not entitled to any limitation of its liabil- 
ity, the questions presented on its appeal 
become immaterial, and the claimants to 
whom damages were awarded by the court 
below will be entitled to judgment for the 
full amounts so awarded thejn, together 
with their costs, whether the voyage on 
which the disaster occurred should include 
the round trip from San Francisco to Hong 
Kong and back, as contended on the part of 
the claimants, or is limited to the return 
trip from Hong Kong to San Francisco, as 
contended on the part of the petitioner. The 
record shows tliat the disaster occurred about 
half past 5 o'clock of the morning of Febru- 
ary 22, 1901. The fog was so dense that the 
day afforded no light. It was very dark, but 
the water was smooth, and there was but 
little, if any, list to the ship as she sank, 
which slie did in twenty minutes from the 
time of striking the rocks. She carried 211 
persons and 11 lifeboats, 3 of which were 
swung by davits from the sides of the ship, 
and 8 of which were on skids on the roofs 
of the deckhouses. Their equipment and the 
apparatus for launching them was good. The 
evidence is that under such conditions five 
minutes was ample time for the lowering 
-of the boats. It further shows that there 
was no panic among the passengers or crew ; 
that the passengers behaved well; and that 
the captain, immediately upon the ship's 
striking the rocks, sounded the alarm, and 
called the crew to the boats. Each of the 
boats was commanded by a white officer, 
and manned by a part of the Chinese crew. 
<J9 L. R. A. 

Yet but three of the eleven boats were low- 
ered into the water, one of which (the aft 
quarter boat No. 10) was lowered by Offi- 
cer Coghlan and the ship's carpenter, and 
but three of the hundred and odd passen- 
gers that the ship carried were taken into 
:\ny boat. There must, in the very nature of 
things, have been some paramount, control- 
ling cause for all this. And that cause, we 
think, is very easily to be seen. It was not 
merely for the reason that the men depended 
upon to man* the boats were Chinese. To 
the contrary, the evidence is that the Chi- 
nese make excellent sailors. 

We extract the following from the testi- 
mony of Capt. Seabury, a most competent 
and experienced mariner, and who, at the 
time of giving his testimony r^ this cause, 
had completed his sixty-fifth round voyaj^'c 
from San Francisco to the Orient for the 

A, Every time I have been to sea on this 
side of the continent, and every time I have 
had a white crew, we have always had 
trouble with them getting drunk; especially 
sailing days. At times at sea — ^when I ran 
to Australia, where I made five voyages — 
twice we had a white crew, and there was 
scarcely a day but I did not have to go to 
the police court on account of some row that 
they made. I have always found the Chi- 
nese crew obedient, able to do their work, 
and always on hand in bad weather, and 
not eyeservants. You do not have to watch 
them in the ordinary run of work. 

Q. During those sixty-five voyages, Cap- 
tain Seabury, have you ever encountered any 

A. Yes, sir; two or three. 

Q. And any bad weather? 

A. Yes, sir; I had a very bad one last 

Q. At the time did you have a Chinese 
crew ? 

A. Yes, sir; on this same ship. 

Q, How did they behave in time of peril? 

A. As well as any men could possibly be- 
have. They never stow away in dark nights 
in bad weather. They are always right 
there, and you can always make sure of 

Q, Have you ever seen them in time of 
wreck ? 

A. I have never been wrecked, not since 
I have been steamshipping. 1 have in sail- 
ing schooners. We had pretty nearly a 
wreck on the Alaska in 1879, and had to' 
turn back. 

Q. With a Chinese crew? 

A. Yes, sir. 

Q, Did they behave well? 

A. Yes, sir. 

Q, How many men have you on the China 

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Re Pacific Mail Steamship Ca 


BOW in your crewt By the word "crew" I 
meau sailors. I do not mean men in the 
steward's department, or men in the steer- 
age department, or men in the fireroom. I 
mean crew — sailor men. 

Mr. Denman: I object to the question as 
incompetent, irrelevant, and immaterial, 
and in no way referring to the City of Rio 
de Janeiro, the ship in issue. 

A. Thirty-two. 

Mr. McAllister: Q. Thirty- two men? 

A. Yes, sir. 

Q. Can any of those men speak English T 

Mr. Denman: The same objection. 

1. All of them can speak English. Some 
cannot speak quite so well as others, but all 
of them can understand .when you give them 
an order about the ship. 

Mr. McAllister: Q. Can you give to a 
majority of that crew yourself an order in 
English to haul this rope, or do this or that, 
whatever you saw fit? 

A. Yes, sir. 

Q. And would they imderstand you! 

A. Yes, sir. 

But how about Chinese sailors, or sail- 
ors of any other class or race, who cannot 
understand the orders that become neces- 
sary in the course of their duties because of 
a lack of knowledge of the language in 
which they have to be given? That is the 
question we have to consider and determine 
here.* It is declared by § 4463 of the same 
statutes [U. S. Comp. Stat. 1901 p. 3045] 
that **no steamer carrying passengers shall 
depart from any port unless she shall have 
in her service a full complement of licensed 
otKoers and full crew, sutlicient at all times 
to manage the vessel, including the proper 
number of watchmen. But if any such ves- 
^I ... is deprived of the services of 
any licensed officer, without the consent, 
fault, or collusion of the master, owner, or 
any person interested in the vessel, the de- 
ticiency may be temporarily supplied, until 
■Withers licensed can be obtained." 

It is, as was said by Judge Hawley in Re 
Meyer, 74 Fed. 885, "the duty of the own- 
ers of a steamer carrying goods and pas- 
**>tiger8, not only to provide a seaworthy ves- 
^1. but they must also provide the vessel 
^ith a crew adequate in number, and com- 
petent for their duty with reference to all 

•Section 4403 of the Revised Statutes of the 
rnited States (U. 8. Comp. Stat 1001, p. 8058), 
provides that "wheuever damage Is sustained by 
any passeofrer or his baggage from explosion, 
Cre. collision, or other cause, the master and 
T^e owner of such vessel, or either of them, and 
tike vessel, shall be liable to each and every 
person so injured, to the full amount of d&m- 
«^ if It tiappens through any neglect or failure 
to comply with the provisions of tnis title, or 
through icnown defects or Imperfections of the 
f'eaming apparatus or of the hull " 
«9 L R. A. 

the exigencies of the intended route;" not 
merely competent for the ordinary duties of 
an uneventful voyage, but for any exigency 
that is likely to happen, such, for example, 
as unfortunately did happen in the present 
case, — the striking of the ship on a reef of 
rocks, — ^and the consequent imperative ne- 
cessity for instant action to save the lives 
of passengers and crew. The duty rested 
upon the petitioner to be prepared for such 
an emergency, not only by reason of the 
statute cited, but by the general maritime 
law. In the case of The Oentlemany 01 cot t, 
115, Fed. Cas. No. 5,324, it was held that 
the owners were liable for furnishing an in- 
adequate crew, which they shipped at the 
Gambia river. West Africa, large enough in 
numbers, but sick with fever. In Tait v. 
Leviy 14 East, 482, it was held that, where 
the captain did not know the coast, and en- 
tered the enemy's port, and was captured, 
the vessel was "incompetently fitted out," 
because there was no proper master for the 
purpose of the voyage. In Parsons v. Em- 
pire Transp. Co. 49 C. C. A. 302, 111 Fed. 
202, 208, we held that, where the owners ap- 
pointed an incompetent superintendent to 
manage ships in Alaskan waters, they were 
not entitled to a limitation of liability for 
loss arising from sending out a barge in 
wintry and stormy weather. There can, in 
our opinion, be no doubt that the crew of a 
ship must be not only sufficient in numbers, 
but also competent for the duties it may be 
called upon to perform. The case shows 
that the City of Rio de Janerio left the 
port of Honolulu, on the voyage under con- 
sideration, with a crew of 84 Chinamen, 
officered by white men. The officers could 
not speak the language of the Chinese, and 
but two of the latter — the boatswain and 
chief fireman — could understand that of the 
officers. Consequently, the orders of the of- 
ficers had to be communicated either 
through the boatswain or chief fireman, or 
by signs and signals. So far as appears, 
that seems to have worked well enough on 
the voyage in question, until the ship came 
to grief, and there arose the necessity for 
quick and energetic action in the darkness. 
In that emergency the crew was wholly in- 
efficient and incompetent, as the sad re- 
sults proved. The boats were in separate 
places on the ship. The sailors could not 
understand the language in which the or- 
ders of the officers in command of the respec- 
tive boats had to be given. It was too 
dark for them to see signs (if signs could 
have been intelligibly given), and only one 
of the two Chinese who spoke English ap- 
pears to have known anything about the 
lowering of a boat; and there had been no 
drill of the crew in the matter of lowering 
them. Under such circumstances>it is not 
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United States Circuit Coubt of Appeals. 


surprising that but three of the boats were 
lowered, one of which was successfully 
launched by the efforts of Officer Coghlan 
and the ship's carpenter, another of which 
was swamped by one of the Chinese crew 
letting the after fall down with a run, and 
the third of which was lowered so slowly 
that it was swamped as the ship went down. 
We have no hesitation in holding that the 
ship was insufficiently manned, for the rea- 
son that the sailors were unable to under- 
stand and execute the orders made impera- 
tive by t]ie exigency that unhappily arose, 
and resulted so disastrously to life, as well 
as to property. It results from what has 
been said that the court below also erred 
in denying the appellant Clara Barwick's 
claim made on her own behalf and that of 
her minor children, for damages for the 
death of her husband, on the ground that he 
was a fellow servant of the master and pilot 
of the ship. 
The action of the court in respect to the 

claim of Ruth Miller, executrix of the es- 
tate of Sarah Wakefield, deceased, was, in 
our opinion, correct. 

The judgment is reversed, and the cause 
remanded, with directions to the court below 
to enter judgment against the petitioner 
denying its application for a limitation of 
liability, and in favor of the respective 
claimants for the full amoimt of daninfjcs 
it has heretofore awarded them, with inter- 
est and costs, and in favor of the claimant 
Clara Barwick for such amount of daniageis 
as the court shall find from the evidence al- 
ready taken, or that may be taken, she is 
entitled to by reason of the death of her 
husband, and by reason of the loss of his 
personal effects; and against the claim of 
Ruth Miller, as executrix of the estate of 
Sarah Wakefield, deceased, in so far as it 
is based upon her death. 

Petition for writ of certiorari denied No- 
' vember 7, 1904. 


Samuel D. SMITH, Trustee, etc., of AlfT«d 
Smith, Deceased, 


C. Bates DANA et al 




1. Inv^atm^nt of the profits of ■ cor- 
poration In permanent workw does not 
capitalise them, so that upon the mile of the 
works the directors cannot distribute them as 
a cash dividend, which will beloof: to life 
tenants, and not to remaindermen, of the 

2. CasU dividends npon corporate stock 
belons to tUe life tenants notwithstand- 
inff they were derived from the sale of per- 
manent property in which profits had been 

8. TUe rule that cash dividends on cor- 
porate stock. Ko to life tenants* and 
stock dividends to the remaindermen, will not 
yield whenever an investlf?atlon ml^ht appear 
to indicate Its failure in a given case to ac- 
complish what might be conceived to be exact 
Justice, upon the basis of some theoretical 
view of the ultimate rights of persons assert- 
ing conflicting successive stock Interests. 

4. li^'lthdra^val from certain Incidental 
brandies of business which a cor- 
poration has been carrying on does 
not make the distribution of the money in- 
vested in them as dividends a partial liquida- 
tion which will carry the dividends to the re- 
maindermen as against life tenants, where the 

capital stock Is not impaired, and its value 
remains above par, and practically the same 
after the dividends as before. 

(March 9, 1905.) 

CROSS-APPEALS by the respective de- 
fendants from a judgment of the Supe- 
rior Court for Hartford CJounty in an in- 
terpleader proceeding to determine the 
rights of life tenants and remaindermen to 
certain corporate dividends. Ret^ersed on, 
the appeal of the life tenants. 

The facts are stated 'in the opinion. 

Mr. CharlM $. Oroaa, for I. C. Bates 
Dana, life tenant, appellant: 

Cash dividends are income, and go to the 
life tenant, and stock dividends are capital, 
and go to the remainderman. 

2 Thomp. Corp. chap. 35, art. 6, §8 2193, 
2199, 2201, 2207, 2208, 2211, 2212, 2222. 

The law of Connecticut follows the gen- 
eral rule. 

Mills V. Brition, 64 Conn. 12, 24 L. R. A. 
530, 29 Atl. 231 ; Terry v. Eagle Lock Co. 
47 Conn. 141; BrinUy v. Orou, 50 Conn. 
66, 47 Am. Rep. 617 : Hotchkiss v. Braincrd 
Quarry Co. 58 Conn. 120, 19 Atl. 521 ; 
Spooner v. Phillips, 62 Conn. 62, 16 L. R. 
A. 461, 24 Atl. 524. 

This rule is based upon the absolute ne- 
cessities of the case. 

Note. — As to rights of life tenants and re- 
maindermen with respect to stock dividends, 
see also. In this series, Spooner v. Phillips, 16 
L. R. A. 461 ; and note; Illte v. Hlte. 19 L. R. 
A. 178; Mills v. Britton, 24 L. R. A. 586: 
*i.* I.. U. A. 

Prltchott V. Nashville Trust Co. 33 L. R. A. 
856 ; McT^uth v. Hunt, 30 L. R. A. 230 : Qnlnn 
V. Safe Deposit & T. Co. 53 L. R. A. 169 ; and 
De Koven v. Alsop, 63 L. R. A. 587. 

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Brinley v. Grou, 50 Conn. 76, 47 Am. Rep. 
617; Spooner v. Philiipa, 62 Conn. 74, 16 
L. R. A. 461, 24 Atl. 524; Gibbons v. Ifafcon, 
136 U. S. 549, 34 L. ed. 525, 10 Sup. Ct. 
Rep. 1057; Hoichkiss v. Brainerd Quarry 
Co. 58 Conn. 137, 19 Atl. 521. 

The law presumes that a dividend made 
by a going concern is made from profits. 

2 Thomp. Corp. § 2193. 

The stockholders of the Holyoke Water 
Power Company never had any title to, or 
interest in, the earnings, property, or sur- 
plus (as such) of the incidental plants. 

GibhoM V. Mahon, 136 U. S. 549, 34 L. 
ed. 525, 10 Sup. Ct. Rep. 1057. 

They were the sole property of the water 
power company, when received were merged 
with its other assets, and whether they were 
spent or set aside, invested or paid out in 
cash dividends, it is impossible, as well as 
immaterial, to decide. 

2 Thomp. Corp. § 2207. 

The fact that these plants have been in- 
come producing does not make the proceeds 
thereof, when sold, capital. The capital of 
the company must be increased to take up 
such invested accumulations. 

JJessrs, OrosTenor Calkins and Rob- 
ert M« Waalibimi, for life tenants, ap- 
pellants : 

Cash dividends are income, and belong to 
the life tenant. 

\finot v. Paine, 99 Mass. 101, 96 Am. Dec. 
705; Brinley v. Grou, 50 Conn. 66, 47 Am. 
Rep. 617; Mills v. Brition, 64 Conn. 4, 24 
L. R. A. 536, 29 Atl. 231 ; Bo%ich v. Sproule, 
L. R. 12 App. Cas. 385; GibbonM v. Mahon, 
136 U. S. 649, 34 L. ed. 525, 10 Sup. Ct. 
Rep. 1057; Re Brotcn, 14 R. I. 371, 51 Am. 
Rep. 397 ; Richardson v. Richardson, 75 Me. 
570. 46 Am. Rep. 428: Lord v. Brooks, 52 
N. H. 72; Re Kernochan, 104 N. Y. 618, 
11 N. E. 149. 

It is the well -settled policy of all courts 
to interfere as little as posHible witli the 
management of corporate affairs, an' to 
establish plain and uniform rules to guide 
persons in fiduciary positions in the man- 
agement of their trusts. 

Bouch V. Sproule, L. R. 12 App. Cas. 385; 
Minot v. Paine, 99 Mass. 101, 96 Am. Dec. 
705; Richardson v. Richardson, 75 Me. 570, 
46 Am. Rep. 428; Lyman v. Pratt, 183 
HsLAS. 58, 66 N. E. 423. 

The only exception to the rule is that cash 
dividends declared in liquidation are prin- 
cipal, and belong, not to the life tenant, 
but to the remaindermen. 

Gifford V. Thompson, 115 MasH. 478. 

The courts are willing to be guided by a 
dear expression of intention in the form 
of a vote of the directors of a corporation 
in declaring a dividend. 

Gibbons V. Mahon, 136 U. S. 549, 34 L. 
69 L. R. ^\. 

ed. 525, 10 Sup. Ct. Rep. 1057; Bouch v. 
Sproule, L. R. 12 App. Cas. 385; Hemen- • 
way V. Hcmenicay, 181 Mass. 406, 63 N. E. 

This dividend of 65 per cent is not a divi- 
dend in liquidation, but is income, and 
should be paid to the life tenants. 

Harvard College v. Amory, 9 Pick. 446; 
Balch V. Ballet, 10 Gray, 402; Reed v. 
Head, 6 Allen, 174; Gifford v. Thompson, 
115 Mass. 478; Hemenicay v. Hemenway, 
181 Mass. 406, 63 Atl. 919; Second Univer- 
salist Church v. Colegrove, 74 Conn. 79, 49 
Atl. 902; Davis v. Jackson, 152 Mass. 58, 
23 Am. St. Rep. 801, 25 N. E. 21. 

Mr, Cliarlea Welle* Gross for plain- 

Mr. Edward I. Baker, for John M. 
Steele, Gertrude D. Steele, and C. Bates 
Dana, remaindermen, oppellants: 

The gas plant was a part of the original 
capital of the corporation. When the cor- 
poration invested its money in the con.<4truc- 
tion of the electric-light plant, and later 
in its purchase, the corporation permanent- 
ly capitalized that money, and the plant be- 
came a part of the permanent capital of the 
corporation just as the gas plant had al- 
ways been; and a distribution of that per- 
manent capital was not a dividend of earn- 

The rule that ordinary cash dividends are 
income, and stock dividends are principal, 
does not apply to a distribution of capital. 

Hotchkiss V. Brainerd Quarry Co. 58 
Conn. 120, 19 Atl. 621; Spoo7ier v. Phil- 
lips, 62 Conn. 62, 16 L. R. A. 461, 24 Atl. 
524; Heard v. Eldrcdye, 109 Mass. 258, 12 
Am. Rep. 687; Gifford v. Thompson, 115 
Mass. 478; Hemenv^ay v. Hemenway, 181- 
Vlasrt. 400. 63 N. K. 919; D'Ooge \. Leeds, 
176 Mass. 558, 57 N. E. 1025; M^heelcr v. 
Perry, 18 N. H. 307; Walker v. Walker, 
68 N. H. 407, 39 Atl. 432; /Jfe Skillman, 
2 Connoly, 161, 29 X. Y. S. R. 217. 9 N. Y. 
Supp. 469; Vinton's Appeal, 99 Pa. 434, 44 
Am. Rep. 110: Bouch v. Sproule, L. R. 12 
App. Cas. 385. 

Prentice, J., delivered the opinion of 
the court: 

The will of Alfred Smith, who . died in 
Hartford, the place of his residence, on Au- 
gust 12, 1808, was on August 16th follow- 
ing admitted to probate in the court of pro- 
hate for the district of Hartford. By th«» 
will the testator gave to trustees the sum of 
$100,000. By the terms of the trust the 
trustees were required to pay over the in- 
come to certain i)ersons designated during 
the lives of three grandchildren and the sur- 
vivor of them, and upon the death of the 
last survivor to divide and distribute the 
corpus in the manner provided^ Each jof 
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the throe grandchildren was made the bene- 
ficiary of a share of said income during his 
life. The defendant I. C. Bates Dana is the 
only one of them surviving. Certain of 
the other defendants are his children and 
the husband of one of them. The remain- 
ing defendants are the children of Alfred 
F. Dana» another of said grandchildren. The 
third died childless. It is assumed and con- 
ceded by all parties that these defendants 
embrace all who, under the provisions of 
the will, are, or can become, entitled to share 
in the income of the trust estate, and all 
who are, or can become, entitled to partici- 
pate in the division of the corpus upon the 
termination of the trust to pay over income, 
unless it be persons representing them or 
hereafter born children of said Bates Dana. 
The children of Alfred occupy the position 
of both liife tenants and remaindermen. The 
claim which they here assert is made in the 
former capacity. 

The will provided that, in setting apart 
said trust fund of $100,000, there should be 
included therein 300 shares of the stock of 
the Holyoke Water Power Company, which 
the testator owned ; the same to be taken for 
that purpose at their par value. That was 
done. The capital stock of said corpora- 
tion was then $350,000. July, 1877, said 
capital was increased to $600,000 by the 
issue of new stock subscribed and paid for 
at par. The right to subscribe for this new 
issue was accorded to existing stockholders 
pro rata. The trustees sold the rights at- 
taching to said 300 shares. In 1893 the 
capital stock was again increased to $1,200,- 
000, in the same manner as before. At this 
time the trustees subscribed for and took 
200 shares, making their trust holdings 500 
shares, and sold the remaining rights. De- 
cember 20, 1902, the directors declared a 
cash dividend of 65 per cent payable De- 
cember 24th to stockholders of record De- 
cember 20th. The plaintiff, who is the only 
survivor of the trustees, received the sum of 
$32,500 as the amount of said dividend upon 
said 500 shares. This sum he now holds. 
The defendants Bates Dana and the chil- 
dren of Alfred Dana claim the whole there- 
of as income to which they are entitled. The 
children of Bates Dana claim that the whole, 
or at least the bulk, of said sum belongs 
to the corpus of the trust estate, and 
should be held by the trustee as an accre- 
tion thereto. The trial court sustained this 
claim with respect to approximately two 
thirds of the dividend, and adjudged that 
the balance be divided as income. This con- 
clusion, and the reasons which the court 
gave in support of it, as well as those which 
counsel for said children of Bates Dana urge 
ill Mipport of their broader contention, re- 
«|\iire for their understanding and examina- 
6!) L. R. A. 

tion a statement of some of the facts which 
enter into the history of the corporation in 
question, and which serve to indicate the 
source and character of the corporate assets 
which formed the basis of the 65 per cent 
dividend. Previous to 1859 the Hadley 
Falls Company, a Massachusetts corpora- 
tion, had acquired a large tract of land 
where the city of Holyoke is now located, 
and had constructed a dam across the Con- 
necticut river, extending from South Had- 
ley, on the northeasterly shore, to Holyoke, 
on the southwesterly shore, of the Connecti- 
cut river, and had built locks and canals at 
Holyoke, and had laid out streets, sites for 
manufactories, tenements, and residences; 
and several factories, residences, and other 
buildings had been erected. Among other 
buildings, said Hadley Falls Company had 
constructed a small gas plant, which it 
operated. Subsequently said company went 
into a receiver's hands, and the Holyoke Wa- 
ter Power Company, hereinafter referred 
to as the Holyoke company, was, in 18o9. 
organized with a capital stock of $350,000 
to purchase and take over said property of 
said Hadley Falls Company. The purchase 
was made, the entire capital of the Holyoke 
company being paid as the consideration 
therefor. The purpose of the Holyoke com- 
pany, as defined in the act creating it, was 
'*of upholding and maintaining the dam 
across the Connecticut river heretofore con- 
structed by the Hadley Falls Company and 
one or more locks and canals in connection 
with the said dam, and of creating and 
maintaining a water power to be used by 
said corporation for manufacturing and me- 
chanical purposes, and to be sold or leased 
to other persons or corporations to be used 
for like purposes." The charter gave the 
corporation *'full power and authority to 
purchase, take, hold, receive, sell, lease, and 
dispose of all or any part of the estate, real, 
personal, or mixed, with all the water pow- 
er, water courses, water privileges, dam». 
canals, rights, easements, and appurtenances 
thereto pertaining or belonging, or there- 
with connected, or which have at any time 
lieretofore belonged unto, or been the prop- 
erty of, the said Hadley Falls Company, 
and any other real estate that may be re- 
quired for the use of said corporation for 
the purposes contemplated by this act." The 
Holyoke company continued the manufac- 
ture, sale, and distribution of gas by the 
usual means and methods, to supply the 
needs of the growing community which came 
into existence upon the site of its property, 
and which in time became the city of Hol- 
yoke, without other authority therefor than 
was contained in those portions of the ch:\T- 
ter recited until 1873. when special le«i il- 
lative authority was obtain^. In 1880 the 
Digitized by VjOOQIC 

1905. • 

Smith y. Dana. 


company was, as required by law of all per- 
sons engaged in the generation and sale of 
electricity, duly authorized to engage in 
that' business by an order of the board of 
gas commissioners. From that date down 
to December, 1902, it generated electricity 
for sale and distribution, erecting and main- 
taining a plant for that purpose. As the re- 
sult of proceedings instituted under the pro- 
visions of chapter 370, p. d49, of the acts 
of the legislature of Massachusetts of the 
year 1891, which are in the main similar to 
those in force in this state regulating the 
establishment of gas and electric plants by 
municipalities within which there are .ex- 
isting public service plants of that character 
owned by private corporations, the city of 
Holyoke on December 15, 1902, acquired both 
the gas and electric plants of the Holyoke 
company; paying therefor the sum fixed by 
the commission appointed for that purpose 
by the court under the provisions of said 
act. Upon such acquisition the right of the 
Holyoke company to engage in the business 
of manufacturing and distributing gas or 
electricity ceased by virtue of the provisions 
of said act. The amount so paid by said 
city to said company was $721,043. By the 
use of said sum and other moneys of the cor- 
poration on hand, which at the time did not 
exceed $150,.000 in amount, the dividend in 
question, requiring the disbursement of 
$780,000, was paid. The actual cost to the 
company of the electric-light plant was 
$243,776.34. Previous to the declaration of 
*aid dividend of 65 per eent the market 
value of the shares of said company was 
from $380 to $385 per share. At the time 
of its declaration the company held real 
and personal property amounting in value 
to more than $4,000,000 over and above all 
of its obligations. At the date of the com- 
mencement of this action the market value 
of the shares of the company, as evidenced 
by the sale of a few shares of said stock, ap- 
peared to be from $315 to $325 per share. 
All sums derived from the issue of stock 
have gone into the general treasury, and 
there become mingled with the other funds 
of the company. No separation of funds 
has been made, and it is impossible to trace 
the funds derived from any one source so 
as to follow them into any distinct, invest- 
ments. For many years the company has 
paid regular dividends of 10 per cent per 
annum. Between February 1, 1809, and 
January 15, 1901, it paid extra dividends 
tmounting to 90 per cent of the capital 

The present contention between those who 
6tand in the relation of life tenants and re- 
maindermen to trust funds invested in 
^tooks presents the oft-recurring question 
M to the rights of persons occupying those 
<5i> L. R. A. 

relations to participate in the benefits of 
a distribution to stockholders of the assets, 
or some portion of the assets, of the corpo- 
ration. In the present case a solvent and 
going corporation, whose, capital was un- 
dergoing no reduction in amount, declared 
a dividend payable and paid in cash. Life 
tenants of stock held in trust claim to be 
entitled to the dividend payment as income. 
Remaindermen claim that it should go to 
augment the capital account of the trust 
estate. In Minot v. Paine j 99 Mass. 101, 
06 Am. Dec. 705, the necessity of some 
plain and simple rule which in situations 
like the present, frequently arising, should 
serve to guide trustees in the discharge of 
their duties, and cestuis que trust in the 
determination of their rights, without a 
resort to harassing and expensive litigation, 
was expressed, and such a rule formulated. 
This rule made the character of the divi- 
dend the test. Cash dividends, it was said,, 
should be regarded as income, and stock 
dividends as capital. It was not pretended 
that this rule, which has been commonly 
known as the Massachusetts rule, was the 
ideal rule of reason; nor have the courts 
of high authority which have given their 
approval of it ever claimed it to be such, 
or one which would accomplish exact justice 
under all circumstances. What has been 
claimed for it is that its general appli- 
cation — at least if due regard be had for the- 
substance and intent of the transaction — 
would prove more beneficent in its conse- 
quences, and, on the whole, lead to results 
more closely approximating to what was 
just and equitable, than would the appli- 
cation of any other rule, or any attempt to 
go behind the declaration of the dividend 
to search out and discover the equities of 
each case according to some theoretical 
ideal. Gibhona v. Mahon, 136 U. S. 549, 34 
L. ed. 525, 10 Sup. Ct. Rep. 1057 ; Richard- 
con V. Richardson^ 75 Me. 570, 46 Am. Rep. 
428; Rand v. Buhhell, 115 Mass. 461, 15 
Am. Rep. 121; D'Ooge v. Leeds, 176 Mass. 
558, 57 N. E. 1025; Lyman v. Pratt, 183 
Mass. 61, 66 N. E. 423. The necessity for a 
rule which should serve as a guide and pro- 
tection to trustees in the performance of 
their duties is apparent. The advantages of 
one which would make ceaseless litigation, 
with its attendant harassment and expense,, 
unnecessary, are no less so. The uncertainty 
find difiiculties attending any attempt at ar- 
riving at the true equities between parties 
respectively asserting income and capital 
interests in the proceeds of a dividend de- 
clared are not so readily appreciated. It 
requires, however, but slight reflection to 
discover the magnitude of the obstacles to be 
surmounted, and the impossibility which 
must oftentimes be met, whereby^ the ju- 

Digitized by CjOOQIC 


Connecticut Supreme Coubt of Ebbobs. 

dicial search for precise equities necessarily 
becomes resolved into a speculation and a 
guess. There exists the ever-present diffi- 
culty of tracing financial results to their 
source, and of distinguishing between what 
of increased assets rightfully represents 
profits, and what increase of value to ap- 
propriate to capital. Above all, there enters 
into most situations, to render courts power- 
less to arrive at any certain results, a con- 
trolling factor arising from the discretion- 
ary power which directors rightfully exer- 
cise to determine at all times, within reason- 
able limits, the destiny of profits and of ac- 
cumulated profits represented by surplus. 
Gibbons v. Mahoriy 136 U. S. 549, 34 L. ed. 
525, 10 Sup. Ct. Rep. 1057. Profits may be 
distributed as earned. They may be, in 
whole or part, retained and utilized for the 
corporate advantage. They may be used for 
a time, and later distributed. Thoy may 
never be distributed, but permanently used 
in the business. Whether they will inure to 
the benefit of stockholders, in the way of a 
<lividend, may ever remain uncertain. 
Whether, in the ordinary course, they will 
fall to the lot of the life tenant, as profits 
rleclared, or remain to enhance the value of 
the stock, will depend in part upon the 
action of the directorate, and in part upon 
the term of the trust. They, as we shall have 
occasion to notice later on, can never acquire 
a status which must remain a fixed and 
abiding one unless they are formally 
<>apitalizcd. Their future is ever an un- 
certain one, and none save one who can 
foretell the action of boards of directors can 
discover it. The rights of stock are in- 
volved in this maze of doubt. Absolute 
rights there are not. Rights which are su- 
])erior to those which may at any time be 
created by corporate management may not 
exist. In the presence of such conditions, 
courts must oftentimes find themselves 
powerless to ascertain and determine riglits, 
since there may be nothing which lies with- 
out the domain of conjecture to act upon. 
The more the matter is studied, the more 
apparent it becomes that the Maine court, 
speaking of the Massachusetts rule through 
Chief Justice Peters, was justified in its ex- 
pression : "We are satisfied tliat this can be 
the only safe, sound, just, and practicable 
rule, and that any attempt to engraft refined 
and nice distinctions upon sucli rule will 
be productive of much more evil than 
any good that can come from it." Richard- 
son v. Richardson, 75 Me. 570, 46 Am. Rep. 
428. This court has heretofore given its 
adhesion to the doctrine of Mivot v. Paine 
as the one to be ordinarily applied. Mills v. 
Britton. 64 Conn. 4. 24 L. R. A. 536, 29 Atl. 
2:U; Brinley v. Grou, 50 Conn. 66, 47 Am. 
Rep. 618. 
69 L. R. A. 

An application of this principle would 
prima facie, at least, quickly resolve the 
present contention in favor of the life ten- 
ants. Tlie trial court, however, has regard- 
ed the rule as it has been adopted in this 
jurisdiction, at least, as a decidedly flexible 
one. The logical conclusion of the position 
taken in its exhaustive memorandum of de- 
cision, although not. stated in precise terms, 
is that the rule is such a tentative one that 
it will yield where it appears upon inquiry 
that justice will not be accomplished by it. 
Starting with this premise, the court ar- 
rived at the conclusion that in this case 
justice would not be done by its application, 
and the rule was therefore disregarded. An 
inquiry was then made into the sources of 
the funds out of which the dividend was 
paid, to discover what was conceived to be 
the true nature of the transaction, and the 
real equities of the parties claimant. The 
court thus arrived at three vital conclusions 
which dictated the judgment as rendered, to 
wit: (1) That the accepted general rule 
must yield where it fails to accomplish just 
and equitable results; (2) that such results 
would not be reached in this case by its ap- 
plication; and (3) that the results estab- 
lished by the judgment were the just and 
equitable ones. 

Let us first consider the last two of these 
conclusions, since they furnish the key to 
the court's action. It is said that the 
operation of the rule would be inequitable, 
because it would, under the circumstances, 
result in the diversion to the life tenants, 
under the guise of income, of that which of 
right belongs to the stock, as capital, and 
therefore is the remainderman's. It is said 
that the distribution made by the court is 
equitable, because it prevents that diversion, 
and gives the remaindermen what is equi- 
tably theirs, and that only. The same con- 
ception underlies both conclusions. They 
are, however, reached upon mistaken 
premises. These mistaken premises arise 
from a failure to properly distinguish be- 
.tween the different qualities which attach to 
the various assets of a private corporation, 
and between the different characters which 
these assents may assume. 

A citation from the memorandum of deci- 
sion will indicate the nature of the mis- 
conception which lies at the foundation of 
the trial court's argument and position, to 
wit: "All of the subject-matter of these 
awards was properly appropriated to the 
uses of these plants, and hence permanently 
made a part of the capital of the company. 
. . . Corporate profits undistributed 
lielong to the corporation. . . . WliCH 
such profits are expended upon the property 
of the corporation used in its bu-^iness, or 
devoted to the acquisition of new property 

Digitized by VjOOQIC 


Smith v. Dana. 


or to the creation of a new buBiness, these 
<!ODBtitute a permanent addition to capital, 
beyond the recall of the directors. Once 
capital always capital. It makes no dif- 
iemnce whether such augmentation of 
capital resulted from the proceeds of in- 
crease of block, or from profits appropriated 
to capital. It is the thing done with the 
funds which determines. Did it go to the 
increase or addition to the property of the 
corporation, and has it become permanently 
devoted as such to its uses? This is the 
test." The misconception eihbodied in this 
statement was not a new one. It appears in 
the opinion in Hcmentoay v. Hemenxoayt 181 
Mass. 406, 63 N. E. 919, from which source 
the trial court apparently derived it. As 
that opinion was the utterance of the same 
court which promulgated the rule in Minot 
T. Paine, and which has since repeatedly af- 
firmed that rule, its expressions in argument 
were naturally accepted as authoritative 
without careful analysis. They will not, 
however, bear such analysis. 

"Capital" is a term which, as applied to 
private corporations as ordinarily consti- 
tuted, is used with widely varying significa- 
tions. In one sense — the strict sense — it is 
employed to designate specifically the fund, 
property, or other means contributed, or 
:i2recd to be contributed, by the share own- 
ers as the financial basis for the prosecution 
of the business of the corporation; such 
'^intribution being made either directly 
through stock subscriptions, or indirectly 
through the declaration of stock dividends. 
As thus used, the term signifies those re- 
•^ources whose dedication to the uses of the 
<^rporation is made the foundation for the 
i*<uance of certificates of capital stock, and 
which, as the result of the dedication, be- 
come irrevocably devoted to the satisfaction 
of all the obligations of the corporation. 
i^tate V. Norwich d W, R. Co. 30 Conn. 290; 
Baileij v. Clark, 21 Wall. 284, 22 L. ed. 651; 
Chnstensen v. Eno, 106 N. Y. 97, 60 Am. 
Rep. 429, 12 N. E. 648; Iron R. Co. v. Law- 
rence Furnace Co. 49 Ohio St. 102, 30 N. E. 
♦nC: Reid v. Eatonton Mfg. Co. 40 Ga. 103, 
3 Am. Rep. 563; Com. v. Charlottesville Per- 
petual Bldg. d L. Co. 90 Va. 790, 44 Am. St. 
Rep. 950, 20 S. E. 364; Thomp. Corp. § 
1^. Sometimes the term "capital" is used 
when what is meant to be designated is that 
portion of the assets of a corporation, re- 
gardless of their source, which are utilized 
for the conduct of the corporate business 
and for the purpose of deriving therefrom 
srains and profits. lotoa State 8av. Bank v. 
Burlington, 98 Iowa, 739, 61 N. W. 851; 
f*^ple ex rel. Lemmon v. Feitner, 56 App. 
Div. 280, 67 N. Y. Supp. 893; Hemenway v. 
Htmenvoay, 181 Mass. 406, 63 N. E. 919. 
Frequently the term is employed in a still 
WL.R. A. a 

wider sense, as descriptive of all the assels, 
Tvo&s or net, of a corporation, whatever 
their source, investment, or employment. 
Security Co. v. Hartford, 61 Conn. 89, 23 
Atl. 699; Batterson'a Appeal, 72 Conn. 374, 
44 Atl. 546 ; People ex rel. Union Trust Co. v, 
Coleman, 126 N. Y. 433, 12 L. R. A. 762, 27 
N. E. 818; Ohio d M. R. Co. v. Weber, 96 
111. 443; State ex rel. Batz v. Lewis, 118 
Wis. 432, 95 N. W. 388. 

In Hemenway v. Hemenway, 181 Mass. 
406, 63 N. E. 919, the court drew a distinc- 
tion between those undistributed profits 
which have been applied to and invested in 
tlie increase and improvement of the prop- 
erty used in the business of the corporation, 
and those profits which may have been set 
aside for use in the conduct of the business, 
but not invested in permanent works. The 
former, it said, was capital; the latter, 
"floating capital." The former, it said, 
was as effectually capitalized as they would 
have been through the declaration of a stock 
dividend. The trial court accepted this 
principle as a sound one, and thereon based 
its argument and conclusions, as witness its 
language already recited, to wit: "When 
such profits are expended upon the property 
of the corporation used in its business, or 
devoted to the acquisition of new property, 
or to the creation of a new business, these 
constitute a permanent addition to capital, 
beyond the recall of the directors. Once 
capital always capital." This proposition 
contains a fundamental error. The quality 
and incidents of surplus, however invested 
or employed, are not the same as those of 
capital, within the strict meaning of that 
word. Capital, in that sense, constitutes a 
fund so set apart and devoted to the corpo- 
rate uses and the security of creditors that 
the law jealously guards it from the en- 
croachment of directors in the declaration 
of dividends. It is placed beyond their 
reach for that purpose, and no way is open 
to them to return it to the share ovraers. 
Its dedication is irrevocable, and it must 
ever remain a fund held in trust for credit- 
ors, unless some judicial or other process 
authorized by legislation intervene. Of it, 
it may well be said, "Once capital, always 
capital." It is not so of undistributed 
profits or surplus in any form. They may 
be effectually dedicated to corporate uses 
through the processes of a stock dividend, 
but until so dedicated they are not removed 
from the reach and control of directors. 
The manner of utilization may be changed, 
investments altered, permanent property 
sold and turned into cash, and experimental 
or other enterprises abandoned, with a 
realization upon the investments therein, all 
at the discretion of directors, with no such 
artificial consequence that the assets thus 

Digitized by LjOOQIC 

Connecticut Supreme Coubt of Erbobs. 


employed change their character as the re- 
sult of the process. Investment in perma- 
nent works does not, and ought not to, capi- 
talize. Directors can, in their discretion, 
fairly exercised, withhold profits, and em- 
ploy them in the conduct or enlargement of 
the business. By the same right they ought 
to be able to, and can, withdraw from any 
action which will enable the assets thus em- 
ployed to be returned to their original con- 
dition, as funds available for distribution to 
those to whom they might have been orig- 
inally divided as dividends. Capital of this 
kind does not bear the perpetual stamp of 
capital. It simply constitutes a portion of 
the corporate assets which are within the 
discretionary control of the directors, which 
they may use for the corporate advantage in 
such ways as have the approval of their 
judgment, or, if that course seem wiser, 
cease using, and by proper action withdraw 
from the corporate resources. 

It follows that the court's second and 
third conclusions, in so far as they rest upon 
the mistaken proposition that undistributed 
profits which may become invested in perma- 
nent works, property, improvements, or 
acquisitions or business extensions, become, 
by their very nature, a permanent addition 
to capita], beyond the recall of directors, 
and possessing the quality of capital, in the 
strict sense, are unjustified. There is noth- 
ing growing out of the corporate relation, or 
any of the incidents of corporate estate, 
which can support the argument which 
is made to rebut the presumption that, 
when a solvent, going concern declares 
a lawful dividend, it is one to be paid out of 
profits, since capital cannot be impaired. 
2 Thomp. Corp. § 2192. 

We have thus far pursued the line of ar- 
gument of the trial court. There is another 
aspect of the question which possibly re- 
quires attention. While invested assets do 
not become capital in such sense that they 
thereafter have the quality and incidents of 
strict capital, it might be suggested that the 
character of such assets, by their investment 
in permanent works, improvements, or ex- 
tensions, becomes such that, as between own- 
ers of successive stock interests, they ought, 
in justice, to be regarded as capital, in the 
general sense that it should thereafter be- 
long to the capital rather than the income 
side of those interests. 1 Cook, Corp. § 8. 
The reason for this is not apparent. Their 
source is presumptively and for the most part 
in fact profits. 2 Thomp. Corp. §2192, and his 
article on Corporations, 10 Cyc. Law & Proc. 
p. 502. In so far as such is the case, their 
status as invested f*urplus has been created 
by the lawful fiat of directors, through the 
withholding and appropriation for use of 
what might have gone out as income. Qib- 
69 L. R. A. 

bans V. Mahon, 130 U. S. 549, 34 L. ed. 525. 
10 Sup. Ct. Rep. 1057 ; Bouch ▼. SprouU, L. 
R. 12 App. Cas. 385; Pratt v. Pratt, 33 
Conn. 446. It would seem fair that its re- 
turn b^ the same means to its original 
status should be as possible as its first 
transition, and as fair that when it has been 
transformed back into cash, and a cn<h 
dividend declared and paid therefrom, the 
benefit of that dividend should be dependent 
upon the final act of the directorate thereon, 
as upon some arbitrarily chosen inter- 
mediate act. Our adopted rule re.«ts upon 
that proposition. It sees no injustice in its 
general application, and therefore admits of 
no relaxation when other conditions are not 

There remains to be considered still an- 
other aspect of the case: The court finds 
justification for its conclusions, and coun<^.>l 
for the remainder interests attempt to sup- 
port the judgment, upon a line of reasoning 
which differs in form, at least, from thoso 
already considered, although it may appear 
that in its ultimate analysis it rests upon 
the same fundamental erroneous conception. 
We have therefore to return to a considera- 
tion of the first of the court's conclusions, 
as we have classified them. The memo- 
randum of decision discloses that the trial 
court accorded to the rule as adopted in this 
jurisdiction too much elasticity. We have 
already had occasion to discuss its impor- 
tance and beneficent Ciiaracter when reason- 
ably interpreted and applied. If our obser- 
vations were well made, and the commenda- 
tions of eminent autborities justified, the 
conclusion would follow that it was not 
only a safe and sane one upon occasions, but 
also a rule which, if used with a proper re- 
gard for the substance and intent of the vote 
of declaration, would be a judicious one for 
general application, and to which few, if 
any, exceptions should be admitted. In that 
spirit and to that eflTect it has been accept- 
ed by this and other courts. We have no oc- 
casion to make the academic inquiry as to 
whether, the rule being interpreted as sug- 
gested, any, or what, circumstances would 
justify a suspension of its operation. 
Certain it is that it ought not to be, and is 
not, one which yields whenever an investi- 
gation might appear to indicate its failure 
in a given case to accomplish what might be 
conceived to be exact justice, upon the basis 
of some theoretical view of the ultimate 
rights of persons asserting conflicting suc- 
cessive stock interests. One of the purposes 
of .the rule is to put an end to all such in- 
vestigations under all ordinary conditions, 
at least. The prohibition of inquiry 
naturally and properly extends to all that 
field of investigation which we have thus far 
had under consideration in this 

Digitized by 



Smith v. Dana. 


There remains, however, another aspect of 
the situation before us, which is relied upon 
as satisfying the conditions of what is 
termed an approved exception. As nothing 
else is pointed out as justifying a departure 
from the literal enforcement of the rule, we 
may well confine our discussion to the claim 
which is made. In Second Universalist 
Church V. Colegrove, 74 Conn. 83, 49 Atl. 
902, we held that, wh»re the assets of a cor- 
poration were distributed to the share own- 
ers in liquidation, they were, as between 
life tenants and remaindermen, to be treated 
as principal or capital, and not income, al- 
though the distribution was made in the 
form of a cash dividend. See also, to the 
same effect, Gilford v. Thompsoriy 115 Mass. 
478. It is needless to inquire whether or 
not the principle involved in these cases 
constitutes a true exception to the general 
rale, as properly interpreted. Whether it 
does or not^ it is plain that it is a just and 
sound one. On the behalf of the remainder- 
men it is contended that this principle is as 
applicable to partial as to complete liqui- 
dations. By "partial liquidations'* we 
understand to be meant proceedings involv- 
ing the surrender by the corporation of 
portions of its capital. The contention may, 
for the purposes of this case, be conceded. 
But there has been no liquidation, complete 
or partial, of the Holyoke company, or any- 
thing tantamount thereto. The company 
has withdrawn from certain incidental 
branches or departments of its business, as 
it was formerly, in the discretion of its 
directors, conducted, and converted what 
had been the investment of some of its as- 
sets in those departments into cash. The 
amount of the company's capital stock after 
the dividend remained unchanged. It was 
not only unimpaired, but continued to repre- 
sent an ownership of net assets amounting 
to nearly three times the par value of its 
ttodc The shares continued to be worth 
S300 or more each. The business of the cor- 
poration remained the same, in its general 
character and purposes, and the inception of 

these proceedings found it a prosperous, go- 
ing concern, — the same, in all essentials, it 
was before the city of Holyoke's threatened 
competition made a change in the scope of 
its operations an apparently wise act of cor- 
porate management. Clearly, there was 
nothing in the nature of liquidation or a 
return of capital in the transactions imder 

The remaindermen claim that they will 
be aggrieved if the life tenants are per- 
mitted to take this dividend. That must de- 
pend upon the view which is taken of their 
rights and equities. Tlie advocates of ju- 
dicial investigation for the purpose of ascer- 
taining and establishing in each case the 
rights of the parties have most commonly 
and confidently asserted that the rule which 
alone could lead to exact justice was one 
which recognized the right of remaindermen 
to have the capital and those profits which 
had accumulated prior to the inception of 
the trust retained in the corpus, and that of 
life tenants to receive subsequent accumu- 
lations. Earp'a Appeal, 28 Pa. 368; 
Smith's Estate, 140 Pa. 344, 23 Am. St. Rep. 
237, 21 Atl. 438; 2 Thomp. Corp. § 2196; 2 
Cook, Corp. 9 652. Even if this rule, which 
of all rules professes to be most mindful of 
strict equities, were accepted for appli- 
cation to the present situation, we should 
look in vain through this record to discover 
any suggestion that a disposition of this 
dividend as income would operate to the 
injury of those asserting the remainder 
interest in the corpus, which, after the divi- 
dend, remained worth three times what it 
was worth when the trust took effect. 

It is conceded that the decision of the case 
is to be governed by the law of Connecticut. 
Massachusetts law would lead to the same 

There is error. The judgment is reversed, 
and the cause remanded for the rendition of 
judgment in accordance with the views here- 
in expressed. 

The other Judges concur. 


Abraham WOLFF, Appt., 



(21 App. D. C. 464.) 

1- A boTs« block or •tepplntr atone of 
orAlamry siae, placed on tUe edare of 

tUe sideifvalk to facilitate access to and 
egress, from carriages In the street, is not an 
obstruction to the walk, so as to render the 
muuicipallty liable for injuries caused by a 
traveler falling over it. 
2. A ninnidpal corporation i« not lia- 
ble for injuries canaed to a traveler 
by falling over a horae block on the 
sidewalk because sufficient light is not main 

NoTB. — ^As to liability of city for injury 
caused by rise in sidewalk, see, in this series, 
Watertown v. Greaves, 56 L. B. A. 865. 

As to liability for fall caused by step in 
«» L. R. A. 

sidewalk, see Teagar y. Flemingsburg, 53 L. R. 
A. 791, with note as to liability of municipal 
corporations generally for defects in streets. 

Digitized by VjOOQIC 


DiSTBicT c. Columbia CJoubt of Appeals. 


talned near it to render It yisible to passers- 

(April 7, 1903.) 

APPEAL by plaintiff from a judgment of 
the Supreme court in favor of defendant 
in an action brought to recover damages for 
I)ersonal injuries alleged to have been caused 
by obstructions which defendant unlawfully 
allowed to be upon a sidewalk. Affirmed, 

The facts are stated in the opinion. 

Messrs. D. W. Baker and Jolm C. Git- 
tinss, for appellant: 

This carriage block in question was an un- 
lawful obstruction of the street, and it was 
the clear duty of the District to see that all 
sidewalks were free from obstructions of 
every kind and character. 

D. C. Rev. Stat. §§ 222, 225-227, 229; 
United States v. Cole^ 7 Mackey, 504; Dis- 
trict of Columbia v. Libhepy 9 App. D. G. 
321 ; Curry v. District of Columbia^ 14 App. 
D. C. 423. 

There being an unlawful obstruction in 
the streets of a municipal government, of 
which it has knowledge, it is certainly its 
duty to cause the same to be removed. 

Scranton v. Catterson, 94 Pa. 203; Davis 
v. Austin^ 22 Tex. Civ. App. 460, 54 S. W. 
927; Barnes v. District of Columbia, 91 U. 
S. 540, 23 L. ed. 440; District of Columbia 
V. Woodbury, 136 U. S. 450, 34 L. ed. 472, 
10 Sup. Ct. Rep. 990. 

Messrs. Andrew B. Dnvall and E. H. 
Thomas, for appellee: 

A pedestrian has no right to assume that 
the portion of a public sidewalk ordinarily 
occupied Ly steps and inner-line projections, 
or the outer portion commonly occupied by 
carriage steps and the like, can be passed 
over with freedom; and it is negligence in 
him to use such portions of the sidewalk 
without at least casual observation of their 

Howes V. District of Columbia, 2 App. D. 
C. 188. 

The use on the curb line of such a common 
article or thing as a carriage step was not 
of itself notice that it was necessarily 
hazardous or dangerous. 

District of Columbia v. Moulton, 182 U. 
S. 581, 45 L. ed. 1237, 21 Sup. Ct. Rep. 840; 
Allis V. Columbian University, 8 Mackey, 
270; District of Columbia v. Ashton, 14 
App. D. C. 579. 

The immediate cause of the plaintifTs ac- 
cident in this case was the reckless speed 
with which, without looking, he approached 
the wagon, and not the existence of the car- 
riage step alone. 

Sirart v. District of Colurnbia, 17 App. D. 
C. 412; District of Columbia v. Brewer, 7 
App. D. C. 113, Reaffirmed in Mosheuvel v. 
District of Columbia, 17 App. D. C. 401; 
69 Iv. R. A. 

Quimby v. Filter, 62 N. J. L. 766, 42 Atl. 

If one, in passing over a sidewalk, fails to 
exercise ordinary care, he is not entitled to 

Moore v. Richmond, 85 Va. 538, 8 S. E. 
387; Dubois v. Kingston, 102 N. Y. 219, .V> 
Am. Rep. 804, 6 N. E. 273; Robert v. Potcelh 
168 N. Y. 415, 55 L. R. A. 775, 85 Am. St. 
Rep. 673, 61 N. E. 699; Vincennes v. Thuis, 
28 Ind. App. 523, 63 N. E. 315; District of 
Columbia v. Moulton, 182 U. S. 582, 45 L. 
ed. 1237, 21 Sup. Ct. Rep. 840. 

A stepping stone upon a sidewalk in front 
of a house, which does not interfere to an 
unreasonable extent with the use of the side- 
wnlk, is not an unlawful obstruction, nor a 
nuisance, nor does it constitute negligoncM* 
which will render a municipality liable to 
one who is injured by falling over it. 

Uotces V. District of Columbia, 2 App. I). 
C. 188; Dubois v. Kingston, 102 N. Y. 210. 
55 Am. Rep. 804, 6 N. E. 273; Robert v. 
Powell, 168 N. Y. 414, 55 L. R. A. 775, S.-> 
Am. St. Rep. 673, 61 N. E, 699: Cincinnati 
V. Fleischer, 63 Ohio St. 229, 58 N. E. 568 : 
Macombcr v. Taunton, 100 Mass. 255 ; Rock- 
ford V. Tripp, 83 111. 247, 25 Am. Rep. 381 ; 
Ticsler v. Norwich, 73 Conn. 199, 47 Atl. 
161; Vincctines v. Thuis, 28 Ind. App. 523, 
63 N. E. 315: Canavan v. (HI City, 183 Pa. 
611, 38 Atl. 1096; Homer v. Philadelphia, 
194 Pa. 542, 45 Atl. 330; Cushing v, Boston, 
124 Mass. 434. 

AWey, Ch. J., delivered the opinion of the 
court : 

This is an- appeal from the supn'iiu- 
court of the District of Columbia. The 
action was brought by the appellant, 
Abraham Wolff, against the District of Co- 
lumbia to recover damages suffered by the 
plaintiff, occasioned, as alleged, by what is 
contended to be a nuisance or an unlawful 
obstruction allowed to exist in C street X. 
W., in the city of Washington, by the de- 
fendant, the municipal corporation of the 
District of Columbia. 

The cause of action, as set forth in the 
amended declaration of the plaintiff, is 
stated to be that the defendant, as a mu- 
nicipal corporation, was in duty bound to 
keep the sidewalks of the streets in the city 
of Washington free from obstruction, nui- 
sances, or encumbrances, so as to be safe for 
all travelers thereon, including the plaintiff : 
and the breach of duty of the defendant, as 
alleged in the declaration, was, that the de- 
fendant wrongfully and negligently allowed 
"a certain large stone, several inches high 
above the surface of the sidewalk, usually 
termed a carriage step, to impede travel and 
encumber that part of said sidewalk which 
was opposite to and in front of a certain 

Digitized by 



Wourr y. Distbict of Columbia. 


bouse known as the Saengerbund Hall, be- 
tween Third and Four-and-a-half streets on 
C street northwest," during the night of the 
27th day of October, 1895, while said street 
was enveloped in darkness, without fixing 
any light or sign at or near said stone, and 
without placing any watchman or other per- 
ron to warn plaintiff of its existence, posi- 
tion, and location, and without placing any 
^ard or screen around said stone, by 
means of which the plaintiff stumbled and 
tripped against and fell over said stone and 
was injured, without any neglect on his 
part, and he claims $25,000 damages. 

The defendant pleaded the general-issue 
plea of not guilty, and the case was tried 
and resulted in a verdict and judgment for 
the defendant. 

There was considerable proof taken at the 
trial, both as to the occurrence of the acci- 
dent, and as reflecting upon the question of 
contributory negligence of the plaintiff, as- 
suming that it might be shown that there 
was negligence on the part of defendant. 
But. in the view that we take of this case, 
the question of contributory negligence on 
the part of the plaintiff, in producing the 
injury complained of, is not an element in 
the case, and therefore is not a matter for 
consideration. The carriage block or step 
over which the plaintiff fell and injured 
himself is shown to have been of the ordi- 
nary size and character, a block of brown 
*tone a little more than 2 feet long, about 
15 inches wide, and about 8 inches high 
from the surface of the pavement, and oc- 
cupied a position in or at the curb dividing 
the street from the sidewalk, immediately 
in front of the door of the Saengerbund 
building. No. 312 C street N. W., on the 
'*uth side thereof; and that this block of 
stone or carriage step had been there from 
the time the building was erected, many 
Tears prior to the time of the accident, and 
without question by anyone. It was similar 
in size and character to the one set in the 
(urb in front of the adjoining building, No. 
•^U. and which had been used for many 
years, according to the testimony in the 
<a*e. The plaintiff, in coming out of the 
SaenfTcrbund building, by a quick and rapid 
?ait. and intending to go to the vehicle 
awaiting him in the street in front of the 
door of the Saengerbund, stumbled over the 
ferriage block at the curb, and was thrown 
<iown, and fractured his leg. Ke swears that 
he did not see the carriage block in his way, 
nnd that there was not sufficient light to 
«-nable him to detect his danger. 

At the close of the evidence the court be- 
^"w. being of opinion that there >vas no case 
made out for the plaintiff, instructed the 
jury to render their verdict for the defend- 
ant, which was accordingly done, and the 
WL.R. A. 

plaintiff excepted; and from the judgment 
the plaintiff has appealed. 

The error assigned is, that the court below 
committed error in directing the verdict for 
the defendant. 

It is contended by the plaintiff that the 
carriage block in question was an unlawful 
obstruction of the sidewalk, and consequent- 
ly a public nuisance, and that, being so, it 
was the plain duty of the municipal au- 
thorities of the District to see that all side- 
walks were kept free from obstruction of 
every kind and description ; and §§ 222. 225, 
226, 227, and 229 of the Revised Statutes re- 
lating to the District of Columbia are cited 
and relied on in support of the proposition. 

By § 226, D. C. Rev. Stat., it is provided 
that "it shall be the duty of the chief of 
engineers, in charge of the public buildings 
and grounds, to cause obstructions of every 
kind to be removed from such streets, ave- 
nues, and sidewalks in the city of Washing- 
ton as have been, or may be, improved, in 
whole or in part, by the United States, and 
to keep the same, at all times, free from ob- 
structions." And by § 229 it is provided 
that, **if any person shall place any obstruc- 
tion on the street.s, avenues, or sidewalks so 
improved by the United States, such persons 
shall pay the costs of removing the same, 
and shall be subject to a penalty of $10, to 
be recovered as other debts are recovered in 
said District, for each and every day the 
obstruction may remain after the chief of 
engineers shall have given notice for its re- 

Without stopping to inquire what duty 
these sections of the Revised Statutes im- 
posed, if any, upon the commissioners of the 
District, the quesfion here presented is. 
whether an ordinary carriage block or step, 
such as we have in this case, and such as 
has been in use from time immemorial, as 
an incident or appurtenant of convenience, 
if not of necessity, to places of business and 
residences in cities, constitutes an obstruc- 
tion within the meaning of the sections of 
the statute quoted. It is clear, the pro- 
visions of the statute do not apply to many 
things that may, in a senSe, be regarded as 
obstructions to the sidewalks of a city. 
They certainly do not apply to the shade 
trees growing along the sidewalks, nor to 
lamp posts, water hydrants, awning posts, 
telegraph or telephone poles, that we find 
everywhere, in the city, along the sidewalks. 
All these things may be regarded, in a par- 
ticular sense, as obstructions, but they are 
not such within the meaning of the statute. 
They are objects allowed and authorized, by 
immemorial custom and usage, as being 
necessary to the health, convenience, pro- 
tection, and enjoyment of the homes and 

lives of the inhabitants of the citj^ Whewjp 

igi ize y ^ 

District of Columbia Court of Appeals. 


these objects of convenienco and comfort 
have been subject to proper regulation, as 
they always are and should be, they have 
never been regarded as nuisances, either 
public or private. And, in the case of a 
carriage step or block, it is of such reason- 
able convenience and such a necessary ap- 
purtenant to dwellings and places of busi- 
ness on the streets of a city that the right 
to maintain it, of a proper size and in a 
proper position, has seldom been attempted 
to be questioned. The legal existence of 
carriage steps or blocks was fully recognized 
in this city long before the occurrence of the 
accident, the subject of the present action, 
and they have been regulated by both the 
building and police regulations prescribed 
by municipal authority. Their legal exist- 
once has been explicitly recognized by this 
court in the case of Howes v. District of 
Columbia, 2 App. D. C. 188, and that case is 
in accordance with decisions of the highest 
authority elsewhere. 

In the case of Dubois v. Kingston, 102 N. 
Y. 219, 56 Am. Rep. 804, 6 N. E. 273, it was 
the unanimous opinion of the court of ap- 
peals of New York that a stepping stone in 
the front of a public building, just inside 
the curb of the sidewalk^ was not such an 
obstruction as would render a city liable for 
an injury sustained by a person falling 
over it, even though others had been previ- 
ously injured by falling over the step. It 
appeared that the plaintiff was injured 
while running to a fire, which appeared to 
be in the direction of his own house, in the 
city of Kingston, by falling over a stepping 
stone lying in the sidewalk in one of the 
streets of the city. The stone was 3 feet 4 
inches in length, 20 inches w^ide, and 14 
inches high. It lay lengthwise with the 
curb and on the side thereof, in front of the 
building containing the postoffice, a music 
hall, and several stores. In the opinion, the 
court said: "Actions against municipal 
corporations for injuries sustained by indi- 
viduals while using or passing along its 
streets are founded upon the ground of 
negligence of its officers in the performance 
of their official duties, and cannot be main- 
tained without evidence showing that they 
have been derelict in this respect, by means 
of which the injury has been sustained. We 
think there was no such proof upon the trial 
of this action. The stepping stone over 
which the plaintiff fell and was injured was 
not of unusual size or of an improper con- 
struction, nor was it located at an improper 
place. It was placed in a position on the 
sidewalk most convenient for persons who 
should alight from a wagon or carriage or 
get into the same from the sidoualk, and 
tlius it was a means of acooiinnodition to 
those who had business at the postotlice, or 
69 L. R. A. 

in the building in front of which it wa^ 
located. It was not any more exposed than 
was essential for its proper and useful lo- 
cation." And in the conclusion of the 
opinion it was said: "It would be extending 
the rule of the liability of municipal corjw 
rations far greater than has yet been done 
in any decided case, to hold that they are 
liable for assenting to the placing of step- 
ping stones on the edge of sidewalks in front 
of hotels, stores, public buildings, and 
private residences. The courts have gone 
quite far in holding such corporations to a 
very strict responsibility in reference to ac- 
cidents caused by a failure of their officers 
to keep the streets and sidewalks in a proper 
and safe condition; but it would be addin<; 
to the corporate liability beyond reasonable 
limits to hold that stepping stones, which 
are almost a necessity in providing for the 
interest, comfort, and convenience of the 
public in the maintenance of walks, ave- 
nues, and streets, constitute a nuisance or 
obstruction, and that [municipal] corpo- 
rations are liable for damages by reason of 
accidents caused thereby." 

In the more recent case of Robert v. 
Powell, 1G8 N. Y. 414, 55 L. R. A. 775. So 
Am. St. Rep. 073, 61 N. E. 699, the same 
principle is very fully laid down. In this 
latter case the action was brought agnin>t 
the owner of the dwelling in front of which 
the carriage block was placed. It was held 
by the unanimous opinion of the court that 
the block, being of an ordinary size, and 
placed in the usual position at the curb, was 
not an unlawful obstruction of the sidewalk, 
and the plaintiff could not recover for in- 
juries received by stumbling over the step. 
In that case, on the night of the accideni, 
the plaiutifT, while walking rapidly on Fifty- 
eighth street, crossed the street diagonally 
from the defendant's house, in order to take 
a cab, and stumbled over a stepping stoin* 
or carriage block maintained by the de- 
fendant in front of her residence. The stone 
over which the plaintiff fell was 18 inches 
high, 13 inches long, and 16 inches wide. 
In the opinion the court said: "The st^^'p- 
ping stone in this case, located upon the 
sidewalk in front of a private house, was a 
reasonable and necessary use of the street, 
not only for the convenience of the owner of 
the house, but for other persons who desired 
to visit or enter the house for busine^^s or 
other lawful purpose. It did not interfere 
in the least with the use of the roadway or 
bed of the street; nor did it interfere to any 
appreciable or unreasonable extent with the 
use of the sidewalk. There were 8 feet of 
a clear, open space upon the sidewalk for 
the use of travelers, and the fact that the 
plaintiff, while hurrying in the nighttime 
to take a cab, stumblg^ over the stone. 
Digitized by VjOOQIC 


Wolff y. District of Columbia. 


irh^n the place was well lighted and the ob- 
ject plainly visible, does not prove, or tend 
to prove, that the defendant was guilty of 
any wrong or breach of duty in maintaining 
the stepping stone in front of her house. It 
is true that the plaintiff was injured, but 
that was the result of an accident, due, 
possibly, to his own fault, but at all events 
not to any fault on the part of the defend- 
ant, or to any unlawful obstruction by the 
defendant of the street. The question in- 
volved in the case is, we think, well settled 
by authority. Dubois v. Kingston, 102 N. 
Y. 219, 55 Am. Rep. 804, 6 N. E. 273 ; 
Dougherty v. fforseheadSy 159 N. Y. 154, 53 
X. K 799. While it is said that these 
cases involved only the question of liability 
on the part of a municipality for negligence, 
they also decided that the existence of ob- 
iii?ts of this character in the streets is law- 
ful. If the city could not be held liable for 
permitting them to be there after notice, 
neither can the defendant be held liable for 
placing them there. The question involved 
in this class of cases is whether the object 
complained of is usual, reasonable, or neces- 
sary in the use of the street by the owner of 
the premises, or anyone else." 

There are other courts than those of New 
York that have maintained the same 
principle. Cincinnati v. Fleischer, 63 Ohio 
St. 229, 58 N. E. 568; Macomherv. Taunton, 
100 Mass. 255 ; Gushing v. Boston, 124 Mass. 
434: Homer v. Philadelphia, 194 Pa. 542, 45 
Atl. 330. 

Upon general principle, as well as upon 
authority, we are clearly of opinion the car- 
riage block or stepping stone in question 
was not an unlawful obstruction of the 
street or sidewalk, and that the defendant 
is not liable for the injury received by the 

plaintiff in stumbling and falling over the 

But the plaintiff contends that, even con- 
ceding that the carriage block in question 
was not an unlawful obstruction, and did 
not constitute a public nuisance, yet the 
street in that particular section was de- 
fectively and insuflSciently lighted, and, be- 
cause of such defective and insufficient 
lighting of the street and sidewalk, the 
plaintiff ran against and stumbled over the 
block or stepping stone and was injured, and 
that the defendant corporation is liable for 
such injury, because of the neglect to 
properly light and keep lighted the street 
and sidewalk where the accident occurred. 
But, whatever insufficiency may have existed 
in the light upon the occasion of the acci- 
dent (if any insufficiency did in fact exist), 
such an action as the present is not the 
remedy for the consequences of such defect. 
Money is annually appropriated by Congress 
for lighting the streets of the city; but 
whether such appropriation be sufficient or 
insufficient, the courts cannot determine: 
nor can they determine how the lights shall 
be distributed through the city; or how any 
particular street or section of a street shall 
be lighted, — whether by few or many liglits, 
or whether by gas or electricity. These are 
matters that are confided exclusively to the 
judgment and discretion of the municipal 

Finding no error in the ruling of the 
court below directing the verdict for the de- 
fendant, we must affirm the judgment, and 
it is so ordered. 

Judgment affirmed. 

Affirmed by Supreme Court of United 
States January 3, 1905. 


Hattie H. MORRISON, Plff, in Err., 


James L. DICKEY. 




*1. Mutual confldence belnff the fonn- 
dation of the partnerahlp relation, 

the mere fact that a member of a partner- 
ship l8 not the owner of property which he 

*Headnote8 by Cobb, J. 

KoTE. — As to business partnership between 
bnsband and wife, see also, In this series, Gilkcr- 
MO'Sloss Commission Co. v. Salinger, 16 L. R. 
A. .526. and note; Puller & F. Co. v. McOenry, 
18 L. R. A. 512 ; Vail v. Wlntersteln, 18 L. R. 
A- 515 ; Haggett v. Hnrley, 41 L. R. A. 362 ; 
and Hoaglln v. Henderson. 61 L. R. A. 750. 
<50 L. R. A. 

has embarked In the partnership enterprise — 
the same belonging to a third person, who 
has consented that It may be so used for his 
benefit, but whose Interest Is not disclosed 
to the other member of the partnership — does 
not cause a partnership relation to arise be- 
tween the other partner and the concealed 
principal of his copartner. 

2. A partner may make an aarreement 
with a third peraon for a division of 
the profit* coming to him from the part- 
nership enterprise, and, If the character of 
the agreement Is such as to disclose the essen- 
tials necessary to a partnership, a subpart- 
nershlp Is thereby formed between the part- 
ner and the third person ; but such person 
does not become a member of the first part- 
nership, nor Is he liable for the debts of thnl 

3. Huahand and Tvlfe may. In thla atnto. 

Digitized by VjOOQIC 


Georgia Supreme Court. 


l«-vrf ally transact buMlneaa a« eopart- 
nerH, and therefore there may be a subpart- 
nership between a husband and wife in refer- 
ence to the profits of a business in which 
the husband is a partner. 

4. In a subpartnerslftip of tUe character 
above referred to, where the members 
are husband and wife, a gift by the wife to 
the husband of a portion of her interest in 
the profits which the husband would derive 
from the first partnership is valid ; and the 
use by him, or by his copartner, of such 
profits to discharge a debt of the husband 
would not render his partner liable to the 
wife on account of having used her money for 
the purpose of paying her husband's debt. 

5. Tlie verdict for tlie defendant was 
demanded by tbe evidence, and any 
errors that may have been made by the 
Judge In his instructions to the Jury did not 
require the granting of a new trial. 

(March 7, 1905.) 

ERROR to the City Court of Atlanta to 
review a judgment in favor of defend- 
ant in an action brought to recover money 
alleged to have been wrongfully appropriat- 
ed by defendant to the payment of a debt 
of plaintiff's husband. Affirmed. 

The facts are stated in the opinion. 

Mr. W. R. Hammond, for plaintiff in 
error : 

The debt was that of the husband, and his 
alone, both morally and legally; and plain- 
tiff is absolutely disqualified by the statute 
from making any contract to assume it or 
pay it. 

Code, 8 2488. 

The mere fact that Mr. Morrison was the 
agent of his wife in the conduct of her busi- 
ness, he being in possession of the property 
and the apparent owner, would not make 
Dickey her partner. 

2 Lawson, Rights, Rem. & Pr. p. 1190, tl 

Partnership, as between the partners, is 
a contractual relationship, and cannot 
arise in any other way, though a liability as 
to third parties may arise, by estoppel, on 
the part of one who is not a partner. 

Ihid.; Civil Code, § 2626. See also § 2629 ; 
Huggins v. Huggins, 117 Ga, 151, 43 S. E. 

The law of concealed agency, which makes 
the principal liable, when discovered, at the 
election of the other party, operates alone 
for tltt protection of the other party to the 

Williams ▼. Merle, 11 Wend. 80, 26 Am. 
Dec. 605; Ga. Civ. Code, §§ 3024, 3539; 
Maddox v. WiUon, 91 Ga. 40, 16 S. E. 213 ; 
Rosser v. Darderi, 82 Ga. 219, 14 Am. St. 
Rep. 152, 7 S. E. 919. 

The mere fact of thfe purchase of this ma- 
chine by Morrison, even though it may linvo 
been intended for use in connection with 
i\i) L. R. A. 

his wife's business, would not render her 
liable for it. 

Blount V. Bugger, 115 Ga. 109, 41 S. E. 

Messrs. Felder A Ronntree, for defend- 
ant in error : 

It is not material that the contract of 
purchase was signed "J. L. Dickey, Presi- 
dent, and J. J. Morrison." The partners 
were liable, at least inter se, for the debt. 

Maddox v. Wilson, 91 Ga. 40, 16 S. E. 
213; Lenney v. Finley, 118 Ga. 718, 45 S. 
E. 593. 

Mrs. Morrison was originally liable for 
the debt. She was liable upon the prin- 
ciple of ratification and estoppel. 

Code, §§ 2626, 5150; Murray v. Walker, 
44 Ga. 58. 

A party who has received the benefit of 
a contract made by a husband concerningr 
property owned by the wife cannot resist 
performance on the ground of the wife's cov- 
erture and the absence of her statutory as- 
sent to the contract. 

Texas d 8t. L. R. Co. v. Rohards, 60 Tex. 
546, 48 Am. Rep. 268; Hathaway v. Payne, 
34 N. Y. 92; Louisville, N, A. d G. R. Co. 
V. Flanagan, 113 Ind. 488, 3 Am. St. Rep. 
674, 14 N. E. 370. 

The creation of a partnership by an agent 
without authority may be ratified and made- 
valid by the principal, notwithstanding that 
intervening rights are thereby cut off, where 
such rights rest on an inferior equity to that 
of the principal. 

Williams v. Butler, 35 111. 544. 

Cobb, J., delivered the opinion of the- 

This was an action by Mrs. Morrison 
against Dickey to recover a sum of money 
which she alleged had been wrongfully ap- 
propriated by Dickey to the payment of her 
husband's debt. The jury found in favor of 
the defendant, and the plaintiff assigns er- 
ror upon the overruling of her motion for 
a new trial. 

Mrs. Morrison was the owner of a busi- 
ness which was conducted by her husband 
in his name. Her ownership was not dis- 
closed to the world, nor was there anything^ 
to indicate to those who dealt with Morri- 
son that he was not the owner of Uie busi- 
ness. Dickey, while ignorant of Mrs. Mor- 
rison's ownership, bought from Morrison & 
half interest in the business. This sale was 
made, if not with the approval, certainly 
without the disapproval, of Mrs. Morrison. 
Morrison and Dickey purchased a machine, 
which, if not necessary, was adapted to and 
useful in the business they were carryini? 
on, and was actually used in that busine<t8. 
The contract for the purchase price was 
signed, not by the partnership, but by Mor- 

Digitized by VjOOQIC 




rison and Dickey individually. Suit was 
broug^ht upon this contract, and judgment 
obtained against Morrison and Dickey as in- 
diridual joint promisors. Up to this point 
it seems that Dickey was still in ignorance 
of the fact that the business into which he 
liad been admitted as a partner with Mor- 
rison was in reality the business of Mor- 
rison's wife, but this fact was subsequently 
disclosed to him. Dickey, having ascer- 
tained that Mrs. Morrison was the real 
owner of the business, negotiated with her 
for the purchase of her remaining one-half 
interest; and an agreement was reached by 
which Mrs. Morrison sold this interest to 
Dickey for the sum of $2,500, $1,000 of 
which was to be paid in cash. The stipu- 
lation in the contract with reference to the 
remaining $1,500 was in the following 
words: "The balance of the amount, being 
fifteen hundred dollars, I hereby give and 
convey to him, my said husband, J. J. Mor- 
rison, for the affection I have for him, to- 
gether with some compensation for his long 
wrvice in it. Of course he can do as he 
pleases with that, provided I get one thou- 
sand dollars or its equivalent." Dickey as- 
sumed all debts and liabilities of the firm. 
Morrison agreed with Dickey that the $1,- 
500 above referred to should be left in the 
latter*8 hands, to be appropriated first to the 
payment of one half of the judgment against 
Dickey and Morrison above referred to, and 
the remainder, so far as necessary, to the 
payment of one half of the otber debts of 
the firm. Dickey subsequently paid the bal- 
ance due on the judgment, and it is claimed 
by Mrs. Morrison that this payment was 
made from the proceeds of the business in 
which her money had been placed by her 
husband, and therefore that one half of this 
money paid on this judgment was hers, and 
should have been paid to her, and the pay- 
ment of it by Dickey on her husband's debt 
was illegal, and she was entitled to recover 
the amount from him; it being also claimed 
that the arrangement by which $1,500 of the 
purchase money of her remaining interest 
in the business should be left in the hands 
of her husband, and the subsequent arrange- 
ment between Dickey and her husband that 
this sum should be appropriated in part to 
the payment of the judgment, was merely 
a scheme or device to use her money for the 
purpose of paying her husband's debt. No 
partnership relation existed between Mrs. 
Morrison and Dickey prior to the time that 
he knew that the business was owned by 
her. The partnership up to that time was 
^^ne composed of Dickey and Morrison. The 
relation created by a partnership agreement 
i< one founded so essentially upon mutual 
confidence that there can be no such thing 
in the law aa a partnership between persons 
69L. R. A. 

unless the persons are known to each other, 
and each has an opportunity to determine 
whether that relation shall be formed be- 
tween them. Partnership is founded upon 
agreement and consent, and there can be no 
consent to the formation of a partnership 
with a person who is not known. 1 Bates, 
Partn. S 158 ; 22 Am. & Eng. Enc. Law, 2d 
ed. p. 16. The relation which existed be- 
tween Morrison and his wife after Dickey 
had been admitted as a partner into the 
business carried on by Morrison was in the 
nature of a subpartnership, which made 
Morrison and his wife partners as between 
themselves; and as such they assumed all 
of the responsibilities that would be incident 
to a partnership created between two per- 
sons, where one furnished the capital, and 
the other the skill and labor, necessary in 
carrying out the enterprise. 1 Bates, Partn. 
§§ 164, 169. How profits between them- 
selves as members of this subpartnership 
would be divided would be immaterial, and 
therefore the mere fact that Mrs. Morrison 
was to receive the entire profits of the busi- 
ness thus carried on in her husband's name 
for her benefit would not deprive the busi- 
ness relationship between them of the essen- 
tial elements of a subpartnership. It is now 
the settled law of this state that husband 
and wife may lawfully engage in business as 
partners. Ellis v. Mills, 99 Ga. 490, 27 S. 
E. 740. But this relation existing l)etween 
Morrison and his wife as to each other 
would not make the wife a partner in the 
business carried on by Dickey and Morrison, 
nor would she be liable for the debts of that 
partnership; but she would be liable for any 
debts which might be considered as debts 
of the subpartnership existing between her- 
self and her husband. 1 Bates, Partn. §§ 
168, 169; 22 Am. & Eng. Enc. Law, 2d ed. 
p. 17. Mrs. Morrison therefore could not 
have been held bound on the contract for the 
purchase of the machine above referred to, 
as this purchase was made before the fact 
of her Interest in the business came to the 
knowledge of Dickey, and therefore before 
there could have been, in law, any partner- 
ship relation existing between them. But 
Morrison was bound, not only by virtue of 
the partnership relation existing between 
himself and Dickey, but by the express terms 
of the contract itself. When Dickey dis- 
covered that Mrs. Morrison was the real 
owner of the business which he had former- 
ly carried on as a partner of her husband, 
he had a right to deal with her as such ovv-n- 
er, by either admitting her into the partner- 
ship, or by purchasing from her her interest 
therein. The contract, therefore, between 
Dickey and Mrs. Morrison, by which he pur- 
chased her remaining one-hnlf intorst in 
the business, was valid and lawful^^aiid afterj 

Digitized by VjOOQIC 


Geobgia Supreme Coubt. 


this purchase he became the owner of the 
entire business. It was lawful for him to 
pay her $1,000, and agree to pay her $1,500 
in the future, and it was also lawful for 
her to make a gift of the latter amount to 
her husband. This is the legal effect of the 
contract upon its face, and, if the gift be- 
came complete^ it was immaterial for what 
purposes her husband used the money which 
was the subject of the gift. He might use 
it for the purpose of paving his debts, and 
the subsequent agreement between him and 
Dickey that a portion of the money given to 
him should be applied by Dickey to the 
judgment against Morrison and himself was 
a transaction free from legal infirmity. Mor- 
rison would then be paying his own debt 
with his own money, and not with the 
money of his wife. In addition to this, while 
Mrs. Morrison was not at all bound by the 
judgment against Morrison and Dickey, and 
not in any way liable upon the contract 
which was the foundation of that judgment, 
this liability of Morrison and Dickey was 
one of the liabilities of the partnership be- 
tween them; and, when Mrs. Morrison saw 
fit to disclose her ownership of the busi- 
ness, and Dickey saw proper to recognize 
her as a partner, she then took her position 
for the first time as a partner in the busi- 
ness with Dickey, and she then became lia- 
ble, upon an accounting as to the affairs of 
the partnership, to account to her partner 
for all claims or demands which, as be- 
tween the partners, would be lawful charges 
against the partnership business; and, if 
tUe partnership had gone into liquidation, 
there would have been, in an accounting be- 
tween the partners, no legal obstacle in the 
way of Dickey insisting that the money ex- 
pended for the machine should be treated, 
as between him and Mrs. Morrison, as a 
liability of the firm, and one for which she 
should account for one half. This is true 
notwithstanding the fact that at the time 
the machine was purchased, when her own- 
ership of the business was not kncjwn to 
Dickey, she gave her husband special in- 
structions not to purchase the machine; it 
appearing that the machine was actually 
purchased and used in carrying on the busi- 
ness of the partnership. Take still another 
view of the matter. The subpartncrship, or 
relation in the nature thereof, existing be- 
tween Mrs. Morrison and her husband, ren- 
dered her liable to account to her husband 
for all legitimate and necessary expenses in- 
curred in realizing, or attempting to realize, 
profits from the partnership between him 
and Dickey ; and, if the purchase of the ma- 
chine was necessary or proper for the con- 
duct of the business, and was actually used 
in the business, before Mrs. Morrison could 
donumd from her husband the profits of the 
(iJ» L. U. A. 

business she would have to account to Iiim 
for the amount for which he rendered him- 
self liable on account of such purchase, lier 
protest against its purchase would not avail 
her as an excuse for not so accounting, if 
the profits claimed by her were the result of 
the business in which the machine had been 
actually used. 

So that it seems to us that, under any 
view of the law and facts of the case, no 
other legal judgment could have been ren- 
dered than one in favor of the defendant. 
Tliere is nothing in the case to authorize a 
fjnding that the transaction was a mere 
scheme or device to use Mrs. Morrison's 
money for the purpose of paying her hus- 
band's debt. It was either the use of her 
money to pay a liability which Dickey would 
have a right to claim against her when she 
admitted her ownerhliip, and accepted po- 
sition as a partner with him, or it was a 
payment by Morrison of his debt with his 
money, title to which he had derived by a 
voluntary gift from his wife, or the pay- 
ment of a sum which Mrs. Morrison would 
have been bound to pay in an accounting 
with her husband. While the instructions 
of the judge are not at all in accord with 
some of the principles above laid down, still, 
under the undisputed facts of the case, the 
verdict for the defendants was demanded, 
and any errors committed in charging the 
jury were harmless. 

Judgment affirmed. 

All the Justices concur. 

Plffs. in Err., 






*1. A combination of two or more per- 
aona to Injare one In Ills trade by In- 

ducinf? his employees to break their contract 
with him, or to decline to longer continue In 
his employment, is, if it results in damage, 
2. A former member of an lllegral com- 
bination, whose connection with it was sev- 
ered before the filing of the suit, will not be 
denied the protection of a court of equity 

*Headnotes by Evans, J. 

Note. — As to conspiracy by trade union to 
procure discharge of nonunion men, see, in this 
series, Flaccus v. Smith, 54 L. R. A. 040, and 
Erdman v. Mitchell, 63 L. R. A. 534. 

As to boycott or conspiracies by trade unions 
or strikers generally, see Casey v. Cincinnati 
Typographical rnlon, No. 3. 12 L. R. A. 193, 
and note; Toledo, A. A. & N. M. R. Co. r. Penn- 

Digitized by 



Employing Printers* Club v. Dr. Blosser Co. 


asralnst an llle^I act of such combination 
because of his previous connection therewith. 

3. The mallcloiiM procarement of a 
breach of contract of employment result- 
In;? In damage, where the procurement was 
during the subsistence of the contract, Is an 
actionable wrong. 

4. A court of eqaltr -will Interpose by 
1b Junction to prevent the several members 
of an ille^l combination from enforcing an 
Illegal agreement to the hurt and Injury of 
one ensaged In competitive business. 

(March 25, 1905.) 

ERROR to the Superior Court for Ful- 
ton County to review a judgment in 
favor of plaintiff in an action brought to 
<'njoin defendants from interfering with 
piaintifiT's employees. Affirmed. 

The facts are stated in the opinion. 

Messrs. Smitli A Wright, for plaintiffs 
in error : 

Where parties are concerned in illegal 
agreements or transactions, whether they 
are mala prokihita, or mala in se, courts of 
♦^uity, following the rule of law as to par- 
ticipation in crime, will' not grant relief to 
<itlier party in accordance with the maxim, 
In pari delicto y etc. 

Harrington v. Bigelow, 11 Paige, 349; 
Warburton v. Afren, 1 McLean, 460, Fed. 
Cas. No. 17,143; Attcood v. Fisk^ 101 Mass. 
363, 100 Am. Dec. 124 ; Sioartzer v. Gillett, 
1 Chand. (Wis.) 207; Davies v. London d 
Prorincial Marine Ins. Co. L. R. 8 Ch. Div, 
469: Bromley v. Smith, 2 Hill, 517; Van- 
dyck V. Hewitt, 1 East, 96; Howson v. Han- 
cTMtk, 8 T. R. 575. 

When the scheme is malum in se, and the 
parties to it are in pari delicto, the law re- 
fuses to aid either of tliem against the 
other, but leaves them where they have 
placed themselves by their own act. 

Thomas v. Richmond, 12 Wall. 349, 20 Ir. 
ed. 453; Smith v. Bulbs, 10 Me. 71; Scher- 
merhom ▼. Talman, 14 N. Y. 94: Knowlton 
V. Congress d E. Spring Co. 57 N. Y. 518; 
\cUis V. Clark, 20 Wend. 24 : Smith, Contr. 
3d Am. ed. 187; Burt v. Place, 6 Cow. 431; 
LeWame v. Meyer, 38 Fed. 191; Keel v. 
Urkin, 83 Ala. 146, 3 Am. St. Rep. 702, 
3 So. 296. 

Blosser is bound, as a member of the club, 
by its rules; and he is bound by the deci- 
sion on complaint. He is also bound to 

have the remedy of arbitration exhausted 
before appealing to the law. 

National Protective Asso. v. Cumming, 
170 N. Y. 321, 58 L. R. A. 136, 88 Am. St. 
Rep. 648, 63 N. E. 369; Parks v. Andrews, 
56 Hun, 393, 10 N. Y. Supp. 344. 

The plaintiffs in error and the labor 
unions had a legal right to agree and act 
in harmony with each other, and they had 
a perfect right to make it a part of this 
agreement, and stipulate that the members 
of the unions should not work for any print- 
er in Atlanta except the parties to this 

Willis V. Muscogee Mfg. Co. 120 Ga. 597, 
48 S. E. 177; National Protective Asso. v. 
Cumming, 170 N. Y. 321, 6B L. R. A 135, 
88 Am. St. Rep. 648, 63 N. E. 369. 

Messrs. Kontx A Austin and Howard 
Van Epps, for defendant in error:. 

The case discloses an illegal combination 
conducting its operations squarely in the 
teeth of the law. 

Broum v. Jacobs* Pharmacy Co. 115 Ga. 
429, 57 L. R. A. 547, 90 Am. St. Rep. 126, 
41 8. E. 553; Walker v. Cronin, 107 Mass. 

Defendant in error was not in )f>ari de- 

Whenever the plaintiff can make out his 
case without invoking the illegal contract 
to his aid, he is entitled to recover. 

Equitable Loan d Sccur. Co. v. Waring, 
117 Ga. 633, 62 L. R. A. 93, 97 Am. St. 
Rep. 177, 44 S. E. 320; Civil Code. § 3937; 
Ingram v. Mitchell, 30 Ga. 547; Clarke v. 
Brown, 77 Ga. 606, 4 Am. St. Rep. 98; 
Ilolleman v. Bradley Fertilizer Co. 106 Ga. 
163, 32 S. E. 83; Raleigh d O. R. Co. v. 
Suanson, 102 Ga. 761, 39 L. R. A. 275, 28 
S. E. 601. 

The club could not enforce against defend- 
ant in error the rules and regulations of its 
illegal constitution and by-laws. 

Ertz v. Produce Exchange, 82 Minn. 173, 
51 L. R. A. 825, 83 Am. St. Rep. 419, 84 N. 
W. 743; Mariell v. White, 185 Mass. 255. 
64 L. R. A. 260, 102 Am. St. Rep. 341, 69 
X. E. 1085; Bouticell v. Marr, 71 Vt. 1, 
43 L. R. A. 803, 76 Am. St. Rep. 746, 42 
Atl. 607. 

If one maliciously interferes in a contract 
between . two parties, and induces one of 
them to break that contract, to the injury 

sylranla Co. 19 L. R. A. 305 : Toledo, A. A. & 
N. M. tt. Co. v. Pennsylvania Co. 19 L. R. A. 
3S7 ; Waterhouse v. Comer, 19 L. R. A. 403 ; 
•'flpur D*Alcne Consol. Mln. Co. v. Miners* 
Union, 19 L. R. A. 382: Lucke v. Clothinfi: 
"'utters' A T. Assembly No. 7,507 K. of L. 19 
L. R. A- 408 : ^lacauley Bros. v. Tlernoy, 37 L. 
R. A. 455 ; Beck v. Hallway Teamsters" Protect- 
ve Fnlon, 42 L. R. A. 407; Marx Ilass J. 
<^Iothlnf: Co. y. Wat sou , 56 L. R. A. 951 ; and 
'50 L. R. A- 

Gray v. Building Trades Council, 63 L. U. A. 

As to liability for inducinfi: breach of con- 
tract generally, see. In this series, Boysen v. 
Thorn. 21 L. R. A. 233. and m.'w; Raycroft v. 
Tayntor, 33 L. R. A. 225 ; Gore v. Condon. 40 
L. R. A. 382 ; Doremus v. Ilennessy, 43 L. R. A. 
797 ; West Virginia Transp. Co. v. Standard Oil 
Co. 56 L. R. A. S()4 ; and Raymond v. Yarrlng- 
ton, 62 L. B. A. 962. 

Digitized by 



Geoboia Supreme Goubt. 


of the other, the party injured can maintain 
an action against the wrongdoer. 

Angle v. Chicago, 8t. P. M. d 0. R. Co, 
151 U. S. 13, 38 L, ed. 62, 14 Sup. Ct. Rep. 
240; Lumley v. Qye, 2 El. & Bl. 216; Bige- 
low, Torts, 1st ed. p. 108; Jones v. Blocker, 
43 Ga. 331; Baiter v. Hotoard, 43 Ga. 601; 
Smith V. Goodman, 75 Ga. 198; Bixhy v. 
Dunlap, 56 N. H. 456, 22 Am. Rep. 475; 
Huff T. Watkina, 15 S. C. 82, 40 Am. Rep. 
680; Daniel v. Swearengen, 6 S. C. N. S. 
297, 24 Am. Rep. 471; Haskins v. Royster, 
70 N. C. 601, 16 Am. Rep. 780; Hewitt v. 
Ontario Copper Lightning Rod Co. 44 U. C. 
Q. B. 287. 

It is only necessary that the relation of 
master and servant exist. It matters not 
whether the contract is valid or not, or 
whether the employee is employed at will or 
for a definite period of time. 

16 Am. & Eng. Enc. Law, pp. 1111, note 8, 
1114, note 8; Webb's Pollock, Torts, Am. 
ed. pp. 278, 279; Gunter v. Astor, 4 J. B. 
Moore, 12, 21 Revised Rep. 733; Moran v. 
Dunphy, 177 Mass. 485, 52 L. R. A. 115, 83 
Am. St. Rep. 289, 59 N. E. 125; Noice v. 
Brown, 39 N. J. L. 569 ; Hawkins v. Royster, 
70 N. C.-611, 16 Am. Rep. 780; Chipley v. 
Atkinson, 23 Fla. 206, 11 Am. St. Rep. 367, 
1 So. 934; Salter v. Howard, 43 Ga. 601; 
WaVcer v. Cronin, 107 Mass. 555; Benton v. 
Pratt, 2 Wend. 385, 20 Am. Dec. 623. 

Lumley v. Gye is now the law of Eng- 

Quinn v. Leathem [1901] A. C. 496; Read 
V. Friendly Soc. [1902] 2 K. B. 738; Bowen 
v. Hall, L. R. 6 Q. B. Div. 333. 

The doctrine is generally recognized in 

Ames, Ijead. Cas. on Torts, pp. 608, 612; 
Heaton Peninsular But ton- Fastener Co. v. 
Dick, 55 Fed. 23, 52 Fed. 667 ; Lally y. Cant- 
well, 30 Mo. App. 524. 

As respects enticing away servants, the 
authorities all seem to agree that a right of 
action lies. 

Read v. Friendly Soc. [1902] 2 K. B. 732; 
Tcmperton v. Russell [1893] 1 Q. B. 715; 
Bowen v. Hall, L. R. 6 Q. B. Div. 333; 
Angle v. Chicago, St. P. M. d O. R. Co. 151 
U. S. 1, 38 L. ed. 55, 14 Sup. Ct. Rep. 240; 
Moran v. Dunphy, 177 Mass. 485, 52 L. R. 
A. 115, 83 Am. St. Rep. 289, 59 N. E. 125; 
Carew v. Rutherford. 106 Mass. I,i8 Am. 
Rep. 287; Plant v. Woods, 176 Mass. 492, 
51 L. R. A. 339, 79 Am. St. Rep. 330. 57 N. 
E. 1011; Doremus v. Henncssy, 176 111. 608, 
43 L. R. A. 797, 68 Am. JSt. Rep. 203, 52 
N. E. 924, 64 N. E. 524; Chipley v. Atkin- 
son, 23 Fla. 206, 11 Am. St. Rep. 367, 1 So. 
934 ; Old Dominion 8. S. Co. v. McKenna, 30 
Fed. 48 ; Walker v. Cronin, 107 Mass. 555 ; 
Rogers v. Evarts, 17 N. Y. Supp. 264 ; State 
V. Stewart, 59 Vt. 273, 59 Am. Rep. 710, 
ti9 L. R. A, 

9 Atl. 559; Curran T. Galen, 2 Misc. 553, 
22 N. Y. Supp. 826; Sherry v. Perkins, 147 
Mass. 212, 9 Am. St. Rep. 689, 17 N. E. 
307; Van Horn v. Van Horn, 52 N. J. L 
284, 10 L, R. A. 184, 20 Atl. 485; Hopkins 
V. Oxley Stave Co. 28 C. C. A. 99, 49 U. S. 
App. 700, 83 Fed. 912; State v. Gliddcn, 55 
Conn. 46, 3 Am. St. Rep. 23, 8 Atl. 890; 
Delz V. Winfrec, 80 Tex. 400, 26 Am. St. 
Rep. 755, 16 S. W. Ill; Thomas v. Ctnct«- 
nati, N. 0. d T. P. R. Co. 4 Inters. Com. 
Rep. 788, 62 Fed. 803; Crump v. Com. 84 
Va. 927, 10 Am. St. Rep. 895, 6 S. E. 620. 

Conspiracies to injure the business of an- 
other by inducing employees or others under 
contract to quit work and break contracts,, 
and by otherwise maliciously interfering;,, 
are unlawful and actionable. 

Toledo, A. A. d N. M. R. Co. v. Penmsyl- 
rania Co. 19 L. R. A. 387, 5 Inters. Cora- 
Rep. 522, 54 Fed. 730: Murray v. McOari- 
gle, 69 Wis. 483, 34 N. W. 522; Barr v. 
Essex Trades Coun<;il, 53 N. J. Eq. 101, 30 
Atl. 881; State v. Dyer, 67 Vt. 090, .32 Atl. 
814; CoF«r D'Alene Consol. Min. Co. v. Min- 
ers' Union, 19 L. R. A. 382, 51 Fed. 260: 
O'Xeil v. Bchanua, 182 Pa. 236, 38 L. R. A. 
382, 61 Am. St. Rep. 702, 37 Atl. 843; Jones 
V. Stanly, 76 N. C. 355; Re Debs, 158 V. S. 
564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900: 
Boyson v. Th<trn. 2\ L. R. A. 233, note. OH 
Cal. 578, 33 Pac. 492; Wabash R. Co. V- 
Hannan, 56 Cent. L. J. 314, note; Walsh v. 
Master Plumbers* Asso. (Mo.) 56 Cent. L. 
J. 263, note; 1 Jaggard, Torts, §§ 204-207 ; 
2 Addison, Torts, pp. 739 et seq. 

Contracts in restraint of competition and 
trade are void and against the policy of this 

Brown v. Jacobs' Pharmacy Co. 115 Ga. 
429, 67 L. R. A. 547, 90 Am. St. Rep, 12«, 
41 S. E. 553: Rakestraw v. Lanier, 104 (Ja. 
188, 69 Am. St. Rep. 154, 30 S. E. 735; At- 
lanta V. Stein, 111 Ga. 789, 61 L. R. A. 
335, 30 S. E. 932; United States v, Addystun 
Pipe d Steel Co. 46 L. R. A. 122, 29 C. C. 
A. 141, 54 U. S. App. 723, 85 Fed. 271; 
Bailey v. Master Plumbers* Asso. 102 Tenn. 
99, 46 L. R. A. 561, 52 S. W. 853; People v. 
Sheldon, 139 N. Y. 251, 23 L. R. A. 221, 36 
Am. St. Rep. 690, 34 N. E. 785; Anti-mo- 
nopoly Legislation from the Days of Eliza- 
beth lo the Anti-Trust Act of JS90, 65 Cent. 
L. J. 144; United States v. Northern Secu- 
rities Co. 120 Fed. 721; Jackson v. Stan- 
field, 137 Ind. 592, 23 L. R. A. 588, 36 N. E. 
345, 37 N. E. 14; Gregory v. Brunsunck, 6 
Mann. & G. 205. 

Any combination the object of which is 
to attempt by force, or threats, or intimida- 
tion, to control an employer in the deter- 
mination as to whom he will employ or the 
wasres he will pay is an unlawful conspir- 

Digitized by VjOOQIC 


Emplotino Pbii^tebs' Clud v. Db. Blosseb Co. 


Eddy, Combinations, p. 50G: Brown v. 
Jaeobsr Pharmacy Co, 115 Ga. 429, 57 L. R. 
A. 547, 90 Am. St. Rep. 126, 41 S. E. 553. 

Ersas, J., delivered the opinion of the 

The Doctor Blosser Company, a corpora- 
tion, brought an action against a number of 
printing concerns using the club or trade 
name of the "Employing Printers* Club of 
Atlanta," and composed of individuals, 
tlnn», and corporations engaged in the book 
and job printing trade in the city of Atlan- 
ta, and whose names are set out in the rec- 
ord, asking an injunction and praying dam- 
ages. The court granted the injunction, and 
<*xception is taken to this order. On the 
interlocutory hearing the defendants urged 
by demurrer the insufliciency of the facts 
pleaded to authorize the relief prayed. Not- 
withstanding the demurrer admitted the 
truth of all the facts which were well-plead- 
ed, the plaintiff submitted proof tending to 
sustain all the essential allegations. 

1-3. The complaint is that the defendants 
formed a combination among the employing 
printers to control and fix the price of print- 
ing done in the city of Atlanta, and, because 
the plaintiff refused to affiliate with the 
combination, they wrongfully interfered 
with the plain tifTs businef^s, and malicious- 
ly induced its employees to break their con- 
tracts with it, and refuse to continue in its 
omplojTnent, to its injury and damage. A 
combination of individuals engaged in a par- 
ticular line of business to compel one en- 
gaged in a similar business to sell his 
product at prices fixed by it is contrary to 
public policy, and void; and the members 
of such a combination, individually, and col- 
lectively, may, by appropriate injunction, be 
restrained from wrongfully interfering with 
the buaincss of the one who is not a member 
of the combination. This principle is laid 
down in the well-considered case of Brown 
V. Jacobs' Pharmacy Co, 115 Ga. 429, 57 L. 
R. A. 647, 90 Am. St. Rep. 126, 41 S. E. 
553, is supported both by reason and author- 
ity, and its application to the case in hand 
is readily apparent. 

The facts alleged in the petition were as 
follows: The plaintiff was engaged in the 
city of Atlanta in the general business of a 
printer for the public, enjoying a large trade 
and doing a prosperous business. The de- 
fendants were also engaged in the printing 
business, and formed a combination or trust, 
called the "Employing Printers' Club of At- 
lanta, Georgia." This combination embraced 
nearly the entire printing and publishing 
fraternity of Atlanta except the newspapers, 
and its organization was "for the single and 
Hole purpose of restraining trade, of abso- 
lutely defeating and destroying competition 
•69 L. R. A- 

among bidders for printing of any sort to 
be done in the city of Atlanta, and for main- 
taining an arbitrary and extortionate scale 
of prices upon any contracts that might be 
received for work done in the city." This 
combination or club had a' written constitu- 
tion and by-laws, a copy of which was ap- 
pended to the petition. Among the objects 
of the club, as recited in its constitution, 
were "the maintenance of legitimate prices, 
the suppression of undue rivalry, and mutual 
protection from abuses or infringement up- 
on our rights by others." The rules provid- 
ed for a fixed minimum scale of prices, that 
no member should give any rebate or con- 
cession to a customer, and for a uniform 
discount only to other members of the asso- 
ciation. Rule 8 was : "Never give customer 
an itemized estimate." The scheme of the de- 
fendants, who confederated under the name 
of the "Employing Printers' Club," was as 
follows: If a customer desiring to have 
printing or publishing done made applica- 
tion for a bid to any one of the members 
constituting the club, it was the understand- 
ing and agreement among all of the members 
thereof that the printer receiving the bid 
for work should name the price for which he 
was willing to undertake it, and thereupon 
should list the application, the name 
of the customer, and the proposition 
for doing the work, giving a complete 
description of the job to a manager 
appointed for that very purpose, and 
salaried by the members of the combina- 
tion; and they in turn were bound severally 
to each other that, if they were also invited 
to make competitive bids, they would fix the 
price for such equal to or higher than that 
proposed by the first printer receiving the 
application and listing the bid. It was al- 
leged that the combination enforced a rule 
between themselves, establishing a system- 
atic way of handling the public printing for 
the city of Atlanta, under the operation of 
which each printer was to have his turn; 
the manager to ke(?p track of this branch of 
the business, and notify the different mem- 
bers, when the city of Atlanta asked for 
bids, whose turn it was to do the work. They 
were to make the price and add 10 per cent, 
and charge the city, not only the fixed, ar- 
bitrary price, but also the additional 10 per 
cent on the fixed price. It was alleged that 
a committee from the Employing Printers* 
Club, who also represented the defendants, 
as members of the club, waited on the plain- 
tiff, and advised its officers that it could not 
continue to employ union labor in its shop 
unless it became a member of the club. 
Plaintiff inquired of the committee the pur- 
pose and scope of the club, and was informed 
that it was a secret institution, and that 
it was necessary to become a member before 

Digitized by VjOOQIC 


Georgia Supreme Court. 


its secrets could be imparted. To prevent 
being deprived of union labor, which was 
the only* labor obtainable, and ignorant of 
the real purposes of the club, the plaintiff 
became a member thereof. About October 
1, 1901, plaintiff made a contract with the 
managers of the Wesleyan Christian Advo- 
cate to publish that periodical, and was pro- 
ceeding to execute the contract, when it was 
notified by the Employing Printers* Club 
that it had violated the rules of the club in 
accepting such contract, and was fined $468 
for taking the contract. The club decided 
that the right to print that periodical be- 
longed to the Foote & Davies Company, one 
of the defendants, and that the plaintiff 
should not have underbid that company. In 
addition to imposing the fine, the club ruled 
that at the end of the year 1902 the publi- 
cation price of the Advocate for the year 
1903 should be fixed by the Foote & Davies 
Company. The plaintiff was dissatisfied 
with this ruling, and resigned its member- 
ship in the club, whereupon plaintiff was 
notified by a committee from the club that, 
unless it paid the fine and came back into 
the club, all union labor would be called out 
of its shop. The plaintiff, persisting in its 
refusal to resume relationship with the 
club, was assured by a committee from the 
club that it had been reorganized on a legal 
basis. Upon this assurance the plaintiff re- 
sumed its membership in the club, and the 
fine was reduced to $125. The major part 
of this fine was paid, and plaintiff resumed 
its membership because of the threat to call 
out the union labor from its shop, and to 
avoid the damages incident to the loss of 
this class of labor. In October, 1902, the 
Wesleyan Christian Advocate's managers ap- 
plied to the plaintiff to print that paper 
during the year 1903, stating that they 
were aware of the existence of the print- 
ers' combination, but before they would pay 
more than they were paying they would 
withdraw their work from Atlanta, and 
place it elsewhere. Thereupon the plaintiff 
made them a bid which afforded a reason- 
able net profit on the proposed work. The 
Employing Printers' Club then met and sat 
in judgment on the plaintiff *s action in tak- 
ing the contract for the second time for the 
publication of this periodical, and adjudged 
that the plaintiff pay the Foote & Davies 
Company $300 in cash to partly reimburse 
it for the loss of the profit on the publica- 
tion of the Wesleyan Christian Advocate, 
and that the naming of the price for the 
publishing of this periodical *'revert irrev- 
ocably" to the Foote & Davies Company 
at the expiration of the present contract. 
Several attempts were made to induce the 
plaintiff to comply with this edict, and it 
was threatened that, if it did not comply, 
(59 L. R. A. 

the club would cause all union labor to leave 
its emplojTnent. The plaintiff refused to 
comply with the club's demand, and declined 
to affiliate longer with the club as a member, 
notifying it of this resolve. Then the club 
caused the pressmen, feeders, printers, and 
binders employed by the plaintiff to quit 
work, thereby shutting down the plaintiff's 
establishment, and rendering it impossible 
for it to conduct its business, or to execute 
existing contracts, or to undertake further 
employment in the line of its trade. Ac- 
tual damages were alleged to have been sus- 
tained by the plaintiff in the sum of $10,- 
000. On the interlocutory hearing it ap- 
peared that some of the employees returned 
to the work, and that their respective unions 
refused to call a strike in the plaintiff's 
shop. The defendants then threatened that, 
unless the unions would call out its labor 
from the plaintiff's shop they would no long- 
er observe the union regulations. In pur- 
suance of this threat, some of the defend- 
ants had posted their respective businesses 
as "open shops," and the plaintiff's peti- 
tion was filed at this juncture of affairs. 

There can be no doubt that the facts al- 
leged in the petition, if true (and the de- 
murrer admits their truth), establish, not 
only a conspiracy to fix and control the 
price of printing in the city of Atlanta, but 
also a malicious interference with the busi- 
ness of the plaintiff. The scope and purpose 
of the Employing Printers* Club was to cre- 
ate a monopoly and stifle competition in the 
printing business. A mere agreement to do 
wrong is not actionable; but when the par- 
ties to such agreement do an overt act in 
furtherance of the illegal combination, re- 
sulting in injury to a third person, the 
conspiracy becomes actionable, and the con- 
spirators are liable to the injured party 
for damages proximately flowing from their 
illegal conduct. 

It is contended by the plaintiffs in error 
that, conceding that the combination among 
the defendants was an illegal one, the plain- 
tiff in the court below was a party to it, 
and cannot be heard to complain in a court 
of equity. It is true that at one time the 
plaintiff was a member of the trust, but, 
when the trust essayed to discipline it, it re- 
pudiated the club, and informed its officers 
that it would no longer affiliate with the 
club. It was then that the club was pro- 
ceeding to punish it by calling out its em- 
ployees. The maxim that one must come 
into a court of equity with clean hands 
means that he munt do equity as respects 
the defendant's rights in the particular mat- 
ter of the suit. 1 Pom. Eq. Jur. 9 397. 
"The rule that a complainant must come 
t into equity with clean hands does not go 
' so far as to prohibit a court of equity from 

Digitized by VjOOQIC 


Employing Pbinters' Club v. Db. Blosseb Co. 


giving its aid to a bad or a faithless man. 
T/io dirt upon Iiis hands must be his bad 
conduct in the transaction complained of. 
All complainants in equity are human 
beings, full of faults and sin, and I doubt 
if there is one case in ten in which the 
complainant is not somewhat to blame. If 
the complainant docs equity himself, or of- 
fers to do it (except in those cases where 
the rule in pari delicto, etc., comes in), his 
hands are as clean as the court can require." 
Amky v. Wilson, 50 Ga. 421. The plain- 
tiff is not seeking to obtain any relief by 
virtue of his former connection with the 
club, and is not, therefore, in pari delicto 
with the defendants relatively to the cause 
of action which it brings against them. Its 
connection with the club ceased before filing 
the suit, and it has repudiated the club as 
an unholy alliance. Even in criminal law 
the locus pcenitentiw is recognized. The 
aoyresaor may repent, and abandon his 
felonious enterprise, and place himself in a 
position where he may rightfully invoke the 
law of self-defense in a subsequent occur- 
rence. Besides, an unlawful combination in 
restraint of trade is a wrong to the public, 
as well as to the injured individual. If a 
man confederates with a burglar to break 
and enter a house, but abandons the crimi- 
nal project, his agreement to join in the 
burglary will not justify an infliction of an 
injury upon his person by the burglar, and 
deprive him of his right of self-defense, 
merely because of the prior agreement to do 
ft criminal act and the abandonment of his 
unlawful intention. 

Independently of the conspiracy, the pe- 
tition states a case of malicious interfer- 
ence with the plaintiff's contract of employ- 
ment with its employees. At common law 
the remedies for breach of contract were 
confined to the contracting parties, and 
limited to direct damages and consequential 
damages proximately resulting from the act 
of him who is sued. This general rule admit- 
ted of one exception, and that was the right 
of action against a stranger for wrongfully 
enticing away a servant in violation of his 
contract of service with his master. The 
exception is said to have been based on the 
ancient statute of laborers. The early 
Hnglish cases limited the action to the en- 
ticement of mdnial servants, but the later 
^SLses, beginning with Lumley v. Oye, 2 El. & 
Bl. 216, have extended the doctrine beyond 
menial servants; and by the modern in- 
terpretation of this doctrine by the English 
courts the rule is extended to a malicious 
interference with any contract. A brief 
Inference to a few English cases will serve 
to present the evolution and extension of A. 

the old common-law doctrine of malicious 
interference with a contract. Lumley ▼. 
GyCf 2 El. & Bl. 216, was a suit for the ma- 
licious procuring of an opera singer, who 
had agreed with the plaintiff to perform 
and sing at his theater,, and nowhere else, 
for a certain time, to break her contract, 
and not perform or sing at the plaintiff's 
theater during the time for which she was 
engaged. It was there held that an action 
would lie for maliciously procuring a breach 
of contract to give exclusive personal 
service, provided the procurement was dur- 
ing the subsistence of the contract and pro- 
duced damage; and that to sustain such an 
action it was not necessary that the em- 
ployer and employee should stand in the 
.strict relation of master and servant. The 
opinion was by a divided court. The ma- 
jority of the judges were inclined to the 
opinion that an action would lie for the ma- 
licious procurement of the breach of any 
contract, though not for personal services, 
if by the procurement damage was intended 
to result, and did result^ to the plaintiff. 
This case was followed in Boicen v. Hall, L. 
R. 6 Q. B. Div. 333. In 1893 the same ques- 
tion was before the court of appeal of the 
Queen's bench division {Temperton v. Rus- 
sell [1893] 1 Q. B. Div. 715), and the cases 
of Lumley v. Oye and Botven v. Hall were 
examined and approved; and these cases 
were there said to rest upon the principle 
that to maliciously procure a person to 
break a contractual relation, which all are 
bound by law to respect, is actionable; and 
that a right of action for maliciously pro- 
curing a breach of contract is not confined 
to contracts of personal service. By many 
it was thought that thft House of Lord's 
case of Allen v. Flood [1898] A. C. 1, con- 
flicted with the doctrine announced in 
Temperton v. Russell, or at least materially 
curtailed its scope. But in the later case of 
Quinn v. Leathern [1901] A. C. 495, both 
cases — Temperton v. Russell and Allen v. 
Flood — were elaborately reviewed and 
analyzed; and, after stating the scope and 
effect of the latter case, it was ruled that "a 
combination of two or more, without justifi- 
cation or excuse, to injure a man in his 
trade, by inducing his customers or servants 
to break their contracts with him, or not to 
deal with him or continue in his employ- 
ment, is, if it results in damage to him. 
actionable." The Supreme Court of the 
United States approvingly cited the English 
cases of Lumley v. Gye and Bowen v. Hall, 
and reached the conclusion that, if one ma- 
liciously interferes with a contract to the 
injury of the other, the party injured may 
maintain an action against the wrongdoer. 

Digitized by VjOOQIC 


Georgia Supreme Coubt. 


Angle v. Chicago, St. P. M. d O. R. Co, 151 
U. S. 1, 38 L. ed. 66, 14 Sup. Ct. Rep. 240. 
Though this rule is not universal in all the 
courts of last resort of our sister states, it 
is believed to have been followed in most of 
them. In the carefully prepared opinion in 
Walker v. Cronin, 107 Mass, 555, the court 
decided that a manufacturer is entitled to 
maintain an action against a third person, 
who, with the unlawful purpose of prevent- 
ing him from carrying on his business, wil- 
fully induced many of his employees to 
leave his employment, whereby the manu- 
facturer lost their services, and the profits 
and advantages which he would have 
derived therefrom. See also Moran v. 
Dunphy, 177 Mass. 485, 52 L. R. A. 115, 83 
Am. St. Rep. 289, 59 N. E. 125. And the 
supreme court of North Carolina held in 
two cases {Haslcins v. Royster, 70 N. C. 
601, 16 Am. Rep. 780; Jones v. Stanly, 76 
N. C. 355) that, if a person maliciously 
entices laborers or croppers to break their 
contract with their employer and desert his 
service, the employer may recover damages 
against such person. 

In this state it has been held that when 
one man employs a laborer to work on his 
farm, and another man, knowing of such 
contract of employment, entices, hires, or 
persuades the laborer to leave the service of 
the first employer during the time for 
which he was so employed, the law gives to 
the party injured a right of action to re- 
cover damages. Salter v. Hoxcardy 43 Ga. 
601. From the reasoning of McCay, J., in 
Barron v. Collins, 49 Ga. 580, it would ap- 
pear that he was inclined to the opinion 
that an action for the malicious breach of 
contract was limited to cases of servants. 
The declaration in that case alleged that A, 
having contracted with one (^liarlos Barron 
that he, the said Charles, should furnish 
himself and his two daughters and one 
George Barron to work as laborers on the 
plaintiffs land for the year 1872, the plain- 
tiff to furnish the land and mules, and the 
said Charles to roctive one third and plain- 
tiff two thirds of the crop, and that the de- 
fendant, knowing the said contract had not 
been abandoned, but still existed, employed 
the said Charles, his two daughters, and the 
said George to work for him for the year 
1872. It was held on demurrer th^t no 
good cause of action was set forth. In the 
opinion it was said that the gist of the 
action was enticing away plaintiff's serv- 
ants; and that the contract between the 
plaintiff and Charles Barron did not create 
the relation of master and servant, but that 
Charles Barron was a contractor, and not a 
servant. However, within the limits of a 
69 L. R. A. 

very brief opinion, it was pointed out that 
the declaration was defective in many other 
particulars. It was defective in not set- 
ting forth the nature of the damages. It 
was said, also, that perhaps the contract, 
resting in parol^ was not binding, as it was 
not to be performed within a year. Nor did 
it appear that Charles Barron was author- 
ized to contract for the service of the others. 
Inasmuch as the petition was defective in 
other vital particulars, the judgment of tlie 
court was not confined to the question of the 
malicious procurement of the breach of the 
contract. Attention is also called to the 
fact that this case was decided in 1873, 
when the principle under discussion was in 
its evolutional stage. Speaking for myself, 
I believe the same reasons which support 
the principle that an action will lie for the 
malicious procurement of a breach of con- 
tract of personal service will cover every 
case where one person maliciously per- 
suades and induces another to break any 
legal contract. In the case at bar the re- 
lation of master and servant did exist be- 
tween the plaintiff and his employees, and, 
even applying the common-law rule of lia- 
bility, the defendants would be answerable 
in damages to the plaintiff for a maliciou.^ 
procurement of the breach of contract by 
its employees. The term "malicious," used 
in this connection, is to be given a liberal 
meaning. The act is malicious when the 
thing done is with the knowledge of tlie 
plaintiff's rights, and with the intent to 
interfere therewith. It is a wanton inter- 
ference with another's contractual rights. 
Ineffective persuasion to induce another to 
violate his contract would not, of itself, be 
actionable, but, if the persuasion be used 
for the purpose of injuring the plaintiff, or 
benefiting the defendant at the expense of 
the plaintiff, with a knowledge of the sub- 
sistence of the contract, it becomes a ma- 
licious act, and, if injury ensues from it. a 
cause of action accrues to the injured party. 
Bowcn V. Hall, L. R. 6 Q. B. Div. 333. As 
was said by Crompton, J., in Lumley v. 
Oye, 2 El. & Bl. 216: "It must now be con- 
sidered clear law that a person who wrong- 
fully and maliciously, or, which is the same 
thing, with notice, interrupts the relation 
subsisting between master and servant, by 
procuring the servant to depart from tlie 
master's service, ... is responsible 
at law." See Doremus v. Hennessy, 176 111. 
608, 43 L. R. A. 797, 802, 68 Am. St. Rep. 
203, 52 N. E. 924, 54 N. E. 524. 

4. From the proof submitted it appeared 
that means other than persuasion were em- 
ployed by the defendants to induce the 
plaintiff's employees to quit work. They 

Digitized by 



Employuvq Psintebs' Club v. Db. Blosseb Co. 


thieatened the various labor unions that, 
unless the union labor of the plaintiff was 
called out, they would no longer exclusively 
employ union men, but would run what is 
known as an *'open shop." This threat was 
being carried into execution when the plain- 
tiff applied for the writ of injunction. The 
plan of attack on the plaintiff was to force 
the various labor unions to call out their 
members from the plaintiff's shop, under 
the threat that upon their refusal to do so 
the defendants would run their respective 
businesses under what is known as an open 
shop; that is, they would employ their labor 
without reference to their connection with 
the various unions. The several defendants 
had the undoubted right to employ any 
character of labor they might prefer. If 
they desired to supplant the union labor 
and substitute therefor nonunion labor, 
such action would be strictly within their 
legal right. But the record shows that 
practically all the skilled' labor in this 
branch of business in the city of Atlanta be- 
longed to the various labor pnions, which 
had an agreement with the defendants that 
the defendants would hire only union em- 
ployees, and that the unions would not per- 
mit their members to work for any em- 
ployer who was not a party to the agree- 
ment. This agreement was incidental to 
the main purpose of the organization. It 
was a part of the plan to force all employ- 
ing printers to become members of the Em- 
ploying Printers' Club. The defendants 
were insisting on the observance of this 
agreement by the labor unions, and, upon 
their refusal to live up to the agreement, 
they were threatened with 'the hHe noire of 
unionism, — ^the open shop. An injunction 
may be granted against the enforcement of 
an illegal agreement of dealers to injure the 
business of another person. Jackson v. Stan- 
field, 137 Ind. 592, 23 L. R. A. 588, 36 N. E. 
345, 37 N. E. 14. 

A court of equity will interpose by in- 
junction to prevent the several members of 
an illegal combination from enforcing an 
agreement to the hurt and injury of one en- 
gaged in a competitive business. Brown v. 
Jacobs' Pharmacy Co. 116 Ga. 429, 57 L. R, 
A. 547, 90 Am. St. Rep. 126, 41 S. E. 553. 

Under the facts in the record, the court 
properly enjoined the defendants from 
interfering with the plaintiff's business as 
a printer engaged in competitive trade, and 
from unlawfully influencing the labor 
organization from obstructing its business. 

Judgment affirmed. 

All the Justices concur. 
69 L. R. A. 

May C. WILSON, Impleaded, etc, Plff. in 






*1. In an action aflralnst the maker and 
Indorser of a pronilssory note, Joined 
In the same suit, the Indorser may set off an 
individual claim against the plaintiff growing 
out of the transaction which gave rise to the 
execution of the note. 

2. After a valid plea of set-off has been 
lllcd, the plaintiff is not entitled to dismiss 
his action so as to interfere with the rights 
of the defendant, except upon sufficient cause 

(March 25, 1905.) 

ERROR to the City Court of Atlanta to 
review orders striking out defendant's 
plea of set-off, and dismissing, without her 
consent, an action brought to enforce pay- 
ment of certain promissory notes. Re- 

The facts are stated in the opinion. 

Mr. Frank A. Arnold for plaintiff in 

Messrs. Rosser A Brandon for defend- 
ant in error. 

Candler, J., delivered the opinion of the 
court : 

The Exchange Bank brought suit against 
Frank Williams, as maker, and May C. 
Wilson, as indorser, on a number of 
promissory notes. The petition alleged that 
the notes were made by Williams to the J. 
C. Wilson Coal & Lumber Company, under 
which name May C. Wilson was at the 
time doing business, and were indorsed by 
May C. W^ilson. The defendants filed a plea 
in which they denied that at the time the 
notes were executed May C. Wilson was 
doing business under the name of the J. C. 
Wilson Coal & Lumber Company, and 
averred that that company was a corpo- 
ration under the laws of Georgia. They 
also denied indebtedness on the notes, and 
averred that "plaintiff has received from de- 
fendant, May C. Wilson, $874 on account of 
the transaction sued upon, and said plain- 
tiff is indebted to defendant. May C. Wil- 
son, the difference, $474, which she pleads in 
recoupment, and asks judgment against 
plaintiff for said sum." Subsequently Mrs. 
Wilson offered an amendment to her plea, 

•lleadnotes by Candler, J. 

Note. — As to the right of a surety Jointly 
bound with his principal to offset against such 
joint indebtedness his Individual claim against 
the creditor, see, in this series, Clarlc v. Sulli- 
van, 13 L. R. A. 233, and note. 

Digitized by VjOOQIC 


Georgia Supbeme Coubt. 


which the court, on objections of counsel 
for the plaintiff, disallowed. The court also, 
on oral motion, struck the plea of set-off, 
and later passed another .order, ''without 
the knowledge or consent of defendant, May 
C. Wilson," permitting the plaintiff to dis- 
miss the case at its cost. Mrs. Wilson ex- 
cepts to the refusal of her amendment, the 
order striking her plea, and the order allow- 
ing the plaintiff to dismiss. 

1. As no reference is made in the brief 
of counsel for the plaintiff in error to the 
refusal of the amendment offered by Mrs. 
Wilson, the assignment of error on this rul- 
ing will be treated as having been aban- 
doned, and we will pass to the controlling 
question in the case, viz., whether, in a suit 
on a promissory note, where both maker and 
indorser are joined in the suit, the indorser 
may set off an individual demand against 
the plaintiff's cause of action. This ques- 
tion is not without considerable difficulty. 
In the case of Threlkeld v. Dohhins, 45 Ga. 
144, it was held broadly that "a debt due by 
the plaintiff to one of several defendants in 
a suit cannot be pleaded by the defendants 
as a set-off, unless there be some special 
cause bhown." That case, however, was de- 
cided by only two judges, and hence is not 
binding upon us as authority; biit, aside 
from that consideration, an examination of 
the facts upon which it was based will show 
that the headnote, from which the foregoing 
quotation was taken, is much broader than 
the actual question decided. It appeared 
that Threlkeld and another had executed to 
Dobbins their joint promissory note; that 
Dobbins owed Threlkeld a sum of money for 
cotton which he had sold for him, and for 
which he had not accounted; and that Dob- 
bins had agreed that this sum should be en- 
tered as a credit on the joint note. It was 
held that this agreement was **such special 
claim" as could be set off against the plain- 
tiff's demand on the note. The cases cited 
by counsel for the defendant in error as 
being in harmony with the decision in 
Threlkeld v. Dobbins are also cases where a 
joint demand was the subject of the suit, 
and one of the defendants sought to set off 
an individual claim. With one exception, 
they were suits against partnerships, the 
exception being a suit against joint makers 
of a promissory note. It seems to be well 
settled in Georgia, as in most of the states, 
that in a suit against two or more persons 
on a joint obligation set-off is not available 
to less than the entire number of defend- 
ants. The reason of this rule is plain. A 
joint obligation is indivisible. Each one of 
the obligors is bound to the same extent 
and in the same manner as all the others. 
A separate judgment against less than the 
entire number would be impossible; and in 
6» L, R, A. 

this Tery fact of indivisibility lies the se- 
curity to the obligee of accepting a joint 
obligation. That, however, is not this ca^e. 
The maker and the indorser of a negotiable 
promissory note are severally, not jointly, 
bound by the instrument. Their contracts 
are essentially different. That of the maker 
is to pay the note when due, according to 
the terms of the writing. That of the in- 
dorser is that he will pay only on certain 
well-defined conditions precedent. Owing 
to the several nature of the contract, a suit 
against the maker and indorser in one 
action was not known to the law merchant; 
and it was necessary to obtain a judgment 
against the maker before the liability of 
the indorser was established. The suit 
against maker and indorser in one action is 
entirely of statutory origin. (14 Enc. PI. & 
Pr. p. 452, and authorities cited in note), 
and the Georgia statute on the subject was 
not enacted until 1826. Beck with v. Carle- 
ton, 14 Ga. 603. And see generally on this 
subject, »Viti8on v. Piatt, 21 Ga. 135; La- 
mar V. Cottle, 27 G a. 265; Dams v. Bank of 
Fulton, 31 Ga. 60; Ware v. City Bank, 50 
(J a. 844. The defense of set-off was aUo 
unknown to the common law% "the 
primitive notion of an action did not 
admit the possibility of a defendant being 
an actor and interposing a claim againt>t 
the plaintiff to be tried in the one suit." 
Pomeroy, Code Remedies, 3d ed. 9 729; 
Waterman, Set-off, 2d ed. § 10. By the 
statute of 2 Geo. II., chap. 27, 9 13, it was 
enacted that, "where there are mutual debts 
between the plaintiff and defendant, . . . 
one debt may be set off against the other," 
etc. The different states of this country 
have all passed statutes the practical ef- 
fect of which is the same as that of the Eng- 
lish statute, though varying somewhat in 
phraseology. In Georgia it is provided that 
"between the parties themselvea any mutual 
demands existing at the time of the com- 
mencement of the suit may be set off;" an i 
that "set-off must be between the same 
parties, and in their own right." Civil 
Code 1895, §§ 3740, 3747. The e.vact mean- 
ing to be given to the expressions "mutual 
demands" and "same parties," as used in 
the statute, is the important question now 
to be decided. It seems to us nothing more 
than reasonable to hold that in a case like 
the present, where two or more defendants 
are joined in an action to which they are 
severally liable, and in which a separate 
judgment may be taken against them, a 
cross-demand in favor of any one of the de- 
fendants against the plaintiff would come 
within a fair construction of the require- 
ment of mutuality; nor can we see the 
necessity, in such a case, of construing the 
words "same parties"^r-to mean "all the 
Digitized by VjOOQIC 


Wilson v. Exchange Bank. 


parties." We are aware that this view is 
in conflict with the English rule on the sub- 
ject, and with the decisions of many of the 
courts of last resort of this country ; but it 
19 also in harmony with many American 
authorities of eminent respectability. 

In Pomeroy's Code Remedies, 3d ed. 9 
755, the author says: "The provision found 
in nearjy all the Codes that the counter- 
claim must exist *in favor of a defendant 
and against a plaintiff between whom a 
several judgment might be had in the 
action/ implies that whenever the single de- 
fendant, or all the defendants jointly, may 
recover against one or some of the plaintiffs, 
and not against all, or whenever one, or 
siome, of the defendants, and not all, may 
recover against the single plaintiff, or all 
the plaintiffs jointly, or whenever both of 
these possibilities are combined, a counter- 
claim may be interpose<l against the one or 
^me of the plaintiffs, and not against all, 
and by the one or some of the defendants, 
and not by all. Such a severance in the re- 
covery is possible when the right sought to 
be maintained on the one side and the lia- 
bility to be enforced on the other are not 
oriirinally joint." After a full discussion of 
numerous cases bearing on the subject, the 
author, in 9 761, lays down the following 
rules: "First, when the defendants in an 
action are joint contractors, and are sued 
as such, no counterclaim can be made avail- 
able which consists of a demand in favor of 
one, or some, of them. Secondly, when the 
defendants in an action are jointly and 
severally liable, although sued jointly, a 
ocjunterclaim, consisting of a demand in 
favor of one, or some, of them, may, if 
otherwise without objection, be interposed. 
Thirdly, since it is possible, pursuant to ex- 
press provisions of all the Codes, for per- 
sons severally liable to be sued jointly 
under certain circumstances in a legal 
action, — that is, in an action brought to re- 
cover a common money judgment, — a 
counterclaim in favor of one or more of 
•«uch defendants may be pleaded and 
proved." In Roberta v. Donovan, 70 Cal. 
108, 9 Pac. 180, 11 Pac. 599, it was held 
that one of two joint obligors could not 
set off an individual claim against the 
plaintiff's demand on the action ; but in the 
opinion (p. 114 of 70 Cal., p. 182 of 9 Pac.) 
the following language was used: "The 
action is brought upon the joint bond of all 
the defendants. W^ere it a joint and several 
bond, no diflBculty could arise; for .where 
the cause of action is several, as well as 
joint, a several judgment may be entered 
without reference to the mere form of 
action." In some of the states it is held 
69 L. R. A. 

flatly that the defense of set-off is not a^Tiil- 
able to less than the entire number of de- 
fendants. See Lemon v. Stevenson, 36 111. 
49; Byan v. Barger, 16 111. 28; Woods v. 
Harr'iSy 5 Blackf. 585; Gordon v. Swift, 46 
Ind. 208; Warren v. WelU, 1 Met. 80; 
Brooks V. Stacl'pole, 168 Mass. 537, 47 N. 
K. 419; Jones v. GiJreath, 28 N. C. (6 Ir^d. 
L.) 338; Corhett v. Hughes, 75 Iowa, 282, 
.39 N. W. 500; Banks v. Pike, 15 Mo. 268. 
In Trammell v. Ilarrell, 4 Ark. 602, the 
supreme court of Arkansas, by a divided 
bench, held: ''A defendant, or defendants, 
cannot set off a claim due to him or them 
by only one or a part of several plaintiffs; 
nor can one defendant of several set off a 
claim due to him alone from the plaintiff or 
plaintiffs; and whether the claim sued on, 
or that attempted to be set off, or both, arc 
joint, or joint and several, makes no differ- 
ence." Chief Justice Ringo, in a strong opin- 
ion, dissented from the judgment rendered; 
and so pertinent are the views expressed by 
him in the dissenting opinion to the point 
now under discussion that we quote therefrom 
as follows: "It is well understood that no set- 
off was allowed by the common law; and 
that the whole right of set-off in actions at 
law had its origin in certain statutes of 
England, the first of which gave it only in 
respect to a single class of demands; but 
it has been considerably enlarged and ex- 
tended by subsequent acts of Parliament so 
as to embrace generally all liquidated dam- 
ages or demands upon which an action of 
debt or indebitatus assumpsit would lie, but 
only where the demand to be set off is due 
in the same right from all of the plaintiffs 
to all of the defendants. And this I under- 
stand to be one of the most prominent and 
distinct features in all of the acts of Parlia- 
ment upon the subject, and it is one which 
appears to have been introduced into the 
statutes of set-off of a majority of the states 
of the United States; and in such states 
there can be no doubt that a demand not 
due from all of the plaintiffs to all of the 
defendants cannot be admitted as set-off, 
because it is not within the provisions of 
law allowing such defense to- be made. 
. . . The f^rst section of our statute of 
set-off (Ark. Rev. Stat. chap. 139. p. 726), 
declares that, 'if two or more persons are 
mutually indebted to each other, by judg- 
ments, bonds, bills, notes, bargains, 
promises, or the like, and one of them com- 
mence an action against the other, one dv^bt 
may be set off against the other, althougii 
such debts may be of a different nature. 
. , . The language here quoted, it will 
be perceived, does not in any way make the 
right of set-off to depend upon the number 

Digitized by VjOOQIC 


Georgia Sufrkme Court. 


of the defendantBi • • • but makes it 
depend solely upon the exigtence of a 
mutual indebtedness between one or more of 
the persons suing and one or more of the 
persons sued. To illustrate my view of the 
statute, suppose A, B, and G indebted to E 
in $1,000, and E at the same time indebte<l 
to A in the like sum of $1,000. A sues E 
for the debt. Can E set off the debt due to 
him from A, B, and C? Certainly. Why? 
Because there exists between him and the 
plaintiff a mutual indebtedness. Each owes 
the other a debt^ and, the law having made 
the debt of A, B, and C several as well as 
joint, E has an election to treat it as the 
individual debt of A, and, so regarding it, 
there is certainly, in the most strict under- 
standing of the term, a mutuality of indebt- 
edness between the parties A and E. But 
suppose .the suit brought by E against A, 
B, and C, would not the same mutuality of 
indebtednei^s exist between A and E? 1 
answ^er that it would^ and that, according to 
the letter as well as the spirit of the stat- 
ute, A would have a legal right to set off 
the debt due to him from E." Attention is 
directed to the similarity of the Arkansas 
statute under discussion by the learned 
chief justice and our own, and to the fact 
that in both the requirement of the law is 
that the demands shall be mutual. And in 
the subsequent case of Leach v. Lambeth, 
14 Ark. 668, the principle laid down by the 
majority in Trammell v. Harrcll was over- 
ruled, and by a unanimous decision the 
views expressed by the chief justice in his 
dissenting opinion in that case were adopt- 
ed as the law applicable to the subject 
under discussion. See also Burke v. Still- 
iccllf 23 Ark. 294. And for deciKions of 
other s^tates to a like effect, see Pitcher v. 
Patrick, Minor (Ala.) 321, 12 Am. Dec. 54; 
Carao^ v. Barnes, 1 Ala. 93; Sledije v. 
&wift, ^3 Ala. 110; Huddlcston v. Askcy, 56 
Ala. '418; Riley v. Utalltcorth, 56 Ala. 481; 
Locke V. Locke, 57 Ala. 475; Childrrston v. 
Hamnton, 9 Serg. & R. 68; Robinson v. 
Beall, 3 Yeates, 267; Miller v. Kreiter, 76 
Pa. 78; Dunn v. West, 5 B. Mon. 377. In 
Locke V. Locke, 57 Ala. 475, the following 
language is used: "If, as the verdict tends 
to show, the set-off was due to only one of 
the defendants, this would constitute a good 
defense to plaintiff's action, but would not 
authorize a recovery for the excess, for the 
reason that such recovery would require a 
change, to that extent, of the parties to the 
judgment. In fact, it would, in effect, re- 
quire two judgements; one in favor of one 
defendant for the certified balance, and the 
other in favor of all the defendants for the 
costs of the suit. This cannot be done in 
legal proceedings." Under the liberal pio- 
69 L. R. A. 

visions of our law as to judgments m legal 
proceedings, the objection urged by the Ala- 
bama court to a judgment for one of i\w 
defendants for the excess of his set-otf 
would not apply. Once the facts are 
definitely ascertained, a judgment to fit 
those facts can easily be framed. And to 
the possible objection that the allowance of 
individual set-offs of one or more^ defend- 
ants would give rise to difficulty' in the 
framing of a judgment to fit the facts it 
may be replied that the difficulty is one 
more of arithmetic than of law. Say that 
A is plaintiff in an action on a promissory 
note for $100 executed by B and indorsed 
respectively by C, D, and E. A owes C 
$100, D $200. and E $300. Each of the 
defendants answers separately or jointly, as» 
the case may be, sotting off his individual 
demand against the plaintiff, and tho 
verdict of the jury is in favor of their con- 
tentions. The cross-demand of only one of 
the defendants could be applied to the ex- 
tinguishment of the note sued on, for the 
application of a set-off is in the nature of 
a payment, and, of course, the original 
claim could only be legally paid once. But 
the other defendants, having been haled into 
court, and having, under the law, set up 
their counterclaim, would have the right to 
Htay in court until their rights were ad- 
judicated. And so judgment might be 
entered generally in favor of the defendant 
C, thus releasing the maker of the note, B 
and the other indorsers, D and E, and in 
favor of D and E, against the plaintiff re- 
spectively for $200 and $300. 

In Thiclkcld v. Dobbins, 45 Ga. 144, re- 
lied on as authority by counsel for the de- 
fendant in error. Judge McCay said: 
"Independently of the settled rule, under 
the English statutes of set-off, our Code 
provides that set-off must be between the 
same parties, and in their own right. Code, 
§ 2850. This section of the Code, however, 
recognizes some special exceptions. Two 
are mentioned, to wit, the case of a surviv- 
ing partner, and a debt due to the principal 
in a suit against the principal and se- 
curity." Tracing back the latter of the two 
called exceptions to its origin, we have 
reached the conclusion that, instead of 
being an exception to the rule, it is within 
the rule recognized in Georgia from the be- 
ginning in regard to the law of set-off. The 
original act allowing set-off under the law 
of Georgia was passed in 1799, being part 
of the judiciary act. Prince's Dig. 425. It 
contained no reference whatever to suits 
against principal and security. The pro- 
vision of the Code referred to by Judge Mc- 
Cay, which is now a part of Civil Code ISD.'i, 

Digitized by VjOOQIC 


Wilson v. Exchange Bank. 


i 3747, made its appearance for the first 
time in Code 1863, 9 2842, and was evident- 
ly codified from the decision of this court in 
the early case of Harrison v. Henderson, 4 
Ga. 198. It was there held that in an 
action against principal and surety the 
principal might set off his individual de- 
mand against the plaintiff. In the opinion 
(p. 199) Judge Warner, after discussing the 
act of 1799, authorizing the plea of set-off, 
and quoting therefrom, said: "The ob- 
jection urged against the set-off is that the 
demand of the plaintiff is a joint demand, 
and the debt offered to be set off is the 
separate demand of Harrison against the 
plaintiff. It is true, as a general rule, 
that a separate demand cannot be set off 
against a joint demand; but the plaintiff's 
demand here is several as well as joint. 
We must look to the original character of 
the contract; for the plaintiff, by pursuing 
his remedy against them as joint con- 
tractors, does not alter the original char- 
acter of the contract itself. When we look' 
at the contract, we see it is the separate 
cfmtract of Harrison with the plaintiff, se- 
cured by the joint security of Sims." It 
will thus be seen that under the statute of 
>^t-off as originally enacted, which has not 
been amended in this respect, it wa:s 
recc^jnized that in a suit on a several obli- 
:5a t ion the defense was available to any one 
or more of the defendants; and the sub- 
••Hijuent codification of this decision certain- 
ly did not operate to alter its effect. It 
will thus be seen that it is quite erroneous 
to argue that, because the codifiers have 
named two specific instances in which one 
oT more of several codefendants may plead 
«et-off, the plea cannot be interposed in any 
other case where more than one defendant 
is sued in the same action. 

We have discussed this question at such 
*rTfSLt length, not only because of the appar- 
ent doubt cast upon it by the decision in 
the case of Threlkeld v. Dobbins, but also on 
sccount of its far-reaching importance to 
the commercial w*orld. Applying what has 
been said to the facts of this case, our con- 
el ua ion is that, the contract of Williams 
and that of Mrs. Wilson being several, it 
was competent for the latter to set off her 
individual claim against that of the plain- 

2, The defendant, May C. Wilson, havinjr 
filed a valid plea of setoff, the plaintitf 
could not, without making some sort of 
i^bowing, dismiss its action so as to 
prejudice her right to a hearing on the 
Maim set up in her plea. Civil Code 1895, 
55 .3754, 4970; Simon v. Myers, 68 Ga. 76. 

Judgment reversed. 

All the Justices concur. 
69 L. R. A. 

Paolo PAVESICH, PZ/f. in Err., 


COMPANY et al 




*1. The absence, for a lonip period of 
time, «f a precedent for an asserted 
right is not conclusive evidence that the right 
does not exist. Where the case Is new In 
principle, the courts cannot give a remedy, 
but, where the case is new only in instance, 
It is the duty of the courts to give relief by 
the application of recognized principles. 

2. A rlRht of privacy is derived fi:om 
natural laiv, recognized by municipal law, 
and its existence can be Inferred from ex- 
pressions used by commentators and writers 
on the law as well as Judges in decided cases. 

8. The riarbt of privacy Is embraced 
within the absolute rights of personal secu- 
rity and personal liberty. 

4. Personal security includes tbe rlg:bt 
to exist, and the right to the enjoyment of 
life while existing, and is invaded, not only 
by a deprivation of life, but also by a depriva- 
tion of those things which are necessary to 
the enjoyment of life according to the nature, 
temperament, and lawful desires of the in- 

ff. Personal liberty includes, not only 
freedom from pbyslcal restraint, but 
also tbe rlsbt **to be let alone;" to de- 
termine one's mode of life, — whether It shall 
be a life of publicity or of privacy ; and to 
order one's iife and manage one's affairs in 
a manner that may be most agreeable to him 
so long as he does not violate the rights of 
others or of the public. 

G« Liberty of speech and of the press, 
when exercised within the bounds of the con- 
stitutional guaranties, are limitations upon 
the exercise of the right of privacy. 

T. The Constitution declares that the 
liberty of speech and of the press 
must not be abused, and the law will 
not permit the right of privacy to be as- 
serted in such a way as to curtail or restrain 
such liberties. The one may be used to keep 
the other within lawful bounds, but neither 
can be lawfully used to destroy the other. 

8. The rlffht of privacy may be ivalved, 
either expressly or by implication, except as 
to those matters which law or public policy 
demands shall be kept private, but a waiver 
authorizes an invasion of the right only to 
such an extent as is to be necessarily inferred 
from the purpose for which the waiver Is 
made. A waiver for one purpose, and in 
favor of one person or class, does not author- 
ize an invasion for all purposes, or by all 
persons and classes. 

O. One 'fvho seeks public office, or any 
person i^ho claims from the public 
approval or patronaflre, waives his 
right of privacy to such an extent that he 
cannot restrain or Impede the public in any 

•Headnotes by Cobb, J. 

Note. — As to the right of privacy, see al8(>, 
in this series, Roberson v. Rochester Foldlnu 
Box Co. 59 L. R. A. 478, and footnote thereto. 

Digitized by 



Georgia Supreme Court. 


proper Invetntl^ntlon Into the conduct of his 
private life which may throw light upon the 
question as to whether the public should be- 
stow upon him the office which he seeks, or 
accord to him the approval or patronage 
which he asks. The holder of public office 
makes a waiver of a similar nature, and sub- 
jects his life at ali times to closest scrutiny, 
in order that it may be determined whether 
the rightu of the public are safe in his hands. 

10. The conclmiloii and reasonliiK of 
tlie niujorlty In tlie case of Roberson 
V. RoclieMtcr Folding Box Company, 
64 N. B. 442, 59 L. R. A. 478, 89 Am. St. Rep. 
828. 171 N. Y. 540, criticized and disap- 
proved ; and the reasoning of Judge Gray, In 
his dissenting opinion, adopted and followed. 

11. Tbe publication of a pictare of a 
pemun, without his consent, as a part of 
an advertisement, for the purpose of exploit- 
ing the publisher's business, is a violation of 
the right of privacy of the person whose 
picture is reproduced, and entitles him to 
recover, without proof of special damage. 

12. The publication of one*s picture, 
-^vlthout bin coniient, for such a purpose, 
is in no sense an exercise of the liberty of 
speech or of the press, within the meaning of 
those terms as used in the Constitution. 

13. li%'ordB irbich are barmleaa In them- 
selves may be libelous in the light of extrinsic 

14. A publication i^vhlch Iniputen to one 
lanvuaare which is known to those among 
whom he lives to contain statements which 
are false is libelous. 

15. A publication of an advertlaement 
of an Innurance company, containing 
a person's picture, and a statement that the 
per.son has policies of insurance with the 
company, and is pleased with his investment, 
when in fact he has no such policies, Is libel- 
ous, as having a tendency to create the Im- 
pression among those who know the facts 
that the person whose picture is reproduced 
has told a wilful falsehood, either gratui- 
tously, or for a consideration. 

10. The petition wan firood as against a 
general demurrer, and the objections raised 
in the special demurrer were without merit. 

(March 3. 1905.) 

ERROR to the Citj- Court ^of Atlanta to 
review a 

which would be easily recognized by his 
friends and ac(iuaintances, placed by tbe 
side 'of the likeness of an ill-dressed and 
sickly looking person. Above the likeness 
of the plaintiff were the words: "Do it 
now. The man who did." Above the likc^- 
neHs of the other person were the words: 
"Do it while you can. The man who didn't.'' 
Below the two pictures were the words: 
"These two pictures tell their owti story.*' 
Under the plaintiff's picture the following 
appeared: "In my healthy and productive 
period of life I bought insurance in the New 
England Mutual Life Insurance Co., of 
Boston, Mass., and to-day my family is pro- 
tected and I am drawing an annual dividend 
on my paid-up policies." Under the other 
person's picture was a statement to the ef- 
fect that he had not taken insurance and 
now realized his mistake. The statements 
were signed, 'Thomas B. Lumpkin, General 
Agent." The picture of the plaintiff was 
taken from a negative obtained by the de- 
fendant Lumpkin, or some one by him 
authorized, from the defendant Adams, 
which was used with his consent, and with 
knowledge of the purpose for which it was 
to be used. The picture was made from the 
negative without the plaintiff's consent, at 
the instance of the defendant insurance 
company, through its agent, Lumpkin. 
Plaintiff is an artist by profession, and the 
publication is peculiarly offensive to him. 
The statement attributed to plaintiff in the 
publication is false and malicious. He 
never made any such statement, and has 
not, and never has had, a policy of life in- 
surance with the defendant company. The 
publication is malicious, and tends to brini; 
plaintiff into ridicule before the world, and 
especially with his friends and acquaint- 
ances, who know that he has no policy in 
the defendant company. The publication i3 
a "trespass upon plaintiff's right of privacy, 
find was caused by breach of confidence and 

., L • t t A t ^\ ^ trust reposed" in the defendant Adams. Ihe 

judgment in favor of defend- * . . ... *«.-»- 

. . /• 1 1 i. A J i»raver was for damages m the sum of $2o,- 

ants m an action brought to recover dam- \^^^- ^, „.^,,,_„ ... j j ^ , 

ages for the alleged infringement of Y>lflin 

tiff's right of privacy by the unauthorized 
publication of his portrait and alleged 
libelous matter in connection therewith. 

Statement by Cobb, J. : 

Paolo Pavesifh brought an action against 
the New England Mutual Life Insurance 
Company. a nonresident corporation, 
Tliomas B. Lumpkin, its general agent, and 
J. Q. Adams, a photograplier, both residing 
in the city of Atlanta. The allegations of 
the petition were, in substance, as follows: 
In an issue of the Atlanta Constitution, a 
newspaper published in the city of Atlanta, 
there appeared a likeno^s of the plaintiff, 
01) L. R. A. 

000. Tlie petition was demurred to general- 
ly, and specially on the grounds that there 
was a misjoinder of defendantvS and causes 
of action, that no facts were set forth from 
wliich malice can be inferred, and that no 
special damages were alleged. The court 
sustained the general demurrer, and the 
plaintiff excepted. 

Messrs. TVestmor eland Brothers and 

M. M. Hirsh for plaintiff in error. 

Messrs. John L. Hopkins A Sons, for 

defendants in error: 

To charge one with doing a thing which 
tlie law authorizes to be done can never be 
tlie subject-matter of a libel. 

Hollenheck v. Hall, 103 Iowa, 214, 39 L. 

Digitized by 



Pavesich v. New England Life Ins. Co. 


R. A. 734, 64 Am. St. Rep, 175, 72 N. W, 

A libel must be, first, a false and ma- 
licious defamation, and, secondly, the repu- 
tation of the individual libeled must be 
injured by exposing him to public hatred, 
contempt, and ridicule. 

Code, 3832. 

So the word "defamation" implies, first, 
that the individual possessed good fame, 
and, secondly, that the thing written of 
liim withdrew from him a portion of this, 
leaving him upon the whole with less than 
lie had at first. 

False statements which tend to promote 
the good character of a man, and do not in 
fact defame or injure, are not actionable. 

1^99 V. Dunleavy, 80 Mo. 558, 50 Am. 
Rep. 512; Dun v. J/aier, 27 C. C. A. 100, 
52 U. S. App. 381, 82 Fed. 169. 

An innuendo cannot introduce new mat- 
ter, nor change the natural meaning of the 
words. ^ 

Walters v. Retail Clerks* Union, No. 479, 
120 Ga. 424, 47 S. E. 911. 

The publication must have a personal, 
and not an impersonal, application. 

Stewart v. Wilson, 2^ Minn. 449. 

The right of privacy has been repudiated 
by every court of last resort that has con- 
sidered the subject-matter. 

Schuyler v. Curtis, 27 Abb. N. C. 387, 15 
N. Y. Supp. 787, 64 Hun, 594, 19 N. ' Y. 
Supp. 264, 30 Abb. X. C. 376, 24 N. Y. Supp. 
509, 147 N. Y. 434, 31 L. R. A. 286, 49 Am. 
St. Rep. 671, 42 N. E. 22; Marks v. Jaffa, 
<J Misc. 290, 26 N. Y. Supp. 908; Murray v. 
Oast Litho9raphic d Engraving Co. 8 Misc. 
36, 28 N. Y. Supp. 271; Roberson v. Roch- 
ester Folding Box Co. 171 N. Y. 640, 59 L. 
R. A. 478, 89 Am. St. Rep. 828, 64 N. E. 
442; Atkinson v. John E. Doheriy d Co. 121 
Mich. 372, 46 L. R. A. 219, 80 Am. St. Rep. 
507, 80 N. W. 285. 

Cob1», J., delivered the opinion of the 

1-12. The petition really contains two 
counts, — one for a libel, and the other for a 
violation of the plaintiff's right of privacy. 
There was no special demurrer raising the 
objection that the counts were not proper- 
ly arranged, as there was in Cooper v. 
Partner Brevcing Co. 112 Ga. 894, 38 S. E. 
91; and hence the petition is to be dealt 
with in relation to its substance, without 
reference to its form. 

We will first deal with the general demur- 
rer to the second count, which claimed dam- 
ages on account of an alleged violation of 
the plaintiff's right of privacy. The ques- 
tion therefore to be determined is, whether 
an individual has a right of privacy which 
he can enforce, and which the courts will 
♦>9 I^ R. A. 

protect against invasion. It is to be con- 
ceded that prior to 1890 every adjudicated 
case, both in this country and in England, 
which might be said to have involved a 
right of privacy, was not based upon the 
existence of such right, but was founded 
upon a supposed right of property, or a 
breach of trust or confidence, or the like, 
and that therefore a claim to a right of 
privacy, independent of a property or con- 
tractual right, or some right of a similar 
nature, had, up to that time, never been 
recognized in terms in any decision. The 
entire absence for a long period of time, 
even for centuries, of a precedent for an as- 
serted right should have the effect to cause 
the courts to proceed with caution before 
recognizing the right, for fear that they 
may thereby invade the province of the law- 
making power; but such absence, even for 
all time, is not conclusive of the question as 
to the existence of the right. The novelty 
of the complaint is no objection, when an 
injury cognizable by law is shown to have 
been inflicted on the plaintifi". In such a 
case, "although there be no precedent, the 
common law will judge according to the 
law of nature and the public good." Where 
the case is new in principle, the courts have 
no authority to give a remedy, no matter 
how great the grievance; but where the 
case is only new in instance, and the sole 
question is upon the application of a 
recognized principle to a new case, "it will 
be just as competent to courts of justice to 
apply the principle to any case that may 
arise two centuries hence as it was two 
centuries ago." Broom's Legal Maxims, 8th 
ed. 193. This results from the application 
of the maxim, IJhi jus ihi remedium, 
which finds expression in our Code, where 
it is declared that "for every right there 
shall be a remedy, and every court having 
jurisdiction of the one may, if necessary, 
frame the other." Civil Code 1895, § 4929. 
The individual surrenders to society many 
rights and privileges which he would be free 
to exercise in a state of nature, in exchange^ 
for the benefits which he receives as a mem- 
ber of society. But he is not presumed to 
surrender all those rights, and the public 
has no more right, without his consent, to 
invade the domain of those rights which it 
is necessarily to be presumed he has re- 
served, than he has to violate the valid 
regulations of the organized government 
under which he lives. The right of privacy 
has its foundation in the instincts of nature. 
It is recognized intuitively, consciousness 
being the witness that can be called to 
establish its existence. Any person whose 
intellect is in a normal condition recognizes 
at once that, as to each individual member 
of society, there are matters private, and 

Digitized by 



Georgia Supreme Court. . 


there are matters public so far as the indi- 
vidual is concerned. Each individual aa in- 
stinctively resents any encroachment by the 
public upon his rights which are of a 
private nature as he does the withdrawal of 
those of his rights which are of a public 
nature. A right of privacy in matters pure- 
ly private is therefore derived from natural 
law. This idea is embraced in the Roman's 
conception of justice, which "was not simply 
the external legality of acts, but the accord 
of external acts with the precepts of the 
law, prompted by internal impulse and fre<J 
volition." Mackeldey*s Roman Law, by 
Dropsie, § 123. It may be said to 
arise out of those laws sometimes char- 
jicterized as "immutable," because they 
are natural, and so just at all times 
and in all places that no authority 
can either change or abolish them." 1 
Domat's Civil Law, by Strahan, Cushing's 
cd. p. 49. It is one of those rights referred 
to by some law writers as "absolute," — 
"such as would belong to their persons 
merely in a state of nature, and which every 
man is entitled to enjoy, wlu-ther out of 
society or in it." 1 Bl. Com. 123. Among 
the absolute rights referred to by the com- 
mentator just cited is the right of personal 
security and the riglit of personal liberty. 
In the first is embraced a person's right to 
a "legal and uninterrupted enjoyment of his 
life, his limbs, his body, his health, and his 
reputation;" and in the second is embraced 
"the power of locomotion, of changing sit- 
uation, or moving one's person to whatso- 
ever place one's own inclination may direct, 
without imprisonment or restraint, unless 
by due course of law." 1 Bl. Com. 129, 134. 
While neither Sir William Blackstone nor 
any of the other writers on the principles 
of the common law have referred in terms 
to the right of privacy, the illustrations giv- 
en by them as to what would be a violation 
of the absolute rights of individuals are not 
to be taken as exhaustive, but the language 
should be allowed to include any instance 
of a violation of such rights which is clear- 
ly within the true meaning and intent of the 
words used to declare the principle. When 
the law guarantees to one the right to the 
enjoyment of his life, it gives to him some- 
thing more than the mere right to breathe 
and exist. While, of course, the most fia- 
grant violation of this right would be depri- 
vation of life, yet life itself may be spared, 
and the enjoyment of life entirely destroyed. 
An individual has a right to enjoy life in 
any way that may be most agreeable and 
pleasant to him, according to his tempera- 
ment and nature, provided that in such en- 
joyment he does not invade the rights of 
his neighbor, or violate public law or pol- 
icy. The right of personal security is not 
09 L. R. A. 

fully accorded by allowing an individual to- 
go through life in possession of all of his 
members, and his body unmarred; nor is his 
right to personal liberty fully accorded by 
merely allowing him to remain out of jail, 
or free from other physical restraints. Tho 
liberty which he derives froip natural law^„ 
and which is recognized by municipal law, 
embraces far more than freedom from phys- 
ical restraint. The term * "liberty" is not 
to be so dwarfed, "but is deemed to embrace 
the right of a man to be free in the enjoy- 
ment of the faculties with which he has be<jn 
endowed by his Creator, subject only to such 
restraints as arc necessary for the common 
welfare. 'Liberty,' in its broad sense, as 
understood in this country, means the right, 
not only of freedom from servitude, impris- 
onment, or restraint, but the right of one to 
use his faculties in all lawful ways, to live 
and work where he will, to earn his liveli- 
hood in any lawful calling, and to pursue 
any lawful trade or avocation." See Bran- 
non, Fourteenth Amendment, 111. Liberty 
includes the right to live as one w^ill. Be- 
long as that will does not interfere with 
the rights of another, or of the public. One 
may desire to live a life of seclusion: an- 
other may desire to live a life of publicity : 
still another may wish to live a life of pri- 
vacy as to certain matters, and of publicity 
as to others. One may wish to live a life of 
toil, 'where his work is of a nature that 
keeps him constantly before the public gaze,, 
while another may wish to live a life of re- 
search and contemplation, only moving be- 
fore the public at such times and under such 
circumstances as may be necessary to his, 
actual existence. Each is entitled to a lib- 
erty of choice as to his manner of life, and 
neither an individual nor the public has a 
right to arbitrarily take away from him this 
liberty. See, in this connection, Cyc. Law 
Diet. (Shumaker & Longsdorf), and Bou- 
vier. Law Diet., title Liberty, All will ad- 
mit that the individual who desires to live 
a life of seclusion cannot be compelled, 
against his consent, to exhibit his person in 
any public place, unless such exhibition is 
demanded by the law of the land. He may 
be required to come from his place of se- 
clusion to perform public duties, — to serve 
as a juror, and to testify as a witness, and 
the like; but, when the public duty is once 
performed, if he exercises his liberty to ga 
again into seclusion, no one can deny him 
the right. One who desires to live a life 
of partial seclusion has a right to choose 
the times, places, and manner in which and 
at which he will submit himself to the pub- 
lic gaze. Subject to the limitation above 
referred to, the body of a person cannot be 
put on exhibition at any time or at any 
place without his consent. The right of 

Digitized by 



Pavesich v. New England Lots Ins. Co. 


one to exhibit himself to the public at all 
proper times, in all proper places, and in a 
proper manner is embraced within the right 
of personal liberty. The right to withdraw 
from the public gaze at such times as a per- 
son may see fit, when his presence in public 
is not demanded by any rule of law, is also 
embraced within the right of personal lib- 
erty. Publicity in one instance, and privacy 
in the other, are each guaranteed. If per- 
sonal liberty embraces the right of publicity, 
it no less embraces the correlative right of 
nrivacv: and this is no new idea in Georgia 
law. In Wallace v. Georgia, C, d N. R. Co. 
l«4 Kja. IS'l, 22 b. K. 579, it was said: "Lib- 
erty of speech and of writing is secured by 
the Constitution, and incident thereto is the 
correlative liberty of silence, not less im- 
portant nor less sacred." The right of pri- 
vacy within certain limits is a right derived 
from natural law, recognized by the princi- 
ples of municipal laiv, and guaranteed to 
P<>rsons in this state both by the Consti- 
tutions of the United States and of the state 
of Georgia, in those provisions which declare 
that no person shall be deprived of liberty 
except by due process of law. 

While, in reaching the conclusion just 
>iated, we have been deprived of the benefit 
of the light that* would be shed on the ques- 
tion by decided cases and utterances of law 
writers directly dealing with the matter, we 
have been aided by many side lights in the 
law. The injuria of the Roman law, some- 
tiroes translated "injury,'' and at other 
times "outrage," and which is generally un- 
tierstood at this time to convey the idea of 
l^'gal wrong, was held to embrace many acts 
n^sulting in damage for which tlie law would 
?ive redress. It embraced all of those 
H-rongs which 'were the result of a direct in- 
vasion of the rights of the person and the 
rights of property which are enumerated in 
all of the commentaries on the common law, 
and which are so familiar to everyone at 
this time. But it included more. An out- 
rage was committed, not only by striking 
iKith the fists or with the club or lash, but 
also by shouting until a crowd gathered 
around one, and it was an outrage or legal 
wrong to merely follow an honest woman 
or young boy or girl ; and it was declared in 
unequivocal terms that these illustrations 
were not exhaustive, but that an injury or 
le^ral wrong was committed "by numberless 
other acts." Sandars, Justinian, Ham- 
mond's ed. 409; Poste's Inst, of Gains, 3d 
M. 449. The punishment of one who had 
not committed any assault upon another, or 
impeded in any way his right of locomotion, 
but who merely attracted public attention 
to the other as he was passing along a 
public highway or standing upon his pri- 
vate grounds, evidences the fact that tlie 
69 L. R. A. 

ancient law recognized that a person had a 
legal right "to be let alone," so long as he 
was not interfering with the rights of other 
individuals or of the public. This idea has 
been carried into the common law, and ap- 
pears from time to time in various places; 
a conspicuous instance being in the case of 
private nuisances resulting from noise which 
interferes with one's enjoyment of his home, 
and this, too, where the noise is the result 
of the carrying on of a lawful occupation. 
Even in such cases where the noise is un- 
necessary, or is made at such times that 
one would have a right to quiet, the courts 
have interfered by injunction in behalf of 
the person complaining. See 2 Wood, Nui- 
sances, 3d ed. pp. 827 et aeq. It is true that 
these cases are generally based upon the 
ground that the noise is an invasion of a 
property right, but there is really no in- 
jury to the property, and the gist of the 
wrong is that the individual is disturbed in 
his right to have quiet. Under the Roman 
law, "to enter a man's house against his 
will, even to serve a summons, was regarded 
as an invasion of his privacy." Hunter,. 
Roman Law, 3d ed. p. 149. This conoep- 
tion is the foundation of the common-law 
maxim that "every man's house is his cas- 
tle;" and in 8emayne*8 Case, 5 Coke, 91, 1 
Smith, Lead. Cas. 228, where this maxim 
was applied, one of the points resolved was 
"that the house of everyone is to him as his 
castle and fortress, as well for his defense 
against injury and violence as for his re- 
pose." "Eavesdroppers, or such as listen 
under walls or windows or the eaves of a 
house to hearken after discourse, and there- 
upon to frame slanderous and mischievous^ 
tales," were a nuisance at common law, and 
indictable, and were required, in the discre- 
tion of the court, to find sureties for their 
good behavior. 4 Bl. Com. 168. The offense 
consisted in lingering about dwelling houses 
and other places where persons meet for 
private intercourse, and listening to what is 
said, and then tattling it abroad. 10 Am. 
& Eng. Enc. Law, 2d ed. p. 440. A common 
scold was at common law indictable as a 
public nuisance to her neighborhood. 4 Bl. 
Com. 168. And the reason for the punish- 
ment of such a character was not the pro- 
tection of any property right of her neigh- 
bors, but the fact that her conduct was a 
disturbance of their right to quiet and re- 
pose; the offense being complete even when 
the party indicted committed it upon her 
own premises. Instances might be multi- 
plied where the common law has both tacitly 
and expressly recognized the right of an in- 
dividual to repose and privacy. The right of 
the people to be secure in their persona, 
houses, papers, and effects, against unrea- 
sonable searches and seizures, winch is so 

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Geobgia Supreme Court. 


fully protected both ir. the Constitutions of 
the United States and of this state (Civil 
Code 1895, §§ 6017, 5713), is not a right 
created by these instruments, but is an an- 
cient right, which, on account of its gross 
violation at different times, was preserved 
from such attacks in the future by being 
made the subject of constitutional provi- 
sions. The. right to search the papers or 
houses of another for the purpose of enforc- 
ing a claim of one individual against an- 
other in a civil proceeding, or in the main- 
tenance of a mere private right, was never 
recognized at common law, but such search 
was confined entirely to cases of public pros- 
ecutions; 'and even in those cases the le- 
gality of the search was formerly doubted, 
and it has been said that it crept into the 
law by imperceptible practice. 25 Am. & 
Eng. Enc. Law, 2d ed. p. 145. The refusal 
to allow such search as an aid to the as- 
sertion of a mere private right, and its al- 
lowance sparingly to aid in maintaining the 
rights of the public, is an implied recogni- 
tion of the existence of a right of privacy, 
for the law on the subject of imreasonable 
searches cannot be based upon any other 
principle than the right of a person to be 
secure from invasion by the public into mat- 
ters of a private nature, which can only 
be properly termed his right of privacy. 

The right of privacy, however, like every 
other right that rests in the individual, may 
be waived by him, or by anyone authorized 
by him, or by anyone whom the law empow- 
ers to act in his behalf, provided the effect 
of his waiver will not be such as to bring 
before the public those matters of a purely 
private nature which express law or public 
policy demands shall be kept private. This 
waiver may be either express or implied, but 
the existence of the waiver carries with it 
the right to an invasion of privacy only to 
such an extent as may be legitimately nec- 
essary and proper in dealing with the mat- 
ter which has brought about the waiver. It 
may be waived for one purpose, and still 
assorted for another; it may be waived in 
behalf of one class, and retained as against 
another class; it may be waived as to one 
individual, and retained as against all other 
persons. The most striking illustration of 
a waiver is where one either seeks or allows 
himself to be presented as a candidate for 
public office. He thereby waives any right 
to restrain or impede the public in any prop- 
er investigation into the conduct of his pri- 
vate life which may throw light upon his 
qualifications for the office, or the advisa- 
bility of imposing upon him the public trust 
which the office carries. But even in this case 
the waiver does not extend into those mat- 
ters and transactions of private life which 
are wholly foreign, and can throw no light 
69 L. U. A. 

whatever upon the question as to his compe- 
tency for the office, or the propriety of be- 
stowing it upon him. One who holds public 
office makes a waiver of a similar character, 
— that is, that his life may be subjected at 
all times to the closest scrutiny in order to 
determine whether the rights of the public 
are safe in his hands, — but beyond this the 
waiver does not extend. So it is in refer- 
ence to those belonging to the learned pro- 
fessions, who by their calling place them- 
selves before the public, and thereby consent 
that their private lives may be scrutinized 
for the purpose of determining whether it is 
to the interest of those whose patronage 
they seek to place their interests in their 
hands. In short, any person who engfiges in 
any pursuit, or occupation, or calling, which 
calls for the approval or patronage of the 
public submits his private life to examina- 
tion by those to whom he addresses his call, 
to any extent that may be necessary to de- 
termine whether it is wise and proper and 
expedient to accord to him the approval or 
patronage which he seeks. 

It may be said that to establish a liberty 
of privacy would involve in numerous cases 
the perplexing question to determine \vhere 
this liberty ended, and the rights of others 
and of the public began. This affords no 
reason for not recognizing the liberty of 
privacy, and giving to the person aggrieved 
legal redress against the wrongdoer, in a 
case where it is clearly shown that a legal 
wrong has been done. It may be that there 
will arise many which lay near the 
border line which marks the right of pri- 
vacy, on the one hand, and the right of an- 
other individual or of the public, on the 
other. But this is true in regard to numer- 
ous other rights which the law recogniztrs 
as resting in the individual. In regard to 
oases that may arise under the right of pri- 
vacy, as in cAses that arise under other 
rights where the line of demarcation is to 
be determined, the safeguard of the indi- 
vidual, on the one hand, and of the public, 
on the other, is the wisdom and integrity of 
the judiciary. Each person has a liberty of 
privacy, and every other person has, as 
against him, liberty in reference to other 
matters, and the line where these liberties 
impinge upon each other may in a given case 
be hard to define; but that such a case may 
arise can afford no more reason for denying 
to one his liberty of privacy than it would 
to deny to another his liberty, whatever it 
may be. In every action for a tort it is 
necessary for the court to determine wheth- 
er tlie right claimed has a legal existence, 
and for the jury to determine whether such 
right has been invaded, and to assess the 
(hiniages if their finding is in favor of the 
plaintiff. This burden which rests upon 

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Pavesich v. New Enola>'d Life Ins. Co. 


the court in every case of the character re- 
ferred to is all that will be imposed upon 
it in actions brought for a violation of the 
right of privacy. No greater difficulties will 
be encountered in such cases in determining 
the existence of the right than often will be 
encountered in determining the existence of 
other rights sought to be enforced by ac- 
tion. The courts may proceed in cases in- 
volving the violation of a right of privacy 
as in other cases of a similar nature, and 
the juries may in the same manner pro- 
ceed to a determination of those questions 
which the law requires to be submitted for 
their consideration. With honest and fear- 
less trial judges to pass in the first instance 
upon the question of law as to the existence 
of the right in each case, whose decisions are 
subject to review by the court of last resort, 
and with fair and impartial juries to pass 
upon the questions of fact involved, and 
assess the damages in the event of a recov- 
ery, whose verdict is, under our law, in 
all ca«C8 subject to supervision and scrutiny 
by the trial judge, within the limits of a 
legal discretion, there need be no more fear 
that the right of privacy will be the occa- 
sion of unjustifiable litigation, oppression, 
or wrong than that the existence of many 
other rights in the law would bring about 
such result^. 

The liberty of privacy exists, has been rec- 
ognized by the law, and is entitled to con- 
tinual recognition. But it must be kept 
within its proper limits, and in its exercise 
must be made to accord with the rights of 
those who have other liberties, as well as 
the rights of any person who may be proper- 
ly interested in the matters which are 
claimed to be of purely private concern. 
Publicity in many cases is absolutely es- 
sential to the welfare of the public. Pri- 
vacy in other matters is not only essential 
to the welfare of the individual, but also 
to the well-being of society. The law stamp- 
ing the unbreakable seal of privacy upon 
conimunications between husband and wife, 
attorney and client, and similar provisions 
of the law, is a recognition, not only of the 
right of privacy, but that, for the public' 
good, some matters of private concern are 
not to be made public, even with the con- 
sent of those interested. 

It therefore follows from what has been 
said that a violation of the right of privacy 
is a direct invasion of a legal right of the 
individual. It is a tort, and it is not neces- 
sary that special damages should have ac- 
crued from its violation in order to entitle 
the aggrieved party to recover. Civil Code 
1895, § 3807. In an action for an invasion 
of such right the damages to be recovered 
are those for which the law authorizes a 
recoverv in torts of that character, and, if 
69 L. R. A- 

tlie law autho)*izes a recovery of damages 
for wounded feelings in other torts of a 
similar nature, such damages would be re- 
coverable in an action for a violation of this 

The stumbling block which many have en- 
countered in the way of a recognition of the 
existence of a right of privacy has been that 
the recognition of such right would inevi- 
tably tend to curtail the liberty of speech 
and of the press. The right to speak and 
the right of privacy have been coexistent. 
Each is a natural right, each exists, and 
each must be recognized and enforced with 
due respect for the other. The right to con- 
vey one's thoughts by writing or printing 
grows out. of; but does not enlarge in any 
way, the natural right of speech. It simply 
authorizes one to take advantage of those 
mediums of expression which the ingenuity 
of man has contrived for broadening and 
making more effective the influences of that 
which was formerly confined to mere oral 
utterances. The right to speak and write 
and print has been at different times in the 
world's history seriously invaded by those 
who, for their own selfish purposes, desired 
to take away from others such privileges, 
and consequently these rights have been 
made the subject of provisions in the Con- 
stitutions of the United States and of this 
state. The Constitution of the United States 
prohibits Congress from passing any law 
''abridging the freedom of speech or of the 
press." Civil Code 1895, § 6014. The Con- 
stitution of this state declares: "No law 
shall ever be passed to curtail or restrain 
the liberty of speech or of the press." Civil 
Code 1895, § 5712. Judge C-ooley says: 
"The constitutional liberty of speech and 
of the press, as we understand it, implies a 
right to freely utter and publish whatever 
the citizen may please, and to be protected 
against any responsibility for so doing, ex- 
cept so far as such publications, from their 
blasphemy, obscenity, or scandalous charac- 
ter, may be a public offense, or as by their 
falsehood and malice they may injuriously 
affect the standing, reputation, or pecuniary 
interests of individuals. Or, to state the 
same thing in somewhat different words, we 
understand liberty of speech and of the 
press to imply, not only liberty to pub- 
lish, but complete immunity from legal cen- 
sure and punishment for the publication, so 
long as it is not harmful in its character, 
when tested by such standards as the law 
aft'ords. For these standards we must look 
to the common-law rules which were in force 
when the constitutional guaranties were es- 
tablished, and in reference to which they 
have been adopted." Cooley, Const. Lim. 
5th ed. p. 521. In King v. St, Asaph, 3 T. 
R, 428, note. Lord Mansfield^^said : "The 

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Georgia Supreme Ck>UBT. 


liberty of the press consists in printing with- 
out any previous license, subject to the con- 
sequence of law." Chancellor Kent, while 
judge of the supreme court of New York, 394, 
People V. Croswell, 3 Johns. Cas. 337, 394, 
Appx., adopted as a definition of the phrase 
"liberty of the press" what was said by Gen. 
Hamilton in his brief in that case, where it 
was set forth that "the liberty of the press 
consists in the right to publish, with im- 
punity, truth, with good motives, and for 
justifiable ends, whether it respects gov- 
ernment, magistracy, or individuals;" and 
the learned jurist declared that this defini- 
tion was perfectly correct, comprehensive, 
and accurate. Mr. Justice Story defined the 
phrase to mean "that every man shall have 
a right to speak, write, and print his opin- 
ions upon any subject whatsoever, without 
any prior restraint, so, always, that he does 
not injure any other person in his rights, 
person, property, or reputation, and so, al- 
ways, that he does not thereby disturb the 
public peace or attempt to subvert the gov- 
ernment." 2 Story, Const. § 1880. See also 
18 Am. & Eng. Enc. Law, 2d ed. p. 1125. 

The Constitution of this state declares 
what is meant by "liberty of speech" and 
"liberty of the press'' in the following words: 
"Any person may speak, write, and publish 
his sentiments on all subjects, being respon- 
sible for the abuse of that liberty." Civil 
Code 1895, § 6712. The right preserved and 
guaranteed against invasion by the Consti- 
tution is therefore the right to utter, to 
write, and to print one's sentiments, sub- 
ject only to the limitation that in so doing 
lie shall not be guilty of an abuse of this 
privilege, by invading the legal rights of 
others. The Constitution uses the word 
"sentiments," but it is used in the sense of 
thoughts, ideas, opinions. To make intel- 
ligent, forceful, and effective an expression 
of opinion, it may be necessary to refer to 
the life, conduct, and character of a person; 
and, so long as the truth is adhered to, the 
right of privacy of another cannot be said 
to have been invaded by one who speaks, or 
writes, or prints, provided the reference to 
such person, and the manner in which he is 
referred to, is reasonably and legitimately 
proper in an expression of opinion on the 
subject that is under investigation. It will 
therefore be seen that the right of privacy 
must in some particulars yield to the right 
of speech and of the press. It is well rec- 
ognized that slander is an abuse of the lib- 
erty of speech, and that a libel is an abuse 
of the liberty to write and print; but it is 
nowhere expressly declared in the law that 
these are the only abuses of such rights. And' 
that the law makes the truth in suits for 
slander and in prosecutions and suits for 
lil)ol a complete defense may not necessa- 
6» L. R, A. 

rily make the publication of the truth the 
legal right of every person, nor prevent it 
from being in some cases a legal wrong. The 
truth may be spoken, written, or printed 
about all matters of a public nature, as well 
as matters of a private nature in which 
the public has a legitimate interest. The 
truth may be uttered and printed in refer- 
ence to the life, character, and conduct of 
individuals whenever it is necessary to the 
full exercise of the right to express one's 
sentiments on any and all subjects that may 
be proper matter for discussion. But there 
may arise cases where the speaking or print- 
ing of the truth might be considered an 
abuse of the liberty of speech and of the 
press, as in a case where matters of purely 
private concern, wholly foreign to a legiti- 
mate expression of opinion on the subji'ct 
under discussion, are injected into the dis- 
cussion for no oUier purpose and with n*> 
other motive than to annoy and harass the 
individual referred to. Such cases might 
be of rare occurrence, but, if such shoulil 
arise, the party aggrieved may not be with- 
out a remedy. The right of privacy is un- 
questionably limited by the right to speak 
and print. It may be said that to give lib- 
erty of 8pe(»ch and of the press such a wide 
scope as has been indicated would impose a 
very serious limitation upon the right of 
privacy, but, if it does, it is due to the 
fact that the law considers that the welfare 
of the public is better subserved by main- 
taining the liberty of speech and of the pre«is 
than by allowing an individual to assert his 
right of privacy in such a way as to inter- 
fere with the free expression of one's sen- 
timents, and the publication of every matter 
in which the public may be legitimately in- 
terested. In many cases the law required 
the individual to surrender some of hi-* 
natural and private rights for the benefit of 
the public, and this is true in reference to 
some phases of the right of privacy as well 
as other legal rights. Those to whom the 
right to speak and write and print is guar- 
anteed must not abuse this right; nor must 
one in whom the right of privacy exisi^ 
abuse this right. The law will no more per- 
mit an abuse by the one than by the other. 
Liberty of speech and of the press is and 
has been a useful instrument to keep the 
individual within limits of lawful, decent, 
and proper conduct; and the right of pri- 
vacy may be well used within its proper lim- 
its to keep those who speak and write and 
print within the legitimate bounds of the 
constitutional guaranties of such rights. 
One may be used as a check upon the other, 
but neither can be lawfully used for the 
other's destruction. 

There is nothing in the ruling made in 
the present case to conflict with the deci- 

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Pavesich v. New £ngla:9o Life Ins. CJo. 


aion in Chapman v. Western U. Teleg. Co, 
88 Ga. 763, 17 L. R. A. 430, 30 Am. St. 
Rep. 183, 15 S. E. 901. It was held in that 
ease that in an action against a telegraph 
company for a failure to deliver a message 
in due time, and thereby preventing the 
^nder from going to bedside of his sick 
brother, damagos on account of mental pain 
and suffering could not be recovered. The 
effect of that decision is simply that in an 
action upon a contract, or in an action 
sounding in tort for a breach of duty 
irrowing out of the contract, damages for 
mental pain and suffering cannot be recov- 
ered, when no other damages have been sus- 
tained. Mr. Justice Lumpkin, in his opin- 
ion, distinctly recognizes that where there 
has been an invasion of a right, from which 
the law would presume damages to flow, ad- 
ditional damages for pain and suffering 
might be recovered. 

It seems that the first case in this coun- 
try where the right of privacy was invoked 
as the foundation for an application to the 
courts for relief was the unreported case 
of Manola v. Btevens, which was an appli- 
cation for injunction to the supreme court of 
New York, filed on June 15, 1890. The 
complainant alleged that while she was 
playing in the Broadway Theatre, dressed 
as required by her role, she was, by means 
-of a flash light, photographed surreptitious- 
ly and without her consent, from one of the 
boxes, by the defendant, and she prayed that 
an injunction issue to restrain the use of the 
photograph. An interlocutory injunction 
was granted ex parte. At the time set for 
a hearing there was no appearance for the 
defendant, and the injunction was made per- 
manent. See 4 Harvard Law Rev. 195, note 
7. The article in this magazine which re- 
fers to the case above mentioned appeared in 
1890, and was written by Samuel D. Warren 
and Louis D. Brandeis. In it the authors 
ably and forcefully maintained the exist- 
ence of a right of privacy, and the article 
attracted much attention at the time. It 
was conceded by the authors that there was 
no decided case in which the right of pri- 
vacy was distinctly asserted and recognized, 
but it was asserted that there were many 
cases from which it would appear that this 
right really existed, although the judgment 
in each case was put upon other grounds 
when the plaintiff was granted the relief 
prayed. The cases especially referred to 
were Yovatt v. Wingard (1820) 1 Jac. & 
W. 394; Ahemethy v. Hutchinson (1825) 
3 L. J. Ch. 209; Prince Albert v. Strange 
(1849) 2 De G. & S. 652; Tuck v. Priester 
(1887) L. R. 19 Q. B. Div. 639; Pollard v. 
Photographic Co. (1888) L. R. 40 Gh. Div. 
345. The first three of these cases related 
respectively to the publication of recipes, 
•69 L. R, A* 

writings, and etchings, which the complain- 
ant in each case alleged were either pub- 
lished, or about to be published, without his 
consent; and an injunction was granted in 
the first case upon the ground that the pub- 
lication of the recipes was the result of the 
breach of trust and confidence, and in the 
other two cases upon this ground as well 
as upon the ground that the complainant 
had a property right in the writings and 
etchings. The Tuck and Pollard Cases dealt 
with the publication of pictures; the former 
being where one was employed to make cop- 
ies of a picture owned by the plaintiff, and 
the latter where a photographer was em- 
ployed to take a photograph of the com- 
plainant; the defendant in each instance 
being about to use the copies in his pos- 
session without the consent of the plaintiff. 
An injunction was granted in the Tuck 
Case on the ground that the sale of the 
copies would be a breach of contract, and 
in the Pollard Case the decision was rested 
upon the right of property, although a find- 
ing that the publication would be a breach 
of contract and of trust was authorized. At- 
tention is called to the fact that in Prince 
Albert's Case [1 Macn. k G. 25] while the 
decision was put * upon the ground above 
stated, Lord Cottenham declared that, with 
respect to the acts of the defendants, "pri- 
vacy is the right invaded." 

It must be conceded that the numerous 
cases decided before 1890 in which equity 
has interfered to restrain the publication of 
letters, writings, papers, etc., have all been 
based either upon the recognition of a right 
of property, or upon the fact that the publi- 
cation would be a breach of contract, con- 
fidence, or trust. It is well settled that, if 
any contract or property right or trust rela- 
tion has been violated, damage's are recov- 
erable. There are many cases which sustain 
such a doctrine. Cases involving the right 
of privacy that have arisen since 1890 will 
now be considered: 

In Mackenzie v. Soden Mineral Springs 
Co, (1891) 27 Abb. N. C. 402, 18 N. Y. 
Supp. 240, an injunction was granted by the 
New York supreme court, special term, 
at the instance of a physician, to restrain 
the publication of an unauthorized recom- 
mendation of a medicinal preparation under 
his name, upon the grounds that such pub- 
lication would be injurious to his profes- 
sional reputation, and "an infringement of 
his right to the sole use of his own name," 
and prejudicial to public interest. While 
this case was not based upon the right of 
privacy, that right was impliedly recog- 

The first reported case in which the right 

of privacy was expressly recognized was the 

case of Schuyler v. Curtis (1894>) 27 Abb. 

Digitized by VjOOQIC 


Georgia Supreme Court. 


N. C. 387, 15 N. Y. Supp. 787, where Jus- 
tice O'Brien, of the supreme court of New 
York, granted an injunction to restrain the 
making and public exhibition of a statue of 
a deceased person, upon the ground that it 
was not shown that she was a public char- 
acter. This judgment was affirmed by the 
supreme court, general term, by Van Brunt 
and Barrett, J J., in an opinion by the for- 
mer, in which the rule was laid down that a 
person, whether a public character or not, 
has a right to enjoin the making and plac- 
ing on exhibition of his statue, and, he be- 
ing dead, a relative has this right. 64 Hun, 
594, 19 N. Y. Supp. 264. When the case 
came before the supreme court, special term, 
in 1893, the judgment of the general term 
was followed, and in an opinion by Ingra- 
ham, J., the rule was announced that a 
court of eqiTity, at the instance of one of the 
relatives of a deceased person, will enjoin 
the making and placing on public exhibi- 
tion of a statue of the deceased by unau- 
thorized persons, which the complaining rel- 
atives unite in alleging will cause them pain 
and distress, and will be considered by them 
a disgrace; and this, too, whether or not 
the court be of the opinion that the proposed 
representation should "produce the alleged 
effect, and that such unauthorized act is 
not within the provision of the state Consti- 
tution which secures to each person the 
right to freely speak, write, and publish his 
sentiments on all subjects. 30 Abb. N. G. 
376, 24 N. Y. Supp. 509. The statue which 
it ^as proposed to exhibit was in no sense 
a caricature, and the eixhibition of the 
same would not have been a libel upon the 

In 1893, in Marks v. Jaffa, 6 Misc. 290, 
26 N. Y. Supp. 908, an injunction was 
granted by the superior court of New York 
city, special term, to restrain the publica- 
tion of a picture of the plaintiff in the de- 
fendant's newspaper, with an invitation to 
the readers of the paper to vote on the 
question of the popularity of the plaintiff, 
as compared with another person, whose pic- 
ture was also published in such newspaper. 
McAdam, J., in the opinion said : ''No news- 
paper or institution, no matter how worthy, 
has the right to use the name or picture of 
anyone for such a purpose without his con- 
sent." The decision was apparently based 
upon the case of Schuyler v. Curtis, above 
referred to. 

In 1893 an application was made to Judge 
Colt, of the United States circuit court for 
the district of Massachusetts, by the widow 
and children of George H. Corliss, to enjoin 
the publication and sale of a biographical 
sketch of Mr. Corliss, and from printing and 
selling his picture in connection therewith. 
The bill did not allege that the publication 
69 L. R. A. 

contained any matter which was scandalous, 
libelous, or false, or that it affected any 
right of property, but the relief was prayed 
upon the ground that the publication was 
an injury to the feelings of the plaintiffs, 
and against their express prohibition. An 
injunction was refused as to the biography 
on the ground that Mr. Corliss was a public 
man, in the same sense as authors or art- 
ists are public men; but an injunction was 
granted as to the publication of the picture 
upon the ground that the publisher had 
obtained a copy of the photograph upon cer- 
tain conditions, and the publication would 
be a violation of those conditions. Subse- 
quently a motion was made to dissolve the 
injunction on the ground that the photo- 
graph from which the copies were made was 
not obtained in the manner above referred 
to, but from a copy which was obtained in 
a lawful way; and the injunction was dis- 
solved upon the ground that neither a pub- 
lic character, nor his family after his death, 
has a right to enjoin the publication of his 
portrait, when the publication would not be 
a violation of a contract or a breach of 
trust or confidence. Judge Colt, in the 
opinion, uses this language: "Independent- 
ly of the question of contract, I believe the 
law to be that a private individual has 
a right to be protected in the representa- 
tion of his portrait in any form, that this 
is a property, as well as a personal, right, 
and that it belongs to the same class of 
rights which forbids the reproduction of a 
private manuscript or painting, or the pub- 
lication of private letters, or of oral lecture.s 
delivered by a teacher to his class, or the 
revelation of the contents of a merchant's 
books by a clerk." Corliss v. E. W. Walker 
Co. 31 L. R. A. 283, 57 Fed. 434, 64 Fed. 
280. It is to be noted that the ruling in 
this case goes no further than that a pub- 
lic character has so waived his right of 
privacy, if he ever had it, as to authorize 
the publication of his life and his picture, 
not only without his consent, but also with- 
out the consent of his family after hia 
death, when there is nothing in the 
biography or the picture which will reflect 
discredit upon the subject. 

In 1894, in Murray v. Gast lAthogiaphic 
d Engraving Co, 8 Misc. 36, 28 N. Y. Supp. 
271, — ^a case decided by the court of com- 
mon pleas of New York city and county, — 
it was held that a person cannot sue to en- 
join the publication of a portrait of his 
infant child, or for damages caused thereby. 
This decision was undoubtedly correct, for, 
if there was any right to sue for a violation 
of the right of privacy, the cause of action 
was in the child, and not in the parent. 

In 1895 the case of Schuyler v. Curtis 
reached the court of appeals of New York, 
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Pavesich v. New England Life Ins. Co. 


and the judgment of the lower court was 
reversed. 147 N. Y. 436, 31 L. R. A. 286,. 
49 Am. St. Rep. 671, 42 N. E. 22. It was 
lield that, if any right of privacy, in so 
far as it includes the right to prevent the 
public from making pictures or statues 
commemorative of the worth and services of 
the subject, exists at all, it does not survive 
after death, and cannot be enforced by the 
relatives of the deceased. The opinion was 
delivered by Judge Peckham, in the course 
of which he uses this language: "If the de- 
fendants had projected such a work in the 
lifetime of Mrs. Schuyler, it would, per- 
haps, have been a violation of her indi- 
vidual right of privacy, because it might be 
contended that she had never occupied such 
a position towards the public as would have 
authorized such action by anyone so long 
as it was in opposition to her wishes." 
Judge Gray dissented, saying in his opin- 
ion : "I cannot see why the right of privacy 
is not a form of property, as much as is the 
right of complete immunity of one's per- 
son." This case settles nothing as to the 
existence of a right of privacy, but merely 
rules that, if it exists at all, it is a personal 
right, and dies with the person. 

In Atkinson v. John E, Doherty d Co. 121 
Mich. 372, 46 L. R. A. 219, 80 Am. St. Rep. 
507, 80 N. W. 285,— a case decided in 1899, 
— the supreme court of Michigan held that 
the use of the name and likeness of a de- 
ceased person as a label for a brand of 
cigars cannot be restrained by injunction, 
>^ long as they do not constitute a libel. 
Many, if not at all, the cases above referred 
to. in reference to the right of privacy, are 
mentioned and reviewed in this case. While 
this decision apparently lays down the 
broad proposition that the right of privacy 
does not exist to such an extent as- to pro- 
hibit one from publishing the picture of an- 
other without his consent, in reality the 
only question necessary to have been decided 
was whether this right of privacy was 
personal, and died with the person; and 
therefore the decision, on its facts, is 
authoritative no further than the decision 
of the New York court of appeals in 
f^rhuyler t. Curtis, While the right of 
privacy is personal, and may die with the 
person, we do not desire to be understood as 
asjienting to the proposition that the rela- 
tives of the deceased cannot, in a proper 
case, protect the memory of their kinsman, 
not only from defamation, but also from an 
invasion into the affairs of his private life 
after his death. This question is not now 
involved, but we do not wish anything said 
to be understood as committing us in any 
vay to the doctrine that, against the con- 
**nt of relatives, the private affairs of a 
deceased person may be published, and his 
69 L. R. A. 

picture or statue exhibited. We call at- 
tention to the ruling in Jacobus v. Congre- 
gation of Children of Israel, 107 Ga. 518, 73 
Am. St. Rep. 141, 33 S. E. 853, that dam- 
ages may be recovered by the relative of a 
deceased person, who is the owner of an 
easement of burial in a cemetery lot, for the 
disinterment of the dead body, and that, if 
the injury has been wanton and malicious, 
or the result of gross negligence and a reck- 
less disregard of the rights of others, ex- 
emplary damages may be awarded, in esti- 
mating which the injury to the natural 
feelings of the plaintiff may be taken into 
consideration. If damages for wounded 
feelings can be recovered in such a case for 
the wanton removal of the bleaching bones 
of the deceased relative, it would seem, 
for a stronger reason, that such damages 
ought to be allowed to be recovered when 
those matters which the deceased had jeal- 
ously guarded from the public during his 
lifetime, and his portrait, which was like- 
wise protected from the public gaze, are 
made public property after his death. 

In Roberaon v. Rochester Folding Box Co. 
(1901) 64 App. Div. 30, 71 N. Y. Supp. 876, 
decided by the appellate division of the su- 
preme court of New York, it appeared that 
lithographic likenesses of a young woman, 
bearing the words "Flour of the Family," 
were, without her consent, printed and used 
by a flour-milling company to advertise its 
goods. The declaration alleged that in 
consequence of the circulation of such litho- 
graphs the plaintiff's good name had been 
attacked, and she had been greatly hu- 
miliated and made sick, and been obliged to 
employ a physician, and prayed for an in- 
junction against the further use of the 
lithographs, and for damages. It was held 
that the declaration was not demurrable. 
It was also held that, if a right of property 
was necessary to entitle the plaintiff to 
maintain the action, the case might stand 
upon the right of property which everyone 
has in his own body. This case came be- 
fore the court of appeals of New York in 
1902, and the judgment was reversed. 171 
N. Y. 540, 59 L. R. A. 478, 89 Am. St. Rep. 
828, 64 N. E. 442. This is the first and 
only decision by a court of last resort in- 
volving the existence of a right of privacy. 
The decision was by a divided court; Chief 
Judge Parker and three of the associate 
judges concurring in a ruling that the 
complaint set forth no cause of action, 
either at law or in equity, while Judge 
Gray, with whom concurred two of the as- 
sociate judges, filed a dissenting opinion, 
in which it was maintained that the in- 
junction should have been granted. While 
the ruling of the majority is limited in its 
effect to the unwarranted publication of 
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Gboboia Supbeme Coubt. 


the picture of another for advertising pur- 
poses, the reasoning of Judge Parker goes^ 
to the extent of denying the existence in 
the law of a right of privacy, "founded upon 
the claim that a man has the right to pass 
through this world . . . without having 
his picture published, his business enter- 
prises discussed, ... or his eccentricities 
commented upon, . . . whether the 
comment be favorable or otherwise." The 
reasoning of the majority is, in substance, 
that there is no decided case, either in Eng- 
land or in this country, in which such a 
right is distinctly recognized; that every- 
case that might be relied on to establish 
the right was placed expressly upon other 
grounds, not involving the application of 
this right in any sense; that the right is 
not referred to by the commentators and 
writers upon the common law or the princi- 
ples of equity; that the existence of the 
right is not to be legitimately inferred from 
anything that is said by any of such writers; 
and that a recognition of the existence of 
the right would bring about a vast amount 
of litigation; and that in many instances 
where the right would be asserted it would 
be difficult, if not impossible, to determine 
l'»o Mil., of doiimroation between the plain- 
tiff's right of privacy and the well-estab- 
lished rights of others and of the public. 
For those reasons the conclusion is reached 
that the right does not exist, has never 
existed, and cannot be enforced as a legal 
right. We have no fault to find with what 
is said by the distinguished and learned 
judge who voiced the views of the majority 
as to the existence of decided cases, and 
agree with him in his analysis of the 
various cases which he reviews, — ^that the 
judgment in each was based upon other 
grounds than the existence of a right of 
privacy. We also agree with him so far as 
he asserts that the writers upon the com- 
mon law and the principles of equity do not 
in express terms refer to this right. But 
we are utterly at variance with him in his 
conclusion that the existence of this right 
cannot be legitimately inferred from what 
has been said by coininentators upon the 
legal rights of individuals, and from ex- 
pressions which have fallen from judges in 
their reasoning in cases where the exercise 
of the right was not directly involved. So 
far as the judgment in the case is based 
upon the argument ab inconvenienti, all 
that is necessary to be said is that this 
argument has no place in the case if the 
right invoked has an existence in the law. 
But if it were proper to use this argu- 
ment at all, it could be said with great 
force that as to certain matters the indi- 
vidual feels and knows that he has a right 
to exercise the liberty of privacy, and that 
oy L. R. A. 

he has a right to resent any invasion of this 
liberty, and, if the law will not protect him 
against invasion, the individual will, to 
protect himself and those to whom he owes 
protection, use those weapons with which 
nature has provided him^ as well as those 
which the ingenuity of man has placed with- 
in his reach. Thus the peace and good order 
of society would be disturbed by each in- 
dividual becoming a law unto himself to de- 
termine when and under what circumstances 
he should avenge the outrage which has 
been perpetrated upon him or a member of 
his family. The true lawyer, when called 
to the discharge of judicial functions^ has 
in all times, as a general rule, displayed 
remarkable conservatism; and, wherever it 
was legally possible to base a judgment 
upon principles which had been recognized 
by a long course of judicial decision, this 
has been done, in preference to applying a 
principle which might be considered novel. 
It was for this reason that the numerous 
cases, both in England and in this country, 
which really protected the right of privacy, 
were not placed upon the existence of this 
right, but were allowed to rest upon prin- 
ciples derived from the law of property, 
trust, and contract. Any candid mind will, 
however, be compelled to concede that, in 
order to give relief in many of those cases, 
it required a severe strain to bring them 
within the recognized rules which were 
sought to be applied. The desire to avoid 
the novelty of recognizing a principle which 
had not been theretofore recognized was 
avoided in such cases by the novelty of 
straining a well- recognized principle to 
cover a state of facts to which it had never 
before been applied. This conservatism of 
the judiciary has sometimes xmconsciously 
led judges to the conclusion that, In'cau.m* 
the case was novel, the right claimed did 
not exist. With all due respect to Chief 
Judge Parker and his associates who con- 
curred with him, we think the conclusion 
reached by them was the result of an un- 
conscious yielding to the feeling of con- 
servatism which naturally arises in the 
mind of a judge who faces a proposition 
which is novel. The valuable influence upon 
society and upon the welfare of the public 
of the conservatism of the lawyer, whether 
at the bar or upon the bench, cannot be 
overestimated; but this conservatism 
should not go to the extent of refusing to 
recognize a right which the instincts of 
nature prove to exist, and which nothing in 
judicial decision, legal history, or writings 
upon the law can be called to demonstrate 
its nonexistence as a legal right. 

We think that what should have been a 
proper judgment in the liohrrson Case was 
that contended for by Judge Gray in his dis- 
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Favesich v. New England Life Ins. Ck>. 


^ntin^ opinion, from which we quote as 

"The right of privacy, or the right of the 
indiiridual to be let alone, is a personal 
right, which is not without judicial recogni- 
tion. It is the complement of the right to 
the immunity of one's person. The indi- 
vidual has always been entitled to be pro- 
tected in the exclusive use and enjoyment 
of that which is his own. The common law 
regarded his person and property as in- 
violate, and he has the absolute right to be 
let alone. Cooley, Torts, p. 29. The princi- 
ple is fundamental and essential in organ- 
ized society that everyone, in exercising a 
personal right and in the use of his 
property, shall respect the rights and 
properties of others. He must so conduct 
himself, in the enjoyment of the rights and 
privil^es which belong to him as a mem- 
ber of society, as that he shall prejudice 
no one in the possession and enjoyment of 
those which are exclusively his. When, as 
here, there is an alleged invasion of some 
personal right or privilege, the absence of 
exact precedent, and the fact that early 
commentators upon the common law have 
no discussion upon the subject, are of no 
material importance in awarding equitable 
relief. That the exercise of the preventive 
power of a court of equity is demanded in 
a novel case is not a fatal objection. . . . 

"As I have suggested, that the exercise of 
this peculiar preventive power of a court of 
equity is not found in some precisely anal- 
ogous case furnishes no valid objection at 
all to the assumption of jurisdiction, if the 
particular circumstances of the case show 
the performance, or the threatened perform- 
ance, of an act by a defendant which is 
wrongful, because constituting an invasion, 
in some novel form, of a right to some- 
thing which is, or should be, conceded to be 
the plaintiff's, and as to which the law pro- 
vides no adequate remedy. It would be a 
justifiable exercise of power, whether the 
principle of interference be rested upon 
analogy to some established common-law 
principle, or whether it is one of natural 
justice. . . . 

"Instantaneous photography is a modern 
invention, and affords the means of securing 
a portraiture of an individual's face and 
form in invitum their owner. While, so 
far forth as it merely does that, although a 
species of aggression, I concede it to be an 
irremediable and irrepressible feature of the 
"rfKTal evolution. But if it is to be permit- 
t<Ki that the portraiture may be put to com- 
mercial or other uses for gain, by the publi- 
cation of prints therefrom, then an act of 
invasion of the individual's privacy results, 
possibly more formidable and more painful 
in its consequences than an actual bodily 
61^ L. R. A. 8 

assault might be. Security of person is as 
necessary as the security of property, and 
for that complete personal security which 
will result in the peaceful and wholesome 
enjoyment of one's privileges as a member 
of society there should be afforded pro- 
tection, not only against the scandalous 
portraiture and display of one's features 
and person, but against the .display and use 
thereof for another's commercial purposes 
or gain. The proposition is to me an in- 
conceivable one that 'these defendants may 
unauthorizedly use the likeness of this 
young woman upon their advertisement as 
a method of attracting widespread public 
attention to their wares, and that she must 
submit to the mortifying notoriety, without 
right to invoke the exercise of the pre- 
ventive power of a court of equity. Such a 
view, as it seems to me, must have been un- 
duly influenced by a failure to find prece- 
dents in analogous cases, or some declara- 
tion by the great commentators upon the 
law of a common-law principle which would 
precisely apply to and govern the action, 
without taking into consideration that, in 
the existing state of society, new conditions 
affecting the relations of persons demand 
the broader extension of those legal princi- 
ples which underlie the immunity of one's 
person from attacl^ I think that such a 
view is unduly restricted, too, by a search 
for some property which has been invaded 
by the defendants' acts. Property is not 
necessarily the thing itself which is owned. 
It is the right of the owner in relation to 
it. The right to be protected in one's pos- 
session of a thing, or in one's privileges be- 
longing to him as an individual, or secured 
to him as a member of the commonwealth, 
is property, and, as such, entitled to the 
protection of the law. The protective power 
of equity is not exercised upon the tangible 
thing, but upon the right to enjoy it, and so 
it is called forth for the protection of the 
right to that which is one's exclusive pos- 
session, as a property right. It seems to 
me that the principle which is applicable is 
analogous to that upon which courts of 
equity have interfered to protect the right 
of privacy in cases of private writings, or 
of other unpublished products of the 
mind. . . . 

"I think that this plaintiff has the same 
property in the right to be protected against 
the use of her face for defendants' com- 
mercial purposes as she would have if they 
were publishing her literary compositions. 
The right would be conceded if she had sat 
for her photograph, but, if her face or her 
portraiture has a value, the value is hers 
exclusively until the use be granted away 
to the public. Any other princinte^ of^&f 
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Georgia Sufbeme Coubt. 


cision, in my opinion, is as repugnant to 
equity as it is shocking to reason. . . . 

"The right to grant the injunction does 
not depend upon the existence of the 
property which one has in some contractual 
form. It depends upon the existence of 
property in any right which belongs to a 
person. . . . 

"It would be, in my opinion, an extraor- 
dinary view, which, while conceding the 
right of a person to be protected against the 
unauthorized circulation of an unpublished 
lecture, letter, drawing, or other ideal 
property, yet would deny the same pro- 
tection to a person whose portrait was un- 
authorizedly obtained and made use of for 
commercial purposes. The injury to the 
plaintiff is irreparable, because she cannot 
be wholly compensated in damages for the 
' various consequences entailed by defendants' 
acts. The only complete relief is an in- 
junction restraining their continuance. 
Whether^ as incidental to that equitable re- 
lief, she should be able to recover only 
nominal damages, is not material, for the 
issuance of the injunction does not, in such 
a case, doposd upon the amount of the 
damages, in dollars and cents." 

The effect of the reasoning of the learned 
judge whose words have just been quoted 
is to establish conclusively the correctness 
of the conclusion whicji we have reached, 
and we prefer to adopt as our own his 
reasoning, in his own words, rather than to 
paraphrase them into our own. 

The decision of the court of appeals of 
New York in the Roberaon Case gave rise to 
numerous ancles in the different law maga- 
zines of high standing in the country, — some 
by the editors and others by contributors. 
In some the conclusion of the majority of 
the court was approved, in others the views 
of the dissenting judges were commended, 
and in still others the case and similar 
cases were referred to as apparently estab- 
lishing that the claim of the majority was 
correct, but regret was expressed that the 
necessity was such that the courts could not 
recognize the right asserted. An editorial 
in the American Law Review (volume 36, 
p. 636) said: "The decision under review 
shocks and wounds the ordinary sense of 
justice of mankind. We have heard it al- 
luded to only in terms of regret." There 
were also articles referring to other cases 
cited which deal with the question as to the 
existence of a right of privacy. See 36 Am. 
Law Rev. 614, 634; 34 Am. Law Reg. N. S. 
134; 41 Am. Law Reg. N. S. 669; 1 CoL 
Law Rev. 491 ; 2 Col. Law Rev. 437 ; 44 Alb. 
L. J. 428; 55 Cent. L. J. 123; 57 Cent. L. J. 
361. See also North American Review 
(September, 1002), 361; 22 Am. &, Eng. 
Enc Law, 2d ed. p. 1311; note to Roberson 
69 L. R. A. 

v. Rochester Folding Box Co. 89 Am. St. 
Rep. 844; note to Corliss v. E. W. Walker 
Co. 31 L. R. A. 283. Articles on the subject 
of the right of privacy have also appeared 
in 12 Yale L. J. 36; 24* Nat. Corp. Rep. 709 ; 
25 Nat. Corp. Rep. 183, 416; 6 Law Notes, 
79; and Case and Comment; 36 Chicago 
Legal News, 126 (July, 1902) ; but these 
articles were not accessible to us at the 
time this opinion was written. 

As we have already said, cases may arise 
where it is difficult to determine on which 
side of the line of demarcation which sep- 
arates the right of privacy from the well- 
established rights of others they are to be 
found; but we have little difficulty in ar- 
riving at the conclusion that the present 
case is one in which it has been established 
that the right of privacy has been invaded, 
and invaded by one who cannot claim ex- 
emption under the constitutional guaranties 
of freedom of speech and of the press. The 
form and features of the plaintiff are his 
own. The defendant insurance company 
and its agent had no more authority to dis- 
play them in public for the purpose of ad- 
vertising the business in which they were 
engaged than they would have had to compel 
the plaintiff to place himself upon exhibition 
for this purpose. The latter procedure 
would have been unauthorized and unjusti- 
fiable, as everyone will admit, and the for- 
mer was equally an invasion of the rights of 
his person. Nothing appears from which 
it is to be inferred that the plaintiff has 
waived his right to determine himself where 
his picture should be displayed in favor of 
the advertising right of tlie defendants. The 
mere fact that he is an artist does not of 
itself establish a waiver of this right, so 
that his pioture might be used for adver- 
tising purposes. If he displayed in public 
his works as an artist, he would, of course, 
subject his works and his character as an 
artist, and possibly his character and 
conduct as a man, to such scrutiny and 
criticism as would be legitimate and proper 
to determine whether he was entitled to 
rank as an artist, and should be accorded 
recognition as such by the public. liut it 
is by no means clear that even this would 
have authorized the publication of his 
picture. The constitutional right to speak 
and print does not necessarily carry with it 
the right to reprpduce the form and features 
of man. The plaintiff was in no sense a 
public character, even if a different rule in 
regard to the publication of one's picture 
should be applied to such characters. It ia 
not necessary in this case to hold — ^nor are 
we prepared to do so — that the mere fact 
that a roan has become what is called a pub- 
lic character, either by aspiring to public 
office, or by holding public office, or by 

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Pavesich v. New England Life Ins. Co. 


exercising a profession which places him be- 
fore the public, or by engaging in a busi- 
ness which has necessarily a public nature, 
gives to everyone the right to print and 
circulate his picture. To use the language 
of Hooker, J., in Atkinson v. John E. 
Doherty d Co, 121 Mich. 372, 46 L. R. A. 
219, 80 Am. St. Rep. 507, 80 N. W. 286: 
"We are loath to believe that the man who 
makes himself useful to mankind sur- 
renders any right to privacy thereby, or 
that, because he permits his picture to be 
published by one person and for one pur- 
pose, he is forever thereafter precluded 
from enjoying any of his rights." It may 
be that the aspirant for public office, or one 
in official position, impliedly consents that 
the public may gaze, not only upon him, but 
upon his picture, but we are not prepared 
now to hold that even this is true. It would 
seem to us that even the President of the 
Unit€d States, in the lofty position which 
he occupies, has some rights in reference to 
matters of this kind which he does not 
forfeit by aspiring to or accepting the high- 
est office within the gift of the people of the 
several states. While no person who has 
ever held this position, and probably no 
person who has ever held public office, has 
even objected, or ever will object, to the re- 
production of his picture in reputable 
newspapers, magazines, and periodicals, 
still it cannot be that the mere fact that a 
man aspires to public office or holds public 
office subjects him to the humiliation and 
mortification of having his picture dis- 
played in places where he would never go 
to be gazed upon, at times when, and under 
circumstances where, if he were personally 
present, the sensibilities of his nature would 
be severely shocked. If one*s picture may 
be used by another for advertising purposes, 
it may be reproduced and exhibited any- 
where. If it may be used in a newspaper, it 
may be used on a poster or a placard. It may 
be posted upon the walls of private dwellings 
or upon the streets. It may ornament the bar 
of the saloon keeper or decorate the walls of 
a brothel. By becoming a member of society 
neither man nor woman can be presumed to 
have consented to such uses of the impres- 
sion of their faces and features upon paper 
or upon canvaa. The conclusion reached by 
OS seems to be so thoroughly in accord with 
natural justice, with the principles of the 
law of every civilized nation, and especial- 
ly with the elastic principles of the com- 
mon law, and so thoroughly in harmony 
with those principles as molded under the 
influence of American institutions, that it 
seems strange to us that not only four of 
the judges of one of the most distinguished 
and learned courts of the Union, but also 
lawvers of learning and ability, have found 
69Lr. A, 

an insurmountable stumbling block in the 
path that leads to a recognition of the right 
which would give to persons like the plain- 
tiff in this case and the young woman in the 
Roherson Case redress for the legal wrong, 
or what is by some of the law writers called 
the outrage, perpetrated by the unauthor- 
ized use of their pictures for advertising 

What we have ruled cannot be in any 
sense construed as an abridgment of the 
liberty of speech and of the press as guar- 
anteed in the Constitution. Whether the 
reproduction of a likeness of another which 
is free from caricature can in any sense be 
declared to be an exercise of the right to 
publish one's sentiments, certain it is that 
one who, merely for advertising purposes, 
and from mercenary motives, publishes the 
likeness of another without his consent, can- 
not be said, in so doing, to have exercised 
the right to publish his sentiments. The 
publication of a good likeness of another, 
accompanying a libelous article, would give 
a right of action. The publication of a 
caricature is generally, if not always, a 
libel. Whether the right to print a good 
likeness of another is an incident to a right 
to express one's sentiments in reference to 
a subject with which the person whose like- 
ness is published is connected, is a question 
upon which we cannot, under the present 
record, make any authoritative decision; 
but it would seem that a holding that the 
publication of a likeness under such circum- 
stances without the consent of the person 
whose likeness is published would be giving 
to the word "sentiment" a very extended 
meaning. The use of a pen portrait might 
be allowable in some cases where the use 
of an actual portrait was not permissible. 
There is in the publication of one's picture 
for advertising purposes not the slightest 
, semblance of an expression of an idea, a 
thought, or an opinion, within the meaning 
of the constitutional provision which guar- 
antees to a person the right to publish his 
sentiments on any subject. Such conduct 
is not embraced within the liberty to print, 
but is a serious invasion of one's right of 
privacy, and may in many cases, according 
to the circumstances of the publication and 
the uses to which it is put, cause damages 
to flow which are irreparable in their 
nature. The knowledge that one's features 
and form are being used for such a purpose, 
and displayed in such places as such adver- 
tisements are often liable to be found, 
brings not only the person of an extremely 
sensitive nature, but even the individual of 
ordinary sensibility, to a realization that 
his liberty has been taken away from him; 
and, as long as the advertiser uses him for 
these purposes, he cannot be otlr^¥^4se than 
Digitized by VjOOQIC 


Geoboia Supbeme Ck>UBT. 

conscious of the fact that he is for the time 
being under the control of another^ that he 
is no longer free, and that he is in reality a 
slave, without hope of freedom, held to 
service by a merciless master; and if a man 
of true instincts, or even of ordinary sensi- 
bilities, no one can be more conscious of 
his enthrallment than he is. 

So thoroughly satisfied are we that the 
law recognizes, within proper limits, as a 
legal right, the right of privacy, and that 
the publication of one's picture without his 
consent by another as an advertisement, for 
the mere purpose of increasing the profits 
and gains of the advertiser, is an invasion 
of tliis right, that we venture to predict 
that the day will come that the American 
bar will marvel that a contrary view was 
ever entertained by judges of eminence and 
ability, just as in the present day we stand 
amazed that Lord Coke should have com- 
bated with all the force of his vigorous 
nature the proposition that the court of 
chancery had jurisdiction to entertain an 
application for injunction to restrain the 
enforcement of a common-law judgment 
which had been obtained by fraud, and that 
Lord Hale, with perfect composure of man- 
ner and complete satisfaction of soul, im- 
posed the death jjenalty for witchcraft upon 
Ignorant and harmless women. 

13-15. It is now to be determined 
whether what may be called the first count 
in the petition set forth a cause of action 
for libel, as against a general demurrer. 
The publication did not mention the plain- 
tiff's name, but it did contain a likeness of 
him that his friends and acquaintances 
would readily recognize as his, and the 
words of the publication printed under the 
likeness were put into the mouth of him 
whose likeness was published. It was, so 
far as his friends and acquaintances were 
concerned, the same as if his name had been 
signed to the printed words. In these 
words he was made to say, in efl'cct, that 
lie had secured insurance with the defendant 
company; that on this account his family 
wore protected, and he was receiving an in- 
come from an annual dividend on paid-up 
policies. These words are harmless in 
themselves. Standing alone, they contain 
nothing, and carry no inference of anything 
tliat is disgraceful, to be ashamed of, or 
calculated to bring one into reproach. 
When, in an action for libel, the words de- 
clared on are harmless in themselves, and 
tlie petition alleges no extrinsic fact which 
would show that the words might be taken 
in other than their ordinary sense, a cause 
of action for a libel is not sufliciently set 
forth, ateioart v. ^VUson, 23 Minn. 449. 
If, in the light of extrinsic facts, words ap- 
parently harmless are such as to convey to 
09 L. R. A. 

the mind of the reader who is acquainted 
with the extrinsic facts a meaning which 
will be calculated to expose ^he person 
about whom the words are used to contempt 
or ridicule, then such harmless words be- 
come libelous, and an action is well brought, 
although no special damages may be all^;ed. 
Behre v. Vaiional Cash Register Co. 100 
Ga. 213, 62 Am. St. Rep. 320, 27 S. E. 980 ; 
Holmes v. Clisby, 118 Ga. 823, 45 S. E. 684 ; 
Central R, Co. v. Sheftall, 118 Ga. 865, 45 
S. E. 687. 

It is alleged that the plaintiff did not 
have, and never had had, a policy of insur- 
ance with the defendant company, and that 
this fact was known to his friends and 
acquaintances. In the light of these alle- 
gations, the words attributed to the plain- 
tiff become absolutely false, and those who 
are acquainted with the facts, upon reading 
the statement, would naturally ask, "For 
what purpose was this falsehood written?" 
It was either gratuitous, or it was for a 
consideration; and, whichever conclui^ion 
might be reached, the person to whom the 
words were attributed would become con- 
temptible in the mind of the reader. He 
would become at once a self-confessed liar. 
If he lied gratuitously, he would receive 
and merit the contempt of all persons hav- 
ing a correct conception of moral principles. 
If he lied for a consideration, he would be- 
come odious to every decent individual. 
Soe Colrard v. Black , 110 Ga. 643, 36 S. E. 
80. It seems clear to us that a jury could 
find from the facts alleged that the publi- 
cation, in the light of the extrinsic facts, 
was libelous, and the plaintiff was entitled 
to have this question submitted to the jury. 
Beazley v. Rcid, 68 Ga. 380; Holmes v. 
riisby, 121 Ga. 241, 104 Am. St Rep. 103, 
48 S. E. 934. 

16. Having reached the conclusion that 
each count in the petition set forth a cause 
of action as against a general demurrer, it 
remains now to be determined whether any 
of the objections raised in the special de- 
murrer were well taken. It is said that 
there was a misjoinder of parties in that 
Adams should not be joined with the other 
defendants, or either of them, in the count 
for libel or the count for a violation of the 
right of privacy. The allegations of the 
petition are sufficient to show that the 
three defendants were joint wrongdoers, and 
were therefore not improperly joined in the 
same action. A further objection was tliat 
there was a misjoinder of causes of action, 
in that there was an attempt to join a cause 
of action ex delicto (the libel) with a cause 
of action ex contractu (the violation of the 
right of privacy). While the petition does 
allege that the violation of the right of 
privacy was the result^ a breach of trust 
Digitized by VjOC 


Pavesioh v. New England Life Inb. Co. 


or confidence reposed in Adams, still it is 
ilistinctly charged that it is a trespass upon 
hh right of privacy; and, construing the 
petition as a whole, it is manifest that the 
pleader intended to bring an action for a 
tort. It was further objected that no facts 
were alleged from which the charge of 
malice can be legally drawn, and that it did 
not appear from the allegations of the peti- 
tion that any ridicule befell petitioner by 
reason of the publication. The publication, 
in the light of the extrinsic facts, being a 
libel, the law would infer malice, and it was 
not necessary to allege that any ridicule ac- 
tually befell the petitioner ; all that is neces- 
sary to constitute the publication a libel be- 
ing that the statements should be of such a 
character as had a tendency to bring the 
plaintiff into contempt or ridicule. •The 
eourt erred in dismissing the petition. 
Judgment reversed. 

All the Justices concur. 

Willis HOPKINS, Impleaded, etc., Plff. in 


STATE of Georgia. 



*Pla]rliiir pool under an agreement 
nmons tbe players tikWLt tke one los- 
Inir the irauie shall pay for the use of 

the table Is betting at a pool table, within the 
meanlnff of Penal Code 1895, f 401, providing 
that, "If anj person shall . . . bet . . . 
at any . . . pool table, he shall be 
KiiUtjr of a misdemeanor." The fact that 
the state Imposes a specific tax on the keeper 
of a pool table does not affect the question. 

(March 25, 1905.) 

ERROR to the Superior Court for Bartow 
County to review a judgment convict^ 
in^ defendant of gaming. Affirmed. 

The facta are stated in the opinion. 

Messrs. IXT. M« Graham and W. I. 
Heyward, for plaintiff in error: 

That the rules of the game require the 
party beaten to pay the table fee does not 
eonstitute playing for money. 

yvilliams ▼. State, 12 Smedes t, U. oS; 
Pryor v. Com. 2 Dana, 298; McAuly v. 
Htatf, 7 Yerg. 626 ; Oamer v. State, 5 Yerg. 

*Headnote by Fish, P. J. 

Note. — For a case In this series holding that 
n agreement by the owners of race horses to 
diTide etinally all premiums and stake money 
offeitHl on races, awarded to any of the horses, 
is not void as a wagering contract, see Hank- 
mgs T. Ottlnger, 40 L. R. A. 76. 

A< to legality of betting generally, see Bern- 
ard V. Taylor, 18 L. R. A. 859, and note. 
«9 L R. A. 

160; Anthony v. State, 4 Humph. 85; Iseley 
V. State, 8 Blackf. 403; Hale v. State, 8 Tox. 
171; Jackson v. State, 4 Ind. 560; Bar- 
baugh v. People, 40 111. 294; Bleuoett v. 
State, 34 Miss. 606; People v. Sergeant, 8 
Cow. 140. 

To constitute gaming one must expect 
profit by the game. 

Bletcett V. State, 34 Miss. 614. 

Mr. Sam P. Maddoz, for defendant in 
error : 

Playing for the price of the game is 

Desty, Criminal Law, § 101 B; State v. 
Book, 41 Iowa, 550, 20 Am. Rep. 609; Ward 
V. State, 17 Ohio St. 32; Mount v. State, 7 
Ind. 654; State v. Bisliel, 39 Iowa, 42. 

That such tables were licensed makes no 

State V. Boon, R. M. Charlt. (Ga.) 1. 

Fiah, P. J., delivered the opinion of the 
court : 

Willis Hopkins, Mose Reed, and Creek 
Kincaid were indicted for playing and bet- 
ting "together for money or other things of 
value at a pool table." On the trial of Hop- 
kins, the witness introduced in behalf of the 
state testified that he saw Hopkins and the 
other two defendants play several games of 
pool together, at the time and place charged 
in the indictment, "The price of each game 
being 15 cents; the same being 5 cents a 
cue for each player using a cue. Under 
an agreement between the players, the one 
losing the game — that is, the one putting 
the least number of balls in the pockets — 
was to pay for the game. Several games 
were played in this way, the losing party 
always paying for the game. The pool table 
was run and owned by Henry Kay, but he 
was not playing." Hopkins was found 
guilty. His motion for a new trial being 
overruled, he excepted. 

The question whether playing a game 
such as billiards, pool, tenpins, etc., under 
an agreement among the .players that the 
loser is to pay the rent or charge imposed 
by the keeper of the table or alley for its 
use, is gaming, has never been decided by 
this court. There is an irreconcilable con- 
flict of authority among the courts of other 
states where this question has arisen. In 
State V. Records, 4 Harr. (Del.) 554, it was 
held to be betting, where the players at ten- 
pins risked only the price of the game. In 
State V. Leighton, 23 N. H. 167, the de- 
fendants were indicted for unlawfully keep- 
ing a gaming place "for money, hire, gain, 
and reward." At the trial it appeared that 
it was contrary to the rules of the room to 
play for money, but that it was the general 
custom for the party defeated in a game to 
pay for the use of the table, for which the 

Digitized by 



Geoboia Supreme Cocbt. 


defendants diarged a shilling per game. It 
was held that this was a gaming for money. 
The court said: "The defendants in this 
case made a profit from the use of the bil- 
liard tables. For the 'hire* of them they 
were paid a shilling a game. The persons 
who resorted there played for the hire. 
. In substance, they played for a shilling a 
game. The loser paid and the owner re- 
ceived the sum. By an understanding 
among the players, the money won was to 
be applied towards defraying the expenses 
of the tables, but still it was money won at 
play, and upon the chance of the play, and 
not on any collateral matter." In Mount v. 
State, 7 Ind. 654, the accused was charged 
with the violation of an act which provided 
that "every person who shall, by playing or 
betting at or upon any game or wager what- 
ever, either lose or win any article of value, 
shall be fined," etc. The information charg- 
ed that GrofF owned and kept a tenpin 
alley for hire; that Mount and Miller hired 
of him the use of the alley to play one game 
of tenpins, for which they agreed to pay 
him 10 cents; "and that, in pursuance of 
said hiring," Mount and Miller played a 
game, by which Mount won of Miller 5 
cents, the half of the hire of the alley, by 
then and there unlawfully betting and 
wagering with him the 6 cents on the result 
of the game. In the opinion in the case, 
Davison, J., said: "It is insisted that the 
information does not show a case within the 
statute. To constitute unlawful gaming, 
there must be a game played, and upon its 
result some article of value must be lost and 
won. Here was such game, and the only 
point of inquiry is. Was any article of value 
won by the defendant? His liability to 
Groff was paid by Miller, because, in the 
event of being unsuccessful, he had stipu- 
lated to pay it. This payment, though 
made to Groff, was for the use of the de- 
fendant; and the transaction was, in effect, 
the same as if the amount lost and won 
had been paid to the defendant instead of 
Groff, and he had received it from the de- 
fendant." In Hamilton v. State, 75 Ind. 
586, it was held that suffering parties to 
play upon a billiard table., where nothing 
is risked but the hire of the table, came 
within the purview of a statute providing 
that any person who should keep or suffer 
his building, etc., to be used for gaming, 
should be fined, etc. In Alexander v. State, 
99 Ind. 450, it was held: "A charge in an 
indictment that the defendant played a 
game of pool upon a pool table with another 
person, and thereby won money from him, 
is sustained by proof that the parties played 
under an arrangement that the losing party 
should pay the owner of the table the 
amount charged for the use of it, and that 
69 L. R. A. 

the defendant won the games, and the other 
party paid for them." The court said: "To 
whom the money was directly paid was not 
so material as the fact that the game de- 
cided who should pay it, and who sliould 
profit by the payment. If appellant had 
lost the games, he would have lost the 
amount charged for them. He won the 
games, and thereby won the amount charged, 
for them, or at least one half of that 
amount. At the end of each game he was 
10 cents better off than if he had lost the 
game, and he was 5 cents better off than he 
would have been if, without any chance or 
hazard, each party had paid for his cue. 
That he did not actually handle the money, 
it seems to us, can make no difference." To 
the 8|me effect^ see Ward v. State, 17 Ohio 
St. 32 ; State v. Book, 41 Iowa, 550, 20 Am. 
Rep. 609; State v. Miller, 53 Iowa, 154, 4 
N. W. 900; Tuttle v. State, 1 Tex. App. 
364; State v. Hotcery, 41 Tex. 506; Hall v. 
State (Tex. Grim. App.) 34 S. W. 122; 
Mayo V. State (Tex. Crim. App.) 82 S. W. 
515; Murphy v. Rogers, 151 Mass. 118, 24 
N. E. 35. Cases in which rulings to the 
contraiy have been made are People v. 
Sergeant, 8 Cow. 139; Harbaugh v. People, 
40 111. 294 ; Blewett v. State, 34 Miss. 606 ; 
People ex reL Healey v. Forbes, 52 Him, 30, 
4 N. Y. Supp. 757 ; State v. Hall, 32 N. J. L. 
165; State v. Quaid, 43 La. Ann. 1076, 20 
Am. St. Rep. 207, 10 So. 183. These rulings 
were put mainly on the ground that, to 
constitute gaming or betting, one or the 
other of the parties must expect to profit 
by the game, and that in playing billiards, 
pool, etc., the loser to pay the table hire, 
neither of the parties expected a profit. 
Section 401 of the Penal Code of 1895 de- 
clares: "If any person shall play and bet 
for money, or other thing of value, at any 
game played with cards, dice, or balls; or 
shall play and bet for money, or other thiiigr 
of value, at any table of whatever name, 
kind, or description, for gaming; or shall 
bet at any game of ninepins, or any other 
number of pins, or at any billiard or pool 
table — he shall be guilty of a misdemeanor.*' 
The question, therefore, is. Did the evi- 
dence in the case under consideration show 
that the accused bet at a pool table ; that is, 
that he laid a wager or staked money or 
anything of value at such table? We are of 
opinion that he did. He hazarded the pay- 
ment of 10 cents, for the other two players, 
to the keeper of the table, and took tho 
chance of relieving himself of his own 
obligation to such keeper. It is uniformly 
held that playing games to determine whidi 
of the players shall pay for drinks, food, or 
cigars, etc., for tlie use of the players, is 
gaming. 14 Am. & Eng. Enc. Law, p. 670, 
and citations. The use of t^e table Jor the 
Digitized by LjOOQIC 


Hopkins v. State. 


purpose of amusement and recreation, 
when such use must be paid for, is as much 
a thing of value as the drinks, food, or 
cigars. The players enjoy the drinks, food, 
or cigars, and they enjoy the use of the 
table, cues, and balls. For each of these 
things money must be paid, and, without 
the arrangement among the players by 
which the loser of the game must pay for 
what they all enjoy, each player would have 
to pay for his own share thereof, unless 
someone made him a gift of the same. If 
three men were to play a game of pool to 
decide which one of them should pay for the 
hire of a horse and vehicle for the tempo- 
rary use of the three, would not each of 
them be engaged in betting with the other 
two upon the result of the game? Would 
not the loser lose, and the winners win, 
something of value? We think so. The 
hire of the horse and vehicle would be a 
thing of value wagered on the result of the 
game. And under the circumstances dis- 
closed by the evidence in this case, so was 
the hire of the pool table for the use of the 
players while they played a game thereon. 
If two men were to each owe the keeper of 
a pool or billiard table $1, and were to play 
a game upon the table under an agreement 
that the loser should pay both debts, the ef- 
fect would be the same as if each bet the 
other $1 on the result of the game. We 
can see no difference in principle between 
9uch a case and one in which the playing of 
the game creates the debt or debts to the 
keeper of the table, which the players agree 
the loser of the game must pay. The evi- 
dent purpose of the statute was to prohibit 
all forma of gambling with cards, dice, or 
balls, or at any table, of whatever name, and 
the fact of the insignificance of the amount 
wagered is immaterial. As the accused in- 
troduced no evidence, and his statement 
was, in substance, the same as the testimony 
of the witness for the state, the verdict was 
demanded. The charge of the court except- 
ed to — ^being, in effect, that, if the jury be- 
liered the facts of the case to be as stated 
by the witness for the state, they should 
find the accused guilty — was in accordance 
with the law of the case. 

The fact that the state imposes a tax 
upon every keeper of a pool table does not 
affect the case. The licensing of a pool or 
billiard table does not authorize betting at 
such table. In State v. Doon, R. M. Charlt. 
(Ga.) 1, it was held that "the fact that a 
tsLX is imposed upon a faro table does not 
authorize the use of it for gaming." 
Judgment affirmed. 

All the Justices concur. 
69 L. R. A. 








*1. The rule pronmlffatecl by tbe rail- 
road comiiilsslon of this state, that 
carriers, ''in the condact of their intrastate 
business, shall afford to all persons equal fa- 
cilities In the transportation and delivery of 
freight," prohibits discrimination against 
shippers, not against commodities. 

a. As to Issvlna: throvKli bills of 
ladluffy or furnishing its cars to connecting 
carriers, in order that shipments may be car- 
ried to ultimate destination without reload- 
ing at terminal points, a carrier may dis- 
criminate against cotton seed, provided all 
shippers of that commodity are treated alike. 

b. That sacb discrimination Is dic- 
tated by the business Interests of the 
carrier, and really affects but a single ship- 
per, because he is the only person at a ter- 
mlDal point who is engaged in shipping cot- 
ton seed out of the state, cannot alter the 

c. The carrier may at any tln^e 
cbauire Its policy as to furnishing ship- 
pers of a certain commodity privileges which, 
under the law, it is not bound to extend to 

d. That a case on trial has been 
before the svpreme covrt, and that 
court has held that the plaintiff's petition 
sets forth a cause of action, is of no concern 
to the Jury ; nor should they be instructed as 
to the law upon abstract propositions wholly 
disconnected with the issues of fact they are 
called on to determine. 

2. The operation of rule 36 of the rail- 
road commission of Georgia is, by its 
own terms, limited to Intrastate shipments; 
and unjust discrimination against shippers 
engaged in interstate commerce, as to the 
matter of issuing through bills of lading or 
furnishing reshipping facilities at terminal 
points within this state, does not constitute 
a violation of that ru^e. 

3. IVhere a plaintiff sues to recover 
pnultlve damages for a particular wrong- 
ful act, and relies, as evidencing the animus 
with which that act was committed, upon the 
commission of a wholly Independent act, done 
at a different time and place, the defendant 
should be advised by the plaintiff's pleadings 
of the case he is expected to meet. 

(March 27, 1905.) 

•Ileadnotes by Evans, J. 

Note. — As to right of carrier to fix lower 
rate for petroleum carried In tank cars than 
for petroleum in barrels, see State ex rel. 
Kohler v. Cincinnati, W. & B. R. Co. 7 L. R. A. 

As to right to fix lower rate for carrying 

coal to be used for manufacturing purposes 

than for coal to be sold by dealers, see Hoover 

T. Pennsylvania R. Co. 22 L. R. A. 

Digitized by ^ 



Georgia Supbeme Coubt. 

ERROR with cross bilLof exceptions to 
review a judgment of the Circuit Court 
for Richmond County in favor of plaintiff 
in an action brought to recover damages for 
alleged violation of a statute against dis- 
crimination by railway carriers; defendant 
excepting to a refusal to grant a new trial 
after judgment against it; and plaintiff ex- 
cepting to rulings made during the trial. 
Reversed an defendant's exception. 

The facts are stated in the opinion. 

Messrs. Iiawton ft Ci&nnlnBl&am and 
J. G. C. Bl«ok, for plaintiff in error: 

A railroad company is not bound to ship 
beyond the terminus of its own line. If it 
does engage in such a contract, it is entirely 
a voluntary contract. 

Atchison, T. d 8. P, R. Co, v. Denver d 
V, 0. R. Co, 110 U. S. 667. 28 L. ed. 291, 4 
Sup. Ct. Rep. 185; Post v. Southern R, Co, 
103 Tenn. 184, 55 L. R. A. 481, 52 S. W. 
306; Little Rock d M. R. Co, v. 8t, Louis, 
I, M. d 8, R. Co, 2 Inters. Com. Rep. 762, 41 
Fed. 559; Chicago d A. R, Co. v. Pennsyl- 
vania Co. 1 Inters. Com. Rep. 360; Little 
Rock d M. R. Co. v. East Tennessee, V. d 
G. R. Co. 2 Inters. Com. Rep. 454 ; Capehart 
V. Louisville d N. R. Co. 3 Inters. Com. 
Rep. 278; New York, N. H. d H. R. Co. v. 
Piatt, 7 Inters. Com. Rep. 324; Diamond 
Mills V. Boston d M. R. Co. 9 Inters. Com. 
Rep. 315; Railroad Commission v. Louis- 
ville d N, R. Co. 10 Inters. Com. Rep. 173; 
Kentucky d /. Bridge Co. v. Louisville d 
N. R. Co. 2 L. R. A. 289, 2 Inters. Com. Rep. 
351, 37 Fed. 567; 8t. Louis Drayage Co. v. 
Louisville d N, R, Co. 5 Inters. Com. Rep. 
137, 65 Fed. 39; Oulf, 0, d 8. F, R, Co. v. 
Miami 8. 8. Co, 30 C. C. A. 142, 52 U. S. 
App. 732, 86 Fed. 407; Coles v. Central R. 
d Bkg. Co, 86 Ga. 261, 12 S. E. 749; 8tate 
V. Wrightsville d T, R. Co, 104 Ga. 437, 30 
8. £. 891. 

A common carrier is not bound to issue 
a bill of lading for the transportation of 
freight beyond its terminus. 

Richmond d D. R, Co, v. 8homo, 90 Ga. 
600, 16 S. E. 220. 

There cannot be any unjust discrimina- 
tion against cotton seed as a commodity of 
traffic, unless the denial of the privilege to 
cotton seed gives some competitive traffic 
some advantage in the markets over cotton 

Cattle Raisers* Asso, v. Ft. Worth d D. 
C. R. Co. 7 Inters. Com. Rep. 513; Pennsyl- 
vania Millers* 8tate Asso. v. Philadelphia d 
R. R. Co. 8 Inters. Com. Rep. 531; Railroad 
Commission v. Louisville d Jf. R, Co. 10 
Inters. Com. Rep. 173. 

Mr. WiUUm H. FlemlnK» for defend- 
ant in error: 

Where the law requires a jury to give 
69 L. R. A. 

exemplary damages, a verdict should not be 
set aside unless it is grossly excessive. 

13 Cyc. Law ft Proc. p. 105 ; Monongahela 
Nav. Co. V. United States^ 148 U. S. 326, 
37 L. ed. 468, 13 Sup. Ct. Rep. 622. 

Evans, J., delivered the opinion of the 
court : 

When this case was before this court on 
a former occasion, it was held that the 
plaintiff's petition set forth a cause of 
action, and that the special demurrers urged 
against it were not well taken. 121 Ga. 48, 
48 S. £. 714. A trial upon the merits was 
had in the court below, and resulted in a 
verdict for $3,005 in favor of the plaintiff. 
A motion for a new trial, presented in be- 
half of the defendant railway company, was 
overruled, and it excepted. By a cross bill 
of exceptions the plaintiff brings under re- 
view various rulings made during the prog- 
ress of the trial which were adverse to it. 

1. The gravamen of the brokerage com- 
pany's complaint was that the railway com- 
pany had, in violation of a rule promulgat- 
ed by the railroad commission of this state, 
providing that carriers, "in the conduct of 
their intrastate business, shall afford to all 
persons equal facilities in the transpor- 
tation and delivery of freight," wrongfully- 
refused to place a car loaded with cotton 
seed on a side track in the rear of its ware- 
house, refused to allow reshipment of its 
cars at Augusta, and that the company's re- 
fusal so to do was in pursuance of a pre- 
determined plan to drive the plaintiff out of 
the business of buying cotton seed at points 
along the railway company's line of road. 
As evidencing that such was the purpose of 
the railway company, the plaintiff alleged 
that it had also refused to issue through 
bills of lading from a station in Burke 
county to points beyond its line, notwith- 
standing the common practice of the rail- 
way company was to issue such bills of 
lading to other patrons. The evidence, how- 
ever, disclosed that the railway company, 
while issuing through bills of lading on 
sliipments of general merchandise, declined 
to do so on shipments of cotton seed, and 
in this respect tliere was no discrimination 
against the plaintiff. It further appeared 
that, although the plaintiff had askeil that 
a through bill of lading on a shipment of 
cotton seed at the Burke county station 
should be issued to one of two points ixk 
Georgia beyond the railway company's line, 
the request was not made in good faith, and 
the plaintiff would not have accepted tlic^ 
bills of lading if the railway company had 
signified its willingness to issue them. The 
trial judge nevertheless instructed the jury 
that, should they believe the defendant com- 
pany discriminated against the plaintiff as 

Digitized by VjOOQIC 


Gentbal of Georgia R. Go. ▼. Augusta Brokerage Co. 


to issuing through bills of lading on intra- 
stute shipments, this would be a violation 
of rule 36 of the railroad commission, and 
the plaintiff would be entitled to recover 
such damages as resulted, and the jury 
eonld visit upon the railway company ex- 
emplary damages if they found its refusal 
to issue to the plaintiff through bills of lad- 
ing was wilful. The court further instruct- 
ed the jury as follows: "If it is the com- 
mon practice of a railroad company to al- 
low reshipping privileges or through bills 
of lading for all classes of merchandise gen- 
erally, it cannot arbitrarily select any one 
class of merchandise, and refuse such privi- 
leges to dealers in that class of merchandise. 
In order to justify such discrimination, 
there would have to be differences in the 
circumstances and conditions of shipment." 
These and other instructions of similar im- 
port are excepted to on the ground that they 
were not authorized either by the law or 
the evidence, and were highly prejudicial 
to the railway company. 

ITie first of these instructions certainly 
ought not to have been given. The plain- 
tiff was not suing for damages resulting 
from the refusal of the railway company to 
issue a through bill of lading from the sta- 
tion in Burke county. The plaintiff could 
not, in the city court of Richmond county, 
recover damages for a tort committed in 
Burke county ; and, moreover, had the plain- 
tiff sued in the latter county, no recovery 
of damages because of such refusal would 
have been authorized, for the evidence shows 
that the application for a through bill of 
Uding on an intrastate shipment was not 
bona fide. The plaintiff really wanted a 
through bill of lading to some South Caro- 
lina point. Had the railway company issued 
through bills of lading to other shippers 
of cotton seed at the Burke county station, 
but declined to accord like privileges to the 
plaintiff, this fact would, as was held when 
this case was here before, afford competent 
evidence touching the alleged purpose of the 
railway company to break up the plaintiff's 
business. However, the plaintiff failed to 
establish any such unjust discrimination, 
and therefore what occurred at that station 
really had no bearing on the case, unless 
the court was right in the view of the law 
expressed in the charge which we have above 

The rule of the railroad commission al- 
leged to have been violated prohibits dis- 
crimination against shippers, not against 
commodities. All shippers of a given com- 
modity must be treated alike, but the car- 
rier is not bound to have fixed and unvary- 
ing rules applicable alike to each and all 
kinds of freight, or to any given class of 
freight when shipped in car-load lots. In 

the first place, it w^as optional with the rail- 
way company whether or not it would adopt 
the custom of issuing any through bills of 
lading or delivering its cars at Augusta to 
connecting ca,rricrs in order that freight 
might, without reloading on cars furnished 
by them, be reshipped in bulk. Coles v. 
Central R. d Bkg. Co. 86 Ga. 251, 12 S. E. 
749. It could, without committing itself 
to any duty of so handling raw commodities, 
issue through bills of lading, or afford such 
reshipping facilities to shippers of manu- 
factured articles or aliy other kind of freight 
it might choose to handle in that way. In 
the absence of any duty imposed by law, it 
could even arbitrarily so conduct its busi- 
ness in this respect as to discriminate be- 
tween cotton seed and grain, lumber, or 
other products. Counsel for the railway 
company very frankly concede that it had 
a "policy" which governed its decision in 
not issuing through bills of lading on ship- 
ments of cotton seed from points along its 
line, or allowing facilities at Augusta for 
the reshipment of that product in bulk over 
competing lines. This policy was doubtless 
a purely selfish one, inasmuch as the rail- 
way company looked to its own material 
business interests, rather than to those of 
the plaintiff or other brokers engaged in 
handling cotton seed. But the plaintiff also 
had a "policy." It was not a philanthropic 
one. The situation may thus be summa- 
rized: The oil mills at Augusta depended 
largely for a supply of cotton seed upon the 
territory through which ran the defendant 
railway company's line. They delivered to 
it their manufactured products for shipment 
so the railway company got a short haul 
on the raw cotton seed, and also a long haul 
on the reshipments made over its line of the 
manufactured products. It was not to the 
business interests of the railway company 
that cotton seed grown at local stations on 
its Augusta &> Savannah branch should be 
shipped to oil mills located in South Caro- 
lina, for none of the manufactured products 
could then be secured for reshipment, at a 
high rate, over its road. Its interests dic- 
tated that the cotton seed should stop at 
Augusta, and be manufactured into oil and 
by-products by the mills located at that 
point. The railway company therefore de- 
termined that it would not, by voluntarily 
granting facilities to shippers which it was 
under no legal duty to afford, supply the 
means of diverting from its road profitable 
shipments which it otherwise would receive. 
On the other hand, the material business in- 
terests of the brokerage company demanded 
that it should be granted such facilities. It 
was a free lance, in open competition with 
the oil mills at Augusta in the buying of 
cotton seed at the lowest price possible, and 

Digitized by VjOOQIC 


Geoboia Supreme Coubt. 


all the seed purchased by it was shipped 
from Augusta over the Southern Railway to 
South Carolina mills. To reload shipments 
at Augusta for the South Carolina trip was 
expensive. To get through bills of lading, 
or to secure the consent of the defendant 
company that its loaded cars be delivered to 
the Southern Railway at Augusta, so that 
the seed might be carried to its ultimate 
destination without reloading, would render 
the business of the brokerage company prof- 
itable, the business of t\^ Augusta oil mills 
less remunerative. Their interests and those 
of the defendant railway company were co- 
incident. Its interests and those of the bro- 
kerage company conflicted. The railway com- 
pany acted as the average business man 
would have done; that is all. In declining 
to grant the privileges which the brokerage 
company wished to enjoy, the railway com- 
pany merely adopted a policy which was 
within its legal rights as a carrier. State 
v. Wrightsville d T. R. Go. 104 Ga. 437, 30 
S. E. 891. That the brokerage company may 
have been the only broker in Augusta or 
■elsewhere affected by this policy cannot al- 
ter the case. As a shipper, it was not dis- 
<5riniinatpd against, though one of the com- 
modities it handled was, incidentally. The 
railway company had the undoubted right 
to refuse to make through shipments of any 
^freight, or to permit its cars to leave its 
line of road, however they might be loaded. 
To compel it to adopt a policy whereby no 
discrimination against a particular commod- 
ity would result would not necessarily ben- 
efit the brokerage company, but might react 
to its disadvantage, and be inimical to the 
interests of shippers of other commodities, 
for it would then be within the power of the 
carrier to decline to deliver its cars for car- 
riai?e over other lines under any circum- 
stances. It may be that for this reason our 
railroad commission has not deemed it wise 
to attempt to prohibit any discrimination 
between different commodities belonging to 
a general class of freight. 

If, as the evidence discloses, none of the 
patrons of the defendant company were 
granted the privilege, at Augusta, of hav- 
ing shipments of cotton seed in its cars 
turned over to connecting lines for trans- 
portation in bulk without reloading, then 
the plaintiff is not entitled to rccm'er dam- 
ages because of the railway company's re- 
fusal to accord it this privilege, and the evi- 
dence bearing upon the "policy" of the car- 
rier in tliis regard was not competent for 
the purpose of sustaining the plaintiff's con- 
tention that the purpose of the defendant 
was to drive it out of business. Animus 
cannot be inferred from what one does while 
acting strictly within his legal rights. That 
during the previous cotton season the car- 
<;9 L. R. A. 

rier had granted the privilege sought by the 
brokerage company cannot affect the matter 
at all. The carrier could change its policy 
at any time it saw fit, and the plaintiff had 
timely notice of its intention to withdraw 
this privilege at the close of that season. 

What is said above disposes of a number 
of assignments of error made upon the 
charge of the court, and also of exceptions 
taken to the refusal of the court to give in 
charge pertinent requests which were in ac- 
cord with the law as herein annoimced. The 
only contention of the plaintiff which the 
evidence tended to sustain was that the de- 
fendant had wrongfully refused to place a 
car loaded with cotton seed on the side track 
in the rear of plaintiff's warehouse, and that 
thft purpose of the railway company in re- 
fusing to do 80 was to put the plaintifl" to 
unnecessary expense in reloading at a dif- 
ferent place, and thus discourage its en- 
gaging in the buying and shipping of cot^ 
ton seed. There was proof of aggravating 
circumstances attending this discrimination 
against the plaintiff and in favor of the lo- 
cal oil mills, and the jury were warranted 
in reaching the conclusion that the conduct 
of the railway company was wilful, and in 
pursuance of a predetermined plan to throw 
every obstacle in the way of the plaintiff to 
prevent shipment of seed into South Caro- 
lina. But the case was not fairly or correct- 
ly presented to the jury, and a new trial 
must result. 

At the request of plaintiff*8 counsel, the 
court informed the jury that, in a decision 
on one branch of this case, the supreme 
court had settled the law of it in favor of 
the plaintiff, holding that, if the plaintiff 
sustained by evidence the allegations of the 
declaration as to the conduct of the railway 
company with regard to intrastate busi- 
ness, the plaintiff would be entitled to re- 
('over. Complaint is made of this instruc- 
tion on the ground that it was prejudicial 
to the defendant, in that it conveyed the im- 
pression to the jury that the supreme court 
had practically decided the case against the 
defendant, and it had no valid defense. Suf- 
fice it to say that the charge was at least 
irrelevant to any issue before the jury, and 
could serve no legitimate purpose in their 
determination of the case. Two other in- 
structions are justly complained of as being 
inapplicable to the facts of the case, and 
therefore inappropriate and misleading. One 
was to the effect that, while it was no prop- 
er business of a common carrier to facili- 
tate particular enterprises or to build up 
new industries, yet, as the carrier depended 
for its very existence upon the will of the 
people, it was bound to deal fairly with the 
public, furnish reasonable transportation fa- 
cilities, and to put all of its patrons upon 

Digitized by LjOOQIC 


CENTBiX OF Geobgia R. Co. v. Augusta Bbokebage Co. 


^n absolute equality. The other instruction 
was as follows: "A railroad company can- 
not discriminate in favor of a shipper who 
is able to furnish a large amount of freight 
over one engaged in the same business who 
is unable to furnish the same quantity; at 
least, where both ship in car-load lots." 

2. Another question presented for deter- 
mination, both by the main bill and the 
crass bill of exceptions, is whether or not 
the court correctly interpreted and present- 
ed to the jury the meaning and effect of rule 
36 of the railroad commission, in so far as 
interstate shipments were concerned. The 
operation of that rule is, by its own terms, 
limited to intrastate shipments, and there- 
fore cannot be held to apply to shipments 
originating in this state but destined for 
points beyond its borders. A bill of lading 
issued from a station in Georgia to one in 
South Carolina would evidence an inter- 
state shipment, whether it was to be car- 
ried all the way by the initial carrier or 
was to be delivered by it at some interme- 
diate point to a connecting carrier for trans- 
portation to ultimate destination. The ul- 
timate destination of a shipment intended 
to take one continuous journey would de- 
termine its character in this respect. Fa- 
oilities afforded for carrying through a car- 
go in bulk, without reloading at an inter- 
mediate point, would attach, according to 
tlie circumstances, to either interstate or to 
intrastate commerce. A failure to afford 
<^ual faeilities to all shippers engaged in 
interstate commerce would not be a viola- 
tion of rule 36. The instructions of the 
oourt to this effect were correct, but might 
properly have been more specifically applied 
to the facts by giving the request to charge 
on this subject presented by counsel for the 
railway company. The plaintiff appears to 
have been engaged altogether in making in- 
terstate shipments of cotton seed, no deliv- 
ery being made to the plaintiff in Augusta 
except for the purpose of reloading on 
•Southern Railway cars, in order that the 
8eed might make* one continuous journey 
from Georgia into South Carolina. 

3. The plaintiff, in its petition, com- 
plained of a refusal by the railway company, 
'^•n December 9, 1903, to deliver one car of 
the cotton seed on a side track in the rear 
of the plaintiff's warehouse, and for this al- 
leged tort both actual and punitive dam- 
ages were claimed. At the trial the plain- 
tiff offered to prove that shortly before and 
<hortly after that date the defendant refused 
to deliver other car-load lots of cotton seed 
on that side track; the evidence being of- 
f*^red, counsel announced, for the purpose of 
prOT'ing plaintiff's contention that the de- 
f'^ndaot had a predetermined plan to drive 
plaintiff out of the cotton-seed business, and 
*»0 L. R. A. 

for the further purpose of showing aggra- 
vating circumstances. Upon the objection 
of the railway company that the plaintiff 
had not alleged any of these matters of ag- 
gravation, the court excluded the evidence. 
The plaintiff also offered to prove by a wit- 
ness that about January 12, 1904, he had 
seen certain b^ls of lading covering ship- 
ments of cotton seed from Midville, Georgia, 
to Manning, South Carolina, issued by the 
defendant to Allan W. Jones, in whose name 
the shipments had been made, although the 
seed was the property of the brokerage com- 
pany. On the ground that the bills of lad- 
ing were the best evidence of what were 
their contents, this testimony was excluded. 
Plaintiff then attempted to prove by the 
same witness that these shipments came 
through Augusta, and witness knew of his 
own knowledge that the cotton seed was not 
there reshipped or transferred to other cars, 
and had duly reached Manning, South Caro- 
lina, Counsel stated that the purpose of 
tlys testimony was to show that through 
bills of lading must have been issued, for 
otherwise the shipments could not, with- 
out reshipment at Augusta, have reached 
Manning, South fcarolina. The defendant 
objected to the introduction of this testi- 
mony, and the court excluded it on the 
ground that it related to transactions which 
took place after the filing of the suit. To 
all of these rulings exception is taken in 
the cross bill. Each of them was, we think, 

"The assessment of damages is usually 
governed by the situation or condition of af- 
fairs existing at the time the action is 
brought." 13 Cyc. Law & Proc. p. 177. The 
general rule as to the recovery of special 
damages is, where they are not such as nat- 
urally flow from the wrongful act com- 
plained of, that "it is necessary, in order 
to prevent surprise to the defendant, that 
the declaration state specifically and in de- 
tail the damages sought to be recovered," 
which involves making a statement of the 
facts upon which the plaintiff relies for a re- 
covery thereof. Id. p. 176. Where "a wil- 
ful wrong is committed, evidence of mat- , 
ters tending to aggravate the damages, when 
necessarily or legally arising from the act 
complained of, is admissible without special 
averment." Id. pp. 175, 176. But it is ap- 
parent that, where a plaintiff sues for a 
given wrongful act, and relies, as evidencing 
the motive with which that act was com- 
mitted, upon another wholly independent 
act, done at a different time and place, the 
defendant should be advised by the plain- 
tiff's pleadings of the case he is expected to 
meet. A case bearing directly upon this 
proposition is that of Leamtt v. Cutler, 37 
Wis. 46, which was a suit for damages b&\^ 
Digitizeo ^^^ 


Georgia Supbeme Court. 


cause of a breach of a contract of marriage. 
The court held: "In such an action the 
fact that plaintiff has been seduced by de- 
fendant by means of the alleged promise of 
marriage may be shown to enhance the dam- 
ages, if it is alleged in the complaint, but 
not otherwise." See also Klopfer v. 
Bromme, 26 Wis. 372, 376. In the present 
case the defendant compan^c could hardly 
have been expected to be prepared to meet 
charges that, after suit was commenced, it 
had committed certain specific acts which 
were wrongful, and which tended to prove 
that the acts complained of in the petition 
were wilfully committed; nor was the de- 
fendant put upon notice that the plaintiff 

would attempt to prove, as an aggravating 
circumstance, that on g^ven occasions prior 
to the commencement of the action the de- 
fendant had wrongfully refused to place on 
plaintiff's side track cars other than tho^ 
one described by number in the petition. 
Had the plaintiff undertaken to amend ite» 
pleadings, the defendant could have claimed 
surprise. Certainly, the testimony offered 
was not admissible under the pleadings as 
tliey stood. 

Judgment on main bill of exceptions re- 
versed; on cross Wl affirmed. 

All the Justices concur. 


Catharine R. GRIFFITH et aU Appta., 


PANY et al. 

Albert THOMPSON, Appt,, 


(56 W. Va. 604.) 

•1. When an exeontory contract mrlth a 
corporation, neceanltatlnv* in Its ex- 
ecution, -«vork, labor, and the ex- 
penditure of nioncF for materials, ma- 
chinery, tools, and appliances, and the con- 
struction of roads and other Improvements, 
as well as In carrying on the work, la terml- 

^Ileadnotes by Poffknbabger, P. 

nated by dlsaolatlon of the corporation Id 
consequence of Its Insolvency, the contractor 
Is entitled to compensation for services ren- 
dered by him In pir-Miiance of the contract un- 
til the date of lt% termination, and to reim- 
bursement for his actual and necefwary out- 
lay and ezpenues as aforesaid, subject to a 
deduction of nil sums paid to him by the cor- 
poration, and of the value of such materlalH. 
machinery, and other property on hand. 

2. 1%'hen Much a contract betvreen a 
corporation and one of Its directorn 
haK been entered Into openly and with- 
out fraud, and the disinterested directors and 
stockholders are fully informed of Its terms, 
and permit It to be partly executed without 
disapproval or notice of an Intention on their 
part to annul It. the same rule of cdmpenaa- 
tlon and reimbursement to the contractor ap- 
plies upon the subsequent abrogation of the 
contract by a court oi equity at the Instancr 
of the stockholders and creditors of the cor- 

3. IVben, In «uch cane, larve expendl- 

NoTK. — Rtcot'crina for gerricea and expenses 
under a ranning contract with a corporation 
ended by its insolrvncv and dissolution. 

I. £rcope of note, 124. 
II. Breaches of contracts in general, 125. 
HI. The tmasutr of damages in such rases, 

IV. How corporations are dissolred, 128. 
y. When dissolution is not effected, 129. 
VI. The rarlivr vommon-lair doctrine con- 
• cerning Vie effect of dissolution, 130. 

VII. Comment and criticism concerning it. 132. 
VIII. The trust-fund, or -Amerirnn," doctrine, 
IX. The effects of rorporatc disHoiution ac- 
cording to modern vicirs 

a. Civil death, 137. 

b. Upon litigation, 138. 

c. I'pon itroitvriit and oMftrtH, 130. 

d. Vpon dfhtft and credits. 141. 

e. Upon contracts in general, 142. 

f. L'pon emplogment contractn. 

1. With officers. 144. 

2. With superintendents, 145. 

3. With agents. 14H. 

4. With ordinary employees, 150. 

eo L. R. A. 

X. Remedies. 

a. Abstract, 151. 

b. Conci'ete, 152. 

XI. Construction and effect of statutes, 15& 
XII. Conclusion, 135. 

1. iScope of note. 

It is puri)OKed, by this note, to display tbo 
cases wherein one who had a running contract 
with a corporation, which was In process of 
execution and required him to perform servlcen 
and make outlays, was rendered unable to k«> 
on and complete his contract in consequence of 
the Insolvency of the corporation, with its re- 
sulting dissolution. 

To elucidate the subject, enough cases have 
been gathered to show what, as a general rule, 
constitutes a breach of such a contract, and la 
the measure of damtiges when a contract of thiR 
character Is broken by the party requiring the 

The effect of the death of one of the parties 
to such a contract upon Its continuance In 
barely alluded to here and there, not treate«l. 
for the reason that this branch of the subject 
\ii sufflcleutly covered by two enrlier notes \u 

Digitized by 



Gbifeith ▼. Blackwateb B. & L. Co. 


t«r«s ba^re been made by tbe con- 
tractor In the coDBtruction and repair of 
riTer dams, brld£:e8, and roads belonging to 
the corporation, tor the driving and hauling 
of timber, and upon timber partially pre- 
pared for delivery under the contract, and a 
sale of the corporate property, tree and dis- 
charged from the contract, is made under a 
decree of the court, directing it to be offered 
for sale both subject to and free from the 
contract, the contractor Is entitled to com- 
pensation and reimbursement as aforesaid 
out of the assets of the company, although 
he afterwards purchases the corporate prop- 
erty and obtains the benefit of such improve- 
4. l^'bea a contract la broken, it is tbe 
dntjr of tbe Injured party to minimise 
tbe loMB and injury, when it is practicable 
to do 80, by a reasonable outlay of money ; 

but such outlay is to be allowed him as a part 
of his damages. 

5. IVben a contractor, by reason of tbe 
termination of a partly executed 
contract, .is entitled to compensation for 
services and outlay, part of which have been 
made iii eiieciiiiM pt'iinane-it imi>r»nomi-.i.s. 
the services and expenditures relating to 
such Improvements are not apportioned be- 
tween the executed and unexecuted parts of 
the contract. 

6. Wben, In tbe prosecution of vrork 
under bis contract for cnttlnv 1ok« 
and baullnff and driving tbem to a 
mill by means of a railroad, tramroads. and 
booms and dams in a river, constructed by 
him lor the purpose, the contractor puts in 
timber to the same mill, by means of the 
same improvements, for others, not keeping 
separate accounts of the expenditures, it is 
not error to allow him, upon an Inquiry as to 

this series, to wit, the note on Recovery for 
''Crviees on contract interrupted hy sickness or 
death, appended to the case of Parker v. Ma- 
comber. 16 L. R. A. 858, and the note on Effect 
on contract of the death of a party thereto, ap- 
pended to the case of Drummond v. Crane, 23 
I* R A. 707. 

In addition to these notes, the reader also 
should consult the note to Lenoir v. Linville 
ImproT. Co. 51 L. R. A. 146, on Effect of the 
appointment of a receiver or an assignee for 
<sr€ditors of a corporation on the compensation 
of officers, agents, or employees for unexpired 
term of employment, to which this note is, in 
A sense, supplementary. 

II. Breaches of contracts in general. 

If a survey of the decisions as to what In 
general constitutes a breach of contract calling 
for the performance of services with incidental 
expenditure on the part of the employing party, 
Ignoring the circumstance that such employer 
was a corporation and the contract came to an 
end by Its insolvency and civil death, be made, 
the following citations will exemplify the cur- 
rent of the authorities, and disclose the under- 
lying principles which prevail. 

It is familiar law that "if, at the time of 
making the contract, the thing promised be 
possible in itself, it is no excuse for nonper- 
formance that its performance became subse- 
quently impossible from causes beyond the con- 
trol of the promisor." Southern Bldg. ft L. 
Asso. V. Price, 88 Md. 155, 42 L. R. A. 206, 
41 AU. 53. 

Where the obligation of a contractor requires 
nn expenditure of a large sum in preparation to 
<^Qable him to perform his contract, and a con- 
tinuous readiness to perform it, the law implies 
a duty In the other party to do whatever is nec- 
•"jsary to enable him to comply with his prom- 
liie or covenant. United States v. Speed, 8 Wall. 
77, 19 L. ed. 440. 

If a construction contract requires payments 
ro be made on account from time to time as 
the work progresses, and such payments are not 
made, tbe contractor is Justified in stopping 
work« and may recover for what he has done. 
IKrIngtown ft B. Tump. Road Co. v. Riley, 8 
Ey. L. Rep. 267. 

Where one agrees to perform a service or 
work for another, which necessarily requires 
time and progress in its performance, and Is to 
^>9 L. R. A. 

receive compensation therefor If that other puts 
* an end to the performance either before it be- 
gins or while It is in progress, the first party, ^ 
though able and willing to proceed, cannot re- 
cover the stipulated compensation, but only 
damages for a breach of the contract ; and such 
damages will, in general, consist of his outlay 
already incurred and the profits he would have 
realized had he been permitted to finish the 
work ; or, in case the compensation is divisible, 
he may recover for the work already performed, 
and damages for being prevented from complet- 
ing his contract. Hambly v. Delaware, M. ft V. 
R. Co. 21 Fed. 641. 

It Is a misapprehension of law to suppose 
that the death of one of the contracting parties 
puts an end to a contract in course of perform- 
ance. For a breach after, as well as before, the 
death of such party, his estate will be liable 
to respond in damages. Smith v. Wilmington 
Coal Min. & Mfg. Co. 83 111. 498. 

Generally speaking, contracts bind executors 
and administrators, though not named. Where, 
however, personal considerations are of the 
foundation of a contract, as in cases of prin- 
cipal and agent, master and servant, the death 
of either party puts an end to the relation, and, 
in respect of service after death, the contract 
Is dissolved, unless there is a stipulation to the 
contrary. Farrow v. Wilson, L. R. 4 C. P. 

It is the general rule that death does not 
absolve one from his contracts ; but an excep- 
tion to this rule Is that, when performance of 
a contract depends upon the continued exist- 
ence of a person or thing, if such person or 
thing perish before the contract is performed, 
the Impossibility of performance terminates the 
contract. Yerrlngton v. Greene, 7 R. I. 589, 84 
Am. Dec. 578. 

Where a contract creates between the par- 
ties to it merely a personal relation, the death 
of either party dissolves that relation. Howe 
Sewing Mach. Co. v. Rosensteel, 24 Fed. 583. 

When the performance of a contract depends 
upon tbe continued existence of a person or 
thing, and such continued existence is assumed 
as the basis of the agreement, the death of the 
person, or destruction of the thing, terminates 
the obligation. People v. O'Brien, 111 N. Y. 
1, 2 L. R. A. 266, 7 Am. St. Rep. 684, 18 N. B. 
692 ; Lorillard v. Clyde, 142 N. Y. 456, 24 h. R. 
A. 113, 37 N. B. 489. 

Death, or a disability which ren^ra perfoip- 

Digitized by VjOOQIC 


West Vibgiioa Supreme Coubt of Appeals. 


the amonnt necessary to compeDsate him for 
hifi Bervices and outlay, when he has been 
prevented ^rom completing his contract, to 
charge up his entire outlay on all the work 
done, and credit all sums received on account 
thereof, when it is shown that all the work 
was profitable so far as executed, and that 
the accounts cannot be separated. 

iDent, J., dUaenU.) 

(April 1, 1904.) 

APPEALS by plaintiffs and defendant 
Thompson from a decree of the Circuit 
Court for Tucker County overruling excep- 
tions to a commissioner's report settling the 
amounts which should be allowed under a 
contract of the defendant corporation, which 

had been annulled by the court. Modified 
and affirmed. 

The case sufficiently appears in the opin- 

Messrs. C. W. Dailey, Taylor Mor- 
rison, Benjaniin A. Riol&iiLond, P. J» 
Crocan, W. B. Maxwell, and I<. D. 
Strader for appellants. 

Messrs. Hubbard St Hubbard, A. O. 
Dayton, Ira F. Robinson, and William 
C. Clayton for appellees. 

Poffenbarser, P., delivered the opinion 
of the court: 

This is a somewhat complicated and a 
hotly contested case, which has been in this 
court on a former appeal. As then passed 
upon it is reported in 46 W. Va. 56, 33 S. 

ance impossible, discharges a contract to capi- 
talize an enterprise and look to it for reim- 
bursement when the capitalist is to manage the 
undertaking, since it involves his personal serv- 
ice and skill. Marvel v. Phillips, 162 Mass. 399, 
26 L. R. A. 416, 44 Am. 8t. Rep. 370, 38 N. E. 

Contracts for personal services must be treat- 
ed as entire, and not divisible ; hence, there can 
be but one breach and one recovery upon de- 
fault, no matter If the wages ai*e payable by In- 
stalments or at stated periods. Barnes Bros. 
V. Black Diamond Coal Co. 101 Tenn. 354, 47 
S. W. 498. 

A servant wrongfully dismissed in the mid- 
dle of his term may either treat his contract of 
employment as rescinded and bring indebitatus 
assumpsit, or he may sue on the contract ; but 
he cannot do both. Goodman v. Pocock, 15 Q. 
B. 576. 

One employed by a mercantile firm for a year 
upon a fixed salary, and whose employment Is 
, terminated within the year by the insolvency 
and bankruptcy of his employers, is entitled to 
prove his claim for damages against the estate 
in bankruptcy, and to participate in the dis- 
tribution thereof, for his right of action is im- 
mediate upon the breach of his contract, and 
the bankruptcy is no defense. Re Silverman, 
101 Fed. 219. 

For admission to proof in bankruptcy a claim 
need not arise before the adjudication, nor need 
the contract upon which it arises be broken be- 
fore the bankruptcy ; it is sufficient that the 
breach and the bankruptcy be coincident. To 
some extent, bankruptcy operates as a breach 
of the bankrupt's contracts. Bankruptcy may 
be treated as a breach of the bankrupt's con- 
tracts analogous to a complete repudiation of 
a contract before the time to perform arises, 
or to a complete disablement from performing 
the contract. The test of provability is this: 
If the bankrupt at the time of his bankruptcy, 
by disabling himself from performing the con- 
tract, or by repudiating its obligation, could 
give the other party the right to sue at once 
for damages, to be assessed either at law or in 
equity, then such other party may prove his 
damages in bankruptcy on the ground that the 
Imnkrnptcy is equivalent to diRnblemont and 
repudiation. Re Pettlngill. 137 Fed. 143. 

An abslgnment by an insolvent contractor to 
trustees for creditors of all his effects, includ- 
ing the contract, is not per sc an abandonment 
09 J.. K. A. 

of such contract, so as to Justify the other 
party t&ereto in treating it as at an end with- 
out an attempt to put the contractor In default 
by performing on its part. New England Jron 
Co. V. Gilbert Elev. R. Co. 91 N. Y. 153. 

A contract with an author to write a book 
for publication in a particular series of works 
issued periodically by the publishers is not 
abrogated by the abandonment of the series be- 
fore the work is completed, when the author is 
able and willing to perform. PlancM ▼• Ool- 
bum, 5 Car. & P. 58, 8 Bing. 14. 

III. The measure of damages in such oases. 

It is frequently dlfl3cult, in administering the 
law, to apply a proper rule of damages, and the 
decisions upon the subject are not harmonious. 
The cardinal rule undoubtedly is that the one 
party shall recover all the damages which have 
been occasioned by the breach of the contract 
by the other party. But this rule is modified 
by two others : The damages must flow directly 
and naturally from the breach, and they mast 
be certain both in their nature and in respect 
of the cause from which they proceed. Specu- 
lative, contingent, and remote damages, not 
directly traceable to the breach, are excluded, — 
damages only are allowed which the parties 
are fairly supposed to have contemplated on 
contracting as naturally flowing from its viola- 
tion. Rochester Lantern Co. v. Stiles & P. 
Press Co. 135 N. Y. 209. 31 N. B. 1018. 

The safest rule of damage, and the one sap- 
ported by the general current of anthoritiee. In 
cases where a contractor is prevented by the 
acts of the other party from performing his 
contract, is the difference between the cost of 
doing the work and what the contractor was to 
receive for it, making reasonable deduction for 
the less time engaged, and for release from the 
care, trouble, risk, and responsibility attending 
a full execution of the contract. United States 
V. Speed. 8 Wall. 77, 19 L. ed. 449. 

But this rule Is but one aspect of a more gen- 
eral one. The primary measure of damages is 
the amount of the contractor's loss, and that 
loss fails under two heads, — actual outlay and 
anticipated profits. United States v. Behan. 
110 U. S. 338, 28 L. ed. 168, 4 Sup. Ct. Rep. 81. 

Where a contractor injured by the stoppage 
of a contract elects to rescind it, he can re- 
cover only the value of his services actually 
performed as upon a quantum meruit, not dam- 

Digitized by 



Gbiffith v. Blackwateb B. & L. Co. 


E. 125, where the nature of the controversy 
and the history of the transactions out of 
which it arose are substantially set forth. 
It was impossible there, as it is here, to 
give in detail^ or even enumerate, all that 
is contained in the old record of more than 
700 pages, to which nearly 300 pages have 
since been added. 

After the case was remanded to the cir- 
cuit court for further proceedings accord- 
ing to the principles announced by this court 
upon the former appeal, it was referred to 
a commissioner with directions to report, 
first, what would be a just and reasonable 
compensation to Albert Thompson for labor 
and money necessarily expended in part per- 
fonnance of bis contract; second, upon the 
request of any interested party, to make a 

statement of such expenditures under the 
contract until the entry of the decree of Au- 
gust 4, 1893, showing allowances to him for 
his time, labor, and all sums paid by him 
for the time and labor of others, and ex- 
pended by him in equipment and material 
necessary to carry out such contracts, all 
sums paid for cutting, hauling, skidding, 
and driving logs, timber, and tanbark, all 
reasonable sums paid subcontractors by rea- 
son of the obligation of their contract, and 
all other items reasonably and necessarily 
paid by him in part performance of the con- 
tract, allowing him interest upon the sums 
so expended, and crediting said account with 
all sums paid to him by said company or 
its receiver, or realized from the sale of any 
materials or equipments; and, third, the 

ages for a breach of the contract either for 
outlay or Iocs 'of profits ; but, when he elects 
to go for damages for the breach of the con- 
tract the first and most obvious damage to be 
shown Is the amount which he has expended on 
the faith of the contract, including a fair al- 
lowance for his own time and services. If he 
chooses to go further, he may claim for the 
loss of anticipated profits, subject to the rules 
of law as to the character of the profits which 
may be thus claimed. Ibid. 

The general rule is well settled that a party 
to a contract where labor is to be performed, 
open the breach of that contract by the other 
party, has two remedies open to him. He may 
sue upon the contract and recover damages for 
Its breach, or he may ignore the contract and 
sue for labor and services rendered and ex- 
I^enses incurred from which he has derived no 
beoeflt. Hemminger v. Western Assur. Co. 96 
Mich. 355, 54 N. W. 940. 

When by the act of the other party one who 
has contracted to cut, haul, and deliver logs is 
prevented from proceeding with his contract, 
the rule of damages for the breach is to ascer- 
tain the profits he would have earned had he 
gone on and completed his contract. If, how- 
ever, this rule cannot be applied from the pe- 
culiar nature of the contract, as, for instance, 
where a fljced time for Its continuance is not 
agreed upon, nor is a definite quantity of logs 
to be delivered under It, a different rule of dam- 
age applies. In such a case preparatory work, 
done as a necessary preliminary to the penorm- 
ance of the contract, may be allowed for to the 
extent of Its reasonable cost. Brent v. Parker, 
23 Fla. 200, 1 So. 780. 

En what was pronounced a leading case upon 
the subject of damages for breach of contract 
by preventing performance (Vide, United States 
v. Speed. 8 Wall. 77, 19 L. ed. 449; United 
States V. Behan, 110 U. S. 338, 28 L. ed. 168, 
4 Sup. Ct. Rep. 81) Beardsley, J., stated the 
rule of damage in the case of a construction 
contract where the defendants stopped the work 
in the midst of its performance from lack of 
funds to pay. I think, be says, the plaintiffs are 
entitled to recover the amount they would have 
rean7.ed had they been allowed fully to execute 
their contract. The defendants are not to gain 
by their wrongful act, nor is that to deprive 
Uie plaintiffs of the advantages they had se- 
cured by the contract, and which would have 
resulted to them from its performance. The 
«»L.R. A. 

jury must, therefore, ascertain what it would 
probably have cost them to complete the con- 
tract over and above the materials on hand ; in- 
cludlDg the value of the marble required, the 
labor of quarrying and preparing it for use, 
the expense of transportation, superintendence, 
and insurance against all hazards, with every 
other expense incident to the fulfilment of the 
undertaking. The aggregate of these expendi- 
tures Is to be deducted from the amount which 
would be payable for the performance of this 
part of the contract accordhig to the prices 
therein stipulated, and the balance will be the 
damages which the Jury should allow. Master- 
ton V. Brooklyn, 7 Hill. 61, 42 Am. Dec. 38. 

The rule which precludes the allowance of 
profits by way of damages for the breach of an 
executory contract is not a primary rule, but a 
deduction from the more general and funda- 
mental rule which requires damages in all cases 
to be shown by clear and satisfactory evidence 
to have been actually sustained. By the com- 
mon law damages for a breach of contract must 
be proved to a certainty, not left to speculation 
or conjecture; and this excludes anticipated 
profits, although there Is nothing in their 
nature which par ae prevents their allowance. 
Profits which would certainly have been realized 
but for the breach are recoverable ; those which 
are contingent or speculative are not. OrlflSn v. 
Colver, 16 N. Y. 489, 69 Am. Dec. 718. 

A plaintiff is entitled to recover the expenses 
incurred by him in preparing to perform a con- 
tract which without his fault the defendant has 
put an end to, where the expected profits under 
the contract arc too speculative to admit of 
clear and direct proof. O'Connell v. Rosso, 66 
Ark. 603, 20 S. W. 581. 

The general rule in regard to damages which 
may be recovered for a breach of a contract is 
that remote or consequential damages are not 
allowed if not traceable solely to the breach, 
or if incapable of exact computation : but any 
necessary expense which one of the contractors 
Incurs in complying with the contract Is re- 
coverable. Bryan v. Southwestern R. Co. 41 
Ga. 71. 

Where two parties lawfully contract upon 
good consideration, and one is ready and will- 
ing, and makes preparation, to perform on his 
part, but is prevented from so doing by the 
other, he can recover all damages sustained in 
consequence of that other's default, including 
' his necessary expenses in making preparation. 

Digitized by VjOOQIC 


West Vibginia Supreme Coubt or Appeals. 


amount due Thompson for work and labor 
performed and money expended in the pros- 
ecution of the contract under the direction 
of the receiver until June 23, 1893, when the 
work was suspended by order of the coui^;, 
and the amount due him for expenditures, 
work, and labor from the 23d day of June. 
1893, until the 4th day of August, 1893, 
when the sale of the property of the Black- 
water Boom & Lumber Company was con- 

The commissioner reported that there was 
due Thompson as of the 12th day of June, 
1901, $85,642.02, returning with his report 
a full statement of all sums paid out and 
expended by Thompson in the prosecution of 
said work, and all sums paid to him on ac- 
count thereof, as well as the proceeds of the 

sales of property used by him in the per- 
formance of said work as equipments, such 
IS horses, wagons, locomotives, cars, steel 
rails, eto. Upon exceptions sustained by 
the court, the amount so found was reduced 
to $84,794.91 and a decree entered therefor. 
Of this amount, about $48,000 is principal, 
and the balance interest. Numerous excep- 
tions to the report, urged in the court 
jelow^ and overruled, are insisted upon here, 
ind there is much difference of opinion as to 
the true interpretation of the former deci- 
uon of this court. For the appellants it is 
nsisted that, under the principles so an- 
nounced, the item of $14,749.34, mentioned 
in the opinion at page 65 of 46 W. Va., 
page 128, 33 S. E., which, without interest, 
was originally $12,399.63, for work done on 

Kenwood Bridge Co. v. Danderdale, 50 111. App. 

Wbere loss of profits cannot be proved, the 
plaintiff In an action upon the breach of a con- 
tract is entitled to recover the expenses and 
outlay he incurred in preparing to perform on 
his part Athletic Baseball Asso. v. St. Louis 
Sportsman's Park & Club Asso. 67 Mo. App. 

One who contracts with another to furnish 
materials and build therewith a structure at a 
stipulated price, and who is prevented from 
completing his work by the ^ acts of the other, 
Is entitled to recover, inter alia items of dam- 
age, the expense of preparing such materials 
for their destined places in the structure. 
Shulto V. HennoBsy. 40 Iowa, 352. 

Where anticipated profits are too speculative 
and uncertain to be shown by competent proof, 
he who is entitled to recover for the breach of 
a contract to furnish an ample supply of 
natural gas wherewith to run his enterprise Is 
entitled to recover his expenses in attempting 
to run it and the rental value, or, In iieu there- 
of, the interest on the cost of his plant. Paola 
Gas C!o. V. Paola Glass Co. 56 Kan. 614, 54 Am. 
St. Rep. 51)8, 44 Pac. 621. 

Where one contracts with a railroad to pro- 
vide a water supply at a designated station at 
a stipulated monthly compensation, he under- 
taking to build and maintain a tank and appa- 
ratus for the purpose, upon a breach of the con- 
tract by the railroad by abandoning its station 
at that point, he may recover as damages the 
difference between the cust of Kuch tank and 
apparatus and their actual value after the de- 
parture of the road. If he retains the property, 
or the difference between such cost and the 
sum realized, if he sells for the best obtainable 
price. New Orleans, J. ft O. N. R. Co. ▼. Echols, 
54 Miss. 264. 

When, by the terms of a contract for work 
and labor, the full price is not to be paid until 
the completion of the work, and that becomes 
impossible by the act of the law, the con- 
tractor is entitled to recover for the amount 
of his labor. Jones v. Judd, 4 N. Y. 411, Ap- 
proved in Wolfe V. Howes, 20 N. Y. 197, 75 Am. 
Dec. 388. 

Ueforrlng to the case of a person who has 
contracted to labor for a definite term and is 
prevented by sickness from fulfilling his con- 
tract, Balcom, J., of the New York court of ap- 
peals, says : He should have the amount of his 
69 L. R. A. 

recovery reduced from the contract price by 
the damages sustained by the employer in con- 
sequence of his inability to complete the full 
term of service. This rule, be says. Is equitable, 
and should be applied in such cases. The 
servant is not to be regarded as violating hia 
contract because sickness or death prevents hla 
fulfilling it. His failure U his misfortune, not 
his fault. The employer should neither gain nor 
lose by it. The rule is Just to both. It needs no 
vindication, for it is so well grounded in good 
sense as to commend itself. It is a common- 
sense rule, and common sense is the basis of all 
just law. Clark v. Gilbert, 26 N. Y. 279, 84 
Am. Dec. 180. 

If the performance of a building contract be 
suspended by the financial embarrassment of 
the '^wner. and not afterwards resumed, the 
contractor may recover, among other items of 
damage, the expense he has incurred in making 
articles necessary to enable him to perform hia 
contract. O'Conncll v. Main ft T. Streets Hotel 
Co. 90 Cal. 515, 27 Pac. 273. 

A contractor for the construction of a road, 
whose contract entitles him to payment In In- 
stalments from time to time as his work pro- 
gresses, is Justified, upon default in paying the 
instalments, in stopping further work, and has 
a right to recover in quantum meruit for the 
work he has performed. Porter v. Arrowhead 
Reservoir Co. 100 Cal. 500, 35 Pac. 146. 

lY. How corporations ore dissolved, 

A corporation may go out of existence In one 
of four ways: (1) By expiration of its term of 
life as limited in its charter ; (2) by act of the 
legislature repealing or annulling its charter ; 

(3) by the Judgment or decree of a court of 
competent Jurisdiction dissolving It for non- 
user or misuse of its franchise, or because of 
some act or omission working a forfeiture ; and 

(4) by voluntary surrender of its charter. 
When the time limited by the charter of a 

corporation expires the corporation Is dead de 
facto, and no Judicial determination of the fact 
is needful ; the dissolution in such a case Is 
declared by the act of the legislature Itself. 
Sturges V. Vanderbllt, 73 N. Y. 384. 

It Is a well-settled principle that a dissolu- 
tion by forfeiture is effected only by Judicial 
proceedings against the corporation, taken for 
the purpose, followed by a hearing, or an op- 
portunity to be heard, and a Judgment rendered 

Digitized by 



Griffith v. Blackwateb B. & L. Co. 


logs cut by Thompson, but not delivered so 
IS to entitle him to demand payment there- 
for at the time the decree of sale was en- 
tered, is the only sum that can now be al- 
lowed him. 

Counsel for the appellee say this court 
regarded and treated the contract as hav- 
ing been rescinded, and declared it to be so, 
and ordered that Thompson be put in statu 
iiuo, — ^reimbursed for all his outlay, and 
made whole. The court say, in the opin- 
ion: *'A partly executed executory con- 
tract could be avoided before its final exe- 
cution, but the executing party thereto 
should be placed in statu quo, in absence of 
fraud, by compensation in the nature of a 
quantum meruit for money and labor ex- 
pended under such contract." In conclu- 

sion the court said: "Having partly exe- 
cuted his contracts, Albert Thompson is en- 
titled to recover a just and reasonable com- 
pensation for the necessary expenditure of 
labor and money imder his stocking con- 
tract, less the sums paid him; but he is 
not entitled to recover the large profits 
claimed by him. As the sum of $14,749.34 
is an alleged part of such expenditure, it 
should not have been decreed until the true 
amount thereof had been ascertained and 
determined. This amount, when ascertained 
and determined by reason of the adoption 
of the stocking contract by the receiver, 
under direction of the court, and thereby 
preventing Albert Thompson from perfect- 
ing his statutory lien therefor, under § 8, 
chap. 76, Code [1899], will be a prior lien 

ther«on. National Pabquioque Bank v. First 
Nat. Bank, 36 Conn. 325, 4 Am. Rep. 80. 

Id cases of dissolution of a corporation as a 
f^nsequence of Insolvency, nonuser, misuser, or 
some other cause of forfeiture of the corporate 
franchises, it is well settled that dissolution 
does not take effect until judicially decreed. 
Sturges v. Vanderbllt, 73 N. Y. 884. 

In the absence of a governing statute a cor- 
poration aggregate, chartered for an unlimited 
time, may, by the concurrent consent of the 
state which created it and its stockholders, be 
dissolved. Revere v. Boston Copper Co. 15 Pick. 

A company not incorporated for any de- 
terminate time, and in its nature perpetual, 
cannot dissolve Itself, and terminate Its own 
existence at its own will, by a bare notice to 
tbe executive department *of the state which 
chartered it. nid. 

A corporation does not cease to exist until its 
diaaoiutlon is effected in a manner provided by 
law. Taylor v. Holmes, 14 Fed. 498. 

A corporation may surrender Its charter to 
the sovereign power, but there must be some 
definite act of surrender and an acceptance by 
the sovereign. Mere nonuser of its powers is 
Bo surrender of them, nor does it warrant a 
court in presuming an abandonment of its fran- 
chise^ Ilfid. 

Tbe adoption by stockholders of a resolution 
that the corporation be dissolved does not 
terminate the corporate existence. New York 
Marbled Iron Works v. Smith, 4 Duer, 362. 

To effect the dissolution of a corporation by 
resolution of stockholders, either the state must 
accept a surrender of the charter, or else a 
court must decree dissolution. Jbid. 

A corporation may dissolve itself and end 
its corporate existence by voluntarily surrender- 
lag its franchise to the state, but the state 
must accept to complete the dissolution. Combes 
▼. Kcyes (Combes v. Milwaukee & M. R. Co.) 
Sd Wis. 297, 27 L. R. A. 369, 46 Am. St. Rep. 
S39, 62 N. W. 89. 

The disaolution of a corporation is not volun- 
Ury when, becoming embarrassed and unable 
to continue business, its creditors force a re- 
ceiTership, and the corporate assets turn out to 
be insufficient to meet its liabilities, merely he- 
<auae Its officers consent to such dissolution. 
Orlffith T. Blarkwater Boom & Lnmber Co. 46 
W. Va. 56, 33 S. E. 125. 

Tbe mortgaging of all the property, assets^ 
^9 L. R. A. 

and franchises of a corporation by consent and 
authority of the legislature, and the subsequent 
foreclosure of such mortgage, and sale of the 
mortgaged property and franchise, work a dis- 
solution of the corporation. Combes v. Keyes 
(Combes v. Milwaukee & M. R. Co.) 89 Wis. 
297, 27 L. R. A. 369, 46 Am. St. Rep. 839. 62 
N. W. 89. 

A transfer by a corporation, although it Is 
not shown to be insolvent, of all its property, 
which suspends and terminates the regular 
business of the grantor, and is made and ac- 
cepted With that purpose and Intention, has the 
practical effect to dissolve such corporation, 
and subject it to a forfeiture of its charter at 
the Instance of the state, since it voluntarily 
strips itself of all its property and as8<^t«. and 
becomes incapable, and Intends to be and stay 
unable, to perform its corporate duties. Cole v. 
MiUerton Iron Co. 133 N. Y. 164, 28 Am. St. 
Rep. 615, 30 N. B. 847. 

When the charter of a corporation gives Its 
cerdltors a direct action against its stockhold- 
ers, but only after its dissolution, the courts 
will treat such dissolution as effected so as to 
give a creditor his remedy against a shareholder 
if the stockholders have done all in their power 
to dissolve the corporation. Slee v. Bloom, 19 
Johns. 475, 10 Am. Dec. 273. 

After a corporation has been stripped of all 
its property, and for a quarter of a century has 
failed to exercise any corporate franchise, elect 
any officers, or maintain any office, a surrender 
of Its franchise will be presumed. Combes v. 
Keyes (Combes v. Milwaukee & M. R. Co.) 89 
Wis. 297, 27 L. R. A. 369, 46 Am. St. Rep. 839, 
62 N. W. 89, Citing Brandon Iron Co. v. Glea- 
son. 24 Vt. 228. 

V. When dissolution is not effected. 

The only modes known to the common law of 
dissolving a corporation were, by the death of 
all its members ; by the act of the legislature ; 
by a surrender of the charter accepted by the 
government ; or by a forfeiture of the franchise, 
which could only take place upon a Judgment 
of a competent tribunal in a proceeding in be- 
half of the state. Neither a court of law, nor 
a conrt of equity, had Jurisdiction to decree the 
forfeiture of a corporate charter, or the disso- 
lution of a corporation at tbe suit of an in- 
dividual. Folger v. Columbian Ins. Co. 99 Mass. 
267, 96 Am. Dec. 747. 

Digitized by 



West Virginia Supbeme Court of Appeals. 


on the assets of the corporation in the hands 
of the receiver." The substance of this con- 
clusion is incorporated in points 3 and 
4 of the syllabus. In the opinion of the 
court, the contract was voidable on the part 
of the Blackwater Boom & Lumber Com- 
pany, and the court, having succeeded to its 
rights in the administration of its affairs, 
abrogated it by selling the property of said 
company free from the obligation of Thomp- 
son's contract; but it held, nevertheless, as 
stated, that he is entitled to compensation, 
and the only question to determine is the 
amount thereof. 

The termination of Thompson's contract, 
as decided on the former appeal, rests upon 
two grounds. The first is that the corpo- 
ration was unable, because of financial em- 

barrassment, to further proceed with it» 
business; and the other that, as Thompson 
was a director of the company at the time 
the contract was entered into, it was void- 
able at the election of the stockholders. It 
is not, therefore, the ordinary case of a 
wrongful prevention of the performance of 
a contract, nor is it a case of settlement of 
the equities or legal rights of the parties 
upon the rescission of a contract. 

The principle of law underlying the first 
ground upon which the contract was de- 
clared to have terminated is announced in 
People V. Qlohe Mut. L. Ins. Co. 91 N. Y. 
174, 1 Am. & Eng. Corp. Cas. 686. This 
doctrine is that, where performance of a 
contract by a corporation is prevented by its 
dissolution at the instance of the state or 

Neither the Insolvency of a corporation, nor 
ItR failure to elect officers, operates as a disso- 
lution, or as a virtual surrender of its charter. 
Taylor v. Holmes, 14 Fed. 498. 

The mere fact that a corporation has failed 
to pay its debts, and has ceased to carry on its 
lawful and ordinary business for such a length 
of time as, according to a statute of the state 
which created it, warrants its dissolution, does 
not, per se, in the absence of an act of the leg- 
islature or the Judgment of a court dissGiving, 
work a dissolution so as to prevent or abate 
ordinary legal proceedings against it by its 
creditors. Ibid. 

The resignation of all its officers does not, 
per He, operate to destroy the existence of a 
corporation. Officers and agents are necessary 
to manage the affairs of a corporation, but the 
corporation may exist so as to maintain suc- 
cession, and hold and preserve its franchises, 
though its functions be for the time suspended 
fur want of means of action. Muscatine Turn 
Vercin v. Funck, 18 Iowa, 469. 

It is a settled rule that, although the neglect 
of a corporation to reappoint its officers may in 
certain cases suspend its existence, it cannot t)e 
thus extinguished to the injury of creditors. 
Brown v. Union Ins. Co. 3 La. Ann. 177. 

An exception to the rule that failure to elect 
officers does not work a dissolution of a cor- 
poration appeared in Slee v. Bloom, 19 Johns. 
475, 10 Am. Dec. 273. It was said that, as the 
shareholders had done all they could to dissolve 
the company, the court would to give a creditor 
his remedy against a shareholder, and treat the 
dissolution as effected. It was upon this grround 
that the Louisiana supreme court distinguished 
the case In applying the general riTle. Ihid. 

The mere insolvency of a corporation, and an 
assignment of all its property to trustees for 
the benefit of creditors, followed by a suspen- 
sion of its ordinary business, are not equivalent 
to a dissolution. New England Iron Co. ▼• Gil- 
bert Kiev. R. Co. 91 N. Y.. 153. 

A corporation is not dissolved by the mere 
bringing of a suit alleging insolvency, and ob- 
taining the appointment of a receiver. Kinsman 
V. Flsk, 37 App. Div. 443, 56 N. Y, Supp. 33. 

Insolvency, suspension of business, and a re- 
ceivership, alone, do not exting\iish corporate 
life In New .Jersey. They may Justiiy the chan- 
cellor in declaring the charter forfeited and 
void, but the assets may, on the other hand, 
prove Bumclcnt to pay creditors in full, and 
69 L. R. A. 

Justify the discharge of the receiver and the 
resumption of the corporate business. This falls 
short of the civil death of the corporation until 
the final decree, and consequently the rule that 
the death of the master terminates the servant's 
contract does not apply to bar a corporate em- 
ployee's claim for damages for breach of his- 
contract by the insolvency of the corporation. 
Spader v. Mural Decoration Mfg. Co. 47 N. J. 
Eq. 18, 20 AU. 378. 

The mere appointment and qualification of 
a receiver of a national bank at the instance of 
the comptroller of the currency for failure to 
redeem Its notes does not work a forfeiture of 
the franchise and a dissolution of the banking 
corporation, so as to bar a creditor from main- 
taining suit against the bank to establish the 
validity of his claim. National Pahquioque 
Bank v. I^lrst Nat. %ank, 86 Conn. 325, 4 Am. 
Rep. 80. 

The mere insolvency and the appointment of 
a receiver of a corporation are not equivalent 
to its dissolution, even though it Is restrained 
by Judicial order from transacting any more 
business. City Ins. Co. v. Commercial Bank, 68 
111. 348. 

The appointment of a receiver to take and 
distribute among creditors and stockholders all 
the property of a corporation, while sometlmea 
spoken of as a virtual dissolution, does not ex- 
tinguish the franchise, terminate the iegal ex- 
istence, or render the corporation incapable of 
being sued at law or in equity. Folger v. Colum- 
bian Ins. Co. 99 Mass. 267, 96 Am. Dec. 747. 

The fact that a foreign building and loan as- 
sociation has been put in the hands of a receiv- 
er in its home state, and forbidden to continue 
business, does not relieve it from liability to 
pay back his investment to a resident member, 
who has given due notice of his withdrawal a» 
required by the corporate by-laws, notwith- 
standing the association is unable to make col- 
lections, only after which, according to ita by- 
laws, it is bound to pay. Southern Bldg. & L. 
Asso. V. Price, 88 Md. 155, 42 L. B. A. 206, 41 
Atl. 53. 

YI. The earlier comnwn-law doctrine ooncem- 
iny the effect of dissolution. 

"The text-books and cases decided arc uni- 
form in their language, — that the real estate 
held by the corporation at its civil death re- 
verts to the grantor and his heirs: that the 

Digitized by 



GRifFiTH V. Blackwateb B. & L. Co. 


power creating it, it may annul its con- 
tracts, and, in doing so, does not commit any 
breach of the contract. The act of annul- 
ment is deemed to be that of the state, and 
not of the corporation, and gives the con- 
tractor no right to claim damages as for a 
breach of his contract. Whether, in such 
case, the contractor is entitled to be reim- 
bursed for his outlay and expenses is not de- 
termined in that case, for the reason that 
no such question was inyolved. The demand 
set up and denied was founded upon a con- 
tract of employment as agent, and the dam- 
ages claimed were for anticipated profits. 
Such termination of the contract does not 
imply that it was not a valid contract, im- 
posing obligations and conferring rights up 
until the moment of the dissolution. The 

contract in such case cannot be conaiilorod 
to have been void ah initio. A long list of 
cases turning upon this principle will be 
found in the note to the case above cited, as 
reported in 1 Am. & Eng. Corp. Cas., hold- 
ing that the parties to an entire contract of 
such a nature as indicates that tlioy, in en- 
tering into it, must have contemplated the 
possibility of its termination by act of the 
law or of God, or by some cause beyond 
their power, are, upon the happening of such 
event, relieved from its obligations, so far 
as it remains unexecuted, upon the theory 
that though, in form, it was an entire and 
indivisible contract, yet, as the parties must 
have had in view the contingency which ren- 
dered it impossible of further execution, or 
gave right to terminate it, it was in fact 

perflonal estate Tests in the people, or. In Eng- 
land, in the Crown ; and that the debts due to 
and from the corporation are totally extln- 
^isbed; so that neither the stockholders, nor 
the directors or tmstees, of the corporation can 
recover, or be charged with, them in their 
natnral capacity.*' Commercial Bank v. Lock- 
wood, 2 Harr. (Dei.) 8. 

At common law an absolute and unqualified 
dissolution of a corporation by a decree of for- 
feiture or legislative repeal extingulshefi all 
debts due to or from it, puts an end to all its 
rij^bts of action and property, and it can no 
longer sue or be sued, or do any lawful act. 
National Pahquioque Bank v. First Nat. Bank, 
36 Conn. 325, 4 Am. Rep. 80. 

The doctrine of the common law, that, upon 
the dissolution of a corporation, debts due to or 
from it are extinguished, results necessarily 
from the fact that, the corporation having ex- 
pired, whether by its own limitation, by sur- 
render or ahandonment of its members, or Judg- 
ment of dissolution, there is no one in law to 
sue or be sued. High tower v. Thornton, 8 Ga. 
486. 52 Am. Dec. 412. 

The elementary writers, both in England and 
In the United States, everywhere assert dis- 
tinctly that debts due to and from a corpora- 
tion are extinguished by its dissolution, unless 
prevented by the terms of the charter Itself, or 
by aUunde legislation ; that in . the courts of 
both countries this doctrine is too well settled 
to be overthrown or shaken; and that such 
debts are so totally extinguished that the mem- 
l«rB of the corporation cannot recover or be 
charged with them in their natural capacities. 
Moultrie v. Smiley. 16 Ga. 289. 

Upon the dissolution or civil death of a cor- 
poration all its real estate, by the strict rule of 
tlie common law, reverts to the original owners 
or their heirs, and all its personal estate vests 
In the Crown, in England, and the state here, 
and all debts due to or from it are, by operation 
of law, extingulslied. Life Asso. of America v. 
Fassett, 102 111. 315. 

At common law dissolution implied that the 
corporation had wholly ceased to exist for any 
purpose, so that suits brought by or against it 
abated, and a judgment thereafter rendered 
against It was a nullity ; that its title to prop- 
erty ceased to exist, and all legal remedies to 
•mforce debts due by or to It became extln- 
^nii^hed. Bowe v. Bf innesota Milk Co. 44 Minn. 
4»>». 47 X. W. 151. 
60 I^ R. A. 

The rule of the common law In respect of the 
reversion to the grantor of real estate, vesting 
in the Crown of personal property, and ex- 
tinguishment of debts and credits of corpora- 
tfbns when they were dissolved, had Its origin 
when corporations were either municipal, eccle- 
siastical, or eleemosynary, and business corpo- 
rations were unknown. There were no stock- 
holders or natural persons entitled to the as- 
sets of dead corporations, and, as In the case of 
an individual dying without heirs, the person- 
alty went to the King, and to prevent the realty 
from escheating to the King It reverted to the 
donor, upon the ground that, the grant being 
made to a body corporate for public or charit- 
able uses, it was made only for life. Shayne v. 
Evening Post Pub. Co. 108 N. Y. 70, 55 L. U. 
A. 777, 85 Am. St. Rep. 654, 61 N. E. 115. 

At common law every grant of land to a 
corporation was a grant for life of the body 
politic, conferring a power of alienation, but 
coupled with a reservation of the reversion if 
the land should not be aliened during the life 
of the corporation. And as, by statute, the com- 
mon law of England In all its parts, where not 
Inconsistent with constitutional and statutory 
law, was adopted and continued In force In 
South Carolhia the legal title to the real estate 
of a private corporation (not a moneyed or 
trading company) reverted upon Its dissolution 
to, and vested in, the grantor or his heirs, al- 
though the conveyance to the corporation was 
in fee. St. Philip's Church v. ZIon Presby. 
Church, 23 S. C. 297. 

The common-law rule, whereby, upon the 
civil death of a corporation, all its unsold real 
estate reverted to its grantor, all its personal 
estate vested In the state, and all debts due to 
or from it were extinguished, so that neither 
the stockholders, directors, nor trustees, could 
recover or be charged with the debts In their 
natural capacity, was applied by the supreme 
court of Tennessee, to prevent a recovery upon 
a note secured by a deed of trust execi^ted to 
the Bank of Tennessee after the charter of that 
corporation had expired. White v. Campbell, 
5 Humph. 38. 

The court there held both deed and note in- 
operative and void, saying, In answer to the 
argument that the maker fairly owed the debt, 
and Intended to secure the stockholders : "We 
cannot recognize the existence of stockholders 
of a defunct corporation, and we cannot . . . 
go behind the note and deed to hunt for a dif- 


West Vibqinia Supreme Court of Appeals. 


find in law a divisible contract, contrary to 
its form, and recovery is allowed for such 
part of the contract as has been performed, 
but profits which would have arisen from 
further and future performance are denied 
and refused. Mumma v. Potomac Co. 8 Pet. 
286, 8 L. ed. 947; Fenton v. Clark, II Vt. 
557; Fuller v. Brown, II Met. 440; Ryan 
V. Dayton, 25 Conn. 188, 65 Am. Dec. 560; 
Willington v. West Boylaton, 4 Pick. 101; 
Yerrington v. Greene, 7 R. I. 589, 84 Am. 
Dec. 578; Stewart v. Loring, 6 Allen, 306, 
81 Am. Dec. 747; Knight v. Bean, 22 Me. 
631 ; Merrill v. Suffolk Bank, 31 Me. 57, 50 
Am. Dec. 649 : Read v. Frankfort Bank, 23 
Me. 321; Farrow v. WiUon, L. R. 4 C. P. 
744; Tasker v. Shepherd, 6 Hurlst. & N. 
575; Charnley v. Winstanley, 5 East, 266: 

Taylor v. Caldwell, 3 Best & S. 826 ; Rhodes 
V. Forwood, L. R. 1 App. Cas. 256 ; Thumell 
v. Balbemie, 2 Mees. & W. 786 ; Brogden v. 
Marriott, 2 Scott, 703; Woraley v. Wood, 
6 T. R. 710; Davison v. Mure, 3 Dougl. 28; 
Milner v. Field, 5 Exch. 829; Morgan v. 
Bimie, 9 Ring. 672; People v. Manninijr, 8 
Cow. 297, 18 Am. Dec 451; Carpenter v. 
Stevens, 12 Wend. 689; Wolfe v. Howes, 24 
Barb. 174; Fcfcy v. North, 19 Barb. 341; 
Spalding v. iJo«a, 71 N. Y. 40, 27 Am. Rep. 
7; Sturges v. TVinderftiU, 73 N. Y. 390; 
Smith V. Brady, 17 N. Y. 173, 72 Am. Dec 
442 ; Walker v. Tucker, 70 111. 627 ; Orr v. 
Ward, 73 111. 318 : Hercules Mut. Life Assur. 
Soc. v. Brinker, 77 N. Y. 435. By far the 
greater number of these cases involve con- 
tracts for compensation to agents and serv- 

ferent payee and a different cestui que trust 
from that mentioned in the instrument." Ibid. 

On the dissolution of a Tennessee corporation 
its real estate reverts back to the original 
grantor or his heirs. Acklin v. Paschal,* 48 
,Tex. 147, Citing White v. Campbell, fi Humph. 

At common law, upon the death or dissolu- 
tion of a corporation its real property reverted 
to the donors, and Its personal property escheat- 
ed to the King, while the debts due to and from 
it were thereby extinguished, and all actions 
pending for or against it abated. Wallamet 
Falls Canal & Lock Co. v. KIttrldge. 5 Sawy. 44. 

The doctrine of the common law as to the 
effect of the dissolution of a corporation upon 
its real and personal property, debts and cred- 
its, had its origin when corporations were either 
municit?al or ecclesiaHtlcal, and were dissolved 
for abuse or nonuse of their powers. Their real 
estate, which usually was acquired as a dona- 
tion to public or pious uses, was held to revert, 
upon the cessation of the use, to the donors, 
and their personal property to escheat to the 
King for want of owners. In these cases there 
were no stockholders who were entitled, equita- 
bly or otherwise, to the assets of dead corpo- 
rations, and, as in the case of a natural person 
dying without heirs, the personalty went to the 
King; but, to prevent the real estate from es- 
cheating to the Crown, it was held to revert to 
the donor, upon the theory that it was made 
over to the corporation only for its life. Ibid. 

Vll. Comment and criticiMm concerning it. 

According to the old settled law of the land, 
says Kent (Com. f 33. p. 307). where there Is 
no special statute provision to the contrary, 
upon the civil death of n corporation all Its real 
estate, remainiug unsold, reverts back to the 
original grantor and bis heirs. The debts due 
to and from the corporation are all extin- 
guished. Neither the stockholders, nor the 
directors or trustees of the corporation, can re- 
cover those debts, or be charged with them in 
their natural capacity. All the personal estate 
of the corporation vests in the people as suc- 
ceeding to this right and prerogative of the 
Crcwii at common law. 

It la observed. In the appended note to the 
1 0th edition, the rule of the common law has 
In fact become obsolete and odious. It has never 
l»een applied to Insolvent or dissolved moneyed 
l\S) L. R. A. 

corr-oratlona in England. The sound doctrine 
now is, as shown by statutes and Judicial deci- 
sions, that the capital and debts of banking and 
other moneyed corporations constitute a trust 
fund and pledge for the payment of creditors 
<icd sloc!.>iolders ; and a court of equity will 
lay hold <-f the fund, and see that it Is duly 
cfl'.ei'ted and applied. 

And in Ilightow^er v. Thornton, 8 6a. 486. 
52 Am. Dec. 412, Lumpkin, J., quotes Chancel- 
lor Kent approvingly as having given his pro- 
fes<uonal opinion, which was read on the argu- 
ment of Nevitt V. Bank of Port Gibson. 6 
Smcdes ft M. 513. in which "he asserts that 
there is not an instance in the English law In 
which the funds of an Insolvent or forfeited 
moneyed Institution have been permitted to \te 
abandoned, and creditors denied redress and 
payment out of them : and he adds that, to 
permit the odious and obHolete doctrine of an- 
cient date, before moneyed Institutions were In- 
troduced, to be now applied to the dissolution 
of a bank, perhaps by Its own mismanagement 
and abuse, so that ali Its assets were to be con- 
sidered us dispersed to the wind, without any 
owner or power any where to collect and Justly 
apply them, would be a disgrace to any civil- 
ized state." 

Of the doctrine of the common law as stated 
lu the text-books, Campbell, J., of the Cnlted 
States Supreme Court, remarked that "the con- 
sequences are visited without any discrimina- 
tion ; the losses are imposed upon those who are 
not blameworthy, and the benefits are accumu- 
lated upon those who are without desert.** 
Racon V. Hol>ertson, 18 How. 480. 15 I., ed. 

According to common-law principles the debts 
of a corporation either to It or from It are ex- 
tinguished by Its dissolution; nor are its mem- 
bers liable in their individual characters for 
auy part of Its debts. Its lands revert to the don- 
ors. Its personalty goes to the commonwealth. 
"If these things be so (and there la no rea- 
soualjle doubt about in. they are grosaly un- 
just," said Tucker, P., for the Virginia court 
of appeals. In 1830. "It cannot be Just that the 
members of a joint-stock company should for 
felt their property to the commonwealth by the 
expiration of their charter. It cannot be Just 
that the land which they have purchased and 
paid for should revert to the grantor, who In* 
already received value for it. It cannot be Juat 
that those who are Indebted to the corporation 

Digitized by 



Gmffith v. Blaokwateb "B. & L. Co. 


ants, in whicb no demand for money laid out 
and expended in preparation for, and execu- 
tion of, the contract waa made or could have 
been set up. Hence in none of them is that 
question passed upon. The doctrine of the 
case of People v. Globe Mut, L. Ina. Co. 91 N. 
Y. 174, is examined, and repudiated as un- 
sound, and at variance with the principles 
of law in Rosenhaum v. United States Credit 
System Co, 61 N. J. L. 643, 40 Atl. 591. 
Speaking for the court, Chancellor McGill 
said: "It appears to us that the material 
fact that the corporation defendant is a 
stock company, and that its capital stands 
as a trust fund for the payment of its debts, 
is lost sight of. Such a company may be- 
come insolvent, and its charter may be for- 
feited, when its assets may be more than 

Bufiiclent to pay its debts. Everyone who 
deals with such a corporation docH ho in 
view of the trust fund its capital provides, 
and the security that fund is intended to 
afford. The stockholders who provide the 
fund invite confidence because of it, that 
through such confidence their venture may 
be profitable to them. The mere statement 
of this situation makes conspicuous the in- 
justice of any course of reasoning which 
will return to the stockholders their capit-al 
before satisfaction of all losses induced by 
faith in it shall be made. The 'state cre- 
ates corporations, and requires of thorn the 
provision of such a trust fund, and, when it 
destroys their corporate existence, natural 
justice requires that it sliall provide for dis- 
tribution of the fimd, so that no part of it 

I a bank, for instance) should be absolved from 
thMr engagements ; and still less that, by a for- 
feiture of Its charter, those to whom It is in- 
debted should lose their just demands." Rider 
T. Nelson & A. Union Factory, 7 Leigh, 154, 30 
Am. Dec. 495. 

The doctrine that the debts of a corporation 
loth to and from it are extinguished by its dis- 
solution is odious. A majority of the American 
itates have, by enlightened legislation, inter- 
posed to prevent, to ward off, the Iniquitous 
consequence of this common-law rule, the ex- 
istence of which is a disgrace to a civilized 
state. Such ia the rule, however, but a court 
is not called upon to extend it one jot or tittle 
beyond the reason which gave it birth. Thorn- 
ton T. Lane, 11 Ga. 459. 

When a corporation Is dissolved by having 
lived out its term, and there is no saving 
statute, following the rule of the common law 
its real estate reverts to the grantor, its per- 
wnal property goes to the state, and its choses 
in action, debts, etc., are extinguished. Fox v. 
Horah, 36 N. C. (1 Ired. Eq.) 358, 36 Am. 
Dec. 4& 

Judge Thompson (6 Tbomp. Corp. | 6720) 
referred to this decision as being "in accordance 
with the barbarous rule of the common law ;" 
and said it was "probably the last case of its 

But its doctrine was reiterated and applied 
more than twenty years later (1863) in the 
ease of Malloy v. Mallett, 59 N. C. (6 Jones, 
Eq.) 345. 

I^ater, however (1879), the court virtually 
repudiated the doctrine. Speaking of these de- 
cisions, it said that they were made, and their 
conclusions were reached, after full discussion 
and careful consideration by able Jurists, and 
its reluctance to disturb them after so long 
an acquiescence by the profession could be over- 
c^Hne only by the clearest convictions of their 
error. But, it was added, they rested upon 
"Strictly legal principles, well settled by au- 
thority, and carried to logical results ; and a 
:vmedy existed In calling in to exercise, in be- 
*iaif of creditors and others interested, the 
equitable Jurisdiction of the court. And, re- 
garding the debts and other property of the dis- 
^Ived corporation as the property of its cred- 
itors, a eoart of equity would reach forth and 
other up and collect the assets though there 
vere no legal owner, and would distribute them 
« L. R. A. 

to creditors first and stockholders afterwards. 
Von Glahn v. De Rosset, 81 N. C. 467.- 

And finally (1897) the doctrine was emphat- 
ically repudiated, and the decision in Fox v. 
Horah, 36 N. C. (1 Ired. Eq.) 358, 36 Am. Dec. 
48, 9upra, expressly overruled ; and It was ques- 
tioned whether the common law ever really 
sanctioned a rule so plainly **not founded upon 
Justice and reason, nor approved by experi- 
ence." Wilson V. Leary, 120 N. C. 90, 38 L. B. 
A. 240, 58 Am. St. Rep. 778, 26 S. E. 630. 

The case of Fox v. Horah, 36 N. C. (1 Ired. 
Eq.) 358. 36 Am. Dec. 48, was fully analyzed, 
explained, distinguished, and circumscribed In 
Moultrie v. Smiley, 16 Ga. 280. 

Mr. Cook (2 Corp. 5th ed. i 641), adverting 
to the allcj^ed common-law doctrine that, upon 
the dissolution of a corporation, all its assets 
belonged to the state, and all its debts were can- 
celed, and its acceptance in text-books and decl 
sions for more than a century, says that, never- 
theless, the courts uniformly refused to apply 
it, and resorted to various devices and fictions 
to avoid doing so ; and finally, in 1899, an Eng- 
lish court, in the case of Re Higginson [1899 J 
1 Q. B. 325, denied that such doctrine ever was 
the common law, and showed that in the 17th 
and 18th centuries many corporations were 
dissolved, and In no single case was such doc- 
trine ever applied. 

The authorities for the proposition that, on 
the dissolution of a corporation, aggregate debts 
due to or from it are extinguished, says Wright, 
J., of the English Queen's bench, in the case to 
which Mr. Cook referred, are by no means clear 
or satisfactory. In 1 Bl. Com. 484, and in 2 
Kyd, Corporations, 510, and in Grant, Cori^o- 
ratlons, 303, such a proposition is stated, but 
in terms which suggest that no more is meant 
than that after the dissolution the Individuals 
who were members or officers of the corpora- 
tion cannot sue or be sued in respect of its 
rights or obligations; and this is all that is 
established by the cases there cited. The Amer- 
ican decision iu the case of Bank of Vincennes 
V. State, 1 Blackf. 267, 12 Am. Dec. 234, reiles 
on these authorities as supporting the general 
proposition, but it does not advert to this quali- 
fication, or add new references to authority, and 
the authorities cited do not In any way support 
the proposition, except as qualified. Grant Is 
explicit in the sanje case, but does not refer to 
any authority which, so far as I can see, has 
any bearing on the matter. Nor do the old au- 

Digitized by VjOOQIC 


West Virginia Sufbeme Court of Appeals. 


shall be returned to those who offer it as se- 
curity for the action of others, until the 
latter shall have all the protection against 
loss in their undertaking that it is capable 
of affording." 

Other cases more analogous to the one 
now under consideration hold that the effect 
of the dissolution of a corporation upon un- 
expired or executory contracts is to excuse 
further performance and render them nuga- 
tory as to so much as remains unperformed, 
but to entitle the obligee to damages for the 
breach of £he contract to be paid out of the 
assets of the dissolved corporation. 10 Cyc. 
Law & Proc. p. 1312. Thus, in Hchleider v. 
Dielman, 44 La. Ann. 463, 10 So. 934, the 
court held the dissolution of the corpora- 
tion to be a breach of the contract, giving 

the other party the right to recover what 
he has already expended toward the per- 
formance of it and the profits which he 
wovdd have realized by performance. Re 
Wiltahire Iron Co. L. R. 3 Ch. 443, holds 
that where a sale of personal property has 
been made by a corporation which is dis- 
solved before delivery of the property, the 
purchaser has a valid claim for damages 
for the breach of the contract, payable out 
of the assets of the company. In Spader v. 
Mural Decoration Mfg. Co. 47 N. J. Eq. 18, 
20 Atl. 378, it is held that where a person 
was employed by a corporation for a term of 
years for a fixed salary, and before the ex- 
piration of the term the corporation became 
insolvent, and a receiver was appointed to 
wind up its affairs, the employee was en- 

thorltles as to the effect of dissolution of mu- 
nicipal and other corporations add anything de- 
cisive to the question. In the 17th and 18th 
centuries corporations aggregate constituted by 
charter or letters patent were numerous, and 
questions frequently occurred as to the effect 
upon their rights and obligations of dissolu- 
tion, revival, and reincorporation with or with- 
out change of name or constitution. I cannot 
find that tn any case the rights or obligations 
of a corporation were held to be affected by a 
technical dissolution. Nor, on the other hand, 
can I And a case In which such a question has 
been decided where the corporation had not 
been revived, or some provision made by statute 
or charter with reference to its obligations. 
Re lllgginson [ISOO] 1 Q. B. 325. 

There is In the opinion of Lumpkin, J., In 
Moultrie v. Rmlley, 16 Ga. 289, a very full and 
learned examination Into the origin, reason for, 
extent and limitations of the rule that debts 
due to and from a corporation are extinguished 
by its dissolution. It Is too long to give here in 
extenso, and cannot, without sacrifice, be ab- 
stracted. The reader will do well to supplement 
this note by perusing It. 

VIII. The trust-fund, or "American," doctrine. 

The trust fund doctrine, called frequently the 
"American" doctrine, was formulated by Mr. 
Justice Story. 

"It appears to me,*' said that Jurist In Wood 
V. Dummer, 3 Mason. 308, Fed. Cas. No. 17,944, 
**very clear upon general principles, as well as 
the legislative intention, that the capital stock 
of banks is to be deemed a pledge or trust fund 
for the payment of the debts contracted by the 
bank. ... To me this point appears so 
plain upon principles of law, as well as common 
sense, that I cannot be brought Into any doubt 
that the charters of our banks make the capital 
stock a trust fund for the payment of all the 
debts of the corporation." 

And, in conformity with these views, he held 
that the capital stock of a bank is a trust fund 
for creditors, and, upon the division of it, the 
stockholders take It subject to all the equities 
attached to It. They are privies to the trust, 
and receive It cum onere. Ibid. 

And, on the dissolution of a banking corpora- 
tion, the bill holders and the stockholders have 
each equitable claims, but those of bill holders 
possess a prior exclusive equity. Ibid. 
69 L. R. A. 

The idea that the property of Insolvent cor- 
poiniui- s ..•; ii<»!'i by tliem In trust for creditors, 
— is a trust estate in their hands, — and to oe 
administered by chancery as such, is said to 
have originated In a dictum of Story, J., in 
Wood V. Dummer, 3 Mason, 308, Fed. Cas. No. 
17,044, and to have no existence at common 
law. It has not been adopted In England, but is 
distinctly a creature of some courts In this 
country, and is styled the "American doctrine." 
O'Bear Jewelry Co. v. Volfer, 106 Ala. 205, 28 
L. K. A. 707, &4 Am, St. Rep. 31. 17 So. 525. 

The trust-fund doctrine Is usually stated in 
the decisions in terms quite broad and general. 
Thus : — 

The property of an Insolvent trading corpo- 
ration while under the control of Its officers 
being a trust fund In their hands for the bene- 
rtt of its creditors, a court of equity, which 
never allows a trust to fail for want of a trus- 
tee, will sec to the execution of the trust, al- 
though by the dissolution of the c(^rporatlon the 
legal title to its property has been changed. 
Curran v. Arkansas, 16 How. 304, 14 L. ed. 

In contrast to the rule of the common law. the 
rule in equity was that while, upon dissolution, 
a corporation ceased to exist, yet Its property 
was impressed with a trust in favor of its 
creditors and stockholders as beneficiaries, 
whose Interests equity would protect by ap- 
pointing a trustee If necessary to execute the 
trust. Bowe v. Minnesota Milk Co. 44 Minn. 
460, 47 N. W. 151. 

When a corporation Is dissolved, discontinues 
its business, makes a general assignment, or 
does any other act Indicating positive Insol- 
vency, its property thereafter Is affected by an 
equitable Hen or trust for the benefit of all Its 
creditors, and these may individually be re- 
strained by injunctions against appropriating 
the corporate assets to the payment of their 
claims. M'Claren v. Union Roller Mills & Eleva- 
tor Co. 95 Tenn. 696. 35 S. W. 88. 

It is well settled that the property of a cor- 
poration Is a trust fund in the hands of its 
directors for the benefit of creditors and stock- 
holders, — that is. to the extent of preventing 
the directors from dealing with it to their own 
advantage, or in disregard of the rights of the 
creditors and stockholders. Goodin v. Cincin- 
nati & W. Canal Co. 18 Ohio St 169, 98 Am. 
Dec. 95. 

In the view of equity the property of a dis- 

Digitized by 



Griffith v. Blackwateb B. & L. Co. 


titled to damages for the breach of his con- 
tract, payable pro rata out of the assets in 
the hands of the receiver. 

In treating of this subject, Cook on Cor- 
porations, 5 641, says: "It was formerly be- 
lieved to be the common law that upon the 
dissolution of a corporation all its assets 
belonged to the state, and all its debts were 
canceled, and that the creditors were not 
entitled to anything from the assets. This 
remarkable theory has been stated and re- 
stated in text-books and decisions of the 
courts for over one hundred years. It is 
found in Blackstone's Commentaries and In 
the old works of Kyd on Corporations and 
Grant on Corporations. The courts, however, 
while upholding the rule theoretically, have 
quite uniformly refused to apply such a 

doctrine, and have invented various theo- 
ries, fictions, and arguments for avoiding 
this supposed doctrine of the common law. 
Finally, in 1899, an English court denied 
that the common law ever countenanced 
such confiscation, and showed that in the 
seventeenth and eighteenth centuries many 
corporations were dissolved, and that in not 
a single case was any such doctrine applied. 
It again may be said that, although the 
common law has its reproaches, this is not 
one of them. The American courts have al- 
ways refused to follow the supposed com- 
mon-law rule on this subject." The same 
work says, at $ G42: "As already seen, the 
old rule that upon dissolution all debts by 
or to the corporation are rendered unen- 
forceable is no longer the law. It has been 

^Ived corporation constitutes a trust fund 
pledged to the payment of creditors and stock- 
holders. Broughton v. Pensacola, 93 U. S. 268, 
23 L. ed. 806. 

The property of an Insolvent corporation con- 
stitutes a trust fund pledged to the payment of 
all its debts equally and ratably. Butler v. 
Cockrill. 20 C. C. A. 122, 38 U. S. App. 702, 
73 Fed. 945. 

It is a very plain proposition that the stock 
and property of every corporation are to be re- 
carded as a trust fund for the payment of Its 
debts, and Its creditors have a lien and the 
right to priority of payment over any stock- 
holder. Bartlett v. Drew, 57 N. T. 587, Fol- 
lowed In Hastings v. Drew, 76 N. T. 9. 

In Nevltt V. Bank of Port Gibson. 6 Smedes 
•Jk M. 513, said Lumpkin, J., of the supreme 
court of Georgia, "nearly all the learning on 
this subject was exhausted, it having been twice 
argued with singular diligence and ability. And 
there, as everywhere else where the question 
has been raised, a majority of the court held 
that the property and debts due to and belong- 
ing to the bank was a trust fund subject to the 
cognizance and control of a court of equity for 
the benefit of creditors. Hlghtower v. Thorn- 
ton, 8 6a. 486, 52 Am. Dec. 412. 

The authorities are uniform that, in case a 
corporation Is insolvent. Its directors and offi- 
cers are trustees for Its creditors, and must 
manage Its property and assets with strict re- 
tard to their interests, and, if they themselves 
are creditors, they cannot secure any prefer- 
ence or advantage over other creditors while 
managing the Insolvent corporation. Haywood 
▼. Lincoln Lumber Co. 64 Wis. 639, 26 N. W. 

The assets of an Insolvent corporation are a 
rrnst fund for the benefit of creditors and stock- 
holders. Sands v. Klmbark, 27 N. Y. 148. 

While a corporation continues solvent, its 
<>iSc1als are agents or trustees for Its share- 
holders, bnt owe duty or obligation to none oth- 
ers. Bat the moment a corporation becomes In- 
^iTent its assets must be regarded as a trust 
f^nd for the payment of all its creditors, and 
The directors occupy the position of trustees, — 
t fiduciary relation which forbids them to take 
the trust property and apply It to the payment 
of corporate debts due to themselves. Beach v. 
Millpr. 130 111. 162, 17 Am. St. Rep. 291, 22 
N. E. 464. 

A corporation being insolvent and ceasing to 
€» L. R. A. 

prosecute the business for which It was creat- 
ed. Its assets become a trust fund In the hands 
of its directors, to be used by them In paying 
the corporate creditors. Slough v. Ponca Mill 
Co. 54 Neb. 500, 74 N. W. 868. 

The assets of a corporation are a trust fund 
for the payment of its debts, upon which cred- 
itors have an equitable Hen, as against both 
stockholders and all transferees, except those 
purchasing In good faith and for value. Cole v. 
Mlllertou Iron Co. 133 N. Y. 164, 28 Am. St. 
Rep. 615, 30 N. E. 847. 

Nothing Is better settled than that the assets 
of an Insolvent corporation are a fund for the 
payment of Its debtH. The holders of such prop- 
erty take It charged with a trust In favor of 
such creditors, which a court of equity will en- 
force. Sliamokin Valley & P. R. Co. v. Malone, 
85 Pa. 25. 

The settled law of Tennessee is declared to 
be that the assets of an Insolvent corporation 
become, from the date of Its assured Insolvency, 
a fixed trust fund for the equal pro rata distri- 
bution among Its creditors, unless otherwise 
provided by law or fixed by a valid contract. 
Tradesman Pub. Co. v. Knox vi He Car Wheel 
Co. 95 Tenn. 634, 31 L. R. A. 593, 49 Am. St. 
Rep. 943, 32 S. W. 1097. 

When an Insolvent corporation ceases to 
carry on Its business, and by a conveyance of 
all Its profjerty Incapacitates Itself from con- 
tinuing business, the law makes Its assets a 
trust fund for the benefit of all Its creditors 
without preference. Lyons-Thomas Hardware 
Co. V. Perry Stove Mfg. Co. 80 Tex. 143, 22 L. 
R. A. 802, 24 S. W. 16, 88 Tex. 468, 27 S. 
W. 100. 

In equity the capital stock of a corporation 
Is regarded as a trust fund for the payment of 
debts. The creditors have a lien upon it wiilch 
Is prior In point of right to any claim which 
the stockholders as such can have upon It ; and 
courts will be astute to detect and defeat any 
scheme or device which Is calculated to with- 
draw this fund, or In any way to place It beyond 
the reach of creditors. Crandall y. Lincoln, 52 
Conn. 73. 94, 52 Am. Rep. 560. 

This Is the settled law. Buck v. Ross, 68 
Conn. 29, 57 Am. St. Rep. 60, 35 Atl. 763. 

The capital, unpaid subscriptions to the capi- 
tal stock, and the liability of holders of paid- 
up stock to pay an additional amount equal to 
the par value of their stock, are all parts of a 
trust estate sacredly pledged for the seeurUy ot j 

Digitized by VjOOQIC 


West Vieqinia Supreme CJoubt of Appeals. 


held that the liability of a corporation to 
deliver goods according to an executory con- 
tract ceases upon such corporation passing 
into the hands of a receiver, where the re- 
ceivership was accompanied by the usual in- 
junction against the further transaction of 
business by the insolvent corporation. This 
conclusion is arrived at on the theory that 
the failure to perform was due to the opera- 
tion of law, and hence that no damages 
could be recovered for breach of the con- 
tract. The better rule, however, is that, 
even at common law, the obligations of a 
corporation do not cease by reason of its 
dissolution. The dissolution of a company 
does not put an end to its executory contract 
to employ a person, nor obligations which 
were created for a period longer than the 

duration of the corporate charter. Where 
a corporation is dissolved before a lease tak- 
en by it runs out, the lessor may hold its 
assets liable for the breach of contract. 
Where a receiver is appointed, he generally 
finds a number of executory contracts in 
force, — contracts of employment, or for 
rental of premises, or for purchases of ma- 
terial, etc. He tlien must decide whether 
he wishes to adopt any of these contracts as 
his own. If he does not adopt a particular 
contract, then that contractor has no pre- 
ferred claim against the receiver, as a part 
of the receiver's expenses or disbursements, 
but has merely a claim against the corpora- 
tion and its general assets, and this claim 
may be for past sums due or for breach of 
contract, or both. On the other hand, if the 

the creditors of a national banking association 
organized under the national banking acts. 
Stuart v. Hayden, 18 C. C. A. 618, 36 U. S. App. 
462, '72 Fed. 402. 

The law is that, when a corporation Is in- 
solvent. Its capital is a trust fund for the pay- 
ment of its debts. Hence, a director who is a 
creditor upon a pre-existing debt cannot take 
advantage of his superior information to secure 
his demand in preference to other creditors. 
Hill V. Pioneer Lumber Co. 113 N. C. 173, 21 
L. R. A. 560, 87 Am. St. Rep. 621, 18 S. E. 

The capital stock and profits of a dissolved 
corporation should be regarded as a trust 
fund for the payment of its debts and 
liabiJltlcs, and the stockholders are only en- 
titled to such surplus as remains after their 
payment. Dudley v* Price, 10 B. Mon. 84. 

When a state becomes the sole stockholder In 
a corporation chartered by it for trading pur- 
poses, and such corporation becomes insolvent, 
the state, upon taking the corporate property, 
does so as stockholder, and not as sovereign, 
and takes such property charged with a trust 
in favor of the corporate creditors. Curran v. 
Arkansas. 15 How. 304, 14 L. ed. 705. 

The obligations of Its contracts survive the 
dissolution of a corporation, and its creditors 
may enforce their claims against any property 
belonging to the corporation which has not 
passed to bona fide purchasers, but IS still held 
in trust for the company or its stockholders at 
the time of Its dissolution, in any mode per- 
mitted by law. Mumma v. Potomac Co. 8 Pet. 
286, 8 L. ed. 945. 

Its debts survive the dissolution of a corpo- 
ration, and creditors may enforce their claims 
against any property belonging to the corpora- 
tion which has not passed Into the hands of a 
bona fide purchaser ; for such property will be 
held affected with a trust primarily for the 
creditors of the company. Howe v. Robinson, 
20 Fla. 352. 

By the old common law a dissolution of a 
corporation extinguished its debts; but in such 
cases courts of equity consider the property and 
effects a trust fund for the payment of credit- 
ors, and shareholders into whosesoever hands 
they come subject to such a trust. Powell v. 
North Missouri R. Co. 42 Mo. 63. 

But such statements require great modifica- 

The property of a corporation is only a trust 
09 L. R. A. 

fund for the payment of its debts In the sense 
that, when the corporation is lawfully dis- 
solved, and all its business wound up, or when 
it Is insolvent, all its creditors are entitled, tn 
equity, to have their debts paid out of the cor- 
porate property before any distribution thereof 
among the stockholders. Wabash, St. L. & I*. 
R. Co. V. Ham. 114 U. S. 587, 29 L. ed. 235, 5 
Sup. Ct. Rep. 1081. 

That the property of an Insolvent corpora- 
tion is a trust fund for the benefit of its cred- 
itors is true only in the sense that, after a 
court of equtiy has duly acquired, by virtue of 
some independent general equitable principle. 
Jurisdiction to administer corporate assets, it 
will administer them for the benefit of all cred- 
itors equally. O'Bear Jewelry Co. ▼. Volfer, 
106 Ala. 205, 28 L. R. A. 707, 54 Am. St. Rep. 
31, 17 Bo. 525. 

The cases of Gibson v. Trowbridge Fami- 
tnre Co. 96 Ala. 357, 11 So. 365; Goodyear 
Rubber Co. v. George D. Scott Co. 96 Ala. 439. 
11 So. 370, and Corey v. Wadsworth, 99 Ala. 
68. 23 L. R. A. 618, 42 Am. St. Rep. 29, 11 So. 
350, In so far as they decided anything beyond 
the point that the transfer by the officers of 
a corporation of corporate assets to pay corpo- 
rate debts upon which such officers were second- 
arily liable constituted, as respected other cor- 
porate creditors, a fraudulent preference, and 
was therefore, as to such creditors, void, were 
overruled by the decision in 0*Bear Jewelry Co. 
V. Volfer, 106 Ala. 205, 28 L. R. A. 707, 54 
Am. St. Rep. 31, 17 So. 525 ; and the proposi- 
tion that the assets of a corporation become a 
trust fund for the benefit of creditors, and are 
beyond the power of disposition or control of 
the governing directors whenever and as soon 
as the cori)oratlon becomes insolvent; and that 
mere corporate insolvency gives a court of 
equity Jurisdiction to administer the assets as 
trust property. — was there distinctly negatived. 

The general doctrine that the property of a 
corporation is a trust fund for the payment of 
its debts only means that the property mnst be 
first appropriated to the payment of corporate 
debts before any portion of it can be distributed 
to the stockholders. It does not mean that the 
property is so affected by the Indebtness that 
it cannot be sold, transferred, or mortgaged in 
good faith and for value, except subject to the 
liability of being appropriated to pay that In- 
debtedness. Fogg V. Blair, 133 U. a 634, 83 
L. ed. 721, 10 Sup. Ct Rep. 338. 

Digitized by VjOOQIC 


Gbiffith v. Blaokwateb B. & L. Co. 


receiver doc* adopt the contract, then, as 
to sums becoming due before such adoption, 
the contractor is a general creditor only, 
but, as to sums becoming due after such 
adoption, they are a part of the receiver's 
expenses or disbursements, and must be 
paid as such. The law is clear that a re- 
ceiver may refuse to carry out an executory 
contract of the corporation. A receiver has 
no power, however, to cancel a lease, except 
as to his own liability." 

Upon this question, the language of 8 59 
of chapter 63 of the Code of 1899 has im- 
portant bearing. It says the property and 
assets of a dissolved corporation, whatever 
the cause or manner of its dissolution may 
be. shall be subject to the payment of the 
liabilities of the corporation. This language 

is much broader than that of the New Jer- 
sey statute, which only directs the payment 
of the debts of the corporation out of its 
assets, and under which the courts of that 
state give damages on executory coi\tracts 
rendered impossible of performance by rea- 
son of dissolution. As has been stated, the 
contract is not invalid, everything done un- 
der it is in part performance thereof, and 
the dissolution of the corporation cannot 
have the effect of rescission or rendering it 
void ah initio , and. undoing anything that 
has been performed under it. Dissolution, 
even upon the theory adopted by those 
courts which adhere to the doctrine of Peo- 
ple v. Globe Mut, L. Ins. Co. 91 N. Y. 174, 
is simply a contingency in view of which 
the contract was made, and which it was 

The eenerai principle is well settled that the 
property of a private corporation Is not charged 
oj law with any direct trust or specific lien in 
fSTor of fir^neral creditors, and such a corpora- 
tion, so long as it is in the active exercise of its 
functions, may exercise as full dominion and 
control over its property as an individual. Mc- 
riaren v. Union Roller Mills & Elevator Co. 95 
Tenn. 606, 35 S. W. 88. 

It is not strictly accurate to refer to the as- 
■ets of an insolvent corporation as a trust fund, 
and to Ita officers as trustees; at most, under 
lome circumstances, the assets are a quasi trust 
fund, and the directors quasi trustees. Gott- 
lieb V. Miller, 154 111. 44, 39 N. E. 992. 

In the absence of countervailing legislation, 
an insolvent corporation may prefer certain of 
Us creditors subject to the same restrictions 
tliat apply to individual debtors, which it could 
not do if Its property and assets were held in 
truRt for all its creditors equally, as soon as in- 
solvency supervened. Ihid. 

There Is an extended examtaiation of the 
tmst-fnnd doctrine, commonly called the Ameri- 
can doctrine. In Hospes v. Northwestern Mfg. 
k Car Co. 48 Minn. 174, 16 L. R. A. 470, 31 
Am. St. Rep. 637, 60 N. W. 1117, leading to the 
conclusion that there is no distinction between 
tlie absolate and unconditional control of his 
property and assets which belongs to an indi- 
vidual and that belonging to a corporation. 
The stockholders of a corporation cannot appro- 
priate the corporate property without satisfy- 
ing the creditors, not because it is held in trust 
for creditors, but because such appropriation is 
a fraud upon them. If equity is called upon to 
distribute corporate assets In the case of 
insolvency or dissolution, creditors will be 
treated equally, and preferred to shareholders, 
who will get what is left pro rata to their 

The American or trust-fund doctrine is thus 
explained by the United States Supreme Court : 
A corporation is a distinct entity. Its affairs 
necMsarily are managed by officers and agents, 
bat it is as distinct a being as an individual is, 
and is entitled to hold property as absolutely as 
an individual can. Its estate, its interest, its 
possession, are the same. When a corporation 
becomes insolvent it is so far civilly dead that 
its property may be administered as a trust 
fund for the benefit of its creditors and stock- 
holdera A court of equity will then make those 
funds trust funds which in other circumstances 
TO L. R. A. 

are as much the absolute property of the corpor- 
ation as any man's property Is his. Graham v. 
La Crosse & M. R. Co. 102 U. 8. 148, 26 L. ed. 

That is to say that, when a court of equity 
takes into Its possession the assets of an in- 
solvent corporation, it will administer them on 
the theory that in equity they belong to the 
creditors and stockholders, rather than to the 
corporation Itself. The idea underlies all the 
expressions In reference to "trust** in connection 
with corporate property, that the corporation 
Is an entity distinct from its stockholders as 
from its creditors. Solvent it holds its prop- 
erty as any individual holds his, free from the 
touch of a creditor who has acquired no lien; 
free, also, from the touch of a stockholder, who, 
though equitably interested in, has no legal 
right to the property. Becoming Insolvent, the 
equitable interest of the stockholders In the 
property, together with their conditional liabil- 
ity to the creditors, places the property in a 
condlilon « f trust, first for the creditors, and 
then for the stockholders. Whatever of trust 
there is arises from the peculiar and diverse 
equitable rights of the stockholders as against 
the corporation in its property, and their con- 
ditional liability to its creditors. It is rather 
a trust In the administration of the assets after 
possession by a court of equity, then a trust at- 
taching to the property as such for the direct 
benefit of either creditor or stockholder. Hol- 
lins v. Urierfleld Coal & I. Co. 150 U. S. 371, 
37 L. ed. 1113, 14 Sup. Ct. Rep. 127. 

The question of trust when the legal right 
to the estate In lands of a dissolved corporation 
is claimed by the grantor in reversion under 
the common-law rule cannot be considered to 
prevent the legal results flowing from that rule 
in a court of law. A court of law is powerless 
to divest a legal estate In order to enforce an 
equity. In equity the rights of creditors and 
stockholders, if any there are, of a defunct cor- 
poration, will be enforced, whenever properly 
brought before a court administering equity. 
To enforce such rights equity will follow the 
legal estate in the hands of the grantor after 
he has recovered it at law. St. Philip's Church 
V. Zion Presby. Church, 23 8. C. 297. 

IX. The elfectt of corporate dUaolMtion accord- 
ing to modern viewa. 
a. Civil death. 
An act of the legislature declaring the char- 

Digitized by 



West Virginia Supbeme CJoubt of Appeals. 


understood should, upon its happening, end 
the contract on a date earlier than that 
specified. Under that doctrine, full com- 
pensation is paid for so much of the con- 
tract as has been performed at the date of 
thf dissolution, and profits which would 
have arisen from the performance of the 
part remaining unexecuted are denied and 
refused. It is difficult to conceive or ex- 
press any reason why, upon the same prin- 
ciple, money expended in the performance of 
a contract which is not one of mere agency 
or service should not be recovered. It is 
laid out and expended upon the faith of the 
contract, at a time when that contract is 
recognized by the parties as valid and bind- 
ing. If necessarily expended, as it must 
be if recoverable in any sense, it is of the 

very essence of performance, an act of per- 
formance, a thing without which there could 
be no performance. Can the dissolution of 
the corporation have the effect of undoing 
that which was binding at the time it was 
done, and of releasing obligations fixed and 
unalterable by the parties themselves? it 
cannot be done upon any theory except that 
which was supposed once to have been a 
principle of the common law, under which 
the dissolution of a corporation canceled all 
its obligations, released it of its debts, vest- 
ed the title to its personal assets in the 
king, and returned its real estate to the 
donors, — ^a doctrine which Cook well says 
has been declared by the English court never 
to have been a part of the common law. and 
which has never been adopted, approved. 

ter of a domestic corporation vacated and an- 
nulled, and lis powers and rights elsewhere 
vested, effects such corporation's legal death. 
Mumma y. Potomac Co. 8 Pet. 286, 8 L. ed. 

When the charter of a corporation is taken 
away or annulled by an act of the legislature 
the corporation is extinct. Sturges v. Vander- 
hilt, 73 N. T. 384. 

The dissolution of a corporation by act of 
the legislature deprives it of its corporate ex- 
istenro. Merrill v. Suffolk Bank, 31 Me. 67, 50 
Am. Dec. 649. 

b. Upon litigation. 

Actions, suits, and other legal proceedings 
pending against a corporation abate by its 
dissohition. Walters v. Western & A. R. Co. 
69 Fed. 679. 

After the dissolution of a corporation, the 
power to proceed judicially against it in an ac- 
tion is wholly divested, except as specially au- 
thorized by statute. Combes v. Keyes (Combes 
V. Milwaukee & M. R. Co.) 89 Wis. 297, 27 L. 
R. A. 369, 46 Am. St. Rep. 839, 62 N. W. 89. 

The dissolution of a corporation ends an ac- 
tion pending against it, and all subsequent pro- 
ceedings therein are void, unless some statute 
providing for a continuance exists and is fol- 
lowed. McCulloch V. Norwood, 58 N. T. 562 ; 
Sturges V. Vanderbilt, 73 N. Y. 384. 

When a corporate charter Is expressly sub- 
ject to repeal by act of the legislature, and con- 
tains no provision for the prosecution of suits 
against the corporation in case of its dissolu- 
tion, and no other statute provides for such 
prosecution, an action at law against such cor- 
poration abates upon the repeal of its charter. 
Read V. Frankfort Bank, 23 Me. 318. 

When the charter of a company expires by 
limitation, its power to hold property as a cor- 
poration, and to prosecute and defend suits and 
actions, is gone; and, whether its property re- 
verts to the donors, or the stockholders, or to 
the commonwealth as derelict, there is no doubt 
that it no longer remains in the corporation as 
such ; hence suits pending against it abate at 
the instant its existence terminates. Rider v. 
Nelson & A. Union Factory, 7 Leigh, 154. 30 
Am. Dec. 495. 

To the same effect is May v. State Bank, 2 
Rob. (Va.) 50, 40 Am. Dec. 726. 

The extinction of a corporation is a substan- 
69 L. K. A. 

tial ijnpediment to the prosecution of a credit- 
or's claim by legal remedies before ordinary tri- 
bunals, and warrants the Interposition of a 
court of equity. Shamokin Valley & P. R. Co. 
V. Maloue, 85 Pa. 25. 

No legal judgment can be rendered against a 
corporation which has been dissolved by an act 
of the legislature. Merrill v. Suffolk Bank, 31 
Me. 57, 50 Am. Dec. 349. 

A scire facias cannot be maintained, nor can 
a judgment be had thereon, against a dead cor- 
poration, any more than against a dead man. 
Mumma v. Potomac Co. 8 Pet. 286, 8 L. ed. 947. 

It« is neither to be denied, nor questioned, 
but that, by the common law, a corporation 
which has been dissolved absolutely for all pur- 
poses whatsoever stands u|)on the same foot- 
ing as a dead person with respect of any power 
in the courts to enter a valid judgment against 
it. In the absence of any statute upon the 
subject, the manifest logic and reason of the 
thing are the same in both cases. Life Asso. of 
America v. Fassett, 102 111. 315. 

The dissolution of a corporation abates all 
suits pending against It at the time such dis 
solution takes place, and thereafter no valid 
judgment in u pending action can be taken 
against the corporation. Marlon Phosphate Co. 
V. Perry, 38 L. R. A. 252, 20 C. C. A. 490, 41 D. 
S. App. 14, 74 Fed. 425. 

When, in an action by a foreign corporation 
upon a promissory note, besides proof of the 
qote and iucorporation. It is shown that, by 
order in chancery in the home state, a receiver 
of the corporate property has been appointed 
upon a petition alleging the Insolvency of the 
company, and that it had suspended business 
for want of funds ; and a statute of the foreign 
state providing for the appointment of a re- 
ceiver when any corporation shall be dissolved 
is the only law proved, the inference is that 
the company no longer has a corporate exist- 
ence, and the action must be dismissed 
Merchants' Loan & T. Co. v. Clair, 107 N. Y. 
063, 14 N. E. 414. 

But statutes providing for the prosecution to 
judgment of pending suits, and action against 
dissolved corporations, affect only the domestic 
companies. Suits against foreign corporations 
abate by their dissolution notwithstanding such 
statutes. Marion Phosphate Co. v. Perry, 33 
L. R. A. 252, 20 C. C. A. 490, 41 U. 8. App. 14, 
74 Fed. 425. 

And the dissolution of a corporation after a 

Digitized by 



Griffith v. Blackwateb B. & L. Co. 


and recognized in America. There is cer- 
tainly no room for any such prikiciple under 
the statutes of this state creating, regu- 
lating, and providing for the dissolution of 
corporations and of the distribution of their 

Nor do the principles of law, constituting 
the other ground for discontinuing the per- 
formance of the contract, preclude recovery 
for outlay and expenses in part performance 
thereof. In its opinion, the court exon- 
erates Thompson from any actual fraud in 
the procurement of his contract, although 
holding that his being a director of the cor- 
poration gave the stockholders the right to 
avoid it, and held that he is entitled to be 
compensated for labor and money necessa- 
rily expended by him in part performance 

thereof. The rule on this subject is stated 
in 10 Cyc. Law & Proc. pp. 794, 795, as fol- 
lows: "Birectors are not disabled from 
entering into contracts with the corporation, 
provided there be enough directors on the 
other side of the contract to make a 
quorum, and provided the contract is open, 
fair, and honest. The rule under consid- 
eration prohibits a director from acquiring 
secret profits through contracts made with 
or for the corporation, but does not prohibit 
contracts with the corporation, where there 
has been a full and fair disclosure of his in- 
terest in the contract. For example, it has 
been held that the shareholders and direct- 
ors of a manufacturing corporation, who, 
with their own money and on their own 
credit and risk, erect new works, may make 

trial against it has been had In an action npon 
contract and the submission of the cause to 
the court for decision has been made does not 
abate the action, but judgment may be entered 
nunc pro tuno. Shakman v. United States 
Credit System Co. 92 Wis. 366, 32 L. R. A. 383, 
53 Am. 8t. Rep. 920. 66 N. W. 528. 

Often a state statute preserves for a longer 
or shorter period after its dissolution the right 
of a corporation to prosecute and defend suits. 
Tuskaloosa Scientific & Art Asso. v. Green, 48 
.\la. 346 ; Bowe v. Minnesota Milk Co. 44 Minn. 
460, 47 N. W. 151 ; Blake v. Portsmouth ft C. 
&. Co. 39 N. H. 435. 

e Upon property and aaacta. 

The ancient doctrine that, npon the repeal of 
a private corporation, its debts were extin- 
guished, and its real property reverted to its 
grantors, and its personal property vested In 
the state, has been so far modified by modem 
adjudications that a court of equity will now 
lay hold of the property of a dissolved corpora- 
tion and administer it for the benefit of its cred- 
itors and stockholders. Broughton v. Pensa- 
<ola, 93 U. S. 266, 23 L. ed. 896. 

The common-law doctrine respecting cor- 
porate property and assets upon dissolution 
has, so far as 'the modern business and com- 
mercial corporation Is concerned, become prac- 
tically obsolete. Its unjust operation upon the 
rights of creditors and stockholders has been 
generally prevented by statute. And In equity 
the assets of sach a corporation, which repre- 
sent, not the donations of a prince or Its pious 
founder, but contributions of stockholders, are 
held. Independent of statute, to constitute a 
trust fund. Into whosesoever hands they may 
cume, for the benefit of creditors and stock- 
holders. Wallamet Falls Canal & Lock Co. v. 
Kittridge, 5 Sawy. 44, Fed. Cas. No. 17,105. 

The rights and interests of the creditors and 
stockholders of a corporation are neither ex- 
tinguished nor seriously Impaired by Its dlsso- 
lutiun. If the charters or statutes for winding 
up the business of a trading or moneyed cor- 
poration do not secure the rights and interests 
of its creditors and stockholders, equity regards 
its capital property and debts as trust funds 
pledged to pay the dues of creditors and stock- 
holders, and has ample power to reach and ap- 
ply them to the purposes of such trust. Taylor 
T. Holmes, 14 Fed. 498. 
^9 L. R. A. 

A law distributing the property of an insol- 
vent trading or banking corporation among its 
stockholders, or seizing it to the use of the 
state, would as clearly impair the obligation of 
its contracts as a law giving to the heirs the 
effects of a deceased natural person to the ex- 
clusion of his creditors would impair the ob- 
ligation of his contracts. Curran v. Arkansas, 
15 How. 304, 14 L. ed. 705. 

The legislature. If the power to do so has 
been reserved, may repeal the charter of a cor- 
poration without thereby impairing the obliga- 
tion of any contract into which the corporation 
has entered ; but it cannot establish rules in 
regard to the mauagement and disposition of 
the corporate assets so that the avails shall be 
diverted from, or divided unfairly and unequal- 
ly among, the corporate creditors, thus impair- 
ing the obligations of contracts : nor so that 
that portion of the avails which belongs to the 
stockholders shall be sequestered and diverted 
from the owners, and thus injure vested rights. 
I^throp V. Stedman, 13 Biatchf. 134, Fed. Cas 
No. 8,519. 

Upon the civil death of a manufacturing cor- 
poration by the expiration of its charter, real 
estate conveyed to it In fee for a money con 
sideratlon does not revert to the grantors, but 
the title thereto vests In a receiver of its prop- 
erty and effects for the benefit of creditors and 
stockholders. Owen v. Smith, 31 Barb. 641. 

The rule of the common law that real estate 
held by a corporation at the time of Its dissolu- 
tion reverts to the grantor does not, with re- 
spect of stock corporations, prevail In New 
York, a statute of which (1 Rev. Stat. 248; 1 
Rev. Stat. 600, 81 9, 10) provides that, upon 
the dissolution of a corporation, the directors 
or managers at the time become trustees of its 
property to pay its debts and divide its prop- 
erty among its stockholders, and the provisions 
apply as well to the real as to the personal 
property ; consequently, where land is con- 
veyed absolutely to a corporation having stock- 
holders no reversion, or possibility of reversion, 
remains to the grantor. Heath v. Barmore, 50 
N. Y. 302. 

The modern doctrine now held In North Caro- 
lina In spite of earlier decisions to the contrary 
is that, npon the dissolution of a corporation, 
the title to real property does not revert to the 
original grantors or their heirs, and the personal 
estate does not escheat to the state ; nor are the 
debts due to and fmm the corporation extin- 

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a profit thereon upon the sale to such cor- 
poration of such works, and are not account- 
able therefor, especially where the transac- 
tion is advantageous to the corporation, has 
been ratified by a unanimous vote at a 
shareholders' meeting, and an opportunity 
is given the shareholders to rescind, with 
full knowledge of all the facts, and where 
opportunity was also given to the corpora- 
tion to erect such works before their con- 
struction was undertaken by the directors. 
Such contracts will be scrutinized in equity, 
and will be set aside if not made in the 
utmost fairness and good faith. So far 
from bt'iiig void ah initiOy such contracts are 
good as against third persons, who are not 
in a position to set up the rights of the cor- 
poration by way of defense against them. 

The rule is specially applicable where, al- 
though the director received a profit out of 
the transaction, the contract was made in 
good faith, was not improvident, had been 
performed, and the corporation had received 
the benefit of its performance, under whi<^ 
circumstances it has been held that it could 
not be undone by a receiver subsequently 
appointed for the corporation." On the 
same subject, Clark & M. on Private Cor- 
porations, at S 761c, pp. 2304, 2305, says: 
"This doctrine is not recognized in all ju- 
risdictions, nor in most jurisdictions. On 
the contrary, most of the courts have held 
tliat a director or other ofiicer of a corpora- 
tion is not precluded from lending it money 
and taking a mortgage or other security, 
selling it property, or purchasing property 

guished. Wilson v. Leary, 120 N. C. 90. 38 L. 
R. A. 240. 58 Am. St. Rep. 778. 26 S. E. 630. 

It seems to be otherwise with respect of the 
real estate of public-service corporations. 

Although an act Incorporating a turnpike 
company vests It, upon complying with pre- 
scribed conditions, with title to the land over 
which the road passes, nevertheless such title 
must be considered as vested solely for the pur- 
poses of a road, and when such road Is aban- 
doned the land reverts to the original owners. 
Hooker v. Utica & M. Tump. Road Co. 12 Wend. 

A turnpike corporation loses title to Its lands 
by reversion back to its grantor or his heirs 
uiion its dissolution, when there is no provision 
In its charter, or some other statute, to avert 
such a consequence. Bingham v. Weiderwax, 1 
N. Y. 509. 

Especially does this appear to be the case 
when lands have been taken by condemnation 
under the power ot eminent domam. 

See the cases in point, cited in the note on 
The nature of a railroad, whether real or per- 
gonal property, appended to the case of Webster 
Lumber Co. v. Keystone Lumber & Mln. Co. 66 
L. R. A. 38. 

But this class of cases constitutes an excep- 
tion to the prevalent rule. 

The common- law doctrine that, upon dissolu- 
tion, the property of a corporation reverted to 
the Crown, has never been recognized In the 
United States. Bolles v. Crescent Drug & 
Chemical Co. 53 N. J. Eq. 614. 32 Atl. 1061. 

The dissolution of a corporation by the for- 
feiture of Its charter, while it disables the com- 
pany from continuing its business, does not pre- 
vent it from closing out its alTalrs and dispos- 
ing of its property In the Interest of creditors 
and stockholders, independent of statute; and 
a fortiori is it authorized to liquidate thus 
when a statute of the state which created it so 
empowers. Boyd v. Ilanklnson, 34 C. C. A. 197, 
63 U. 8. App. 678, 92 Fed. 49. 

Although contrary to the doctrine asserted 
in most elementary works, and in the case of 
Bank of Vincennes v. State. 1 Blackf. 267, 12 
Am. Doc. 234, the doctrine that, on the dissolu- 
tion of a once legal corporation, Its personal 
and real property become assets for the pay- 
ment of its debts and distribution among stock- 
holders, is right. State ew rcl. Brown v. Bailey. 
UJ Ind. 46. 79 Am. Dec. 405. 

The assets of an insolvent banking corpora- 
69 L. R. A, 

tlon are a fund for the payment of its debts. 
Curran v. Arkansas. 15 How. 304, 14 L. ed. 705. 

When an act of Incorporation Is repealed 
equity takes charge of all the property and ef- 
fects whlcli survive the dissolution, and admin- 
isters them as a trust fund primarily for the 
benefit of the creditors. If anything is left it 
goes to the stockholders. Shields v. Ohio, 95 
U. S. 319, 24 L. ed. 357. 

When a corporation Is virtually dead, al- 
though its term of existence limited by law has 
not expired, and It has property and assets 
which cannot be used In carrying out the pur- 
posen of the corporation, a court of equity has 
jurisdiction to distribute such property and as- 
sets among its members upon such basis as Is 
just. Stamm v. Northwestern Mut. Ben. Asso. 
65 Mich. 317, 32 N. W. 710. 

The dissolution of a corporation cannot de- 
prive Its creditors or stockholders of their 
rights in its property ; and. If the common law 
affords them no adequate remedy, they may ob- 
tain relief tn equity. Folger v. Columbian Ins. 
Co. 09 Mass. 267. »« Am. IVc. 747. 

The property of a dissolved corporation is lia- 
ble only in equity for the claims of creditors. 
Smith V. Huckabee, 53 Ala. 195. 

The property of a dissolved corporation Is 
subject to a trust In favor of creditors. Mont- 
gomery & W. P. R. Co. V. Branch. 59 Ala. 153 ; 
Nelson v. Hubbard, 96 Ala. 244. 17 L. R. A. 
877. 11 So. 430. 

A court which never allows a trust to fall for 
want of a trustee will see to the execution of 
the trust charged upon the assets of an In- 
solveut corporation for the payment of Its cred- 
itors, although by the dissolution of the cor- 
poration the legal title to Its property has been 
changed. Shamokln Valley & P. R. Co. v. Ma- 
lone, 85 Pa. 25. 

In equity a corporation Is regarded as a tras- 
tee holding the corporate property for the bene- 
fit of its creditors and shareholders, which, 
upon Its dissolution or civil death, a court of 
chancery will lay hold of as a trust fund and 
distribute for their benefit. Life Asso. ot 
America v. Fassett, 102 III. 315. 

•When a corporation Is declared insolvent it 
is Incapacitated from doing any new business. 
but It still survives to discharge Its liabilities. 
and, when that is accomplished, to make final 
dlKtrlbution of its remaining assets. Chemical 
Nat. Bank v. Hartford Deposit Co. 161 U. 8. 1, 
40 L. ed. 595, 16 Sup. Ct. Rep. 489. 

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Gbiitith v. Blackwateb B. & L. Co. 


from it, or otheifwise contracting or dealing 
with it, if for the purpose of the transac- 
tion he does not represent the corporation 
at all, but it is adequately represented by its 
either directors or officers, and the transac- 
tion is entirely free from fraud. And. by 
the weight of authority, a transaction be- 
tween a director or other oflicer and the cor- 
poration, or a transaction in which a di- 
rector or other officer is interested, is valid, 
if entirely free from fraud, even when he 
has acted as a member of the board in au- 
thorizing the same, if tliere were enough of 
disinterested votes in favor of the transac- 
tion to render his vote unnecessary.'' 

Mr. Justice Miller, speaking for the court 
in Twin-Lick Oil Co, v. Marbury, 91 U. S. 
587, 23 L. ed. 328, said: "So, when the 

lender is a director, charged, with others, 
with the control and management of the af- 
fairs of the corporation, representing in thi» 
regard the aggregated interest of all the 
stockholders, his obligation, if he becomes a 
party to a contract with the company, to 
candor and fair dealing, is Increased in the 
precise degree that his representative char- 
acter has given him power and control de- 
rived from the confidence reposed in him by 
the stockholders who appointed him their 
agent. If he should be a sole director, or 
one of a smaller number vested with certain 
powers, this obligation would be still strong- 
er, and his acts subject to more severe 
scrutiny, and their validity determined by 
more rigid principles of morality, and free- 
dom from motives of selfishness. All this 

And, although a Judicial decree may, in 
terms, declare a corporation dissolved, yet, if 
it also authorizes salts to be brought and de- 
fended in the corporate name, and conveyance 
of Its property and effects to be made, for the 
porpose of winding up its business, the corpora- 
tion cannot be said to be absolutely extln- 
sniished for all purposes, but. on the contrary, 
to be expresHly kept alive so far as necessary to 
4'u!l(Nt and apply Its assets to the payment of 
its debts. Ufe Asso. of America v. Fassett, 
lOJ 111. 315. 

In the state of New York the mle of the 
f-ommou law In relation to the effect of the dis- 
solution of a corporation upon its property and 
debts has never been applied to business corpo- 
rations, and as early as 1811 an act was passed 
making the directors of such a corporation trus- 
tees to settle Its affairs and divide the money 
among the stockholders after paying the debts 
owing at the time of dissolution. Shayne v. 
Evening Post I*ub. Co. 168 N. Y. 70, 65 L. R. 
A. 777, 85 Am. St. Rep. 654, 61 N. B. 111. 

When a corporation is disMOlved by a repeal 
of its charter, says Black. .1., of the Pennsyi- 
vanla aapreme court, the legislature may ap- 
point, or authorize the appointment of, a per- 
son to take charge of its assets for the use of 
its creditors and stockholders, and this Is no 
more confiscation than It is conflscation to ap- 
point an administrator for a 'dead man. But 
money, goods, or land which are or were the 
private property of a defunct corporation can- 
not be arbitrarily seized for the use of the state 
with out compensation pai'd or provided for. 
Erie & N. E. R. Co. v. Casey, 26 Pa. 287. 

When the effects of a dissolution of a cor- 
poration are said to be the reversion of its 
lands to those who had granted them, and the 
extinguishment of the debts due either to or 
from the corporate body so that they are not a 
charge or a benefit to the members, the dictum 
is supported by the statutes and Judgments fol- 
lowing the suppression of the military and re- 
ligious orders or the cases of dissolution of 
monasteries and other ecclesiastical foundations 
upon the death of all their members, or of dona- 
tions to public bodies, such as mtmlcipal cor- 
porations. But such cases are not analogous to 
thoue of trading corporations. These hold their 
property In trust, first for their creditors, and 
next, when their debts are paid, for those who 
contributed In capital to the corporate enter- 
69 L. R. A. 

prise. Bacon v. Robertson, 18 How. 480, 15 
L. ed. 499. 

d. Upon debts and credits. 

There have been some decisions, notably In 
Delaware and Mississippi, upholding the com- 
mon-law doctrine that dissolution extinguishes 
debts, whether owing to or due from the cor- 
poration ; while elsewhere the existence of the 
rule has been admitted, but for one or another 
reason It has been found not to apply. 

When, by the expiration of the period limited 
in Its charter for its corporate existence, a 
bank Is dissolved, the dissolution is absolute, 
and u debt owing to it at the time Is extin- 
guished. Commercial Bank v. Liockwood, 2 
llarr. (Del.) 8. 

The case of Commercial Bank v. LiOckwood, 2 
Harr. (Del.) 8, was examined, criticized, and 
disapproved In Moultrie v. Smiley, 16 Ga. 289. 

The current of decisions has flowed in such a 
channel that It may be regarded as settled doc- 
trine that, on the dissoltition of a banking cor- 
poration, the debts due to and from it are ex- 
tinguished, not by any implied condition in the 
contracts, but from necessity, because there Is 
no person In whose favor, or against whom, 
they can be enforced. Commercial Bank v. 
(niambers. 8 Smodos & M. 9. 

It Is settled doctrine, upon common-law prin- 
ciples, independent of any statute declaring a 
different rule, that, upon the dissolution of a 
corporation, the debts due to and from it are 
extinguished. Port, Gibson v. Moore, 18 Smedea 
& M. 157. 

It is the doctrine of the common-law that up- 
on the dissolution of a corporation the debts 
due to and from it are extinguished. Ilightower 
V. Thornton, 8 Ga. 486, 62 Am. Dec. 412. 

That the dolils of a corporation either to or 
from It are extinguished by Its dissolution is a 
proposition which nobody denies. Thornton v. 
I^ane, 11 Ga. 459. 

An act of the legislature renewing the cor- 
porate powers and franchises of a banking cor- 
poration after tho expiration of Its charter 
does not revive a debt owing to It when the orig- 
inal charter expired. Commercial Bank v. Lock- 
wood, 2 Harr. (Del.) 8. 

The granting of a new charter to a dissolved 
corporation does not revive a debt extinguished 
by the dissolution. Port Gibson v. Moore, 13 
Smedes & M. 157. 

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West Vikqinia Suprbme Court of Appeals. 


falls far short, however, of holding that no 
such contract can be made which "will be 
valid, and we entertain no doubt that the 
defendant in this case could make a loan of 
money to the company; and as we have al- 
ready said that the evidence shows it to 
have been an honest transaction for the 
benefit of the corporation and its sharehold- 
ers, both in the rate of interest and in the 
security taken, we think it was valid orig- 
inally, whether liable to be avoided after- 
wards by the company or not." 

In LeaveniDorth County v. Chicago, R. I, 
rf P. R. Co. 134 U. S. 688, 33 L. ed. 1064, 
10 Sup. Ct. Rep. 708, the court refused to set 
aside the foreclosure of a mortgage on a 
railroad and the sale of the road made un- 
der a decree, on the ground of its having 

been procured by parties sustain in j? a trust 
relation to the property, where there was no- 
proof of collusion or fraud in fact. In Ft. 
Payne Rolling Mill v. Hill, 174 Mass. 224, 
54 N. E. 532, the court said of a contract 
made between a corporation and one of its- 
directors: "It was not illegal or void be- 
cause made with a director, the only person 
likely to be willing to make it. In this 
country it very generally has been deemed 
impracticable to adopt a rule which abso- 
lutely prohibits such contracts." The same 
doctrine is announced in the case of Oay r. 
Fair, 176 Mass. 521, 56 N. E. 708. In the 
late case of United States Steel Corp. v. 
Hodge, 64 N. J. Eq. 807, 60 L, R. A. 742, 
54 Atl. 1, the law on this subject is stated 
by the court of last resort in New Jersey 

The general current of authorities, especially 
the more recent ones, is altogether adverse to 
this doctrine. 

A corporation never can dissolve itself so as 
to defeat any of the just rights of its creditors. 
Brown v. Union Ins. Co. 3 La. Ann. 177. 

It Is a well-settled rule that the dissolution 
of a corporation by liquidation or any other 
act of Its stockholders, or by limitation, or in 
any mode save legislative repeal or Judicial de- 
cree, does not affect the rights of creditors, 
and that, as to them and their right to enforce 
their claims or determine their validity by suit 
or otherwise, the corporation will be deemed 
to continue in existence. National Pahquiuque 
Bank v. First Nat. Bank, 36 Conn. 325, 4 Am. 
Rep. 80. 

The common-law doctrine that a dissolntion 
of a corporation extinguishes its debts does not 
prevail in the United States. Howe v. Robin- 
son, 20 Fla. 852. 

The obligations of a corporation survive its 
dissolution, and are enforceable upon its as- 
sets. Whiting V. Sheboygan & F. du L. R. Co. 
25 Wis. 207, 3 Am. Rep. 47. 

After a banking corporation has been dis- 
solved and its franchise forfeited debts owing 
to it still exist, and can be recovered by a trus- 
tee for distribution to creditors and stockhold- 
ers. Bacon v. Robertson, 18 How. 480, 15 L. 
ed. 499 ; Lum v. Robertson, 6 Wall. 277, 18 L. 
ed. 743. 

A delinquent debtor of a Dissolved corpora- 
tion, sued upon his obligation by a trustee of 
the corporate property, cannot plead the extin- 
guishment of his debt by the forfeiture of the 
corporate franchise. Lam v. Robertson, 6 Wall. 
277, 18 L. ed. 748. 

There is no question but that debts due the 
creditors of a corporation, as well as claims 
for wrongs done by it, are not lost by its disso- 
lution, but may be enforced by proper proceed- 
ings against the assets. Walters v. Western & 
A. R. Co. 69 Fed. 679. 

The English doctrine that, in case of the 
dissolution of a corporation, its personal prop- 
erty vests in the King, and all Its unsold real 
estate reverts to the grantor or his heirs, while 
dobts due to and from it are extinct, is harsh 
and inequitable, and has not been adopted and 
acted upon as the rule in this country, — at least 
so far as the extinguishment of debts is con- 
cerned; and It certainly haa not been favored 
69 L. R. A. 

by the courts or the legislatures. Owen v. 
Smith, 31 Barb. 641. 

Sometimes a state provides by general statute 
that, upon the dissolution of a corporation, its 
debts may be thereafter collected, and its cred- 
itors discharged, and its assets divided among* 
Its shareholders. McCoy v. Farmer, 65 Mo. 
244 ; Bolles v. Crescent Drug & Chemical Co. 
53 N. J. Eq. 614, 32 Atl. 1061. 

•. Upon contractt in general. 

A corporation by the very terms of its po- 
litical existence is subject to dissolution by a 
surrender of its corporate franchises and by a 
forfeiture of them for wilful misuser or non- 
user. Every creditor must be presumed to un- 
derstand the nature and incidents of such a 
body politic, and to contract with reference ta 
them. Mumma v. Potomac Co. 8 Pet. 281. ft 
L. ed. 945 : Washington & B. Tump. Road v. 
State, 19 Md. 239. 

Whoever contracts with a corporation ex- 
poses himself to losses which may arise from 
its dissolution, as he would with natural per- 
sons by their death. Read v. Frankfort Bank, 
23 Me. 318. 

A dissolution of a corporation by the sov- 
ereign power of the state puts an end to its 
contracts for the services of its agents by ren- 
dering performance Impossible on either side : 
and such a result must be deemed within the 
contemplation of the contracting parties and an 
unexpressed condition of their contract inher- 
ing therein from the beginning. People v. Globe 
Mut. L. Ins. Co. 91 N. Y. 174. 

Where a corporation surrenders Its charter, 
ceases to exist by the etSux of time, or where 
its charter Is decreed forfeited by a Judicial 
tribunal of competent Jurisdiction, it can nei- 
ther sue nor be sued, although the obligations of 
Its contracts survive, and may be enforced 
against any property which has not gone to 
bona fide purchasers. City Ins. Co. v. Com- 
mercial Bank, 68 111. 848. 

The obligations of the contracts of a cor- 
poration survive its dissolution, and Its credit- 
ors may enforce their claims against any prop- 
erty or estate belonging to the corporation 
which has not passed to bona fide purchasers. 
Dudley v. Price. 10 B. Mon. 84. 

The obligation of contracts made whilst the 
corporation was In existence survives it» dis- 
solution ; and the contracts may be enforced by 

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GsiFFiTH Y. Blackwateb B. & L. Co. 


as follows: "The general doctrine is well 
established in this state that facts known, 
which are sufficient to put a party upon in- 
quiry, are sufficient to charge him with all 
such knowledge as he would have acquired 
by a proper inquiry in the ordinary course 
of biLsiness. The rule that directors cannot 
lawfully enter into a contract in the benefit 
of which even one of their number partici- 
pates without the knowledge and consent of 
the stockholders, is the settled law of this 
state. Such a contract is voidable at the 
option of the corporation, but is not void 
per ne. When the facts are disclosed to the 
8tockholders, it may be subsequently ratified 
by them." 

As the contract was voidable, and not void 
per 8€, the principle of estoppel, according 

to the great weight of authority, is applica- 
ble to cases of l^his kind, and must be given 
effect if the facts of this case warrant it? 
application. Thtf principal contract under 
which Thompson operated bears date June 
18, 1890. Under it he began operations in 
the same month, and continued them until 
August, 1893, during which time he built a 
railroad, equipped it with locomotives and 
cars, built tramroads, rebuilt and repaired 
dams in the Blackwater river, and carried 
on the business of stocking the mill with 
timber under the contract upon an immense- 
scale, using the railroad, cars, locomotives, 
tramroads, tools, appliances, and the booms 
and dams in the river for that purpose, and, 
as indicated by the record, practically sup- 
plied the mill with timber. In these opera- 

a court of equity so far as to subject for their 
satisfaction any property possessed by the cor- 
poration at the time. Brougbton v. Pensacola, 
93 U. S. 266, 23 L. ed. 896. 

The dissolution of a corporation no more im- 
pairs the obligation of Its contracts than the 
death of a private person can be said to impair 
the obligation of his contracts. Mumma v. Po- 
tomac Co. 8 Pet. 286, 8 L. ed. 945. 

The repeal or forfeiture of a corporate char- 
ter by an act of the legislature, although con- 
ditional opon the consent of the corporation, 
does not infringe the constitutional provision 
against impairing the obligation of contracts, 
notwithstanding it may deprive creditors of all 
opportunity to collect their debts. Mobile & O. 
tt. Vo. V. State, 29 Ala. 573. 

While the obligation of the contract between 
a corporation and its creditor is not impaired 
by the repeal, by act of the legislature, of Its 
charter, the method of obtaining indemnity for 
its breach is changed, and, after the enactment 
of the repealer, au action at law upon the con- 
tract can no longer be maintained or prose- 
cuted, in the absence of any statute permitting 
it to be. Read v. Frankfort BanlL, 23 Me. 318. 

The liquidation of a corporation has the im- 
mediate effect of terminating all its purely per- 
sonal obligations, and of relegating the bene- 
ficiaries thereunder to an action In damages in 
keeping with Its covenants. Schlelder v. Dlel- 
man, 44 La. Ann. 462. 10 So. 934. 

Although a law authorizes the stockholders 
of a business corporation to dissolve it at will, 
and the laws of the state in this regard enter 
directly into its contracts, and all persons are 
deemed to have contracted In view of the exist- 
ence and possible exercise of this power, it is 
nevertheless true that such a dissolution does 
not destroy the obligation of the corporation's 
contracts. The equitable rights of creditors 
•nrrive the dissolution, and attach to the as- 
sets and property of the corporation in the 
hands of Its liquidators. /Md. 

The dissolution of a solvent corporation by 
its own voluntary act will not relieve it irom 
Its contracts, but its assets will be liable for 
breaches thereof. Griffith v. Blackwater Boom 
k Lumber Co. 46 W. Va. 56, 33 S. B. 125. 

"Even the executory contracts of a defunct 
corporation are not extinguished.'* Shields v. 
Ohio, 95 U. 8. 319, 24 L. ed. 357. 

Unless the dissolution Is compulsory and in- 
voluntary. Then, even when partly performed, 
69 L. R. A. 

executory contracts perish when the corporation 
is dissolved. Griffith v. Blackwater Boom & 
Lumber Co. 46 W. Va. 56, 33 S. E. 125. 

When a corporation, upon petition of Its 
stockholders and by the decree of a court. Is 
dissolved, and thereafter neither does, nor at- 
tempts to do, any business, it becomes as en- 
tirely extinct, except so far as the statute pre- 
scribes otherwise, as if it had never existed. It 
is thus wholly disabled from performing its 
contracts, and its breach of any such contract is 
a total one, which entitles the other party, im- 
mediately upon the dissolution, to his whole 
damageB, present and prospective, for the loss 
of his contract. Bowe v. Minnesota Milk Co. 
44 Minn. 460, 47 N. W. 151. 

It is not the law that when a corporation 
is dissolved under a statute all contracts where- 
by third parties hold Its property are annulled 
and avoided ; hence, a writ of assistance will 
not be awarded to put a receiver in possession 
of property of such a corporation, where per- 
sons not parties to the dissolution proceedings 
assert In good faith a colorable right to hold 
it. Musgrove v. Gray, 123 Ala. 376, 82 Am. 
St. Uep. 124, 26 So. 643. 

When the receiver of a dissolved corporation 
has paid all the undisputed debts, and has 
funds enough left to pay all the disputed ones, 
and still has a large surplus for distribution to 
stockholders, he is bound to pay rent accrued 
and accruing to tho end of the term under a 
lease for years to the corporation. People v. 
National Trust Co. 82 N. Y. 283. 

When, at the instance of the state, and by 
Judicial decree or operation of law, a corpora- 
tion is dissolved, and its corporate existence 
terminated, a contract between It and an in- 
dividual for the latter's services, which Is in 
progress and has been performed upon both 
sides according to its terms down to the time 
when the corporation and its agents and serv- 
ants were prohibited from carrying on the cor- 
porate business, is at an end, and cannot upon 
either side longer 1)e performed ; but it cannot be 
considered as broken by the corporation, since 
nothing has occurred to constitute a breach of 
the contract upon either side, performance be- 
ing simply prevented by vis major, and hence 
the individual has no claim 'for damages against 
the assets of the corporation. People v. Globe 
Mut L. Ins. Co. 91 N. Y. 174. 

A contract of a corporation with an Indi- 
vidual for the latter's services for a term of 

Digitized by 



West Virginia Supreme Court of Appeals. 


tions he expended nearly $300,000, accord- 
ing to the report of the cojnmissloner. He 
resigned his position as director in 1891. 
Can it be possible that the directors and 
the stockholders, who appear to have been 
few in number ( only six, as indicated by the 
record), liad no knowledge of the immense 
expenditure Thompson was making on the 
faith of this contract? Whether the mak- 
ing of the contract was in all respects duly 
formal or not, the books of the company 
were open to them, and upon them the terms 
of the contract were indicated by the en- 
tries. For a long time after Thompson 
ceased to be a director and to have any 
share or part in the management of the 
company, they allowed him to go on with- 
out objection or notice of the disapproval 

of the contract. If, having such knowledge, 
they had the right to avoid the contract be- 
cause he was a director at the time it was 
made, can they do it in such manner as to 
inflict upon him the loss of so much of this 
large expenditure as compliance with his 
contract, so far as he was permitted to per- 
form it, necessitated? Having the right to 
deprive him of the profits which he could 
have made on the contract if permitted to 
complete it, have they also the right to 
punish him by depriving him of money ex- 
pended under the honest belief that they, 
having full knowledge of all the facts, aa 
they must be deemed to have had, and giv- 
ing it to creditors, who advanced their 
money under the belief that the company 
had such financial strength as warranted 

years at a stipulated salary Is broken when, 
before the expiration of the term, the corpora- 
tion is adjudged insolvent, and a receiver ia ap- 
pointed whose duty by statute Is to collect and 
distribute the assets, under Judicial direction, 
to the creditors and stockhoiders. Spader v. 
Mural Decoration Mfg. Co. 47 N. J. Eq. 18, 20 
Atl. 378. 

When a corporation contracts to sell and de- 
liver upon a future day merchandise, and be- 
fore the time of delivery arrives is enjoined 
from In anywise Interfering with its property, 
and a receiver is appointed of all Its assets, per- 
formance of its contract is rendered impossible 
by Judicial action, and the buyer has no claim 
for damages. Malcomson v. Wappoo Mills, 88 
Fed. 680. 

The court cited and followed People v. Globe 
Mut. L. Ins. Co. 91 N. Y. 174, and rejected 
Spader v. Mural Decoration Mfg. Co. 47 N. J. 
Eq. 18, 20 Atl. 378, but the report does not 
show whether the appointment of the receiver 
was voluntary or involuntary, or whether or 
not the selling corporation (if such it was. for 
fven its corporate entity Is not stated) was 

Where, upon the suspension of business and 
the appointment of a receiver of a dissolved cor- 
poration, a contract with it is in process of 
[performance, and is for a time afterwards con- 
tinued under direction of the court having Ju- 
risdiction of the matter, it cannot be said that 
there was a breach of the contract, committed 
by the corporation. Grlflith v. Blackwater 
Boom & Lumber Co. 46 W. Va. 56, 33 S. E. 125. 

When the receiver of a dissolved corporation 
abandons the performance of one of its con- 
tracts by direction of the court which appointed 
him, after he had for a time, by the like direc- 
tion, been performing it, and when at the time 
of his appointment the corporation was not in 
default thereon, the corporate assets are not 
liable for damages for a breach of such con- 
tract. Ihid. 

While it is implied In every agreement, the 
performance of which depends upon the con- 
tinued existence of a person or thing, that such 
existence will continue, and that the death of 
the person or destruction of the thing will ter- 
minate the obli{?ation ; and when a corporation 
Is a party to such contract its dissolution or 
civil death ends it, — yet such is not the rule if 
suoh dissolution be voluntary, for it is equally 
an implied condition of all corporate contracts 
ti9 L. R. A. 

that the corporation will not of its own voll- 
tlon try to escape the obligation of its con- 
tracts, and. If it does, equity will not recognise 
the dissolution or permit the dissipation of its 
assets until Its contracts are satisfied. Ibid. 
A contract between a dairyman and a cor- 
poration to run a year, whereby the company 
agrees to buy and furnish all the cans to carry 
all the milk produced by the former's kine to be 
delivered daily, Is broken in toto by the volun- 
tsry dissolution of the corporation during the 
year, and the dairyman is entitled immediately 
to ail his damages for the loss of the contract, 
present and prospective, for it is an entirety, 
and a single recovery is a bar to further ac- 
tions. Bowe V. Minnesota Milk Co. 44 Minn. 
460, 47 N. W. 151. 

f. Upon employment contracts, 

1. With officers. 

The bringing of an action against a corpora- 
tion, and alleging its insolvency and the ap- 
pointment therein of a receiver, do not abro- 
gate a contract for the employment of a sal- 
aried officer. Kinsman v. Fisk, 37 App. Div. 
443, 56 N» Y. Supp. 33. 

When a corporation makes a general assign- 
ment for creditors it is not thereby released 
from its express contract to pay a salary to its 
treasurer if he renders, or is ready to render, 
his services as such ; and, on a reconveyance by 
the assignee after settlement with its creditors, 
he is entitled to recover his stipend. Potts ▼. 
Rose Valley Mills, 167 Pa. 310, 31 Atl. 655. 

A secrets ry of a corporation which becomes 
insolvent and goes into the hands of a receiver 
is entitled to his salary for the balance of the 
year for which he was employed, less what be 
may earn in other employment. Hassenfus v. 
Philadelphia Packing & Provision Co. 15 Pa. 
Co. Ct. 650. 

A managing director of a corporation, en- 
gaged upon a salary for a term of years, is en- 
titled, upon the winding up of such corporation 
during the term, to prove up his claim for sal- 
ary on the same footing as outside creditors, 
notwithstanding he was a shareholder In the 
company. Ills characters as stockholder and 
employee being quite distinct. Re Dale, L. R. 
43 Ch. Div. 255, 59 L. J. Ch. N. S. 180, 62 h, T. 
N. S. 215. 

Salary due the secretary of a corporation for 
services as such down to the winding up Is a 

Digitized by 



lilUJ>-i!lLTH ▼. Blackwateb B. & L. Co. 


their doing so without taking security for 
its repayment, just as Thompson laid out 
and expended these immense sums, under 
the like belief? The law does not demand 
tlie infliction of any such punishment, nor 
will its principles warrant the court in de- 
priving him of compensation for his expend- 
itures merely because of his fiduciary 
status at the time the contract was made, 
even if this court has correctly decided that 
he is not entitled to damages by way of 
compensation for the loss of anticipated 
profits, as to which it is now too late to en- 
ter upon any inquiry. 

"The rule under consideration does not ex- 
tend so far as to work an entire confiscation 
of the property of the unfaithful director, 
which he may have attempted to sell to his 

corporation at an advance over its cost to 
him, so as to derive a secret profit there- 
from; but in the accounting which takes 
place under the principle the director will 
be compelled to yield to the corporation the 
secret profit, but will be allowed a credit for 
the property sold to the corporation at its 
real value." 10 Cyc. Law & Proc. p. 795. 

"In most jurisdictions, as we have seen, 
a contract or other transaction between a 
corporation and its directors or other of- 
ficers, the corporation being represented by 
others, or a contract or other transaction be- 
tween a corporation and a third party, from 
which a director or other officer derives a 
profit, or in which he is otherwise person- 
ally interested, is merely voidable at the op- 
tion of the corporation, and not absolutely 

provable demand, althouj^h he consented to 
take one half the amount until such time as it 
might be convenient for the company to pay the 
•I her half. Cope's Case, 20 Lu J. Ch. N. S. 28, 
1 Sim. N. S. 54. 

The salaries of the officers of a corporation 
cease ur»on the appointment of a receiver em- 
powered and directed to take control of all its 
property and to assume the entire management 
of mil its affairs. I^noir v. Linvflle Improv. Co. 
1J6 N. C. 022, 51 L. R. A. 150, 36 8. E. 185. 

The New Jersey rule, as exemplified In Spader 
v. Mural Decoration Mfg. Co. 47 N. J. Kq. 18, 
2t) Atl. 373, that claims for damages arising 
Trom breaches of contract for services occasion- 
rd by the Insolvency of a corporation are en- 
titled to be paid pro rata out of funds In the 
hands of the receiver, hiiH much to commend it, 
•«ny» the North Carolina supreme court ; but we 
think that the average ends of justice would be 
'K'lipr and more generally subserved by follow- 
ing the New York rule as laid down in People 
V. Globe Mut. L. Ins. Co. 91 N. Y. 174, that such 
<^>ii tracts are terminated by the dissolution of 
(be corporation at the instance of the sovereign 
power, and not broken. Jhid, 

The dissolution of a corporation and annul- 
inenc of its charter for the nonpayment of taxes 
preclude a manager, who was at the same time 
one of its stockholders and directors, from re- 
covering from its assets in the hands of a re- 
ceiver any salary on account of services ren- 
dered in continuing the business after dlssolu- 
liun of the corporation, as his contract termi- 
nated when the corporation was dissolved. 
Louchheim v. Ciewson Printing & Weighing Co. 
12 Pa. Super. Ct. 55. 

2. With superintendenia. 

When, by the insolvency and winding up of a 
banking company, its manager ts discharged by 
the official liquidator, and his contract has not 
expired, and he was by such contract entitled, 
in addition to a stated annual salary, to resi- 
rl»*ncr and offices upon the bank's premises free 
of rent and taxes, he is entitled to damages 
ir-m the efTects of the imuk for the loss ox his 
contract, computed uppn the basis of the pres- 
ent valne of an annuity equal to his annual 
^lary aud terminating at the end of his term of 
"tupidymcnt, with a proper rent for the bank 

a fresh appointment. Yel land's Case, L. R. 4 
Eq. SoO. 

When it is part of the contract under which 
one is employed as manager for a corporation, 
that, if he is deprived of his employment for 
other than his gross misconduct, he shall be 
paid by the company a sum equal to three years' 
salary, he is entitled, upon the winding up of 
the corporation under the English companies 
net. to the sum stated without deduction as In 
Yelland's Case, because, had the corporation 
while a going concern discharged him without 
his mlsliehnvlor. It would be bound to pay him 
the three years' salary, and he might have en- 
tered at once upon a new employment. Re 
London & S. Bank, L. K. 9 Eq. 140, 18 Week. 
Rep. 273. 

One who has a contract to serve a corpora- 
tion as superintendent for a period of ten years 
at a stated annual salary and a percentage of 
profits, which is duly performed for nearly two 
years by both parties, when further perform- 
ance is stopped by the adjudication of bank- 
ruptcy of the corporation, is entitled to prove 
against the assets in bankruptcy, and to share 
In the distribution thereof, damages for the 
breach of such contract as If he had been dis- 
charged without legal cause at the time the 
adjudication took place. Ex parte Pollard, 2 
Low. Dec. 411, Fed. Cas. No. 11,252. 

The reasoning of Lowell, J., In the above case 
as to the provability and right of participation 
of a claim for damages against a bankrupt 
manufacturing corporation, cf one employed as 
Its superintendent under a written contract at 
a stated annual salary for ten years with a per 
centage of profits, and which was in course of 
performance by both parties, and had eight 
years and upwards to run when it was inter- 
rupted by an adjudication in bankruptcy fol- 
lowing the voluntary petition of*the corporation, 
is worth outlining, and in striking contrast to 
the reasoning of the New Y^ork case of People v. 
Globe Mut. L. Ins. Co. 91 N. Y. 174. Has there, 
he asks, been such a breach of the contract as 
win give the petitioner a right of proof for any 
damages which he may have suffered against 
the estate of the bankrupt corporation? That, 
he says, is a difficult question. It Is easy to 
show the very great hardship of a negative an- 
swer. No corporation has been wound up in 
bankruptcy in this district, and ever been re- 
i-.f-ml8es for the unexpired term, deducting I vlved in such a form as to give its old creditors 

*'^^ L. n. A. 


Digitized by LjOOQ 



West Viboinia Supreme Court of Appeals. 


void. It follows that the transaction, if 
within the powers of the corporation, may 
be consented to, ratified, or acquiesced in, 
by the stockholders, or by the board of di- 
rectors, if it could be authorized by them. 
If it is consented to or ratified with full 
knowledge of the facts, it is finally and ab- 
solutely binding, and neither the corpora- 
tion nor individual stockholders can after- 
wards sue to set it aside, or otherwise at- 
tack its validity. And since the corporation 
may thus consent to the transaction and 
render it binding, if it acquiesces, strangers 
cannot object. This is true of contracts 
and other transactions between two corpora- 
tions having directors or other oflicers in 
common. They are not absolutely void, but, 
at the most, merely voidable, and may be 

rendered binding by ratification or ac- 
quiescence on the part of the stockholders. 
Ratification is to be implied if the corpora- 
tion accepts or retains the benefit of the 
transaction (assuming, of course, that it 
can do otherwise), with knowledge of the 
facts; and it may be implied from acqiiies- 
cence. Ordinarily, it is for the corporation 
— the stockholders collectively — to ratify or 
disafiirm the transaction, and individual 
stockholders cannot object. Of course, rati- 
fication or acquiescence by a majority of the 
stockholders cannot bind a dissenting stock- 
holder where the transaction is a fraud 
upon his rights, or beyond the powers of the 
corporation, and cannot prevent the dissent- 
ing stockholder from suing in a proper case 
to set the transaction aside, and obtain re- 

dividend is all that is left. And advertins 
to the English companies act (26 & 27 Vict, 
chap. 80, I 158) allowing proof of claims for 
damages, certain and uncertain, present and 
fiifre. which, he says. Is n * more than common 
Justice; and expressing regret that the atten- 
ilou of Congress was not attracted to. this mat 
ter, and that the law as it stands is the same 
for corporations and individuals notwithstand- 
ing the difference in their situation, — he con- 
cludes that, as this claim could be proved 
against an individual bankrupt, it can be proved 
against a bankrupt corporation. He Justifies 
this conclusion by saying that it is now well 
settled that where one party to a contract defi- 
nitely refuses to perform it, even before the 
time for performance arrives, the other party 
has his Immediate action, a fortiori when, after 
part performance, there is a refusal to com- 
plete, the only question in doubt being whether 
the injured party could have an immediate and 
complete remedy once for all without tender of 
performance on his part, and the decisions are 
that he may. It is plain, therefore, that If the 
corporation had dlschartced Its superintendent 
the day liefore it began the bankruptcy proceed- 
ings, he would have had a claim for damages 
which he might prove. Does it make any dif- 
ference that the company neglected to give 
the employee a formal dismissal? — he inquires. 
Not at all. It did an act which incapacitated 
it from fulfilling Its contract, and it is unnec- 
essary and false nicety to hold that, because 
this act was the very filing of a petition in 
bankruptcy, therefore there was no breach at 
the time of filing that petition. The contract 
was ipso facto dissolved by t^e filing of the pe- 
tition in bankruptcy, which made its perform- 
ance by the bankrupt impossible and by the 
employee illegal, for he had no right to employ 
a man or pay a dollar after that time ; and the 
fact that the bankrupt corporation did not, five 
minutes or more before such filing, formally 
dismiss him from its service, is immaterial. 

8. With agents. 

In People v. Globe Mut. L. Ins. Co. 91 N. Y. 
174, a general agent who bad a running con- 
tract for a term of years with a life insurance 
company, and whose employment was termi- 
nated by the compulsory dissolution of his cor- 
porate employer, was denied any participation 
In the assets of the company upon his asserted 
60 L. R. A. 

claim for damages for a breach of his contract 
of employment. There were more than one 
grt)uud assl^^ned for tills conclusion. I Kit in- 
chief one was that there had been no breach of 
the contract on the part of the company, nor 
was it possible for the agent to perform, or 
tender performance, upon his part, so as to put 
the company in default, a sine qua non, to a 
recovery of such a claim. Both parties were In 
good faith, it was said, performing this con- 
tract, when the state. In the exercise of its 
sovereign power, interfered. It forbade by in- 
junction both parties, alike, from going on with 
the contract, and rendered performance Impos- 
sible, alike, by the company and the agent by 
the same sovereign act and at the same Instant 
of time. Both parties contracted In view of 
the possibility of the dissolution of the corpora- 
tion at any time by the act of the state. 

It was necessary, to reach this Judgment, for 
the court to distinguish two of its prior deci- 
sions. In People v. Security L. Ins. Co. 78 N. 
Y. 114, 34 Am. Hop. .'i22. and Ponple v. National 
Trust Co. 82 N. Y. 283, the respective corpora- 
tions defendant had been enjoined from con- 
tinuing business, placed in the hands of a re- 
ceiver, and dissolved absolutely. In the one 
case it was held that policy holders had con- 
tractu of value which were broken by the disso- 
lution, and in the other case that a lease for 
years was not thereby terminated: so that in 
the first case the policy holders had valid claims 
upon the corporate assets for the value of their 
policies which were destroyed by the dissolution, 
and in the second case that the landlord bad 
a valid claim for the future accruing rent to the 
end of the leased term. 

It was said that the policy holder stood upon 
a breach of his contract, but that breach was 
not the dissolution of the company, but the 
failure upon its part, before the dissolution, to 
maintain the legal reserve which was the pro- 
voking cause of the state's intervention, and 
the promise to maintain, which was an implied 
part of its contract with every policy holder. 
The state, finding these contracts with the pol- 
icy holders broken In this unexpressed condi- 
tion, stepped in and wound up the recalcitrant 
corporation. The landlord's case, affected, it 
was said, property rights which survived the 
death of the corporation. He could perform 
upon his part, his ability to do so existed and 
was not restrained. The agent could not per- 

Digitized by 



Griffith v. Blackwateb B. & L. Co. 


dress for the benefit of the corporation, as 
has been explained in a former chapter. But 
where the transaction is of such a character 
tliat it might lawfully have been authorized 
by the majority, it may lawfully be ratified 
or acquiesced in by them, and their ratifica- 
tion or acquiescence will bar an action by a 
dissenting minority to set it aside. The 
board of directors may ratify a transaction 
if they could have authorized it, but not 
otherwise. When they do undertake to rati- 
fy, a majority must be disinterested. It is 
also well settled that the corporation and 
the stockholders may and will lose the right 
to have the contract oi: transaction set aside 
by laches in exercising their option to disaf- 
firm it. Whether the delay in electing to 
set the transaction aside constitutes laches, 

so as to bar the right to relief, will depend 
upon the circumstances, and not merely 
upon the length of time which has elapsed. 
It was said by Mr. Justice Miller in a lead- 
ing case in the Supreme Court of the United 
States [TiiHn'Lick Oil Co. v. Marhury, 91 U. 
S. 587, 23 L. ed. 328], in which a director 
had purchased property of a corporation at 
a sale under a deed of trust : *The doctrine 
is well settled that the option to avoid such 
-a sale must be exercised within a reasonable 
time. This has never been held to be any 
determined number of days or years, as ap- 
plied to every case, like the statute of limi- 
tations, but must be decided in each case 
upon all the elements of it which affect that 
question. These are generally the presence 
or absence of the parties at the place of the 

form because the state would not allow him to 
do so. 

The court dismissed the English cases with 
the statement that in all of them the companies 
stopped payment before the law took them in 
hand, and they did so by open public notice, 
which was In legal effect a refusal to perform 
their contracts. The law did not break the con- 
tracts; they were already broken. 

After disposing of the troublesome precedents 
In this wbte, the court faced the contention 
that the agent*s contract is to be regarded as 
only dissolved when destroyed by an outside, in- 
dependent force, operating separately, and not 
iet in motion directly or indirectly by the act 
of the party pleading It as an excuse. In other 
words, such party must be innocent and blame- 
less respecting the vi9 major which dissolves 
the contract, and. If not so, cannot plead as an 
excuse what is practically his own act and 
fault. The argument was pressed upon the 
court that, unlike the corporations in all the 
precedent authorities, the Globe company at 
the bar was not only not blameless, but that its 
dissolution resulted from, and was directly 
caused by, its own acts and omissions. 

The answer to this seems deplorably weak. 
The court said, the fact is not shown, nor neces- 
Nirily to be inferred, from aught in the record, 
that the corporation was derelict, although at 
the same time it admitted that it should pre- 
sume the legal reserve to have fallen below the 
safe level, since this was the statutory ground 
for state intervention. Moreover, this result, 
It added, may have been due to investments 
seemingly prudent when made, but which, con- 
trary to all reasonable expectation and fore- 
sight, turned out bad. As, however, even this 
pointed to an indirect responsibility, the court 
retreated to the fellow-servant doctrine, that 
lias done such yeoman service in preventing re- 
cover ies for personal Injuries. 

On the whole this decision is unsatisfyhig. 
Waiving the question as to why' the court in one 
case Implied a contract with the policy holder 
that the company should maintain the legal re- 
serve, and not provoke corporate death at the 
hands of the state; and in the other refused 
to imply any contract with its agent to refrain 
from disabling itself from doing the business it 
was chartered to do, — there are difficulties with 
the court's theories. To say that the agent 
contracted with knowledge that the corporation 
most die whenever its creator so willed does not 
69 L. R. A. 

help, since both policy holder and landlord did 
the same. It Is also unsatisfactory to say that 
there was, by the failure to maintain the legal 
reserve, a breach of the contract with the 
policy holder before dissolution, — such breach 
being the cause and the dissolution the conse- 
quence. This alleged breach did not authorize 
any policy holder to refuse to carry out his con- 
tract until the state intervened. The policy 
holder was bound to, pay his premiums down to 
the very moment of dissolution, or his policy 
would have lapsed and he have been barred 
from sharing In the corporate assets. Why, 
then, was not the company up to the instant 
of its dissolution as much performing Its con- 
tracts with its policy holders as with Its gen- 
eral agents? now could the policy holder, 
more than the agent, when dissolution occurred 
by the vis major, put the company in default? 

In Hepburn v. Montgomery, 07 N. T. 618, 
and in Atty. Gen. v. Continental L. Ins. Co. 93 
N. Y. 630, the decision in People v. Globe Mut. 
L. Ins. Co. 91 N. Y. 174, was followed. 

A question arose in a New Jersey litigation 
over the sufficiency of a plea in answer to a 
declaration by the general agent of a credit in- 
surance company claiming damages for a breach 
of his contract to solicit insurance, which set 
up in defense, in ' substance, that the corpora- 
tion became insolvent, and ceased to employ the 
agent because it was declared insolvent and en- 
Joined from doing further business by the court 
of chancery, was put in the hands of a receiver, 
and its charter was declared to be forfeited and 
void, except for the purpose of collecting and 
distributing its assets. The supreme court held 
the plea good, and overruled the plaintiff's 
demurrer thereto, reasoning as follows : It is 
well settled that contracts for personal serv- 
ices are made upon the implied agreement that 
both contracting parties will continue alive, 
and are terminated when either dies. The dis- 
tinction between such contracts and those with 
policy holders was applied in People v.. Globe 
Mut. L. Ins. Co. 91 N. Y. 174, a case involving 
the question here, and where, as here, the life 
of the company was extinguished by the act of 
the state. The New York supreme court held, 
and Its view w^s unanimously concurred in by 
the court of appeals, that a general agent 
whose comper|^ation depended upon his suc- 
cess in procuring insurance for the company 
upon a percentage could not maintain an action 
for damages against the receiver because, be- 

Digitized by 



West Vxboinia Supreme Court of Appeals. 


transaction, their knowledge or ignorakice of 
the sale and of the facts which render it 
voidable, the permanent or fluctuating char- 
acter of the subject-matter of the transac- 
tion as affecting its value, and the actual 
rise or fall of the property in value during 
the period within which this option might 
have been exercised.' Laches may bar the 
right of a corporation or its stockholders to 
maintain a suit to compel directors to ac- 
count for secret profits. Individual stock- 
holders may be estopped to attack a con- 
tract or other transaction on behalf of the 
corporation on the ground that directors or 
other officers were personally interested. If 
they participated or consented, or if they 
have ratified the transaction with knowledge 
of the facts, they are clearly estopped. 

Stockholders will not be heard to complain 
of their own acts as directors. The- right of 
individual stockholders to complain may 
also be barred by laches." Clark & M. Priv. 
Corp. § 764. 

This text is supported by authorities too 
numerous to mention or examine, one of 
which is the leading case of Foss v. Har- 
bottlc, 2 Hare, 401, in which the vice chan- 
cellor, after laying down the rigid rules of 
law requiring the exercise of the utmost 
good faith on the part of promoters of cor- 
porations, treating them as acting in a fi- 
duciary capacity, proceeds as follows: "If 
persons, on the other hand, intending to 
form a company, should purchase land with 
a view to the foi-mation of it, and state at 
once that they were the owners of such land. 

fore the expiration of the period for which he 
was engaRod. he was prevented by the Insol- 
vency, receivership, and dissolution of the com- 
pany from continuing his employment. The 
rule in that case will be accepted here. Rosen- 
baiyu V. United States Credit System Co. 60 N. 
J. L. 294. 37 Atl. 505. 

But this JudRmeut was reversed by the New 
Jersey court of errors and appeals, which, In 
doing 60, said : In the case of People v. Globe 
Mut. L. Ins. Co. 01 N. Y. 174, upon which the 
supreme court relied, both parties to the con- 
tract, the company and the agent, were re- 
strained by injunction, at the instance of the 
attorney general, from further prosecution uf 
the busiiiOiis of the company and the exercise 
of any of its corporate franchises, followed by 
the appointment of a receiver and dissolution 
of the company : and it was held that, as the 
action of 1)oth contracting parties was para- 
lyzed by injunction at the same time, so that 
neither could put the other in the wrong, there 
wau no brciich of the contract. But in the case 
at bar there was no such injunction. The con- 
traction of debts and disposition of assets was 
forbidden, and afterwards there was an ad- 
judication of insolvency and a receiver, but 
writhout continuing the injunction. The New- 
Jersey statutes do not provide that a mere ad- 
judication of insolvency and the appointment of 
a receiver take from a corporation Its right to 
do business. The practical effect is to stop busi- 
ness, but the right to go on is not taken away. 
Uosenbaum v. United {States Credit System Co. 
81 N. J. L. 54.'i, 40 Atl. 591. 

Chancellor McGIll, of New Jersey, in writing 
for the court of erroi-s and appeals in Rosen- 
baum V. United States Credit System Co. 01 
N. J. L. 543, 40 Atl. 591, which unanimously 
reversed the supreme court in the same case 
(60 N. J. L. 294. 37 Atl. 595), sharply criticises 
the reasoning of the New York court of appeals 
in l*eople v. Globe Mut. L. Ins. Co. 91 N. Y. 
174, upon which the court below had relied in 
coming to the conclusion about to be reversed. 
The learned chancellor had pointed out at tbe 
l)eginnlng a very material distinction between 
the case in hand and the New York case, which 
deprived the hitter of authority as a precedent ; 
but he did not rest there, lie took up the broad 
question whether the forfeiture of the corpo- 
rate charter would bar a general soliciting 
agent's claim for damages for a breach of his 
contract of employment for the term of the 
UO L. R. A. 

contract which had not expired at the date of 
that forfeiture. Following the reasoning of the 
New York court in the case mentioned, th<* 
court below, he said, looked upon the contract 
as one merely for skilled personal service, and 
treated the insolvency of the company and for- 
feiture of its charter as analogous to the death 
of the master of such a servant, which, by an 
hnplied condition, ended the contract. The 
court of appeals of New York carried the doc 
trine of Implied condition In the contract still 
further. Finch, J., saying : What had happened 
was the* dissolution of the contract by the sov- 
ereign power of the state, rendering perform- 
ance on either side impossible. This result wa« 
within the contemplation of the parties, and 
must be deemed an unexpressed condition of 
their agreement. One party was a corporation. 
It drew its vitality from the grant of the state, 
and could only live by its permission. It ex- 
isted within certain defined limitations, and 
must die whenever its creator so willed. The 
general agent who contracted with it did so with 
knowledge of the statutory conditions, and 
these must be deemed to have permeated the 
agreement and constituted elements of the obli- 
gation. The judge admits, says the chancellor, 
that the implication will not exist if it apix^ars 
that the corporation was culpably responsible 
for state intervention. lie then proceeds: It 
appears to us that 1)oth these Implied con- 
ditions are forced, or at least forced In their ap- 
plication to cases in this state similar to the 
case now considered. It appears to us that the 
material fact that the corporation defendant is 
a stock company, and that its capital stands as 
a trust fund for the payment of Its debts, is 
lost sight of. Such a company may 1)ecome in- 
solvent, and its charter may he forfeited when 
its assets may be more than sufficient to pay 
its debts. Everyone who deals with such a 
coriK)ratlon does so in view of the trust fund 
its capital provides and the sedirity that fund 
is intended to afford. The stockholders who pn>- 
vide the fund Invite conlldence because of it, 
and through such confidence their venture may 
he profitable to them. The mere statement of 
this situation makes conspicuous the injustice 
of any course of reasoning which will return to 
the stockholders their capital l)efore satisfac- 
tion of all losses induced by faith in it should 
be made. The state creates corporations, and 
requires of them the provision of such a trust 
fund, and, when it destroys their corporate ex 

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Obiffith y. Blackwateb B. a L. Ck). 


and propose to sell it at a price fixed, for 
the purposes of the company to' be formed, 
the transaction, so far as the public are 
conwmed, commencing with that statement, 
might not fall within the principle of Hick- 
ens Y. Congreve, 4 Russ. Ch. 562. A party 
may have a clear right to say: *I begin 
the transaction at this time. I have pur- 
vha^ed land, no matter how or from whom, 
or at what price. I am willing to sell it at 
a certain price for a given purpose.' " An- 
other is 7'tcin-Lick Oil Co. v. Marhury, 91 
U. 8. 587, 23 L. ed. 328, heretofore quoted 
from. It holds: "The right of a corpora- 
tion to avoid the sale of its property by rea- 
fon of the fiduciary relations of the pur- 
chaser must be exercised within a reasonable 
time after the facts connected therewith are 

made known, or can by due diligence be as- 
certained. As the courts have never pre- 
scribed any specific period as applicable to 
every case, like the statute of limitations, 
the determination as to what constitutes a 
reasonable time in any particular case must 
be arrived at by a consideration of all its 
elements which affect that question.** In 
Sieicart v. Lehigh Talley R. Co. 38 N, J. 
L. 505, Mr. Justice Dixon, delivering the 
opinion of the court, said: "After an ex- 
amination of all the cases cited, and such 
others as I have found, and a careful con- 
sideration of the principle, and the results 
of regarding and disregarding it, I have 
come to the conviction that the true legal 
rule is t'hat such a contract is not void, but 
voidable, to be avoided at the option of the 

uience, natural Justice requires that it shall 
provide for diKtribtitlon of the fund so that no 
part of it shall be returned to those who offer It 
as sj'curlty for the action of others, until the 
latter shall have all the protection against Iors 
in tiielr undertaking that It Is capable of af- 

The insolvency of a corporation and appoint- 
ment of a receiver of its assets under the New 
Jtrsey laws do not rescind or terminate a con- 
tract with individuals to set up and operate a 
loda water fountain In the premises of the cor- 
poration, and pay, in lieu of rent. 15 per cent, 
of the grosa receipts. Bolles v. Crescent Drug 
It Chemical Co. Sa N. J. Eq. 614. 32 Atl. 1061. 

The ground of tiie decision in People v. Globe 
Mut. L. Ins. Co. 91 N. Y. 174. that the contract 
for service was annulled by the act of the state 
in diifflolving the corporation, not by default of 
the corporation in performing it, "does not seem 
to be very perspicuous or satisfactory in any 
view ; but the case certainly does not hold that 
contracts for personal services are rescinded by 
the iofiolvency of a corporation." Ihid. 

Ad agent of a corporation, engaged for the 
t^rm of five years, during which period the com- 
pany goes Into voluntary liquidation, and Is 
wound up, and whose employment Is continued 
by the offlcial liquidators for a considerable 
len^b of time after the winding-up order, is en- 
titled, under the rule in Yel land's Case, L. R. 
4 Va\. 350, to his full salary to the end of the 
five yeai-a' term. Re London & C. Co. L. K. 7 
Eq. 550, 38 L. J. Ch. N. 8. 562, 20 U T. N. 8. 

An agent of an insurance company, employed 
for a term of years upon a stated annual salary 
and a commission of 10 per cent of the net 
profits of each year, when the company is 
wound up before the term of employment ex- 
pirei$. is entitled to his stated salary, but not 
to damages for loss of his commission for the 
rest of the term of employment. The reason 
!>. he cannot compel the company to do busi- 
ness, and, unless business is profitable, he earns 
no commissions. Re English &* 8. Marine Ins. 
Co. L. R. 5 Ch. 737, 39 L. J. Ch. N. 8. 685. 23 
L. T. N. 8. 685, 18 Week. Rep. 1122. 

If an agent is employed for a term of years 
to sell goods of a corporation upon a commis- 
sion, and tlie company winds up before the term 
expires, he is entitled to his damages for the 
l»reach of his contract. Re Patent Floor Cloth 
^■<'. 41 L. J. Ch. N. S. 470, 26 L. T. N. 8. 487. 
W> L. R. A. 

Bacon, V. C. distinguished English & 8. 
Marine Ins. Co.'s Case by the circumstance that 
Maclure was to be paid a salary and a tithe of 
the net profits l>esl<les, while the claimants at 
bar were to be paid a commission on sales as 
sole compensation, and whether the sales were 
profitable or not. He did not venture to state 
any rule for computing the damages, or suggest 
any merhod of proving them. 

The winding up of a corporation does not ab- 
rogate a contract made with a broker to place 
its shares and receive a srated fee for doing so, 
payable when all the shares have been allotted. 
Inchbald v. Western Neilgherry Coffee, Tea & 
Cinchona Plantation Co. 17 C. B. N. 8. 733. 

Notwithstanding the assignee of a corpora- 
tion is enjoined by the courts from consummat- 
ing a sale of the corporate property negotiated 
by a broker, the latter may recover his commis- 
sions, since these were earned as soon as he 
found a purchaser ready and able to buy. Gib- 
son V. Gray, 17 Tex. Civ. App. 646, 43 8. W. 

This is the distinguishing feature that makes 
inapplicable People v. Globe Mut. L. Ins. Co. 91 
:J. Y. 174. 

The salaried selling agent of a corporation, 
employed for a definite term, who is discharged 
before that term expires because the company 
Is embarnissed and unable to continue business, 
and when, Immediately after such discharge the 
corporation is dissolved by the decree of a com- 
petent court in regular proceedings voluntarily 
instituted, has a valid claim for damages 
against the property and assets of such cori>o- 
ratlon for a breach of his contract of employ- 
ment, and the measure of such damages is the 
salary for the rest of tlie term less the net 
amount he has earned In the meantime. Tiffin 
GIuss Co. V. 8toehr, 54 Ohio St. 157, 43 N. B. 

In Tiflin Glass Co. v. Stoehr, 54 Ohio St. 
157, 43 N. B. 279, the supreme court of Ohio 
properly distinguished the case at bar from 
People V. (Jlobe Mut. L. Ins. Co. 91 N. Y. 174. 
by pointing out that in the case before it the 
employee had been discharged from his employ- 
ment before the company was dissolved, and. 
consequently, that a breach of his contract had 
been committed by the corporation before Its 
dissolution, and that dissolution was the result 
of its own voluntary request. The fact that the 
damage could not be computed until long after 
the dissolution did not affect the case. Unlike 

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West Virginia Supreme Court of Appeals. 


cestui que trust, exercised within a reason- 
able time. I can see no further safe modifi- 
cation or relaxation of the principle than 
this." In the late case of United States 
Steel Corp. v. Hodge, 64 N. J. Eq. 807, 60 
L. R. A. 742, 54 Atl. 1, decided February 18, 
1903, Van Syckel, J., said: "It is a settled 
rule of corporation law that the personal 
interest of directors renders a transaction 
voidable at the option of the stockholders, 
and not void per se. Under the declaration 
of this court in the case last cited the share- 
holders may, within a reasonable time after 
the disclosure to them of the interest of a 
director, elect to avoid the contract; but, if 
an unreasonable time is allowed to elapse 
without exercising such option, % during 
which the position of directors becomes so 

changed that it would be inequitable to va- 
cate the engagement, equity would refuse 
to interpose.'* 

On this question, it is useless to multiply 
authorities, for the principle is in perfect 
accord with both justice and common sense, 
and underlies the whole doctrine of compen- 
sation. It is the principle of estoppel that 
gives the right to recovery for outlay and 
expenses where performance of a contract 
has been wrongfully prevented. United 
States V. Behan, 110 U. S. 338, 28 L. ed. 168, 
4 Sup. Ct. Rep. 81. It is on the basis of 
compensation, not punishment. Equity does 
not permit parties to play fast and loose 
with a contract, when they know money is 
being expended, labor performed, and obliga- 
tions contracted on the faith of it. Thev 

the case in New York, the Ohio corporation 
mlRht lawfully have continued In business, and 
the agent was at liberty to go on and perform 
his services under his contract. Tiie uulo tribu- 
nal did not consider the effect of stopping per- 
furmance of such a contract before either party 
had commltled a breach, and of prohibiting eo 
instanti both parties from going on with It by 
the sovereign power of the state. 

4. With ordinary employeea. 

When a corporation contracts with an Indi- 
vidual for his services at a stated compensa- 
tion, to be rendered until the corporation is dis- 
solved, and otherwise to end only by the death 
of the employee or his refusal to further serve. 
It is not discharged by ceasing wholly to do 
business because it Is unprofitable, followed by 
a vote of the stockholders to surrender the 
charter and wind up the business. Revere v. 
Boston Copper Co. 16 Pick. 351. 

When a corporation ceases to do business, 
and breaks up its establishment, and its stock- 
holders vote to dissolve and wind up Its busi- 
ness : and It has a running contract for the. 
services of an individual at a stipulated annual 
salary, and notllles him It has no further use 
for his services, — he Is discharged from his ob- 
ligation to serve them exclusively, and has a 
claim for damages, the measure of which Is in- 
demnity for the loss he has sustained by reason 
of not being longer employed and paid. Ibid. 

When the contract of service of a salaried 
employee of a corporation Is terminated before 
the end of the time limited for its continuance, 
by a judgment of Insolvency against the cor- 
poration and appointment of a receiver to col- 
lect and distribute Its assets according to law, 
such employee is a claimant for damages caused 
by the breach of his contract for service, and 
entitled, as such, to participate with other 
creditors in the distribution of the corporate 
ossets. Spader v. Mural Decoration Mfg. Co. 
47 N. J. Eq. 18, 20 Atl. 378. 

The difficulty which led the English courts 
to disallow claims against bankrupt corpora- 
tions for damages for breaches of contracts for 
personal services of employees occasioned by 
and accruing subsequent to the bankruptcy of 
the company, under the English bankrupt act 
before 18G1 was the omission from that statute 
of all provisions for the ascertaining of such 
damages, /bid. 
09 L. R. A. 

The decision In People v. Globe Mut. L. Ins, 
Co. 91 N. Y. 174, nutwltl^standlng an Intima- 
tion In the opinion that the insolvency of a cor- 
poration is equivalent to death In cases of con- 
tract for skilled personal services, was not rest- 
ed upon that ground, but was based upon the 
proposition that the service was Interrupted by 
the act of the state, and that it was not shown 
that dlsHoIutlon was the result of any fault of 
the corporation. Bolles v. Crescent Drug & 
Chemical Co. 53 N. J. Eq. 614, 32 Atl. lOGl. 

One employed at a stated salary under a 
written contract by a corporation, which, be- 
coming insolvent, made a general assignment 
for the beueflt of its creditors, and who con- 
tinued in the dlscnarge of his duties until after 
the assignment, and until discharged by the as- 
signee. Is a claimant for damages for the breach 
of his contract, and when he diligently seeks 
other employment, and makes the most advan- 
tageous agreement open to him, is entitled to 
participate In the distribution of the assigned 
estate on the basis of his contracted salary af- 
ter crediting the earnings of his sultsequent new 
employment. I'arker v. Hull, 46 111. App. 471. 

Where a corporation ceases, in consequence 
of the destruction of its works by fire, to carry 
on its business, the fact is no defense to the 
claim of an employee hired unquallOedly for a 
year for damages because of his discharge for 
that reason. Kustman v. Eastman & M. Co. 1 
N. Y. Supp. 16. 

The fact that a corpuratlon has been sold out 
on execution does not Justify an employee in 
treating as abrogated a contract with it for his 
services. Nash v. 11. R. Gladding Co. 118 Mich. 
529, 77 N. W. 7. 

The insolvency of individuals, followed by an 
assignment for creditors, a discontinuance of 
business, dissolution of their partnership, and 
discharge of their employees, will not absolve 
them trom their obligation to pay salary to an 
employee without fault w^hose term of employ- 
ment has nut expired, if he does not assent to 
the termination of his contract. Vanuxem v. 
Bos t wick, 19 W. N. C. 74, 7 Atl. 598. 

Insolvency of a corporate employer does not 
put an end to a contract to pay for services so 
as to deprive the employee of his salary after 
the insolvency. Hassenfus t. Philadelphia 
Packing & Provision Co. 15 Pa. Co. Ct. 650, 
Following Vanuxem v. Bostwick, 10 W. N. C. 
74, 7 Atl. 598. 

The appointment by a court of chancery, at 

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Gbiffith v. Blackwateb B. & L. Co. 


cannot take an equivocal position, waiting 
for time to reveal whether it will prove to 
be a good contract or a bad contract, and 
% then accept it or reject it as may best sub- 
serve their own interest. Neither law nor 
equity permitr. any person intentionally to 
mislead another to his injuiy. Having, by 
their silence, led Thompson to believe that 
they would not disavow his contract, their 
cbiection to it« after he has acted upon it, 
comes too late to deprive him of compensa- 
tion for his labor and outlay. 

Having thus seen that no principle of 
li.w, nor any decided case, withholds from 
the appellee compensation for his outlay, as 
the legal consequence of the termination of 
hi'* contract before completion thereof on 
either of the tw^o grounds on which it was 

terminated, there is nothing in the former 
decision to deprive him of it. The language 
of both the opinion and syllabus is broad 
enough to carry it, and the principles de- 
clared do not inhibit it. So, according to 
both the letter and the spirit of the decision, 
he is entitled to it, unless precluded on some 
other ground. 

Another objection urged against the al- 
lowance of Thompson's claim is the alleged 
purchase by him of the property of the 
Blackwater Boom &, Lumber Company at 
the sale under the decree of June 23, 1893, 
and confirmed by the decree of August 4, 
1893, as to which sale, and the terms and 
conditions thereof, see the opinion filed on 
the former appeal. 46 W. Va. 56, 59, 33 S. 
E. 126. The ostensible purchaser at this 

tlie instance of debenture bondholders, of a 
manaj^er and receiver of a corporation, Is like 
the caae of a mortgage taking possession upon 
the default of the mortgagor, and is equivalent 
to a dismissal of the latter*8 servants, and that 
dismissal is so far wrongful as to afford the 
employees rights of action where they have run- 
nliii; contracts protecting them from summary 
discharge. An employee, however, who may he 
discharged upon notice of a stated length of 
time, and who is continued in service of the 
manager and receiver for the period to be cov- 
ei-cd by iiuch notice, has no cause of action, for 
he has not been damnified. Beid ▼. Explosives 
Co. U 11. 19 Q. B. Div. 264, 56 L. J. Q. B. N. S. 
388. 57 I^ T. N. S. 439, 36 Week. Kep. 609. 

In England an order for winding up a cor- 
poration uunder the companies act of 1862 oper- 
at«>s as a notice of discharge of clerks and ser- 
vants from the employ of the corporation. Re 
< General Rolling Stock Co. 35 Beav. 207, L. B. 1 
Eq. 'M6, 12 Jur. N. 8. 44. 

When an English corporation becomes hope- 
lesjily and Irretrievably insolvent, and there is 
really nothing for its clerks to do, a notice, a 
few days after the winding-up order under the 
companies act of 1862, that their services are 
not longer required, may be considered as dat- 
ing back to the day of the order ; but where 
there is a special contract, and the clerk con- 
tinues In the employment, he Is entitled to his 
salary. Re English Joint Stock Bank, L. B. 8 
Eq. 341, 15 L. T. N. 8. 628. 

But In New York one employed by a corpora- 
tion for a year at an annual salary, and dis- 
charged before it expires by a receiver ap- 
pointed in an action by a Judgment creditor to 
sequestrate and distribute the corporate prop- 
erty, and who has sustained damages in the 
amount of the balance of his stipulated salary 
to the end of the year less what he earns in 
the meantime, cannot participate in the re- 
ceipt of dividends to creditors, since he was 
not. at the appointment of the receiver, a cred- 
itor of the corporation, there having up to that 
time been no brench of his contract. Eddy v. 
Co operative Dress Asso. 3 N. Y. Civ. Proc. Rep. 

In reaching this conclusion, Cullen, J., relied 
upon and followed the case of People v. Globe 
Mnt. L. Ins. Co., at that time only decided by 
the New York supreme court (64 How. Pr. 
-40 j, but later affirmed by the court of appeals 
(91 N. Y. 174). Ue held that the final decree 
G9 1^ R, A. 

of sequestration worked a dissolution of the 
corporation and differentiated the case from 
those wherein only a temporary receiver pen- 
dente lite had been appointed and the corporate 
life continued. Then, said he, the assets of the 
company were subject to the clalma of existing 
creditors at the time of the receiver's appoint- 
ment, and until these were satisfied could not 
be used for any other purpose. At that time no 
liability had accrued to the employee, and 
might never accrue. He added that, if the cor- 
poration continues in existence, there may be a 
valid claim against it; but there is not a right 
to sliare in the fund to the detriment of other 

X. Remedies, 
a. Abstract. 

Whatever technical difficulties exist in main- 
taining an action at law by or against a corpo- 
ration after its charter has been repealed, in 
the apprehension of a court of equity there is 
no difficulty in a creditor following the property 
of a corporation into the hands #f anyone not 
a bona fide creditor or purchaser, and asserting 
his Hen thereon, and obtaining satisfaction of 
his debt out of that fund specifically set apart 
for Its payment when the debt was contracted 
and charged with a trust for all the creditors 
when in the hands of the corporation; which 
trust the repeal of the charter does not de- 
stroy. Curran v. Arkansas, 16 How. 304, 14 L. 
ed. 705. 

Although by dissolution debts due to or from 
a corporation are extinguished because there 
Is no one in law to sue or be sued, yet the indi- 
viduals who composed such corporation (and 
corporations agRregate are but associations of in- 
dividuals) may, by contract or in law, never- 
theless have incurred liabilities which will sur- 
vive their charter, and be enforced at law or in 
equity according to the circumstances of the 
case. High tower v. Thornton, 8 Ga. 486, 62 
Am. Dec. 412. 

I must think, said Lumpkin, J., of the su- 
preme court of Georgia, that the legal world 
with great unanimity will hold that the science 
of jurisprudence Is deplorably defective If the 
assets of a corporation, and among these the 
capital stock authorized to be invested and to 
which the public looks with confldonce for se- 
curity and indemnity, cannot be rescued 

Digitized by VjOOQIC 


N^'EBT ViBoiiNiA Supreme Ck)UBT of Appeals. 


sale was W. H. Osterhout, but the Thomp- 
sons, the appellee and his son, F. E. Thomp- 
son, furnished him, on some sort of terms, 
part, if not all, of the money for the cash 
payment, and became his sureties on the 
notes for the deferred payments. After the 
sale a new mill was purchased and erected 
in the place of the one which had been 
burned down under the receivership, a new 
company was organized, — ^the Blackwater 
Lumber Company, — ^and the stocking, cut- 
ting, and marketing of the timber were re- 
sumed under the management of Frank E. 
Thompson, and so continued until the time 
of his death, by which event the appellee 
became the owner, by the statutes of de- 
scent and distribution, of all the estate of 
F. £. Thompson, including a large amount 

of timber to be cut at the mill under con- 
tract. The appellee then resumed the man- 
agement of the mill and property, paid part 
of the money due on the notes, and in 189S # 
purchased the interest of Osterhout, and is 
now substantially the owner of all the prop- 
erty. He claims to have sold to the new 
company his locomotives, cars, steel rails, 
splices, teams, camp outfits, tools, and ap- 
pliances of all kinds. In addition to the 
circumstances indicating that the Thomp- 
sons were the real purchasers, a witness tes- 
tifies that he had a conversation with them 
and Osterhout, in which they assured him 
that the mill and stocking business would 
go on after the sale as they had been run 
prior thereto. Thompson denies having 
made the purchase. Whether the charge is 

planks from the wreck," and saved for deposit- 
ors, bill holders, and other creditors ; and that, 
ulthuuKli ttie corpuration Is dissolved, with or 
without legislative interference, a court of 
equity will devise a mode for the purposes of 
the remedy to hold the true parties to their Just 
obligations. Ibid. 

b. Concrete, 

The doctrine Is clearly established that courts 
of equity are without Jurisdiction to decree the 
dissolution of a corporation and the forfeiture 
of Its franchise, cither at the suit of an indi- 
vidual or the state, unless such Jurisdiction is 
conferred by statute. But, In virtue of its gen- 
eral jurisdiction over trusts, and to give relief 
where legal remedies are Inadequate, a court of 
equity may, recognising the existence of a cor- 
poration. Interpose to prevent dissipation and 
misapplication of Its property and assets when 
it has ceased to do business, and make a Just 
and equitable distribution thereof to whatever 
creditors and shareholders may be thereunto en- 
titled. Stamm v. Northwestern Mut. Ben. Asso. 
65 Mich. 317, 9 N. W. 710. 

A suit In equity against the stockholders of 
an Insolvent corporation may be maintained to 
collect unpaid subscriptions to be applied in 
payment of the corporate debts. Roblson v. 
Carey, 8 Ga, 531. 

A stockholder In an Insolvent corporation is 
liable for his subscription as part of a trust 
fund for beneflt of creditors. Scott v. Latimer, 
83 C. C. A. 1, 60 U. S. App. 720, 89 Fed. 852. 

When a statute affords a remedy against 
stockholders to creditors of an existing corpo- 
ration, the remedy is open, although the corpo- 
ration has ceased active operations, and has no 
persons in office as president, directors, etc., 
provided there has been no actual dissolution, 
expiration of charter, or forfeiture of the fran- 
chise. Curry v. Woodward, 63 Ala. 371. 

Notwithstanding the annulment of the char- 
ter of a corporation by the Judgment of a com- 
petent court in quo warranto proceedings insti- 
tuted by the state, its creditors may compel the 
subscribers to its stock to pay up their sub- 
scriptions, although these were repudiated upon 
the mound the corporation had no legal exist- 
ence. (Jaflr V. Flesher, 33 Ohio St. 107. 

In sustaining the right of a Judgment cred- 
itor of a dl-ssolved and ln.solvent corporntlon to 
recover the debt against one of the stockhold- 
09 L. R. A. 

ers, the New York commission of appeals, by 
Reynolds, C, said: With the nice distinction 
between law and equity, we are not troubled in 
this case, nor even as to the form of the ac- 
tion. The plalntiflT is a creditor of the corpora- 
tion upon a Judgment duly obtained, and the 
company has no property In the state that can 
be taken on execution. The defendant ist found 
In possession of corporate assets more than suf- 
ficient to pay the plain tiif's demand, and the 
law requires that he should pay it. It does not 
matter how he got It, whether by fair agree- 
ment with his associates, or wrongful act ; it Is 
enough that he had It, and that It should have 
been devoted to paying the corporate debts. 
His claim as a stockholder cannot prevail over 
a creditor's prior right. Bartlett v. Drew, 57 
N. r. 587, Followed in Bastings v. Drew, 76 
N. Y. 9. 

A transfer by a corporation of all Its prop- 
erty and assets, which Involves the destruction 
of the corporation and an abandonment of the 
purposes of its organization, is illegal as against 
creditors whose rights thereby are sacrificed 
and whose remedies thus are destroyed. Cole 
V. Milleiton Iron Co. 133 N. Y. 164, 28 Am. St. 
Rep. 615, »0 N. E. 847. 

The mere fact that the property of a corpora- 
tion Is a trust fund for the payment of creditors 
does not authorize the creditor to ask a court 
of equity to follow it into the hands of the 
stockholders and decree its payment to him. 
without alleging facta to show that his legal 
remedy would be unavailing and the interposi- 
tion of a court of equity needful to enable him 
to obtain payment of his demand. Dudley y. 
Price, 10 B. Mon. 84. 

The mere fact that a corporation !s an In- 
solvent debtor In the insolvent court of a state, 
and there has been appointed therein an as- 
signee of Its property, will not bar, even in 
equity, one of its contract creditors from pro- 
ceeding to Judgment against It in an action at 
law. when the insolvency proceedings cannot by 
statute eventuate in the discharge of the cor- 
porate debtor, and when, also, by statute, the 
creditor must ootain Judgment against the 
corporation before he can pursue its stockhold- 
ers. MlMcr V. Waldoborough Packing Co. 88 
Me. 605, 34 Atl. 527. 

A creditor of a bank upon Its circulating 
notes after the corporate charter has expired 
cannot maintain an action at law against one of 
its stockholders predicated upon the division of 

Digitized by 



Griffith v. Blackwateb B. & L. Co. 


true is not of contToUing importance, for 
reasons now to be given. 

Having erected its mill and obtained con- 
tracts of purchase of the timber standing on 
large 1^;racts of land in the vicinity thereof, 
and commenced its operations, the Blackwa- 
ter Boom & Lumber Company, on the 18th 
day of June, 1890, entered into a contract 
with S. W. Thompson and the appellee, Al- 
bert Thomps6n, for cutting and delivering 
said timber at the mill at certain specified 
prices per thousand feet. The lands men- 
tioned in the contract from which the tim- 
ber was to be so taken are those of the 
Marshall Coal & Lumber Company, contain- 
ing 12,000 acres, lying on both sides of the 
Blackwater river, H. C. Davis & Bros., Wm. 
H. Harness, J. G. Harness, W. W. Harness, 

H. C. Harness, H. J. Cooper, J. W. Parsons, 
C. S. Harness, I. H. Kuykendall, Jacob Van 
Meter, and Ann Van Meter. In all the 
contracts for the purchase of the timber on 
these lands by the Blackwater Boom & 
Lumber Company, there were certain 
covenants, and, among others, time limits 
for the removal of the timber; and the 
contract made with the Thompsons contain 
this clause: "All of said contracts are to 
be kept and observed as to detail by said 
Thompsons as binding upon them." Part of 
these lands lay along and near enough to 
the river to make it practicable to put the 
logs into it and drive them to the mi]], 
while from others tlie timber had to be 
hauled. So the contract required the 
Thompsons to put the logs into the "mill 

the capital amoDg tbem on the dissolution 
without adequate provlBion to pay the note 
holders; the only remedy is by bill in chancery 
la behalf of all creditors, bringing In the stock- 
hoMers and compelling restitution and pro rata 
distribution according to the justice of the 
case. Vose y. Grant, 15 Mass. 505. 

There Is no mode at common law whereby a 
single creditor of a banking corporation whose 
charter has expired by limitation can compel 
any one stockholder to pay him the amount of 
hU stock. If any remedy to this effect exists it 
must be sought in a tribunal having power to 
act over the whole subject-matter equitably, 
and BO as to adjust the varied claims and di- 
verse liabilities, and make a final and just dis- 
tribution to those entitled to the fund. Spear v. 
Grant, 16 Mass. 9. 

XI. Construction and elfeot of statutes. 

Admitting that. In the absence of any statute 
to the contrary, the common-law rule that the 
clTil death of a corporation extinguishes all 
debts due to or from It still applies to actions 
at law, jet, as It is manifest thac the modern 
business and commercial corporation is not 
within the reason of the rule, and that the rule 
Itself has been generally superseded by legisla- 
tion, the provisions of a statute in point ought 
to be so construed, If possible, as to keep the 
case out of the ruie and accomplish the mani- 
fest purpose of the legislature, viz., to allow a 
corporation to terminate its existence and col- 
lect and distribute its assets In its own name 
whenever and by any means deemed best by its 
stockholders. Wallamet Falls Canal & Lock Co. 
V. Kittridge, 5 Sawy. 44, Fed. Gas. No. 17,105. 

Insolvency, as applied to corporations, and 
which brings Into play the statute of New Jer- 
sey <P. L. 1896, pp. 277, 298) givinj? effect to 
the American trust-fund doctrine, denotes "a 
general inability to meet pecuniary 1 labilities 
as they mature by means of either available 
assets or an honest use of credit." Empire 
Bute Trust Co. v. Wm. F. Fisher & Co. (N. J.) 
60 All. 040. 

In Tennessee, although the liabilities of a 
corporation greatly exceed Its assets, it is not 
insolTent, in such sense as to make its assets a 
trust fund for pro rata distribution to its cred- 
itors. If it continues a going concern con- 
ducting business in the ordinary way. Trades- 
man inib. Co. V. KnoxviUe Car Wheel Co. 95 
Trnn. 634, 81 L. R. A. 593, 49 Am. St. Rep. 
69 L. R. A, • 

943, 32 S. W. 1097; McCIaren v. Union Roller 
Mills &. Elevator Co. 95 Tenn. 696. 35 S. W. 88. 

Companies created in Delaware with bank- 
ing powers are corporations unlike the English 
incorporated towns. They are mere creatures 
of the law deriving existence and all rights and 
powers, expressly or incidentally, from the law 
which created them. Perpetual succession Is 
not one of their attributes. In their charter the 
days of (heir existence are numbered, and their 
period of dls.solutlon fixed. If their charter be 
not extended, the moment that period arrives 
the corporation stands, not dormant, disabled, 
or Incapable of action merely, but absolutely 
dissolved, civilly dead, without life or being, 
and altogether at an end. Their condition when 
their charters expire Is not the same as that of 
an Incorporated town which has failed to elect 
Its ofllcers and thus become inactive. Their life 
has gone out by their own constitution : they 
are not simply without active being through 
failure to do what they were entitled to do. 
They are dead, not dormant, and the principles 
of law applicable to a corporation thus dormant 
or disabled are not the same as those which 
apply to a corporation dissolved or civilly dead. 
An act of the legislature may awake and re- 
vive the one ; it can only create a new corpora- 
tion in the place of that which became defunct. 
Commercial Bank v. I^ckwood, 2 Harr. 
(Del.) 8. 

The legislature of New York, by Its act of 
April 9th, 1811 (1 Rev. Stat. 248), re enacted 
in the revision of IsriO (1 Rev. Stat. 600, «{ 9, 
10), to the effect that, upon the dissolution of 
any corporation, Its directors or others ap- 
pointed by competent authority shall be trus- 
'■<« iv.r its creditors and stockholders to settle 
Its affairs, collect Its outstandings, pay its 
debts, and divide among Its stockholders what is 
left after paying necessary * expenses, took 
means to remedy the gross injustice of the com- 
mon law rule, and abolished it, establishing the 
equitable rule in Its stead. Owen v. Smith, 31 
Barb. 641. 

in New York the dissolution of a corpora- 
tion does not have the effect to terminate a 
lease for years and discharge a covenant to 
pay rent. Under the statutes of that state, 
upon the dissolution of a corporation its assets 
become a trust fund for the payment of Its 
debts, and these Include debts to mature as well 
as accrued Indebtedness, and all engagements 
entered into by the corporation which have 

Digitized by 



West Vibginia Supreme Coubt of Appeai^. 


pond at Davis in summer and to buHchain 
in winter." Owning the land on both sides 
of the Blaekwater river, the Marshall Coal 
^ Lumber Company, in its contract of sale 
of the timber to the Blaekwater Boom & 
Lumber Company, granted to it the free and 
exclusive use of the river and its branches 
for lloating, booming, and manufacturing 
its timber, with the right to erect dams and 
mills for such purpose, and also the right 
to construct, on its lands, tramroads for 
hauling the timber. 

In the light of these facts, the following 
clauses of the Thompson stocking contract 
are to be read and kept in mind, together 
with what Thompson did under the contract, 
in order to clearly understand his situation 
when the property and rights of the Black- 
water Boom & Lumber Company were sold 
free and discharged from the obligations of 
his contract: 

*'9th. Said Thompsons agree to make all 
river improvements and repairs to river 
piers, dams, booms, etc., while said river im- 
provements are used by them, excepting al- 
ways dams, piers, booms, etc., at the mill; 
but said Thompsons agree to renew the 
boom and renew the piers, down to the 
water even at the mill pond, once during 
this contract when said boom and piers need 
said repairs; and said Blaekwater Boom & 
Lumber Company agree to furnish the stand- 
ing timber for said repairs to Davis boom 
and piers at mill. 

"10. The Blaekwater Boom & Lumber 
Company agree to sell, and S. W. and A. 
Thompson agree to purchase, all effects used 

by said company in stocking and driving as 
follows, to wit, horses, harness, wagons, 
tools, supplies, and camp outfits; also 
company's blacksmith shop at Davis, with 
its tools and supplies in shop and ordered; 
all effects at a fair valuation, but if parties 
cannot agree at a fair valuation then the 
valuation of above property shall be decided 
by a board of arbitration, to be composed of 
parties agreeable to both parties hereto. It 
is mutually agreed that 'one have' the pur- 
chase price of above property be paid on 
20th Aug. and one half be paid on 20th 
Sept., 1890. 

"11th. It is mutually agreed by the par- 
ties hereto that in case any improvements 
not sold as above provided for be used by 
said Thompsons, such as camps, slides, etc, 
said Thompsons agree to pay for use of 
same, excepting camps along the river, for 
which no charge is to be made, for a consid- 
eration to be agreed upon. 

"12th. The Blaekwater Boom & Lumber 
Company agree to grant to said S. W. and A. 
Thompson all the rights and privileges held 
by them under the Marshall C. & S. Company 
contract and under other contracts to erect 
dams, booms, piers, and erect and build 
bridges and tramroads, but only for the 
purpose of carrying out this contract; and 
the said Blaekwater Boom & Lumber Com- 
pany agree to proceed under their contract 
for the purpose of condemning rights of way, 
etc., provided said Thompsons pay all costs, 
judgments, and damages under said con- 
demnation proceedings, always provided 

not been fully satisfied or canceled. People v. 
Xrttlonal Trust Co. 82 N. Y. 283. 

A lesHor, therefore. Is entitled to recover sub- 
sequently accruing rent to the end of the lease 
from the receiver of such a dissolved corpora- 
tion, and, in case the premises have been va- 
cated, and he relets them to a new tenant, he 
Is entitled to the difference between the new 
rent received and that reserved in the. lease. 
People V. St. Nicholas Bank, 151 N. Y. 592, 45 
N. E. 1120. 

A statute for the winding up, through a 
receHer of corporations adjudged insolvent, 
whereby the corporate assets Including rights 
of action, damages, and demands of every na- 
ture existing at the time of the insolvency, or 
accruing subsequently thereto, are to be col- 
lected by the receiver, and their proceeds dis- 
tributed by him among the creditors of the cor- 
poration In proportion to the amounts of their 
debts, does not use the terms "creditors" and 
•'debt a" in any narrow, restrictive, or technical 
sense, but as covering all just liabilities. Includ- 
ing claims for damages for breaches of contract 
for personal service. Spader v. Mural Decora- 
tion Mfg. Co. 47 N. J. Eq. 18. 20 Atl. 378. 

Whether, upon general principles, the dlsso- 
lull«»n of a corporation by the voluntary act of 
its stockholders has the same effect upon the 
status of Its property and the rights of cred- 
itors as does Its extinction by expiration of its 
69 L. R. A. 

charter, or a decree of forfeiture by a compe- 
tent Judicial tribunal. In Iowa, by statute (Rev. 
Stat. 1865, i 1171), such a dissolution does not 
take away the power to act In winding up its 
affairs, or the right of a creditor (in equity, at 
least) to relief from the inequitable conse- 
quences of such a dissolution. Muscatine Turn 
Verein v. Funck, 18 Iowa, 469. 

Under the provisions of a statute for 
placing the property of Insolvent banks and 
trust companies in the custody of the law, to be 
converted into money and divided among their 
creditors, upon the appointment o^ an assignee 
the corporation is practically dissolved. The in- 
solvency proceedings do not revoke corporate 
contracts, nor excuse the corporation from per- 
forming them. They disable it from performing 
the executory parts of such contracts, and en- 
title the other parties to them to an allowance 
of reasonable damages for the breaches of con- 
tract thus occasioned. Bank Comrs. v. New 
Hampshire Trust Co. 69 N. H. 621, 44 Atl. 

The common-law rule respecting the effect of 
dissolution upon the property and assets of a 
corporation does not, under the statutes of 
Texas, apply to stock corporations. On the dis- 
solution of a stock corporation In that state Its 
assets become a trust fund fCr the discharge 
of its liabilities, and the surplus belongs to the 
shareholders. Equity will always find means to 

Digitized by VjOOQIC- 


Gru'fith v. Black wateb B. & L. Co. 


^id Thompsons require said proceedings to 
carry out this contract." 

Thompson shows that under this contract 
he expended $1,700 on the dams in the river, 
and constructed 2^4 miles of tramroad, 
called the ''Harness tramroad," at a cost, 
exclusive of rails, splices, spikes, and 
switches, of $3,200, and 11 210/320 miles of 
standard gauge tramroad at a cost, as afore- 
said, of $19,582.25, besides two bridges 
across the Blackwater river at a cost of 
$1,200. In addition to this, he built engine 
houses, a repair shop, sand house, and neces- 
sary switches, put the steel on the roads, 
and equipped them with three locomotives 
and cars, making a total outlay of $53,- 
2o8.60, according to a statement filed as an 
exhibit vith his petition. As tested by the 
items credited in the commissioner's report 
to the railroad and the tramroad accounts, 
this estimate appears to be under, rather 
than above, the actual cost. A. large portion 
of this expense, it will be observed, was on 
account of the dams, bridges, and cutting 
and grading of roads, which, by clause 12 
of the contract, could be used by Thompson 
for no other purpose than that of the per- 
formance of his contract. By selling the 
Blackwater Boom & Lumber Company's 
property discharged from his contract, the 
purchaser obtained the benefit of these im- 
provements. Though the rolling stock and 
the materials of the railroad might have 
been taken away and held by Thompson, the 
benefit of his expenditures upon the dams 
and bridges and in the opening and grading 
of roads would have gone to the purchaser. 

At the time of the sale there were several 
millions of feet of timber lying in the woods 
and streams on which work had been done 
to the amount of $12,399.63, payment of 
which could not be demanded by Thompson 
under the contract until after actual deliv- 
ery, which was prevented by. the court. The 
purchaser took this timber discharged of 
Thompson's claim for the labor done on it. 
Having completed and equipped his tram- 
roads at great cost, he was in a position to 
earn profits in the performance of the un- 
executed part of his contract, and by pur- 
chasing the property himself, if he did so, 
he thereby paid into the hands of the court 
the supposed value of his work on the dams, 
bridges, roads, etc., and said sum of $12,- 
399.63 due to himself for work done on tim- 
ber not delivered. His bid may not have 
provided for any profits,* as by becoming the 
purchaser he secured to himself the right to 
continue and complete the logging of the 
timber. Had he purchased subject to his 
contract, the sale would not have deprived 
him of the benefit of his permanent improve- 
ments, and he would have been compelled 
to pay, in addition to the purchase money, 
said sum of $12,399.63 due to himself, as 
well as profits thereafter accruing by the 
completion of the logging contract. If Oster- 
hout was a bona fide purchaser of the prop- 
erty discharged of the Thompson contract, 
it is perfectly clear that he obtained and 
paid for said permanent improvements, and 
the timber on which Thompson had done 
work for which he had not been paid. What 
he paid for thesje went into the hands of the 

collect the corporate debts after dissolution -for 
the benefit of either creditors or stockholders. 
Sulphur Springs & M. P. R. Co. v. St. Louis, 
A. & T. R. Co. 2 Tex. Civ. App. 650, 22 S. W. 
107. 23 S. W. 1012. 

The forfeiture of the franchise of a railway 
company In respect of the nnfinlshed part of 
iu road under the Texas statute, which Is self- 
ezecutlni;. does not affect its corporate exist- 
ence or property rights In the completed part of 
its line. Ibid, 

Under the statutes of Texas the forfeiture of 
the charter of a railway corporation does not 
devest without compensation the stockholders 
of their property right in the roadbed, acquired 
by their means. This proposition Is in harmony 
with the decision In People ▼. O'Brien, 111 N. 
T. 1, 2 L. R. A. 255, 7 Am. St. Rep. 684, 18 N. 
E. 692, construing statutes of New York similar 
in terms to those of Texas. The decision in 
Erie & N. E. R. Co. v. Casey, 26 Pa. 287, to the 
contrary effect can only be sustained in the ab- 
»ence of statutes in those Jurisdictions where 
the strict rule of the common law Is in force 
respecting the property of dissolved corpora- 
tions. Ibid. Stephens, J., however, dissented on 
this point. 

XII. Conclusion, 

The general trend of the decisions, notwith- 
•tinding much disagreement and many back- 
«9 L. R. A. 

ward glances at the early doctrine of the com- 
mon law, makes It reasonably safe to conclude 
that, upon the civil death by dissolution of a 
corporation, especially if its demise be suicidal, 
the obligations of its contracts with those en- 
gaged to render It service will survive in all 
cases where they would survive the death of a 
natural employer ; and that claims arising upon 
such contracts stand in the same relation to the 
property and assets of the dissolved corpora- 
tion as do other unliquidated claims arising 
upon other contracts. The rule deducible from 
the New York cases in respect of the effect of 
compulsory dissolution upon running contracts 
not otherwise broken, and claims for damages 
on account of their loss, has met with only par- 
tial acceptance, and Its general recognition lies 
in the future, and cannot be confidently pre- 
dicted. It may be suggested that, under its op- 
eration, cases may arise where, In the course 
of administering the estate of a dead corpora- 
tion, all Its creditors would be paid in full and 
something be left for its stockholders. The 
gross injustice of excluding from any share in 
the property and assets of claims for damages 
for abruptly canceled employment contracts Is 
so obvious that the rule appears unsound. 
Should such a case arise It is probable the 
grounds upon which It rests would be critically 
nvoxnmlned before the rule would be allowed 
to stand. r^'^y9r^]r^ 

Digitized by VjOOQ IC 


West Virginia Supreme Court of Appeals. 


court, and Thompson is equitably entitled 
to it. If, on the other hand, Thompson was, 
in fact, the purchaser, he purchased on the 
same basis, and paid his own money into 
court, to be returned to him to the extent 
of the value of said improvements and the 
amount due for work done on timber. As- 
suming that Thompson put in both bids, — 
$72,500 subject to .his contract, and $110,- 
000 discharged from his contract, — ^the lat- 
ter having been confirmed, the difference of 
$37,500 indicates that a large amount was 
paid by him for the privilege of retaining 
the benefit of his expenditures. It also indi- 
cates that the bidders, parties to the suit, 
and the court, in ordering and confirming 
the sale, understood that on one basis the 
purchaser should allow Thompson to con- 
tinue his contract and pay him all demands 
thereafter accruing under it, and that on 
the other he should not be liable to Thomp- 
son for anything, and that Thompson should 
look to the purchase money in the hands of 
the court for the satisfaction of any claims 
he might have. 

In cases of breach of contract, money paid 
out and expended by the plaintiff to prevent 
or lessen the resulting damages is recover- 
able. A man is not precluded from recover- 
ing because it is in his power, by the expend- 
iture of his own money, to save himself 
from the injury inflicted by the other party. 
Sutherland on Damages, in treating of the 
elements of damages, says, at § 88, 3d ed.: 
"Fifth, such losses may consist of labor 
done and expenses incurred to prevent or 
lessen damages which would otherwise re- 
sult from the defendant's default or miscon- 
duct. The law imposes upon a party in- 
jured by another's breach of contract or tort 
tlie active duty of using all ordinary care 
and Making all reasonable exertions to ren- 
der the injury as light as possible. If by his 
negligence or wilfulness he allows the dam- 
ages to be unnecessarily enhanced, the in- 
creased loss — ^that which was avoidable by 
the performance of his duty — falls upon 
him. This is a practical obligation under 
a great variety of circumstances, and. as 
the damages which are suffered by a failure 
to perform it are not recoverable, it is of 
much importance. Where it exists, the 
labor or expense which its performance in- 
volves is chargeable to the party liable for 
the injury thus mitigated; in other words, 
the reasonable cost of the measures which 
the injured party is bound to take to lessen 
the damages, whether adopted or not, will 
measure the compensation the party in- 
jured can recover for the injury, or the part 
of it that such measures have or would have 
prevented. This is on the principle that, if 
the efforts made are successful, the defend- 
ant will have the benefit of them; if they 
UU L. R. A- 

prove abortive, it is but just that the ex- 
pense attending them shall be borne by 
him." The latter part of the same section 
demonstrates the duty to make the loss as 
light as possible in case of notice of rescis- 
sion given by one party to the otner, but it 
also appears that money expended in doing 
so is recoverable. This equitable and com- 
mon-sense principle must be applied here, 
and therefore, if Thompson was the actual 
purchaser, the circumstance does not pre- 
clude the allowance of his claim. 

In support of the view here taken, the fol- 
lowing is quoted from the decree of confir- 
mation of the sale: *'The said special re- 
ceiver is directed to execute and deliver to- 
the said W^illiam H. Osterhout, the pur- 
chaser, a deed conveying to him all the 
property, real and personal, and also all the 
corporate i^ights, powers, privileges, and 
franchises, of the said Black water Boom & 
Lumber Company, together with all the im- 
provements made in said Blackwater river 
and its tributaries, including dams, piers, 
and booms, and all standing timber belun,!;- 
ing to said company, and all the rights,, 
powers, and privileges conferred upon said 
company under and by virtue of the con- 
tract? set forth in the decree of sale, other 
than the logging contracts with S. W. and 
A. Thompson; and in said deed said receiver 
shall reserve a lien for unpaid purclmse 
money upon the real estate conveyed, and 
upon the leasehold property held under 
leases from 11. G. Davis and others, and 
upon all improvements thereon; and the- 
said receiver, Fairfax S. Landstreet, is di- 
rected forthwith to turn over and deliver 
to the said purchaser, William H. Oster- 
hout, the possession of all said property,, 
real and personal, and all the original tim- 
ber contracts aforesaid." 

If the price paid was inadequafe, it is too 
late to suggest that the inadequacy is the 
result of manipulation on the part of 
Thompson, or of collusion between him and 
Osterhout. That would have been ground 
for resisting confirmation of the sale, but it 
can have no l)earing on the question of 
Thompson's right to compensation or the 
amount thereof. The sale was widely adver- 
tised, and was public and open to the world, 
and the confirmation without objection on 
the part of creditors or stockholders estops 
them from denying the fairness of the sale 
or adequacy of the price. At any rate, it has 
no connection whatever with the matter now 
under consideration. 

The foregoing principles and conclusions 
settle the most important question in the 
case, but do not cover the exceptions touch- 
ing specific items entering into the account, 
the mode of statement, and the evidence up- 
on which the bahince strucl$ depends. Un- 
Digitized by VjOOQIC 


QjUFFiTu V. Blackwateb B. & L. Ca 


der exceptions 1, 2, 3, 6, 12, and 13, it is in- 
fisted that Thompson's contract was di- 
visible, that the executed part of it could 
not be considered in ascertaining his com- 
pensation, and that th^ sums expended in 
getting out the timber which had been paid 
lor, and the amounts received on account 
of it, should not have been charged and 
credited in^ the statement, for the reason 
that if, in any instance, Thompson had lost 
money on any particular lot of timber, the 
loss was, by such method of statement, 
wrongfully charged to the company, since it 
ought to be borne by Thompson, and if, in 
any instance, a profit had resulted, it was 
wrongfully given to the company, as it be- 
longed to Thompson. If, on the last-stated 
hypothesis, any error has been committed, it 
is not prejudicial, but beneficial, to the ap- 
pellants, and they cannot complain of it. If, 
on the former, any error was committed, it 
is prejudicial, but the burden is upon the 
appellants to show that such losses sus- 
tained were carried into the general bal- 
ance against the company. This they have 
failed to do. They point out no instance of 
''uch charge, and have introduced no evi- 
dence showing it. Moreover, it is a question 
of fact on which the commissioner and the 
court below have passed, and their finding 
cannot be disturbed by this court unless 
plainly wrong. How is it possible to de- 
termine the amount of compensation on the 
ba^is of charging all expenditures and the 
value of work and labor, and crediting all 
sums received, without including those re- 
lating to the executed part of the contract? 
The lengthy argument of the brief on this 
point not only fails to point out any wrong 
<lone, but also to show how it is possible to 
arrive at the amount necessary to reimburse 
for outlay in any other way with any degree 
of certainty. 

Exceptions 9, 10, 11, 14, 15, and 17 pre- 
sent the contention that the expenditures 
for permanent improvements and prepara- 
tions for the execution of the contract 
-should be apportioned between the executed 
and unexecuted parts of the contract, on the 
theory that if, when interrupted, his con- 
tract was three-fifths performed, he should 
!«* allowed only two fifths of such expendi- 
tures. The authorities cited for this do not 
Hipport it. The first is Watta v. Camora, 
115 U. a 353, 29 L. ed. 406, 6 Sup. Ct. Rep. 
91, holding that a clause in a charter party 
whereby the parties bind themselves, etc., 
'*in the penal sum of estimated amount of 
freight," to the performance of the agree- 
in«'nt« contained in the contract, is not a 
stipulation for liquidated damages, and is 
diMli&iged by payment of the actual dam- 
agJi sustained by breach of the agreement. 
Another is Dalbeattie 8. 8, Co, v. Card, 59 
«» L. R. A. 

Fed. 159, holding as follows: "In awarding 
damages against a cliarterer for refusing a 
vessel, the net freight earned by obtaining 
another — less valuable— cargo is to be de- 
ducted from the sum which would have been 
earned under the charter." Another is 
Baker Transfer Co, v. Merchants* Refriger- 
ator d Ice Mfg. Co. 12 App. Div. 260, 42 N. 
Y. Supp. 76, applying the principle of the 
last-named case in determining the measure 
of damages for breach of an agreement to 
take and deliver the output of an ice-manu- 
facturing plant. Another is Ewing v. Ood- 
dingy 5 Blackf. 433, an action by a landlord 
against the tenant for breach of an agree- 
ment to deliver one third of the crops as 
rent, in which it was held that in assessing 
the damages the defendant might prove in 
mitigation thereof that after the making of 
the lease the plaintifi', with defendant's con- 
sent, had leased a part of the premises to a 
third person, from whom he had received 
rent for that part. The last one is Jebsen 
V. East d West India Dock Co. L. R. 10 C. 
P. 300, relating to reduction of damages re- 
sulting from a breach of a contract concern- 
ing one ship by applying profits earned with 
another ship. These authorities, except the 
Indiana case, all relate to damages by pre- 
vention of anticipated profits, and not to 
compensation for outlay and expenses, and 
are so obviously inapplicable to the propo- 
sition contended for that it would be a 
waste of time to comment on them. Nor has 
the Kicing v. Codding Case the remotest 
bearing on the question. By consent of par- 
ties, part of the land, and consequently part 
of the rent, were eliminated from the con- 
tract. The proposition is not only unsup- 
ported by any authority, but is also at vari- 
ance with tne law of compensation and re- 
imbursement as laid down by the courts. It 
is an element in every case of damages for 
prevention of the performance of a contract, 
and is ascertained upon the following basis: 
"When one party enters upon the perform- 
ance of a contract, and incurs expense there- 
in, and, being willing to perform it, is, 
without fault of his own, prevented by the 
other party from performing, his loss will 
consist of two distinct items of damage: 
First, his outlay and expenses; second, the 
profits he might have realized by perform- 
ance, which profits are related to the out- 
lays, and include them and something more. 
The first item he may recover in all cases, 
unless the other party can show the con- 
trary." United States v. Behan, 110 U. S. 
338, 28 L. ed. 168, 4 Sup. Ct. Rep. 81. Here 
there is no question of profits. It is one of 
outlay, time, labor, and expenses, and is 
governed by so much of the foregoing mlo 
as relates to reimbursement for outlay. The 
idea of apportionment here contended for is 

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West Vibginia Supreme Coubt of Appeals. 


nowhere to be found in it; nor do its terms 
leave any room for it. "But, as Towne saw 
fit to say that the special contract was not 
binding upon him, it cannot be set up by his 
executor as binding upon the plaintiff. 
King v. Welcome, 5 Gray, 41. It cannot be 
treated as a nullity for one purpose, and as 
a contract for another. It required two 
years for its completion, and both parties 
understood that there was to be no profit or 
advantage to the plaintiff except from the 
operations of both years taken together. A 
large part of the labor and expense incurred 
in the first year had no reference whatever 
to the operations and results of that year, 
taken by itself, but were a preparation of 
the land for increased productiveness in the 
second year. The plaintiff must be consid- 
ered as having in that way paid in advance, 
in part at least, for the privilege of using 
the land the second year in the manner 
agreed upon. By the repudiation of the 
contract he has lost the privilege which he 
had BO paid for. The consideration upon 
which he made that payment has failed by 
the wilful act of the other party to the 
contract, and he is therefore entitled to re- 
cover back what he has so paid." Williams 
V. Bemia, 108 Mass. 91, 11 Am. Rep. 318. 

To apportion the expense for permanent 
improvements between the executed and un- 
executed portions of the contract, on the 
theory that Thompson has had three fifths 
of the benefit of them, would be inconsistent 
with the rule of compensation adopted, and 
contrary to the fact as regards the alleged 
reception of the three fifths of the benefit of 
them. Everything received by him goes in 
reduction of his bill for services and outlay. 
Every dollar paid by him, profits on the 
work, executed work included, is charged 
against his bill. How can it be said, then, 
that he has had the benefit of these improve- 
ments BO far as the contract has been exe- 
cuted? The rule of compensation as laid 
down by the court deprives Thompson of all 
his profits, past and future, directs that he 
be made whole, nothing more, nothing less, 
and excludes any inquiry as to allowances 
of, or deductions for, profits, benefits, and 

In this connection, it is contended that 
Thompson should not be allowed the money 
expended in the construction of the railroad 
because he hauled over it more of F. E. 
Thompson's timber than of the company's 
timber. In order to reach the Van 3^Ieter 
tract of tirauer owned by the company, and 
which Thompson was bound to log under a 
short- time limit, it was necessary to build 
the road through the C. E. Harness tract, 
the timber on which belonged to F. E. 
Thompson, or to the company, and was to 
be logged by said F. £. Thompson. Albert 
69 L. R. A. 

Thompson, having built his road though 
said tract, hauled timber from it for F. E. 
Thompson, and has credited, in his state- 
ment against his expenditures, the haulinp: 
of said timber at 50 cents per thousand, 
and testifies that there was a profit in it to 
him, and theretore to the company. But it 
is said he hauled more timber on this road 
for his son than he hauled for the company, 
and that therefore he did not" build it for 
use under his contract with the company. 
This position is untenable. He was bound 
to take the timber from the Van Meter 
tract, No. 8, the W. H. Harness tract. No. 
11, and the J. W. Parsons tract. No. 12, un- 
der time limits, all lying beyond the C. E. 
Harness tract, from which he incidentally 
hauled timber for F. E. Thompson. ThV 
situation of these lands necessitated the 
hauling of the timber by a railroad or in 
some other way. He may have hauled more 
of his son's timber than of the company's 
timber, too, but the question is not what 
was actually hauled. It iB the purpose for 
which the road was built, and that is very 
apparent from the facts stated. Had he 
been permitted to complete his contract, 
the relative amounts actually hauled for the 
company and for F. E. Thompson would in 
the end have been in a proportion very dif- 
ferent from what they are now. It is fur- 
ther objected, in this connection, that 
Thompson hauled some bark and pulpwood 
of his own over this road, and, for hauling 
bark, purchased some bark cars. These were 
used, not only in hauling bark, but also in 
hauling supplies to the camps along the 
road, the log cars being unsuitable for tliat. 
He has credited what he deems a fair price 
for the hauling of the bark, and the cars 
are credited at a little more than what they 
cost. All this seems to be purely incidental, 
and does not prove the road to have been 
built for a purpose other than the carrying 
out of the logging contract. 

Again, it is urged that compensation can- 
not be had because the work under the con- 
tract was prosecuted in the name of a cor- 
poration organized by Thompson, called the 
Forest City Lumber & Improvement Com- 
pany. No authority is cited in support of 
the contention, and the argument in its 
favor is far from convincing. If a con- 
tractor can employ individuals to aid in 
carrying on his contract, why can he not, on 
the same principle, procure the work to be 
done by a corporation ? Must he do all the 
work with his own hands, or keep the busi- 
ness all in his own name? If he chooses to 
operate through a corporation, so as to lim- 
it his liability on claims for damages as to 
third persons, or to keep one branch of his 
business separate from others, is that a 
matter which in any way prejudices or ooa- 

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Griffith v. Blackwateb B. & L. Co. 


oerns the other party to the contract, even 
if it be in some sense immoral, or even con- 
trary to public policy, as charged in the 
argument? Whether it is immoral or other- 
wise wrong, we have no occasion to say. 

Exception No. 22 comprises six different 
items. The first is $4,750, charged by 
Thompson for his personal services. The 
objection seems to be that he charged this 
as a salary at $1,500 per year as president 
of the Forest City Lumber & Improvement 
Company, a mere instrumentality in his 
hands for the execution of the work under 
his contract. As already indicated, there is 
nothing in this objection. The second is to 
the allowance of three items of $1,500, $300, 
and $878.35, paid by Thompson to three sub- 
contractors, Talbord, Bartlett, and Whit- 
comb. These were paid to discharge liabil- 
ities thrown upon him by the interruption 
of his work under the main contract, and 
he was bound to pay them. They were nec- 
essary expenditures, but it is said they were 
disallowed by this court on the former ap- 
peal. No reference to them is found in the 
opinion, and there is no more reason for say- 
ing they were disallowed than for holding 
many thousands of dollars of other expendi- 
tures to have been so cut out. The third 
objection is to the allowance of $65 ex- 
pended by Thompson in hunting a locomo- 
tive, because he is allowed $1,500 a year for 
personal services. Are his expenses to come 
out of his small allowance for services? The 
fourth relates to the bark cars, which has 
been disposed of. The fifth is of the same 
nature, and relates to an item of $400 for 
lumber cars, which Thompson used in haul- 
ing his own lumber, as well as for purposes 
of his contract. They were sold, and the 
proceeds credited, as well as their earnings 
in hauling his lumber. The sixth is to all 
items in the account, because they were 
paid by the Forest City Lumber & Improve- 
ment Company, and not by Thompson. Noth- 
ing further need be said on that subject. 

Exceptions Nos. 5, 16, 18, and 19 relate to 
questions of competency, relevancy, and suf- 
ficiency of the evidence upon which the re- 
port is based. It is shown that many of the 
items charged were not found on the books 
of the Forest City Lumber & Improvement 
Company, or the Blackwater Boom & Lum- 
ber Company, but were taken from Thomp- 
son's private memoranda or inserted upon 
his verbal representations. The commis- 
Noner has made a complete list of all the 
items not taken from the books. Those in 
Thompfion*s favor are principally items of 
Tent, wages of S. W. Thompson, superin- 
tendent, services of Albert Thompson, 
amounts paid Talbord, Bartlett, and Whit- 
comb, an item of $230 paid the Blackwater 
Boom A, Lumber Company for loss of timber 
60 L. R. A. 

on the Van Meter land not removed within 
the limit of time specified in the contract, 
and an item of $450 paid for a team of 
horses and harness. These charges amount 
to $14,271,94, and, with the exception of 
three or four small items, were all fully 
explained by Thompson in his testimony, 
and shown by him to be proper charges, un- 
der the principles of law hereinbefore an- 
nounced. The items on the other side of the 
account, not taken from the books, amount 
to $26,357.97, composed of credits for stock- 
ing and hauling for F. E. Thompson, and 
the proceeds of the locomotives, cars, rails, 
horses, harness, wagons, etc., sold to the 
Blackwater Boom & Lumber Company. It 
is not perceived that any wrong has been 
done the appellants in respect to any of 
these items. But it is said the accounts 
concerning work done for F. E. Thompson 
and for the Blackwater Boom & Lumber 
Company have been so mingled as to render 
it improper to allow any of the items to en- 
ter into a statement for the purpose of as- 
certaining the amount expended by Thomp- 
son under his contract. No instance is 
specified in which money paid out on work 
for V. E. Thompson is charged in favor of 
Albert Thompson, without a corresponding 
credit for the stocking and hauling of his 
timber at fair prices — the same, or about 
the same, prices as those paid Albert 
Thompson under his contract. All the tim- 
ber logged for F. E. Thompson went to the 
Blackwater Boom & Lumber Company. Its 
books, as well as Thompson's, must have 
shown the amount of it so far as delivered. 
Is Thompson to be deprived of all compensa- 
tion because he is unable to separate these ac- 
counts, when it is evident that the balance 
found by charging and crediting as afore- 
said is substantially the true balance? As 
his work progressed, there was nothing in 
the situation to apprise him, or the other 
interested parties, that it would ever become 
necessary for him to produce the evidence 
now demanded, and it is as clear, full, and 
fair as could be expected under such cir- 
cumstances. Tlie books of the two com- 
panies were open to the commissioner and 
counsel on both sides, and were thoroughly 
and critically examined by the former, and 
from them and the testimony taken he has 
arrived at a conclusion which the circuit 
court has confirmed. The evidence on which 
it rests is neither incompetent nor irrele- 
vant, and there is nothing to pass upon but 
its sufiiciency. How can this court disturb 
the finding, if the appellants are unable, as 
apparently they are, to show wherein or 
how they have suffered from an erroneous 
finding upon the evidence? They fail to 
show or indicate that any money was lost 
on the work done for F. £. Thompson; nor 

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West Vibginia Sttpseme Court or Appeals. 


<lo they put a witness on the stand who de- 
nies Thompson's claim that there was a 
profit in it. If it was profitable, how are 
they injured? If so, how can it be other- 
wise than that they are benefited? 

Does the amount of this decree, as com- 
pared with the former one, indicate injus- 
tice? It is suggested that Thompson now 
has a decree for outlay, services, and ex- 
penses about equal to his former decree for 
these and profits added. But the record 
does not verify the charge. Under the for- 
mer decree, he had, on account of the claims 
Included in the present decree, principal 
sums decreed to him amounting to $94,433.- 
50, and under the present decree on the same 
accounts, after his claim for profits has been 
eliminated, about $48,000, making a differ- 
ence against him of about $46,433. From 
the $48,000 now allowed, deduct the item of 
$12,309.63, representing uncompleted work 
on timber actually felled, and the remainder 
is $3.5,600.37, the amount decreed for money 
expended, not directly upon the timber, 
but in making betterments and improve- 
ments and other preparations for carrying 
on the work. In view of what has been 
shown, respecting the character and magni- 
tude of this work, the court cannot say the 
amount is unreasonable and unsustained 
by the evidence. It is suggested in this con- 
nection, however, that there is inconsistency, 
condemning and rendering worthless Thomp- 
son's testimony and all his evidence, in this : 
That in obtaining his former decree he swore 
his contract was a profitable one, and now 
sliows it to have been a losing one. The 
bases of the former and present estimates 
are entirely different. When Mr. Thomp- 
son, on the former inquiry, testified that 
$10,000 had been sunk in the first year, and 
almost made up by the profits of the second 
year, he spoke of profits, not outlay and ex- 
penses. Just how he estimated them does 
not appear. The present inquiry is upon an 
entirely different basis, and, even if there be 
inconsistency, and the logic of facts shows 
the present result to be reasonable and just, 
is it to be cast aside and justice withheld 
because of such inconsistency? The great 
bulk of the expenditures and receipts by 
Thompson is shown by items taken from 
books, the correctness and accuracy of which 
have not been impaired or overthrown. 
There is a substantial check upon them 
found in the books of the Blackwater Boom 
A Lumber Company. All of them — both sets 
— ^have been open to the commissioner and 
counsel. Who has pointed out any omis- 
sions, any padding, any false or fraudulent 
entries? There is not an intimation of such 
a thing anywhere in the record or the argu- 
ment. There is no suggestion of fraud in 
connection with the omissions from the 
r.i) L. K. A. 

books of certain credits and charges re> 
ported by the commissioner as not having 
been found on the books. 

This disposes of all important exceptions 
and assignments of error respecting the prin- 
ciples on which the account is stated and 
the items thereof. But two errors, not made 
the subjects of exceptions nor mentioned in 
the assignments of error, have been dis- 
covered. The receiver paid Thompson in 
August, 1893, interest amounting to $330.68, 
whieh has not been credited in the account 
against him, though charged in his favor. 
He is credited as of October, 1894, with $15,- 
955, proceeds of property sold, and as of De- 
cember, 1895, with $2,000 on account of 
property sold. These sums should have been 
credited as of August, 1893, for Thompson 
used them from that date until they were 
sold, and he ought/ therefore, to pay, as com- 
pensation for their use, at least the interest 
on the sums for which he sold them. Mak- 
ing these corrections, and deducting $34.50 
interest on small items disallowed by the 
circuit court, the sum found to be due him 
as of the 12th day of June, 1901, is $80,288.- 
9G, of which $47,873.62 is principal and 
$32,415.34 is interest. 

The last contention is that the court erred 
in decreeing the amount due the appellee to 
be a lien upon the assets of the company. 
As this question was adjudicated on the for- 
mer appeal, the court below could not, nor 
can this court now, disturb that conclusion 
and determination. Point 4 of the syllabus 
declares that Thompson's "compensation is 
entitled to a preference of payment out of 
the corporate assets in the hands of the re- 
ceiver in equal priority with the other obli- 
gations of the receivership." That decision 
may be wrong, though we do not say it is : 
but it is, and must remain, the law of this 
case, however erroneous it may be. Camden 
V. Wenif «prr, 7 W. Va. 528 ; Horn v. Perry, 
11 W. Va. 694; Henry v. Davis, 13 W. Va. 
230; :S'orth Western Bank v. Haye, 37 W. 
Va. 475, 16 S. E. 561. 

As there is no error in the decree except 
in respect to the omission of said sum of 
$330.68 from the credit side of the account, 
and the failure to charge Thompson with the 
use of the property from the date of the de- 
cree of confirmation until disposed of, as 
hereinbefore stated, it will be corrected and 
modified in these respects, and, as so modi- 
fied, affirmed, and the cause remanded for 
further proceedings ; but, as this reduces the 
amount of the decree by the sum of $4,505.- 
95, the costs in this court will be decreed to 
the appellants. 

Dent, J., dissenting: 

I cannot concur in the opinion in this 
case, for the reason that it is a misconstrue- 

Digitized by 



Griffith v. Blackwateb B. & L. Co. 


tion of, and in violation, to some extent, of 
the former opinion herein. The facts and 
circumstances clearly show that Albert 
Thompson was the real purchaser of the 
property of the defendant company in the 
name of Osterhout, who was only nominally 
used to cover the transaction; that Thomp- 
son suffered no loss so far as his outlay 
and expenses were concerned, but had really 
made a profit, according to his own testi- 
mony, at the time the sale of the property 
was decreed, and that the larger bid was 
made by him on the theory that he would 
be able to cover the difference- between the 
two bids by his account for profits not 
earned; and that, having failed in this, his 
present account as to damages for outlay 
and expenses is an unconscionable demand 
to cover the difference between the two bids 
incurred by him under a misapprehension of 
the law as to his right to recover such un- 
earned profits. 

In becoming a purchaser of the property, 
it was Thompson's duty to take into consid- 
eration that the law imposed upon him, as 
the company's contractor, the obligation to 
use all ordinary means to save the company 
harmless from the expenditures incurred by 
him in carrying out his contract. 1 Suther- 
land, Damages, p. 184, § 88; Id. p. 188, § 
90. This is a condition the law imposed 
upon him as a purchaser, and which it must 
be assumed he fully understood at the time 
of his purchase, and that he made the same 
with this understanding. Hence he could 
not have made the purchase with any legal 
expectancy of a recovery of his outlay and 
(>xpense8 from the company, owing to his 
knowledge that it was his legal duty to save 
the company harmless. Nor did he, in mak- 
ing his bid, take into consideration his out- 
lay and expenses, for the sale was made en- 
tirely free from his stocking contract, which 
neces»sarily excluded all improvements made 
by him for the purpose of carrying them out, 
and gave the purchaser no right to such im- 
provements without the consent of Thomp- 
son. This gave him such control over the 
property that no one else dare bid against 
him; for a purchaser subject to the stock- 
ing contrHcts would be entirely in his 
power, and a purchaser free from the con- 
tracts would be none the less so, for the im- 
provements made by him were essential to 
the enjoyment of the purchase, and concern- 
ii^ wiiich a stranger, in purchasing, would 
have to deal with Thompson. The property 
was thus so encumbered that Thompson had 
it in his power to make his own terms with 
regard thereto. He made two bids, — the 
lower one subject to his contract ; the higher 
bid waa made with the expectancy of the re- 
covery of the unearned profits on his con- 
t'-acts by reason of the abrogation thereof. 
^-9 L. R. A. 11 

The court held in its former opinion that he 
could not recover these profits. Hence he 
made a legal mistake in bidding on the prop- 
erty with such expectation. To avoid such 
mistake, he comes back with an alleged 
claim for expenditures for improvements 
made by him in the expectancy of being per- 
mitted to carry out his contracts. The law 
answer^ this demand by saying that it was 
your duty to save your contractee harmless, 
and you got the full enjoyment of these im- 
provements when you purchased the prop- 
erty, and you can recover nothing unless you 
can show that you have suffered a loss by 
reason thereof. This, Thompson could not 
possibly do, for he had the full enjoyment 
of all the improvements under his purchase, 
without paying anything additional there- 
for, such as a stranger purchasing would 
have had to do to him. The improvements 
were no loss to him, but they not only de- 
terred others from bidding on the property, 
but enhanced its value greatly without his 
having to pay anything for such enhance- 
ment. It is plainly apparent to the most 
simple minded that Thompson suffered no 
loss except the unearned profits denied to 
him by the former opinion, and that he wa& 
led into a legal mistake in making his higher 
bid in contemplation of the recovery of such 
profits. This is such a mistake that equity 
has no power to relieve against, it being in 
no sense mutual, or occasioned by the act or 
conduct of the opposite party. Yet the 
court relieves him therefrom by allowing his' 
unconscientious demand for improvements 
and expenditures, concerning which he suf- 
fered no loss, but enjoyed the* full benefit 
thereof, to the great enhancement of his 
property. In doing so the court in effect 
overrules its former opinion, and allows 
Thompson the greater portion of the profits 
then denied him. For this there can be no 
other justification or excuse than the legal 
mistake made by Thompson in making his 
higher bid. While this may appear equita- 
ble, yet it is in violation of the established 
rules and principles of courts of equity. 
Hence my dissent. 

A petition for rehearing having been filed, 
Poffenbarger, P., on August 13, 1904, 
handed down the following additional opin- 

A petition for rehearing sets up one new 
contention, namely, that while the statement 
of the commissioner shows over 13,000,000 
feet of timber was hauled for F. E. Thomp- 
son, for which credit is given, only 6,205,000 
feet — less than half as much — is credited as 
having been stocked for F. E. Thompson. 
This discrepancy, if credited at $4.60 per 
thousand feet, would amount to over $30,- 
000, and it is urged that the allowance to 

Digitized by 



West Virginia Supreme CotJRT op Appeals. 


Thompson should be cut down by about that 
much. It is rather strange that such an 
amount should have been overlooked until 
this late hour, especially so in view of the 
strenuousness with which this contest has 
been waged on both sides; but, if the claim 
has any foundation in the record, it is made 
in time. Only the amounts paid by F. E. 
Thompson for stocking his timber are proper 
credits. If the 7,000,000 feet and over, 
stocked for him and not so credited, was 
paid for by the Blackwater Boom & Lumber 
Company upon the order of F. E. Thompson, 
and is therefore included in the cash credited 
in the statement, it is not only accounted 
for, but to credit it up as timber stocked for 
F. Ef Thompson would give a double credit. 
Credit for $17,000 as cash, notes, and drafts, 
exclusive of commissions paid Thompson on 
sales of lumber, is given in the statement. 
At an average price of $4 per thousand, this 
represents 42,374,000 feet; at $4.50 per 
thousand it represents 37,777,000 feet; and 
at $5, covering both stocking and hauling, it 
represents 33,901,000 feet. Thompson gives 
the total amount of spruce timber scaled un- 
der his own contract as having been 25,643,- 
710 feet. Add to this 13,000,000 feet as hav- 
ing been stocked for F. E. Thompson, and 
the result is 38,643,710 feet. Add to 33,- 
901,000 feet, represented by the cash cred- 
ited by Thompson, the 6,205,000 credited as 
having been stocked for F. E. Thompson, and 
.the result is 40,101,000, but little more than 
the total found by the other method. But 
there was some hemlock timber put in by 
Thompson under his own contract, not in- 
cluded in tlie 25,643,710 feet. The amount, 
however, is comparatively small. Of the 
6,205,000 feet shown by the statement to 
have been stocked for F. E. Thompson, only 
313,297 feet was hemlock. Albert Thompson 
cut but little hemlock under his own con- 
tract. R. W. Eastham testified that, in 
saying all the timber of easy access on the 
12,000-acre Marshall tract had been cut, he 
meant the spruce, and that no hemlock on 
that tract above the dam had been cut. 
Meyer, secretary of the Marshall Company, 
filed a statement from which it appears that 
Thompson logged from the Marshall tract, 
under his contract, 19,210,065 feet, of which 
only 1,712,369 feet were hemlock. Making 
an allowance of 2,000,000 feet of hemlock as 
having been cut by Albert Thompson under 
his own contract in addition- to the 25,643,- 
710 feet of spruce, and then adding 13,000,- 
000 as having been cut for F. E. Thompson, 
the result is 40,643,710 feet. Take another 
test: From the statement exhibited with 
the deposition of H. A. Meyer, it appears 
that Thompson logged from the Marshall 
tract 19,210,065 feet. Most of this went in 
by the river. As the railroad runs through 
09 L. R. A, 

a comer of the tract, some of this timber 
may have been hauled in. Thompson says 
he hauled in about 10,000,000 feet for the 
company and about 13,000,000 feet for F. E. 
Thompson. Adding these three amounts, we 
have 42,210,065 feet, for some of which 
Thompson has not been paid. For unpaid 
work on it he had in the present decree 
$12,399.63. Besides, the report of the re- 
ceiver shows 16,735,682 feet to have l>een 
"in stream and skidded in bush," much of 
which was, no doubt, from the Marshall 
tract. From this it is manifest that there 
can be no such discrepancy as is claimed, 
and that there is probably none at all. The 
commissioner and counsel on both sides all 
had access to the books, knew the basis on 
which the account was being made up, and 
had the witnesses before them, and there is 
a presumption of correctness as to the find- 
ing which cannot be overcome by a mere 
suspicion or surmise which the evidence in 
the record strongly tends to contradict. 
Though it may not appear from the record 
that payments for stocking F. E. Thomp- 
son's timber were made directly to Albert 
Thompson by the Blackwater Boom &, Lum- 
ber Company, the books of the two compa- 
nies almost certainly show how these pay- 
ments were made, and they were at hand 
when this account was made up by the 
commissioner. And it does appear here that 
Albert Thompson has been paid by the 
Blackwater Boom & Lumber Company for 
more timber than he stocked for it under 
his own contract with it, — in fact, about the 
amount he stocked under his own contract 
and F. E. Thompson's contract, less the 
6,205,000 credited as timber stocked for F. 
E. Thompson, — and all the money so re- 
ceived is credited in the account stated by 
the commissioner. 

This petition renews, in slightly diflferent 
form, the contention that Thompson is pre- 
cluded from claiming the money expended 
by him because the expenditures were made 
in the name of the Forest City Lumber Com- 
pany. It says he paid $25,000 for the stock 
of that company, which he still holds, where- 
fore said sum should be deducted from the 
amount allowed him. That corporation was 
organized for the sole purpose of carrying 
out Thompson's contract, and all the money 
paid into its treasury as capital stock or 
otherwise was Thompson's money. It never 
had any assets except the money expended 
through it by Thompson in the execution of 
his contract, and the money derivetl by 
Thompson from his contract through it as 
an agency used in the execution thereof. All 
these sums are carried into this account as 
charges and credits. The Forest City com- 
pany is defunct, and its stock is but waste 
paper in Thompson's hands. The corpora- 

Digitized by 



Griffith v. Blackwateb B. & L. Co. 


tion had no subBtantial existence, nor its 
stock any value, save as an instrumentality 
in the execution of the contract. To make 
«ueh deduction, therefore, would be to substi- 
tuto a mere shadow for substance, and sub- 
ordinate equity and justice to a barren tech-, 

It is further insisted in the petition that 
the former adjudication by this court gave 
no lien for the amount now found to be due 
to Thompson, because the present claim was 
not then before the court. All the items in 
the account as now stated were not then in 
the record. Some of them were, but not 
stated in the present form. The claim that 
formed the bsisis of the former decree was 
for damages for breach of contract, com- 
posed of two items, outlay and gains pre- 
vented, as formerly explained. This court 
said the lo' r could not be allowed, but 
that, upon the ascertainment of the former, 
a decree therefor should be entered, giving 
a lien for it upon the assets of the company, 
and for that purpose the cause was re- 
manded to the circuit court. Was not every 
question except that of the amount of com- 
pensation thereby adjudicated? The pres- 
ent demand was before the court as a part 
of the original claim. Thompson's original 
petition sets forth as an item of damages the 
(•ost of constructing his tramroads, repairs 
of dams, and building of bridges, amounting 
to $53,258.00, and his amended^ petition sets 
II, > the claim for $12,399.63, making in all 
more than $67,500. But this court said all 
sums received by him must be deducted. 
This necessitated a restatement of the ac- 
count and the addition of many items both 
of debit and credit, resulting in a decree for 
about $48,000 instead of $67,500. It is ar- 

gued that the language of the last' clause of 
point 4 of the syllabus of the case, as re- 
ported in 46 VV. Va. 56, 33 S. E. 125, saying, 
"which compensation is entitled to a prefer- 
ence of payment out of the corporate assets 
in the hands of the receiver in equal priority 
with the other obligations of the receiver- 
ship," amounts to a construction of all the 
language used by the court on the subject 
of lien, and negatives the allowance of any- 
thing but the $12,399.63 item, because it 
says the amount shall have priority with the 
"other obligations of the receivership;" in 
other words, the whole amount must be an 
obligation of the receivership to make it a 
lien on the assets. But does not the court 
declare and decide that "a just compensation 
for the actual expenditure of labor and 
money in fulfilment of his contract, subject 
to a deduction of all sums paid him,'' shall 
be allowed priority with the other obliga- 
tions of the receivership? It must be one 
of such obligations to satisfy the sense of the 
words "other obligations" of the like kind. 
The question is. What did the court decide? 
not whether it decided correctly. Properly 
or improperly, it has plainly declared the 
demand to be an obligation of the receiver- 
ship and entitled to priority, and remanded 
the cause for a decree in accordance with the 
adjudicated principle governing the cause. 
It was binding upon the court below (Butler 
V. Thompson, 52 W. Va. 311, 43 S. E. 174), 
because it was an adjudication. What is 
res judicata as to one court is res judicata 
as to all others, and there is no escape from 
it except where an appeal exists. An appeal 
to this court from its own decision rendered 
years ago does not lie. 


John DILL, Appt., 


Daniel W. MARMON. 




. A iMAater la not liable to « serrant 
for Imlvrles caused by negligence of a fore- 

man In directing work where the master has 
otherwise performed his duty. 
2. A direction by^ n foreman to nn 
employee naiiliitlnar In iihlftlnar cars 
to be loaded at a mill, to push a car put 
in motion by the impact of another before it 
has lost its momentum, Is not such a change 
In his work, although he has never done that 

Note. — As to servant's right of action for in- 
juries received in obeying direct command, see 
ftlso. In this series, Dallemand ▼. Saalfeldt, 48 
L R. A. 758, and note; and the later cases of 
Fhin T. Cassidy, 53 L. R. A. 877, and Long v. 
Illinois C. R. Co. 58 L. R. A. 237. 

As to vice prlncipalship considered with ref- 
erence to the superior rank of a negligent serv- 
ant see Stevens v. Chamber 1 in, 51 L. R. A. 513, 
and note; Norton Bros. v. Nadebok, 54 L. R. A. 
M2; Southern P. Co. v. Schoer, 57 L. R. A. 
T'«T : Canney v. Walkeine, 58 L. R. A. 33 ; and 
t» L. R. A. 

Illinois Southern R. Co. v. Marshall, 66 L. R. A. 

As to vice prlncipalship determined with re- 
spect to the character of the act which caused 
the injury, see Lafayette Bridge Co. v. Olsen, 
54 L. R. A. 33, and note; Wellston Coal Co. v. 
Smith, 55 L. R. A. 99 ; Swift & Co. v. Bleise, 57 
L. R. A. 147; Kelly v. New Haven S. B. Co. 57 
L. R. A. 494 ; Sroufe v. Moran Bros. Co. 58 L. 
R. A. 313 ; Knutter v. New York & N. J. Teleph. 
Co. 58 L. R. A. 808; Sams v. St Ix)uls & M. 
River R. Co. 61 L. R. A. 475. and Southern In- 
diana R. Co. V. Harrell, 63 L. R. A^61. 

Digitized by LjOOQIC 


Indiana Supreme Court. 


pai'tlcvilar act before, as to authorize him to 
proceed at the master's risk. 

3. The mere f«et tli«t « place wliere « 
■errant Is worklnir 1« rendered tem- 
porarily nniiafe In the execution «of the 
details of the serrice does not, alone, make it 
the duty of the master to be present in per- 
son, or by representatlye, to protect the serv- 
ant from harm. 

4. A servant ensaered In asalatlnar In 
■hlftlns cars to be loaded at a mill as- 
sumes the risk of the foreman giving a neg- 
ligent command relative to the handling of 
the cars. 

6. A servant employed to assist In 
shlftlnip cars to be loaded at a mill 
cannot hold tlie master liable for an 
Injury caused by the negligence of the fore- 
man in charge of the two or three men en- 
gaged In such work, but who is not at the 
head of a department of the work, in direct- 
ing him to push a car after It has been set 
In motion by the momentum of another car, 
or in falling to stop the latter after the serv- 
ant, in attempting to obey the order, has 
slipped and fallen In such a way that he will 
be injured in case it is not stopped. 

6. It Is error to direct a verdict for 
defendant in an action by a servant against 
his master to recover damages for personal 
Injuries, where there is some evidence tending 
to show that the injury was caused by de- 
fective machinery. 

(January 25, 1905.) 

APPEAL by plaintiflf from a judgment of 
the Superior Court for Marion County 
in favor of defendant in an action brought 
to recover damages for personal injuries for 
which defendant was alleged to be responsi- 
ble. Reversed. 

The facts are stated in the opinion. 

Messrs. Frank E. Oavin, Theodore P. 
Davis, and James I*. Gavin, for appel- 
lant : 

It is the duty of the master to exercise 
reasonable care" to provide a safe working 
place and safe appliances for the servant. 

Island Goal Co. v. Hicaggerty. 159 Ind. 
664, 62 N. E. 1103, 65 N. E. 1020; Indiana 
Car Co. V. Parkei\ 100 Ind. 181. 

If the master authorizes an ut?eut to per- 
form such duty, the agent, whatever his 
rank, stands in the place of the master. 

Taylor v. Evansville & T. H. R. Co. 121 
Ind. 126, 6 L. R. A. 584, 16 Am. St. Rep. 
372, 22 N. E. 876 ; Louisville, N. A. d C. R. 
Co. V. Graham, 124 Ind. 89, 24 N. E. 668; 
SaU V. Louisville, S. A. d C. R. Co. 129 Ind. 
200, 28 N. E. 183. 611; Louisville, E. d St. 
L. Consol. R. Co. v. Uanning, 131 Ind. 528, 
31 Am. St. Rep. 443, 31 N. E. 187; Evans- 
iHlle d T. H. R. Co. v. Holcomb, 9 Ind. App. 
198, 36 N. E. 39; O. H. Hammond Co. v. 
Mason, 12 Ind. App. 469, 40 N. E. 642; 
Lebanon v. McCoy, 12 Ind. App. 500, 40 N. 
E. 700; Southern Indiana R. Co. v. HarreU 
(Ind. App.) 66 N. E. 1016. 
i;'.) L. R. A. 

The duty of the master is a continuing 
one, not only to make, but to keep, the 
servant's working place safe, 

Taylor v. Evanwille d T. H. B, Co. 121 
Ind. 126, 6 L. R. A. 584, 16 Am. St. Rep. 
372, 22 N. E. 876 ; Louisville, N. A. d C. R. 
Co, V. Oraham, 124 Ind. 89, 24 N. E. 668 : 
.Va« V. Louisville, ?>i. A. d C. R. Co. 129 
Ind. 260, 28 N. E. 183, 611; Louisville, E. 
d 8t. L. Consol. R. Co. v. Hanning, 131 Ind. 
528, 31 Am. St. Rep. 443, 31 N. E. 187; 
Evansville d T. H. R. Co. v. Holoomh, 9 Ind. 
App. 198, 36 N. E. 39; G, H. Hammond Co. 
V. Mason, 12 Ind. App. 469, 40 N. E. 642: 
Lebanon v. McCoy, 12 Ind. App. 600, 40 N. 
E. 700; Southern Indiana R. Co. v. HarreU 
(Ind. App.) 66 N. E. 1016. 

Until the agent selected by the master act:* 
up to the limit of the duty of the master to 
act, the master's duty is not done. 

Island Coal Co. v. Swaggerty, 159 Iiid. 
664, 62 N. E. 1103, 66 N. E. 1026; McElH- 
gott V. Randolph, 61 Conn. 157, 29 Am. St. 
Rep. 181, 22 Atl. 1094; Gerrish v. New 
Haven Ice Co. 63 Conn. 9, 27 Atl. 236. 

The master must respond, not only for 
the misfeasance, but also for the nonfea.*- 
ance, of him to whom he has intrusted his 

Island Coal Co. v. Buxiggerty, 159 Ind. 
664, 02 N. E. 1103, 65 N. E. 1026; Louis- 
ville, A'. A. d C. R. Co. v. Oraham, 124 Ind. 
80, 24 N. E. 668 ; Chicago, I. d L. R. Co. v. 
Martin, 31 •Ind. App. 308, 65 N. E. 591; 
Louisville, E. d St. L. Consol. R. Co. v. 
Uanning, 131 Ind. 528, 31 Am. St. Rc]*. 
443, 31 N. E. 187; Eramvilh d T. H. A'. 
Co. v. Holcomb, 9 Ind. App. 198, 36 N. E. 
39; Michael v. Roanoke Mach. Works, 90 
Va. 492, 44 Am. St. Rep. 927, 19 S. E. 261. 
The master must respond for his repre- 
sentative's failure to give the signal to stop 
the loaded car when tiie men stepped in be- 
hind the empty car to push. 

Island Coal Co. v. Swagger ty, 169 Ind. 
664, 62 N. E. 1103, 65 N. E. 1026; Indiatia 
Car Co. V. Parker, lOU ind. 181: Taylor \. 
Evansville d- 7. H. R. Co. 121 Ind. 126, 6 L. 
R. A. 584, 16 Am. St. Rep. 372, 22 N. E. 
876; Louisville, A. A. d C. R. Co. v. Gra- 
ham, 121 Ind. 89, 24 N. E. 668; Nail v. 
Louisville, N. A. d C. R. Co. 129 Ind. 260, 
28 N. E. 183, 611; Louisville, E. d St. L. 
Consol. R. Co. V. Hanning, 131 Ind. 528, 
31 Am. St. Rep. 443, 31 N. E. 187; Evans- 
ville d T. H. R. Co. v. Holcomb, 9 Ind. App. 
198, 36 N. E. 39; G. H. Hammond Co. v. 
Mason, 12 Ind. App. 469, 40 N. E. 642; 
Lebanon v. McCoy, 12 Ind. App. 500, 40 N. 
E. 700; Southern Indiana R. Co. v. Harrell 
(Ind. App.) 66 N. E. 1016; McElligott v. 
Randolph, 61 Conn. 167, 29 Am. St. Rep. 
181, 22 Atl. 1094; Gerrish v. New 6aven 
Ice Go. 63 Conn. 9, 27 Atl. 235 ; Chicago, I. 

Digitized by 



Dill v. Mabmon. 


dS L. 12. Co. V. Martin, 31 Ind. App. 308, 65 
N. E. 591; Michael v. Roanoke Mach. 
Works, 90 Va. 492, 44 Am. St. Rep. 927, 19 
B. E. 261. 

The master must respond herein because 
he absolutely failed to take any precaution 
whatever to keep the plaintiff's working 
place safe after he had specifically ordered 
him to do this particular work at this par- 
ticular place. 

Taylor v. Evansrille d T. H. R. Co. 121 
Ind. 124, 6 L. R. A. 584, 16 Am. St. Rep. 
;J72, 22 N. E. 876: Nail v. Louisville, N. A. 
d C. R. Co. 129 Tnd. 260, 28 N. E. 183, 611. 

In ordering the appellant to work at this 
particular place, Haines was performing the 
master's duty. 

Lebanon v. McCoy, 12 Ind. App. 500, 40 
N. E. 700; Tfoblesville Foundry d Mach. Co. 
V. Yeaman, 3 Ind. App. 521. 30 N. E. 10; 
Taylor V. Evansinlle d T. H. R. Co. 121 Ind. 
12(5. 6 L. R. A. 584, 16 Am. St. Rep. 372, 22 
X. E. 876; McMahon v. Ida Min. Co. 95 
Wis. 308, 60 Am. St. Rep. 117, 70 N. W. 
47S: Miller v. Missouri P. R. Co. 109 Mo. 
3.">0, 32 Am. St. Rep. 673, 19 S. W. 58; 
Svhrnrder v. Chicago d A. R. Co. 108 Mo. 
:L>2, 18 L. R, A. 827, 18 S. W. 1094; CaW- 
»ow V. Northtcestem Teleph. Exch. Co. 63 
Minn. 428, 65 N. W. 915; Shearm. ^ Redf. 
\(««. last ed. §§ 204-233. 

Having ordered plaintiff to do this par- 
ticular work at this particular place, de- 
ft'itdant had no right, by his negligence, to 
make the place unsafe and dangerous for 
the work, and the haxard of his master's 
iM'irligenoe, of which he was ignorant, can- 
not h»> imposed upon plaintiff. 

Taylor v. Evansville d T. H. R. Co. 121 
Iml. 124, 6 L. R. A. 584, 16 Am. St. Rep. 
372, 22 N. E. 876; Louisville, N. A. d C. R. 
Co. V. Graham, 124 Ind. 89, 24 N. E. 668; 
Sail V. Louisrillc, N. A. d C. R. Co. 129 
Ind. 260, 28 N. E. 183, 611; Louisville, E. 
rf Ht. L. Consol R, Co. v. Uanning, 131 Ind. 
.">28, 31 Am. St. Rep. 443, 31 N. E. 187; 
Kransville d T. B. R. Co. v. Holcomb, 9 Ind. 
App. 198, 36 N. E. 39 ; G. H. Hammond Co. 
r. Mason, 12 Ind. ^pp. 469, 40 N. E. 642; 
'Sohlcsville Foundry d Mach. Co. v. Yea- 
man, 3 Ind. App. 521, 30 N. E. 10; Lebanon 
T. McCoy. 12 Ind. App. 500, 40 N. E. 700; 
hland Coal Co v. Swaggerty, 159 Ind. 664, 
C2 N. E. 1103, 65 N. E. 1026; Gould Steel 
('0. V. Richards, 30 Ind. App. 348, 66 N. E. 
*W: Houthem Indiana R. Co. v. Harrell 
and. App.) 66 N. E. 1016; Eerdler v. 
Buck's Stove d Range Co. 136 Mo. 3, 
37 S. W. 115: Michael v. Roanoke Mach. 
Works, 90 Va. 492, 44 Am. St. Rep. 927, 19 
S. E. 261; McMahon v. Ida Min. Co. 95 
Wi*. 308, 60 Am. St. Rep. 117, 70 N. W. 
478: Miller v. Missouri P. R. Co. 109 Mo. 
350, 32 Am. St. Rep. 673, 19 S. W. 58; 
»L. R. A. 

Gerrish v. New Haven Ice Co. 63 Conn. 9, 
27 Atl. 235; Schraeder v. Chicago d A. R. 
Co. 108 Mo. 322, 18 L. R. A. 827, 18 S. W. 
1094; Carlson v. Northujestem Teleph. 
Exch. Co. 63 Minn. 428, 65 N. W. 914; Rah- 
man V. Minnesota d N. W. R. Co. 43 Minn. 
42, 44 N. W. 522; Hannibal d St. J. R. Co. 
V. Fox, 31 pan. 586, 3 Pac. 320. 

A servant who was obeying a specific 
order of his superior in charge "had the 
right to assume, in the absence of warning 
or notice to the contrary, that in conform- 
ing to the order he would not be subjected 
to injury." 

Republic Iron d Steel Co. v. Berkes, 162 
Ind. 517, 70 N. E. 815. 

Messrs. Elm'^r E. Steveaaoa and Ed- 
ward H. KaiKht, for appellee: 

The appellant and E. A. Haines, the fore- 
man whose negligence is complained of, are 
shown by the evidence to have been engaged 
i^ the performance of a common service for 
the master at the time of the accident to 
appellant, and they were therefore fellow 

Smallwood v. Bedford Quarries Co. 28 Ind. 
App. 692, 63 N. E. 869; StaMard Cement 
Co. v. Minor, 27 Ind. App. 479, 61 N. E. 
684; Salem Stone d Lime Co. v. Chastain. 
9 Ind. App. 453, 36 N. E. 910; Peirce v. 
Oliver, 18 Ind. App. 87, 47 N. E. 485; 
American Teleph. d Teleg. Co. v. Bower, 20 
Ind. App. 32, 49 N. E. 182; Kemer v. Balti- 
more d O. S. W. R. Co. 149 Ind. 21, 48 N. 
E. 304; Ross v. Union Cement d Lime Oo. 
26 Ind. App. 463, 68 N. E. 500; Southern 
Indiana R. Co. v. Martin, 160 Ind. 280, 66 
N. E. 886; Brazil d C. Coal Co. v. Cain, 98 
Ind. 282; Louisville, N. A. d C. R. Co. v. 
Isom, 10 Ind. App. 691, 38 N. E. 423; 
Indianapolis d St. L. R. Co. v. Johnson, 
102 Ind. 352, 26 N. E. 200; Capper v. Louis- 
ville, E. d St. L. R. Co. 103 Ind. 305, 2 
N. E. 749; Conley v. Portland, 78 Me. 217, 
3 Atl. 058: Reese v. Biddle, 112 Pa. 72, 3 
Atl. 813; McLaughlin v. Camden Iron 
Works, 60 N. J. L. 557, 38 Atl. 677 ; Morg- 
ridge v. Providence Teleph. Co. 20 R. I. 386, 
78 Am. St. Rep. 879, 39 Atl. 328; Kelly v. 
Hogan, 37 Misc. 761, 76 N. Y. Supp. 913; 
New Pittsburgh Coal d Coke Co. v. Peter- 
son, 14 Ind. App. 634, 43 N. E. 270, 136 Ind. 
398, 43 Am. St. Rep. 327, 35 N. E. 7; 
Elliott, Railroads, § 222 ; Brothers v. Cart- 
ter, 52 Mo. 373, 14 Am. Rep. 424; Mc- 
Dermott v. Boston, 1.33 Mass. 349: Pertgo 
V. Indianapolis Brewing Co. 21 Ind. App. 
338, 52 N. E. 402; Cincinnati, H. d D. R. 
Co. V. Voght, 26 Ind. App. 665, 60 N. E. 
797; Mahcr v. Thropp, 59 N. J. L. 186. 35 
Atl. 1057; Fraker v. St. Paul, M. d M. R. 
Co. 32 Minn. 54, 19 N. W. 349; Justice v. 
Pennsylvania Co. 130 Ind. 321, 30 N. E. 
303; Houser v. Chicago, R. I. d^. R. C 

), K. I. d^. K. Co, 

Digitized by LjOOQIC 


Indiana Supreme Coust. 


60 I<ma, 230, 46 Am. Rep. 65, 14 N. W. 
778; Taylor v. Evansville d T, H, R. Co. 
121 Ind. 124, 6 L. R, A. 584, 16 Am. St. 
Rep. 372, 22 N. E. 876; Northern P. R, Co, 
V. Peterson, 162 U. S. 346, 40 L. ed. 994, 
16 Sup. Ct. Rep. 843. 

A foreman is a fellow servant of those 
working with him; and for the foreman's 
negligence in the discharge of those duties 
owing by him to the master, resulting in in- 
jury to a servant working with such fore- 
man, the master is not liable. 

Indiana Car Co. v. Parker, 100 Ind. 181; 
IVew? Piitshuryh Coal d Coke Co. v. Peter- 
son, 136 Ind. 398, 43 Am. St. Rep. 327, 35 N. 
E. 7; Halem Stone d Lime Co. v. Chastainj 
9 Ind. App. 453, 30 N. E. 910; Southern 
Indiana R. Co. v. Martin, 160 Ind. 280, 66 
N. E. 886; Brazil d C. Coal Co. v. Cain, 98 
Ind. 282: Crispin v. Bahhitt, 81 N. Y. 616, 
37 Am. Rep. 521. 

The test to determine whether an em- 
ployee is a vice principal or a fellow 
8er\-ant is not his title or rank, or power 
to employ or discharge, but the nature of 
tlie service that is being performed at the 
time of the accident. 

Peirce v. Oliver, 18 Ind. App. 87, 47 N. 
E. 485 : Robertson v. Chicago d E. R. Co. 
146 Ind. 486, 45 N. E. 055; Justice v. Penn- 
sylvania Co. 130 Ind. 321, 30 N. E. 303; 
Ross v. Union Cement d Lime Co. 25 Ind. 
App. 403, 58 N. E. 500: Perigo v. Indianap- 
olis BrcLi-ing Co. 21 Ind. App. 338, 52 N. 
E. 402. 

If there was any negligence on the part 
of IJaines in failing to warn the appellant, 
it was the negligence of a fellow servant. 

New Pittsburgh Coal d Coke Co. v. Peter- 
son, 14 Ind. App. 034. 43 N. E. 270; Cole 
Bros. V. Wood, II Ind. App. 37, 30 N. E. 
1074; Kerner v. Baltimore d O. 8. W. R. 
Co. 149 Ind. 21, 48 N. E. 364; Klochinski 
V. Shores Lumber Co. 93 Wis. 417, 07 N. W. 

When the master has furnished appliances 
reasonably safe and fitted for the purposes 
intended, and exercised reasonable care to 
so keep them, he is not liable to a servant 
injured by reason of the negligent, unskil- 
ful, or improper use thereof by other serv- 
ants, even if the latter be superior in rank 
to the injured servant. The proper use of 
such implements is a duty owing to the 
master from all his servants. 

12 Am. & Eng. Enc. Law, 2d ed. pp. 953, 
954; Kemer v. Baltimore d 0. S. W. R. 
Co. 149 Ind. 21, 48 N. E. 304; Boosier 
Stone Co. v. McCain, 133 Ind. 231, 31 N. E. 
956; Drinkout v. Eagle Mach. Works. 90 
Ind. 423; McKinnon v. Norcross, 148 Mass. 
633, 3 L. R. A. 320, 20 N. E. 183 ; McDer- 
moit V. Boston, 133 Mass. 349; O'Brien v. 
American Dredging Co. 53 N. J. L. 291, 21 
09 L. R. A. 

Atl. 324; McOinty v. Athol Reservoir Co. 
155 Mass. 183, 29 N. E. 510; Lothrop v. 
Fitchburg R. Co. 150 Mass. 423, 23 N. E. 
227; Howard v. Hood, 156 Mass. 391, 29 N. 
E. 630; Johnson v. Boston Tow-Boat Co. 
135 Mass. 209, 46 Am. Rep. 458; O'Keefe 
V. Broumell, 156 Mass. 131, 30 N. E. 479 : 
Columbus d I. C. R. Co. v. Arnold, 31 Ind. 
174, 99 Am. Dec. 615; Ncutz v. Jackson Hill 
Coal d Cok^ Co. 139 Ind. 411, 38 N. E. 324, 
39 N. E. 147 ; Robertson v, Chicago d E. R. 
Go. 146 Ind. 480, 45 N. E. 666; Southern 
Indiana R. Co. v. Martin, 160 Ind. 280, 66 
N. E. 886; Ross v. Union Cement d Lime 
Co. 25 Ind. App. 463, 58 N. E. 500; Meehan 
V. Spcirs Mfg. Co. 172 Mass. 375, 52 N. E. 
518; Peirce v. Oliver, 18 Ind. App. 87, 47 
N. E. 485 : Chicago, B. d Q. R. Co. v. Abend, 
7 111. App. 130. 

A master is not chargeable with negli- 
gence on account of a place for work made 
dangerous alone by the carelessness and 
neglect of fellow servants, or for the negli- 
gent manner in which they use the tools or 
materials furnished to them for their work. 

Hussey v. Coger. 112 N. Y. 614, 3 L. R. 
A. 559, 8 Am. St. Rep. 787, 20 N. E. 556; 12 
Am. & Eng. Enc. Law, 2d ed. pp. 953, 954; 
Keener v. Baltimore d 0. S. W. R. Co. 149 
Ind. 21, 48 N. E. 364; Robertson v. Chicago 
d E. R. Co. 146 Ind. 486, 45 N. E. 655; 
Mcf'han v. Speirs Mfg. Co. 172 Mass. 375, 
52 N. E. 518: Hermann v. Port Blakely Mill 
Co. 71 Fed. 853. 

A master is not required to be present at 
all times superintending the work, but the 
details of the work and the manner of its 
execution must usually be intrusted to 
workmen, for whose negligence in the per- 
formance of such details of the work the 
master is not liable to other servants. 

Kcrncr v. Baltimore d, 0. S. W. R. Co, 
149 Ind. 21, 48 N. E. 304: Southern Indiana 
R. Co. V. Martin, 100 Ind. 280, 60 N. E. 
880; Hussey v. Coger, 112 N. Y. 614, 3 L. 
R. A. 559, 8 Am. St. Rep. 787, 20 N. E. 
550; O'Brien v. American Dredging Co. 53 
N. J. L. 291, 21 Atl. 324; Cullen v. Norton, 
120 N. Y. 1, 26 N. E. 905; Central R. Co. v. 
Keeyan, 160 U. S. 259, 40 L. ed. 418, 16 
Sup. Ct, Rep. 269; Potter v. New York C. 
d H. R. R. Co. 136 N. Y. 77, 32 N. E. 603. 

Where one servant is injured by the neg- 
ligence of his fellow servant, the duties of 
both being such as to bring them into habit- 
ual association, as in this case, so that they 
may exercise a mutual influence upon each 
other, promotive of proper caution, and the 
master is not guilty of any negligence in 
employing the servant causing the injury, 
the master is not liable. 

Bier v. Jeffersonville, M. d I. R. Co. 1.32 
Ind. 78, 31 N. E. 471; Chicago d E. I. R. 
Co. V. Kneirim, 152 III 458, 43 Am. St. 

Digitized by 



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Rep. 259, 39 N. E. 324; Chicago & N. W. R. 
Co. V. Moranda, 93 111. 302, 34 Am. Rep. 

IU8: Chicago d A. R. Co. v. O^Bryan, 15 

111. App. 134; Indiana Car Vo. v. Parker, 

100 Ind. 181. 

An employee assumes, not only the ordi- 
nary diingers of his employment which are 
known to him, but also sucli as, by the ex- 
ercise of ordinary diligence, could have been 
known to him. 

Bailey, Master's Liability for Injuries to 
Servant, pp. 162 et acq.; Penn/iylvania Co. 
V. Ebaugh, 152 Ind. 631, 53 N. E. 763; 
Chicago d E. R. Co. v. Wagner, 17 Ind. 
App. 22, 45 N. E. 76, 1121; Russell v. Til- 
lotson, 140 Mass. 201, 4 N. E. 231 ; Coming 
i<lc€l Co, V. Pohlplatz, 29 Ind. App. 250, 
♦54 N. E. 476; Romona Oolitic Stone Co. v. 
Tate, 12 Ind. App. 57, 37 N. E. 1065, 39 N. 
E, 529; Diamond Plate Glass Co. v. De 
Hority, 143 Ind. 381, 40 N. E. 681; Chicago, 
1. 6 L. R. Co. V. Glover, 154 Ind. 584, 57 N. 
E. 244; Kantucky d I. Bridge Co. v. East- 
man, 7 Ind. App. 514, 34 N. E. 835; Linton 
Coal d Min. Co. v. Persons, 15 Ind. App. 
♦)9, 43 N. E. 651; Day v. Cleveland, C. C. d 
>'f. L. R. Co. 137 Ind. 206, 36 N. E. 854; 
i^iuart V. New Albany Mfg. Co. 15 Ind. 
App. 184, 43 N. E. 961. 

U a servant with knowledge of existing 
t'linditions, or the means of obtaining such 
knowledge, without objection adopts the 
more dangerous method of doing the work, 
Un^ause it is convenient, the risk is his own. 

Wabash Paper Co. v. Webb, 146 Ind. 
:W3, 45 N. E. 474; 8t. Louis Bolt d Iron Co. 
V. Brcnnan, 20 111. App. 555 ; 8t. Louis Bolt 
d Iron Co. V. Burke, 12 111. App. 369; 
Bailey, Personal Injuries Relating to Master 
A Servant, §§ 1121-1150; Beach, Contrib. 
Neg. 3d ed. § 299, note, p. 242; Elliott, 
Railroads, § 1313; Consolidated Stone Co. 
v. Redmon, 23 Ind. App. 319, 55 N. E, 454; 
Krskine ▼. Chino Valley Beet-Sugar Co. 71 
Fed. 270. 

When a servant knows facts from which 
he can, as well as the master, determine the 
probability of danger, he assumes the risk, 
even though he may not know of the actual 

McGahan v. Indianapolis Natural Gas Co. 
140 Ind. 335, 29 L. R. A- 355, 49 Am. St. 
Rep. 199, 37 N. E. 601; Hines v. Willcox, 
^6 Tenn. 148, 34 L. R. A. 824, 54 Am. St. 
Rep. 823, 33 S. W. 914; Mitchell v. Stewart, 
187 Pa. 217, 40 Atl. 799 ; Kibele v. Phila- 
^Iphia, 106 Pa. 41. 

The master is not bound to furnish Im- 
plements of the best or most approved pat- 
tern, or of any particular design. 

Jarobson v. Cornelius, 52 Hun, 377, 5 N. 
V. Supp. 306; Harley v. Buffalo Car Mfg. 
<'o. 142 X. Y. 31, 36 N. E. 813; Lake Shore 
d U. S. R. Co. ▼. MoCormick, 74 Ind. 440. 
«fl L. R. A. 

Where an accident is unusual, and could 
not have been reasonably anticipated by a 
master in the light of long experience, there 
can be no culpable negligence upon his part, 
and a verdict for the plaintiff cannot stand. 

Wabash, St. L. d P. R. Co. v. Locke, 112 
Ind. 404, 2 Am. St. Rep. 193, 14 N. E. 391 ; 
Standard Oil Co. v. Helmick, 148 Ind. 457, 
47 N. E. 14; Consolidated Stone Co. v. Red- 
mon, 23 Ind. App. 319, 55 N. E. 454; Craven 
V. Mayers, 105 Mass. 271, 42 N. E. 1131; 
Kitteringham v. Sioux City d P. R. Co. 62 
Iowa, 285, 17 N. W. 585; Evansville d T. 
H. R. Co. V. Krapf, 143 Ind. 647, 36 N. E. 
901; Qassaway v. Georgia Southern R. Co. 
69 Ga. 347 ; Sjogren v. Hall, 53 Mich. 274, 
18 N. W. 812; Loftus v. Union Ferry Co. 
84 N. Y. 455, 38 Am. Rep. 533; McGrell 
v. Buffalo Office Bldg. Co. 153 N. Y. 265, 
47 N. E. 305; Del Sejnore v. Hallinan, 153 
N. Y. 274, 47 N. E. 308; Ayers v. Rochester 
R. Co. 156 N. Y. 104, 50 N. E. 960; Baxter 
v. Chicago d N. W. R. Co. 104 Wis. 307, 80 
N. W. 644; Deisenrieter v. Kraus-Merkel 
Malting Co. 97 Wis. 279, 72 N. W. 735; 
Wilber v. Follansbee, 97 Wis. 577, 72 N. W. 
741, 73 N. W. 569. 

Glllett, J., delivered the opinion of the 
court : 

Appellant instituted this action to recov- 
er for an injury to his person alleged to 
have been caused by the negligence of appel- 
lee. It is unnecessary to make any particu- 
lar statement of the issues. Upon the close 
of the evidence introduced on behalf of the 
defense, the court instructed the jury to re- 
turn a verdict in favor of appellee. The 
record presents the question as to the pro- 
priety of this action upon the part of the 

There is a question in the case as to 
whether a certain appliance was defective, 
but, laying this matter aside for the present, 
it may be said that, after giving appellant 
the benefit of all disputed questions upon the 
evidence, the following facts are shown by 
the bill of exceptions: On July 4, 1900, ap- 
pellee was, and for some time prior thereto 
had been, operating a flour mill, and an ele- 
vator in connection therewith, at Nobles- 
ville, Indiana. Appellee did not give the 
business his personal attention. One Ander- 
son was the general manager thereof, and 
the evidence shows that he occasionally gave 
directions to the workmen. Under him was 
one Haines, who had charge of tne loading, 
weighing, and handling of cars used by ap- 
pellee, as well as of the exchange business 
in connection with the mill. So far as 
shown, he had but three or four men under 
him. Appellant was employed by Anderson 
about the middle of May, 1900. He was told 
that he would be subject to the instructions j 

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Indiana Supreme Court. 


of Haines. Appellant worked under Haines 
in loading cars, and in moving them on a 
siding used in connection with the plant; 
but, when there was no work of that kind 
to do he was given general, or, as he de- 
scribes it, "roustabout," work upon the 
premises. The mill was about 150 feet north 
of the elevator. The siding was on the east 
side of the mill and of the elevator, and 
when cars were loaded at the mill they were 
pulled down to or just beyond a track scale 
which was in front of the latter building. 
From one to three cars were handled per 
day. The men would sometimes push an 
empty car between the two points, but the 
method of taking a loaded car from the mill 
to the elevator was by means of an appli- 
ance in the elevator known as a "car puller." 
The power was transmitted from this ap- 
pliance to the car by means of a rope. The 
car puller would draw the car at the rate 
of 45 feet per minute. The rope passed out 
of the elevator through a window which was 
so situated that, by attaching the rope to 
the rear truck of the car, it could be pulled 
until the rear end of it was just south of the 
scale. Anderson had explained to appel- 
lant at different times that it was neces- 
sary' for a man to stand in the window to 
signal the man in charge of the car puller 
when to shut off the power. Haines ordina- 
rily did this, but he frequently designated 
some one of the men to do it. On quite a 
number of occasions appellant had done 
this. A short distance south of the scales 
two tracks came into the siding, — one from 
the Lake Erie & Western Railroad, and the 
other from the Chicago & Southeastern 
Bjillroad. Appellant had helped to push 
cars between the mill and the elevator, and 
had assisted in pulling cars onto the inter- 
secting tracks to the south. Haines ordi- 
narily worked with his men. He possessed 
no power to hire or discharge them. Appel- 
lant was forty-two years old, and had had 
a reasonable amount of general experience 
about machinery. He admits that he was 
thoroughly familiar with the surroundings 
outside the mill and elevator. During the 
night of July 3, 1900, two cars were pushed 
into the siding by the Lake Erie & Western 
for appellee's use. The next morning the 
north car was loaded at the mill. The other 
car stood partially on the scale, but the 
greater part of it was to the south thereof, 
it was necessary to pull the loaded car down 
to the scale to weigh it, and then to get the 
empty car to the north. Haines, appellant, 
and another man started to do this work. 
The rope was fastened to the rear truck of 
the loaded car, and Haines stood at the win- 
dow to stop the car when it stood upon the 
scale. It seems to have been appellant's ex- 
pectation, since it was the practice, that a 
oi> L. U. A. 

chock would be put under one of the wheels 
when the car reached the proper position. 
Haines said to the two m^n, as the car was 
approaching; "When that loaded car comes 
down and bumps that empty car, you keep 
it going down the switch." Appellant testi- 
fied that his understanding of the order was 
that when the two cars got far enough apart 
so that they could get in between them, and 
before the empty car had lost its momen- 
tum, they were to get in and push. The two 
men undertook to do so, and, as appellant 
was pushing, he slipped, and one of his feet 
was caught by the llange of a wheel of tlie 
loaded car. Both appellant and his associate 
cried out. Their cries were heard by a man 
inside, but the car continued to move for a 
minute or a minute and a half, during 
which time appellant's foot slipped alon^ 
the rail for a little distance, but the out- 
come of it was that his foot was crushed. 
Appellant did not look back after steppinij^ 
between the cars. He supposed that the 
loaded car would be stopped. He had nevtM- 
been called on before to help push a car that 
had been started by a car behind it. 

Assuming that Haines was guilty of nt«- 
ligence in giving tne r.rder, and in failing t<i 
signal to stop the car puller the moment 
that he was apprised that appellant's foot 
was caught, it is to be determined whether 
Haines occupied sucn a relation to the work 
that appellee should be held responsible for 
the consequences which ensued. If there i^ 
any liability in this case, it must be plactnl 
on a common-law ground, since appellee in 
an individual. 

The extreme doctrine concerning who art* 
fellow servants, which was declared in Co- 
lumbus d I. C. R. Co. V. AmoW, 31 Ind. 174. 
90 Am. Dec. 615, is no longer the law of 
this state. There have been innovations up- 
on the doctrine as declared in that case, in 
the direction of a more liberal rule in favor 
of injured employees, but not to the extent 
of permitting a recovery^ on the ground;^ 
suggested. Appellant's counsel cite upon 
this branch of the case the following au- 
thoritii^s: Indiana Car Co. v. Parker, lOO 
Ind. 181; Taylor v. Evansville ^ T. H. If. 
Co. 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. 
Rep. 372, 22 N. E. 876; Nail v. Loi/wtnl/o. 
N. A. d C. R. Co. 129 Ind. 260, 28 X. E. 
183, 611; Louisville, E. d St. L. Consol. If. 
Co. V. Hanning, 131 .Ind. 528, 31 Am. St. 
Rep. 443, 31 N. E. 187: Hoosier Stone Cc. 
V. McCain, 133 Ind. 231, 31 N. E. 95« : 
Island Coal Co. v. Stcaggerty, 159 Ind. 66-t, 
62 N. E. 1103, 65 N. E.' 1026. Indiana Oar 
Co. v. Parker, 100 Ind. 181, was a cnsc^ 
where a duty of the master was neglected, 
in failing to furnish a safe place to work. 
It is therein very clearly pointed out that, 

as respects those dutiqiSyJiiciUsflhe maator 
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owes to the servant, they cannot be delegat- 
ed, and that therefore the omission of the 
servant to whom their performance is in- 
trusted is necessarily the omission of the 
master. The case, however, gives no recog- 
nition to the view that rank or superiority 
in senice upon the part of a commanding 
servant is a controlling factor in the solu- 
tion of the question as to liability. On the 
contrary, it was snid: "The rules which 
these decisions so firmly establish as the law 
of this state may be thus stated: First. The 
master is not liable to a servant for in- 
juries resulting from the negligence of a fel- 
low servant engaged in the same general 
line of duty, where the negligent act is per- 
formed in the capacity of a servant. Sec- 
ond. Servants engaged in the same general 
line of duty are fellow servants, although 
one may be a superior, and the others may 
be subordinate servants, under his immedi- 
ate direction and control." In Taylor v. 
Kvan»tiUe d T. H. R. Co, 121 Ind. 124, 6 
L. R. A. 584, 16 Am. St. Rep. 372, 22 N. E. 
876, it was held that the company was lia- 
ble to a servant who was injured, while act- 
ing under a special order of the master 
mechanic, owing to a negligent act done by 
the latter. The case does not rest upon the 
theory that the master mechanic occupied a 
position analogous to that of a foreman, but 
on the proposition that, in view of the full 
authority which he had over the men, ma- 
chinery, and work, he stood for the master 
in the particular circumstances. The fol- 
lowing extract from the opinion will suffi- 
ciently show the effect of the decision: "We 
do not affirm that an employee with author- 
ity to command may not be a fellow serv- 
ant. On the contrary, we hold that one hav- 
ing authority to command may still be a 
fellow servant; but we bold also, that, 
where the position is such as to invest the 
employee with sole charge of a branch or de- 
partment of the employer's business, the 
employee, as to that branch or department, 
may be deemed a vice principal while en- 
gaged in giving orders or directing their 
execution." In A'aH v. Louiavxlle, N. A. d 
C. R. Co. 129 Ind. 260, 28 N. E. 183, 611, 
a ser\'ant was called out, with a large force 
of men, to save a bridge which a freshet 
threatened with destruction. While labor- 
ing in the waters, as he was directed to do 
by an employee who had solely been intrust- 
ed with the work of endeavoring to save the 
bridge, the servant was killed by reason of 
a negligent order given by the man in 
charge of the work as to the movement of 
a locomotive. It was held that the master 
was liable. In the opinion of the petition 
for a rehearing, it was said: "One who is 
placed in charge of a force of men engaged 
in any of those occupations, whose duties 
8»L.*R. JL 

are limited to carrying on the work or di- 
recting it, whether actively assisting there- 
in or not, and who is invested with no au- 
thority, or charged with no duty, in fur- 
nishing places or appliances for the \w)rk, 
or in the employment or retention of em- 
ployees, is himself usually a mere coem- 
ployee. His duties require him to use, or 
superintend and direct the using of, places 
and appliances, and to control employees 
furnished by the master. If, however, he is 
given additional authority, and is charged 
with the duty of furnishing places to work, 
and appliances for the work, and is auth- 
orized to employ and discharge operatives, 
he is, as to such things, not a coemployee, 
but speaks and acts as the master. One who 
is placed in unrestricted control of a given 
department by his master, and is clothed 
with the power to command the services of 
tlie other employees, not simply to see that 
they faithfully discharge the duties ordi- 
narily pertaining to their employment, and 
in the usual places, with the usual appliances 
provided therefor, but has authority to re- 
quire of them the performance of other 
duties in other places and with other appli- 
ances, — who has the authority to call the 
sectionmen, the bridge builders, the freight 
handlers, and the laborers from the gravel 
pit and gravel traiu, and require of all that 
they unite in averting the threatened de- 
struction of a bridge, — is certainly in such 
matters more than a mere fellow servant 
with those thus subject to his control." In 
Louiftvillef E. d 8t. L. Conaol. R. Co. v. 
Hannitig. 131 Ind. 628, 31 Am. St. Rep. 
443, 31 N. E. 187, it was held that the rail- 
road company was liable where a servant 
was killed while engaged in the repair of 
a car on a track used for switching; it ap- 
pearing that the servant was called from his 
regular work, and had engaged in t